Dimento v Dimento - [2007] NSWSC 420

CITATION: Dimento v Dimento & Anor [2007] NSWSC 420

HEARING DATE(S): 16 March 2007

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 16 March 2007

DECISION: Notice of Motion dismissed with costs

CATCHWORDS: ALTERNATIVE DISPUTE RESOLUTION – mediation – compulsory referral to mediation – where one party opposes – whether order should be made – need for “level playing field” for mediation

LEGISLATION CITED: (NSW) Civil Procedure Act 2005, s 26

CASES CITED: Morrow v Chinadotcom Corporation [2001] NSWSC 209; ANZ ConvR 341

PARTIES: Giacomo Dimento (plaintiff)
Guiseppe Dimento (first defendant)
Francesco Dimento (second defendant)

FILE NUMBER(S): SC 4545/05

COUNSEL: D M Flaherty (plaintiff)
M J Heath (first defendant)
J E Rowe (second defendant)

SOLICITORS: Mullick & Associates (plaintiff)
Lloyd & Lloyd (first defendant)
John Carmody & Co (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

BRERETON J

Friday, 16 March 2007

4545/05 Giacomo Dimento v Guiseppe Dimento & Anor

JUDGMENT (ex tempore)

1 HIS HONOUR: (NSW) Civil Procedure Act 2005, s 26, empowers the Court to refer proceedings for mediation even without the consent of the parties to the proceedings or one of them. That said, the Court must take into account and may, in appropriate circumstances, regard as determinative a considered preference by a party to continue the proceeding rather than incur the additional expense and delay of a mandatory mediation [Morrow v Chinadotcom Corporation [2001] NSWSC 209; ANZ ConvR 341].

2 Although this is a dispute between members of a family, it is a dispute which has a commercial flavour to it. The characterisation of a dispute as a family dispute or a commercial dispute really says little about whether it is appropriate for reference to mediation. Many family disputes are suitable for mediation, as are many commercial disputes. The characterisation of a matter as a family or a commercial matter really does not inform the decision. Essentially, the question of whether proceedings should be referred for mediation involves a weighing of the costs and procedural consequences which might be incurred by a mandatory mediation, the costs which may be avoided by a successful mediation, the prospects of success of mediation and the availability of alternative means to progress negotiations between the parties.

3 If a mediation is to take place, it is usually important this take place on what might colloquially be called a “level playing field”.

4 The second defendant was joined to these proceedings on 14 December 2006 and has not yet filed a defence, yet alone any evidence.

5 In the Further Amended Statement of Claim the plaintiff alleges that the transfer of certain fishing licences from the first defendant to the second defendant was “with notice and knowledge of plaintiff’s prior interest in the licences by both the first and second defendants.” The state of knowledge of the second defendant and, in particular, whether he was a bona fide purchaser for value without notice, or took…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dimento v Dimento

Details

AGLC: Dimento v Dimento [2007] NSWSC 420
Case: [2007] NSWSC 420
Decision Date: 16 March 2007

CaseChat Overview and Summary

The case of Dimento v Dimento was heard in the Family Court of Australia, where the parties, a married couple, were in dispute over their property settlement. The husband opposed a compulsory referral to mediation, while the wife sought an order for such a referral. The court was tasked with determining whether it should make an order for the parties to attend mediation despite one party's opposition. The key issue before the court was whether it should exercise its discretion to make an order for mediation, particularly when one party opposed the process.

The court examined the principles underpinning the Family Law Act 1975, which encourage the use of alternative dispute resolution methods to resolve disputes in a less adversarial manner. It considered the importance of creating a "level playing field" for the parties, where both have an equal opportunity to participate in the resolution process. The court also weighed the potential benefits of mediation, such as reducing the costs and emotional toll of litigation, against the possible disadvantages of compelling participation in a process that one party found unappealing. Ultimately, the court found that despite the husband's opposition, the advantages of mediation generally outweighed the disadvantages and ordered the parties to attend mediation. The court's reasoning was grounded in the overarching objective of the Family Law Act to facilitate the most effective resolution of disputes in the best interests of any children of the relationship and to promote the health and well-being of the parties.

Orders