Dorrian v Rushlyn Pty Ltd - [2010] FMCA 787

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DORRIAN & ANOR v RUSHLYN PTY LTD & ANOR

[2010] FMCA 787

TRADE PRACTICES – PRACTICE & PROCEDURE – Dispute as to whether parties attend for mediation or conciliation.

Trade Practices Act 1974, s.52
Federal Magistrates Court Rules 2001, rr.10 & 27
Federal Magistrates Act 1999, s.21

First Applicant:

COLIN EDWARD DORRIAN

Second Applicant:

SHARRON MAY DORRIAN

First Respondent:

RUSHLYN PTY LTD

Second Respondent:

ROBERT MARK JONES

File Number:

ADG 222 of 2010

Judgment of:

Lindsay FM

Hearing date:

5 October 2010

Date of Last Submission:

5 October 2010

Delivered at:

Adelaide

Delivered on:

5 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr M. Hoile

Solicitors for the Applicant:

Belperio Clark

Counsel for the Respondent:

Mr Mylne

Solicitors for the Respondent:

McColm Matsinger Laywers

ORDERS

The within proceedings are referred to a Registrar in the Adelaide Registry of this Court for mediation in accordance with Rule 27 of the Federal Magistrates Court Rules 2001 at a date and time convenient to each of the parties BUT not more than six weeks from today’s date, such date to be advised in writing by the Registry, with the respondents at liberty to attend mediation by telephone if so advised.
The Respondents do serve upon the Applicants by not later than 13 October 2010 a request for further and better particulars and the Applicants do respond to same by not later than 25 October 2010.
Directions be adjourned to 22 November 2010 at 9.30am (SA time).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 222 of 2010

COLIN EDWARD DORRIAN

First Applicant

SHARRON MAY DORRIAN

Second Applicant

And

RUSHLYN PTY LTD

First Respondent

ROBERT MARK JAMES

Second Respondent

REASONS FOR JUDGMENT

This is the first return date on an application which is brought pursuant to section 52 of the Trade Practices Act relating to what is alleged is the misleading and deceptive conduct of the respondents with respect to the entry by the applicants into a franchise agreement. They have purported to rescind the agreement.
Being the first return date, the practice of the Court is to explore with the parties the utility of there being some kind of mediation before the matter is listed for trial. It turns out that each of the parties have expressed, in some degree, a willingness to enter into that process, but disagree as to who it should be that carries it out. I was told by the respondent’s counsel that there had been a series of initiatives taken, prior to this return date, to have the applicant agree to attending with a mediator appointed pursuant to those industry based arrangements. That opportunity was declined by the applicants without, as I understand it, them giving any reasons for their declining, and that was essentially the position that was taken before me today.
The applicants express a willingness though to participate in mediation or conciliation that takes place under the aegis of the officers of the Court and, especially, the…

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.

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Details

Case: [2010] FMCA 787
Decision Date

CaseChat Overview and Summary

The case of Dorrian v Rushlyn Pty Ltd involved a dispute brought under the Trade Practices Act 1974, alleging misleading and deceptive conduct by the respondents in relation to a franchise agreement. The applicants, Colin Edward Dorrian and Sharron May Dorrian, sought to have the agreement rescinded. The respondents, Rushlyn Pty Ltd and Robert Mark Jones, disputed these allegations. The matter was heard before Lindsay FM in the Federal Magistrates Court of Australia, with the applicants represented by Mr M. Hoile and solicitors Belperio Clark, and the respondents represented by Mr Mylne and McColm Matsinger Lawyers.

The legal issues before the court included the procedural steps to be taken for resolving the dispute and the appropriateness of either mediation or conciliation in this context. Specifically, the court needed to determine whether the matter should be referred to a mediator appointed under industry-based arrangements or to a mediator appointed under the Federal Magistrates Court Rules 2001. The applicants preferred mediation under the court's auspices, while the respondents favoured mediation by an industry-based mediator, citing experience and geographical convenience.

In delivering the judgment, Lindsay FM outlined the distinction between mediation and conciliation as defined by the Federal Magistrates Act 1999 and the National Alternative Dispute Resolution Advisory Council (NADRAC). Mediation involves a neutral third party assisting the parties to identify issues and reach an agreement, without having an advisory or determinative role on the content of the dispute. Conciliation, on the other hand, allows the conciliator to have an advisory role regarding the content of the dispute and the outcome. Given the nature of the commercial dispute, Lindsay FM determined that mediation would be more appropriate. The court preferred to appoint a mediator directly to avoid potential additional costs and delays from a de novo review of the Registrar's decision.

Ultimately, the court ordered that the parties attend court-based mediation within six weeks, with the respondents to request further particulars from the applicants by 13 October 2010, and the applicants to respond by 25 October 2010. The directions were adjourned to 22 November 2010 at 9.30am (SA time). The court certified the reasons for judgment on 21 October 2010.

Orders