Edwards v Trapman

[2014] NSWSC 1089

Supreme Court

New South Wales

Medium Neutral Citation:

Edwards v Trapman [2014] NSWSC 1089

Hearing dates:

8 August 2014

Decision date:

08 August 2014

Before:

McCallum J

Decision:

Pursuant to s 29(1) or alternatively s 73(1) of the Civil Procedure Act 2005 proceedings dismissed with no order as to costs.

All previous costs orders in the proceedings are vacated.

Catchwords:

PRACTICE AND PROCEDURE -

Legislation Cited:

Civil Procedure Act 2005

Category:

Procedural and other rulings

Parties:

Barrie Walsh Edwards (1st plaintiff)
Michael Edwards Pty Ltd (2nd plaintiff)
Timothy Wardell (3rd plaintiff)
William James Trapman (defendant)

Representation:

Counsel:
M Lewis (plaintiffs)
W Trapman (self-represented)
Solicitors:
Rankin Ellison Lawyers (plaintiffs)
MJ Woods & Co (defendant)

File Number(s):

2013/61182

Publication restriction:

None

Judgment

1. HER HONOUR: These are proceedings in which injunctive relief was sought against Mr William Trapman on the strength of an alleged cause of action in defamation. The proceedings were referred by Garling J to mediation last year. The plaintiff contends that the mediation was successful and resulted in a binding agreement between the parties.

1. The execution of that agreement included or was conditional upon the revocation of an Apprehended Violence Order made against the defendant in proceedings in the Local Court. Since the mediation, for various reasons which it is not necessary to go into, the execution of the agreement has stalled but the position has now been reached where the Apprehended Violence Order has been revoked by consent. Notwithstanding that fact, Mr Trapman remained, until today, opposed to the finalisation of these proceedings in accordance with the alleged agreement reached at the mediation, all of which remained was to have the proceedings dismissed with no order as to costs.

1. In those circumstances, the plaintiff filed a Notice of Motion on 14 July 2014 to give effect to the agreement in accordance with the provisions of sections 29 or 73 of the Civil Procedure Act 2005. Not knowing the basis on which Mr Trapman remained opposed to that course, the plaintiff served evidence which sets out, in detail, the procedure by which, so far as the plaintiff is concerned, agreement was reached.

1. Upon hearing from Mr Trapman this morning, it emerges that he does not now remain opposed to the Court's giving effect to the agreement reached at the mediation. His previous opposition to that course is perhaps understandable when one hears the explanation for it until this point.

1. In short, Mr Trapman complains that, at the mediation, he was represented by two barristers other than counsel appearing today. Mr Trapman informed me that, while the junior counsel had previously acted as his counsel, it was only at the mediation that the senior of those two counsel came to represent him. Mr Trapman did not wish to be represented at the mediation by that barrister. He alleges that he has previously been in conflict with the barrister who, he alleges, called him an "Abo". Mr Trapman is a man of indigenous heritage, having a connection with the Brewarrina people, and is plainly proud of that heritage.

1. He has communicated to me this morning a deal of strong feeling about assumptions made within Australian communities about indigenous people, which he has found hurtful and offensive. The strength of those feelings is perfectly understandable and it is unfortunate that a man of his heritage has been brought to that level of feeling.

1. Those matters noted, however, the fact remains that he accepts today that at least the outcome achieved at the mediation can appropriately be given effect to today, leaving aside his concerns about the process. Specifically I should record that he alleges that, during the course of the mediation, he was not properly advised by the two barristers. It is not necessary for me to determine the substance of that allegation and I note that it is not supported by evidence this morning but, rather, only by submissions made by Mr Trapman from the Bar table.

1. In all the circumstances, however, the one thing that is fortunately clear is that the Court can properly give effect to the mediation agreement, since that course is no longer opposed by Mr Trapman.

1. I make orders 2 and 3 in the Short Minutes of Order handed up by Mr Lewis on behalf of the plaintiffs. I note that the plaintiffs do not seek their costs of the proceedings today. I note that, with the making of those orders, the proceedings are brought to conclusion.

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Decision last updated: 06 November 2014