Hamcor Pty Ltd v Vaughan

[2012] QDC 299

[2012] QDC 299

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1124 of 2011

HAMCOR PTY LTD

Plaintiff

and

GEOFFREY MARTIN VAUGHAN

and

OTHERS

Defendant

Defendants

BRISBANE

..DATE 07/09/2012

ORDER

CATCHWORDS

Order for mediation - costs to be borne by active parties in equal shares, save that plaintiff is responsible for two shares - plaintiff to date has elected not to serve third defendant - expectation that he will become an active party and join the mediation when 1st and 2nd defendants seek contribution from him - order about costs subject to review

HIS HONOUR:  The Court makes an order in terms of the initialled draft which provides the following:

1. The first and second defendants file and serve any amended defence and counterclaim by 4 p.m. on 19 October 2012.

1. The first and second defendants file and serve any claim for contribution from the third defendant by 4 p.m. on 19 October 2012.

1. The fourth defendant file and serve their notice for intention to defend and defence by 4 p.m. on 19 October 2012.

1. The fifth defendant file and serve its notice of intention to defend and defence by 4 p.m. on 19 October 2012.

1. The plaintiff file and serve any replies by 4 p.m. on 2 November 2012.

1. The parties are to complete disclosure of documents by 4 p.m. on 23 November 2012.

7. The parties are directed to participate in and act reasonably and genuinely in a mediation to be conducted before 24 December 2012 at a time and place to be agreed between the parties, who is to be mediator to be agreed between the parties on or before 2 November 2012.

1. The parties are to negotiate a fee with the mediator and are to pay the following percentages of the fee:

   A.The plaintiff, 40 per cent.

   B.The first and second defendants, 20 per cent.

   C.The fourth defendant, 20 per cent.

   D.The fifth defendant, 20 per cent,

the foregoing arrangement based on the expectation that the third defendant will be served with the claim and/or become an active party in the mediation, bearing an equal 20 per cent of the fee, failing which the foregoing percentages shall be subject to review to more accurately reflect a philosophy of equal contributions.

1. The matter be listed for further review at 10 a.m. on 5 November 2012.

10.Costs reserved.

11.Liberty to apply.

The parties adhere to the usual approach of dividing the costs of a mediation equally, which, in some circumstances, strikes me as falling hard on particular litigants given their circumstances.  It's not said that there's any difficulty of that kind here. 
The proposal that the plaintiff pay more is based on the idea that, having joined the third defendant in the proceeding as a potential active party, the plaintiff for its own reasons has refrained from serving the third defendant.  It's likely that he will become involved by receiving from the first and second defendants a claim for contribution.

In respect of the mediation, the last words in paragraph 7 are there to indicate that it's expected the parties will get themselves in a position to mediate, in particular by identifying the person who's to preside at an early date rather than await the completion of the steps scheduled in the order.  On that basis, there seems to be little point in extending the cut off date for the mediation to 31 January 2012 as proposed by the first and second defendants.  My experience suggests to me that even if the extra five or six weeks were allowed, they'd cover a time of the year when locally nothing really happens. 

The last topic requiring some acknowledgement is the absence of the fourth defendant today.  The Court was given by the plaintiff's counsel, Mr O’Higgins, the best assurance he can give that the fourth defendant, represented by Sydney practitioners, has given a verbal indication of contentment with the order proffered for consideration.  It seems to me that the changes that have been made today wouldn't affect that contentment. 

The Court has invited Mr O’Higgins to use best efforts to get from the Sydney practitioners something in writing to indicate their attitude which can be passed on to the Court and made part of the file as Exhibit 1, to establish that the Court hasn't embarked on an exercise of making orders that affect the fourth defendant in their absence.

-----