Hopcroft & Anor v Olsen & Ors No. Scgrg-87-2112 Judgment No. S7009

HOPCROFT & ANOR v OLSEN & ORS
[1998] SASC S7009

Civil

Perry J

This is an application by the plaintiffs for an order for compulsory mediation. The plaintiffs sue the State of South Australia and five former Directors of Fisheries claiming damages for alleged misfeasance in public office, negligence and other breaches of duty associated with the administration of licences, particularly with respect to the taking of abalone and prawns, issued under the Fisheries Act 1971.
The action is one of a group of twelve actions in which similar claims are brought by fishermen or companies involved in the fishing industry.
The actions have had a chequered history since their institution. Four of them were instituted as long ago as 1986 (2556/86, 2557/86, 2561/86 and 2562/86). Three were instituted in 1987 (742/87, 743/87 and 2112/87). One was issued in 1996 (2246/96), and three in 1997 (321/97, 957/97 and 1454/97). The remaining action was instituted in 1998. This ruling is given in one of the 1987 actions. I will describe it hereafter as “the Hopcroft action”.
The very first of the actions to be instituted, Edwards and Deep Sea Ark Pty Ltd v Olsen & Ors (2556/86), was the subject of an application to the Full Court to answer various points of law referred by a Master. That application was heard and determined in September 1996 (see unreported Judgment S5703, (1996) 188 LSJS 153). The judgment of the Full Court settles points of law relevant not only to the Edwards case but also to many others, if not all, of the twelve actions.
In most of the actions the plaintiffs are on the face of it, out of time, and their claims include a claim for an extension of the time within which to bring the proceedings, pursuant to s48 of the Limitation of Actions Act. Such a claim is included in the Statement of Claim in the Hopcroft action.
All of the actions involve complex questions of law and fact, both as to issues of liability and as to quantum.
After the Full Court hearing in September 1996, in which I participated, the task of managing the pre-trial work in all of the actions was assigned to me. Some of the actions were instituted after that time, but I have grouped them all together and dealt with the pre-trial directions hearings jointly.
Pre-trial management of the cases has been made more complex by reason of the fact that there is no commonality of representation of the parties, except for the defendants who are represented by the Crown Solicitor.
One of the sticking points with respect to entry for trial has been a problem in securing what the parties regard as adequate discovery of documents. The process of discovery has involved inter alia what I can only describe as a process of ransacking of the State archives.
Mercifully, that process now seems to be largely completed, although I am told that there are one or two minor aspects of discovery to be tidied up.
Ordinarily, I would not order matters into the trial list until a certificate of readiness or appropriate assurances that all interlocutory proceedings have been completed, can be given. However, I have now intimated to the parties that if I wait for them to finish completely the process of discovery, the cases will never be listed for trial. They are already hopelessly stale, in that even the most recently instituted actions relate to events occurring in the main in the 1970s. Witnesses for the defendant are growing old, some witnesses reside abroad, and everything points to the desirability of the court bringing the matters on for hearing and determination as early as that can be achieved.
That is so despite the fact that one way of looking at the present situation would be to say that if parties have taken such an inexcusably inordinate time to bring actions to the point when they are ready for trial, there is no reason for the Court to bend over backwards to assign an early trial date.
In any event, since the application was argued, I have been assigned to commence the trial of the actions in February 2000. That is the earliest date upon which they can be brought to trial.
A difficult question arises as to whether all of the actions should be brought to trial together, that is, at a joint hearing, and also as to whether all issues should be tried together or, for example, issues of liability separated out and determined before issues as to quantum. A question of the mode of the trial also arises, as it may well be that if, for example, issues of liability are determined separately by the Court, questions of quantum could then be addressed in some less formal manner, perhaps by directed mediation.
I will, as early as is convenient in the New Year, bring the matters on for a general directions hearing at which I will specifically direct attention to the question whether or not there should be a trial of some issues ahead of others and whether or not the actions should be brought on for trial jointly or discretely.
The position put to me by Mr Bell of counsel for the defendant is that there are six actions out of the group of twelve which ought sensibly be tried together, having regard to what he perceives to be a commonality of factual and legal issues. For convenience, I refer to them by the surnames of the plaintiffs: they are Edwards, Smith, Ey, Hopcroft, Murphy and Fox. So that he is suggesting that Hopcroft go to trial jointly with at least five other cases.
On the other hand, Mr Esser of counsel for the plaintiffs in the Hopcroft action, contends that this action should be tried separately, and first as to issues of liability only.
Estimates as to the length of hearing vary very considerably. Mr Esser submits that if the question of liability was to be separated from the question of quantum and the Hopcroft action tried separately, it should take no more than a week.
On the other hand, Mr Bell suggests an estimate of six to seven months if the six actions which he suggested are heard together go to trial on both liability and quantum. He thought that one case tried alone could be dealt with in about three months. He put to me in arguendo that these estimates were considered estimates, but at this stage they have not been accompanied by any schedules of witnesses to be called or the like.
I am not prepared to accept Mr Esser’s estimate, and I think Mr Bell’s predictions to be more realistic.
What I have referred to so far is very much by way of background, as the only application before me at this stage is the application in the Hopcroft action for mediation. More particularly, by an application dated 27 October 1998 (court file document No 66), the plaintiffs seek an order in the following terms:
“That pursuant to s65(1) of the Supreme Court Act
(a) Sir Laurence Street
(b) Mr Kenneth Marks QC
(c) some other appropriately qualified person to be decided by the court
be appointed as a mediator in these proceedings and that the whole of these proceedings be referred to that person for mediation forthwith.”
The defendants oppose the making of an order for mediation. Put shortly, Mr Bell submits that such a process would be “futile”; that all of the claims are hotly contested; that even though the Full Court might have resolved most of the questions of law referred to it adversely to the Crown, there are still substantial factual disputes upon which the defendants consider they are in a strong position to succeed; and, in any event, the plaintiffs will have difficulty in surmounting the hurdle posed by the Limitation of Actions Act. He submits that to go to mediation at this stage would be to distract resources from the completion of the preparations for trial, and that the Court should not order mediation when one of the parties does not consent. He submits that mediation would be an expensive exercise and that it would not be right to incur that expense when the chances of successfully resolving the matter by such a procedure are so slight.
Mr Esser, on the other hand, contends that mediation is not, having regard to cost of a trial, likely to be so expensive that the application should be refused by reference to costs considerations. Furthermore, he submits that no matter how remote the prospect of settlement by mediation might appear to be, there are many instances when matters have been successfully mediated. Furthermore, he submits that the current practice of the Court is to encourage alternative dispute resolution.
A number of affidavits have been filed in support of and in opposition to the application, but they add very little to the matters which I have so far summarised. I am told, however, that approaches have already been made to Sir Laurence Street and Mr Kenneth Marks, who would have been available a little earlier this year and, presumably, will be available early next year if I should order mediation. Through an affidavit of Mr Block of the Melbourne firm of instructing solicitors acting for the plaintiffs, I have been informed that after he had spoken to both Sir Laurence Street and Mr Ken Marks, he estimates that two days should be assigned to the mediation itself “with the possibility that further time may be needed”.
It appears that Sir Laurence’s daily fees are $5,000 per day for an eight hour day plus $550 for a preliminary conference, plus accommodation and other expenses. Mr Marks’ fees are $4,000 per day for the mediation itself and $400 per hour for preparation.
I have been given to understand that the ordinary practice would be for the parties each to put up in advance 50 per cent of the estimated fees necessary for the mediation, on the footing that a final adjustment would be made between the parties to reflect the outcome of the mediation, subject to any further order of the court.
Through Mr Bell, the defendants have indicated that they have communicated to the plaintiffs’ solicitors a willingness to discuss resolution of the matter informally, despite their opposition to mediation.
It cannot be doubted that I have the jurisdiction to order mediation, notwithstanding the fact that one or more party may not consent to that course. Section 65(1) of the Supreme Court Act 1935 provides:
“Subject to and in accordance with the Rules of Court, the court constituted of a judge may, with or without the consent of the parties, and a master or the registrar may, with the consent of the parties, appoint a mediator and refer a civil proceeding or any issues arising in civil proceeding for mediation by the mediator.” (Emphasis added)

On the other hand, Practice Direction 12, which was promulgated after the enactment of s65 in its present form, provides inter alia:

“The judges are of the view that, as a general rule, a matter should not be referred to an external mediator unless all parties consent.”

That follows a detailed description intended to apply in a situation where one or more parties do not consent to a matter being referred to mediation. While the thrust of those procedures suggests that a mediation imposed on the parties should ordinarily be conducted by a judge of the Court selected after consultation with the Chief Justice, it would not be right to read down the general discretion conferred by s65 to confine mediation imposed on the parties to that form of mediation.

In this particular case I think that, if mediation is to be imposed upon the parties, it should be conducted by an experienced external commercial arbitrator.
As to whether or not an order should be made, I have carefully considered the arguments put forward by counsel. I was not referred to any authority within this jurisdiction on the question of directed, as opposed to consensual, mediation. Indeed, I do not think that an order for compulsory mediation by an external mediator has so far been made in this Court. I have, however, been referred to the transcript of proceedings in a case heard in the Supreme Court of Victoria in November last by Hedigan J (Butcher v Commonwealth of Australia Action No 4536 of 1996), from which it appears that against the wishes of the defendant to the proceedings, he directed that a mediation take place before an external mediator.
Be that as it may, it does not appear to me that precedent is of much assistance in determining the present application. Every case involves different circumstances. What might be an appropriate procedure in one case, may clearly be inappropriate in another.
I am not much moved by the argument that the parties are a long way apart - so far apart, Mr Bell suggests, that the difference between them could not be bridged. That is a familiar cry in the context of many cases which subsequently are successfully mediated.
Neither do I accord much weight to Mr Bell’s suggestion that a forced mediation would divert resources necessary to complete the pre-trial proceedings. In any event, those proceedings are almost completed, and the commencement of the trial, in whatever form it takes, is some way off.
I have anxiously considered the question whether if, as seems likely, I will be ordering at least the six cases suggested by Mr Bell to go to trial together, I should countenance separate mediation of the Hopcroft action. But at the end of the day, it seems to me that the possibility that Mr Hopcroft’s action might successfully be mediated should not be pushed aside by reason of the fact that there are a number of other similar actions pending in the Court. It may be that, if his action was to be successfully mediated, the outcome might be of assistance in resolving the other matters.
A factor which operates strongly in favour of the order sought, is that the earliest available date for trial is not until February 2000.
In all the circumstances, I have reached the view that, in the exercise of my discretion, it would be proper to order mediation of this action by a mediator of the standing of the persons whose names have already been put forward. I will, however, give Mr Bell an opportunity to be heard further as to the identity of the mediator and as to the precise terms of the order.

[1998] SASC 7009

21 December 1998