Jin v University of Melbourne
[2009] FMCA 1316
•3 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JIN v UNIVERSITY OF MELBOURNE | [2009] FMCA 1316 |
| COPYRIGHT – Claim for breach of copyright settled at mediation – applicant sought to reside from settlement – alleged duress – consent not informed – alleged unreasonableness of mediation process – settlement not to later satisfaction of applicant – claim found to have been compromised – agreement reached at mediation to withdraw proceeding – enforcement of the agreement – applicant estopped from prosecuting claim afresh. |
| Federal Magistrates Act 1999, s.61 |
| Applicant: | YIN CHENG JIN |
| Respondent: | THE UNIVERSITY OF MELBOURNE |
| File Number: | MLG 642 of 2009 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 3 December 2009 |
| Date of Last Submission: | 3 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 3 December 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Dr W. A. Rothnie |
| Solicitors for the Respondent: | Legal Services, University of Melbourne |
ORDERS
The Application filed 29 May 2009 and each of the orders sought in Section C of the accompanying Statement of Claim be discontinued.
The Response dated 26 June 2009 and each of the orders sought in paragraphs 6 and 7 therein be discontinued.
There be no order as to costs.
Pursuant to s. 61 of the Federal Magistrates Act 1999, in order to prevent prejudice to the administration of justice, the parties are prohibited from publishing the terms and conditions of the terms of settlement reached on 19 November 2009.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 642 of 2009
| YIN CHENG JIN |
Applicant
And
| THE UNIVERSITY OF MELBOURNE |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Today is listed for a final hearing of an application by Mr Jin seeking compensation for alleged breaches of copyright by the University of Melbourne. Pursuant to directions made by me, a mediation took place on 19 November 2009, and I am informed, and there seems to be no doubt, that the parties reached an agreement that was signed off on 19 November 2009. However, subsequent to that agreement being reached, the applicant, Mr Jin, sought to resile from it and has come here today seeking to pursue his claim.
The reasons he has proffered for his decision to resile from the agreement are, in broad terms, that the consent he gave to the agreement was not an informed consent, and it was brought about at the end of an arduous mediation which amounted, in real terms, to a denial of a willing consent on the part of Mr Jin.
He has put forward a number of explanations as to why he believed he was ill-informed about the nature and purpose of the consent, such as an absence from Australia attending to family matters in China which saw him leave in July and not return until October. This, he says, impinged on his capacity to find legal representation, keep track of the correspondence and prepare for the mediation. It appears he explored the prospect of obtaining pro bono legal advice and representation, having been provided by the respondent’s solicitor with various referrals in that regard. He informs that he spoke to someone who, at least initially, indicated he had a good case. I note the solicitor for the respondent was contacted by a solicitor on behalf of the applicant seeking copies of relevant documents, but that solicitor seems to have played no further part. Mr Jin informs that he obtained legal advice, but he disagreed with it.
Nonetheless, it appears that his attempts to get legal assistance, whilst initially were encouraging, finally proved not to have been successful, at least to his understanding in that: (a) legal representation was not available for the mediation; and (b) subsequent to the mediation, he took issue with the nature of the advice he was given.
Although he attended the mediation unrepresented, he did not ask, as I understand the situation, for an adjournment. He proceeded with the mediation and appears now to complain about the legal nature of the discussion and the fact he was asked to put a monetary value on his claim. He claims today to have been taken by surprise by the later and in that regard was unprepared for the mediation.
He also complains about the length, the seven hours or so, of the mediation. He complains about a limited period of 20 minutes given to him for lunch during that time. It is possible, and in one other case that I can think of it was found to be so, that a mediation process can be arduous with the end result not reflecting a voluntary consent, I am not satisfied, however, that this not the case here.
Mr Jin took it upon himself to go to the mediation, in his own words “unprepared” and “without representation”. He has an obligation to attend a court ordered mediation fully prepared with a bona fide intention to attempt to resolve the dispute. He had the benefit of an interpreter, although his command of English is good. I am satisfied that the terms of settlement were read to him and he acknowledged his understanding. I am further satisfied that he never expressed any confusion about the settlement reached, nor did he ask for an adjournment, or a break that was denied him. (See affidavit of Andrew Peter Kanis affirmed 2 December 2009).
I am satisfied that the consent was reached voluntarily, and that it was an informed consent. Because of that, I am satisfied that the proceeding before the court was compromised, and there is no basis for me to proceed today; particularly as the respondent seeks to enforce the agreement reached. It has also to be noted the respondent has done those things required of it to fulfil its obligations under the agreement. The respondent has not resiled from the agreement in any way.
The respondent, in my view, quite generously seeks only to implement the agreement reached by orders that reflect the proposed consent orders under the deed of settlement executed by the parties at the end of the mediation. And, as I said before, generously, has not sought any costs in relation to today’s proceedings.
For the above reasons, I am satisfied the agreement reached by the parties at the mediation is one enforceable by the respondent and is not invalidated for any reason proffered by the applicant. That agreement, in part, required the parties to execute consent orders to withdraw the proceedings. So I intend to make orders one to three as has been presented to me in the minute from the respondent.
There is a further order sought, however, by the respondent, and that is pursuant to section 61 of the Federal Magistrates Act (1999) where I am informed, and I have no reason to doubt it, there was provision in the agreement reached between the parties for confidentiality about the terms and conditions of that agreement; and I have been asked, as I understand it, in order not to prejudice the administration of justice, that a prohibition be made against publishing any of the terms and conditions of that agreement.
I intend to make that order.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate: Sam Parker
Date: 14 January 2010
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