JL v Anglican Church Property Trust Diocese of Sydney

[2017] NSWSC 1611

Supreme Court

New South Wales

Medium Neutral Citation:	JL v Anglican Church Property Trust Diocese of Sydney [2017] NSWSC 1611
Hearing dates:	22 November 2017
Date of orders:	22 November 2017
Decision date:	22 November 2017
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	The parties ordered to mediate on or before 7 February 2018.  The defendant is to bear the plaintiff’s costs of the motion.
Catchwords:	PROCEDURE – notice of motion – order seeking mediation – mediation ordered – costs
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	JL (Plaintiff) Anglican Church Property Trust Diocese of Sydney (Defendant)
Representation:	Solicitors: Karp O’Neill Lawyers (Plaintiff) Meridian Lawyers (Defendant)
File Number(s):	2017/278156
Publication restriction:	Until further order, pursuant to section 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), that the name and identity of the plaintiff be supressed except as may be necessary for the proper conduct of these proceedings, upon the grounds that the order is necessary to prevent prejudice to the proper administration of justice and to protect the safety of the plaintiff.

EX TEMPORE Judgment

1. HER HONOUR: This is an application brought to the Court by way of notice of motion filed on 18 October 2017 where various orders are sought. All that is disagreed is what is sought in order 1, namely, an order that the parties mediate, on or before 7 February 2018, pursuant to s 26(1) of the Civil Procedure Act2005 (NSW). The motion is supported by affidavits sworn by the plaintiff’s solicitor, Ms Karp, on 21 November and an affidavit sworn by a law graduate in the employee of the plaintiff’s solicitors, Ms Morris, on 7 November 2017.

2. There is no issue between the parties that the proceedings concern alleged sexual abuse of a young child many years ago. Prior to commencement of the proceedings there had been not only discussion between the parties about mediation, but a mediator was appointed. The mediation then arranged was set aside, while investigations by the defendant continued.

3. The result was that eventually the proceedings were commenced in September 2016. There has as yet been no defence filed, but the defendant’s solicitor indicates that investigations which have continued, have led to a position where it is considered that the proceedings will have to be defended, given that no corroborative evidence to support the plaintiff’s allegations has been discovered. There is a concern as to the vulnerability of the plaintiff about which there is no issue and a concern as to the consequences for her, of a mediation which is unlikely to resolve what is in issue.

4. There is no question that under s 26 the Court has the power to order the parties to pursue the mediation which is proposed. Such orders have been made in other cases where one party or the other has objected to mediation on the basis that it is unlikely to result in a resolution of what lies in issue between the parties. Nevertheless, as I observed to the defendant’s legal representative, what arises to be discussed at a mediation, includes all that lies between the parties, including the difficulties which confront them in the respective cases which they advance, not just whether the proceedings can be finally resolved.

5. On what is now before the Court, there are problems in the litigation confronting both parties, which could usefully be discussed at a mediation. At the least it will assist the parties by enabling them to identify, early in the litigation, what really lies between them, consistently with the obligation imposed by s 56 of the Civil Procedure Act on both parties and their legal representatives, as well as on the Court, to facilitate the overriding purposes there specified, that is the just, quick and cheap resolution of the real issues in the proceedings.

6. In those circumstances, I do not consider that the proposed mediation would be a futility, given the early stage of the litigation it is proposed that the mediation be conducted. That, in my view, raises the prospect of considerable benefit potentially to both parties.

7. For those reasons, I order that the parties mediate on or before 7 February 2018, as the plaintiff seeks.

8. The usual order as to costs is that costs follow the event. On this motion that would be an order in favour of the plaintiff. Neither party wishing to be heard, I make that order accordingly as well.

**********

Decision last updated: 23 November 2017