Lee v Loi

[2010] QSC 149

SUPREME COURT OF QUEENSLAND

CITATION:

Lee & Anor v Loi & Ors [2010] QSC 149

PARTIES:

JAMES MEL KHEUN LEE and JEROME CHUNG YUAN CHIANG
(applicants/respondents)
v

DIC MING LOI and HUE SANG LOI
(first respondents/respondents)
THE CHINESE FRATERNITY ASSOCIATION OF QUEENSLAND INCORPORATED
(second respondent/applicant)

FILE NO/S:

BS 14051 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2010

JUDGE:

Fryberg J

ORDERS:

Mediation order.

CATCHWORDS:

Procedure – Supreme Court procedure – Queensland – Procedure under Uniform Civil Procedure Rules – Alternative dispute resolution processes – Mediation – Chinese litigants

COUNSEL:

A M West for the applicants/respondents
L Smouha (sol) for the first respondents/applicants
D Logan for the second respondent/respondent

SOLICITORS:

A J Torbey & Associates for the applicants/respondents
Mills Oakley Lawyers for the first respondents/respondents
Mitchells Solicitors & Business Advisors for the second respondent/applicant

HIS HONOUR:  The proceedings before me relevantly consist of an application by the Chinese Fraternity Association of Queensland Incorporated for a declaration that a lease has been validly renewed.  The Association is the lessee and the other parties before me are the owners of the land and they are the lessors responding to that application.

The parties have agreed a set of directions which must be given to progress the proceedings with one exception.  That exception is whether there should be a mediation of the proceedings.  Some of the owners and the Association agree that there should be a mediation but two of the owners do not.  On their behalf Mr West submitted that a mediation should not be ordered because it would waste money and perhaps cause delay and could only be successful if the mediator undertook some sort of inquiry to find out whether or not a document alleged to evidence the exercise of the option was a genuine document, and he submitted that until the facts were determined it was not sensibly possible to have a mediation. 

I do not accept that submission.  In our system of law mediation is a somewhat different process from mediation under Chinese law and from traditional Chinese mediation.  In our system the function of a mediator is to act as a conciliator between the parties.  The mediator does not determine facts, he does not make decisions about who's right and who's wrong, and he does not impose by order or otherwise any solution on the parties.  His sole function is to encourage the parties to reach agreement among themselves.  The process that is undertaken involves the parties gathering in the same building but in different rooms and the mediator will move between them discussing the case with them and eventually bring them together for a joint meeting.  Any decision is the decision of the parties alone.  It is not imposed on them by the mediator and he has no right and no authority to make any decisions about the merits of the case.  He cannot decide, for example, if a document is genuine.

A court case is quite different.  A court case is adversarial.  It involves people fighting each other.  At the end of the court case there can be, at best, only one winner.  There is a winner and a loser.  The loser obviously loses not just the case, not just the money involved, but also, in the eyes of the community, has his or her standing affected.  It may be thought, moreover, that it is undesirable, within a community such as the Chinese community in Brisbane, to place parties in a situation where a confrontational fight is required.

My understanding of Confucian theory is that when someone loses standing as a result of the activities of another person then there is also a loss of standing to that other person as well.  It is not good to force an opponent into public defeat and humiliation.

Mediation provides the opportunity to avoid that.  Mediation can succeed if all the parties to it apply their minds to a constructive solution, and that can be done with a result that all parties come away from the process with their standing enhanced and with no loss of face.  A court case will have the opposite effect.

In a case like the present I think the need for mediation is pre-eminent.  Even if this case did not involve members of the Chinese community it would, I think, be a suitable case to order to mediation.  The fact that it involves members of the Chinese community is all the more reason why it should go to mediation.

I will therefore make an order for mediation.

...

There will be an order in accordance with the amended draft initialled by me and placed with the papers.

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