Martin v Norton Rose Fulbright Australia

Case [2018] FCA 428

FEDERAL COURT OF AUSTRALIA

Martin v Norton Rose Fulbright Australia [2018] FCA 428

File number: SAD 49 of 2017
Judge: WIGNEY J
Date of judgment: 28 February 2018
Catchwords: PRACTICE AND PROCEDURE – application to transfer venue of mediation – application to vary orders referring matter to mediation in Sydney – application for adjournment of mediation – whether Registrar, acting as mediator, would be “embarrassed” by evidence – whether mediator required to form any view in mediation
Legislation: Federal Court Rules 2011 (Cth)
Date of hearing: 28 February 2018
Registry: New South Wales
Division: General Division
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 11
Counsel for the Applicant: Mr I. Robertson SC, Ms Barnett
Solicitor for the Applicant: Bourne Lawyers
Counsel for the Respondent: Dr E. Peden
Solicitor for the Respondent: Maddocks Lawyers

ORDERS

SAD 49 of 2017
BETWEEN:

THOMAS PATRICK MARTIN

Applicant
AND:

NORTON ROSE FULBRIGHT AUSTRALIA

Respondent

JUDGE:

WIGNEY J

DATE OF ORDER:

28 FEBRUARY 2018

THE COURT ORDERS THAT:

1.The interlocutory application filed dated 28 February 2018 be dismissed.

2.The applicant is to pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)

WIGNEY J:

  1. By interlocutory application dated 28 February 2018, the applicant in these proceedings, SAD 49 of 2017, and the second respondent in proceedings NSD 1610 of 2016, applies for an order or orders, the effect of which would to be vary orders made by me on 20 December 2017.

  2. For the reasons that follow, the interlocutory application dated 28 February 2018 is dismissed.

    BACKGROUND

  3. On 28 November 2017, at a case management hearing, I first made orders in relation to the referral of this matter to mediation.  The terms of the orders made on 28 November 2017 were, in short, that on or before 12 December 2017, the parties confer with a view to agreeing on the terms of a private mediation to occur on or before 16 March 2018. In the event that the parties did not agree, the matters would be referred to mediation pursuant to the Federal Court Rules 2011 (Cth). As it turns out, the parties did not agree on the terms of a private mediation.

  4. On 19 December 2017, my associate received correspondence advising that the parties had not been able to reach agreement in relation to a private mediation and indicating consent to the matter being mediated by a Registrar of this Court.  That correspondence indicated that the parties did not agree on the appropriate Registry for that mediation to be held.  The respondent’s preference was for the mediation to take place in the Sydney Registry or, if the applicant opposed a listing in Sydney, in the Melbourne Registry. The applicant expressed a preference for Adelaide and opposed a listing in Sydney or Melbourne.  The correspondence also indicated that the parties were content for me to make orders in chambers in relation to the appropriate venue for the mediation, without any further submissions.

  5. I made those orders on 20 December 2017.  The terms of those orders were that the proceedings be referred to mediation before a Registrar of the Court, such mediation to occur in Sydney on or before 16 March 2018.  It is those orders that are sought to be varied by the interlocutory application. 

    THE APPLICANT’S SUBMISSIONS

  6. The basis upon which the applicant moves for the orders of 20 December 2017 to be varied is that the applicant continues to have a preference for the mediation to occur in Adelaide.  It was submitted that, in short, there were better prospects of the matter being successfully mediated in those circumstances. 

  7. Perhaps more significantly, it was submitted that there was some prospect of, or potential for, the Registrar who conducts the mediation in Sydney to be embarrassed in the conduct of the mediation because there is a potential issue on the pleadings concerning events that occurred in the Sydney Registry.  I do not propose to go into the detail of that issue on the pleadings at this stage. 

    CONSIDERATION

  8. I am not satisfied that there is any prospect whatsoever of the Registrar who conducts the mediation being embarrassed in relation to any issues that might arise on the pleadings. There is no evidence, or even any suggestion, that any Registrar in the Sydney Registry had any knowledge of or involvement in the events that apparently occurred in the Registry which are the subject of the allegations or the dispute on the pleadings.

  9. These proceedings, that is, the proceedings SAD 49 of 2017, have been on foot since the filing of an originating application and statement of claim on 17 February 2017.  That proceeding overlaps with the proceedings NSD 1610 of 2016, which was commenced by the filing of an originating application and statement of claim as long ago as 21 September 2016. It is unnecessary to detail the tortuous history and chronology of the proceedings SAD 49 of 2017, which is now the substantive matter. Suffice it to say that the conduct of those proceedings has been beset by so many interlocutory disputes and skirmishes that, I think it is quite fair to say, virtually nothing of any significance has occurred in the year plus since they were commenced.

  10. The mediation is due to commence before a Registrar situated in the Sydney Registry on 8 March 2018.  That is just over a week away.  No satisfactory explanation has been given, in my view, as to why this application has been made so late.  The result of any variation of my orders in relation to the mediation will be to further delay these proceedings.  In all the circumstances, I am not satisfied that I should vary the orders that I made on 20 December 2017 for the reasons that have been advanced by the applicant, or any other reason. 

    CONCLUSION AND DISPOSITION

  11. The interlocutory application dated 28 February 2018 is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:  

Dated:        28 March 2018

Details
AGLC
Martin v Norton Rose Fulbright Australia [2018] FCA 428
Case
[2018] FCA 428
Decision Date

CaseChat Overview and Summary

In Martin v Norton Rose Fulbright Australia, the applicant sought to vary orders that referred the matter to mediation in Sydney, as well as to adjourn the mediation. The court was tasked with determining whether there was a valid reason for the applicant's request to change the venue of the mediation from Sydney to Adelaide. Additionally, the court had to consider whether the potential for the Registrar conducting the mediation in Sydney to be "embarrassed" by evidence was a sufficient ground for varying the orders. The court also needed to determine if the Registrar was required to form any views during the mediation process.

The court found that there was no evidence or suggestion that any Registrar in the Sydney Registry had knowledge of or involvement in the events that were the subject of the dispute. The applicant did not provide a satisfactory explanation for the lateness of the application, and varying the orders would further delay the proceedings. The mediation was scheduled to begin just over a week away, and the court was not satisfied that the applicant's reasons or any other reasons justified varying the orders made on 20 December 2017.

The interlocutory application was dismissed, and the applicant was ordered to pay the respondent's costs. The court held that there was no prospect of the Registrar being embarrassed in relation to any issues that might arise on the pleadings, and the application was made too late to warrant a variation of the orders. The court emphasized the importance of timely applications and the need to avoid unnecessary delays in the proceedings.

Orders

Orders of the court

1. The interlocutory application filed dated 28 February 2018 be dismissed.

2. The applicant is to pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the interlocutory application dated 28 February 2018 is dismissed.BACKGROUND On 28 November 2017, at a case management hearing, I first made orders in relation to the referral of this matter to mediation. The terms of the orders made on 28 November 2017 were, in short, that on or before 12 December 2017, the parties confer with a view to agreeing on the terms of a private mediation to occur on or before 16 March 2018. In the event that the parties did not agree, the matters would be referred to mediation pursuant to the Federal Court Rules 2011 (Cth). As it turns out, the parties did not agree on the terms of a private mediation. On 19 December 2017, my associate received correspondence advising that the parties had not been able to reach agreement in relation to a private mediation and indicating consent to the matter being mediated by a Registrar of this Court. That correspondence indicated that the parties did not agree on the appropriate Registry for that mediation to be held. The respondent’s preference was for the mediation to take place in the Sydney Registry or, if the applicant opposed a listing in Sydney, in the Melbourne Registry. The applicant expressed a preference for Adelaide and opposed a listing in Sydney or Melbourne. The correspondence also indicated that the parties were content for me to make orders in chambers in relation to the appropriate venue for the mediation, without any further submissions. I made those orders on 20 December 2017. The terms of those orders were that the proceedings be referred to mediation before a Registrar of the Court, such mediation to occur in Sydney on or before 16 March 2018. It is those orders that are sought to be varied by the interlocutory application. THE APPLICANT’S SUBMISSIONS The basis upon which the applicant moves for the orders of 20 December 2017 to be varied is that the applicant continues to have a preference for the mediation to occur in Adelaide. It was submitted that, in short, there were better prospects of the matter being successfully mediated in those circumstances. Perhaps more significantly, it was submitted that there was some prospect of, or potential for, the Registrar who conducts the mediation in Sydney to be embarrassed in the conduct of the mediation because there is a potential issue on the pleadings concerning events that occurred in the Sydney Registry. I do not propose to go into the detail of that issue on the pleadings at this stage. CONSIDERATION I am not satisfied that there is any prospect whatsoever of the Registrar who conducts the mediation being embarrassed in relation to any issues that might arise on the pleadings. There is no evidence, or even any suggestion, that any Registrar in the Sydney Registry had any knowledge of or involvement in the events that apparently occurred in the Registry which are the subject of the allegations or the dispute on the pleadings. These proceedings, that is, the proceedings SAD 49 of 2017, have been on foot since the filing of an originating application and statement of claim on 17 February 2017. That proceeding overlaps with the proceedings NSD 1610 of 2016, which was commenced by the filing of an originating application and statement of claim as long ago as 21 September 2016. It is unnecessary to detail the tortuous history and chronology of the proceedings SAD 49 of 2017, which is now the substantive matter. Suffice it to say that the conduct of those proceedings has been beset by so many interlocutory disputes and skirmishes that, I think it is quite fair to say, virtually nothing of any significance has occurred in the year plus since they were commenced.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The mediation is due to commence before a Registrar situated in the Sydney Registry on 8 March 2018. That is just over a week away. No satisfactory explanation has been given, in my view, as to why this application has been made so late. The result of any variation of my orders in relation to the mediation will be to further delay these proceedings. In all the circumstances, I am not satisfied that I should vary the orders that I made on 20 December 2017 for the reasons that have been advanced by the applicant, or any other reason. CONCLUSION AND DISPOSITION The interlocutory application dated 28 February 2018 is dismissed with costs.

Ratio Decidendi

Legal Principle Established

Perhaps more significantly, it was submitted that there was some prospect of, or potential for, the Registrar who conducts the mediation in Sydney to be embarrassed in the conduct of the mediation because there is a potential issue on the pleadings concerning events that occurred in the Sydney Registry. I do not propose to go into the detail of that issue on the pleadings at this stage. CONSIDERATION I am not satisfied that there is any prospect whatsoever of the Registrar who conducts the mediation being embarrassed in relation to any issues that might arise on the pleadings. There is no evidence, or even any suggestion, that any Registrar in the Sydney Registry had any knowledge of or involvement in the events that apparently occurred in the Registry which are the subject of the allegations or the dispute on the pleadings. These proceedings, that is, the proceedings SAD 49 of 2017, have been on foot since the filing of an originating application and statement of claim on 17 February 2017. That proceeding overlaps with the proceedings NSD 1610 of 2016, which was commenced by the filing of an originating application and statement of claim as long ago as 21 September 2016. It is unnecessary to detail the tortuous history and chronology of the proceedings SAD 49 of 2017, which is now the substantive matter. Suffice it to say that the conduct of those proceedings has been beset by so many interlocutory disputes and skirmishes that, I think it is quite fair to say, virtually nothing of any significance has occurred in the year plus since they were commenced. The mediation is due to commence before a Registrar situated in the Sydney Registry on 8 March 2018. That is just over a week away. No satisfactory explanation has been given, in my view, as to why this application has been made so late. The result of any variation of my orders in relation to the mediation will be to further delay these proceedings. In all the circumstances, I am not satisfied that I should vary the orders that I made on 20 December 2017 for the reasons that have been advanced by the applicant, or any other reason. CONCLUSION AND DISPOSITION The interlocutory application dated 28 February 2018 is dismissed with costs.