McKay & Anor v. Deacon & Anor

[2007] QDC 278

DISTRICT COURT OF QUEENSLAND

CITATION:

McKay and McKay v Deacon and Deacon [2007] QDC 278

PARTIES:

LYNNE IRVINE McKAY

(1^st Plaintiff)

AND

PATRICIA McKAY

(2^nd Plaintiff)

V

DALE ROBERT DEACON

(1^st Defendant)

AND

KATRINA LISA DEACON

(2^nd Defendant)

FILE NO/S:

4 of 2007

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland at Beenleigh

DELIVERED ON:

10 October 2007

DELIVERED AT:

Beenleigh

HEARING DATE:

10 October 2007

JUDGE:

Dearden DCJ

ORDER:

Application filed on behalf of the plaintiffs adjourned to Registry

Application filed on behalf of the defendants granted

CATCHWORDS:

APPLICATION – where the plaintiff applicants are seeking that the signature of the defendants on the request for trial date be dispensed with – where the defendant applicants are seeking a referral to mediation – where counsel for the plaintiff applicants do not consider the likelihood of the mediation being a success to be very high

COUNSEL:

Ms H. Reeve for the plaintiffs

Mr J. Moore for the defendants

SOLICITORS:

Eaton Lawyers for the plaintiffs

Ryan Lawyers for the defendants

HIS HONOUR:  These are two applications, both listed to proceed before me today.  The application on behalf of the plaintiffs, Lynne and Patricia McKay, is an application seeking that the signature of the defendants on the request for trial date be dispensed with, and seeking some other collateral orders in respect of that application.

Conversely, the application filed on behalf of the defendants seeks a referral to mediation and sets out in some significant detail the proposed collateral orders  in respect of that mediation.

Ms Reeve, who appears for the plaintiffs (who are the respondents to the application seeking mediation), has indicated before me that she does not consider the likelihood of the mediation being a success to be very high, although I accept that that may well be the instructions that she has from her client.

My lengthy experience as a practitioner and, for that matter, the collective experience of the Courts, is that a remarkable number of matters, even those in which the parties appear to be intransigent, and in particular even those where, in effect, there is a family dispute at the core of the litigation, still ultimately resolve themselves after access to competent and professional mediation.

It seems to me, therefore, that this is a matter that is crying out for mediation, and that should be utilised by the parties before the resources of this Court are utilised to resolve the matter by litigation if that becomes necessary.  Ultimately, of course, the Court is the appropriate final place for such resolution to take place if the litigation cannot be resolved by agreement, but I urge the parties to enter sincerely into the mediation process, because experience tells me, and I am sure, through their lawyers, will inform them that litigation is not only an enormous financial cost, but, in particular, it bears an enormous emotional cost, and that needs to be factored into their decision-making process.

In all of the circumstances, it seems to me that the order, a draft of which has been provided to me by Mr Moore, who appears on behalf of the defendant/applicants, Dale Robert Deacon and Katrina Lisa Deacon, should be the order of this Court, subject to the following amendment:-

1. In respect of paragraph 12, I order that costs be reserved.

1. I order that the application filed on behalf of the plaintiff/applicants be adjourned to the Registry.

1. I also order in respect of that application that costs be reserved.

Ultimately, of course, if this matter does not settle at mediation, the issue of costs, and how they should be allocated, will be a matter for a trial Judge, probably me, but, for the time being, I urge the parties, through their lawyers, to, as I said before, enter fully and sincerely into the mediation process, because history has clearly indicated over a long period of time that the vast majority of even intransigent litigants can, with assistance, settle their matters by mediation.

1. In respect of the application for mediation, order as per draft with the amendment to paragraph 12, that I have indicated.

I have initialled that draft order and placed it with the papers, and I have already indicated how the application for dispensing with a signature on request for trial is to be dispensed with.

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