Monaghan v Australian Capital Territory - [2015] ACTSC 187

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Monaghan v Australian Capital Territory
Citation:	[2015] ACTSC 187
Hearing Date:	16 July 2015
DecisionDate:	20 July 2015
Before:	Mossop AsJ
Decision:	See [41]
Category:	Interlocutory Application
Catchwords:	PROCEDURE – referral to mediation under court order – non-compliance by plaintiff with court order in relation to payment of mediation fee – plaintiff required to show cause why proceedings should not be dismissed – impecunious plaintiff – failure by solicitors for plaintiff to raise plaintiff’s circumstances and impecuniosity – undertaking by solicitors for plaintiff to pay mediation fee and relevant costs of defendant – proceedings not dismissed – application to vary orders in relation to mediation dismissed
Legislation Cited:	Human Rights Act 2004 (ACT) Social Security (Administration) Act 1999 (Cth) Court Procedures Rules 2006 (ACT)
Cases Cited:	White v Overland [2001] FCA 1333
Parties:	Jason Arthur Monaghan (Plaintiff) Australian Capital Territory (Defendant)
Representation:	Counsel Ms S Sharmin (Plaintiff) Mr N Oram (Defendant)
Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendant)
File Number:	SC77 of 2014

Introduction

It is now routine for matters commenced by originating claim in the Supreme Court to be subject to some form of alternative dispute resolution, most commonly mediation, prior to being heard. The Court administration arranges for private sector mediators to be available in two week blocks during which mediations, usually of no more than half a day each, can be undertaken. Many matters settle as a result of this mediation process. Because of the block listed nature of the mediations and the fact that they are conducted as part of a Court facilitated process, the costs of the mediator to parties are significantly lower than if the parties were left to arrange their own mediation with a privately engaged mediator.

As part of the standard directions that are made when a matter is referred to mediation is an order that the parties pay, in equal shares, the mediator’s fees. If parties do not pay those fees then they are in breach of the direction of the Court and the matter is relisted in order to deal with their non-compliance. It is usual that parties who are in default will have rectified their non-compliance with the Court’s orders by the date on which the matter is relisted to deal with their non-compliance.

In the present case the plaintiff failed to pay his share of the mediator’s fee namely a sum of $750 by the required date and also failed to rectify his non-compliance with the orders of the Court by the date on which the proceedings were listed to deal with his non-compliance. As a consequence he was directed to show cause why the proceedings should not be dismissed because of that non-compliance. He foreshadowed that he may wish to have the original order for mediation amended and was directed to file any application to that effect.

The issues that arise are whether or not the proceedings should be dismissed due to the plaintiff’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] ACTSC 187
Decision Date: 20 July 2015

CaseChat Overview and Summary

The plaintiff, Monaghan, commenced proceedings against the Australian Capital Territory (ACT) in a court, seeking damages for personal injuries sustained in a motor vehicle accident. The parties were ordered to participate in mediation, and the plaintiff was required to pay a mediation fee. However, the plaintiff failed to comply with the order due to financial constraints. The plaintiff's solicitors did not raise the issue of their client's impecuniosity, leading to a requirement for the plaintiff to show cause why the proceedings should not be dismissed. The plaintiff's solicitors subsequently provided an undertaking to pay the mediation fee and related costs, and the court decided not to dismiss the proceedings. The plaintiff later applied to vary the orders concerning mediation, which was ultimately dismissed.

The legal issues before the court involved the enforcement of procedural orders requiring mediation, the implications of a plaintiff's failure to comply due to financial hardship, and the responsibilities of legal representatives in bringing such matters to the court's attention. The court had to consider whether the plaintiff's failure to pay the mediation fee justified the dismissal of the proceedings and whether the undertaking provided by the plaintiff's solicitors was sufficient to maintain the proceedings.

In determining these issues, the court recognised the importance of procedural orders but also acknowledged the plaintiff's financial difficulties. The court noted that the plaintiff's solicitors had not raised the issue of impecuniosity, which could have led to a different outcome. The court accepted the undertaking from the plaintiff's solicitors to pay the required fees, which demonstrated a commitment to compliance with court orders. The court dismissed the application to vary the mediation orders, finding that it was not in the interests of justice to do otherwise.

The court ordered that the proceedings would continue, subject to the plaintiff complying with the mediation fee payment. The application to vary the mediation orders was dismissed, and no further orders were made regarding the procedural matters in dispute.

Orders

Orders of the court

See [41]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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