Napper v Stapleton (No 2)
[2025] FedCFamC2G 628
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Napper v Stapleton (No 2) [2025] FedCFamC2G 628
File number(s): BRG 208 of 2023 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 2 May 2025 Catchwords: INTELLECTUAL PROPERTY – Costs – where order made referring matter to mediation – where respondent was ordered to provide documents seven days before the scheduled date of the mediation – where respondent failed to comply with order but mediation nevertheless proceeded – whether in those circumstances the respondent should be ordered to pay the applicant’s costs of and in relation to the mediation – application dismissed because the applicant has not demonstrated that the respondent’s default caused the applicant to incur costs in relation to the mediation he would otherwise not have incurred – order made that parties pay their own costs of and in relation to the mediation. Cases cited: Innovative Agricultural Products Pty Ltd v Innovativ [1996] FCA 1697
Molina v Galloway [2022] FedCFamC2G 904
Division: General Number of paragraphs: 12 Date of last submission/s: 17 January 2024 Date of hearing: Decided on the papers Place: Sydney Solicitor for the Applicant: Sharon Givoni Consulting Solicitor for the Respondent: Transitional Legal Pty Ltd ORDERS
BRG 208 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOHN NAPPER
Applicant
AND: WILLIAM JOHN STAPLETON
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.The applicant’s application for an order that the respondent pay the applicant’s costs of and in relation to the mediation held on 3 November 2023 is dismissed.
2.The applicant and the respondent each pay his own costs of and in relation to the mediation held on 3 November 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 30 May 2023 I made an order referring this matter for mediation, and ordered that by no later than 7 days before the mediation was to be scheduled, the respondent, Mr Stapleton, was to provide to the applicant, Mr Napper:
a confidential summary document for the purposes of mediation only, setting out the following information:
a.total number sales of the Book (defined in paragraph 4 of the Concise Statement) (Sales).
b. total expenses incurred by the respondent in respect of the Sales.
c. total profits made by the respondent in respect of the Sales.
d. annexing business documents from the respondent which evidence the information referred to in the preceding subparagraphs.
The mediation was scheduled to occur on 3 November 2023 by video link, but Mr Stapleton did not provide any documents. The mediation nevertheless proceeded, and it was only during the mediation that Mr Stapleton emailed copies of two sales statements. The parties did not resolve their differences at the mediation.
In these circumstances, Mr Napper applies for an order that Mr Stapleton pay the costs Mr Napper incurred in relation to the mediation. These would appear to include the costs of Mr Napper’s counsel travelling from Brisbane to attend the mediation in person.
THE PARTIES’ SUBMISSIONS
Mr Napper has filed written submissions in support of his application for costs, an affidavit he made, and an affidavit his solicitor, Ms Givoni, has made. The affidavits depose to Mr Stapleton not having provided the documents I had ordered Mr Stapleton provide, and to communications that occurred after the mediation. Although not so expressly stated, it appears that the ground on which Mr Napper seeks his costs is that Mr Stapleton’s failure to provide the documents rendered the mediation futile.
Mr Stapleton relies on an affidavit in which he deposed that he was self-represented at the time; his primary source of income is the age pension; he had never run a business before; he suffers from various health conditions; he had been distracted writing another book; and he had not been checking his emails. Mr Stapleton further deposes that on the day before the scheduled mediation, he received two calls from the Court reminding him of the mediation; and he attended the mediation in person. Mr Stapleton also deposes that counsel for Mr Napper was present at the mediation, as well as Mr Napper, and that Ms Givoni participated by video link.
DETERMINATION
The parties have not referred me to any authorities that have considered whether an order can be made requiring one party to pay the other party’s costs of mediation; but my brief research led me to the judgment of Lee J in Innovative Agricultural Products Pty Ltd v Innovativ, where his Honour said:[1]
Mediation conferences were held before the trial commenced and the respondents/cross-claimants seek to have the costs of the time spent in, and preparing for, such conferences included in the costs of the litigation. The applicants submit that each party should bear its own costs in respect of mediation proceedings.
I consider that unless there are unusual circumstances which require such an order, for example circumstances to which O62 r36 of the Federal Court Rules apply, no order should be made that the costs of any party incurred in the conduct of mediation proceedings are to be included in the costs of the litigation. Mediation is a consensual proceeding in which the parties are encouraged to resolve or compromise their differences without subjecting themselves to the risks and the costs of a trial. It is in the public interest that parties be encouraged to undertake mediation proceedings without being concerned that additional party and party costs will be incurred if they do so.
[1] Innovative Agricultural Products Pty Ltd v Innovativ [1996] FCA 1697, at [12], [13]
This statement of principle may need to be modified where the Court orders mediation over the objection of one or more of the parties.
I have also identified cases where courts have ordered a party to pay the other party’s costs in relation to a mediation. That has occurred where there has been default of a court order that has been made in relation to a mediation.[2]
[2] See, for example, Molina v Galloway [2022] FedCFamC2G 904, at [84].
It is the case that Mr Stapleton did not comply with the order I made on 30 May 2023 that he produce documents within 7 days before the scheduled date of the mediation; and there would be a case for making an order that Mr Stapleton pay Mr Napper’s reasonable costs of the mediation if it could be established that Mr Stapleton’s default caused Mr Napper to incur costs he otherwise would not have incurred. Mr Napper has not, however, demonstrated that this is the case. Mr Napper and those advising him were aware before they made arrangements to travel to Sydney (in the case of Mr Napper and his counsel) and attend the mediation by video link (in the case of Mr Napper’s solicitor) that Mr Stapleton had not produced documents. That indicates that Mr Napper and those advising him considered there would be utility in continuing with the mediation, even though Mr Stapleton had not provided any of the documents he was ordered to provide. I am therefore not satisfied that Mr Stapleton’s default caused Mr Napper to incur costs he otherwise would not have incurred.
Even if, contrary to my conclusion, it could be said that Mr Stapleton’s default caused Mr Napper to incur costs he otherwise would not have occurred, it would not be reasonable to allow the costs of his counsel travelling to Sydney personally to attend the mediation; and it would not be reasonable, given the nature of the matters in issue between the parties, for Mr Napper to be entitled to the costs of having been represented at the mediation by both counsel and solicitor.
I am satisfied that it is not appropriate that Mr Stapleton should be ordered Mr Napper’s costs of and relating to the mediation; and that the appropriate order in relation to the costs of the mediation is that each party should bear his own costs.
DISPOSITION
I propose to order that Mr Napper’s application for costs in relation to the mediation held on 3 November 2023 be dismissed, and that the parties pay their own costs of and in relation to that mediation.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 2 May 2025
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