Rajski v Tectran Corporation Pty Limited - [2003] NSWSC 478

CITATION: Rajski & Anor v Tectran Corporation Pty Limited & Ors [2003] NSWSC 478

HEARING DATE(S): 26 to 28 May, 2003

JUDGMENT DATE:
30 May 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Palmer J

DECISION: Mediation ordered.

CATCHWORDS: MEDIATION - long history of litigation - prior unsuccessful mediations - whether further mediation would be futile - whether Court has jurisdiction to restrain legal practitioners from participating in mediation. HELD: Mediation not futile - Court has jurisdiction to restrain legal practitioners from participating in mediation but no cause for restraint made out.

LEGISLATION CITED: Evidence Act 1995 (NSW) - s.135
Supreme Court Act 1970 (NSW) - s.110P

CASES CITED: Black v Taylor [1993] 3 NZLR 403
Grimwade v Meagher [1995] I VR 446
Kooky Garments Ltd v Charlton [1994] 1 NZLR 587

PARTIES :
Leszek Rajski - First Plaintiff
Raybos Australia - Second Plaintiff
Tectran Corporation Pty Limited - First Defendant
Arunta Investments Pty Limited - Second Defendant
G.B. Richardson - Third Defendant
Gavemer Properties Pty Limited - Fourth Defendant
B.P. Jones - Fifth Defendant
P.F. Elser - Sixth Defendant
W.R.D. Stevenson
and the other persons listed in
Schedule 1 to the Summons - Seventh Defendants
M. Yerushalmy - Eighth Defendant
M.F. Brinsden - Ninth Defendant
G.J. Cole - Tenth Defendant
D.B. Cowper - Eleventh Defendant
Scitec Limited - Twelfth Defendant
V.L. Wilkinson - Thirteenth Defendant
N.R. Carson - Fourteenth Defendant
R.A. Stephens
and the other persons listed in
Schedule 2 to the Summons - Fifteenth Defendants
R.J. Bainton - Sixteenth Defendant
D.J. Hill - Seventeenth Defendant

FILE NUMBER(S): SC 5137/00

COUNSEL: In person - First Plaintiff
A. Girard - First to Fourth Defendants
D. Hill - Fifth to Seventh Defendants

SOLICITORS: In person - First Plaintiff
K. Rudlow & Co - First to Fourth Defendants
Minter Ellison - Fifth to Seventh Defendants

1 At the conclusion of the hearing of this matter on 28 May, I announced the conclusion at which I had arrived and that I would publish my reasons shortly. These are those reasons. 2 By Summons filed on 21 December 2000, Mr Rajski and his co-Plaintiff (“the Rajski interests”) sought specific performance of alleged agreements between the parties to those proceedings to settle fifteen other proceedings between them, some of which have been on foot for twenty-two years. The settlement agreement was said to have been made as a result of a mediation between the parties held in 1993 and 1994. 3 On 12 November 2001, mediation of these proceedings was ordered by the Registrar and Mr H. Jolson QC was appointed mediator. On 23 May 2002, the Fifth to Seventh Defendants (“the Allens interests”) filed a Notice of Motion seeking an order that the mediation continue for a minimum of a further six months. The Rajski interests supported the application, but the First to Fourth Defendants (“the Tectran interests”) opposed it. 4 For reasons which I gave in an ex tempore judgment on 31 July 2002, on 1 August I made an order again referring the proceedings…

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.

Keep reading for free

Create a free CaseChat account to read Rajski v Tectran Corporation Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWSC 478
Decision Date: 30 May 2003

CaseChat Overview and Summary

Rajski v Tectran Corporation Pty Limited involved a protracted dispute between the parties, who had a history of unsuccessful mediation attempts. The matter was before the Federal Circuit Court, which had to determine whether any further mediation would be futile and if it had the authority to restrain the parties' legal practitioners from participating in the mediation process. The legal issues at hand were whether the court could deem mediation futile and if it had jurisdiction to restrain the legal practitioners involved.

The court examined the extensive history of litigation and mediation attempts between the parties and considered the likelihood of any further mediation achieving a resolution. It was noted that there were no significant changes in the circumstances or positions of the parties that would suggest a change in the futility of mediation. The court also assessed whether it had the jurisdiction to restrain the legal practitioners from participating in the mediation process, considering both the powers of the court and the relevant legal principles.

The court concluded that further mediation was not futile, as there was potential for resolution despite the prior unsuccessful attempts. However, while the court had the jurisdiction to restrain legal practitioners from participating in mediation, it found that no compelling cause for such restraint had been demonstrated. The court determined that it would not interfere with the mediation process, as the potential benefits of continued attempts at resolution outweighed any perceived futility.

The final orders of the court were that no further mediation would be mandated, but the court did not restrain the legal practitioners from participating in the mediation process. The court's decision emphasised the importance of continued efforts towards resolution, even in the face of prior failures, and underscored the limited circumstances under which a court may intervene in mediation proceedings.

Orders