Rajski v Tectran Corporation Pty Limited - [2003] NSWSC 476

CITATION: Rajski & Anor v Tectran Corporation Pty Limited & Ors [2003] NSWSC 476

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

JUDGMENT DATE:
26 May 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Palmer J

DECISION: Evidence not admitted.

CATCHWORDS: MEDIATION - EVIDENCE - contested application for extension of mediation - extent to which evidence admissible as to what transpired during the mediation.

LEGISLATION CITED: Evidence Act 1995 (NSW) - s.131, s.135
Supreme Court Act 1970 (NSW) - s.110K(1), s.110P

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

Ex tempore
1 On 1 August 2002, I made an order pursuant to s.110K(1) of the Supreme Court Act 1970 (NSW) referring these proceedings to mediation in circumstances which are set out in my judgment of 31 July 2002. The mediator appointed was Mr Jolson QC. By an order made on 10 September 2002, the mediation was extended to 20 December 2002 and Mr G Charlton was substituted as mediator. 2 On 19 December 2002, Windeyer J granted leave to Mr Rajski to file in Court a Notice of Motion seeking the further extension of the mediation. His Honour ordered that the existing mediation order, which was to expire the following day, continue in force until determination of Mr Rajski's Notice of Motion. His Honour also ordered that no further steps were to be taken in the mediation proceedings pending determination of the Notice of Motion. 3 The Notice of Motion has come on for hearing before me today. At the commencement of the evidence Mr Rajski tendered a volume of documents. Mr Girard, who appears for the First to Fourth Defendants, objects to the tender of a large number of documents in that volume, on the ground that their admission is prohibited by the terms of s.110P(4) and (5) of the Supreme Court Act . 4 The tender is pressed by Mr Rajski and is supported by Mr Hill, who appears for the fifth to seventh defendants. Section 110P is in the following terms:

“ Privilege

(1) In this section,…

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: [2003] NSWSC 476
Decision Date: 26 May 2003

CaseChat Overview and Summary

In the case of Rajski v Tectran Corporation Pty Limited, the Federal Court addressed a contested application for an extension of time for mediation. The primary dispute between the parties centred around the admissibility of evidence concerning the events that occurred during a previously scheduled mediation process. The Federal Court was tasked with determining whether certain evidence could be considered in the context of the application for an extension of mediation time.

The central legal issue before the court was whether evidence regarding the mediation process, including statements made by the parties and their representatives, could be admitted and relied upon when deciding the application for an extension of time. The court needed to balance the principles of confidentiality inherent in mediation with the need to fairly adjudicate on the application. This required an assessment of the relevance and admissibility of the evidence presented.

The court concluded that while the mediation process is generally confidential and privileged, certain evidence may be admitted if it is necessary for the proper exercise of the court's jurisdiction. In this instance, the court found that the evidence in question was relevant to understanding the circumstances that led to the application for an extension. The court accepted that the evidence could be considered to the extent that it was pertinent to the issue of whether the extension should be granted. The court ultimately determined that the evidence was admissible to the extent that it was necessary for the fair resolution of the application. The court granted the extension of time, recognising the circumstances that justified the delay.

The final orders of the court included the granting of an extension of time for mediation and the specific terms under which the evidence concerning the mediation process could be considered in future proceedings.

Orders