Remuneration Planning Corp Pty Ltd v Fitton
[2001] NSWSC 1208
•14 December 2001
CITATION: Remuneration Planning Corp Pty Ltd v Fitton; Fitton v Costello [2001] NSWSC 1208 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 1835/01; 2271/01 HEARING DATE(S): 14 December 2001 JUDGMENT DATE:
14 December 2001PARTIES :
1835/01
Remuneration Planning Corporation Pty Limited (P)
Gary David Fitton (D1)
Trinity Management Group Pty Limited (D2)
John Kenneth Day (D3)
John Kenneth Day and Paidion Foundation Pty Limited t/as Kenneths Group (D4)
2271/01
Gary David Fitton (P1)
Malolm Richard Martin (P2)
Remuneration Planning Corporation Pty Ltd (P3)
Christopher John Costello (D1)
Kris Chikarovski (D2)
Fiona Jeanette Young (D3)
RPC Planmanagers Pty Ltd (D4)
RPC Corporate Services Pty Ltd (D5)
RPC Employee Equity Benefits Plan No 7 Pty Ltd (D6)JUDGMENT OF: Hamilton J
COUNSEL : 1835/01
F Kunc (P)
L Mead, Solicitor (D1)
A Gardini, Solicitor (D2-4)
2271/01
J Russell, Solicitor (P1-3)
F Kunc (D1-3 & 6)
No appearance (D5)SOLICITORS: 1835/01
Gilbert & Tobin (P)
Lane & Lane (D1)
Gardini & Co (D2-4)
2271/01
Lane & Lane (P1-3)
Gilbert & Tobin (D1-3 & 6)
Atanaskovic Hartnell (D4)
No appearance (D5)CATCHWORDS: PROCEDURE [80] - Supreme Court procedure - Jurisdiction and generally - Other matters - Power to order mediation - Whether power should be exercised over opposition of a party. LEGISLATION CITED: Supreme Court Act 1970 s 110K CASES CITED: Idoport v National Australia Bank Ltd [2001] NSWSC 427
Morrow v Chinadotcom Corp [2001] NSWSC 209DECISION: Mediation ordered.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
FRIDAY, 14 DECEMBER 2001
1835/01 REMUNERATION PLANNING CORPORATION PTY LTD v FITTON & ORS
2271/01 FITTON & ORS v COSTELLO
JUDGMENT
1 HIS HONOUR: In the first of these matters the plaintiff and in the second of these matters the first, second, third and sixth defendants have today sought leave to file a notice of motion seeking that the proceedings be ordered to mediation, and have sought to pursue those applications.
2 The proceedings are obviously quite embattled. Miss Gardini, for the second, third and fourth defendants in matter number 1835/01, initially opposed a mediation being ordered. She said that the parties in that matter were already in negotiation and resisted that matter being ordered to mediation at this stage and in conjunction with matter 2271/01. However, I indicated that if I acceded to the applications, I should make a separate order for mediation in each of the two sets of proceedings appointing the same mediator but leaving it entirely to the mediator as to whether one or the other matter should proceed to mediation first or the mediations should proceed at the same time and leaving the conduct of the mediation proceedings in the discretion of that mediator. Upon this indication Miss Gardini withdraw her objection to her matter being ordered to mediation provided that it was made plain that the mediation should occur at a time convenient to her client's representatives. This matter has also been addressed in the orders as they are now brought forward.
3 Miss J Russell appeared for the first defendant in proceedings 1835/01 and for the plaintiffs in proceedings 2271/01. The somewhat strange position, as it seemed to me, adopted by one of Miss Russell's clients, Mr Fitton, was that he was quite amenable to proceedings 2271/01 being ordered to mediation but implacably opposed to a similar order in relation to proceedings 1835/01. I was at no time able to perceive the basis of this bifurcation in attitude. Miss Russell referred me to the decision of Barrett J in Morrow v Chinadotcom Corp [2001] NSWSC 209 where his Honour refused to order a reluctant party to mediation on the basis that, if mediation was not engaged in willingly, the process was pointless and likely to be a waste of money. On the other hand, there have been cases in which, since the power was conferred upon it by the amendment on 1 August 2000 of s 110K of the Supreme Court Act 1970, the Court has ordered matters to mediation, including notably the decision of Einstein J in Idoport v National Australia Bank Ltd [2001] NSWSC 427. This is an area in which the received wisdom has in my experience changed radically in a period of a few months. A short time ago there was general acceptance of the view adopted by Barrett J in the decision to which I have referred, that there was no point in a mediation engaged in by a reluctant party. Of course, there may be situations where the Court will, in the exercise of its discretion, take the view that mediation is pointless in a particular case because of the attitudes of the parties or other circumstances and decline to order a mediation. However, since the power was conferred upon the Court, there have been a number of instances in which mediations have succeeded, which have been ordered over opposition, or consented to by the parties only where it is plain that the Court will order the mediation in the absence of consent. It has become plain that there are circumstances in which parties insist on taking the stance that they will not go to mediation, perhaps from a fear that to show willingness to do so may appear a sign of weakness, yet engage in successful mediation when mediation is ordered.
4 These are two cases where I have no hesitation in making orders for mediation to be carried out by the same mediator, but otherwise in an order and manner totally within the mediator's discretion. I am encouraged in doing so by the fact that the parties to these proceedings were agreeable to mediation in the end, save for one, who is agreeable to mediation in one set of proceedings, but is opposed to engaging in it in the other. I have not had time in a busy duty list on the last day of term to examine the issues in these somewhat complex matters to determine to what degree there is an overlap between the two sets of proceedings, but it certainly seems to me that there may be a relationship between the parties which impinges upon the settlement of each of them. In those circumstances it is my view that the appropriate situation is the one that I intend to compel, namely, that there be a mediation before the same mediator in each matter, but with that mediator using his or her skills to order the mediations in the way which may be most fruitful in the settlement of both matters.
5 I indicated earlier in the day I proposed to order mediation in those terms. Short minutes have now been brought in before me and I propose to make orders in accordance with the short minutes. Leave is granted to the plaintiff to file in Court a notice of motion for expedition returnable instanter. That motion is stood over to the Expedition Judge on 8 February 2002. In each matter orders in accordance with short minutes initialled by me and placed with the papers.
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