SP Investments Pty Ltd v Hancock Prospecting Pty Ltd

[2011] WASC 345

SP INVESTMENTS PTY LTD -v- HANCOCK PROSPECTING PTY LTD [2011] WASC 345

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 345
Case No:	CIV:3074/2010	Heard:	ON THE PAPERS
Coram:	KENNETH MARTIN J	Delivered:	8/12/11
No of pages:	4	Judgment Part:	1 of 1
Result:	Application refused
Category:	B
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Parties:	SP INVESTMENTS PTY LTD AS TRUSTEE FOR THE LEONARD MICHAEL BRENNAN TRUST HANCOCK PROSPECTING PTY LTD WRIGHT PROSPECTING PTY LTD HAMERSLEY IRON PTY LTD
Catchwords:	Mediation Party seeking to be excused Excusal opposed Excusal refused
Legislation:	Supreme Court Act 1935 (WA), s 69(c)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SP INVESTMENTS PTY LTD -v- HANCOCK PROSPECTING PTY LTD [2011] WASC 345 CORAM : KENNETH MARTIN J HEARD : ON THE PAPERS DELIVERED : 8 DECEMBER 2011 FILE NO/S : CIV 3074 of 2010 BETWEEN : SP INVESTMENTS PTY LTD AS TRUSTEE FOR THE LEONARD MICHAEL BRENNAN TRUST

Plaintiff

AND

HANCOCK PROSPECTING PTY LTD
First Defendant

WRIGHT PROSPECTING PTY LTD
Second Defendant

HAMERSLEY IRON PTY LTD
Third Defendant

Catchwords:

Mediation - Party seeking to be excused - Excusal opposed - Excusal refused

Legislation:

Supreme Court Act 1935 (WA), s 69(c)

(Page 2)

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance

Solicitors:

Plaintiff : Mallesons Stephen Jaques
First Defendant : Tottle Partners
Second Defendant : Clayton Utz
Third Defendant : Allens Arthur Robinson

Case(s) referred to in judgment(s):

Nil

(Page 3)

1 KENNETH MARTIN J: Having read and considered the written submissions of:

(a) the third defendant of 28 November 2011;

(b) the plaintiff of 30 November 2011;

(c) the first defendant of 30 November 2011; and

(d) the second defendant of 30 November 2011,

I rule that the third defendant should not be excused by this Court from attending at and participating in the mediation under direction that is scheduled to take place before the Hon I D Callinan AC QC at Perth on 15 and 16 December 2011 (see s 69(c) in Part VI, Supreme Court Act 1935 (WA)).

2 The third defendant indicated (par 10 of its submissions) that it does not require written reasons for the Court's ruling on its application to be excused. In those circumstances I am content to render this ruling but to add, essentially by summary observation, that I have reached this position on the basis of the following considerations in aggregate:

(a) uniform opposition by all the other parties in the litigation to the third defendant being excused from attending at the mediation;

(b) potential for the third defendant, notwithstanding an interpleader-like stance it has manifested in the litigation to date, to nevertheless provide relevant information and valuable input to the deliberations which will occur between the parties during the mediation from the third defendant's perspective of unique knowledge;

(c) the undesirability of potentially fettering the mediator's broad range of options by the excusal order now sought by the third defendant, before the mediation hearings commence and within which the mediator should have available a full panoply of options open in terms of dealing with the parties to the litigation;

(d) the inherently flexible nature of a mediation process;

(e) the lack of any asserted prejudice to the third defendant arising from participation in the without prejudice mediation process; and

(Page 4)

(f) capacity for the third defendant to seek to recoup its legal costs incurred by reason of its participation in and representation at the mediation by compensatory orders to that end in due course.

3 The parties will be advised of this ruling.