Thomas v Yates and Anor

[2008] NSWSC 282

CITATION:	Thomas v Yates and Anor [2008] NSWSC 282
HEARING DATE(S):	31 March 2008
JUDGMENT DATE :	31 March 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Simpson J
EX TEMPORE JUDGMENT DATE:	31 March 2008
DECISION:	Notice of motion dismissed. Plaintiff to pay defendants' costs.
CATCHWORDS:	PRACTICE AND PROCEDURE - Professional negligence - plaintiff's application for the defendants personally to attend voluntary mediation - whether the Court has power under s 2.1 of the Uniform Civil Procedure Rules to make such order - whether the Court should order mandatory mediation thereby requiring the defendants to participate - inappropriate use of power conferred by s 26 of the Civil Procedure Act - plaintiff entitled to seek Court ordered mediation if voluntary mediation not productive - application refused
LEGISLATION CITED:	Civil Procedure Act 2005
CATEGORY:	Procedural and other rulings
PARTIES:	Sharon Thomas - (Plaintiff) Jill Yates and Peter Knudsen - (Defendants)
FILE NUMBER(S):	SC 20412/2006
COUNSEL:	AP Cheshire - (Plaintiff) D Davies SC - (Defendants)
SOLICITORS:	Keddies - (Plaintiff) Yeldham Price O'Brien Lusk - (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUTY LIST

Simpson J

31 March 2008

JUDGMENT

1 HER HONOUR: I start by noting that in this matter I did not have available to me the court file. Given the information I have been provided with, although that might create some deficiency in the background material I am able to state, it does not affect the outcome or the substance of the matter.

2 The substantive proceedings involve a claim by the plaintiff against two legal practitioners in respect of advice given, or allegedly negligently omitted to have been given in 2000. That, in turn, arose out of the plaintiff having given birth, as a teenager, to a son who was disabled as a result of the plaintiff having suffered rubella during her pregnancy.

3 It can be discerned, I think, that there are some complex issues involved. I have been told that the defendants carried compulsory insurance cover but that that is limited and, on the plaintiff's case, it falls far below what she would anticipate being awarded by way of verdict if she is successful in her claim.

4 The parties, at the instigation of the defendants through their insurers, have agreed to attend and participate in a mediation which is fixed to take place tomorrow, 1 April 2008. I stress that this is a voluntary mediation.

5 By notice of motion filed on 26 March 2008, the plaintiff seeks an order that the two defendants personally attend the mediation. She relies upon UCPR 2.1 as the source of power to make such an order. That Rule provides:

“The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.”

6 I have some doubt whether the very wide power conferred by that rule extends to making such an order where the mediation is voluntary and not court ordered. Accordingly, counsel for the plaintiff fell back on sections 26 and 27 of the Civil Procedure Act 2005. Section 26 of the Act empowers the court to order mediation, either with or without the consent of the parties and section 27 imposes a duty on each party to participate in good faith in such a mediation.

7 The substance of the argument advanced on behalf of the plaintiff was that, if the mediation were court ordered, Rule 2.1 would allow an order of the kind now sought and it was suggested that I could convert the proposed voluntary mediation fixed for tomorrow into a court ordered mediation, thereby enlivening the power to order the attendance of the defendants.

8 I think that would be an inappropriate, indeed, amounting almost to improper use of the power conferred by section 26. It would be wrong, in my opinion, for the Court to interfere in a voluntary arrangement made by the parties, with whatever limitations either, or any of them intended to impose. It is quite clear that the defendants do not intend to attend at the mediation and I think it would be wrong to manipulate the power conferred by section 26 in order to achieve that end.

9 Having said that, it is of concern that the positions of the parties have at least the potential to endanger the efficacy of the voluntary mediation. It would be entirely possible, if the mediation is not productive, for the plaintiff then to seek the exercise of the Court's power under section 26, in which case, a second, compulsory, mediation would take place. The increase of costs is always of concern. However, as I have said, I don't think powers conferred upon the Court should be used for a purpose for which they were not conferred and I do not think, especially at this late stage, that it is appropriate for the Court to interfere in what the parties have arranged between themselves.

10 Accordingly, I refuse the application and I dismiss the notice of motion. I order the plaintiff to pay the defendants’ costs.

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