VANDEN DRIESEN v EDITH COWAN UNIVERSITY (NO.2)

[2012] FMCA 1169

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VANDEN DRIESEN v EDITH COWAN UNIVERSITY (NO.2) [2012] FMCA 1169

INDUSTRIAL LAW – General protections court application.

PRACTICE AND PROCEDURE – Alternative dispute resolution – early mediation previously ordered – application to adjourn early mediation – obligation on Court to advise parties to use alternative dispute resolution – purpose of early mediation in this case.

Fair Work Act 2009 (Cth), s.570

Federal Magistrates Act 1999 (Cth), ss.23(1) and (2)

Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors (2010) 244 FLR 335; [2010] FMCA 932
Vanden Driesen v Edith Cowan University [2012] FMCA 735

Applicant: CYNTHIA VANDEN DRIESEN

Respondent: EDITH COWAN UNIVERSITY

File Number: PEG 43 of 2012

Judgment of: Lucev FM

Hearing dates: 6 December 2012

Date of Last Submission: 6 December 2012

Delivered at: Perth

Delivered on: 6 December 2012

REPRESENTATION

Counsel for the Applicant: Mr T Hammond

Solicitors for the Applicant: Fiocco’s Lawyers

Counsel for the Respondent: Ms E Moran

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The application in a case be dismissed.

2. Unless otherwise agreed by the parties:

   (a)the respondent file and serve written submissions on the costs of the application in a case by 14 December 2012;

   (b)the applicant file and serve written submissions on the costs of the application in a case by 21 December 2012;

   (c)the respondent file and serve a reply to the applicant’s written submissions on the costs of the application in a case by 11 January 2013; and

   (d)the costs of the application in a case be listed for hearing at 2.00pm on 29 January 2013.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 43 of 2012

CYNTHIA VANDEN DRIESEN

Applicant

And

EDITH COWAN UNIVERSITY

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Application in a case

1. By an application in a case filed 4 December 2012 the applicant, Dr Cynthia Vanden Driesen,[1] seeks the following orders:

   1.That the mediation listed for Friday, 7 December 2012 be adjourned to a date to be fixed, but not before 14 January 2013.

   2.That there be no order as to costs.

   [1] “Dr Vanden Driesen”.

2. The application is not consented to by the respondent, Edith Cowan University.[2]

   [2] “ECU”.

3. The application is a case is supported by an affidavit of the applicant, Dr Vanden Driesen, sworn 4 December 2012,[3] in which she relevantly says as follows:

   [3] “Dr Vanden Driesen’s Affidavit”.

   3.In relation to the orders that were made by Federal Magistrate Lucev on 18 October 2012, I confirm that His Honour ordered that the mediation take place not before 7 December 2012.

   4.However, I was of the mistaken belief that both parties would exchange their respective affidavit evidence prior to the mediation taking place.

   5.On 21 November 2012, I filed my affidavit in these proceedings.

   6.I am advised by my lawyers and I verily believe that the Respondent’s evidence is due to be filed and served on 20 December 2012 and any reply is to be filed and served by me, the Applicant, by 11 January 2013.

   7.I have now reached the conclusion that there would be no utility in mediating this matter without me first being provided with the affidavit evidence of the Respondent and given the opportunity to reply to this evidence.

   8.Consequently, I seek to have the mediation which is presently listed for 7 December 2012, adjourned to a date to be fixed, but not before 14 January 2013.

   9.I am advised by my lawyers and I verily believe that my lawyers conferred with the lawyers for the Respondent, on 3 December 2012, to seek an adjournment of the mediation by consent, but the lawyers for the Respondent have advised that their instructions are not to consent to an adjournment.

   Annexed hereto and marked with the letters “CVD1” is a true copy of a letter from DLA Piper Australia to Fiocco’s Lawyers, dated 3 December 2012.[4]

   [4] Dr Vanden Driesen’s Affidavit, paras.3-9.

4. The letter from DLA Piper Australia, ECU’s solicitors, to Dr Vanden Driesen’s solicitors dated 3 December 2012 relevantly says as follows:

   Our instructions are not to consent to the adjournment.

   We note that at the last appearance before FM Lucev it was clear that the Court was of the view that a mediation should occur earlier, rather than later, and before the Respondent had filed our affidavits on the basis that, if required, a subsequent mediation could be ordered. We understand that this was also the Applicant’s position.

   We accepted this view and for these reasons it remains our view that the mediation should proceed on 7 December 2012.[5]

   [5] Dr Vanden Driesen’s Affidavit, Annexure CVD1 (emphasis in original).

Previous directions hearings – an order for early mediation

1. This Court handed down judgment in Vanden Driesen v Edith Cowan University[6] on 10 October 2012. Having handed down judgment and made orders with respect to the subject matter of the judgment the Court made some very brief observations about the future conduct of the matter, and the directions to be made at a further directions hearing which was set for 18 October 2012. At the directions hearing on 10 October 2012 the Court had broadly indicated that mediation should occur whilst other processes were ongoing.

   [6] [2012] FMCA 735 (“Vanden Driesen (No. 1)”).

2. When the matter came on for further directions on 18 October 2012, the proposed minutes of order included an order referring the matter to mediation before a Registrar of the Court. There was however, disagreement on what the “not before” date for that mediation would be.

3. Counsel for Dr Vanden Driesen, Mr Hammond, indicated that what he was “hoping we could do … was actually to make that date 7 December 2012”.[7] Counsel for Dr Vanden Driesen went on to observe, by reference to reasons of cost, reputation and length of hearing, “that there has to be some utility in trying to mediate … earlier rather than later”,[8] and observed that the parties should “put that date [7 December 2012] to good use … [and] at least start mediation”.[9] This meant that Dr Vanden Driesen would “provide all our evidence to the respondent before that mediation”,[10] and that it was the “best use of everyone’s time and resources to at least have a go at this earlier rather than later.”[11] Counsel for Dr Vanden Driesen then went on to further observe that commencing mediation in early February 2013, with a two week trial listed for two of the final three weeks of February 2013, was “all a little bit too late” and that it “seems … in the interests of both the parties and the court to have a go at that earlier rather than later.”[12] There was no submission made, or anything from which it might be inferred, that Dr Vanden Driesen wished to wait for ECU to file affidavits before the mediation occurred.

   [7] Transcript, p.2.

   [8] Transcript, p.3.

   [9] Transcript, p.3.

   [10] Transcript, p.3.

   [11] Transcript, p.3.

   [12] Transcript, p.3.

4. It was, therefore, the unequivocal position of Dr Vanden Driesen, expressed through Counsel, at the 18 October 2012 directions hearing, that mediation commence as soon as possible, and, in any event, commence before ECU had provided its evidence to Dr Vanden Driesen.

5. ECU opposed earlier mediation at the 18 October 2012 directions hearing, and sought that a “not before” date for mediation of 1 February 2013 be inserted into the orders. The Court indicated that it:

   a)had difficulties with such a proposal given the amounts of money that the parties would then have to spend prior to mediation; and

   b)doubted that an experienced Registrar mediating the matter, in circumstances where both parties were legally represented and could put forward their cases at mediation, would need access to all of the evidence of ECU.

   After a robust exchange between the Court and Counsel for ECU, Ms Moran, ECU did not demur from the proposition that if mediation commenced earlier rather than later some progress might be made, and that if the matter were to settle, significant costs would be saved.[13]

   [13] Transcript, pp.4-5.

6. In the circumstances, and essentially for the reasons outlined in the course of Dr Vanden Driesen’s argument, and the Court’s views expressed in exchanges with Counsel for ECU, an order was made at the 18 October 2012 directions hearing for mediation on a “not before” date of 7 December 2012.

7. Mediation has been listed for 7 December 2012 before a Registrar of the Court. It is that mediation which the application in a case seeks to have adjourned to a date of not before 14 January 2013. The ten day hearing of this matter is listed to commence on 11 February 2013.

Consideration

1. Section 23(1) of the Federal Magistrates Act 1999 (Cth) provides as follows:

   If the Federal Magistrates Court considers that a dispute resolution process may help the parties to a dispute before it to resolve that dispute, the Federal Magistrates Court must advise the parties to use that dispute resolution process.

2. In Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors[14] this Court held that s.23(1) of the FM Act places an obligation on the Court to advise the parties to use a dispute resolution process which the Court considers may help the parties resolve the dispute.[15] More fully, the Court observed as follows:

   [14] (2010) 244 FLR 335; [2010] FMCA 932 (“Broad Spectrum Training”).

   [15] Broad Spectrum Training FLR at 348 per Lucev FM; FMCA at para.44 per Lucev FM.

   43. If the purpose of s.23(1) of the FM Act is to “ensure that parties are referred to appropriate primary dispute resolution processes” then “must advise” in s.23(1) of the FM Act must mean more than counselling of the parties by the Court. It must mean that the parties are informed, and in some formal way given notice, to “use that dispute resolution process”. That formal notice, in the context of:

   a) litigation in a Court exercising the judicial power of the Commonwealth; and

   b) the provisions of s.23(2) of the FM Act which allow the Court, if it considers it desirable to do so, to adjourn the proceedings “to enable attendance in connection with the dispute resolution process”,

   can only be by way of an order which has the effect of directing the parties to “use that dispute resolution process”. An order is the proper means to “ensure” that the parties “use” the dispute resolution process, and to “enable” their attendance at the dispute resolution process. An order adjourning the proceedings to enable attendance at mediation would be such an order.[16]

   [16] Broad Spectrum Training FLR at 348 per Lucev FM; FMCA at para.43 per Lucev FM (footnotes omitted).

3. It is clear that the Court has the power to order mediation, and to order that proceedings be adjourned to allow for mediation, and to adjourn a mediation itself.

4. The approach adopted by the Court in the directions hearings in this matter on 10 and 18 October 2012 was designed to ensure that the parties utilised appropriate dispute resolution processes, and did so at as early a stage as possible in these proceedings. The reasons for that were those expressed at those directions hearings, namely, that, if at all possible, the proceedings ought to be settled, with significant monetary savings to the parties and the taxpayer, and possible reputational savings for the parties, and, if not, there ought to be an endeavour to reach agreement on some issues, and narrow the scope of other issues, with a consequent saving of time and expense at hearing.

5. The above reasons remain valid reasons for the Court ordering on 18 October 2012 that mediation commence earlier, that is not before 7 December 2012, rather than later, that is, not before 1 February 2013, the latter being the date sought by ECU at the 18 October 2012 directions hearing.

6. Ironically, it is now Dr Vanden Driesen who seeks to have the mediation adjourned to a later date, being not before 14 January 2013, contrary to the position adopted by her at the 18 October 2012 directions hearing.

7. In the circumstances outlined above, Dr Vanden Driesen’s “mistaken belief that both parties would exchange their respective affidavit evidence prior to the mediation taking place”[17] is not material to the reasons for which the Court ordered that mediation be earlier rather than later. Nor is it of itself a good reason to adjourn mediation and vary the not before date for mediation. That said, it is difficult to understand how it is, given the Court’s comments at the directions hearing on 10 October 2012, and the submissions made by her own Counsel at the directions hearing on 18 October 2012,  and the order made by the Court, now more than six weeks ago, that Dr Vanden Driesen could have the mistaken belief asserted in her affidavit.

   [17] Dr Vanden Driesen’s Affidavit, para.4.

8. Dr Vanden Driesen’s “conclusion that there would be no utility in mediating this matter without … [her] first being provided with the affidavit evidence of the Respondent and given the opportunity to reply to this evidence” is, again, directly contrary to the position put by her, through Counsel, at the 18 October 2012 directions hearing, and to the reasons for the Court ordering earlier rather than later mediation of this matter. As the Court observed at the 18 October 2012 directions hearing, there is no reason why a Registrar experienced in mediation in this Court, with the parties both represented, needs to have all of the evidence in, or, as was argued by ECU at the 18 October 2012 directions hearing, further and better particulars provided, before a mediation can, at least, commence, and hopefully settle the matter, and if not, reach agreement on some issues and narrow other issues. Furthermore, there is no reason why there should not be one or more days of mediation, in an effort to settle a long case, involving significant cost reputational risk for all parties, and which might in any event, continue right up until the time the hearing commences, with a view to settling the matter.

9. The Court also observes that apart from a bare assertion by Dr Vanden Driesen that there would be “no utility” in a mediation, there is no explanation as to why the reasons, which the Court accepted, when put forward by Counsel on her behalf at the 18 October 2012 directions hearing for having an earlier, rather than a later mediation, are no longer valid and are now so diametrically different. In short, Dr Vanden Driesen has not put forward any cogent reasons as to why the order with respect to the not before date for early mediation ought to be varied. That is particularly so when it was her own argument which resulted in the order being made, and where she, by way of nothing more than a bare assertion, asserts that mediation would now be of no utility if conducted before all of ECU’s evidence, and Dr Vanden Driesen’s reply to that evidence, were filed.

10. In the circumstances, this remains a matter which the parties ought to make every endeavour to settle as early as possible, so as to save the not inconsiderable expense of the further filing of affidavits and a 10 day hearing in what is, primarily, a no costs jurisdiction.[18]

    [18] Fair Work Act 2009 (Cth), s.570.

11. It follows from what has been said above, that the application in a case will be dismissed.

12. Given the nature of the application in a case, and the reasons for the judgment of the Court, the Court will hear from the parties as to the costs of the application in a case.[19]

    [19] FW Act, ss.570(2)(a) and (b).

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: 

Date:  6 December 2012