Wardman v Macquarie Bank Limited

In *Wardman v Macquarie Bank Limited*, Dowdy J of the Federal Court of Australia considered the validity of a Federal Circuit Court Rule that purported to authorise a judge to act as a mediator. The applicant, Mr Wardman, sought to have Macquarie Bank Limited's defence struck out, arguing that the appointment of a Federal Circuit Court judge as a mediator was invalid and that the judge's conduct during mediation was improper.

The central legal issue before the Court was whether a Federal Circuit Court judge, appointed under Chapter III of the Constitution, could validly act as a mediator. This involved determining whether the role of a mediator involved the exercise of the judicial power of the Commonwealth, or if mediation was incidental to judicial power, either generally or under section 51(xxxix) of the Constitution. The Court also considered whether, as a matter of discretion, a judge should act as a mediator.

Dowdy J held that a mediator does not exercise the judicial power of the Commonwealth, nor is mediation incidental to judicial power. Consequently, Rule 45.13B(2)(a) of the Federal Circuit Court Rules 2001 (Cth), which purported to authorise the appointment of a judge to be a mediator, was found to be incompatible with Chapter III of the Constitution and therefore invalid. The Court further determined that, as a matter of discretion, a judge of the Federal Circuit Court should not act as a mediator.

The Court ordered that the mediation conducted by the judge was invalid.