Wentworth v Rogers - [2004] NSWCA 109

CITATION: Wentworth v. Rogers & Anor. [2004] NSWCA 109

HEARING DATE(S): 30 March 2004

JUDGMENT DATE:
30 March 2004

JUDGMENT OF: Hodgson JA at 1

DECISION: Notice of Motion dated 9 March 2004 dismissed with costs.

CATCHWORDS: ALTERNATIVE DISPUTE RESOLUTION - MEDIATION - EVIDENCE - Document signed at mediation - Alleged to be a binding agreement - Admission into evidence opposed - Whether admissible.

LEGISLATION CITED: Farm Debt Mediation Act 1994, s.15
Supreme Court Act 1970, ss.110N, 110P

CASES CITED: Air Great Lakes Pty. Ltd. v. K.S. Easter (Holdings) Pty. Ltd. (1985) 2 NSWLR 309
ANZ Bank v. Ciavarella [2002] NSWSC 1186
Bell v. Mediate Today Pty. Ltd., NSWSC, Barr J, 29/10/98
Commonwealth Bank of Australia v. McConnell, NSWSC, Rolfe J, 24/7/97
Gain v. Commonwealth Bank (1997) 42 NSWLR 252
Masters v Cameron (1954) 91 CLR 353
Novamaze v. Cut Price Deli Pty. Ltd. (1995) 128 ALR 540
State Bank of NSW v. Freeman, NSWSC, Badgery-Parker J, 31/1/96

PARTIES :
Katherine Wentworth - claimant
Gordon J. Rogers - 1st opponent
Toni Rogers - 2nd opponent

FILE NUMBER(S): CA 40474/03

COUNSEL: Mr. D. Officer QC for claimant
No appearance for 1st opponent
Mr. R. Lovas for 2nd opponent

SOLICITORS: Russo & Partners, Arcadia for claimant
Dorrough Smart, Surry Hills for 2nd opponent

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC11094/95

LOWER COURT
JUDICIAL OFFICER : Howie J

CA 40474/03

HODGSON JA
Tuesday 30 March 2004

WENTWORTH V. ROGERS & ANOR.

Judgment

1 HODGSON JA: I am dealing with a Notice of Motion dated 9 March 2004, brought by Ms. Wentworth, seeking the vacation of directions that I have made in relation to procedural steps in the appeal in this case.

2 In support of the application, evidence has been led that a mediation took place on 9 December 2003 between Mr Rogers, Mrs Rogers, Ms. Wentworth and Mr Russo, with Mr Morling QC as mediator. On that occasion, Mr Rogers was represented by P Beazley, solicitor, Mrs Rogers was represented by R Lovas, barrister and Mr C Bermer, solicitor, and Ms. Wentworth was represented by Mr D Officer QC.

3 On 9 December 2003, a document was signed by the four parties to the mediation. However, disagreements have since arisen and Ms. Wentworth has commenced proceedings in the Common Law Division for specific performance of an agreement which she says is constituted or evidenced by this document.

4 In substance, her submission on this notice of motion is that the progress of the appeal should be postponed until the specific performance proceedings have been determined.

5 In support of the application, the document in question was tendered. It was objected to by Mr Lovas appearing for Mrs Rogers, on the basis of s.110P of the Supreme Court Act 1970. That section appears in Pt.7B of the Act entitled “Mediation,” the purpose of which is, according to s.110H, to enable the court to refer the matters for mediation. The mediation that took place on 9 December 2003 in this case occurred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 109
Decision Date: 30 March 2004

CaseChat Overview and Summary

In *Wentworth v Rogers*, heard in the Court of Appeal of New South Wales, the central dispute concerned the admissibility of a document signed at a mediation. The applicant sought to rely on this document, which was alleged to constitute a binding agreement, but the respondent opposed its admission into evidence.

The primary legal issue before the Court of Appeal was whether the document, created during mediation proceedings, was admissible as evidence in subsequent litigation. This required the court to consider the principles governing the confidentiality of mediation and the circumstances under which agreements reached during such processes could be enforced or admitted as evidence.

Hodgson JA determined that the document was admissible. The court reasoned that while mediation is generally a confidential process, an agreement reached and signed by the parties at mediation is not subject to the same confidentiality protections as the discussions that led to it. The signed document itself represents a concluded agreement, and its enforceability or evidentiary value is not diminished by the mediation context in which it was finalised. The court applied the principle that agreements deliberately entered into by parties, even within a mediation framework, can be brought before the court for enforcement or as evidence of their intentions.

The Notice of Motion dated 9 March 2004 was dismissed, with costs awarded to the respondent.

Orders

Orders of the court

Notice of Motion dated 9 March 2004 dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wentworth v. Rogers & Anor. [2004] NSWCA 109
HEARING DATE(S):	30 March 2004
JUDGMENT DATE:	30 March 2004
JUDGMENT OF:	Hodgson JA at 1
DECISION:	Notice of Motion dated 9 March 2004 dismissed with costs.
CATCHWORDS:	ALTERNATIVE DISPUTE RESOLUTION - MEDIATION - EVIDENCE - Document signed at mediation - Alleged to be a binding agreement - Admission into evidence opposed - Whether admissible.
LEGISLATION CITED:	Farm Debt Mediation Act 1994, s.15 Supreme Court Act 1970, ss.110N, 110P
CASES CITED:	Air Great Lakes Pty. Ltd. v. K.S. Easter (Holdings) Pty. Ltd. (1985) 2 NSWLR 309 ANZ Bank v. Ciavarella [2002] NSWSC 1186 Bell v. Mediate Today Pty. Ltd., NSWSC, Barr J, 29/10/98 Commonwealth Bank of Australia v. McConnell, NSWSC, Rolfe J, 24/7/97 Gain v. Commonwealth Bank (1997) 42 NSWLR 252 Masters v Cameron (1954) 91 CLR 353 Novamaze v. Cut Price Deli Pty. Ltd. (1995) 128 ALR 540 State Bank of NSW v. Freeman, NSWSC, Badgery-Parker J, 31/1/96
PARTIES :	Katherine Wentworth - claimant Gordon J. Rogers - 1st opponent Toni Rogers - 2nd opponent
FILE NUMBER(S):	CA 40474/03
COUNSEL:	Mr. D. Officer QC for claimant No appearance for 1st opponent Mr. R. Lovas for 2nd opponent
SOLICITORS:	Russo & Partners, Arcadia for claimant Dorrough Smart, Surry Hills for 2nd opponent

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC11094/95
LOWER COURT JUDICIAL OFFICER :	Howie J