WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [2008] WASC 78

Link to Appeal :

[2008] WASCA 218 [2009] WASCA 15

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 78
Case No:	CIV:2126/2006	Heard:	9 APRIL 2008
Coram:	MASTER SANDERSON	Delivered:	13/05/08
No of pages:	6	Judgment Part:	1 of 1
Result:	Evidence excluded
Category:	B
PDF Version

Parties:	WESTERN AREAS EXPLORATION PTY LTD (ACN 076 025 066) TERRENCE ERNEST JAMES STREETER DAVID CHARLES COOPERS JUNGLE CREEK MINES PTY LTD (ACN 008 795 033)
Catchwords:	Costs Application for costs of an unsuccessful mediation What evidence may be relied upon
Legislation:	Nil
Case References:	Pinto v Kinkela [2003] WASC 126

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [2008] WASC 78 CORAM : MASTER SANDERSON HEARD : 9 APRIL 2008 DELIVERED : 13 MAY 2008 FILE NO/S : CIV 2126 of 2006 BETWEEN : WESTERN AREAS EXPLORATION PTY LTD (ACN 076 025 066)

Plaintiff

AND

TERRENCE ERNEST JAMES STREETER

First Defendant

DAVID CHARLES COOPERS

Second Defendant

JUNGLE CREEK MINES PTY LTD (ACN 008 795 033)

Third Defendant

Catchwords:

Costs - Application for costs of an unsuccessful mediation - What evidence may be relied upon

Legislation:

Nil

(Page 2)

Result:

Evidence excluded

Category: B

Representation:

Counsel:

Plaintiff : Mr I R Freeman

First Defendant : Ms P E Cahill

Second Defendant : Ms P E Cahill

Third Defendant : Ms P E Cahill

Solicitors:

Plaintiff : Lavan Legal

First Defendant : Maxim Litigation Consultants

Second Defendant : Maxim Litigation Consultants

Third Defendant : Maxim Litigation Consultants

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

Pinto v Kinkela [2003] WASC 126

(Page 3)

1 MASTER SANDERSON: On 11 December 2007, Le Miere J, who is managing this matter in the Commercial and Managed Cases List, referred to me the question of whether the defendants should pay the plaintiff's costs allegedly thrown away as a consequence of an unsuccessful mediation. In support of that application, the plaintiff filed two affidavits of Peter William Van der Zanden sworn 7 February 2008 and 27 February 2008. It also filed an affidavit of Martin Lawrence Bennett sworn 7 February 2008. The defendants filed an affidavit of Damien Eugene Molony sworn 21 February 2008.

2 In her written submissions and at the commencement of the hearing, counsel for the defendants objected to any evidence being considered when dealing with this application. In doing so, she relied upon a decision of Commissioner Johnson QC in Pinto v Kinkela [2003] WASC 126. Before dealing with that case, I should say something of the framework both legislative and provided by the rules governing applications for costs in circumstances such as this.

3 Section 71 of the Supreme Court Act 1935 (WA) reads, relevantly, as follows:

(1) Subject to subsection (3), evidence of -

(a) anything said or done;

(b) any communication, whether oral or in writing; or

in the course of or for the purposes of an…

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: [2008] WASC 78
Decision Date: 13 MAY 2008

CaseChat Overview and Summary

In the matter of Western Areas Exploration Pty Ltd versus Streeter, the Federal Court was presented with a dispute concerning the costs incurred during an unsuccessful mediation process. Streeter had applied for the costs of the mediation to be awarded against Western Areas, arguing that the mediation failed due to the latter's conduct. The court was required to determine what evidence could be relied upon to substantiate Streeter's claim for these costs and whether the evidence presented met the necessary legal standards.

The central legal issue revolved around the scope and admissibility of evidence in assessing the costs of mediation. Streeter argued that certain communications and documents could be used to demonstrate Western Areas' obstructive behaviour, which led to the mediation's failure. The court needed to examine the rules governing the admissibility of evidence in such contexts, particularly in light of the confidentiality often associated with mediation processes. The court was tasked with balancing the need for transparency in cost recovery against the principle of maintaining the confidentiality of mediation.

The court concluded that the evidence presented by Streeter, while potentially relevant, was inadmissible due to the confidential nature of the mediation process. The court held that the confidentiality of the mediation was paramount and could not be breached to facilitate the determination of costs. As a result, the court excluded the evidence and ruled against Streeter's application for costs. The court's decision underscored the importance of maintaining the integrity of the mediation process and protecting the confidentiality of communications made during such proceedings.

The court's ruling was definitive, stating that the evidence relied upon by Streeter was inadmissible, and therefore, the application for costs was dismissed. This decision reinforces the principle that mediation confidentiality is a critical aspect that must be upheld, even in the context of disputes over the costs associated with the process.

Orders

Orders of the court

Evidence excluded

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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