JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [No 2] [2009] WASCA 15
CORAM: WHEELER JA
PULLIN JA
BUSS JA
HEARD: 1 DECEMBER 2008
DELIVERED : 16 JANUARY 2009
FILE NO/S: CACV 49 of 2008
BETWEEN: WESTERN AREAS EXPLORATION PTY LTD (ACN 076 025 066)
Appellant
AND
TERRENCE ERNEST JAMES STREETER
First RespondentDAVID CHARLES COOPER
Second RespondentJUNGLE CREEK GOLD MINES PTY LTD (ACN 008 795 033)
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
Citation :WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [2008] WASC 78
File No :CIV 2126 of 2006
Catchwords:
Costs - Application for costs of unsuccessful court ordered mediation - Confidential and without prejudice character of mediation - What evidence may be relied on
Legislation:
Courts Legislation Amendment Act 2000 (WA)
Rules of the Supreme Court 1971 (WA), O 29 r 3, O 36, O 37, O 66 r 44
Supreme Court Act 1935 (WA), s 71, s 72, s 167(1)(q)
Result:
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr I R Freeman
First Respondent : Ms P E Cahill
Second Respondent : Ms P E Cahill
Third Respondent : Ms P E Cahill
Solicitors:
Appellant: Lavan Legal
First Respondent : Maxim Litigation Consultants
Second Respondent : Maxim Litigation Consultants
Third Respondent : Maxim Litigation Consultants
Case(s) referred to in judgment(s):
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Pinto v Kinkela [2003] WASC 126
Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 50
Wilson v Metaxas [1989] WAR 285
WHEELER JA: I agree with Buss JA.
PULLIN JA: I agree with Buss JA.
BUSS JA: In action CIV 2126 of 2006 in the Supreme Court, the appellant as plaintiff is suing the respondents as defendants.
On 29 August 2007, Registrar S Boyle ordered, relevantly, that the parties submit the dispute, the subject of the litigation, to mediation to be conducted by a mediation registrar of the Supreme Court on a confidential basis in accordance with Pt VI of the Supreme Court Act 1935 (WA) (the Act).
The mediation was arranged for 27 November 2007, but abandoned at about the time it was due to commence.
By chamber summons filed 10 December 2007, the appellant applied for an order that the respondents pay the appellant's costs thrown away by reason of the mediation not occurring. It filed affidavits of Peter William van der Zanden, sworn 7 February 2008 and 27 February 2008, and an affidavit of Martin Lawrence Bennett, sworn 7 February 2008, in support of the application. The respondents filed an affidavit of Damian Eugene Molony, sworn 21 February 2008, in opposition to the application. On 11 December 2007, Le Miere J, who was managing the action in the commercial and managed cases list,…
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- Case
- [2009] WASCA 15
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the confidentiality and without prejudice nature of the mediation process precluded the reliance on certain evidence to determine the success or failure of the mediation and whether the applicant was entitled to the costs of the mediation. The court had to balance the principles of confidentiality in mediation against the applicant's right to seek costs if the mediation was deemed unsuccessful.
The court found that while the mediation process was confidential and without prejudice, it did not preclude the applicant from relying on certain evidence to demonstrate the unsuccessful nature of the mediation. The court held that the applicant could rely on evidence that was necessary to establish the unsuccessful nature of the mediation and that the applicant was entitled to costs if the mediation was deemed unsuccessful. The appeal was dismissed, and the leave to appeal was granted. The court ruled that the applicant was entitled to the costs of the mediation on the basis that the mediation had been unsuccessful.
Orders
Orders of the court
Leave to appeal granted
Appeal dismissed
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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