Xie v Lin

[2018] NSWSC 116

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Xie & Ors v Lin & Ors [2018] NSWSC 116

Hearing dates:

12 & 15 February 2018

Date of orders:

15 February 2018

Decision date:

15 February 2018

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Directions made for the filing of a motion to vacate the mediation date. Court accepts undertaking of counsel not to charge any fees in respect of any aspect of the vacation of the Court-annexed mediation fixed for 13 February 2018.

Catchwords:

PRACTICE - parties approach the Equity Duty judge to vacate a Court-annexed mediation fixed for the following day - Court not informed that the Registrar had already made a direction requiring the filing of a motion (and the payment of the necessary motion fee) for an application to vacate the mediation date - Court orders vacation of the mediation date by consent - decisions of Registrars - obligation on parties to inform the Court of relevant prior orders or directions of Registrars that the Court is being asked to vary or reverse - need to follow proper procedure for appeals against Registrar’s decisions - parties recalled to revise orders made - incidence of the costs of the recall considered.

Legislation Cited:

Civil Procedure Act 2005, s 26
Uniform Civil Procedure Rules 2005, r 63.4

Category:

Procedural and other rulings

Parties:

First Plaintiff: Zhigen Xie
Second Plaintiff: Jin Zhang
Third Plaintiff: Lei Su
Fourth Plaintiff: Feng Ye
First Defendant: Jackson Lin
Second Defendant: Qiaoyi Su
Fourth Defendant: NSW Legal Pty Limited

Representation:

Counsel:

 

Plaintiffs: Mr A. Flecknoe-Brown

 

Solicitor:

 

Plaintiffs: William Chan, L'Orient Legal (Mentioned on behalf of 1st, 2nd and 4th defendants)

  First Defendant: Jospeh Elihu Sampson McDonnell Schroder
Second Defendant: Alexander Lee, Alexander Lee & Associates
Fourth Defendant: Simon Lusk, Yeldham Price O’Brien Lusk

File Number(s):

(2016/209262)

Publication restriction:

No

Judgment

1. On Monday, 12 February 2018 Mr W. Chan of L’Orient Legal appeared in the Equity Duty List for the plaintiffs in these proceedings and mentioned the appearance of all other parties. He sought with the consent of all other parties to vacate a Court-annexed mediation before the Registrar in Equity fixed to commence the following day, Tuesday, 13 February 2018 at 9.30am.

2. The Court made the orders requested and vacated the date for the mediation, but did not vacate the order for the mediation, which had been made under Civil Procedure Act 2005, s 26. The Court did not have the file before it when the orders were made. But subsequent examination of the file shows that the 13 February 2018 date for the Court-annexed mediation had been fixed as long ago as 16 November 2017.

3. The underlying reason for vacating the date - the unavailability of counsel - was made clear to the Court on Monday. But the Court was left with the general impression that there had been little contact with the Registrar. Mr Chan’s correspondence with the Registrar has now been drawn to the attention of the Court and tendered (Exhibit A). That correspondence together with counsel’s subsequent submissions show that on 24 January 2018 the High Court set down for hearing on 13 February 2018 a matter in which counsel for the plaintiffs in this matter, Mr Flecknoe-Brown, was also briefed. The mediation date was sought to be moved so that Mr Flecknoe-Brown could be present at the mediation and at the High Court hearing.

4. The correspondence also shows that by the time the matter came into the Equity Duty List on 12 February, discussions among the parties to postpone the mediation to another agreed date in March or April 2018 had been proceeding ever since 24 January but the parties had not yet reached agreement as to another mutually convenient alternative date for the mediation. Indeed the first, second and fourth defendants only agreed with the plaintiff about an alternative date, when the matter came back before the Registrar on 15 February.

5. Regrettably, these important communications between the Registrar and the solicitors for the plaintiffs were not drawn to the Court’s attention before the Court made the orders on Monday vacating the mediation date. The Equity Duty List on Monday, 12 February 2018 was busy. Mr Chan offered to file a motion to vacate the date. But the Court was not made aware, that the Registrar had also already given a direction requiring a motion to vacate the date to be filed, before the Court formulated the orders required to vacate the mediation date.

6. The Registrar had given this direction for a very good reason. As a matter of the Registrar’s practice, when a Court-annexed mediation is sought to be vacated, the Registrar will require the filing of a motion under Uniform Civil Procedure Rules 2005 (“UCPR”), Pt 18. This is a formal process and one which incurs a filing fee of $403. Court-annexed mediations are a service that the Court provides to parties at no extra cost in an endeavour to give parties every opportunity to save costs by giving serious consideration to the settlement of proceedings before they are set down for trial. Court-annexed mediation has the advantage to parties over private mediation that the mediator does not charge a fee. A private mediator would commonly charge a cancellation fee for a late adjournment of a fixed mediation. But a regrettable trend is developing with Court-annexed mediations of parties seeking to change the Court’s mediation dates to suit themselves because there is little financial incentive to keep the fixed dates. This is why the Registrars have sought to make applications for adjournment more formal by motion.

7. These events raise an important point of practice. The Court has now decided to recall Mr Chan and to vary the Court’s order on Monday, which in substance unwittingly circumvented the Registrar’s previous direction to file a motion.

8. The Court should have been given the necessary background of the Registrar’s prior directions, despite the press of business in the Duty List. Had that been done the matter would have been approached as an appeal from a decision of the Registrar: as the Registrar had made directions and the substance of the parties’ request was to vary those existing directions. There is an established procedure for appeals from orders of Registrars under UCPR, rr 49.19 and 49.20, which include the filing of a motion and putting the text of the Registrar’s direction before the judicial officer. The elements of this procedure prevent parties going to judicial officers to avoid decisions of Registrars.

9. The correspondence between Mr Chan and the Registrar shows that a very late application was made to vacate the appointed mediation, an application which was first presented only on the morning before the mediation was to proceed. Were such an application to be made the day before an appointed hearing before a judge, serious questions would be asked of all parties as to why the Court’s scarce judicial resources were being wasted by the vacation of an appointed date at such a late time.

10. Similar questions should be asked here. The mediation date had been fixed for several months, it was appointed on 16 November 2017. Court-annexed mediations are a limited resource and are much in demand. The late attempts to vacate this date means that other parties have lost the opportunity for a Court-annexed mediation on that date. And Registrars undertake mediations after reviewing the Court file and parties’ submissions, in order to assist the parties to the maximum extent in the course of the mediation. The late vacation of the hearing date also wastes the valuable administrative time of the Court’s Registrars. At the very least, if the date were to be vacated here, that application should have been made very shortly after 24 January, leaving the fixing of a new mediation date for later.

11. What happened here impairs the efficiency of Court annexed mediations. These are regulated under the Supreme Court Practice Note Gen No. 6 to serve the overriding purpose of Civil Procedure Act (“CPA”), s 26 and the rules of court to facilitate “the just, quick and cheap resolution” of the real issues in proceedings is given effect: CPA s 56.

12. And the events incur hidden costs: the costs of wasted Registrars’ administrative time, and the cost of displacing the urgent mediation requirements of other litigants in the Court. Though these costs are not presently obvious to the parties, the Court’s internal costs of vacated mediations are not insignificant. The time has not yet come, but may soon come, where should late applications to vacate mediations be made the orders will only be made on terms that parties meet the Court’s full internal costs thrown away by the vacation of the mediation date.

13. Now that the correspondence is available to the Court, the Court has summoned Mr Chan to reappear for him to show cause why the order that the Court made on Monday 12 February 2018 should not be revoked and why the plaintiffs should not now be required to file a motion to vacate the mediation date. Mr Flecknoe-Brown appeared for the plaintiffs today and quite properly, in the circumstances, did not oppose the revocation and remaking of the order. He also appropriately undertook that no fees would be charged to the plaintiffs in relation to the vacation and refixing of the Court-annexed mediation date on 13 February.

14. The orders made below in my view are the bare minimum necessary to remind the parties, in this case and in others, that Court-annexed mediation dates should not be vacated other than on good grounds and when they are vacated, the cost of vacation will ordinarily at least be a fee for the filing of a formal motion to vacate the Registrar’s orders.

15. The Court’s orders are:

1. The Court requires the plaintiffs to file by Monday, 19 February 2018 at 4.00pm a Notice of Motion under Uniform Civil Procedure Rules 2005 (“UCPR”), Pt 18 recording the plaintiff’s application for the orders made in this matter in the Duty List on 12 February 2018 vacating the mediation date appointed before the Registrar for 13 February 2018.

2. The Court notes Mr Flecknoe-Brown’s undertaking that no fees will be charged to the plaintiffs in respect of the vacated mediation, today’s appearance before the Registrar and today’s appearance before the Court.

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Amendments

06 March 2018 - Coversheet- parties corrected.

Decision last updated: 06 March 2018