BM1 v Daramalan College

The defendant in each matter filed an application in proceeding on 11 September 2026, seeking leave in each case for the claims officer with conduct of the matter to participate in the mediations via AVL. It is a matter of relevance that the directions made when the mediation dates were set included the following: Each separately represented party is to have a person present in person at the mediation who has authority to give final agreement to a settlement proposal within any range that can be reasonably anticipated.

In each matter, reliance is placed on an affidavit affirmed by Natalie Milenovic, solicitor, affirmed on 10 September 2026. There are a number of matters not addressed in the affidavit evidence, and in a somewhat unsatisfactory way, it was necessary to endeavor to elicit additional information by way of submissions from the bar table when the matter came before me on 14 September 2026.

The things that are clear on the evidence and relevant to the applications may be summarised in this way: (a) Although the defendant's insurer has 11 claims officers in total, only two are potentially available this Friday, including the claims officer with carriage of these matters. (b) That claims manager has two young children for whom she has child caring responsibilities on Friday. (c) She also has a function to attend on Friday night in Sydney, that city being her usual place of residence.

In short, a requirement for her to attend Canberra so she may participate in these mediations in person amounts to a significant inconvenience for her.

There is no explanation offered for the very late lodgement of the application for AVL orders given the defendant has been aware for some eight weeks of the requirement for in-person attendance. There is little illumination of the steps taken, if any, in advance of the mediation date to make alternate arrangements for in-person attendance by one of the 11 claims officers employed by the defendant. For example, I note six of the 11 are apparently on leave on Friday, 18 September 2026. It is unclear whether any of those six were asked to swap their leave day to enable them to attend the mediation.

The solicitor for the defendant has conceded they were aware from the time the mediation date was set there were likely to be difficulties in having a claims manager present in person, as they had made inquiries about availability prior to the directions hearing where the mediation dates were set.

In Lindley v Trustees of the Marist Brothers [2026] ACTSC 232, I observed at [9]: There is real utility in parties committing to personal attendance at mediation so as to ensure their whole attention is dedicated to the mediation process, and the parties have all of the advantages direct human interaction brings to a communication and negotiation process. The price of such interaction may well be some significant disruption and inconvenience to other work and life activities. It is a price well worth paying if it facilitates the resolution of a matter otherwise destined to proceed to hearing in the court at significant cost and inconvenience to all of the parties.

In a similar vein, in relation to personal attendance orders for mediation, Mossop J observed in Frawley-Mangan v Hosmer Holdings Pty Ltd [2023] ACTSC 7 at [5]: Orders requiring the attendance of claims managers at mediations are based on the idea that requiring such participation will make the mediation more effective by requiring the claims manager to fully engage with the mediation process and fully understand the factual and legal matters raised the mediation. To permit remote participation and partial participation by telephone only when necessary allows a lower level of engagement with the process and reduces the prospects of the mediation being as effective as possible. The requirement should only be departed from where there is sufficient reason to do so. An insurer’s choice to have its claims managers for claims brought in the ACT Supreme Court spread around Australia is not a sufficient reason to depart from the usual order…

Exceptional circumstances do not include a party being resident interstate. They do not generally include the experience of significant disruption to usual work and life activities, including childcare responsibilities and attending functions. There will of course be exceptions; attending a funeral, illness, the need to undergo medical treatment, or even caring responsibilities where no alternative carer is available and no replacement mediation participant can reasonably be identified. I am not satisfied exceptional circumstances have been identified in this instance to warrant a grant of leave for AVL participation.

I am advised there are a significant number of similar claims against Daramalan College beyond the three that are subject to these mediation orders.

Counsel for the plaintiff suggested, in the context of a discussion before me about private mediation as an alternative, that such mediation would give the parties an opportunity to ventilate broader issues relating to a wider group of claims. There was some factual disputation between the parties yesterday as to why a private mediation had not been agreed as an alternative. I therefore afforded the parties an opportunity to explore that option before finally determining these applications.

The outcome of that exploration is David Higgs SC is available to conduct a mediation in the matter of Stephenson on Thursday, 17 September 2026, in place of the currently ordered court appointed mediation in Canberra. The mediation before Mr Higgs would proceed in Sydney, thus meeting the in-person challenges the claims manager faced in the context of the proposed Canberra mediation.

Further, there is availability with Mr Higgs to conduct a mediation in the other two matters on 28 September 2026, with all parties available on that date. I note Mr Higgs would also be available to mediate the matters of BM1 and PM1 in Sydney on Friday 18 September 2026. The limitation for the parties in proceeding on Friday is the availability of junior counsel located in Canberra. I understand counsel would be unavailable to attend a mediation in Sydney on Friday.

The upshot of the negotiations is the parties are now agreed, at least insofar as participation in private mediations in Sydney for each of the three matters is concerned. There is a residual dispute about the costs flowing from the need to vacate the court ordered mediations and reconvene for private mediations at a later date in Sydney.

Had the applications been pressed to proceed with the court ordered mediations on Thursday and Friday, with leave for AVL participation by the claims manager, I would have refused them for the reasons I have given.

In those circumstances, and noting the alternative order proposed by the defendant in that event was that the court ordered mediations be vacated, I consider the appropriate costs order, both in relation to the applications in proceedings and in relation to the vacation of the court ordered mediations, to be an order that the defendant pay the plaintiffs' costs of and incidental to the applications and costs thrown away as a consequence of the vacation of the mediations on Thursday and Friday.

As to the residual issue of costs of the private mediations, it seems to me the appropriate order remains, in respect of each of those mediations, that the costs of the mediations should be borne equally by the parties, noting that would have been the outcome in relation to the court ordered mediations had they proceeded.