"15 Confidentiality of mediation sessions
(1) Evidence of anything said or admitted during a mediation session and a document prepared for the purposes of, in the course of or pursuant to, a mediation session are not admissible in any proceedings in a court or before a person or body authorised to hear and receive evidence.
(2) In this section, mediation session includes any steps taken in the course of making arrangements for a mediation session or in the course of the follow-up of a mediation session. "
8 By the Farm Debt Mediation Amendment Act 2002 a further subsection was added to s 15:
"(3) This section does not apply to the following documents:
(a) Heads of Agreement,
(b) a contract, deed, mortgage or other instrument entered into as a result of, or pursuant to, Heads of Agreement.
(c) a summary of mediation under section 18A."
9 There is dispute between the parties as to whether this amendment is applicable to the issues between them.
10 On 22 June 2002 the plaintiff issued a subpoena for production of documents which was served on Mr Ireland. It was in very wide terms and sought production of documentation described thus:
"1. Originals and/or copies of all file notes, correspondence, records of telephone conversations, memos and other like writings evidencing communications between you and the Plaintiff and/or his agents and lawyers for the period 1 December 1995 to 30 June 2002.
2. Originals and/or copies of all file notes, correspondence, records of telephone conversations, memos and other like writings evidencing communications between you and the First Defendant and/or its agents and lawyers for the purpose of conducting Farm Debt Mediation meetings on 14 February 1996 and 28 February 1996.
3. Originals and/or copies of all writings you recorded at the Farm Debt Mediation meetings conducted on 14 February 1996 and 28 March 1996.
4. Originals and/or copies of all pre-mediation agreements that evidence an agreement to mediate between the First Defendant and the companies, Hurworth Nominees Pty Ltd, Lillyhill Pty Ltd and Hiform Feeds Pty Ltd each of which had the Plaintiff listed as a director in 1996.
5. Copies of all bills, statements of account and receipts or like ledger entries evidencing all charges levied to and payment received from the Plaintiff, the First Defendant, Hurworth Nominees Pty Ltd, Lillyhill Pty Ltd and Hiform Feeds Pty Ltd. "
11 Given the descriptions, it is obvious that much material sought would be rendered inadmissible in any proceedings by s 15. The bank became aware of the subpoena and that Mr Ireland had forwarded material to the Court in compliance with it. An order was obtained to seal the material against inspection pending further order and there is a motion to set aside the subpoena which is one of the two now before the Court. The bank's stance is that it was unaware of the issue of the subpoena until after Mr Ireland had complied with it.
12 The second motion before the Court is brought by the plaintiff and seeks orders in these terms:
"1. First access be granted to the Plaintiff for inspection and copying of documents relevant to an agreement reached at a Farm Debt Mediation on 28 March 1996, produced in answer to the Plaintiff's subpoena served on Mr John Andrew Ireland and;
2. Leave be granted to the Plaintiff to obtain a written statement or affidavit from Mr John Andrew Ireland, in relation to an agreement reached at a Farm Debt Mediation on 28 March 1996, and leave be granted to the Plaintiff to issue a subpoena on Mr Ireland for the purpose of examining him on the said agreement."
13 Despite the terms of the orders sought senior counsel for the plaintiff specified that what was being sought was no more than access to (with permission to copy) the terms of the agreement transcribed by Mr Ireland from the whiteboard into his notes. There is no dispute between the parties that the deed would be admissible in proceedings and not inhibited by s15. The deed does not represent a document prepared for the purpose of or in the course of a mediation session, rather it evidences an agreement reached after the conclusion of the mediation.
14 Recognizing that there could be some obscurity surrounding what might be meant by the expression "in the course of the follow-up of a mediation session", construction should be adopted which would prevent undermining of an obvious objective of the Act. Otherwise a party could reach an agreement, refuse to abide by it and preclude the tender of its terms. I agree with the observations of Macready AJ in ANZ Bank v Ciavarella [2002] NSWSC 1186 and the extracts cited therein from the judgments of Barr J in Bell v Medicate Today Pty Limited, unreported, NSWSC 29 October 1998; Badgery-Parker J in State Bank of New South Wales v Freeman unreported NSWSC 31 January 1996 and Rolfe J in Commonwealth Bank of Australia v McConnell unreported, NSWSC 24 July 1997.
15 Provided what is evidenced is an agreement reached after the mediation session it does not seem to me to matter whether the agreement is evidenced in one document or more than one, nor if part of the agreement is evidenced by a deed under seal and some additional agreement reached recorded separately. It is a situation such as the latter which is the present contention of the plaintiff.
16 Subject to arguments of the bank to which I will turn, the issue should have been raised by a subpoena specifically seeking production of the transcription of agreement taken from what was written on the whiteboard on the occasion in question. If that had been done, and in fact Mr Ireland had no such transcription, he could respond accordingly. If he had made a document fulfilling the description it could be produced. There would then be an identified resource upon which determination could be made as to whether it did evidence a post-mediation agreement and argument could properly focus upon whether that recorded agreement attracted what is effectively a form of privilege legislated by s 15.
17 Instead, by reason of the width of the subpoena, Mr Ireland has been obliged to respond by producing the documents described which, as I have said, obviously include classes of material which must be "caught" by s 15.
18 The terms of the prayer in paragraph 1 of the plaintiff's Notice of Motion attempt to overcome the problems caused by the exaggerated schedule to the subpoena by seeking documents "relevant to an agreement" but in order to undertake this the "first access" sought must effectively involve inspection of the whole of the material produced by Mr Ireland and currently under seal in order to establish the existence of and identify the document now specified.
19 The relief sought in paragraph 2 of the plaintiff's motion was not formally abandoned but no express submission was made in respect of it. In the absence of argument as to what source of power is appealed to and why, if it exists, it should be exercised, I am unwilling to make such an order.
20 I have above set out the amendment added in 2002. Plainly enough it operates to remove any doubt about exclusion of the specified documents from the "privilege" attaching to steps which may be thought to fulfil the criterion of being taken in the course of the follow-up of a mediation session.
21 Counsel has pointed out that "Heads of Agreement" has a particular meaning which has been added into s 11AA and there are provisions about enforcement (s 11C) and sanctions upon a mediator who does not act in accordance with requirements (s 12(3)).
22 I do not accept that these provisions, particularly s 15(3), apply to the present case. It would have been impossible for Mr Ireland to comply in 1996 with what was not legislated until 2002. But I do not construe s 15(2) as forbidding the admissibility of a document evidencing an agreement reached at a mediation session. I would construe "follow-up" of a mediation session to refer to matters concerned with steps towards reaching agreement as distinct from evidence of an agreement already reached. Simply because, for example, a document recording the agreement is prepared after the mediation session is over, does not categorize it as "follow-up" in the relevant sense.
23 It was submitted that the words of s 15 as they stood prior to the addition of s 15(3) would preclude tender of the "supposed other agreement". This is a reference to what was said to have been recorded on the whiteboard and transcribed by Mr Ireland. As I have commented, I perceive no statutory inhibition against post mediation agreements being evidenced in multiple documents.
24 The crux of the problem is that, while there is ample evidence that Mr Ireland made notes, there is no evidence as to what is in them, save the broad contention of the plaintiff that what was written on the board were terms of agreement which might reasonably be inferred to have been transcribed. If the writing on the board can be properly categorized as evidencing progress towards agreement as distinct from the agreement itself, I agree with the submission by the bank that it would be inadmissible. What its nature is, or its quality may be, is not known. However, if it records a post mediation agreement, it is, in my view, not inadmissible by reason of s 15.
25 Reference was made to common law privilege. If what was recorded on the board were in effect notations of negotiations as distinct from agreement, then the record would be inevitably caught by the exclusion provisions. As I have said, a precise subpoena would have enabled Mr Ireland either to produce a document which complied with the description or indicate that no such document existed.
26 My conclusion is that, if Mr Ireland's notes include a transcription from the whiteboard of the terms of an agreement, that document is amenable to production on subpoena and the plaintiff should not be restrained from access to it.
27 The present subpoena lacks specificity, seeks material which is plainly inadmissible in proceedings having regard to the statute and, because of the width of its terms, it should be set aside. The documentation produced in response to the subpoena should be returned.
28 It follows that the orders sought in the plaintiff's Notice of Motion should not be made. Apart from this conclusion there are obvious difficulties in making orders in the terms sought. Paragraph 1 which seeks access is dependent upon a proper subpoena specifying what is sought and, as I have said, no basis for an order such as sought by paragraph 2 is shown. Whether the plaintiff will seek to issue a subpoena in a proper form is a matter for him as he may be advised.
29 The plaintiff's Notice of Motion is dismissed with costs. On the bank's motion the subpoena issued to Mr Ireland is set aside. The plaintiff is ordered to pay the bank's costs of its motion. For the purpose of costs assessment it is noted that both motions were dealt with in a single hearing.