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Defendant’s application

5. There are two applications before me seeking leave for AVL appearance at the mediation. The first is an application seeking leave for the representative of the Trustees of the Marist Brothers (the Marist Brothers), Mr Dominic Pagano, to appear via AVL link for the purposes of the court ordered mediation. The Marist Brothers are legally represented by Carroll and O’Dea Lawyers in the proceedings, and I understand Mr Pagano is the person authorised to provide instructions on behalf of the Marist Brothers with a view to resolution of the claim.

6. An affidavit of Simon Rigby, solicitor, from Caroll and O’Dea Lawyers sworn on 29 June 2026 is read in support of the application. The request for leave arises primarily because of paragraphs H and I of the usual orders for mediation which provide: H. Save in exceptional circumstances, in-person attendance is required at mediations. Exceptional circumstances do not include a legal representative or party being based interstate. I. For the avoidance of doubt, insurers participating in a mediation are expected to have present in-person at the mediation a representative with the necessary authority to agree to settle the matter if agreement is reached, pursuant to Order 5 (eg. a Claims Manager).

7. Rule 1180 of the Court Procedures Rules 2006 (ACT) is also relevant as it obliges parties to take part in mediation genuinely and constructively.

8. The affidavit of Mr Rigby attests to the following matters in support of the request for leave for Mr Pagano to participate remotely: (a) There are a large number of proceedings in this Court involving allegations against Brother Chute, and in turn, the Marist Brothers. (b) Each of the identified matters, numbering 10 in total, involve the same senior and junior counsel and solicitors representing each of the plaintiffs. (c) Mr Pagano provides instructions in each of the matters. In the court ordered mediations in the identified matters conducted thus far, he has attended in person and in the others which were private mediations he has appeared remotely. (d) None of the matters have resolved. (e) Mr Pagano instructs in many similar matters in multiple jurisdictions in Australia. He lives and has his principal office in Sydney. (f) There is limited utility in his personal attendance relative to the disruption and inconvenience to his usual work and life activities.

9. The last sentiment expressed by Mr Rigby is not one I share. 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.

10. 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.

11. As the mediation orders expressly convey, exceptional circumstances are required for leave to attend mediation remotely. Exceptional circumstances do not include a party being based interstate. I am not satisfied disruption and inconvenience to Mr Pagano’s usual work and life activities as a consequence of being required to attend mediation in Canberra personally is of itself an exceptional circumstance. Plaintiff’s application

12. The application made on behalf of Mr Lindley was lodged on 16 June 2026 and is supported by an affidavit of Elena Mason-Cole affirmed on 15 June 2026.

13. Ms Mason-Cole attests to Mr Lindley’s current place of residence being California in the USA. She says he is not in a financial position to fund the significant cost of travel required to fly from the United States to Australia for the purpose of the court ordered mediation. She also refers to the significant stress such a trip would cause him.

14. As to financial capacity, the statement of particulars filed by Mr Lindley in the proceedings gives limited insight into his financial status. Reliance is placed in the statement of particulars on a forensic accountant’s report, but the report is not in evidence before me. Mr Lindley asserts he has been unemployed since around 2014. His extended period of unemployment provides some evidentiary basis for the assertions made in relation to financial capacity.

15. I note the proceedings are listed for hearing callover on 10 September 2026. The likelihood is a hearing date will be allocated in late 2026 or early 2027. For the purposes of the hearing, Mr Lindley will be required to travel to Australia and attend court in person. To impose upon an individual who has been unemployed for some 12 years an obligation to fund travel from the United States to Australia and return on two occasions in the space of perhaps six months does rise to the level of an exceptional circumstance. It is therefore appropriate to permit Mr Lindley to participate in the mediation via AVL. Where Mr Lindley is not attending in person, there appears to me to be little utility in imposing an obligation for personal attendance on the defending party as the benefits to be gained from direct personal interaction are already lost. I therefore consider it appropriate in this case to also permit Mr Pagano to participate in the mediation via AVL.

Orders

16. I make the following orders: (1) The plaintiff has leave to appear via audiovisual link for the purposes of the court ordered mediation at 9am on 15 July 2026. (2) The defendant’s representative, Mr Pagano, has leave to appear via audiovisual link for the purposes of the court ordered mediation at 9am on 15 July 2026. (3) The costs of the applications will be costs in the cause. I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.

Associate: Date: 8 July 2026