MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council [2010] NSWSC 242 | Case summary

JUDGMENT (on further directions to progress the matter, including mediation - see T262) 1 JOHNSON J: The hearing of these proceedings commenced before me last Monday, 22 March 2010. The background to the proceedings may be found in my judgment on 23 March 2010 with respect to an application by the Plaintiffs to amend the Statement of Claim, an application which I refused. 2 The hearing came before the Court with a five-day estimate. The fifth day has been reached and the hearing has, in real terms, barely commenced. The hearing will not continue at this time. It will not resume until such time as there is sworn evidence from the solicitors on both sides that there has been complete compliance with all orders that will be made, accompanied by a sworn statement that the matter is ready to proceed and an entirely accurate estimate as to the expected duration of the balance of the hearing, supported by an explanation as to how that conclusion has been reached. 3 All litigants before this Court bear an obligation as reflected in s.56 Civil Procedure Act 2005. I have referred to that section already in my earlier judgment. It will be apparent that this litigation, if contested to what could accurately be described as its bitter end, will be protracted, time consuming, stressful for all participants and very costly. 4 There is no certainty in the outcome of litigation. On the one side in this case there are Plaintiffs, a company and a citizen who (I am told) are effectively of very limited means, a topic touched upon in my first judgment (at [8] and [10]). On the other side, there is a public authority funded by public moneys and ratepayers. 5 It has been foreshadowed that witnesses will be subject to strong challenge as to matters of credibility and reliability. Perhaps unusually, the Plaintiffs in this case intend to call the serving Deputy Mayor of the Defendant, Mr Bob Westbury. The nature and extent of challenge to the evidence of Mr Westbury remains to be seen. It is, on the face of it at least, an unusual feature of this litigation. 6 At some point in this litigation, when all is said and done and judgment is given, the question of costs will need to be considered. In civil proceedings, costs as a rule, follow the event. Section 98 Civil Procedure Act 2005 and the relevant provisions of the Uniform Civil Procedure Rules (Part 42) come into play. It remains, of course, a question of the exercise of the Court's discretion and s.56 Civil Procedure Act 2005 comes into play as well. I have indicated (see T2 and elsewhere) that there will be very live questions as to costs when this litigation is completed. There can be no expectation that costs will automatically follow the event, or that costs will automatically follow the event in their entirety. 7 This case was listed with a five-day estimate. The effect of that estimate is that the long case management procedures in the Common Law Division, which would have been applicable if a longer estimate had been given, have not applied. There have been, in my view, significant gaps in the preparation of the matter for trial which have affected its interlocutory phase, and certainly the conduct of the hearing. Because of that, I will seek to remedy, through case management, these aspects of the matter before any hearing is resumed. 8 All litigants before this Court (including those whose cases are being heard and are waiting to be heard) are entitled to assume that cases are running in accordance with proper estimates, reached after a considered assessment of the real issues in dispute. 9 The point has been reached in this litigation where I am to give a decision next week on an area of objection to evidence. I have also been asked to give further directions, which will involve significant additional work by individuals and lawyers involved with the relevant parties or retained by them. Costs will continue to mount and, no doubt, mount steeply. It is my expectation (doing the best I can) that any resumed hearing of this matter will require at least a further five days. I may be proved wrong, but I am not feeling optimistic in that respect. 10 All of this is a preamble to this issue. If this case had been given an estimate of more than five days so that it came before a Judge under the long case management system, one of the very first issues that would have been raised with the parties would be the question of mediation. Parties cannot be forced to settle their disputes. Ultimately, if they cannot be otherwise resolved, a Court will decide them. I stand ready to resolve this dispute which is already part heard before me. 11 However, part of the contemporary approach to civil litigation is an understanding by parties and their legal representatives of the utility of mediation. I am not saying anything that the lawyers in the room do not already know. 12 The legal representatives of both sides to the litigation are present. I note that the Second Plaintiff is present. I understand there is no officer of the Defendant in Court. 13 Section 26 Civil Procedure Act 2005 empowers the Court, if it considers the circumstances appropriate, to order or refer proceedings for mediation, and that may be done either with or without the consent of the parties to the proceedings (see also Practice Note SC Gen 6 concerning mediation). If there is a reference to mediation, s.27 provides that it is "the duty of each party to proceedings that have been referred for mediation to participate, in good faith, in the mediation". Even hotly contested civil litigation can be subject to mediation. 14 The Plaintiffs, through Mr Toomey QC, have indicated a willingness to mediate. Mr Joseph SC for the Defendant, has indicated that such an approach is neither opposed nor consented to. 15 In circumstances where this litigation has a long way to travel, and where there are issues of the type which I have raised, including uncertainty as to outcome, the prospect of findings concerning credibility and reliability of a number of persons and uncertainty as to costs outcome (let alone the ability to recover costs), it seems to me that the matter is ripe for mediation, as I suspect it was a long time before the hearing commenced last Monday. 16 If this matter had come before me for long-case management before trial, I would have raised the issue of mediation with the parties. If the parties had not agreed to mediation, it would have been my expectation that the power under s.26 would have been utilised. Of course, things have moved on. I am, in a sense, now case managing the matter half way through the hearing. 17 What I propose to do is this. When the matter comes back before me next Wednesday, I will ask the parties what their attitude is to mediation. I will direct that a copy of this judgment be provided to the parties so that it can be provided, in terms, to the Defendant to allow Mr Joseph SC to take specific instructions. I look forward to the response from the parties next Wednesday on the specific issue of mediation. 18 I will, of course, give my decision next Wednesday and I will make further orders to progress the matter. If mediation is to occur, then a question may arise as to when it should take place. I should indicate that I may make an order for mediation, even if both sides do not consent to it. I will consider that issue again next Wednesday. 19 The purpose of these comments is to focus the minds of the parties (and their witnesses) as to the practical realities of this litigation, so that there is an opportunity now to consider these issues given the interlude which will occur in the litigation. 20 The order I make is that the proceedings are adjourned part heard before me until 10.00 am on Wednesday, 31 March 2010. At that time, I will give judgment on the evidentiary objection which has been argued. I will inquire at that time as to the formal response of the parties on the question of mediation, and I will give further directions, subject to any further submission that is put by reference to the issue of mediation. 21 The litigation will progress. It will proceed to a resumed final hearing before me if that is what is necessary to conclude it. When that can occur will depend upon other listings, criminal and civil, involving litigants who have had their cases listed for some time. This matter will not assume any priority because of the fact that it got a start this week. If not otherwise resolved, it will only resume when it is ready. **********

MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council

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Judgment (11 paragraphs)

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