(k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power."
15 Mr Rajski says that the evidence which he now seeks to tender, in particular the letter dated 25 November 2002, is evidence of a communication between parties in the dispute, in connection with an attempt to negotiate a settlement of the dispute, but that that document is not excluded from admission into evidence by virtue of s.131(2)(c) and (g.)
16 It seems to me that s.131(1) and (2) of the Evidence Act are concerned with the exclusion from and admission into evidence generally of matter which may otherwise attract the principles of the common law relating to "without prejudice" communications between parties made for the purposes of negotiating settlement; they are not intended to apply to the special process of settlement negotiation provided by a mediation ordered by the Court under the provisions of Pt 7B of the Supreme Court Act . Pt 7B contains its own rules as to the evidentiary use which may be made of what is said and done in and for the purpose of settlement negotiations in a mediation under that Part and, in my view, those rules override the general provisions of s.131 of the Evidence Act .
17 Mr Hill's third submission is that s.110P(4) and (5) cannot be intended to prohibit evidence of what happened at a mediation. So, for example, he says the Court would need to know whether a mediation commenced, whether it concluded, and whether it concluded successfully or unsuccessfully. For that purpose there must, he says, be some limitation upon the broad words of s.110P(4) and (5).
18 While the Court would obviously need to know whether a mediation has concluded successfully or unsuccessfully I think that, absent consent under s.110K(6)(a), the means by which the Court becomes aware of that circumstance are as provided in s.110Q(b) or by the very fact that, after a reference to mediation, the parties appear in Court to announce either that the proceedings are to be disposed of by consent orders or else are to proceed to trial. Beyond such a disclosure, which in any event could hardly be described as "evidence" in the proceedings within the contemplation of s.110P(4) and (5), it is not for the parties themselves, in my opinion, to tender in Court material for the purpose of giving their own versions, and competing versions at that, of what happened during the course of the mediation.
19 Section 110P(4) and (5) clearly prohibit the tender into evidence in any proceedings of a document prepared for the purposes of, or in the course of, or as a result of the mediation session; it seems to me that the letter of 25 November 2002 is, unquestionably, a document within that description. It is not a document which tells the Court what the result of the mediation was, as would a report to the Court by the mediator under s.110Q(b). It is a document tendered in aid of proving in proceedings seeking the extension of the mediation a contested version of what was done at the mediation and why.
20 There is a problem, I concede, with applying s.110(4) and (5) so as to exclude evidence as to what transpired at a mediation in all proceedings other than as provided in ss.(6). Section 110L provides that it is the duty of each party to proceedings referred to mediation under s.110K to participate in good faith in the mediation. Pt 7B of the Act does not prescribe what remedy is afforded either to the Court or to a party where another party to the mediation deliberately disobeys the statutory injunction to participate in good faith. Is the Court to be powerless to enforce the section? If not, by what evidentiary means is the Court to ascertain whether there has been deliberate disobedience? Is the Court to regard s.110L as having no consequences, punitive or otherwise, if it is flouted?
21 These are questions which, according to the argument which has taken place before me today, are not yet decided by authority. Nothing is said about these questions in Pt 7B of the Act or in the Supreme Court Rules which throws any light upon possible answers.
22 However, those observations are almost by the way, because Mr Hill does not submit that the Tectran interests have refused to participate in good faith, so far as I understand his submission. It may be that Mr Rajski makes that submission.
23 I come back to Mr Hill's submission as to the issues to be decided in this application and to the object of Pt 7B of the Act as I perceive it to be. I do not accept that whether the First to Fourth Defendants were justified in withdrawing from the mediation is an issue in itself. As I have said, it seems to me that the mediation process was intended to facilitate settlements between parties, not to provide them with another battleground. The issue which I have to decide is whether an order extending the mediation should be made in the face of opposition from the First to Fourth Defendants.
24 While an order may certainly be made referring parties to mediation, some of whom, if not all of whom, say it is pointless, nevertheless one can proceed only so far in compelling parties to mediate when there is no longer any realistic purpose in compelling them to do so.
25 I have not yet decided that question, and I am still to hear evidence as to the utility of a continuation of the mediation. But I do not think that it will be helpful, nor is it permissible, nor is it within the spirit and intendment of Pt 7B of the Act, that for the purpose of answering that question, I allow the parties to conduct, as they presently propose to do, four days of hearing in this Court in which what transpired in the mediation is the subject of allegation and counter allegation for the purpose of determining who has acted reasonably or unreasonably, and who is at fault in the breakdown of the mediation process so far.
26 It seems to me, in addition, that even if the material which is directed to that purpose, and contained in various documents which the parties seek to tender, including the letter of 25 November, were admissible for that purpose, that material should be excluded pursuant to s.135 of the Evidence Act on the ground that the probative value of such evidence in relation to the real issue to be determined in this application is substantially outweighed by the danger that the evidence would either be confusing within subparagraph (b) of the section, or else would cause or result in undue waste of time within the meaning and operation of subparagraph (c) of that section.
27 I say that the evidence may be confusing because, as seems clear from what has transpired so far, Mr Girard consents to the tender of certain material, but not to the tender of other material. He says that if he consents to the tender of certain material, that material can be admitted pursuant to s.110P(6)(a). But he says he is nevertheless entitled to object to other material, and that if he does object to that other material, it cannot be admitted.
28 That argument, in my opinion, demonstrates the unreality of this sort of exercise. Obviously if that submission be correct, and if that sort of result may be permitted under s.110P(6)(a), the Court will be presented with a very selective picture of what happened at the mediation, and that is likely to confuse at the very least, if not lead at worst to a substantial miscarriage of justice.
29 The second and more powerful reason is that such evidence should be excluded because an investigation, and a "finger-pointing exercise" in particular, as to what went wrong with the mediation in the past will, in my view, result in an undue waste not only of time but also of the Court's resources. The parties will either achieve a voluntary settlement of their disputes, or they will not. At the end of the day, parties who are unable to resolve their disputes voluntarily by extracurial procedures are entitled to have their dispute determined by the Court. It is not the function of the Court to drive litigants from its doorstep and to compel them to resolve their disputes elsewhere when it has become clear that they cannot. The Court can compel them to enter into negotiations within the process afforded by Pt 7B of the Act, but there comes a time when the Court must determine whether, the mediation process not having reached a successful conclusion, there is any utility in continuing the mediation.
30 I have not yet, as I say, determined that issue in this case, but it seems to me for the reasons that I have given, that I cannot and should not admit the document which is tendered at "H" of Mr Rajski's bundle, being the letter dated 25 November 2002.
31 I suspect that the reasons which I have given at some length here will apply to a great many of the other documents in the tender bundle, but I will leave each document to be tendered and to be ruled on separately, if that is the course which the parties desire to take.
32 For those reasons, I will refuse the admission of the letter of 25 November 2002. The letter of 22 November 2002, which is attached to the letter of 25 November 2002, was not objected to by Mr Girard. I think that this letter should be excluded on the discretionary ground under s.135 of the Evidence Act both under subparagraphs (b) and (c). It is a letter which gets further into the debate as to the conduct of the mediation, which I do not think is permissible, and if admitted on its own even with Mr Girard's consent, it may very well tend to produce a distorted picture of the events which are in contest.
33 At the request of Mr Rajski, I will give my reasons for not accepting some of his submissions to which I have not expressly referred earlier in this judgment.
34 Mr Rajski drew attention to s.110P(2)(b) and (3)(b) of the Supreme Court Act . Mr Rajski contended that those provisions contemplated that documents relating to a mediation may be produced "at the court … for the purpose of enabling a mediation session ... to be arranged" . He said that the motion before the Court today was an endeavour on the part of himself and his interests and the Defendants represented by Mr Hill to arrange a mediation session within the meaning and operation of s.110P(2)(b). He said therefore that the documents must be admissible in court for that purpose.
35 I am unable to accept that submission. In my view s.110P(2) and (3) are concerned with affording privilege with respect to defamation proceedings relating to anything said or done in the course of or for the purpose of a mediation. Subsection (2)(b) is concerned to afford protection to communications or documents produced in a situation which might otherwise not attract privilege against defamation because they are documents or communications produced before the mediation has actually commenced. Subsection (2)(b), in my opinion, is simply designed to extend the privilege against defamation in that circumstance.
36 In the present case we are concerned with a mediation which is already on foot; it has not been brought to an end because its operation was extended by the order of Windeyer J on 19 December 2002. When a mediation has been ordered, s.110P(4) and (5) afford complete protection in respect of the things said and done in the mediation and the documents produced for the purposes of the mediation, including protection against defamation proceedings. That is the situation with which the Court is dealing in the present motion. I do not think, therefore, that s.110P(2)(b) and (3) have any present application.
37 Mr Rajski's second submission was that there had been an implied consent to the tender of the letter of 25 November 2002 because it was included in an affidavit sworn by Mr Thomas, the solicitor for the First to Fourth Defendants, and filed in these proceedings. Mr Girard made it clear to the Court that that affidavit would only be read and relied upon if other material was admitted upon the tender of Mr Rajski over his objection founded on s.110P. Otherwise it would not be read at all, so far as I understood Mr Girard.
38 It seems to me, therefore, that there has not been a consent to the admission of the evidence tendered by Mr Rajski within the meaning of s.110P(6)(a). The affidavit evidence of Mr Thomas was filed, it seems, only to put before the Court certain other evidence should the material tendered by Mr Rajski be admitted without the consent of the First to Fourth Defendants.
39 In any event, for the reasons which I have set out earlier in my judgment, even if the affidavit of Mr Thomas had been read or sought to be read, I would probably have rejected that affidavit in the exercise of discretion under s.135 of the Evidence Act for the reasons which I have already given. It seems to me, as I say, that the Court should not permit the process of mediation to become a further arena of conflict.
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