Woolley v Woolley [2008] ACTSC 58

2. The mother commenced proceedings in the Small Claims Court. She claimed $5,587.00. The largest component was an amount of $5,000.00 which she says she lent to her daughter to pay the stamp duty for the purchase of a house in Queensland in December 2004. Most of the balance of the amounts claimed are said to have been for items purchased by the mother for her daughter's house in Cooma, to complete it so that her daughter could let it to tenants. The mother also sought the return of what was described as a wedding album.

3. On 17 April 2008, the daughter filed an application in this Court seeking transfer of the proceedings from the Magistrates Court on the basis that she had a counterclaim for an amount exceeding $50,000.00. The application was supported by what was in form an affidavit, though in substance it was more like a pleading. In relation to the claim of $5,000.00 for stamp duty, she said that the stamp duty was only $2,185.00, and that "any money expended" was not a loan but a gift. She asserted that the $5,000.00 was not expended on the purchase of the Queensland house. In relation to the items claimed as purchased or provided for the Cooma house, although she denied receiving one minor item, her general defence was that these were gifts from her mother.

4. The daughter then made a counterclaim for "approximately, but not limited to, $80,000.00, the result of the theft of my daughter Madelaine's and my personal possessions, goods and chattels. Itemised list can be supplied on request."

5. Although there were no particulars of how the amount of the counterclaim was made up, when the application came before me on 2 May I was satisfied that there was a dispute between the parties which might result in a judgment for an amount in excess of $50,000.00, and hence that it was in the interests of justice to remove the matter into this Court. I ordered accordingly, and stood the matter over to 23 May.

6. In the interim I made enquiries, and provisionally resolved to refer the dispute to the Conflict Resolution Service Incorporated, an approved agency under the Mediation Act 1997, for mediation. The Conflict Resolution Service is a not-for-profit community organisation which provides advice and mediation in relation to the management of conflict in the ACT community. The CRS is supported by the Department of Justice and Community Safety and also by the Department of Disability, Housing and Community Services of the ACT Government, and specialises in neighbourhood and family disputes. The CRS makes no charge for mediations involving family members. I formed the view that this service was ideally suited to a dispute between a mother and daughter.

7. When the matter came before me again on 23 May, the mother did not appear. The daughter appeared and sought leave to file in court three further affidavits, which I granted.

8. The daughter informed me that her mother had left the address at the caravan park, and said that she was unaware of her mother's whereabouts. I told the daughter that I would give consideration to what orders I should make, and would reserve my decision in that regard. I said that, the mother not having appeared and there being no explanation for her absence, I was minded to dismiss her claim against the daughter.

9. The daughter informed me that she was leaving Canberra and moving to Queensland almost immediately. She gave me a street address, an email address and a mobile telephone number on which she could be contacted.

10. Six days later, on 29 May, the mother left with the Court a handwritten document addressed to me, in which she purported to give an explanation for her absence. She said that because of a hearing deficit she had not understood that I had stood the matter over to a specific date. She also said that she had found her appearance in court emotionally distressing. She said that she was "willing to return the goods to my daughter." She said that at the same time she felt that it was her daughter's obligation to repay the money she owed, and to return the wedding album, which apparently related to the mother's wedding to her late husband, and the daughter's father. In this document, the mother did not provide any address, or make any reference to having moved from her address for service at the caravan park, although some days later she telephoned my chambers and left a mobile telephone number with my Associate. She confirmed that the caravan park address was her permanent address but said that she had sublet it, or was in the process of doing so. She did not say where she was living, or provide any other contact details.

11. At this stage I have heard no oral evidence. No formal defence or counterclaim has been filed. No affidavits have been filed on behalf of the mother. This does not imply any criticism of the mother: there has been no direction for filing of affidavits.

12. There have been three affidavits filed by the daughter, one affirmed by the daughter herself, another by Trevor Woolley, a brother of the daughter and a son of the mother; and the third by Catherine Wassink, the owner of C & C Self Storage at Cooma. I am unable to tell from the affidavits whether Ms Wassink is related in some way to the mother and daughter, although there is a hint in her affidavit that this may be the case.

13. The daughter and her brother Trevor depose to the death of their father in November 2007. It is clear that there has been a rift between family members, in which Trevor sides with the daughter.

14. The gist of the daughter's complaint is that, as she asserts with Trevor's support, her mother, without permission, took certain of her belongings from a storage unit at Ms Wassink's premises. Ms Wassink in her affidavit confirms that items were removed from the storage unit by the mother but her evidence does not assist as to the ownership of those items.

15. The daughter has prepared a list of items, to each of which she has attributed a value, the total coming to $80,071.00. There is no evidence on the basis of which I could be satisfied that the value she has placed on any item represents its present value.

16. The present dispute is not one to which the processes of this Court are well suited. Neither of the parties has any familiarity with the Court Procedures Rules 2006 or the Evidence Act 1995 (Cth). The affidavits filed by the defendant contain much inadmissible material and much that is argumentative and tendentious rather than setting out facts of which the deponent is capable of giving evidence.

17. It seems to me that this is the kind of proceeding ideally suited to mediation, despite the fact that it seems to me extraordinarily unlikely that the parties would agree to, still less arrange for, mediation unless ordered to do so by the Court. The powers of the Court as to mediation are set out Division 2.11.7 of the Court Procedures Rules. Rule 1179 empowers the Court, by order, to refer a proceeding for mediation on its own initiative, the mediation to be undertaken by a mediator appointed by the Court. Under rule 1177 the mediator is required to be a registered mediator under the Mediation Act 1997. Rule 1180 imposes on each party a duty to take part, genuinely and constructively, in the mediation. The costs of the mediation are payable by the parties, either in proportions they agree amongst themselves, or as ordered by the Court: rule 1181. Under rule 1182, the Court may make orders to give effect to any agreement or arrangement between the parties arising out of a mediation session.

18. It may be that a mediation of this dispute will not succeed in resolving it, but it seems to me very much the kind of matter where the Court should order mediation of its own initiative. Further proceedings in relation to the claim and counterclaim should be stayed until the mediation process is complete.

19. I propose to make orders accordingly, and to provide copies of these reasons to the parties and to the Conflict Resolution Service.

20. It appears to me from a reading of rule 1177 that the person who undertakes the mediation is required, not only to be a registered mediator under the Mediation Act 1997, but also to be appointed by the Court as a mediator. When the Conflict Resolution Service has identified the appropriate registered mediator to undertake this mediation, I propose to appoint that person as a mediator for the purpose of rule 1177.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.