New South Wales Supreme Court CITATION : Rajski & Anor v Tectran Corporation Pty Limited & Ors [2003] NSWSC 477 HEARING DATE(S) : 26 to 28 May, 2003 JUDGMENT DATE : 27 May 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Mediator's report admitted into evidence. CATCHWORDS : MEDIATION - EVIDENCE - whether and to what extent mediator's report as to what transpired at a mediation is admissible under s.110Q(b) Supreme Court Act. LEGISLATION CITED : Evidence Act 1995 (NSW) - s.135 Supreme Court Act 1970 (NSW) - s.110P Leszek Rajski - First Plaintiff Raybos Australia - Second Plaintiff Tectran Corporation Pty Limited - First Defendant Arunta Investments Pty Limited - Second Defendant G.B. Richardson - Third Defendant Gavemer Properties Pty Limited - Fourth Defendant B.P. Jones - Fifth Defendant P.F. Elser - Sixth Defendant W.R.D. Stevenson and the other persons listed in Schedule 1 to the Summons - Seventh Defendants PARTIES : M. Yerushalmy - Eighth Defendant M.F. Brinsden - Ninth Defendant G.J. Cole - Tenth Defendant D.B. Cowper - Eleventh Defendant Scitec Limited - Twelfth Defendant V.L. Wilkinson - Thirteenth Defendant N.R. Carson - Fourteenth Defendant R.A. Stephens and the other persons listed in Schedule 2 to the Summons - Fifteenth Defendants R.J. Bainton - Sixteenth Defendant D.J. Hill - Seventeenth Defendant FILE NUMBER(S) : SC 5137/00 In person - First Plaintiff COUNSEL : A. Girard - First to Fourth Defendants D. Hill - Fifth to Seventh Defendants In person - First Plaintiff SOLICITORS : K. Rudlow & Co - First to Fourth Defendants Minter Ellison - Fifth to Seventh Defendants Extempore 1 Mr Rajski and Mr Hill tender a bundle of documents which was filed in Court on 17 December 2002 under a cover page entitled "INFORMATION DISCLOSED TO THE COURT PURSUANT TO s110Q OF SUPREME COURT ACT – Lodged by Mediator". The following page contains the statement: "As the mediator appointed by the Court by Order of 10 September 2002 in relation to the mediation ordered by the Court by Order of 1 August 2002, I disclose the following information to the Court pursuant to section 110Q of the Supreme Court Act 1970." The page then goes on to itemise a number of attached letters and other items of correspondence passing between the mediator and the parties to the mediation. 2 Amongst the documents itemised are various directions issued by the mediator to the parties to the mediation and a document dated 16 December 2002 entitled "Mediator's Report on Progress with Mediation". Mr Girard objects to the tender on the ground that receipt into evidence of all of those documents is prohibited by s.110P(4) and (5) of the Supreme Court Act 1970 (NSW). 3 Yesterday, I gave a judgment in which I dealt with the question of tender by the parties to this litigation into evidence in this application of various documents produced in respect of the mediation. I considered the question in relation to one particular document, upon which a ruling was required. I concluded that it could not be tendered in evidence by Mr Rajski because the tender was prohibited by s.110P(4) and (5) and on the ground of relevance. Further, having regard to the issues before the Court, I relied upon the discretion conferred by s.135 of the Evidence Act 1995 (NSW) to exclude the material. 4 The document that has been filed on behalf of the mediator is, I think, in quite a different category from evidence which parties to the mediation seek to tender in any proceedings, including proceedings such as the present. 5 A mediator is appointed by the Court in order to assist the Court in the administration of justice: the mediator facilitates the mediation process which Pt 7B of the Supreme Court Act provides as one means by which the speedy, efficient and just disposition of proceedings in this Court might be effected. 6 Section 110O makes it clear that the office of mediator is an important one. Mediators are appointed by the Chief Justice. This is so because those appointed act for the purposes of facilitating the Court's administration of justice, not as advocate for either of the parties. The function being fulfilled by a mediator under Pt 7B of the Act is, therefore, part of the administration of justice by the Supreme Court itself. 7 Section 110Q provides that a mediator may disclose information contained in connection with the administration or execution of Pt 7B only in certain specified circumstances. The opening words of s.110Q do not specify to whom such disclosure may be made, for the obvious reason that the various circumstances enumerated refer to different persons to whom disclosure may be made. To whom disclosure is permitted is deduced from the particular circumstances in which the disclosure is to be made. 8 Paragraph (b) of s.110Q permits disclosure by a mediator "in connection with the administration or execution of this Part" . The disclosure referred to there must include disclosure to this Court because this Court is charged with the administration or execution of Pt 7B of the Act. It is clear, therefore, in my opinion, that s.110Q permits a mediator to make a report to the Court pertaining to the progress of a particular mediation ordered under Pt 7B. It necessarily follows that the Court is permitted to receive and act upon that disclosure if the Court considers it in the interests of justice to do so. 9 It may be said that Pt 72C r7 of the Rules points to a contrary conclusion. That Rule, so far as is presently relevant, provides: "The mediator … shall, within 7 days of the conclusion of the mediation …, advise the Court of the fact that the mediation … has been concluded but not of the details thereof." 10 On one view, this Rule might suggest that a communication by the mediator to the Court is limited only to a statement as to whether the mediation has been concluded. I do not, however, regard the Rule as containing any limitation on the wide words contained in s.110Q(b). 11 Section 110Q(b) does not limit the material which the mediator may disclose "in connection with the administration or execution of this Part" . Circumstances may arise, as they have done in this case, where a mediation has not been concluded, but there is a real question as to whether there is any utility in continuing it. I do not see any reason why the mediator should not assist in the Court's administration of Pt 7B by stating his views on that topic. It may be that in the course of stating his views material will be disclosed to the Judge which would have the effect of disqualifying that Judge from determining the case, if the mediation does not result successfully and the matter must go to trial. Those are consideration of which account can be taken when it comes to determining if, and by what means, a trial should proceed if a mediation has been unsuccessful. Those considerations do not, however, in my opinion, of themselves limit the scope of the matter which a mediator may report to the Court, if he or she thinks it proper to do so, in order to assist the Court to administer Pt 7B. 12 Accordingly, in my view, the provisions of s110P(4) and (5) do not apply to a report or to information which is sought to be disclosed to the Court by the mediator under s.110Q(b). Section 110P(4) and (5) apply only to the tender by parties themselves, or others apart from the mediator, of material derived from a mediation session. 13 In my view, a report by the mediator to the Court under s.110Q(b) is not only admissible in proceedings relating to the administration of Pt 7B of the Act but, as a general rule, it ought to be admitted: it is a document to which the Court, generally speaking, ought to have regard where a matter arises which calls for the supervision of the Court in a particular mediation. Whether such a report is relevant or helpful or unduly prejudicial are amongst the considerations which will determine whether it is admitted in each particular case. 14 In particular, the fact that a report by the mediator is admitted into evidence in an application such as this does not necessarily make every matter which is referred to, or every document which is included in that report, a ground for contest between the parties, if they so desire. As I say, there are still questions of relevance and utility to be considered. There is still a question whether debate on issues raised in documents included in the report will produce the tender of evidence which should be excluded under the general discretionary ground conferred by s.135 of the Evidence Act . 15 In the present case, I admit the document entitled "INFORMATION DISCLOSED TO THE COURT PURSUANT TO s110Q OF SUPREME COURT ACT – Lodged by Mediator" and filed on 17 December 2002. The document, and all of its attachments, will be Exhibit P5. The admission of that document into evidence does not necessarily mean that any evidence tendered to counter what is said in the mediator's report of 16 December 2002 or in any of the other documents comprised in Exhibit P5 will necessarily be admitted, for the reasons which I have just given and which I gave in my judgment yesterday. – oOo – Last Modified: 06/02/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.