BROWNING v. CROWLEY [2004] NSWSC 128

Reported Decision : (2004) DFC 95-292

New South Wales Supreme Court

CITATION : BROWNING v. CROWLEY [2004] NSWSC 128 HEARING DATE(S) : 03/03/2004 JUDGMENT DATE : 3 March 2004 JURISDICTION: EQUITY JUDGMENT OF : Bryson J at 1 DECISION : Order for compulsory mediation: see [7]

CATCHWORDS : PRACTICE and PROCEDURE mediation - compulsory mediation under Supreme Court Act 1970 s.110K - mediation was ordered in claim under Property (Relationships) Act 1984 where property of large value was involved, relationship had been lengthy and characterisation as De Facto Relationship as defined was disputed on clear basis - proceedings fully prepared and ready to take appointment for hearing. LEGISLATION CITED : Supreme Court Act 1970; s.110K PARTIES : Barbara Beryl Browning - Plaintiff Barry Phillip Crowley - Defendant FILE NUMBER(S) : SC 4620/2001 COUNSEL : R.D. Marshall - Plaintiff M.B. Evans - Defendant SOLICITORS : Short Flynn & Co. Wall Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

TUESDAY 2 MARCH 2004

4620/01 BROWNING v. CROWLEY JUDGMENT 1 HIS HONOUR: The plaintiff applies for an order referring proceedings to mediation under Supreme Court Act 1970 S 110K. The consent of the defendant to referral to mediation is not forthcoming. The proceedings arise on the plaintiff's claim under the Property (Relationships) Act; she alleges that there was a de facto relationship between the parties of 27 years standing. The property of any significance the subject of the claim is vested in the defendant. There is an issue about its valuation but I'm told that in the plaintiff's contention its value is in excess of $30 million; there are disputing valuers' reports on the properties or at least on some of them. 2 Proceedings were commenced in 2001 and preparations for hearing have reached a mature state; pleadings define the issues, each party has filed its affidavits and valuers' reports and it appears likely, subject to the claims of other cases, that a hearing date will be fixed at a callover on 10 March 2004. 3 Because of the complexity of the issues it appears to me that the estimate made by plaintiff's counsel that the hearing may be in excess of 3 weeks is a realistic one. Each side will be represented by senior and junior counsel. Plainly the parties have had a long-standing personal relationship but the defendant disputes on fully and clearly stated grounds that the relationship falls within the statutory definition of a de facto relationship. Clearly there is much to dispute on this subject and the hearing will involve elaborate examinations of the parties' conduct and of the perception by others of their relationship, dealing with the events of many years. 4 The issues are redolent with complexity, notwithstanding that the defendant fully and on a clear basis disputes the plaintiff's claim. There are also issues about whether there were any contributions of substance by the plaintiff and as to their classification as contributions to the assets of the defendant. On the face of things there has not appeared to me to be much room for middle ground; there is not much about the issues that suggests that there are questions of fact and degree and nice choices for the Court about establishing where along a spectrum the correct position lies. Even so, there may be room for compromise. 5 A number of factors have suggested to me that the Court ought to decide in favour of compulsory mediation. One group of factors relates to the complexity of the issues, the amount of costs likely to be incurred, the amount of time of the Court (at the expense of the public) which is likely to be engaged, the burden of costs and also the burden of personal attendances on the parties associated with the contemplated hearing. While the expense of a mediation cannot be disregarded, and there is a clear prospect that it may be incurred without result, it is relatively small in relation to what the parties are likely to be embarking on if the case goes to hearing. Experience favours mediation in cases arising out of long-standing personal relationships as this plainly is, however the relationship ought to be classified. 6 Even in cases where, as in this case, there is a large gulf between the parties' positions, which are clearly defined in a way which does not seem to allow for compromise, experienced teaches that mediations have in a recognisably significant number of cases produced results with which the parties are prepared to agree. I have a general view that there is a public interest in relatively peaceable resolution of conflicts. I do not think the question under s 110 K should be approached in any great spirit of optimism as there is much experience of mediations producing no results; on the whole however experience favours the view, particularly in large cases such as this, that the process is useful and contributes to the advancement of justice. 7 In the circumstances I consider it appropriate to make an order under s 110 K subsection (1) and have decided that I should do so. It remains to identify the mediator. I think I should at this point go no further than state my decision to make an order of reference and leave it with the parties for a short time to consider whether they can agree on the identity of a mediator before I embark, as I propose to do tomorrow if there is no agreement, on procedures under the joint protocol for a mediator to be identified without the parties' agreement. So the matter will be before me for directions again at 10 am tomorrow.