Johnston v Johnston [2004] NSWSC 497

New South Wales Supreme Court

CITATION : Johnston v Johnston [2004] NSWSC 497 HEARING DATE(S) : 07/06/04 JUDGMENT DATE : 7 June 2004 JURISDICTION: Equity Division JUDGMENT OF : Barrett J DECISION : Compulsory mediation ordered

CATCHWORDS : PROCEDURE - Family Provision Act claim - evidence complete - whether order for compulsory mediation should be made LEGISLATION CITED : Supreme Court Act - s.110K Higgins v Higgins [2002] NSWSC 455 Morrow v Chinadotcom Corp [2001] ANZ ConvR 341 CASES CITED : Roy v Roy [2004] NSWSC 463 Singh v Singh [2002] NSWSC 852 Yoseph v Mammo [2002] NSWSC 585 PARTIES : Monica Muriel Johnston - Plaintiff Geoffrey Richard Johnston - Defendant FILE NUMBER(S) : SC 2487/03 COUNSEL : Mr J M Patey - Plaintiff Mr J A Trebeck - Defendant SOLICITORS : T D Khouri - Plaintiff Fisher Nash Morgan - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

MONDAY 7 JUNE 2004

2487/03 – MONICA MURIEL JOHNSTON v GEOFFREY RICHARD JOHNSTON

JUDGMENT

1 By a notice of motion filed on 7 May 2004 the defendant seeks an order that the proceedings be referred for mediation in accordance with s.110K of the Supreme Court Act. 2 The proceedings are proceedings under the Family Provision Act. The plaintiff is the widow of the deceased. The defendant is the plaintiff's stepson and the executor of the will of the deceased. The estate consists very largely of the deceased's house which, under the will, is to pass to the plaintiff and defendant as tenants in common in equal shares. The plaintiff claims further provision out of the estate. 3 The proceedings have reached the point where all evidence has been filed so that the issues and the nature of the estate are now clear. It is in those circumstances, in the defendant's submission, that the proceedings become ripe for an attempt at resolution through mediation. 4 It is relevant to record that an offer of compromise was made by the plaintiff in October 2003. That was a relatively early stage in the proceedings, so far as the evidence is concerned, and matters are much better defined now than they were then. 5 The offer of compromise was expressed to remain open until 17 November 2003. There was no response by the defendant to the offer of compromise. This circumstance, in the plaintiff's submission, shows that the defendant has not been interested in reaching a settlement of the proceedings. There was no counter proposal by the defendant by way of offer of compromise and the plaintiff's position is that the defendant has not shown an interest in pursuing settlement negotiations. 6 The defendant, in his affidavit, refers to the relationship between the parties. He says that for many years he had a good relationship with the plaintiff and he believes that there is a fundamental feeling of goodwill between them which could assist in resolving the proceedings on a mutually generous basis, without the necessity of court proceedings. He goes on to say that he believes that if the parties were able to meet together in mediation, the presence of an independent experienced mediator would tend to minimise the effect of subjective or emotional considerations which might otherwise intrude. He says that with the guidance of a mediator they would be able to put their respective positions clearly and directly to each other and they would be able to communicate their concerns and the reasons for the proceedings and they would be clearly able to identify their objectives in respectively pursuing and defending the proceedings. He says if they were able to do these things, he believes that there are better than reasonable prospects of the parties amicably resolving the proceedings on a mutually satisfactory basis without the cost and expense of a court hearing. 7 The plaintiff says, in addition to making the submissions about the apparent unwillingness of the defendant to engage in settlement negotiations, that the proceedings are at the stage where a hearing date should be allocated in the next Master's callover and there is really no point in spending further time and money on mediation when the matter could just as easily proceed to a hearing. 8 In my opinion this is a matter in which the Court should compel the parties to engage in mediation. That conclusion is more readily reached in some contexts than in others. In Morrow v Chinadotcom Corp [2001] ANZ ConvR 341 I did not regard it as appropriate to order mediation where the parties were sophisticated commercial concerns, dealing at arm's-length, in a normal business environment with objectivity sufficiently intact to enable them to see clearly, with the help of their lawyers, where their best interests lay, so far as resolution of proceedings was concerned. At the other end of the scale are the several cases in which mediation has been ordered in what are essentially family disputes. Higgins v Higgins [2002] NSWSC 455, Singh v Singh [2002] NSWSC 852 and Yoseph v Mammo [2002] NSWSC 585 are examples of such cases. It has been recognized in such cases that where parties stand in a family relationship in which respect and affection have prevailed, there is more of an expectation that they may benefit from being helped to find a solution. 9 I have been referred also to the decision of Campbell J in Roy v Roy [2004] NSWSC 463 where his Honour declined to make an order for compulsory mediation in a family context, observing that there was still a fair amount of work which needed to be done to get to a stage where all the evidentiary basis for a mediation was available. In coming to his view, Campbell J said that he was by no means saying that the case was one which was intrinsically not suited for mediation; all he was saying was that he was not prepared to exercise a discretion at that particular stage to require it to be mediated. 10 In this case, by contrast, the evidentiary base is complete. The defendant, in his affidavit, shows that he bears considerable goodwill towards the plaintiff who has been his stepmother for something of the order of 30 years since he was a teenage boy and with whom he says has had a good relationship throughout. 11 Parties who stand in that kind of relationship, one to the other, can benefit more than most from the assistance that can be brought to bear by an experienced mediator and by the creation of an opportunity for them to seek to resolve their differences themselves rather than have a resolution forced upon them by an adjudicatory process. 12 The proposal is that the mediation be conducted by a registrar of the Court. There is, accordingly, nothing to be incurred by way of mediator's fees and the parties will be exposed to additional expense only to the extent to which they choose to have their lawyers involved in the process. Given the nature and scope of the dispute, it cannot be imagined that the mediation would last more than a couple of hours at the most. The case is suitable for compulsory mediation. 13 I make order 1 in the notice of motion. 14 Costs of this application will be costs in the cause. **********