New South Wales Supreme Court CITATION : Hillig v Darkinjung Pty Limited [2008] NSWSC 409 HEARING DATE(S) : 28/04/08 JUDGMENT DATE : 28 April 2008 JURISDICTION : Equity Division Corporations List JUDGMENT OF : Barrett J EX TEMPORE JUDGMENT DATE : 28 April 2008 DECISION : Orders for compulsory mediation CATCHWORDS : PROCEDURE - mediation - one party opposes making of order for compulsory mediation - factors indicating desirability of mediation discussed CATEGORY : Principal judgment Peter Hillig in his capacity as administrator of Darkinjung Local Aboriginal Land Council - Plaintiff Darkinjung Pty Limited - First Defendant Jeffrey John Bradford - Second Defendant PARTIES : David Pross - Third Defendant Greg Flanders - Fourth Defendant George Watts - Fifth Defendant Michael Jones - Sixth Defendant FILE NUMBER(S) : SC 2842/06 Mr D A Smallbone/Mr J Cohen - Plaintiff COUNSEL : Mr D R Pritchard SC - Second Defendant Ms S G Callen - Third to Sixth Defendants Patrick Woods & Company - Plaintiff SOLICITORS : Henry Davis York - Second Defendant Norton White - Third to Sixth Defendants IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST BARRETT J MONDAY 28 APRIL 2008 2842/06 PETER HILLIG IN HIS CAPACITY AS ADMINISTRATOR OF DARKINJUNG LOCAL ABORIGINAL LAND COUNCIL v DARKINJUNG PTY LIMITED & ORS JUDGMENT 1 The residue of these long-standing proceedings concerns claims by the Darkinjung Local Aboriginal Land Council (or "DLALC") to have liability imposed on members of the board of directors of DLALC's wholly-owned subsidiary, Darkinjung Pty Ltd. That residue has been listed for hearing by the Corporations Judge for three days commencing on 21 May 2008. 2 By an interlocutory process filed on 4 April 2008, the second defendant, Mr Bradford (one of the directors), seeks an order referring the matter to compulsory mediation. The other natural person defendants join in supporting that application. 3 DLALC opposes the making of any such order essentially on the basis that DLALC has stated a clearcut position that it will not agree to discontinue the proceedings and that the matter can be resolved, if at all, only on the basis of the defendants consenting to judgment for the full amount sought. That attitude, it is said, shows that it would be futile to order mediation because the prospects of its achieving any positive result would be virtually non existent. 4 There are, however, a number of other matters that need to be noted. 5 The first of them is that there is a perception of strong antipathy between the first defendant, Mr Bradford, and Mr Hillig, who is the administrator of DLALC appointed under the Aboriginal Land Rights Act 1984. The correspondence that has been placed before me would suggest that strong antipathy exists but it is acknowledged on both sides that Mr Hillig's appointment as administrator will come to an end in a few days' time, so that, as from 2 May 2008, he will no longer be in office as administrator. 6 This gives rise to the second factor. From 2 May, the conduct of the affairs of the DLALC will be in the hands of the members DLALC themselves and a newly elected administration consisting of members of the relevant Aboriginal community. That to my mind is a very significant factor. In a few days' time, the decision makers within DALAC will be persons from the Aboriginal community to which the defendants also belong, or with which they are associated. That will potentially impart a new dynamic to any settlement negotiations. 7 A third factor is that Sir Laurence Street has agreed to provide his services for the mediation without charge and the defendants have obtained pro bono legal assistance, at least at solicitor level and potentially at counsel level as well. In saying that, however, I note that there is no requirement that any party be legally represented at a mediation and it is a matter for the party concerned whether they choose to have legal representation. 8 The aim of mediation is to break down entrenched positions where they exist. There seem to be entrenched positions here, but whether that will continue to be the case from 2 May 2008, I cannot tell. Mediation is a means not of determining who is right and who is wrong, or who has a strong case and who has a weak case, or whether one entrenched position is to prevail over another. It is a means of seeking to lead the parties to an agreed solution of one kind or another. 9 No-one is forced by mediation to settle or to accept any solution, although everyone does have a duty to negotiate in good faith. The process is one of structured negotiation with a requirement of good faith prevailing. 10 In the circumstances of this particular case with the community dimension to which I have referred, I am satisfied that mediation will play a potentially significant role in bringing the matter to a conclusion. Of course, it may not succeed in doing that. If that be the case, then there will be sufficient time for the parties to ready themselves for the hearing on 21 May. I note in this latter connection that Sir Laurence Street has indicated an available date of either 9 or 13 May. 11 This is a case in which it is appropriate to order compulsory mediation. 12 I make order 1 in the interlocutory process. 13 I grant liberty to apply on 48 hours' notice in the event that it does not prove possible for the mediation to occur on or before 13 May 2008. [Counsel addressed on costs] 14 I am satisfied that this application is, as it were, a step along the way towards final resolution of the proceedings one way or the other and by some means or other. I therefore order the costs of the application be costs in the cause. ********** 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. 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