New South Wales Supreme Court CITATION : Mallick v McGeown [2008] NSWSC 1107 HEARING DATE(S) : 13 October 2008 JURISDICTION : Common Law JUDGMENT OF : McCallum J EX TEMPORE JUDGMENT DATE : 13 October 2008 LEGISLATION CITED : Civil Procedure Act 2005 CATEGORY : Procedural and other rulings CASES CITED : Unconventional Conventions Pty Ltd v Accent Oz Pty Ltd [2004] NSWSC 1050 Robin Mallik (Plaintiff) PARTIES : William McGeown (1st Defendant) Hunter Valley Independant Newspapers (2nd Defendant) Russel Hawkins (3rd Defendnant) FILE NUMBER(S) : SC 20254/06 Mr A R Lang (Plaintiff) COUNSEL : Mr P Beazley (Sol) (1st & 2nd Defendants) Ms D V Robinson (3rd Defendant) Harris Wheeler Lawyers (Plaintiff) SOLICITORS : Beazley Singleton Lawyers (1st & 2nd Defendants) Philip Watson Pty Ltd (3rd Defendant) - 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCALLUM J 13 OCTOBER 2008 20254/06 ROBIN MALLIK v WILLIAM McGEOWN & ORS JUDGMENT 1 HER HONOUR: These proceedings have a lengthy and unhappy history which is recorded, in part, in a number of interlocutory judgments I have given since the beginning of the year, the first being my ruling on an application by the plaintiff to dispense with a jury in which I gave judgment on 25 February 2008, and the second being an application involving a number of interlocutory disputes on which I gave a judgment on 19 June 2008. 2 These reasons are given against the background recited in those judgments. 3 On the last occasion when the proceedings came before me I granted leave to the parties to approach the List Office for the allocation of a hearing date. That was on 24 July 2008. 4 I also stood the proceedings over before me for directions today because it seemed prudent to ensure, having regard to the history of interlocutory disputes between the parties, that there were no further matters required to be resolved from a case management point of view before the hearing of the matter. 5 This morning when the proceedings came before me I was informed that, in fact, the parties had not obtained a hearing date from the List Office. In part the reason the parties did not take a hearing date was that they wished to participate in settlement discussions. 6 Nonetheless, I was surprised and disappointed to find that no hearing date had been sought or obtained by the plaintiff by any actual communication with the List Office. 7 In those circumstances the third defendant, Mr Hawkins, has moved the Court today for an order under s 26 of the Civil Procedure Act 2005 referring the proceedings for mediation. 8 The plaintiff opposes that order. 9 The principal basis on which the order is opposed is that it is submitted that the mediation would be futile. 10 There have been two earlier formal attempts to resolve the proceedings. The first was a mediation held on 5 March 2007 before a Registrar Mediator, Deputy Registrar Siva of this Court. That mediation went for about one and a half hours. It was unsuccessful. 11 The second formal attempt by the parties to resolve the proceedings occurred after I referred the proceedings to the List Office. Those negotiations were not, however, conducted with the assistance of a mediator but rather by means of a settlement conference conducted on 26 August 2008 between the plaintiff and Mr Hawkins at the premises of the solicitor for the plaintiff. Counsel did not attend those negotiations and there was no other independent facilitator in attendance. 12 Mr Lang, who appears for the plaintiff today, has submitted that in circumstances where there has already been a mediation I should be slow to order a further mediation over the plaintiff's objection. 13 He relied on the decision of Hamilton J in Unconventional Conventions Pty Ltd v Accent Oz Pty Ltd [2004] NSWSC 1050 where at paragraph 3 His Honour stated that: "the Court ought not lightly order a second compulsory mediation in a matter in which one has already taken place". 14 In that decision, Hamilton J noted that the circumstances in the matter before His Honour had changed very considerably since the last mediation had taken place. Among other factors, His Honour referred to the financial position of two of the parties, and the fact that there had been a judgment on an application concerning interlocutory relief. His Honour mentioned those matters: "... to demonstrate that a great deal of water has flowed under the bridge since the first mediation was held, perhaps sufficient for a compromise to be reached in the framework of a mediation on this occasion which was not possible before". 15 In my opinion there are a number of factors which militate in favour of ordering a second mediation in the present case. 16 First, the previous formal mediation was conducted over 18 months ago and was not conducted, as is presently the proposal, by a senior, experienced practitioner but by a Registrar of the Court. That is not to derogate from the ability of Registrars of the Court who are often successful in resolving matters by a Court ordered mediation. Nonetheless, it is generally accepted that some mediators are better at 'knocking the parties heads together' than others. 17 In my opinion the proposal to have a mediation conducted with the assistance of Mr Fitzgerald is, in itself, a changed circumstance. 18 Further factors which have changed since that mediation include the worsening health condition of the first defendant, the fact that the parties are now looking down the barrel of a six week jury trial, and the fact that other interlocutory decisions have been made since the last unsuccessful mediation. 19 Secondly, the settlement conference, although recent, was not conducted with the assistance of any independent facilitator, nor were counsel present. 20 For that reason, I do not think the failure of those negotiations is necessarily a factor that weighs against ordering a mediation. 21 Thirdly, as I have already indicated, the current estimate for the hearing is six weeks with a jury. The recent experience of this Court is that all issues jury trials in defamation matters generally take longer than the time estimated by the parties. 22 The likely burden to the taxpayer of this trial being conducted on a fully contested basis and the legal professional costs of those parties that will be represented at the hearing are quite disproportionate to the likely quantum of damages if the plaintiff is successful, having regard to the fact that the publications relied on are publications in a local newspaper and the imputations, whilst serious, are not those that would be regarded as being at the very top end of the calendar of seriousness in defamatory imputations. 23 The estimates of legal professional fees set out in the affidavits relied on at this hearing disclose that the costs will be very high indeed. 24 That seems to me, on its own, to be an incentive for all of the parties to resolve the proceedings out of Court if they are able. 25 The final matter to which I have regard in favour of granting a mediation is the fact that s 27 of the Civil Procedure Act imposes on each party to proceedings that have been referred for mediation a duty to participate in good faith in the mediation. 26 Since it is the third defendant who seeks the mediation, I do not doubt that he will do so. 27 As to the plaintiff, he is a solicitor and an officer of this Court. Once ordered to participate in a mediation, it is to be expected that he, perhaps more than any member of the community, will undertake the discharge of that duty very seriously. 28 For those reasons it seems to me that notwithstanding the fact that there have been earlier attempts to resolve the proceedings out of Court which have failed, the interests of justice require the parties to have another attempt, and for those reasons I am satisfied that it is appropriate to make the orders sought in the Notice of Motion. OoO 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.