French v Fraser (No 2) [2015] NSWSC 1824

Supreme Court New South Wales

Medium Neutral Citation: French v Fraser (No 2) [2015] NSWSC 1824 Hearing dates: 10 April 2015 Date of orders: 10 April 2015 Decision date: 10 April 2015 Jurisdiction: Common Law Before: McCallum J Decision: Pursuant to section 26(1) of the Civil Procedure Act 2005 (NSW), the parties are referred to a private mediation in accordance with the following terms: (a) the mediation is to take place within 48 days of these Orders being made; (b) the parties are to agree on a mediator and a venue for the mediation within 14 days of these Orders being made; (c) the mediation be conducted in such a way that the plaintiff and defendant need not meet or be present in the same room; (d) In the event that the parties fail to agree pursuant to sub-paragraph (b) above, the parties notify the Associate to the Honourable Justice McCallum in order that a mediator and a venue may be appointed by the Court pursuant to section 26(2) of the Civil Procedure Act 2005 (NSW) Category: Procedural and other rulings Parties: Brendan French (Plaintiff) Michael Fraser (Defendant) Representation: Counsel: M Richardson (Plaintiff) L Barnett (Defendant)

Solicitors: Clayton Utz (Plaintiff) Levitt Robinson Solicitors (Defendant) File Number(s): 2014/181578 Publication restriction: None

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judgment 1. HER HONOUR: In these proceedings, the defendant seeks an order for a mediation conducted by a private mediator to be agreed upon by the parties. 2. The plaintiff's instructions to his counsel are that he has concerns as to the holding of mediation due to the concerns he has articulated in the particulars of aggravated damages in the proceedings. In particular, the plaintiff is anxious to avoid any form of personal confrontation with the defendant and states that he would not wish to be in the same room as him. 3. In my view, those concerns ought to be able to be accommodated by a private mediator. 4. I propose to order the mediation in the terms of the short minutes handed up. 5. I note the plaintiff's concerns. 6. I note my apprehension that mediation ought to be able to be conducted in a manner that accommodates those concerns and I note, finally, that in the event that my apprehension on that issue proves to be ill-founded, the plaintiff may exercise the liberty to restore the proceedings to the List with a view to varying the mediation orders. 7. I would also note that under s 27 of the Civil Procedure Act 2005 (NSW), a party ordered to participate in mediation is under a duty to participate in good faith in the mediation. 8. On that basis, I make order 3 in the short minutes of order handed up by Ms Barnett.