WIELAND v NEWCASTLE CITY COUNCIL & ANOR [2008] NSWDC 4

WIELAND v NEWCASTLE CITY COUNCIL & ANOR [2008] NSWDC 4

The Court had jurisdiction and power under s 73 of the Civil Procedure Act 2005 to determine the dispute about the terms of the parties' compromise and to make orders giving effect to that determination; the proceedings were not wholly spent because costs assessment and liberty to apply remained. The mediation was conducted by a judicial officer pursuant to an order, on court premises, and was part of the litigation process. The express agreement involving the second defendant and the identical wording of the costs orders for both defendants meant that the costs of the proceedings included the costs of the mediation.

Jurisdiction
Australia
Judgment Date
05 February 2008
Procedural Posture
Civil Proceedings Concerning Costs Following Settlement by Consent Orders / Motion Filed 18 December 2007 Seeking Relief as to Whether Costs Orders Made on 12 February 2007 Extended to Costs of a Court Conducted Mediation
Outcome
Motion granted; consent costs orders varied to state that the costs of the proceedings included the costs of the mediation, and defendants ordered to pay the plaintiffs' costs of the motion.
Legal Topics
['jurisdiction to Determine Terms of Compromise or Settlement' 'interpretation of Consent Orders' 'costs of Mediation' 'overriding Purpose' 'public Policy and Mediation']
['civil Procedure' 'costs' 'mediation'] ['jurisdiction to Determine Terms of Compromise or Settlement' 'interpretation of Consent Orders' 'costs of Mediation' 'overriding Purpose' 'public Policy and Mediation']

Case Brief

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Procedural Posture

Civil Proceedings Concerning Costs Following Settlement by Consent Orders / Motion Filed 18 December 2007 Seeking Relief as to Whether Costs Orders Made on 12 February 2007 Extended to Costs of a Court Conducted Mediation

Legal Issues

  1. 1 ['Whether the Court had jurisdiction to make a declaration.' 'Whether the Court had jurisdiction to take any step in the proceedings, having regard to the terms of the consent orders.' 'Whether the costs orders extended to the costs of the mediation.' 'Whether it was inappropriate for the Court to deal with the issue on public policy grounds.']

Ratio Decidendi

The Court had jurisdiction and power under s 73 of the Civil Procedure Act 2005 to determine the dispute about the terms of the parties' compromise and to make orders giving effect to that determination; the proceedings were not wholly spent because costs assessment and liberty to apply remained. The mediation was conducted by a judicial officer pursuant to an order, on court premises, and was part of the litigation process. The express agreement involving the second defendant and the identical wording of the costs orders for both defendants meant that the costs of the proceedings included the costs of the mediation.

Court Disposition

Motion granted; consent costs orders varied to state that the costs of the proceedings included the costs of the mediation, and defendants ordered to pay the plaintiffs' costs of the motion.

Orders

  • ["The consent orders entered against the first defendant Newcastle City Council on 12 February 2007 are amended to vary paragraph 2 to read: The first defendant to pay one half of the plaintiffs' costs of the proceedings, including the costs of the mediation conducted before Acting Judge McGrowdie in January 2007 as...