Kilthistle No.6 Pty Ltd (Receiver & Manager Appointed) & Ors v Austwide Homes Pty Ltd & Ors [1997] FCA 1383

Kilthistle No.6 Pty Ltd (Receiver & Manager Appointed) & Ors v Austwide Homes Pty Ltd & Ors [1997] FCA 1383

Although the Court had power to refer proceedings to mediation without consent and to make orders for the conduct of mediation, the number and nature of the issues, the number of parties, the course of the proceedings, outstanding interlocutory disputes, and the applicants' evidenced attitude and objectives showed that mediation at the present stage was unlikely to be either expeditious or effective; therefore the mediation orders sought should not presently be made, but the motion should be stood over rather than dismissed because circumstances might later change.

Jurisdiction
Australia
Judgment Date
10 December 1997
Procedural Posture
Practice and Procedure Motion in Proceedings Concerning Alleged Copyright Infringement and Claims Under S 52 of the Trade Practices Act 1974 / Fourth Respondent's Notice of Motion Seeking Referral of the Proceedings to Mediation
Outcome
The fourth respondent's motion for referral to mediation was not granted at present and was stood over.
Legal Topics
['referral to Mediation Without Consent' 'compulsory Mediation' 'federal Court Case Management Powers' 'costs and Conduct of Mediation' 'copyright Subsistence and Infringement' 'misleading or Deceptive Conduct']
['practice and Procedure' 'civil Procedure' 'alternative Dispute Resolution' 'copyright' 'trade Practices'] ['referral to Mediation Without Consent' 'compulsory Mediation' 'federal Court Case Management Powers' 'costs and Conduct of Mediation' 'copyright Subsistence and Infringement' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Practice and Procedure Motion in Proceedings Concerning Alleged Copyright Infringement and Claims Under S 52 of the Trade Practices Act 1974 / Fourth Respondent's Notice of Motion Seeking Referral of the Proceedings to Mediation

Legal Issues

  1. 1 ['Whether the Court should order referral of the proceedings to a mediator under s 53A(1) of the Federal Court of Australia Act 1976 where the applicants do not consent' 'Whether mediation at the present stage would be expeditious or effective' "Whether concerns about preparation costs, outstanding interlocutory issues, and the applicants' opposition made compulsory mediation inappropriate"]

Ratio Decidendi

Although the Court had power to refer proceedings to mediation without consent and to make orders for the conduct of mediation, the number and nature of the issues, the number of parties, the course of the proceedings, outstanding interlocutory disputes, and the applicants' evidenced attitude and objectives showed that mediation at the present stage was unlikely to be either expeditious or effective; therefore the mediation orders sought should not presently be made, but the motion should be stood over rather than dismissed because circumstances might later change.

Court Disposition

The fourth respondent's motion for referral to mediation was not granted at present and was stood over.

Orders

  • ["The motion of the fourth respondent is stood over to the first day set down for the trial of the proceedings, with liberty to any party to apply in respect of the motion on five days' notice."]