GEORGE ANDREW HARRISON & ANOR v DELCIE JOAN SCHIPP [2002] NSWCA 27

GEORGE ANDREW HARRISON & ANOR v DELCIE JOAN SCHIPP [2002] NSWCA 27

Although the dispute involved complex interlocking interests and mediation might be fruitful, it was not appropriate on balance to compel mediation because the parties were well able to assess the consequences, mediation was unlikely to be decisive, the alleged conflict issues did not justify referral, Mrs Schipp would be forced to incur further legal costs without an effective right of recoupment, and enforced mediation risked diverting attention from or displacing the expedited hearing.

Jurisdiction
Australia
Judgment Date
15 February 2002
Procedural Posture
Application Under Section 110 K of the Supreme Court Act to Refer Pending Proceedings for Mediation; Application for Further Directions / Court of Appeal Before Expedited Hearing of Removed Equity Division Proceedings
Outcome
Motion for referral to mediation dismissed with costs; directions made for the expedited proceedings.
Legal Topics
['court Ordered Mediation' 'opposition to Mediation by One Party' 'discretion Under Supreme Court Act, S110 K' 'costs of Mediation and Litigation' 'directions for Expedited Proceedings']
['civil Procedure' 'alternative Dispute Resolution' 'costs'] ['court Ordered Mediation' 'opposition to Mediation by One Party' 'discretion Under Supreme Court Act, S110 K' 'costs of Mediation and Litigation' 'directions for Expedited Proceedings']

Case Brief

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Procedural Posture

Application Under Section 110 K of the Supreme Court Act to Refer Pending Proceedings for Mediation; Application for Further Directions / Court of Appeal Before Expedited Hearing of Removed Equity Division Proceedings

Legal Issues

  1. 1 ['Whether pending proceedings should be referred to mediation under section 110K of the Supreme Court Act despite opposition by one party.' "Whether the costs of mediation and the opponent's inability to recover further costs weighed against a referral to mediation." "Whether alleged potential conflicts of interest involving Mrs Schipp's lawyers should affect the mediation referral decision." 'What directions should be made to prepare the expedited proceedings for hearing.']

Ratio Decidendi

Although the dispute involved complex interlocking interests and mediation might be fruitful, it was not appropriate on balance to compel mediation because the parties were well able to assess the consequences, mediation was unlikely to be decisive, the alleged conflict issues did not justify referral, Mrs Schipp would be forced to incur further legal costs without an effective right of recoupment, and enforced mediation risked diverting attention from or displacing the expedited hearing.

Court Disposition

Motion for referral to mediation dismissed with costs; directions made for the expedited proceedings.

Orders

  • ['The motion is dismissed with costs.' 'Orders made in accordance with the short minutes as amended.' 'In paragraphs 1 and 2 of the short minutes, 26 February is changed to 4 March.' "The defendant's submissions are to be filed by 8 March as to the law and 11 March as to the facts." 'Liberty to apply is reserved for...