Murphy v State of NSW [2021] NSWSC 927

Murphy v State of NSW [2021] NSWSC 927

The objected-to affidavit evidence concerning mediation communications was inadmissible under s 30(4) of the Civil Procedure Act 2005 (NSW). Without that evidence, there was no satisfactory evidence of what occurred in the mediation, when the State formed its concluded position, why the mediation lasted only ten minutes, or why it was unsuccessful; accordingly, the Court could not find that the State failed to participate in good faith. Rather than dismiss the motion, the Court stood it over to the hearing of the principal proceedings to permit the plaintiff to adduce further evidence about whether the State could have communicated earlier about the likely utility of the mediation.

Jurisdiction
Australia
Judgment Date
30 July 2021
Procedural Posture
Notice of Motion for Costs Thrown Away Arising From Unsuccessful Mediation in Principal Proceedings for Damages for Wrongful Arrest, False Imprisonment and Malicious Prosecution / Interlocutory Motion After Mediation, Before Hearing of the Principal Proceedings
Outcome
Motion stood over to the hearing of the principal proceedings, with costs reserved to the trial judge.
Legal Topics
['costs of Mediation' 'good Faith Participation in Mediation' 'admissibility of Mediation Communications' 'affidavit Objections']
['civil Procedure' 'costs'] ['costs of Mediation' 'good Faith Participation in Mediation' 'admissibility of Mediation Communications' 'affidavit Objections']

Case Brief

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Procedural Posture

Notice of Motion for Costs Thrown Away Arising From Unsuccessful Mediation in Principal Proceedings for Damages for Wrongful Arrest, False Imprisonment and Malicious Prosecution / Interlocutory Motion After Mediation, Before Hearing of the Principal Proceedings

Legal Issues

  1. 1 ["Whether the defendant's alleged failure to forewarn the plaintiff's legal representatives of its position in mediation would, if proven, contravene s 27 of the Civil Procedure Act 2005 (NSW) and justify an order that the defendant pay costs of the mediation." 'Whether portions of affidavits sworn by the plaintiff and his solicitor about the circumstances surrounding the mediation were inadmissible under s 30 of the Civil Procedure Act 2005 (NSW).' 'Whether there was sufficient evidence that the defendant failed to participate in mediation in good faith.' 'Whether the motion should be dismissed or stood over to allow the plaintiff to adduce additional evidence at the hearing of the principal proceedings.']

Ratio Decidendi

The objected-to affidavit evidence concerning mediation communications was inadmissible under s 30(4) of the Civil Procedure Act 2005 (NSW). Without that evidence, there was no satisfactory evidence of what occurred in the mediation, when the State formed its concluded position, why the mediation lasted only ten minutes, or why it was unsuccessful; accordingly, the Court could not find that the State failed to participate in good faith. Rather than dismiss the motion, the Court stood it over to the hearing of the principal proceedings to permit the plaintiff to adduce further evidence about whether the State could have communicated earlier about the likely utility of the mediation.

Court Disposition

Motion stood over to the hearing of the principal proceedings, with costs reserved to the trial judge.

Orders

  • ['Stand over the motion to the hearing of the principal proceedings, with costs of the motion reserved to the trial judge.']