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Contents

page 2 Welcome to the first issue of the Australian

Alternative Dispute Resolution Bulletin

Richard Weinstein SC General Editor

page 5 Meet the ADRB Panel

page 8 ADR and the Federal Court of Australia

Michael Legg UNSW LAW and JONES DAY,

Madeleine Harkin JONES DAY and Jacqueline

Cahill GAVEL & PAGE LAWYERS

page 12 Statutory requirements to attend or use ADR:

Victoria

John K Arthur ISAACS CHAMBERS

page 16 Statutory requirements to attend or use ADR:

Queensland

Peter Ambrose QC 18 INNS BARRISTERS’

CHAMBERS and Kelly McIntyre DAN CASEY

CHAMBERS

General EditorRichard Weinstein SC Barrister

8th Floor Selborne Chambers

Editorial PanelPeter Ambrose QC 18 Inns of Court,

Brisbane

John K Arthur Barrister,

List S, Owen Dixon Chambers,

Melbourne

Kerry Hogan-Ross Solicitor and

mediator,

KHR Legal & Kerry Hogan-Ross

Mediations

Miiko Kumar Barrister and Senior

Lecturer,

Jack Shand Chambers,

Faculty of Law, University of Sydney

Michael Legg Associate Professor,

Faculty of Law,

University of New South Wales

Deborah Lockhart Chief Executive

Offıcer,

Australian International Disputes

Centre and ACDC

Andrea Martignoni Partner,

Allens

Mary Walker Barrister,

9 Wentworth Chambers

2014 . Vol 1 No 1

Information contained in this newsletter is current as at May 2014

Welcome to the first issue of the AustralianAlternative Dispute Resolution BulletinRichard Weinstein SC General Editor

In this Q&A, Richard Weinstein SC, General Editor of the Australian Alternative Dispute Resolution

Bulletin, shares insights and experiences gained from 20 years of practising ADR.

Richard Weinstein SC was called to the New South Wales Bar on 22 March 1993. Born in Montreal, Canada, he

completed a BA (Concordia University), an MA (University of California, Berkeley) and an LLB (University of New

South Wales).

His main areas of practice are professional negligence, alternative dispute resolution (ADR), disciplinary

proceedings, inquests and commissions of inquiry, medical negligence, personal injury, and wills and probate.

Richard was appointed as Senior Counsel (SC) in 2011. He is a former member of the Bar Council and a current

member of two committees of the NSW Bar Association. He is an Adjunct Associate Professor at the Faculty of Law

at the University of New South Wales, where he lectures in the law of evidence.

What drew you to practise in the area ofADR?

The courts began to refer matters to mediation early

in my career in a variety of areas in which I was then

practising, so I commenced my experience appearing as

an advocate in mediations about 20 years ago as

something incidental to my general practice.

What led the courts to mandate ADR?The reasons are varied, and are canvassed at some

length in this first issue of the bulletin. At the time I

commenced practice, there was a backlog in the court

lists and there was often a considerable delay in getting

a case heard before a judge. So it was used as a tool by

courts and parties to achieve an early resolution of

disputes.

I also believe that there was an emerging recognition

that ADR, and mediation in particular, provided a

structured environment in which parties to a dispute

might resolve issues themselves at a reduced cost, and

by taking into account the risks associated with bringing

a matter to trial.

The system of mandatory referrals to ADR generally

allows for the smoother and more efficient administra-

tion of justice, both for the courts and for litigants.

Is ADR adversarial?Mediation is not adversarial in the same sense that a

trial is adversarial. However, each advocate at a media-

tion is there to advance their client’s interests and get the

best possible result. Notwithstanding that comment, s 25

of the Civil Procedure Act [2005 (NSW)] commands

each party to participate in a mediation in good faith.

Rule 20.6 of the Uniform Civil Procedure Rules [2005

(NSW)] provides that each party must attend the media-

tion with a person having authority to settle the proceed-

ings. So it is not adversarial in the conventional sense. It

is essentially a structured without prejudice negotiation

between parties. Those attending generally accept that

there are quantifiable or unquantifiable risks associated

with running a trial that can be taken into account when

negotiating at mediation, and often those risks are

spoken about frankly. That would obviously not happen

at trial.

australian alternative dispute resolution bulletin May 20142

What is your particular passion in this area?When I came to the Bar, I had no skills whatsoever in

ADR, and so my skills evolved considerably over time.

When you read and study a brief, the plaintiff, or the

defendant on the other side, is really just a composite

drawn from a bundle of paper. At a mediation, you get to

meet the person or representative of the entity. I must

say that I am more often than not surprised that the

person on the other side is not quite what I had expected

them to be.

I generally enjoy the opportunity to meet the other

side and their legal representatives in a without preju-

dice environment, where concessions are often made,

which would never be made in a court during a trial.

Furthermore, because mediations have such a high

rate of success, there is the satisfaction that you have

achieved a result for your client that he, she or it can live

with, without recourse to the stress and expense of a trial

and possibly an appeal.

Who has inspired you in your work in ADR?There is no doubt that Sir Laurence Street, the former

Chief Justice of New South Wales, was my greatest

inspiration. In my opinion, he was the greatest mediator

of my time. He almost always was able to convince the

parties that it was best to empower themselves — as

opposed to a judge — and to resolve the proceedings on

terms that they could live with. He was able to explain

the concepts of risk and compromise in lay language. He

was gracious and kind always. I do not doubt that he had

the highest rate of success of any mediator who has ever

practised.

I appeared as an advocate in several hundred media-

tions before Sir Laurence and I carefully observed him

and asked him many questions, which he never hesitated

to answer, sometimes at great length. I hope that I take

some of the qualities I observed in him to my own

practice as a mediator.

What are the qualities required to be agood mediator?

First and foremost, one has to be able to see the two

(or more) sides of every story. I always try to encourage

people to look at the issues in dispute from the other

side’s perspective in an effort to reach a compromise,

and sometimes that helps to achieve a resolution. Flex-

ibility is another requisite quality. Every mediation is

different and different personalities will respond to

different methods of encouraging a resolution. Finally,

patience, the greatest of all virtues, is essential. It takes

time to achieve a negotiated resolution of a dispute.

What are some of the issues affectingpractice in this area?

There are some ethical issues that arise with respect

to practice in ADR, and which we propose to canvass in

our second issue. For a start, the NSW Barristers’ Rules

provide that barristers have a duty to their clients to

inform them, or the instructing solicitor, about alterna-

tives to a fully contested adjudication of the case.

Leaving to one side that the courts will generally require

an attempt at ADR prior to a fully contested hearing,

counsel have a positive obligation to advise clients about

those alternatives.

How are you hoping the ADRB will helppractitioners?

I have often thought that there is a paucity of learned

material touching upon ADR generally. I am hoping that

we will be able to fill that gap. We have a panel of

experienced and talented practitioners from across the

several jurisdictions that I expect will make a significant

contribution to this important area of the law.

What would you personally like to bring tothe ADRB?

I have acted as counsel in several hundred mediations

in many areas of the law, so I bring my practical

experience as an advocate. I have also acted as a

mediator in perhaps two hundred mediations, and in that

role I have gained a more general perspective. I truly

believe in the free exchange of ideas and information,

and my hope is that I can be an instrument in achieving

that goal with respect to ADR.

australian alternative dispute resolution bulletin May 2014 3

The Australian Alternative Dispute Resolution Bulletin: some background

Why has ADR been targeted as a new area for LexisNexis newsletters? To support LexisNexis’s breadth ofcoverage in the civil procedure area.

What will be the ADRB’s main focus? The Australian Alternative Dispute Resolution Bulletin covers theprocedures and issues surrounding negotiation, mediation and arbitration in the legal industry. The bulletinprovides legal practitioners with succinct practical and academic commentary that allows them to stay abreastof recent developments and best practices in these areas.

Why is LexisNexis starting this new bulletin? Increasingly today, the legal industry is embracing alternativemeans of resolving legal disputes. Negotiation, mediation and arbitration have all become important disputeresolution channels that lawyers must navigate to address the needs of their clients in the most timely andcost-effective way.

What is the value of the ADRB to practitioners? It provides:

• authoritative, reliable and in-depth analysis of the latest news and issues surrounding ADR and civilprocedure by expert panel members and contributors;

• regularly updated content that saves practitioners time researching the latest legal changes anddevelopments;

• senior practitioners in large law firms with a time-saving tool to educate junior lawyers; and• a means of extending practitioners’ knowledge and insight into the ADR area through easy-to-read

articles, commentary and case notes designed to break down complex legal issues.

What is the jurisdiction that the ADRB covers? National.

Who is the intended market? Large- and mid-tier law firms, the Bar and government lawyers.

How often will it be published? Six issues this first year, then 10 issues annually.

In what format will it be published? Hard copy and pdf.


Meet the ADRB PanelHere are the leaders in the field who comprise the Editorial Panel of the Alternative DisputeResolution Bulletin.

Peter Ambrose QC

Called to the Bar in 1978 and appointed silk in 2000,

Peter Ambrose began his career in both criminal and

civil jurisdictions.

On many occasions, he has been appointed by the

Insurance Commissioner to act as referee between CTP

insurers under the Industry Deed in disputes as to claim

management and claim costs.

Peter developed a special interest in resources and

energy law and has appeared in the leading cases on the

assessment of compensation under both mining and

petroleum legislation. He has appeared in the inquiry

into the disaster of the Moura Mine No 2 and in the

commissions of inquiry into the Queensland floods and

the Queensland health payroll.

Peter has been a qualified Mediator since 1994 and is

a Nationally Accredited Mediator.

John Arthur

John Arthur is a barrister and member of the Victo-

rian Bar. His principal area of practice is commercial

litigation, including contract, sale of land, property,

equity, probate and wills, and insolvency.

An experienced advocate, John works across all

Victorian courts and VCAT. He is particularly interested

in alternative dispute resolution and is an accredited

mediator (ACDC) and a Nationally Accredited Media-

tor. He is co-author of Civil Procedure Victoria (LexisNexis)

and author of several titles in Court Forms, Precedents

and Pleadings, Victoria (LexisNexis) and Bankruptcy

Law in Australia (LexisNexis).

John is undertaking the CIArb diploma course in

International Commercial Arbitration and is a trained

adjudicator (KLRCA). He is keen for Australian lawyers

to embrace harmonisation of Australian law and ADR,

including international commercial arbitration. John has

given many CPD seminars and has published many

articles.


Kerry Hogan-Ross

Kerry Hogan-Ross is a mediator accredited under the

National Mediator Accreditation System. She was admit-

ted as a legal practitioner in 1990 and has litigated in

New South Wales and federal courts since that time.

Kerry was with a major national (and later interna-

tional) law firm for 20 years, including 20 years as a

partner. She has participated in mediations and other

forms of alternative dispute resolution throughout her

career. Kerry was a NSW Local Court arbitrator from

2002–5.

Miiko Kumar

Miiko Kumar is a Senior Lecturer in the Faculty of

Law at the University of Sydney and is a barrister at Jack

Shand Chambers. Miiko teaches Procedure, Evidence

and Advanced Evidence.

She is a co-author (with Stephen Odgers SC and

Elisabeth Peden) of Uniform Evidence Law: Commen-

tary and Materials (4th edn, Lawbook Co 2012) and

(with Michael Legg and Dorne Boniface) Principles of

Civil Procedure in New South Wales (2nd edn, Thomson

Reuters 2012).

Miiko was on the Advisory Committee for the

Australian Law Reform Commission’s review of the

Evidence Act 1995 (Cth) (2005). She is an examiner for

the NSW Bar evidence exam.

Michael Legg

Michael Legg is an Associate Professor at UNSW

Law, specialising in civil and regulatory litigation, class

actions, and corporate and securities law. His research

interests include case management of complex civil

litigation and the matching of disputes with dispute

resolution processes. Michael’s research has been cited

in judgments in courts and law reform commissions

across Australia.

He is the author of numerous books and articles,

including Case Management and Complex Civil Litiga-

tion (Federation Press 2011), and the editor of The

Future of Dispute Resolution (LexisNexis 2013).

Michael is a member of the Law Council of Austra-

lia’s Class Actions Committee and a board member of

the National Pro Bono Resource Centre. He has 15 years

of experience as a legal practitioner, having worked with

leading Australian and US law firms. Michael is Of

Counsel with the law firm Jones Day.

Andrea Martignoni

Andrea Martignoni has over 23 years of experience in

general commercial litigation and arbitration, often act-

ing in complex matters for clients in industries such as

telecommunications, banking, insurance and construc-

tion, and energy and resources.


He has been involved at the Federal Court and

Supreme Court levels in many major commercial litiga-

tion matters, including several high-profile cases. Andrea

has broad experience extending to a wide range of

contractual disputes and professional negligence claims.

He has extensive experience in litigation and arbitration

in the construction and resources industries, including

several major gas price arbitrations.

Andrea leads the International Arbitration Group at

Allens and has contributed to arbitration publications in

many leading industry journals. He has been recognised

as a leading lawyer in Chambers Global: The World’s

Leading Lawyers, Asia Pacific Legal 500 and other

publications.

Andrea is a director of the Australian Centre for

International Commercial Arbitration.

Deborah Lockhart

Deborah Lockhart is CEO of the Australian Interna-

tional Disputes Centre. She was admitted as a barrister

and solicitor of the High Court of New Zealand and was

Executive Solicitor with Treasury before her move into

the corporate sector.

Deborah has over 20 years of outstanding business

experience as both a senior executive and an indepen-

dent dispute resolution consultant. Working with pre-

eminent Fortune 500 companies, including AMP, ING,

Westpac, UBS and Swiss Re, she has been at the

forefront of advocating and utilising ADR techniques to

resolve B2B and B2C matters for corporations and their

clients.

Trained as an advanced mediator and negotiator with

Harvard, ACDC, LEADR and UTS, Deborah is passion-

ate about advocating best-practice ADR in commercial

disputes. She was appointed CEO of the AIDC in

November 2013.

Mary Walker

Mary Walker has been at the forefront of ADR in

Australia for the last 20 years, principally through

facilitating mediated settlements of disputes in the

processes of litigation and arbitration. As a member of

an independent Bar, she has arbitrated, mediated and

provided expert appraisal and ombudsman services with

respect to thousands of disputes referred by solicitors,

industry and government bodies, and corporations.

Mary was Chair of the Law Council of Australia

Expert Standing Committee on Alternative Dispute Reso-

lution and is now Chair of the ADR Committees of the

Litigation and International Law Sections. She is a

member of the NSW Supreme Court ADR Steering

Committee, the International Mediation Institute Stan-

dards Commission, and the International Mediation

Institute Independent Standards Commission Quality

Group, among other bodies.

Mary has also lectured and published extensively in

ADR. For example, she wrote the chapter in the Laws of

Australia on expert determination and the ADR chapter

in No Mere Mouthpiece (LexisNexis 2002), the essay

collection for the centenary of the Bar Association of

NSW. She was sponsored by Harvard University to

teach mediation with Professor Frank Sander and has

taught and guest lectured at many universities including

the University of Sydney (postgraduate law degree) and

Stanford University in the United States. In 2012, Mary

was invited by The Hague Institute for Global Justice to

join an expert meeting on resolving complex disputes,

cross-border disputes and the case management of mass

disputes. She is a member of the NSW Bar Council

(2011–14).


ADR and the Federal Court of AustraliaMichael Legg UNSW LAW and JONES DAY, Madeleine Harkin JONES DAY and Jacqueline

Cahill GAVEL & PAGE LAWYERS

The Federal Court of Australia was an early propo-

nent of alternative dispute resolution (ADR), also called

assisted dispute resolution, and has continued to refine

its use. Most recently, the Federal Court’s powers of

referral have extended beyond mediation and arbitration

to embrace other forms of ADR, such as conciliation,

neutral evaluation or case appraisal. This article pro-

vides an overview of the use of ADR in the Federal

Court. Specific attention is directed to the Access to

Justice (Civil Litigation Reforms) Amendment Act 2009

(Cth), which broadens the conception of ADR in the

Federal Court, as well as recent judgments on the

matters relevant to the referral of a dispute to ADR.

The evolution of ADR in the Federal CourtIn 1987, the Federal Court of Australia introduced an

ADR program in the court’s NSW District Registry. This

program granted judges the authority to make orders that

the parties attend mediation before a registrar or a person

agreed to by the parties. By 1996, this program had

become highly successful, with 1109 matters having

been referred to mediation.1 Of those matters, 78% were

settled during the mediation, 18% proceeded to trial and

4% were transferred to state courts.2 These figures

strongly suggested that court-annexed mediation schemes

could be effective in promoting high rates of settlement

and reducing delay.3

In 1991, the Federal Court of Australia Act 1976

(Cth) was amended by the Courts (Mediation and

Arbitration) Act 1991 (Cth) to insert s 53A. This

provision conferred a power on the Federal Court, with

the consent of the parties, to refer proceedings to a

mediator or arbitrator. In 1997, s 53A of the Federal

Court of Australia Act was amended to allow matters to

be referred to mediation with or without the consent of

the parties, although arbitration referrals still required

consent. The rationale behind compulsory mediation

powers is that by compelling a mediation to occur, the

courts will foster engagement with the process.4 As has

been noted by one NSW Supreme Court judge, “[w]hat

is enforced is not cooperation and consent, but partici-

pation in a process from which cooperation and consent

might come”.5

The amendment providing the court with the power

to order compulsory mediation was met with some

speculation as to its effectiveness. Some commentators

queried whether compelling parties to attend against

their will would merely result in parties going through

the process but not actively participating. Other critics

considered that court-annexed mediation was likely to

be counterproductive, adding to the cost and time of a

court case that would ultimately proceed regardless.6

Despite this initial scepticism, research has shown

that mediation is an effective and efficient means of

resolving disputes. Further, public awareness of media-

tion is limited, leading to a low rate of voluntary

participation.7 These findings suggest that compulsory

mediation is likely to be beneficial. This conclusion is

also supported by the finding that the “rate of settlement

and degree of satisfaction, does not appear to vary much,

whether participation is voluntary or compelled”.8 Fur-

ther, the amendment giving rise to a power to compel

mediation reflects the court’s view that “mediation may

be productive even if a party is initially a reluctant

participant”.9

In 2009, s 53A of the Federal Court of Australia Act

was amended by the Access to Justice (Civil Litigation

Reforms) Amendment Bill 2009 (Cth), leading to the

provision we have today:

53AArbitration, mediation and alternative dispute reso-lution processes

(1) The Court may, by order, refer proceedings in theCourt, or any part of them or any matter arising outof them:

(a) to an arbitrator for arbitration; or(b) to a mediator for mediation; or(c) to a suitable person for resolution by an

alternative dispute resolution process;in accordance with the Rules of Court.

(1AA) Subsection (1) is subject to the Rules of Court.(1A) Referrals under subs (1) (other than to an arbitrator)

may be made with or without the consent of theparties to the proceedings. Referrals to an arbitratormay be made only with the consent of the parties.

The Federal Court Rules 2011 (Cth), specifically

Pt 28, provide further guidance and requirements as to

the conduct of each arbitration, mediation and alterna-

tive dispute resolution process. Rule 28.01 states the

general approach of the court:

Parties must, and the Court will, consider options foralternative dispute resolution, including mediation, as early


as is reasonably practicable. If appropriate, the Court willhelp implement those options.

The court’s power to refer matters to alternative

dispute resolution is bolstered by its directions-making

power in r 5.04. This power gives the court authority to

make directions as to “the use of mediation, arbitration,

or an ADR process”.10

The Federal Court’s approach to ADR is further

captured in its 2012–13 annual report:

During the reporting period the Court’s ADR programcontinued to be a critical means of facilitating the resolu-tion of disputes quickly, inexpensively and efficiently.Referrals to ADR regularly lead to the resolution of thematter in total or to a narrowing of the issues in disputebetween the parties. In this way ADR complements the casemanagement objective of ensuring that matters are resolvedat a cost that is proportionate to the importance andcomplexity of the matters in dispute. The reporting periodhas seen the Court continue to consolidate ADR as part ofthe way that cases are managed to resolution with substan-tial results.11

An alternative dispute resolution processSection 53A(1)(c) of the Federal Court of Australia

Act now provides for referral to a suitable person for

resolution by “an alternative dispute resolution process”.

The reference to alternative dispute resolution processes

is defined as procedures or services “for the resolution of

disputes (other than arbitration or mediation) not involv-

ing the exercise of the judicial power of the Common-

wealth”.12 According to r 28.02, a suitable person means

a person appointed by the court to hear the proceedings

in an alternative dispute resolution process.13

This additional ADR limb of s 53A has been inten-

tionally crafted as inclusive. The rationale behind this

amendment was to broaden the court’s case management

abilities by enabling the referral of proceedings, or any

part of proceedings, to any “alternative dispute resolu-

tion process”.14 As noted in Enviro Pak Pty Ltd v New

Horticulture Pty Ltd (No 2), s 53A now provides the

Federal Court with an indefinite number of ADR options

to modify a plaintiff’s right to have its case heard in the

courts.15 In appropriate circumstances, courts can now

make referrals to ADR avenues beyond the commonly

used forums of mediation and arbitration.

Former Chief Justice Michael Black has observed

that:

… [the] tendency to equate ADR with mediation needs tobe addressed because it operates against the creativeselection and application of the process or processes bestsuited for the just resolution of a particular dispute…The choice of a category of ADR … will have the capacityto affect the justice of the outcome, the satisfaction of theparties and, ideally, the broader interests of the community.16

To date, the Federal Court has exercised its power to

refer proceedings to an ADR process under s 53A(1)(c)

only infrequently. In 2012–13, the Federal Court made

613 referrals to ADR, of which 602 were to mediation.

The exceptions consisted of 11 matters, each referred to

a conference of experts. This has been found to be a

useful ADR technique in native title matters.17 Despite

the court’s infrequent use to date of this power, there are

a number of ADR processes that may better meet the

needs of parties to a dispute, depending on the circum-

stances of each case.

The Explanatory Memorandum states that “an alter-

native dispute resolution process” includes processes

such as conciliation, neutral evaluation or case appraisal.18

Many others may be included, such as expert determi-

nation, private judging, facilitation, and Med-Arb.19 The

expansive definition of ADR processes may also allow

for referral to one of the multitude of ombudsman

services that have been created.20

The benefit of courts having multiple ADR options

for referral is that each avenue offers particular advan-

tages. Conciliation offers the advantage of a more

directive and advisory facilitator, able to give expert

advice to parties on likely settlement terms.21 Neutral

evaluation is particularly helpful for those parties who

are unsure whether litigation or ADR would best suit

their aims. An evaluator, with legal training, can assess

the key issues in the dispute and the most effective

means of resolution. If the parties then wish to proceed

with legal action, the process will have reduced the

number of issues that the court has to consider.22

Ombudsmen provide avenues of independent review

and investigation, and offer free assistance to parties

attempting to resolve disputes efficiently. Parliamentary

ombudsmen deal with complaints about government

agencies. Statutory ombudsmen provide an avenue for

resolving disputes regarding professionals. Industry-

based ombudsmen mediate over disputes concerning

service-providers.23 The Financial Ombudsman Service

is one such industry example, providing a range of

dispute resolution methods, including negotiation, con-

ciliation and making a recommendation or final binding

determination on the merits of the dispute.24

Any ADR processes under s 53A(1)(c) that result in

binding decisions raise the issue of consent. According

to the Explanatory Memorandum, “while referrals to

arbitration require the parties’ consent, referrals to …

other alternative dispute resolution processes can be

made with or without parties’ consent”.25 However,

other ADR procedures may include procedures that are

binding. For example, expert determination, private

judging and, in the case of some ombudsmen, the

making of determinations may all be binding on the

parties. It is likely that s 53(1A) did not anticipate that


there could be ADR procedures other than arbitration

which could be binding. Consequently, the provision

may require amendment or careful judicial use.

Recent judgments on referral to ADRIn the case of Hanna v Australian Securities and

Investments Commission (ASIC), McKerracher J consid-

ered that:

… lack of consent to attend mediation is not an indicationof the mediation’s prospects of success. Many mediationssuccessfully resolve disputes where the parties objected tothe initial order referring proceedings in the Court tomediation.26

His Honour emphasised that the primary task of the

court is to hear and determine matters. However:

Mediation, and other ADR resources are an aid to theCourt, and the parties, in appropriate circumstances toassist in the resolution of disputes.27

In that case, McKerracher J ordered mediation because

there was “no shortage of information, evidence and

argument”,28 which presumably allowed the parties to

know what the issues were in the litigation and to have

some view on prospects of success or the risks of

continuing to pursue litigation. Moreover, McKer-

racher J observed:

There is a sound statistical and intuitive basis for confi-dence in the mediation skills of the professionally trainedand practically experienced registrars in the Australiancourt system generally. Assuming a well-intentioned approachfrom legal advisors, as one would expect, the benefits ofmediation, even if not resulting in a total settlement, shouldoutweigh the cost and possible delay in the exercise.29

In the case of Sellar v Lasotav Pty Ltd,30 Foster J

considered three main factors in his decision to refer the

proceeding to mediation: first, the fact that the proceed-

ings to date had involved numerous interlocutory appli-

cations, which had all been strongly challenged; second,

the likelihood of significant legal costs to litigate the

matter through to completion; and third, the awareness

of the parties by this stage of their respective cases.31

Justice Foster found that it was appropriate that attempts

be made “to assist the parties to resolve their differences

as soon as possible and before further significant sums

are spent on legal costs”.32

In Sandalciyan v International Development & Con-

struction Pty Ltd,33 a dispute arose between four share-

holders who through a corporation had acquired an

apartment block, which they then contributed their time,

skills and funds to redevelop. While the court was called

on to deal with an interlocutory injunction, the underly-

ing dispute raised issues as to whether fees for the work

done by some of the shareholders had been under-

charged or overcharged to the project and as to the

correct accounting for the various fees and funds pro-

vided. Mediation was not ordered, but instead the judge

set out a number of suggestions for the parties as to how

they might construct a dispute resolution model. The

suggestions included the mediator acting as the super-

visor of such other processes as the parties might agree,

after discussion with the mediator, with a view to

determining the underlying building and architectural/

project management disputes. Further, the mediator

could also assist the parties in factoring into their dispute

resolution processes the product of a planned expert

conference of accountants.34

The courts also take into account the willingness of a

party to participate in an ADR process as demonstrating

“some prospect of a successful outcome from a media-

tion”.35 In the case of Betts Group Pty Ltd v Pauls Retail

Pty Ltd (No 2),36 the applicant pressed for an order

compelling mediation, while the respondent opposed the

order on the basis that the costs and inconvenience of an

interstate mediation outweighed the small prospects for

success. The court found that the applicant’s willingness

demonstrated a potential for a successful outcome and

ordered that the mediation be conducted by phone to

save the respondent from the inconvenience of travel.37

The expanded powers given to the Federal Court in

relation to alternative dispute resolution qualify a plain-

tiff’s right to pursue its claim through litigation. This

qualification has been expressly recognised by Griffiths J

in Enviro Pak Pty Ltd v New Horticulture Pty Ltd (No 2):

… while acknowledging the significance of the prima facie

right of a plaintiff to have its case heard and determined in

the ordinary course of the procedure and business of the

court, I do not regard that right as absolute. The court has

clear power to modify that right in appropriate circum-

stances. For example, under s 53A of the [Federal Court of

Australia] Act, the court may order that proceedings in the

court, or any part thereof, be referred to arbitration,

mediation or to a suitable person for resolution by alterna-

tive dispute resolution.38


Michael Legg

Associate Professor

UNSW Law and

Of Counsel, Jones Day

Madeleine Harkin

Summer Clerk

Jones Day

Jacqueline Cahill

Graduate Solicitor

Gavel & Page Lawyers

Footnotes1. Chief Justice Michael Black “The courts, tribunals and ADR:

assisted dispute resolution in Australia’ (1996) 7 Australian

Dispute Resolution Journal 138 p 138.

2. Above, n 1, p 151.

3. Justice P Bergin “Mediation in Hong Kong: the way forward

— perspectives from Australia” (2008) 82 Australian Law

Journal 196 p 198.

4. National Alternative Dispute Resolution Advisory Council

(NADRAC) Legislating for ADR: A Guide for Government

Policy-Makers and Legal Drafters 2006 p 42.

5. Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992)

28 NSWLR 194 at 206; 10 BCL 199.

6. See, for example, C Green “ADR: where did the ‘alternative’

go? Why mediation should not be a mandatory step in the

litigation process” (2010) 12(3) ADR Bulletin Art 2.

7. K Mack Court Referral to ADR: Criteria and Research

Australian Institute of Judicial Administration and NADRAC

2003 p 2.

8. Above, n 7, p 2.

9. Kilthistle No 6 Pty Ltd v Austwide Homes Pty Ltd (Lehane J,

10 December 1997, unreported), referred to in Australian

Competition and Consumer Commission (ACCC) v Lux Pty Ltd

[2001] FCA 600; BC200102543 at [27].

10. Federal Court Rules 2011 (Cth), r 5.04(3) it 30.

11. Federal Court of Australia Annual Report 2012–13 pp 33–4.

12. Federal Court of Australia Act 1976 (Cth), s 4.

13. Above, n 10, r 28.02(2).

14. Explanatory Memorandum to the Access to Justice (Civil

Litigation Reforms) Amendment Bill 2009 (Cth).

15. Enviro Pak Pty Ltd v New Horticulture Pty Ltd (t/as Green

Pack) (No 2) [2013] FCA 624; BC201310343 at [33].

16. M Black AC QC “The relationship between the courts and

alternative dispute resolution” in The Future of Dispute Reso-

lution, ed M Legg, LexisNexis 2013 p 92.

17. Above, n 11, p 34.

18. Above, n 14, p 13.

19. See, for example, H Astor and C Chinkin Dispute Resolution in

Australia (2nd edn) LexisNexis 2002 ch 3, referring to nine

processes.

20. Suitable person is defined in r 28.02(2) of the Federal Court

Rules 2011 (Cth) as a person appointed as a suitable person.

Person is not defined in the Dictionary to the Federal Court

Rules. Section 2C of the Acts Interpretation Act 1901 (Cth)

broadens the meaning of person to “a body politic or corporate

as well as an individual”. An ombudsman service that is

incorporated could be a suitable person.

21. NADRAC Dispute Resolution Terms: The Use of Terms in

(Alternative) Dispute Resolution September 2003 p 18.

22. Above, n 21, p 19.

23. Above, n 21, p 21.

24. Financial Ombudsman Service “Dispute handling process in

detail”, available at www.fos.org.au.

25. Above, n 14, p 13.

26. Hanna v Australian Securities and Investments Commission

(ASIC) [2011] FCA 1077; BC201107256 at [13], citing Rares J

“Alternative dispute resolution in the Federal Court of Austra-

lia” Law Council of Australia Federal Litigation Section, July

2009 ch 3.

27. Above, n 26, at [13].

28. Above, n 26, at [14].

29. Above, n 26, at [15].

30. Sellar v Lasotav Pty Ltd [2008] FCA 1766; BC200810410.

31. Above, n 30, at [37]–[38].

32. Above, n 30, at [38].

33. Sandalciyan v International Development & Construction Pty

Ltd (2010) 80 ACSR 31; [2010] FCA 1145; BC201007829.

34. Above, n 33, at [97].

35. Betts Group Pty Ltd v Paul’s Retail Pty Ltd (No 2) [2010] FCA

1454; BC201009877 at [2].

36. Above, n 35.

37. Above, n 35, at [2] and [6].

38. Above, n 15, at [33].


Statutory requirements to attend or use ADR:VictoriaJohn K Arthur ISAACS CHAMBERS

Alternative dispute resolution (ADR) is a process,

distinct and alternative from judicial determination, by

which a neutral third party assists the parties to resolve

their dispute. The National Alternative Dispute Resolu-

tion Advisory Council (NADRAC) has defined ADR as

an “umbrella term for processes, other than judicial

determination, in which an impartial person assists those

in a dispute to resolve the issues between them”.1 ADR

is sometimes termed “appropriate dispute resolution” —

as in the Civil Procedure Act 2010 (Vic) (CPA), for

example.2 ADR may be classified as facilitative, advi-

sory, determinative or hybrid.3 It includes negotiation,

mediation, conciliation, dispute review boards and early

neutral evaluation, as well as statutory adjudication,

expert determination4 and arbitration, whether “stand

alone” or by way of a tiered dispute resolution process5

and whether binding or non-binding.

Outside the ordinary court processes, the parties may,

by agreement, refer existing or future disputes between

them to ADR, whether by way of arbitration, mediation

or expert determination or by way of a tiered dispute

resolution clause, or otherwise.6 These dispute resolu-

tion processes will be assisted or even enabled by state

legislative, and also court, intervention — such as, in

different contexts, arbitration, domestically, by the Com-

mercial Arbitration Act 2011 (Vic), s 8 (stay of court

proceedings and reference of the dispute to arbitration)

and s 35 (recognition and enforcement of awards);

foreign arbitration by the International Arbitration Act 1974

(Cth) (IAA), s 7 (stay of court proceedings and reference

of the dispute to arbitration), s 8 (recognition of foreign

awards) and s 9 (evidence of awards and arbitration

agreements), and by Art 35 of the Model Law (which

has the force of law in Australia: IAA, s 16); and in

family mediation centres, where evidence of anything

said or of any admission or agreement made at, or of any

document prepared for the purpose of, a conference with

a family mediator is not admissible in any court or legal

proceeding: Evidence (Miscellaneous Provisions) Act 1958

(Vic), s 211.

The present focus is on legislative provisions in

Victoria that impose requirements in relation to the

attendance at, or use of, ADR.7

There are three courts in the Victorian court hierar-

chy: the Supreme Court (which is divided into the trial

division and the appeal division), the County Court and

the Magistrates’ Court.8 There is also the Victorian Civil

and Administrative Tribunal (VCAT).9 Recently, VCAT

was held not to be a “court” for the purposes of s 8(1) of

the Commercial Arbitration Act.10

Reference to mediationIn Victorian courts and in VCAT, civil proceedings

are almost as a matter of course referred to ADR, and

generally to mediation.

In most civil proceedings in Victoria, at an early stage

of the proceeding a directions hearing will be held,

either with the parties attending or “on the papers”, at

which time an interlocutory timetable for the further

conduct of the proceeding will be set. The timetable will

cover such matters as pleadings, further and better

particulars, discovery, expert reports, mediation and

trial. In the Supreme Court, there will generally be two

principal directions hearings. The first will set the

interlocutory timetable to mediation and the second will

make pre-trial directions for witness statements, for

court books and for a trial date. In some cases, proceed-

ings will not be allocated a trial date until witness

statements (lay and expert) have been delivered and

court books have been prepared.11

Order for mediationThe orders in the timetable, for mediation, will be to

the following effect:

1. The proceeding be referred to a Mediator to be

agreed between the parties or in default of agree-

ment to be appointed by the Court, such mediation

to take place by/not to take place before #.

2. Subject to the terms of this order, the solicitor for

the Plaintiff shall, after consultation with all par-

ties, deliver to the Mediator a copy of this order,

all pleadings (including requests for and further

particulars) and a copy of any other relevant

information, and take all steps necessary to ensure

that the mediation commences as soon as practi-

cable.


3. The mediation shall be attended by those persons

who have the ultimate responsibility for deciding

whether to settle the dispute and the terms of any

settlement and the lawyers who have ultimate

responsibility to advise the parties in relation to

the dispute and its settlement.

4. The Mediator not later than # report back to the

Court whether the mediation is finished.

5. Subject to any further order, the costs of the

mediation be paid in the first instance by the

parties in equal shares.12

In Victoria, there are 27 different Acts and 18 statu-

tory rules and regulations that make reference to “media-

tion”, six Acts that make reference to “alternative

dispute resolution”, and four Acts that make reference to

“appropriate dispute resolution”.13

First and foremost are the Acts by which each of the

courts in the Victorian hierarchy and VCAT is estab-

lished and operates.14

Courts may refer proceeding to ADR withor without the parties’ consent

Each of these Acts provides that the court may refer

a proceeding to mediation15 or arbitration,16 or, in the

Supreme Court and County Court, a special referee, with

or without the consent of any party17 (but the CPA gives

the power to refer a civil proceeding or part to “appro-

priate dispute resolution”, which includes, inter alia,

reference to a special referee, but not without the parties’

consent where the ADR will result in a binding out-

come) (see note 34 below). In the Supreme Court,

mediations may be carried out by associate judges,18

costs registrars, a prothonotary or deputy prothonotary,

or judicial registrars, and a proceeding in the Costs

Court may be referred to a mediator.19 A Supreme Court

proceeding may, with the consent of all parties, be

referred to arbitration.20 The County Court, with the

parties’ agreement, may refer a civil proceeding to

arbitration by an arbitral tribunal,21 or by the court itself

acting as an arbitrator,22 or to an assessor,23 or for the

opinion of a legal practitioner about certain matters.24

Mediation privileged/immunity from suitEach of these Acts provides to the effect that unless

all the parties who attend the mediation otherwise agree

in writing, no evidence shall be admitted at the hearing

of the proceeding of anything said or done by any person

at the mediation.25

Likewise, a special referee, mediator or arbitrator to

whom a civil proceeding (or part thereof, or a question

arising therein) is referred under such Act or the rules of

court, or under the CPA, has the same protection and

immunity as a judge in the performance of his or her

duties as a judge.26

Civil Procedure ActThe CPA, which commenced on 1 January 2011,

aimed to introduce a range of measures designed to

achieve its overarching purpose of facilitating the just,

efficient, timely and cost-effective resolution of the real

issues in dispute in civil matters.27

One of the matters which the CPA in its statement of

purposes is to provide for is the further enhancement of

appropriate dispute resolution processes.28

The overarching purpose of the CPA is to “facilitate

the just, efficient, timely and cost-effective resolution of

the real issues in dispute”.29 Such purpose may be

achieved by, inter alia, any appropriate dispute resolu-

tion process.30

Under the CPA, “appropriate dispute resolution” is

defined to mean a process attended, or participated in, by

a party for the purposes of negotiating a settlement of the

civil proceeding or resolving or narrowing the issues in

dispute, including, but not limited to:

(a) mediation, whether or not referred to a mediator in

accordance with rules of court;

(b) early neutral evaluation;

(c) judicial resolution conference;

(d) settlement conference;

(e) reference of a question, a civil proceeding or part

of a civil proceeding to a special referee;

(f) expert determination;

(g) conciliation; and

(h) arbitration.31

The “overarching obligations” apply in respect of the

conduct of any aspect of a civil proceeding in a court,

including appropriate dispute resolution.32 Under the

CPA, each of the participants in litigation has a para-

mount duty to the court to further the administration of

justice in relation to any civil proceeding in which that

person is involved, including in appropriate dispute

resolution.33

The CPA provides that a court may make an order

referring a civil proceeding, or part of a civil proceeding,

to appropriate dispute resolution, but only without the

parties’ consent where the appropriate dispute resolution

does not result in a binding outcome. 34 Under the CPA,

the courts may, by the use of their case managements

powers, actively encourage the parties to use appropriate

dispute resolution.35

Other Acts that provide for mediation oranother form of ADR

There are many other Acts and Statutory Rules in

Victoria that make provision for mediation and ADR. A

retail tenancy dispute must first be referred for media-

tion or another appropriate form of alternative dispute


resolution before such a dispute may be heard and

determined at VCAT.36 A creditor must provide a farmer

with the option to mediate before taking possession of

property or other enforcement action regarding a farm

mortgage under a farm debt dispute.37 The Architects

Registration Board of Victoria may refer a disciplinary

complaint to mediation.38 The Director of Consumer

Affairs Victoria may refer to a consumer affairs employee

for conciliation or mediation any dispute about a supply

or possible supply of goods or services in trade or

commerce39 and a body corporate dispute.40 Arbitrators

have the power to act as a mediator, conciliator or other

non-arbitral intermediary in arbitrations under the Com-

mercial Arbitration Act.41

What happens if a party does not attendmediation?

If a proceeding has been referred to ADR and one of

the parties does not attend, the party not attending may

be ordered to pay the costs thrown away. In Kullilli

People v Queensland,42 a non-party Land Council was

ordered to pay a party’s costs of a mediation hearing on

the basis that the non-party’s actions caused the appli-

cant to incur wasted costs in attending a mediation. In

Blue Cross Properties (Toorak) Pty Ltd v Mackie & Staff

Pty Ltd,43 an application for costs in these circumstance

was made but refused on the basis that it had not been

established that the mediation had been wasted, given

that the remaining parties proceeded in the absence of

the respondent. Alternatively, judgment may even be

entered against the defaulting party. In Mulvaney Hold-

ings Pty Ltd v Thorne,44 the court ordered that interlocu-

tory judgment be entered against the respondent with

compensation to be assessed on the applicants’ respec-

tive claims as a result of the failure of the respondent to

attend mediation ordered by the court and its failure to

comply with disclosure obligations under the rules of

court. Conceivably, a party may even be subject to

contempt proceedings.45 A party could be subject to

contempt proceedings for failing to comply with an

order for mediation, although it is likely that a specific

order would need to be obtained ordering the respondent

to attend a mediation at a particular place and time

before he or she could be adjudged as guilty of con-

tempt. At VCAT, if the tribunal believes that a party to a

proceeding is conducting the proceeding in a way that

unnecessarily disadvantages another party to the pro-

ceeding by conduct such as failing to attend mediation

or the hearing of the proceeding, the tribunal may:

(a) order that the proceeding be dismissed or struck

out, if the party causing the disadvantage is the

applicant; or

(b) if the party causing the disadvantage is not the

applicant —

(i) determine the proceeding in favour of the

applicant and make any appropriate orders; or

(ii) order that the party causing the disadvantage be

struck out of the proceeding;

(c) make an order for costs under s 109.46

ConclusionBoth federal and state legislation increasingly pro-

vides for ADR to be used by courts, tribunals and

various agencies.47 This policy has been actively pur-

sued by the previous and present Victorian state govern-

ments. There is little doubt that the trend will continue.

John K Arthur

Barrister and Member of the Victorian Bar

Accredited Mediator, MCIArb

Isaacs Chambers

Footnotes1. National Alternative Dispute Resolution Advisory Council

(NADRAC), cited in Victorian Law Reform Commission

(VLRC) Civil Justice Review Report May 2008 p 212 n 1,

available at www.lawreform.vic.gov.au.

2. The term “appropriate dispute resolution” is defined in s 3 of

that Act.

3. Above, n 1, p 212 n 4.

4. Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646;

BC200205034 at [24]–[26], cited in Biosciences Research

Centre Pty Ltd v Plenary Research Pty Ltd [2012] VSC 249;

BC201204250 at [56] per Croft J and on appeal in Plenary

Research Pty Ltd v Biosciences Research Centre Pty Ltd [2013]

VSCA 217; BC201312046 at [33] per Garde AJA (with whom

Maxwell P and Tate JA agreed); 1144 Nepean Highway Pty Ltd

v Abnote Australasia Pty Ltd (2009) 26 VR 551; [2009] VSCA

308; BC200911422; Cessnock City Council v Aviation &

Leisure Corp Pty Ltd [2012] NSWSC 221; BC201201256 at

[31] per Hammerschlag J.

5. Comprising various levels and types of ADR, and providing

that if one does not succeed, the parties go up to the next level:

see, for example, United Group Rail Services Ltd v Rail Corp

(NSW) (2009) 74 NSWLR 618; [2009] NSWCA177; BC200905748;

Cape Lambert Resources Ltd v MCC Australia Sanjin Mining

Pty Ltd (2013) 298 ALR 666; [2013] WASCA 66; BC201301614.

6. See the list in the definition of “appropriate dispute resolution”

in s 3 of the Civil Procedure Act 2010 (Vic). Various institu-

tions in Australia, such as the Institute of Arbitrators &

Mediators Australia (IAMA), the Australian Centre for Inter-

national Commercial Arbitration (ACICA) and the Australian


Commercial Disputes Centre (ACDC) offer model clauses for

arbitration and mediation, as well as for expert determination.

See, for example, ACICA “Rules & Clauses”, available at

www.acica.org.au; IAMA “Standard Clauses for Use in Agree-

ments”, available at www.iama.org.au.

7. Above, n 5.

8. Supreme Court Act 1986 (Vic); County Court Act 1958 (Vic);

Magistrates’ Court Act 1989 (Vic).

9. VCAT was established under the Victorian Civil and Admin-

istrative Tribunal Act 1998 (Vic) and commenced operation on

1 July 1998, amalgamating 15 boards and tribunals to offer a

“super-tribunal” dealing with a range of disputes. It is similar

to the Western Australian State Administrative Tribunal, the

Civil and Administrative Tribunal in the Australian Capital

Territory, Queensland’s Civil and Administrative Tribunal, and

the NSW Civil and Administrative Tribunal, which com-

menced operation recently. See J Chaney “Australian super-

tribunals — similarities and differences” 14 June 2013, available

at www.sat.justice.wa.gov.au.

10. Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550;

BC201313787 per Croft J.

11. Practice Note No 4 of 2006.

12. This is the Standard Mediation Order on the Supreme Court

website. See www.supremecourt.vic.gov.au and follow the link

to “Forms”.

13. Results from an Acts search carried out on 18 March 2014 at

www.legislation.vic.gov.au. The compendium of Victorian Acts

(cited in VLRC, above, n 1, p 215) prepared by the Department

of Justice in 2006 regarding the different types of ADR

legislated for in Victoria lists 73 separate pieces of Victorian

legislation that refer to ADR, which is said not to be an

exhaustive list.

14. Above, n 8.

15. For references to mediation, see Supreme Court: Supreme

Court Rules, r 50.07; Court of Appeal of the Supreme Court,

see r 64.21(3), (4); Civil Procedure Victoria LexisNexis at [I

50.07.07]; County Court: County Court Rules, rr 34A.21,

50.07; Magistrates’ Court: Magistrates’ Court Act 1989 (Vic),

s 108(1); VCAT: Victorian Civil and Administrative Tribunal

Act 1998 (Vic), s 88(1), (2).

16. For references to arbitration: Supreme Court: Supreme Court

Rules, r 50.08; County Court: County Court Act 1958 (Vic),

s 47A; County Court Rules, r 50.08.

17. For references to special referee: Supreme Court: Supreme

Court Rules, r 50.01–.06; County Court: County Court Act 1958

(Vic), s 47A; County Court Rules, r 50.08; VCAT: Victorian

Civil and Administrative Tribunal Act 1998 (Vic), s 95. In the

Supreme Court, the parties may seek neutral evaluation from

the judge: see Notice to the Profession 2009, Early Neutral

Evaluation, Pilot Process, and see below in relation to powers

under the Civil Procedure Act 2010 (Vic).

18. Supreme Court Rules, r 50.07.1–.4.

19. Above, n 18, r 50.07(2.1).

20. Above, n 18, r 50.08.

21. County Court Act 1958 (Vic), s 46 and see County Court Rules,

r 50.08.

22. Above, n 21, s 47.

23. Above, n 21, s 48A.

24. Above, n 21, s 48B.

25. Supreme Court Act 1986 (Vic), s 24A; County Court Act 1958

(Vic), s 47B; Magistrates’ Court Act 1989 (Vic), s 108;

Victorian Civil and Administrative Tribunal Act 1998 (Vic),

s 92. See also Evidence (Miscellaneous Provisions) Act 1958

(Vic), s 211. While s 131(2)(h) of the Evidence Act 2008 (Vic)

clearly allows for “without prejudice” communications between

the parties that are relevant to the issue of costs to be admitted

into evidence on that issue, such general provision must give

way to s 24A, which is a specific provision concerning

mediation: Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010]

VSCA 195; BC201005509 at [12]–[15]. See Civil Procedure

Victoria LexisNexis at [333.0].

26. Supreme Court Act 1986 (Vic), s 27A; Supreme Court Rules,

r 50.07; County Court Act 1958 (Vic), s 48C; Magistrates’

Court Act 1989 (Vic), s 108A (solely in respect of mediators, as

arbitrations under the Magistrates’ Court Act are summary

adjudication processes undertaken by magistrates along with

their other powers and duties, and quite distinct from arbitra-

tion under the Commercial Arbitration Act 2011 (Vic)).

27. Civil Procedure Act 2010 (Vic), s 7; Civil Procedure Victoria

LexisNexis at [C1.01.0]–[C1.01.5].

28. Above, n 27, s 1(2)(d).

29. Above, n 27, s 7(1).

30. Above, n 27, s 7(2).

31. Above, n 27, s 3.

32. Above, n 27, s 11(c).

33. Above, n 27, s 16.

34. Section 66(1); the parties cannot be compelled under this

provision to go to arbitration, or reference to a special referee,

or expert determination: s 66(2).

35. Above, n 27, s 47(3)(d)(iii).

36. See Pt 10 of the Retail Leases Act 2003 (Vic).

37. Farm Debt Mediation Act 2011 (Vic).

38. Architects Act 1991 (Vic).

39. Australian Consumer Law and Fair Trading Act 2012 (Vic),

s 114.

40. Owners Corporations Act 2006 (Vic), s 161.

41. Commercial Arbitration Act 2011 (Vic), s 27D.

42. Kullilli People v Queensland [1999] FCA 1449; BC9906952

per Drummond J.

43. Blue Cross Properties (Toorak) Pty Ltd v Mackie & Staff Pty

Ltd [2007] VSC 304; BC200707077 per Habersberger J.

44. Mulvaney Holdings Pty Ltd v Thorne [2012] QSC 127;

BC201203225.

45. See Advan Investments Pty Ltd v Dean Gleeson Motor Sales

Pty Ltd [2003] VSC 201; BC200303342 at [31]–[32].

46. Victorian Civil and Administrative Tribunal Act 1998 (Vic),

s 78(2).

47. Above, n 1, p 215.


Statutory requirements to attend or use ADR:QueenslandPeter Ambrose QC 18 INNS BARRISTERS’ CHAMBERS and Kelly McIntyre DAN CASEY

CHAMBERS

The last decade has seen a significant uptake in the

use of alternative dispute resolution (ADR) processes

such as mediation, conciliation conferences and arbitra-

tion as a means by which disputes are resolved. Indeed,

there are no fewer than 22 different Acts in Queensland1

that provide for the use of ADR, either by court direction

or by voluntary election. Of those 22, half have been

introduced in the preceding decade, three include as a

mandatory prerequisite to court proceedings the calling

of, and attendance at, a “compulsory conference”,2 and

one provides that the only means by which a review of

“particular decisions” may be undertaken is through

either internal review or ADR.3 This seems to be a

remarkable move towards a less complicated and less

litigious means of dispute resolution.

In 2004, the then Commonwealth Attorney-General

issued an ADR initiatives paper4 which advocated for

the simplification of the dispute resolution process in

Australia through the use of mediation, arbitration and

conferences as a means of achieving more cost-effective

access to justice. In Queensland, this conceptual initia-

tive permeated legislation and resulted in what we have

today. Our assessment is by no means exhaustive, but it

provides a clear indication of the extent of its impact on

the way in which justice is now served.

Forms of ADRADR in Queensland takes many different forms:

mediation, conciliation conferences, compulsory confer-

ences, arbitration and case appraisal, to mention a few.

The use of ADR as a dispute resolution mechanism and

the appointment of a mediator, arbitrator, referee, ADR

convenor or authorised person are not always straight-

forward. Rather, ADR is carefully interwoven in the

legislation in circumstances where one may not neces-

sarily expect it. One such example is found in the

regulations to the Motor Accident Insurance Act 1994

(Qld) (MAIA).

The MAIA was one of the first pieces of legislation in

Queensland to introduce a mandatory requirement to use

ADR as a means of dispute resolution. Such requirement

was introduced in Sch 2 of the former Motor Accident

Insurance Regulation 1994 (Qld) by what is known as

the “Industry Deed” (now Sch 2 of the Motor Accident

Insurance Regulation 2004 (Qld)). This regulates the

claim cost sharing obligations of insurers licensed under

the MAIA to issue compulsory third-party (CTP) insur-

ance. The purpose of this Deed was to dispense with

lengthy disputes between insurers on liability where

more than one differently CTP insured vehicle was

involved in a motor vehicle accident causing personal

injury. Such disputes held up resolution of an injured

party’s claim and made litigation complicated, costly

and protracted.

Clause 5 of the Industry Deed provides that insurers

must attempt to agree on the basis for sharing such costs,

but if they cannot agree they must inform the Motor

Accident Insurance Commission (the Commission). The

Commission may then refer the dispute to a referee. The

referee must decide the question(s) pursuant to cl 7, and

in so doing the referee is taken to be an arbitrator

appointed under the Commercial Arbitration Act 1990

(Qld).5

The practical effect of the Industry Deed is that these

disputes are no longer heard by state courts, save in the

rarest of cases — the nature of which is beyond this

topic.

Civil Proceedings ActThe Civil Proceedings Act 2011 (Qld) (CPA), key

provisions of which came into force on 1 Septem-

ber 2012, is intended to modernise and simplify civil

proceedings processes by repealing the Supreme Court

Act 1995 (Qld) and certain provisions of the Supreme

Court of Queensland Act 1991 (Qld). The CPA applies to

the Supreme, District and Magistrates Courts to harmonise

procedures and promote effectiveness and consistency in

courts. In this regard, it contains in Pt 6 an extensive

ADR process.

Part 6 provides that parties to a dispute may agree to

refer their dispute to an ADR process. Alternatively, a

court can refer the dispute to mediation or case appraisal.


If such agreement is reached between the parties, or an

order is made, then the parties must attend before the

ADR convenor appointed to conduct the ADR process.6

The object of Pt 67 is to provide litigants with an

opportunity to achieve negotiated settlements and satis-

factory resolution of disputes. This is to improve access

to justice at reduced cost and delay. Importantly, it is

also intended to provide a legislative framework allow-

ing ADR to be conducted quickly, with little formality

and technicality, while safeguarding the ADR process by

extending the same protection to participants as they

would have if the dispute were before a court. A

much-needed statutory privilege in respect of ADR

processes conducted under the CPA has also been

introduced.8

Prior to the introduction of the CPA, parties to

mediation and other forms of ADR were not afforded

statutory rights to confidentiality and immunity, save in

limited circumstances. This has now been rectified and

is a major advancement in the protection of the interests

of parties subject to the provisions of the CPA ADR

process. Furthermore, mediators or ADR convenors are

now afforded the same immunity as a Supreme Court

judge performing a judicial function.9 In our view, this

will bolster both the community’s and the legal profes-

sion’s confidence in mediation as a viable ADR process

and will allow mediators to act in a more robust way to

assist the parties to settle disputes.

Under the CPA, at the completion of the ADR process

the ADR facilitator is required to prepare a report inter

alia on the success or failure of the ADR and to file it

with the registry, along with a certificate in respect of

participation and attendance of the parties. This is yet

another means by which the court may be satisfied that

the parties were actively engaged in the process and

genuinely attempted to resolve the dispute prior to

returning to court.

The integration of ADR in a vast number of legisla-

tive instruments in Queensland is now by reference back

to the provisions of the CPA — save in respect of costs,

which invariably revert to the referring legislation.

Practitioners and mediators ought to familiarise them-

selves with the provisions of the CPA in respect of

mediation.

Uniform Civil Procedure RulesChapter 9 of the Uniform Civil Procedure Rules 1999

(Qld) (UCPR) deals with the ADR process in circum-

stances where it is intended to end proceedings early.

Pursuant to UCPR rr 319, 320 and 334, a court may

order that a matter be referred to mediation or to case

appraisal. Alternatively, a party to proceedings before

the court may apply to have the matter referred to

mediation.

If a matter is referred to an ADR process, then the

proceedings are stayed until six days after the ADR

facilitator has issued his or her report and filed the report

with the registrar.

The parties have an obligation to act reasonably and

genuinely in the process and to help the mediator start

and finish the mediation within the time estimated or set

in the referring order.10 Although the UCPR contains its

own rules in respect of ADR, it also refers back to the

CPA in relation to the filing of a report and the

mediator’s obligation to file a certificate about the

mediation.11

Personal injuriesThere are three pieces of legislation that include as a

mandatory prerequisite to court proceedings the calling

of, and attendance at, a “compulsory conference”.12 The

purpose of such provisions is to ensure the effective and

efficient disposal of such disputes in a manner that is

advantageous to the financial benefit of an injured

claimant and a reduction in legal costs for all parties.

The result of this process is that the courts are only

seized of those matters that genuinely require their

attention, and often the issues in dispute are significantly

narrowed by the time of trial. In our experience, it is an

effective means of settling disputes, and anecdotal evi-

dence from mediators puts the success rate at about 75%

on the day of mediation.13

Although there is anecdotal evidence to suggest a

fairly high success rate for the settlement of such

disputes, there is a view that parties ought not be

compelled to participate in ADR as a dispute resolution

process. Indeed, in Halsey v Milton Keynes General

NHS Trust,14 the court gave credence to the policy view

that parties should be encouraged, but not compelled, to

participate in ADR. In considering this position, many

courts have the power to order parties to attend ADR,15

but few pieces of legislation require such attendance as

a precursor to commencing proceedings.

The National Alternative Dispute Resolution Advi-

sory Council released a report in 200616 that considered

the impact of compulsory attendance in an ADR process.

It commissioned research that ultimately showed that

“participants in compulsory ADR do not generally

express objections at the end of the process and that they

do not opt out if given the choice”.17 So, although there

may be some criticism levelled at compulsory atten-

dance, it is, as our anecdotal evidence suggests, likely to

result in an outcome that is equally unpalatable to both

parties — at least until resolution occurs.

Resources and environmentDisputes about resources and environment, which are

dominated by major mining and petroleum companies,


are another area where ADR is regularly used as a means

of negotiating make-good agreements,18 conduct and

compensation agreements,19 and alternative arrange-

ments.20 These types of agreements are required to be

entered into with eligible claimants, being those persons

affected by the mining and petroleum activities. Ordi-

narily, such agreements will deal with the conduct of the

resource entity and its authorised persons in respect of

accessing and conducting activities on landholders’ land

and the following compensation liability that the entity

may have towards such a landholder. Similarly, a make-

good agreement will also deal with circumstances where

the resource entity has, through its operations, drawn

down water in an aquifer and, as such, a landholder is

detrimentally affected in terms of the quantity or quality

of underground water available to them. Such an agree-

ment will necessarily outline the steps to be taken by the

resource entity to reinstate or make-good water quantity

or quality. Typically, these agreements are negotiated

between the resource entity and either the landholder

directly or a representative on behalf of the landholder.

The effectiveness of ADR here is unquestionable

insofar as resolutions are achieved. However, its effect is

arguably at the expense of the development of judicial

statutory construction in the area. Accordingly, while the

terms of conduct and the quantum of compensation are

regularly negotiated, an authoritative legal construction

of statutory heads of compensation remains undecided.

Consequently, there is a void of judicial decision in

respect of certain heads of compensation, unique to

those pieces of legislation, which results in heightened

uncertainty as to whether or not compensation is payable

for such matters as “landholder management time”.

What is certain is that there is a genuine desire on the

part of the industry and the individuals affected to

resolve their dispute without the need to go to court.

There may come a time, however, when mediation

becomes less effective pending judicial determination to

ascertain whether certain heads of damage are compens-

able as a matter of law.

ConclusionsCompulsory participation in ADR processes is increas-

ingly prevalent and anecdotally is having high rates of

success.

Practitioners should satisfy themselves of the legis-

lative requirements to participate in, and options that

they may avail themselves of in respect of, ADR

processes in Queensland. They should review the rel-

evant legislation carefully and determine whether things

such as participation certificates and mediator reports

need to be prepared post-completion of the ADR pro-

cess.

Mediators should also ensure that they understand the

statutory rights, obligations and immunities afforded to

them and the parties.

Peter Ambrose QC

Barrister

18 Inns Barristers’ Chambers

Kelly McIntyre

Barrister and Mediator

Dan Casey Chambers

Footnotes1. Civil Proceedings Act 2011 (Qld); Dispute Resolution Centres

Act 1990 (Qld); Family Law Act 1975 (Cth); Geothermal

Energy Act 2010 (Qld); Greenhouse Gas and Storage Act 2009

(Qld); Health Quality Complaints Commission Act 2006 (Qld);

Land Court Act 2000 (Qld); Land Valuations Act 2010 (Qld);

Legal Profession Act 2007 (Qld); Marine Parks Act 2004

(Qld); Mineral Resources Act 1989 (Qld); Motor Accident

Insurance Act 1994 (Qld); Personal Injuries Proceedings Act 2002

(Qld); Petroleum Act 1923 (Qld); Petroleum and Gas (Produc-

tion and Safety) Act 2004 (Qld); Planning and Environment

Court Rules 2010 (Qld); Queensland Civil and Administrative

Tribunal Act 2009 (Qld); Supreme Court of Queensland

Act 1991 (Qld); Sustainable Planning Act 2009 (Qld); Uniform

Civil Procedure Rules 1999 (Qld); Water Act 2000 (Qld);

Workers Compensation and Rehabilitation Act 2003 (Qld).

2. Personal Injuries Proceedings Act 2002 (Qld); Motor Accident

Insurance Act 1994 (Qld); Workers Compensation and Reha-

bilitation Act 2003 (Qld).

3. Section 117 of the Marine Parks Act 2004 (Qld).

4. P Ruddock “Towards a less litigious Australia: the Australian

government’s alternative dispute resolution initiatives” (2004)

23(1) The Arbitrator & Mediator 1.

5. The Deed may need amendment to reference the Commercial

Arbitration Act 2013 (Qld).

6. Sections 42, 43 and 44 of the Civil Proceedings Act 2011 (Qld).

7. Above, n 6, s 37.

8. Above, n 6, s 54 Pt 6 Div 5.

9. Above, n 6, s 52.

10. Rule 325 of the Uniform Civil Procedure Rules 1999 (Qld).

11. Above, n 10, r 325.

12. Section 51A of the Motor Accident Insurance Act 1994 (Qld);

s 36(1) of the Personal Injuries Proceedings Act 2002 (Qld);

s 289(1) of the Workers Compensation and Rehabilitation

Act 2003 (Qld).


13. Detailed statistics about those matters that settle after media-

tion but before the start of a trial would be interesting but

difficult to obtain.

14. Halsey v Milton Keynes General NHS Trust; Steel v Joy [2004]

All ER (D) 125 (May); [2004] NLJR 769; [2004] 4 All ER 920;

[2004] 1 WLR 3002; [2004] EWCA Civ 576.

15. Federal Court of Australia Act 1976 (Cth); Federal Magistrates

Act 1999 (Cth); Native Title Act 1993 (Cth); Family Law

Act 1975 (Cth); Administrative Appeals Tribunal; Human

Rights Commission.

16. National Alternative Dispute Resolution Advisory Council

(NADRAC) Legislating for Alternative Dispute Resolution: A

Guide for Government Policy-Makers and Legal Drafters

November 2006.

17. Above, n 16, p 48 at [6.43]; K Mack Court Referral to ADR:

Criteria and Research Australian Institute of Judicial Admin-

istration and NADRAC 2003 pp 4 and 50.

18. Water Act 2000 (Qld), ss 426, 430 and 434.

19. Petroleum Act 1923 (Qld), s 79VA; Petroleum and Gas

(Production and Safety) Act 2004 (Qld), ss 537A, 734E and

734F; Mineral Resources Act 1989 (Qld), s 20; Greenhouse

Gas and Storage Act 2009 (Qld), ss 325A, 325B and 377D;

Geothermal Energy Act 2010 (Qld), s 254.

20. Environmental Protection Act 1994 (Qld).


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