Council of Law Reporting for NSW
50th anniversary writing competition - What do you think is the most memorable judgment that has been published in the NSW Law Reports?
Winning entry-Robert Angyal SC
Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194
The most memorable judgment is Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194 (Giles J, as his Honour then was).
Hooper Bailie enforced an agreement to mediate. Why is it so memorable?
- In 1992, it was very uncertain that an agreement to mediate was enforceable. The judgment contains not just one, but two, significant intellectual breakthroughs that permitted enforcement.
- They were achieved without assistance from the parties and despite English rulings, including in the House of Lords, apparently to the contrary.
- It provided the intellectual basis for the ubiquitous mediation of civil disputes in NSW that we now take for granted.
Intellectual breakthrough #1: An agreement to mediate is not an agreement to agree, nor an agreement to attempt to agree. Neither of these is enforceable. Instead, it is an agreement to participate in a process which might result in agreement (206A-D). “What is enforced is not co-operation and consent but participation in a process from which co-operation and consent might come” (id.).
Intellectual breakthrough #2: An agreement to mediate “may require of the parties participation in the process by conduct of sufficient certainty for legal recognition of the agreement” (209D-E, 210F-G) and thus be enforceable (210G).
These breakthroughs were achieved despite both parties (incorrectly) submitting there was no relevant authority (204C-D); despite the plaintiff expressly disclaiming that equity permitted enforcement of the agreement (203A, 210E); and despite rulings of English courts, including the House of Lords, apparently to the contrary (207C-208C).