Gain & Anor v Commonwealth Bank of Australia and ANOR [1997] NSWLR 252
Their claim was based on the assertion that no ‘satisfactory mediation’ had taken place to warrant the issuance of the s. 11(1)(a) certificate. Once the s11(1)(a) certificate has been issued by the Rural Assistance Authority, the creditor is at liberty to proceed with enforcement of the securities.
The court, therefore, was faced with the following two questions:
- Is a s11 (1) (a) certificate amenable to Judicial Review by the Supreme Court of New South Wales
In answering this question, the court turned to the implied legislative intent to exclude judicial review of the certificate. The court considered s15 of the Act whereby tendering any document ‘prepared for the purpose of, in the course of or pursuant to a mediation session’ is rendered inadmissible in any proceedings in the court. The court noted that s15 ‘severely restricts’ any capacity to successfully mount a challenge to the certificate.
- When is a mediation considered ‘satisfactory mediation’ for the purposes of s11 of the Farm Debt Mediation Act 1994 (NSW)
The Gains contended that “satisfactory mediation” under s11 (1) (a) of the act meant a mediation that “has proceeded to an outcome by way of either a heads of agreement in settlement of the dispute or an agreement by the parties that nothing further was to be gained by mediation”. They further contended that neither of the two limbs of their definition had been met thereby not meeting the threshold of a ‘satisfactory mediation’ under the act.
Gains’ contention was based on the fact that they and the bank were in a deadlock thereby precluding any resolution of the dispute. The Gains had sought an adjournment of the mediation, which the bank made conditional on the Gains providing information about their financial position.
The Gains in return sought a discovery of internal documents of the bank.The Gains refused to provide information about their financial position and the Bank refused to provide discovery of their internal documents.The court dismissed the applicants’ arguments and held that a “satisfactory mediation” means a mediation which has ‘proceeded as far as it can’. The “satisfactory” threshold does not depend on the resolution of the dispute.
The Gains’ appeal was dismissed and judicial review of the s11(1)(a) certificate was accordingly denied.
