Collins v State of Queensland (2020) QSC 154
Everybody who engages in mediation should read the Decision of Kenneth Charles Collins v State of Queensland  QSC 154 (5 June 2020).
The Judgment was delivered on 5 June. It raises the issues of equity, undue influence and duress in the context of a mediation.
Justice Holmes dismissed Mr Collins’ application. He had sought to set aside a Deed of Settlement entered into with the State of Queensland after a mediation. He argued that he was subject to a special disability and that the respondent had taken unconscientious advantage.
Paragraph 37 discusses the issue of special disadvantage. Her Honour said:
“Mr Collins did not adduce any evidence on which I could make a finding that he was subject to any special disadvantage.
He had been unrepresented earlier in the litigation and one might infer from that, as the respondent acknowledged in its Points of Defence, that he had not sufficient means to afford legal representation at a trial or in interlocutory proceedings; but that could by no stretch of the imagination amount to special disadvantage.” [my emphasis]
Mr Collins had chosen a particular mediator who had not been the respondent’s first choice. That mediator was accepted at Mr Collins’ request and Her Honour said:
“Mr Collins has failed to demonstrate any conflict of interest on the part of the mediator.”
The allegation that the respondent had failed in bad faith to participate in the mediation was answered by Her Honour in this way:
“How the mediation progressed was up to the mediator.”
His mediation agreement had given him, in her words, “a wide latitude as to how to proceed”. Her Honour found no basis for a finding of improper conduct by Mr Collins’ legal representatives.
Mr Collins had felt that his counsel did not defend him when the mediator challenged his position. Again, Her Honour referred in this way:
“Under the mediation agreement he was entitled to put to Mr Collins observations about the practicality of proceeding to litigation.”
There was a finding that there is no evidence that his barrister and solicitor were motivated by anything but the desire to achieve the best outcome for Mr Collins.
Pressure is addressed in paragraph 43. Her Honour found that she accepted that he was feeling under pressure, that he “may have been deprived of his free will to a considerable extent”. His solicitor, however, had given evidence that his reaction was not so remarkable that those around him should have been aware of it. It is important to note that the solicitor and counsel were engaged for the purpose of the mediation. They did not know Mr Collins well. Perhaps a different outcome may have been available had they known him well.
There is a Victorian Supreme Court Decision, Goddard Elliott (a firm) v Fritsch  VSC 87 (14 March 2012), in which a party was well-known to his representatives and their failure not to appreciate his distress was the basis of a negligence claim.
Mr Collins had added a public policy argument. Her Honour said:
“It is necessary only to observe that even had there been the misconduct of which he complains, it would be an odd approach to public policy to deprive a party of the benefit of an agreement because of the behaviour of others (including the other party’s own legal representatives) with which it had no connection.”
I have referred only to the parts relevant to mediators.
It is an important case and the significance of the mediation agreement and its terms is clearly an important focus and the need to make all proper disclosure of relationships that might be assumed by the practitioners to the parties.