The parties negotiated a settlement at an Early Intervention Case Conference (EICC) relating to child support. Subsequent to the EICC, the parties attempted to turn the agreement into a formal order and discussions broke down. The parties reverted to their pre-EICC positions and booked an Application concerning child support payments into Special Chambers.

Feasby J held that the agreement that emerged from the EICC was valid and the parties were not at liberty to resile from that agreement even though it was not recorded in a formal order of the Court.

The Court took into consideration rule 1.3(2) which, in addition to the Court’s inherent jurisdiction to control its process, provided jurisdiction to grant the remedy of upholding the EICC agreement whether or not it was claimed in the action. The Court noted that the unusual step of deciding an application on an issue not before the Court was not taken lightly; however, in situations where the parties have no reason to look out for the public interest, or are ill-equipped to do so, the Court must control its process to ensure the appropriate use of Court resources.

The Court also commented that the EICC process, similar to the Judicial Dispute Resolution (JDR) process, is privileged. However, the exception to settlement privilege that privileged communications may be disclosed to prove the existence of a settlement is incorporated into the Rules of Court provisions that govern judicial dispute resolution processes. Rule 4.20(4) provides that the general rule against using materials prepared for the purpose of a judicial mediation are privileged and may not be presented as evidence “does not prevent the use of statements made or documents generated for or in the judicial dispute resolution process to prove the fact that a settlement was reached or the terms of a settlement”.

Finally, relying on Rules 1.2 and 1.4, the Court noted that the Application was contrary to the requirements of the administration of justice and an abuse of process as: (a) it sought to relitigate issues settled by agreement in a judicial mediation process; and (b) it did not further the purpose and intention of the Rules of Court because it was not an effective use of publicly-funded Court resources.  Having found the application was an abuse of process, the Court determined it could remit the matter back to the EICC Justice to settle the terms of the Order or do so at the time. The Court held to remit the matter would be an unnecessary use of judicial resources and settled the terms of the Order.