Threats - Threats to Escalate Criminal Proceedings - Settlement Negotiations - Mediation - Ethics
Settlement Negotiations & Mediation
Ethics
Threats
[A] Threats - Threats to Escalate Criminal Proceedings - Settlement Negotiations
Compounding an Offence?
What is the threat?
> "The enclosed draft letter, the letter to the Southport Police Chief read: “We act for Susan Sing in respect of the above lease. Our client wishes to make a complaint about the conduct of one Andrew Haberfield with respect to the issuance of three cheques by Andrew Haberfield on behalf of Prosport Beverage Company Pty Ltd which were dishonoured on presentation.” It provided some details and continued: “We request that Mr Haberfield and his wife be interviewed at 101 Cabana Boulevard, Benowa Waters and such action be taken as is appropriate as we believe that an examination of the account from which these cheques were written will demonstrate that at the time of issuance the signatory to the cheques could not have held any or any reasonable belief that there were funds in the account to meet payment.” You will appreciate that passing valueless cheques is still an offence in Queensland. Mr Haberfield complained that he had been threatened with detriment and menaces, a breach of the criminal law. The Chief Justice observed the threat should be carefully defined. It was to ask the police to investigate the dishonouring of the cheques, an investigation which if followed through may or may not have led to a prosecution. It was not actually a threat to launch criminal proceedings were civil satisfaction not made, or to institute a prosecution. His Honour referred to the old solicitors’ handbook as providing no relevant guidance although he did for completeness refer to the old paragraph 18.01 which dealt with correspondence. His Honour went on “This situation falls into a category described by Professor Dal Pont the author of Lawyers’ Professional Responsibility: ‘…there is arguably no ethical objection to a lawyer, instead of threatening criminal proceedings as an alternative to civil redress indicating that the possible commission of a crime (such as if goods are not returned), will be referred to the appropriate authorities.’” The relevant criminal provision which potentially made what the solicitor did an offence was, s 133(1) of the Criminal Code: 13 “Any person who asks for, receives or obtains or agrees or attempts to receive or obtain any property or benefit of any kind for himself, herself or any other person upon any agreement or understanding that the person will compound or conceal a crime or will abstain from, discontinue or delay a prosecution for a crime or will withhold any evidence thereof is guilty of an indictable offence.” I pause to observe in my practise there were many occasions when I gave advice to solicitors about this provision, mostly after they had realised they may have breached it. His Honour continued: “It is in any case difficult to say that, in terms of s 133(1), the respondent asked for a benefit upon an understanding he would abstain from a prosecution: other matters aside, he was not the prosecuting authority.” The competing view is a court may interprets 133 more broadly than that and contemplate it is enough that a person is a potential complainant for the purposes of the section. It is a grey area. His Honour was alive to this for he observed: “Nevertheless the Code provision and the ethical provisions in other jurisdictions together with the Queensland cases earlier referred to, indicate that a practitioner needs to be very careful not to cross a rather finely drawn line in a situation like this. …The content of a lawyer’s ethical obligation obviously is not defined by avoidance of criminal breach. The criminal law is relevant but the ethical bar is set at a much higher level. …The issue is whether his being a solicitor rendered that [the letter] objectionable in an ethical sense. Did he make improper use of his being a solicitor, and thereby exhibit a lack of the probity expected of a solicitor?” His Honour continued: “There was in the present case nothing ethically objectionable in this treatment, albeit strong, of a party on the other side of the adversarial ledger…. It is important to note that he stopped short at foreshadowing inviting the police service to investigate the possible commission of an offence. He did not go on actually to threaten to launch a prosecution.” His Honour observed, and you may think these comments were intended for an audience wider than merely the persons involved in this case: “Pressure is daily brought to bear to encourage people to discharge their legal obligations. There is nothing legally or morally wrong with that, assuming reasonable restraint… There is a continuum applicable to practitioners, with legitimate pressure at the one end and improper intimidation at the other. It may, in any particular case, be difficult to delineate the precise point at which any application of pressure becomes improper. That is why practitioners must be extremely careful before resorting to any even arguably threatening conduct. They are well advised to err on the side of caution, as in all aspects of their professional approach. With the increasingly intense demands of clients and the high level of competition which these days characterises the practise of the law, practitioners will inevitably be asked to stretch the limits of their consciences: they must be steadfast not to yield to that temptation. The Tribunal is not satisfied that the pressure applied by the respondent after allowing for his professional capacity, was improper or unfair. I record my gratitude to the panel members for assisting me in making that value judgment.” ...": Henry James, 'Ethical Issues in Correspondence Between Solicitors' delivered to FNQLA, Cairns, (QSC)" [2012] QldJSchol 77 <https://austlii.edu.au/cgi-bin/viewdoc/au/journals/QldJSchol/2012/77.html>.
> s 133(1) Criminal Code (Q): <https://www5.austlii.edu.au/au/legis/qld/consol_act/cc189994/s133.htm>.
> s 44 Crimes Act 1914 (Cth): <https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca191482/s44.html>.
> s 316(2) Crimes Act 1900 (NSW): "(2) A person who solicits, accepts or agrees to accept any benefit for the person or any other person in consideration for doing anything that would be an offence under subsection (1) is guilty of an offence. Maximum penalty—Imprisonment for— (a) 5 years—if the maximum penalty for the serious indictable offence is not more than 10 years imprisonment, or (b) 6 years—if the maximum penalty for the serious indictable offence is more than 10 years imprisonment but not more than 20 years imprisonment, or (c) 7 years—if the maximum penalty for the serious indictable offence is more than 20 years imprisonment. (3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making of reasonable compensation for that loss or injury."
** See Commentary by NSW Law Society, Review of the ASCR (5 May 2021) <https://www.lawsociety.com.au/sites/default/files/2022-02/2021%20Dec%201%20-%20Final%20ASCR%20Report.pdf>, archived at <https://web.archive.org/web/20250415195907/https://www.lawsociety.com.au/sites/default/files/2022-02/2021%20Dec%201%20-%20Final%20ASCR%20Report.pdf>, pp 176- 179 et seq.
Solicitors Conduct Rules
"[30] The first application referred to Rule 34 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (the Conduct Rules), which provides: 34 Dealing other persons 34.1 A solicitor must not in any action or communication associated with representing a client: 34.1.1 make any statement which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client, and which misleads or intimidates the other person, 34.1.2 threaten the institution of criminal or disciplinary proceedings against the other person if a civil liability to the solicitor’s client is not satisfied, or 34.1.3 use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person. 34.2 In the conduct or promotion of a solicitor’s practice, the solicitor must not seek instructions for the provision of legal services in a manner likely to oppress or harass a person who, by reason of some recent trauma or injury, or other circumstances, is, or might reasonably be expected to be, at a significant disadvantage in dealing with the solicitor at the time when the instructions are sought. ... [61] Particulars (g) – (m) have been established on the face of the Second letter. The reference to Supreme Court proceedings in the Second letter does not specify what kind of proceedings are in contemplation, or what the basis for those proceedings might be. It is not clear what was meant by the statement that the Supreme Court would be ‘notified’ of Mr Rezaie’s ‘fraud on the Commonwealth’, or why such a thing would occur. It was not true to say that Mr Palani would have ‘no option but to refer this matter to the Federal Police and to Immigration’. [62] It is alleged that the Second letter was threatening and intimidating. We determine that the part of the Second letter which refers to the future commencement of legal proceedings in the Supreme Court, which would involve the notification to the Court of Mr Rezaie’s ‘fraud on the Commonwealth’ and which would lead to a situation where ‘there will be no option but to refer this matter to the Federal Police and to Immigration’, and that part of the Second letter which says ‘a conviction will go to your character and Immigration may well cancel your visa and/or your Permanent Residency’ are objectively threatening and intimidating. The Second letter is objectively threatening and intimidating. ... [72] We are satisfied on the balance of probabilities that the First letter and the Second letter were threatening and intimidating. ... [86] The Council submitted that, in writing and sending the letters, in circumstances where Mr Rezaie, a refugee, was unrepresented, Mr Hammond unfairly used his professional position to intimidate and threaten Mr Rezaie. The Council submitted that Mr Hammond’s conduct was discourteous and likely, to a material degree, to diminish confidence of the public in the administration of justice, or bring the profession into disrepute. We accept the Council’s submissions. We consider that Mr Hammond’s unsatisfactory professional conduct involved a substantial failure to maintain a reasonable standard of competence and diligence (which implies ethical practice). Given that the First letter was followed by the Second letter, the unethical behaviour was also consistent.": Council of the Law Society of New South Wales v Hammond [2021] NSWCATOD 52.
"[15] Under the heading ‘Criminal matters’, the Respondent Lawyer stated as follows: “Since August 2017, you have been guilty on a number of occasions of failing to deposit funds received by the Business Partnership into the Business Bank Account and instead depositing those monies into your personal bank account, with the intention to permanently deprive both the Business Partnership and our client – the rightful owners of those monies – of assets belonging to them.” “In consideration of the above and circumstances surrounding your misleading and deceptive conduct, we note that you are in breach of Sections 81 and s 82 of the Crimes Act 1958 (Vic) for Obtaining Property by Deception and Obtaining a Financial Advantage by Deception, each of which exposes individuals to the risk of up to 10 years imprisonment, if found guilty.” (emphasis added) “Your conduct is indicative of obtaining money by deception by virtue of the above. This is a criminal offence and carries with it serious penalties.” (emphasis added) “Accordingly, in the event the payments described above are not made to our client within the time lines set out in this letter, we have been instructed to take action to seek orders that you provide all financial and other documents relating to the Business Partnership and any personal and business related bookkeeping and financial records and receipts for consideration as to whether we should act on our instructions to report you for obtaining property and a financial advantage by deception.” (emphasis added)... [18] A client’s instructions cannot override a lawyer’s obligations under the Uniform Law, the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (‘Uniform Rules’) and their other professional obligations. [19] The Respondent Lawyer’s intention is not a relevant factor in assessing whether the statements in the letter of demand misled or intimidated the complainant. [20] In his complaint, the complainant stated that he felt that the letter of demand, particularly in context of the threat of criminal charges, was very threatening and he felt increasingly threatened by the client’s demands and then receipt of the Respondent Lawyer’s letter. Following receipt of the letter of demand, the complainant engaged a lawyer to provide him advice regarding the content of the letter of demand and to act on his behalf regarding a response to the Respondent Lawyer. Further, the complainant has submitted that he thought the Respondent Lawyer and/or the client would execute criminal proceedings. ... [42] By reason of the above findings of fact, I find that the Respondent Lawyer has: made statements in the letter of demand which grossly exceeded the legitimate assertion of the rights or entitlements of the client, and which misled and/or intimidated the complainant; and threatened the institution of criminal proceedings against the complainant if a civil liability to the client was not satisfied. [43] I am therefore satisfied that the respondent lawyer engaged in unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law. [44] Such conduct amounts to a contravention of rule 34.1.1 and 34.1.2 of the Uniform Rules constituting unsatisfactory professional conduct pursuant to section 298(a) of the Uniform Law. ... [48] General deterrence is a relevant factor in this matter as it is important that the legal profession is reminded that it is improper to send correspondence threatening: the institution of legal proceedings if legal costs are not paid in circumstances where a contractual right does not exist; and the institution of criminal proceedings if a civil liability is not satisfied. ...": Commissioner Determination (Misleading and intimidating letter of demand) [2018] VLSC 39.
Professional Misconduct - conduct in the pursuit of professional activities that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency
Threatening to use material that may lead to criminal proceedings in Family Law settlement negotiations: "[7] On 16 November 2016 the Solicitor sent an email to the Husband’s legal representative, stating inter alia: I urge you to convince your client to up the ante for settlement now otherwise the evidence in chief will be against his position and will also be embarrassing with the photos we have of him and his step daughter which I will show you tomorrow. I do not want to put them into evidence but I will if I have to and your client could face criminal charges for child sexual abuse. This is not good. ... [22] The Solicitor stated that with the benefit of hindsight she realises she became too involved in the matter and this clouded her judgment. She felt sorry for her client, was angry the complainant had threatened to deport the Wife, and she realises now that she allowed her personal feelings to impact on her professional judgment. At the time she did not think she was doing anything inappropriate . She now accepts she used the photographs inappropriately and in an unlawful manner and unreservedly apologises for her conduct to the complainant and to the Law Society. ... [32] The Law Society submits that in light of the Solicitor’s admissions the Tribunal can be satisfied that the Solicitor’s conduct in threatening to use material that may lead to criminal proceedings in settlement negotiations constitutes professional misconduct, both as defined in s 297 of the Uniform Law and at common law, being conduct in the pursuit of professional activities that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750). [33] The Solicitor submits that it is common ground that her conduct constituted professional misconduct. Her submissions address the issue of whether the Tribunal should find that she is unfit to practise law and likely to remain unfit to do so in the foreseeable future. ... [44] As noted above, the Law Society maintained its position that the appropriate disciplinary order is for the Tribunal to recommend that the Solicitor’s name be removed from the Roll. The Law Society submits that if the Tribunal determines to impose a fine, the seriousness with which the Tribunal views the conduct impacts on the quantum of the fine. In that regard the Law Society noted that previous decisions involving practitioners found to have engaged in similar conduct may be of assistance in the calculation of the quantum of a fine. The Law Society identified two decisions of the State Administrative Tribunal of Western Australia in which fines were imposed following findings of threatening conduct by a legal practitioner: Legal Practitioners Complaints Committee v Segler [2009] WASAT 91, and Legal Profession Complaints Committee v Amsden [2014] WASAT 57, both of which it submits were distinguishable. Previous decisions in which a NSW Court or Tribunal has imposed a fine of at least $20,000 following findings of misconduct are Legal Services Commissioner v Bryden and Hagipantelis (No 3) [2012] NSWADT 225, and Russo v Legal Services Commissioner [2016] NSWCA 306. The Law Society submits that if the Tribunal makes orders imposing a reprimand and a fine, the quantum of the fine should be at the upper end of the fines imposed having regard to both the seriousness of the Solicitor’s misconduct and her attitude during the course of the investigation.": Council of the Law Society of New South Wales v Searle [2019] NSWCATOD 70.
Appropriate Foundation for Threat?
"54 Legal practitioners enjoy particular privileges in our society. Those privileges carry with them responsibilities. Communications by a lawyer concerning matters of law bear special force by reason of the qualifications and authority of the author. The proper role of a lawyer commonly involves the assertion of legal rights and obligations, and the explanation of the legal consequences of particular courses of action. That role frequently involves pressing claims for civil redress, and on occasion threatening criminal proceedings (see In re Gent One and In re A Barrister (1920) 21 SR (NSW) 12). However, threatening criminal proceedings where there is no adequate foundation is unacceptable. In our view, the threat of criminal action without an adequate foundation, in circumstances where it is designed simply to cause apprehension and distress, is conduct which falls so far short of the standards expected of practitioners of good repute and competence that it amounts to unprofessional conduct. 55 In this case, Mr Segler had no reasonable foundation for the threat made. We are satisfied that the threat was made for no purpose other than to cause anxiety or distress to Mr Dortch. ... guilty of unsatisfactory conduct by unprofessional conduct": LPCC and Segler [2009] WASAT 91.
"5 Following the decision of the High Court of Australia in Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372; (2014) 305 ALR 323 in relation to the prohibition upon a prosecutor in making submissions in respect of penalty in a criminal law context (see Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) at [7] [17]), the Committee has not submitted a view as to the specific result which should be reached or the bounds of the range of penalties which might be imposed on the practitioner. The Committee submits that the penalty in this case should reflect the severity of the misconduct, the particular findings of the Tribunal in the conduct reasons, the impact on Mr A and Ms A of having been subjected to a demand which they had no obligation to pay and court proceedings which had no foundation, and 'the seeming lack of any appreciation by the practitioner of the significance of her wrongdoing', that is, the practitioner's lack of remorse and insight. The Committee does not suggest that the practitioner's professional misconduct is at the highest (that is, worst) end of conduct comprising misconduct and does not suggest that a suspension from legal practice would be appropriate. The Committee notes that the practitioner has not been subject to any prior findings of an adverse disciplinary nature during a legal career of almost 30 years. While the Committee does not submit the specific result which should be reached in relation to penalty, it contends that, in order to meet the intent of protection of the public and the maintenance of the reputation and standards of the legal profession, a reprimand and a substantial fine should be imposed. The Committee also seeks an order for the payment by the practitioner of its costs in terms of disbursements of the proceeding in the amount of $20,339.40.": LPCC and Amsden [2014] WASAT 57.
Threatening costs against practitioner: "[283] The letter in question included a notice to the effect that costs would be sought from the RiskCover claims officer and the recipient, being another practitioner. The Tribunal found that that was intimidating and threatening in circumstances where there were no grounds to make those threats. The Tribunal inferred that, by sending the letter, the practitioner was attempting to advance the progress of his client's claim by making those threats.[175] [284] The Tribunal found that conduct to be in breach of Conduct Rule 6(2)(b) and, therefore, to be professional misconduct .[176] ... [423] In that regard, we repeat that the correspondence in question went well beyond mere discourtesy and was found to have included the making of baseless threats and attempts to threaten and intimidate to obtain unfair advantage.": LSCC and Lourey (No 2) [2023] WASAT 77.
[B] Mediation Ethics and Responsibility
Guidelines for Lawyers in Mediations (Law Council of Australia, May 2019) <https://lawcouncil.au/publicassets/39a0c218-0994-ea11-9434-005056be13b5/Guidelines%20for%20Lawyers%20in%20Mediations%20Final%2016%20May%202019.pdf>, archived at <https://perma.cc/JK8S-Q3Y5>.
Kathy Douglas and Lola Akin Ojelabi, 'Lawyers’ ethical and practice norms in mediation: including emotion as part of the Australian Guidelines for Lawyers in Mediation' (2023) 26(2) Legal Ethics 297 <https://www.tandfonline.com/doi/full/10.1080/1460728x.2023.2227554>.
[B.A] Mediation & Negotiation Privilege - Proceedings of Mediation and Offers at Mediation - FL Act as Lex Specialis - Evidence Act 1995 (Cth)
Question of costs - oral offers by Husband in non-compliance with FL Rules requiring the offer be in writing within time stipulated - Whether oral offers made during mediation were admissible – mediation agreement provided anything said in mediation was not to be put in evidence – where oral offerer party did not make a written offer in compliance with rule 4.11 – oral offers made in mediation not relevant – therefore oral offers in mediation not admissible pursuant to section 117(2A)(g) – if long and oral offer in mediation is admissible then no weight given to oral offers – general law authorities relating to section 131(2)(h) of Evidence Act discussed – Family Law Act authorities applied – application for costs dismissed – application for costs of the unsuccessful costs application dismissed: "53. The principle submission of counsel for the Wife in regard to the oral offers, was that the oral offers were inadmissible because, addressing the terms of section 131(2)(h) of the Evidence Act, the offers to the extent the Court could discern what was actually offered, were not capable of acceptance as would bring about an agreement capable of being put into orders and putting an end to proceedings. ... 191. In Rajski, Azzi v Volvo, Pinot Nominees, Forsyth and Harcourts the general provision of section 131(2)(h) was found to be overridden or subject to the specific provision relating to the admissibility of mediation confidentiality as expressed in the particular jurisdiction that the primary dispute dealt with. Those decisions could be regarded as an example of the application of the cannon or maxim of statutory interpretation of “generalia specialibus non derogant” which can be described as “where there is a conflict between general and specific provisions, the specific provisions prevails”, see Statutory Interpretation in Australia DC Pearce 10th Ed Lexus Nexus (‘Pearce 10th Ed’). Azzi v Volvo & Forsyth apply that maxim. I am satisfied that the same principle is applicable where there is a legislative provision or scheme applicable to costs and/or offers in the jurisdiction of the primary dispute. 192. Hence I am satisfied, by the weight of authority, that where there is a specific provision of a jurisdiction relating to confidentiality of offers and/or mediation and/or costs, those provisions override the general provision of section 131(2)(h). 193. As with the specific legislation in Rajski, Azzi v Volvo, Pinot Nominees, Sinclair & Forsyth (No 2) and Harcourts, I am satisfied that the general provision of section 131(2)(h) of the Evidence Act is subject to and qualified by the specific scheme of costs set out in section 117/114UB of the Act. That is, that the reference to communication, and hence, oral communication, in 131(2)(h) when considering costs is subject to the provisions of the Family Law Act 1975, that is, section 117/114UB. Hence the oral offers in mediation in this case do not squeeze through into admissibility by weight solely of section 131(2)(h). ... Does the case turn on section 131(2)(h) or the Family Law Act? 205. Following the logic and ratios of Rajski, Azzi v Volvo, Pinot Nominees, Forsyth and Harcourts the issue of whether an oral offer in mediation is admissible, although permitted by section 131(2)(h), is governed by the specific legislative scheme of the law of the primary dispute. In this case that specific legislative scheme is the Family Law Act sections 117/114UB & 117C and the FCFCOA (Family Law) Rules 2021 and the applicable authorities (‘the Family Law Act scheme of offers to settle’). The answer to the oral offers controversy, consistent with those five general law authorities referred to, is within the Family Law Act scheme of offers to settle. Those applicable authorities include Kilich and Askey. Or to use the language of Forsyth, the relevant provision is the Family Law Act scheme of offers to settle not section 131(2)(h) of the Evidence Act. 206. I am bound by the Full Court ratio in Kilich. The first instance decision of Askey must be regarded as highly persuasive and to be followed unless clearly wrong. The relevance of the avoidance of the injustice (that a strict reliance on sections 117(2A)(f) and 117C would have wrought) by the application of the flexibility of 117(2A)(g)/114UB(3)(g), in Askey is compelling. Although decided in 2006, the substance of the current legislative provisions and the FCFCOA (Family Law) Rules 2021 about costs and offers to settle are near as identical to those applying in 2006. 207. Although only of limited assistance, that Parliament has seen fit to reenact in identical form (save as to section numbers) the provisions of section 117114UB after Kilich and after Askey reinforces my confidence that I should follow the guidance of Kilich and of Askey when considering oral offers and section 117(2A)(g)/114UB(3)(g). Was the reliance on the oral offers contrary to the mediation agreement? 208. I satisfied that, in the circumstances, the reliance on the oral offers within the mediation was contrary to the mediation agreement. Without prejudice privilege has never been absolute and would not be a cover for a threat, or other crime, or unconscionable behaviour but those extreme exceptions don’t apply here. That reliance of oral offers was contrary to the mediation agreement is not determinative of admissibility but is a significant matter to be taken into account. 209. I am bound by the ratio in Kilich and well persuaded by the ratio in Askey. In those cases the oral offers were relevant in the circumstances of the case and hence admissible by 117(2A)(g). I am not satisfied that in the circumstances of this case the oral offers within the mediation are relevant to the section 117 discretion. I am not satisfied those oral offers are relevant because: (1) The adduction into evidence of the oral offers within mediation is directly contrary to the provisions of the mediation agreement upon which basis the mediation was conducted; and (2) The offers were open for a very short period, that is, until the next offer was made or at the latest until the end of the mediation; and (3) The form of the offers to the extent they can be discerned did not alert the offeree to the fact that the offeror intended to rely upon the offer, and a refusal of the offer, as relevant to the question of costs at the end of the final hearing; and (4) The terms upon which the offers were made is disputed and I cannot determine what, if any, terms accompanied the quantum offers; and (5) The scheme of the Rules of Court 4.06 – 4.12 command and draw attention to offers in writing and the Husband did not make any offer in writing even when reminded of how settlement offers were to be conducted when the Wife served her Calderbank offer; and (6) It was within the power of the party seeking to rely upon the oral offer to have converted or repeated, that offer into an offer in writing after the mediation and over the months of February, March, April, May and June of 2024; and (7) No special circumstance was pointed to that would explain why the clearly defined and much preferred pathway for offers, that is offers in writing, was not adhered to. 210. In those circumstances I am not satisfied that the oral offers are relevant. Hence they are not admissible, or to be had regard to, within the scheme of section 117/114UB and Rule 4.06 – 4.12. But if oral offers in mediation are admissible, what then? 211. If I am wrong, and the oral offers within the mediation in this case are admissible, it is convenient at this point to deal with the weight to be given to the oral offers. ... No offer in writing or otherwise in accordance with the Rules by the Husband. 218. Despite having participated in mediation and the compulsion of Rule 4.11 of the Rules (recited above), the Husband did not make an offer to settle at any time following the mediation. Nor was any explanation why not attempted. Nor was any application to dispense with Rule 4.11(2)(a) made. Nor did the Wife’s offer in writing, complying with the spirit of Rule 4.11, prompt the Husband to make an offer in writing. 219. For these reasons, in the event that I am wrong and the offers in mediation in this case are relevant, and hence admissible on account of section 117(2A)(g) and/or Kilich and Askey, I do not place any, or any significant weight upon those offers. To do so in the circumstances of this case, would be antithetical to the scheme of consideration of offers of settlement in the provisions of section 117/114UB of the Act and Rules 4.06 – 4.12 of the Rules and work an injustice to the Wife. Any injustice to the Husband could have been overcome by mere adherence to the Rules and/or a timely offer in writing. ...": Miratos & Miratos (No 2) [2025] FedCFamC2F 1190.