SOUTHERN WASTE RESOURCECO PTY LTD V ADELAIDE HILLS REGION WASTE MANAGEMENT AUTHORITY [NO 2] [2019] SASC 191
Stefano Calabretta and Lizzie Brown
In Southern Waste Resourceco Pty Ltd v Adelaide Hills Region Waste Management Authority [No 2], the Supreme Court of South Australia confronted an increasingly modern question: can mediation be ordered when the trial is already well underway, the parties exhausted, and negotiations have repeatedly failed? Justice Stanley’s pragmatic answer was yes. Sometimes, the best time for alternative dispute resolution (ADR) is precisely when the battle lines are already entrenched.
Background: A Long Trial and a Shifting Landscape
The dispute between Southern Waste Resourceco (“SWR”) and the regional waste authority (“Authority”) had been ongoing since 2016. After ten hearing days and twenty more listed, the trial had become lengthy, expensive, and unwieldy. SWR sought a referral to mediation under section 65(1) of the Supreme Court Act 1935 (SA), which empowers the Court to refer matters to mediation even without party consent.
The Authority strongly objected, arguing mediation would “disrupt” the trial, that its lawyers were capable negotiators, and that mediation would be “futile” given past failed settlement attempts and the ‘difference between them could not be bridged’.
The Parties’ Positions: Futility versus Opportunity
The Authority’s opposition rested on two arguments: first, that mediation would interrupt trial preparation and waste valuable court time; and second, that experienced counsel could negotiate effectively without a mediator. It maintained that compulsory mediation would only delay justice.
SWR took the opposite tack arguing that the litigation landscape had changed. Following a sharp increase in government landfill levies, from $57 to $76 per tonne, with future rises planned beyond $100, recycling had become commercially viable. Justice Stanley noted this policy shift had “altered the landscape,” creating settlement opportunities previously out of reach.
Justice Stanley contended that by this late stage, the parties had a “comprehensive understanding” of each other’s case and were equipped to “participate meaningfully in a mediation.” Counsel contended that earlier negotiations failed not from futility but from timing. A “short, sharp” mediation could avert further expense and unlock creative, mutually beneficial commercial solutions impossible within the win-lose binary of litigation.
The Judgment: Pragmatism over Pride
Justice Stanley granted the application. His reasoning reflected a modern, purposive reading of s 65(1): mediation is not an interruption to justice but an instrument of it. He observed that the “length and cost of the trial had exceeded expectations considerably”, that the regulatory circumstances had changed since earlier negotiations, and that mediation would not disrupt the remaining trial schedule.
He rejected the notion that mediation requires consent or enthusiasm to succeed, stating that “a party’s unwillingness to engage in mediation may not necessarily impede a successful mediation,” and that “reluctant starters often become willing participants.” Addressing the Authority’s argument that failed negotiations rendered mediation pointless, Justice Stanley remarked: “That lawyers have endeavoured to negotiate without the assistance of a mediator without success does not mean that mediation is likely to fail.” Mediation, he explained, offers “something qualitatively different”,it is the intervention of a skilled neutral who “looks for the fresh angle, unappreciated by the parties,” and helps them move beyond the binary logic of litigation toward creative, commercially grounded compromise.
Ultimately, he held that “the potential gains of mediation outweighed the potential disadvantages.”
Key Takeaways: The Case for Late Stage ADR
For litigators, Southern Waste Resourceco shows that the most effective resolutions often arise not at the outset but when “issues have crystallised” and the realities of cost, risk, and proof are clear. Justice Stanley’s decision confirms that judicially ordered ADR is not coercive but innovative at restoring agency, preserving relationships, and enabling creative, commercially attuned outcomes that adapt to a changing economic landscape in ways litigation cannot.