In Western Australia, the only evidence of mediation proceedings admissible on a costs application under s 71(3)(c) of the Supreme Court Act 1935 (WA) is a mediator's report under O 29 r 3(2)(b) on a party's failure to cooperate. General evidentiary rules (O 36, O 37) do not satisfy the requirement that the evidence be admissible 'under the rules of court' for costs purposes. Parties seeking costs of an abandoned mediation cannot rely on affidavit evidence of what occurred at or around the mediation. The court left open the question of the scope of cross-examination of a mediator who has filed a report under O 29 r 3(2)(b).
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