The Horticulture Code dispute resolution procedure
The Horticulture Code encourages parties to first attempt to resolve their dispute by negotiation. If the parties fail to reach agreement, either party can request that the Horticulture Mediation Adviser (‘HMA’) appoint a mediator to facilitate discussions.
A grower or trader (the complainant) must notify the other party (the respondent) in writing of a dispute. They must inform the other party that they are using the procedure under the Code to resolve the dispute. The written notice must state:
• what the dispute is about
• what action the complainant thinks will settle the dispute
• the outcome the complainant wants.
Go to the Notice of Dispute form provided on the Horticulture Code website. It is a writable PDF, so you can fill it out online, save it to your computer and send it by email to the respondent immediately. The quicker you lodge the dispute with the other party, the earlier you make them aware of your problems and the sooner you can request a mediator to assist you resolve the dispute, if you need help.
The parties have 3 weeks to negotiate a resolution to the dispute between themselves, in good faith.
After the Notice of Dispute has been sent, the parties must then try to resolve the dispute between themselves, acting in “good faith“.
Under Australian common (unwritten) law, good faith requires the parties to an agreement to act reasonably and not arbitrarily or dishonestly. They must have regard to the legitimate interests of the other party. Courts have found business dealings to be not in good faith when they involve one party acting for some ulterior motive, or in a way that undermines or denies the other party the benefits of a contract.
If the parties cannot resolve the dispute within three weeks, either party can ask the Horticulture Mediation Adviser to appoint a mediator.
You request a mediator to facilitate the resolution of your dispute by making an on-line application, here Request to Appoint a Mediator.(click link)
[Make sure you have all of the documents you want to send to the mediator and other parties, available and in PDF format ready to upload.]
If the Mediation Advisor is satisfied that the complaint is not frivolous, vexatious or has previously been mediated under the Code, the Adviser must appoint a mediator within 14 days after receiving the request and give the parties details of the mediator appointed.
The Horticulture Code Mediation process
1. Once appointed, the mediator decides:
• how the mediation will be carried out
• the time and place for the mediation (subject to the requirement that it must be conducted in Australia), and
• the date that the mediation commences, for the purpose of the Code.
2. The parties must attend the mediation and try to resolve the dispute. Either party may be represented at the mediation instead of attending in person. However, their representative must have the authority to enter into an agreement to settle the dispute.
3. The mediation terminates, if:
• the parties reach an agreement;
• the mediator decides that a resolution is unlikely to occur;
• the complainant in the dispute asks the mediator to terminate the mediation;
• at least 30 days have elapsed from the start of the mediation and the respondent asks the mediator to terminate the mediation.
4. If the mediation is terminated, the mediator issues a certificate to each party and the mediation adviser, stating:
• the names of the parties;
• the nature of the dispute;
• that the mediation has finished;
• that the dispute has not been resolved.
Once appointed, the mediator will make a charge for their time for administering or conducting the mediation. The minimum charge that the mediator will make once appointed is for setting up and administering the mediation, of up to three hours, if the mediation eventually does not proceed.
Under the federal government’s contract with the HMA, the mediator’s fee is up to a maximum of $330 (inclusive of GST) per hour. The complainant and respondent are jointly liable for the mediator’s fees (unless they agree between themselves who will be responsible).