Wade v Gargett[2010] QDC 27

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN

No 1010 of 2009

No 1011 of 2009

BRISBANE

DATE 29/01/2010

JUDGMENT

HIS HONOUR: The applicant/plaintiff seeks an order pursuant to rules 320 and 553 of the Uniform Civil Procedure Rules 1999 (the UCPR) that the parties participate in a conference by mediation concerning the applicant's claim for damages for personal injuries. The respondents/defendants oppose the making of such an order.

It is common ground between the parties that the applicant was injured in a motor vehicle accident which occurred on 6 July 2007. The first respondent/defendant was the driver of the other vehicle. The second respondent/defendant is the insurer of the first respondent/defendant.

The respondents admitted liability in full for the circumstances of the accident. Therefore the issue in the proceedings is limited to the quantum of damages.

The applicant completed the pre-proceedings as required by the Motor Accident Insurance Act 1994. On 23 March 2009, the matter proceeded to a compulsory conference as required by section 51A of that Act. The matter was not resolved at conference. Following the conference, mandatory final offers were exchanged under section 51 of that Act. Those offers were not accepted by either party and lapsed.

Proceedings against the respondents were commenced by the applicant in this Court on 15 April 2009. The pleadings have now concluded and each party has provided disclosure. The applicant has served the statement of loss and damage. The respondents have filed a statement of expert and economic loss.

The issues which will arise for determination in relation to the quantum of damages are readily apparent from the pleadings and the medico legal reports which have been disclosed. The respondents deny the range of injury scale values and the PIRS rating claimed to be applicable to the plaintiff's injuries. It is also denied that the maximum dominant ISV should be increased by 25 per cent reflecting the sum of $13,800 claimed pursuant to section 62 of the Civil Liability Act 2003.

The reasons for these denials are:

1. (a)
   Doctor Toff's report that there are no significant physical findings resulting from any injury suffered in the accident;

2. (b)
   The applicant has a zero percentage impairment of the whole person, and;

3. (c)
   There is no evidence that the applicant has suffered any injuries in the accident, which would cause any future deterioration or complications or requirement for future treatment.

The respondents also deny the applicant's claims of $111,000 for future economic loss, $50,000 for future paid services, special damages, and $5,000 for future medical, travelling and out of pocket expenses, being a total of $180,000. The reasons for these denials are:

1. (a)
   The applicant suffered a minor whiplash injury;

2. (b)
   The applicant has suffered a zero per cent impairment of the whole person, and

3. (c)
   There is no evidence that the applicant has suffered any injuries in the accident which would cause any future deterioration or complications or requirement for treatment.

Dr Toff's report which was obtained on behalf of the respondents is dated 11 August 2008. It is the last medical report provided with reference to these proceedings.

In an affidavit sworn by the applicant's solicitor, Mr Patino, on 8 January 2010 which is document 8 on the Court file and may be referred to as Mr Patino's first affidavit, it is deposed in paragraph 13 that on 7 July 2009 Mr Tully, the partner of McInnes Wilson Lawyers who is supervising the conduct of this action on behalf of the respondents, telephoned and arranged for his secretary to call later to organise a conference under rule 553 of the UCPR in this matter. This is supported by Exhibit CJP9 which is a copy of the relevant telephone attendance slip. Although I note that the slip reads that Mr Tully was returning a call and the message refers to conferences being organised in three matters, one of which is the current action.

Notwithstanding this, on 17 July 2009, Mr Tully wrote to Mr Patino and advised that his client had instructed that it did not wish to participate in a further conference at that time.

About one month later on 18 August 2009, Mr Patino's firm wrote to Mr Tully and proposed that the conference proceed on 17 September or 21 October 2009. Confirmation was sought of the preferred date within seven days. The letter concluded:

"If we do not hear from you, we will provide you with a written notice specifying a specific date, time and place for the holding of the conference."

No response was received. On 16 September 2009, Mr Patino's firm wrote to Mr Tully rejecting a telephone offer to resolve the claims in the sum of $50,000 all up, and enclosing a consent order for ADR with a request that it be signed and returned within seven days. The proposed order consisted of eight paragraphs that are in the same terms as the order which the applicant now seeks. However, two further paragraphs have been added to the new order. One of those paragraphs refers to the payment of the costs of this proceeding. The other is that the parties file a request for trial date within 21 days of the mediation in the event that it or subsequent negotiations failed. No response was received within seven days.

On 1 October 2009 the respondent's solicitors did two things. First an increased formal offer was served pursuant to chapter 9 Part 5 of the UCPR. This is referred to in paragraph 3 of Mr Patino's affidavit which was filed by leave at this hearing and which may be referred to as Mr Patino's third affidavit. Although that paragraph does not refer to the date in October on which this occurred, this is the date specifically identified by Doctor Cross, counsel for the applicant, in his written outline of submissions and in his oral submissions. I proceed on this basis.

Secondly, Mr Tully wrote on that date to Mr Patino's firm in the following terms:

"It is clear from the material we have to hand, including the pleadings and statement of loss and damage, that actually nothing has changed since the compulsory conference. I look forward to hearing from you if matters have changed in a material sense since that time.

Assuming for the moment that nothing of relevance had occurred, then we submit that proceeding to mediation is a waste of time."

That letter was in response to the letter of 16 September 2009 from Mr Patino's firm. In the 1 October 2009 letter a request was made that a request for trial date be sent on behalf of the applicant at which time Mr Tully would obtain his client's instructions to sign and return it.

On 2 November 2009, Mr Patino's firm responded that the applicant's instructions were to proceed to mediation, and if this could not be agreed, their instructions were to apply to the Court for the necessary order with the associated cost implications.

This correspondence again invited the signing of the consent order or ADR within seven days, failing which it was said the application would be made.

On 13 November 2009 Mr Tully responded that the respondents did not agree to mediation. He asserted that it is, "A small matter" and also said that the respondents would not be increasing their previous offer to settle. He asserted:

"Mediation will add an additional level of costs. It is unnecessary. Factually the case has not changed since the compulsory conference, the institution of proceedings and previous offers."

A request for trial date was enclosed with this letter, together with a request to return it within the time limited by the rules, failing which an application would be made to the Court for directions. In these circumstances, this application was filed on 3 December 2009.

Rule 553 of the UCPR provides:

"(1) A party may, after service of a statement of loss and damage, or service of the statement is waived, give to the other parties a written notice specifying a day, time and place for the holding of a conference to discuss, and if possible, reach agreement on all matters in dispute in the proceeding.

...

3. (3)
   If a party who is given a notice unreasonably neglects or refuses to attend a conference, the Court may, on the application of a party who, except for the holding of the conference is ready for trial, do all or any of the following things:

4. (d)
   make another appropriate order, including for example an order sending the case for mediation."

Although this application is based on this rule as well as rule 302 and seeks an order that the parties participate in a conference by mediation I do not consider rule 553 to be applicable in this case.

On 18 August 2009 Mr Patino's firm proposed to Mr Tully that a conference proceed on either of two dates. However, a written notice was never given to Mr Tully on behalf of the respondents specifying a date, time and place for the holding of such a conference. When there was no response to this proposal, Mr Patino's firm simply wrote again on the day before the first of the dates proposed with a request that an enclosed consent order for ADR be signed and returned. In the absence of the giving of a notice under rule 553(1) the condition precedent giving rise to the Court's discretion under rule 553(3) has not been satisfied.

However, rule 320 does arise for my consideration. It provides as follows:

"The Court may also refer a dispute in a proceeding for mediation or case appraisal -

1. (a)
   on application of a party; or

2. (b)
   if the proceeding is otherwise before the Court."

In this case, an application for referral of this matter to mediation has been made by a party within rule 320(a).

Part 7 of the District Court of Queensland Act 1967 sets out provisions relating to ADR processes. An "ADR process" is defined in section 90(1) as a "process of meditation or case appraisal under which the parties are helped to achieve an early inexpensive settlement or resolution of their dispute." "Mediation" is defined as "a process under the rules under which the parties use a mediator to help them resolve their disputes by negotiated agreement without adjudication."

The respondents' attitude to mediation is not determinative. It is not contested that the Court has power to refer a dispute to mediation without consent of all parties. As stated by Einstein J in Indoport Pty Limited & Another v. National Australia Bank Limited & Others [2001] NSW SC 427 at (40): "Consensual mediation is highly desirable but in appropriate cases parties can be referred where they do not consent, at the discretion of the Court."

This Court's power to order an ADR process such as mediation is derived from section 97 of the District Court of Queensland Act which applies if a party applies to the Court for an order referring a dispute to an ADR process (Section 97(2)(a)) as has occurred in this case.

Section 97(3) then provides: "The Court may by order (referring order) refer the dispute for mediation or case appraisal."

The circumstances in which a nonconsensual referral may be made are not prescribed: Stevenson v. Landon Pty Ltd & Another [2005] QDC 011 at (8); Skalski & Anor v. Brown & Anor [2008] QDC 263 at (6). The objects of Part 7 are set out in section 89 of the District Court of Queensland Act and provide some guidance.

They are:

"(a) to provide an opportunity for litigants to participate in ADR processes in order to achieve negotiated settlements and satisfactory resolutions of disputes; and

(b) to introduce ADR processes into the Court system to improve access to justice for litigants and to reduce cost and delay; and

(c) to provide a legislative framework allowing ADR processes to be conducted as quickly and with as little formality and technicality as possible; and

(d) to safeguard ADR processes -

(i) by ensuring they remain confidential; and

(ii) by extending the same protection to participants in an ADR process they would have if the dispute were before the District Court."

As Kingham DCJ said in Skalski at (7): "Those objects indicate a legislative intention to promote timely resolution of disputes and reducing the costs and delay of oral hearing where appropriate. This is consistent with the Court's overriding obligation to apply the rules so as to avoid undue delay, expense and technicality and to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense (Rule 5 of the UCPR)."

Mr Morton, who represents the respondents, submits that there is no good reason to order a mediation in this case. He argues that this is a small matter in which the parties attended the compulsory conference on 23 March 2009 and no new material has been obtained by either party since that time.

In relation to the submission that this is a small matter which is in accordance with Mr Tully's letter of 13 November 2009 he refers to both the statement of claim that I have already mentioned and statement of loss and damage filed on 5 August 2009.

In the statement of loss and damage the applicants claim a global sum of $10,000 in respect of past economic loss and $160,000 as future economic loss, $13,800 in general damages, $97,716 for future care and assistance, $1,109.80 for out of pocket expenses and $7,500 in respect of future treatment and mediation. He describes this as an ambit claim.

In particular he argues that the prospects of any economic loss claim are next to nil because the applicant was on a disability pension for intellectual impairment at the time of the accident and had been for many years. The second aspect of his submission is also in accordance with Mr Tully's correspondence to Mr Patino's firm. As I have indicated on 1 October 2009 Mr Tully had asserted, "that nothing has factually changed since the compulsory conference."

In his 13 November 2009 correspondence he reiterated this in terms that: "Factually the case has not changed since the compulsory conference, the institution of proceedings and previous offers." He added that, "Mediation is unnecessary and will add an additional level of costs."

Along the same lines an affidavit sworn on 21 January 2010 has been filed in these proceedings by Mr Schreurs who has care and conduct of this action on behalf of the respondents under Mr Tully's supervision. In this affidavit which exhibits Mr Tully's 13 November letter he deposes: "No new material has been received by the defendants since the compulsory conference. The last medical report is dated 11 August 2008. There is therefore no additional material served by the plaintiff since the compulsory conference."

In these circumstances, he also deposes: "No benefit will be served by holding an additional conference whether by mediation or otherwise. The settlement prospects have been exhausted through participation in a compulsory conference pursuant to section 51A of the Motor Accident Insurance Act 1994 (Qld)."

He also refers to the fact that in that letter, an executed request for trial date was provided, signifying that the defendants are ready for trial.

Having regard to Dr Cross's submissions on the applicant's behalf, there is no dispute that the matter is ready for the request for trial date to be signed. In fact, in a letter from Mr Patino to Mr Tully on 21 January 2010, it is apparent that the only reason this has not been singed by the applicant is because a conference pursuant to rule 553, or mediation has not been held.

Mr Moreton objected to reliance on this document, which is an exhibit to Mr Patino's second affidavit of this date due to it being marked, "Without prejudice save as to costs". However, I consider that this does not prevent me taking it into account to confirm that subject to the resolution of this application, the applicant accepts that the matter is ready for trial.

In a second affidavit by Mr Schreurs sworn on 22 January 2010, he deposes that Mr Devlin, Queensland CTP claims manager of the second respondent, has instructed that given that there has been no further material served on it, the second respondent is not prepared to make any further offer to settle the matter.

Mr Morton also submits that it is quite clear that this application is a tactic on the part of plaintiff to delay the trial. He refers to the fact that there is no requirement that there be a mediation or second settlement conference prior to signing a request for trial date, having regard to rule 469(5) of the UCPR, which defines when a party is ready for trial and which does not refer to settlement conferences or mediations.

He argues that if there was any substance at all in the applicant's solicitor's assertions that a mediator might assist resolution of the matter, then a mediator could have been sought on compulsory conference, having regard to section 51B of the Motor Accident Insurance Act.

In any event, he submits, there is no basis at all for thinking that the fees of Queen's counsel or senior counsel should be incurred in relation to mediation. This submission is made with reference to the fact that the panel of mediators suggested in the draft order proposed on behalf of the applicant are all within that category.

He concludes with the submission that there has already been a settlement conference in this matter. He submits that nothing has changed and there is no basis to order a mediation.

In response, Dr Cross submits that notwithstanding the assertions by the solicitors for the second respondent that mediation would be a waste of time and the settlement prospects were exhausted as at the compulsory conference,

this is disingenuous given its further offer pursuant to the UCPR on 1 October 2009, after the applicant had attempted to arrange either a conference or ADR on three occasions. In enlarging upon this proposition in his oral submissions, he referred to the fact that this further offer has been made, "Without comment as to the reason or justification for it", and despite no further medical reports being obtained.

There is no dispute that the offer was increased on that date. Although for good reason I am not entitled to know at this stage in the proceedings the quantum of the offers which have been made, there has been no contest to the proposition that the offer was increased two and a half times between the compulsory conference and 1 October 2009.

Dr Cross further supports his submission that the ordering of the parties to participate in mediation would not be futile by reference to Mr Patino's second and third affidavits. First he refers to the case of Healy v Allianz Insurance, which is referred to in paragraphs 11 and 12 of the second

affidavit. The proposition is that this was a similar case where the second respondent refused to attend mediation with the result that an application was required to be brought, following which, the second respondent conceded the application and attended a mediation, which ended in a resolution of the matter.

Mr Morton objects to the reference to this matter in the affidavit, the whole of which, he submitted, should be struck out as scandalous under rule 440 of the UCPR and also on the ground of relevance, as the facts of this case are not disclosed and may be completely different from the facts of the case the subject of the present application.

However, I consider that the issue raised in the affidavit is not scandalous and I consider that it is relevant. In fact it may be relevant in favour of the second respondent.

This is because paragraph 12 of Mr Patino's affidavit deposes to a distinguishing feature from this case as follows: "Shortly before the hearing of the application. Allianz selected a mediator from the panel I have provided, effectively consenting to an order in terms of the application, including an order that it pay the costs of and occasioned by the application."

The second respondent has not made such a concession in the present case. It could be argued that the case of Healy suggests that where Allianz despite initially objecting to mediation on reflection concludes that the matter may be resolved by mediation it will consent to participation. On the other hand when it is firmly of the view that mediation will not lead to the resolution of the matter it will not consent to medication.

Second, Dr Cross refers to paragraphs 8 and 9 of Mr Patino's second affidavit which he summarises as follows: "The applicant's solicitor asserts compulsory conference with this insurer often fail". The reason that this is asserted in the affidavit is something that I do not need to particularise for the purpose of this decision.

Dr Cross also submits that: "The applicant's solicitors have recommended compulsory conferences be held by way of mediation. The insurer rejects this approach". In these circumstances Mr Patino deposes: "I regard as remote the likelihood of a change in approach from Allianz at any further conference in the absence of a mediator".

It is for this reason that Mr Morton submits that the paragraphs are scandalous and the affidavit should be removed from the Court file. He also objects to the paragraphs on the basis of irrelevance. Dr Cross counters each of these submissions. The first on the basis that this is simply Mr Patino's observation as an experienced solicitor as to what went on in regard to these matters.

I accept Dr Cross' submission and do not strike the paragraphs from the affidavit or remove the affidavit from the file as scandalous. However, again, relevance is another matter. As Mr Morton puts it these are simply "bald statements". I would describe them as broad and sweeping statements which are devoid of detail.

There is no reference to the number of conferences on which this assertion is based, or the facts and circumstances of the matters which may have justified the approach of the second respondent for reasons other than asserted by Mr Patino. In addition, Mr Devlin, strongly contests the assertion suggesting in a letter exhibited to Mr Patino's second affidavit that the data does not support it. I am not in a position to resolve this dispute without hearing evidence, and it is unnecessary to do so in order to resolve this application. I therefore make no finding on this issue.

If the matter is to be investigated it is appropriate for this to be undertaken by the Accident Insurance Commissioner which is recognised as an appropriate avenue in further correspondence by Mr Patino which is exhibited to his second affidavit. The reason that it is unnecessary for me to resolve this issue is not only the absence of detail to which I have referred but because, appropriately, none of the correspondence relates to the particular matter before me. And as Mr Morton correctly submits whether or not this matter should be referred to mediation depends on the circumstances of this case and not conduct asserted against the second respondent in other cases.

I consider that it would be speculative to infer that the asserted conduct by the second respondent, if it does occur, was adopted in this matter. If the assertions are in any way relevant as suggesting some intransigence on behalf of the second respondent in seeking to resolve claims against it in personal injury matters, again, it may support the proposition that mediation will not lead to a resolution of this matter.

Third, it is submitted on the basis of Mr Patino's third affidavit that the compulsory conference was short. This affidavit, which was sworn on the day of the hearing and filed by leave, exhibits a letter to the second respondent's solicitors which includes the following: "We reiterate our view that the manner in which the second defendant conducted itself at the conference ensured that the settlement prospects are not exhausted. You might recall that Mr Tully attended the conference on his own (without a representative of the second defendant) made one offer and the conference ended within 30 minutes of its commencement. The offers made, then, and the increased offer made subsequently in October 2009 had never been broken down and explained by reference to the various heads of damage, and nor have we been referred to any law in the assessment of those offers."

On the basis of this Dr Cross argues, orally: "One could consider that a conference going 30 minutes perhaps the opportunity of hearing the other side's point of view may be considerations that should have taken place, where in that particular instance the insurer wasn't personally present."

However, as Mr Morton points out this is a self-serving letter which is dated on the day of the hearing. These are assertions which have not been verified on oath and which in the circumstances the second respondent has not had a real opportunity to respond to. As Mr Morton submits nowhere is it expressly asserted that anyone wanted to say or produce something at the conference which wasn't said or done.

Dr Cross' submission, ultimately, is that where a mediator is present who can be in charge of a mediation there is an opportunity for both sides to reflect their particular situation, particularly in light of the increased offer of 1 October 2009 which evidences that the offer made at the compulsory conference may not have been an appropriate appraisal of the applicant's damages. He submits that it can't be said in these circumstances that the mediation would fail.

He also argues that at the worst it could resolve some of the issues or narrow the issues. He submits that the second respondent will not suffer any prejudice by mediation because if it is correct and mediation does not resolve the matter any costs incurred by it would have been incurred in preparing for trial. And if they are correct about their offer, any costs incurred at mediation would be recoverable against the applicant.

He has referred me to a number of New South Wales and Queensland District Court authorities which he submits support the view that a referral for mediation should be made. I have been referred to the Queensland District Court authorities because Dr Cross has been unable to locate a Queensland Supreme Court authority on this issue. There are six authorities from the District Court of Queensland with an even split between those in which mediation has and has not been ordered. Some of the cases, like this one, involve claims for personal injuries. Mediation has not been ordered in all of those cases.

I am told that the most recent Queensland District Court authority is the decision of Kingham DCJ in Skalski in which, despite objection, she ordered that the matter, involving alleged solicitor's negligence, be referred to mediation.

As has properly been observed in the cases, for example by Robin DCJ in McClure v Australian Independent Wholesalers Pty Ltd [2006] QDC 281 at page 2: "Each case must depend on its circumstances and ultimately on the way in which each Judge exercises his or her discretion. Therefore, no case can be seen as establishing any general rule". As Judge Kingham said at (11) of Skalski: "While the cases identify factors of particular relevance in the circumstances of those cases, the judgments do not purport to exhaustively recite matters to which the Court must have regard".

As has been recognised in New South Wales, there has been an evolution in the approach that the Courts in that State have adopted to the exercise of this discretion. This is obvious from the authorities and articles which have been referred to me. Therefore, as Hamilton J said in Singh v Singh [2002] NSWSC 852: "The culture of the Court in relation to the perceived usefulness of compulsory arbitrations has shifted radically in the comparatively short period since section 110K was introduced. In Morrow v chinadotcom Corp [2001] NSWSC 2009, Barrett J refused to order a reluctant party to engage in mediation on the basis that if mediation were not engaged in willingly the process would be pointless and likely to be a waste of money".

His Honour then referred to Indoport, which was a very large commercial case in which orders were made over opposition and to Remuneration Planning Corp Pty Ltd v Fitton [2001] NSWSC 1208 in which he also made such orders in those circumstances. In that case, his Honour had said at (3): "This is an area in which the perceived wisdom has in my experience changed radically in a period of a few months. A short time ago there was a general acceptance of the view adopted by Barrett J, in the decision to which I have referred, that there was no point in a mediation engaged in by a reluctant party. Of course, there may be situations where the Court will, in the exercise of its discretion take the view that mediation is pointless in a particular case because of the attitudes of the parties or other circumstances and decline to order a mediation. However, since the power was conferred upon the Court, there have been a number of instances in which mediations have succeeded which have been ordered over opposition or consented to by parties only where it is plain that the Court will order mediation in the absence of consent. It has become plain that there are circumstances in which parties insist they will not go to mediation, perhaps from a fear that to show willingness to do so may appear a sign of weakness yet engage in successful mediation when mediation is ordered".

These observations are conveniently found in the decision of Einstein J to order mediation in Daya v CNA Reinsurance Co Ltd and Others [2004] NSWSC at 75 at (9). Like Indoport this was a substantial commercial dispute involving a claim valued at around $65 million and described as a "multi-party case". Indoport was a case in which the trial was of the order of some years. In Indoport, Einstein J observed that commercial proceedings differ in many ways from other categories of proceedings. This is in accordance with the principle that each case depends on its own facts. However, the statements of principle in those cases are relevant to my determination of this application.

In Stevenson reference was made to the judgment of Barrett J in Morrow v chinadotcom Corp and a decision of the Federal Court of Australia to the same effect. This is likely to have influenced Newton DCJ to say at (19): "I accept that in a case where one party to a dispute has formed the view that it does not wish to participate in the mediation process, particularly where that party is a commercial entity and where attempts have already been made to resolve the dispute by participation in a legislative required process, the Court should be slow to order a referral to mediation".

It may also have influenced Robertson DCJ to say in Trelour v J H McDonald Pty Ltd [2001] QDC 053 at (17): "I have to say that in the absence of exceptional circumstances I am reluctant to compel parties to attend mediation".

As the New South Wales authorities demonstrated, this perceived wisdom has changed radically in that State since the decision in Morrow. However, I am conscious that there were other circumstances particular to the cases of Stevenson and Trelour which were taken into account by their Honours in deciding not to refer those matters to mediation. Further, their Honours decisions were made on the basis of the authorities which were brought to their attention during argument.

I proceed on the basis that, as stated by Austin J in Higgins v Higgins [2002] NSWSC 45 at (6), that all the cases point to the single conclusion that the discretion is a wide one.

I also proceed on the basis that as said in Idoport at (40):

"Mediation is an integral part of the Court adjudicative processes and the 'shadow of the Court' promotes resolution." In addition, to adopt the observations cited with approval at paragraph (42) and (43) of that case:

"An independent third party can bring a different perspective into such procedures and can bring about a settlement even between parties who are evidently bent on litigation. The one compelling factor is that whilst forcing parties to participate in an ADR process will probably not do them any harm and in fact may surprise them in relation to what may be achieved, it may assist them to resolve or narrow issues that will be of benefit should the matter proceed to litigation. Also, whilst parties may be forced to participate in an ADR process at the end of the day they will control the ADR process."

I made similar observations during argument in this case. Similar remarks have also been made by Tutt DCJ in Facer v WorkCover Queensland and another [2005] QDC 025 at (18) and by Kingham DCJ in Skalski. I accept these propositions.

As I have already stated, the second respondent's attitude to mediation is not determinative. I do not consider that Mr Devlin's attitude, as expressed in Mr Schreurs' second affidavit in stating that the second defendant is not prepared to make any further offer to settle the applicant's matter involves any contest to the Court's power to refer a dispute to mediation without the consent of all parties, or that if the Court did refer it to mediation that the second respondent would not participate in and act reasonably and genuinely in that mediation.

I am also cognisant of the objects of the legislation by investing the District Court of Queensland with discretion to order mediation in the context of the Court's overriding obligation under the UCPR to which I have made reference.

Notwithstanding this I have come to the conclusion in the circumstances of this case that at this point of the proceedings there is no real prospect of settlement or resolving or narrowing the issues involved by referring this matter to mediation.

Although the respondents, and in particular the second respondent, made an increased offer pursuant to the UCPR on 1 October 2009, despite unsuccessful attempts to arrange a conference or ADR on three occasions, that offer must be considered in the context of Mr Tully's letter of the same date responding to the 16 September 2009 request from Mr Patino's firm that a consent order to ADR be signed submitting that proceeding to mediation would be a waste of time.

In context this statement was made with reference to the pleadings and the statement of loss and damage about which it was asserted that nothing had changed in a material sense since the compulsory conference. It was then said that assuming nothing of relevance had occurred, "Then we submit that proceeding to mediation is a waste of time." The letter concluded by asking for a request for trial date to be forwarded so that instructions could be obtained from the respondents about signing it.

There is no evidence that the applicant responded to this correspondence, by identifying any matters that had changed in a material sense since the compulsory conference, as opposed to forwarding a letter of 2 November to the effect that if mediation could not be agreed an application would be made to the Court.

Even at this point the applicant is saying no more than what has changed is that by making the offer of 1 October 2009 the respondents were indicating that settlement prospects were not exhausted and that the offer at the compulsory conference may not have been an appropriate appraisal of the applicant's damages.

However, in my view, this offer indicates no more than, as Mr Morton submitted, it was decided to make a higher offer under the UCPR to secure the respondent's position concerning indemnity costs. This avoids the difficulty identified by McMeekin J in Britten v. CPT Manger Limited [2009] QSC 306 at (4) where his Honour said:

"The offer made by the plaintiff was never formalised pursuant to the Uniform Civil Procedure Rules 1999 (UCPR) (chapter 9 part 5) so that the fact that the plaintiff obtained judgment greater than her offer does not invoke application of rule 360 UCPR with its assumption of a prima facie right to indemnity costs. It is well recognised that the usual order for costs is on the standard basis and some special reason is required before costs will be awarded on the indemnity basis."

Having made the offer for this purpose, the respondent's principal solicitor has then made it concurrently clear that this will be the final offer by stating, "Proceeding to mediation will be a waste of time" and reinforcing this by asking for the request for trial date to be forwarded.

This is not a case in which an increased offer has been made without any other communication at the same time which places that offer in context. The position that this is the "final offer" is clear from Mr Tully's 13 November 2009 letter, which again rejects mediation while stating that the respondents would not be increasing their previous offer to settle.

Significantly, he added: "Factually the case has not changed since the compulsory conference the institution of proceedings and previous offer." The reference to the "previous offer" must be to the offer of 1 October 2009. This is then reinforced by enclosing the request for trial date with a request for its return within the time limited by the rules.

The approach of the second respondent to the case of Healy supports the proposition that unlike that case, in the present case it is firmly of the view that mediation will not lead to a resolution of the matter because, as indicted in that case, after the application had been made it effectively consented to the order. That is not so in the present case.

In addition, if as suggested by the applicant the second respondent is generally intransigent in relation to the resolution of personal injury claims and was intransigent at the compulsory conference in this case, this provides additional support for the view that in this case mediation will not lead to resolution of the matter.

Although the point has been made in Mr Patino's correspondence that the second defendant was not personally present at the compulsory conference it is unlikely that his presence would have led to a different result given Mr Devlin's current position that the second respondent is not prepared to make any further offer to settle. It is clear that Mr Tully was acting on instructions at the conference.

Further, although Mr Devlin's present attitude is not decisive it is still a factor that I am entitled to take into account in determining whether there are any real prospects of settlement in mediation in this case. It confirms me in my view that the 1 October 2009 offer was the final offer and that in these circumstances there are no real prospects of settlement. This is to be distinguished from Skalski because Kingham DCJ was not dissuaded that there were little prospects of success if the matter was referred to mediation, particularly as the plaintiff has shown an ongoing willingness to negotiate by inviting settlement offers from the defendants which were at odds with his professed reluctance to mediate.

Another distinguishing feature in Skalski is that the application was made at an earlier stage in proceedings than in the present case. In that case the substantial expense of preparing for trial had not yet commenced and there was still an issue of disclosure to be resolved. I also consider that Barrett v. Queensland Newspapers Pty Ltd and Others [1999] QDC 150 in which mediation was ordered in a defamation case is distinguishable because, amongst other matters, this was an estimated 10 day trial and the application had been made at an early stage before substantial costs had been incurred.

As recognised in Singh v. Singh there will be cases in which mediation is pointless because of the attitude of the parties, or because of other circumstances such that the Court will decline to order mediation. In addition to the matters I have referred to there are other circumstances why, in my view, it is not appropriate in the circumstances of this case to order that the matter be referred to mediation. These are as follows:

1) This is a relatively simple case. This is so whether it is regarded as a small case or not;

2) The issues are clear cut and do not need further particularisation or debate for all parties to be aware of the issues to be determined. The only issue is quantum of damages and as demonstrated by reference to the pleadings and the arguments before me the areas of contest are clearly defined and known to the parties;

3) The trial is expected to be short. Mr Morton submitted that it is only a one day quantum trial with one substantive doctor on each side and the plaintiff as witnesses. I have no reason to doubt the accuracy of this assessment;

4) The matter is ready to proceed to trial. The pleadings have closed, disclosure is complete and as indicated the quantum issues have been identified. The request for trial date has been delivered by the plaintiff. As Dr Cross accepts the matter is ready for the request for trial date to be signed. As I understand it the only reason that this has not been done is because these proceedings were pending;

5) In these circumstances the costs associated with the preparation of trial have already been incurred. Referral to mediation will make it likely that although the costs of mediation would be shared, the parties will incur increased costs;

6) Mr Morton has submitted that the plaintiff's legal costs of attending the mediation would be similar to the costs that would be incurred on the first day of a trial in the District Court. Dr Cross submits that the respondents would not be prejudiced if the mediation was unsuccessful, because if they are correct about their offer any costs expended by the mediation would be recoverable against the applicant. However, the applicant is in receipt of a disability pension related to a previous history of intellectual impairment and was in receipt of that pension at the time of the incident which gives rise to the claim. Her access to the labour market is now further restricted as a result of that incident. Therefore, as Mr Morton submits, in these circumstances it is realistically unlikely that the plaintiffs will be able to recover their full costs against the applicant, at least not without a degree of difficulty;

7) There is nothing to suggest that there will be any delay in obtaining hearing dates in a trial of this nature.

For these reasons the application is dismissed. I will, if required, hear the parties in respect of the issue of costs.

...

HIS HONOUR: The decision that I have just delivered has resulted in the defendants respondents and in particular the second defendant respondent being wholly successful in opposing an application which has been brought by the applicant plaintiff that this matter be referred to mediation.

In coming to this decision I have accepted the argument on behalf of the applicant that there is no realistic prospect of this matter being settled or the issues being narrowed by a referral to mediation. That is in accordance with the view that has been expressed throughout the communications between the applicant and the respondents by the legal representative for the respondents in relation to this issue.

It is on this basis that in the circumstances of this case that I accepted this proposition that I have reached the decision that I have made and have ordered that the application be dismissed. In those circumstances the respondents have been wholly successful in opposing this application.

Mr Lord has argued that the issue of costs can best be determined by reserving this issue to the trial Judge in relation to the quantum issue and in association with that he submits that the applicant will be protected by the provisions of the Motor Vehicle Accident Insurance Act 1994.

However, I accept the argument presented on behalf of the applicant that this is a discreet application which is separate from the issues which arise at the trial although it has been necessary to have some regard to those issues to provide a context for my decision. In those circumstances I consider that it is appropriate in these discreet and separate proceedings to make an order for costs in relation to them.

In those circumstances I order that the applicant plaintiff pay the costs of the respondent second defendant of and incidental to the application to be agreed or assessed on the standard basis. Unless there is anything further those are the orders of the Court.