Simic v LTH Investments (Qld) Pty Ltd
[2013] QDC 240
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- Simic v LTH Investments (Qld) Pty Ltd[2013] QDC 240
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Simic v LTH Investments (Qld) Pty Ltd[2013] QDC 240
Simic v LTH Investments (Qld) Pty Ltd[2013] QDC 240
DISTRICT COURT OF QUEENSLAND
CITATION: | Simic v LTH Investments (Qld) Pty Ltd [2013] QDC 240 |
PARTIES: | JOHN SLOVO SIMIC (Plaintiff) v LTH INVESTMENTS (QLD) PTY LTD ACN 106 789 691 (Defendant) |
FILE NO/S: | D2/ 2011 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Emerald |
DELIVERED ON: | 22 August 2013 (ex tempore) |
DELIVERED AT: | Emerald |
HEARING DATE: | 22 August 2013 |
JUDGE: | Irwin DCJ |
ORDER: |
|
CATCHWORDS: | PRACTICE AND PROCEDURE – COURTS AND JUDGES GENERALLY – APPLICATION FOR LEAVE TO PROCEED – APPLICATION FOR DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – PRINCIPLES APPLICABLE – RELEVANT CONSIDERATIONS PRACTICE AND PROCEDURE – MEDIATION – where plaintiff applied for an order referring the proceedings to mediation – where the defendant opposed the referral – factors relevant to the court’s discretion District Court of Queensland Act 1967 (Qld), s 89 (omitted) Civil Proceedings Act 2011 (Qld), s 37, s 39, s 42, s 43 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 280, r 320, r 389 Barrett v Queensland Newspapers Pty Ltd v Ors [1999] QDC 150, considered Facer v WorkCover Queensland & Anor [2005] QDC 025, considered Higgins v Higgins [2002] NSWSC 45, considered Indoport Pty Ltd & Anor v National Australia Bank Ltd & Ors [2011] NSWSC 427, considered McLure v Australian Independent Wholesalers Pty Ltd [2006] QDC 281, considered Remuneration Planning Corp Pty Ltd v Fitton [2001] NSWSC 1208, considered Skalski & Anor v Brown & Anor [2008] QDC 263, considered Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, applied Wade v Gargett & Anor [2010] QDC 27, considered |
COUNSEL: | S. J. Hamlin-Harris for the plaintiff. Ms A. M. Murray for the defendant. |
SOLICITORS: | Charles Lumsden Solicitor for the plaintiff. Anne Murray & Co Solicitors for the defendant. |
HIS HONOUR: Thank you. There are three applications before the court. The applications in the order that were filed are: (a) an application by the plaintiff under the Uniform Civil Procedure Rules 1999 (QLD) UCPR 320(a) for the dispute to be referred to mediation – filed on 12 July 2013; (b) an application by the defendant under UCPR 280(1) for the action to be dismissed for want of prosecution – filed on 30 July 2013; and (c) an application by the plaintiff under UCPR 389(2) for leave to proceed, filed on 9 August 2013. It is convenient to refer to the applicants as the plaintiff and the defendant. It is necessary to consider the issues which arise on these applications in the context of the nature of the proceedings to date, including the other documents which have been filed.
On 18 May 2011, the plaintiff filed the claim and statement of claim arising from an incident on 29 October 2007, when he was employed by the defendant. The incident involved a transportable or relocatable cabin owned by the defendant falling on the plaintiff’s vehicle, a Toyota Hilux utility, during a storm, causing it to be damaged. As set out by the defendant in the outline of submissions, the uncontroversial facts are: the plaintiff was employed by the defendant; the plaintiff parked his own vehicle on 29 October 2007; the plaintiff’s vehicle was damaged on 29 October 2007 when part of a relocatable cabin fell on it; and that the genesis of the damage was a storm that struck on 29 October 2007. However, the defence filed on 17 June 2011 reveals a dispute on the facts in relation to a number of material matters. In particular, as set out in the plaintiff’s outline, the plaintiff alleges that the vehicle was parked on the defendant’s premises near the cabins at the encouragement or direction of the defendant. This is denied by the defendant, who says that the vehicle was not parked on the premises identified in the statement of claim and it neither encouraged or directed the plaintiff to park the vehicle on the premises near the cabins.
The claim is $37,700 for damages for negligence and/or breach of contract and/or compensation for breach of trust or fiduciary duty and/or for moneys had an received for use of the plaintiff, plus interest at the rate of 10 per cent per annum from 29 October 2007 until payment (or such other rate and period as the court may determine) pursuant to section 47 of the Supreme Court Act 1991. Ms Murray, for the defendant, has not challenged the jurisdiction of this Court to determine the current applications on the basis of the monetary jurisdiction of the Court.
Following the defence, the plaintiff filed a reply on 15 July 2011. The defendant submits that this was the last step taken in the proceedings. This is accepted by the plaintiff, having regard to his application for leave to proceed, filed on 9 August 2013. It is accepted, for example, that the effect of UCPR 389(2) is that an application for referral to mediation, which was made on 12 July 2013, is not a step taken in the proceeding.
Prior to that, on 13 July 2012, a notice of intention to proceed with the claim was given by the plaintiff to the defendant under UCPR 389(1). It is not suggested this is a step in the proceedings.
As I have mentioned, the application for referral to mediation was filed by the plaintiff on 12 July 2013. The application is for the mediation to be conducted by the dispute resolution centre at the Supreme Court Rockhampton, with each party to pay their own costs of and incidental to the mediation, although during argument, it was accepted by Mr Hamlin-Harris, on behalf of the plaintiff, that an order that the matter be referred to mediation to a person selected from an appropriately qualified panel of experts, to be provided by the plaintiff to the defendant, would be appropriate.
Prior to this application being made, the defendant’s solicitor responded on 8 July 2013 to correspondence from the plaintiff’s solicitor that the defendant was not agreeable to mediation. In that letter, it is said: “We are instructed by our client that mediation was discussed directly between the parties before any court action was commenced, and your client discounted the same and chose to proceed via formal court proceedings.”
The plaintiff did not file an application for leave to proceed under UCPR 389(2) in conjunction with this application. The application has been filed subsequent to the defendant filing the application for the action to be dismissed on 30 July 2013.
The supporting affidavit from the defendant solicitor, Ms Murray – annexed as an exhibit, a letter from her dated 22 July 2013 to the plaintiff’s solicitor, alerting the plaintiff to UCPR 389(2). This letter asserted that the application filed on 12 July 2013 did not constitute a step in the proceedings and was to be mentioned on 19 August 2013, which was beyond the two-year period referred to in that rule. I note 19 August 2013 was the first day of the current sittings in Emerald. Ms Murray also asserted that the 13 July 2012 letter was not a step in the proceedings. This letter concluded: “We consider that your application for mediation is not timely. It has been made after pleadings have closed and making it at this late stage appears again to be an attempt by you, on behalf of your client, to take a step in the proceedings. You have made no attempt to explain the delay in prosecuting your client’s claim. Our client has been prejudiced by your client’s delay, i.e., availability of relevant witnesses for one thing, considering that the purported cause of action arose on 29th October 2007.”
As I have said, it was following this, on 9 August 2013, that the application for leave to proceed under UCPR 389(2) was received.
UCPR 280 provides: “(1) if (a) the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and (b) the plaintiff or applicant does not do what is required within the time stated for doing the act, a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution. (2) The court may dismiss the proceeding or make another order it considers appropriate.”
Consistently with what I have previously observed, the plaintiff’s submission recognises the application for referral to mediation is not taken to be a step in the proceeding, and for this reason leave is sought under UCPR 389(2), which provides: “If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.”
As submitted in the plaintiff’s outline, both applications require the exercise of the Court’s discretion. As stated by Atkinson J (with whom McMurdo P and McPherson JA agreed) in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 at (2):
“When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under the Uniform Civil Procedure Rules … r389, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed.”
A non-exclusive list of 12 factors is then set out. I will return to these. At paragraph (5) her Honour said: “The onus is on the applicant for striking out the plaintiff's action for want of prosecution to show that the matter should be struck out. On an application for leave to proceed, the applicant for leave must ‘show that there is good reason for excepting the particular proceedings from the general prohibition’ in a case in which three years have elapsed from the time when the last proceeding was taken. The rationale of the rule requiring leave to proceed after a long delay is to prevent abuse of process. The Court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay.”
Because both applications require the exercise of the Court’s discretion and, in doing so, regard will be had to the same factors, I agree with the defendant’s proposition, despite the order in which the applications were filed, they should be heard in tandem. Further, the result of each will be determined by the question as to whether the plaintiff be given leave to proceed. This, in any event, is also the plaintiff’s submission. It is observed in the outline that it is not uncommon for both applications to be heard together. Therefore, in accordance with the above principles, the plaintiff must show there is a good reason for excepting the particular proceedings from the general prohibition by satisfying the Court that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of the delay.
The factors identified by Atkinson J as being taken into account include: “(1) how long ago the events alleged in the statement of claim occurredhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QCA/2000/178.html?query= - fn1 and what delay there was before the litigation was commenced; (2) how long ago the litigation was commenced or causes of action were added; (3) what prospects the plaintiff has of success in the action; (4) whether or not there has been disobedience of Court orders or directions; (5) whether or not the litigation has been characterised by periods of delay; (6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant; (7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity; (8) whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim; (9) how far the litigation has progressed; (10) whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers; (11) whether there is a satisfactory explanation for the delay; and (12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.”
Her Honour also said: “The court's discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case, including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.”
In relation to factors (1) and (2), I agree with Mr Hamlin-Harris’ submission on behalf of the plaintiff that the statement of claim was filed well within the statutory six year time limit, and that six year time limit has not expired. It is now approximately five years, 10 months since the incident the subject of the claim. The litigation was commenced approximately three years, seven months after the incident. Therefore, about two years, three months have elapsed since this time. No causes of action have been added. These factors are in the plaintiff’s favour. In relation to factor (3), it is submitted taking into account there are factual disputes that will need to be resolved, the plaintiff has at least reasonable prospects of success. As it also put he has an arguable case with reasonable prospects of success.
On the other hand, the defendant says the plaintiff’s prospects of success are poor. It is submitted that apart from generalised statements in the plaintiff’s outline, no attempt has been made to develop or enlarge on the strengths of the plaintiff’s case. It is submitted that despite the bases alleged in the statement of claim to support the claim, the plaintiff’s focus now appears to be on the disputed allegation that the defendant encouraged or directed the plaintiff to park his vehicle in an unsafe place. Without elaborating on this, it is submitted there is little point in granting leave to continue an action which is doomed to failure. This argument is based on that part of the plaintiff’s outline of submission that the pleadings reveal a dispute on facts in relation to a number of material matters, in particular with reference to this allegation.
However, I do not read this as involving an abandonment of the other bases of claim. Mr Hamlin-Harris has expressly said during argument, “This is not the case”. There are also disputes on the facts in relation to these other bases of the claim which are required to be resolved. If these disputes are resolved in the plaintiff’s favour, he is not without reasonable prospects of success. It is not possible to say at this stage they will not be resolved in his favour. For example, as Mr Hamlin-Harris submitted during oral argument today, the claim is based on circumstances in which a vehicle was damaged, as he puts it, beyond repair when a transferable or relocatable home fell on it in the course of a storm. And this is prima facie a situation where there is a reasonable case of liability in circumstances in which the structure cannot be said to have been properly secured. Therefore, I cannot conclude the defendant will suffer the prejudice of having to defend an unmeritorious claim.
In relation to factor (4), there has not been any disobedience to court orders or directions. I do not consider the plaintiff’s delay in prosecuting this action amounts in any way to contempt of court.
In relation to factor (7), it is submitted by Mr Hamlin‑Harris that the plaintiff’s impecuniosity has made it very difficult for him to progress the proceedings. On the plaintiff’s case, the defendant is liable for the loss of his vehicle which was damaged beyond economic repair. The vehicle was a work vehicle and its loss has contributed significantly to the plaintiff’s current circumstances. Elsewhere in the submission it is argued the plaintiff’s impecuniosity has made it very difficult for him to progress the matter, and both he and his solicitor have been restricted by his lack of means. This is based entirely on the plaintiff’s affidavit of 9 August 2013. There is no affidavit from his solicitor on this issue. The specific aspects of his affidavit about this are: “(7) As a result of the loss of my vehicle as detailed in paragraph 4(b) of my claim, I had to hire a vehicle to travel to work. (8) I kept on working for the respondent relying on assurances that I would be compensated. (9) When I did not receive compensation, I approached Lindsay Hawkins, the servant or agent of the respondent concerning payment of the compensation, he denied that I was entitled to compensation, he stated I would have to take him to court and this brought to an end my employment with the respondent. (10) I sought employment closer to home. About 12 months ago that employment was terminated and I have been unemployed since. (11) I have never recovered financially from the loss of my vehicle and to the present day I have not been able to afford to purchase a replacement vehicle. (12) As a result of the events of 29 October 2007 I have suffered and I am suffering financial hardship and as a consequence I have not had the financial means to instruct my solicitor to progress the matter further.”
Mr Hamlin-Harris submits that in circumstances where the plaintiff is a labourer who has lost the use of his vehicle, what he says about his lack of capacity is plausible. He observes there is no evidence to contradict this position. However I agree with Ms Murray’s outline of submissions on this point, that the delay resulting in this application being made, because the next step was not taken before 15 July 2013, has not been satisfactorily explained in this affidavit on the basis of impecuniosity.
It appears from that affidavit that from 29 October 2007 to August 2012 the plaintiff was employed. He was employed at the time of the last step in the proceedings on 15 July 2011 and at the time the notice of intention to proceed was given on 13 July 2012.
The action has not been plagued by interlocutory skirmishes which were unforeseen and substantially added to his legal costs. It is difficult to see that significant costs have been incurred to this point. There is no explanation as to why this claim was not prosecuted between 15 July 2011 and August 2012 when he was employed. The plaintiff’s last affidavit gives no details of his assets or liabilities or his income since 29 October 2007 or his present income. The plaintiff deposes to being unemployed, yet says nothing about whether he is in receipt of unemployment benefits or not. Despite being unemployed, the plaintiff has been able to file two applications, brief counsel and, presumably, afford to share in the costs of engaging a mediator and instruct a solicitor at mediation.
The plaintiff says he has not recovered financially from the loss of his vehicle and has not been able to afford to purchase a replacement vehicle, yet his statement of claim suggests that his weekly loss of $100 from not having use of the vehicle ended on 9 June 2010, which was before the plaintiff commenced proceedings. Whilst the plaintiff says he has not had the financial means to instruct his solicitor further, he gives no details of how much he says his solicitor will need to progress the matter further, how he has funded the action to date, whether he has made any application for legal assistance through Legal Aid Queensland, whether an approach has been made to a litigation lender for funding or whether there is anything precluding self-representation.
In the circumstances, I am not satisfied that the plaintiff’s impecuniosity has been responsible for the pace of the litigation and that the defendant is responsible for any impecuniosity from which he suffers. Mr Hamlin-Harris suggested that his instructing solicitor, Mr Lumsden, would be in a position to give evidence as to his knowledge of the plaintiff’s position in relation to financing the proceedings and leave could be given for a further affidavit to be filed by the plaintiff giving greater particularity. These suggestions were made in response to questions I asked Mr Hamlin-Harris about the lack of detail appearing in the plaintiff’s affidavit about his financial position. However, I have come to the conclusion that I can reach a decision concerning these applications without the need for this to occur.
In relation to factor (5), the proceeding has been characterised by the period of delay from the last step taken on 15 July 2011 and this date, a period of a little more than a month over the two year time period. That is, a little over a month beyond that period. For reasons I have given, I am not satisfied the plaintiff’s impecuniosity is an explanation for this, however it is relevant. The pleadings were completed in a timely way and the delay has not been excessive. As I have observed, the claim was filed well within the statutory time limitation and the six-year limitation period has still not expired.
Notice was given within this period of intention to proceed and the application for referral to mediation was filed within the two-year period after the last step was taken. I do not accept the defendant’s argument that the application for referral to mediation is no more than an attempt to breathe life into an action that was already dead and buried or, put another way, in an attempt to take a step in the proceeding. I’m not prepared to assign such a base motive to the plaintiff, but accept the submission that, in keeping with the intent of UCPR 389(2), it is an action intended to progress the matter with a view to it finally being resolved. As I have observed, the application was made within the two-year period. This is, therefore, not a factor which would influence me to use my discretion unfavourably to the plaintiff.
In relation to factor (6), the delay is not, in any way, attributable to the defendant, however the observations I have made about factor (5) are relevant. With reference to factor (8), it appears to me that if I struck out the plaintiff’s claim the litigation between the parties would be concluded, although Ms Murray has suggested in those circumstances the plaintiff would be called on to consider whether he could reinstitute proceedings within the Magistrates Court jurisdiction. From what Mr Hamlin-Harris stated during argument, it appears unlikely that would be the case.
For the purposes of factor (9), subject to the referral to mediation if I were to order this the pleadings have been completed. In relation to factor (10), there is no suggestion the plaintiff’s lawyers have been dilatory. As I have previously concluded, I am not satisfied the plaintiff’s impecuniosity has been responsible for the pace of the litigation. No other explanation has been advanced. In the circumstances, the delay is unexplained. In relation to factor (11), I am, therefore, not satisfied there has been a satisfactory explanation for the delay.
Finally, in relation to factor (12), on the issue of whether the delay has resulted in prejudice to the defendant, leading to an inability to ensure a fair trial, Mr Hamlin-Harris submits that all relevant material witnesses are understood to be available and there is no obstacle to a fair trial being held and no prejudice has accrued to the respondent.
However, as I have indicated, Ms Murray asserted in her 22 July 2013 letter, “Our client has been prejudiced by your client’s delay i.e. availability of relevant witnesses for one thing, considering that the purported course of action arose on 29th October 2007.” However, it is relevant that in Tyler, where the application for dismissal of proceedings for want of prosecution – where the proceedings had been on foot for approximately 14 years, it was stated at (44), “The litigation, which was commenced in 1986, should have meant that the appellant both retained and prepared its evidence.” The same could be expected in this case, where the claim was made well within the statutory time limitation, which, as I observed, has still not expired. The pleadings are complete. The plaintiff has notified the defendant of his intention to proceed within the limitation period and an endeavour has been made by the plaintiff to progress the matter by filing an application for referral to mediation within the limitation period and, at this point. The delay has extended only a little over one month beyond the two year time period. In addition, Ms Murray frankly told me during argument that the assertion in the 22 July 2013 letter was based on the nature of the Plaintiff’s business. This is such that there is a concern potential witnesses could not be located at this stage. However, this is unknown because no inquiry has been made. As I have said, there has been an opportunity prior to these applications to identify potential witnesses and to prepare and retain their evidence.
Ms Murray’s primary submission is the Plaintiff has not adequately explained his delay, and prejudice to the Defendant flows from this. She reiterates the matters in her outline of submission and added it is unlikely the Defendant will obtain the costs of the proceedings if they are resolved in his favour. She submits the bona fides of the Plaintiff could be tested by striking out the proceedings and giving the Plaintiff the opportunity to bring the proceedings again, in the Magistrates Court.
Although I accept ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them, and there is an absence of a satisfactory explanation for the delay, having regard to the circumstances which I have identified, namely that the claim was made well within the statutory time limitation, which has not yet expired; the pleadings are complete; the Plaintiff has notified the Defendant of his intention to proceed within the limitation period; an endeavour has been made by the Plaintiff to progress the matter by filing an application for referral to mediation within the limitation period; and at this point, the delay has extended only a little over one month beyond the two year period, the Plaintiff has satisfied the onus of showing that any prejudice the Defendant may suffer is not such as to cause injustice to the Defendant, should the action be permitted to continue.
Therefore the Plaintiff is granted leave, pursuant to UCPR 389(2), to take a new step in the proceedings. As the same considerations apply to both the Plaintiff’s application for leave to proceed and the Defendant’s application for proceedings to be dismissed, for the reasons which have caused me to grant the Plaintiff’s application, I refuse and dismiss the Defendant’s application. The Plaintiff has been successful. On the other hand, the applications would not have been necessary had the Plaintiff taken a step within the two-year period. In these circumstances, I order costs of the applications pursuant to UCPR 389(2) and 280(1) be reserved.
As a consequence of my decision to grant the Plaintiff’s application, it is necessary for me to consider the Plaintiff’s initial application pursuant to UCPR 320(a) that the dispute as detailed in the pleadings be referred to mediation.
The application is for the mediation to be conducted by the Dispute Resolution Centre at the Supreme Court, Rockhampton, with each party to pay its own costs of and incidental to the mediation. Although as I have indicated, during the course of argument Mr Hamlin-Harris was prepared to concede that it may be more appropriate for any referral to mediation to be by selection from a panel of appropriately qualified experts, to be provided by the Plaintiff’s solicitor to Ms Murray for her to make the selection. The application is opposed by the Defendant. I have previously referred to Ms Murray’s letter of 8 July 2013, which is an exhibit to the Plaintiff’s affidavit in support of the application, in which she said the Defendant is not agreeable to mediation.
She pointed out this had been discussed between the parties before any court action was commenced, and the Plaintiff discounted the same and chose to proceed via formal court proceedings. Ms Murray emphasises in her affidavit of 30 July 2013, in support of the application to dismiss the proceedings for want of prosecution, that this invitation was rejected. In her outline of submissions, Ms Murray states, “If the Court is against the Defendant’s positions in respect of both the leave to proceed and striking out applications, then the Defendant’s position in relation to the application to mediate would be that a mediator be chosen from a panel of 3 (which mirrors the Plaintiff’s initial invitation to mediate) and the costs of the mediator be shared equally. The Defendant is not agreeable to the Dispute Resolution Centre in Rockhampton convening the mediation.”
She advised me during oral argument that the Defendant is not in favour of mediation and would prefer to go to trial. She correctly says that the costs of mediation and the costs of trial need to be considered. She submits that in this case they are likely to be about the same.
The Defendant’s attitude to mediation is not determinative. He does not contest the Court’s power to refer a dispute to mediation without the consent of the parties, by virtue of UCPR 320 and section 43 of the Civil Proceedings Act 2011 (Qld). Under UCPR 320, the Court may refer a dispute in a proceeding for mediation or case appraisal “(a) on application by a party; or (b) if the proceeding is otherwise before the Court”.
Section 43 of the Civil Proceedings Act provides, in similar terms, “(1) A court may refer the parties or their representatives to attend before it to enable it to decide whether the parties’ dispute should be referred to an ADR process. (2) This section also applies if – (a) a party applies to the Court for an order referring a dispute to an ADR process; or (b) the parties are otherwise before the Court. (3) The court may, by order (referring order), refer the dispute to mediation or case appraisal.” Section 39(1) defines an “ADR process” as “a process of mediation or case appraisal under which the parties are helped to achieve an early, inexpensive settlement or resolution of their dispute.”
To further emphasise the Court’s power to make a referring order does not require the consent of the parties, section 42 expressly provides for the process where the parties agree to the ADR process.
As stated by Mr Hamlin-Harris, the provision for the litigants to take part in an ADR process is now contained in part 6 of the Civil Proceedings Act, in which these sections are to be found. Section 37 provides the objects of part 6 are, “(a) to provide an opportunity for litigants to participate in ADR processes in order to achieve negotiated settlements and satisfactory resolution of disputes; and (b) 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 extending the same protection to participants in an ADR process as they would have if the dispute were before a court; and (ii) be ensuring they remain confidential.”
As he also correctly states, these objects are essentially in the same terms as the previous section 89 of the District Court Act of Queensland 1967 (Qld). Section 89 was in part 7 of that Act, which was replaced by part 6 of the Civil Proceedings Act. Therefore, principles derived from District Court decisions made with reference to section 89 continued to be applicable when issues concerning applications for referral to mediation arise.
Mr Hamlin-Harris reminds me of my decision in Wade v Gargett & Anor [2010] QDC 27 (prior to these amendments) as to the factors relevant to the Court’s discretion to order that a dispute be referred to mediation at pages 11-12. They actually appear at pages 12-13 on my reading of the judgment available to me. I note the quotation marks have been incorrectly inserted in the quote from Kingham DCJ. This decision gives me a chance to correct that.
As I said in that case, “The circumstances in which a non-consensual referral may be made are not prescribed: Stevenson v Landon Pty Ltd & Anor [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…”.
What Kingham DCJ said in Skalski at [7] was: “These objects indicate a legislative intention to promote timely resolution of disputes and reducing the cost and delay of oral hearing, where appropriate.” The balance of the quote was my paraphrase of what her Honour said about this, being 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 real issues in civil proceedings at a minimum of expense (rule 5 of the UCPR). Her Honour was guided in that case by what appeared to be in the interests of justice. In that case, despite objection, Kingham DCJ ordered that the matter involving alleged solicitous 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 Kingham DCJ 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 exhaustibly recite matters to which the Court must have regard.” Further, Hamilton J said, in Remuneration Planning Corp Pty Ltd v Fitton [2001] NSWSC at [3]; “Of course there may be situations where the Court will, in the exercise of its discretion, take the view that mediation is pointless is a particular case because of the attributes 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 is has become plain that there are circumstances in which parties insist they will not go to mediation, perhaps from fear that to show willingness to do so may appear a sign of weakness yet engage in successful mediation when mediation is ordered.”
I proceed on the basis that is 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 is stated by Einstein J in Indoport Pty Ltd & Anor v National Australia Bank Limited & Ors [2001] NSWSC 427 at [40]: “Mediation is an integral part of the Court’s adjudicative processes and the ‘shadow of the court’ promotes resolution.” In addition, to adopt the observation sited with approval at paragraphs [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.”
Similar remarks have also been made by Tutt DCJ in Facer v WorkCover Queensland & Anor [2005] QDC 025 at [18] and by Kingham DCJ in Skalski. I accept these propositions.
The Plaintiff deposes, in his affidavit of 12 July 2013, that this is an appropriate matter for referral to mediation. He asserts, in support of this, that the cost to the parties should be less, the time taken in determination of the claim should be reduced, and the cost to the community of conducting a hearing of the claim may be avoided. He said it also gives the parties an opportunity to determine the matter on terms acceptable to them.
In that affidavit, he denies the Defendant requested mediation before the filing of the claim. He alleges the Defendant’s authorised representative said words to the effect that, “We’ll just go to court and you can tell your story and we’ll shoot you down in flames.”
Mr Hamlin-Harris’ submission in support of the referral is the claim is not a large one. And it is submitted that the costs of litigating the dispute to the end are likely to be disproportionate to the benefit gained. I note this submission adopts one of the matters the Court may take into account in exercising its discretion as to whether to refer the dispute to case appraisal under section 43(4)(a). It is further submitted there is no reason to conclude mediation is unlikely to be successful. Overall, it is submitted that this is an ideal case for referral to an independent mediator in the hope, with the mediator’s assistance, the dispute between the parties may be resolved without the costs of a trial.
The arguments by the Defendant opposing referral to mediation have already been referred to. Initially, there is Ms Murray’s letter of 8 July 2013. There is also the final paragraph of her outline of 14 August 2013, which is less opposition to mediation than opposition to the Dispute Resolution Centre in Rockhampton convening the mediation. The defendant’s proposal that the mediator be chosen from a panel of three is consistent with the letter from the Plaintiff’s solicitor of 27 June 2013 that, should the defendant be agreeable, he will submit a panel of names of possible mediators. This letter is an exhibit to the Plaintiff’s affidavit of 12 July 2013.
Mr Hamlin-Harris initially took the position that there would be minimal costs incurred by his client if the mediation occurred at the Dispute Resolution Centre and that this favoured referring mediation of the proceedings to that centre. In addressing this issue, I accept that his client, the Plaintiff, is currently unemployed. However, Ms Murray says that her client, despite his opposition to mediation, is of the view that if the proceedings are referred to the mediation of an appropriately qualified expert chosen from a panel of experts there is a better chance of achieving a mediated outcome about which he would be satisfied than if the mediation was conducted by non-expert mediators of the Dispute Resolution Centre.
I have concluded that this is a case which should be referred to mediation despite the Defendant’s objection. I agree, for the reasons advanced by Mr Hamlin-Harris, that it is in the interests of justice in this case to refer the dispute to mediation. As he has submitted in circumstances where the claim is not a large one, the costs of litigating this dispute to the end are likely to be disproportionate to the benefits gained.
I also agree with the Defendant that notwithstanding a referral to an expert member selected from a panel will have a greater cost than a referral to the Dispute Resolution Centre, mediation is more likely to have a successful and effective outcome if the referral was to be to someone selected from such a panel.
I consider that mediation is likely to result, overall, in reduced cost to the parties, reduced time to determine the claim, and avoiding the cost to the community of hearing the claim. Although the length of the trial has not been estimated, it’s is unlikely to be lengthy. Yet the expense of the trial is likely to be significant in the context of the size of the claim. I also have no reason to conclude, for the reasons that I have given, that the mediation is unlikely to be successful. To adopt the words of Kingham DCJ, this is not an all or nothing case. Causation, liability and damages are in issue. As her Honour said in that case, even if the matter cannot be completely resolved, mediation may well narrow the scope of the dispute. Despite the Defendant’s opposition to the referral, it is asserted by Ms Murray that mediation was discussed directly between the parties before the court action commenced and it was discounted by the Plaintiff. Although this is rejected by the Plaintiff, it is sufficient for me to conclude this is not a case where there is little prospect of success if the matter is referred to mediation. Again, although the defendant is not in favour of mediation at this time, what has been said about his attitude to mediation involving a properly qualified expert supports this view.
As Kingham DCJ observed, “Although no party can be forced to reach an agreement, the parties can be directed to participate reasonably and genuinely. Further, a skilled mediator can promote meaningful involvement.” As was said by Samios DCJ in Barrett v Queensland Newspaper Proprietary Limited & Ors (1999) QDC 150, “It is the essence of mediation that a third party may be able to assist the parties reach agreement to resolve the dispute.” Despite the delay, the pleadings were completed within the first two months in 2011 and the notice of intention to proceed was given by the plaintiff one year later. They are short and the issues are well defined and, despite suggestions of complexity, in my view, relatively straightforward. The current applications are the only interlocutory applications which have been made. Now that the applications for leave to proceed and dismissal have been resolved, there are no outstanding interlocutory issues which would hinder mediation. The expense of preparing for trial has not commenced.
As Kingham DCJ recognised, “Preparation for and participation in mediation does involve a potential risk of wasted expense if it proves unsuccessful.” Against that, some of the work which will be involved in preparing for mediation will, in any case, be necessary to prepare for trial. Even it is not entirely successful, the risk of wasted expenditure is one both parties bear and the defendant is exposed to no greater prejudice. As I have found in relation to the other applications, I do not consider the request for mediation is no more than an attempt to breathe life into an action that was already dead and buried. I do not assign such a base motive to the plaintiff but accept it is an action intended to progress the matter, with a view to it being finally resolved. Consequently, I do not consider the request for mediation to be a delaying tactic.
It is also the case that a suitable mediator with the necessary skill could be appointed to be the mediator. In all the circumstances, I consider it is in the interests of justice to refer these proceedings to mediation, pursuant to UCPR 320(a). Given that the defendant’s solicitor initially proposed submitting a panel of names of possible mediators, should the defendant be agreeable to mediation and the plaintiff’s solicitor would be agreeable to a mediator being chosen from a panel of three, this is the order I propose to make, particularly as, during submissions, as I have noted, Mr Hamlin-Harris, after conferring with Mr Lumsden, accepted this was the better approach as the matter is more likely to be mediated successfully and the mediation result accepted if undertaken by a person with the appropriate expertise.
The plaintiff seeks an order that the defendant pay the appellant’s costs of and incidental to this application, to be assessed on the standard basis. However, as I have reserved the costs of the preliminary application, I consider at this point it is more appropriate to make a similar order in relation to the application under UCPR 320(a).
Accordingly, the orders that I make are as follows:
- (1)The plaintiff’s application for leave to proceed under r389(2) of the Uniform Civil Procedure Rules 1999 (QLD) is granted.
- (2)The defendant’s application to dismiss the action for want of prosecution under r280(1) of the Uniform Civil Procedure Rules 1999 (QLD) is dismissed.
- (3)The dispute be referred to mediation under r320(a) of the Uniform Civil Procedure Rules 1999 (QLD).
- (4)The costs of each of these applications are reserved.
- (5)The mediator be chosen from a panel of three mediators of appropriate expertise, having regard to the subject matter of the claim, to be submitted by the plaintiff’s legal representative to the defendant’s legal representative.
- (6)The mediator be selected from the panel by the defendant’s legal representative.
- (7)Each party pay their own costs of and incidental to the mediation.
Beyond this, I will hear further from the parties as to the appropriate order in relation to referral to mediation, in particular, as to the period of mediation, the time for payments for payment of the mediator’s costs, any need to report to the registrar about progress and any order to adjourn the proceedings to the civil callover in Rockhampton to enable the court to oversee progress, and order that the parties be directed to attend, participate in and act reasonably and genuinely in mediation may be an appropriate term. The order made by Kingham DCJ in Skalsky will provide an appropriate starting point. It would be advantageous if the parties could agree on these further orders and provide a draft order for my consideration by 4.30 pm on 29 August 2013.