Spina v Shimeld[2017] QDC 303

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 11 August 2011, the Plaintiff, a 54 year old man, was involved in a motor vehicle accident in Townsville. He seeks damages for personal injuries, including injuries to his cervical spine and shoulders, arising from that accident.

2. [2]
   There are two applications before the court.

3. [3]
   The Plaintiff seeks an order pursuant to r 320 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) referring the matter to mediation. The Second Defendant opposes the order.

4. [4]
   The jurisdiction to make such an order is, of course, discretionary.

5. [5]
   Rule 320 states:

“The court may also refer a dispute in a proceeding for mediation or case appraisal—

1. (a)
   on application by a party; or
2. (b)
   if the proceeding is otherwise before the court.”

6. [6]
   The Second Defendant seeks directions pursuant to UCPR r 366 for certain investigatory steps to be completed, for a r 553 mediated conference to occur after those steps, and for a request for trial date to be tendered and filed if the matter does not resolve at the r 553 conference.

7. [7]
   Rule 553 states, relevantly:

“(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.

Note—

See the Civil Proceedings Act 2011, section 36 for the limitations on the admissibility of anything done or said, an admission made, or a document tendered, at a conference.

…

3. (3)
   If a party who is given the 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—

1. (a)
   make an order about any of the following—

1. (i)
   setting a trial date;

2. (ii)
   subject to a restriction on the right to a trial by jury, specifying the mode of trial;

2. (b)
   give a direction the court could give under chapter 10, part 1;

3. (c)
   without prejudice to another power or discretion of the judge or registrar, require the party neglecting or refusing to attend a conference to pay the costs of the application immediately;

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

3. (3)
   In this rule—

ready for trial see rule 467(4).”

Chronology

8. [8]
   I set out below a chronology of relevant events:

Disputed issues arising on the pleadings

9. [9]
   The Second Defendant has admitted liability. Only quantum is in issue.

10. [10]
    In its Statement of Claim, the Plaintiff claims $685,528.53 in damages for personal injuries, plus interest and costs. The particulars of the damages claimed include $143,500 for past economic loss and $264,500 for future economic loss.

11. [11]
    In its Defence at paragraph 6, the Second Defendant denies that the Plaintiff has suffered past economic loss, or will suffer future economic loss, as a result of the alleged injuries on the basis that, at the time of the accident, he had ceased employment due to pre-existing medical conditions (including severe diabetic retinopathy, renal failure and diabetes) and prior to the accident, he had pre-existing degenerative change to his cervical spine. It says that the Plaintiff had no intention of returning to work and/or had no capacity to return to work following the accident.

12. [12]
    The Plaintiff did not file a Reply.

Relevant considerations in the exercise of the discretion under r 320

13. [13]
    A number of decisions of this court have considered the exercise of the discretion pursuant to r 320.^[1] Each case will turn upon its own particular circumstances and, ultimately, on the way in which the judge exercises his or her discretion.  Therefore no case can be seen as establishing any general rule.^[2]  The discretion is a wide one and relevant considerations in its exercise will include:

1. That the potential advantages of alternative dispute resolution (ADR) are specifically recognised under the UCPR and the general principles which underpin those rules: rr 313-351(1). 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: r 5;

2. Opposition by a party to the referral will be relevant but not determinative. The court does not require the consent of the parties to make a referral order under r 320;

3. Whether the mediation is likely to be successful;

4. The timing of the referral;

5. The state of the pleadings, including whether there are deficiencies and whether amendment may be required before trial;

6. The nature of the issues in dispute;

7. The length of the trial;

8. The size of the claim and whether the costs of a trial will be disproportionate to the amount claimed;

9. Whether the parties have already participated in an ADR process including one involving a third party as a mediator; and

10. Whether the costs and effort that may be put towards a mediation process, might not, in the circumstances, be equally directed towards a determination of some essential issues.

The parties’ contentions

14. [14]
    The Plaintiff relies upon the fact that the parties agreed on 16 October 2017 to participate in a mediation. That is so, but that agreement preceded the Plaintiff’s advice on 1 November 2017 that it intended to obtain three further medical reports. That information changed the position markedly.

15. [15]
    The Plaintiff also relies upon the fact that, in its r 444 letter, the Second Defendant agreed to participate in a r 553 mediated conference or alternatively, sought an undertaking that the Plaintiff would not later call for a r 553 conference if a mediation was unsuccessful. The Second Defendant said that if the Plaintiff would not agree to either of the above, it would seek directions in terms of the subject application.

16. [16]
    In an affidavit filed the day before the hearing, the Plaintiff’s solicitor deposed that in order to prepare the Plaintiff’s case for trial, it would be necessary to obtain an updated report on his spinal injuries (at an estimated cost of $4,000 - $5,000), a report from an endocrinologist (at an estimated cost of $2,000 - $3,000) and a psychiatric report (at an estimated cost of $4,000 - $5,000). Without making any concession as to the merits of the Plaintiff’s claim, the Plaintiff’s solicitor also deposed that: “… the more valuable claims for past and future economic loss, if determined generally favourably to the defendants, would result in the plaintiff’s claim being assessed in a relatively modest amount”. He said that the Plaintiff was prepared to mediate at this point in time in an attempt to resolve his claim without incurring “the further substantial costs involved in finalising the medical evidence to the standards necessary to have the matter ready for Trial”.

17. [17]
    In short, the Plaintiff wishes to participate in a mediation now, without having to incur the costs of obtaining those further medical reports or doing the work necessary to prepare the matter for trial.

18. [18]
    The Second Defendant does not oppose a mediation per se.  Rather, it says that the matter is not ready for mediation, that mediation at this time would be inefficient, unfair and prejudicial to it, and inconsistent with the purpose of rr 5 and 553 of the Rules.

19. [19]
    The Second Defendant does not dispute that the claim should be mediated by an independent third party before trial. The only issue is timing. That is, whether a mediation should be ordered now, or after the additional experts’ reports foreshadowed by the Plaintiff have been obtained and considered, and the Second Defendant has had the opportunity to obtain responsive reports, if necessary, and to reassess quantum.

20. [20]
    The grounds upon which the Second Defendant opposes a mediation order pursuant to r 320 can be summarised as follows:

1. Holding a mediation now would lack utility because the Plaintiff has not disclosed any further expert medico-legal evidence nor any other evidence of significance so as to cause a change in the assessment of the quantum of his claim, since the compulsory conference between the parties on 14 February 2017;

2. Holding a mediation now would be premature because on 1 November 2017 the Plaintiff advised that he intends to obtain further medical evidence from three different experts;

3. One of those reports is from a psychiatrist but the Statement of Claim does not plead that the Plaintiff has sustained any psychiatric injury;

4. The Second Defendant may, depending upon what is contained in those further medical reports, wish to obtain independent medico-legal reports in response;

5. The further medical reports may affect the quantum of the claim.  The Second Defendant does not know and cannot guess what those medical reports will say;

6. The parties could not attend a mediation on a fully informed basis if the mediation occurred before the foreshadowed medical evidence was obtained; and

7. If the mediation was unsuccessful, it would likely result in the parties having to incur further substantial costs, likely to be in the thousands of dollars, in attending a third mediation.  Those costs would include the costs of reviewing the further medical evidence, updating the quantum assessment, re-briefing counsel and preparing again for a mediation.

Discussion

21. [21]
    It is understandable that the Plaintiff would prefer to avoid the cost of obtaining the further medical reports foreshadowed, before participating in a mediation.

22. [22]
    However, the existing medical reports are dated. The Plaintiff’s orthopaedic surgeon’s medico-legal reports are dated April and June 2014. Other reports are dated between December 2012 and May 2016. Where an expert’s opinion is a few years old and a party has unequivocally expressed an intention to update it in the near future, the absence of an update in those circumstances would likely mean that the matter is not ready for trial within the meaning of r 553(3).^[3]  The likelihood of a material change of opinion in such a report is higher than if there were a more recent report (prepared within the last few months).  The updated report is also likely to bear on decision making at a settlement conference or mediation.

23. [23]
    In addition, one of the further medical reports foreshadowed is from a psychiatrist. The Statement of Claim does not plead that the Plaintiff has suffered psychiatric injury. Depending on the opinion expressed in such a report, it is conceivable that the Plaintiff may seek to amend its pleading.

24. [24]
    The Plaintiff’s solicitor advised that if the matter did not settle at mediation, the costs of conducting a r 553 conference after that would be modest and “unlikely to exceed a few hundred dollars”.  It is difficult to see how that could be correct, given the work necessary to prepare for such a conference, which I accept would include reviewing the further medical evidence, updating the quantum assessment (including re-briefing counsel) and preparing again for a mediation.

25. [25]
    I invited the Plaintiff’s counsel to refer me to any authority in which the court had ordered a mediation pursuant to r 320 in the face of strong opposition by the other party, and in circumstances where the requesting party intended to obtain further expert evidence which would be relevant to the assessment of quantum. He did not do so.

26. [26]
    There are a number of issues militating against making a referral order to mediation at this stage. The only other active party, the Second Defendant, objects strongly to it. As is apparent from the chronology above, the proceeding was commenced shortly before the limitation period expired and there has been some delay by the Plaintiff in the prosecution of the claim. No Reply has been filed in response to important allegations raised in the Defence with respect to past and future economic loss. The parties have participated in a compulsory conference and no new material has been obtained by either party since then. The Plaintiff recently foreshadowed obtaining three further medical reports. One of those reports goes to a matter which is not pleaded. Once it became clear that the Plaintiff intended to obtain a number of additional medical reports, it should have been apparent that the matter was not ready for mediation or trial. Although the Plaintiff’s solicitor deposed that the quantum of the claim may be relatively modest, the Statement of Claim on its face seeks substantial damages, and past and future economic loss are squarely in issue.

27. [27]
    In those circumstances, the Second Defendant’s objection to a mediation referral order at this time is soundly based and not capricious. It is difficult to see how the Second Defendant could make a proper assessment of the quantum of the claim in the absence of the further medical reports foreshadowed by the Plaintiff. If a mediation were ordered without that information, it is unlikely the matter would resolve and the parties would likely have to participate in a r 553 conference at a later date.

28. [28]
    To order a mediation in the circumstances I have described would be an exercise in futility attended by delay and expense, and it would be unjust to the Second Defendant.

29. [29]
    On my assessment of the particular facts and circumstances of this case, it is not appropriate to order that the matter be referred to mediation at this stage.

30. [30]
    However there is clearly utility in making directions to ensure that the outstanding steps are completed, that the matter proceeds to a r 553 mediated conference and if it does not resolve at that conference, it is listed for trial in a timely fashion. The accident occurred over 6 years ago. The Plaintiff has not obtained updated medical evidence for some time. The Second Defendant submitted that 192 days had elapsed since the filing of the Defence. Although the District Court is not subject to case flow management, in personal injuries proceedings in the Supreme Court, this time lapse would result in an order for directions as to the future conduct of the proceedings.^[4] Therefore I intend to make the directions sought by the Second Defendant (which the Plaintiff did not oppose, in the event its application was unsuccessful).

31. [31]
    There is no reason why costs should not follow the event. The Plaintiff sought a mediation at a time which was premature, and it refused to agree to the directions sought by the Second Defendant before its application was filed.

Orders

32. [32]
    The Plaintiff’s application is dismissed.

33. [33]
    I make the orders sought in the Second Defendant’s application.

34. [34]
    The Plaintiff is to pay the Second Defendant’s costs of both applications, on the standard basis.

Judge T Fantin