Meredith v Newman[2012] QSC 136

SUPREME COURT OF QUEENSLAND

HIS HONOUR:  There are two applications before me in this personal injuries matter.

The first is an application filed on the 2nd of May 2012 seeking an order under Uniform Civil Procedure Rules 553, that before this matter is set down for trial the parties participate in a conference by way of mediation.

The second is an application filed the following day seeking an order that the signature of the plaintiff on the request for a trial date be dispensed with and the matter be entered for trial.

Both applications fall to be considered against the over-riding provisions of rule 5 in the Uniform Civil Procedure Rules.  They also fall for consideration against a background where the plaintiff has in the past unsuccessfully requested the defendant sign a request for trial date, whereas now it is the defendant pressing for that.

The reason the plaintiff has not in recent times wanted to sign a request for trial date can be readily inferred from two bodies of factual material.

Firstly, in the letter to the defendants of the plaintiff's solicitor Mr Roati, Exhibit JR7, of 27 March faxed 28 March, it is said inter alia:

"Having regard to the substantial delay that has been occasioned since the plaintiff's request for a trial date was first issued on the 14th of April 2011, we now propose obtaining updated medico-legal reports from Dr John McGuire, orthopaedic surgeon, Dr Scott Campbell, neurosurgeon, and Katherine Purse, occupational therapist, we intend to schedule these appointments over the next two months."

I note, at least on the materials before me, that the reports of such persons appear now to be at least a couple of years old. 

The second body of evidence is a letter to the defendants by Mr Roati dated the 27th and the 2nd of April and faxed on the 2nd of April, JR8, in which it is said inter alia:

"We have now received our client's instructions to hold a conference pursuant to R553 of the Uniform Civil Procedure Rules.  Pursuant to R553(1) of the Uniform Civil Procedure Rules we nominate the holding of the conference to proceed as follows:

Time: 9.30 a.m.

Date: Tuesday, 1st May 2012.

Place: R J Douglas Chambers, Suncorp Building Level 4, 61 Sturt Street, Townsville.

In our view, it would be preferable for the R553 conference to be conducted by way of mediation.  In the event that you are prepared to agree to the R553 conference being conducted by way of mediation then obviously the date will need to be varied depending on the mediator's availability."

The letter goes on to propose a panel of mediators to select from and concludes:

"Would you please confirm within seven days from the date hereof that you will proceed in the R553 conference as nominated herein."

That notice appears to comply with the requirements of UCPR 553(1), however, the defendant argues that the plaintiff has not met the requirements of UCPR 553(3) in that the defendant did not unreasonably neglect or refuse to attend the conference.  I entirely disagree. 

It is common ground that the defendant did not attend the meeting, of which notice was given per rule 553(1) and there is no evidence any explanation was proffered for not doing so.  There is a letter from the defendant to the plaintiff of 10 April 2012 in KT7, but all it relevantly does is say, "Our client does not wish to participate in a mediated rule 553 conference."  The word "mediated" warrants emphasis in this context. The letter says nothing of the defendant's participation in the conference of which notice was given in JR8.  That notice alluded to the option with the defendant's agreement of a conference by way of mediation, but that did not nullify or render irrelevant that part of the notice which was clearly intended to serve as a rule 553(1) notice.

It is for the party now advancing the application, the plaintiff, to persuade me I ought make the order sought.  However, where there is evidence a compliant rule 553(1) notice has been given in a timely way, then prima facie, and bearing in mind the parties undertaking to proceed expeditiously pursuant to rule 5(3), the inference that neglecting or refusing to attend the conference was unreasonable is a reasonable inference to draw.  In a sense, there falls upon the defendant an evidentiary onus to raise at least some explanation in a situation like this.

The complete absence of explanation means the inference of unreasonable neglect or refusal can be more readily drawn.  The defendant's affidavit material now highlights how often opposing legal representatives have been in Townsville in recent times, presumably, to show how easy it would have been for them to have attended a rule 553 conference, but there is simply no explanation why the conference notified in the 553(1) notice was not attended. On one view, the affidavit material highlighting the concurrence of the opposing legal representatives’ availability and attendance undermines its position.

Clearly, the situation would be different, for example, had the defendant contacted the plaintiff and advised that the date, time or venue were inconvenient, and made some bona fide attempt to negotiate another date, time or venue. Evidence of that kind would counter an inference that the non-attendance was unreasonable.  Unfortunately, there is no such evidence.  It appears likely in hindsight that the defendant focussed on the raising of the topic of a mediated conference in the notice and it resisted that aspect of the correspondence to the exclusion of proper consideration of the aspect which actually gave proper notice under rule 553(1).

Another argument advanced by the defendant is that the matter is not, as rule 553(3) requires, ready for trial.  The defendant points to JR7 as demonstrating that it is not ready, because Mr Roati, as at late March, flagged an intention over the following two months to obtain updated medico-legal reports.  That would take his time frame to late May, a point in time which is yet to be reached.

Mr Crow SC contends "ready for trial" in rule 553(3) means in all respects ready for trial.  I would not attribute such an absolute meaning to the term, in that there may exist some minor matters remaining to be tended to to be truly ready for trial, but which can have no material bearing on readiness to do justice to a case at a settlement conference or mediation.

To illustrate my point, it may be a plaintiff in a personal injuries case would want its expert whose last report was prepared, say, a year ago, to examine the plaintiff one last time within a period of, say, one month or less before trial in order to ensure the temporal credibility of the expert at trial.  The fact that has not occurred would not, in my view, mean the matter is not ready for trial within the meaning of rule 553(3).

On the other hand, where an expert's opinion is a couple of years old, and a party has unequivocally expressed an intention to update it in the near future, the absence of the update in that circumstance would likely mean it is not ready for trial within the meaning of rule 553(3).  The difference is a matter of degree. In the former example, the likelihood of a material change of opinion is much lower than in the latter, and thus much less likely to bear on decision-making at a settlement conference.

In this case the obvious inference that we are dealing with a situation akin to that in the latter example is bolstered by the lack of evidence from the plaintiff positively asserting readiness for trial and, more particularly, dealing in some positive way with the absence of any evidence of the outcome of the process of updating the experts’ reports it clearly indicated it was embarking upon.

In my view, a prerequisite of rule 553(3) therefore has not been made out. The absence of evidence of readiness means I am not inclined in any event to apply the over-riding philosophy in rule 5 so as to, notwithstanding my finding, go ahead and order either a conference or a mediation.  I refuse the application.

As to the defendant's application, its resistance of the plaintiff's application assures mutual destruction of its own application's prospects.  I am not prepared to make the order sought where the party seeking it has succeeded in persuading me the matter is not yet ready for trial, and on the information available to it, it was well-known to that party that:

(1)the matter was unlikely to be ready for trial until at least early June; and

(2)that party is, in fact, still prepared to, in good faith, participate in a settlement conference. 

The application is refused.

Given this mix of outcomes, it appears to me the appropriate order in relation to costs is that there be no order.