Trelour v. J H McDonald Pty Ltd [2001] QDC 53 (6 April 2001)

Last Updated: 18 July 2001

DISTRICT COURT OF QUEENSLAND

CITATION:	Trelour v. J H McDonald Pty Ltd [2001] QDC 53
PARTIES:	JUSTIN MARK TRELOUR (Plaintiff) And J H McDONALD PTY LTD A.C.N. 009 759 951 (Defendant)
FILE NO/S:	D319 of 2000
DIVISION:	Civil
PROCEEDING:	Chambers
ORIGINATING COURT:	Maroochydore
DELIVERED ON:	6 April 2001
DELIVERED AT:	Maroochydore
HEARING DATE:	26 March 2001
JUDGE:	Robertson DCJ
ORDER:	I order that: (a) the request for trial date be dispensed with and the matter placed on the callover list of matters for trial for the next callover; (b) the cross-application by the defendant for referral to mediation be dismissed.
CATCHWORDS:	PRACTICE - Application that request for trial date be dispensed with, with cross-application for referral to mediation - whether parties should be compelled to attend further mediation - prior compulsory conference unsuccessful - general philosophy of UCPR regarding ADR Statutes judicially considered Uniform Civil Procedure Rules, r 467, 469 WorkCover Queensland Act 1996, s.293
COUNSEL:	M Grant-Taylor (for the applicant) S Falvey, Solicitor (for the respondent)
SOLICITORS:	Boyce Garrick (for the applicant) McInnes Wilson (for the respondent)

[1] The plaintiff applies for an order pursuant to rule 467(2) of the Uniform Civil Procedure Rules that a request for trial date be dispensed with; alternatively pursuant to rule 469(4) of the Uniform Civil Procedure Rules, that the signature of the defendant to a request for trial date be dispensed with.

[2] The defendant has filed a cross-application that proceedings be referred to alternative dispute resolution by way of mediation, such mediation to take place before the 30^th April 2001. The defendant's cross-application was filed on 22^nd March 2001 and the defendant seeks initially an order that the time in which the application might be brought be shortened to a period less than prescribed by rule 27(1) of the Uniform Civil Procedure Rules. That order is not opposed and I proceed on that basis.

[3] The plaintiff alleges that on the 4^th June 1998 he suffered an injury at his place of work. He was employed as a sheet metal worker. Whilst working on a site at Noosa the plaintiff alleges that he was required to lift a kitchen canopy duct system (with the assistance of an apprentice) from the back of a utility, over a besser brick wall, into a building under construction and then approximately 2.5m vertically to place the duct system in position. The plaintiff alleges that during the course of that operation he sustained a lumbar disc prolapse. He alleges that the injury was caused by the negligence and/or breach of statutory duty of the defendant.

[4] On the 4^th August 2000 the parties held a compulsory conference pursuant to s.293 of the WorkCover Queensland Act 1996. The claim was not settled at compulsory conference and pursuant to s.294 of the Act the parties made final written offers of settlement.

[5] The plaintiff's claim and statement of claim were filed on the 29^th September 2000 and he served a statement of loss and damage on the 23^rd October 2000. On the same date he served his list of documents and on the 26^th October 2000 the defendant filed and served a notice of intention to defend and defence. On the same day the defendant served its list of documents. On the 12^th December 2000 the plaintiff filed and served a reply and a request for further and better particulars of the defence. On the 23^rd January 2001 the plaintiff signed a request for trial date which was delivered to the defendants. On 6^th February 2001 Mr Schultz (the solicitor to the plaintiff) wrote to Mr Falvey (the solicitor for the defendant) informing him that the plaintiff was anxious to proceed with the action and that he had been instructed to make an application to the court to dispense with the request for trial date if not immediately signed. An extension of time to Wednesday the 14^th March 2001 for the signing of the request for trial date was indicated. On the 6^th February 2001 Mr Falvey enclosed a further draft of the defendant's request for further and better particulars which he had earlier advised was being settled by counsel. On the 9^th February 2001 Mr Schultz wrote to Mr Falvey in terms of rule 444 of the Uniform Civil Procedure Rules. Not surprisingly, Mr Falvey wrote back to Mr Schultz on the 12^th February 2001 referring to the extension of time to the 14^th March 2001 and fairly suggesting that the attitude of the plaintiff was inconsistent with the extension earlier granted. Mr Schultz wrote back to Mr Falvey on the 13^th February 2001 in terms designed to comply further with rule 444, making no reference to Mr Falvey's earlier letter of the day before. On the 14^th February 2001 Mr Schultz advised Mr Falvey that the reference in his letter of the 7^th February 2001 to the 14^th of March 2001 was an error, and in fact should have been a reference to the 14^th February 2001. On the 14^th February 2001 Mr Falvey forwarded to Mr Schultz a request for further and better particulars of the plaintiff's statement of claim which particulars were provided on the 15^th February 2001. In that letter in the last paragraph Mr Schultz observes: "Our client is frustrated by the perpetual delays in the matter and he is not prepared to give any additional indulgences."

[6] In view of the very rapid progress of the litigation and the constant exchange of letters between the solicitors for the parties, I have to say that that observation is less than fair. The plaintiff's application pursuant to rules 467 and 469 was filed on the 22^nd February 2001. Prior to the filing of that application Mr Schultz had written again to Mr Falvey on the 16^th February 2001 enclosing a copy of the application and his supporting affidavit and providing an extension until Wednesday the 25^th February to enable the defendant to provide a signed copy of the further and better particulars, a statement of expert and economic evidence, and to sign and return the request for trial date. On the same day, Mr Falvey after speaking to Mr Schultz on the telephone, wrote to Mr Schultz in which he advised relevantly:

"As we have outlined to you on a number of occasions, in light of the Plaintiff's response to our request for particulars we will be amending the Defence.

There will be significant amendments to the Defence.

You will appreciate that many of the matters which were the subject of the request for particulars arise out of matters raised in the Plaintiff's reply. These were not previously pleaded in the Plaintiff's Statement of Claim, nor were they articulated in his Notice of Claim for Damages served pursuant to s.280 of the Act."

[7] On the return date of the application Mr Falvey filed and delivered an amended defence. Mr Grant-Taylor did not seek to argue that the propositions advanced by Mr Falvey in his letter to Mr Schultz dated the 16^th February 2001 were not correct, except to say that generally some of the matters in the amended defence could have been pleaded in the earlier defence. Prior to the delivery of the amended defence, it follows that Mr Falvey was not in a position to certify to the court that his client was ready for trial.

[8] In relation to the defendant's cross-application, Mr Falvey was granted leave to file and read an affidavit by himself sworn on the 26^th March 2001 which set out the material on which he relies in relation to that application.

[9] That affidavit discloses that on the 19^th March 2001 he invited the plaintiff to participate in mediation. The participation was on the conditions that the defendant would meet the costs associated with the mediation, i.e. costs of the mediator and venue, and that if the matter was unable to be resolved at mediation a request for trial date would be executed. On the 22^nd March 2001 he was advised by Mr Schultz that they would not participate in a mediation unless the defendant indicated that it was prepared to pay the plaintiff more than his final offer served pursuant to s.294 of the WorkCover Queensland Act. The plaintiff also indicated that he would only participate in a mediation if the matter was immediately entered for trial. On the same day Mr Falvey informed Mr Schultz that his client could not accept the terms with respect to a mediation. He indicated that informal discussion with Mr Myers of counsel indicated that the mediation could be scheduled before the 30^th April 2001 at his chambers in Brisbane.

[10] In his written submissions which were confirmed in his oral submissions, Mr Grant-Taylor said this:

"Mediations are among the great frauds to be perpetrated upon long-suffering litigants in personal injuries actions. They are the "emperor's new clothes" of modern dispute resolution. Contrary to popular belief, they propagate delay; they result in the incurring of expense out of all proportion to their worth; and they raise hopes and expectations where none are there to be raised.

In by far the greater majority of cases, nothing more is or would be achieved at a mediation than was or would have been achieved in a settlement conference."

[11] In light of this submission it is necessary for me to make some observations about the general philosophy of the Uniform Civil Procedure Rules associated with the changes in relevant legislation designed to encourage parties to disputes to proceed to alternative dispute resolution. The assumption underlying those provisions is that costs will be saved and court waiting lists will be truncated.

[12] Needless to say, Mr Grant-Taylor has not placed before the court any evidence or information to support his submission; apart from reference to his acknowledged personal extensive experience in personal injury litigation in this State. That counsel of his experience should be moved to express such a strong view about alternative dispute resolution processes is concerning. Although Mr Falvey's application is expressed to be pursuant to s.102(2) of the Supreme Court of Queensland Act 1991, it is clearly pursuant to s.97 of the District Court Act 1967. In light of Mr Grant-Taylor's submission, it is necessary for me to set out the objects of Part 7 of the District Court Act 1967 which I must consider:

"89 The objects of this Part are:

(a) to provide an opportunity for litigants to participate in ADR processes in order to achieve negotiated settlements and satisfactory resolution to 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 the ADR process they would have if the dispute were before the District Court."

[13] It is also relevant in the light of Mr Grant-Taylor's submission to consider the Uniform Civil Procedure Rules, in particular Chapter 9 Part 4 dealing with alternative dispute resolution processes. The starting point is rule 5 of the Uniform Civil Procedure Rules which sets out the philosophy of the Rules:

"5(1) The purposes of these Rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court."

[14] In relation to Chapter 9 Part 4, it is instructive to quote from the annotations of the learned editor of that Part, Mr Alan Wilson of Counsel at page 11,367:

"ADR is a strong theme in these rules and practitioners are encouraged to discard the traditional notion that court proceedings lead inevitably to trial. Parties, lawyers and courts are under an overriding obligation to consider ADR during a proceeding with a view to facilitating the just and expeditious resolution of the real issues at a minimum of expense and with the objective of avoiding undue delay, expense and technicality."

[15] With those general observations in mind I return to a consideration of the application before the Court. Unless and until there is evidence or information before the Court together with some authoritative statement from the Supreme Court I am unable to accept or adopt Mr Grant-Taylor's general submission in relation to mediation. To accept it, would run counter to the underlying philosophy and purpose of ADR initiatives. As I have noted, it is concerning that a highly regarded counsel of his experience should find it necessary to make such a strong submission. It was obviously made sincerely, and after careful thought.

[16] On the other hand, it appears in this case that the matter is ready to proceed to trial. The parties have already attended a compulsory conference pursuant to s.293 of the WodkCover Queensland Act 1996 and written offers have been served. Mr Grant-Taylor informed me from the bar table, without objection from Mr Falvey, that the plaintiff's legal costs of attending the mediation would be in the order of $4,000, similar to the costs that he would incur on the first day of a trial in the District Court. Mr Falvey submits that there are changed circumstances which would make a mediation meaningful, notwithstanding the failure of the s.293 compulsory conference. He referred generally to the further disclosure of reports between the parties and most importantly the fact that the plaintiff was dismissed from his employment allegedly on the basis of unavailability of work. The plaintiff alleges that his employer would not reduce his working hours which he requested as a result of back pain.

[17] The plaintiff is clearly unwilling to attend any further mediation. I have to say that in the absence of exceptional circumstances I am reluctant to compel parties to attend mediation, particularly where the case is a relatively simple one. The matter is finely balanced, however I have decided that this is not a case which should now be referred to mediation. The matter can be placed on the callover, and given the state of the list, is likely to receive a trial in mid-2001. As to the plaintiff's application, in my opinion it was premature in the sense that Mr Falvey had given advance notice of his intention to amend the defence in light of the plaintiff's reply and further and better particulars of the statement of claim.

[18] As the matter is now in all respects ready for trial, I order that the request for trial date be dispensed with and the matter placed on the callover list of matters for trial for the next callover.

[19] Both parties have conducted the litigation in an expeditious manner, however for the reasons expressed I will make no order as for costs.