UCPR 320: Application for mediation order – too premature

Spina v Shimeld [2017] QDC 303

Fantin DCJ

In August 2011, the plaintiff was involved in a motor vehicle accident resulting in personal injuries to his cervical spine and shoulders. The second defendant had admitted liability and only quantum remained in issue. The plaintiff sought an order pursuant to r 320 of the Uniform Civil Procedure Rules 1999 (Qld) referring the matter to mediation. Rule 320 states:

The court may also 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.

The second defendant sought directions pursuant to 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.

Relevant considerations in the exercise of the discretion under r 320

In determining whether to exercise the discretion, Fantin DCJ stated:

[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]

Her Honour stated that the discretion is wide and relevant considerations included:

  • The court’s overriding obligations to apply the rules pursuant to r 5 of the UCPR;
  • Opposition by a party to the order is not determinative; the court does not require consent of the parties to make an order under r 320;
  • Whether the mediation is likely to be successful;
  • The timing of the referral;
  • The state if the pleadings, including whether there are deficiencies and whether any amendments are required;
  • The nature of the issues in dispute;
  • The length of the trial;
  • The size the size of the claim and whether the costs of a trial will be disproportionate to the amount claimed;
  • Whether parties have participated in ADR previously; and
  • 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’ submissions

Relevantly, on 16 November 2017 the parties had agreed to participate in a mediation, however, on 1 November 2017, the plaintiff’s solicitor advised that it intended to obtain updated medical reports in relation to the plaintiff’s injury. Notwithstanding this, the plaintiff was prepared to participate in mediation prior to the reports in 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”.

The second defendant opposed the timing of the mediation, and submitted that, inter alia, it may require responsive reports and to reassess quantum.

Discussion

Her Honour ultimately held that the plaintiff sought a mediation at a time which was premature. Reaching this conclusion, her Honour stated:

[22] … 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.

[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] 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] 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.

Her Honour also noted that one of the proposed experts was a psychiatrist, but the statement of claim did not plead that the plaintiff suffered a psychiatric injury. Her Honour accepted that it may be conceivable that the plaintiff may seek to amend its pleading in this regard.

The plaintiff’s application was dismissed, the plaintiff to pay the second defendant’s costs on the standard basis.

David Cormack – Brisbane Barrister & Mediator

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