Brady v. Woolworths Limited

[2009] QDC 1

DISTRICT COURT OF QUEENSLAND

CITATION:

Brady v Woolworths Limited [2009] QDC 1

PARTIES:

GLORIA HELEN BRADY

(Respondent/Applicant)

v

WOOLWORTHS LIMITED

(Applicant/Respondent)

FILE NO/S:

582/2008 and 657/2008

DIVISION:

Civil

PROCEEDING:

Originating Application and Application

ORIGINATING COURT:

Southport District Court

DELIVERED ON:

13 January 2009

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2008

JUDGE:

Martin SC DCJ

ORDER:

The Application of Gloria Helen Brady is refused.

Costs Reserved.

The Originating Application of Woolworths Ltd is granted.

Costs Reserved.

CATCHWORDS:

CIVIL – PERSONAL INJURY – PRACTICE AND PROCEDURE – COMPULSORY CONFERENCE – whether compulsory conference took place – obligation for parties to attend compulsory conference

Personal Injuries Proceedings Act 2002

COUNSEL:

Mr Pope of Counsel for Gloria Helen Brady.

Mr. Morton of Counsel for Woolworths Limited.

SOLICITORS:

PCF Law for Gloria Helen Brady.

McInnes Wilson for Woolworths Limited.

1. Gloria Helen Brady claims damages against Woolworths Limited for personal injury suffered on 29 December 2006 at one of Woolworths’ stores.

1. The parties[1] are subject to the obligations set out in the Personal Injuries Proceedings Act 2002 (“the Act”).

   [1]“Party means claimant, respondent or contributor” – dictionary in the Act.

1. By originating application, Woolworths Limited sought an order that the parties attend and actively participate in a compulsory conference pursuant to s 36 of the Act.

1. By application, Gloria Helen Brady (the claimant) sought a declaration that a compulsory conference had been held, or alternatively, an order dispensing with the holding of a compulsory conference.  On the hearing of the applications, the application for the declaration was abandoned and the alternative order sought.

1. The applications were heard and determined on 12 December 2008.  Orders sought by Woolworths Limited were granted.  The application by Gloria Helen Brady was refused.  I now give reasons.

1. Section 36 of the Act provides relevantly as follows:

36         Compulsory Conference

(1)Before starting a proceeding in a court based on a claim, there must be a conference of the parties (the compulsory conference).

(2)Any party may call the compulsory conference -

(a)       At a time and place agreed between the parties; or

(b)If the relevant day has passed, at a reasonable time and place nominated by the party calling the conference.

…

(4)The parties may, for good reason, dispense with the compulsory conference or the signing of a certificate of readiness under s 37(1)(d) by agreement.

(5)The court may, on application by a party –

(a)Fix the time and place for the compulsory conference; or

(b)Dispense with the compulsory conference for good reason; or

(c)Dispense with the requirement to sign a certificate of readiness under s 37(1)(d) in cases of complexity including, for example, a case involving multiple respondents, non-party discovery and the need for further expert evidence; and

(d)Make any other orders the court considers appropriate in the circumstances.

(6)In considering whether to make any order under sub-section (5), the court must take into account -

(a)The extent of compliance by the parties with their respective obligations relating to the claim; and

(b)How the main purpose of this Act is to be achieved having regard, in particular, to s 4(2)(a) to (e).

1. Section 4 provides relevantly as follows:

4           Main Purpose

(1)The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.

(2)        The main purpose is to be achieved generally by -

(a)Providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and

(b)Promoting settlement of claims at an early stage wherever possible; and

(c)Ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and

(d)Putting reasonable limits on awards of damages based on claims; and

(e)Minimising the costs of claims; …

1. Section 38 of the Act relevantly provides as follows:

…

(5)A person authorised by a party to settle the claim on the party’s behalf may participate in the conference as a party.

(6)Each party must, unless the party has a reasonable excuse, attend the compulsory conference and actively participate in an attempt to settle the claim.

(7)The compulsory conference may be conducted, if the parties agree, by using any technology that reasonably allows the parties to hear and take part in discussions as they happen.

Example –

Teleconferencing

(8)The parties may, by agreement, change the time or place for holding the compulsory conference or adjourn the compulsory conference from time to time and from place to place.

1. On the date and at the place agreed between the parties that the compulsory conference take place, Gloria Helen Brady and her legal representatives were in a room associated with her barrister’s chambers.  Woolworths Limited, represented by a solicitor seconded to the company and also the company’s legal representative, were in a near-by room.  There is conflict as to what took place that day.  It is unnecessary to resolve this conflict in the determination of this matter.

1. It is sufficient to note that the legal representatives for Gloria Helen Brady were made aware that Woolworths Limited regarded her prospects of success as very poor and this was then conveyed to the claimant by her legal representatives.  The legal representative for Woolworths Limited sought to inform the claimant of the company’s position in relation to the matter. The legal representatives for the claimant indicated that she was upset and, at one stage, there seems to have been a suggestion that the legal representative for Woolworths Limited should state the company’s position by telephone.  This was unacceptable to Woolworths Limited.  In the event, the parties did not come together nor was any argument on behalf of a party advanced to the other.  There was no discussion in any form directed to settling the claim.  The legal representatives for the respective parties separated on poor terms.

1. Section 38(5) of the Act allows for a person other than the party to participate in the conference “as a party”. It follows then that the obligation under s 38(6) may be complied with by attendance and participation by a person other than the party.

1. In light of s 38(5), the ordinary meaning of s 38(6) of the Act is that, subject to a party having a reasonable excuse not to comply, the obligation is for each party, or for a person authorised by the party to settle the claim, to be present at a compulsory conference and to there actively participate in an attempt to settle the claim.

1. Pursuant to s 38(7) of the Act, the obligation under s 38(6) may be varied to enable a compulsory conference to be conducted by, for example, teleconferencing. That may occur only if the parties agree. Where the compulsory conference is conducted pursuant to s 38(7), the obligation for each party, or for a person authorised by the party to settle the claim, to actively participate in an attempt to settle the claim, remains.

1. In this case, although each party was in the vicinity of each other at the relevant time and place, the parties did not attend a conference and did not otherwise actively participate in an attempt to settle the claim.

1. It was conceded on behalf of the claimant that a compulsory conference had not been held. However, it was argued on behalf of the claimant that, given the attitude of Woolworths Limited, there is good reason to dispense with the conference. In my view, the factual situation in this case does not afford good reason to dispense with the compulsory conference (s 36(5)(b)) nor did it give rise to a reasonable excuse for a party not to comply with the obligation under s 38(6) of the Act. That, prior to compulsory conference, parties have firmly-held views as to the strength of their respective positions is unsurprising, and, probably, not uncommon. However, the very purpose of a compulsory conference is to try to settle the claim at that early stage, notwithstanding strongly-held contrary views, and that must involve discussion between the parties and an exchange of arguments to see if compromise may be achieved. The obligation under s 38(6) pertains to all claims under the Act. The obligation is not confined to claims in respect of which settlement may be readily achieved.