| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BRIT -v- ITALIANO & ANOR [2005] WADC 179 CORAM : REGISTRAR WALLACE HEARD : 14 SEPTEMBER 2005 DELIVERED : 15 SEPTEMBER 2005 FILE NO/S : CIV 1130 of 2005 BETWEEN : SHELLIE NATASHA BRIT Plaintiff
AND
ANGELA MARIA ITALIANO
First Defendant
KATIE WADE
Second Defendant
Catchwords: Directions pursuant to O 24 Rules of the District Court (2005)- Early mediation - Appropriate orders when action not settled
Legislation: Nil
Result: No directions given
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Representation:
Counsel:
Plaintiff : Mr T Lampropoulos
First Defendant : Mr K N Allan
Second Defendant : Mr K N Allan
Solicitors:
Plaintiff : Simon Walters
First Defendant : K N Allan
Second Defendant : K N Allan
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 REGISTRAR WALLACE: Counsel for the first and second defendants ("defendants") requested that I provide written reasons for my decision not to make orders as sought by the defendants at the conclusion of the mediation conference held on 14 September 2005.
2 The action was commenced by writ of summons filed on 25 May 2005, and leave to amend the writ (to add the second defendant) was granted on 16 June 2005. The plaintiff filed her Statement of Claim on 17 June 2005. A Memorandum of Appearance was filed on behalf of the first and second defendants on 20 June 2005, and their defence was filed on 5 July 2005. 3 On 18 July, the defendants filed a chamber summons for directions pursuant to O 24 of the Rules of the District Court (2005) seeking orders that: "1. (a) The parties confer on a 'without prejudice basis' in order to settle the case; (b) The conference be conducted by a Registrar as mediator; (c) Are otherwise necessary; 2. That the summons be otherwise adjourned sine die; 3. The costs of this application be in the cause."
4 On 1 August 2005, orders were made in terms of pars 1 (a) and (b), and pars 2 and 3 of the summons, and the mediation conference was listed before me on the 14 September 2005. 5 I am satisfied that each of the parties made a bona fide attempt to settle the claim at the mediation conference, but a settlement was not achieved. 6 At the conclusion of the conference, counsel for the defendants sought an order that the plaintiff proceed to enter the action for trial within 7 days. Such an order was opposed by counsel for the plaintiff, who submitted that there should be no directions given, the effect of which would be to retain the existing entry for trial date of 2 November 2005. 7 Although there is no transcript, I understood the grounds for the order sought to be, essentially, that the action is simple and
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straightforward with discovery of documents already having taken place; any residual disabilities of the plaintiff have stabilised and there is no reason why the action should not be entered for trial within 7 days. 8 It is my recollection that the plaintiff resisted the order sought on the ground that the early mediation had been ordered upon the application of the defendants and although the parties had been in a position to conduct meaningful negotiations during the mediation conference there were some matters that needed to be attended to before entry for trial. I was advised that the plaintiff wished to obtain further evidence in support of her claim for past and future economic loss (insofar as it related to overtime) and that two medical reviews still had to be arranged. It was submitted that the existing entry for trial date should be retained. 9 Early mediations, ordered pursuant to O 24 of the Rules of the District Court (2005), have only recently started appearing in Registrars' lists, and I am unaware of any precedent relating specifically to the issue of the appropriate course to be adopted by a Registrar at the conclusion of an early mediation conference that has not resulted in a settlement. 10 In reaching my decision, I adopted the view that where a settlement has not been achieved at an early mediation the prima facie position should be that the existing entry for trial milestone should be retained. I acknowledged that the presiding Registrar has the power to make such directions as he/she sees fit, and that in some cases the Registrar would consider it appropriate to reset the date upon which the action should be entered for trial, taking all the circumstances into account. There would also be cases where the parties advise the Registrar that they consent to an order that the entry for trial milestone be reset on an agreed date. In the present case, the entry for trial milestone is currently some six weeks hence, and I took the view that I should be careful not to prejudice the plaintiff's position by depriving her of five weeks' preparation time prior to entry for trial. Save for the defendants' understandable wish to proceed without delay, I perceived no apparent prejudice to the defendants that would result from my allowing the existing date for entry for trial to the retained. 11 For the reasons given, I ordered that there be no directions and that the costs of the mediation conference be costs in the cause.
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