Case v Woolworths Ltd
[2011] VSC 635
•8 December 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. S CI 2010 2583
| VALERIE JOY CASE | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2011 | |
DATE OF JUDGMENT: | 8 December 2011 | |
CASE MAY BE CITED AS: | Case v Woolworths Ltd | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 635 | |
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PRACTICE AND PROCEDURE – Personal injury mediation – Defendant required plaintiff to be physically present in joint session meeting room – Plaintiff present and available to give instructions in adjoining room – Plaintiff refused to be physically present in joint session room - Mediation did not proceed – No order or legal principle required plaintiff to be physically present in joint session meeting room - Application for further mediation – Costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.J. Keogh SC with Mr A.E. Hill | Ryan Legal |
| For the Defendant | Ms R.N. Annesley | Herbert Geer |
HIS HONOUR:
In this proceeding, the plaintiff claims damages from the defendant in respect of injuries she alleges she sustained when she fell at premises occupied by the defendant in Mildura on or about 1 May 2008. The plaintiff alleges that as a result of the fall, she suffered an injury to her right ankle and lower leg, an injury to her lower back, scarring and “psychological reaction to the incident and injuries including stress and anxiety”.
By its defence, the defendant denies that it was negligent or in breach of any duty owed to the plaintiff. Further, the defendant alleges that the plaintiff was herself guilty of contributory negligence.
On 16 July 2010, I ordered, amongst other orders, there be a mediation of this proceeding by 30 November 2010. Paragraph (8) of that order provided:
“The mediation shall be attended by those persons who have the ultimate responsibility for deciding whether to settle the dispute and the terms of any settlement and the lawyers who have ultimate responsibility to advise the parties in relation to the dispute and its settlement.”
On 25 February 2011, I extended the time for completion of the mediation to 22 April 2011.
Notwithstanding the orders made, the parties did not mediate at any time prior to 22 April 2011. Instead, the parties agreed to conduct a mediation on 12 August 2011 at 2.30pm at the offices of the defendant’s solicitors. The parties also agreed on a member of counsel being appointed as mediator.
Whilst all the relevant parties attended at the defendant’s solicitors at the appointed hour, no mediation took place. The mediator reported the matter to the Court in the following terms:
“Mediation did not proceed.”
No party disputes this description of what occurred. What is in dispute between the parties is the reason the mediation did not proceed. Each side has filed affidavit material giving their account of what occurred. No issue of confidentiality or inadmissibility of any evidence was raised by either party before me.[1]
[1]Cf rule 50.07(7) of the Supreme Court (General Civil Procedure) Rules 2005. See further, Ellis v Fisher & Ors [2011] VSC 621, [30]-[32] (Randall AsJ).
The matter is before me as a result of each party issuing a summons. On 14 November 2011, the defendant issued a summons seeking orders:
“(1) The parties are to mediate the dispute.
(2)The parties must ensure that persons with the proper authority for deciding whether to settle the dispute and the terms of any settlement, and the lawyers who have the ultimate responsibility to advise the parties in relation to the dispute and its settlement attend the mediation, including any and all joint sessions of the mediation which the mediator may convene, in person or by video link.
(3) The costs of the mediation shall be costs in the cause.
(4) The plaintiff pay the defendant’s costs of the summons.
(5) Such further or other order as the Court shall deem appropriate.”
On 29 November 2011, the plaintiff filed a summons seeking the following orders:
“(1)the defendant pay the plaintiff’s costs of the abandoned mediation which took place on 12 August 2011;
(2)that a second mediation take place by 29 February 2012;
(3)that the second mediation be held at the Mildura Law Courts;
(4)that the defendant pay the plaintiff’s costs of the second mediation;
(5)that the defendant pay the costs of this summons; and
(6)in the event the matter does not settle at the second mediation, the matter be listed in the circuit list, Supreme Court of Victoria at Mildura commencing 16 July 2012;
(7)any further order that the Court deems appropriate.”
Notwithstanding that the plaintiff’s summons refers to an abandoned mediation, it is common ground, as I have said above, that in fact the mediation did not proceed on 12 August.
The factual dispute between the parties is within relatively short compass. According to the defendant’s affidavits, the defendant’s solicitor was instructed not to commence the mediation until the plaintiff was present in the meeting room (she was in fact present in the defendant’s solicitor’s offices in another room). Those representing the plaintiff advised the defendant that the plaintiff was not comfortable attending the joint session of the mediation and would not agree to do so. Upon being informed of this, the defendant’s solicitor says he reiterated his instructions that the mediation was not to commence until the plaintiff was present. The plaintiff’s representatives then returned to their conference room. There was discussion between the mediator and the defendant, and the mediator then left the meeting room to speak with the plaintiff’s representatives. The defendant’s solicitor then deposes:[2]
“[The mediator] returned a short time later at which time he stated he had not had the opportunity to confer with [the plaintiff’s representatives], the plaintiff or her husband as they had already left the offices of Herbert Geer. At no time prior to their departure, was I informed that the plaintiff and/or her legal representatives were leaving.”
[2]Paragraph 12 of the defendant’s solicitor’s affidavit sworn 25 November 2011.
The plaintiff’s affidavits tell a different story. There is no dispute that the defendant’s solicitor requested the plaintiff to be personally present within the meeting room. The plaintiff’s affidavits are to the effect that, upon being informed of this fact, those representing the plaintiff returned to the room in which the plaintiff was present to seek instructions. The mediator then joined them and referred to the issue, saying that it was the plaintiff’s decision. The plaintiff’s affidavit evidence is then to the effect that she again instructed those representing her that she did not wish to be present in the room during the joint session “and was happy for and specifically authorised her legal team to represent her during the mediation given that she was available to provide her instructions”. Whilst it is then sworn that an assurance was provided to the defendant’s solicitor by the plaintiff’s counsel that the contents of the mediation would be put verbatim to the plaintiff, this was not satisfactory to the defendant. The plaintiff’s version is then that the defendant’s solicitor refused to proceed with the mediation in the absence of the plaintiff personally “and stated that ‘it had been a short day’ and words to the effect that the mediation was over”. Further, it is asserted that the defendant’s representative, who was appearing by video-link, “thanked everyone for coming and also indicated the mediation was over”.
In response to paragraph 12 of the defendant’s solicitor’s affidavit that “at no time prior to their departure, was I informed that the plaintiff and/or her legal representatives were leaving”, the plaintiff’s affidavit material asserts that the defendant’s solicitor “specifically stated that the mediation was over and the defendant would not proceed with the mediation in the absence of the plaintiff. In addition, [the defendant’s solicitor] was informed by [the plaintiff’s counsel] that the plaintiff would be leaving the [defendant’s] offices”.
The defendant’s summons and the plaintiff’s summons came on for hearing on 2 December 2011, a directions day in the major torts list. On that day, both sides agreed to the Court seeking a more detailed report from the mediator as to the reason why the mediation did not proceed. Subsequently, the mediator has provided a report in the following terms:
“My handwritten note of the mediation, which was written on my return to Chambers immediately following the mediation reads:-
‘Did not proceed because Defendant insisted on Plaintiff being present’.
My recollection of what took place at the mediation is clear although I do not purport to remember in detail all of the discussions which took place.
Before the joint session was due to commence, I met with the Plaintiff, her husband and her legal advisers and explained in detail the process. I met separately with the Defendant’s Solicitor and his client who was on video link from Brisbane.
The Plaintiff’s legal representatives came into the room where the joint session was to be held. The Defendant’s Solicitor indicated that the Defendant wished the Plaintiff to be physically present in the same room whilst the joint session was being conducted. There was discussion between the Plaintiff’s Counsel and the Defendant’s Solicitor during which it was indicated that it was not the Plaintiff’s intention to be so present. I invited the Plaintiff’s Counsel and her Solicitor to leave the room, which they did. I had a discussion with the Defendant’s Solicitor and the Woolworths’ representative about why it was that the Defendant wanted the Plaintiff to be present. The Defendant’s representative insisted that they be present.
I left the joint session room and spoke further with the Plaintiff, her husband and her legal representatives. I requested that they review their decision, but made it clear that I did not consider that I had the power to force the Plaintiff to be present in the joint session room. The Plaintiff made it clear to me that she did not wish to be present.
I reported back to the Defendant that the Plaintiff was not prepared to be present. I was informed by the Defendant’s Solicitor that, in those circumstances, the mediation would not proceed. I suggested that ‘no harm would be done’ by having a discussion between the legal representatives, including the representative of the Defendant and assured the Defendant’s side that, I would personally communicate to the Plaintiff anything that the Defendant wanted ‘put’ to the Plaintiff. The Defendant maintained its stance.
I then advised the Plaintiff that the mediation would not be proceeding. She, her husband and her legal representatives then left the offices of Herbert Geer.
It is not my recollection, as indicated in paragraph 12 of [the defendant’s solicitors] affidavit of 25 November, 2011, that I said that I did not have the opportunity of conferring with the Plaintiff or her legal representatives. In fact I did. The Plaintiff and her legal representatives only left the offices of Herbert Geer after it was made clear that the mediation would not proceed.”
No legal principle required the plaintiff to be physically present in the meeting room for joint sessions of the mediation.[3] That said, many common law personal injury mediations have occurred over the last 20 years where plaintiffs have chosen either to be present in the meeting room for joint sessions or to be in a nearby room for the purpose of giving instructions. I see no reason to change this practice.
[3]Cf Forest Pty Ltd v Keen Bay Pty Ltd & Ors (1991) 4 ACSR 107, 126.
During the course of her submissions this morning, counsel for the defendant submitted that the order I made on 16 July 2010 requiring the mediation to be attended by those persons who had the ultimate responsibility for deciding whether the settle the proceeding required the plaintiff to be physically present in face-to-face joint sessions in the mediation. I reject that submission. The order required, in accordance with usual practice, the plaintiff to do no more than she did on 12 August. Neither the order of 16 July 2010 nor any other order required the plaintiff to be physically present in any and all joint sessions as suggested by the defendant.
In support of her submissions, counsel for the defendant made reference to a number of documents, including documents on this Court’s website, to show that mediation encompassed face-to-face meetings in joint session. As I have said above, obviously many mediations will be conducted in that way. However, that is not to deny the fact that many other mediations (and in particular personal injury mediations) will be conducted with a party being present at the site of the mediation, but not in joint sessions.
There was nothing to stop the defendant from saying at the mediation that if the plaintiff did not attend joint sessions personally, then no offer (or a more limited offer) would be made. It would then be up to the plaintiff to decide whether she wanted to enter the meeting room and participate in any joint session. If the plaintiff decided not to be physically present in a joint session and no offer was made as a result of this, then the mediation might have concluded in circumstances where neither side would have had any legitimate complaint.
However, the difference in the present case from any such scenario is that both sides wanted the mediation to occur (and now want another mediation to be ordered). Further, each side blames the other for the mediation not proceeding on 12 August. In the circumstances, the question arises as to what is to be done in relation to what has occurred.
As both parties are agreed, there must be a second mediation. The first mediation was conducted at the defendant’s offices in Melbourne. The plaintiff, at some expense to her, came to Melbourne for the mediation. In the circumstances, any further mediation should be held in Mildura. I see no reason why it should not take place at the Mildura Law Courts by 29 February 2012, as sought in the plaintiff’s summons. If there is any difficulty with a video link to that location, then any necessary representative of the defendant can attend by being available to give instructions by telephone.
As the mediator’s report discloses, the reason the mediation did not proceed on 12 August was the conduct of the defendant. I reject the defendant’s affidavit evidence that the plaintiff walked out without notice. The plaintiff’s departure on 12 August was an entirely foreseeable consequence of the defendant’s conduct. In the circumstances, the defendant should pay the plaintiff’s costs of and incidental to the mediation which did not proceed on 12 August.
In addition to the costs of and incidental to the mediation which did not proceed on 12 August, the plaintiff seeks the costs of the subsequent mediation. In my view, these costs should be costs in the cause. There was always going to be one mediation where the costs of that mediation would be costs in the cause.
Consistently with what I have said above, at the mediation to be held by 29 February 2012, the plaintiff may choose whether or not to be physically present in joint sessions. Similarly, it is a matter for the defendant what (if any) offers it chooses to make. If the plaintiff chooses not to attend joint sessions and the defendant, as a consequence, chooses to make no offer, then the matter will not settle, but the mediation both parties want to have will be completed. On the other hand, if this is what is going to occur then one would hope that common sense would dictate that the parties’ positions be made known to each other ahead of time so as to avoid an exercise in futility.
For the above reasons, I propose to order a mediation between the parties take place on or before 29 February 2012 at the Mildura Law Courts. Further, I propose to order the defendant to pay the plaintiff’s costs of the mediation that did not proceed.
I will hear the parties on the appropriate form of orders, any consequential orders and the question of the costs of each party’s summons.
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