Case v Woolworths Ltd - [2011] VSC 635

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] VSC 635
Decision Date: 8 December 2011

CaseChat Overview and Summary

The case before the court involved a personal injury claim where the defendant, Woolworths Ltd, required the plaintiff to be physically present in the joint session meeting room for mediation. The plaintiff was present and available to give instructions in an adjoining room but refused to be physically present in the joint session room. As a result, the mediation did not proceed. The plaintiff subsequently applied for further mediation, which was granted, and sought an order for the defendant to pay the costs of the mediation.

The court had to determine whether any order or legal principle required the plaintiff to be physically present in the joint session meeting room during mediation. The court also needed to decide whether the plaintiff's refusal to be physically present in the joint session room was justified, and if so, whether the defendant should bear the costs of the mediation.

The court found that there was no order or legal principle that required the plaintiff to be physically present in the joint session meeting room during mediation. The court noted that the primary purpose of mediation is to facilitate communication and negotiation between the parties, and this can be achieved in various ways, including through an adjoining room. The court also found that the plaintiff's refusal to be physically present in the joint session room was justified, as it was based on a reasonable concern for her health and safety. As a result, the court ordered Woolworths Ltd to pay the costs of the mediation.

The court did not provide any further orders in its decision.

Orders