Frawley-Mangan v Hosmer Holdings Pty Ltd

[2023] ACTSC 7

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Frawley-Mangan v Hosmer Holdings Pty Ltd

Citation:

[2023] ACTSC 7

Hearing date:

Decided on the papers

DecisionDate:

23 January 2023

Before:

Mossop J

Decision:

See [7]

Catchwords:

PRACTICE & PROCEDURE – APPLICATION IN PROCEEDING – Application for insurance claim managers of first and second defendants to attend court ordered mediation by audiovisual link – insurance claim manager for second defendant to attend mediation by audiovisual link – application filed by first defendant dismissed – plaintiff allowed costs of the applications

Parties:

Anne Frawley-Mangan ( Plaintiff)

Hosmer Holdings Pty Ltd (First Defendant)

Australian Liquor Marketers Pty Limited (Second Defendant)

Representation:

Solicitors

Slater + Gordon ( Plaintiff)

Barry Nilsson Lawyers (First Defendant)

Wotton + Kearney (Second Defendant)

File Number:

SC 399 of 2021

MOSSOP J:

Introduction

1. On 29 September 2022 the Senior Deputy Registrar made standard mediation orders in relation to a mediation on 3 February 2023. Those orders included an order requiring that the relevant claims managers be present in person at mediation.

1. The second defendant has applied by application in proceeding dated, incorrectly, 13 January 2013, to have that requirement dispensed with. The affidavit in support indicates that the relevant claims manager is the carer for her two elderly parents, permanently works from home and that there is a medical appointment for her mother scheduled on the day before the mediation. It also discloses that the claims manager is located in Hobart and that there are no Qantas or Virgin Australia flights on the morning of the mediation that would arrive prior to its commencement and hence the claims manager would be required to fly to Canberra the night before. The affidavit does not disclose precisely what her caring responsibilities would be on the evening prior to or on the morning of the mediation. It does, however, disclose that her 82-year-old mother suffers from Parkinson’s disease and that her father is 87 years old.

1. The first defendant made a similar application in relation to the first defendant’s insurer’s claims manager who is based in Brisbane. The affidavit in support of the application indicates that the relevant claims manager is based in Brisbane and provides some less specific evidence about the availability of flights between Brisbane and Canberra, asserting that the earliest flight of the date of the mediation would only arrive at 8:45 am. It also asserts that the travel and accommodation costs would involve “considerable time and expense”. It seeks that the claims manager participate by telephone to the extent that any additional instructions are required.

1. The plaintiff opposed the application pointing out that she herself is travelling from Brisbane for the purposes of the mediation and that she is concerned that the absence of the claims managers will compromise the efficient conduct of the mediation, in particular, in circumstances where there are multiple defendants and some negotiations in relation to contribution may be necessary.

1. Orders requiring the attendance of claims managers at mediations are based on the idea that requiring such participation will make the mediation more effective by requiring the claims manager to fully engage with the mediation process and fully understand the factual and legal matters raised the mediation. To permit remote participation and partial participation by telephone only when necessary allows a lower level of engagement with the process and reduces the prospects of the mediation being as effective as possible. The requirement should only be departed from where there is sufficient reason to do so. An insurer’s choice to have its claims managers for claims brought in the ACT Supreme Court spread around Australia is not a sufficient reason to depart from the usual order. For that reason, the application brought by the first defendant will be dismissed. So far as the application brought by the second defendant is concerned, although the evidence is limited in relation to the precise caring responsibilities of the claims manager, the evidence is sufficient to justify a departure from the usual order but only on the condition that the claims manager participate in the mediation by an audiovisual link. That audiovisual link is one which must be arranged and maintained by the solicitors for the second defendant. Such participation will limit the departure from the norm which requires full participation of the ultimate decision-maker in relation to settlement of the proceedings.

1. So far as costs of the application are concerned, the first and second defendants each sought an indulgence which was not unreasonably opposed by the plaintiff. The orders I will make allow the plaintiff the costs of the applications.

1. The orders of the Court are:

1.Despite orders 2(b) of the “Orders for mediation – week commencing 30 January 2023” made on 29 September 2022, the insurance claims manager for the second defendant is not required to attend the mediation in person so long as she participates in the mediation via an audiovisual link made available and maintained by the solicitors for the second defendant throughout the mediation.

2.The second defendant pay the plaintiffs costs of the application in proceeding filed by the second defendant dated (incorrectly) 13 January 2013 filed 13 January 2023 and there is otherwise no order as to the costs of the application.

3.The application in proceeding filed by the first defendant dated 13 January 2023 is dismissed with costs.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 23 January 2023

Amendments

25 January 2023         Replace “December” with “January”                Page 1, “Decision Date”