McClure v Australian Independent Wholesalers Pty Ltd

[2006] QDC 281

[2006] QDC 281

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

No 1433 of 2003

THOMAS JOHN MCCLURE	Plaintiff
and
AUSTRALIAN INDEPENDENT WHOLESALERS	Defendant
PTY LTD (ACN 001 259 301)
BRISBANE ..DATE 14/07/2006
ORDER

CATCHWORDS: Alternative dispute resolution - employee's personal injuries claim - order for mediation against the wishes of corporate defendant (a self-insured employer)

HIS HONOUR: This is the plaintiff's application in a personal injuries proceeding for an order that the parties attend mediation. It is resisted by the defendant, whose interests are being attended to by WorkCover Queensland.

...

HIS HONOUR: Sorry, whose interests are - whose rather anonymous description in the title does not reveal that it is a self-insured entity for relevant purposes and part of the Woolworths group of companies. If it matters, I suppose I should reveal being the owner of a modest shareholding there.

Mr Sullivan resists the application on the basis that his client is not interested in embarking on mediation and has no confidence whatever that it might produce any useful outcome.

He claims support from the Court's decision in Stevensen v. to distinguish on the facts.

Mr Foley's authorities relied on in support of the application include Judge Tutt's decision in Facer v. WorkCover Queensland [2005] QDC 025, which was somewhat different in that the

dispute was between WorkCover Queensland and the employer in

relation to premiums.

Stevensen cannot be seen as establishing any general rule.
Each case must depend on its circumstances and ultimately on
the way in which the Judge exercises his or her discretion.
Judge Newton observed in paragraph 13 that: 2 ORDER

"There has certainly been no offer to pay or contribute
to the costs of the respondents in any mediation. The
application in the instant case has been made at a time
when the pleadings are closed, disclosure is complete and
liability issues have been identified, unlike the
situation in Barrett v. Queensland Newspaper Pty Ltd
[1999] QDC 150, where the application was made at a
comparatively early stage in the action and before
substantial costs associated with preparation for trial
had been incurred."

This was of course a defamation claim. Judge Newton noted that Stevensen was "ready for trial".

There is an assertion on the plaintiff's side here in contrary vein, Mr Scott's affidavit announcing that the statement of claim was to be amended That will occur in terms of Exhibit 1, a draft, which I prevailed on Mr Foley to make available.

The effect is to add an additional one to the plaintiff's list of injuries but in the circumstances that's something the defendant would have anticipated. There is another minor amendment. It cannot be suggested it is likely that significant new interlocutory steps are going to be needed.

The plaintiff offers the customary arrangement whereby the parties would share the cost of the mediator. There is no other offer, nor did I think it appropriate to press Mr Foley to offer more. On many occasions I and I think other judges have been resistant to ordering mediation where that involves imposing costs on a litigant who, on the face of things, may find funding them difficult and moreover is opposed to mediation. 3 ORDER

I think that is an appropriate approach. I think it is the way of the world that less tenderness need be shown to a litigant who or which on the face of things would seem better placed to bear costs. That is one factor in my determination that mediation should be directed, but without disrupting the claim's proceeding towards trial.

I made it clear in the hearing today that I would be amenable to making any directions as to representation or the like which might moderate the cost the defendant would incur in mediation. I am not for a moment suggesting against Mr Sullivan or the client that once the Court has determined to order that step, the defendant would not participate in an appropriate way.

I make an order in terms of the initialled draft which contains various handwritten amendments to form 33, so it would be convenient if I read the orders into this transcript.

(1) Signature by the plaintiff of the request for trial date

is dispensed with;

(2) The plaintiff amend his statement of claim in accordance

with Exhibit 1 forthwith;

(3) The defendant file its amended defence within seven days;

(4) The parties are directed to attend, participate in and

act reasonably and genuinely in mediation to be conducted
at a venue to be agreed within three months;

4   ORDER

(5) The mediator is Peter Munro of counsel or such other

person as the parties may agree on;

(6) The costs of the mediator are to be paid equally by the

parties;

(7) Liberty to apply;
(8) No order as to costs.

That last aspect was contentious but it seems to me what happened today is something of an indulgence to the plaintiff.

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5   ORDER