Milosevic v Qantas Superannuation Ltd (ACN 003 806 960) (Ruling)

[2021] VCC 267

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-03356

MILIJANA MILOSEVIC	Plaintiff
v
QANTAS SUPERANNUATION LTD (ACN 003 806 960)	Defendant

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JUDGE:	JUDICIAL REGISTRAR J B GURRY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2021
DATE OF RULING:	22 March 2021
CASE MAY BE CITED AS:	Milosevic v Qantas Superannuation Ltd (ACN 003 806 960) (Ruling)
MEDIUM NEUTRAL CITATION:	[2021 VCC 267

RULING
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Subject:PRACTICE AND PROCEDURE

Catchwords:              Costs – costs thrown away due to absence of defendant’s representative at mediation

Legislation Cited:      Civil Procedure Act 2010, s16, s47, s48

Cases Cited:Case v Woolworths Limited [2011] VSC 635

Ruling:Plaintiff entitled to recover its costs from the defendant thrown away by virtue of the mediation not proceeding on 8 February 2021.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Bingham	Slater and Gordon Ltd
For the Defendant	Mr J Newman (solicitor)	Gilchrist Connell Pty Ltd

HIS HONOUR:

Summary

1On 17 February 2021, the plaintiff’s solicitors wrote to the Court with a completed Request for Directions Hearing form.  In regard to why the plaintiff sought a directions hearing, it was stated: 

“By order dated 28 September 2020 Judicial Registrar Gurry ordered this matter be mediated by 18 December 2020.

Arrangements were made on behalf of the plaintiff to mediate the dispute on 8 February 2021, including briefing Mr Tiernan as mediator, and counsel. On 3 February 2021 the Defendant served the Plaintiff with subpoenas returnable on 19 February 2021.

On 08 February 2021, the scheduled mediation was abandoned due to the defendant’s refusal to attend the joint session either by telephone or by Zoom platform.”

2In the application, the plaintiff sought orders that a person with proper authority to settle the dispute and determine the terms of any settlement (“the defendant’s representative”) attend the mediation, that the mediation take place by 30 March 2021 and that the defendant pay the plaintiff’s costs thrown away of the mediation on 8 February 2021. 

3The plaintiff commenced these proceedings by way of Writ and Statement of Claim issued on 28 July 2020.  The plaintiff pleads in paragraph 13 of the Statement of Claim that the defendant is liable to pay to the plaintiff a benefit pursuant to a Total and Permanent Disability claim. 

4The relevant timetabling orders were made by me on 27 January 2021 which included an Order that the date for mediation be extended to 8 February 2021.  The parties had submitted minutes of consent proposed timetabling orders on 18 January 2021. 

5In my Orders of 28 September 2020, it was noted in other matters that due to COVID-19 there was current uncertainty as to when this matter could realistically be listed for trial and no hearing date was allocated.  A hearing date would be allocated at the post-mediation directions hearing if the parties were ready to proceed to trial. 

6I also note that there were other matters which the parties wished to ventilate at the directions hearing, but this ruling is limited solely to the issue of the mediation.

7I had, for the benefit of the hearing, the following affidavits:

(i)    on behalf of the plaintiff, an affidavit of the plaintiff’s solicitor, Annemarie Gambera, sworn 12 February 2021 and 3 March 2021;

(ii)   for the defendant, an affidavit of Jason Rossiter Newman, sworn 2 March 2021, and a supplementary affidavit sworn 3 March 2021.

8There was a factual dispute between the parties on what occurred at the scheduled mediation on 8 February 2021.  The mediator appointed was Mr Michael Tiernan.  The factual dispute is deposed to by the respective practitioners in their affidavits.  However, it is not in dispute that the mediation did not proceed on that date.  It is also agreed that the basis of the mediation not proceeding was the absence of the defendant’s representative at the Zoom meeting.

Issues in dispute

9At the hearing of this application, I expressed my concern about some of the issues in dispute between the parties.  The basis of this concern was that given the nature of the factual dispute, issues of the reliability of a practitioner’s evidence of what happened on 8 February 2021 arise.  

10The decision of Beach J in Case v Woolworths Limited[1] was referred to me by the parties.  Similar to this matter, in Case, his Honour noted that there was no dispute between the parties on the description of what occurred, but a dispute between the parties as to the reason the mediation did not proceed.  Also in Case, each side had filed affidavit material giving their version of what happened.  As with Case, no issues of confidentiality or inadmissibility of any evidence was raised before me, as it was agreed that the mediation had not commenced.

[1][2011] VSC 635

11It is the plaintiff’s case that a request was made at the outset for the defendant representative to attend the joint session of the mediation.  The plaintiff submitted that the defendant solicitor rejected this request.  The plaintiff then submits that they requested the defendant representative, if not available to attend the joint session, at least attend the mediation.  This second request, it is alleged, was also rejected.

12The defendant’s solicitor’s version was that the first request was made but not the second. The defendant’s refusal to have the defendant representative attend the joint session was consistent with what his Honour Justice Beach ruled in Case.  It was submitted that whilst the defendant representative would not be present at the mediation, the defendant solicitor would, by phone, convey to that person instructions as to the conduct of the mediation and seek instructions accordingly. 

13Therein lies the dispute.  Was the second request made and should the defendant’s representative be in attendance?

14It is agreed between the parties that the defendant’s representative would not be required to attend the joint session.

15Whilst there was discussion regarding the involvement of the mediator, Mr Tiernan, I will not refer to any material provided to me on this point as I do not believe it is relevant to my ruling. 

16Equally so, I do not believe it is necessary for me to further explore the evidence on what happened which has been provided to me.

17The reason I say that is because it is not in dispute that the defendant’s representative was not in attendance at the mediation by Zoom. 

Applicable principles

18COVID-19 has meant there has been considerable changes in the way mediations are conducted.  No longer are persons physically in attendance at the agreed mediation venue with the mediator.  Pre COVID-19, the traditional format would be that parties would engage with the mediator in a joint session in a room.  Depending on the nature of the matter, some of the persons may or may not be physically seated in that session.  For example in some personal injury matters, the plaintiff may not attend the joint session.  Likewise, for matters which may involve an assault, the plaintiff and defendant may not be together.  If not in attendance in the joint session, they would at least be physically present in breakout rooms.

19COVID-19 has meant that mediations are now more commonly conducted by audio-visual means.  However, the use of available technology, such as Zoom, allows a mediation to continue in the traditional format.  By that I mean that a joint session can be conducted with all parties in attendance if necessary and breakout rooms are available for when parties need to be separated.  Subject to there not being any IT issues, there is no reason why a person cannot attend a mediation and participate without the necessity to travel from their residence or place of business.

20Section 16 of the Civil Procedure Act 2010 states:

“Each person to whom the overarching obligations apply has a paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved, including, but not limited to—

…

(c)any appropriate dispute resolution undertaken in relation to a civil proceeding.”

21Section 47 and s48 of that Act, in Part 4.2 headed “Case management”, provides the judicial powers of case management for the purpose of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose. Those sections give the Court substantial power in relation to the management and conduct of civil proceedings. Importantly, s48(2)(c) states that a court may give any direction or make any order it considers appropriate with respect to the use of appropriate dispute resolution to assist in the conduct and resolution of all or part of the civil proceedings.

22Part 15 of the Common Law Division Practice Note PNCLD 2-2020 (“the Practice Note”) deals with mediation.

23Paragraph 15.3, headed “The Court’s mediation procedures” states:

“Where the standard mediation order is made, the parties are to abide by the following procedures:

…

(e)Persons with proper authority to settle the dispute and determine the terms of any settlement, and lawyers who have the ultimate responsibility to advise the parties in relation to the dispute and its settlement, must attend the mediation, or, in the case of insurers, be available to confer by telephone.

… .”

24It is accepted that the defendant in this matter is not an insurer. 

25Further, I do not believe it can be challenged that the definition of “attend” means “to be present at”.

26In Case, Beach J stated:[2] 

“No legal principle required the plaintiff to be physically present in the meeting room for joint sessions of the mediation.  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.”

[2]        (Ibid) at paragraph [14]

27The defendant in Case submitted, by reference to a number of documents including documents on the Supreme Court’s website, that mediation encompassed face-to-face meetings in a joint session.  His Honour went on to state:[3]

“… 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.”

[3]        (Ibid) at Paragraph [16]

Consideration

28As stated, it is not disputed by the defendant’s solicitor that his client was not available to attend the mediation.  What was proposed by the defendant’s solicitor was that he would communicate by telephone to the client, who would provide instructions.  I do not consider that can be an attendance.

29Also, what is very clear is that whilst a physical requirement to be present in a joint session is not required, an attendance at the mediation is required.  Whilst this may not be in the physical sense, it can be by audio-visual means. 

30The Court has, in its Practice Note, made it clear by way of a direction to the practitioners, that at a mediation, save for the case of an insurer, a person with proper authority to settle the dispute and to settle the terms of any settlement must attend a mediation. 

31Therefore, the reason the mediation did not proceed on 8 February 2021 was the failure of the defendant representative to be in attendance, which is contrary to the direction given to practitioners in the Practice Note.

32In those circumstances, given the plaintiff was ready to proceed and the mediation could not be conducted, the plaintiff is entitled to recover its costs thrown away by virtue of the mediation not proceeding.

33The plaintiff in this matter has sought strict compliance with the Practice Note.  It is therefore appropriate to make some comment on strict compliance with Court Orders and the Practice Note.

34Unfortunately, there has been, over the years, a development amongst practitioners not to comply with Court Orders and the Practice Note.  In some instances, the practitioners have amongst themselves decided to set their own timetable for compliance.  Alternatively, they have failed to serve default notices or seek summary dismissal.  When noncompliance is pursued it is often too late and will jeopardise the maintenance of a trial date.

35It therefore needs to be understood that strict compliance applies to both sides in litigation.  In enforcing the requirement of the defendant representative to be present at a mediation, so too must the plaintiff solicitor ensure that the plaintiff is in attendance. 

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