Morais v Mills (No 2)

[2010] QDC 282

DISTRICT COURT OF QUEENSLAND

CITATION:

Morais & Anor v Mills (No 2) [2010] QDC 282

PARTIES:

EDWARD MORAIS AND VIRGINIA MORAIS
(Plaintiffs)

V

JAMES MILLS
(Defendant)

FILE NO/S:

DC 1308 of 2009

DIVISION:

Civil

PROCEEDING:

District Court at Brisbane

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 July 2010

DELIVERED AT:

Brisbane

HEARING DATES:

On the papers

JUDGE:

Dorney QC, DCJ

ORDERS:

No further orders made

CATCHWORDS:

COSTS – “LIBERTY TO APPLY” – Offers to settle at mediation – indemnity costs and “special case”

District Court Act 1967, s 78(3)(b)
Magistrates Courts Acts 1921, s 4
Uniform Civil Procedure Rules r 697

ACN 070 037 599 Pty Ltd v Larvik Pty Ltd & Anor [2008] QCA 416
Campbell v Turner & LRS (No 2) [2008] QCA 189
Cristel v Cristel [1951] 2 KB 725
Flylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593

Introduction

1. On 11 June 2010 I made orders in this proceeding dealing with costs of the parties.  They are Orders 3 and 4 in the orders made that day.  Under Order 5, I gave “liberty to apply” within 14 days concerning “costs”.

1. Both the defendant and the plaintiffs have now taken advantage of that liberty and filed submissions on costs.

1. I have considered both sets of submissions and I decline to make any further orders, including any orders amending or varying Orders 3 and 4 of the orders made on 11 June 2010, for the reasons that follow.

Offer at mediation

1. The defendant has filed an affidavit raising the issue of things allegedly said at a court ordered mediation between the parties.  This is contained in the affidavit of Simon Christopher Fisher affirmed 25 June 2010 and filed 25 June 2010.

1. Unsurprisingly in the circumstances, the written submissions of the plaintiffs in response object to the conduct of the filing of an affidavit which sets out details of matters allegedly occurring during the course of that mediation (which was held on 29 September 2009). The basis of the objection is, because of the recognition that it is in the public interest to encourage parties to resolve disputes by this means through diminishing the workload of the courts with a concomitant reduction in the costs to public funds in maintaining the court system, that ADR subjects such offers to “privilege”. That also reflects the position at common law: cf s 131(2)(h) of the Evidence Act 1995 (Cth).

1. But, here, there is a more fundamental objection. Section 109(1) of the District Court of Queensland Act 1967 states that evidence of “anything” said at an ADR process about the dispute is admissible at the trial of the dispute, or in another civil proceeding, before the District Court or elsewhere “only if” all parties to the dispute “agree”.  Section 109(2) contains an irrelevant exception.  Subject to the relevant exceptions, a mediation thus proceeds on the basis of “without prejudice” discussions being privileged from disclosure. 

1. There is nothing that I can see, where, as here, the parties have…