Brady v Woolworths Limited [2009] QDC 1

Case Name: Brady v Woolworths Limited [2009] QDC 001
Court: Southport District Court
Judge: Martin SC DCJ
Hearing Date: 12 December 2008
Issue: Whether a compulsory conference (CC) took place pursuant to Section 38(6) of PIPA (equivalent to Section 51B(10) of the MAIA).

Background Facts

On the day of the CC, Woolworths’ legal representatives informed the Claimant’s legal representatives that Woolworths regarded the Claimant’s prospects of success as very poor.

The Claimant’s legal representatives indicated in response that the Claimant was upset by Woolworths’ position, and requested that Woolworths should state the company’s liability position by telephone. Woolworths indicated that that was unacceptable.

The parties did not physically come together, nor was any argument on behalf of each party advanced to the other, and there was no discussion in any form directed to settling the claim. The legal representatives for the respective parties separated on poor terms.

The Law

By originating application, Woolworths sought an order that the parties attend and actively participate in a CC pursuant to Section 36 of PIPA, and the Claimant brought an application seeking a declaration that a CC had been held, or alternatively, an order dispensing with the holding of a CC. On the day of the hearing, the Claimant’s application for the declaration was abandoned, and the alternative order sought.

The Court noted that the ordinary meaning of Section 38(6) of PIPA (Section 51(B)(10) of MAIA) is that, subject to a party having reasonable excuse not to comply, each party or a person authorised by the party to settle the claim, is obliged to be present at a CC to actively participate in an attempt to settle the claim.

For completeness, the Court noted pursuant to Section 38(7) of PIPA, the obligation under Section 38(6) can be varied to enable a CC to be conducted by, for example, teleconferencing, but only if the parties agree. When a CC is conducted of that type, the obligation for each party or authorised party remains to actively participate in an attempt to settle the claim.

The Court found that in this case, although each party was in the vicinity of the other at the relevant time and place, the parties did not attend a CC and did not otherwise actively participate in an attempt to settle the claim.

At the hearing of the application, it was conceded on behalf of the Claimant that a CC had not been held but it was argued that, given the attitude of Woolworths, there was good reason to dispense with the CC.

His Honour found that the factual situation of the case did not afford good reason to dispense with the CC (Section 36 (5)(b) of PIPA) nor did it give rise to a reasonable excuse for a party not to comply with its obligations under Section 38(6) of PIPA.

His Honour found that, prior to CC, it was not uncommon for parties to have firmly held views as to the strength of their respective positions, but the purpose of a CC is to try and settle the claim at that early stage, notwithstanding strongly-held views, and that must involve discussion between the parties and an exchange of argument to see if a compromise can be achieved. His Honour said “the obligation [under Section 38(6) of PIPA] is not confined to claims in respect of which settlement may be readily achieved”.

As such, the originating application of Woolworths seeking that the parties attend and actively participate in a CC pursuant to Section 36 of PIPA was granted and the costs were reserved.

Practical Significance

It is usual for the parties at CC to ventilate disparate views, particularly in relation to liability issues.

- Pre-CC Correspondence

We suggest, in cases where it is apparent pre-CC the parties hold disparate views in relation to liability and the claimant (or their legal representative) are likely to be easily inflamed by contrary argument, that consideration be given to foreshadowing in correspondence to the Claimant’s solicitors that the Respondent’s position at CC, pursuant to Section 38(6) of PIPA, will be one of active participation in attempting to settle the claim at CC. We also recommend that this decision be quoted as authority for seeking the Claimant’s active participation in attempting to settle the claim.

It is not uncommon for Claimant’s solicitors to recommend dispensing with a CC in circumstances where liability issues arise. In a letter of response we suggest that this case should be quoted in refusing such a request.

- At CC

Further, at CC, we consider this case represents good authority to make it clear at the commencement of a CC that the Respondent remains ready and willing to participate in a CC and fully ventilate liability issues if a Claimant’s legal representative seeks to dispense with the CC simply because arguments being raised at CC (usually in relation to liability) are unpalatable to the Claimant.

David Bray
Managing Legal Practitioner Director
Bray Lawyers