Collins v State of Queensland [2021] QCA 36

SUPREME COURT OF QUEENSLAND CITATION: Collins v State of Queensland [2021] QCA 36 PARTIES: KENNETH CHARLES COLLINS (appellant) v STATE OF QUEENSLAND (respondent) FILE NO/S: Appeal No 7047 of 2020 SC No 8473 of 2018 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court of Queensland – [2020] QSC 154 (Holmes CJ) DELIVERED ON: 5 March 2021 DELIVERED AT: Brisbane HEARING DATE: 9 February 2021 JUDGES: Sofronoff P and Mullins JA and Boddice J ORDERS: 1. Leave to adduce further evidence be refused. 2. The appeal be dismissed with costs. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where the primary Judge dismissed the appellant’s application to set aside a Deed of Settlement, signed by him on 9 September 2019, following a mediation of a claim the appellant had brought against the respondent, seeking damages for the destruction of a ship in 2016 – where the appellant appeals that decision on numerous grounds, said to constitute errors of fact or law – where the primary judge found that, whilst the notice of discontinuance had been signed and filed by the respondent prior to payment of the settlement sum, in breach of the terms of the Deed, it was not conclusive that that term was an essential term – whether the primary judge erred in both fact and law in the interpretation of the terms of the Deed of Settlement – whether the primary Judge failed to give adequate reasons – whether the primary Judge erred in rejecting the appellant’s contentions that the mediation had been conducted in breach of the rules of mediation APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – where the appellant accepted in argument that the various -- 1 of 6 -- 2 documents sought to be led by way of additional evidence constituted an elaboration of material relied upon by him at the hearing below, or constituted material reasonably available to him at the time of that hearing COUNSEL: The appellant appeared on his own behalf M H Hindman QC for the respondent SOLICITORS: The appellant appeared on his own behalf Crown Law for the respondent [1] SOFRONOFF P: I agree with the reasons of Boddice J and with the orders proposed. [2] MULLINS JA: I agree with Boddice J. [3] BODDICE J: On 5 June 2020, the primary Judge dismissed the appellant’s application to set aside a Deed of Settlement, signed by him on 9 September 2019, following a mediation of a claim the appellant had brought against the respondent, seeking damages for the destruction of a ship in 2016. [4] The appellant appeals that decision on numerous grounds, said to constitute errors of fact or law. The appellant also seeks leave to adduce additional evidence. Background [5] On 4 December 2016, a ship owned and operated by the appellant ran aground on Flat Rock, near South Stradbroke Island. The ship was lost, despite a distress call by the appellant. [6] In 2018, the appellant commenced proceedings against the respondent, claiming damages for negligence. In essence, the appellant alleged he had suffered the loss of the ship and consequential loss due to the respondent’s failure to light the relevant hazard and to respond to his distress call. [7] The respondent defended the proceeding, denying both liability and the quantum of the appellant’s claimed damages. [8] In 2019, when the appellant was suffering significant health concerns, the appellant made applications for orders that his proceeding be determined at mediation. Ultimately, a mediation took place on 9 September 2019. [9] At the time of the mediation, there was in existence, a mediation agreement and a mediator’s brief. The brief included the relevant pleadings, a response to the appellant’s notice to admit facts, outline of submissions and numerous other documents. [10] The mediation was conducted before an experienced mediator on 9 September 2019. Both the appellant and the respondent were legally represented at the mediation. [11] At the conclusion, the parties executed a Deed of Settlement. Relevantly, that Deed provided for the appellant to immediately execute a notice of discontinuance, which was to be signed and filed by the respondent’s solicitors after payment of a sum described as the settlement sum. [12] Contrary to the terms of the Deed, the Notice of Discontinuance was signed by the respondent and filed by the respondent prior to payment of the settlement sum. -- 2 of 6 -- 3 Proceedings below [13] On the day following execution of the Deed of Settlement and the Notice of Discontinuance, the appellant wrote to the mediator complaining of a denial of justice. Some days later the appellant’s solicitors sent a letter to the respondent’s solicitors alleging breach of the terms of the Deed. The appellant contended the notice of discontinuance was not to be signed and filed until payment had been made, but in breach of that term, the Notice had been filed prior to payment. The solicitors also asserted that the Deed had been signed in circumstances constituting undue influence and duress. [14] Subsequently, the appellant filed an application to set aside the Deed of Settlement on the grounds that essential terms had been breached by the signing and filing of the notice of discontinuance prior to payment of the settlement sum. The appellant also contended the terms of the Deed were ambiguous and that, accordingly, it was unenforceable and void. Primary Judge’s findings [15] The primary Judge found that, although the appellant was dismayed and overwhelmed by the process of the mediation, and accepting that the mediator had put aggressively to the appellant that he had caused the loss by mis-navigation, there was no basis to conclude that the appellant was subject to any special disadvantage, or that there was any demonstrated conflict of interest on the part of the mediator, or that the respondent had acted in bad faith in participating in the mediation, or that there was improper conduct by the appellant’s legal representatives. [16] Whilst the appellant’s legal representatives had stressed to the appellant that the appellant had poor prospects of success and that there were financial risks to litigation, which had caused the appellant to accept the terms of a Deed of Settlement he soon regretted, it was not improper for those matters to be raised by the appellant’s legal representatives. Further, there was no basis for a finding that either the appellant’s counsel or the mediator had applied illegitimate pressure to the appellant. [17] The primary Judge found the effect of the Deed of Settlement had been explained to the appellant, who had the benefit of independent legal advice. In any event, there was no basis to conclude that the appellant’s will was overborne as a result of pressure exerted by the respondent or at its behest. Accordingly, the Deed of Settlement had not been entered into by the appellant as a consequence of duress, or undue influence, or unconscionability. [18] The primary Judge further found that, whilst the Deed of Settlement contained the term “Effective Time”, which was not defined, there was no uncertainty as a consequence of the inclusion of that term. The Deed of Settlement imposed obligations on the parties that each would release and discharge the other upon payment of the settlement sum. There was no uncertainty about the parties’ intentions or the order of events. [19] The primary Judge found that, whilst the notice of discontinuance had been signed and filed by the respondent prior to payment of the settlement sum, in breach of the terms of the Deed, it was not conclusive that that term was an essential term. Further, the filing of that notice before payment of the sum was itself inessential. The clause which was breached was not expressed to be an essential term. -- 3 of 6 -- 4 [20] The agreement reached by the parties was that the respondent undertook to pay the settlement sum, sign and file the notice of discontinuance and provide a copy of it to the appellant, in consideration of the appellant’s agreement to fulfil his part of the bargain, with his obligation being immediate and not dependent upon the respondent’s obligation. [21] Accordingly, even if the agreement to file a notice of discontinuance should be regarded as essential, the prescription as to the respondent doing it upon payment being made was not essential. Further, the appellant lost nothing by the alteration of the sequence. Accordingly, there was no breach of an essential term and no entitlement to terminate the agreement represented by the Deed of Settlement. Appellant’s submissions [22] The appellant submits that the primary Judge erred in both fact and law in the interpretation of the terms of the Deed of Settlement and as to the consequence of the respondent’s filing of the notice of discontinuance prior to payment of the settlement sum. Further, the primary Judge failed to give adequate reasons for the conclusions as to what were essential terms of the Deed and the consequence of a breach of those terms. [23] The appellant further submits that the primary Judge erred in rejecting the appellant’s contentions that the mediation had been conducted in breach of the rules of mediation, by a mediator who was not impartial and who had engaged in aggressive conduct, which led to undue influence, duress and unconscionable conduct, with the consequence that the respondent entered into the Deed of Settlement in circumstances where the respondent knew the appellant suffered special disadvantage. [24] Finally, the appellant submits that the primary Judge erred in finding that no conflict of interest was established in respect of the mediator’s prior professional relationship with the respondent and in finding that neither the appellant’s counsel nor solicitor had acted other than in the best interests of the appellant. [25] In support of the appellant’s contentions, the appellant sought to adduce additional evidence on appeal. That evidence included medical evidence as to the appellant’s health at the time of the mediation, as well as numerous other documents relevant to the appellant’s expectation as to the conduct of the mediation and the obligations of his legal representatives. Respondent’s submissions [26] The respondent submits that the appellant has established no error of law or fact. Even if it be accepted that the mediation was conducted in a manner inconsistent with the appellant’s expectations, the primary Judge properly concluded there was no improper conduct by the mediator and there was no reason for the respondent to be on notice that the terms of settlement agreed to by the appellant were entered into by him, other than in accordance with his free will after having received appropriate legal advice. [27] The respondent further submits that the additional evidence sought to be adduced on appeal is not admissible. It is, at best, an elaboration of material relied upon by the appellant at mediation or was evidence which was reasonably available to the appellant at that time. -- 4 of 6 -- 5 Consideration Leave to adduce further evidence [28] The appellant accepted in argument that the various documents sought to be led by way of additional evidence constituted an elaboration of material relied upon by him at the hearing below, or constituted material reasonably available to him at the time of that hearing. A consideration of the material sought to be led by way of additional evidence supports the accuracy of that concession. [29] Having regard to that concession, there is no basis upon which the additional material ought to be received on the hearing of the appeal. None of it constitutes fresh or new evidence. Accordingly, I would refuse leave to adduce additional evidence. The Appeal [30] Although the appellant sought to characterise the appeal as involving a consideration of the proper processes and the rules surrounding mediation, the appellant’s grounds of appeal and submissions must be viewed in the context of the relief sought by him in the hearing below. That relief related to the enforceability of the Deed of Settlement. [31] A consideration of the appellant’s submissions supports a conclusion that his complaints about the mediation process are framed by what were his expectations of that process. Those expectations failed to have regard for the fact that a mediation is a process which, whilst conducted within certain rules, does not have the structures of a Court hearing. [32] The fact that the mediation, as conducted by the mediator, failed to meet the appellant’s expectations is no basis for a conclusion that the mediation involved undue influence, duress or unconscionable conduct. As the primary Judge properly found, there is nothing impermissible in both a mediator and a party’s legal representatives referring to obvious difficulties that party may have in succeeding at trial, and the significant financial consequences in the event of an adverse costs order. [33] A consideration of the record also amply supports the primary Judge’s findings that there is no basis to conclude that the appellant entered into the Deed of Settlement as a consequence of duress, undue influence or unconscionability on the part of the mediator or his legal representatives and, more importantly, no basis to conclude that the behaviour of the mediator and his legal representatives occurred with the knowledge of the respondent or at the respondent’s behest. [34] The appellant entered into the Deed of Settlement freely, albeit reluctantly, with full knowledge of its consequences. His obvious disappointment thereafter forms no basis for findings to the contrary. [35] A consideration of the record also amply supports a conclusion that the primary Judge correctly found no basis for the appellant’s contentions that the respondent’s conduct at mediation was in breach of the respondent’s obligation on mediation, or that the respondent did not fully and effectively participate or cooperate in the mediation in breach of the rules of a mediation. [36] A respondent at mediation is entitled to maintain its defence of the proceeding and advance reasons why a claimant will fail at trial. Such conduct is not in breach of a party’s obligation on mediation and does not constitute a failure to participate meaningfully in the mediation in accordance with the rules of a mediation. -- 5 of 6 -- 6 [37] The remaining grounds of appeal relate to the appellant’s contention that the primary Judge erred in the interpretation of the Deed of Settlement and, in particular, in concluding that the filing of the notice of discontinuance prior to the payment of the settlement sum did not amount to a breach of an essential term of the Deed, not allowing termination of the Deed by the appellant; erred in finding that the Deed was not unenforceable due to the failure to define the term “Effective Time” within that Deed; and failed to give adequate reasons. [38] A proper interpretation of the Deed amply supports the primary Judge’s conclusion that, whilst the filing of the notice of discontinuance prior to payment of the settlement sum was in breach of the terms of the Deed, that breach did not involve a breach of an essential term enlivening an entitlement to terminate the Deed. [39] The essential terms of the Deed and their meaning and effect are clear. Upon the appellant agreeing to execute a notice of discontinuance, the respondent undertook to also sign that notice and, upon payment of the settlement sum, to file that notice of discontinuance. It was the agreement to mutually execute the notice of discontinuance and provide it to the respondent for filing and the payment of the settlement sum which represented the essential terms. [40] The order in which those events were to take place did not itself constitute an essential term. Accordingly, a failure to comply with the order of events as set out in the Deed of Settlement did not constitute a breach of an essential term. [41] Further, the failure to define the term “Effective Time”, in the context of the Deed and the obligations entered into pursuant to that Deed by the parties did not render the Deed void for a lack of certainty of its essential terms. The Deed set out those terms and the obligations of the parties. There was no ambiguity. Those obligations and the Deed itself was not rendered unenforceable or void as a consequence of a failure to define that term. [42] Finally, the primary Judge properly found that there was no basis upon which the appellant could terminate that Deed of Settlement. The reasons for doing so were clearly and concisely set out in the judgment. There is no basis to find there was a failure to give adequate reasons. Conclusions [43] The appellant has not established any error of fact or law in the primary Judge’s decision. The application below was properly dismissed. Orders [44] I would order: 1. Leave to adduce further evidence be refused. 2. The appeal be dismissed with costs. -- 6 of 6 --