Barrett v Queensland Newspapers Pty Ltd & Ors [1999] QDC 150

IN THE DISTRICT COURT HELD AT MARYBOROUGH QUEENSLAND [Before Samios DCJ] [Barrett v. Queensland Newspapers Pty Ltd & Brennan & Ruddiman Plaint No 52 of 1998 BETWEEN: BARRY DOUGLAS BARRETT Plaintiff AND: QUEENSLAND NEWSPAPERS PTY LTD ACN 009 661 778 First Defendant AND W.F. BRENNAN Second Defendant AND DAVID RUDDIMAN Third Defendant JUDGMENT Judgment delivered: 19 July 1999 Catchwords: PRACTICE - mediation - when to order when opposed by one of the parties to the action - discretion to order - balancing factors when exercising discretion to order dispute be referred to mediation despite opposition by one party - District Court Act 1967 sections 89, 90 and 97. Counsel: Mr. Favell for the plaintiff Mr. Amerena for the second defendant Mr. Land, solicitor, town agent for Messrs King and Co, for the third defendant Mr. Zemack, solicitor, town agent for Messrs Thynne & McCartney for the first defendant Solicitors: R. J. Suthers for the plaintiff Gayler & Co for the second defendant Hearing Date(s): 3 June 1999 IN THE DISTRICT COURT -- 1 of 11 -- HELD AT MARYBOROUGH QUEENSLAND Plaint No 52 of 1998 BETWEEN: BARRY DOUGLAS BARRETT Plaintiff AND: QUEENSLAND NEWSPAPERS PTY LTD ACN 009 661 778 First Defendant AND W.F. BRENNAN Second Defendant AND DAVID RUDDIMAN Third Defendant REASONS FOR JUDGMENT -SAMIOS D.C.J. Delivered the 19th day of July 1999 This is an application by the second defendant for an order referring the dispute constituted by the action for mediation in conformity with r.393(5) of the District Court Rules. The first defendant and the third defendant support the application. The application is opposed by the plaintiff. The action is a claim by the plaintiff against the defendants for damages for defamation. The plaintiff claims that as a Stipendiary Magistrate in Queensland of more than 11 years standing the first defendant, as the publisher of the Sunday Mail newspaper having a wide circulation throughout Queensland and Australia, on or about 4 January 1998, published in the Sunday Mail newspaper an article with the headline “He’s Too Soft” which contained a number of words of and concerning the plaintiff and which were defamatory of the plaintiff. I do not -- 2 of 11 -- 3 propose to set out all the allegations made in the plaint. However, generally speaking it is alleged by the plaintiff that this publication in its natural and ordinary meaning meant, and was understood to mean many meanings, including meanings that the plaintiff was a person who sentenced offenders lightly, the plaintiff was failing to carry out his duty as a Magistrate, the plaintiff was incompetent, the plaintiff was unsuitable as a Magistrate in the Hervey Bay area, the plaintiff was responsible for an exceptionally high crime rate in Hervey Bay, the plaintiff was responsible for a particularly high re-offending rate, and the plaintiff failed to properly administer justice in the Hervey Bay Magistrates Court. As against the second defendant and third defendant the plaintiff claims that those persons spoke to an employee of the first defendant and by the words they used when they spoke to an employee of the first defendant, they also defamed the plaintiff. As I have said, I do not propose to refer to the allegations in the plaintiff’s plaint in their entirety, nor to set out what is alleged by each of the defendants by way of defence to the plaintiff’s claim. The action has reached the stage where the pleadings have closed and discovery and inspection have been completed between the parties. The solicitor for the second defendant, having been assisted by the advice of counsel, estimates that 10 days will be required for the trial of the action. In coming to that estimate, amongst other things he has borne in mind:- (1) the fact that there are four parties currently represented in the action; (2) the action will be tried by a jury; (3) the plaintiff alleges: (1) four defamatory publications in the plaint; (2) he attributes many discreet defamatory imputations which are either not admitted or denied; and (3) in addition to claiming compensatory damages, makes extensively particularized claims for both exemplary and aggravated damages. In addition to traversing the plaintiff’s allegations, the first defendant raises three defences by way of fair comment, and two defences by way of qualified protection, the second defendant (presently) raises three defences by way of fair comment, and two by way of qualified protection, -- 3 of 11 -- 4 and the third defendant raises two defences of fair comment and two defences of qualified protection, all of which will need to be separately considered and determined, albeit there is some overlap on the facts and the legal principles involved in the determination of these issues. The second defendant’s solicitor also swears that in broad terms it seems inevitable that the resolution of the issues in dispute on the face of the pleadings will require extensive reference, as they are facts relevant to those issues, to the sentences imposed upon convicted offenders (whether that conviction was recorded or not) by the plaintiff whilst he discharged his office as the local Magistrate at Hervey Bay. The solicitor also swears that amongst other things the second defendant, with or without the co- operation of the other parties to the action, proposes to adduce in evidence, because they are facts relevant to the issues in dispute on the face of the pleadings herein, an accurate account of the sentence imposed and all relevant circumstances concerning each and every offender, whether a conviction was recorded or not, dealt with by way of sentence by the plaintiff as the local Magistrate at Hervey Bay until the time of the publication complained of against the second defendant. He also refers to the further and better particulars of the Entry of Appearance and Defence of the first defendant filed 18 February 1999 to illustrate the need to have regard to such matters in order to ensure a fair trial of the action and to indicate further numerous additional matters which ought be the subject of proper preparation for trial in this matter. He swears this type of preparation will occasion resort to extensive use of writs of non-party discovery. In short, proper preparation for trial will be quite expensive. He offers the opinion that the mediation would not exceed one day. Further, he has been informed by the second defendant and verily believes that the second defendant is desirous of making every reasonable effort to reach a reasonable compromise in this action before incurring the extensive costs of further preparing and engaging in the trial of the action. The second defendant and the third defendant are both councillors of the Hervey Bay City Council. -- 4 of 11 -- 5 Notwithstanding the matters sworn to by the solicitor for the second defendant which I have referred to above, counsel for the plaintiff submitted the application was opposed on these grounds: 1: This action is an action for defamation and is not suitable for mediation because; (1) there are three defendants one of which is a media organization represented by different lawyers; (2) There is no acceptance of liability by any defendant nor is there likely to be; (3) The issues are complex and are not likely to be resolved at mediation; (4) In order to canvass the issues involved in even a cursory manner would take longer than one day and the plaintiff does not consent to same; (5) The pleadings are not completed; (6) Discovery is not completed; (vi) Given the estimate of the length of the trial it would be a waste of money, resources and time to engage in a mediation when there is very little prospect of success; 2: The nature of the trial such that the plaintiff seeks a judgment from a jury not only of compensatory but also aggravated and exemplary damages. The very nature of such a trial is that many of the factors upon which the latter two awards are made develop during a trial and the plaintiff does not wish to reveal his tactics or the conduct upon which he relies until trial. 3: Defamation trials rarely settle at mediation. 4: The parties can easily have this matter ready for trial with some diligence and would be likely to obtain a trial date after a certificate was signed. 5: There are issues of credit involved which cannot be resolved at mediation. 6: There are legal issues involved upon which some of the parties are opposed. It is not appropriate that those matters be resolved at mediation and the cost of resolving them under the rule would not be warranted. 7: The second defendant contends that “the resolution of the issues on the face of the pleadings will require extensive reference ... to the sentences imposed upon convicted offenders (whether that conviction was recorded or not) by the plaintiff whilst he discharged his office as the Local Magistrate at Hervey Bay”. That contention in itself -- 5 of 11 -- 6 is an indication that without resolution by a jury the parties are most unlikely to resolve the matter. The plaintiff denies that his sentences were in any way inappropriate and contends that the publications were motivated by improper motives namely to remove him from Hervey Bay. 8: Should the second defendant seek to settle the matter as between him and the plaintiff he is not prevented from approaching the plaintiff or making an offer to the plaintiff and nor is the plaintiff so prevented. Both parties have experienced and dare he say mature counsel who are capable of facilitating a settlement or at least exhausting the possibilities without the need for a mediation order. He was instructed to invite the defendants to be involved in such a process. 9: The matter is not ready for mediation in any event. Counsel for the second defendant referred me to s.89 of the District Court Act 1967 which sets out the objects of that part of the Act containing the legislation relevant to ADR processes. Specifically with respect to s.89, he referred me to sub-section (a) which provides: “The objects of this part are - 1: to provide an opportunity for litigants to participate in ADR processes in order to achieve negotiated settlements and satisfactory resolutions of disputes” It should be observed that s.90(1) of the Act provides: “(1) An “ADR process” is a process of mediation or case appraisal under which the parties are helped to achieve an early, inexpensive settlement or resolution of their dispute.” Further, he submitted amongst other submissions that I could not, on the hearing of this application on the evidence, conclude that the mediation, if one were held, would not be successful. Obviously the plaintiff has indicated by his opposition to the application that unless his “position” is addressed by the defendants, there will be no resolution of the dispute. However, in my opinion, one knows from experience often a party will say a matter will not settle unless their “position” is met and yet the matter does settle because a different “position” -- 6 of 11 -- 7 is met at a later stage of litigation, usually at the court door. However, at that stage, considerable costs, not all measured in money terms, has been expended. Section 97 of the Act also provides: “(1) A District Court may require the parties or their representatives to attend before it to enable the court to decide whether the parties’ dispute should be referred to an ADR process. (2) The court may, by order (“referring order”), refer the dispute for mediation or case appraisal. (3) Without limiting the court’s discretion, the court may take the following matters into account when deciding whether to refer a dispute to case appraisal - (a) whether the costs of litigating the dispute to the end are likely to be disproportionate to the benefit gained; (b) the likelihood of an appraisal producing a compromise or an abandonment of a claim or defence; (c) other circumstances justify an appraisal. (4) If the court decides to refer the dispute to a mediator under the Dispute Resolution Centres Act 1990, it is sufficient if the order appoints the director of a specified dispute resolution centre as a mediator.” As can be seen from the text of s.97, the court is given a discretion to exercise whether to order the dispute to be referred for mediation. Some guidance is given in sub-section 3 without limiting the court’s discretion as to matters the court may take into account when deciding whether to refer the dispute to case appraisal, however the same is not provided for the court’s guidance when deciding whether to refer a dispute to mediation. I am unaware of any authority, and none was cited to me, regarding how the court ought to approach the exercise of the discretion when an order is sought for a dispute to be referred to mediation. One might argue that there ought to be a pre-disposition on the part of the court to order a dispute to be referred to mediation if a party seeks such an order. By having a pre- disposition to refer a dispute to mediation, the court may thereby give substance to the object referred to in sub-paragraph (a) of s.89 and thus provide an opportunity for a litigant to participate in a ADR process in order to achieve a negotiated settlement and satisfactory resolution of the dispute. It should also be noted that one of the objects is to introduce ADR -- 7 of 11 -- 8 processes into the court system to improve access to justice for litigants, and to reduce cost and delay (s.89(6)). In that respect one might argue that the interests of other litigants apart from those litigants involved in this present dispute ought to be borne in mind when considering this application. That is, this application is brought in an action which has been commenced in a centre that is serviced by a circuit. Usually, such a circuit is of two weeks duration, and not available regularly in any year. If the trial of this matter were to occupy a sittings, many litigants who are waiting for their matters to be adjudicated by the court would have to wait for another sittings which might not be available for quite some time. However, I think it can be argued that perhaps all matters ought to be referred to mediation automatically under the rules of court or by direction from a judge so that any matter that is capable of resolution by mediation is no longer in the way of another matter which cannot be resolved, by mediation or otherwise, proceeding to an adjudication when the court is available. Further, if one were to approach the exercise of the discretion by having to be satisfied as to the prospects of success of the mediation that might be inappropriate for a number of reasons. That is because, although one might be excused for having “a pretty good idea” that a mediation may be unsuccessful for a number of reasons (which one would be loathe to state publicly), in my opinion a mediation provides the best opportunity for a dispute to resolve, notwithstanding one or more parties to the dispute say convincingly the mediation will not succeed in resolving the dispute. I ask rhetorically why do so many disputes resolve on the door step of the court? A solution to the dispute must have been found and why could that solution not be found earlier! I quote from Boulle, “Mediation: Principles, Process, Practice”, p.3: “Mediation is a decision-making process in which the parties are assisted by a third party, the mediator; the mediator attempts to improve the process of decision-making and to assist the parties reach an outcome to which each of them can assent”. Therefore, one can see that in mediation the assistance of a third party is an important element. Although the parties represented by their lawyers claim they should be able to reach a settlement of a dispute, often they do not, or at least do not until the action comes to the door of the court and considerable costs have been incurred. -- 8 of 11 -- 9 I intend to proceed in deciding this application on the basis that I have a discretion whether or not to make the order sought and in exercising my discretion I am to balance the relevant factors and decide the application accordingly. Although the success of the mediation in this dispute may depend upon many factors, one of which would be the skill of the mediator, there are many factors when balanced against other factors which lead me to decide to order in the exercise of my discretion that this dispute be referred to mediation. These factors which on balance favour making the order sought are:- (1) I am unable to conclude the mediation will not be successful; (2) there is no dispute that the trial of the action is estimated to take 10 days. In my opinion, on what has been agitated on the hearing of this application, it is possible the trial will take longer. Were the action to be resolved by mediation, that would make available to other litigants 10 days of court time to adjudicate upon their disputes; (3) three of the four parties to the dispute are prepared to engage in a mediation; (4) the second defendant has offered without admission of liability and not to be taken as an apology and as a gesture of good will to resolve the dispute by mediation to pay the plaintiff’s share of the costs of the ADR costs (i.e. 25%), namely the mediator’s costs and the cost of the venue. Therefore, although the plaintiff will still have some costs to bear to engage in the mediation, some of his costs will be met by this offer. During the hearing of this application, counsel for the plaintiff submitted his client may incur costs for the mediation which would be wasted and by inference better spent on the litigation; (5) although the plaintiff contends it is unlikely that the defendants will offer what the plaintiff seeks and which the plaintiff could gain by a verdict in his favour if the action were successful, it is as I have said above, of the essence of mediation that a third party may be able to assist the parties to reach an agreement to resolve the dispute, which the parties are obviously unable to do so at this stage; (6) the application is made, in my opinion, early in the action at a time when although some costs will have been incurred by all parties, substantial costs can be expected to be incurred if the matter proceeds to trial. It is right, in my opinion, to think that it would be in the interests of one or more of the parties to resolve the dispute without the risk of incurring those substantial costs and when the outcome depends upon the verdict of a -- 9 of 11 -- 10 jury. I wonder if the parties have considered the total costs and the damages (if any) a jury may award in this matter if it proceeds to trial? (7) there is risk in litigation, and even though a party may wish to engage in litigation notwithstanding those risks, the implication of the provisions of the Act I have referred to above are that other parties ought not to be put at risk. Possibly it may be in the party’s opposing the mediation own best interests to order a mediation. Even a favourable verdict of the jury in favour of the plaintiff may, because of the technical nature of the law, lead to the result being reversed by a court on appeal or even a discreet issue being reversed by a court on appeal, such as quantum of damages. Further costs are then incurred on the appeal. (8) a suitable mediator with the necessary skill could be appointed to be the mediator. In this respect I do have in mind the submission made by counsel for the plaintiff that the persons involved in this dispute and the corporation involved makes it unlikely the dispute could be resolved at mediation. However, as much as one could point to disputes that have not been resolved because of the “people” involved in those disputes, there could be as many disputes that have, despite the so-called stature of the people involved or the personalities of those people or whatever else may be said about the persons involved, been resolved at a mediation or on the door step of the court. Based on these factors then, I do not accept the submissions made by counsel for the plaintiff. Bearing these factors in my mind in the exercise of my discretion I consider this dispute ought to be referred to mediation. I will therefore order the dispute to be referred to mediation. However, I will hear from the parties further as to the appropriate terms of an order, including any nomination any party might make with respect to the mediator. I propose to forward these reasons to the parties before I deliver them so that they may discuss amongst themselves whom they may agree to appoint, the fee of the mediator, the venue, the starting time and date the mediation is to take place. The parties should consider having the mediation on a Saturday. A submission made by counsel for the plaintiff on the hearing of the -- 10 of 11 -- 11 application was that for the plaintiff to attend the mediation he would have to take time off from his duties. In my opinion, the same could be said for the second and third defendants and perhaps the representative of the first defendant. Further, in my experience legal representatives work on a Saturday or a Sunday or both days. I would only add that the order should contain directions that each party must attend the mediation in person and that if any party requires the authority of any other person to agree to a resolution of the dispute, that other person must also attend the mediation in person. I will hear the parties on the question of costs. -- 11 of 11 --