Section 51B of the Motor Accident Insurance Act 1994 (Qld) (‘MAIA’) and s 37 of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’) both require a solicitor representing a party to give the other parties to the claim a certificate of readiness at least 7 days before the compulsory conference that states that solicitor’s client is ready for trial. In a motor accident claim it is said to be necessary to certify that ‘the party is in all respects ready for the conference and the trial’ and in a PIPA claim that all witness statements and expert reports for the trial have been obtained and disclosed.
However, a party that is not legally represented can proceed to a compulsory conference without giving a certificate of readiness and does not need to be ready for trial at all. Insurers who are not legally represented routinely proceed to a compulsory conference while woefully unprepared for trial. In some cases while proceeding in that manner and without even giving a statement verifying disclosure themselves, an insurer will demand a legally represented claimant’s solicitor provide a certificate of readiness certifying readiness for trial. The insurer may even cancel or threaten to cancel the compulsory conference if the claimant’s solicitor will not certify readiness for trial.
No solicitor should certify that a claim is in all respects ready for trial before Court proceedings have even been commenced. This issue has been considered in Lemon v Suncorp Metway Insurance Ltd [2005] QDC 128 and Broadhead v State of Queensland [2006] QDC 273. The certificate of readiness requirements under the MAIA and PIPA are comparable.
In Lemon, regarding the MAIA, McGill DCJ, stated at [14] (our emphasis):
… Section 51B(5)(d) requires a party who is legally represented to sign and give to the other party at least seven days before the compulsory conference a certificate to the effect that the party is ready for trial, that is, not just ready to hold a compulsory conference, but actually ready to have a trial: see subsection (6). I have always thought that that requirement was absurd. Apart from anything else, before a party can be said to be ready for trial it is necessary for that party to start a proceeding in which to have a trial, and the Act contemplates that a compulsory conference will be held before any proceeding is commenced, and therefore necessarily before there are any pleadings, disclosure in the action, and any particulars or interrogatories finalised. A party could not possibly claim prior to the commencement of an action that it was ready for trial for the purposes of r 469…
In Broadhead, regarding the PIPA, Brabazon DCJ, stated at [5]-[6] (our emphasis):
[5] It was submitted that the need to co-operate, together with the need to be fully prepared for trial (ss 4 (21 (c) and 37 (21 (a) of the Act) showed a legislative intention that each side had to make such disclosure as would be required if proceeding in court were going to trial. It is true that the MAIA, which contains a comparable provision, emphasises the intention of the legislature that the parties be as fully prepared as if commencing a trial of the action when participating in a compulsory conference. See the Court of Appeal in Gitsham v Suncorp Metway Insurance Ltd (2003) 2 QDR 251. It is also true, as Judge McGill said in Lemon v Suncorp Metway Insurance Ltd (2005) QDC 128, “ …. That requirement is absurd .… the real difficulty is that the provisions for the pre-litigation procedures in the Act are too superficial and too rigid to accommodate the multitude of possible situations which can arise in practice.” (paras 14-15).
[6] The detailed and limited steps set out in the Act and Regulations cannot be ignored. If they prescribe or forbid something, then appeals to procedures at common law, or under the Uniform Civil Procedure Rules, or to considerations of justice and fairness, or to the need for “cards on the table” will be of no avail. Parliament has chosen to insist on a new set of rules about the steps to be taken before any proceedings in court. If it really wants parties to be ready for trial, then a substantial amendment will be needed, to achieve that result. The present drafting is inappropriate. The ineffective reference to a full preparation for trial is just a tantalizing distraction for legal practitioners.
There are a number of ways a claimant might propose to deal with a dispute with a respondent about the claimant’s solicitor certifying readiness for trial prior to a compulsory conference:
- The parties agree for the certificate of readiness be overtly amended so that all references to readiness for trial are replaced by references to being ready for the compulsory conference; or
- The parties agree to dispense with the compulsory conference and exchange mandatory final offers to settle in writing on a date and at a time, by email, to be agreed in the very near future; or
- The parties, rather than holding a compulsory conference, instead hold an informal without prejudice settlement conference, and then agree to dispense with the compulsory conference and exchange mandatory final offers to settle in writing on a date and at a time, by email, to be agreed in the very near future; or
- The claimant apply to the Court for directions about the dispensing with or holding of the compulsory conference.
We do not think that a Court would order a solicitor acting in a motor accident claim to certify a claim as being in all respects being ready for trial, prior to Court proceedings even being commenced. Whether a solicitor will certify something is a matter for them to decide. Also, if an informal settlement conference has already been held, there would seem little point in the Court ordering a compulsory conference and it would often be appropriate to simply dispense with the compulsory conference and exchange mandatory final offers by email. An amendment to a certificate of readiness should be overt (for example, clearly underlined, with the word ‘trial’ with a strike through but not deleted).