Circular to Practitioners
Who Must Attend
Preparation for the Conference
Confidentiality
Procedure at the Conference
Offers of Settlement
Costs of the Conference
Cost Penalties
Cost Penalties Examples
Enquiries
Conciliation conferences are integral to case management in the Magistrates' Court (Civil Division) and provide the primary opportunity to resolve the dispute by negotiating a mutually agreeable resolution or compromise.
The parties must attend in person unless other arrangements are approved by the Registrar. If a party's attendance is likely to cause undue expense or inconvenience, or the party is in ill health, a telephone link may be approved by the Registrar.
If a party is a company or an unincorporated association, or if the party is represented by an insurer, a person with full authority to settle the claim must attend the conference.
The parties' solicitors should also attend unless prior arrangements have been made with the Registrar.
At the conference the parties should be in a position to explore settlement. The information necessary to explore the issues in dispute and up-to-date particulars should be exchanged prior to the conference.
The parties' solicitors should forward to the Registrar, at least three days before the conference, any material to assist the conciliator understand the issues in dispute that that party has forwarded to the other party, eg particulars of injury or damage, medical reports.
The conference is without prejudice and confidential subject to the Alternative Dispute Resolution Act 2001, matters discussed at the conference, or admissions made, cannot be used outside the conference.
During the conciliation conference, the conciliator may hold a private conference with each of the parties. The matters discussed during this part of the conference will not be disclosed to the other side. The conciliator does not discuss the matters raised at the conference with a Magistrate.
Only directions given at the conference are noted on the Court record. Offers of settlement are not communicated to the Magistrate until after judgment has been given. Notes made by the conciliator are kept in a sealed envelope on the Court file.
The conciliator is an impartial facilitator who will assist the parties to define the issues in dispute, ensure the issues are explored and ensure each party has an opportunity to be heard. The conciliator will not give legal advice or advise on settlement.
It is a matter between the solicitor and the client whether the client plays an active role in the conciliation conference. In some conferences the parties may agree that the solicitors leave the conference to resolve issues between the parties. The solicitor should, however, be available to return to the conference to advise on any agreement reached and prepare consent judgments etc.
At the conference each party will be required to make an offer (or a number of offers) to settle the dispute. These offers will be recorded and if no offer is made the offer will be recorded as nil. These offers will not be communicated to the Magistrate until final judgment has been entered. The Magistrate will take these offers into account in making costs orders.
There is no charge for the court's facilities or for the conciliator's time for the conference. The costs of the solicitors are costs in the cause, which means that whoever is unsuccessful will normally pay the costs of both parties' solicitors for the time at the conference.
It is important to understand the consequences of making an inadequate offer if you are a defendant, or making an offer substantially higher than that ultimately awarded by the Magistrate if you are a claimant:
Rules 142 and 143 of the Magistrates Court (Civil Division) Rules 1998 contain two formulae which impose further cost penalties on either of the parties in the event that the Claimant recovers either less than half, or more than double, the amount offered at the conciliation conference. Once either formula applies, the greater the margin between the offer and the amount awarded, the greater the effect on the costs entitlement. This is best demonstrated by some examples:
The Claimant commences a claim for $15,000. The Defendant files an offer of $2,000 at the conciliation conference. Judgment after trial awards the Claimant $10,000. The Claimant's party-party costs are assessed at $3,000.
The Claimant is entitled to an order for costs on the judgment as it exceeds the Defendant's filed offer, and is entitled to a bonus up to his full solicitor-client costs because the judgment is more than twice the amount of the filed offer.
The formula is : C = 2 x P x (J-A)
J
where -
C is the costs to which the party is entitled;
P is the costs of the party, as agreed or assessed
J is the amount awarded by the judgment, exclusive of costs and interest;
A is the amount contained in the offer or the payment into Court.
Applying the formula in Example 1 above, the Claimant would be entitled to :
C = 2 x 3,000 x (10,000 - 2,000)
10,000
which amounts to $4,800, as compared with assessed party-party costs of $3,000.
The Claimant commences a claim for $15,000. At the conciliation conference, the Claimant files an offer of $10,000; and the Defendant files an offer for $3,000. Judgment after trial awards the Claimant $4,000. The Claimant's party-party costs are assessed at $3,000.
The Claimant is entitled to an order for costs on the judgment as it exceeds the Defendant's filed offer, but because the judgment is less than half of the amount claimed, the penalty rules apply to reduce the Claimant's costs entitlement.
The formula is : C = 2 x P x J
A
where -
C is the costs to which the party is entitled;
P is the costs of the party, as agreed or assessed
J is the amount awarded by the judgment, exclusive of costs and interest;
A is the amount claimed at the conciliation conference.
Applying the formula in Example 2 above, the Claimant would be entitled to :
C = 2 x 3,000 x 4,000
10,000
which amounts to $2,400 as compared with assessed party-party costs of $3,000.
If you require further information please contact any of the Court Registries