Frawley-Mangan v Hosmer Holdings Pty Ltd [2023] ACTSC 7

14 February 2023

Case Summary

The ACT Supreme Court has handed down a decision that confirms the requirement for insurance claims managers to attend court-ordered mediations in person.

The ‘usual orders’ for mediation require insurance claims managers to attend in person. However, during the last several years encompassing the COVID-19 pandemic, insurance claims managers have attended via audio-visual link, or have simply provided instructions to their solicitors via telephone.

In this case, the second defendant filed an application to have the in-person attendance requirement dispensed with. The affidavit in support indicated that the insurance claims manager was based interstate (in Hobart) and had personal commitments (caring responsibilities for two elderly parents) that prevented them from attending the mediation in Canberra.

The first defendant made a similar application in relation to its insurance claims manager who was based in Brisbane. The affidavit in support contained fewer specific details about the respective manager’s personal commitments and the availability of flights from Brisbane to Canberra. The affidavit also asserted that the travel and accommodation costs would involve “considerable time and expense”.

The plaintiff opposed both applications on the basis that she was travelling from Brisbane for the mediation. She was also concerned that the absence of insurance claims managers would compromise a productive mediation, particularly in a multi-defendant matter where discussions in relation to apportionment were necessary.

The Court dismissed the first defendant’s application with costs, thus requiring the insurance claims manager to attend the mediation in person. The Court allowed the second defendant’s application, confirming the affidavit evidence was sufficient to justify a departure from the usual orders, but only on the condition that the insurance claims manager participate in the mediation via audio-visual link.

The Court explained that it requires insurance claims managers to attend mediations in person to facilitate full participation by decision-makers and for insurers to fully understand the factual and legal matters raised during the mediation. The Court considered that remote participation (only where necessary) resulted in a lower level of engagement with the mediation process, and a less productive mediation overall.

The Court forewarned it would only depart from usual orders where there was a sufficient reason to do so. The mere fact that an insurance claims manager for a claim brought in the ACT is located interstate will not be a sufficient reason to depart from the usual orders.

This article was written by Chris Dennett, Partner and Kate Torney, Solicitor.

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