| Please note: This article is intended to be brief information only and should not be relied or acted upon as legal advice. You should always seek legal advice tailored to your own individual circumstances. Please also note that this article is current as at the date of publication and the law may have subsequently changed since. |
This article deals with pre-trial conferences in respect of general procedure claims brought in the Magistrates Court of Western Australia and to which the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (Rules) apply.
What is a pre-trial conference?
A pre-trial conference is a type of mediation conference conducted in the Magistrates Court between the parties to a case.
The purpose of a pre‑trial conference is to give the parties an opportunity to settle a case (and avoid the need for further litigation).
The pre-trial conference is not a hearing and parties do not need to have their witnesses attend.
When is the pre-trial conference listed?
Courts generally recognise the benefits of early mediation (also known as “conciliation”) and the timely resolution of disputes. As such, the Rules provide for a pre-trial conference to ordinarily take place at an early stage of the proceeding.
In the ordinary course, the claimant must apply to the Court for a registrar to list the case for a pre‑trial conference:
- if the defendant has lodged a statement of defence — within 14 days after the claimant is served with the statement of defence; or
- if the defendant has lodged a statement of defence and counterclaim — within 14 days after the claimant has lodged a statement of defence to the counterclaim.
Ordinarily, the availability of the parties is taken into account prior to any listing, with the claimant needing to provide the parties’ unavailable dates to the Court when applying for a pre-trial conference to be listed.
As to when the pre-trial conference will actually take place, this will depend on when it is ultimately listed by the Court (which will in turn depend on the Court’s workload and the availability of the parties).
How is a pre-trial conference conducted?
The pre-trial conference is ordinarily conducted in person at the particular court at which the general procedure claim is lodged (with pre-trial conferences in the Perth Magistrates Court usually being held in a conference room on Level 7 of the Central Law Courts building). The pre-trial conference is usually conducted by a Registrar (who acts as a mediator) and the conference is held in private.
At the outset of a pre-trial conference, the Registrar will explain their role and the ground rules for the conference. The Registrar may be referred to as “Registrar” or, if they have indicated it is acceptable to use first names, then by their first name.
Usually, each party will be able to make an opening statement setting out their case (including their key contentions) and desired outcomes in a joint session. The Registrar may ask questions to enable them to obtain a full picture of the dispute and what the parties are seeking to achieve. After this, the Registrar will usually meet with each of the parties separately in a private session and then look to communicate any settlement offers between the parties.
The conference is usually more informal than a standard court hearing. However, it is important that parties remain respectful at all times during the conference and do not interrupt the other party while they are speaking.
The Registrar ordinarily helps each of the parties explore and understand their positions and options, including in respect of settlement. During a private session, the Registrar will usually highlight the time, costs and risks of proceeding to trial in respect of the case. The Registrar may try and challenge a party’s views or objectives, particularly if they consider them to be unreasonable or unrealistic.
Whilst the Registrar may express some views or opinions in the mediation process (including in an attempt to try and encourage each of the parties to settle the case), the Registrar ultimately does not make any findings or final decisions concerning the case (nor do they report what was said in the mediation to the Court).
Anything said or done for the purpose of attempting to settle a case at a pre-trial conference is ordinarily confidential and made on a “without prejudice” basis (see rule 43 of the Rules). This means that evidence of anything said during the conference cannot ordinarily be used itself as evidence later on should the matter fail to resolve during the pre-trial conference (although matters disclosed could lead another party to other evidence which they could use to support their case). The “without prejudice” nature of the conference is to encourage free and frank discussions between the parties.
Preparing for a pre-trial conference
A party preparing for a pre-trial conference should turn their mind to the terms on which they may be prepared to resolve the case (having regard to the potential alternatives available to them, including the worst alternative to a mediated outcome and their best alternative to a mediated outcome).
A party should also ensure that they have complied with any applicable rules or court orders in respect of any steps or matters which are required to be completed prior to a pre-trial conference (for example, providing a informal list of documents in accordance with rule 30A of the Rules).
Who needs to attend?
Parties must ordinarily attend the pre-trial conference in person (unless they have the prior permission from the Court to attend by other means or have someone else attend in their place). Except with the permission of the Court, the parties ordinarily cannot not simply have their lawyers attend in their place (although lawyers usually can attend and represent their client at the conference).
If a party is a corporation, then it usually can be represented by one of its officers if they have been duly authorised to attend and participate in the conference.
A party should ensure they attend the conference on time (as default judgment may be granted in the other party’s favour if a party fails to attend by the listed start time).
Can I attend a pre-trial conference remotely?
If a party wishes to attend the pre-trial conference via telephone, they will usually need to either:
- agree consent orders with the other party (allowing for telephone attendance) and lodge these with the Court in advance of the pre-trial conference; or
- seek and obtain the permission of the Court in advance (which may be done by way of making a Form 23 application accompanied by a supporting affidavit or by email in some circumstances).
While pre-trial conferences are ordinarily not listed for a full day and will usually only take a couple of hours, parties should generally ensure that they keep the whole day free to ensure that they can give their undivided attention to the conference and allow for negotiations to continue (if the conference runs over time and the parties wish to continue negotiating).
What happens if a case can be resolved at a pre-trial conference?
Cases can often be resolved by way of a settlement agreement or an in-principle settlement proposal reached at a pre-trial conference.
If the case is successfully resolved by way of settlement, the terms of any settlement are ordinarily recorded into a formal terms of settlement document (such as a settlement agreement or deed) or consent orders which are signed by the parties. Any settlement terms or consent orders usually need to be carefully considered and drafted. Often it can be prudent to have any settlement terms reviewed by a lawyer before being signed and before any formal binding agreement is reached.
If a party is unrepresented and wishes to avoid being immediately bound to a settlement agreement prior to seeking legal advice, it may be possible to include a “cooling off” clause as part of a settlement offer or to otherwise make it clear any offer is not intended to be binding until a formal written settlement agreement is agreed between the parties.
It may be the case that a pre-trial conference is adjourned while parties negotiate the finer settlement terms.
What happens if a case does not settle?
If a settlement cannot be reached, the Registrar can make various orders dealing with the future conduct, and programming, of the case (also known as programming orders or directions) at the end of the conference.
Pursuant to rule 40(2) of the Rules, the Registrar at a pre‑trial conference may do any or all of the following:
- determine what facts, if any, are agreed by the parties;
- order the parties to lodge and serve statements of claim and defence;
- order what statements of claim or defence must contain;
- exercise the jurisdiction of the Court to extend the time for making counterclaims or third party claims (even if the time for making those claims has passed);
- exercise the jurisdiction of the Court to allow a party to amend its case statement;
- exercise the jurisdiction of the Court to order the parties:
- to provide additional information by disclosing documents relevant to the case in accordance with Part 7 of the Rules; and
- to answer interrogatories in accordance with Part 8 of the Rules;
- make any other orders necessary to facilitate settlement or ensure the case is ready for trial.
After a pre‑trial conference, the Registrar must either:
- list the case for a further pre‑trial conference (which may be likely if the parties wish to have further settlement negotiations); or
- list the case for a status conference before a Magistrate (with the purpose of a status conference being to allow for the management of the case).
Further information
If you require advice or assistance, please do not hesitate to contact us.
