(d) a determination of a separate question is unlikely to be appropriate unless it is possible to clearly see that the determination will facilitate the just quick and cheap resolution of the proceedings or the central issues in the proceedings: Idoport at [7(6)];
38 Giles CJ in Comm. D (as his Honour then was) said in Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141:
"Part 31, r 2 of the rules empowers the court to make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings, and for the statement of a case and the question for decision. In the ordinary course all issues in proceedings should be decided at the one time, but separate decision of a question may be appropriate where, for example, the decision of the question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. In particular circumstances the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of their dispute is decided or where the decision will obviate unnecessary and expensive hearing of other questions, but such occasions must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid. It is often the case that the need to make findings of fact for a decision of the separate question, especially findings which may involve issues of credit, tells strongly against the making of an order because related facts, and renewed issues of credit, will or may arise at a later stage in the proceedings. Experience teaches that it should be able to be seen with clarity that decision of a separate question will be beneficial in the conduct of the proceedings and the resolution of the parties dispute."
Discernment
39 The questions posed address in effect two issues. One of fact, namely what was the relationship at the relevant time between Mr Fairey and Ms Vasic, and one of law, namely, in the circumstances of the conduct, the subject of the plaintiff's statement of claim, was Ms Vasic, having regard to the relevant relationship, legally liable to the plaintiff for Mr Fairey's conduct.
40 No party has indicated with any precision what evidence, if any, may be called on the determination of the separate questions posed. It is necessary for me in this judgment, upon the basis of what I already know, to make some assessment of the likely course of the evidence to be called.
41 I have not been provided with statements indicating the extent of the evidence to be called on this question, let alone the extent of the evidence which will be called at the hearing of all of the remaining issues by relevant witnesses.
42 The likely evidence in support of the answers to those questions will come from at least Ms Vasic herself and Mr Fairey as to their relationship and the facts and circumstances which surround the question of whether Ms Vasic is liable for Mr Fairey's conduct.
43 I can anticipate that it may be that there will be some documentary evidence which could be relied upon as demonstrating what the relationship between Ms Vasic and Mr Fairey was, and as well, it is possible that there may be other witnesses who can give evidence which is relevant to the issue of what their relationship was, including perhaps the issue of how Mr Fairey conducted himself in undertaking his work at the property.
44 I would observe that the facts which the plaintiff himself or his father are capable of giving in evidence, about the exchanges which occurred between them and Mr Fairey upon arrival at the property and leading up to the plaintiff's injuries being sustained, are very likely to be facts and matters which are themselves capable of giving rise to inferences about the relationship between Mr Fairey and Ms Vasic. It would be surprising if any hearing of the proposed separate questions proceeded without including this evidence, from one or more witnesses.
45 Equally, what Ms Vasic and Mr Fairey would say about their relationship may be impacted upon by the particular facts in the plaintiff's case. Since their evidence on this proposed separate question would need to proceed upon the basis of assumption rather than actual evidence of what happened, the result would be likely to be imprecise and unconvincing, unless the plaintiff and his father were called to give evidence.
46 This review demonstrates that it is likely, in my opinion, that there will be a commonality of witnesses who will deal with the employment issues and also the general issues of liability as they relate to the plaintiff.
47 It is also possible, and indeed likely from the little which I know about this case at this stage, that there will be issues of credit surrounding the conduct of, at least, Mr Fairey, at the time that the plaintiff and his father attended at the property, and when the building which they were sleeping burnt down.
48 There will certainly be likely to be conflicting accounts as to what occurred and what was said which will mean that the Court will inevitably be asked to make a ruling as to the reliability of the evidence of each of the participants and perhaps their credibility.
49 Whilst QBE's submissions confidently assert that it is very likely that the prospects of settlement would significantly increase if a determination of the proposed separate questions was undertaken, the fact that the solicitors for Wesfarmers indicate opposition from their clients to the course proposed, does mean that I cannot share the confidence of QBE as to the likelihood of resolution.
50 As well, the history of this matter does not suggest that either of the parties to this application, if a determination of separate questions is made, are unlikely to seek to persuade the Court of Appeal to grant leave to appeal. This would not achieve either speed or cost savings.
51 In all of the circumstances, I am not persuaded that the suggested benefits are likely to arise if the proposed questions are determined separately, from, and before, the principal proceedings.
52 I am persuaded that issues of credit are likely to arise, in circumstances where there will be a commonality of witnesses and factual issues between the hearing of the separate questions and also the final hearing.
53 It is unlikely that there will be any savings of time in first determining the separate questions.
54 In those circumstances, the applicant, QBE, has not persuaded me that it is in the interests of justice for me to make an order that there should be a separate determination of the questions posed.