Boral Resources (NSW) Pty Ltd v TWU of Australia NSW Branch & Ors

Boral Resources (NSW) Pty Ltd v TWU of Australia NSW Branch & Ors - [2004] NSWSC 541 - NSWSC 2004 case summary — Zoe

[18]

(c) where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of witnesses: CBS Productions Pty Ltd v O'Neil (supra, at 606 per Kirby P), Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Rajski v Carson (1988) 15 NSWLR 84 at 88 per Kirby P and Hope JA. (5) Conversely, the separate determination of an issue will rarely be an appropriate procedure where: (a) there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation: Law Society of NSW v Bruce (unreported, Supreme Court of NSW, 23 April 1996, per Rolfe J), Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J). (b) where there is a commonality of witnesses and issues of credit as between the separate issue and other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witness, thus possibly precluding that same judicial officer from again dealing with the matters going to the credit of the common witness in accordance with the decision of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 441: Story of Sydney Pty Ltd v Ling (unreported, Supreme Court of NSW 15 November 1994, per Rolfe J), Century Medical v THLD [2000] NSWSC 5; (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J). (c) there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings: Story of Sydney Pty Ltd v Ling (supra), Century Medical v THLD (supra). (6) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Parramatta Stadium Trust v Civil and Civic Pty Ltd (supra), Century Medical v THLD (supra). As Giles CJ in Comm. D (as his Honour then was) said in Tallglen (supra, at 142): 'Part 31, rule 2 of the rules empowers the court to make orders for the decision of any questions separately from any other question, whether before, at or after any trial or for the 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 right of appeal is borne in mind) brings delay, expense and hardship - 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.' [emphasis added]" 11 Both parties agree that the Court has a discretion to order separate trials if in all the circumstances, justice can be done between the parties and the disposition of the separate question can be described as just, quick and cheap. 12 More recently in Tepko Pty Ltd v Water Board [2001] HCA 19; 75 ALR 775, Callinan and Kirby JJ made pithy comments in relation to the use of severing issues to be determined by the court. At paras [168] to [172] their Honours stated: "The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P and Fitzgerald JA were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.

[20]

The fourth of our comments is related to evidence compiled, committed to writing and filed in advance of the hearing. Parties frequently, either together or separately, compile "books of documents". Although most of these have the potential to be admitted in evidence, often they are defective in form. Many of them are often irrelevant, or their significance is either not recognized or adverted to during the hearing. Their status, as in the case of the letter written by Mr Rhodes, can be ambiguous. Discrimination and economy should be exercised by those who prepare cases in which documentary evidence is likely to be extensive and important. Those who conduct such cases should ensure that what is actually in evidence, and its relevance and significance, are clearly identified." 13 In a recent Court of Appeal decision in the Nominal Defendant v Niko Cencic [2001] NSWCA 69, Meagher J expressed a similar view when he said that great caution should be exercised when separating an issue for determination. 14 In ABB V Freight Rail [1999] NSWSC 1037 Rolfe J at [19] made an instructive comment which is particularly relevant in a case such as that under observation here: "…until there has been an assessment by the parties of the amount to which each says the plaintiff, if successful on the issue of liability, would be entitled, there can be no meaningful consideration by the parties of what the financial stake in issue is. In those circumstances, the parties are unable to give proper thought to an appropriate commercial settlement, consideration of which will be dependent not only on the amount involved, but also on the risk inherent in the issue of liability. In my opinion, it is highly desirable for parties involved in commercial litigation to focus on the whole case in determining how it can best be resolved." 15 This case will be lengthy as it is very complex. The plaintiff submitted that the issues that are raised on liability and quantum are quite distinct and separate determination will result in saving time and expense. According to the plaintiff, the preparation of experts reports will be expensive and once liability is determined the assessment of damages will be easier and more accurate. The plaintiff identified that the principal elements of the plaintiff's cause of action - these being, firstly that each defendant was a party to the head contract of carriage; secondly, under the head contract of carriage, each defendant could be required to commence work on a particular day for a particular period at a batching plant different from the defendant's nominated batching plant if so directed by our client; thirdly, the majority of the defendants were required by the plaintiff to be ready, willing and able to provide concrete cartage services on 17 May 2001 and 5 December 2001; and fourthly, the majority of defendants did not make themselves available to perform concrete cartage services on 17 May 2001 and 5 December 2001. I might add that the services were to be provided at 16 different depots. 16 The defences to be raised are: firstly, that some defendants were not in a position to be ready, willing and able to provide concrete cartage services or were excused by the plaintiff from complying with the head contract of carriage to provide concrete cartage services to the plaintiff on the days in question; secondly, the defendant did not engage in conspiracy amongst themselves; thirdly, in the alternative, the defendants were justified in engaging in any conspiracy in defence of their trade, professional and/or economic interest; fourthly, contrary to the head contract of carriage, the plaintiff did not advise the defendants of the initial loading time and initial plant from which loading would occur before close of business on the day prior to 17 May 2001 or the day prior to 45 December 2001; and fifthly, the TWU is entitled to claim the benefit under s 141 of the Industrial Relations Act 1996 (NSW) and therefore cannot be sued in tort and that the plaintiff submitted that there would not be any overlap of evidence as to liability and damages. 17 The defendants' counsel has also identified some relevant issues, namely that it is asserted by the plaintiff that the damage is a consequence of the conduct of the defendants. As a consequence, there would need to be a linkage between the loss and damage and the conduct. There would need to be evidence from each of the batching plants to identify firstly what happened and how those events on the two days in question amounted to a breach of contract by each and every one of the defendants associated with that batching plant. Secondly, the defendants themselves who generally are sole traders trading under a corporate entity would need to provide evidence as to what they did as the drivers on those day. The issue of loss and damage would require someone from the same batching plants to identify what orders were lost on the days in question and how, on no subsequent days were any of those orders fulfilled by the defendants. In response to that evidence, the defendants would be required to give evidence as to what work they performed on the subsequent days to the two days in question in an attempt to say that far from being lost work, the work was merely deferred. Those defendants would then identify whether or not they were properly and in accordance with the terms of the cartage agreement duly notified of the requirement to attend on that day. 18 There are no agreed facts and issues between the parties. In its absence of agreement and the light of the issues raised, I cannot be sure that at trial there would be a clear demarcation between the facts to be ascertained on liability and those on quantum. The credit of the witnesses is an important issue and this factors against the granting of a separate trial. Even if there are separate trials many of the witnesses will be required to attend court to give evidence in relation to liability and damages. I accept that if evidence is given on liability, that would make the preparation of reports and calculation of damages, if any, easier. I have also taken into account that if liability is determined in favour of the defendants there would be no trial on damages but that decision may be subject to appeal. Taking all these circumstances into account, it is my view that making an order for separate determination of liability will not result in the saving of court time and parties' costs. Further, it is not in the interests of justice to grant separate trials. In my view and in the circumstances of this case, there should not be a separate determination of issues. The plaintiff's notice of motion filed 19 December 2003 is dismissed. 19 Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed. Orders 20 The Court orders:

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