El Chami v Mackie

Determination of separate question

1. Rules 28.2 and 28.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") read: "28.2 Order for decision The court may 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. 28.4 Disposal of proceedings (cf SCR Part 31, rule 6) (1) This rule applies if the decision of a question under this Division: (a) substantially disposes of the proceedings or of the whole or any part of any claim for relief in the proceedings, or (b) renders unnecessary any trial or further trial in the proceedings or on the whole or any part of any claim for relief in the proceedings. …"
2. There are many authorities on this topic which include Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 ("Tepko"); Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36 at [436]; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [187]; Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671.30; and per Rolfe J in ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037; Southwell v Bennett [2010] NSWSC 1372 at [15] ("Southwell"); and Crawley v Vero Insurance Ltd [2012] NSWSC 593 ("Crawley").
3. The general rule is that proceedings are listed for trial generally, for hearing of all questions and issues arising in the proceedings: see s 56(1) and (2) of the Civil Procedure Act 2005 (NSW) reproduced later in this judgment. The court's power to make orders for the decision of any question separately from any other question under UCPR 28.2 arises as an exception to the general rule.
4. The legal principles that apply in exercising the discretion whether to make the order for separate determination are set out in the decision of Hallen J in Southwell at [15].
5. His Honour set out the principles, which have been summarised as follows: 1. As a general rule, the discretionary power to order separate determination of a question should be approached with caution. 2. In exercising its discretion, the overriding purpose of the Civil Procedure Act, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect. 3. Generally, all questions of fact and law should be determined at the one time and if the court is to depart from that position, the party seeking the separate determination of a question must satisfy the court that it would be "just and convenient" for that order to be made. 4. While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not. 5. The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. 6. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid. 7. Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings. 8. Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial. 9. Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding. There is always a risk of inconsistent findings arising from determination of separate questions. 10. While the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties.
6. Additionally, in Crawley, Beech-Jones J at [17] and [18] expressed other relevant legal principles in exercising the discretion whether to make an order for separate determination as follows: 1. An interlocutory order for the separate determination of issues is an exceptional measure, distinct from the ordinary course taken of determining the issues in their totality. Consequently, the applicant bears the burden of demonstrating the appropriateness of the order. 2. Sometimes issues are separated in the expectation that their resolution will determine the balance of the proceedings but that proves illusory. On other occasions a matter determinative of, and fatal to, the proceedings is decided but then appealed and overturned with the outcome that the parties find themselves back in the same position they were prior to a trial but with years having passed. As noted by Kirby and Callinan JJ in Tepko at [168], the benefits of a separate question order "are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory..." 3. One real problem with ordering separate hearings is the potential for credibility findings to be made in one hearing in respect of a witness who may have to give evidence at the second hearing. This can create significant difficulties including, but not restricted to, the potential for the trial judge to disqualify themselves.
7. Sections 56, 57 and 60 of the Civil Procedure Act are relevant. They read: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. … 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute."

The plaintiff's submissions

1. The subject proceedings are brought by the plaintiff for injury compensation and are governed by the Motor Accidents Compensation Act 1999 (NSW). The damages claimed by the plaintiff are not insignificant. Liability and quantum are in dispute.
2. On the issue of liability, which is wholly contested and in relation to which fraud has been alleged, the plaintiff has qualified the following liability experts: biomechanical engineer, Dr Tim Gibson, who has provided a report dated 20 December 2018; and accident reconstruction/traffic engineer, Mr John Jamieson, who has provided a report dated 21 December 2018. It is anticipated at this stage that the defendant will commission liability experts to provide evidence in reply, at which time the need for a conclave of the experts and the production of joint liability expert reports will arise.
3. Also on the issue of liability, it is anticipated that the following witnesses will be called to give oral evidence: the plaintiff, the defendant, Ali Merkbawi, James Wilson, Elizabeth Andary, Ahmad Mostafa and Elisa Everett-Spring.
4. On the issue of quantum, the plaintiff has obtained reports from the following medical/quantum experts and/or medical service providers: orthopaedic surgeon, Dr James Bodel; occupational physician, Dr Tom Mastroianni; neurosurgeon Associate Professor Michael Fearnside; general surgeon and gastrointestinal specialist, Dr Anthony Greenberg; and functional and vocational assessors, Ms Georgina Whitely and Ms Gill Myburgh.
5. On the issue of quantum, the defendant has qualified the following medicolegal experts who have also produced reports: general surgeon, Dr Neil Berry; consultant in occupational medicine, Dr Alan Home; clinical psychiatrist, Dr Doran Samuell; neurosurgeon, Dr Vidyasagar Casikar; functional and vocational assessors, Mr John Raue and Mr James Bryden­ Brown; and occupational therapist, Ms Yvonne Varela. It is likely that following the production of joint reports, some of the groupings of experts will be required to provide joint reports and give conclave evidence.
6. In relation to the hearing of this matter on the issues of both liability and quantum, the plaintiff submitted that: 1. a hearing to determine matters of both quantum and liability would be of the order 10 days; 2. a hearing on the issue of liability alone would take of the order 5 days; 3. a hearing on liability alone would avoid both parties incurring further substantial costs with respect to quantum conclaves, preparation for hearing, court attendance fees and related costs; 4. a hearing on the issue of liability alone with an estimate of 5 days is more able to be accommodated in the Court's calendar at an earlier time than having this matter set down for a hearing on all of the issues for a 10 day hearing which will expedite the hearing of this long running matter; 5. a hearing to solely determine the issue of liability conforms to the objects of ss 56-60 of the Civil Procedure Act for the just, quick and cheap resolution of the subject proceedings; and 6. in accordance with s 5(1) and ss 56-60 of the Civil Procedure Act, a hearing to solely determine the issue of liability alone will serve to encourage and promote the resolution of the plaintiff's claim in manner in which both parties would not incur the not insignificant expenses and disbursements of running the quantum aspect of these proceedings.
7. Further, the plaintiff submitted that the issues of liability and quantum in this case are wholly separate and discrete, and there is little to no potential for any evidence called in relation to either of those issues to overlap. The experts and lay witnesses in this case have a role to play in either the liability case or the quantum case, with the exception of the plaintiff who is to give evidence in relation to both issues. The savings in relation to time and cost cannot be described as "illusory" or "chimerical". The projected savings in costs, disbursements, preparation time and hearing days are substantial.
8. The plaintiff says that it is in the interests of the parties and the Court to determine the issue of liability separately from that of quantum, noting that if the plaintiff is successful on that issue the hearing will effectively run its normal course, and more significantly, if the defendant is successful on that issue, the need for a 5 day quantum hearing will be obviated.
9. These proceedings are appropriate to be split into single issue hearings as their utility, economy, and fairness to the parties are beyond question. The Civil Procedure Act and the UCPR have contemplated such issues arising in proceedings, particularly when applied to ss 56-60 of the Civil Procedure Act.
10. Finally, the plaintiff submitted that even if it is found that not all of the factors speak to a separate hearing, there is no necessity for all factors to speak positively to a separate hearing, but the factors that do, when read with the provisions of the Civil Procedure Act and UCPR, on balance justify in this case a separate hearing on liability.

The defendants' submissions

1. Aside from alleging that the claim is a fraudulent one, on the basis that the plaintiff was not a passenger in the car when the accident occurred, the defendant alleges firstly that the plaintiff's claims as to his alleged injuries and disabilities are fraudulent; alternatively, that if they exist, they were not occasioned in the collision; and finally, that if they were so occasioned, the claims are exaggerated and unreliable having regard to the nature of the impact and medical opinion.
2. There are a numerous factors that weigh against the appropriateness of ordering the separate hearing of liability ahead of damages in the present case. They are: 1. The plaintiff's credibility is central to both liability and damages. 2. The liability issue is primarily concerned with the alleged falsity of the plaintiff's involvement in the collision but will extend to the nature and severity of the alleged impact. Cross examination of the plaintiff on these liability issues will necessarily extend to accounts given by him as to the circumstances of the alleged collision to various medical practitioners and experts. Where disputes arise as to the accounts given to these practitioners, the defendant may elect to call oral evidence from them, having regard to the cautionary approach to the reliance on medical records referred to by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2]. 3. The damages issue also gives rise to credibility issues, which are impacted on by the plaintiff's credibility on the liability issues as well as on the damages issues. 4. Some of the witnesses that the plaintiff proposes to call on liability will also be relevant to the question of damages. 5. The result is that even if the matter proceeds on a separate question as to liability, the evidence will not be confined to the immediate circumstances of the collision, but will extend to a range of matters arising from the evidence relating to the damages case and is likely to necessitate the calling of witnesses from the pool relating to damages. In this regard, the rehearsing of some or all of the evidence concerning damages is unavoidable. 6. Any saving in cost by splitting the hearing is illusory. The defendant's solicitor, Ms Elizabeth Patrick, deposes in her affidavit at [28] that there will be substantial duplication of effort and cost if the issue of liability is heard separately. 7. One potential consequence of liability being separated is that the defendant may, subject to leave being granted, appeal an adverse determination. This will delay the hearing of the balance of the case relating to damages and defeat any advantage sought to be gained. Another possibility is that the plaintiff will appeal an adverse determination with the same consequence. 8. The plaintiff has not adduced any evidence as to the likelihood of settlement if liability is determined in his favour as a separate question. Having regard to the credibility and medical issues concerning the plaintiff's claim for damages including the claim for substantial alleged loss of earning capacity, there is no overwhelming likelihood of the matter resolving in the event that the plaintiff succeeds on a separate question of liability. 9. Having regard to the nature of the claim and the issues raised, it is more probable than not that matter will proceed to a subsequent hearing on damages. 10. In the event that the plaintiff succeeds on liability and the matter proceeds subsequently to the assessment of damages, difficulties will arise in respect of any adverse credit findings made against the plaintiff, with the potential for inconsistent judgments. 11. The affidavit of Mr Steven Mousas sworn on 29 April 2019 and the plaintiff's written submissions raise matters relating to cost if the matter is dealt with in its entirety and potential savings of cost if the hearing is split. In the circumstances outlined above, such costs savings are unlikely to materialise. 12. There is no evidence as to whether the plaintiff will be personally liable for any of his legal fees or expenses if his claim fails, or pertaining to any personal hardship to the plaintiff by reason of his personal health or otherwise if the matter is dealt with in the ordinary way. 13. For the overriding requirement of s 56 of the Civil Procedure Act to apply, it must be apparent to the court that ordering a separate hearing on liability is likely to achieve a quick and cheap resolution of the entire proceedings, not just the separate issue. The court cannot be comfortably satisfied that this will occur in the present case.

(1) The factual contest

1. There is a serious factual dispute on the issue of liability. I have briefly set out the proposed witnesses' versions of the accident. For convenience and intending no disrespect to the persons involved, I will refer to them by their first names.

The plaintiff's version of events

1. The plaintiff's version of events is that on 13 June 2013, at 7.30 pm, he was travelling as a front seat passenger in a Nissan X-Trail bearing New South Wales registration XXXXTK, which was being driven by Mr Merkbawi. Earlier he had made arrangement with some friends, James Wilson and Elizabeth Andary, to meet at a café called Chokolatta, which is on the corner of West Terrace and South Terrace, Bankstown. He invited his friend Mr Merkbawi, who offered to drive. Mr Merkbawi drove to the plaintiff's house and picked him up. The plaintiff got into the front passenger seat and Mr Merkbawi drove to the café.
2. At about 7.30 pm the traffic conditions were busy. When they were close to the café, they drove looking for a car parking spot. Mr Merkbawi drove into South Terrace and then turned into West Terrace. As he turned into West Terrace, they saw a vehicle which was parked in a street parking spot on their right. That car had its left blinker on and it was in the process of leaving the parking spot. Mr Merkbawi put his right blinker on and stopped his vehicle behind the departing vehicle and was waiting for the vehicle to leave the spot. All of a sudden, there was a heavy impact with the rear of Mr Merkbawi's vehicle. The plaintiff remembers his body moving heavily backwards and forwards as a result of the collision. As a result of the impact, Mr Merkbawi's vehicle was forced forward and the front of the vehicle then collided with the vehicle that was leaving the parking spot. After the collision, the plaintiff asked Mr Merkbawi if he was okay and he said that he was.
3. When the plaintiff began to get out of the vehicle, he saw that the vehicle which had hit them was a truck. The truck drove past and continued to drive along West Terrace before double parking at the position of a no right turn sign on the right side of the road.
4. The plaintiff saw the truck driver get out of the truck and walk toward Mr Merkbawi's vehicle. He then saw Mr Wilson and Ms Andary and some others walking towards their vehicle from the Chokolatta Café. The plaintiff spoke to Mr Wilson and Ms Andary, who asked if he was all right. The plaintiff told them words to the effect of, "We were stopped waiting for a car to leave so we could park, and we got hit from behind."
5. The plaintiff did not speak to the driver of the truck. He saw the driver talking to Mr Merkbawi, and although he could not hear what they were saying, he heard some yelling.
6. It is significant that the driver of the car, Mr Merkbawi, has not provided a statement concerning the accident.

The defendant's version of events

1. The defendant's version of events is that he was driving a garbage truck. At the time of impact he estimates that he was travelling at 15-20 kilometres per hour. He said that because the corner was so sharp, and he was driving a liquid tanker with a "live load", if he had been going the full speed permitted his truck would have flipped over. The defendant estimates that his vehicle is 9 to 10 metres in length and 2.4 metres in width. It is a rigid vehicle and not articulated.
2. The defendant says that as he turned into West Terrace, there was a dark-coloured vehicle parked in a designated no stopping zone. The back side of the no stopping zone was marked by a pole and sign stating "No Stopping". The defendant described the dark-coloured vehicle as an X-Trail, which is a medium-sized four wheel drive.
3. The X-Trail was parked behind the no stopping sign. It was parked close behind the car in front of it. The left rear corner of the vehicle was over the solid white line marking the no parking zone area. As soon as the defendant realised that the X-Trail was parked there, he swung his vehicle wider to the left in order to avoid a collision with this car. The defendant stated that had the X-Trail not been parked illegally, would not have had to swing out to the left and then back again.
4. As the defendant swung the vehicle, he saw another vehicle coming from his left entering the same intersection at West Terrace. He pulled the steering wheel to the right to avoid colliding with the vehicle entering the intersection. When he did so he collided with the back left side of the X-Trail parked in the "no stopping" zone. The defendant would not describe the impact as heavy, as the back wheels of his truck and its mudguard were the sources of impact. The side of his vehicle, the mud guard and the two back wheels rubbed against the left rear side of the parked car, hitting the vehicle's tail light, back window and left-hand side. Although he cannot be absolutely sure since everything happened so quickly, it is his recollection that the collision pushed the car into the vehicle in front of it which in turn touched the vehicle in front of that.
5. When the defendant came around the corner, the X-Trail parked in the no stopping zone showed no brake lights and no lights of any kind on the back of the car. The car was parked. The windows were up. The defendant realised that he had collided with the vehicle and continued two or three vehicle lengths up the road and stopped the truck double parked with his hazard lights on.
6. The defendant does not recall anybody getting out of the X-Trail car. He also does not recall anybody being in the cars that were parked along that area of roadway. It would have been obvious to him if somebody was getting out of the X-Trail. As he was walking back to the row of parked cars, he saw several men of Middle Eastern appearance cross the road from the direction of the cafe that was located on the other side.
7. Once the defendant approached the car he had collided with, one of the men said words to the effect of, "My car, you hit my car." One of the men, who the defendant described as "buff", was fairly aggressive and saying words to the effect of, "What were you doing?" The defendant remembers the lady who was in the vehicle which entered the intersection at the same time as his vehicle was standing at the collision site when he arrived at the scene. This is likely to have been Ms Everett-Spring.

James Wilson and Elizabeth Andary

1. The plaintiff's two friends, James Wilson and Elizabeth Andary, have provided their versions of events which are similar to each other. While they were sitting in the cafe, they heard a bang. They walked out of the cafe and saw that a truck had collided with the rear of a four wheel drive vehicle. They also saw the driver of this car get out and stand next to the driver's side of his vehicle.

Ahmad Mostafa

1. Mr Ahmad Mostafa was parked legally on West Terrace at the intersection of South Terrace. West Terrace is a one way street. He was planning to vacate the parking space. His version of events is that he saw a vehicle stop behind him, with the right hand indicator activated. The vehicle was a Nissan four wheel drive. He knew that the driver of the Nissan was planning to move into the parking space when he left. Mr Mostafa does not recall the exact position or angle of the Nissan on the roadway, but that it was a small distance behind him. As he began to move from the parking space, a truck collided with the rear of the Nissan, forcing it into the rear of Mr Mostafa's vehicle. It was a heavy impact which shattered the window of the Nissan. Mr Mostafa sustained damage to the rear of his vehicle, from the tail light to the middle of the boot. He immediately got out of his vehicle and he saw the people get out of the Nissan. He remembers that he saw more than one person get out of the vehicle, but does not recall whether there were a total of two or three people who got out.

Ms Everett-Spring

1. Eliza Everett-Spring observed Mr Merkbawi's black car illegally parked in a no stopping zone immediately around the corner from South Terrace on the right hand side on West Terrace. The zone is clearly marked so as to prohibit parking there. There is a sign and the road is marked with white paint to delineate the no stopping area. Ms Everett-Spring says that the black car was illegally parked behind the no stopping zone sign which marks the commencement of the no stopping zone. The entire body of the dark car in the no stopping zone was behind the no stopping sign. The rear of the black car was hanging out over the white paint marking on the road, marking out the zone.
2. Ms Everett-Spring was recently shown images obtained from Google Maps of the subject areas as at 2017. Having considered those images, she observed that it does not appear that there have been any physical changes made to the area.
3. As she approached the intersection, the truck was coming around the corner into West Terrace at the same time. The black car did not have its lights on. Ms Everett-Spring did not see any tail or brake lights. Due to the black car being illegally parked, the truck driver had no room to go around, as there was a road divider or triangle there to divide the merging traffic. The truck driver attempted to go wide to the left, but he must have seen Ms Everett-Spring's vehicle as he corrected his steering to the right. She heard a bang, which was the sound of the truck hitting the black car. The right side of the truck hit the rear left side of the parked car. On hearing the bang, Ms Everett-Spring immediately thought, "He did that to miss me". She looked over to the black car and did not see anybody in it. Although it was at night, the area was adequately lit with street lights.
4. Ms Everett-Spring drove a little further down West Terrace to park. She parked in front of the car which was parked in front of the black car. She was just two car lengths from the damaged black car. She recalls this distinctly because later the driver of the black car said to her words to the effect "I parked there [in the zone] because I was waiting for the person in front of me to go". She knew this was untrue because she parked her car in front of the car that was in front of his car. He could therefore have parked where she parked. He did not have to be parked illegally.
5. From these versions of events, there is a real factual dispute as to whether the plaintiff was a front passenger in the car at the time the accident occurred. Much will depend on how the witnesses fare in cross examination.

(2) The plaintiff's credibility

1. It is my view that the plaintiff's credibility is central to both liability and damages. There is no doubt that the plaintiff will be cross examined as to the differing versions of how the accident occurred, that have been recorded by the medical practitioners. While the defendant submitted that the doctors may be called in relation to what is recorded in their reports, if liability is determined separately, this seems unlikely. There is also no doubt that the plaintiff will be cross examined at length at both the liability and quantum hearings.
2. Senior counsel for the plaintiff sought to explain that there are two types of attack on the plaintiff's credibility. The first and most serious basis of attack on the plaintiff's credibility is the allegation of fraud, namely whether or not he was the front seat passenger in the car when the accident occurred. The second basis of attack on the plaintiff's credibility involves whether the plaintiff is "gilding of the lily", which is to say, whether the plaintiff has overstated or embellished his injuries and disabilities. Senior counsel for the plaintiff submitted that the second basis of attack on the plaintiff's credibility does not prevent a separate trial, as the "gilding of the lily" approach is not usual. To my mind, as the plaintiff's credit is in issue on both liability and quantum, it is undesirable to order a separate trial on liability.

(3) Overlap of witnesses

1. There will be an overlap of witnesses. The plaintiff will be called for both liability and quantum trials, as will his friends James Wilson and Elizabeth Andary.

(4) Further appeal and settlement

1. Liability will be determined adversely to one party. The unsuccessful party may elect to appeal. This will cause further delay while the appeal is determined. However, if liability is determined in the plaintiff's favour, there is a possibility that the parties may settle on the issue of quantum. I bear in mind that the defendant says that the plaintiff is exaggerating his injuries and disabilities, but this is not a novel situation.

(5) Estimation of court time and costs

1. The plaintiff estimates the hearing time if liability and quantum are heard together as 10 days, while the defendant estimates 8 days. The plaintiff estimates that the trial on liability will only take up to 5 days, and submitted that the Court can list a 5-day matter earlier than one taking 8 to 10 days. While it is possible that the trial on liability will take 5 days, it is likely that the plaintiff will be cross examined at length. Then, when the trial on quantum comes around, he will again be cross examined at length. While the plaintiff's solicitor Mr Mousas says that separate trials will save costs, Ms Patrick says that there will be substantial duplication of effort and costs if the issue of liability is heard separately: see affidavit of Ms Patrick at [28] to [35]. Ms Patrick estimates that more costs will be incurred if there are separate trials. I do not think that in reality, there will be a significant saving of court time by having separate hearings.
2. Of importance is that if there are separate trials and the plaintiff's credibility is seriously in issue, both the liability and quantum trials may be result in inconsistent credibility findings and inconsistent judgments. This situation should be avoided.
3. Further, I am not satisfied that ordering a separate trial on liability will result in a just, quick and cheap resolution of the proceedings.
4. Taking all these matters into account, and in the exercise of my discretion, I decline to order a separate determination on the issue of liability. Costs are reserved.

The Court orders that: (1) The plaintiff's notice of motion filed 28 March 2019 is dismissed. (2) Costs are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2019