Fiore v Nepean Blue Mountains Local Health District trading as Nepean Hospital; Fiore v Nepean Blue Mountains Local Health District trading as Nepean Hospital
[2020] NSWSC 1653
Supreme Court of NSW|2020-11-19|Before: Schmidt AJ
There is no issue on this evidence that the relevant facts are not agreed. To the contrary, they are in significant dispute and there is a resulting issue as to Ms Fiore's and Mr Jordan's credit, on which the question of the existence of the claimed duty will turn.
In the circumstances I am satisfied that the application for determination of a separate question cannot justly be granted.
Undoubtedly if the issues lying between the plaintiffs and Mr Jordan and Crystal Bubs are resolved in the way for which he contends, he will be saved considerable time, trouble and expense.
The parties agreed that Ms Fiore's credit, on which the plaintiffs' case on both liability and damages in part depends, will also be relevant to the determination of the claims advanced against the Health District. Thus determination of the proposed separate question will not be determinative of her credit. It is also therefore relevant that the remaining issues will potentially have to be resolved by a different judge.
It follows that fairness to all of the parties in granting the separate hearing which Mr Jordan and Crystal Bubs seek, is not beyond question: Tepko at [170].
Given the position as to credit this is a case like ABB Engineering Construction Pty Ltd v Freight Rail Corp [1999] NSWSC 1037, where Rolfe J's reasons for refusing the application succinctly explain why in this case the same conclusion must be reached. Amongst other things his Honour discussed at [15]-[17]:
That a case should usually be conducted on the basis that witnesses are cross-examined on all issues at the same time, because the evidence given on one issue may impact on the acceptability of the evidence given on another. Otherwise difficult questions can arise as to the extent to which cross-examination on the matters not being litigated should be allowed and for the cross-examiner, as to how far matters not in issue at that point can and/or should be pursued.
Where credit is in issue a cross-examiner should not be precluded from cross-examining on the issue of damages merely because the only matter being litigated is liability. Otherwise the Court may be prevented from making a fully informed assessment of the credibility of the witness if the cross-examination is truncated, or if contradictory material cannot be led because the cross-examination goes only to credit and not to other issues.
If a judge hearing the issue of liability makes any finding on the credit of a witness who is also to give evidence on the other issues to be litigated that judge will, in all probability, be disqualified from hearing the rest of the matter, with the result that the store of knowledge he or she has obtained from the initial hearing is lost, as is the impact of the evidence upon him or her: Australian National Industries Limited v Spedley Securities Limited (In Liquidation) (1992) 26 NSWLR 411. This can lead to an inefficient use of the Court's and the parties' time and resources.
Plaintiffs who don't succeed on liability may make an application for leave to appeal, lengthening the time during which the litigation is on foot and potentially increasing costs to the financial detriment of the parties. A divided hearing also leaves open the possibility of a second appeal.
These are also powerful considerations in this case. In the result I am satisfied that granting the application would not further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in these proceedings, nor would it be consistent with what the dictates of justice require in all of the circumstances I have discussed.
[2]
Orders
For these reasons the motion is dismissed.
The usual order under the UCPR is that costs follow the event, which in this case is an order that Crystal Bubs and Mr Jordan bear the plaintiffs costs of the motion, as agreed or assessed. Unless the parties approach to be heard on costs within 7 days, that will be the Court's order.
[3]
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Decision last updated: 20 November 2020
The principles which apply to the resolution of an application under rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the determination of a separate question were not in issue. In exercising that power, the Court must give effect to the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), the just quick and cheap resolution of the real issues in the proceedings, taking into account the objects of case management specified in s57; what the dictates of justice require, having regard to the matters specified in s58(2); as well as the elimination of delay and proportionality of costs: ss59 and 60.
Even so an order of the kind sought is not lightly made, given the difficulties that can result, as apparent savings in time and expense may prove to be illusory: Tepko Pty Ltd v Water Board (2001) 206 CLR 1 (2001) 178 ALR 634 at [168]-[171]. This can be especially so where credit issues arise to be resolved on both liability and damages: Bailey v Director-General Department of Energy Climate Change and Water [2010] NSWSC 979 at [4].
In this case there are also both factual and legal issues necessary to resolve on the question of liability, including as to the nature of the services which Crystal Bubs and Mr Jordan offered and provided. Whether the representations Ms Fiore claims she relied on were made; what they each said at relevant times; the nature and extent of any duty owed; and whether it was breached are also in issue.