Flore v NSW Department of Education and Training

(1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order relating to a person outside Australia: (a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint, or

(b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia, or

(c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of a person or cause it to be taken.

(2) In deciding whether it is in the interests of justice to make such an order, the matters to which the superior court is to have regard include the following: (a) whether the person is willing or able to come to the State to give evidence in the proceeding,

(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding,

(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by making or refusing to make the order." 13 The test imposed by s6 is a simple one: is it in the interests of justice to make an order of the kind sought? Relevant considerations are then specified in subs(2), where the "interests of justice" test is reiterated. 14 The evidence given in support of the plaintiff's application was as follows. 15 It is anticipated that five of the identified proposed lay witnesses will give evidence concerning the plaintiff's condition and presentation prior to her injury, and her condition and presentation since her injury, including their observations of limitations on the plaintiff's movement and work capacity. Another witness who happens to be a medical practitioner resident in Rome is principally to be called on the same issues. These were conveniently referred to as "before and after witnesses". 16 One of the lay witnesses is the plaintiff's mother, with whom she lives. The plaintiff's mother was said in an affidavit sworn on 2 August 2002 to have then been 86 years old, although later evidence suggested that she is, in fact, a decade younger, but that nevertheless her state of health precludes her travelling to Australia. She has suffered two heart attacks, the more recent in July 2006. The plaintiff's brother and his wife, also proposed witnesses, live in Rome, and are in full-time employment, the wife operating her own English language school. They had one child, aged five in 2002, and another was expected in September of that year. 17 The two medical practitioners in Rome are in full-time practice. 18 I am satisfied that all proposed witnesses will be able to give evidence material to the plaintiff's case. Travelling to Australia would obviously be an inconvenience for these witnesses; and, in the case at least of the plaintiff's mother, perhaps an impossibility (although there is no medical evidence to support that suggestion). 19 There is no means of compelling any unwilling witness to attend court in Australia. Given the familial relationships of some of the proposed witnesses with the plaintiff, that consideration is of only limited weight. It is of substantially more weight in relation to treating doctors. However, there is no evidence that either of the Rome doctors has refused or declined to travel to Australia for the purpose of giving evidence. Nor is there any evidence that either of the London-based doctors would not or could not make arrangements to attend for that purpose. 20 It may, however, be assumed that the costs of their doing so would be very high; and I am also prepared to assume that the prospects of arranging for four specialist medical practitioners, two Rome based and two London based, to travel to Australia at approximately the same time, are fairly remote. Should they agree to travel, it is likely that the hearing will have to be staggered in order to accommodate their availability. While this is not impossible, it is far from an ideal way to conduct litigation. It is also relevant here to mention the potential inconvenience to the (presumably) many patients of these doctors if they are obliged to travel to this country in order to give evidence necessary in the plaintiff's case. 21 Just as the costs of transporting witnesses, particularly expert witnesses to Australia, are very high, so also are potential costs of transporting the Court, or a commissioner, to Rome and/or London for the purpose of taking evidence on commission. Evidence as to those projected costs is to be found in an affidavit sworn by Diana Farah, the plaintiff's solicitor, on 12 September 2006. It is not possible fully to quantify the costs that will be incurred; it is sufficient merely to note that they will be very high. In my opinion, however, in the circumstances of this case, that circumstance is neutral. Either exercise will be expensive. 22 The number of witnesses involved is one factor relevant to the decision. 23 Further, even if there is only one witness who is unable to travel (or even unwilling) to travel to Australia, thus making it necessary or desirable to take the evidence of that witness abroad, then the question of taking evidence of other witnesses almost answers itself. 24 I have concluded that it is in the interests of justice to make an order of the kind sought on behalf of the plaintiff and I propose to do so.

separate trials 25 That conclusion then raises the issue of separate trials. Notwithstanding a submission made on behalf of the plaintiff which I mention below, I am satisfied that none of the proposed overseas witnesses has anything to contribute on the question of liability. Thus, if the defendant's application were to be successful, the implementation of the order I have indicated I will make would be deferred until after the conclusion of the liability trial. If the defendant were to be successful on the liability issue, there would be no occasion to travel to Europe, and very significant costs would not be incurred. That is a scenario to be borne firmly in mind. 26 The defendant's application was supported by an affidavit sworn by a solicitor employed by the solicitors for the defendant, Mr Greenhalgh. He also gave oral evidence and was cross examined. Mr Greenhalgh deposed that the issue of liability "is greatly in issue". He deposed that the students of the cookery class, including the plaintiff, had all been warned not to approach the area of the floor which was wet, which was in the process of being mopped, and that a wet floor sign had been erected. He said that the plaintiff's footwear was inappropriate and worn against the instruction of the defendant's representatives. He annexed to his affidavit a letter of the cookery instructor dated 12 March 1999. The instructor said that the plaintiff's accident occurred while he was mopping the floor and throwing salt on it to ensure that all dampness was absorbed; that he advised all student not to approach the area during the process; that "a wet sign stand" was displayed around the area as a warning; that despite this the plaintiff walked towards him in the wet area; and that she was wearing inappropriate footwear, although she had been advised to wear non-slip footwear. 27 This is sufficient to establish that there exists a genuine issue on the issue of liability, or, alternatively, contributory negligence. 28 Mr Greenhalgh therefore expressed concern that in the event that the plaintiff failed on the issue of liability, the extensive costs that will have been incurred by the defendant would be irrecoverable. He speculated (reasonably) that it was unlikely that the plaintiff would have sufficient financial resources to meet a costs order of the magnitude that would eventuate if her claim failed which, in any event, would be difficult to enforce, given her Italian residence. 29 Cross examination of Mr Greenhalgh was focussed upon establishing the complications that might ensue if the issues of liability and damages were separated. Central to this was the notion that the plaintiff's credit is likely to be an issue in both trials; medical reports obtained by the defendant (not unusually) assess the extent of the plaintiff's injury at a somewhat lower level than the reports obtained on her behalf. 30 Findings relevant to the plaintiff's credit - whether adverse or favourable - on a separate liability hearing could create difficulties in a subsequent trial limited to damages. This would be particularly so if the same judge were to preside over both trials, but would nevertheless be the case even if the second trial were heard by a different judge. Indeed, once findings relevant to the plaintiff's credit had been made in a liability trial, there would exist a strong argument that that judge should be disqualified from the hearing on damages: see ABB Engineering Pty Ltd v Freight Rail Corporation [1999] NSWSC 1037, per Rolfe J. 31 Senior counsel for the plaintiff cited extensive authority, all with a common theme, cautioning against the fragmentation of proceedings by ordering separate trials of discrete issues. These included: Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180; Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1; Tallglen Pty Ltd & Anor v Pay TV Holdings Pty Ltd & Ors (1996) 22 ACSR 130 per Giles J; Murphy & Ors v Chow [2003] NSWSC 303 per Studdert J; Costello v South Eastern Sydney Area Health Service [2001] NSWSC 751, per Sperling J. 32 Senior counsel proposed certain criteria pointing in favour of, and others pointing against, orders for separate trials. The basic principle, he submitted, is that ordinarily it is appropriate that all issues in a proceeding be disposed of at the same time. So much is consistent with the authorities cited and with established practice. The onus lies upon the party seeking separate trial to establish that it is appropriate or desirable. Secondly, the overriding purpose of the Civil Procedure Act 2005 and of the Civil Procedure Rules made thereunder: "… is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s56(1)) and, by sub-s(2), the Court is enjoined to give effect to that overriding purpose in the exercise of any power conferred on it by the Act or by the Rules. It may be said that this enactment creates a new regime, and sweeps away the last vestiges of trial by ambush, game plan, point scoring or undue reliance on technicalities or inappropriate but available procedures. 33 Circumstances that might point in favour of a separate trial were identified as:

(i) where the resolution of the separate issue will (or might) have the effect of resolving the entirety of the litigious controversy or of substantially narrowing the field of litigious controversy; (ii) where the resolution of the separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation; (iii) where there is a clear demarcation between the issue and all other issues in the case, including issues going to the credit of witnesses. 34 Circumstances pointing in the opposite direction were identified as:

(i) intertwined issues of fact and law such that determination of a separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of settlement of the balance of the litigation; (ii) commonality of witnesses and issues of credit which will or may necessitate a ruling on the credit of one or more of the common witnesses; (iii) a possibility that resolution of the separate question will not finally determine the issue, but will (or might) merely result in an appeal from that decision, with consequent fragmentation of the proceedings. 35 I accept that this is an accurate summation of the principles or tests applicable, drawn from the authorities cited. 36 Senior counsel for the plaintiff then put a number of bases on which the application ought to be refused. Some of these are valid; others are not. 37 For example, senior counsel pointed to what he said was the lateness of the defendant's application. 38 In my opinion, this is a considerable overstatement, having regard to the history as I have earlier recounted it. 39 I have earlier noted that the defendant's notice of motion was filed in response to the plaintiff's notice of motion seeking orders that evidence be taken on commission. In my opinion that was a valid response. Any application by the defendant for separation of the issues at a time when it was envisaged that the entire trial would be heard in Sydney in a single proceeding would have been doomed to failure. It was the prospect of taking evidence overseas that, quite reasonably, prompted the defendant's application. 40 In response to this senior counsel for the plaintiff argued that the District Court notice of motion seeking a similar order remained extant. I do not accept this. Although final orders were never made upon that notice of motion, the history shows that it plainly went into abeyance and was not pursued by the plaintiff. The defendant was entitled to proceed on the basis that that order was no longer sought and the notice of motion was as good as defunct. Indeed, so much can be concluded from the very fact that the plaintiff's solicitors saw fit, not to reactivate and amend that notice of motion, but to file a fresh one in this Court. 41 Senior counsel also argued that there exists no clear demarcation between witnesses whose evidence will be relevant to the issue of liability, and witnesses whose evidence will be relevant to questions of the assessment of damages. In the circumstances of this case, at least, I reject this. It can clearly be seen that the witnesses the plaintiff proposes to call on the issues of damages will have nothing relevant to say on the issue of liability, and vice versa. Were it otherwise, specific evidence would have been called on behalf of the plaintiff to that effect. I am quite satisfied that there has been shown no prospect of any commonality of witnesses in the two issues. 42 Of course, the plaintiff herself will be a witness, and her credit is likely to be an issue in relation to both questions. That is as far as commonality goes. 43 On behalf of the plaintiff it was also argued that her case has been prepared on both issues and is ready to proceed to hearing. I treat that submission with some scepticism. It sits uneasily with the orders sought in the plaintiff's notice of motion, and the evidence adduced on behalf of the plaintiff in support of those orders. 44 Notwithstanding what I have said about some of the arguments advanced on behalf of the plaintiff, I am not satisfied that I should order what would amount to a relatively radical departure from the usual procedure. The possibility of fragmentation of proceedings is a significant element in my conclusion. So also is the fact that the plaintiff's credit is an element common to both issues. 45 I conclude that the defendant has not discharged the onus of establishing that such a departure should be made. 46 The defendant's notice of motion will be dismissed. It will be necessary for the parties to formulate orders for the taking of evidence in Rome and London.

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