Hannam v State of New South Wales

THE RELEVANT LEGISLATION

1. Turning to the statutory framework, s 61 of the Civil Procedure Act 2005 (NSW) (the Act) is in (inter alia) the following terms: Directions as to practice and procedure generally (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following-- (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed, (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate. …
2. Rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules) is in the following terms: 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.
3. In determining this application, I have also had regard to the provisions of ss 56, 57 and 58 of the Act which provide (inter alia) that the overriding purpose of the Act and the Rules is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Submissions of the defendant

1. In support of the making of the order sought, counsel for the defendant submitted that the critical issue in dispute was whether the conduct of the police officer(s) was causally connected with the plaintiff falling from the balcony. It seems to me that there are a number of other factual issues as well, but I accept that this is the principal issue.
2. Counsel for the defendant submitted that the determination of the separate question of liability in this case had the capacity to resolve the entirety of the issues in dispute. He submitted that there was a clear demarcation between the evidence in respect of liability and the evidence that would need to be obtained and adduced in consideration of quantum, and that the time and cost which would be associated with obtaining evidence in relation to quantum would be considerable, and could be avoided by the making of the order which had been sought.
3. It was further submitted that a separate trial on the issue of liability would support the objects of the Act to which I have referred, and would, in particular, facilitate the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings, at a cost which was affordable.
4. As to the estimated length of any proposed hearing, and in reference to the affidavit of Mr Bourke, counsel for the defendant submitted that if the issues of liability and quantum were separated, the liability question would occupy approximately 7 to 10 hearing days, although it was acknowledged that that estimate would necessarily depend on how many witnesses were to be called by the plaintiff.

Submissions of the plaintiff

1. Senior counsel for the plaintiff submitted that the hearing of this matter, in respect of both the liability and quantum issues, would take in the vicinity of 7 to 10 hearing days. It was submitted that, contrary to what had been put on behalf of the defendant, the bringing of the present application was premature, in circumstances where the case on liability was not yet in a position to proceed to trial.
2. It was further submitted that the proposition advanced on behalf of the defendant as to the additional time which would be taken to deal with the issue of damages was not supported by any evidence. It was submitted that in all of the circumstances the defendant had failed to establish that the making of the order could result in an actual saving of time, expense and inconvenience.
3. It was further submitted that in light of the permanent and life-changing nature of the injuries that the plaintiff had sustained, it could reasonably be anticipated that if the liability question were decided against him there would be a significant prospect of an appeal being brought against such a decision. That, it was submitted, would necessarily result in a further delay in the finalisation of the entirety of the matter. I was also taken by senior counsel for the plaintiff to various aspects of the defence filed in the proceedings, including the defendant's reliance on s 54 of the Civil Liability Act 2002 (NSW).
4. It was submitted that in light of all of these matters, the just resolution of the case would be achieved by proceeding in the usual way, namely by having all issues heard and determined in the one hearing. Senior counsel for the plaintiff submitted that the separation of issues is an exceptional course, and constitutes a departure from the general rule that all issues are to be dealt with and adjudicated upon at the one time. It was submitted that in all of those circumstances, the ordinary position, namely that all issues be tried together, ought be maintained.

CONSIDERATION

1. The discretion which is conferred on the court to make the order sought is obviously a wide one. The authorities provide some guidance as to those matters which inform the exercise of that discretion.
2. To begin with, in exercising the discretion I must seek to give effect to the overriding purpose of the Act and the Rules and facilitate the just, quick and cheap resolution of the real issues in the proceedings. [1] Moreover, although there are instances in the authorities in which orders have been made for the determination of separate questions, it remains the case that such a course is a departure from the normal course of deciding all issues in a case in the one hearing. [2]
3. It is also relevant, in exercising the discretion, to consider the possibility that the resolution of the separate issue will not finally determine the proceedings, but will merely result in the lodgement of an appeal, thus giving rise to a multiplicity of proceedings, an interruption to the court's processes, and the consequent (and generally undesirable) fragmentation of the proceedings. Generally speaking, such consequences should be avoided. [3]
4. With those matters in mind, I turn to the present case.
5. It is difficult to place much, if any, reliance on the competing estimates of hearing time which have been provided. I do not say that in criticism of either counsel who appeared on the motion. The simple fact is that there seems to be limited information available upon which any reasoned determination of the likely length of any hearing, be that hearing solely as to the issue of liability or otherwise, could be made.
6. The primary submission advanced on behalf of the defendant was that the order sought should be made because the separate determination of the issue of liability could resolve the entirety of the dispute. In my view, there are a number of difficulties with that submission.
7. To begin with, the entirety of the dispute would only be resolved if liability was determined in the defendant's favour. Accepting the submission made, and taking it to its logical conclusion, it would mean then that there was a warrant, in every case where liability was in issue, to make an order that such issue be determined separately. Such an approach would be contrary to the authorities to which I have referred.
8. Further, the submission overlooks the fact that in the present case, the possibility of an appeal being brought against any determination of liability in the defendant's favour has been squarely raised. Whist not determinative of the present application, such circumstances, were they to eventuate, would be entirely contrary to the just, quick and cheap resolution of the issues in the proceedings.
9. The defendant also relied upon the existence of a "demarcation" between the evidence in respect of liability and the evidence in respect of quantum as a factor which supported the making of the order sought. It may well be that there is such a demarcation which will necessitate the parties devoting a significant amount of time, money and other resources to the issue of quantum. However, that is necessarily part and parcel of litigation of this nature. It is not, at least in the present case, a factor which supports the defendant's position.
10. In all of those circumstances, I am not satisfied that the objects of the Act and Rules would be served by making the order sought. Indeed, on the evidence before me, taking that course might well be contrary to serving such objects. Accordingly for those reasons, I propose to make an order dismissing the notice of motion.
11. An application has been made by senior counsel for an order for costs of the motion in favour of the plaintiff. Senior counsel further submitted that I should order that any such costs be payable forthwith rather than at the conclusion of the proceedings. The primary basis of that application was that in circumstances where the plaintiff is indigent, an order in those terms would provide the plaintiff with a "fund" for the purposes of the litigation.
12. There is no reason why costs should not follow the event. Counsel for the defendant did not submit otherwise. However, the basis on which I have been asked to order that the costs be payable forthwith is, to say the least, an unusual one. That is not to say that by virtue of that alone, the application should not succeed. However, even if I were to accept that the plaintiff is indigent (in the absence of any direct evidence that this is the case) I am not satisfied that I should depart from the terms of the usual order. In particular in my view, costs orders are not made for the purpose of providing a plaintiff with monies to fund litigation.
13. Before making the orders disposing of the motion, it is necessary for me to make reference to the fact that in my view, these proceedings require close case management. The proceedings were commenced by the plaintiff on 15 February 2019. That is the best part of two years ago. Very little has been done to advance the proceedings since that time. Precisely where the fault may lie for that is not something that I have to determine. However, I will say that it is obviously incumbent upon those solicitors who act for the plaintiff to ensure that the case is prosecuted with proper diligence and proper efficiency. I am not satisfied that this approach has been adopted to date. Accordingly, and independently of the disposition of this motion, I propose to ensure that the proceedings are closely managed from this point onwards, with a view to allocating a hearing date at the earliest possible time.
14. I make the following orders: 1. The notice of motion is dismissed. 2. The defendant is to pay the plaintiff's costs of the motion as agreed or assessed.

Endnotes

1. See for example Ford v Greer [2008] NSWSC 1181 at [25].
2. See for example Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 at [5].
3. Neumann Contractors Pty Ltd v Wyong Shire Council [2011] NSWSC 481 at [22]-[26] and [30]-[33]. 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: 02 November 2020