By a notice of motion filed on 19 August 2020 the defendant in these proceedings seeks, amongst other things, an order in the following terms:
Pursuant to section 61 of the Civil Procedure Act 2005 (NSW) and rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the Court is to determine all issues in relation to liability separately from any other question in the proceedings and before any further trial of the proceedings.
The notice of motion is supported by an affidavit of Henry David Orme Bourke of 19 August 2020, which was read without objection.
The order sought in the notice of motion is opposed by the plaintiff who read an affidavit of Samuel Alexander Tierney of 21 October 2020. Contrary to the indications given at the commencement of the hearing, I was not taken to any parts of the voluminous exhibit to that affidavit.
[2]
THE FACTS
The factual background to the application is conveniently set out in the written submissions of counsel for the defendant, from which I draw the following summary.
Late on the evening of 20 February 2016 a call was made to triple-0 requesting the attendance of an ambulance to premises in Neutral Bay where it was reported that the plaintiff had taken drugs, was threatening to jump from a high balcony, and was not wholly alert. Upon receipt of that call, the NSW Ambulance Dispatch made a request to the New South Wales Police Force for additional assistance. In the early hours of 21 February a number of police officers attended a unit complex in Neutral Bay and were met by the person who had made the triple-0 call who informed them that the plaintiff had been drinking alcohol, had consumed illicit drugs and was threatening to jump from a balcony. The police were escorted to a balcony off premises on level 4 of the complex where they saw the plaintiff pacing and yelling. A number of officers attempted to speak with him, but he was unresponsive. The plaintiff is then said to have grabbed hold of the lip of a wooden table, which caused a plank to lift up from the table at one end and then snap back down.
On the defendant's case, the plaintiff then turned away from the police, faced in the direction of the balcony balustrade, climbed up and commenced to jump off. The defendant asserts that in response, and in an attempt to stop the plaintiff from jumping, an electronic control weapon commonly referred to as a "Taser" was deployed, one of the two electrical probes of which made contact with the plaintiff and penetrated his lower body. The plaintiff landed on the balcony of the premises one level below. As a consequence, he suffered severe injuries, including a traumatic brain injury and spinal injury.
In an evidentiary statement dated 19 September 2019 the plaintiff said that had he been drinking alcohol from about midday the day before and that he had consumed a quantity of what he understood to be MDMA. He said that he remembered feeling "more angry than [he] had ever felt before". But for those matters, the plaintiff says that he has little (if any) memory of what occurred. He says that he does not remember seeing the police, although he also says that he remembers being hit under the ribs on his right-hand side, as a consequence of which all of the air was taken from his lungs and he was (as he put it) lifted off his feet.
There does not seem to be any dispute that the plaintiff suffered significant injuries as a consequence of his fall, nor does there seem to be any dispute that a police officer discharged his Taser at a time when the plaintiff was in very close proximity to the edge of the balcony. The plaintiff asserts that the risk of him falling and suffering consequential serious injuries was, or ought to have been, obvious to the police who were present, including, in particular, the officer who fired the Taser. The plaintiff will allege, amongst other things, that the discharge of the Taser was in contravention of the policy governing the use of such weapons, and that the officer who fired it breached a number of standard operating procedures. It is the plaintiff's case that the actions of the police caused him to fall in an uncontrolled fashion over the edge of the balcony, resulting in what have been described by senior counsel appearing on his behalf as "catastrophic and life-changing injuries".
It will be evident from that short summary that there is a significant, and complex, issue of liability which will require determination. It is also evident that the plaintiff has suffered significant injuries. There is nothing before me which would indicate one way or the other the extent of his recovery from those injuries thus far.
[3]
THE RELEVANT LEGISLATION
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.
…
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.
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.
[4]
Submissions of the defendant
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.
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.
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.
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.
[5]
Submissions of the plaintiff
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.
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.
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).
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.
[6]
CONSIDERATION
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.
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]
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]
With those matters in mind, I turn to the present case.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
[7]
Endnotes
See for example Ford v Greer [2008] NSWSC 1181 at [25].
See for example Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 at [5].
Neumann Contractors Pty Ltd v Wyong Shire Council [2011] NSWSC 481 at [22]-[26] and [30]-[33].
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Decision last updated: 02 November 2020