8 As Giles CJ in Comm. D (as his Honour then was) said in Tallglen (supra, at 142):
"Part 31, rule 2 of the rules empowers the court to make orders for the decision of any questions separately from any other question, whether before, at or after any trial or for the trial in the proceedings, and for the statement of a case and the question for decision. In the ordinary course, all issues in proceedings should be decided at the one-time, but separate decision of a question may be appropriate where, for example, the decision of the question is critical to the outcome of the proceedings and (at least if decided in one-way) will bring the proceedings to an end. In particular circumstances the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of their dispute is decided or where the decision will obviate unnecessary and expensive hearing of other questions, but such occasions must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of right of appeal is borne in mind) brings delay, expense and hardship - that which the making of an order was intended to avoid. It is often the case that the need to make findings of fact for a decision of the separate question, especially findings which may involve issues of credit, tells strongly against the making of an order because related facts, and renewed issues of credit, will or may arise at a later stage in the proceedings. Experience teaches that it should be able to be seen with clarity that decision of a separate question will be beneficial in the conduct of the proceedings and the resolution of the parties dispute."
16 The separate determination of issues is not a suitable process for determining wide-ranging and contested factual matters: Hathway v Cavanagh (2002) 43 ACSR 497 at 506 [40].
17 In the result, subject to the matters referred to by Giles J in Tallglen, the Court will have regard to the following matters in exercising its discretion whether or not to make an order for the separate determination of a question:
· whether there is some preliminary question of fact or law that is dispositive of the proceedings: Carl Zeiss Stiftung v Herbert Smith & Co [1969] 1 Ch 93; CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606;
· whether resolution of the separate question may promote early resolution of the proceedings or, by narrowing the disputed issues, avoid expense and delay: Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112; Tallglen Pty Ltd v Pay TV Holdings Pty Ltd supra at 141-2; CBS Productions Pty Ltd v O'Neill at 606;
· whether the question is clearly severable, as opposed to where the question proffered:
- involves the whole subject matter of the proceedings;
- involves alternative causes of actions or defences;
- requires findings of fact likely to be contentious on remaining issues in the proceedings; or
- involves the credibility of witnesses' material to the remaining issues in the proceedings.
18 Notwithstanding the relatively unusual nature of both the proposed gross sum application as well as the separate questions order now sought in that regard, the above observations inform the principled exercise of the discretion.
The respective submissions
Idoport submissions
19 Idoport relied upon the proposition that in determining an appropriate gross sum amount, it is relevant to consider what might be determined as a fair and reasonable amount if the matter was subject to a traditional costs assessment. Idoport went on to contend as follows:
Despite the enormous volume of the material filed by the NAB parties there are, self evidently on the materials filed by the parties, real gaps in the evidence. In particular, file notes and primary records of time spent by solicitors, including computerised records, are not intended to be tendered in support of the NAB parties' claim for a gross sum costs order.
The absence of solicitor's file notes and the primary time records means that Idoport is unable to properly test the material filed by the NAB parties. An assessment in the ordinary way would provide a fair opportunity to test the very large claims for costs being made by the NAB parties.
The deficiencies in the evidence mean that the Court is not presently in a position to determine the quantum of costs fairly and will never be in that position for so long as these records are withheld. If the NAB parties resist the production of these materials it will be necessary for a further interlocutory application before the ultimate hearing in respect of quantum. If the Court determines as a preliminary issue that the matter is not appropriate for a gross sum cost order, the parties will save the costs of such an application and the resultant need to produce and then examine vast quantities of additional documents.
20 I have taken this submission into account in weighing the proper exercise of the present discretion. Those allegations will no doubt in due course recur in relation to the question of whether a gross sum is appropriate and can be made on the basis of the material before the Court. Alternatively Idoport may succeed on a motion seeking access to all or a sample of the above described materials.
21 As the National parties have contended the allegations illustrate the interlinked nature of the issues.
The further discretionary factors
22 Both parties addressed by reference to the following further discretionary factors:
Is the question clearly defined?
Will the answer to the question be dispositive of the proceedings, in the sense that, if decided in one way, it will be decisive of the litigation?
What is the overlap in the evidence?
What is the degree of commonality of witnesses and issues of credit as between the separate issue and other issues in the case?
Will or might this necessitate a ruling on the credit of one or more of the common witness, and possibly preclude the trial judge from again dealing with the matters going to the credit of the common witness?