Lutton v Willingham & Nominal Defendant

Issues 5For convenience, the parties agreed that this phase of the hearing would be limited to issues concerning only liability. That agreement was embodied in consequential case management orders made by the List Judge. Accordingly, the issues to be determined in this phase of the trial are as follows: Issue 1 - Whether the plaintiff was a trespasser on crown land at the time of the accident, thus enlivening the defence raised pursuant to s 33A of the MAC Act; Issue 2 - Whether the first defendant was negligent in the events leading to the collision; Issue 3 - Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent.

Facts 6The plaintiff was born in 1978. He was aged 31 years at the time of the accident. He is presently aged 33 years. At the time of the accident, and since 2004, he had lived in Cobham Street, Yanderra. He had grown up in the district and was familiar with the bush tracks and trails in the area. He described the area where the accident occurred as one where people were known to use the tracks for bush walking, horse riding, driving four wheel drive vehicles, driving ordinary motor vehicles, and riding trail bikes. 7In addition to owning motor vehicles, including a four-wheel drive vehicle, the plaintiff owned a motorcycle. He said he used the latter two vehicles for family recreational trips on the bushland tracks in the area. The tracks in question were wide enough to be used by four-wheel drive vehicles. 8On the day in question, at about 4.30 in the afternoon, the plaintiff had taken his motorcycle for a ride on the bushland track that comprised the unsealed extension of Cobham Street. He had travelled on that track in his four-wheel drive vehicle on a number of occasions over the previous 5 years. He had done so every few months. On the day in question his daughter, who was aged 8 years at the time, was riding as a pillion passenger. The trip was for recreational purposes. He said that at the time he knew of no barriers or gates or signs that precluded the use of crown land for this purpose. 9The plaintiff's account of the events leading to the accident was that he had been for his recreational ride and was on his return journey home along the same track he had used for his outbound journey. He said that at a point about 5kms from his home he was approaching the intersection in question, at a point about 100 metres from the intersection. He said that in preparation for making a left turn at the intersection, he had slowed down the speed of his motorcycle from 20kph to 5 kph. He denied the proposition put on behalf of the first defendant that he was in fact making a right turn at the intersection at the time of the collision. 10The plaintiff stated that he first became aware of the presence of the first defendant's motorcycle at the intersection, when he was about 10 metres back from the intersection. He said he was at a point to the left of the track on which he was riding. He said that the first defendant rode his motorcycle around the corner at what he had estimated to have been about 20kph and in a position to the left of the centre of the roadway whilst he was leaning his motorcycle to the left, and at an angle into the corner. He stated that a collision then ensued between the front wheel of the first defendant's motorcycle and what I infer to have been the plaintiff's right knee. 11The plaintiff stated that this contact occurred at a time when he was then at a point about 8 metres back from the corner of the intersection. He said that in the circumstances he had no opportunity to take evasive action to avoid a collision, and in the ensuing event, all persons involved were thrown from their bikes. Fortunately, his daughter was not injured. 12The plaintiff's brother Nicholas Lutton later attended the scene of the accident and saw the plaintiff's motorcycle on the track. He described the damage that he observed to that motorcycle as comprising a pushed-in front wheel, damage to the right side casing, and a scattering of pieces of the crankcase on the ground where the bike had lain. 13Police and ambulance personnel were in attendance. He plaintiff was eventually taken to hospital by helicopter for treatment to his multiple fractures. The police officer who attended the scene, Senior Constable Begley, took some photographs of the scene, but these were no longer available at the time of the hearing as they had been wiped from the memory of the computer on which they had been stored. His recollection of the photographs was that there was signage indicating the area was crown land. He was unable to describe the placement location of those signs with any degree of certainty. 14The first defendant was familiar with the area from a young age. He said he was aged about 15 or 16 years at the time of the collision. He had a history of riding trail bikes in the area in question with his father almost every second weekend for some considerable time beforehand. He had been riding trail bikes since the age of 5 years. The trail bike in question had been given to him by his father, who had previously owned it, about a month before the accident. 15The first defendant stated that the terrain of the area in question was flat and the section of track approaching the intersection was straight after it had previously taken a winding course. He said he could see the intersection through the cuttings in the trees on his approach from about 20 to 30 metres back from the intersection. He said he had been travelling on the track at about 50 to 60kph. He said that at a point about roughly 10 metres from the intersection he slowed his motorcycle down by using his gears, changing from third gear to first gear, and in doing so, had reduced his speed to what he had estimated to be about 15 or 20kph as he entered the corner to turn to his left. He clarified this evidence to state that he came down into first gear as he started moving into the corner. 16The first defendant stated that as he entered the corner of the intersection he looked and saw the plaintiff's bike on the track. He said it was turning to the plaintiff's right from the first defendant's left as he was himself turning to the left. He said he made this observation when he was at the apex of the corner of the intersection. He described the plaintiff's position at that time as being in the middle of the track about a metre from the edge of the gravel surface, the trafficable width of the track being estimated by him to be about two to two and-a-half metres in width. 17The first defendant described the point of collision as being in the middle of the track about 2 or 3 metres down the track after he had turned left. Critically, he gave the following evidence at T55.5 to T55.22: "Q. How long before the point of impact, in terms of time, did you seek the other bike? A. I seen it as I've come around the corner. Q. So how far are you from the other bike in terms of distance when you first saw it? A. About, say, 4 metres, 3 metres. Q. Did you observe the direction in which the other bike was travelling as that gap of 4 metres closed? A. Pardon? Q. Did you observe the direction the other bike was travelling in as that gap of 4 metres closed from when you first saw it to the point of impact? A. Well, I was turning and we've collided. So I'm - I'm taking that that - we've both tried to - hit - I've come out of the corner, I'm assuming that he's tried to come in the corner and we've collided as - it happened pretty quick so - that's ..(not transcribable).. " 18The re-issued portion of the transcript revealed the untranscribable portion cited in the above passage was "that's all". 19In cross-examination, the first defendant described the two motorcycles meeting in collision at the apex of the corner. He then later said that this was not quite correct as he had in fact first seen the plaintiff when he, that is the first defendant, was in the apex of the corner: T56.28. He then denied the collision occurred several metres back from the apex of the corner: T56.37. He described the contact as a sideswipe rather than a "banging to a stop" collision. 20The first defendant said he was not severely injured. His father, who had been following him on another motorcycle some distance behind, then arrived at the scene and surveyed it, before taking the first defendant's motorcycle and riding it away in order to summon help. 21The first defendant conceded it was possible that there was some debris from his bike on the ground at a point some 5 to 10 metres back from the intersection, but said this could have occurred when his father rode his bike away, at which time the debris could have fallen to the ground. He was uncertain about this evidence concerning how the debris came to be on the ground, and it appeared to me that this explanation offered by the first defendant was imprecise and speculative in nature. 22Significantly, the first defendant agreed that at the relevant time he knew "there were bikes out there". He agreed he could not see up the trail from where the plaintiff had travelled until he, that is the first defendant, was actually in the intersection: T58.16. In that context, at T58.18 to T58.21 he made the following concession: "Q. So the careful thing to do, I want to suggest to you, in those circumstances would have been to slow down to a lot less than 15 to 20 kilometres an hour before you made that turn, to turn left. That's right, isn't it? A. If you ride like that, yeah." 23The first defendant stated that as he entered the intersection he travelled from the middle of the track, cut the apex of the corner and went down the left side of the track, and in doing so, he did not see the plaintiff's bike until it was too late to avoid a collision: T58.30 to T58.38. 24The first defendant also gave the following evidence at T58.40 to T59.23: "Q. So you didn't know there was anyone coming the other way, that's right? A. I didn't know, no. Q. So it's your evidence that you didn't do anything - take any precautions just in case there was? Is that right? A. I did slow down. Q. But if you were taking care to avoid colliding with a motorbike or a four-wheel drive or a person or a horse coming along that road that you were turning into, you should have slowed down a lot more than that, shouldn't you? A. You could say that. Q. You see, you were going fast enough as you came around the corner to have to lean your bike a bit, weren't you? A. Yeah. Q. And it was your intention, having gone through the corner, to then accelerate up through the gears as soon as you'd gone around the corner, that's right, isn't it? A. Well when I leave a corner, yeah, I accelerate to go. Q. You say that your estimate of the width of the track or road that Mr Lutton was on was two to 2.5 metres - it could have been a bit wider than that? A. I don't know, I didn't have a measuring tape. Q. As you said, he was about in the middle of the road. He could just have easily have been slightly to the left of the centre of the road I want to suggest to you? A. Well they're your assumptions. Q. Because you had yourself taken a line, hadn't you, where you had ridden your bike out into the middle of the road that you'd been on before cutting across the corner and turning? A. Yes." 25There was an issue to be resolved as to whether, at the time of the collision, the plaintiff was either intending to, or was in the course of making a right turn, as contended by the defendant, or a left turn at the intersection, as he contended. My consideration of that issue appears in my reasons regarding Issue 2.

Consideration of Issue 1 - Whether plaintiff was a trespasser 26By paragraph 2 of their jointly filed defence, the defendants have conceded that the area where the collision occurred was a "road" or "road-related area" within the meaning of s 2 of the MAC Act. 27Section 3 of the MAC Act relevantly defines "road" as follows: "... "road" means a road, or road related area, within the meaning of the Road Transport (Vehicle Registration) Act 1997 , but does not include an area to which the whole of that Act does not apply because of an instrument under the Road Transport (General) Act 2005." 28Section 4 of the Road Transport (Vehicle Registration) Act 1997 relevantly defines "road" and "road related area" as follows: "... "road" means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles. "road related area" means: (a) an area that divides a road, or (b) a footpath or nature strip adjacent to a road, or (c) an area that is open to the public and is designated for use by cyclists or animals, or (d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or (e) a shoulder of a road, or (f) any other area that is open to or used by the public and that has been declared under section 15 of the Road Transport (General) Act 2005 to be an area to which specified provisions of this Act or the regulations apply." 29In my view, according to these statutory criteria, the concession is fairly made as evidence in the proceedings certainly compels the conclusion that the accident occurred at a place that was at least a road related area within the meaning of the legislation cited above. That conclusion is supported by the description of the scene by each of the witnesses and the photographic exhibits, particularly Exhibit "C" and Exhibit "3", which assist in explaining that evidence. These exhibits respectively show tracks in bushland and on crown land that are used by vehicles. There is no question that at the time of the accident, the tracks in question were used by the public for the driving or riding of motor vehicles. 30However, the defence denies that the area in question was open to the public, notwithstanding that members of the public used and were known to have used the area for the activity of trail bike riding. 31The defendants rely upon a defence that pleads a factual allegation that the plaintiff was a trespasser on crown land. The relevance of that plea is that the Nominal Defendant claims that if it is proven that the plaintiff was a trespasser at the relevant time, by reason of the provisions of s 33(3A) of the MAC Act, the plaintiff is precluded from maintaining his action against the Nominal Defendant. 32The question of whether or not the plaintiff was a trespasser is necessarily a question of fact to be determined in these proceedings. The importance of that question arises from the terms of s 33(3A) of the MAC Act, which provides as follows: "(3A) If the motor accident resulting in the death of or injury to a person occurred on land that is a road related area under the Road Transport (Vehicle Registration) Act 1997 because it is an area that is open to or used by the public for driving, riding or parking vehicles, there is no right of action against the Nominal Defendant under this section if at the time of the motor accident the person was a trespasser on the land." [Emphasis added] 33On an objective analysis of the survey evidence there can be no doubt that the track where the accident occurred was located on crown land: Exhibit "3". The land in question was in fact a dedicated reserve within the meaning of Part 5 of the Crown Lands Act 1989. Sections 80 and 87 of that Act provide that lands so dedicated can only be used for a public purpose. 34The term reserve, when not controlled by a statutory definition, as is the case here, has come to be recognised as an unoccupied area of land preserved as open space for public enjoyment, to which the public ordinarily have access as a matter of right: Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54, per Windeyer J at page 71. 35On behalf of the defendants, Mr Sexton SC fairly conceded that the defendants carried the burden of persuasion that there was a sign such as that shown in Exhibit "5", advising that the adjacent land was crown land and prohibited unauthorised entry or use. Similarly, it was conceded that if that fact could not be established, then the plaintiff must be taken to have had a right of access to the land in question pursuant to an implied licence to enter reserved crown land, and if that was the case, then he should not be characterised as having been a trespasser at the time of the accident. 36There is no doubt that the Minister responsible has power to order the placement of signs excluding entry onto crown land: s 160 of the Crown Lands Act 1989. That provision empowers the Minister to direct that such signs be erected. It would be reasonable to infer that if the Minister had in fact exercised that power, such a direction would have been minuted or gazetted, and as a result, a relevant paper trail would then have been established for the expenditure of public funds to fulfil the requirements of such a direction. No evidence along those lines was tendered. 37In determining whether or not the plaintiff was a trespasser in the circumstances disclosed in the evidence in this case, the applicable principle is that the term should be construed as a basic legal concept with an established meaning. If the right to enter land is limited in scope and entry occurs which is outside that limited scope then such entry should be characterised as a trespass: Barker v R [1983] HCA 18; (1983) 153 CLR 338, per Mason J at page 342. This means that it need not be shown that the plaintiff subjectively understood that he was trespassing on the land in order for him to be found to have trespassed onto crown land. 38The pivotal matter that determines whether or not the plaintiff was a trespasser at the time in question is whether or not duly authorised signs of the kind shown in Exhibit "5" had been erected and were in place either on the boundaries of the land comprising the reserve, or at entry points into the reserve. 39The first matter to be noted in this regard is that Exhibit "5" does not provide evidence that signs of the kind shown in those photographs were in fact erected at the time of the accident and in accordance with a duly made Ministerial direction. 40It therefore falls to the examination of the oral evidence to determine the presence of signs, or otherwise, at the time of the accident. 41In that regard, the plaintiff's evidence in chief was that there were no such signs or barriers in place: T11.24. The plaintiff acknowledged he had never sought permission to enter the land in question but he also said he considered he did not need permission because he had understood that the area was available for access for community use: T30. Mrs Samantha Scott gave evidence that she and the plaintiff had driven in "this bushland" in convoy in separate cars on occasions: T36.46 to T37.15. 42It was argued that the plaintiff's evidence to the effect that he had not previously driven in the vicinity of Harley Street and Cobham Street must be seen as being unreliable in view of Mrs Scott's unchallenged evidence to the contrary. 43I do not draw that conclusion in this case because Mrs Scott's evidence was qualified. She said the "cuttings through the bush [lead off in] various directions": T37.25. She also stated that one area of this dense bushland was very much like the next: T37.33. I do not consider that evidence as being a sufficiently precise or clear basis to require a finding that the plaintiff's evidence on this topic should be characterised as being unreliable. 44I consider that the most significant thing to have emerged from Mrs Scott's evidence was that she had not seen the signs or the gate structure, evident in Exhibit "5", before: T38.9. She indicated that the gate went up no longer than 2 years ago, which was plainly after the plaintiff's accident: T38.29; T39.7; T39.20. 45Although Senior Constable Begley, who had only visited the scene once, namely on the day of the accident, thought there were signs in place at the time indicating the land in question was crown land, his evidence in that regard was tentative and imprecise, and it was qualified by the absence of the photographs he had taken of the area at the time of the events. He could not recall what was on the sign which he thought he had photographed. His evidence on this topic was understandably significantly qualified by uncertainty on his part: T46.26 to T46.43. He could only speak in terms of possibility on this topic, and not with any degree of certainty. Given that he had only been to the area once and did not have photographs to refresh his memory that uncertainty was entirely understandable. 46The evidence of the first defendant was non-contributory on whether or not such signs were in place at the time of the accident. 47On the evidence I have reviewed, as outlined above, I am not satisfied that there is a reasonable basis upon which it could be inferred that the signs shown in Exhibit "5", or duly authorised signs to like effect, had been erected on the boundaries of the reserve in question before the subject accident. 48Accordingly, I find that the defendants have not provided satisfactory evidence that the plaintiff was either aware or ought to have been aware of the presence of any signs of the type shown in Exhibit "5". It follows that the plaintiff should not be held to have been a trespasser on crown land at the relevant time.

Consideration of Issue 2 - Alleged negligence of first defendant 49The plaintiff's pleaded claim in negligence can be summarised as comprising allegations that the first defendant had travelled at an excessive speed, had failed to keep a proper lookout, had failed to maintain a safe position on the track and had turned across the path of the plaintiff. 50Given the nature of the track, its remote location, the fact that it comprised an unmade surface which was gravel in parts, with ruts and smoother edges, I do not consider the plaintiff has made good the allegation that the first defendant had failed to maintain a safe position on the track in his approach to the intersection. Subject to a consideration of the question of the speed of the first defendant's motorcycle, I do not consider that it was unreasonable or unsafe for the first defendant to have ridden his motorcycle on the smoother left hand side edge of the track surface when the centre portion of the track was in parts gravel, with ruts. 51The first defendant acknowledged that he had turned into the corner of the intersecting portion of the tracks at an estimated speed of about 15 to 20kph. This was in circumstances where he was aware that other persons were likely to be present on the track, either walking, riding horses, riding on motorcycles or travelling in motor vehicles. 52On an ordinary sealed roadway, travelling on a motorcycle at a speed of 15 to 20kph whilst commencing to negotiate a left turn at an intersection does not of itself constitute negligence. However, the track in question was no ordinary roadway and it was unsealed. 53In my view, riding a motorcycle at that speed on a relatively narrow track where the edges of the track were lined with dense vegetation, thus precluding a view of approaching traffic from the left at the intersection, invited a materialisation of the risk of a collision with any traffic that might be approaching from the left notwithstanding the remote location. 54In my view, in those circumstances, where the first defendant was riding on an unmade track surface without clear visibility to his left, it was incumbent upon him to either travel at a slower speed in his approach, or to stop or come to a near stop at the intersection before making his left turn so he could gauge the situation concerning other traffic in the vicinity. This was so because if he had to stop quickly in order to accommodate other track users, the unmade gravel surface would have made it more difficult for him to stop his motorcycle quickly. Accordingly, in my view, the first defendant's failure to do either of those things amounted to a relevant breach of the duty of care owed to the plaintiff. 55Furthermore, in my view, when the first defendant rode his motorcycle into the left turn and into collision with the plaintiff he thereby failed to keep a proper lookout for the approach of other vehicles, such as that of the plaintiff, travelling from the direction into which he was turning. This was because the more the dense the trackside vegetation, which comprised a barrier to the vision of the first defendant to his left, the greater was the obligation on him to be able to travel at a speed that permitted a prompt and safe stop in the event that another vehicle appeared from his left at short notice, having regard to restricted visibility due to the surrounding vegetation. 56In my view the first defendant's speed and reduced opportunity to see such other approaching traffic due to the surrounding circumstances reinforces the view that there was a relevant failure to keep a proper lookout. 57The first defendant turned into the path of the plaintiff's motorcycle in circumstances where the track in question was relatively narrow, with limited opportunity for the plaintiff to take evasive action by steering a course to avoid a collision. In the circumstances I consider that making such a turn without first stopping or slowing down to a much slower speed in order to assess the possibility of the presence of other traffic was also a relevant departure from the required standard of care in the circumstances. 58Furthermore, I consider the nature of the first defendant's turning manoeuvre was carelessly executed. Approaching the intersection at a speed of 50 to 60kph and waiting until he was only about 10 metres from the corner before slowing down through the gears to 15 to 20kph was an inherently unsafe manoeuvre in the circumstances. 59At a speed of 50kph the motorcycle would have been travelling at about 13.88 metres per second. I consider it to be implausible that in that approximate distance of 10 metres from the corner, that the first defendant had actually slowed down to a speed of 15 to 20kph from 50 to 60kph using the gears alone, in about 1 second. This would explain the first defendant's need to lean left into the corner as he turned to the left. It also indicates that he would have negotiated the corner in something of a trajectory, travelling over to the plaintiff's side of the track some metres down the road, causing the contact described by the plaintiff. I am satisfied that in those circumstances, these events involved breaches of duty of care on the part of the first defendant. 60In arriving at that view I have not overlooked the plaintiff's estimate of the defendant's speed. However, the plaintiff's evidence was only an estimate and he would have had very little time to observe the speed and distances travelled by the first defendant to provide a reliable estimate in the circumstances. 61In my view, the breaches of the duty of care owed by the first defendant that I have found, justify a finding of negligence as I consider that the evidence discloses that the requirements of s 5B of the Civil Liability Act 2002 are satisfied for such a finding to be made. 62This is so because the risk of the collision, and therefore the harm complained of by the plaintiff, was foreseeable, as was acknowledged by the first defendant. Furthermore, that risk was not insignificant, and a reasonable person in the position of the first defendant would have taken precautions such as travelling at a much slower speed, if not also stopping, before turning the corner and turning across the plaintiff's path of travel, especially where the first defendant had limited room for taking evasive action because the track was narrow and the turn involved a trajectory when the first defendant cut the corner: s 5B(1) of the CL Act. 63In addition to those matters, it is plain that in the first defendant's circumstances of limited visibility of the plaintiff approaching from the left, the probability of a collision, and therefore serious harm in the form of injury to affected persons was high, and where the burden of taking the precaution of travelling at a slower speed or stopping before turning was negligible, this being a commonplace precaution taken by those in control of vehicles at trafficable intersections: s 5B(2) of the CL Act. 64In my view it is plain that if those simple and reasonable precautions had been taken by the first defendant in the events in question, a collision would have been unlikely to have occurred: s 5D of the CL Act.

Consideration of Issue 3 - Alleged contributory negligence 65The first defendant contended that there was contributory negligence on the part of the plaintiff in the following respects. 66It was alleged that the plaintiff had been travelling at an excessive speed, had failed to keep a proper lookout, had failed to ride on the correct side of the carriageway and failed to allow sufficient room for the first defendant's vehicle to pass. It was further alleged that the plaintiff had turned across the path of the first defendant's motorcycle. 67I do not accept the submission that the plaintiff had been travelling at an excessive speed in the lead up to the collision. He had reduced his speed to 5kph in his approach to the intersection. In my view, that was an appropriate and safe speed commensurate with an approach to an intersection of bushland tracks of the kind under present consideration where visibility into the intersecting tracks was reduced due to the surrounding vegetation and where he was carrying his 8 year old daughter as a pillion passenger. That speed was also a commensurately slow speed that was appropriate to the plaintiff's intention to make a left turn at the approaching intersection. I accept that the plaintiff was intending to make a left turn as he claimed, rather than a right turn as claimed by the first defendant. 68I do not accept the submissions that the plaintiff had not been keeping a proper lookout and had travelled on the incorrect side of the carriageway or had allowed insufficient room for the first defendant's motorcycle to pass. 69The track in question was a relatively narrow one, comprising some 2 to 2.5 metres in width with a smoother surface at the edges adjacent to the vegetation. That was an appropriate position for the plaintiff to adopt when riding a motorcycle on a surface that was in other parts rutted. He was looking ahead intending to make a left turn at the intersection. He saw the first defendant's approach only when the first defendant had turned into the corner. This was understandable given the description of the surrounding vegetation. In the circumstances, I consider that there was nothing the plaintiff could have reasonably done in the circumstances to avoid the collision that ensued. It was the trajectory adopted by the first defendant in cutting the apex of the corner whilst leaning his motorcycle to the left and into the corner that caused his motorcycle to assume a collision course with the plaintiff, who was some metres away from the corner when the impact occurred. 70I do not accept the submission that the plaintiff turned across the path of the first defendant's motorcycle. I have accepted the plaintiff's description of the first defendant leaning his motorcycle to the left as he entered the corner. I have preferred the evidence of the plaintiff in this regard as the evidence of the first defendant seemed to me to have been vague and somewhat imprecise, for example, as is apparent from the previously cited passage at T55.22. I formed the view that the plaintiff's evidence was a more reliable account of the events in question. It follows that I do not accept the first defendant's account that the plaintiff had turned his motorcycle to his right at the intersection and had travelled across the path of the first defendant. 71I therefore find that the defendants have not discharged the onus carried by them for proof of the allegations of contributory negligence. Accordingly, I find that defence to the plaintiff's claim has not been made out.

Disposition 72As the plaintiff has succeeded against both defendants on all issues presently calling for decision, he is entitled to the entry of a verdict and judgment in his favour on the question of liability.

Costs 73As the plaintiff has succeeded on the liability issues, he is entitled to an order that his costs of this phase of the hearing be paid by the defendants on the ordinary basis unless an entitlement can be shown for a different costs order.

Orders 74I make the following orders: (1) Verdict and judgment for the plaintiff against the first and second defendants on the issue of liability; (2) The defendants are to pay the plaintiff's costs of the trial of the liability issues on the ordinary basis unless otherwise ordered; (3) The exhibits may be returned; (4) A directions hearing is appointed before the List Judge for 9.30am on Monday 9 July 2012 to ascertain the readiness of the parties for a trial of the remaining damages issues; (5) Liberty to apply on 7 days notice if further orders are required. 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: 27 June 2012