Plaintiff v Defendant

Supreme Court of Victoria|2015-07-17|Before: DERHAM AsJ

PRACTICE AND PROCEDURE - Application pursuant to rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 and/or s 49 of the Civil Procedure Act 2010 (Vic) for the trial of preliminary questions where judicial determination of facts required - Whether all facts necessary for determination of preliminary questions clearly identified and ascertainable - Whether material or evidence for the determination of question of fact presently before the Court are such that the question of fact can be properly determined - Whether significant contested factual issues involved in the determination of the question of fact - Whether discovery (of documents and by interrogation) necessary before any consideration of a trial of preliminary questions - Whether provisions of (Vic) affects the application of the pre-existing law as to the trial of preliminary questions - Whether the utility, economy and fairness to the parties by the trial of the preliminary questions is beyond question - Application refused - ; ;

1 By summons dated 2 April 2015, the fifth defendant ('Sun') seeks an order pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) ('the Rules') and/or s 49 of the Civil Procedure Act 2010 (Vic) ('the CPA') that the following questions be heard and determined before the trial of the proceeding:

(a) Did the first defendant hold a licence permitting him to drive a motor vehicle in Fiji on 27 July 2008 or at any time within the period of 30 days immediately prior?

(i) Was the first defendant a person entitled to drive Toyota motor vehicle with Fijian registration number DA171 ('the Vehicle') on 27 July 2008, and was he insured within the meaning of the policy of insurance numbered Z519937 ('the Policy') issued by the fifth defendant ('Sun')?

(ii) Is Sun liable to indemnify the first and/or fourth defendants under the Policy in respect of the plaintiff's claims against them in this proceeding?

(iii) Is the plaintiff entitled to enforce against Sun any judgment he obtains against the first and/or fourth defendant in this proceeding, or to obtain damages from Sun pursuant to the Motor Vehicles (Third Party Insurance) Act ('the Fiji Act'), which comprises chapter 177 of the Laws of Fiji 1985 revised edition, or otherwise?

2 On 27 July 2008, the plaintiff, then 23 years of age and an Australian citizen, was injured in a motor vehicle accident in Fiji. The plaintiff, whilst riding a motor scooter, collided with the Vehicle, a white Toyota Corolla, allegedly driven by the first defendant ('Daumeke'), at an intersection near the Nadi Airport. At the time of the accident, the plaintiff was living and working in Fiji, employed as a flying instructor at Nadi Airport. He held an Australian Commercial Pilots' Licence and had intended, after gaining experience and flying hours in Fiji, to return to Australia and seek employment as a commercial pilot.

3 After the accident, the plaintiff was transferred by ambulance to the Nadi Hospital and, from there, was referred to the Lautoka Hospital. On about 29 July 2008, the plaintiff was evacuated to the Austin Hospital, Melbourne, Victoria. The plaintiff had sustained a C4 incomplete quadriplegia involving fractures of the C3, C4 and C5 vertebrae and intrinsic spinal cord changes adjacent to the C3 and C4 vertebrae. After undergoing surgery, the plaintiff was subsequently transferred to the Royal Talbot Rehabilitation Centre where he underwent extensive rehabilitation. He was discharged on 21 September 2009. He continues to receive ongoing medical treatment and requires the use of a wheelchair.

4 The plaintiff commenced this proceeding by writ filed on 26 July 2011. Initially, there were three defendants: Daumeke, the first defendant, who was the driver of the Vehicle; the second defendant, the Commissioner of Police (Fiji) ('the Commissioner'); and the third defendant, the Attorney-General of Fiji ('Attorney-General'). Later, as I outline below, the owner of the Vehicle and the Third Party Insurer, Sun, were added as the fourth and fifth defendants.

5 Attempts at service on the initial defendants via a letter of request from the Prothonotary to the appropriate authorities in Fiji proved unsuccessful. There were a number of interlocutory steps whilst attempts were made to serve the defendants and establish whether the Vehicle being driven was insured. These included:

(a) On 8 August 2012, the validity of the writ for service was extended to 1 February 2013;

(b) On 20 February 2013, the validity of the writ for service was again extended - to 1 August 2013;

(c) Inquiries were made and it was revealed that Sun was the insurer of the Vehicle and, after a copy of the writ was sent to Sun, they confirmed that fact;[1]

(d) By order made on 26 August 2013, substituted service on Daumeke was ordered by service on Sun, such service being deemed to have been effected on 11 September 2013;

(e) On 4 February 2014, the validity of the writ for service was again extended - to 3 May 2014 - and, on compliance with certain orders, service was deemed to have been effected on Daumeke on 4 March 2014;

(f) On 7 March 2014, summary judgment in default of appearance was entered against the Commissioner and the Attorney-General;

(g) In July 2014, the plaintiff joined as defendants to the proceeding the owner of the Vehicle - the fourth defendant ('Prasad'), a Fiji national - and Sun, a company based in Fiji - against which the plaintiff seeks a declaration that it is liable to indemnify Daumeke and/or Prasad under the Policy and the Fiji Act;

(h) On 23 July 2014, the Amended Writ and Statement of Claim was filed with the Court;

(i) On 25 July 2014, summary judgment in default of appearance was entered against Daumeke;

(j) On 11 August 2014, the Amended Writ and Statement of Claim was served on Prasad;

(k) On 17 September 2014, Lander & Rogers filed an appearance on behalf of Sun; and

(l) On 14 October 2014, Sun's Defence to the Amended Statement of Claim was filed.

6 The plaintiff's allegations in the amended statement of claim,[2] and Sun's defence,[3] so far as relevant, are as follows:

(a) Daumeke was a police officer (no. 3130) employed by, or acting as agent for, the Commissioner and/or the Attorney-General.

Sun admits that Daumeke was a police officer in Fiji on the date of the accident, but says further that he was also known as Amani Daumeke Takayawa. It does not admit that he was acting in the course of his employment.

(b) One or other of the Commissioner or Attorney-General is vicariously liable for the acts or omissions of Daumeke.

(c) At the time of the accident, the plaintiff was travelling on a motor scooter on a road leading from the Nadi Airport in Fiji. As the plaintiff approached the junction of the road on which he was travelling and a road leading from the Police compound, which ran adjacent to the front of the Fiji Meteorological Services, the plaintiff noticed the Vehicle approaching the junction. Daumeke was driving the Vehicle.

(d) The Vehicle was owned by and registered to Prasad, the father-in-law of Daumeke.

Sun admits that Prasad was the owner of the Vehicle, the father-in-law of Daumeke, that he was the person to whom the Vehicle was registered, and that he was a party to the Policy.

(e) Prasad had permitted Daumeke, or alternatively the Commissioner and/or the Attorney-General to use and drive the Vehicle.

Sun admits that Prasad permitted Daumeke to drive the Vehicle in about the early afternoon of 27 July 2008.

(f) Sun is the insurer at risk for compulsory third party motor vehicle insurance effected by Prasad for the Vehicle pursuant to the Fiji Act.

Sun admits that it was at all relevant times an approved insurance company within the meaning of the Fiji Act and that, at the date of the accident, it was a party to the Policy;

(g) At the junction of the road on which the Vehicle was being driven by Daumeke and the road on which the plaintiff was travelling, there was a 'give way' sign requiring Daumeke to slow or stop to give way to the plaintiff. At about noon on 27 July 2008, the plaintiff approached the junction with Daumeke on his right. Daumeke did not slow down or stop at the junction and, as a consequence, despite the plaintiff attempting to slow down and avoid the Vehicle, his motor scooter collided with the Vehicle, striking it on the right hand side (the driver's side);

Sun admits that in about the early afternoon on the day of the accident, the Vehicle was being driven by Daumeke in the vicinity of the Nadi Airport in Fiji, but otherwise does not admit the allegations, including that the Vehicle that collided with the plaintiff was being driven by Daumeke at the time.

(h) As a result of the collision, the plaintiff was thrown from his motor scooter and landed on the road, causing him serious injury, including incomplete quadriplegia.

(i) The law to be applied in the determination of the negligence of Daumeke is the law of Fiji - which, pursuant to s 24 of the Supreme Court Act (CAP 13) is the common law of England. The law to be applied in the determination of the types and quantum of damages is the law of the State of Victoria or, alternatively, the law of Fiji - which, again, is governed by the common law of England.

Sun admits that the law to be applied in determining the negligence (if any) of Daumeke is the law of Fiji, and contends that the same law is applicable to the determination of the types and quantum of damages to be paid.

(j) If Daumeke was driving in the course of his duties as a police officer, or for a purpose related to the performance of those duties, the Commissioner and/or the Attorney-General is vicariously liable for his negligence.

(k) In the event that the Commissioner and/or the Attorney-General is not vicariously liable for the negligence of Daumeke, the plaintiff seeks to enforce any judgment obtained against Daumeke or Prasad against Sun, pursuant to the Policy effected by Prasad with Sun under the Fiji Act;

Sun denies liability to indemnify Daumeke or Prasad under the Policy, or that the plaintiff would be entitled to enforce against Sun any judgment obtained in the Proceeding against Daumeke or Prasad, or to obtain damages from Sun pursuant to the Fiji Act, on the grounds set out in paragraphs 32 to 36 of the defence, [which are summarised below at paragraph 7].

(l) On 8 October 2013, Sun, by letter from its Fiji solicitor, AK Lawyers, to the plaintiff's solicitor:

(i) Admitted that Sun was the compulsory third party insurer and would, ordinarily, be responsible to satisfy any judgment against the driver;

(ii) Stated that the Vehicle was allegedly driven by Daumeke and claimed that inquiries had revealed that Daumeke did not hold a licence to drive;

(iii) Claimed that the Land Transport Authority of Fiji had confirmed that Daumeke did not hold any licence until 10 December 2009;

(iv) Attached a letter from the Land Transport Authority to the General Manager of Sun dated 25 September 2013, stating that a search of records with respect to 'Amani Daumeke Takayawa' had revealed that there was 'no record of driving licence issued before 10/12/2009';

(v) Claimed that it was a condition of the Policy that the person driving holds a licence to drive the Vehicle; and

(vi) Stated that Sun will have no liability in the circumstances and will not provide an indemnity to Daumeke or satisfy any judgment in favour of the plaintiff.

Sun admits that AK Lawyers sent the letter of 8 October 2013, and its attachment, and otherwise denied the allegations. It refers to and repeats paragraphs 32 to 36 of its defence (see below). Further, Sun contended that there were other communications between AK Lawyers and the plaintiff's solicitors (Slater & Gordon), namely a letter dated 15 October 2013 from Slater & Gordon to AK Lawyers attaching a copy letter dated 6 July 2011 from the Fiji Police to Slater & Gordon and a letter from AK Lawyers to Slater & Gordon, which attached a copy of a letter dated 18 October 2013 from the Fiji Police to AK lawyers.[4]

(m) If Daumeke was not driving for or in connection with his employment as a police officer at the time of the accident, or if the Commissioner and/or the Attorney General is not vicariously liable for his negligence, then the plaintiff claims the damages sought against the Daumeke and/or Prasad pursuant to an indemnity from Sun pursuant to the Policy;

Sun denies liability to indemnify Daumeke or Prasad under the Policy, or that the plaintiff would be entitled to enforce against Sun any judgment obtained in the proceeding against Daumeke or Prasad, or to obtain damages from Sun pursuant to CAP 177, on the grounds set out in paragraphs 32 to 36 of the defence, which are summarised below at paragraph 7.

(i) The Commissioner and/or the Attorney-General is not vicariously liable to the plaintiff for the negligence of Daumeke;

(ii) The Sun Representations are true and correct (which is not admitted); and

(iii) Sun is not liable to indemnify Daumeke or Prasad under the Policy;

then the plaintiff claims that the accident was caused or contributed to by:

(iv) The negligence of Daumeke in driving without a valid licence;

(v) The negligence of the Commissioner and/or the Attorney-General (directly or vicariously) in causing and/or permitting or consenting to or authorising or failing to prevent Daumeke driving without a valid licence; and

(vi) The negligence of Prasad in authorising or permitting or consenting to or failing to prevent Daumeke driving the vehicle without a valid licence.

Sun refers to other parts of its pleading - particularly paragraphs 32-36 (see paragraph 7 below) - and otherwise does not plead to these allegations, as they raise no claim against it.

(o) As a consequence, Daumeke, the Commissioner and/or the Attorney-General and Prasad are jointly and severally liable to the plaintiff for the acts and omissions of each of the defendants in that each has caused or permitted or consented to or authorised or failed to prevent Daumeke from driving and thus caused or contributed to the accident.

Sun does not plead to these allegations as they raise no claim against it.

(p) Further, and in the alternative, if the Sun Representations are correct and the Commissioner and/or the Attorney-General are not liable for the negligence of Daumeke, the plaintiff suffered economic loss as a result of the negligence of the Commissioner and/or the Attorney-General and/or Prasad in causing, permitting, authorising, consenting to or failing to prevent Daumeke driving without a valid licence and contrary to the Policy.

Sun refers to other parts of its pleading - particularly paragraphs 32-36 (see paragraph 7 below) - and otherwise does not plead to these allegations, as they raise no claim against it.

(q) As a consequence of the negligence of the Commissioner and/or the Attorney-General and Prasad, the plaintiff suffered economic loss and damage.

Sun does not plead to these allegations as they raise no claim against it.

(r) The plaintiff claims damages, a declaration that Sun is liable to indemnify Daumeke and/or Prasad pursuant to the Policy and the Fiji Act, interest and costs.

7 Sun says to the whole of the claim made against it that it denies that it is liable to indemnify under the Policy or under the Fiji Act because Daumeke did not hold a driver's licence at the time and an exclusion clause in the Policy (clause 6) therefore applies to exclude liability of Sun. Specifically, Sun pleads as follows:

(a) By an agreement made on or about 13 November 2007, between it and Prasad, Sun agreed to provide insurance for third party liability in respect of the use of the Vehicle during the period 13 November 2007 to 8 November 2008 on the terms and subject to the conditions set out in the Policy.[5]

(b) It was a term of the Policy that the persons entitled to drive the Vehicle and insured under the Policy are Prasad and any person who is driving the vehicle on Prasad's order or with his permission, providing that the person driving holds a licence permitting him to drive a motor vehicle for every purpose for which the use of the vehicle is limited under the Policy or, at any time within the period of 30 days immediately prior to the time of driving, has held such a licence and is not disqualified from holding or obtaining such a licence (Clause 6).

(c) The Policy is governed by the laws of Fiji.

(d) Daumeke did not hold a licence permitting him to drive a motor vehicle on 27 July 2008, or at any time within the period of 30 days immediately prior to that date.

(i) Daumeke was not a person entitled to drive or insured under the Policy in respect of the use of the Vehicle on 27 July 2008;

(ii) Sun is not liable to indemnify Daumeke or Prasad pursuant to the Policy in respect of the plaintiff's claims against them; and

(iii) Further or alternatively, in the event that the plaintiff is entitled to and obtains judgment against Daumeke or Prasad as alleged, it is not a judgment in respect of a liability covered by the terms of the Policy, and the plaintiff is not entitled to enforce against Sun any such judgment or to obtain damages from Sun pursuant to the Fiji Act as alleged.

8 The application was supported by the affidavit of James Norman Tully, solicitor, sworn 2 April 2015. The following is a summary of his evidence so far as relevant.

9 Based on his experience, Mr Tully deposes that he expects that if the proceeding proceeds to trial on the issues as presently formulated in the pleadings, and the trial is defended (by Sun, either alone or with one or more of the other defendants), then the proceeding and trial will likely involve the following interlocutory steps and other preparations:

(a) Discovery by the plaintiff - including as to his educational and employment records before the collision, his employment and medical records since, and interrogation of the plaintiff in respect of liability;

(b) Provision of medical records and evidence to be given by the plaintiff's treating medical practitioners, pursuant to subpoenas issued to them;

(c) Production of records and evidence to be given by plaintiff's employer in Fiji, pursuant to subpoenas issued to the employer;

(d) For overseas witnesses (for example, witnesses to the collision and its aftermath, and the plaintiff's employer and treating doctors in Fiji), there will need to be applications for the issue of subpoenas outside of Australia and, possibly, applications to facilitate the obtaining of evidence overseas;

(e) Engagement of expert witness(es), to examine the scene of the collision in Fiji and to report as to observations and conditions;

(f) Engagement of expert witness(es) to medically examine the plaintiff and to report as to the treatment received, the current symptoms from the injuries sustained and the plaintiff's past and future care, equipment costs, household assistance and maintenance costs and household modifications;

(g) Engagement of expert witness(es) to report in relation to the plaintiff's claim for loss of earnings and loss of earning capacity in the aviation industry; and

(h) Engagement of expert witness(es) to report as to the relevant laws of Fiji, including in relation to determining liability and the level of compensation, so as to assist the Victorian Court in applying those laws of Fiji.

10 In connection with these pre-trial steps and preparations for trial, it would be necessary for Sun to engage senior and junior counsel. Mr Tully estimates that the costs of defending the claim up until trial to be in the region of $80,000 to $100,000 for Sun. He expects that the plaintiff's costs will be of a similar magnitude.

11 On present information, Mr Tully estimates that the trial may run for at least seven to 10 days. It would involve submissions made on behalf of the plaintiff and Sun, and evidence given by a number of witnesses and experts for the parties (with examination in chief, cross-examination and re-examination) as follows:

(a) The plaintiff as to liability and quantum issues;

(b) Other witnesses to the collision and its aftermath;

(c) Lay witnesses as to the plaintiff's aspirations at the date of the collision on his future direction in the aviation industry;

(d) Medical witnesses as to the treatment received by the plaintiff and his current symptoms and restrictions from the injuries sustained;

(e) Expert witnesses as to past and future care, past and future medical and like expenses, equipment costs, household assistance and maintenance costs and household modification;

(f) Lay and expert witnesses as to the plaintiff's claim for loss of earnings and loss of earning capacity in the aviation industry; and

(g) Expert witnesses as to the law in Fiji to determine liability and the level of compensation, and as to issues relating to the Policy.

12 Based on Mr Tully's experience, he deposes that he expects the daily cost of trial for Sun - including senior counsel, junior counsel, instructing lawyer, transcript and witness expenses - to be in the region of $20,000 per day. Based on a seven- to 10-day trial at that daily cost, Sun's costs over the duration of the trial will be between $140,000 to $200,000. The costs for the plaintiff are likely to be of a similar magnitude. As the trial will involve witnesses who reside in Fiji, it is likely that higher costs will be incurred, in excess of the daily cost referred to above, and that the trial will take longer than would be the case if it did not involve witnesses outside Australia. Accordingly, the estimate given is conservative, and likely to be exceeded.

13 If, however the trial is undefended (because Sun ceases to be a defendant and the other defendants do not appear at trial), then the plaintiff will not be put to the same level of preparation and proof as he would have been for a contested trial, and there will be no witnesses or experts for the defence. Indeed, the plaintiff may be the only person giving evidence, and there would be no cross-examination (or re-examination). The other evidence supporting his claim may be able to be given by tendering affidavits, expert reports and other documents. Based on Mr Tully's experience, he deposes that such a trial is unlikely to exceed two days. The steps leading to trial, and the costs and time involved in taking those steps, would also be considerably reduced in that event.

14 Sun filed a further affidavit of its solicitor, Mr Tully, on 23 June 2015, the day before the hearing. In it, he referred to the plaintiff's notice to produce sent under cover of his solicitor's letter of 6 May 2015, and Sun's solicitors response by letter dated 5 June 2015, with which it provided one document and claimed client legal privilege in respect of other documents responding (or arguably responding) to the notice. The affidavit then sets out a description of the documents the subject of the claim for privilege, which were said to be confidential copy documents provided to Sun by Prem's Private Investigation ('Prems'). Those documents include statements taken by Prems from Daumeke and Prasad. They also include letters between Prems and certain police and the Land Transport Authority.

15 Mr Tully then sets out the basis for the claim for privilege, which is done on information and belief, so as to resist production of the documents to the plaintiff's solicitors. The claim for privilege, it was agreed, could not be determined as a part of the application for the trial of preliminary questions. However, the affidavit of Mr Tully reveals that Prems has taken statements from Daumeke and Prasad and had communications with the Fijian Police and Land Transport Authority. This material, if the claim for privilege is not upheld, is clearly relevant to the questions for preliminary trial proposed by Sun.

16 The plaintiff relied upon the affidavits of Joanne Panagakis - lawyer, sworn 11 May 2015 - Timothy Joseph Jackson - lawyer, sworn 19 June 2015 - and Susan Accary - lawyer, sworn 23 June 2015. These affidavits either refer to the history of the proceeding and produce documents and correspondence, or simply produce correspondence passing between the solicitors for the parties, that reveal relevant facts and contentions. I refer to the relevant documents and correspondence above in the 'Background' section, as well as in detail in the next section and below, in the course of reciting and considering the arguments of the plaintiff and Sun.

17 There was a considerable volume of correspondence between the solicitors for the plaintiff and Sun, leading up to the joinder of Sun as a defendant and the issue of the summons for the separate trial of the questions. Some of the correspondence is relevant, and is relied upon by the plaintiff and Sun in the application. The significant matters are set out in the following paragraphs.

18 After Sun was served with the writ and statement of claim in lieu of service on Daumeke, pursuant to the order for substituted service made on 26 August 2013, AK Lawyers (Sun's solicitors in Fiji) responded, pointing out that, after making enquiries, Daumeke did not hold a licence to drive and that a condition of the Policy thus excluded Sun's liability. A specimen of the Policy wording was attached. Notice was also given that Sun would seek to set aside the order for substituted service (which has not occurred).

19 Amongst other responses, the plaintiff's solicitors requested a signed copy of the actual Policy, to which AK Lawyers responded that Sun does not retain hard copies of the original CTP policies it issues, and advised that the plaintiff should seek this from the owner/driver of the vehicle.

20 Sun first proposed the trial of preliminary questions in October 2014 and, in a letter of 13 November 2014, set out the questions substantially in the same form as those included in the summons. The plaintiff's solicitors responded that, to consider the proposal, further information was needed; in particular, how the determination of the factual question whether Daumeke held a driver's licence was envisaged to proceed given such a question requires the participation of Daumeke and Prasad.

21 To that request, the solicitors for Sun responded that the determination of the question would proceed in the same way as it would proceed at a trial of all the issues, and does not require the participation of Daumeke and Prasad, but at that time gave no indication of how it was to be proved. The plaintiff's solicitors then rejected the proposal for a preliminary trial of the questions put forward, saying that it is difficult to determine the issues without the participation of Daumeke and Prasad.

22 Later, after further correspondence, the plaintiff's solicitors - by letter dated 6 May 2015 - contended that the trial of preliminary questions was a matter that directly affected Daumeke and Prasad and whether they had any right of indemnity under the Policy, and it would not be appropriate to conduct a preliminary trial on the question without their participation.

23 The plaintiff's solicitors then suggested that a way to avoid the costs and delay involved in the trial of the preliminary questions was for Sun to advise the plaintiff's solicitors of any response provided by Daumeke or Prasad to the question of whether Daumeke was licenced to drive at the relevant time. A number of questions were then posed, including questions based on the knowledge that Sun had engaged investigators and had obtained a copy of the original signed Policy, which must have been from Prasad. The logic of this approach was, it was said, that if the plaintiff could be satisfied that Daumeke and Prasad freely admitted that Daumeke was unlicensed at the relevant time, being aware of the consequences to them of a denial of indemnity by Sun, then it is likely that the plaintiff would accept that fact without any need for a preliminary trial of that question. In this way, the provision of such information as Sun had on the question of whether Daumeke was licensed had the potential to narrow the issues and avoid unnecessary costs and delay.

24 The plaintiff's solicitors also requested - in the event that Sun did not wish to provide the information sought, or had not been in contact with Daumeke or Prasad - specific discovery of documents recording communications between Sun (or its investigators) and Daumeke, Prasad, the Fiji Police and Land Transport Authority, and requested particulars of the allegation in the defence that Daumeke did not hold a licence at the relevant time. Absent these documents and particulars, it was suggested that it was impossible to try the preliminary question fairly and expeditiously.

25 The solicitors for Sun responded to the notice to produce and request for further particulars by producing a letter from AK Lawyers to Daumeke dated 8 October 2013. That letter notified Daumeke of the service of the proceedings upon Sun in lieu of service upon Daumeke personally; that Sun declines to indemnify him under the Policy; and that Sun declines to provide indemnity to the plaintiff under the Fiji Act or to satisfy any judgment that he may obtain against Daumeke. The letter went on to advise Daumeke to take steps to defend himself. Sun also objected to providing further and better particulars. However, under cover of that objection, Sun produced a copy of a letter from the Fijian Land Transport Authority to Sun advising that there was no record of a driving licence issued to Daumeke before 10 December 2009. In the course of that letter, reference is made to a previous letter written to Prems dated 9 August 2011 on the same subject. Otherwise, Sun relied upon a claim for client legal privilege under ss 118 and 119 of the Evidence Act 2008 (Vic).

The Court may order that--

(a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated;

(b) different questions be tried at different times or places or by different modes of trial.

27 This rule should be read with r 47.05, which provides:

If the determination of any question in a proceeding and tried separately from the proceeding substantially disposes of the proceeding or renders the trial of the proceeding unnecessary, the Court may dismiss the proceeding or make such other order or give such judgment as it thinks fit.

28 The term 'question' is defined in r 1.13 of the Rules, unless the context or subject matter otherwise requires, as follows:

...means any question, issue or matter for determination by the Court, whether of fact or law or of fact and law, raised by the pleadings or otherwise at any stage of a proceeding by the Court, by any party or by any person not a party who has a sufficient interest.

29 However, as set out in Burns Philp & Co Ltd v Bhagat,[6] in r 47.04, 'question' has a more limited meaning, being a question that would, in the absence of an order under the rule, be determined as part of the trial of the proceeding. Usually, the sort of question with which the rule is concerned is raised on the pleadings, as it is in this case. A question not integral to the right to relief, or to the extent of that relief - such as a question as to the sufficiency of discovery of documents or of privilege arising during the examination of a witness at the trial - does not fall within r 47.04.[7]

30 In relation to the separate trial of a question of law, r 47.04 should also be read with r 13.02(2)(a), which provides that a party may by his pleading raise a point of law. If a point of law is raised in the pleadings, under r 47.04 the court may - on the application of any party - order that the point be tried separately.

31 Ordinarily, all issues of fact and law in a proceeding will be determined at the one time by the Court following a trial.[8] There are a great many decisions relating to the matters to be considered in the exercise of the discretion to order the separate trial of questions in a proceeding. Many have gathered together considerations relevant to the particular facts and issues in the particular proceeding. All recognise that much depends on the facts at hand. Nevertheless, there are principles, relevant matters and cautions identified that provide guidance in the exercise of the discretion. They are as follows:

(a) The discretion must be exercised with great caution, and only in a clear case;[9]

(b) An order for the determination of a separate question before trial is generally only appropriate where the determination of the question will be likely to end the litigation or substantially narrow the issues in dispute, or where there is a clear demarcation between that issue and the other issues in the case;[10]

(c) Where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated (ensuring that the terms used have clear meaning) and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, as agreed facts or as facts to be judicially determined;[11]

(d) The separate determination of the question should not be attempted where there is uncertainty inherent in the definition of the facts upon which the substantive question must be determined;[12]

(e) In cases where the relevant facts are assumed by one party to be correct for the purposes of the preliminary determination, it is only possible to determine a question of law, not one of mixed law and fact;[13]

(f) Care must be taken in utilising the procedure provided for in r 47.04 of the Rules to avoid the determination of issues not 'ripe' for separate and preliminary determination - for example, where it is simply one of two or more alternative ways in which an applicant frames its case, and determination of the issue would leave significant other issues unresolved;[14]

(g) The advantages of trying separate questions for one party may unfairly disadvantage another party, including because the questions will be determined without the benefit of all the evidence relevant to the proceeding;[15]

(h) Whether a question should be determined separately involves a two-stage process - the first stage requires that the questions for determination be identified clearly and with precision, while the second stage is the actual determination of the question - and the two stages should not be run together;[16]

(i) If the questions involve issues of fact that need to be determined or proved, and the Court cannot see, on the basis of the material presently before it, that the facts can be properly determined, it is inappropriate to make the order;[17]

(j) In some cases, perhaps most cases, it will be inappropriate to order the trial of preliminary questions before discovery of documents relevant to the questions, and before resolving grounds restricting production and inspection of them, such as client legal privilege or public interest immunity;[18]

(k) Factors that tend to support the making of an order include that the separate determination of the question may:[19]

(i) Contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or

(ii) Contribute to the settlement of the litigation; and

(l) Factors that tell against the making of an order include that the separate determination of the question may:[20]

(i) Give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial;

(ii) Result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding - which will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or

(iii) Prolong rather than shorten the litigation.

32 In Tepko Pty Ltd v Water Board,[21] Kirby and Callinan JJ commented on the potential pitfalls associated with preliminary trials of separate issues. That case was one of a claim in negligence sounding in pure economic loss, and the comments need to be viewed with that in mind. Nevertheless, they made the following valuable general points:

(a) The attractions of trials of issues, rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have needed to make full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap;

(b) A party whose whole case is knocked out on a trial of a preliminary or single issue may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's (rather than the parties') interests;

(c) There is an additional potential for further appeals, to which the course of the trial on separate issues may give rise; and

(d) Single-issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question.[22]

33 By s 8 of the CPA, the court must seek to give effect to the overarching purpose of that Act in the exercise of any of its powers or in the interpretation of those powers. This is so whether those powers are part of the Court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction.

34 Under s 7, the overarching purpose of the CPA and of the Rules is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9(1) requires that in making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to a number of identified objects. Section 9(2) provides that the court may have regard to certain other matters. It is not necessary to set out the objects and matters identified in ss 9(1) and (2) for reasons that will emerge later. Suffice it to say, Dixon J observed in Deutsch v Deutsch[23] that the considerations set out in s 9 are, by and large, matters that are ordinarily considered by a court in the exercise of the discretions enlivened by the application.

35 In Wadley v Ron Finemore Bulk Haulage Pty Ltd,[24] the question raised for separate and preliminary determination, before commencement of a jury trial, was whether under s 80 of the Accident Compensation Act 1985 (Vic) the plaintiff was or was not entitled to compensation under that Act. The question was squarely raised in the defendant's defence. It turned on whether the plaintiff 'worker' was usually based for the purposes of his employment in Victoria. If he was, the Act applied. If not, the Act did not apply. The defendant conceded that if it failed in its defence that the Act did not apply, it would not contend that the law of New South Wales was the law of the tort. The plaintiff's position was that the law of Victoria should be the law applied at trial.[25] It was common ground that, come what may, a trial would occur, and at the time of the decision in question that trial was to be a jury trial. His Honour said:

Although some old cases indicate that sparing use should be made of r 47.04, those decisions pre-date the Civil Procedure Act (Vic) 2010, which governs a claim such as this.

36 Nevertheless, J Forrest J went on to rely on the observations of Brooking J in the most famous of those cases in Victoria - Jacobson - in relation to the judge's duty to see that the crucial issues are tried as expeditiously and inexpensively as possible, and that r 47.04 'provides a useful means to that end, and a means of combating the gargantuan trial, the modern behemoth now straining to breaking point the fabric of both civil and criminal justice'.[26] J Forrest J also referred to Brooking J's observation in that case of the 'need for a degree of innovation and flexibility if courts are to meet the legitimate expectations of litigants that come before it, particularly in long cases'.[27]

37 It was an important element of the decision of J Forrest J in Wadley that the point was discrete and required limited evidence relating to Mr Wadley's place of employment and his duties. Moreover, in that case, his Honour said that both parties should know precisely what law is to be applied to Mr Wadley's claim prior to the trial commencing. That was a powerful consideration in favour of the trial of the separate question in that case. It was also important to clear up what law applied if the defendant's argument concerning s 80 was accepted, and its impact on Mr Wadley's claim.

38 Sun submits that the separate determination of the questions it has stated will finally determine the issue of whether Sun is liable to indemnify any parties under the Policy. It will do so because the determination of those questions address the matters relied upon by Sun in its defence and other bases of its denial of liability.

39 The questions involve a 'discreet and limited matter', which is 'quite ripe' for preliminary determination. Furthermore, there is no overlap with the complex issues of fact and law that would be involved in a trial as to liability and negligence for a road accident that occurred in Fiji seven years ago.

40 Mr Tully's affidavit of 2 April 2015, describes the considerable savings (in trial length and legal costs) if the separate questions are determined in Sun's favour and the trial proceeds undefended against the other defendants. Sun submits that it is likely that the trial would be undefended in that event, because none of the other defendants have filed an appearance and the plaintiff has entered default judgment against each of them.

41 If the separate questions are determined against Sun - and it is, therefore, liable to indemnify either Daumeke or Prasad - it could then defend the claims on behalf of the insured. The proceeding would then go to trial with clarity as to the fundamental matter of insurance.

42 These factors support the making of an order under r 47.04 in accordance with well-established principles and consistent with the requirement to give effect to the overarching purpose in ss 7-9 of the CPA. Mr J S Graham, of counsel, who appeared for Sun, submits that the passing of the CPA has affected the approach of the 'old cases' that sparing use should be made of r 47.04, because those decisions pre-date the CPA. This submission is based on the decision of J Forrest J in Wadley.[28]

43 As to the evidence, Sun submits that whether or not Daumeke held a valid licence or was permitted to drive in Fiji at the relevant time will be determined on the evidence led by the parties who appear and participate at the preliminary hearing, which may or may not involve Daumeke and Prasad. Moreover, it is not necessary for Daumeke and Prasad to participate in the determination of the questions. Sun intends to tender business records as to the licence position and an expert report as to the Fijian legal principles relevant to the construction of the Policy and the relevant legislation.

44 For these reasons, the most just and efficient way to deal with the matter is for appropriate orders to be made for separate determination of Sun's liability to indemnify, before the parties embark on a lengthy and costly trial process.

45 Mr John Gordon, of counsel, who appeared for the plaintiff, submits that it is incumbent upon Sun to demonstrate that the adoption of the procedure under r 47.04 of the Rules would enable the final determination of all facts relevant to the questions. He refers to extracts from the judgment of Brooking J in Jacobson,[29] in which his Honour stated the following propositions:

(a) At the first stage - that is, when considering whether a preliminary question should be determined - the judge should ensure that any facts to which regard may be had in answering the question can be precisely identified;[30]

(b) The second stage - that is, who is to succeed on the preliminary question on the merits - can only be satisfactorily argued once it had been determined, as a result of agreement or judicial determination, what the preliminary question is and by reference to precisely what facts it is to be answered;[31]

(c) There is a need for precision in the statement both of the question to be decided and of the facts on which it is to be decided;[32] and

(d) Care must be taken to ensure that all facts that are on any fairly arguable view relevant to the determination of the question are ascertainable as a result of the order for the preliminary determination - as facts assumed to be correct for those purposes, as facts that both sides accept as correct, or as facts that are to be judicially determined - as a failure to do this (and, in particular, failure to perceive that the facts alleged in a pleading are some only of the facts relevant to the determination of the preliminary question) may make the order for preliminary determination unfruitful.[33]

46 Sun bears the onus of demonstrating that any contested fact is determinable to the applicable standard. In this case, because the allegation made by Sun is that a police officer was engaged in the unlawful activity of driving without a valid licence, the standard is on the balance of probabilities, but requires a 'comfortable satisfaction' in accordance with Brigginshaw v Brigginshaw.[34]

47 Moreover, because Daumeke was a police officer, it might be presumed that he had some valid licence or permit to drive the motor vehicle. The plaintiff submits that, at the very least, the unlikelihood of him being unlicensed, coupled with the seriousness of the allegation and the consequences to the plaintiff (and to Daumeke and Prasad), mandates that the Court should be satisfied on the Brigginshaw standard.

48 The question, then, is how the fact of Daumeke being unlicensed is to be established. Sun proposes to advance evidence from the Fiji Land Transport Authority, which the plaintiff contends is hearsay and amounts to unsubstantiated assertions. That evidence, if admissible, is itself open to serious question. It apparently comprises information that there is no record that the particular Fiji Land Transport Authority had issued a licence to a person called Amani Daumeke Takayawa. Sun's solicitors assert that that is the same person as Daumeke.[35] Moreover, the evidence of the Land Transport Authority, if admissible, can only support the conclusion that there is no record that a licence had been issued to 'Amani Daumeke Takayawa' at the relevant time. The plaintiff submits that this is an unsatisfactory basis for the determination of the central question at the preliminary trial, affecting - as it does - the rights of the plaintiff, and of Daumeke and Prasad, to indemnity under the Policy.

49 The ascertainment of the facts necessary for the determination of the preliminary question will ultimately depend upon the evidence of the people concerned, namely Daumeke and Prasad. The plaintiff contends that Sun has had investigations undertaken that should have revealed what Daumeke or Prasad have said was the position in relation to whether Daumeke was licensed or permitted to drive in Fiji. In this connection, further and better particulars of the allegation in the defence that Daumeke held no licence, as well as specific discovery of documents identified that would contain information in relation to it, was sought. Sun, however, has claimed privilege over all but one document, although it has not provided an affidavit of discovery that contains a listing of the documents over which privilege is claimed as required by the Rules.[36] The plaintiff seeks the provision of such an affidavit and, in addition, proposes to deliver interrogatories for the examination of Sun as to whether Prasad or Daumeke have made any admissions or denials in relation to the critical question.

50 Thus, the plaintiff argues that the following issues arise in relation to the determination of the critical fact of whether or not Daumeke was licensed or permitted to drive in Fiji at a preliminary hearing:

(a) Sun relies on hearsay and assertions in unproven documents;

(b) There will be no statement, necessarily, from Daumeke or Prasad;

(c) There is no basis for ensuring that the evidence of either Daumeke or Prasad will be available at the hearing;

(d) There will be no evidence that either Daumeke or Prasad has even been advised of the proposed hearing or its consequences to their rights;

(e) Sun has refused to provide documents evidencing the results of its investigations into the critical question;

(f) Sun has claimed privilege over documents that may resolve or bear upon the critical question, but without there being any affidavit of documents sworn; and

(g) Sun has refused to provide further particulars of its defence.

51 In the light of these matters, the plaintiff seeks dismissal of the application under r 47.04 of the Rules, with costs.

52 The questions proposed, taken as a whole, involve mixed questions of law and fact. The first paragraph of the proposed questions ('first question') is:

Did the first defendant hold a licence permitting him to drive a motor vehicle in Fiji on 27 July 2008 or at any time within the period of 30 days immediately prior?

53 The first question seems to be one of pure fact. The wording of the question is explained by the wording of paragraph 6 of the Policy referred to in the pleadings. The Policy is in evidence,[37] and paragraph 6 provides:

Persons or classes of persons entitled to drive and insured under this policy

(a) The Owner, and

(b) Any person who is driving on the Owner's order or with his permission;

Provided that the person driving holds a licence permitting him to drive a motor vehicle for every purpose for which the use of the above motor vehicle is limited under paragraph 5 above or at any time within the period of 30 days immediately prior to the time of driving has held such a licence and is not disqualified for [sic] holding or obtaining such a licence.

54 The reference in the Policy to 'every purpose for which the use of the above motor vehicle is limited under paragraph 5 above' refers to the following paragraph in the Policy:

Limitations as to use

Premium has been paid for [sic] only for the use of the motor vehicle for the purposes set out in item No. [unclear] of the schedule on the back hereof, provided however that a premium paid for the use of the motor vehicle for the purpose set out in item No. 2, 3, 4, 5 or 10 of the schedule shall also cover use of the motor vehicle for social domestic or pleasure purposes, or for the Owner's business within the limits set out in item No. 1(b) of the schedule, or, in the case of a hire car or a rental car, for the hire's [sic] business. The motor vehicle must not be used for any other purpose unless the policy is endorsed and extra premium (if any) paid.

55 The intent of the first two parts of the second paragraph of the proposed questions is to lead on from a negative answer to the first question to a determination that Daumeke and Prasad are not entitled to - as the driver and owner, respectively - because Daumeke was unlicensed at the relevant time. The third part of the second paragraph of the proposed questions seeks to establish, from the conclusion that neither Daumeke nor Prasad are entitled to indemnity, that the plaintiff cannot enforce any judgment obtained against them against Sun.

56 The first part of the second paragraph of the questions ('the second question') is (in compressed form):

Was the first defendant a person entitled to drive the Vehicle on 27 July 2008, and was he insured, within the meaning of the Policy?

57 As I understand the question, it is intended only to involve a question of law, dependant on whether Daumeke was the holder of a licence to drive a motor vehicle at the relevant times. In strictness, it involves both a question of fact and a question of law. The question of fact is whether Daumeke was 'entitled to drive the Vehicle on 27 July 2008'. That arises because of the wording of paragraph 6 of the Policy, in which the indemnity to the driver is conditional. It depends on whether Daumeke was driving 'on the Owner's order or with his permission'. The question proceeds on the basis of an admission made by Sun in its defence that Prasad permitted Daumeke 'to drive the Vehicle in about the early afternoon of 27 July 2008'. However, this somewhat elliptical admission, when combined with the non-admission that Daumeke was driving at the time of the collision, leaves the Court in doubt as to whether Sun admits essential facts for the determination of the questions. That is, whether at the time of the collision Daumeke was the driver of the Vehicle, and was doing so with the permission of Prasad.

58 The second part of the second paragraph of the proposed questions ('the third question') is:

Is Sun liable to indemnify the first and/or fourth defendants under the Policy in respect of the plaintiff's claims against them in this proceeding?

59 This question proceeds on the assumption that the answer to the first question is 'no' and the answer to the two parts of the second question is 'yes' and 'no'. It is a pure question of law on the basis of the facts previously established.

60 The third part of the second paragraph of the proposed questions ('the fourth question') is:

Is the plaintiff entitled to enforce against Sun any judgment he obtains against the first and/or fourth defendant in this proceeding, or to obtain damages from Sun pursuant to the Motor Vehicles (Third Party Insurance) Act which comprises chapter 177 of the Laws of Fiji 1985 revised edition or otherwise?

61 This arises because of the terms of the Fiji Act. The particular section that is relevant is s 11(1) which provides:

If, after a certificate of insurance has been delivered under the provisions of sub-section (4) of section 6 to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under the provisions of paragraph (b) of sub-section (1) of section 6, being a liability covered by the terms of the policy, is obtained against any person insured by the policy, then, notwithstanding that the insurance company may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurance company shall, subject to the provisions of this section, pay to the persons entitled to the benefit of such judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable by virtue of any written law in respect of interest on that sum.

62 It can be seen that this provision enables recovery directly against the insurer where a judgment has been obtained in respect of which the Policy provides indemnity. The question feeds on the appropriate answers to the earlier questions such that, if indemnity is not available to Daumeke or Prasad under the Policy, there will be no right of recovery directly from Sun.

63 The first matter to be considered is whether the first question is precisely formulated and clearly defines the relevant questions of fact necessary for the succeeding questions, which are mostly questions of law. Because the first question raises questions of fact, it is necessary to consider whether it describes only the facts that, on any fairly arguable view, are relevant to the determination of the succeeding questions, and whether those facts are readily ascertainable.

64 It is common ground between the plaintiff and Sun that, if there is to be an order for hearing and determination of the preliminary questions, the facts identified in the first question are to be judicially determined. There is no agreement as to those facts. They cannot be assumed, as that would give rise to no particular advantage flowing from the preliminary trial, unlike the questions of fact considered by J Forrest J in Wadley.

65 The analysis of the pleadings referred to above reveals that the first question would need to proceed upon a number of assumed facts, and also involve the judicial determination of facts additional to those identified. The assumed facts include, without being comprehensive, that the Vehicle that collided with the plaintiff was being driven by Daumeke at the time of the collision. That is because, of course, Sun's defence does not admit that allegation. The additional facts are:

(a) The identity of the person driving the Vehicle, 'Amani Daumeke', and the person apparently identified by the Land Traffic Authority as 'Amani Daumeke Takayawa';

(b) Whether Daumeke was at the relevant time disqualified from holding or obtaining a licence permitting him to drive a motor vehicle; and

(c) Whether the Vehicle was being used for a purpose for which the premium was paid.

66 These additional facts are anterior to the question of whether Daumeke held 'a licence permitting him to drive a motor vehicle in Fiji on 27 July 2008' or held such a licence 'at any time within the period of 30 days immediately prior'. However, in relation to these additional facts, on any fairly arguable view, it is only the identity of the driver that is critical. Because Sun has not raised the second or third matters identified above, it may be safely assumed that Daumeke was not disqualified and that the Vehicle was being used for a proper purpose. Nevertheless, for the questions to be tried, they are necessary assumptions and should be expressly stated as assumed facts.

67 None of these additional or assumed facts were identified by the parties in their submissions - or by the Court in the course of argument - as necessary to be determined. Nevertheless, the authorities to which I have referred, the pleadings and the terms of the Policy point to the need to deal with them if there is to be an order for a preliminary trial of the questions.

Factors in favour of the Preliminary Trial of the Questions

68 There is a logical demarcation between the claims against Sun based on its liability to indemnify Daumeke and Prasad, and the claims against Daumeke, Prasad, the Commissioner and the Attorney-General. Clearly, if the questions are determined in Sun's favour, that will end the litigation against Sun, and thus substantially limit the issues in a trial of the claims against the other defendants, and the assessments of damages if that is the ultimate outcome. The determination of the questions addresses the pleaded defence relied upon by Sun, which is the basis of its denial of liability under the Policy.

69 The evidence given by Mr Tully as to the savings to be had as a result of the proposed trial of the preliminary questions is undisputed, and shows considerable financial and time savings to both the plaintiff and Sun. There is a prospect of the trial of the preliminary questions contributing to the settlement of the proceeding only if the questions are answered unfavourably to Sun. Thus, in this case, that is not a factor in favour of the order sought.

Factors against the Preliminary Trial of the Questions

70 The critical factors, it seems to me, that point against an order for the trial of the preliminary questions are as follows.

At a glance

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Judgment (244 paragraphs)

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Legislation Cited (24)

Cases Cited (6)