Sainsbury v Honourable Judge Salvatore Paul Vasta

1. The parties are to confer and agree, if possible, on appropriate case management orders for the progress of the matter, those orders to be conveyed to my associate at an appropriate time. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript)

WIGNEY J: 1 The applicant in this matter, Mr Glen Sainsbury, has commenced a proceeding in this Court claiming damages against a judge of the Federal Circuit Court of Australia, Judge Salvatore Vasta, the Commonwealth of Australia and the State of Queensland. The essence of Mr Sainsbury's claim is that he was falsely imprisoned following, or as a result of, an order made by Judge Vasta which, it is contended, was beyond his Honour's power and was made without lawful justification. Each of the respondents has filed a defence to the proceeding. 2 The present controversy arises because Judge Vasta has applied for an order the effect of which would be that the question of liability would be heard and determined separately and before any hearing in relation to the quantification of damages. The Commonwealth supported the application by Judge Vasta. The position taken by the State of Queensland was ultimately fairly neutral. This issue was first raised at an earlier case management hearing, though no interlocutory application has been filed. Nor has any evidence been filed in support of the application. 3 The main basis for the application was and is said to be, in general terms, that the question of liability in the matter would hinge essentially on questions of law, in particular the law concerning judicial immunity and, perhaps to a lesser extent, questions of law concerning the authority pursuant to which officers of the Commonwealth and the State of Queensland detained Mr Sainsbury. It was suggested that the facts in relation to liability would be largely agreed or uncontested. In contrast, it was contended that the quantification of damages, should that issue arise, would most likely require extensive and potentially contested expert opinion evidence, including evidence from a psychiatrist, an occupational physician and a forensic accountant. It was submitted that in those circumstances the determination of liability separately and in advance of the question of damages would be just, efficient, expeditious and more economical than a hearing which involved the determination of all issues. 4 Mr Sainsbury opposed the making of an order that the question of liability be determined separately. He submitted, in essence, that the proceeding could be determined expeditiously and economically in any event and that there was at least a risk of overlapping evidence and issues if the questions of liability and damages were determined separately. Mr Sainsbury also submitted that there was no real or appreciable reason or justification to depart from the ordinary course of determining all issues together. 5 After the issue was first raised at the case management hearing on 5 May 2021, the parties were directed to file a statement of agreed facts and lists of the witnesses who would be called in respect of liability and quantum respectively. A detailed statement of agreed facts was subsequently filed. 6 As for the witness lists, both Judge Vasta and the Commonwealth indicated that they would call no witnesses at a hearing which related to liability alone. Judge Vasta indicated, however, that if there was a hearing of liability and damages, he would only call expert witnesses. The Commonwealth indicated that if there was a hearing in relation to both liability and damages, it would also call a security officer who was retained by the Commonwealth and a security expert in relation to the issue of damages. The State of Queensland's ultimate position was that it would call no witnesses at a trial of liability alone, but would call upwards of 38 witnesses at a trial in respect of liability and quantum. Those witnesses were, in general terms, the police and other officers who were responsible for detaining Mr Sainsbury, or dealing with him as a consequence of his detention. 7 The power to make an order for the separate determination of liability is to be found in r 30.01 of the Federal Court Rules 2011 (Cth). That rule simply provides that a party may apply to the court for an order that a question arising in the proceeding be heard separately from any other questions. There is a long line of authority which suggests that in the ordinary course all issues of fact and law should be determined at the one time and that the Court should generally exercise the power in r 30.01 of the Rules cautiously and sparingly: see, for example, Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 240 FCR 276; [1999] FCA 718 at [8]-[9]; Energy Australia v Australian Energy Limited [2001] FCA 1049. 8 The issue ultimately reduces to the question whether it is just and convenient for an order to be made. In considering whether certain issues should be tried separately and in applying r 30.01 of the Rules, the Court must consider the overarching purpose of civil practice and procedure provisions according to s 37M of the Federal Court of Australia Act 1976 (Cth). The parties seeking the order must generally point to some clear and appreciable benefit to be gained from splitting the case and hearing and determining an issue or issues separately, including that it would facilitate the just resolution of the dispute as quickly, inexpensively and efficiently as possible. 9 Having heard the comprehensive and helpful submissions by each of the parties I am not persuaded that an order should be made for the separate determination of the question of liability in the particular circumstances of this case. That is so for essentially five reasons. 10 First, the action for false imprisonment is an action in tort. It is not always possible to separate questions of liability from questions of damages in actions in tort: see for example Dovuro Pty Limited v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [142]. That is because the suffering of some damage is generally an element of the tort. It is true that the tort in question in Dovuro was negligence, not false imprisonment. It is not difficult to see how issues relating to liability and damages are likely to be intertwined in a case concerning the tort of negligence. In the case of the tort of false imprisonment, however, a finding that the applicant was detained would generally be sufficient, without more, to make out the element of damage insofar as liability is concerned. Nevertheless, there remains at least some risk in such a case that the questions of liability and damages may be intertwined given the nature of the cause of action. 11 Second, while many, if not most, of the facts relating to liability are agreed, there remains some potential for disagreement or controversy in relation to the facts that may be relevant to liability. While Judge Vasta and the Commonwealth both indicated that they would not call any witnesses at a hearing which was limited to the question of liability, Mr Sainsbury's position was that it was at least possible that he would want to give evidence which related to liability alone. He contended that there may be some evidence that he could give which was relevant to liability. That evidence was said to include evidence of what he saw and heard during the relevant proceeding before Judge Vasta. That potential evidence was not covered by the statement of agreed facts and would not necessarily be reflected or recorded in the transcript. Mr Sainsbury's evidence in that respect was said to be potentially relevant to his case that Judge Vasta acted with an improper purpose or that he was biased because he had pre-judged the case. For their part, Judge Vasta and the Commonwealth disputed or queried whether it could be said that any such evidence from Mr Sainsbury would be relevant given the pleaded facts, the terms of the statement of agreed facts and the law concerning judicial immunity. 12 It may turn out to be the case that there is little or no scope for Mr Sainsbury to give material evidence in relation to liability. I am, however, at this point at least, in no real position to reach a final or concluded view in relation to that issue. The proceeding is at an early stage. Orders have not even been made for the filing or service of affidavits or statements from the witnesses. Mr Sainsbury should at least be given the opportunity to give such evidence if he so wishes. The relevance and admissibility of such evidence can only be determined at the trial. 13 The position is also not so straightforward when it comes to the lay witnesses proposed to be called by the State of Queensland and, to a lesser extent, the Commonwealth. Mr Sainsbury submitted that he should be given the opportunity to cross-examine those witnesses in relation to issues that may potentially bear on the question of liability. That questioning, again, was said to be potentially relevant to Mr Sainsbury's case that Judge Vasta was motivated by an improper purpose and had pre-judged the issues in his case. The point is that Mr Sainsbury would not have the opportunity to cross-examine those witnesses in respect of matters potentially going to liability if there was a separate trial in relation to liability alone. That is because the State of Queensland and the Commonwealth would not call those witnesses at such a trial. Judge Vasta and the Commonwealth, again, questioned whether any factual issues addressed in the cross-examination of the witnesses proposed to be called by the State of Queensland and the Commonwealth could be relevant to the question of liability. For the same reasons as given in the context of Mr Sainsbury's evidence, however, that is an issue that cannot be determined at this early stage. It can only be determined at trial. 14 Third, and related to the second point, there is, in my view, at least some potential for overlapping evidence and the need to call some witnesses twice if the questions of liability and damages are to be heard and determined separately. In particular, as I have already noted, it is clear that Mr Sainsbury may need to be called at both hearings if the issues are to be separated. That would plainly be unsatisfactory. 15 Fourth, in my view, the separate hearing of the questions of liability and quantum could result in a significant delay in the finalisation of the proceeding by reason of a likely bifurcated appeal process. All the parties agreed that an appeal on the question of liability, in particular concerning questions concerning the scope and operation of the principles relating to judicial immunity in a case such as this, was likely, if not inevitable. If the question of liability was determined separately, the result would be an appeal to the Full Court, and perhaps even an application for special leave to appeal to the High Court, which would occur at the conclusion of the separate hearing in relation to liability. If the outcome of those appeals were that the respondents, or some of them, were held to be liable, the question of the quantum of damages would then be separately determined. There would then be scope for further appeals in respect of the Court's determination of that issue. The fragmentation and delays that would result from the bifurcated appeal process would be unsatisfactory, particularly from Mr Sainsbury's perspective. 16 Fifth, I am not, in any event, persuaded that there would necessarily be any substantial benefit in determining the issues of liability and damages separately. That really depends on the nature and extent of the expert evidence likely to be called in respect of damages and the nature and extent of the lay evidence likely to be called by the State of Queensland. 17 I am unable, at this early stage of the proceeding, to form a concluded view in respect of the nature and extent of that evidence. It may ultimately be the case that the evidence of the witnesses called by the State of Queensland would not be contested, or at least significantly contested. It may turn out to be the case that the affidavits of those witnesses, or a significant proportion of them, are read without objection and that the witnesses are not subjected to any, or any significant, cross-examination. The result would be the length of the hearing would not be significantly increased by that evidence. Even the expert evidence foreshadowed by the parties may turn out to be not particularly contentious or time consuming, particularly if, as may be anticipated, orders are made in due course for expert conclaves and joint reports. 18 In those circumstances, I am not at this stage persuaded that there are likely to be any significant time or costs savings if the questions of liability and damages are split as proposed by Judge Vasta and the Commonwealth. CONCLUSION AND DISPOSITION 19 In the ordinary course, issues of liability and damages should be tried together: see Commissioner of Taxation v Hii (2014) 99 ATR 579; [2014] FCAFC 147 at [2], citing Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142. 20 The experience of this and other courts is that, in many cases, despite what may initially be considered to be the situation by the parties and the court, unforeseen problems and issues can arise if the issues in a proceeding are separated. Moreover, the anticipated savings of time and costs from the separation of issues often turns out to be illusory. It is no doubt for that reason that a conservative and cautious approach is generally taken to such applications. Good reasons must be shown before the ordinary course is departed from. I am ultimately not persuaded that a good reason has been demonstrated in this case. 21 It follows that I decline to make the orders sought by Judge Vasta and the Commonwealth for the question of liability to be determined separately to and in advance of the question of damages. The order I propose to make is that the parties confer and agree on appropriate case management orders, so that the matter can be listed for trial. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.