Supreme Court of Tasmania|2014-10-24

The application is made under r 559 of the Supreme Court Rules 2000 which relevantly provides as follows:

"(1) In any proceeding and at any time, the Court or a judge may order that -

(2) On an application for an order under subrule (1), the Court or judge is to have regard to -

(3) If any issue which has been ordered to be tried or any question or issue of fact which has been ordered to be determined in any manner has been determined, the Court or a judge may give any judgment as is appropriate ..."

As to the matters which may have a bearing on whether or not questions should be tried separately, Einstein J said in Idoport Pty Ltd v National Australia Bank (2000) NSWSC 1215 at [7]:

"7 Without examining specific cases in relation to the power conferred on the Court in Part 31, Rule 2, I proceed on the basis of the following principles.

(1) The power of the Court to order the separate determination of an issue is a discretionary power which must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 699 at 670 per Young CJ and Jenkinson J.

(2) In exercising the power under Part 31, Rule 2, the Court is now enjoined to give effect to the overriding purpose of the Supreme Court Rules; namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings and cannot be stated in a more confined way: Part 1, Rule 3 (1), (2) Supreme Court Rules.

(3) The Court begins with the proposition that it is ordinarily appropriate that all issues in a proceeding should be disposed of at the one time: Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 per Giles CJ in Comm D, Hadid v Australis Media Ltd (unreported, Supreme Court of NSW, 29 March 1996 per Rolfe J). Accordingly, it is for the party who wishes to have a question separately determined to show that it is desirable for that to occur.

(4) Without being exhaustive, the separate determination of an issue may prove to be an appropriate procedure in at least the following sets of circumstances:

(a) where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy_: CBS Productions Pty Ltd v O'Neil_ [1985] 1 NSWLR 601 at 606 per Kirby P, Dunstan v Simmie & Co Pty Ltd (supra, at 671 per Young CJ and Jenkinson J);

(b) where the resolution of that separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation: Tallglen v Pay TV Holdings (supra, at 141 - 142 per Giles CJ in Comm D);

(c) where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of witnesses: CBS Productions Pty Ltd v O'Neil (supra, at 606 per Kirby P), Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Rajski v Carson (1988) 15 NSWLR 84 at 88 per Kirby P and Hope JA.

(5) Conversely, the separate determination of an issue will rarely be an appropriate procedure where:

(a) there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation: Law Society of NSW v Bruce (unreported, Supreme Court of NSW, 23 April 1996, per Rolfe J), Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J).

(b) where there is a commonality of witnesses and issues of credit as between the separate issue and other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witness, thus possibly precluding that same judicial officer from again dealing with the matters going to the credit of the common witness in accordance with the decision of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 441: Story of Sydney Pty Ltd v Ling (unreported, Supreme Court of NSW 15 November 1994, per Rolfe J), Century Medical v THLD [2000] NSWSC 5; (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J).

(c) there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings: Story of Sydney Pty Ltd v Ling (supra), Century Medical v THLD (supra).

(6) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Parramatta Stadium Trust v Civil and Civic Pty Ltd (supra), Century Medical v THLD (supra)."

Counsel for the HEC submitted:
1. If the question is resolved in favour of the HEC, the HEC will be entitled to judgment against the plaintiff and against JMG in the contribution proceedings, with the result that costs will be saved and the chances of a negotiated settlement between the plaintiff and JMG increased.
2. There is a clear line of demarcation between the question and the other issues in dispute.
3. The question will not be resolved on findings as to the credit of the various witnesses and, in any event, there is unlikely to be a commonality of witnesses giving evidence on the question and witnesses giving evidence on the other issues in dispute.
4. The question can be tried without delay.
5. Resolution of the question is unlikely to result in an appeal to the Full Court.
Counsel for the plaintiff took issue with points 2, 4 and 5.
Resolution of the separate question is likely to involve extensive evidence covering matters such as:
- The extent and manner of performance (contractors or HEC's own workforce?) of the operations of the HEC in building infrastructure as compared to the extent and manner of performance of the other operations of the HEC.
- The extent of the HEC's involvement in the management of the construction of the wood stave pipeline, if any, going beyond the role of an HEC employee acting as contract superintendent under the design and construct contract between the HEC and Hazell Bros.
- The interrelation between heritage work, such as the reconstruction of the wood stave pipeline, and other infrastructure work in the recommissioning of the Lake Margaret Power Station.
- The exercise of control and supervision of the plaintiff in the performance of his work on the reconstruction of the wood stave pipeline.
The starting point is that it is ordinarily appropriate that all issues in a proceeding should be disposed of at the one time.
The resolution of the separate question will not resolve the dispute between the plaintiff and the HEC if the question is decided against the HEC.
There is a prospect that evidence as to the separate question will be relevant to the question of the responsibility (if any) of either or both of the defendants for the plaintiff's injuries.
There is a prospect that resolution of the separate question will result in an appeal, creating a multiplicity of proceedings.
There is no evidence that the separate question can be tried without delay.
The trial of the separate question might involve more extensive evidence than the trial of all other disputed issues.
It is far from clear that the trial of the separate issue will achieve the overarching case management purpose of resolving the dispute justly and efficiently. As to efficiency, the trial of the separate question might be counter-productive to the overarching purpose.
In the result, I am not persuaded that there should be a separate trial of the question.
The applications for summary judgment and the application for the trial of the separate question are dismissed.

Rehabilitation and Compensation Act 1988

Strang v Johnston, McGee and Gandy Pty Ltd [2014] TASSC 56 (24 October 2014)

Moir v Schrader [1936] HCA 69; (1936) 56 CLR 310, applied.

Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, applied.

Idoport Pty Ltd v National Australia Bank [2000] NSWSC 1215, applied.

These examples show that it is not enough that work is necessary to the principal's operations if such necessary work is characterised as incidental to or in preparation for the work actually undertaken by the principal.
It is a question of fact in each case whether the work which the principal has contracted out is a component part of the principal's operations or merely work which contributes or conduces to the performance of such operations or is preliminary or ancillary or incidental to them.
Counsel for the plaintiff submits that a detailed analysis of the operations of the HEC at the relevant time, including what was routinely contracted out and what work was performed by the HEC's own workforce, is needed. This analysis must be undertaken before a determination can be made as to whether infrastructure construction and this particular construction was, at the relevant time, a component part of the operations of the HEC as opposed to work, although perhaps necessary for the conduct of the operations of the HEC was simply work which contributes to or conduces to those operations, or work which was preliminary, ancillary or incidental.
Counsel for the HEC submitted that the replacement of the wood stave pipeline was for the purpose of generating electricity, and that as such it was work undertaken in the course of, or for the purposes of, the HEC's trade or business and a component part of its operations.
The question on the summary judgment applications is whether the plaintiff's case is so obviously untenable that it cannot possibly succeed. Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 602; Agar v Hyde [2000] HCA 41; at 575-576; ; at 544-545 and ; at 131.

Counsel for the plaintiff submitted that the provision operates to bring public authorities within the potential ambit of s 29 of the Act, but that it does not go so far as to deem all operations of a public authority to be component part operations as opposed to incidental, ancillary or preparatory operations. Counsel for the HEC did not submit otherwise.
In my view, a detailed analysis of the evidence is required before it can be determined as a matter of fact whether or not the HEC was a principal in the construction of the wood stave pipeline. The evidence before me did not purport to be exhaustive. I cannot exclude the possibility that detailed evidence presented at trial might ultimately result in a finding that the HEC, at the time of the plaintiff's injuries, was not in the business of constructing electricity generating infrastructure, or in particular in the business of undertaking heritage work such as the construction of the wood stave pipeline. Despite the fact that the HEC needed infrastructure, such as the pipeline, to conduct its core business of generating electricity for sale, it does not necessarily follow that the construction of the pipeline was a component part of the business of the HEC.
There is a further point which I should mention in relation to the summary judgment applications. Counsel for the plaintiff submitted that as a matter of law there is a possibility of a finding that there cannot be more than one principal for the purposes of s 29 of the Act, with the result that as Hazell Bros had contracted Topgold which employed the plaintiff, Hazell Bros was the principal and, that being the case, the HEC could not also be treated as a principal. In Marshall v Andrews (1995) 12 NSWCCR 153, the New South Wales Court of Appeal, by majority (Kirby ACJ and Handley JA), held that the New South Wales equivalent of s 29 of the Act permitted of the existence of more than one principal where there was a chain of contractors and the worker was employed, not by the person with whom the first contract had been entered into, but by a contractor down the line. Rolfe AJA, who was in dissent, concluded that the principal was the person who contracted with the employer of the injured worker to the exclusion of others further up the hierarchy.

(1995) 12 NSWCCR 153

Strang v Johnston, McGee and Gandy Pty Ltd [2014] TASSC 56

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (17)

Strang v Johnston, McGee and Gandy Pty Ltd [2014] TASSC 56 (24 October 2014)