Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors

HEARING DATE(S) : 26 June 2007 JURISDICTION : Equity Division

DECISION : Application for determination of separate questions refused

CATCHWORDS : Procedure - Separate Questions - whether order should be made - where hearing will be part-heard - whether separate questions will achieve substantial economies

(CTH) Trade Practices Act 1974 s 52 LEGISLATION CITED : (NSW) Civil Procedure Act 2005 (NSW) Crown Lands Act 1989 (NSW) Uniform Civil Procedure Rules 2005 r 28

CASES CITED : Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 Tepko Pty Limited v Water Board (2001) 206 CLR 1

Joan Street (first plaintiff) Ros Dwyer (second plaintiff) Michael Hesse (third plaintiff) Glen Eight Pty Ltd (fourth plaintiff) Susan Hesse (fifth plaintiff) PARTIES : Robert Simkin (sixth plaintiff) Glen Federick Billington (seventh plaintiff) Fiona Jeanette Billington (eighth plaintiff) Luna Park Sydney Pty Ltd (first defendant) Metro Edgley Pty Ltd (second defendant) Peter Hearne (third defendant) Warwick Doughty (fourth defendant)

Mr T Alexis SC w Ms P M Sibtain (plaintiffs) COUNSEL : Mr T G Parker SC w Mr J A Potts (first & second defendants) Mr J R Clarke (third & fourth defendants)

Wise Legal (plaintiffs) SOLICITORS : Clayton Utz (first & second defendants) Esplins (third & fourth defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2267/05 Joan Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors JUDGMENT (ex tempore) (on application for separate questions) 1 HIS HONOUR: The defendants have applied pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 28.2, for an order that the following questions be determined separately and before all other issues in the proceedings: (a) whether section 114(2) of the Crown Lands Act 1989 (NSW), and the Luna Park Plan of Management dated 12 March 1998, create a legal prohibition upon the first defendant locating and operate amusement rides in the area to the north of Coney Island;

(b) was the conduct of the Second Defendant, in lodging the 2001 DA and SEE1 as pleaded in paragraphs 3.1 and 3.2 of the Fourth Amended Statement of Claim filed on 11 April 2006 ("FASOC"), conduct in trade or commerce within the meaning of section 52 of the Trade Practices Act 1974 (Cth);

(c) was the conduct of the second defendant as pleaded in paragraphs 8.1 or 8.2 of the FASOC conduct in trade or commerce within the meaning of section 52 of the Trade Practices Act 1974 (Cth);

(d) did the second defendant, by engaging in the conduct pleaded in paragraphs 3.1 and 3.2 of the FASOC, make the representations pleaded in paragraphs 4.1 and 4.2 of the FASOC; and

(e) did the second defendant, by engaging in the conduct pleaded in paragraphs 8.1 and 8.2 of the FASOC, make the representations pleaded in paragraphs 9.1 and 9.2 of the FASOC.

2 The proceedings are now in the third week of their final hearing, and it is evident and common ground not only that the hearing will not be completed this week in the time allotted, but that a further substantial block of dates, perhaps up to another 10 days, might be required for its completion. Having regard to the state of my diary, it is unlikely that such a block of dates will be available for several months at least. On the other hand, the plaintiffs have witnesses organised and expect to complete at least the lay evidence in the plaintiffs' case by the end of this week, although that of course is dependent to some extent on the defendants' cross-examination, and it leaves yet to be called the plaintiffs' expert evidence. 3 In their joint judgment in Tepko Pty Limited v Water Board (2001) 206 CLR 1, Kirby and Callinan JJ said (at 55) 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, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.

The second and related comment is this. 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.

Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.

4 Notwithstanding those strictures, particularly in the context of the (NSW) Civil Procedure Act 2005 and the Uniform Civil Procedure Rules, and the heightened obligations of courts to manage proceedings before them and to focus on the real issues in dispute, I think that trial courts will probably be more disposed nowadays to order separate questions than they might have been in the past. As I said in Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464: 6. While much has been said against the resolution of separate questions in Courts of high authority, nonetheless, since the (NSW) Civil Procedure Act 2005, it is my view that the Court should take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously. 5 That said, the considerations referred to by Kirby and Callinan JJ remain pertinent matters to be taken into account in determining whether what remains the exceptional course of deciding preliminary issues, rather than the ordinary course of deciding a case in its totality, is to be adopted. 6 I first consider the extent to which determination of the proposed separate questions will achieve economies in time and expense in the resolution of these proceedings. 7 Question (a), if resolved in favour of the defendants, would be dispositive of the case under the (NSW) Crown Lands Act 1989 and would result in case of the first plaintiff, Ms Street, who relies only on the Crown Lands Act being dismissed. However, it would leave on foot the (CTH) Trade Practices Act 1974 cases brought by all the other plaintiffs. If resolved in favour of the plaintiffs, it would be dispositive of the case in favour of the plaintiffs, save as to any question of discretion to decline granting the injunctive relief that they seek; but as Mr Alexis SC points out, the plaintiffs even if successful on their Crown Lands Act claim would still wish to have their Trade Practices Act claim determined, lest an appellate court take a different view on the Crown Lands Act case. Accordingly, it seems to me that question (a), though a question which appears to be one of law not dependent on any further evidence that might in some situations well lend itself to separate determination, will, in the present circumstances, result in little, if any, economy in the further conduct of the proceedings. 8 As to questions (b) and (c), they seek to agitate separately the issue of whether the relevant conduct alleged against the second defendant in lodging the Development Applications was conduct in trade or commerce. Mr Parker SC, for the first and second defendants, acknowledges that the question whether conduct is "in trade or commerce" is a mixed question of fact and law. That acknowledgment carries with it that the answer to the question must be capable of being informed by evidence. The only basis upon which I could determine it as a separate question, then, would be by assuming the allegations in the Statement of Claim at their highest. 9 Mr Alexis then submits that there is further evidence to be adduced in the plaintiffs' case which might illuminate the background to, motives for and context of the relevant conduct, and which is capable of bearing on whether that conduct took place in trade or commerce. Without for a moment deciding the matter, I am not prepared to say at this stage that such evidence could not affect an ultimate judgment as to whether the alleged conduct was "in trade or commerce". Very provisionally, it seems to me conceivable that the lodgement of a Development Application, in the context of a proposed development of land for commercial purposes, might arguably, at least in some settings, be "in trade or commerce". I say no more than that I think the proposition not unarguable. That said, as I think the question is one the answer to which could be influenced by further evidence in the case, it is inappropriate for separate determination. 10 As to questions (d) and (e) - namely, whether by lodging the relevant Development Applications, the second defendant made the representations which the plaintiffs contend that it did - although it is almost trite that for the purposes of s 52, the intention of the representor is irrelevant, so that the question is whether the conduct was objectively misleading and deceptive, Mr Alexis has pointed to some authority for the proposition that the court might more readily find that the conduct was misleading and deceptive if there was an intention to mislead. In that light, it seems to me at least possible that evidence might illuminate the Court's decision as to whether the conduct alleged against the defendants is misleading or deceptive. Again, that tends to suggest that questions (d) and (e) are not suitable for separate determination. 11 In any event, it is common ground that even were all the questions to be answered favourably to the defendants, that would still leave for determination Glen Eight's "silence" case, which is not addressed by any of the questions. On any view that would leave a substantial factual contest before the Court, as to what representations were made, whether they were misleading and deceptive, whether they were relied upon, and what if any damage Glen Eight suffered as a result. Without, for a moment, understating the significance for them of the cases of the other plaintiffs, it is fair to say that in terms of monetary value, and in terms of the bulk of the evidence and the apportionment of time in the hearing, Glen Eight's case is by far the largest. The savings which would be achieved, even if all the other plaintiffs were excised from the case, would be relatively minor, though I do not pretend they would be insignificant, and I do not overlook that the third and fourth defendants might also be excised from the case - although Mr Hearne would at least remain a very material witness in the case against the other defendants. However, even if all five questions were answered in favour of the defendants, it seems that the only evidence that would no longer be called would be that of Ms Mather, whose affidavit has been read, but who is yet to be cross-examined: her evidence on reliance would, if the questions were answered favourably to the defendants, no longer be required. In the scope of this case as a whole, that is but a very slight saving. 12 I should make some observations about some of the other issues. 13 As I have foreshadowed in the course of argument, I do not accept the submission that the progress of the case and the fact that it is now apparent that it will not be concluded in the time allocated is not a valid reason to revisit its future management. To the contrary, I think it is appropriate that the Court, and the parties, keep under consideration the progress of the case, and search for ways to achieving as best the circumstances allow, a just, quick and cheap resolution of the real issues in dispute. The fact that this application was not brought earlier is not a reason that it should not have been brought now. 14 That said, it cannot be overlooked that the plaintiffs' lay evidence is very far advanced, and most of the plaintiffs' witnesses have been cross-examined. For the defendants, Mr Parker has been careful and frank in disclosing that he is at least keeping open his options as to whether his clients will or will not go into evidence. It may be that certain consequences would follow if the defendants chose to make a submission, at the conclusion of the plaintiffs' case, that, on the basis of the issues raised by one or more of the proposed separate questions, there was no case to answer on all or part of the claims against them. Adoption of such a course might, at least in some circumstances, bear on whether or not the defendants would be entitled to call evidence. I do not think that the potential forensic consequences that might attend such a course should be allowed to be circumvented by the use of a separate question in the middle of a trial to raise a separate issue. 15 I do not give weight to the argument that the progress of the hearing might be disrupted by interlocutory appeals if separate questions were determined. Any appeal from a decision on a separate question would require leave. The Court would still have to determine the balance of the case. It is, I think, unlikely that the Court of Appeal would embark on a course calculated to disrupt the further determination of the case. More likely, the Court of Appeal would either take the view that any appeal should abide the final judgment, or it would deal with an interlocutory appeal expeditiously. 16 Essentially because I do not see that there will be substantial economies achieved in embarking on the determination of the proposed separate questions, and reinforced by the view that the case having proceeded as far as it has, the plaintiffs might - if their case was "knocked out on a preliminary issue" - as Kirby and Callinan JJ suggested, suspect, albeit unjustifiably, that the abbreviated course was adopted in the court's rather than the parties' interest, and by the consideration that embarking on such a course might be seen to deprive the plaintiffs of forensic advantages which could arise if the defendants elected to make their submissions on the proposed questions at the conclusion of the plaintiffs' case, I decline to accede to the application that there be a preliminary determination of the proposed separate questions.

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