By a notice of motion filed on 1 June 2022, the plaintiff seeks orders pursuant to rr 28 and 1.21 of the Uniform Civil Procedure Rules 2005 (NSW). In essence, the orders sought are first, that certain questions be heard and determined separately before any other question in the proceedings, and secondly, that the proceedings be removed to Court of Appeal. The notice of motion is supported by an affidavit of Cilla Robinson affirmed on 1 June 2022 which has been read without objection.
The first defendant consents to the orders which have been sought. The second defendant, who has appeared unrepresented before me today has indicated, in general terms, his consent. Notwithstanding that, the determination of whether the orders sought should be made remains a matter for the Court's discretion.
The factual background to the matter is helpfully set out in written submissions provided by the first defendant, from which I draw the following summary.
Section 4(1) of the Long Service Leave Act 1955 (NSW) (the Act) provides that:
Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer.
Section 4(2)(a)(i)(A) of the Act provides that, subject to specified provisions, the amount of long service leave to which a worker is entitled shall, in the case of a worker who has completed at least 10 years service with an employer, be a period of 2 months.
The second defendant previously worked for the plaintiff for a total of 10 years, eight months and 23 days. That period consisted of 5 years, 11 months and 20 days of service in India, and 4 years, 9 months and 2 days of service in New South Wales.
On 12 December 2019, the second defendant sent the plaintiff a letter of demand in respect of long service entitlements said to be owing to him. The plaintiff did not pay those entitlements. On 16 April 2020, the second defendant complained to the New South Wales Industrial Relations Commission about the plaintiff's failure to pay him. The plaintiff was informed by an inspector appointed under section 384 of the Industrial Relations Act 1996 (NSW) that the second defendant was entitled to the entitlements he had claimed.
In these circumstances, the plaintiff was asked to pay the amounts owing. On 7 September 2021, the plaintiff commenced the current proceedings against the State of New South Wales, seeking declaratory relief with respect to the second defendant's entitlement to long service leave.
The summons has since been amended in circumstances to which I need not refer. The issues between the parties include whether or not the period of employment undertaken by the second defendant overseas should be regarded as "leave" for the purposes of the Act. There are conflicting decisions in relation to that issue. Two of those decisions were delivered by the New South Wales Industrial Commission in Court session. The third is a decision of the Victorian Court of Appeal.
It is against that agreed factual background that the orders to which I referred earlier have been sought.
The principles which govern an application of this nature were summarised by Davies J in Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd: [1]
11. In Southwell v Bennett [2010] NSWSC 1372, Hallen AsJ (as his Honour then was) said at [15]:
I take the principles that apply in determining whether to make an order for the separate determination of a question under the rule to be:
(a) The rule speaks of "questions" and not "issues" and does not differentiate between questions of fact, or law, or partly of fact and partly of law.
(b) The judicial determination of a "question" must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, at [45] and [51].
(c) The rule permits the Court to hear and determine the separate question at any point before, at, or after, any trial or further trial in the proceedings, rather than only as a preliminary question.
(d) Whether such an order should be made is a matter for the court's discretion, which discretion must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VicRp 62; [1978] VR 669, at 670; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7].
(e) As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Limited v The Water Board [2001] HCA 19; (2001) 206 CLR 1, at [168]-[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water and Ors [2010] NSWSC 979 at [4] per Studdert AJ.
(f) In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect.
(g) Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the Court is to depart from that position, the party seeking the separate determination of a question must satisfy the Court that it would be 'just and convenient' for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]- [9], see also Energy Australia v Australian Energy Limited [2001] FCA 1049.
(h) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J.
(i) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Limited v The Water Board at [168].
(j) Before a question 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 at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported).
(k) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037.
(l) Often, a separate question is heard on the basis of:
(i) agreed statements of fact;
(ii) a narrow point to be determined; and
(iii) a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with).
(m) Factors that tend to support the making of an order, include that the separate determination of the question may:
(i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings: Tallglen v Pay TV Holdings;
(ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 602 per Kirby P at 607).
(n) It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86 at [27] per Rares J. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions.
(o) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a 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: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions.
(p) Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties: TVW Enterprises Limited v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J.
(q) It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place: TVW Enterprises Limited v Duffy at pp 4-5.
(r) Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred.
(s) It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided: Jacobson v Ross [1995] VicRp 24; [1995] 1 VR 337 at 341.
It seems to me that, bearing in mind those principles, there are a number of matters which weigh in favour of making of the orders which have been sought.
To begin with, the facts are agreed between the parties. Further, whilst the making of the orders sought remains a matter for the Court's discretion, such discretion must be exercised in a way which seeks to give effect to the overriding purpose expressed in s 56 of the Civil Procedure Act 2005 (NSW), namely the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. In my view, making the orders sought would be conducive to achieving that purpose. It is also relevant, although not conclusive, that all parties agree to the orders which are sought being made. Finally, the question to be resolved is a narrow one.
There remains a question of whether the Court of Appeal may be assisted by the determination of a judge at first instance in relation to the issue in question. It seems to me that any such assistance would be limited, bearing in mind the conflicting decisions which the Court of Appeal will be asked to consider.
Accordingly and for those reasons, I make orders in accordance with the Short Minutes of Order which have been signed by me and dated today. Those Short Minutes will now include order 4 which will be in these terms:
1. Pursuant to paragraph 17 of Practice Note SC CA1, the plaintiff is to notify the Registrar of the Court of Appeal within 14 days of any intention to seek leave to challenge the correctness of a decision of any other Australian intermediate appellate Court and in doing so, is to indicate to the Registrar the decision or decisions which are likely to be challenged, and their materiality to the proceedings.
[2]
Endnote
[2018] NSWSC 1284; (2018) 360 ALR 782 (commencing at paragraph 11).
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Decision last updated: 29 September 2022