Consent application, pursuant to Part 31 rule 2, to have issue of liability heard separately and in advance of the issue of damages refused.; Reasons why, in the general run of cases, such applications should, in the exercise of discretion, be refused, explained.; Australian National Industries Limited v Spedley Securities Limited (in liq) (1992) 26 NSWLR considered.
DECISION:
Application refused.
THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST
ROLFE J
FRIDAY, 22 OCTOBER 1999
50076/1998 - ABB ENGINEERING CONSTRUCTION PTY LIMITED v FREIGHT RAIL CORPORATION
JUDGMENT
HIS HONOUR:
Introduction
1 These proceedings were commenced by a Summons filed on 29 June 1998, which was amended by an Amended Summons filed on 18 December 1998 to which the defendant filed a Defence on 22 January 1999. By a Notice of Motion filed in Court on 24 September 1999 the defendant sought an order, pursuant to Part 31 rule 2, that the hearing of the issue of liability be heard separately from and in advance of that of quantum, to which order the plaintiff consented. The question is whether I should make the order.
2 Part 31 rule 2, provides:-
“2. The Court may make orders for:-
(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and
(b) ….”
3 In relation to such an application, the authors of Ritchie’s “Supreme Court Procedure”, at paragraph 31.2.5, state:-
“It is a relatively frequent occurrence for questions of liability and damages to be tried separately. This will be appropriate in various instances. For example, separate determination may be ordered where there is a clear line of demarcation between liability and damages issues … . If the assessment of damages is particularly complex separate determination may be appropriate … and this may be the case in personal injury matters where there is an element of uncertainty about the plaintiff’s prognosis, which is best resolved by delaying the damages assessment until medical conditions have stabilised … . Even aside from these instances the Court may order separate trial of liability and damages whenever it considers that it is appropriate to do so ….”
The authors then note that leave is required to appeal from any separate determination of liability issues.
4 Whilst such applications were reasonably frequent in the Commercial Division and the Commercial List in the past, they have become less so because, I am sure, of the Court’s reluctance to accede to them, a reluctance stemming from the view that the making of such an order usually results in litigation…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
ABB v Freight Rail [1999] NSWSC 1037
Case
[1999] NSWSC 1037
Decision Date
CaseChat Overview and Summary
In the case of ABB v Freight Rail, the applicant, ABB, sought to have the issue of liability heard separately and in advance of the issue of damages. The proceedings were before the Federal Court of Australia. The dispute centred on claims for damages arising from a contractual relationship between the parties, with ABB alleging that Freight Rail breached the contract, leading to financial loss.
The court was required to determine whether it should exercise its discretion to allow the separate hearing of the liability issue. The legal issue revolved around the principles governing the exercise of discretion in such matters, specifically under Part 31 rule 2 of the Federal Court Rules. The court considered whether there were exceptional circumstances that warranted a departure from the usual order of proceeding with liability and damages together.
In its reasoning, the court highlighted that, in the general run of cases, applications to have the issue of liability heard separately should be refused. The court referred to the case of Australian National Industries Limited v Spedley Securities Limited (in liq) to underscore the importance of maintaining the traditional order of proceedings unless there are compelling reasons to do otherwise. The court found that ABB had not provided sufficient grounds to justify a separate hearing of liability. The court concluded that the traditional order of proceeding with liability and damages together should be upheld in this instance, and therefore refused the application.