Andrews v State of New South Wales

[2008] NSWSC 1034

CITATION:	Andrews v State of New South Wales [2008] NSWSC 1034
HEARING DATE(S):	26 September 2008
JUDGMENT DATE :	1 October 2008
JUDGMENT OF:	Harrison J
DECISION:	1. Grant leave to the plaintiffs to file in court and to rely upon the amended statements of claim. 2. Reserve costs of and incidental to the plaintiffs' application further to amend their statements of claim. 3. Order the defendants to file and serve their defences to the amended statements of claim by 31 October 2008. 4. Direct the plaintiffs within 21 days to file and serve such affidavits or other evidence upon which they propose to rely together with an outline of written submissions in support of their application that the defendants pay the costs of and incidental to their application further to amend their statements of claim. 5. Direct the defendants within 21 days thereafter to file and serve such affidavits or other evidence upon which they propose to rely together with an outline of written submissions in opposition to the plaintiffs’ application for costs. 6. Grant liberty thereafter to the parties to approach my Associate for the allocation of a hearing date for argument as to the costs of the plaintiffs' application to amend their statements of claim. 7. Direct that any request for further and better particulars of the amended statements of claim should be served upon the solicitor for the plaintiffs by no later than 4.00pm on 10 October 2008. 8. Direct that any replies to any such request for further and better particulars should be served upon the solicitors for the defendants by no later than 4.00pm on 24 October 2008. 9. Order that pursuant to rule 28.2 the decision on the question of liability be heard separately from and before the decision on the question of the assessment of the plaintiffs' damages. 10. Relist the matter for directions before me on Friday 31 October 2008 at 9.30am. 11. Grant general liberty to the parties to apply on seven days' notice.
CATCHWORDS:	CASE MANAGEMENT – orders consequential upon an application by several plaintiffs in related proceedings further to amend their statements of claim – on plaintiffs' application order pursuant to UCPR rule 28.2 for separate hearings on questions of liability and quantum
LEGISLATION CITED:	Civil Procedure Act 2005 Rural Fires Act 1997 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
PARTIES:	Graeme John Andrews (First Plaintiff) Kay Lorraine Andrews (Second Plaintiff) State of New South Wales (First Defendant) Sydney Catchment Authority (Second Defendant)
FILE NUMBER(S):	SC 20365/05
COUNSEL:	D G T Nock SC with K G Odgers (Plaintiffs) S A Gregory (First Defendant)
SOLICITORS:	McLachlan Chilton (Plaintiffs) Frances Allpress (First Defendant) Wotton & Kearney (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

1 October 2008

20365/05 Graeme John Andrews and Kay Lorraine Andrews v State of New South Wales and Sydney Catchment Authority

JUDGMENT

1 HIS HONOUR: By notices of motion in identical terms in this and 16 related matters filed 3 July 2008 the plaintiffs seek the following orders: -

"1. The plaintiffs have leave to file an amended statement of claim pursuant to ss 64 and 65 of the Civil Procedure Act 2005 in accordance with the statement of claim annexed hereto and marked "A".

1(a) The plaintiffs have leave to rely upon the affidavit of Luke Torrisi dated 12 June 2008 filed in the matter of Andrews in each motion.

2. That the questions in Schedule "B" hereto be determined separately from and prior to the determination of all other questions in the proceedings pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 .

ALTERNATIVELY :

3. That the amount of any damages payable to the plaintiffs be determined separately from and after the determination of all other questions in the proceedings pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 .

4. That the defendants pay the plaintiffs' costs of this notice of motion."

2 Schedule "B" contains nine questions. It is necessary for present purposes to record what they are as follows:

"1. Did the Rural Fire Service (" RFS ") and New South Wales Fire Brigade Commissioner (" NSWFB ") owe the plaintiffs a duty of care to protect the plaintiffs against any loss, damage or injury from the Mt Hall fire?

2. Did the Sydney Catchment Authority (" SCA ") and the National Parks and Wildlife Service (" NPWS ") owe the plaintiffs a duty of care to protect the plaintiffs against any loss, damage or injury from fire in the Warragamba Special Area or the Park?

3. Did the NPWS owe to the plaintiffs a duty to: -


(a) minimise the danger of the spread of the Mt Hall fire from the Park and the Area;

(b) take all possible steps to extinguish the fire?

4. Did the SCA owe to the plaintiffs a duty to: -


(a) minimise the danger of the spread of the Mt Hall fire from the Area;

(b) take all possible steps to extinguish the fire?


5. If the answer to any of 1 to 4 above is "yes", did the RFS, NPWS and SCA breach the said duties or were they negligent by failing to extinguish or control the Mt Hall fire in the period from about 9.20am to about 3.00pm on Christmas Eve 2001?

6. If so, did any such breach cause the plaintiffs loss or damage?

7. Did the authorities breach the said duties or were they negligent in failing to warn the plaintiffs on 24 or 25 December 2001 of the approach of the fire?

8. When ought the warning, or warnings, to have been issued? How ought the warning(s) have been given and what ought to have been the terms of the warnings?

9. Are the defendants to be excused from liability pursuant to section 128 of the Rural Fires Act ?"

3 By the time the plaintiffs' notices of motion came on for hearing before me, the plaintiffs had distributed an amended statement of claim to the defendants who, subject to what appears below, did not oppose the grant of leave to the plaintiffs to rely upon that as their pleading in the proceedings. As with almost everything else in these proceedings, however, the parties have been unable to agree on the disposition of the balance of the orders sought in the notices of motion. This is so, curiously, notwithstanding the fact that several other related matters in this series of matters have been settled.

4 With respect to order 1 sought by the plaintiffs in their notices of motion, the defendants contended that, leave to file an amended statement of claim having been granted, paragraph 1 of the notice of motion in each case should be dismissed. The plaintiffs argued that no such order should be made, the grant of leave in respect of the amended statement of claim effectively supplanting the order sought in the notices of motion. Presumably the defendants' submission is that some advantage accrues to them on the question of costs by reason of the fact that the original relief sought in order 1 has been rendered futile by the now current pleading upon which the plaintiffs rely. In my opinion this dispute is barren. It is unnecessary to make any order in the circumstances.

5 The defendants seek an order that the plaintiffs pay their costs of and incidental to the plaintiffs' application to amend their statements of claim. Whilst in the ordinary course of events that order would follow, the plaintiffs oppose the making of such an order, insisting instead, in aid of that opposition, upon the need to file evidence in support and to set aside approximately one day for argument upon it. Despite attempts to provide me with information about that dispute, I have so far thankfully been spared most of the details. However, if the plaintiffs insist that there is a considerable body of evidentiary material upon which they propose to rely, as well as the need to present legal argument on the issue, it seems to me that the plaintiffs, at some possible risk as to costs of so doing, ought to be given the opportunity to displace what might seem in the normal course to be an uncontroversial outcome that costs follow the event. This will be reflected in the orders that I make later in these reasons.

6 The parties are agreed that the defendants are to be given the opportunity to seek further and better particulars of the amended statement of claim. However, the plaintiffs argue that that opportunity ought to extend only to the amendments strictly so-called (compared to what were the earlier versions of the amended statement of claim), whereas the defendants argue that they should have an unlimited right to seek further and better particulars of the amended statement of claim as a whole. Despite my best efforts I have been unable to come to terms with the significance of this dispute. If there are portions of the amended statements of claim that remain from the earlier pleading, no doubt the defendants will find it unnecessary to seek further and better particulars of those portions. Similarly, it might reasonably be assumed that if the plaintiffs' amended statements of claim retain portions from an earlier pleading, they do so in circumstances identical to those which prompted such a pleading in the first instance. In these circumstances I consider that if the defendants feel constrained to require the plaintiffs to answer questions that quite clearly have been answered already, they will do so at their own risk as to costs, particularly having regard to the overriding purpose. I note that the parties uncharacteristically agree that a single, composite request for particulars of the amended statements of claim can be made, thereby obviating the need for identical requests in each of the matters. In my opinion that composite request ought to be delivered by no later than 10 October 2008 and the plaintiffs' responses should be provided by no later than 24 October 2008.

7 Next the plaintiffs have proposed that the defendants file and serve a defence to the amended statements of claim by 7 November 2008. The defendants oppose such a course, preferring instead to have the matter relisted for directions before incurring such an obligation. Once again, for reasons not dissimilar to those to which I have earlier referred concerning the provision of answers to the request for further and better particulars, the amendments to the pleadings ought not to relieve the defendants from their obligation to furnish a defence in a timely way. I consider that the defendants ought to file their defences to the amended statements of claim by no later than 31 October 2008.

8 Finally, the plaintiffs argue that orders 2 and 3 sought by them in the notices of motion ought to be given the earliest possible date for consideration by this Court and that in advance of that date some appropriate timetable for the filing and serving of evidence should be put in place. I was initially attracted to the making of an order that the issues of damages and liability be heard separately. I remain of that view. This is principally for the reason that the liability issues are either identical in all matters or because, if they are not, there is considerable overlap among all matters on this issue. The terms of order 2 sought in notices of motion, to the extent that it purports to identify discrete issues of liability, suggests that a disposition of the issues identified in Schedule "B" will not necessarily dispose of all liability issues in the proceedings. For example, Mr Torrisi in his affidavit sworn 12 June 2008 indicated that an order, if made, "would decide a number of issues relating to liability", suggesting that some other issues would remain to be determined at a later date. In essence, the plaintiffs' significant contention is that as a practical matter, a separate hearing on the question of liability generally, excised from all issues touching or relating to assessment of damages, should be heard first.

9 The plaintiffs' arguments for a separate hearing on liability are essentially as follows. The plaintiffs contend that if the trial is to be conducted on all issues that taking into account the calling of lay and expert witnesses and the cross-examination of such witnesses, the estimated length of the plaintiffs' cases will be 131 hearing days. Some modification to the estimate must necessarily be made having regard to the settlements that have occurred since that estimate was made. In making that assessment the plaintiffs are said not to have taken into account any time for legal argument over the admissibility of documents, possible challenges to the expertise of witnesses or any other interlocutory arguments that might arise.

10 With respect to the issue of quantum, the plaintiffs' claims cover a wide range of losses and will require a number of expert valuers in various fields. On the question of liability the plaintiffs' cases will consist of manifold documents, two expert witnesses and possibly some lay evidence. The plaintiffs anticipate that their cases will seek to rely on more than 200 documents produced by the defendants. To that extent at least the plaintiffs' claims on the question of liability would appear to be somewhat more confined. According to Mr Torrisi, the expert evidence on the question of liability does not overlap at all with the expert evidence in relation to the question of quantum.

11 Mr Torrisi has also given evidence about the relative costs of conducting the proceedings limited to liability on the one hand compared to a joint hearing on all issues on the other hand. It is hardly controversial that the latter is likely to occupy more time both in court and out of court, including significant preparation, and that a hearing on the question of liability only will be both shorter and cheaper. According to the plaintiffs' estimate, the plaintiffs' cases at a trial limited to the question of liability might be reduced to a period of less than half the plaintiffs' estimate for the trial of all issues.

12 The defendants oppose separate hearings, principally upon the basis that settlement of some of the cases so far has been facilitated by uncertainty about the question of liability. The defendants argue that a decision on liability that turned out to be unfavourable to them would have the potential significantly to reduce the likelihood of further settlements.

13 Secondly, the defendants oppose a separate hearing on the question of quantum if the liability questions identified in schedule "B", or some similar identification of limited liability issues, is to be proposed in distinction to a separate hearing on all questions of liability generally. In other words, the defendants' concern is that any attempt to separate or to distil specific liability issues at this stage is both premature and suffers from the potential danger that significant liability issues may be inadvertently overlooked and thereby excluded from the list. If that were to occur, any benefits or other advantages flowing from a separation of the issues would potentially, if not actually, be lost.

14 It seems to me that this is one of the rare cases where a separation of the issues of quantum and liability could produce significant cost savings and corresponding time advantages. I am not satisfied that an order in terms of prayer 2 in the notice of motion should be made. I consider that an order in terms of prayer 3 in the notice of motion is more likely to give effect to the efficiencies contemplated by a separation of the issues without the danger of running foul of unforeseen circumstances.

15 That leaves the issue of causation. All parties appear to agree that there will be separate and distinct causation arguments in each case and that these effectively straddle the issues of liability and quantum. There are good reasons why this issue should be heard with the general liability issues and equally good reasons why it should be heard with the questions of the assessment of any damages to which the plaintiffs may be found to be entitled. The plaintiffs contend that, unlike the broad question of liability, each individual plaintiff's claim is different with respect to the issue of causation and will require different lay evidence. In some cases the evidence will be short and in other cases it will be of considerable length. An appropriate compromise may well be to require each of the plaintiffs to include his or her evidence on the question of causation in statements that I will in due course order each of the plaintiffs file and serve on the question of liability generally. Although I appreciate that no completely satisfactory solution is possible, it seems to me to be preferable to postpone determination of the issue of the extent to which the defendants' breaches may have caused the plaintiffs' losses in any particular case to the determination of the question of quantum generally.

16 In these circumstances I propose the following orders: -

1. Grant leave to the plaintiffs to file in court and to rely upon the amended statements of claim.

2. Reserve costs of and incidental to the plaintiffs' application further to amend their statements of claim.

3. Order the defendants to file and serve their defences to the amended statements of claim by 31 October 2008.

4. Direct the plaintiffs within 21 days to file and serve such affidavits or other evidence upon which they propose to rely together with an outline of written submissions in support of their application that the defendants pay the costs of and incidental to their application further to amend their statements of claim.

5. Direct the defendants within 21 days thereafter to file and serve such affidavits or other evidence upon which they propose to rely together with an outline of written submissions in opposition to the plaintiffs' application for costs.

6. Grant liberty thereafter to the parties to approach my Associate for the allocation of a hearing date for argument as to the costs of the plaintiffs' application to amend their statements of claim.

7. Direct that any request for further and better particulars of the amended statements of claim should be served upon the solicitor for the plaintiffs by no later than 4.00pm on 10 October 2008.

8. Direct that any replies to any such request for further and better particulars should be served upon the solicitors for the defendants by no later than 4.00pm on 24 October 2008.

9. Order that pursuant to rule 28.2 the decision on the question of liability be heard separately from and before the decision on the question of the assessment of the plaintiffs' damages.

10. Relist the matter for directions before me on Friday 31 October 2008 at 9.30am.

11. Grant general liberty to the parties to apply on seven days' notice.

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