Boral Resources (NSW) Pty Ltd v TWU of Australia NSW Branch

[2004] NSWSC 541

CITATION:

Boral Resources (NSW) Pty Ltd v TWU of Australia NSW Branch & Ors [2004] NSWSC 541

HEARING DATE(S):

9 June 2004

JUDGMENT DATE:

24 June 2004

JURISDICTION:

Common Law Division

JUDGMENT OF:

Master Harrison

DECISION:

(1) The plaintiff's notice of motion filed 19 December 2003 is dismissed; (2) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS:

Separate hearing and determination of liability

LEGISLATION CITED:

Industrial Relations Act 1996 (NSW - s 141
Supreme Court Rules 1970 (NSW) - Part 31 r 2

CASES CITED:

ABB v Freight Rail [1999] NSWSC 1037
Idoport Pty Ltd & Anor v National Australia Bank Ltd 7 8 Ors [2000] NSWSC 1215
Nominal Defendant v Niko Cencic [2001] NSWCA 69
Tepko Pty Ltd v Water Board [2001] HCA 19; 75 ALR 775

PARTIES :

Boral Resources (NSW) Pty Ltd
(Plaintiff)

Transport Workers' Union of Australia, New South Wales Branch
(1st Defendant)

Frankham Transport & Co Pty Ltd & Ors
(2nd to 135th Defendants)

FILE NUMBER(S):

SC 20818/2001

COUNSEL:

Mr G Bennett
(Plaintiff)

Mr J Phillips SC
(Defendants)

SOLICITORS:

Mr A Dowling,
Blake Dawson Waldron
(Plaintiff)

Mr M Doherty,
McClellands
(Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 24 JUNE 2004

20818/2001 - BORAL RESOURCES (NSW) PTY LIMITED
v TRANSPORTS WORKERS UNION OF
AUSTRALIA, NEW SOUTH WALES
BRANCH & ORS
JUDGMENT (Separate hearing and determination of
liability)

1 MASTER: By notice of motion filed 19 December 2003 the plaintiff seeks and order pursuant to Part 31 r 2 of the Supreme Court Rules 1970 (NSW) (SCR) that there be a separate hearing and determination of the question of liability of the first to one hundred and thirty fifth defendants inclusive in respect of the causes of action. Damages would then be determined at a later date. The plaintiff relied on the affidavit of Stephen Nettleton sworn 23 December 2003 and the defendants relied upon the affidavit of Michael John Doherty sworn 5 April 2004.

2 The plaintiff is Boral Resources (NSW) Pty Limited. The first defendant is the Transport Workers’ Union of Australia, New South Wales Branch (TWU). The second to one hundred and thirty fifth defendants are contract carriers with whom the plaintiff had contracted to carry concrete from its batching plants to the plaintiff’s customers. The action has been discontinued against a number of defendants.

3 The Amended Statement of Claim (ASC) filed 15 May 2002 pleads a refusal by the defendants to provide contracted services on two days - namely 17 May 2001 and 5 December 2001.

Liability concerning 17 May 2001

4 In respect of a refusal by the defendants to provide contracted services on 17 May 2001, the plaintiff pleads that, in breach of the relevant arrangements, the defendants engaged by the plaintiff at the time firstly, did not make themselves available to perform concrete cartage services for the plaintiff on 17 May 2001; and secondly, conspired with the TWU to refuse to provide to the plaintiff the concrete cartage services they were contracted to supply on 17 May 2001 (ASC, para 35).

5 Similarly, in respect of a refusal by the defendant to provided contracted services on 17 May 2001, the plaintiff pleads that the TWU firstly, organised, authorised or procured the defendants engaged by the plaintiff at the time, not to make themselves available to perform concrete cartage services for the plaintiff in breach of the relevant contractual arrangements; secondly, induced the defendants engaged by the plaintiff at the time to breach the relevant contractual arrangements; and thirdly, imposed a picket on the operations of the plaintiff which was intended to and did have the effect of preventing the plaintiff from making alternative arrangements to deliver specialised product to the plaintiff’s customers (ASC paras 43, 44 & 45).

Liability concerning 5 December 2001

6 In respect of a refusal by the defendants to provide contracted services on 5 December 2001, the plaintiff pleads that, in breach of the relevant contractual arrangements, the defendants engaged by the plaintiff at the time did not make themselves available to perform concrete cartage services for the plaintiff on 5 December 2001; and secondly, conspired with the TWU to refuse to provide to the plaintiff the concrete cartage services they were contracted to supply on 5 December 2001 (ASC para 50).

7 Further, in respect of a refusal by the defendant to provide contracted services on 5 December 2001, the plaintiff pleads that the TWU firstly, organised, authorised or procured the defendants engaged by the plaintiff at the time not to make themselves available to perform concrete cartage services for the plaintiff in breach of the relevant contractual arrangements; secondly, induced the defendants engaged by the plaintiff at the time to breach the relevant contractual arrangements; and thirdly, imposed a picket on the operations of the plaintiff which was intended to and did have the effect of preventing the plaintiff from making alternative arrangements to deliver specialised product to the plaintiff’s customers (ASC paras 53 & 54).

8 The plaintiff’s causes of action pleaded are breach of contract against the carriers and tortious conduct such as inducing a breach of contract, conspiracy and a picket. The plaintiff also alleges that as a direct consequence of the 17 May 2001 conduct of the defendants and the TWU, Boral Resources was unable to fulfil the majority of purchase orders and, it asserts, it lost other business (paragraph 46 ASC). So far as the events of 5 December 2001 there are similar assertions of breach of contract, tortious conduct, pickets and conspiracy made against the defendants.

The law

9 Part 31 r 2(a) of the SCR provides:

“2 Order for decision

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…”

10 Both parties agree the Court has a discretion to order separate trials if, in all the circumstances, justice can be done between the parties and the disposition of the separate question can be described as just, cheap and quick. In Idoport Pty Ltd & Anor v National Australia Bank Ltd & 8 Ors [2000] NSWSC 1215, Einstein J helpfully summarises the authorities on separate determination of issues. The summation by his Honour is as follows [at 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).
As Giles CJ in Comm. D (as his Honour then was) said in Tallglen (supra, at 142):
‘Part 31, rule 2 of the rules empowers the court to make orders for the decision of any questions separately from any other question, whether before, at or after any trial or for the trial in the proceedings, and for the statement of a case and the question for decision. In the ordinary course, all issues in proceedings should be decided at the one-time, but separate decision of a question may be appropriate where, for example, the decision of the question is critical to the outcome of the proceedings and (at least if decided in one-way) will bring the proceedings to an end. In particular circumstances the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of their dispute is decided or where the decision will obviate unnecessary and expensive hearing of other questions, but such occasions must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of right of appeal is borne in mind) brings delay, expense and hardship - that which the making of an order was intended to avoid. It is often the case that the need to make findings of fact for a decision of the separate question, especially findings which may involve issues of credit, tells strongly against the making of an order because related facts, and renewed issues of credit, will or may arise at a later stage in the proceedings . Experience teaches that it should be able to be seen with clarity that decision of a separate question will be beneficial in the conduct of the proceedings and the resolution of the parties dispute.’ [emphasis added]”

11 Both parties agree that the Court has a discretion to order separate trials if in all the circumstances, justice can be done between the parties and the disposition of the separate question can be described as just, quick and cheap.

12 More recently in Tepko Pty Ltd v Water Board [2001] HCA 19; 75 ALR 775, Callinan and Kirby JJ made pithy comments in relation to the use of severing issues to be determined by the court. At paras [168] to [172] their Honours stated:

“The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P and Fitzgerald JA were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. 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.

The fourth of our comments is related to evidence compiled, committed to writing and filed in advance of the hearing. Parties frequently, either together or separately, compile "books of documents". Although most of these have the potential to be admitted in evidence, often they are defective in form. Many of them are often irrelevant, or their significance is either not recognized or adverted to during the hearing. Their status, as in the case of the letter written by Mr Rhodes, can be ambiguous. Discrimination and economy should be exercised by those who prepare cases in which documentary evidence is likely to be extensive and important. Those who conduct such cases should ensure that what is actually in evidence, and its relevance and significance, are clearly identified.”

13 In a recent Court of Appeal decision in the Nominal Defendant v Niko Cencic [2001] NSWCA 69, Meagher J expressed a similar view when he said that great caution should be exercised when separating an issue for determination.

14 In ABB V Freight Rail [1999] NSWSC 1037 Rolfe J at [19] made an instructive comment which is particularly relevant in a case such as that under observation here:

“…until there has been an assessment by the parties of the amount to which each says the plaintiff, if successful on the issue of liability, would be entitled, there can be no meaningful consideration by the parties of what the financial stake in issue is. In those circumstances, the parties are unable to give proper thought to an appropriate commercial settlement, consideration of which will be dependent not only on the amount involved, but also on the risk inherent in the issue of liability. In my opinion, it is highly desirable for parties involved in commercial litigation to focus on the whole case in determining how it can best be resolved.”

15 This case will be lengthy as it is very complex. The plaintiff submitted that the issues that are raised on liability and quantum are quite distinct and separate determination will result in saving time and expense. According to the plaintiff, the preparation of experts reports will be expensive and once liability is determined the assessment of damages will be easier and more accurate. The plaintiff identified that the principal elements of the plaintiff’s cause of action – these being, firstly that each defendant was a party to the head contract of carriage; secondly, under the head contract of carriage, each defendant could be required to commence work on a particular day for a particular period at a batching plant different from the defendant’s nominated batching plant if so directed by our client; thirdly, the majority of the defendants were required by the plaintiff to be ready, willing and able to provide concrete cartage services on 17 May 2001 and 5 December 2001; and fourthly, the majority of defendants did not make themselves available to perform concrete cartage services on 17 May 2001 and 5 December 2001. I might add that the services were to be provided at 16 different depots.

16 The defences to be raised are: firstly, that some defendants were not in a position to be ready, willing and able to provide concrete cartage services or were excused by the plaintiff from complying with the head contract of carriage to provide concrete cartage services to the plaintiff on the days in question; secondly, the defendant did not engage in conspiracy amongst themselves; thirdly, in the alternative, the defendants were justified in engaging in any conspiracy in defence of their trade, professional and/or economic interest; fourthly, contrary to the head contract of carriage, the plaintiff did not advise the defendants of the initial loading time and initial plant from which loading would occur before close of business on the day prior to 17 May 2001 or the day prior to 45 December 2001; and fifthly, the TWU is entitled to claim the benefit under s 141 of the Industrial Relations Act 1996 (NSW) and therefore cannot be sued in tort and that the plaintiff submitted that there would not be any overlap of evidence as to liability and damages.

17 The defendants’ counsel has also identified some relevant issues, namely that it is asserted by the plaintiff that the damage is a consequence of the conduct of the defendants. As a consequence, there would need to be a linkage between the loss and damage and the conduct. There would need to be evidence from each of the batching plants to identify firstly what happened and how those events on the two days in question amounted to a breach of contract by each and every one of the defendants associated with that batching plant. Secondly, the defendants themselves who generally are sole traders trading under a corporate entity would need to provide evidence as to what they did as the drivers on those day. The issue of loss and damage would require someone from the same batching plants to identify what orders were lost on the days in question and how, on no subsequent days were any of those orders fulfilled by the defendants. In response to that evidence, the defendants would be required to give evidence as to what work they performed on the subsequent days to the two days in question in an attempt to say that far from being lost work, the work was merely deferred. Those defendants would then identify whether or not they were properly and in accordance with the terms of the cartage agreement duly notified of the requirement to attend on that day.

18 There are no agreed facts and issues between the parties. In its absence of agreement and the light of the issues raised, I cannot be sure that at trial there would be a clear demarcation between the facts to be ascertained on liability and those on quantum. The credit of the witnesses is an important issue and this factors against the granting of a separate trial. Even if there are separate trials many of the witnesses will be required to attend court to give evidence in relation to liability and damages. I accept that if evidence is given on liability, that would make the preparation of reports and calculation of damages, if any, easier. I have also taken into account that if liability is determined in favour of the defendants there would be no trial on damages but that decision may be subject to appeal. Taking all these circumstances into account, it is my view that making an order for separate determination of liability will not result in the saving of court time and parties’ costs. Further, it is not in the interests of justice to grant separate trials. In my view and in the circumstances of this case, there should not be a separate determination of issues. The plaintiff’s notice of motion filed 19 December 2003 is dismissed.

19 Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendants’ costs as agreed or assessed.

Orders

20 The Court orders:

(1) The plaintiff’s notice of motion filed 19 December 2003 is dismissed.

(2) The plaintiff is to pay the defendants’ costs as agreed or assessed.
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Last Modified: 06/28/2004