City of Onkaparinga v Hassell Pty Ltd and Ors. - [2007] SASC 163

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
CITY OF ONKAPARINGA v HASSELL PTY LTD & ORS
[2007] SASC 163
Judgment of The Honourable Justice White
11 May 2007
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT
Applications for the trial of certain issues in the proceedings before the trial of other issues - Supreme Court Rules 1987, r 75.02 - whether determination of issues likely to dispense with the further trial of a substantial issue or narrow substantially the area of dispute - whether questions sought to be answered in advance of others questions of law or fact - whether sufficient agreement concerning all relevant facts - whether facts relevant to dispute will have to be resolved by the Court - whether questions may be hypothetical - discussion of relevant principles.
Held: reasonable prospect that evidence will be required - prospect of the same witnesses giving evidence in both stages of the trial - prospect that questions may turn out to be hypothetical - need for questions of law to be clearly specified so as to identify precisely the isue to be determined - applications refused.
Supreme Court Rules 1987 r 46A.02, r 63, r 75.02; Development Regulations 1993 (SA), reg 88; Limitation of Actions Act 1936 (SA), s 35, s 48; Development Act 1993 (SA), s 72, s 73, referred to.
FAI General Insurance Co Ltd (in liq) v Sherry (2002) 225 LSJS 141; Rivers v Rivers (2002) 220 LSJS 74; Duke Group Ltd (in liq) v Alamain Investments Ltd (in liq) (No 2) [2006] SASC 33; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Manufacturers' Mutual Insurance Limited v Withers & Anor (1998) 5 ANZ Ins Cas para 60-853, applied.
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203; Licul v Corney (1975) 180 CLR 213; Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246; McMullin v ICI Australia Operations Pty Ltd (No 7) (1999) 169 ALR 227; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76 ALJR 436; LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74; Blatch v Archer (1774) 1 Cowp 63, considered.

CITY OF ONKAPARINGA v HASSELL PTY LTD & ORS
[2007] SASC 163
Civil

WHITE J: This is a decision on applications pursuant to r 75.02 of the Supreme Court Rules 1987 (“SCR”) for the trial of certain issues in the proceedings before the trial of other issues.
There are two sets of proceedings before the Court, one of which is a consolidated action. In order to understand the applications, it is necessary to have some understanding of the underlying transactions which have given rise to the litigation as well as some understanding of the roles of the respective parties. The summary, which I set out below is, in the main, drawn from the pleadings. Accordingly, it reflects allegations, rather than being findings of fact.
The Parties
The plaintiff is the City of Onkaparinga (“the Council”). On or about 22 November 1995 it entered into an agreement with the first defendant Hassell Pty Ltd (“Hassell”) for the provision of architectural services (“the Hassell Agreement”) in relation to the construction of a recreation centre (“the Centre”) at Seaford.
Hassell then entered into an agreement with the third party Dare Sutton Clarke Pty Ltd (“DSC”) for it to provide to Hassell design drawings of the roof structure of the Centre (“the Sub-Consultancy Agreement”).
On or about 24 June 1996 the Council entered into a written agreement with the second defendant Cox Constructions Pty Ltd (“Cox”) for it to construct the Centre (“the Cox Agreement”).
DSC alleges that prior to entering into the Cox Agreement, the Council retained the first fourth party DP Poupoulas & Associates Pty Ltd (“DPPA”) to provide an independent assessment of the structural conditions, specifications and design drawings prepared by DSC, and also to provide a certificate of structural adequacy under the provisions of reg 88(1) of the Development Regulations 1993 (SA).DPPA and its principal, the second fourth party (“Poupoulas”), provided two certificates of structural adequacy prior to the commencement of construction of the Centre by Cox.
Construction of the Centre proceeded during 1996 and 1997. A notice of practical completion of the works was issued to Cox by Hassell on or about 27 January 1998. During 1996 and 1997 some deficiencies in the structural integrity of the Centre were observed. The roof frames of two halls forming part of the Centre had deflections. Remedial work was carried out by Cox pursuant to instructions from Hassell. It is alleged that this remedial work was not wholly successful. Various other defects or shortcomings in the construction remained. As a result of one defect, water was able to penetrate the external cladding and to enter the Centre. Further remedial work was carried out in 2002.
The Proceedings
By Action No 663 of 2003 commenced on 26 May 2003 the Council seeks to recover damages from Hassell and Cox in respect of the various defects. It alleges that each was in breach of their respective agreements, and that each was in breach of a duty of care. Each of Hassell and Cox deny liability. It is not necessary to detail all the grounds upon which liability is denied save to note that one ground of defence of each is an assertion that the Council’s claims are time barred by reason of s 35(a) and (c) of the Limitation of Actions Act 1936 (SA) (“LAA”).
In this same action Hassell has instituted third party proceedings against DSC. It asserts an entitlement to contribution to the extent of a full indemnity from DSC in respect of alleged breaches of a duty of care owed by DSC. By its defence, DSC denies liability to Hassell. In addition to denying the allegations of breach of agreement and breach of a duty of care, DSC alleges a breach by Hassell of obligations as its (DSC’s) trustee or agent and alleges that Hassell is estopped from making its third party claim. DSC also raises the statutory time bar contained in s 35(a) and (c) of the LAA as well as a contractual time bar. The claims of the contractual time bar, breach of trust, and estoppel have their origins in certain provisions in the Hassell Agreement. Clause 7.02 of that Agreement provides as follows:
7.02 Duration of Liability
The Architect shall be deemed to have been discharged from all liability in respect of the Architectural Services, whether under the law of contract or tort at the expiration of the period stated in Item I of the Appendix from either the Date of Practical Completion of the Works which are subject to the Architectural Services or the termination of the Architectural Services; whichever is the earlier.
The period stated in Item I of the Appendix is six years. DSC asserts that it became discharged from any liability in respect of the work it performed under the Sub-Consultancy Agreement on 27 January 2004, ie, six years after the issue by Hassell of the Certificate of Practical Completion. The third party proceedings against DSC were not commenced until 22 April 2004.
Although not itself a party to the Hassell Agreement, DSC claims to have the benefit of the six year limitation period contained in cl 7.02 by virtue of sub-clauses 2.02.01 and 7.04 of the same agreement. Those sub-clauses provide as follows:

2.02.01 Authority
The Client authorises the Architect to act as the Client’s agent in such matters as are set out or implied in this Agreement and, subject to this Agreement, as are set out or implied in the Contract.

7.04 Architect’s Employees and Consultants
All limitations of liability under this Agreement shall apply for the benefit of the employees, agents and Sub-consultants of the Architect to the same extent as they apply for the benefit of the Architect against the Client or anyone claiming through or under the Client. For the purpose of this Section 7, the Architect is or shall be deemed to be acting as the agent or trustee of employees, agents and Sub-consultants, and with their authority.

Clause 2.1 of the Sub-Consultancy Agreement may also be relevant in this context. It provides:
Engagement
Subject to the provisions of this Agreement, the Consultant hereby engages the Sub-consultant to provide consultancy services upon and subject to such of the terms and conditions as are set out in the Client and Architect Agreement.
DSC’s claim in substance is that it is entitled to the benefit of the six year limitation period contained in cl 7.02 of the Hassell Agreement. Alternatively it pleads that “Hassell was the trustee or agent with express authority from DSC to administer its rights to a limitation defence against court proceedings brought out of time”. Alternatively again, DSC alleges that Hassell induced it to act on the assumption that a six year limitation period was applicable and, it being unconscionable for Hassell now to depart from that assumption, Hassell is estopped from doing so.
DSC instituted fourth party proceedings against DPPA and Poupoulas. Its claim is that the two certificates of structural adequacy provided by DPPA were provided, if the Council’s claims are established, in breach of a duty of care owed by DPPA, not only to the Council, but also to Hassell and to DSC. DPPA and Poupoulas have denied liability to make contribution to DSC.
As noted above, in Action No 663 of 2003, the Council seeks relief against Hassell and Cox only. On 7 April 2005 the Council instituted separate proceedings (No 364 of 2005) in which DSC, DPPA and Poupoulas are the defendants. It asserts in these proceedings an entitlement to recover damages in respect of the defects in the Centre by reason of the breaches of duty of care owed to it by DSC, DPPA and Poupoulas. The Council does not allege that it had entered into a contract with DPPA or Poupoulas. It contends instead that it was the City of Marion which had retained DPPA. It also alleges that DPPA and Poupoulas had provided five certificates of structural adequacy. The Council seeks, to the extent necessary, an extension of time pursuant to s 48 of the LAA for the institution of its proceedings.
By its defence DSC raises, amongst other things, the limitation defences, both statutory and contractual, to which reference has already been made. DPPA and Poupoulas deny liability to the Council but have not raised any defence of time limitation.
All defendants have raised in their pleadings the operation of s 72 of the Development Act 1993 (SA). In relation to all the pleas that its claims are statute barred, the Council has indicated an intention to rely upon s 73 of the Development Act. Reference will be made below to these provisions.
An order has been made consolidating Action No 663 of 2003 with Action No 364 of 2005.
The Separate Action
As already noted, all defendants other than DPPA and Poupoulas have raised a defence of a statutory time limitation. In addition, Hassell and DSC have also raised the contractual time limitation of six years contained in cl 7.02 of the Hassell Agreement.
On 27 May 2005 the Council instituted separate proceedings (Action No 572 of 2005) against its former solicitors Norman Waterhouse (“the Former Solicitors”) alleging an entitlement, in the event that the statutory or contractual time bar defences succeed, to recover damages from them. The claim is made on the ground that it was the breach of retainer, or breach of a duty of care owed by the Former Solicitors, which allowed the proceedings to be instituted out of time. By their defence, the Former Solicitors deny the Council’s claims are statute barred and contend, in the alternative, that the Council should, in any event, be entitled to an extension of time.
An order has been made that Action No 572 of 2005 against the Former Solicitors be called on for trial at the same time as the consolidated action, and be heard and determined immediately after the consolidated action. The Former Solicitors have been given leave generally to intervene in the consolidated action.
The Application of DSC
As finally amended, DSC seeks to have the following four questions tried in advance of the remaining issues in the trial.
1.1Whether the true meaning of the Hassell Agreement and the Sub-Consultancy Agreement is that the plaintiff is barred from prosecuting or otherwise prevented from making its claim in tort against DSC in Action 364/05 for defaults in its performance of the DSC Engineering Services, taking account of the subsidiary question:
1.1.1 Is DSC, as an entity which is not a direct party to the Hassell Agreement, able to obtain the benefit of clause 7 of the Hassell Agreement as a limitation defence against the Council?
1.2Whether the true meaning of the Hassell Agreement and the Sub-Consultancy Agreement is that Hassell is barred from prosecuting or otherwise prevented from making its claim against DSC in Action 663/03 for defaults in its performance of the DSC Engineering Services, taking account of the subsidiary question:
1.2.1 Is Hassell now barred from prosecuting or otherwise prevented by the Sub-Consultancy Agreement from making a claim against DSC for indemnity from liability to the Council as a party “claiming through or under” the Council?
1.3Are any of the limitation defences referred to in 1.1 and 1.2 above subject to statutory limitations defences or extension of time available thereunder?
1.4 Does s 72 Development Act apply to Action 364/05?
1.4.1 If the answer to question 1.2 is no or the answer to 1.3 is yes:
Does s 72 Development Act apply to Action 663/03?
DSC contends that if questions 1.1 and 1.2 are answered in its favour, no relief could be recovered against it, and that it could accordingly be excluded from the action. This would be of considerable benefit to it and the other parties, as the present estimates are that the trial could take 6-8 weeks.
The Application of Hassell
Hassell seeks to have the following three questions heard in advance of the remaining issues in the trial:
(a)in the event that the City of Onkaparinga (“the Council”) and/or Hassell Pty Ltd (“Hassell”) are barred from pursuing Dare Sutton Clarke Pty Ltd (“DSC”) in this matter, can the Court still apply s 72 of the Development Act 1993 (SA) to take account of any conduct of DSC?
(b)what is the proper operation of s 73 of the Development Act 1993 (SA) insofar as it reads: “despite the Limitation of Actions Act 1936 …”, ie, does s 73 apply to extend the primary time limits or limit any extensions of time?
(c)what is the effect on s 73 of clauses 7.02 and 7.04 of the Client and Architect Agreement (1993) entered into between The City of Noarlunga and Hassell on or about 22 November 1995, ie, does the limitation period therein override that set out in s 73?
Relevant Principles
Rule 75.02 of the 1987 Rules provides:
Subject to the preceding subrules, the Court may at any time or from time to time in any proceeding, order:
(a)    that different questions of fact arising therein be tried by different modes of trial;
(b)    that one or more questions of fact be tried before the others;
(c)     that any point or points of law arising on the pleadings be disposed of before proceeding to trial of the facts;
and may appoint the place or places of such trials.
The principles relating to applications under r 75.02 are well settled. I refer to the decisions in FAI General Insurance Co Ltd (in liq) v Sherry[1], Rivers v Rivers[2], and to Duke Group Ltd (in liq) v Alamain Investments Ltd (in liq) (No 2)[3].
[1] [2002] SASC 431; (2002) 225 LSJS 141.
[2] [2002] SASC 197; (2002) 220 LSJS 74.
[3] [2006] SASC 33.
The procedure contemplated by r 75.02(c) for the separate trial of questions of law is ordinarily only appropriate when the questions can be precisely defined and when the determination of those questions is likely to dispense with the further trial of some substantial issue in the action or, at least, to narrow substantially the area of dispute.[4] The procedure is not ordinarily appropriate in such cases if there is a dispute about the facts relevant to the questions which will have to be resolved by the Court, or if the Court must make assumptions about the correctness of the facts asserted.[5] It is quite inappropriate for the Court to attempt an advisory opinion on a hypothetical set of facts.[6]
[4]    FAI General Insurance Co Ltd (In Liq) v Sherry [2002] SASC 431 at [38]; (2002) 225 LSJS 141 at 147-8 per Doyle CJ.
[5]    Rivers v Rivers [2002] SASC 197 at [14]; (2002) 220 LSJS 74 at 77-8; Duke Group Ltd (In Liq) v Alamain Investments Ltd (In Liq) (No 2) [2006] SASC 33 at [23].
[6]    Rivers v Rivers [2002] SASC 197 at [14]; (2002) 220 LSJS 74 at 77-8.
When the questions raised involve questions of mixed law and fact, the use of the r 75.02 procedure is more problematic. There is then the additional difficulty of specifying precisely all the facts upon which the question is to be determined. As was pointed out by the High Court in Bass v Permanent Trustee Co Ltd “failure to identify the relevant facts or the means by which they are to be ascertained may result in procedures which do not conform to the judicial process”.[7]
[7] [1999] HCA 9 at [53]; (1999) 198 CLR 334 at 358, per Gleeson CJ Gaudron, McHugh, Gummow, Hayne and Callinan JJ. See also FAI General Insurance Co Ltd (In Liq) v Sherry [2002] SASC 431 at [38]; (2002) 225 LSJS 141 at 147-8.
One of the submissions made in opposition to the DSC application was that it would be inappropriate for the Court, in the event that it allowed DSC’s present application, to rule on the disputed issues “on an interlocutory application”. The submission, as I understood it, was that the trial of issues, whether of fact or of law, in advance of other issues in a trial pursuant to r 75.02 was an interlocutory hearing. The submission seems to be that the Court should approach its determination of the applications by DSC and Hassell with that view of r 75.02 in mind. I do not accept that that is the appropriate characterisation of r 75.02.
Rule 75.02 appears in a rule concerned generally with the mode of trial. It permits different questions of fact arising in the trial to be tried by different modes of trial (r 75.02(a)); it permits one or more questions of fact arising in the trial to be heard before others (r 75.02(b)); and it permits questions of law arising on the pleadings to be decided before the trial of the factual issues (r 75.02(c)). In effect, r 75.02 contemplates a trial being conducted in stages. With the possible exception of r 75.02(c), the commencement of the first stage of the hearing is the commencement of the trial. The circumstances contemplated in r 75.02(c) are a possible exception because of the ability of the Court to refer a question of law arising in the proceedings for consideration by the Full Court (r 72). Under r 75.02. the determination of a question at the first stage is a determination in the trial. If the question being tried in advance of others is not a question in the trial itself, it would be outside the scope of r 75.02, and the rule would have no application to it.[8] The determination of the question in the first stage is, subject to the matter I will mention next, a binding determination of that issue in the trial.
[8] Cf Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203.
It is true that the determination by the Court at the completion of the first stage of the hearing may not finally dispose of the rights of the parties and may, for that reason, be characterised as an interlocutory decision.[9] However, it would be only in exceptional circumstances that an issue determined in the first stage could be agitated again at a later stage in the trial. Thus, in the context of the analogous Federal Court Rule, Wilcox J held in McMullin v ICI Australia Operations Pty Ltd (No 7)[10] that in a trial in which issues of liability had been determined in advance of issues of quantum, the decision on liability could only be reopened if it was “incontestable” that the earlier decision was wrong. In that case, Wilcox J refused to allow the liability issue to be reopened despite the fact that since his determination of the liability issues, the High Court had delivered a decision in another matter which had some bearing on the issues decided.[11]
[9] Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246.
[10] [1999] FCA 1814; (1999) 169 ALR 227.
[11] Ibid at [20]; 231.
Consideration of Submissions – DSC Application

DSC characterised each of the four questions in its application as questions of law and submitted that they could be resolved by reference solely to the pleadings and to certain facts agreed by the parties. It submitted that no further evidence would be required. The Council and the Former Solicitors, on the other hand, contended that the first two questions proposed by DSC were questions of mixed law and fact which could not be resolved without the Court receiving further evidence. They opposed the applications of DSC and Hassell.
Cox did not seek to be heard at all, saying that it would abide the Court’s decision on the applications. DPPA and Poupoulas submitted that the Court should first be satisfied that there was no dispute as to the date which was the date of practical completion of the works for the purposes of cl 7.02. If there was no dispute about that date, DPPA and Poupoulas did not oppose the application for separate hearing of the issues raised. On the other hand, if there was a dispute about that date, DPPA and Poupoulas, as I understood their position, considered that a separate hearing of the points raised was inappropriate.
The proper characterisation of the first two questions raised by DSC is not altogether easy. That characterisation is complicated by the fact that each of the two questions incorporates a subsidiary question. Each of these questions has its origins in cl 7 of the Hassell Agreement. They each involve the construction and application of cl 7, and possibly cl 2.02.01 of the same Agreement. The resolution of these questions would involve the Court identifying and determining a number of sub issues which have not been identified separately. These include the inter-relationship between cl 7.02 on the one hand, and cl 7.04 on the other and the related question of the circumstances in which it is open to a non-party to a contract to enforce a contractual provision said to have been made for its benefit. The fact that each of the sub questions involved in a determination of the first two questions has not been separately identified makes an assessment of their suitability for a separate hearing in a staged trial difficult. In particular, the absence of a separate identification of each of the further questions makes it difficult to be confident that all the facts necessary for their determination have been admitted or agreed. As noted above, the authorities suggest that there should be a clear definition of the questions of law identified for separate consideration pursuant to r 75.02(c).
There is another difficulty. A critical date in the operation of cl 7.02 is “the Date of Practical Completion of the Works”. That expression is not defined in the Hassell Agreement. So far as I am aware, the expression “practical completion” appears only twice in the Hassell Agreement, once in cl 7.02 itself, and once in a schedule suggesting that it was contemplated that Hassell would issue a notice of practical completion. It may be noteworthy that cl 7.02 refers to the date of practical completion, and not to the date of certification of practical completion, nor to the date of delivery of a notice of practical completion.
DSC contends that the date of practical completion of the works for the purposes of cl 7.02 was the date of certification of practical completion by Hassell. This date is agreed by the parties to have been 27 January 1998. The Council contends that practical completion was not achieved until April 2002 by which time Cox had completed some remedial works. If the DSC-preferred construction is correct, the facts agreed between the parties identify the relevant date. If, on the other hand, the Council’s preferred construction is correct, evidence will be required in order that the Court may determine the “Date of Practical Completion of the Works” for the purposes of cl 7.02. That means that it is possible that the determination of the first two questions proposed by DSC will not result in a resolution of the issues of contractual time bar arising from cl 7.
DSC acknowledged that this was so but submitted that if the first two questions were resolved in its favour, it would mean that neither the Council nor Hassell could succeed in their respective claims against it. I acknowledge that that is so and accept that that is a relevant consideration. However, the point which has already been made, namely, that resolution of the first two questions will not necessarily result in a narrowing of the issues at trial is also pertinent.
The Council and the Former Solicitors also submitted that there were additional facts bearing upon the proper construction of cl 7 of the Hassell Agreement which had not been agreed between the parties, and which would necessarily have to be the subject of evidence. As the expression “Date of Practical Completion of the Works” is not defined in the Hassell Agreement, the submission was that extrinsic evidence would be necessary and admissible for the purposes of allowing a proper construction of that phrase. I accept this submission in principle. A conclusion that the first two questions are questions of law does not preclude the possibility that evidence may be necessary in order to resolve the questions of construction which arise. In Codelfa Construction Pty Ltd v State Rail Authority of New South Wales[12] Mason J said:
The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.[13]
Mr Abbott, for the Former Solicitors, referred to Manufacturers’ Mutual Insurance Limited v Withers & Anor[14] in which McHugh JA, in reference to the above passage from Codelfa, said:
… few, if any, English words are unambiguous or not susceptible of more than one meaning or have a plain meaning. Until a word, phrase or sentence is understood in the light of the surrounding circumstances, it is rarely possible to know what it means. In my view evidence of surrounding circumstances will generally be admissible if it is known to both parties or sufficiently notorious to be presumed to be within their knowledge.[15]
This passage in the judgment of Manufacturers’ Mutual Insurance was approved by Clarke JA in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd.[16]
The submissions of the Council and of the Former Solicitors to the effect that extrinsic evidence would be necessary were put at a level of generality. Counsel acknowledged that there was no evidence presently before the Court indicating the form, nature or content of the extrinsic evidence which may be led and it seemed, even at this stage of the proceedings, that neither counsel had instructions as to the evidence of this kind which their clients would in fact wish to lead. This means that the Court is asked to consider the appropriateness of the DSC application by reference to what may possibly happen at trial, and not by reference to the parties’ present actual intentions.
[12] (1982) 149 CLR 337.
[13] Ibid at 352.
[14] (1998) 5 ANZ Ins Cas ¶60-853.
[15] Ibid at 75,343.
[16] (1992) 27 NSWLR 326 at 358-9. See also Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 at [101]; (2002) 76 ALJR 436 at 455 per Kirby J; LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74 at [41] per Young CJ in Eq.
I do not regard that position as altogether satisfactory. The Council and the Former Solicitors were inclined to submit that they had no evidentiary onus on an application of this kind. Instead, it was submitted that it was for DSC to establish the appropriateness of the Court proceeding pursuant to r 75.02 by negativing the need for any oral evidence at the first stage of the trial. In my opinion, that approach fails to give sufficient heed to the oft quoted passage from Blatch v Archer,[17] ie, that all evidence is to be weighed according to the power of one party to produce it and of the other to contradict it. DSC asserts, in effect, a negative proposition, ie, that no evidence apart from the agreed facts is required for the determination of its questions. There are well-known difficulties in proving a negative proposition. The Council and the Former Solicitors on the other hand make the positive assertion that evidence will be required. In these circumstances, and given the period for which these proceedings have been on foot, it is reasonable to suppose that the extrinsic evidence to be called would have been identified, and counsel able to point to it. Instead, as noted, the submissions of the Council and the former solicitor were put at a level of generality.
[17] (1774) 1 Cowp 63 at 65; 98 ER 969 at 970.
DSC pointed to the absence of any pleading of facts concerning the surrounding circumstances said to be relevant. I do not attach any significance to the absence of such a pleading. It would amount to a pleading of evidence and, by reason of r 46A.02(b) litigants are to plead only the material facts relied upon, and not the evidence or arguments by which they are to be proved.
Having regard to the absence of any definition of the expression, “Date of Practical Completion of the Works” in the Hassell Agreement, I am prepared to accept that there is a reasonable prospect of extrinsic evidence being led, at the least, of the circumstances surrounding the formation of the contract which may assist in identifying its meaning. The Cox Agreement was not entered into until well after the formation of the Hassell Agreement. It may well be that the Council and Hassell had referred to a particular form of construction agreement in which the expression “Date of Practical Completion of the Works” was used. There are other possibilities. Further, I accept that there is the prospect that the persons from whom extrinsic evidence on this topic may be adduced may be persons who will give evidence on other issues arising in the trial. A circumstance in which the Court may have to evaluate on two separate occasions within the one trial the evidence of one or more witnesses is to be avoided.
The utility of the DSC proposed question 3 is unclear. As I understand it, no party suggests that s 48 of the LAA applies to a period of limitation fixed by a contract. On the contrary, s 48 of the LAA permits the Court to extend periods of limitation stipulated by an Act, Regulation, Rule or By-law. In my opinion, the resolution of question 3 would not dispose of some substantial issue in the trial nor narrow substantially the areas of dispute between the parties.
Question 4 of the DSC application raises two questions about the application of s 72 of the Development Act which provides:
(1)     If—
(a)     building work is defective; and
(b)     the defect or defects arise from the wrongful acts or defaults of two or more persons; and
(c)     those persons would, apart from this section, be jointly and severally liable for damage or loss resulting from the defective work; and
(d)     an action is brought against any one or more of those persons to recover damages for that damage or loss,
the court may only give judgment against a defendant, or each defendant, for such amount as may be just and equitable having regard to the extent to which the act or default of that defendant contributed to the damage or loss.
(2)An act or default for which a person is vicariously liable will be taken to be an act or default of that person for the purposes of this section.
The application of s 72 in the present case will depend, amongst other things, on whether the conditions specified in sub-paragraphs (a)-(d) inclusive are established. That seems to involve the determination of issues of fact which go beyond the scope of the facts presently agreed between the parties. For example, the Court would have to find that the construction of the Centre was “defective” within the meaning of s 72(1)(a) and further, would have to find that the defect or defects “arise from the wrongful acts or defaults of two or more persons”. That would involve the Court having to make findings of fact.
For these reasons, I am not satisfied that an order, pursuant to r 75.02, is appropriate in relation to the questions proposed by DSC.
Consideration of Hassell Application
The three questions proposed by Hassell for determination in advance of others have been set out above. These questions seek a determination of the application of s 72 and s 73 of the Development Act in the circumstances of this case. Section 72 of the Development Act has been set out above. Section 73 provides:
(1)Despite the Limitation of Actions Act 1936 , or any other Act or law, no action for damages for economic loss or rectification costs resulting from defective building work (including an action for damages for breach of statutory duty) can be commenced more than 10 years after completion of the building work.
(2)This section does not affect an action to recover damages for death or personal injury resulting from defective building work.
(3) The period prescribed by subsection (1) cannot be extended.
I accept that the questions proposed by Hassell are questions of law and further, that no evidence would be required for the determination of those questions. I also accept that it may be of some advantage (even if only in settlement negotiations) to the parties to know the determination of these questions as they prepare for the substantive trial.
Nevertheless, I consider it inappropriate for the questions proposed by Hassell to be determined in advance of others in the trial.
First, there is a close relationship between the questions proposed by DSC, on the one hand, and the questions proposed by Hassell, on the other. Mr O’Sullivan, who appeared for Hassell, submitted that questions 2 and 3 proposed by Hassell were “precursors” to the first and second questions proposed by DSC. He also accepted, as I understood it, that Hassell’s first question depended for its appropriateness on the Court having agreed to order a separate hearing and determination of the first and second questions proposed by DSC. In those circumstances, the rejection of the DSC application has an obvious (and adverse) effect on the Hassell application.
In addition, the uncertainty as to the meaning of the expression “Date of Practical Completion of the Works” contained in cl 7.02 means that there is a real risk that these questions may turn out to be of no practical utility in the proceedings. If the Council’s view as to the date upon which practical completion of the works occurred is accepted ultimately, then the questions proposed by Hassell will not arise at all in the proceedings and will not have to be considered. In other words, there is a prospect that the questions proposed by Hassell will turn out to be hypothetical. I accept the submission of DPPA and Poupoulos on this topic.
These considerations are sufficient to indicate that the Hassell application should be rejected.
General Considerations
Both DSC’s and Hassell’s submissions indicated that substantial savings in the time required for trial could be achieved if the questions proposed by them were heard in advance and, particularly in the case of DSC, determined in the way in which it proposed. I accept that that may be so. On the other hand, counsel seem to accept that there was a high probability of a losing party exercising rights of appeal after the determination of the first stage. This could have the effect of either delaying the completion of the second stage of the trial, or alternatively complicating in other ways stage two of the trial.
I have taken account of these considerations also in my decision to refuse the applications.
I mention also that DSC initially sought to rely on r 63 in relation to the first two of its questions. I have thought that procedure to be inappropriate, and did not understand DSC ultimately to rely on r 63.
Conclusion
For the reasons given above, each of the applications of DSC and Hassell for the hearing and determination of certain issues in advance of others is refused. I will hear the parties as to costs and as to any other issues.