Jones v United Fitness Corporation Pty Ltd - [2022] SADC 118

District Court of South Australia
(Civil)
JONES v UNITED FITNESS CORPORATION PTY LTD
[2022] SADC 118
Reasons for Decision of her Honour Judge Deuter
29 September 2022
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS - CONSOLIDATION OF PROCEEDINGS
The applicant claims damages for personal injuries sustained by her on 7 June 2016 when using equipment at a gymnasium owned and operated by the respondent. Proceedings were not commenced until 12 May 2020, outside of the three year time limit set out in s 36(1) of the Limitations of Action Act 1936 (the Act). As a result, the applicant seeks an extension of time pursuant to s 48 of the Act.
The respondent has made application for an order pursuant to r 151.1(2) of the Uniform Civil Rules 2020 for a separate and preliminary trial to determine the applicant's application for an extension of time. The respondent submitted that such a trial could determine the litigation, with a saving of costs for the respondent and time for the court.
The applicant opposed the application and submitted that the respondent had not established good reason to depart from the general rule that all issues should be determined within a single trial. It was argued that credibility issues would be in dispute in both trials, and that the respondent had not demonstrated that the utility, economy and fairness of conducting a separate trial was beyond question given the likely duplication, particularly of issues relevant to the expert medical evidence.
HELD: The respondent has not established that in all the circumstances the utility, economy and fairness to the parties of conducting a separate and preliminary trial is beyond question.
Orders:
1.      The Respondent's application pursuant to UCR 151.1(2) for leave for a separate trial to decide as a discrete preliminary issue the Applicant's application for an extension of time to issue proceedings is dismissed.
2.      Costs of and incidental to the application are reserved until further order.
3.      The parties are to be heard as to any further orders as required.
Limitations of Actions Act 1936 (SA) ss 36(1) & 48; Australian Consumer Law ss 60 & 61; Uniform Civil Rules 2020 r 1.5, 3.1, 151; Australian Competition and Consumer Act 2010 (Cth) Schedule 2, referred to.
Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369; SA Water Corporation v United Water International Pty Ltd [2009] SASC 383; Tepko Pty Ltd v The Water Board [2001] HCA 19; Perre v Apand Pty Ltd (1999) 198 CLR 180; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215; Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd & Anor (No 2) [2011] SASC 90; Wells v Council of the City of Orange [2016] NSWFC 589; Ireland v Wightman [2014] SASCFC 52; Wells v Commonwealth of Australia [2014] NSWSC 148; Sola Optical Australia v Mills (1987) 163 CLR 628; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Finmores (No 3) Pty Ltd v Evans [1998] SASC 6820; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors [2020] SASC 161, considered.

JONES v UNITED FITNESS CORPORATION PTY LTD
[2022] SADC 118
CIVIL
Introduction

Emily Jones (the applicant) suffered personal injury on 7 June 2016 when attending a gymnasium business at Victor Harbor operated by the respondent (the gym). The injury was suffered by the applicant when she was using a machine (the machine) to which cables were attached and it toppled over and fell on to her (the incident).
On 12 May 2020 the applicant issued these proceedings claiming damages pursuant to a cause of action in negligence, pleading that the respondent by its employees, servants and agents had failed to properly affix the machine to the floor, or at all, and failed in a number of other ways in complying with its duty to exercise reasonable care to minimise the risk of injury to users of the machine.
The proceedings were issued nearly 11 months outside of the three year time limit prescribed by s 36(1) of the Limitation of Actions Act 1936 (the Limitations Act). As a result, the applicant seeks an extension of time to issue the proceedings pursuant to s 48 of the Limitations Act, upon the basis that facts material to the case were not ascertained by her until a point of time occurring after the expiration of the limitation period. The detail of the particulars upon which the applicant relies in seeking that extension of time, I will come to later.
The solicitor acting for the applicant filed an affidavit on 25 March 2022, attaching a Statement of Claim Revision 1.[1] It is agreed by the parties that, for the purposes of the application currently before the Court, the matter is to proceed on the basis of this revised statement of claim (the Amended Claim).
[1] FDN24.
By the Amended Claim, the applicant introduces a claim pursuant to the Australian Consumer Law[2] (the ACL) claiming that the respondent breached implied guarantees contained in sections 60 and 61, as to due care and skill and fitness for purpose of the machine. No further facts are pleaded in relation to the application to seek an extension of time pursuant to s 48 of the Limitations Act.
[2] Competition and Consumer Act 2010, Schedule 2 (Cth).
In its defence[3] the respondent, on a number of bases, denies negligence admitting only that it owed a general duty of care to members of the gym, including the applicant. The respondent pleads that such duty was limited to matters within its control, to minimise or avoid foreseeable risk of injury insofar as reasonably practicable, which duty they had discharged. The respondent also claims that the previous owners of the gym and others were the cause of any incident giving rise to the applicant’s injuries, and that the applicant was guilty of contributory negligence as a result of the manner in which she used the machine, meaning that she had failed to take proper care for her own safety.
[3] FDN6.
In relation to the injuries suffered by the applicant, the respondent denies that injuries were sustained in the incident or at all, and in the alternative pleads that the applicant has sufficiently recovered from any injuries such that she no longer experiences pain or suffering, or that such pain, suffering or loss of amenity is minimal. The respondent claims that the applicant has been able to resume her pre‑accident social, domestic, recreational, sporting and work activities and that, as a result, she has no requirement for ongoing medical treatment, or paid or voluntary services to assist her in her daily life. The respondent pleads that the applicant is not suffering any impairment of her work or earning capacity or that she has sufficient residual earning capacity to obtain alternative employment and thereby negate or reduce any economic losses. Finally, it is pleaded that the applicant suffered a condition or conditions which pre‑existed the incident; and in the alternative that the incident merely aggravated any such pre‑existing conditions temporarily or in an insignificant degree.
Application for an extension of time
The applicant seeks an extension of time to bring her proceedings upon the basis that facts material to her case were not ascertained by her until after the expiration of the three‑year limitation period. Those facts were that:
1.On 30 April 2020 she learned that the respondent was the occupier of the gym; this fact being an essential element of the cause of action pursuant to s 48(3a)(a) of the Limitations Act;
2.No earlier than 8 August 2019 she received a medical report of Dr Nick Pourgiezis, orthopaedic surgeon, dated 14 August 2018 from which, for the first time, she ascertained a number of facts related to her left ankle injury suffered in the incident, including: the impact of those facts upon the assessment of her future medical needs; her pain and restriction of function in her left leg; the possible requirement of future surgery and the impact of her left ankle injury upon her future work capacity;
3.No earlier than 28 August 2019 she received an activities of daily living report of Mr Olivio Varrichio, Occupational Therapist, from which she ascertained, for the first time, a number of facts related to her need for domestic assistance and equipment, and the costs thereof into the future as a result of the injuries sustained in the incident; and
4.No earlier than 12 November 2019 she received a report of Mr Gilles Hammond, psychologist, dated 12 November 2019 from which she ascertained, for the first time, a number of facts related to psychological injury suffered as a result of the incident, including that she suffered from five different psychological disorders for which she required treatment by a psychologist, referral to a psychiatrist and prescription medication.
The applicant pleads that these facts ‘will have major significance on the assessment of [her] loss’.[4] She also pleads that, as a result of the respondent being aware of her claim since at least 14 June 2016 and the period of extension sought being less than 12 months, a fair trial will not be prejudiced by the delay, and that the seriousness of the applicant’s injuries and the fact that the failure to commence proceedings within time was not the applicant’s fault, it is just to grant the extension of time sought.[5]
[4] Paragraph 27.2 of the Amended Claim.
[5] Paragraph 28 of the Amended Claim.
The respondent pleads in response that the matters relied upon by the applicant in seeking an extension of time pursuant to s 48 of the Limitations Act do not constitute ascertainment of facts material to the applicant’s case sufficient to enliven the power to extend the period of limitation. In particular, the respondent argues that the applicant was aware of her injuries prior to receiving the medical evidence and the reports upon which she relies in seeking an extension of time. It is pleaded that the applicant’s failure to commence proceedings within the limitation period was a consequence solely of her failure to instruct her solicitors to issue proceedings, or in the alternative, the solicitors’ failure to do so within time. The grant of an extension would not be just and equitable in the circumstances.[6]
[6] Paragraphs 12 and 13 of the Defence (FDN6).
The application for a separate and preliminary trial
The respondent has made application for an order that the applicant’s application for an extension of time be listed for a separate trial (the application).[7] The respondent submits that there is a good argument that the applicant is not entitled to an extension of time and that the issue of an extension can be addressed in a confined way. As a result, there would be real benefit in there being an early and preliminary determination of the issue, as it would then avoid entirely the need for a full trial on all issues involving the respondent. In bringing the application the respondent relies upon Rule 151.1(2) of the Uniform Civil Rules 2020 (UCR), which provides that the court has power to order that there be a trial of separate issues in a proceeding. The respondent also relies upon s 48(5) of the Limitations Act, which sets out that proceedings in relation to s 48 may be determined by the court, any time before or after the close of proceedings. It is argued that the purpose of that sub‑section is to affirm that limitations issues are in a special category, and strengthens the argument that the issue is one that can be determined as a preliminary issue.
[7] FDN12.
The respondent argues that the application in relation to s 48 of the Limitations Act can be argued as a discrete issue in this action as extensive evidence would not be required in relation to the medical issues. It is argued that the applicant’s medical issues are critical in this matter, but the validity of the medical opinions are not in dispute. It is submitted that it is the materiality of the reports to the applicant’s decision to commence proceedings, although out of time, that must be established.
Legal Principles
(a) Application for a Separate Trial
As noted above, the respondent’s application is made pursuant to UCR 151.1, which states:
(1)Unless the court otherwise orders, when it is ordered that a matter proceed to trial, there is to be a single trial of all issues (other than costs) in the proceeding.
(2)The court may order that there be separate trials of separate issues in a proceeding and may determine the order in which such trials are to be heard or determined.
Examples are provided in the rule as to where a separate trial of a separate issue may be ordered. One example is:
In an originating application in which there is an issue whether the applicant has standing to bring the proceeding, the Court might order that the trial of that issue proceed first, to be followed by a trial of all other issues.
The respondent submits that the issue of whether the applicant’s claim is barred by the Limitations Act, unless an extension of time is granted by the court, is an issue of standing. It is agreed that the power of the court to order separate trials to determine a discrete issue is a discretionary one to be exercised in a judicial manner.[8]
[8] SA Water Corporation v United Water International Pty Ltd [2009] SASC 383 [46].
Despite the provisions of UCR 151.1(2), the general rule is that all issues should, for the efficiency of court processes, be dealt with in a single trial. This was confirmed by White J in Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC, (Abigroup) where he stated:
The trial process should not be unduly fragmented. In particular, it is inappropriate that one judge be asked to hear and determine disputed issues of fact, which involve an assessment of the credibility and reliability of the same witnesses, in more than one trial arising from the one action. Further, the experience of the courts has been that splitting issues arising from the one action for separate determination with a view to shortening proceedings and saving costs frequently results in prolongation of the proceedings and the incurring of additional costs.[9]
(Emphasis added)
[9] [2008] SASC 369 at [93].
The dangers of, and the illusion of saving costs and avoiding delay by ordering separate trials was considered in Tepko Pty Ltd v The Water Board (Tepko),[10] where Kirby and Callinan JJ held:
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 case is knocked out of a trial on 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.[11]
(Emphasis added)
[10] [2001] HCA 19.
[11] Ibid at [168]-[170]
Similar views were again expressed by Callinan J in Perre v Apand Pty Ltd:[12]
Care does need to be taken in deciding whether to conduct separate trials of different issues. It sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid. In tort cases in which damage is the gist of the action, it will generally be undesirable to accede to requests for them, or to order them, unless all parties accept that compensable damage has been sustained by the plaintiffs or applicants as the case may be.[13]
[12] (1999) 198 CLR 180 at [436].
[13] Ibid at [436].
Taking these statements into account, it is necessary in determining the respondent’s application to examine in detail the nature of the applicant’s case as a whole, and to consider the extent to which there will be savings of costs by determining the limitation issue in a separate trial, before a trial on the substantive issues. This will require me to review the applicant’s case generally and the matters that she relies upon in seeking an extension of time, particularly the materiality of the facts which she pleads; those which she only became aware of after the expiry of the limitation period for the issue of proceedings. It is my view, having reviewed the authorities, that to order a separate, preliminary trial as sought by the respondent, I must be satisfied that there is utility, economy and fairness to the parties and the court in doing so.
In exercising my discretion when determining the application, I am required to have regard to the matters outlined by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd[14] (Idoport) where he identified instances where separate trials may be appropriate and where they would not be. The principles, and the factors outlined by Einstein J, have been approved in other appellate decisions.[15] The factors to be considered are whether:
(a)the resolution of the separate issue would have the effect of resolving the entirety of the issues in dispute, or substantially narrowing the field of those issues;
(b)the resolution of the separate issue will carry with it a strong prospect that the parties will then be able to resolve the dispute themselves and avoid further litigation;
(c)there is a clear demarcation between the separate issue and all other issues in the case, including issues going to the credit of the witnesses;
(d)the issues of facts or issues of law overlap between the separate question in issue and the questions required to determine the substantive issues in the case to the extent that determination of the separate issue will not have a substantial impact upon the length of the trial;
(e)there is a commonality of witnesses and issues of credit as between the separate issue and the other issues in the case, which will likely necessitate a ruling on the credit of one or more of the common witnesses, thereby precluding the same judicial officer from dealing with the matter in a second trial;
(f)there is a risk of a fragmentation of the proceedings where the determination of the separate issue will not finally conclude the proceedings but will result in an appeal from that decision creating a multiplicity of proceedings and extra delay and costs.
[14] [2000] NSWSC 1215 at [16]-[22].
[15] Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd & Anor (No 2) [2011] SASC 90; Wells v Council of the City of Orange [2016] NSWSC 589 at [12].
As the judges in Tepko had later concluded, Einstein J also found that the experience of the courts was that a separation of proceedings did not often result in a quicker and cheaper resolution of the proceedings, but often has the reverse effect in causing delay and additional expense. He therefore concluded that before an order is made that an issue should be decided by a separate trial, it must be established that the earlier trial will lead to a quicker and cheaper resolution of the proceedings.
(b) Section 48 of the Limitations Act – Extension of Time

In determining the threshold issue set out by the courts in Tepko and Idoport, it is important to consider what a court must take into account in determining whether the time for the issue of proceedings should be extended pursuant to s 48 of the Limitations Act. Sections 48(3)(b), 48(3a) and 48(3b) of the Limitations Act provide that a court cannot extend a limitation period unless it is satisfied:
48(3)(b)(i)That facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii)That the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
(3a)A fact is not to be regarded as material to the plaintiff's case for the purposes of subsection (3)(b)(i) unless—
(a) it forms an essential element of the plaintiff's cause of action; or
(b) it would have major significance on an assessment of the plaintiff's loss.
Example-
In a case involving personal injury, a fact might qualify as a fact material to the plaintiff's case if it establishes—
(a)a substantial reduction of the plaintiff's capacity to work; or
(b)that the plaintiff will require substantially more medical care than previously expected; or
(c)a significant loss of expectation of life.
(3b)In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to—
(a)the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and
(b)the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and
(c)the nature and extent of the plaintiff's loss and the conduct of the parties generally; and
(d)any other relevant factor.
These sections of the Limitations Act provide the factors that a court is required to consider at any trial to determine whether an extension of time should be granted in the context of the applicant’s case as a whole. The same consideration would be required if there was a separate trial. The factors include issues of the materiality of any fact learned by her after the time limit had expired, and questions regarding whether those facts are an essential element of the applicant’s case, or are of major significance in relation to the assessment of her loss.
The extent of the delay in bringing the proceedings and the reason why there was such a delay are also important factors to be determined when considering an extension of time. This however will be in the context of the injuries suffered in the incident, and the impact of those injuries.
Section 48(3a)(b) of the Limitations Act was considered by the Full Court in Ireland v Wightman[16], where a separate trial had been conducted in relation to the issue of an extension of time to institute proceedings seeking damages for personal injury sustained as a result of a motor vehicle accident. In that matter, the proceedings had been commenced three years and five months after expiry of the three year time limit, and therefore some six years and five months after the accident. The plaintiff had suffered serious injuries, including a dislocated right shoulder and a fractured left wrist, both of which had required surgery, in addition to a psychological response. There were unusual reasons for the delay in instituting proceedings related to the plaintiff allowing an underage driver, who caused the accident, to drive his car. Over five years after the accident, the plaintiff consulted a psychologist in relation to his uncontrolled moods and nightmares. He was diagnosed with suffering an adjustment disorder with anxiety and it was opined that these psychological conditions had been caused by the accident.
[16] [2014] SASCFC 52.
At a separate trial, on the limitations point only, the defendant’s submission that the opinion of the psychologist that any mental harm suffered by the plaintiff was not of major significance to the assessment of damages, was rejected. The magistrate found for the plaintiff and granted the required extension of time. On appeal to a single judge of the Supreme Court, it was held that the facts disclosed in the psychologist’s report would be of major significance upon the assessment of the plaintiff’s losses within the meaning of s 48(3a)(b). This was upon the basis that the court was required to perform an evaluative exercise to determine whether a fact would have a ‘major significance’ on an assessment of the plaintiff’s loss. In the initial judgment, Justice Blue found that this did not require the impact to be high (or any other specific level), in both absolute and relative terms.[17] On the basis of the evidence of the plaintiff and the psychologist, Justice Blue concluded that the effect upon the plaintiff of his psychiatric disorders had been substantial, despite him being able to work fulltime since six months after the accident. The defendant brought an appeal before the Full Court.
[17] [2013] SASC 139 at [82].
In reviewing the decision, Justice Parker, with whom Vanstone and David JJ agreed, considered the purpose of the amendments to s 48 of the Limitations Act which introduced ss 48(3a) and 48(3b). It was his view that the effect of those amendments were twofold:
…sub‑section 3(a) restricted the circumstances in which a newly ascertained fact may be regarded as material for the purposes of s 48(3)(b)(i), whilst sub‑section (3b) specified additional criteria to be taken into account by a court when it determined whether it was just to grant an extension of time.[18]
[18] [2014] SASCFC 52 at [41].
He went on to note that it was therefore necessary to consider the meaning of the words ‘major significance on an assessment of the plaintiff’s loss’ in s 48(3a)(b). The crucial issue was ‘the meaning of the word “major”’[19]. He concluded that it was intended to mean ‘very important or significant’, as this was consistent with the examples set out in s 48(3a):[20]
That usage is consistent with the clear legislative purpose of narrowing the circumstances that may warrant the grant of an extension of time. Thus, the newly discovered fact may be regarded as material to the plaintiff’s case if it would be very important in the assessment of loss.
The requirement that the new fact must be major, in the sense of very important is consistent with the examples included in s 48(3a). Those examples refer to a substantial reduction of the plaintiff’s capacity to work, a requirement for substantially more medical care than previously expected or a significant loss of expectation of life.
The clear effect of s 48(3a)(b) is to require a comparison between the assessment of the plaintiff’s loss without the newly discovered facts being known and the assessment after those facts were ascertained. The statutory test will be satisfied if there would be a major (i.e. very important) difference between the two assessments.[21]
(Emphasis added)
[19] Ibid at [48].
[20] Ibid at [51].
[21] Ibid [51] – [53].
Justice Parker concluded:
…Accordingly s 48(3a) requires an overall judgment to be made in light of the evidence then available as to whether the newly found fact would be of major (i.e. very important) significance on the assessment of loss. However, where the available evidence permits, a numerical exercise may sometimes be helpful.[22]
[22] Ibid [55].
In reaching his conclusion, Justice Parker proceeded to consider the impact of the plaintiff’s psychiatric disorder upon his ability to work and the treatment he had required. He came to the conclusion that the psychiatric disorders were not of major significance on the assessment of loss and found that an extension of time should not be granted.
It is in the context of the provisions of s 48 of the Limitations Act and the statements of Justice Parker that it will be determined, whether the extent of the evidence, including the evidence received before the limitation period expired, provides sufficient reason for s 48 of the Limitations Act to be applied, and an extension of time be granted. In considering whether there should be a separate trial on that issue, the conclusions of the Court in Ireland v Wightman must be taken into account in determining whether there is a risk of the same evidentiary and credibility issues having to be considered and determined in two separate trials.
The application before the Court is not one to determine the extension of time issue, but rather to have that issue decided at a preliminary trial. I must consider the factors set out by Einstein J in Idoport for when it is appropriate to order a separate trial, in the context of s 48 of the Limitations Act. I must find, consistent with Tepko and Idoport, that for there to be a separate trial on the limitations issue, that it has been clearly demonstrated that such a trial will facilitate the quicker and cheaper finalisation of this action.
The submissions regarding a separate trial
(a) The Respondent’s submissions
The respondent’s counsel (Mr Bullock) relied principally upon the affidavit of Sally Gooch dated 26 May 2021[23] (the Gooch affidavit), which outlined the background of the matter and set out the respondent’s position that:
…there is a risk that if the limitations issue is not determined before trial, the respondent will be put to the cost and delay of a trial on all issues but may then succeed on the limitations issue. In those circumstances the respondent (and indeed applicant) will have incurred substantial wasted costs preparing for and conducting an unnecessary trial.[24]
[23] FDN13.
[24] FDN13 at [25].
Mr Bullock expanded upon this by referencing statements made by Adamson J in the New South Wales Supreme Court in Wells v Commonwealth of Australia,[25] (Wells) a case involving an application by the respondent to determine the applicant’s application for an extension of time, by way of a separate question under the New South Wales Uniform Civil Procedure Rules 2005. Although acknowledging that this was an interlocutory procedure as opposed to a separate trial, he noted that, as with the action before this Court, there would be no trial on the substantive issues if no extension of time was granted. He relied upon the following statement:
The length and complexity of any trial is a relevant consideration since no trial will occur if the plaintiff does not obtain an extension.[26]
[25] [2014] NSWSC 148.
[26] Ibid at [12].
In Wells it was estimated that the interlocutory process to determine if an extension of time should be granted would take five to six days, whereas a trial of all issues would likely take four to six weeks. However, there were also 12 related actions which also required extensions of time, and ‘overall preparation for any eventual trial could take months or years’.[27] It was however noted that there was minimal overlap between the issues likely to be considered on the extension of time proceedings and the issues to be determined at trial.
[27] Ibid at [14].
Mr Bullock submitted that a full trial of the matter before this Court would potentially be a two‑week negligence trial involving complex medical evidence. He relied upon the findings of Adamson J to argue that it was preferable to hear the extension of time issue first as a separate hearing. In coming to his conclusion, His Honour’s finding was that, having considered all factors, he was satisfied:
…the just, quick, and cheap resolution of the proceedings would be advanced by having Mr Well’s entitlement to pursue these proceedings determined separately and in advance of trial…[28]
[28] Ibid [65].
In my view this statement confirms the difference between the NSW interlocutory procedure and the requirement in South Australia that any extension of time application be determined by a full, if shorter, trial. This must be taken into account in determining how the decision in Wells and the comments of Adamson J are to be considered in the matter before this Court.
Mr Bullock relied upon the statutory provision in s 48(5) of the Limitations Act that specifically allows for the limitations point to be determined at any time before, or after the pleadings have closed, arguing that Parliament had clearly contemplated separate trials on the limitations issue. He argued that, on the facts of this action, there was a real issue to be determined on the out of time point as the applicant had instructed lawyers, and attended upon Dr Pourgiezis on multiple occasions before the time for the issue of proceedings had expired. In fact, Dr Pourgiezis had provided an earlier report dated 14 June 2018.[29] It was further submitted that the applicant had been utilising paid home services before the report of Mr Varrichio was provided, and that as a result of consulting with her general practitioner, she was aware as early as December 2016 that she was likely suffering from a psychological response to the incident.[30]
[29] Exhibit SG5 to FDN13.
[30] FDN13 at [18]-[22].
Mr Bullock submitted that, on the factual premise of the applicant’s application for an extension of time, there was a strong basis to argue that it will not be successful as the applicant had solicitors engaged before the time limit expired, and they were responsible for not complying with s 36 of the Limitations Act. He submits that there is an interest in maintaining a rigid approach to limitation periods where the failure to comply is as a result of another party’s negligence.
In determining the limitation issue at a separate trial, Mr Bullock submitted that the relevant comparison was what the applicant knew regarding her injuries and the liability of the respondent while the claim was still within time, and what facts she learned after the time limit had expired, and upon which she now relies to obtain an extension of time. Further, that this did not mean that the trial on the extension of time issue would necessarily be a contest between experts engaged by each party. The Court only had to determine whether the expert’s opinion relied upon was material to the applicant’s decision to issue proceedings.[31] In making that submission, Mr Bullock accepted that the Court would need some context of the factual matters in dispute and other expert opinion before materiality could be determined, and that there may be some overlap of evidence between both trials should the applicant be successful in obtaining an extension of time for the issuance of her proceedings.
[31] Relying upon the decision in Sola Optical Australia v Mills (1987) 163 CLR 628.
In considering how any overlap should be taken into account in determining the application, Mr Bullock again took me to the judgment in Wells where Adamson J set out issues relevant to the consideration of whether there should be a separate hearing on an extension of time. Those issues were:
…the extent to which there will be an overlap between the evidence required to be given at the separate hearing and at the trial; and whether there will be a challenge to the credibility of the witnesses who give evidence at the separate hearing which is likely to have implications for the trial: See generally Idoport at [7] per Einstein J.[32]
[32] [2014] NSWSC 148 at [16].
However, Adamson J went on to state that:
[22] …the existence of some overlap is not regarded as inconsistent with the interests of justice because there is the possible “benefit” that, if the plaintiff is unsuccessful the trial will be avoided.
….
[23] It is therefore necessary to determine the extent of any such overlap.[33]
[33] Ibid at [22]-[23].
Justice Adamson then proceeded to analyse the extent of the dispute between the parties and of the evidence required to determine the application for an extension of time against the evidence required on a trial of all issues. This was in the context of s 58(2) of the Limitation Act 1969 (NSW), which provides:
(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:
(a)any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the Limitation period for the cause of action, and
(b)there is evidence to establish the cause of action, apart from any defence founded on the expiration of a Limitation period,
The court may order that the limitation period for the cause of action be extended…
After he had considered the evidence, particularly what facts the applicant knew regarding the action against the respondent and when he learned of those facts, Adamson J stated:
I do not regard the potential for some overlap as being a strong factor against ordering a separate hearing. The question of the plaintiff’s credibility, if it arises, can readily be accommodated by ensuring that the judge who hears the extension application at the separate hearing is not the trial judge. Although there may be some overlap between the evidence adduced on the extension application to show the availability of evidence to establish the cause of action, there is a substantial difference in cogency and admissibility of the evidence required at each stage that I do not regard it as a substantial reason not to order a separate hearing.[34]
(Emphasis Added)
[34] [2014] NSWCA 148 at [37].
Mr Bullock relies upon this statement to argue that in this matter there will not be any significant overlap or credibility issues in having two trials, as the first trial will only be concerned with whether an expert’s opinion was received by the applicant after the three year time limit had expired, and not whether the expert opinion was correct. He posits that the applicant will simply be asked about what she knew of her injuries and her legal rights before time expired. He described these as surface level enquiries and ones which fit within the concept of a difference in cogency and admissibility.[35] The applicant must explain the reasons for her delay and the court then determine the reasonableness of that explanation.[36] Mr Bullock argues that those enquiries fit within the obligations of the applicant as set out in UCR 3.1.
[35] T23.12-30.
[36] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
It was submitted that those sorts of issues have been considered by Courts to be appropriate ones to be determined as a separate, early trial. In Finmores (No 3) Pty Ltd v Evans[37] Lander J set out that a hearing on the extension of time issue does not necessarily require the parties to set out their case in great detail or length. That it can be determined as a separate matter:
…Materiality cannot be judged upon a perception of how the parties conduct their cases at trial. Whether a fact is material is to be judged according to whether the fact is likely to have a bearing on the case. Whether the fact in due course is admitted is not the point. The question is whether the fact is likely to have a bearing on the case.[38]
[37] [1998] SASC 6820.
[38] Ibid at [64].
The respondent argues that these are issues that should be determined at a preliminary trial. The objectives of the Limitations Act in fixing a three year limitation period should carry great weight, and in the circumstances the respondent should not be required to conduct a full trial on all issues.

The respondent submitted that this was an issue of fairness and, applying Tepko, it must be taken into account that the statutory scheme set out in the Limitations Act means that the applicant has no right to pursue her claim against them until she has secured an extension of time pursuant to s 48(3). The applicant is seeking an indulgence by seeking an extension of time to issue proceedings. The respondent argues that there is nothing unfair in putting her to the cost and inconvenience of a separate trial to establish her procedural right to pursue an action in damages against the respondent. Whilst there is logic in that submission, and I agree that in any balancing exercise, any unfairness or penalty should rest with the party in default, there are other factors to take into account, including the cost and delay issues that impact the Court. As French CJ said in Aon Risk Services Australia Ltd v Australian National University[39] (Aon), although in a different context:
…the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials are to be taken into account.
[39] (2009) 239 CLR 175 at [5].
The majority in Aon noted that the overriding purpose of rules in all Australian courts was:
…to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense …[40]
[40] Ibid at [90].
They continued by noting in relation to principles of case management by the courts:
…The achievement of a just but timely and cost‑effective resolution of a dispute has an effect upon the Court and other litigants. [41]
[41] Ibid at [93].
These principles are confirmed in UCR1.5 where the object of the rules as they apply to all civil litigation in South Australia, is stated to be:
…to facilitate the just, efficient, timely, cost‑effective and proportionate resolution or determination of the issues in proceedings governed by these rules.
In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors, Doyle J (as he then was), set out that as the UCR are a statutory instrument, when considering the construction of any particular rule ‘a construction that would promote the purpose or object of the rules must be preferred to a construction that would not’.[42] In determining the construction of UCR151(2) and whether a separate trial should be ordered, I must take into account the purpose of the UCR as set out in UCR1.5.
[42] [2020] SASC 161 at [41].
(b) The Applicant’s submissions
The applicant’s counsel (Mr Blyth), relying upon the statements of the High Court in Tepko, submitted that there was no good reason to depart from the rule that all issues should usually be dealt with in one trial. He argued that there would be no savings in time or expense for the parties or the court in a separate trial on the extension of time issue in this matter, due to the overlap of the factual matters in dispute regarding the limitations issue and the claim as a whole.
In this regard Mr Blyth sought to distinguish the decision in Wells, a decision he acknowledged was the only case specifically on point where a court had granted a separate trial on an application for an extension of time. He pointed to a number of factual issues that he argued, make Wells a much different case to the one before this Court. Wells was a complex case concerning injury sustained over more than 30 years of employment. The claim was issued almost 30 years out of time, and as described above, it was estimated that trial preparation would take many months or years.[43] The trial was estimated to take four to six weeks, as opposed to the five‑ten days estimated for the trial of this matter. As such, there were very significant savings in time and expense in conducting a preliminary hearing of five to six days in Wells. Mr Blyth argued that, although Adamson J ordered a separate trial on the limitations issue despite there being an overlap in terms of evidence, the distinguishing features on the facts make Wells very different to the case before this Court. An important distinguishing feature was that in Wells the action was issued nearly 30 years out of time. The applicant was therefore seeking a substantial indulgence of the Court. In this matter the time frame is just less than 11 months. Mr Blyth argued that the prejudice to the respondent was significantly less.
[43] [2014] NSWSC 148 at [14].
Mr Blyth also submitted that the credibility issues related to the applicant’s case distinguishes it from Wells. Relying upon paragraph 12.2.8 of the defence,[44] where it is pleaded that ‘The Applicant was aware of her injuries prior to the medical evidence and reports relied upon’, he argues that there is a direct challenge to the applicant’s credibility, in relation to the facts pleaded in the Amended Claim regarding the material facts ascertained after the time limit for the issue of proceedings had expired. That attack on credibility is confirmed in the Gooch affidavit where, at paragraph 23, it is disputed that any matters pleaded by the applicant as new material facts are in fact new facts. Mr Blyth submitted that those challenges clearly raise questions as to what was in the applicant’s mind regarding the existence of the pleaded new material facts and when, in the factual chronology, they were or were not ascertained. He argued that the respondent has therefore, by its defence, put in issue the state of the applicant’s knowledge regarding her medical condition and the future consequences for her from the time she was injured until the time that the proceedings were issued out of time. As a result the applicant would be required to call, at any trial on the extension of time issue, all her medical expert witnesses together with her treating doctors to determine what she understood about the extent of, and the future consequences for, her injuries at the time proceedings were issued and thereafter. By putting the applicant’s knowledge in issue, corroborating medical evidence would be required to establish whether the applicant can be accepted on her case as to when she first became aware of the new medical facts pleaded being material to her case.
[44] FDN6.
Mr Blyth submits that this must be an issue of credibility, given the applicant’s pleas in the Amended Claim, regarding when she ascertained those facts. He relies upon the decision in SA Water Corporation v United International Pty Ltd (SA Water)[45] to argue that a ‘split’ trial would not be appropriate in this matter. This is because there is a challenge to the applicant’s credibility, and a significant amount of evidence that both parties would be required to call to establish the extent of the applicant’s knowledge regarding her medical issues before, as opposed to after, the time to issue proceedings had expired. This is especially the case in this matter as there is a deemed denial in the defence of the applicant having sustained any injuries in the incident, and a plea of recovery if any injuries had been sustained.[46] The applicant relies upon Tepko to argue that the matter is not one where the utility, economy and fairness of a separate trail is beyond question.
[45] [2009] SASC 383.
[46] Paragraph 10 of the Defence (FDN6).
In response to this submission, the respondent again relied upon a comment made by Adamson J in Wells to argue that if credibility did become a significant issue and findings were made in that regard at the first trial, a second judge could hear any further trial. Mr Bullock described this as ‘…just a procedural issue that has to be managed’.[47]
[47] T39.19-20.
I will come back to consider the credibility issues in due course. However, in a court the size of the District Court, that has all judges also sitting on criminal trials, the potential that two different judges may be required to hear and determine all issues in this action is a significant matter to take into account. It could also be considered an Aon‑type issue, in that it would be an inefficient use of the Court’s resources. In relation to this issue I also take into account what White J said in Abigroup regarding credibility and reliability issues when witnesses give evidence in two trials and the inappropriateness of the one judge hearing both trials.
Finally, Mr Blyth argued that the Court, in deciding the issue of an extension of time pursuant to s 48 of the Limitations Act, must determine the materiality of the facts claimed to be learned new facts; and it must have before it enough evidence regarding the applicant’s injuries, current condition and prognosis to assess whether the new facts are, in fact, material. This means when determining the materiality of the report of Mr Varrichio and the evidence contained therein regarding the applicant’s future care needs, the court would have to hear evidence on, and determine the level of care the applicant was receiving, and the nature and extent of care prior to the date of the report. The same reasoning must be applied in relation to the determining the materiality of the psychological diagnosis of Mr Hammond as set out in his report of 12 November 2019, by which the applicant alleges she first learned of five different psychological/psychiatric disorders. Mr Blyth argues that whether Mr Hammond’s report is material to the applicant’s case, as defined in s 48(3a) and (3b) of the Limitations Act, can only be determined by reviewing the evidence surrounding the applicant’s knowledge of her psychological state before November 2019, including what she had been told by her treating practitioners, and what they may have set out in earlier reports. He argues again that this can only be determined by calling the treating and expert doctors, specialists and psychologists to give evidence, the materiality of one piece of evidence can only be determined by assessing all of the medical evidence.
The applicant submits that in all the circumstances the application of the law to the facts of this matter, particularly the statements of the High Court in Tepko, concludes against the order sought by the respondent for a separate trial on the extension of time issue. It is submitted that a split trial would not result in any cost saving as there would be substantial duplication of the evidence over two trials. In that respect, it was argued that a split trial would be contrary to the express purpose in UCR 1.5, being to promote the ‘just, efficient, timely, cost-effective and proportionate resolution or determination of issues.’
Consideration of Argument
In summary, the respondent asserts that a limited trial, as a preliminary point, on the applicant’s application for extension of time to issue proceedings would save much time and expense. The savings were for both parties and the Court. It was argued that this was because there were only a few witnesses who would be required to give evidence to resolve the application. Mr Bullock submitted that the trial would be ‘relatively confined’ and ‘could be done in a day’ as opposed to a trial of all issues that would likely take two weeks.[48]
[48] T45.16-18.
Mr Bullock’s argument was that prior to the expiration of the time period the applicant was well aware she had suffered injury in the incident and some medical evidence had been obtained. The only issue to be determined at a separate trial was whether the medical evidence obtained thereafter was material to her case in the context of what was known before; that this will be an objective inquiry. It was not necessary for the Court to find, on a subjective basis, that the new material facts influenced the applicant’s decision to issue proceedings.[49] In making this argument, the respondent relies upon what was set out in Sola Optical:
A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing an action and is of sufficient importance to be likely to have a bearing on the case.[50]
[49] Relying upon the findings of the High Court in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 (Sola Optical).
[50] Ibid at p636.
Mr Blyth argued that determination of the extension of time issue was no longer as simple as set out in Sola Optical as a result of the insertion of s 48(3a) into the Limitations Act in 2004, which added a further requirement before a court could find a new fact to be material to an applicant’s case. The new s 48(3a)(b) sets out the test of whether a fact is material relevant to the case before the court. This is whether it ‘would have a major significance on an assessment of the plaintiff’s loss’. The applicant relies upon the conclusion of Parker J in Ireland v Wightman to argue that s 48(3a)(b) now requires a detailed comparison of the medical evidence obtained by the applicant before the time limit expired, and the new medical evidence obtained thereafter.[51] Only after that exercise had been undertaken could a judge determine if the new evidence would be ‘of major significance on the assessment of loss’.
[51] [2014] SASCFC 52 at [53].
Mr Blyth submitted that in determining the extension of time application, a judge cannot determine ‘whether the pleaded fact will have a major significance on the assessment of loss without determining what the assessment of loss might be in the absence of that fact…’.[52] I agree that this is now the requirement as determined by Parker J in Irelandv Wightman. In my view, this makes it more difficult to keep the evidence in the preliminary trial contained.
[52] T47.26-29.
I am also concerned by the issue of credit findings being made against the applicant in the first trial and how they would impact any second trial. Mr Bullock agreed that the credibility of an applicant always had the potential to be an issue in an application for an extension of time, but that it should not be a determinative issue in all applications for a separate trial. In relation to the application Mr Bullock argued that any credibility issues relevant to the applicant were limited to her diagnosis, and matters raised by her with her former solicitors regarding the time limit issue.
I do not agree with the respondent’s position, particularly given that in their defence to the claim there is a deemed denial of the applicant suffering any injury, and a plea that if she was injured, that she had recovered from such injury. These are issues of credit in the context of an application to extend time which is based upon receipt of new medical evidence. The challenge to when the applicant first became aware of symptoms, how they impacted her and what she was told by treating doctors and care professionals are issues of credit.
The respondent accepted, acknowledging the statements of Anderson J in SA Water[53], that a separate trial is undesirable where the credibility of a witness is likely to be an issue in both trials.[54] However in relation to this matter Mr Bullock argued that the applicant’s credibility is not a key issue, despite submitting that a question to be determined was the reason why she did not issue proceedings within time. He queried whether it was because her previous solicitors had given her poor advice, which had nothing to do with her learning of new material facts regarding her injuries including ongoing medical issues. In relation to this issue Mr Bullock relied upon the yet to be determined application of the applicant to join her previous solicitors, Rossi Legal, to the action, it being agreed by the parties that such application would await the outcome of the application.[55] Mr Bullock argues that in proposing to join her previous solicitors to the proceedings it could be the case that the applicant did know enough about her medical condition before time expired, and that the ‘reason we filed when we did is not discovery of a new material fact but just my solicitors had messed up’.[56]
[53] [2009] SASC 383 at [42].
[54] Respondent’s submissions (FDN 25) at [24.2].
[55] FDN 15 and FDN 21.
[56] T42.36-T43.3.
In my view this is a direct attack upon the applicant’s credibility given the status of her plea in the Amended Claim regarding when she first became aware of new material facts. Mr Bullock accepted that.[57] He also confirmed that the respondent would be attacking the applicant’s knowledge of her medical condition before the time limit expired by taking her through her own medical notes to determine what she knew at different times through the proceedings. It was argued that the applicant’s knowledge of these factors will be an important issue in determining, pursuant to s48(3b) of the Limitations Act, whether it is just to grant an extension of time, noting that at s48(3b)(c) it is set out that the conduct of the parties generally is a matter of which the Court is to have regard.
[57] T43.13-14.
In my view, given the respondent’s attack upon the applicant’s credibility as to when she was aware of certain facts regarding her medical condition following the incident, a judge hearing the separate trial will be required to make findings upon the reliability of the applicant’s evidence and her credibility. The judge could then be compromised when hearing later evidence regarding liability and quantum issues generally, and the applicant’s evidence in that regard, given the earlier findings.
I would expect that if an extension of time is granted, that in the second trial the respondent is likely to still challenge the reliability of the applicant’s evidence and her credibility in relation to her injuries generally, and how her injuries occurred. All parts of the applicant’s claim are denied or put in issue by the respondent’s defence. As Anderson J said in SA Water the judge when hearing the second trial ‘…would be placed in an impossible position if, having made adverse credit findings against a witness…, that witness re-emerged as an important witness on the question of quantum…’[58]
[58] [2009] SASC 383 at [42].
It is for this reason that if the applicant was successful at a preliminary/separate trial in her application for an extension of time, a second judge would likely be required to hear the further trial. I am of the view that this would not be a cost‑effective and proportionate use of the court’s limited resources.
There is also some unfairness in having the reliability and the credibility of the applicant tested in a preliminary trial, when she will be giving evidence in a subsequent trial, largely upon the same issues. The respondent’s counsel gains the opportunity to assess her as a witness, and use the knowledge gained, in the way that cross-examination may be conducted in the subsequent trial. That would not be a concern if all issues were determined in the one trial. Similar concerns exist in relation to any of the medical witnesses who may be called to give evidence in the first trial regarding what they told the applicant in relation to her medical condition and when. In a second trial their evidence would be given on different issues, however if there were any adverse findings regarding the reliability of the evidence of the medical witness, this would place the judge when hearing the second trial in a difficult position when considering the medical evidence generally for the purpose of assessing damages.
Any findings as to the applicant’s reliability and credibility in the preliminary trial will also be informed by the oral evidence given by her treating doctors and other expert (medical) witnesses in determining the ‘materiality’ issue. The medical witnesses will be taken to contemporaneous records to determine when they told the applicant certain matters regarding her medical condition and her future medical needs and future function generally. There may be some conflict in the evidence given in that regard that calls into account the reliability of the applicant as a witness i.e. her recall of events, and/or her credibility. In my view it is not only the applicant’s own evidence that could impact her credibility and reliability, but also the other evidence that would need to be called in the separate trial. This again would impact how that same judge could later conduct the substantive trial.
Conclusion

The credit issues as set out, are a strong reason for me to I find that the application should not be granted. I am also of the view that the assessment of whether the pleaded new facts are material to the applicant’s case, in that they will be of major significance in the assessment of her loss, must involve a comparison of the applicant’s loss before, and after the new facts were ascertained. This is clearly set out by Parker J in Ireland v Wightman. This assessment must involve a careful examination of the medical evidence before and after the time for the issue of proceedings had expired, and the calling of medical witnesses to confirm and explain their opinions as contained in their expert reports.
Section 48(3a) sets out that a new fact may be material to the applicant’s case if: it establishes a substantial reduction in her capacity to work; or that she will require substantially more medical care than expected; or suffer a significant loss of expectation of life. Each of these matters cannot be determined without medical evidence being called. This is especially so in a case where any loss being suffered is denied by the respondent in its defence. In addition, if the respondent is not successful at the preliminary trial, then a further trial which would involve issues of both liability and quantum, would not be heard until some-time later. I anticipate that before that trial is heard up-dated medical evidence would be required so that there could be an accurate assessment of loss at the date of the final assessment of damages. In a matter such as this, it is my view that there will be a large overlap of evidence in each trial, and this is a further reason why I am of the view a separate trial should not proceed.
In relation to both the credibility and overlap of evidence issues, the statements of Adamson J in Wells can be distinguished. The process considered in Wells for determining the preliminary point was an interlocutory one, and it is not clear the extent to which the parties were to give evidence. More importantly, the factual basis for seeking an early determination of the extension of time issue were very different. Justice Adamson noted that the length and complexity of any trial is a relevant consideration in determining the issue, as if successful at the first hearing there would be no trial.[59] That is not in dispute. However, the facts in Wells were very complex and nothing like the action before this Court. The employment in relation to which injury and loss were claimed was over a period of decades from the early 1960’s to the late 1980’s and was said to have occurred at RAAF bases in Australia and Malaysia. There were a number of other claims pending in relation to employment over the same time period, all with the proceedings being in excess of 20 years out of time. This impacted the quality of evidence regarding knowledge of chemicals the plaintiffs alleged they had been exposed to in their employment. This is quite different to the action before this Court, which was commenced less than a year out of time, and less than 4 years after the incident. It was also a once‑off incident rather that a matter that required investigation of work practices over more than 20 years. In my view the comments and conclusion of Adamson J must be considered in light of the much different, and far more complex, factual context to that of the applicant’s claim. The decision is distinguishable upon that basis.
[59] [2014] NSWSC 148 at [12].
The respondent has not pointed to any prejudice it will suffer, beyond the potential cost of running a full trial on all issues when it may not be necessary. No other prejudice was argued, as there had been in Wells. There were no submissions made that due to the delay in issuing proceedings witnesses were no longer available to give evidence, or that either the liability or quantum issues could not be fully investigated. The respondent was on notice of the applicant’s claim from soon after 14 June 2016, that is less than 2 weeks after the incident.[60] There were no submissions that there was any prejudice to a fair trial by the applicant’s delay in the issue of proceedings, or in fact any impact upon a trial of all issues. On the matters put before the Court, I cannot find that the delay in issuing proceedings has impacted the fairness of any trial.
[60] Letter of Rossi Legal to the Respondent dated 14 June 2016(exhibit SG1to the Gooch affidavit FDN13).
There was also no suggestion of any delay in having the action listed for trial on all issues as opposed to the separate limitations issue. In fact, any delay would be to the prejudice of the applicant if she was successful at the preliminary trial, as this would not determine all issues, and witnesses on liability and quantum would have to be arranged or re‑called for a later trial.
In summary, I am not satisfied that the criteria set out in Tepko and Idoport for a separate trial have been satisfied. Although not addressed, one of those factors is the avoidance of fragmentation of the trial, including fragmentation created by an appeal by the unsuccessful party following the first, preliminary trial. I do take account of a likely appeal by whichever party was unsuccessful following a preliminary trial that would take several days. Of most concern however is the potential for credibility findings to be made in the first trial and the significant overlapping of witnesses in two trials. I am therefore not satisfied that, in all the circumstances, ‘the utility, economy, and fairness to the parties’ are beyond question’.[61] In my view there is a possibility of a prolongation of proceedings, if the Court was required to reconsider the liability and loss issues, in a second trial.
[61] Tepko Pty Ltd v Water Board [2001] HCA 19 at [170].
Orders
The Respondent’s application pursuant to UCR 151.1(2) for leave for a separate trial to decide as a discrete preliminary issue the Applicant’s application for an extension of time to issue these proceedings, is dismissed.
Costs of and incidental to the application are reserved until further order;
I will hear the parties as to any further orders required.