MA v State of New South Wales; JA v State of New South Wales

[2025] NSWSC 1233

Supreme Court

New South Wales

Medium Neutral Citation:

MA v State of New South Wales; JA v State of New South Wales [2025] NSWSC 1233

Hearing dates:

9 September 2025; 16 October 2025

Date of orders:

21 October 2025

Decision date:

21 October 2025

Jurisdiction:

Common Law

Before:

Chen J

Decision:

In MA v State of New South Wales (2024/00136164):

(1) Order that, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the Court separately determine the questions, substantially in the form of annexure “A” to this judgment, relating to attendances 57 and 138.

(2) Order that the costs of and incidental to the defendant’s Notice of Motion filed 19 June 2025 be costs in the proceedings.

In JA v State of New South Wales (2024/00129662):

(1) Order that, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the Court separately determine the question or questions, substantially in the form of annexure “A” to this judgment, relating to attendance 105.

(2) Order that the costs of and incidental to the defendant’s Notice of Motion filed 19 June 2025 be costs in the proceedings.

Catchwords:

CIVIL PROCEDURE — separate determination of questions — where appropriate — allegations of trespass to land by police while purporting to conduct bail compliance checks — whether there would be a substantial saving in time and cost by ordering a separate determination — where preparation for trial would otherwise take several years — where an “all issues” trial would be expected to exceed three months — where resolution of one question could resolve approximately 75% of the alleged attendances depending on its outcome — where an order for separate determination would enable earlier judicial consideration of a question of law — where the question of law concerns whether police can rely on an implied licence under the common law or the Bail Act 2013 (NSW) to enter land for the purpose of bail compliance checks in the absence of a bail condition otherwise permitting them to do so

Legislation Cited:

Bail Act 2013 (NSW)

Civil Procedure Act 2005 (NSW)

Crimes Act 1900 (NSW)

Firearms Act 1996 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15

Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464

LSR3 v New South Wales [2024] NSWSC 1570

Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5

Richards v Cornford (No 3) [2010] NSWCA 134

State of New South Wales v LSR3 [2025] NSWCA 151

TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82

Category:

Procedural rulings

Parties:

MA (first plaintiff)
JA (second plaintiff)
State of New South Wales (defendant)

Representation:

Counsel:
D Villa SC / D Tang (plaintiffs)
J Sexton SC / K Lindeman / B Lambourne (defendant)

Solicitors:
Justice and Equity Centre (plaintiffs)
Wotton Kearney (defendant)

File Number(s):

2024/00136164 (MA)
2024/00129662 (JA)

Publication restriction:

Pursuant to s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the publication of any names of the children referred to in the evidence given is prohibited.

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the disclosure by publication or otherwise of any information as to the name and identify of the plaintiffs, except as may be necessary, is prohibited.

JUDGMENT

Introduction

1. These two proceedings involve allegations that members of the New South Wales Police Force (‘the police’) repeatedly trespassed on the property of two unrelated but similarly pseudonymised plaintiffs – MA and JA. Both claims are brought against the State of New South Wales (‘the defendant’) who the plaintiffs argue is vicariously liable for the conduct of the police.

2. MA alleges that the trespasses occurred when the police purportedly undertook bail compliance checks in connection with her children, MB and MC, between 11 August 2021 and 19 April 2023. JA alleges that the trespasses occurred between 15 October 2021 and 14 June 2023 when the police undertook bail compliance checks and searches, after serving a firearms prohibition order (‘FPO’) on her child, JB.

3. The defendant admits, or largely admits, that the police attended each plaintiff’s premises on the occasions alleged by them. However, the defendant argues that the police did so lawfully and, therefore, deny liability.

4. By Notices of Motion filed on 19 June 2025, the defendant seeks an order that there be a separate determination in both proceedings pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).

5. Originally, by the Notices of Motion filed, the defendant sought orders essentially involving the separate determination of 15 bail compliance check attendances by the police, each of which were said to represent one paradigm example of the defence in each claim. Following argument, the defendant sought, and was granted, an opportunity to refine the detail of its proposal. It has since done so. Less ambitiously, by the revised application, the defendant seeks an order for the determination of three test attendances – two in MA, and one in JA. It is convenient to describe these attendances, as the parties did, as the “test attendances”.

6. MA and JA oppose the orders sought and the determination of any test attendances.

7. Each party relied upon affidavits from their solicitor that were separately filed in each matter. The defendant relied upon affidavits of James Clohesy affirmed 19 June 2025 and 30 July 2025 (‘JC affidavit’), and the plaintiffs relied upon affidavits of Jonathan Spence affirmed 16 July 2025 (‘JS affidavit’). While the affidavits across each matter share the same dates, they differ in substance according to the particular facts of each case. They are not mere duplicates.

8. Neither solicitor was cross-examined.

9. While the matters feature different factual issues (in JA, for example, some of the police attendances were pursuant to the Firearms Act 1996 (NSW)), the applications were accepted to essentially involve like considerations. Thus, it was common ground that a decision in one matter about whether there should be a separate determination would also resolve the other application. Given this approach, it is convenient to simply describe the applications in the singular.

10. The defendant relied upon its written submissions dated 30 July 2025 (‘defendant’s submissions’) and its further written submissions dated 23 September 2025 (‘defendant’s further submissions’). The plaintiffs relied upon their written submissions dated 14 August 2025 (‘plaintiffs’ submissions’) and their further written submissions dated 7 October 2025 (‘plaintiffs’ further submissions’).

11. I was considerably assisted by the clear and focused submissions made by Mr Sexton SC, who appeared with Ms Lindeman and Ms Lambourne, for the defendant and by Mr Villa SC, who appeared with Ms Tang, for the plaintiffs.

Background matters

12. Given the defendant’s ultimate argument is that the issues in each matter, and the circumstances more generally, favour the orders it seeks, it is necessary to cover the following matters of background: a short summary of the facts giving rise to each matter; an outline of the claims brought by each plaintiff and the issues raised by the defendant in their defence to the plaintiffs’ respective claims; the nature and size of the litigation; and a short summary of the proposed test attendances.

13. The matters identified below are principally drawn from the amended statement of claim that each plaintiff filed on 7 November 2024 (‘MAASOC’ and ‘JAASOC’) and the defences to those claims, supplemented where necessary by the evidence read on the application.

MA: a short summary of facts

14. MA has resided in country New South Wales for many years with her children. Two of them are MB (born in 2007) and MC (born in 2010).

15. On or around 7 August 2021, MB and MC were arrested and charged with being carried in a conveyance taken without the consent of the owner, contrary to s 154A(1)(b) of the Crimes Act 1900 (NSW): MAASOC at [7].

16. On 8 August 2021, MB and MC were each granted conditional bail. This included conditions requiring them to be of good behaviour and to comply with a curfew. The curfew required them to reside at their mother’s property (‘MA’s property’) between 5pm and 8am, unless in the company of MA: MAASOC at [8].

17. In the period from 8 August 2021 to 19 April 2023, MB and MC were at liberty on conditional bail: MAASOC at [9]. The conditional bail granted to each of them did not contain any enforcement condition under s 30 of the Bail Act 2013 (NSW): MAASOC at [10].

18. Between 11 August 2021 and 19 April 2023, the police undertook bail compliance checks on 153 occasions, which MA has classified as follows:

1. On 96 occasions, the police attended MA’s property and required that they speak to, or sight, MB and/or MC. This was typically done by requiring their presentation at the front door: MAASOC at [11](i)(a).

2. On nine occasions, when MB and/or MC were asleep, the police required MA to take them inside MA’s property to observe them sleeping: MAASOC at [11](i)(b).

3. On “at least 1 occasion” when MC was asleep, the police required MA to carry MC to the front door of MA’s property: MAASOC at [11](i)(c).

4. On 47 occasions, the police attended MA’s property but there was no answer: MAASOC at [11](i)(d).

19. At the time the police performed these bail checks, MB was between 13 and 15 years old and MC was between 11 and 12 years old: MAASOC at [5]-[6].

20. On 28 June 2022, MA sent a letter through her solicitor to the relevant police officer in charge of the area command advising them that she “revoked any consent that may have existed, implied or otherwise, for the police to attend” her property to carry out bail compliance checks: MAASOC at [12].

21. MA alleges that, by no later than 4 July 2022, the police were aware that she had “revoked any consent that may have existed” for them to attend her property to carry out bail compliance checks and that she reiterated as much in the letter sent by her solicitor to the police on 17 January 2023: MAASOC at [13]-[14].

22. On 15 May 2023, MA sent a further letter through her solicitor to the relevant police officer in charge of the area command requesting that the police “immediately cease attending” her property to carry out bail compliance checks. In that letter, she referred to her earlier communication where she had revoked “any consent that may have existed, implied or otherwise, for the police” to do so: MAASOC at [16].

MA: the claim and the defence

23. By her amended statement of claim, MA alleges that the police have trespassed upon her property and that the defendant is vicariously liable for their actions.

24. Specifically, MA alleges that between 11 August 2021 and 19 April 2023, the police did not have lawful authority to attend MA’s property and, by doing so, committed trespass to land on each of the 153 occasions: MAASOC at [19]. She seeks damages, including aggravated and exemplary damages, in respect of each of those infringements. Furthermore, she also seeks a declaration about the lawful authority to enter private property to conduct a bail check in the absence of an order under s 30 of the Bail Act – if necessary, in circumstances where her consent to entry has been revoked: MAASOC at [21].

25. By its defence filed on 10 October 2024 (‘MA defence’), the defendant admits, and raises by way of answer, a number of matters that are relevant to the present application:

1. First, it admits that the conditional bail granted to MB and MC between 8 August 2021 and 19 April 2023 did not contain an enforcement condition under s 30 of the Bail Act: MA defence at [10].

2. Secondly, it admits that between 11 August 2021 and 9 April 2023, the police did attend MA’s property “on at least 151 occasions” but denies that the police attended on 16 January 2022 or 25 March 2022: MA defence at [11.1]-[11.2].

3. Thirdly, it contends that each attendance made by the police at MA’s property was pursuant to:

1. an “express licence” (MA defence at [11.3](a)); and/or

2. an “implied statutory licence” to conduct a bail check derived from s 77 of the Bail Act (MA defence at [11.3](b)); and/or

3. an “implied common law licence” to enter MA’s property for the “purpose of gathering information to determine whether a crime has been committed, or otherwise for the purpose of investigating a crime” (MA defence at [11.3](c)); and/or

4. an “implied common law licence” to enter MA’s property “for the purpose of enquiring as to the welfare of an occupant” (MA defence at [11.3](d)); and/or

5. an “implied statutory licence” to enter MA’s property for the purpose of checking whether MB and/or MC were complying with their conditional bail (MA defence at [11.3](e)); and/or

6. an “implied common law licence” to enter MA’s property for the purpose of lawful communication with an occupier of MA’s property (MA defence at [11.3](f)).

4. Fourthly, in relation to the various letters sent on behalf of MA seeking to revoke any licence, the defendant appears to argue that they were inefficacious “to revoke any lawful implied licence” or “to revoke any statutory implied licence”: MA defence at [12], [14].

JA: a short summary of facts

26. JA has resided in metropolitan Sydney for many years with her children, including JB (born in 2005).

27. Between 11 October 2021 and 14 June 2023, JB was on conditional bail granted in connection with offending that occurred at various times. From 11 October 2021 until 23 February 2023, the conditional bail granted to JB was subject to an enforcement condition, albeit the terms of that enforcement condition varied: JAASOC at [6]-[10].

28. On 2 December 2021, JB was served with a FPO, pursuant to s 73 of the Firearms Act: JAASOC at [11].

29. Between 15 October 2021 and 14 June 2023, the police attended JA’s property (‘JA’s property’) “on at least 109 occasions” to conduct bail compliance checks: JAASOC at [13] and the “schedule” annexed to the JAASOC.

30. On 28 October 2021, JA sent a letter through her solicitor to the relevant police officer in charge of the area command advising them she “revoked any consent that may have existed, implied or otherwise, for the police to enter” her property to carry out bail compliance checks “other than in strict compliance with the applicable bail enforcement condition”: JAASOC at [15].

31. On 9 May 2023, JA sent a further letter through her solicitor to the relevant police officer in charge of the area command reiterating her revocation of consent for the police to carry out bail checks “other than in strict compliance with the applicable bail enforcement condition”: JAASOC at [17].

32. JA alleges that from 28 October 2021, the police were aware that she had “revoked any consent that may have existed” for them to attend her property to carry out bail compliance checks other than in “strict compliance with the applicable bail enforcement condition” and, further, by “no later than 16 May 2023”, that she had “reiterated the revocation of any consent”: JAASOC at [16], [18].

33. In relation to the FPO, JA alleges that the police attended her property on the following four occasions – 2 December 2021, 8 March 2022, 5 May 2022 and 7 December 2022 – to search it pursuant to s 74A of the Firearms Act: JAASOC at [20]-[23].

JA: the claim and the defence

34. By her amended statement of claim, JA alleges that the police have trespassed upon her property and that the defendant is vicariously liable for their actions.

35. Specifically, she alleges that on “[a]t least 59” occasions between 15 October 2021 and 14 June 2023, the compliance checks were not carried out “in strict compliance with the applicable bail enforcement condition in force at the time”: JAASOC at [14]. Accordingly, she argues that the police did not have lawful authority in those circumstances to attend her property and committed trespass to land by doing so: JAASOC at [19]. (I note that in her claim for exemplary damages, she alleges that there were “25 occasions of trespass to land [which] occurred in the absence of any enforcement condition”: JAASOC at [27](c)(iv). Nothing presently turns on that allegation).

36. Further, in relation to the searches conducted under the Firearms Act, JA alleges that the police “did not believe on reasonable grounds that JB had committed an offence” under ss 74(1), 74(2) or 74(3) of that Act: JAASOC at [24]. Additionally, or alternatively, she argues that on each of these attendances the “manner in which the FPO [s]earch occurred was in excess of what was reasonably required”: JAASOC at [25]. Therefore, JA argues that the police did not have lawful authority to attend her property in those circumstances too and committed trespass to land by doing so: JAASOC at [26].

37. JA seeks damages, including aggravated and exemplary damages, in respect of each of those infringements. Furthermore, she also seeks declarations, including about the lawful authority to enter private property to conduct a bail check in the absence of an order under s 30 of the Bail Act.

38. By its defence filed on 29 October 2024 (‘JA defence’), the defendant admits, and raises by way of answer, a number of matters relevant to the present application. These include the following:

1. First, it admits that between 15 October 2021 and 14 June 2023, the police did attend JA’s property “on at least 99 occasions”: JA defence at [13.1]. However, it denies attending on eight occasions and does not admit attending on two: JA defence at [13.2]-[13.3].

2. Secondly, it contends that each attendance made by the police at JA’s property was pursuant to:

1. an “express statutory licence” under Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) (JA defence at [13.4](a)); and/or

2. an “implied statutory licence” for the “purpose of giving a direction to [JB] of the kind specified in the enforcement conditions then in place” in respect of JB’s bail (JA defence at [13.4](b)); and/or

3. an “implied statutory licence” for the “purpose of checking whether [JB] was complying with conditions then in place” in JB’s bail “in circumstances where police believed, on reasonable grounds, that [JB] had failed to comply with, or was about to fail to comply with, a bail condition” (JA defence at [13.4](c)); and/or

4. an “implied statutory licence” for the “purpose of serving [JB] with a public safety order” pursuant to s 87T of the LEPRA (JA defence at [13.4](d)); and/or

5. an “implied common law licence” for the “purpose of gathering information to determine whether a crime has been committed, or otherwise for the purpose of investigating a crime” (JA defence at [13.4](e)); and/or

6. an “implied common law licence” for the purpose of “enquiring as to the welfare of an occupant” (JA defence at [13.4](f)); and/or

7. an “implied statutory licence” for the “purpose of checking whether [JB] was complying with conditions then in place in respect of [his] bail” (JA defence at [13.4](g)); and/or

8. an “implied common law licence” for the “purpose of lawful communication with an occupier” of JA’s property (JA defence at [13.4](h)).

In addition to these justifications, the defendant pleads that even if the police’s attendances “were not carried out in strict compliance with the applicable bail enforcement condition”, the entries onto JA’s property “were pursuant to a licence on one or more of the grounds pleaded”: JAASOC at [14.2].

3. Thirdly, in relation to the various letters sent on behalf of JA seeking to revoke any licence, the defendant appears to argue that they were inefficacious “to revoke any lawful implied licence” or “to revoke any statutory implied licence”: JA defence at [15], [17].

4. Fourthly, in relation to the searches under the Firearms Act, the defendant admits the four attendances alleged by JA but contends that they were lawful searches: JA defence at [20]-[25].

The nature and size of the litigation

39. As noted, each plaintiff alleges that the police, when conducting bail compliance checks, trespassed upon their respective properties: on 153 occasions in MA and 59 occasions in JA (see [18] and [35] above). It is appropriate to make some preliminary observations about the litigation at the present juncture, recognising that it will be necessary later to return to this broad topic, given the arguments raised, to make particular findings.

40. In relation to MA, the solicitor for the defendant estimated that “[a]t least 65 officers were involved in the pleaded bail compliance checks” and that his assessment was that “evidence would be required to be led from all of those officers in order to defend the legality of the pleaded bail compliance checks”: MA – JC affidavit affirmed 19 June 2025 at [16]. His estimate was that the hearing would “take no less than six weeks for evidence alone” and estimated that submissions would take “at least 7 days because of the need to deal with the factual issues arising in 153 attendances at [MA’s] property”: MA – JC affidavit affirmed 19 June 2025 at [17].

41. The solicitor for MA has indicated that there were potentially 76 police officers involved in the attendances: MA – JS affidavit affirmed 16 July 2025 at [40]. I do not regard this evidence as being presently and materially inconsistent with the evidence from the solicitor for the defendant: his evidence was an estimate only. On either footing, there is a substantial number of police officers involved.

42. The solicitor for MA contested the need for all such officers to give evidence in the circumstances, including because there were “contemporaneous records” available relating to particular attendances: MA – JS affidavit affirmed 16 July 2025 at [41]. His estimate of the hearing length, given his assessment of the availability of, inter alia, the “contemporaneous records” and his view about the reduced number of police officers who would be required to give evidence, was “three to four weeks”: MA – JS affidavit affirmed 16 July 2025 at [41].

43. In relation to JA, the solicitor for the defendant estimated that “[a]t least 83 officers were involved in the pleaded bail compliance checks” and that his estimate was that it was “likely that evidence would be required to be led from most if not all of those officers in order … to defend the legality of the pleaded bail compliance checks”: JA – JC affidavit affirmed 19 June 2025 at [16]. In relation to the FPO searches, the solicitor for defendant estimated that “at least 28 officers were involved” and that it was also likely that evidence would be required “from most if not all of those officers”: JA – JC affidavit affirmed 19 June 2025 at [16]. His estimate was that the hearing would “take no less than two months for evidence alone” and that submissions would take “at least 7 days because of the need to deal with the factual issues arising”: JA – JC affidavit affirmed 19 June 2025 at [17].

44. The solicitor for the plaintiff has indicated that there were potentially 110 police officers involved in the attendances: JA – JS affidavit affirmed 16 July 2025 at [46]. This evidence largely aligns with the evidence from the solicitor for the defendant and, as in MA, there is a substantial number of police officers involved.

45. The solicitor for JA contested the need for all such officers to give evidence in the circumstances, including because there were “contemporaneous records” available relating to particular attendances: JA – JS affidavit affirmed 16 July 2025 at [47]. His estimate of the hearing length, given his assessment of the availability of, inter alia, the “contemporaneous records” and his view about the reduced number of police officers who would be required to give evidence, was “four to five weeks”: JA – JS affidavit affirmed 16 July 2025 at [47].

46. The solicitor for the plaintiffs addressed the likely time involved in undertaking what he considered to be the expected preparatory steps to ready each of the matters for trial for what he described as “a single hearing for all the attendances including damages”: MA – JS affidavit affirmed 16 July 2025 at [30]; JA – JS affidavit affirmed 16 July 2025 at [36]. His estimate in MA was that, after undertaking the anticipated preparatory steps necessary, “the hearing could take place in mid 2028 with judgment in 2029”: MA – JS affidavit affirmed 16 July 2025 at [30]. His estimate in JA was that, after undertaking the anticipated preparatory steps necessary, “the hearing could take place in mid to late 2028 with judgment in 2029 or early 2030”: JA – JS affidavit affirmed 16 July 2025 at [36].

47. It will be necessary, given the arguments advanced by the parties, to later return to these estimates and case management considerations generally. Nevertheless, it is sufficient to presently note that any hearing of the matters is likely to occupy, at a minimum, many months of Court time and that the substantial but necessary preparatory steps would take many years to complete in order for each matter to be ready for a trial on “all issues” in mid 2028 or mid to late 2028.

The proposed test attendances

48. The defendant’s proposal involves questions directed to three test attendances: attendances 57 and 138 in MA and attendance 105 in JA.

49. Attendance 57 involves a bail compliance check on 30 January 2022 at 9:20pm, with a COPS Event number E 86143626 (MA – JC affidavit affirmed 19 June 2025 at [57], [59]). It appears that Senior Constable Woods and Constable McArthur attended (MA – JC affidavit affirmed 19 June 2025 at [58]).

50. Attendance 105 involves a bail compliance check on 5 May 2023 at 8:15pm, with a COPS Event number E 93558348 (JA – JC affidavit affirmed 19 June 2025 at [44], [46]). It appears that Senior Constable Sims and Constable Douglas attended (JA – JC affidavit affirmed 19 June 2025 at [45]).

51. Attendance 138 involves a bail compliance check on 20 December 2022 at 1:30am, with a COPS Event number E 92936474 (MA – JC affidavit affirmed 19 June 2025 at [22], [54], [56]). It appears that Constable Evans and Constable Golder attended (MA – JC affidavit affirmed 19 June 2025 at [55]).

52. Neither side made any particular submissions about the detail of these attendances, except in relation to the identity of the attending police officers and the possible overlap in the evidence where those officers had attended on multiple occasions: see [102] below.

53. With that background, I move now to address the power and relevant background principles that apply to the application.

Separate determination: the power and principles

54. The power to order a separate determination of a question in proceedings is contained in r 28.2 of the UCPR which provides:

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

55. In Part 28, “question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise”: r 28.1 of the UCPR.

56. The well-known principles relating to the power to order separate determinations have been summarised in a number of cases, including Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [87]-[92], upon which the defendant relied. They were recently summarised in LSR3 v New South Wales [2024] NSWSC 1570 at [25]-[32] (‘LSR3’). That summary, which the plaintiffs rely upon, was approved and described as “valuable” on appeal: see State of New South Wales v LSR3 [2025] NSWCA 151 at [10]. It provides (some internal citations omitted):

“25. The procedure contemplated by UCPR 28.2 is the final determination of the relevant question. It must be based on a final finding of any necessary facts and/or the parties’ binding agreement on those facts ...

26.   The Court has a discretion whether to make an order for the separate determination of questions.

27.   Ordinarily the Court will hear and determine all issues in the case at the same time … The discretion to order a separate hearing must be exercised with caution … It is for the party who seeks a departure from the ordinary position to demonstrate that departure is desirable in the particular case.

28.   Consideration will have to be given to whether there may be overlap between the evidence adduced at the hearing of the separate questions and the subsequent hearing of the rest of the questions. Overlap may make separate questions undesirable. In particular, the Court is unlikely to order separate questions if the determination of the separate questions may require consideration of the credit of a witness who is likely to be a witness at the subsequent hearing of the other questions in the case …

29.   Consideration must also be given to the implications for the case if the separate questions are determined one way or another. An order for a separate question may be appropriate where the determination of the question will resolve the entire dispute or substantially narrow the scope of the dispute. As a practical matter, determination of a separate question may facilitate settlement.

30.   These principles demonstrate that careful consideration must be given to the terms of the questions which a party seeks to have separately determined and the legal and factual context in which those questions fall for determination in the particular case. Reasoning which initially favours an order for separate questions may turn out to be superficial as the preparation and hearing of the separate questions progresses …

31. When exercising the discretion under UCPR 28.2, the Court must seek to give effect to the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(2) of the Civil Procedure Act 2005 (NSW).

32.   Ultimately, an application for separate questions is not to be decided in a mechanical way but by reference to a commonsense analysis of the best way to progress the proceedings in accordance with the overarching purpose. As Bell J observed in Owners Corporation SP 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16]:

‘… the determination of separate questions should generally only be ordered if the court is satisfied that doing so will “facilitate the quicker and cheaper resolution of the proceedings”: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J. In considering that question, the court needs to bear in mind that, while superficially it may appear attractive to order separate questions, experience often shows that that is not the case because, for example, of the complications that can arise in relation to appeals or to overlapping factual issues or to questions of credit, if the same witnesses have to give evidence in relation to questions that are separated and those that are not: see Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 55 per Kirby and Callinan JJ; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.’”

57. The submissions of the parties called in aid some of these background principles, arguing that they favoured the positions each of them adopted on the defendant’s application. To the extent they were relied upon to support submissions advanced, they are addressed later when the competing arguments are dealt with.

The competing arguments

Introduction

58. As noted, the defendant’s application was for orders facilitating the determination of three “test attendances” – that is, attendances where the allegations of trespass are defended on the basis that the police had the benefit of an implied licence, pursuant to the Bail Act or the common law, to enter the land of MA and JA for the sole purpose of a lawful communication in respect of bail compliance (defendant’s further submissions at [6]).

59. In relation to the proposed test attendances, the following four matters should be noted.

60. First, as Mr Sexton SC emphasised during submissions, the defendant, by its application, recognised there were “212 separate allegations of trespass and that it is appropriate to determine some of those finally before determining all of the rest” (T5.23-25).

61. Secondly, as Mr Sexton SC explained, the reason for why there were only 212 relevant attendances – rather than the aggregate of the attendances involved as alleged by MA and JA – is that 50 of the attendances in JA are accepted as being in “strict compliance” with an enforcement condition imposed under s 30 of the Bail Act (T5.34-35). Thus, the alleged trespasses relating to bail compliance checks number 153 (in MA) and 59 (in JA).

62. Thirdly, in short, what is proposed by the defendant involves the resolution of the central contention advanced by it as the basis of its defence to the entry upon the land of MA and JA – viz., irrespective of whether there is an enforcement condition under s 30 of the Bail Act, there is an implied irrevocable statutory licence or an implied common law licence providing lawful authority for a police officer to enter land to check whether an occupant is complying with a bail condition.

63. Fourthly, the defendant identified, as an annexure to its further submissions, three – or potentially six – questions to be separately determined in relation to the three test attendances and provided “notations” reflecting concessions the defendant would make depending upon the answers to those questions.

64. To give context to the competing arguments directed to the defendant’s proposal, and before addressing them, it is useful to briefly describe the nature of the cause of action relied upon by MA and JA: trespass.

Trespass principles: a short summary

65. The tort of trespass “is committed whenever there is interference with possession of land without lawful authority or, relevantly, the licence or consent of the person in possession”: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 at [23]; Plenty v Dillon (1991) 171 CLR 635, 639; [1991] HCA 5 (‘Plenty’); Coco v The Queen (1994) 179 CLR 427, 435-436; [1994] HCA 15.

66. Relevant to the requirement that there be authority or consent to enter private property, in Plenty it was said at 647:

“Except in the cases provided for by the common law and by statute, constables of police and those acting under the Crown have no special rights to enter land … Consent to an entry is implied if the person enters for a lawful purpose.” (Citations omitted)

67. The plaintiffs submitted, and the defendant accepted for present purposes, that the following four issues arise in determining whether there is an actionable trespass (plaintiffs’ submissions at [7]):

1. first, whether there was entry to the respective properties;

2. secondly, the terms or scope of any asserted lawful authorisation for being on the plaintiffs’ respective properties;

3. thirdly, whether entry was within the limits of any lawful authorisation; and

4. fourthly, if there was authorisation, whether that authorisation had been revoked.

68. Given the defendant has largely admitted, subject to a confined number of exceptions, the attendance of the police at the properties of MA and JA on the pleaded occasions, no – or no significant – controversy exists about the first matter, being the “entry” of police. The second to fourth matters, however, remain very much in issue.

The competing arguments: discussion and consideration

69. The defendant’s overarching submission is that orders for separate determination of the test attendances will materially contribute to the saving of time and cost by narrowing – and, depending upon the outcome, potentially substantially narrowing – the issues in the litigation, and thereby expedite the ultimate disposition of the matters whether by settlement or judicial determination. This, the defendant argued, necessarily results from the combination of the confined nature of the defence it has raised to the bulk of the 212 bail check attendances, the questions posed for determination, and the answers to the questions: answers favourable to the plaintiffs will result in a substantial narrowing of the issues (given what the defendant accepts results from such answers), whereas answers favourable to the defendant will result in a more modest, but nevertheless significant, narrowing of the issues.

70. I will expand upon this. Mr Sexton SC indicated that for 158 of the 212 attendances, the defendant pleaded, as the sole basis of the entry, that the attending police had the benefit of an irrevocable implied statutory or common law licence providing them with lawful authority to check whether an occupant was complying with a bail condition (T5.43-45). That ground of defence, it should be noted, does not rest upon the existence of an enforcement condition under s 30 of the Bail Act.

71. Reflecting the way the defendant has framed its defence to those attendances, the questions proposed by it involve a determination of the existence of an implied statutory or common law licence to attend for the sole purpose of checking compliance with bail, absent an enforcement condition.

72. Given the above, the defendant accepted that if no implied statutory or common law licence is found to exist, then the defendant “would concede liability in respect of 120 attendances in MA and 38 attendances in JA” (defendant’s further submissions at [9]). That is, those attendances constituted trespasses, albeit all questions of relief would remain outstanding and require determination (defendant’s further submissions at [4]).

73. It is in that particular context that the defendant argued that overarching case management considerations – including the likely cost and time required to prepare, and for the Court to hear, the matters on “all issues” – not only clearly favoured its test attendance proposal, but also supported the Court adopting a more active role in identifying and separating out questions for separate determination.

74. The plaintiffs oppose the orders sought, arguing that any resolution of the proposed questions, at least when their resolution favoured the defendant, would not “substantially narrow the scope of the dispute”; that prejudice would result from the test attendance proposal; that there would inevitably be overlap, including the prospect of credibility-based findings and the possible need for witnesses to be cross-examined on multiple occasions; and, finally, that the test attendance proposal would ultimately produce delay and increased cost (plaintiffs’ submissions at [3]).

75. In its further written submissions, the plaintiffs submitted that the questions themselves are inutile and that there are difficulties with the form of each of them. They also argued that resolving the principal questions, being proposed Questions 1, 2 and 3, favourably to the defendant would nonetheless require determination of a series of further issues for each particular attendance before liability for any of them could be determined (plaintiffs’ further submissions at [3], [4], [6]).

76. In the result, the plaintiffs argue that the matters raised by them in opposition justify refusing the defendant’s application.

77. In my view, it is appropriate to order that the test attendance questions, in substantially the form proposed by the defendant, be separately determined. In what follows, I explain why I consider that order should be made.

78. The nature, scope and size of the litigation if heard on “all issues”, its estimated trajectory and the likely costs involved not only contextualise the application, but are matters that I consider significantly favour the defendant’s test attendance proposal. To each of these matters, my findings are as follows:

1. The number of witnesses, particularly police witnesses, involved or likely to be involved: I accept there is a realistic prospect that the number of police witnesses is substantial, and in the order of that estimated by the solicitor for the defendant: see [40]-[45] above. For the plaintiffs, the number of witnesses is, I consider, likely to be confined.

1. The estimated length of time to prepare the matters for hearings “on all issues”: as noted elsewhere, the solicitor for the plaintiffs suggested that a hearing, undertaking what he considered were the relevant and necessary pre-trial and preparatory steps, could take place “in mid 2028” (in MA) and in “mid to late 2028” (in JA): see [46] above and [92] below. These estimates build in around two or more years for pre-trial and preparatory steps before the “all issues” trial would take place. Even accepting that the estimated hearing dates are brought forward by, say, one year, the plaintiffs estimate that a hearing date on all issues would still be essentially a further two years away.

2. The estimated hearing length: as later noted, I accept that the hearing of both matters would likely exceed three months: see [91] below.

3. The costs involved: the parties did not, perhaps understandably, address the likely costs to prepare for and conduct an “all issues” trial. It is sufficient, I consider, simply to note that they would be very large – commensurate with the preparatory steps and hearing length estimated.

79. There are other “subjective” matters, which I also regard as important and favour the defendant’s test attendance proposal:

1. For the plaintiffs, the stress and strain involved in litigating must be recognised and acknowledged, as must be at least some degree of financial cost (or its risk). Matters of this kind significantly inform the expectation “that the costly and stressful, though necessary evil that is litigation be resolved with reasonable despatch so as to minimise, where reasonably possible, the time during which people are subjected to its rigours and strains”: Richards v Cornford (No 3) [2010] NSWCA 134 at [44]. These considerations have, I consider, particular force given the estimates about the likely length of an “all issues” trial and the estimated time it would take to ready each matter for one.

2. For the defendant, and the police officers concerned, they too face stress and strain by their involvement. More generally, I accept the evidence from the defendant’s solicitor that there are larger operational concerns given the numbers of potential officers who would be required to give evidence and, importantly, broader concerns about the potential legitimacy of the way and manner in which bail compliance checks are, it seems, conducted by the police on an ongoing and statewide basis. Again, these considerations have, I consider, particular force given the estimates about the likely length of an “all issues” trial and the estimated time it would take to ready each matter for one.

80. All the above matters inform, consistent with ss 56-58 of the Civil Procedure Act 2005 (NSW), the Court adopting “a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously”: Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 at [6].

81. The submissions of the parties largely focused upon Question 1 and, to a lesser degree, Questions 2 and 3, and these reasons do likewise. Question 1, as amended by Mr Sexton SC during submissions (reflected by the marked changes), provides:

“Did the attending police officers have a statutory implied licence pursuant to the Bail Act 2013 (NSW) and/or a common law implied licence to enter MA’s property, to check for the sole purpose of checking whether MB and MC, being bailed persons, were complying with their curfew conditions at 9.20pm on 30 January 2022 (MA Attendance No. 57)?”

82. Questions 2 and 3 are – broadly – designed to test, and resolve, the efficacy of each plaintiff withdrawing their consent to the police conducting bail compliance checks. Question 2 (or 2A) relates to JA and a bail compliance check attendance by the police on 5 May 2023 (attendance 105) – as earlier noted, that is, after JA revoked any consent for such attendance: see [30] above. The defendant accepts that, in the event that Question 2 is resolved favourably to JA, then that finding “would result in the [defendant] conceding liability in respect of 36 attendances” (defendant’s further submissions at [23]). Question 3 (or 3A) relates to MA and a bail compliance check attendance by the police on 20 December 2022 (attendance 138) – as earlier noted, that is after MA revoked any consent for such attendance: see [20] above. The defendant accepts that, in the event that Question 3 is resolved favourably to MA, then that finding “would result in the [defendant] conceding liability in respect of 17 attendances” (defendant’s further submissions at [24]).

83. Mr Sexton SC submitted that, in relation to these questions, they were “very short points”, with limited evidence, and would not materially add much to the estimated hearing length relating to Question 1. I took Mr Villa SC to largely accept as much by his submission that Questions 2 and 3 “raise the same factual issues that arise in [Q]uestion 1”, but also raise an additional question, which was simply whether the sending of the letter was “effective to revoke the licence if it existed” (T12.10).

84. In my view, the real attraction of the defendant’s test attendance proposal lies in a determination of Question 1 favourable to the plaintiffs. In that situation, the defendant accepts that its defence in respect of 158 of the 212 attendances – that is, around 75% of the attendances – will necessarily fail, with the result that no question would remain about the defendant’s liability in trespass: the defendant accepts that all that would remain in issue for those attendances would be the relief to be granted (defendant’s further submissions at [4]; notation (a)). In this respect, it should be noted that Mr Villa SC agreed with the above explanation of the consequences of a determination of Question 1 favourable to the plaintiffs.

85. I regard this matter as highly significant and a powerful justification for departing from the usual course of an “all issues” trial.

86. Additionally, as the defendant submitted, even if Question 1 is determined favourably to the defendant, I accept, as Mr Sexton SC submitted, that there remains an important identifiable advantage in that resolution: at a minimum, the Court will have determined a matter of principle that presently divides the parties (essentially, the existence of an implied authority to enter the land). Whilst Mr Sexton SC accepted that some – possibly a number of – issues would remain in connection with whether the defendant was liable in trespass, he emphasised that it would be against the backdrop of that central determination.

87. The plaintiffs’ further written submissions identified several matters that were argued to subsist any determination of Question 1 favourable to the defendant and, thus, submitted that this would not lead to any material narrowing of the issues in that situation. The submission was essentially that, even if an implied licence of one type were found to exist, subsidiary issues remain and their resolution would be necessary in order for liability in trespass to be fully determined.

88. I do not regard the fact that, on this posited scenario, the answer will not result in the disposition of any attendances as mandating a different approach, for the following reasons. First, the substance of the application by the defendant principally rested on the impact on the bulk of the attendances if resolved favourably to the plaintiffs. Secondly, I accept, as the defendant submitted, that whilst issues would subsist before liability in trespass could be determined, an important question of principle would be resolved. (Mr Sexton SC also submitted that, to the extent other issues remain, the plaintiffs had not pleaded those matters as being in issue. In the circumstances, I do not consider it necessary to address that pleading question).

89. It is necessary to say something about the economies that would be achieved. I have earlier referred to the nature and size of the litigation. It is appropriate to now return to these, and related, matters.

90. Drawing upon what was earlier set out relating to “all issues” trials in each matter, particularly the “estimates” of the likely hearing length by the solicitors, and recognising that these are estimates proffered when the evidence has not yet developed (at least to any significant degree), I consider the estimate given by the solicitor for the defendant to be realistic and to more accurately reflect the likely hearing length in each matter. That is because, in my view, the estimate better reflects the number of potential witnesses involved (for the defendant); the likelihood of there being potentially somewhat expanded cross-examination of some, or a considerable number of, police witnesses who, by way of one example only, attended on multiple occasions; and the nature and extent of the issues raised in the defences (notably, that of “purpose” and the strong contest that at least presently exists on that issue for each of the attendances).

91. Whatever way one approaches it, the litigation is vast and I accept a hearing in both matters would likely exceed three months. Necessarily in litigation of this size, the time and cost of undertaking the pre-trial steps, including preparing the evidence for an “all issues” hearing, would inevitably be of a very high order.

92. The evidence from the solicitor for the plaintiffs painted a rather bleak picture of how long it would take to ready a trial in both matters on “all issues” (to be clear, including damages) and when they would be heard and decided. In MA, the estimate was that an “all issues” trial could “take place in mid 2028, with judgment in 2029”: MA – JS affidavit affirmed 16 July 2025 at [30]. In JA, the estimate was that an “all issues” trial could “take place in mid to late 2028 with judgment in 2029 or early 2030”: JA – JS affidavit affirmed 16 July 2025 at [36].

93. The estimates for an “all issues” trial may be contrasted with those proffered – by Mr Sexton SC, on behalf of the defendant, and by Mr Villa SC, on behalf of the plaintiffs – about the likely hearing length of the defendant’s test attendance proposal.

94. Mr Sexton SC suggested that a hearing of the test attendances would take 2-3 days. Mr Villa SC disagreed with that estimate, suggesting the defendant’s estimate was “likely significantly undercooked” (T10.3) and that a hearing would most likely be in the order of two weeks. I tend to think that Mr Villa SC’s estimate is somewhat closer to the mark. In the end, for the purposes of the comparative exercise, it does not really matter whether a test attendance trial is three days or closer to 10 days, given the disparity between the estimated test attendance hearing length and the estimated “all issues” hearing length (and, axiomatically, the disparity between the necessary preparatory steps and cost).

95. Further, in my view, given the general description of the litigious landscape raised during submissions (including the further written submissions) and the fact that the parties’ legal representatives are highly experienced, there is no reason to think that a hearing of the test attendance proposal could not occur well within the first half of 2026. The defendant accepted as much, suggesting that any test attendance hearing could be ready for hearing “in short order” (defendant’s further submissions at [15]).

96. Thus, it follows – and I accept – that there are considerable efficiencies and economies to be achieved from the Court hearing and determining the defendant’s test attendance proposal.

97. To the extent that the plaintiffs suggest that a hearing on all issues would not be able to occur before 2028, that tends to favour the Court taking a more interventionist role to ensure that the litigation can be disposed of well before that time.

98. The plaintiffs submit that, by the test attendances, they are “unfairly prejudiced from properly testing” the defence – in particular, the purpose and legitimacy of the police conduct during the relevant periods involved in each claim (plaintiffs’ submissions at [43]). The nub of the point made by the plaintiffs is that they would be denied the opportunity to “factually contextualise” the test attendances which they argue would be necessary “to properly inform any determination of liability” (plaintiffs’ submissions at [46]).

99. The plaintiffs’ submission appeared to be directed to the earlier iteration of the defendant’s proposal. It was not developed in connection with the current one and did not feature in oral submissions during the hearing on 16 October 2025. In any event, I do not accept the submission. To the extent the submission relates to the defendant’s current proposal, and a determination of Question 1 favourable to the plaintiffs, I note the plaintiffs’ position about that outcome as confirmed by Mr Villa SC (see [84] above). That stance, in my view, undercuts any suggestion that there would be some unfair prejudice arising from the defendant’s test attendance proposal. Further, to the extent that the submission concerns the defendant’s current proposal, but a determination of Question 1 favourable to the defendant, it is difficult to reconcile this submission with the earlier one to the effect that, given little will be decided other than a question of principle, a separate determination lacked utility because it would not result in any appreciable narrowing of issues.

100. The plaintiffs next argued that the “impact on witnesses” weighs against orders for separate determination. The plaintiffs made three broad submissions on this topic. In short, they covered: the suggested “overlap” of evidence; the “prejudice” to them involved in being cross-examined twice; and the suggestion, raised by the defendant, about the “operational impact” that an “all issues” hearing would have upon policing generally.

101. First, in relation to the argument about overlap between any evidence adduced at a test attendance hearing, and any subsequent hearing, I accept that considerations about “overlap” can sometimes weigh against a separate determination and make such procedure “undesirable”: LSR3 at [28]. Here, however, I am unpersuaded there is any real issue about “overlap”, as the plaintiffs argued. In my view, it is not self-evident why that would be so in relation to the plaintiffs. Whilst it may be accepted that they may or would have to give evidence relating to matters of background on a further occasion, if the hearing of the test attendances is ordered, those matters were not suggested to be anything other than uncontroversial. Put slightly differently, but largely to the same end, precisely what that overlap would or might be was not, at least clearly, identified. There is, obviously, some scope for this to occur, although it is not presently possible to make any firm finding about this: I tend to think that the prospect of it occurring is quite likely to be limited (as would any “overlap” in the evidence), particularly if the test attendance questions are resolved adversely to the defendant.

102. As to possible overlap in relation to the police officers who attended on multiple occasions – identified by the plaintiffs as Senior Constable Woods and Constable McArthur (in relation to attendance 57: see [49] above) and Constable Evans and Constable Golder (in relation to attendance 138: see [51] above), but not Senior Constable Sims and Constable Douglas (in relation to attendance 105: see [50] above) – although it may be accepted that those officers may need to give evidence on multiple occasions and that there may be a degree of overlap, there are difficulties in making findings about the nature and extent to which this might occur. That is largely because the submissions did not make clear whether, say, if Question 1 was determined favourably to the plaintiffs, the agreed disposition of the bulk of the attendances would include the further attendances by the identified police officers.

103. I do not accept, however, as the plaintiffs submitted, that “the Court will have to make credit and reliability findings in respect of witnesses in a separate question hearing and any subsequent hearing” (plaintiffs’ submissions at [53]). It is simply unknown, and largely speculative, as to whether such findings would need to be made. To illustrate, the position of the defendant, as indicated by Mr Sexton SC, was that there was a question about whether, in fact, the plaintiffs would be required to give evidence on the defendant’s test attendance proposal, given the entries for each attendance (indeed, for all but seven of the 212 attendances) are accepted by the defendant.

104. Mr Villa SC, however, was unprepared to accept that the plaintiffs would not have to give evidence for two possible, and he submitted significant, reasons (T9.34): there may be a question about whether there were any interactions between the attending police and the plaintiffs prior to the body worn video footage commencing and, further, broadly, that need may also arise in connection with attendances 57 and 138 and the attendances of those police officers on other occasions: see [102] above. The reservation that Mr Villa SC made was entirely appropriate but, I consider, reinforced not only that whether the plaintiffs would be required to give evidence at any hearing of the test attendances was a matter that was yet to be determined, but also that there is nothing, at least presently, that gives practical content to the likelihood of there being any credit or reliability issues arising or there being any identifiable concern that they might.

105. To the extent that the plaintiffs submit that they – and potentially their children – will give evidence and be subject to cross-examination on multiple occasions, with the consequence that findings “as to their credit and reliability will therefore be critical”, again, whether they do need to give evidence on multiple occasions, and whether any issues of the kind suggested arise, may or may not be so. Additionally, it is neither self-evident nor obvious why the children would need to be called, given the defendant largely admits the attendances of the police.

106. Secondly, the plaintiffs argue that it would be prejudicial to have them cross-examined twice, arguing that this weighed “strongly against the hearing of a separate question” (plaintiffs’ submissions at [57]). On the footing that Question 1 is answered favourably to the plaintiffs, and given the accepted consequences from such an answer, in my view, there is no significant prejudice to them. Rather, the opposite is so: they would be relieved of the need to give evidence about the other 155 further attendances, being approximately 75% of the attendances. Thus, to the extent that there is a prospect that they may need to be cross-examined twice, I do not regard that as significant: their overall time giving evidence would be dramatically reduced in that situation.

107. Thirdly, the plaintiffs argue that, contrary to the defendant’s submission, the “operational impact on the police actually weighs against” separate questions being ordered: with a separate question, the proceedings impact upon police operations on multiple occasions, rather than only once, and, in relation to some officers who may be required to give evidence on more than one occasion, having them do so once, rather than on multiple occasions, would tend to minimise the impact upon those officers and police operations more generally (plaintiffs’ submissions at [58]). Further, the plaintiffs argue that, given the employment status of the police officers in question remains unknown, little weight should be given to the defendant’s “operational impact” argument (plaintiffs’ submissions at [59]).

108. Given the conclusion that I have reached, and findings that I have made, in connection with Question 1 being answered favourably to the plaintiffs, the substance of these submissions fall away. To the extent they do not, I regard them as contextually small points and I do not accept them.

82. Finally, I am mindful, as the plaintiffs submitted at least initially in writing, that there is the prospect of an appeal from any separately determined questions and, if that were to occur, the final determination of the matter – in whatever form – would be delayed. I do not attach any weight to this submission, nor do I consider the existence of that risk to tell against the order I favour. That is because the prospect of an appeal by a dissatisfied party is not uncommon in litigation and, even if that were to occur here, it is well-known that there is no significant delay in securing a prompt hearing of an appeal – hearing dates are presently available in the Court of Appeal from November 2025.

83. To sum up. I am mindful of the caution that must be exercised when considering whether to order a separate determination and the well-known considerations that underpin the need for restraint.

84. Here, I am firmly persuaded, consistent with the overriding purpose of facilitating the just, quick and cheap resolution of disputes and case management considerations, that it is appropriate and desirable for the Court to hear and determine the defendant’s test attendance proposal. In my view, the most powerful considerations that favour that approach include the fact that, as things stand, and as estimated by their solicitor, the plaintiffs’ “all issues” trial would be many years away, with all the attendant stress, strain and cost that inevitably would be involved and, having reached that point, the parties and the Court would embark upon trials that I presently estimate would exceed three months in length. Yet, by the defendant’s test attendance proposal, the preparation for and hearing of those attendances can occur in the first half of 2026 and, depending upon the answers, could dramatically reduce the size and scope of the litigation. Importantly, I am satisfied that the defendant’s test attendance proposal would not only minimise delay and cost, but would also do so justly and fairly.

85. A final matter. The form of the order that I propose to make, in each matter, is that the Court separately determine the question or questions substantially in the form of annexure “A” to this judgment. It is expressed in this way to emphasise that, particularly as the evidence develops and further attention is given to the form of questions, refinement of them may well occur. Whether it does will be a matter for the parties and, naturally, the trial judge.

Orders

113. For the above reasons, I make the following orders in MA:

1. Order that, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the Court separately determine the questions, substantially in the form of annexure “A” to this judgment, relating to attendances 57 and 138.

2. Order that the costs of and incidental to the defendant’s Notice of Motion filed 19 June 2025 be costs in the proceedings.

114. For the above reasons, I make the following orders in JA:

1. Order that, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the Court separately determine the question or questions, substantially in the form of annexure “A” to this judgment, relating to attendance 105.

2. Order that the costs of and incidental to the defendant’s Notice of Motion filed 19 June 2025 be costs in the proceedings.

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Annexure A (98.5 KB, pdf)

Decision last updated: 21 October 2025