Ong v Little Company of Mary Health Care Ltd

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ONG v LITTLE COMPANY OF MARY HEALTH CARE LTD & ANOR
[2024] SASC 99
Decision of the Honourable Justice Stein
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS - SEPARATE DECISION OR DETERMINATION - GENERALLY
The applicant, Dr Thao Ong, has commenced two sets of proceedings against the respondents, Little Company of Mary Health Care Limited and Calvary Health Care Adelaide Limited (“Calvary”). In one action, Dr Ong alleges breach of contract and unconscionable conduct. In the other action, Dr Ong alleges defamatory imputations arising from publications made by Calvary. Both actions relate to the suspension of Dr Ong’s accreditation to practice as a surgeon at Calvary hospitals.
Dr Ong applies for the issue of the existence and terms of a contract between Dr Ong and Calvary to be determined at a separate trial on ground including:
•the issue is discrete and straightforward and could be addressed quickly, predominately on documentary and affidavit evidence;
•there would be minimal overlap in evidence with other issues;
•the separate trial would result in a saving of cost and time and a narrowing of litigious controversies between the parties;
•the separate trial would increase the likelihood of the parties resolving some, or all, of the issues in dispute.

Calvary opposes the application for a separate trial on grounds including:
•there is significant overlap in evidence between the existence of contract issue and other issues;
•a separate trial may necessitate the examination of witnesses and credit findings to be made by the trial Judge;
•a separate trial will not lead to any real cost or time saving or narrowing litigious controversies or increase the likelihood of the parties settling; and
•the outcome may be appealed by either party fragmenting proceedings.

Held (refusing the application):
1.The overlap of the issues between the defamation action and the unconscionable conduct cause of action is such that whether or not a separate trial disposes of the contract cause of action, there would not be significant saving of cost or time or narrowing of the litigious controversies between the parties.
2.There is no sufficient basis to conclude that the outcome of a separate trial would carry with it a strong prospect of the parties resolving the disputes.
3.In a separate trial, witnesses may give evidence necessitating findings of credit by the trial Judge which would make it inappropriate for that judicial officer to hear any further trial.

Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215; Tepko Pty Ltd v Water Board (2001) 206 CLR 1, applied.
Flemings Nurseries Pty Ltd v Hannaford [2008] FCA 591, distinguished.
SA Water Corporation v United Water International Pty Ltd [2009] SASC 383; Abigroup Contractors Pty Ltd v Hardesty Handover International LLC [2008] SASC 369; Dunstan v Simmie & Co Pty Ltd [1978] VR 699; O’Connor v Suman [2015] NSWSC 1812; Wells v Council of the City of Orange [2016] NSWSC 589; Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 2) [2011] SASC 92; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193; Profile Events Pty Ltd v West Beach Trust [2011] SASCFC 1, considered.

ONG v LITTLE COMPANY OF MARY HEALTH CARE LTD & ANOR
[2024] SASC 99
Civil: Application

STEIN J: The applicant, Dr Thao Ong, has commenced two sets of proceedings against the first and second respondents, Little Company of Mary Health Care Limited and Calvary Health Care Adelaide Limited, (collectively “Calvary”). One proceeding alleges defamation (“defamation action”) and the other alleges breaches of a contract said to have been entered into between Dr Ong and Calvary and unconscionable conduct (“contract action”).
Dr Ong applied in the contract action for a separate trial on the issue of the existence and terms of a contract between Dr Ong and Calvary.[1] Calvary opposes the application.
[1] FDN 19.
I have determined to refuse the application for a separate trial because Dr Ong has not persuaded me to depart from the general rule that proceedings should be determined in a single trial. This is predominantly because I am not satisfied that the determination of the separate issue will substantially narrow the field of litigious controversy between the parties. Other factors also militate against such an order for a separate trial for the reasons I set out below.
Background
Dr Ong is a surgeon. In 2009, he applied for accreditation at Calvary and was granted accreditation to provide medical services at Calvary. Dr Ong’s accreditation was renewed at times until 2020.
While accredited, Dr Ong conducted medical services at Calvary including in relation to three patients referred to as “GG”, “MT” and “AN”.
In December 2019, a decision was made at a meeting to suspend Dr Ong’s accreditation. On 6 March 2020, there was a conversation between a representative of Calvary and Dr Ong, followed by a meeting on 7 March attended by Dr Ong and a number of people including the Regional Chief Executive Officer of Calvary, Ms Kendall. At that meeting, Dr Ong was informed that a decision had been made to suspend Dr Ong’s accreditation based on concerns about three clinical cases (being GG, MT and AN).
In March 2020, Calvary notified the Australian Health Practitioner Regulation Agency (“AHPRA”) in relation to Dr Ong’s treatment of GG, MT and AN. On 1 July 2020, the Medical Board reviewed the AHPRA notification and determined, among other things, to take no further action in relation to Dr Ong’s treatment of GG, AN and MT. AHPRA informed Dr Ong of the Medical Board’s decision on 13 August 2020.
On 25 August 2020, Calvary informed Dr Ong’s solicitors that a decision had been made to reinstate Dr Ong’s accreditation.
Dr Ong maintains that Calvary has not reinstated Dr Ong to his pre-suspension position.
Overview of contract action
In the contract action, commenced in March 2023, Dr Ong pleads a claim for breach of contract and unconscionable conduct under the Australian Consumer Law (“ACL”).
Dr Ong alleges that a process contract and a services contract was formed primarily on the basis of Calvary’s Health Practitioner By-Laws (“By-laws”) and the consideration by Calvary of Dr Ong’s application for accreditation pursuant to the By-laws.
Dr Ong pleads that Calvary breached the services contract by suspending Dr Ong and that, by reason of these breaches, Dr Ong has suffered loss and damage entitling relief. The pleaded breaches include Calvary suspending Dr Ong without having a basis in reliable evidence to do so, without reasonable or proper grounds and absent honest and rational belief that grounds to suspend had been established. A number of particulars are pleaded including asserted failures by Calvary properly or adequately to investigate the circumstances of the treatment of each of GG, MR and AN, failing to give Dr Ong an opportunity to respond, and making false statements in a letter to GG’s wife. The conduct pleaded as giving rise to breach of contract is the same conduct pleaded as unconscionable conduct within the meaning of s 21 of the ACL said to have resulted in Dr Ong suffering loss and damage entitling recovery pursuant to ss 236 and/or 237 of the ACL.
Calvary denies the existence of any process or services contract, denies any alleged breach of the contract (if found to exist); denies loss and damage was occasioned by any (denied) breach and denies unconscionable conduct.
Overview of defamation action
In the defamation action, commenced in September 2022, Dr Ong pleads that he was accredited to provide medical services at Calvary with such accreditation governed by the terms of the By-laws and that his accreditation was suspended at the 7 March 2020 meeting. Dr Ong alleges defamatory imputations arising out of various publications made by Calvary at the time of, and following, Dr Ong’s suspension. The pleaded publications include statements made during the 7 March meeting and thereafter including in a letter sent by Calvary to GG’s wife and in the notification to AHPRA.
Dr Ong pleads loss and damage in the form of injury to his credit and reputation, distress and economic loss. Dr Ong claims aggravated damages on the basis that Calvary failed to make proper or adequate enquiries before suspending Dr Ong and publishing statements about his suspension, failed to properly consider Dr Ong’s response and failed to engage in an appeal process initiated by Dr Ong under the By-laws.
Calvary broadly denies that the alleged imputations were conveyed and/or that the imputations relied on are defamatory. In the alternative, to the extent it may be found that imputations were conveyed and not substantially true, Calvary relies on the defence of qualified privilege and statutory protections.
In his reply, Dr Ong denies the publications occurred on occasions of privilege and pleads the publications were not reasonable and/or were actuated by malice. Pleaded particulars of malice include matters relating to the complaint about the treatment of GG, AN and MT and the asserted failure of Calvary to reinstate Dr Ong to his pre-suspension level of access to the hospitals.
The contract action and defamation action are being case managed together. Calvary contends the issues in them are inextricably intertwined such that the trials must be heard together.
The application for a separate trial
Dr Ong brought an interlocutory application pursuant to r 151.1(2) of the Uniform Civil Rules 2020 (“UCR”) for an order for the separate determination of the existence and terms of the process and services contracts prior to a trial of any other issues in the contract action. If granted, Dr Ong seeks an order that evidence in chief in a separate trial be adduced in the form of affidavits.[2]
[2] Uniform Civil Rules 2020, rr 154.8 and 172.1.
Authorities
The principles applicable to when a Court may order the hearing of a separate trial on distinct issues are well settled. The general rule and starting point remains that issues in contention between parties should be dealt with in a single trial and the trial process should not be unduly fragmented.[3] The party seeking a departure from the general rule thus bears the onus to demonstrate to the Court that it is desirable for such a departure to be made on the relevant principles and the evidence before the Court.[4] The Court’s power to order a separate trial is ultimately discretionary. Such discretion must be exercised judicially but cannot otherwise be fettered.[5]
[3]    SA Water Corporation v United Water International Pty Ltd [2009] SASC 383 at [46] (Anderson J); Abigroup Contractors Pty Ltd v Hardesty Handover International LLC [2008] SASC 369 at [93] (White J; Kelly J agreeing).
[4]    Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215 at [7] (Einstein J).
[5]    Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215 at [7] (Einstein J), citing Dunstan v Simmie & Co Pty Ltd [1978] VR 699 at 670 (Young CJ and Jenkinson J); SA Water Corporation v United Water International Pty Ltd [2009] SASC 383 at [46] (Anderson J).
A separate trial or the separate determination of issues should only be embarked upon where “the utility, economy and fairness to the parties are beyond question”.[6] Consideration may be given to the ultimate object of the Rules as set out in r 1.5 of the UCR namely “to facilitate just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings”,[7] and to the matters referred to in r 12.2(2) of the UCR.[8] Those matters include:
(c) the time and cost incurred in the proceeding or appellate proceeding or step;
(d) the proportionality between the time and cost incurred in and the importance and value of the subject matter of the proceeding or appellate proceeding or step;
…
(f) the desirability of early resolution by agreement of disputes the subject of or in proceedings;
…
(h) the efficient use of judicial and administrative resources.
[6]    Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at [170] (Kirby and Callinan JJ).
[7]    Uniform Civil Rules, r 12.2(1); see also O’Connor v Suman [2015] NSWSC 1812 at [10] (Schmidt J); Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215 at [7] (Einstein J).
[8]    Uniform Civil Rules, r 12.2(2).
The principles set out by Einstein J in Idoport Pty Ltd v National Australia Bank Limited (“Idoport”)[9] remain apposite in the determination by a Court on whether to order a separate trial. His Honour summarised the circumstances where ordering a separate trial may be appropriate as follows:[10]
(a)where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy;
(b)where the resolution of that separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation;
(c)where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of witnesses.
[9] [2000] NSWSC 1215, cited with approval in Wells v Council of the City of Orange [2016] NSWSC 589 at [12] (Hoeben CJ at CL); see also Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 2) [2011] SASC 92.
[10] Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215 at [7] (Einstein J).
Justice Einstein also referred to circumstances in which a separate determination would rarely be appropriate as follows:[11]
(a)there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation.
(b)where there is a commonality of witnesses and issues of credit as between the separate issue and other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witness, thus possibly precluding that same judicial officer from again dealing with the matters going to the credit of the common witness in accordance with the decision of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 441.
(c)there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings.
(citations omitted)
[11] Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215 at [7] (Einstein J).
As commonly observed by other Courts, experience dictates that the savings of time and expense posed by the ordering of separate trials on issues are often illusory and in reality tend to lead to further costs and delay. In Tepko Pty Ltd v Water Board[12] Kirby and Callinan JJ cautioned as follows:
The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.
The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties', interests.
Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.
[12] [2001] HCA 19; (2001) 206 CLR 1 at [168]-[170] (Kirby and Callinan JJ). See also Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215 at [7] (Einstein J).
In Idoport, Einstein J similarly warned of the unintentional delay and cost imposed by ordering a separate trial and concluded that for a Court ordering such, “it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings”.[13]
[13] Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215 at [7] (Einstein J); See also Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369 at [93] (White J; Kelly J agreeing).
Dr Ong’s submissions
Dr Ong contended that the existence and terms of any alleged contract was a discrete and straightforward issue that could be easily dealt with separately to issues of breach of contract and relief in a hearing of one day, leading to real savings in cost and time. Counsel submitted there was no dispute as to the terms of the By-laws and the dispute was limited to whether the By-laws in combination with the process of accreditation gave rise to a services contract. Counsel contended that the objects and overarching obligations under the UCR dictate that the quick and efficient resolution of proceedings should be preferred and the parties are obliged to assist the Court in furthering the overriding purpose.
Dr Ong submitted there will be no overlap in evidence across the existence of contract issue and other issues in dispute and the determination of this issue could rely predominately on documentary evidence, particularly, the By-laws and financial statements.
On Dr Ong’s position, a separate trial on the issue of existence and terms of a contract would not necessarily require an extensive examination of the surrounding circumstances which led to the formation of the purported contract. Any need for surrounding evidence could be adduced by affidavit and such evidence would likely be uncontentious, obviating any need for cross-examination and credit findings. Dr Ong contended the evidence Calvary proposes to call is either irrelevant and inadmissible or readily capable of being adduced by affidavit. Counsel characterised much of the evidence referred to by Calvary as simply “anticipated” in advance of formal proofing or statement taking.
Counsel contended there is not sufficient evidence to conclude whether credit findings may be required and of what witnesses.
Regardless of the outcome of a separate trial, Dr Ong’s counsel submitted it is reasonable to assume the losing party will be open to settlement discussions which may ultimately dispose of the litigious controversy. If Dr Ong is successful in a separate trial, in the absence of resolution, the balance of proceedings could continue, resulting in significant time and cost savings to the parties and the Court.

In responding to the contention that a separate trial would unduly fragment proceedings, Dr Ong pointed to a strike out application foreshadowed by Calvary in relation to the contract action, observing that the Court will likely be required to rule on this issue prior to a trial.
Counsel for Dr Ong submitted that settlement may occur following a separate trial on the existence of contract, whatever the outcome. The defamation action was described as “entirely in the back end” and counsel submitted Dr Ong may reconsider the prosecution of the defamation action and unconscionable conduct if the contract action falls away.
If, in a separate trial, the Court were to find a contract existed, counsel for Dr Ong submitted it should not be assumed that Calvary would appeal and thus fragment proceedings. In support of this submission, counsel referred to Australian Competition and Consumer Commission v Little Company of Mary Health Care Ltd (“ACCC v LCMHC”).[14] In those proceedings it was an agreed fact that a contract between the medical practitioner and the respondent existed, requiring compliance with the relevant by-laws.
[14] [2015] FCA 1144.
Calvary’s submissions
Calvary contended that the By-laws do not operate in isolation and that evidence, including witness testimony, will be required to address the question whether a contract existed. Significant lay evidence will be required to establish, among other things, the factual background, Calvary’s practices and policies and the various iterations of the By-laws. Calvary’s position is that much of this evidence will not be capable of being agreed.
Calvary contended that resolution of the contract action will not obviate significant litigation addressing a substantially similar factual background, albeit with different pleaded causes of action. Further, Calvary’s position is that if a contract is found to exist, settlement is unlikely where a substantial controversy in relation to breach of contract, causation and loss remains to be determined.
Calvary’s counsel submitted there will be overlap between the existence of contract issue and the remaining issues in the proceedings. Witnesses to give evidence in relation to the existence of contract issue will also be required to give evidence in relation to the issue of breach on Calvary’s case. Any separate determination will thus necessarily involve the assessment of credibility and/or reliability of witnesses called in circumstances where it is unlikely the parties will not test the evidence. Obtaining statements from witnesses on all issues at one time will require minimal additional cost and time whereas on Calvary’s position significant resources will be expended in undertaking this task twice for the purposes of separate trials.
Counsel submitted that the purported irrelevance and admissibility of evidence proposed to be adduced by Calvary is not itself a factor relevant to the determination of whether a separate trial ought to be allowed. Further, Dr Ong’s foreshadowed objections to evidence proposed to be called by Calvary may necessitate argument and rulings on admissibility of evidence. Calvary also foreshadowed objections to the admissibility of financial reports proposed to be tendered by Dr Ong. Calvary’s contention is that these issues indicate a separate trial is unlikely to be dealt with in a single day.
On Calvary’s case, the defamation action relies on a substantially similar factual foundation to the contract action. Thus, much of the same evidence will still be required for the defamation action if in a separate trial the Court finds a contract did not exist. Calvary contended that it follows there will be no resolution of the litigious controversy as between the parties and on that basis alone the Court should not order a separate trial.
As the factual basis of the two actions are intermingled and must be addressed together, Calvary contended that dealing separately with the existence of contract issue will result in significant cost and delay.
Counsel for Calvary indicated he is no longer instructed to proceed with a strike out application and no reliance can be placed on ACCC v LCMHC because an agreed fact in different, unrelated proceedings is irrelevant.
On Calvary’s position, separate determination will not reduce the field of litigious controversy or increase prospects of settlement of the balance of litigation but rather will result in increased cost and the fragmentation of proceedings due to inevitable appeals.
Consideration
Substantial narrowing of litigious controversies
The most compelling argument against making an order for a separate trial is that determination of the existence of contract issue in a separate trial will not resolve the entirety of, or substantially narrow, the field of litigious controversy.
The impact of determination of the separate contract issue, whether for or against Dr Ong, must be considered in the context of the balance of the contract action and the issues in the defamation action.
If Dr Ong is unsuccessful in a separate trial
If, in a separate trial, the Court determined there was not a service contract between Dr Ong and Calvary, the cause of action in contract would fall away. However, failure to establish the existence of a service contract would not defeat the defamation action or the claim of unconscionable conduct. While issues of breach of contract would not have to be addressed in trial, substantially the same factual basis relied on for breach of contract underpins the claim in unconscionable conduct and significantly overlaps with the factual foundation for the pleadings of the defamatory imputations. Loss flowing from alleged breach of contract would not have to be addressed, but the issue of loss arising from the other causes of action would remain.
Defamation action
As will be evident from the overview above, the pleadings in the contract action and the defamation action rest on a substantially similar factual substratum. The events and facts pleaded by Dr Ong in the contract action concerning the treatment of patients GG, AN and MT which ultimately lead to the suspension of Dr Ong’s accreditation[15] are pleaded in identical terms, or similar facts are relied upon in the statement of claim and/or the reply in the defamation action.[16] While some matters are admitted, Calvary disputes aspects of, and pleads differing versions of, events in relation to GG, AN and MT.[17] It follows that even if evidence concerning the treatment of GG, AN and MT is not required in relation to breach of contract, most, if not all, of that evidence will be required in the defamation trial. That evidence is relevant to pleaded publications, allegations of malice and potential defences. Evidence concerning the treatment of the three patients will likely involve calling a number of witnesses and require significant time and resources in the defamation action alone.
[15] Contract Action: FDN 18 at [21]-[64].
[16] Defamation Action: FDN 54 at [12A], [20]-[23] and FDN 65 at [3.2] and [4.2].
[17] Contract Action: FDN 22 at [24]-[29], [32]-[35], [55] and [61]-[62].
The events of, and following, the decision to suspend Dr Ong are also common to both proceedings, specifically the Clinical Review Committee meeting held on 19 December 2019,[18] the discussion on 6 March 2020,[19] the meeting held with Dr Ong on 7 March 2020[20] and the notification to AHPRA.[21] Many of the allegations are admitted by Calvary. However, the events of the meeting on 7 March 2020 and words spoken by the attendees are denied.[22] Many of the disputed matters relate to allegations of what people “knew” and what words were said to have been spoken. The meeting was attended by five people including Dr Ong, all of whom may be called to give evidence, likely requiring findings of credit. The time and resources required to ventilate these issues would remain in a trial of the defamation action alone.
[18] Contract Action: FDN 18 at [65]-[73]; Defamation Action: FDN 65 at [4.2].
[19] Contract Action: FDN 18 at [76]; Defamation Action: FDN 54 at [11A].
[20] Contract Action: FDN 18 at [74]; [77]-[79]; Defamation Action: FDN 54 at [12], [12A], [13] and [24].
[21] Contract Action: FDN 18 at [74]; Defamation Action: FDN 54 at [24].
[22] Contract Action: FDN 22 at [79].
A number of other matters are alleged in both proceedings and disputed by Calvary, such as the existence and management of a specialist directory and the allegation that Dr Ong’s name was removed from the specialist directory by Calvary.[23] A number of non-controversial matters are common to both proceedings, particularly the functions of Calvary and the process of accreditation undertaken by Dr Ong.
[23] Contract Action: FDN 18 at [10], [20] and [75]; Defamation Action: FDN 54 at [10] and [16].
I accept that if the existence of contract issue is determined against Dr Ong, evidence of loss and damage caused by a contractual breach will not be required. However, proof of loss and damage arising from the alleged defamatory conduct will be required. The pleaded loss and damage in the defamation action includes pleading of economic loss. The particulars in support of the claim for aggravated damages in the defamation action overlap with matters pleaded in support of loss and damage in relation to breach of contract and unconscionable conduct. These include a negative impact on Dr Ong’s reputation, an assertion that Calvary has not reinstated Dr Ong to the position he was in prior to the suspension and the time it will take for Dr Ong to reestablish his reputation and level of pre-suspension income.[24] The pleading of aggravated damages also overlaps with matters pleaded as giving rise to breach of contract including failures to investigate and enquire.[25]
[24] Contract Action: FDN 18 at [107]; Defamation Action: FDN 54 at [29].
[25] Contract Action: FDN 18 at [81]; Defamation Action: FDN 54 at [29].
Accordingly, while Dr Ong’s counsel estimated issues associated with breach, causation and loss are likely to take about five weeks of trial, it does not follow that an equivalent or significant saving of time and resources will follow if Dr Ong is unsuccessful in the existence of contract issue.
Unconscionable conduct cause of action in the contract action
The unconscionable conduct claim is pleaded by repeating particulars of the contract cause of action, specifically paragraphs 21 to 80 and 82 to 104, and includes the matters set out above.[26]
[26] Contract Action: FDN 18 at [109].
The evidence which would be called in relation to breach of contract will thus be required to establish the foundation for the separate cause of action as pleaded. Accordingly, absent settlement of the unconscionable conduct cause of action or discontinuance, the evidence underpinning breach of contract would be required for the balance of the contract action.
Again, while evidence of loss flowing from a contractual breach will not be required, proof of loss and damage arising from the asserted unconscionable conduct will remain, with associated incurring of time and cost.
Dr Ong’s counsel submitted that if Dr Ong was unsuccessful in a separate trial of the existence of contract issue, Dr Ong may reconsider the merits of pursuing an unconscionable conduct claim. I do not consider that submission sufficient basis to justify ordering a separate trial. I address further below related submissions on the potential for settlement.
It follows from the analysis above that if the existence of contract issue is determined against Dr Ong there would not be a substantial narrowing of the litigious controversy between the parties. The time, costs and resources associated with determining the remaining issues at trial will not be significantly reduced given the evidence which will be required in relation to the remaining overlapping issues.
If Dr Ong is successful in a separate trial
If Dr Ong is successful on a separate trial in establishing the existence of contract issue, a substantial dispute in relation to breach, causation and loss will remain. Accordingly, success on the existence of contract issue will not result in a narrowing of the issues for trial and the litigious controversy absent settlement, which I discuss below.
It is thus apparent that regardless of whether Dr Ong is successful or unsuccessful in a separate trial on the existence of contract issue, a significant trial addressing a multitude of overlapping issues in dispute would remain. Consequently, ordering a separate trial will not substantially narrow the litigious controversies between the parties.
That of itself is sufficient basis to refuse the application. However, other factors also support that conclusion.
Time required to determine existence of contract issue
Counsel for Dr Ong estimated a trial on all issues in the contract action would require at least five weeks whereas a separate trial on the existence of contract issue would likely take one day. I accept the time required to address the existence of contract issue is minor relative to the remaining issues in the contract dispute.
Given the likely resources to be expended, counsel submitted a separate trial would assist Dr Ong. If unsuccessful, he would avoid incurring the costs associated with proof of breach, causation and loss. However, that does not of itself warrant ordering a separate trial. It is not one of the factors referred to in the authorities as relevant to the Court’s consideration.The substantial overlap with the factual substratum for, and issues in, the defamation action and the unconscionable conduct claim will remain. It also does not address the potential for fragmentation and associated costs in the event of an appeal following the separate trial.
Prospects of settlement
Counsel for Dr Ong referred to the remarks of Kenny J in Flemings Nurseries Pty Ltd v Hannaford (“Flemings”) in relation to the prospects of settlement in the event a separate determination is ordered:[27]
… I accept that, at least from the applicants’ perspective, the expense of a trial on liability is less than the expense of a trial on all issues. There is a possibility, as I pointed out to Mr Hannaford’s counsel, that these savings might also ultimately affect him. There is also the allocation of the Court’s resources to be considered. A related issue is the prospect of settlement, if the applicants were successful in some part. If they were not, of course, there would be no need for any further trial.
At the hearing, counsel for the applicants submitted, and counsel for Mr Hannaford did not deny, that there is a good prospect that, if liability is determined, then the parties may proceed to settlement. Experience indicates that this is so. Accordingly, I am not persuaded that the penalty and/or relief against forfeiture issue alone should prevail over the other considerations in favour of a split trial.
[27] Flemings Nurseries Pty Ltd v Hannaford [2008] FCA 591 at [25] (Kenny J).
Flemings concerned an action for breach of contract and statutory contraventions. Declaratory and injunctive relief, delivery up orders and damages and/or an account of profits were sought. The applicants filed an application for a separate trial on all issues of liability prior to any trial on relief and quantum.
As Kenny J stated, each matter “… turns in each instance on the nature of the case and the particular circumstances relevant to it”.[28] I do not consider Flemings analogous to the separate trial application in this matter. Flemings involved an application to separate questions of liability from those of quantum/remedies within one action. Relief and quantum in Flemings were expected to be significantly disputed with associated costs. The issues proposed to be determined in a separate trial in Flemings would determine all questions of liability. A separate trial in that matter would either result in an outcome of no liability, thus ending the action and avoiding costs and time to address quantum and relief, or a finding of liability. Justice Kenny accepted, on the basis of submissions, that a finding of liability would likely result in settlement of the remaining issues of quantum and remedies.
[28] Flemings Nurseries Pty Ltd v Hannaford [2008] FCA 591 at [18] (Kenny J)
Justice Einstein stated in Idoport that the separate determination must carry with it “a strong prospect” that the parties may thereafter be able to resolve the dispute. At all stages of litigious proceedings there is a potential for a resolution of some or all of the litigious controversies. I do not consider the submission that the parties may resolve or narrow the outstanding litigious controversies following such a determination is a sufficient basis to justify ordering a trial on the existence of contract issue.
I am not persuaded that the approach taken to agreed facts in ACCC v LCMHC justifies a conclusion that Calvary would not appeal against a finding in favour of the existence of a contract. Dr Ong may appeal an unfavourable outcome. There is no assurance that any judgment would not result in an appeal by the unsuccessful party and consequently fragment the proceedings.
Other factors
The factual background relevant to the existence of contract issue[29] is largely admitted by Calvary.[30] Calvary denies a contract was created, and the implied terms of that contract, arising from the facts alleged.[31]
[29] Contract Action: FDN 18 at [11]-[16] and [18].
[30] Contract Action: FDN 22 at [11]-[12], [13.1]-[13.3] and [14].
[31] Contract Action: FDN 22 at [13], [15]-[16] and [18].
As set out above, Dr Ong submitted that limited, predominantly documentary evidence would be required to determine the existence of a contract. The financial statements were said to be relevant to the pleading of Calvary’s business model and its source of revenue.[32]
[32] Contract Action: FDN 18 at [8]-[9].
Evidence of surrounding circumstances is admissible for the purposes of the objective assessment of an intention to enter into contractual relations.[33] In Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd,[34] Allsop J (as he then was) referred to whether the parties’ conduct “including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract”.
[33] See, for example, Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [24]-[25] (Gaudron, McHugh, Hayne and Callinan JJ), Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 at [34] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ), Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [369] (Allsop J).
[34] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [369] (Allsop J; Brummond and Mansfield JJ agreeing).
Where it is necessary to determine whether a contract existed, relevant surrounding circumstances extend to both pre-contractual and post-contractual conduct.[35]
[35] County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [20]-[21] (Spigelman CJ), [161] (McColl JA); Profile Events Pty Ltd v West Beach Trust [2011] SASCFC 1 at [18] and [25] (Doyle CJ).
Calvary’s position is that evidence about what was said and done by Dr Ong and Calvary’s employees and officers at the time of Dr Ong’s accreditation is relevant to the substratum of facts upon which findings of contractual intent may be made. Relevant evidence of the surrounding circumstances at the time of accreditation is said to include evidence about consideration of Dr Ong’s application for accreditation, Calvary’s clinical governance framework and Calvary’s practices, processes and policies in relation to accredited practitioners (relevant to what was said and done at the time of Dr Ong’s accreditation). Proposed witnesses include Ms Kendall, the current South Australian Regional Chief Executive Officer of Calvary and Mr Bowles, the National Chief Executive Officer.

While conceding some evidence may conceivably be relevant to the mode of performance of a contract, Dr Ong submitted that the evidence of witnesses proposed to be called by Calvary is irrelevant and inadmissible. Calvary made the same complaint regarding the financial statements sought to be relied upon by Dr Ong, but nonetheless submitted that if the financial statements were admitted, Calvary should be entitled to lead evidence to rebut allegations arising from such evidence.
It is apparent that the significant disagreement between the parties is likely to result in arguments on admissibility and necessitate rulings by the trial Judge in a separate trial, increasing the potential time and costs of that trial.
If the rulings on admissibility arguments in a separate trial were to favour Calvary, at least some of its witnesses called to give evidence on the existence of contract issue will give evidence on other matters including breach and liability. Ms Kendall took part in the meeting on 7 March 2020. It is alleged Ms Kendall told Dr Ong that the decision to suspend his accreditation was made following consultation with others including Mr Bowles.[36] At least Ms Kendall will be required to give evidence at trial on the remaining issues. A separate trial may necessitate findings of credit of common witnesses such as Ms Kendall. If so, it would preclude the same judicial officer from hearing any subsequent trial of the remaining issues. Further, it may require witnesses to attend Court on multiple occasions and to provide multiple statements with associated inconvenience and consequential costs.
[36] Contract Action: FDN 18 at [79] and [79.16].
These factors weigh against an order for a separate trial.
Conclusion
In light of the matters to which I have referred, I am not satisfied that I should depart from the general rule that proceedings should be determined in a single trial. Dr Ong has failed to persuade me that this is a case in which ordering a separate trial will facilitate the quicker, cheaper resolution of these proceedings or the utility, economy and fairness to the parties in ordering a separate trial is beyond question.[37]
[37] Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at [170] (Kirby and Callinan JJ).
Orders
I refuse the application for a separate trial on the issue of existence and terms of a contract.
I will hear the parties in relation to costs.

[2024] SASC 99

7 August 2024