Roache v Johansen - [2021] SASC 39

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ROACHE & ANOR v JOHANSEN
[2021] SASC 39
Decision of the Honourable Justice Bampton

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS
Application for an order pursuant to r 151.1(2) of the Uniform Civil Rules 2020 for a separate and preliminary trial of the applicants’ entitlement to advance a cause of action per quod servitium amisit – where the first applicant, who suffered a catastrophic brain injury during a collision on 28 October 2012, and the second applicant, commenced proceedings on 27 October 2015 claiming damages pursuant to a cause in action in negligence – where upon the filing of a second statement of claim on 21 December 2018, the applicants introduced claims pursuant to the cause of action per quod servitium amisit – where the respondent has denied negligence and in the alternative pleaded contributory negligence against the first applicant – where the respondent pleads that the claims by the applicants in their purported capacities as trustee pursuing actions per quod servitium amisit are misconceived, time-barred and would in any case be subject to s 54(2) of the Civil Liability Act 1936 (SA) – whether the general rule that all issues should be dealt with in a single trial should be departed from in the circumstances of the matter – whether the interests of the parties and the interests of justice would be advanced by an order for a preliminary trial.
HELD: Application seeking an order pursuant to r 151.1(2) of the Uniform Civil Rules 2020 dismissed.
Civil Liability Act 1936 (SA) ss 52, 54(2), 66; Limitation of Actions Act 1936 (SA) ss 48, 48(3); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7(4); Motor Vehicles Act 1959 (SA) s 125, referred to.
Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369, applied.
Tepko Pty Ltd & Ors v Water Board (2001) 206 CLR 1; Craig & Craig v Jetmaster Fireplaces Pty Ltd (1988) 142 LSJS 258; Rivers v Rivers [2002] SASC 197; FAI General Insurance Co Ltd (in liq) v Sherry [2002] SASC 431, considered.

ROACHE & ANOR v JOHANSEN
[2021] SASC 39
Civil: Application

BAMPTON J: Brian Francis Roache (“the first applicant”) suffered a catastrophic brain injury during a collision on 28 October 2012. The first applicant was riding his bicycle on Piccadilly Road, Piccadilly when the respondent – who was driving his vehicle in the opposite direction along Piccadilly Road – made a right-hand turn across the path of the first applicant and the collision occurred.
The first applicant, by his litigation guardian,[1] and his wife, Yvonne Kay Dennis (“the second applicant”), commenced these proceedings on 27 October 2015 claiming damages pursuant to a cause in action in negligence (“the personal injury claims”). The second applicant’s claim included a claim for business losses pursuant to s 66 of the Civil Liability Act 1936 (SA)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] SASC 39
Decision Date: 15 April 2021

CaseChat Overview and Summary

The case of Roache v Johansen involves a legal dispute that was heard in the relevant court. The applicants sought a separate determination of certain issues in the proceedings, while the respondent opposed this application. The court was required to decide whether the issues should be split for separate trials or if they should be consolidated into a single trial.

The primary legal issue before the court was whether the disputed issues in the case should be determined through separate trials or a single consolidated trial. The court considered the general principle that all issues should ideally be dealt with in a single trial to avoid fragmentation of the process and potential additional costs and delays. The court also noted that trials of issues rather than of cases in their totality can often be more illusory than real in terms of saving time and expense.

In reaching its decision, the court applied the general rule that all issues should be dealt with in a single trial, unless there were exceptional circumstances that warranted a split trial. The court found that there were no such exceptional circumstances in this case, as there was capacity to list the matter for a consolidated four-week trial. The court also noted that splitting the issues could potentially lead to further appeals. Accordingly, the application for a separate determination of certain issues was dismissed.

The court ordered that the application seeking an order pursuant to r 151.1(2) of the Uniform Civil Rules 2020 be dismissed, and that the disputed issues should be determined in a single consolidated trial. The court found that there were no exceptional circumstances that would warrant splitting the issues for separate trials.

Orders

Orders of the court

HELD: Application seeking an order pursuant to r 151.1(2) of the Uniform Civil Rules 2020 dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is estimated if the preliminary trial judgment were to be appealed, the time from the commencement of the preliminary hearing to exhaustion of the appellate process would be in the order of 2.5 to three years. Conclusion In considering the application, I start from the general rule that all issues should be dealt with in a single trial.[11] As White J said in Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC:[12]The trial process should not be unduly fragmented. … the experience of the courts has been that splitting issues arising from the one action for separate determination with a view to shortening proceedings and saving costs frequently results in a prolongation of the proceedings and the incurring of additional costs. [11] Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369 at [93] (White J).[12] Ibid. I also heed the cautions expressed in Tepko Pty Ltd & Ors v Water Board by Kirby and Callinan JJ:[13]The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P and Fitzgerald JA were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court’s, rather than the parties’, interests.Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.(Footnotes omitted)[13] (2001) 206 CLR 1 at [168]-[170]. This is not a matter where the utility, economy, and fairness to the parties dictates an order for a preliminary trial should be made. As pointed out by the respondent, it is now common ground that a number of witnesses of fact would need to be called in both trials in respect of the disputed issues of fact. There are factors that, in my view, militate against splitting the issues in dispute such that there should be one trial on all issues. As I indicated to the parties during the hearing of the application, there is capacity to list the matter on all issues for a four-week trial in the latter part of this year. The applicants responded that they are not ready for a trial on quantum as the first applicant requires an updating of his medical reports.

Ratio Decidendi

Legal Principle Established

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