RSL Veterans' Retirement Villages Ltd v NSW Minister for Lands

[2006] NSWSC 112

CITATION:	RSL Veterans' Retirement Villages Ltd v NSW Minister for Lands [2006] NSWSC 112
HEARING DATE(S):	20 February 2006
JUDGMENT DATE :	20 February 2006
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Application for order for separate decision of questions refused.
CATCHWORDS:	PROCEDURE [107] - Supreme Court procedure - Practice under Uniform Civil Procedure Rules - Separate decision of questions - When appropriate.
LEGISLATION CITED:	Trustee Act 1925 s 81 Uniform Civil Procedure Rules 2005 r 28.2
CASES CITED:	Tepko Pty Limited v Water Board (2001) 206 CLR 1
PARTIES:	RSL Veterans' Retirement Villages Limited (P) New South Wales Minister for Lands (D1) Attorney General for the State of New South Wales (D2)
FILE NUMBER(S):	SC 5938/05
COUNSEL:	J N West QC & N J Kidd (P) R Pepper (Ds)
SOLICITORS:	PricewaterhouseCoopers Legal (P) I V Knight, Crown Solicitor (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 20 FEBRUARY 2006

5938/05 RSL VETERANS’ RETIREMENT VILLAGES LIMITED v NEW SOUTH WALES MINISTER FOR LANDS & ANOR

JUDGMENT

1 HIS HONOUR: This is an application for a separate determination of questions. The proceedings are proceedings by the RSL Veterans’ Retirement Villages Limited for the construction of an instrument constituting a charitable trust under which it conducts a nursing home and retirement village at Narrabeen. The problem that arises is the diminishing number of returned service people and, indeed, veterans, in the community, and changes which have taken place in the membership requirement of the RSL itself accordingly.

2 On one face of the matter the constitutional changes in the RSL may already have achieved what the plaintiff is desirous of achieving. That is a situation where people who can be characterised as “other deserving persons” can be accommodated in the retirement village, using that word in a wide sense. As a result, there are incorporated in the plaintiff’s summons prayers for relief by way of pure construction of the trust instrument; by way of an order under s 81 of the Trustee Act 1925; and by way of a cy pres scheme. The ambit of the cy pres scheme put forward is simply to achieve the same result by that means, if it be necessary, of permitting “other deserving persons” to take their place in the retirement village.

3 By an amended notice of motion the Attorney General seeks an order for the separate decision under r 28.2 of the Uniform Civil Procedure Rules 2005 of a question which is a question relating to the construction issue. It is said that for the determination of this question the only necessary evidence would be the trust instrument. The body of evidence that relates to the other aspects of the case would not need to be put before the Court. Put as I have thus far put it, the making of an order for the decision of a separate question appears to have some attraction. However, when other considerations are looked at, that attraction fades.

4 Mr West, of Queen’s Counsel for the plaintiff, suggests to the Court that the whole case is a case requiring only a one day hearing. Ms Burns, an experienced solicitor in the Crown Solicitor’s office, deposes that in her view a full hearing would take one and a half days. I think I should adopt the more cautious view of an experienced practitioner and proceed on the basis that the case should be fixed for two days.

5 The evidence, I am told, is all on. The matter could be sent to the Registrar’s callover list on 15 March 2006 when it would get an early hearing date, particularly as it is only a two day case. If the Judge hearing the case is of the view that, by reason of the construction to be placed on the trust, it is not necessary to turn to the evidence that would support other orders, he or she will not need to do so, but will simply deliver a judgment to that effect. If that is not the conclusion to which the trial Judge comes, that Judge will then be able to proceed to traverse that evidence and deliver judgment on the other issues.

6 Although the parties have very responsibly not asked to be put in the Expedition List, on the basis that the case does not really merit expedition on the usual criteria, there is reason for the early disposal of the proceedings, as the demographic problem inherent in the case is likely to start to take effect over coming months rather than coming years. It appears to me that the case is likely to achieve an earlier complete resolution by refusing the motion than by dividing the case into two parts for separate decision. And, if the other issues do need to be traversed, their inclusion will cause only one additional day’s hearing.

7 In addition, I should refer to the inherent dangers that constantly surface in divided cases. First, it may be that some more of the evidence is relevant to the construction point than Ms Pepper for the Attorney General suggests. If so, that evidence, will have to be traversed twice if the case is divided. Secondly, all sorts of unforeseen matters arise at divided trials and if there is an unforeseen overlap, that means that the trial should have been kept whole. Caution in the making of separated decision orders has been counselled at the highest appellate level: Tepko Pty Limited v Water Board (2001) 206 CLR 1 at [168] – [170] per Callinan and Kirby JJ.

8 Thirdly, the motion as put forward requires the formulation of a question by the Court and questions formulated ahead of time without a full knowledge of the matter often prove to be miscalculations of the appropriate question.

9 These risks are sometimes worth taking where there is a greater good to be achieved. I ordered a separate decision of questions in a case where the trial, as it turned out, went for ninety days and the refusal to separate the questions would have meant that a peripherally interested party would have had to be represented at enormous cost for the whole or part of the ninety days. It was apparent that there were risks, that the separation would cause some inconvenience, and some inconvenience, to no one’s surprise, did materialise. But a grave burden and injustice to a party was avoided. I cite that only as showing that sometimes justice requires that a risk be taken in ordering separate decisions of questions but, as I have already indicated, the most to be saved here on the material before me is half to one day’s hearing and it is not worth taking the risk to save that, particularly in light of the considerations above.

10 I have borne in mind the counsel of appellate courts to make orders for separate decision of questions only sparingly.

11 The result is that the application on behalf of the Attorney General will be refused and the amended notice of motion filed today will be dismissed. I vacate the appointment for the return of the original motion on 23 March 2006 before the Registrar. I order that the proceedings be placed in the Registrar’s callover list on 15 March 2006. Costs reserved. Exhibit returned.

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