Sahas v Watch Tower Bible and Tract Society of Australia
[2007] WADC 74
•21 MAY 2007
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SAHAS -v- WATCH TOWER BIBLE AND TRACT SOCIETY OF AUSTRALIA & ANOR [2007] WADC 74
CORAM: EATON DCJ
HEARD: 11 MAY 2007
DELIVERED : 21 MAY 2007
FILE NO/S: CIV 1073 of 2003
BETWEEN: ANGELA SAHAS
Plaintiff (Respondent)
AND
WATCH TOWER BIBLE AND TRACT SOCIETY OF AUSTRALIA
First Defendant (Appellant/Applicant)JEHOVAH'S WITNESSES CONGREGATIONS
Second Defendant (Appellant/Applicant)
ON APPEAL FROM:
For File No : CIV 1073 of 2003
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :Deputy Registrar Hewitt
Citation :ANGELA SAHAS v WATCH TOWER BIBLE AND TRACT SOCIETY OF AUSTRALIA & ANOR
File No :CIV 1073 of 2003
Catchwords:
Torts - Negligence - Application for summary judgment and to strike out statement of claim - Appeal from a Deputy Registrar - Application for separate trial of a preliminary issue - Effect of the Occupiers' Liability Act 1985 on the common law
Legislation:
District Court Rules 2005
Limitation Act 1935
Occupiers' Liability Act 1985
Rules of the Supreme Court 1971
Supreme Court Rules (General Civil Procedure) Rules 2005 (Victoria)
Result:
Appeals dismissed and application for separate trial of a preliminary issue dismissed
Representation:
Counsel:
Plaintiff (Respondent) : Mr K S Pratt
First Defendant (Appellant/Applicant) : Mr W P Cathcart
Second Defendant (Appellant/Applicant) : Mr W P Cathcart
Solicitors:
Plaintiff (Respondent) : ELS Lawyers
First Defendant (Appellant/Applicant) : Downings Legal
Second Defendant (Appellant/Applicant) : Downings Legal
Case(s) referred to in judgment(s):
Apex Holiday Centre (Inc.) v Lynn [2005] WASCA 58
Bartlett & Anor v Jones, unreported; FCt SCt of WA; Library No 990073A; 22 February 1999
Bryant v Fawdon Pty Ltd (1993) Aust Tort Rep 81‑204
Coatz v Westcourt Ltd [2003] WASCA 49
Dunstan v Simmie & Co Pty Ltd [1978] VR 669
Geroheev Pty Ltd & Ors v Wheare [2004] WASCA 206
Homestyle Pty Ltd v Perrozzi [2007) WASCA 16
Jones v Bartlett [2000] HCA 56
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Lawson v Charles Hull Contracting Co Pty Ltd, unreported; FCt SCt of WA, Library No 980561; 25 September 1998
Prast v Town of Cottesloe [2000] WASCA 274
Renowden v McMullin (1970) 123 CLR 584
Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994
Uzabeaga v Town of Cottesloe [2004] WASCA 57
Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139
EATON DCJ: The plaintiff commenced her action against both defendants by filing a writ of summons on 15 May 2003 seeking damages for personal injury sustained in a fall at a hall at Nollamara on 26 July 1999. Her cause of action was said to be in negligence. She filed a statement of claim on 29 November 2005. Both defendants filed a defence on 6 January 2006, each denying liability. On 2 November 2006 both defendants filed two chamber summons seeking, in one, orders that they have leave to apply for summary judgment, that they have summary judgment and costs and, in the other, that the plaintiff's statement of claim be struck out. Those two applications came before Deputy Registrar Hewitt on 31 January 2007. In an extempore judgment he dismissed both applications and later distributed settled written reasons for doing so to the parties. On 20 February 2007 both defendants appealed from his decisions.
The appellants' notice of appeal asserted that the learned Deputy Registrar erred in several ways. Firstly, it was said that he took into account the plaintiff's original indorsement of claim rather than her amended indorsement forming part of her amended writ of summons filed 20 May 2003. It would appear that the learned Deputy Registrar did err in that regard. Secondly, it was said by the appellants that the learned Deputy Registrar was wrong in that the appellants were not seeking to strike out the indorsement of the amended writ but rather were seeking to strike out the statement of claim which followed and to obtain summary judgment. Thirdly, it was asserted that the learned Deputy Registrar was wrong in not holding that the indorsement to the amended writ dated 20 May 2003 was not capable of being interpreted as identifying the plaintiff's cause of action alleging a breach of statutory duty under the Occupiers' Liability Act 1985 and in holding that it was so capable. Fourthly, the appellants asserted that the learned Deputy Registrar was wrong in taking into account the relevant factor of the defendants' assumed knowledge of the allegations contained in the indorsement of writ in determining the construction thereof. Sixthly, it was asserted that the learned Deputy Registrar was wrong in failing to hold that the plaintiff's case was wholly untenable because her common law action in negligence did not exist in law and because her occupier's liability claim was statute‑barred in law. Finally, it was asserted that the learned Deputy Registrar was wrong in refusing to determine the substantive legal issues in circumstances where the determination of the issues was appropriate to avoid an unnecessary trial.
Order 16 of the Rules of the Supreme Court 1971 provide that:
"Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order –
(a)that judgment be entered for the defendant with or without costs; or
(b)that the plaintiff shall proceed to trial without proceedings;
or if all parties consent, may dispose of the action finally and without appeal in a summary manner."
In this case the grounds of the applications brought by the defendants to strike out and for summary judgment are that the plaintiff's claim is an abuse of process and/or vexatious.
Rule 15 of the District Court Rules 2005 provides:
"(1)If a party is dissatisfied with a decision of a Registrar the party may appeal to a Judge.
(2)The appeal must be commenced within 10 days after the date of the decision or such longer period as a Judge or Registrar may allow.
(3)The appeal must be commenced by filing and serving a notice that –
(a)sets out the particulars of the Registrar's decision or that part of it to which the appeal relates; and
(b)sets out the final orders that it is proposed the Court should make on the appeal.
(4)There must be at least 7 clear days between service of the notice and the date for the hearing of the appeal, unless otherwise ordered.
(5)The appeal does not operate as a stay of proceedings unless a Judge or a Registrar orders otherwise.
(6)The appeal is by way of a new hearing of the matter that was before the Registrar."
Deputy Registrar Hewitt expanded the time within which the defendants might lodge their appeal to 21 days. Also filed on 20 February 2007, along with the notice of appeal, was a chamber summons for an order for the separate trial of a preliminary issue. Order 32, r 4 of the Rules of the Supreme Court provides that the Court may order that any question or issue arising in a cause or matter whether of law or fact or partly of law and partly of fact, and whether raised by the pleadings or by agreement of the parties or otherwise be tried separately from any other question or issue whether before, at or after the trial or further trial of the proceedings, and may direct that a case and the question or issue for decision be stated. On 9 March 2007 Fenbury DCJ ordered that both the appeal and the application be heard together at a special appointment. Both were heard before me on 11 May 2007. I reserved my decision.
The preliminary issues the subject of the applications mentioned are whether the plaintiff has a common law negligence action given the operation of the Occupiers' Liability Act 1985 and whether her action under that Act is statute‑barred.
The plaintiff's action was commenced by writ. That writ and the indorsement of claim were amended on 20 May 2003 such that the indorsement gave notice that:
"The plaintiff's claim is for damages and loss resulting from injury she sustained in a fall on the 26th of July 1999 at the Jehovah's Witness Kingdom Hall, Nollamara, corner Flinders and Quadea Street, Nollamara at a meeting conducted by the first defendant on premises owned by the second defendant which damages occurred as a result of the negligence of the defendants…"
The statement of claim filed 29 November 2005 claims damages for negligence and/or breach of duty under the provisions of the Occupiers' Liability Act 1985. The defence filed by both defendants joins issue with both contentions. In their chamber summonses for summary judgment and to strike out the defendants sought to argue that a claim in negligence did not exist because of the enactment of the Occupiers Liability Act 1985 and that the claim under the latter was statute‑barred, being raised for the first time in the statement of claim filed more than 6 years after the cause of action arose. Those issues are, in essence, the subject of the appeal to this Court. They are precisely the same issues which the defendants seek to argue as preliminary issues pursuant to their recently filed chamber summons.
It is well settled that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include, or form part of the facts giving rise to a cause of action so mentioned. This is somewhat circular because a cause of action is no more than the fact or the combination of facts which give rise to a right of action or which the plaintiff must prove in order to establish a right to relief. Order 6 of the Rules of the Supreme Court provides that before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action. It further provides that, in the case of non‑compliance with that requirement, the defendant may apply before appearance to set aside or amend the writ or for particulars. In this matter, the indorsement was amended within days and there was, thereafter, no application to set aside or amend or for particulars.
The Supreme Court (General Civil Procedure) Rules 2005 (Victoria) provide that an indorsement of claim must be a statement "sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding." The phrase in r 5.04(2)(b) is taken from the former O 3, r 1 of the Victorian Supreme Court rules but with the addition of the words "with reasonable particularity". In Renowden v McMullin (1970) 123 CLR 584 Barwick CJ and McTiernan J said at 595 of the former rule:
"The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is, namely, a notice of the nature of the plaintiff's claim, of the cause thereof and of the relief sought in the action. It suffices if it conveys the information generally and without particularity save where and to the extent to which particularity is indispensable to notify the required elements of the indorsement, eg on some occasions identification of the instrument on which a claim is founded."
The relief sought in the plaintiff's amended writ is said to be damages. Was there a concise statement of the nature of her claim? The indorsement, as amended, made it clear that the plaintiff was seeking damages for injury and loss as the result of a fall she sustained at a hall at Nollamara at a meeting conducted by the first defendant at premises owned by the second defendant as the result of the negligence of both of them.
The Occupiers' Liability Act 1985 is an Act which prescribes the standard of care owed by the occupiers and landlords of premises to persons and property on the premises. Section 5 describes the duty of care of an occupier. Negligence is conduct which falls below the standard regarded as normal or desirable. The plaintiff alleges negligence on the part of the defendants. In other words, she is alleging that their conduct fell below the standard regarded as normal or desirable. In Western Australia the standard of care owed by an occupier is enshrined in the Occupiers' Liability Act 1985. Section 4 of that Act provides that s 5 to s 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises. Prior to the commencement of that Act a plaintiff might have a cause of action at common law against an occupier with the content of the duty owed by the occupier to the plaintiff varying depending upon how the plaintiff might be characterised, that is to say, whether the plaintiff was a trespasser, an invitee or a licensee. The category into which a plaintiff fell determined the standard of care that was owed to him or her. The Western Australian parliament sought to resolve problems relating to those categories by establishing, by statute, the standard of care required. No new cause of action was created. Rather, a plaintiff might sue for breach of the duty as defined by the Act as opposed to suing for breach of the duty as defined at common law. Section 4 of the Act makes it very clear that s 5 to s 7 are to have effect, in place of the rules of common law, for a particular purpose. In my view, it is clear from the terms of the Act that it does not create a new or discrete cause of action but rather serves to stipulate the standard of care to be applied by a court in determining whether there has been a breach of duty, that is, whether the conduct of the defendant was in accord with the standard required of it or whether it failed to meet that standard. In that sense, to give notice of a claim in negligence is to do no more than assert that the conduct of the defendant was not in accord or compliant with the content of the duty of care owed by the defendant to the plaintiff. There is a line of cases which support that view and there are some cases which are contrary to it.
Early in the line of cases which support the view that I hold is the case of Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139 in which Malcolm CJ said at p 145:
"The common law, as it was then understood to be, had developed special rules regarding the duty of care owed by an occupier to persons entering his premises depending on whether the entrant was a contractual visitor, invitee, licensee or a trespasser. In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 the High Court of Australia held that the relevant duty of care should be based on the principle stated by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580. In doing so, it abandoned the artificial distinctions and special risks regarding the duty of care which have been developed in the line of cases from Indemaur v Dames (1866) LR 1 CP 274 at 288 per Lillee J to London Graving Dock Co Ltd v Morton [1951] AC 727. This result flowed from Hackshaw v Shaw (1984) 155 CLR 614 and Papatonakis v Australian Telecommunication Commission (1985) 156 CLR 7. The purpose of the Occupiers Liability Act was to achieve by statute what was achieved by the development of the common law by decisions of the High Court. The statutory provisions did not create a new cause of action for breach of statutory duty. What they did was to replace the former common law rules regulating the standard of care owed by occupiers to persons entering the premises in given situations, by a single standard of care in terms of the general duty of care referred to in Donoghue v Stevenson. In other words, the statute did no more than reform the content of the duty of care at common law in the case of occupiers for the purpose of the common law action for negligence. Thus, s 5(4) sets out a number of considerations relevant to 'determining whether an occupier of premises has discharged his duty of care'. That duty of care is the duty, the content of which has been defined by the statute, but only for the purposes of simplifying the law governing the cause of action in negligence against occupiers. There is nothing in the statute which would have the effect that the cause of action in negligence at common law against occupiers has been converted into a cause of action for breach of statutory duty. The West Australian Occupiers'Liability Act is based on the Occupiers' Liability Act 1957 (UK) and the Occupiers' Liability (Scotland) Act 1960. In any action in which the duty of care provided for in the Act is relied upon, the question will be whether the occupier has taken reasonable care in all the circumstances. This is, in effect, the same question as arises in any ordinary negligence case. In my opinion, a breach of the duty as formulated in the Occupiers' Liability Act provides an example of negligence per se as 'statutory negligence' as it has sometimes been called: cf David v Brittanic Merthyr Coal Co [1909] 2 KB 146 at 164 per Fletcher Moulton LJ. The statute defines the content of the relevant duty for the purposes of determining whether the occupier is liable in damages for negligence."
The case of Lawson v Charles Hull Contracting Co Pty Ltd (unreported; FCt SCt of WA, Library No 980561; 25 September 1998) was an appeal against a judgment of the District Court on 19 September 1997 in which the learned trial Judge dismissed the plaintiff's (appellants') claim in negligence and awarded costs to the defendant (respondent). The plaintiff, who was a trespasser, sued the defendant who was, as a contractor, an occupier under the provisions of the Occupiers' Liability Act 1985. The Court repeatedly referred to "negligence" in its consideration of whether the respondent had discharged its duty of care to the appellant.
In Bartlett & Anor v Jones (unreported; FCt SCt of WA; Library No 990073A; 22 February 1999) Murray J, with whom Scott and White JJ agreed, said:
"Therefore, if it was right to regard the state of the door as constituting a dangerous part of the premises in a way causally related to the receipt of the respondent's injuries, then by the Occupiers' Liability Act s 5(1), the appellants were under a duty to the respondent as an entrant upon the premises to take 'such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.' Section 5(4) sets out a number of factual matters to which, without constituting them as an exclusive list, regard is to be had in considering whether an occupier has discharged that duty of care. As has been seen, by s 4(1) that duty of care is applied in place of the rules of the common law, although as those rules are now expressed, it is difficult to discern that the duty of care imposed in negligence at common law would have a materially different content from the statutory duty in the circumstances of this case."
On appeal to the High Court in Jones v Bartlett [2000] HCA 56 Kirby J said at par 226:
"Like the Residential Tenancies Act, the relevant provision of the Occupiers' Liability Act holds back from imposing on an occupier (or landlord) any obligations greater than the requirement to observe 'such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger'. Nothing in the substantive provisions of the Occupiers' Liability Act, therefore, would take the appellant beyond whatever claim he might have in respect of the respondent's suggested breach of their common law duty of care to him, framed in negligence. In this respect, I agree with the reasoning of Murray J in the Full Court. Such duty would ordinarily involve observing reasonable care to avoid a foreseeable risk of injury to the appellant."
In Prast v Town of Cottesloe [2000] WASCA 274 the appellant had commenced proceedings in this Court claiming damages for personal injuries suffered by him while surfing at Cottesloe beach. According to the appellant, the respondent owed him a duty of care under the Occupiers Liability Act 1985 and at common law, the respondent breached that duty of care in a number of respects and those breaches caused the respondent to be injured. The appellant contended in the alternative that the respondent had breached its statutory duty arising from its own by‑laws relating to beaches and, in consequence, the appellant had sustained the injuries in question. The trial Judge, Yeats DCJ, considered that the duties imposed on the defendant by the Occupiers' Liability Act 1985 and the relevant by‑laws were no different from the duties owed by the respondent at common law and that there was no need to deal with each cause of action separately. All causes of action needed to be resolved by determining whether the respondent was tortiously negligent at common law. On appeal his Honour Ipp J said, of that approach:
"I did not understand counsel for the appellant on appeal to contend that her Honour was wrong in this regard."
In Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 Malcolm CJ said at par 72:
"The question whether a person or company is an 'occupier' of premises is one determined in accordance with the common law: Wheat v E Lacon & Co Ltd [1966] AC 552. Once that question is answered in the affirmative, the statutory regime under the Occupiers' Liability Act applies to determine the content and extent of the duty of care. The Occupiers' Liability Act referred to the duty of care in terms which were substantially equivalent to the position at common law."
In Uzabeaga v Town of Cottesloe [2004] WASCA 57 Murray J said:
"Specifically it may be said in the context of this case that the reliance by the appellant in addition to pleading negligence at common law upon the provisions of s 5 of the Occupiers' Liability Act 1985 (WA) added no additional dimension of law to the legal framework in which the case fell to be decided. The appellant pleaded as particulars of the breach of statutory duty the particulars of negligence previously pleaded. This was the basis upon which the trial judge approached the matter and, in my respectful opinion, rightly so: cf Jones v Bartlett (2000) 205 CLR 166."
In Geroheev Pty Ltd & Ors v Wheare [2004] WASCA 206 McLure J said:
"The Commissioner's analysis and findings concerning the accident are in terms of the requirement of the general law. However, the findings and conclusions are also applied to the claim for breach of statutory duty. No party contends that there is a material difference between the statutory and general law claims. There is authority for that view: Jones v Bartlett (2000) 205 CLR 166 at 226 per Kirby J. As the matter is conceded, I proceed on that basis."
In Apex Holiday Centre (Inc.) v Lynn [2005] WASCA 58 Heenan J said at par 21:
"It was accepted that the duty owed by the appellant to the respondent was the duty arising under the Occupiers' Liability Act 1985 although no suggestion was made that this was in any material sense different from the liability arising at common law."
Simmonds J said in the same case at par 61:
"The learned Commissioner proceeded on the basis that no distinction should be drawn for this purpose between the two bases for claim in this case, breach of the Occupiers' Liability Act (see s 5) and the common law, and the correctness of that approach was not questioned before us (see also Geroheev Pty Ltd v Wheare [2004] WASCA 206 at [51] per McLure J, Roberts‑Smith J agreeing)."
In a most recent case, Homestyle Pty Ltd v Perrozzi [2007) WASCA 16 Buss J referred, inter alia, to Coatz v Westcourt Ltd [2003] WASCA 49 in which Murray J said, at [2]:
"The claim was put alternatively on the ground of a breach of the statutory duty imposed upon the respondent as an occupier of the site within the meaning of the Occupiers' Liability Act 1985 (WA) s 5. The trial Judge thought the content of that duty was the same as that imposed on the respondent in respect of negligence at common law. His Honour therefore found it convenient to deal with the matter within the framework of the pleaded particulars of negligence. No attention was given to this aspect of the case on the appeal and I would propose to say no more about it (cf Jones v Bartlett (2000) 205 CLR 166)."
Buss J noted the case of Tonich v Macaw Nominees Pty Ltd, (unreported; FCt SCt of WA; Library No 940119; 11 March 1994) in which Anderson J (with whom Malcolm CJ and Ipp J agreed) held that the Act imposed on an occupier a duty of care to entrants and that the Act covers the field and that a concurrent duty is not owed at common law. Anderson J said, at 13:
"…the Occupiers' Liability Act leaves no room for the operation of the doctrines of the common law as regards the duty of care that is owed by an occupier to an entrant. It is no longer the common law that imposes the duty but the statute and the nature and extent of the duty is defined by the statute. Insofar as par 6 of the statement of claim seeks to plead a separate cause of action based upon common law principles, or seeks to invoke those principles in aid of the action based upon the statute, it is misconceived and discloses no cause of action.
The duty upon the respondent was the duty imposed by the statute. It is a question of fact in any particular case whether the occupier has observed the standard required by the statutory duty…"
Buss J also noted that the earlier case of Bryant v Fawdon Pty Ltd (1993) Aust Tort Rep 81‑204 in which Murray J had expressed a contrary view was not cited in Tonich. He did note that, subsequent to Tonich, many cases have been litigated on the basis that an occupier owes an entrant concurrent duties at common law and under s 5 of the Act. He then went on to survey a number of relevant authorities and, having done so, said:
"It is unnecessary, in consequence of the manner in which the litigation was conducted at trial and before this Court, to determine, in this appeal, the proper relationship between the Act and the common law of negligence. It is an issue which, no doubt, requires consideration and resolution in an appropriate case."
There has been no subsequent determination of that issue. So far as I am concerned, I would prefer to follow the reasoning of Kirby J, mentioned above, which appears to have been followed by Murray J, Heenan J, McLure J and Simmonds J in the cases mentioned above. I take the view that there is effectively no distinction between an action at common law for negligence and an action under the provisions of the Act because the Act stipulates the content of the duty owed by an occupier. I do not accept the contention in the defendants' application for summary judgment to the effect that the plaintiff's negligence action does not exist in law by operation of the Occupiers' Liability Act 1985. It follows from the foregoing that the indorsement of claim contained in the amended writ filed 20 May 2003 encompasses a claim in negligence in circumstances where the content of the duty of care owed by the defendants to the plaintiff, if one is ultimately held to exist, will be governed by the provisions of the Occupiers' Liability Act 1985. I do not agree that the plaintiff's claim against either defendant is statute‑barred by operation of the Limitation Act 1935 or that the plaintiff's action is, as alleged, wholly untenable. In my opinion the plaintiff's action is neither an abuse of process nor vexatious. It follows that I do not agree that the plaintiff's action should be dismissed, set aside or struck out on that basis. Although I accept that the learned Deputy Registrar may have made some errors in his judgment in the matter, those errors do not go to the heart of the matter and, in any event, having considered the matter in the context of a new hearing, I dismiss the appeal for the foregoing reasons.
So far as the application for the separate trial of a preliminary issue is concerned, I take the view that this is an attempt to re‑agitate those issues which have failed to bring the plaintiff's action to a halt by way of the summary judgment and strike‑out applications. The matters relied upon in the application for the separate trial of a preliminary issue are the same as those relied upon in those earlier applications.
The plaintiff's claim is for damages arising out of an event which, she alleges, occurred when she was at the premises of the second defendant following a meeting sponsored by or organised by the first defendant. Her claim may, in due course, be determined having regard to the provisions of the Occupiers' Liability Act 1985 in the light of the evidence at trial. In their respective defences both defendants deny that they were occupiers of the relevant premises and that they owed a duty of care to the plaintiff either at common law or under the Occupiers' Liability Act 1985. It does seem to me that the pleadings raise issues as to whether either owed a duty of care at all putting aside the contentions raised by the appellants in the hearing before me. The resolution of those issues will turn on the evidence in due course. It is trite also to say that the power to order the separate trial of a preliminary issue should generally only be exercised when the outcome would put an end to the action, or where there is a clear line of demarcation between the issues and the determination of one issue in isolation from the others would be likely to save inconvenience and expense: Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671. In my view a trial of the preliminary issue the subject of the application brought by the defendants in this case would not serve to put an end to the action. Nor would the attempted determination of those issues separately be likely to lead to a settlement of the action or save inconvenience and expense. I dismiss the defendants' application in that regard.
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