Shire of Brookton v Brechin
[1999] WASCA 314
•28 SEPTEMBER 1999
SHIRE OF BROOKTON -v- BRECHIN & ORS [1999] WASCA 314
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 314 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:83/1999 | 28 SEPTEMBER 1999 | |
| Coram: | STEYTLER J TEMPLEMAN J | 28/09/99 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | SHIRE OF BROOKTON CYRIL BRUCE BRECHIN WATER CORPORATION WESTERN POWER CORPORATION ANNE ASTILL IAN DOUGLAS ASTILL WINIFRED EDITH BRECHIN BARRY DAVID CROCKETT NORMA VIVIENNE CROCKETT MALCOLM LESLIE CUNNINGHAM BRONWYN MAREE CUNNINGHAM ALLAN CLAYTON CUNNINGHAM JOANNE ELIZABETH CUNNINGHAM ALEX HAIG HAMILTON CUNNINGHAM MALCOLM LESLIE CUNNINGHAM AS TRUSTEE MALBRO FAMILY TRUST BRONWYN MAREE CUNNINGHAM AS TRUSTEE MALBRO FAMILY TRUST ROBERT DOUGLAS EVA JAMES HENRY EVA TALMA THERESE EVA JOHN FREDERIC MARTIN GILLETT MARGARET ANNE GILLETT KIRRALEE FARMS PTY LTD AS TRUSTEE KE LANGE FAMILY TRUST KENNETH THOMAS HALL CORAL FLORENCE HALL HILLROY FARMS PTY LTD AMBIKA PTY LTD AS TRUSTEE T J HART FAMILY TRUST STEVEN CHRISTOPHER KOLB LINDSAY KELVIN LANGE KELSIE GRAZING CO PTY LTD KELVIN ERNEST LANGE NANTHANA NOMINEES PTY LTD AS TRUSTEE LEAKE FAMILY TRUST STEPHEN BARTLETT LEAKE ROBERT BRUCE LEAKE VERONICA LINDIANTINI LEAKE JOHN EDMUND MATTHEWS DAPHNE ELEANOR MATTHEWS MATTHEWS BROOKTON (WA) PTY LTD LYNTON JAMES MESSENGER NEVILLE JAMES MESSENGER JAMES ARTHUR MESSENGER JEAN CLARIBEL MESSENGER ALAN ARTHUR MESSENGER THOMAS WILLIAM MITCHELL DIN-MORE PTY LTD AS TRUSTEE POWELL FAMILY TRUST WENDY ELIZABETH POWELL FRANK AUSTIN POWELL JAMES AUSTIN POWELL ANTHONY RICHARD ROBINSON AS TRUSTEE THE MEDERBERRIN FARM TRUST ANTHONY RICHARD ROBINSON ROBERTA BEATRICE ROBINSON GRAEME LEIGH TOWNEND LINDA TOWNEND GREGORY JOHN WARD ROSALYN JOY WARD BENSFIELD NOMINEES PTY LTD AS TRUSTEE G & A WATTS FAMILY TRUST GRAEME ALEX WATTS ROSEMARY ANNE WATTS HAMP PTY LTD AS TRUSTEE H G & A M WILLIAMS FAMILY TRUST HARRY GEORGE WILLIAMS ALEXANDRA MARY WILLIAMS DOUGLAS GRAHAM WINDSOR JENNIFER KAY WINDSOR |
Catchwords: | Application for leave to appeal from decision of Master to allow separate trial of preliminary issue Leave to appeal refused Turns on own facts |
Legislation: | Nil |
Case References: | Smith v Maloney (1998) 19 WAR 209 Wilsmore v Court [1983] WAR 190 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Aitkenhead v Voss (1996) 6 Tas R 165 Ashmore v Corporation of Lloyd's [1992] 1 WLR 446 Australian Coal & Shale Employees' Federation v Commonwealth (1954) 94 CLR 621 Coenen v Payne [1974] 1 WLR 984 George Wimpey & Co Ltd v Territory Enterprises Ltd [1966] VR 312 House v The King (1936) 55 CLR 499 Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 Malliaros v Moralis [1991] 2 VR 501 Metwally v University of Wollongong (1985) 60 ALR 68 Philipps v Philipps (1878) 4 QBD 127 Polskie Towarzystwo Handlu Zagranicznego DLA A Electrotechniki "Elecktrim" Spolka Z Ograniczona odpowiadziolnoscia v Electrical Furnace Co Ltd [1956] 1 WLR 562 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231 Smith & Co v Hargrove & Co [1885] 16 QBD 183 Stirling Marine Services Pty Ltd v Austral Piling & Construction Pty Ltd, unreported; SCt of WA (Sanderson M); Library No 970620; 21 November 1997 Subsea International Australia Inc v West Australian Petroleum Pty Ltd, unreported; SCt of WA (Malcolm CJ); Library No 960281; 7 May 1996 West Australia and Dowding v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SHIRE OF BROOKTON -v- BRECHIN & ORS [1999] WASCA 314 CORAM : STEYTLER J
- TEMPLEMAN J
- Applicant
AND
CYRIL BRUCE BRECHIN
WATER CORPORATION
WESTERN POWER CORPORATION
ANNE ASTILL
IAN DOUGLAS ASTILL
WINIFRED EDITH BRECHIN
BARRY DAVID CROCKETT
NORMA VIVIENNE CROCKETT
MALCOLM LESLIE CUNNINGHAM
BRONWYN MAREE CUNNINGHAM
ALLAN CLAYTON CUNNINGHAM
JOANNE ELIZABETH CUNNINGHAM
ALEX HAIG HAMILTON CUNNINGHAM
MALCOLM LESLIE CUNNINGHAM AS TRUSTEE MALBRO FAMILY TRUST
BRONWYN MAREE CUNNINGHAM AS TRUSTEE MALBRO FAMILY TRUST
ROBERT DOUGLAS EVA
JAMES HENRY EVA
TALMA THERESE EVA
(Page 2)
- JOHN FREDERIC MARTIN GILLETT
MARGARET ANNE GILLETT
KIRRALEE FARMS PTY LTD AS TRUSTEE KE LANGE FAMILY TRUST
KENNETH THOMAS HALL
CORAL FLORENCE HALL
HILLROY FARMS PTY LTD
AMBIKA PTY LTD AS TRUSTEE T J HART FAMILY TRUST
STEVEN CHRISTOPHER KOLB
LINDSAY KELVIN LANGE
KELSIE GRAZING CO PTY LTD
KELVIN ERNEST LANGE
NANTHANA NOMINEES PTY LTD AS TRUSTEE LEAKE FAMILY TRUST
STEPHEN BARTLETT LEAKE
ROBERT BRUCE LEAKE
VERONICA LINDIANTINI LEAKE
JOHN EDMUND MATTHEWS
DAPHNE ELEANOR MATTHEWS
MATTHEWS BROOKTON (WA) PTY LTD
LYNTON JAMES MESSENGER
NEVILLE JAMES MESSENGER
JAMES ARTHUR MESSENGER
JEAN CLARIBEL MESSENGER
ALAN ARTHUR MESSENGER
THOMAS WILLIAM MITCHELL
DIN-MORE PTY LTD AS TRUSTEE POWELL FAMILY TRUST
WENDY ELIZABETH POWELL
FRANK AUSTIN POWELL
JAMES AUSTIN POWELL
ANTHONY RICHARD ROBINSON AS TRUSTEE THE MEDERBERRIN FARM TRUST
ANTHONY RICHARD ROBINSON
ROBERTA BEATRICE ROBINSON
GRAEME LEIGH TOWNEND
LINDA TOWNEND
GREGORY JOHN WARD
ROSALYN JOY WARD
BENSFIELD NOMINEES PTY LTD AS TRUSTEE G & A WATTS FAMILY TRUST
(Page 3)
- GRAEME ALEX WATTS
ROSEMARY ANNE WATTS
HAMP PTY LTD AS TRUSTEE H G & A M WILLIAMS FAMILY TRUST
HARRY GEORGE WILLIAMS
ALEXANDRA MARY WILLIAMS
DOUGLAS GRAHAM WINDSOR
JENNIFER KAY WINDSOR
Respondents
Catchwords:
Application for leave to appeal from decision of Master to allow separate trial of preliminary issue - Leave to appeal refused - Turns on own facts
Legislation:
Nil
(Page 4)
Result:
Leave to appeal refused
Representation:
Counsel:
Applicant : Mr G R Hancy
Respondents : Mr J P T Olivier
Solicitors:
Applicant : Minter Ellison
Respondents : Talbot & Olivier
Case(s) referred to in judgment(s):
Smith v Maloney (1998) 19 WAR 209
Wilsmore v Court [1983] WAR 190
(Page 6)
Case(s) also cited:
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Aitkenhead v Voss (1996) 6 Tas R 165
Ashmore v Corporation of Lloyd's [1992] 1 WLR 446
Australian Coal & Shale Employees' Federation v Commonwealth (1954) 94 CLR 621
Coenen v Payne [1974] 1 WLR 984
George Wimpey & Co Ltd v Territory Enterprises Ltd [1966] VR 312
House v The King (1936) 55 CLR 499
Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
Malliaros v Moralis [1991] 2 VR 501
Metwally v University of Wollongong (1985) 60 ALR 68
Philipps v Philipps (1878) 4 QBD 127
Polskie Towarzystwo Handlu Zagranicznego DLA A Electrotechniki "Elecktrim" Spolka Z Ograniczona odpowiadziolnoscia v Electrical Furnace Co Ltd [1956] 1 WLR 562
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231
Smith & Co v Hargrove & Co [1885] 16 QBD 183
Stirling Marine Services Pty Ltd v Austral Piling & Construction Pty Ltd, unreported; SCt of WA (Sanderson M); Library No 970620; 21 November 1997
Subsea International Australia Inc v West Australian Petroleum Pty Ltd, unreported; SCt of WA (Malcolm CJ); Library No 960281; 7 May 1996
West Australia and Dowding v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
(Page 7)
1 STEYTLER J : This is an application for leave to appeal against the decision of a Master of this Court on an application which was brought by the plaintiffs for trial of a separate issue. The claim is one which has been brought by 61 individual plaintiffs or groups of plaintiffs and their action relates to damage suffered as a consequence of a fire in the Brookton, Pingelly area of Western Australia, which occurred on about 15 December 1997.
2 The plaintiffs allege that the fire escaped from a rubbish disposal site run by the defendant and that the escape was occasioned by the negligence of the defendant's servants or agents. The learned Master, in his reasons for decision, records that it was not in dispute that the fire ravaged a large area in the Brookton, Pingelly region and caused considerable damage.
3 The issue that the plaintiffs sought to have tried as a preliminary issue was the question of the liability of the defendant for the fire. The learned Master said, in his reasons for decision, that the defendant did not dispute that at some stage there should be a separate order for trial of the question of liability as a preliminary issue. That, he said, was clearly a proper concession.
4 He went on to say that counsel for the plaintiffs estimated that a trial on the question of liability alone would take 4 days, whereas counsel for the defendant was rather more pessimistic and estimated 10 days.
5 Either way, the learned Master said, both estimates fell well short of the time that would be occupied if 61 separate plaintiffs were required to prove their loss and damage during the course of a trial. Such a hearing, he said, would take months.
6 The learned Master went on to say that at the end of the day, the plaintiffs may not be able to establish that the defendant was liable for the damage suffered, and all of the time and expense occasioned by the plaintiffs proving their loss and damage would be wasted. That prospect, he said, was unthinkable.
7 The Master then went on to consider at what point an order should be made for trial of a preliminary issue. He mentioned that the defendant wanted discovery before the order was made and that it had been submitted that it was appropriate that the defendant knew the case that it had to meet in terms of quantum, if for no other reason than to allow it to consider the question of mediation and possibly settlement.
(Page 8)
8 However, the learned Master went on to say that there had as yet been no mediation and there had been no hint from the defendant that it was likely to settle any of the plaintiffs' claims. The learned Master then went on to say that the plaintiffs, on the other hand, did not wish to go through the process of discovery prior to having the question of liability determined. They submitted that discovery would be a lengthy and costly process involving many documents accumulated over many years.
9 Most of them are farmers whose property suffered as a consequence of the fire. To establish their loss, the Master said, they will need to establish the profitability of their farms so as to ground any claims. That, he said, would involve the discovery of documents such as tax returns and books of accounts and could involve discovery of all the source documents, going back many years.
10 The whole process, the learned Master said, would be onerous, time consuming and costly and it would also delay the hearing of the action.
11 The learned Master then went on to say that he appreciated that the defendant was not in a position to assess its attitude to each claim unless it had some idea of the quantum of that claim but that as yet the defendant had made no indication that it was interested in settlement or settlement negotiations.
12 He said that without some evidence of the defendant's intention to seek a settlement of some or all of the plaintiffs' claims, it seemed to him that to order discovery, on the off chance that settlement negotiations might ensue, was at odds with proper case management.
13 Importantly, the learned Master also noted that counsel for the plaintiffs had indicated that if the defendant gave an indication that settlement was possible if some detail as to quantum was provided then the detail would be provided.
14 The learned Master then went on to consider the case law and said that in recent times there had been a considerable softening of attitude as to the circumstances in which trial of a separate issue will be ordered.
15 He referred to what had been said by Malcolm CJ in the case of Smith v Maloney (1998) 19 WAR 209 and to two earlier decisions of the Court, one of which is that of Wilsmore v Court[1983] WAR 190. The Master said that it was all a question of:
(Page 9)
- " … using the resources of the Court in conducting the case in such a manner as to provide a timely resolution of the dispute at the least cost to the parties."
16 The learned Master concluded that measured against that standard the case for a trial of a question of liability alone was compelling. He consequently ordered that the Court try and determine the issues of fact and law relating to liability prior to the trial of quantum of damages due to each plaintiff. He also ordered that until liability is determined, all pleadings and interlocutory matters be limited to liability issues.
17 The grounds of appeal which are proposed to be raised if leave to appeal is given raise what are said to be five errors in principle. The first is said to be that the learned Master denied the defendant its fundamental right and opportunity to know and to consider the claim against it. The second is said to be that he failed to balance, against the perceived exigencies of case management, the right of the defendant to know the case it is required to meet and the need to encourage and facilitate resolution of actions by negotiation and agreement rather than trial. The third was in failing to apply the rule that a trial of a preliminary issue is an exceptional way of proceeding that is to be reserved for the exceptional case. The fourth is that, in classifying that the time to be taken in completing the usual and ordinary pre-trial procedures as delay, the learned Master erred. The fifth was that he erred in holding, in effect, that the ordinary process of giving discovery of documents was unduly onerous.
18 The applicant also points to what it contends were five errors of fact. These are said to be firstly that the learned Master erred in concluding that there was no dispute with respect to the proposition that liability should be tried separately from damages. The second is that he is said to have wrongly concluded that the defendant had made no indication that it was interested in settlement or settlement negotiations. The third is that he was wrong in saying that there was an off chance of settlement. The fourth is that he understated what had been the defendant's estimate of the likely length of the trial of the issue of liability only. The fifth and last is that he erred in saying, in effect, that there was sufficient potential prejudice to the plaintiffs to justify the orders made.
19If the applicant is to have leave to appeal it must satisfy the Court, amongst other things, that substantial injustice would be done if leave is not granted. I am not satisfied that this requirement has been made out. It seems to me that even if the learned Master erred in principle or in any
(Page 10)
- material way in fact in any of the various respects which have been addressed, there is nothing in what has been placed before us to suggest that the decision at which he ultimately arrived is one which will cause to the applicant substantial injustice if leave to appeal is not given.
20 The fact remains, as the learned Master has pointed out, that there are 61 plaintiffs with 61 different claims. Even if it be assumed that there is, in each case, a prospect of settlement, and I accept that this prospect was raised by counsel for the applicant when the matter was argued below, there is at least a very substantial question whether this will be achieved in every case, especially if liability is in issue.
21 The applicant has chosen, to date, to put liability in issue, as is its right. Should it prove not to be liable at a trial of that issue only then there will undoubtedly have been a substantial saving in costs as a consequence of the order made by the learned Master. That saving will be one, not only for the 61 plaintiffs, but also for the applicant.
22 If, on the other hand, the applicant should be found to be liable at the trial then this determination of liability may very well aid in the prospects of settlement with the 61 individual plaintiffs. Moreover it seems to me, as it did to the Master, that there is, even if a trial of liability should be ordered, the prospect that settlement negotiations can take place.
23 While I accept that the applicant is put in a more difficult position in that respect than if it could rely on the ordinary process of interrogatories and discovery, the fact remains that counsel for the plaintiffs has, as I have mentioned, indicated that, if the applicant is interested in settlement negotiations subject to the provision of detail as to quantum, then the necessary detail will be informally provided.
24 In all of these circumstances it seems to me that, even if the learned Master made one or more of the errors to which reference has been made, this is not a case in which the decision will work any substantial injustice on the applicant if it is left unreversed. I would consequently refuse leave to appeal on that basis.
25 TEMPLEMAN J : I agree. However, I would state my reasons slightly differently. In relation to the proposed grounds of appeal, it is contended that first the Master erred in principle in five respects which Steytler J has listed and, secondly, that the learned Master made errors of fact.
26 In relation to the matters which are said to be errors of principle, I think that the first three, grounds 1(a), (b) and (c) do not disclose errors of
(Page 11)
- principle at all. It seems to me that on a fair reading of the Master's reasons, he was well aware of the principles set out in grounds 1(a), (b) and (c) but exercised his discretion in the way that he did, not ignoring the principles at all.
27 In (d) and (e) it seems to me, with respect, that a somewhat semantic point has been taken. It is said that the Master erred in holding that the time which would be taken in completing the usual and ordinary pre-trial procedures was "delay".
28 Again, I think on a fair reading of the Master's reasons, what he was saying was that if the discovery process was undertaken as the plaintiffs wished it, then that would mean that the action would start later than would otherwise be the case. I think "delay" was only used in that sense and not in any pejorative sense, which is the way that I think the proposed grounds of appeal would put it.
29 Then in ground (e) it is said that the Master referred to the ordinary process of giving discovery of documents as being unduly onerous. In fact, he did not say that the process would be unduly onerous. He said that even if the discovery process was undertaken in stages, it would onerous, time-consuming and costly. I think that was no more than a recognition of the amount of work which would be involved in discovery, a view which the Master, it seems to me, was entitled to come to, having regard to the evidence that was before him.
30 In relation to the error said to have been made by the Master and referred to in ground 2, it is said that the Master should not have concluded that the defendant did not dispute that there should be a trial on the question of liability as a separate issue.
31 Mr Hancy is at pains to point out that that was not the defendant's position. However, it seems to me, looking at page 142 of the appeal book, that the defendant came very close to saying what the Master said had been put. Counsel said:
"We are not opposed in principle at an appropriate point to a separation of the issues so, from a case management point of view, we do not disagree at all."
32 The issue was about when the decision should be made to separate liability from quantum; but, with respect, I think it unfair to the Master to say that he made an error.
33 Then in grounds 2(b) and (c) it is said the Master erred in saying that the defendant had made no indication that it was interested in settlement or settlement negotiations and that there was an off-chance of settlement. That last remark about an off-chance of settlement is said by Mr Hancy to be grossly unfair but, again, looking at the Master's reasons on page 9 of the appeal book he said:
"Without some evidence, which I emphasise, of the defendant's intention to seek a settlement of some or all of the plaintiffs' claim, it seems to me that to order discovery on the off-chance that settlement negotiations may ensue is at odds with proper case management."
34 It seems to me that what the Master was saying was that unless there was some evidence of an intention to seek settlement, then there could only be an off-chance that settlement might ensue. The point here, I think, is that although Mr Hancy maintains that the defendant is anxious to settle, it has apparently declined to take any steps in that regard without having first some intimation from the plaintiffs as to the magnitude or likely magnitude of their respective damages.
35 Despite that statement from counsel, the Master was, I think, entitled to say that without some evidence of an intention to settle, there might only be an off-chance that negotiations would ensue.
36 The point about the length of trial being 10 days (referred to in ground 2(d)) is accepted, I think, as being an error. But it seems to me to be a very small point, particularly at this stage when it would be extremely difficult for anybody to say what the length of trial was likely to be.
37 For those reasons I think that the defendant has failed to show that the Master was clearly wrong and if I am wrong in that view, then I do not accept that there would be any serious injustice to the plaintiff in allowing the Master's order to stand. As I have made plain during the course of argument, it seems to me that there is no impediment whatever to the defendant opening, albeit informal, negotiations with the plaintiffs in order to obtain some indication of the magnitude of their respective claims.
38 If I am wrong in all of that, then I would myself exercise the discretion in the same way as the Master did and in that respect I gratefully adopt the reasons which have fallen from Steytler J. I too would dismiss the application.
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