Swan v Phoenix Combat Sports Pty Ltd (In Liquidation) (No

[2023] ACTSC 381

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Swan v Phoenix Combat Sports Pty Ltd (In Liquidation) (No 2)

Citation: 

[2023] ACTSC 381

Hearing Date: 

8 December 2023

Decision Date: 

8 December 2023

Before:

Curtin AJ

Decision: 

(1)    The application in proceeding filed by the second defendant on 3 November 2023 is dismissed.

(2)    The second defendant is to pay the plaintiff’s costs of the application.

Catchwords: 

PRACTICE AND PROCEDURE – SEPARATE DECISIONS ON QUESTIONS – Whether appropriate to make an order for the decision of a question separately from another question before trial – where lack of agreed facts – risk of inconsistent judgments – separate decision not appropriate

Legislation Cited: 

Court Procedures Act 2004 (ACT), s 5A
Court Procedures Rules 2006 (ACT), r 1521

Cases Cited: 

Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334
Medici Clinics (Australia) Pty Ltd v Patel [2014] ACTSC 29
Swan v Phoenix Combat Sports Pty Ltd (In Liquidation) [2022] ACTSC 332

Parties: 

Brendan Swan ( Plaintiff)

Phoenix Combat Sports Pty Ltd (In Liquidation) ( First Defendant)

QBE Insurance (Australia) Ltd (Second Defendant)

Representation: 

Counsel

A Muller SC ( Plaintiff)

D Kelly (Second Defendant)

Solicitors

Slater and Gordon ( Plaintiff)

Hall & Wilcox ( Second Defendant)

File Number:

SC 120 of 2022

CURTIN AJ:  

EX TEMPORE (REVISED)

1․These are proceedings brought by the plaintiff against the first defendant in liquidation and the first defendant's public liability insurer for the years in which each of the defined four incidents occurred. The first defendant is in liquidation and is not participating in the proceedings.

2․The second defendant, QBE, has filed an application in proceedings seeking the following order:

Pursuant to Rule 1521 of the Court Procedures Rules 2006 (ACT), that there be a separate decision on the following question:

Does the public liability insurance policy bearing policy number 42A335213BPK issued by the second defendant to the first defendant entitle the first defendant to indemnity for the claim made by the plaintiff as set out in the Further Amended Originating Claim and the Further Amended Statement of Claim filed on 5 December 2022 in proceeding SC 120 of 2022?

3․I am asked to decide today whether there should be a hearing of that separate question. For the reasons that follow, the application is refused.

4․The plaintiff claims that on four occasions, the first of which occurred in September 2012, the second of which occurred in February 2013, the third in May 2013, and the fourth in February 2014, he was hit in the head in sparring sessions and, at least as I presently understand the pleadings, suffered some immediate physical injury.

5․The pleading, as I presently understand it, also alleges some injury or disability was occasioned from the alleged fact that the first defendant breached a duty of care owed to the plaintiff in relation to acts or omissions immediately following each incident. For example, the plaintiff pleads at [1.22] of the Amended Statement of Claim:

At no point after the…