Swan v Phoenix Combat Sports Pty Ltd (In Liquidation) (No
[2023] ACTSC 381
•8 December 2023
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 |
Cases Cited: | Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 |
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 four incidents pleaded above, or at any other time between July
2010 and February 2014, did the first defendant:a.implement or maintain a concussion management policy;
b.conduct a risk assessment / implement risk control measures in respect of management of head injuries generally;
c.prepare an incident report in relation to the plaintiff’s head injuries, or otherwise arrange for an incident report to be prepared;
d.advise or direct the plaintiff to undergo medical assessment in relation to the plaintiff’s head injuries;
e.advise the plaintiff to cease sparring activities following the plaintiff’s head injuries;
f.arrange for the plaintiff to be medically assessed in relation to the plaintiff’s head injuries;
g.advise the plaintiff that he would be unable to return to training until the plaintiff had received a medical clearance from a qualified medical practitioner; or
h.take any steps to ensure the plaintiff was medically fit to train.
6․For each of the incidents, QBE issued public liability insurance to the first defendant. Each relevant policy contained the following insuring clause:
We agree (subject to the terms, claims conditions, general Policy conditions, exclusions, definitions and limits of liability incorporated herein) to pay to you or on your behalf all amounts which you become legally liable to pay as compensation in respect of:
(1) Personal injury; and/or
(2) Property damage; and/or
(3) Advertising injury;
happening during the period of insurance within the geographical limits in connection with your business or your products and/or work performed by you or on your behalf and caused by or rising out of an occurrence.
7․Each policy contained an exclusion clause to the following effect:
The Broad Form Liability Section of this Policy does not cover liability for claims in respect of:
1.Personal injury or damage to property of persons actually participating in any performance, sport, game, contest or display involving athletic, acrobatic, military or equestrian skill or the use of firearms, missiles of any kind, explosives or combustibles.
8․In short, QBE, amongst other defences, says that that particular exclusion clause excuses it from indemnifying the first defendant in respect of the claim brought by the plaintiff.
9․The matter is set down for hearing on 29 April 2024. QBE brings the application on the basis that it considers it has a good case that the exclusion clause, properly construed, will excuse it from the need to indemnify the first defendant and if that matter could be heard in advance of the trial and if QBE were successful, judgment would be entered in favour of QBE and would not need to incur the expense of the hearing of all issues in April next year.
10․In submissions, counsel for QBE's short point was that the four incidents in which the plaintiff was hit in the head were, on QBE's case, clearly within the exclusion clause.
11․Mr Kelly, counsel for QBE, helpfully provided some written submissions in advance of the hearing of the application. In summary, Mr Kelly contended that even though the older authorities express a need for caution in ordering the determination of separate questions, there was a lesser need for caution since the introduction of statutory provisions that emphasise that the main purpose of the Court Procedures Act 2004 (ACT) and the Court Procedure Rules 2006 (ACT) is to facilitate the just resolution of disputes according to law as quickly, inexpensively and cheaply as possible, including the efficient use of Court and judicial resources: see s 5A of the Court Procedures Act 2004 (ACT).
12․In written submissions, Mr Kelly argued that none of the matters which could potentially contraindicate determination of a separate question (as identified in the older authorities) apply in this case. He submitted, for example, there will be no need for oral evidence, there will be no issues as the credit of witnesses, nothing determined will impact any other issues between the parties, the separate question is a discrete legal issue limited to the construction of an insurance policy to an agreed factual situation, and there will be no dispute between parties as to the relevant facts.
13․I asked Mr Kelly about agreed facts for the separate question if a separate question were ordered. He submitted that “for the purposes of the separate question” the defendant would accept certain pleaded facts. However, I have no list of which precisely identified pleaded facts the defendant would accept for the purposes of the separate question. The result of that is at the present time before me, there are no agreed facts between the parties that would be utilised for the purpose of any separate question.
14․The second matter to observe is QBE’s position that it would agree certain facts “for the purposes of the separate question” but would not be bound to agree to those same facts should the separate question be decided adversely to QBE and all issues then go to trial in April next year.
15․That is, QBE has adopted the position that it might agree certain facts for the purposes of the separate question (if a separate question were ordered) but then would contest, or leave itself open to contest, those same facts if the separate question were answered adversely to QBE.
16․That position is contrary to the considerations set out, for example, in Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 (Bass), and particularly, at 357, where Gleeson CJ and Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ said:
As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state — let alone answer — preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.
17․What their Honours emphasise in that passage is that separate questions should not be determined on hypothetical facts. That is, the Court should not declare a particular result if certain facts were established, and then, perhaps, declare a different result on different facts in the subsequent hearing, or possible subsequent hearing.
18․In any event, the short point is, at this point in time, there are no agreed facts.
19․Mr Muller, senior counsel for the plaintiff, submitted that on any separate question, the plaintiff would seek to lead oral evidence. When I asked Mr Kelly whether he would oppose that course, he was unable to answer because, understandably, he does not know what evidence the plaintiff would give, but it underlines the problem with separate questions when there is no agreement between the parties as to the agreed facts upon which separate questions are to be determined.
20․The other problem that arises is if the plaintiff were allowed to give oral evidence, what position QBE would adopt in terms of cross examination?
21․Another issue that arises is that the plaintiff would be giving evidence more than once, or potentially giving evidence more than once.
22․I also do not presently see the construction issue quite as simply as QBE.
23․Although, at this stage, on an interlocutory application, my view, of course, may not be correct. I note that Elkaim J, in a judgment given in this case on 2 December 2022 (see Swan v Phoenix Combat Sports Pty Ltd (In Liquidation) [2022] ACTSC 332), said the following:
[13] The exclusion clause relied upon is in the following terms:
The Broadform Liability Section of this Policy does not cover liability for claims in respect of:
1.Personal injury or damage to property of persons actually participating in any performance, sport, game, contest or display involving athletic, acrobatic, military or equestrian skill or the use of firearms, missiles of any kind, explosives or combustibles.
2.Personal injury or damage to property of persons caused by the use of mechanical amusement devices.
[14] It is important to note that in the first clause of the exclusion provision there is no reference to the personal injury being caused by one of the listed activities. The clause refers to persons “actually participating” in the activities. However, as stated above, the plaintiff’s point is that the negligence occurred after the participation in the activity in that the episodes of concussion, which did occur during the activity, were not thereafter properly dealt with.
[15] QBE’s response was to refer to the words in the clause “in respect of” which gave the activities in the clause a breadth which would cover anything occurring between activities or following them.
[16] I think QBE’s position may well be right, but I am not prepared to find that the plaintiff’s interpretation is unarguable. It might be found that treatment occurring after an incident is not part of the incident. This is analogous, but I accept with some elasticity, to negligent treatment of a road accident victim in a hospital. The negligent treatment, in terms of liability, can be separated from the liability attaching to the accident.
24․That passage illustrates that, in Elkaim J’s view, a construction of the clause that is arguable is whether events which took place after the plaintiff was hit in the head may be relevant events to establishing the liability of the first defendant. This is contrary to QBE’s submissions that the hitting of the plaintiff in the head fell within the exclusion clause, and that was the end of the inquiry in relation to whether QBE was liable to indemnify the first defendant.
25․I am not determining that issue now, but I share Elkaim J’s view as expressed in [16], in which case evidence of events which occurred after the plaintiff was hit in the head may well be very relevant to the outcome of the case. In other words, I am not persuaded the issue is as simple as QBE submitted on this application.
26․As Mossop J said in Medici Clinics (Australia) Pty Ltd v Patel [2014] ACTSC 29, the starting point for the determination of whether a separate question should be asked and answered is that in the ordinary course, all issues of fact and law should be determined at one time. The second proposition is that a party, in this case QBE, who seeks to depart from that ordinary procedure needs to point to some perceptible benefit to be gained from such a course.
27․I accept that if everything went QBE's way, then there would be some identifiable perceptible benefit. However, that depends on a number of matters including findings of fact which, if they did not go QBE's way on the separate question, would then be amenable to different findings at the hearing in April. That is, although put clumsily, there is a risk of inconsistent judgments or at least inconsistent positions adopted by QBE. Whilst it is appropriate in certain applications to accept pleaded facts for the purpose of a particular application, it is not appropriate in separate questions.
28․If there are to be agreed facts, and to avoid the problem identified by the High Court in Bass in the passage quoted above, facts need to be agreed for the purpose of the whole of the proceedings, not simply for part of the proceedings when determined by a separate question.
29․For all of the above reasons, I refuse to make the order sought for the determination of the separate question.
Orders
30․I make the following orders:
(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.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin Associate: Date: |
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