Taylor v The Owners - Strata Plan 11564 (No 2)
[2014] NSWSC 755
•10 June 2014
Supreme Court
New South Wales
Medium Neutral Citation: Taylor v The Owners - Strata Plan 11564 (No 2) [2014] NSWSC 755 Hearing dates: 30/05/2014, 06/06/2014 Decision date: 10 June 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Motion filed 27 May 2014 is dismissed.
(2) Order the plaintiffs to pay defendants' costs of the Motion.
(3) Vacate the hearing date fixed for 14 July 2014.
(4) Reserve all questions of costs of and occasioned by the vacation of the hearing date.
(5) Liberty to apply.
Catchwords: PRACTICE AND PROCEDURE - Determination of separate questions - Whether a determination of the proposed set of questions will facilitate the just, quick and cheap resolution of the proceedings - Compensation to Relatives Action - Assessment of damages detailed and complex - - Promotion of settlement unlikely - Costs of separate question significant - No reason to displace usual course - No point of general principle Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Compensation to Relatives Act 1897
Strata Schemes Management Act 1996
Roads Act 1993
Uniform Civil Procedure Rules 2005Cases Cited: Commonwealth Bank of Australia v Clune [2008] NSWSC 1125
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Taylor v The Owners - Strata Plan No 11564 [2012] NSWSC 842
Taylor v The Owners - Strata Plan No 11564 [2013] NSWCA 55
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
Thiering v Daly [2011] NSWSC 1345Category: Interlocutory applications Parties: Susan Joy Taylor (P1)
Zara Zoe Cartwright (P2)
The Owners Strata Plan 11564 (D1)
Alison Margaret Lamond (D2)
Gordon Sunn (D3)
Clifford Sunn (D4)
Duncan Rea (D5)
Manly Council (D6)
Ryan Winton Taylor (D7)
Lisa Jane Taylor (D8)
Mitchell Alan Taylor (D10)Representation: Counsel:
J Poulos QC / Ms Heath (P)
G M Gregg (D1-4)
J Lonergan SC (D5)
S Glascott (D6)
L Rupell (D7-10)
Solicitors:
Craddock Murray Nuemann (P)
Meridian Lawyers (D1, D2, D3, D4)
Addisons (D5)
DLA Piper Australia (D6)
Lewis Rupell (D7, D8, D10)
File Number(s): 2010/405732
Judgment
On 7 December 2007, Craig Taylor was killed while standing on the footpath of Sydney Road, Balgowlah in the State of NSW. He was killed because an awning and part of a cavity brick wall of a building which occupied 354-358 Sydney Road, Balgowlah collapsed onto him.
In 2010, proceedings were commenced by his wife, Susan Joy Taylor, in her own capacity, and also for and on behalf of the dependants of the late Mr Taylor. Zara Zoe Cartwright, his stepdaughter, joined in as the second plaintiff, claiming damages on her own behalf. Thus, in the one statement of claim, there is an action pursuant to the Compensation to Relatives Act 1897, and two personal actions for damages for psychiatric injury.
The first to fourth defendants are the owners of, or else responsible for, the building which collapsed. The plaintiffs sue the first to fourth defendants for damages on the basis of their negligence in failing to take reasonable care for the safety of pedestrians who stood or passed underneath the awning. The plaintiffs also claim damages at common law against the first to fourth defendants on the basis of nuisance.
As well, the plaintiffs claim damages upon the basis of breaches of statutory duties which they plead as falling upon the first to fourth defendants. They plead that the first defendant had statutory duties under the Strata Schemes Management Act 1996, the breach of which gives rise to the entitlement of the plaintiffs to damages. A further claim for breach of statutory duty is made against all four defendants pursuant to s 142 of the Roads Act 1993.
The fifth defendant is a qualified engineer who was in practice as such. The plaintiffs allege that he was retained by the second defendant to inspect the awning for the purpose of determining the structural adequacy, and safety, of the awning. It is alleged, against the fifth defendant, that he owed a duty to the late Mr Taylor to take reasonable care in the provision of his advice to the second defendant. It is alleged that he was in breach of that duty and, as a consequence, the plaintiffs are entitled to damages.
The sixth defendant is the local council with responsibility for the area in which the accident occurred. It is also the road authority for the public footpath upon which Mr Taylor was at the time of his death. The plaintiff alleges that the sixth defendant owed the late Mr Taylor a duty to take reasonable care in the exercise of its powers and functions, and that it was in breach of that duty of care, giving rise to the damages claimed by the plaintiffs.
As well as the claims of the plaintiffs, there are cross-claims between each of the defendants who, or which, are said to be at fault
There are three further defendants who are the adult children of the late Mr Taylor's first marriage. They have been joined so as to enable the Court to determine whether, in the event that an award of damages is made under the Compensation to Relatives Act, they have any entitlement to any of the monies which may be awarded. They took no active role in the matters which are the subject of this judgment.
Procedural History
These proceedings have had a long and complicated history. They were first commenced on 6 December 2010.
In October 2011, the Court was informed though an affidavit of the plaintiffs' solicitor, Mr Wilson, sworn on that day, that he had prepared draft statements of the evidence which the plaintiffs were capable of giving, but that those statements had not yet been finalised. He told the Court that the evidentiary statements of the plaintiffs would address, amongst other things:
"- such observations of Mr Taylor's income, work habits, capacities and business arrangements as the plaintiffs were in a position to make;
- evidence of the expenditure by Mr Taylor of his income on the plaintiffs and their dependency on him for support, evidence of Mr Taylor's expenditure on his own support."
He also told the Court that between August 2011 and October 2011, he had, together with his employed solicitor, arranged conferences for counsel with five witnesses of fact who were in a position to have made relevant observations "... about Mr Taylor's income, work habits, capacities and business arrangements". He informed the Court that a further three conferences were being arranged to address further lines of enquiry which had developed.
Based upon that information, on 12 October 2011, the Court made various directions, which accommodated these preparations, including that the plaintiffs were to serve statements pursuant to r 31.4 of the Uniform Civil Procedure Rules 2005 ("UCPR") of the plaintiff, Mrs Taylor, and of all other witnesses whose statements formed part of the plaintiffs' case in chief, by 30 November 2011.
On 17 February 2012, the matter came before the Court for judicial case management. On that day the Court was informed that there might be a proper basis to consider the hearing and determination pursuant to Pt 28 r 2 of the UCPR of a separate question relating to damages.
On 30 March 2012, with the consent of all parties, the Court made the following order:
"Pursuant to r 28.2 of the Uniform Civil Procedure Rules, I order that this question be heard and determined separately and in advance of all other issues in the proceedings, namely: 'Insofar as the plaintiffs' claim damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897 (NSW), is any award of damages limited by operation of s 12(2) of the Civil Liability Act 2002 (NSW)'? "
That separate question was determined by me on 27 July 2012: Taylor v The Owners - Strata Plan No 11564 [2012] NSWSC 842. An appeal to the NSW Court of Appeal against that decision was dismissed: Taylor v The Owners - Strata Plan No 11564 [2013] NSWCA 55. On 2 April 2014, the High Court of Australia, having granted special leave to appeal, allowed the appeal and ordered that the separate question be answered as follows:
"No, the operation of s 12(2) of the Civil Liability Act 2002 (NSW) does not limit the first plaintiff's claim for damages pursuant to ss 3 and 4 of the Compensation to Relatives Act 1897 (NSW) as pleaded on behalf of herself, and any other entitled relatives of the late Mr Craig Taylor, in that it does not require the Court to disregard the amount by which the gross weekly earnings of Mr Craig Taylor would, but for his death, have exceeded an amount that is three times the average weekly earnings at the date of the award."
See Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
Although the separate question was being heard and determined by the Court, the Court of Appeal and the High Court of Australia, the proceedings continued to be managed so as to ensure that all issues were capable of being heard and determined at the earliest opportunity. In particular, the Court addressed a variety of issues dealing with questions arising with respect to liability.
On 25 October 2013, the plaintiffs prepared Short Minutes of Order which were in substance agreed by the defendants. The Court made those orders. Amongst other things on that day, the Court made orders that:
(a) the plaintiffs serve any further witness statements and reports, including expert evidence except expert financial evidence, and medical refresher evidence, on or before 20 December 2013;
(b) the plaintiffs serve any expert financial evidence on or before 4 April 2014;
(c) the defendants to serve any expert financial evidence on or before 16 May 2014.
The parties had, by then, obtained a date for a three-week hearing for the whole of the proceedings on all issues, commencing 14 July 2014. It was anticipated that, by that time, there would be a sufficient period after the delivery of the judgment of the High Court, for the parties to be prepared for a final hearing.
The matter was relisted before the Court on 17 February 2014. The orders with respect to the plaintiffs further witness statements were, by consent, extended from 20 December 2013 to 28 February 2014. The dates for the expert financial reports to be served by both the plaintiffs and defendants, were confirmed, but the terms of the order were varied so as to make it explicit that, at the time of the service of any expert financial reports, letters of instruction, assumptions of fact and documents upon which those reports were based, should also be served.
On 11 April 2014, which was shortly after the High Court had delivered its judgment, the matter was again mentioned before the Court. It had been restored to the list on the application of the fifth defendant to deal with a question arising as to the late service by the plaintiffs of an expert engineer's report with respect to liability. That issue has now been resolved.
During the course of that directions hearing, the issue of the availability of the plaintiffs' expert evidence on damages and financial matters, and the plaintiffs' compliance with the Court's order of 17 February 2014 with respect to that material, was raised. The plaintiffs had not complied with that order by 4 April 2014 which was the due date. On 11 April 2014, senior counsel for the plaintiffs informed the Court that the financial expert retained by the plaintiffs had informed the lawyers for the plaintiffs that he anticipated that his report would be completed by 14 May 2014. Senior counsel for the plaintiffs informed the Court that all relevant material had been sent to the expert, and a conference was planned with him. He did not suggest that there were likely to be any further difficulties with compliance with an adjusted timetable.
Accordingly, upon the plaintiffs' submission, and with the consent of the defendants, the Court amended the date by which the plaintiffs were to serve their expert financial evidence, together with accompanying documents, to 16 May 2014. The orders which affected the defendants' service of expert financial material were vacated, with the Court indicating that a new date would be fixed once the plaintiffs' reports had been served.
The proceedings were stood over for further directions, and also, to deal with a motion which is now no longer relevant, to 23 May 2014.
On 23 May 2014, senior counsel for the plaintiffs informed the Court that the plaintiffs had not yet served an expert report on the question of economic loss and dependency. He said:
"That is proving to be a difficult process simply because when this matter was prepared before, the extent of the problem was not immediately apparent to us. We gathered enough financial material and enough information to form the strong view that the economic loss aspect would comfortably exceed any calculations based upon the three times weekly earnings.
When the High Court decision was handed down in March (sic), enquiries were commenced in earnest. The documents upon which economic loss is founded were destroyed, ... So it's been necessary to reconstruct the economic loss claim virtually from third parties.
...
We've had to prepare the letters of instruction to the specialist accountant, we've done that. We've had a conference with him. And as the process has progressed more questions are posed than answers. So we are feverishly trying to follow up all the suggested leads that he, as an expert, suggests we follow.
This time we think that we'll be able to prepare a report, but if I am asked to say when, I cannot give any reasonable answer to that question, except to say it would probably be a matter of weeks."
In the course of submissions and argument, the plaintiffs indicated that an appropriate course, which they would favour, would be to limit the hearing, which was fixed to take place on 14 July 2014, only to the question of liability. The defendants had no prior notice of this suggestion and, accordingly, directions were made which required the plaintiffs, should they wish to proceed with such a course, to file a notice of motion and supporting affidavits. Directions were given to enable the defendants also to file evidence with respect to that motion.
Notice of Motion
By Notice of Motion filed on 27 May 2014, the plaintiffs sought these orders:
"1. That pursuant to UCPR r 28.2, the Court order that all questions relating to the existence of a duty of care, or such other duty as pleaded, and the breach of any duty, and whether any such breach caused the death of Mr Taylor, and the proof of any other cause of action and any claim for contribution as pleaded be heard and determined in advance of all other questions in the proceedings, in the intent that all questions relating to the liability, if any, of the 1st to 6th defendants be determined separately from, and in advance of, all questions as to the quantum of any damages and interest payable and all matters relating thereto.
2. That the hearing date of 14 July 2014 for four weeks be confirmed as a hearing on the separate question, as ordered by Order 1."
In short, the plaintiffs sought to separate the issues of liability and damages, and to use the time reserved on 14 July 2014, namely a period of three weeks (not four as the plaintiffs suggest), for the hearing of the liability issues.
In support of that Motion, the plaintiffs initially relied on the evidence of Mr Dominic Wilson contained in an affidavit of 27 May 2014. It is apparent from that affidavit, which was not challenged by cross-examination, that Mr Wilson's opinion as an experienced litigation solicitor, was that his clients' case on damages was a complex one which had not been fully investigated or prepared for a hearing. Those issues were clearly not ready to proceed to a hearing on 14 July 2014.
It is also apparent from that affidavit that the claim for loss of financial dependency was potentially a very significant one. Mr Wilson said, amongst other things:
"In my opinion, as a litigation solicitor experienced in damages claims, a calculation performed by simply adding the monies paid to Mr and Mrs Taylor as salaries, bonuses and directors fees, or for their benefit from Carritt Taylor Valuations Pty Ltd, as stated in the tax returns, and averaging over a period before Mr Taylor's death, may not fully value the claim because it does not take account of at least the following matters ... "
Mr Wilson then listed 10 further matters which involved questions relating to the likely future path of the business in which Mr Taylor was engaged, at the time of his death, as an expert valuer; the probable market value of the business if it had been offered for sale; allowance for any income which Mr Taylor may have obtained through entities other than his principal business, and the discretionary distribution of assets and income that may have been available to the plaintiff but for Mr Taylor's death.
At the time of Mr Wilson's affidavit, these matters had not been addressed, and the plaintiffs did not have any expert accounting or valuation evidence addressing them.
Mr Wilson deposed to the fact that there may need to be a number of lay statements obtained with respect to the late Mr Taylor's business, reputation and prospects, including his property development activities. He informed the Court that he had identified some 17 further witnesses, who may potentially be appropriate witnesses to be called.
Mr Wilson also deposed, in that affidavit, to his view, having checked all of the evidence which had been served in advance of the hearing, that there would be no commonality of witnesses between the issues of liability and the issue of damages. In other words, there was no witness who would give evidence on both issues. He deposed to the fact that the liability issues were ready to proceed on 14 July 2014, and he expected that up to 19 witnesses would be called by the various parties on liability, and he estimated that the hearing on liability would take between three and four weeks.
He expressed the view, which was relied upon in submissions by senior counsel for the plaintiff, that if liability was heard and determined, then it would be much more likely that the claims of the plaintiffs would be settled without necessity for a full hearing on damages.
The defendants relied on affidavit evidence. Ms Somerville, the solicitor for the first to fourth defendants, accepted that there were no common witnesses on the issues of liability and damages. She also raised a question as to whether the matter would be ready for a full hearing on liability, having regard to recently served expert materials and amended pleadings based on that recent expert report. That matter can be put to one side for the moment.
Ms Somerville, who is also an experienced litigation solicitor, and whose affidavit was also not the subject of cross-examination, estimated based upon her experience, that the costs to her client of a three-week liability hearing would be in the order of $400,000. She estimated that the other parties to the proceedings who fully participated would incur costs of a similar amount. Hence she estimated that the legal costs of a hearing on liability would be somewhere in excess of $1.5M. This was a time related cost estimation so if the hearing was to last longer than three weeks, then the legal costs would increase. She expressed the view, upon which counsel for the first to fourth defendants relied in his submissions, that:
"Regardless of any issues relating to liability, it is unlikely that the matter can be resolved if the plaintiffs are not in a position to quantify the value of their claim; which, by the plaintiffs' own admission, is complex and cannot be quantified without the assistance of comprehensive expert financial evidence.
If the parties are forced to proceed to a hearing on issues relating to liability and apportionment only, the parties may collectively incur $1.5 million in costs prior to having any indication of parameters within which the proceedings would be resolved, and without the opportunity of attempting to resolve the matter through alternative dispute resolution."
The first to fourth defendants and the fifth defendant opposed the orders sought by the plaintiff, and submitted that the better course, if the plaintiff was not ready, as plainly she was not, to deal with damages, was to adjourn the proceedings in their entirety and fix them on the next available hearing date.
The sixth defendant did not oppose the relief sought in the motion and supported it. The sixth defendant did not file any affidavit evidence.
Hearing of the Motion
The hearing of the Motion proceeded on 30 May 2014, when submissions were taken.
At the end of the defendants' submissions, senior counsel for the plaintiffs, because of developments which he said had taken place in the office of the solicitor for the plaintiff, articulated a hope that at a time, albeit shortly prior to 14 July 2014, the plaintiffs would be in a situation where they would be able to articulate adequately the parameters of their claim for damages, with the consequence so he submitted, that the question of damages, and negotiations about those damages, could proceed at the same time as the hearing of the issues on liability. The result, he asserted would be that there would be no question of costs being wasted, or unnecessarily incurred by a hearing on liability.
The Court expressed the view that if that was a realistic prospect, then evidence should be filed which described the circumstances relevant to such an expectation, so that the Court could make an assessment of the probability of that occurring. As well, the defendants would be properly informed and be able to make their submissions based on something more than an assertion from the Bar Table. In those circumstances, the hearing of the matter was adjourned part-heard for seven days.
On 4 June 2014, a further affidavit of Mr Dominic Wilson was filed. Mr Wilson deposed to the fact that he was obtaining further information which was to be provided to the plaintiffs' financial expert. He deposed to the fact that he anticipated that information which the expert had requested could largely be made available progressively during June, and the balance of it by 18 June 2014. He also deposed to the fact that further records were being searched for and that he had requested various financial institutions to provide financial documents which he anticipated would be able to be provided largely by 18 June 2014, with the balance by end of June 2014.
He identified subpoenas which had been made returnable for 12 June 2014 which were intended to produce primary records relevant to the plaintiffs' claim.
He then said this:
"On the basis of the above plan for obtaining the required further evidence, I am informed by the financial expert retained for the plaintiffs, that he will be in a position to complete an expert report for use in these proceedings by 7 July 2014. "
If this date was to be achieved, it would provide the defendants with one week's notice of the size of the claim before the hearing on liability started.
Whilst Mr Wilson's affidavit and his evidence was not the subject of challenge, it is obvious from what is there said, that the capacity of the expert to prepare the expert financial report depends substantially upon the timely compliance by a significant number of other people with the provision of documents and information and, as well, the obtaining of the statements upon which the plaintiffs' expert reports would be based. Any slippage in the provision of the underlying material would naturally adversely affect the date upon which the plaintiffs' expert report could be provided.
As well, as is obvious, given that the steps taken in preparation for the plaintiffs' expert report would, by that time, have taken many weeks, the defendants would need an approximately comparable time to examine the report, understand it, obtain such further lay or documentary evidence as they might think appropriate, and obtain a final considered report from their financial expert. In all of the circumstances, particularly since the plaintiffs will by then have required about twelve weeks since 11 April 2014, it seems unlikely that the defendants would be able to complete such a process in under a month and it is more likely to take at least six weeks, in my estimation, for them to be in a position to understand and properly assess the real value of the plaintiffs claim.
Further Submissions
The defendants, other than the sixth defendant, submitted as they had earlier done, that the matter was clearly not ready for a hearing on all issues, and that the preferable course was that the Court not accede to the plaintiffs' Motion, but rather to fix a new date, at a time which was as soon as was convenient to the Court.
The defendants pointed to the fact that the late service of the plaintiffs' financial expert reports was not due to any default on the part of the defendants, but rather was occasioned by reason of matters, broadly, within the plaintiffs' control, namely, the availability (or non-availability) of relevant records, the availability of lay evidence to support the nature of the claim, and the late retention of, and briefing of, an expert to provide the necessary evidence and to advise about what enquiries ought to be made.
The first to fourth defendants also submitted that the practical result of the absence of a formulated economic case by the plaintiffs was that the parties were unable to engage in any meaningful mediation, or other alternative dispute resolution which would have the potential for resolving the whole proceedings thereby significantly reducing the expenditure on legal costs. The defendants pointed to the size of the likely legal costs bill, which could be avoided if the matter was subject to meaningful mediation and, as well, submitted that if the matter proceeded on appeal, the costs were likely to be significantly increased.
The defendants also relied upon the legal principles relating to the exercise of the Court's discretion to order the hearing of separate questions. They submitted that those principles did not favour granting the relief sought by the plaintiffs.
The plaintiffs in making submissions in response, highlighted the evidence contained in Mr Wilson's most recent affidavit about the plaintiffs' psychiatric condition and the first plaintiff's financial position. Mr Wilson said that he had been informed by the first plaintiff, Mrs Taylor, that
"... she feels deeply anxious and is adversely affected by stress caused by waiting for the litigation to proceed to a point where the dispute can be usefully further mediated."
The plaintiffs also relied upon the expert psychiatrist's reports principally with respect to Mrs Taylor. The most recent of these was that of Dr Yvonne Skinner of 30 April 2013, which is now over twelve months old.
In a report of 4 April 2012, Dr Skinner had diagnosed Mrs Taylor as suffering from abnormal grief. She said:
"Her grief has not followed the expected course of normal bereavement, as she continues to suffer severe anxiety symptoms when separated from close family members and her symptoms of anxiety and depression have not diminished over time as would be expected. "
Dr Skinner expressed the view that the abnormal grief from which Mrs Taylor suffered was a psychiatric condition, and that Mrs Taylor's prognosis was guarded. In her most recent report of 30 April 2013, Dr Skinner thought that there had been little change in Mrs Taylor's psychiatric condition of abnormal grief since her earlier consultation. She maintained the view that Mrs Taylor's prognosis was guarded because of the duration of the symptoms and her inability to adjust to the changes in her life since the death of her husband. Dr Skinner suggested a course of treatment by medication. The evidence does not reveal if Mrs Taylor has taken up that suggestion.
The plaintiffs relied upon the fact that the Court of Appeal in 2012, and the High Court in 2013 had expedited the hearing of the separate question which was then being litigated. They submitted that this Court should follow the same approach.
The defendants pointed out in response to that submission that, whilst a report of 20 September 2012 from Dr Skinner had expressed the view that expedition of the legal process
"should assist Mrs Taylor to resume some of her previous activities, to cope better and to gradually return to previous level of functioning"
the most recent report made no such reference. As well, the defendants pointed out that the most recent psychiatric report was over 12 months old and, accordingly, there was no expert evidence which could be relied upon to support a claim for expedition based upon the psychiatric condition of Mrs Taylor, as was apparently the case in 2012 when the Court of Appeal expedited the matter.
Whilst any delay in the finalisation of litigation, particularly of the kind here, which involves the obtaining of financial compensation resulting from the sudden and unexpected death of a husband and father, is likely to be productive of stress and anxiety, if any significant psychiatric effect is to be relied upon, then expert evidence is necessary.
The plaintiffs' submitted that a resolution of the liability questions would be likely to promote the resolution of the issues on liability and thereby promote the resolution of the proceedings as a whole. The plaintiffs submitted that it was in the interests of justice to promote a means which would enable the resolution of the whole of the proceedings.
In addition, the plaintiffs provided some evidence, via Mr Wilson's affidavit, of the financial hardship of Mrs Taylor which it was submitted justified the course which their Motion proposed.
It is clear from that affidavit, and also the expert reports of Dr Skinner, that the plaintiff is not presently engaged in remunerative employment and has not been for a considerable period of time, including a period well prior to the death of Mr Taylor.
The financial material provided is, in my assessment, rather sparse. It appears that the Mrs Taylor is the registered proprietor of two properties, one a North Balgowlah, in which she lived with the late Mr Taylor and her family, and in which she continues to live. As well, she is the registered proprietor of a cottage at Seaforth in which her parents live. They moved from Queensland from Seaforth to assist her following Mr Taylor's death. It seems that her parents have made a financial contribution to that property and may thus have a proprietary interest, although it is not clear what the extent of that contribution was, or the extent of their interest.
As well, it appears that in July 2012, Mrs Taylor held a share in a factory investment property. It is apparent that she was attempting to sell that share at that time. In addition to these assets, the affidavit of Mr Wilson reveals that Mrs Taylor has a mortgage debt which is about $460,000. The terms of that mortgage debt are not disclosed.
There is no evidence as to the value of either of the properties. There is no evidence as to whether Mrs Taylor's parents pay any sum towards the mortgage which apparently exists in relation to the home in which they live. There is no evidence as to whether Mrs Taylor's share in the factory investment property was or was not sold, and if it was, what became of the proceeds. There is an available inference which suggests that the share may have been sold - although it does appear from a general statement about the extent of the assets of Mrs Taylor, that the share in the factory investment property may have been sold.
The affidavit does not set out in any detail what Mrs Taylor's assets are by valuation, what her liabilities are, what her expenditure needs are, and what income, if any, she has to support that expenditure. The affidavit does suggest that Mrs Taylor has a superannuation fund, although in what form is not clear. There is no evidence of the value of that superannuation fund.
Whilst I accept that Mrs Taylor's financial position has been significantly affected by the death of the late Mr Taylor, the financial material placed before me on this motion does not persuade me that her financial position alone carries any significant weight in the determination of the factors which the Motion calls for.
Applicable Legal Principles
As is apparent from the terms of the Motion itself, the application is made in reliance upon r 28.2 of the UCPR. In exercising the discretion conferred upon the Court by that rule, it is essential that the Court gives effect to the provisions of s 56 of the Civil Procedure Act 2005 including the overriding purpose of the Act and the UCPR, which is to "...facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings".
The starting point for consideration of such a motion is that it is ordinarily appropriate that all issues in the proceedings should be disposed of at the one time: Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at [5] per Johnson J.
In claims involving tort such as this matter, it is necessary to take care in deciding whether to conduct separate trials of different issues, because often, as experience shows, separate trials may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome. It is generally undesirable to have separate trials even if all parties accept that compensable damage has been sustained by the plaintiff: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at 332 [436] per Callinan J.
The course, in this case, which resulted from the hearing of a separate question, bears out, many of the matters to which these principles draw attention.
I have elsewhere described in some detail the principles to be applied by the Court in considering an application for the separate determination of issues. I adhere to those principles: see Thiering v Daly [2011] NSWSC 1345 at [19]-[27].
Ultimately, it is a matter for the Court to exercise its discretion in accordance with these principles, by reference to the particular facts, matters and circumstances in these proceedings.
Discernment
It is for the applicants, the plaintiffs, to persuade the Court that, in this case, at this stage of the proceedings, it is in the interests of justice that, contrary to the usual position, the issues relating to liability ought be heard and determined in advance of all other issues in the proceedings.
The submission which is in substance put is that having regard to the circumstances of the first plaintiff, in particular her psychiatric condition, and her financial state, and having regard to the fact that in substance the issues on liability are ready to proceed, and because the issues with respect to the level or extent of damages are not presently ready to proceed at this time, the appropriate course is to separate the issues of liability and damages, thereby resulting in the promotion of the overriding purpose of the Civil Procedure Act.
The plaintiffs also submit that such a course would promote the likelihood of early resolution of all issues in the proceedings whether by mediation, or settlement.
On the other hand, the defendants submit that there would be a considerable cost to the defendants in engaging in a hearing on liability when such considerable cost could be reasonably avoided if the defendants knew, and had the opportunity of investigating and determining for themselves, the extent of the plaintiffs real economic claim. In other words, the gravamen of the defendants' submission is that once they know what the plaintiffs real monetary claim is, there is a much greater prospect of resolution than there would be if the defendants were required to incur a sum in the order of $1.5M by way of legal costs prior to knowing substantially what that position is. The defendants submit that having incurred such legal costs, the prospects of resolution are considerably dimmed.
As well, the defendants point to the well-known consequences of the hearing of separate questions including appeals and the delay which necessarily follows. They point to what earlier happened in this case, where the progress of the case to a resolution was delayed by the separate question issue being heard and determined, followed by an appeal to the Court of Appeal, and the High Court of Australia.
The defendants accept that it is desirable that the plaintiffs' claim be heard and determined at the earliest possible opportunity. However, they submit that the circumstance that has presently arisen falls largely at the feet of the plaintiffs.
It is apparent that as early as October 2011, well before the first separate question was identified, the plaintiffs' solicitor was aware that the plaintiffs were presenting a complex financial claim, and that it would be necessary to undertake significant investigations to establish it. In part, one reason for the ordering of the initial separate question was that, if it was determined adversely to the plaintiffs, then much of the cost and expense which would be incurred by those investigations would be avoided, because of the limit on financial recovery, if the provisions of the Civil Liability Act were to be interpreted as the defendants contended.
The various timetables set for the plaintiffs to undertake all necessary investigations have not been complied with. As the earlier remarks in this judgment demonstrate, there has also been serial non-compliance by the plaintiffs with the orders for the preparation and service of financial expert material.
Ordering a separate question so that liability is heard in advance of damages, is an order which will put the defendants to considerable cost. Whilst it is true that the plaintiffs will also incur significant legal cost, ultimately, as I understand the real issues in the proceedings, that cost, or at least the party and party component of, would be likely to be borne by one or other of the defendants.
As well, I am not persuaded that a hearing on liability will promote settlement. If upon proper exposure and examination, the plaintiffs' claim is not as great as it is presently anticipated to be, then the fact that the defendants might well save a sum in the order of $1.5M in legal costs to be incurred by defending the separate hearing, may well provide them with greater resources to contribute to a settlement, and promote rather than detract from settlement.
Accordingly, I am not persuaded that it is in the interests of justice, or the parties in this case, to order that a separate question be determined an advance of the hearing of the proceedings.
A hearing of the entirety of all issues can be fixed in the early part of 2015, on a date suitable to the parties. That there will be a further delay from the perspective of the plaintiffs is undesirable. However, I am unable to find on the evidence adduced that such a further delay of a little over six months would cause such significant adverse consequences to the plaintiffs as would weigh sufficiently against the other matters to which I have had regard.
In short, I have not been persuaded that the separation out of the issues, as proposed by the plaintiffs, would result in the promotion of the overriding purpose set out in the Civil Procedure Act. On the contrary, I have been persuaded that the course proposed by the plaintiffs would involve incurring significant legal costs, without any demonstrated likelihood of an earlier resolution of the proceedings, than would be achieved by fixing the matter for final hearing on all issues as soon as conveniently occur.
Accordingly, I decline, in the exercise of my discretion, to make the orders sought by the plaintiffs.
Orders
I make the following orders:
(1) Motion filed 27 May 2014 is dismissed.
(2) Order the plaintiffs to pay defendants' costs of the Motion.
(3) Vacate the hearing date fixed for 14 July 2014.
(4) Reserve all questions of costs of and occasioned by the vacation of the hearing date.
(5) Liberty to apply on 72 hours' notice.
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Decision last updated: 10 June 2014
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