JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2015
DATE OF JUDGMENT:	17 July 2015
CASE MAY BE CITED AS:	Vale v Daumeke & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 342

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PRACTICE AND PROCEDURE – Application pursuant to rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 and/or s 49 of the Civil Procedure Act 2010 (Vic) for the trial of preliminary questions where judicial determination of facts required – Whether all facts necessary for determination of preliminary questions clearly identified and ascertainable – Whether material or evidence for the determination of question of fact presently before the Court are such that the question of fact can be properly determined – Whether significant contested factual issues involved in the determination of the question of fact – Whether discovery (of documents and by interrogation) necessary before any consideration of a trial of preliminary questions – Whether provisions of Civil Procedure Act2010 (Vic) affects the application of the pre-existing law as to the trial of preliminary questions – Whether the utility, economy and fairness to the parties by the trial of the preliminary questions is beyond question – Application refused – Jacobson v Ross [1995] 1 VR 337; Murphy v State of Victoria [2014] VSCA 238.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Gordon	Slater & Gordon Limited
For the Fifth Defendant	J. S. Graham	Lander & Rogers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 1

The Plaintiff’s Claims and Sun’s Defence..................................................................................... 4

Affidavits........................................................................................................................................... 11

Sun – 2 April 2015 Affidavit...................................................................................................... 11
Sun – 23 June 2015 Affidavit...................................................................................................... 13
Plaintiff’s Affidavits.................................................................................................................... 14

The Correspondence....................................................................................................................... 14

Applicable Law................................................................................................................................. 17

The Rules...................................................................................................................................... 17
Civil Procedure Act 2010 (Vic).................................................................................................. 21

Submissions...................................................................................................................................... 23

Sun................................................................................................................................................. 23
Plaintiff......................................................................................................................................... 24

Consideration.................................................................................................................................... 28

Analysis of the Questions.......................................................................................................... 28
Factors in favour of the Preliminary Trial of the Questions................................................. 32
Factors against the Preliminary Trial of the Questions......................................................... 32

Conclusion......................................................................................................................................... 35

HIS HONOUR:

Introduction

By summons dated 2 April 2015, the fifth defendant (‘Sun’) seeks an order pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘the Rules’) and/or s 49 of the Civil Procedure Act 2010 (Vic) (‘the CPA’) that the following questions be heard and determined before the trial of the proceeding:

(a) Did the first defendant hold a licence permitting him to drive a motor vehicle in Fiji on 27 July 2008 or at any time within the period of 30 days immediately prior?

(b) If ‘no’ to question (a):

(i) Was the first defendant a person entitled to drive Toyota motor vehicle with Fijian registration number DA171 (‘the Vehicle’) on 27 July 2008, and was he insured within the meaning of the policy of insurance numbered Z519937 (‘the Policy’) issued by the fifth defendant (‘Sun’)?

(ii) Is Sun…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vale v Daumeke

Details

AGLC: Vale v Daumeke [2015] VSC 342
Case: [2015] VSC 342
Decision Date: 17 July 2015

CaseChat Overview and Summary

The case of Vale v Daumeke involves a legal dispute between Vale and Daumeke, which was brought before the court under the provisions of rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 and/or section 49 of the Civil Procedure Act 2010 (Vic). The matter concerns an application for the trial of preliminary questions, where a judicial determination of facts is required. The court had to decide whether all the facts necessary for determining the preliminary questions were clearly identified and ascertainable, whether the material or evidence for determining the question of fact were such that the question of fact could be properly determined, and whether significant contested factual issues were involved.

The court considered whether discovery (of documents and by interrogation) was necessary before any consideration of a trial of preliminary questions. Additionally, the court examined whether the provisions of the Civil Procedure Act 2010 (Vic) affected the application of the pre-existing law as to the trial of preliminary questions. Furthermore, the court evaluated whether the utility, economy, and fairness to the parties by the trial of the preliminary questions were beyond question. After considering these issues, the court found that the application was refused, citing the precedent set in Jacobson v Ross [1995] 1 VR 337 and Murphy v State of Victoria [2014] VSCA 238.

The court's reasoning and outcome focused on the necessity of discovery and the presence of significant contested factual issues. The court held that the application for the trial of preliminary questions was not appropriate in this case, as the material or evidence for determining the question of fact were not such that the question of fact could be properly determined. Furthermore, the court found that the utility, economy, and fairness to the parties by the trial of the preliminary questions were not beyond question. The court also determined that the provisions of the Civil Procedure Act 2010 (Vic) did not affect the application of the pre-existing law as to the trial of preliminary questions.

In conclusion, the court refused the application for the trial of preliminary questions in the case of Vale v Daumeke, finding that the necessary facts were not clearly identified and ascertainable, and that the material or evidence for determining the question of fact were not such that the question of fact could be properly determined. The court also found that significant contested factual issues were involved and that the utility, economy, and fairness to the parties by the trial of the preliminary questions were not beyond question.

Orders