Vero Insurance Ltd v Tran

[2008] NSWSC 166

CITATION:	Vero Insurance Ltd v Tran [2008] NSWSC 166
HEARING DATE(S):	22 February 2008
JUDGMENT DATE :	22 February 2008
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order for separate decision of questions made.
CATCHWORDS:	PROCEDURE [107] – Supreme Court procedure – Practice under Supreme Court rules – Separate decision of questions – When appropriate.
CATEGORY:	Procedural and other rulings
CASES CITED:	Integral Home Loans Pty Ltd v Interstar Wholesale Finances Pty Ltd [2006] NSWSC 1464 Islamic Assoc of Western Suburbs Sydney Inc v Dr H R K Survery [2007] NSWSC 1425 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377
PARTIES:	Vero Insurance Limited (P) Minh Ai Tran (D1) Thi Nguyen Phan (D2) Full Brick Homes Pty Ltd (D3) Martin Barratt (D4) Maureen Barratt (D5) Ian H Bailey (D6)
FILE NUMBER(S):	SC 5172/06
COUNSEL:	T G R Parker SC and P J Bambagiotti (P) F C Corsaro SC (D1 & 2) Submitting appearances (D3-6)
SOLICITORS:	Mills Oakley Lawyers (P) Just in Case Legal (D1 & 2) Kennedys Law Firm (D3-5) Thomson Playford Lawyers (D6)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 22 FEBRUARY 2008

5172/06 VERO INSURANCE LIMITED v MINH AI TRAN & ORS

JUDGMENT

1 HIS HONOUR: As a result of discussion yesterday afternoon, the idea was promoted that several days of evidence which may or may not be necessary could be avoided by an order for separate decision, the order being an order that all questions arising out of par 11 of the defence should be decided separately from and after the decision of the other questions in the proceedings.

2 Yesterday afternoon, that suggestion was warmly endorsed on both sides of the bar table. This morning, Mr Parker, of Senior Counsel for the plaintiff, is expressing reservations about it. He is suggesting that the questions in par 11 may be entangled with the other questions in that, although they are expressed to be raised in support of an allegation of frustration, there are circumstances in which they could conceivably go to the existence or non existence of a binding contract.

3 Certainly, as it is at present pleaded and in a proposed amendment that has been brought forward by Mr Corsaro, of Senior Counsel for the first and second defendants, the matters in par 11 are raised in support of a contention of frustration, which can only arise if a binding contract exists.

4 Mr Corsaro has this morning, on behalf of his clients, assured the Court that there is no intention to raise the matters in par 11, actual or proposed, except in support of an allegation of frustration. He has specifically eschewed relying upon them in support of an argument that there was no contract by reason of any mistake or by reference, if it be a separate matter, to an argument under cases such as McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 as to the existence of any subject matter of the agreement at the time it was made. Furthermore, Mr Corsaro eschewed any intention on the first and second defendants’ part to lead further evidence at a subsequent trial, for example, of Mr Tran, as to the subject matter of the contract.

5 As I have indicated on past occasions, I am a Judge who is extremely cautious about ordering the separate decision of questions and I am aware of the warnings of appellate courts in this regard. I am aware from my own experience of litigation of the dangers that may arise. And see Islamic Assoc of Western Suburbs Sydney Inc v Dr H R K Survery [2007] NSWSC 1425 at [4], [5]:

“[4] The appellate approach to the separate decision of questions has in general terms been to counsel caution in making such orders. In Tepko Pty Limited v Water Board (2001) 206 CLR 1, in a joint judgment, Kirby and Callinan JJ said at [168], [170]:

‘The attractions of trials of issues, rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.
………
Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.’
That in general terms is the approach that I have taken in dealing with applications of this sort: see Silvia v Commissioner of Taxation [1999] NSWSC 299; RSL Veterans’ Retirement Villages Ltd v NSW Minister For Lands [2006] NSWSC 112. In the latter case at [6], [7] I said:

‘[6] It appears to me that the case is likely to achieve an earlier complete resolution by refusing the motion than by dividing the case into two parts for separate decision ...

[7] In addition, I should refer to the inherent danger that constantly surfaces in divided cases. First, it may be that some more of the evidence is relevant to the construction point than Miss Pepper for the Attorney General suggests. If so, that evidence will have to be traversed twice if the case is divided. Secondly, all sorts of unforeseen matter arises at divided trials and if there is an unforeseen overlap, that means that the trial should have been kept whole.’”

6 On the other hand, as I have also indicated on earlier occasions, the courts, in modern times and especially in the year 2008, must be vigilant to spare parties unnecessary costs in litigation: see Integral Home Loans Pty Ltd v Interstar Wholesale Finances Pty Ltd [2006] NSWSC 1464 at [5], [6] and Islamic Assoc at [6], [7], where I said:

“[6] This does not mean that there are not cases where separate trials are appropriate, for instance, where a simple question on limited facts will determine the whole of the proceedings or where there are other considerations that point to the Court taking some of the risks involved in separate trials because of the dictates of justice. I myself divided one very long case for trial on separate questions where this involved risks, but to keep the proceedings whole would have compelled one party only incidentally involved to sit out a very long trial, which could be avoided by separating questions out.

[7] My brother Brereton has recently urged boldness in appropriate circumstances, stating that the Court should now take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously. His Honour did so where he formed the view that the interests of justice were better served by proceeding to determine the questions separately: see Integral Home Loans Pty Ltd v Interstar Wholesale Finances Pty Ltd [2006] NSWSC 1464 at [5], [6].”

7 It seems to me, in view of the matters I have set out, that the risks of any problem arising from a separation of questions in this case are minimal. That being so, expenditure on what I see as potentially an additional three or four days of evidence, which there is not a certainty, but a substantial chance, may prove useless, should be avoided.

8 In the circumstances, I propose to order that the questions arising under par 11 of the defence in any form be decided separately from and after the decision of other questions in the proceedings. As I have already indicated, I propose to indicate in the order that the order is made without prejudice to any application that the plaintiff may subsequently make that par 11 be struck out or not relied on as being inapposite in the circumstances. That matter can be argued at a later stage of the proceedings if necessary.

9 Equally, whilst I shall receive today an amended defence in the form in which the first and second defendants now seek to put it forward, I shall postpone the determination of the application for amendment in so far as it is an amendment to par 11. There is an earlier amendment to par 9 which should, when the document is brought in, be given immediate force.

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