Woodley v Woodley
[2014] WASC 377
•16 OCTOBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WOODLEY -v- WOODLEY [2014] WASC 377
CORAM: BEECH J
HEARD: ON THE PAPERS
DELIVERED : 16 OCTOBER 2014
FILE NO/S: CIV 2080 of 2013
BETWEEN: TERRY RAY WOODLEY
Plaintiff
AND
ROSS MAXWELL WOODLEY
Defendant
Catchwords:
Practice and procedure - Application for separate trial of issues - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 32 r 4
Result:
Application for separate trials successful
Category: B
Representation:
Counsel:
Plaintiff: No appearance
Defendant: No appearance
Solicitors:
Plaintiff: In person
Defendant: MDS Legal
Case(s) referred to in judgment(s):
Barreto v McMullan [2014] WASCA 152
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47
Jacobson v Ross [1995] 1 VR 337
Landsdale v Moore [2009] WASCA 176
Moore v Stockland South Beach Pty Ltd [2011] WASC 337
St Barbara Ltd v Hockley [2013] WASC 283
BEECH J:
Introduction
The defendant applies for the separate trial of a question of law in this action.
I will begin with an outline of the principles relevant to this application. I will then outline the statement of claim, before setting out, in detail, the defendant's application. Finally, I will explain the reasons why I would make orders to the effect sought by the defendant.
Order 32 r 4: legal principles
The following outline of principles draws heavily on the outline in St Barbara Ltd v Hockley.[1]
[1] St Barbara Ltd v Hockley [2013] WASC 283 [4] ‑ [11].
The starting point is that, generally speaking, all issues of fact and law in an action should be determined at the one time. In Landsdale Pty Ltd v Moore,[2] Newnes JA (Buss JA agreeing) made the following observations:
The respondents' application for separate trials of liability and damages was founded on the proposition that such a course would result in a more efficient and cost‑effective resolution of the proceedings. There is no doubt that at a time when the time and cost involved in litigation is a matter of legitimate public concern, it behoves the court to approach each case which comes before it with the object of eliminating any unnecessary delay or cost, and ensuring the efficient and timely resolution of the case, consistent with doing justice to both sides. That is reflected in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA). But while that will often require a more flexible approach than might have been taken in the past, at the same time it is important that the lessons of the past are not forgotten, and that the court and the parties do not succumb to the immediate attraction of apparently more efficient but less conventional procedures without careful regard to past experience with such procedures.
In relation to the present case, experience has shown that the attraction of the separate trial of issues is often illusory; it is a course that often causes the very delay, additional expense and uncertainty of outcome it was intended to avoid. It is self‑evident that generally a trial on liability alone will be shorter and less costly than a trial on both liability and damages. But it is equally self‑evident that separate trials will not necessarily lead to the overall action being resolved sooner or at a lesser cost. If the plaintiff is successful on liability and it is necessary to have a further trial on the issue of damages, the contrary may well be the case. Separate trials also raise the prospect of separate appeals on the findings on liability and quantum, which, if it occurs, will increase the time and expense involved in the overall action. The vagaries of litigation are such that its course often does not run smoothly, or predictably. An application for the separation of issues is therefore to be approached with some caution. See generally Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1, 55.
The starting point is that ordinarily the trial of an action should include all issues arising in the action. The determination of an application for separate trials requires a careful balancing of the prospective advantages and disadvantages involved in separating the issues, bearing in mind the uncertainties inherent in litigation, and that, once embarked upon, it is a course from which it may be difficult and even impossible to retreat. It should only be embarked upon where its utility, economy and fairness to the parties is clearly made out: Tepko (55).
[2] Landsdale v Moore [2009] WASCA 176 [19] ‑ [21].
Although some of his Honour's observations relate to the particular context of splitting issues of liability and damage in tort cases, many of the observations are of general application.
The circumstances in which it is appropriate for there to be a separate trial of some issues defy comprehensive description. Each case will turn upon all of its circumstances. It is relevant whether there is a clear line of demarcation between the issues the subject of the application and the other issues, and whether the determination of one in isolation from the other is likely to result in a substantial saving in time, inconvenience and expense.[3]
[3] Landsdale v Moore [22].
Whether trying issues separately is likely to assist in leading to a settlement is also a relevant consideration.[4]
[4] Landsdale v Moore [28].
A party applying for a trial of separate issues should put before the court evidence or other material to enable an informed assessment to be made about the scope and likely length of the trial of the action as a whole, as against the scope and length of the issues the subject of the application for a trial of preliminary issues.[5]
[5] Landsdale v Moore [12], [26].
In Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd[6] McKechnie J gave the following summary of the principles:
[6] Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47 [4].
•A separate trial of issues is only appropriate in clear and simple cases.
•Separate trials of issues should only be embarked upon when the utility, economy and fairness are beyond question.
•The fact that the resolution of a separate trial may determine the litigation is relevant.
•Separate trials of issues may be appropriate where it is likely to save expense and inconvenience.
•There is a focus in the Rules of the Supreme Court on the expedition of determination of matters before the Court and separate trials of issues may advance the expedition.
•A possibility that the determination of issues tried separately may lead to settlement should be taken into account even though the issues may not finally dispose of the action.
•In many cases the formulation of specific questions to be tried separately, from and in advance of other issues, will assist in the resolution of the matters in issue if the questions are capable of final answer in accordance with the judicial process.
•Separate trials are inappropriate where the result depends on complex issues of fact or when a preliminary question is one of mixed fact and law.
•The procedure should be confined generally to cases where facts are complicated and the legal issues short, otherwise it can be a treacherous shortcut.
•Separate trials may be productive of delay, extra expense and uncertainty of outcome, which they are intended to avoid. Saving some time is often illusory when the parties have the necessity of making full preparation and factual matters relevant to one issue are relevant to others which overlap.
•There is potential for further appeals.
The emphasis is on the possible saving of costs and the speedy resolution of matters that is most likely to occur where the preliminary issue is relatively simple and is not enmeshed in factual controversy. Ultimately, the question is whether the court is satisfied that it is 'just and convenient' for an order for a separate trial to be made.[7]
[7] Moore v Stockland South Beach Pty Ltd [2011] WASC 337 [32].
Statement of claim
In essence, the plaintiff claims that farming property known as the Coronation Road Property was, in equity, his property and he is entitled to the proceeds of sale of that property.[8]
[8] Statement of claim [26], [33].
The plaintiff and defendant are brothers. The defendant, together with his parents as joint tenants, was registered proprietor of the Coronation Road Property from August 1968 until 2010. Both the parents have died; the father on 9 January 2010 and the mother on 31 July 2011.
The plaintiff's claims are founded on promises said to have been made to him by his parents over a period of about 18 years from about 1992 until 2010.[9] On the faith of those statements, the plaintiff pleads that he contributed his labour and made financial contributions to maintaining and improving the Coronation Road Property.[10] Detailed particulars of the labour and financial contributions are in annexure A, which is ten pages in length. The plaintiff pleads that he acted to his detriment in reliance on these promises in various respects.[11]
[9] Statement of claim [13].
[10] Statement of claim [14].
[11] Statement of claim [22].
The father died on 9 January 2010. By transfer dated 13 May 2010 and registered on 20 October 2010, the mother transferred her interest in the property to the defendant for a consideration stated as being 'love and affection of the transferor for the transferee'.[12]
[12] Statement of claim [18]; Amended Defence [29].
By 20 October 2010, the defendant was the sole registered proprietor of the property.[13]
[13] Statement of claim [20(c)].
Although not expressly pleaded, it is necessarily implicit in this that a survivorship application was lodged by no later than 20 October 2010 relating to the interest of the father, which had passed by survivorship to the mother and the defendant.
Paragraph 25 of the statement of claim pleads that:
At all material times from 1992 onwards the defendant was aware and/or had constructive knowledge of and/or has become aware that:
(a)between the years of 1992 and 2010 the plaintiff had made significant contributions to the Coronation Road Property, incurred expenditure and devoted considerable time and effort to improving and managing the Coronation Road Property;
(b)upon dissolution of the partnership with his parents, and the payments to him of his partnership benefits in 1977, he no longer held an entitlement to claim an interest in the Coronation Road Property;
(c)[the parents] had said to the plaintiff that the plaintiff would inherit the property and that in reliance thereon the plaintiff had made the contributions pleaded in paragraph (a) hereof.
The defendant's application
The defendant seeks an order that the following question of law be tried by the court as a preliminary issue in the action:
Assuming, for the purposes of the determination of this question of law and not otherwise, the facts pleaded in paragraphs 1 to 22, 24, 25 and 28 to 32 of the statement of claim herein, whether, upon the defendant becoming the sole registered proprietor of the Coronation Road Property as defined in the statement of claim pursuant to the provisions of the Transfer of Land Act 1893 (WA), the defendant holds his estate or interest in the Coronation Road Property free of any estate or interest of the plaintiff as claimed in the statement of claim.
In essence, the defendant wishes to ventilate, as a preliminary issue, his contention of law that, even if the plaintiff succeeds entirely in proving the facts he has pleaded, the plaintiff's claim will fail on the ground that it is defeated by the indefeasible registered title of the defendant.
The disposition of the application
In accordance with the principles already outlined, the starting point is that the whole of an action should be determined at one time, and a trial of a separate issue should only occur where its utility, economy and fairness is clearly demonstrated. For the reasons that follow, I consider this is such a case.
The amount at issue in the proceedings is $720,000.
A trial of the action as a whole will involve evidence ranging over 18 years of farming and family financial and personal relationships. It will also involve expert evidence on agricultural practices and associated costs. Counsel for the defendant estimates the trial will be approximately eight days in duration. The plaintiff refers to the trial being approximately five days in duration.[14]
[14] Plaintiff's further outline of submissions 22 September 2014 [7], [63].
By contrast, the question of law proposed by the defendant is a crisp question to be determined on the basis of the facts asserted by the plaintiff in the statement of claim, possibly supplemented by limited factual material relating to details of the registered proprietorship of the Coronation Road Property. It is a question which would require only one day to be heard.
If the question of law is determined in favour of the defendant, that will dispose entirely of the action. However, if the plaintiff succeeds, the action must proceed to a trial. The latter is a consideration militating against a trial of the separate issue.
By definition, at this stage the court cannot predict the outcome of the trial of the preliminary question of law. Notwithstanding the uncertainty as to whether it will obviate the need for a trial of the whole action, in my view, viewed in the context of this case, the potential for the trial of this preliminary question to save significant costs and time for all parties, and for the court, justifies a trial of this question of law as a preliminary issue.
The defendant contends that his indefeasible registered title inevitably defeats the plaintiff's claim. If that contention proves to be correct it will have been in the plaintiff's interests that that is established, avoiding the trial of the whole action. Further, resolution of this contention will not require a long period of time. Thus if the defendant's contention is rejected, the delay to the progress of the action will have been relatively limited.
The plaintiff has filed two written outlines of submissions in opposition to a trial of the preliminary issue. Regrettably, in my respectful view, much of the plaintiff's submissions reveal a misunderstanding of the nature of this application and of what is involved in the preliminary question proposed by the defendant. Of course, in circumstances where the plaintiff is self‑represented, it is entirely understandable that he might not appreciate the procedural and legal nuances of what is involved.
The plaintiff submits that the transfer of the Coronation Road Property should not be viewed as a single transaction in isolation.[15] In my view, the preliminary question of law proposed by the defendant does not involve viewing any transaction in isolation. To the contrary, the transfer to the defendant of the interests of his parents in the Coronation Road Property will be viewed in the context of all the facts pleaded in the statement of claim which, for the purposes of the preliminary question of law, are assumed to be correct.
[15] Plaintiff's outline of submissions 3 September 2014 [10]; Plaintiff's further outline of submissions 22 September 2014 [7].
Under the heading of 'Brief History' the plaintiff's submissions set out considerable factual assertions about events concerning the property and the various members of the family.[16] These factual assertions do not address the question of whether the preliminary issue should be ordered.
[16] Plaintiff's further outline of submissions 22 September 2014 [8] ‑ [59].
The plaintiff submits that to have a separate determination will prejudice his case in that items yet to be discovered by the defendant might be capable of affecting the answer to the question of law now being determined.[17] I do not accept that submission. The proposed question of law will be determined on the basis most favourable to the plaintiff, namely the assumed truth of everything pleaded by the plaintiff.
[17] Plaintiff's further outline of submissions 22 September 2014 [69].
The plaintiff submits that determination of the preliminary question of law will require the court to make credibility findings about the defendant and any witnesses the defendant calls.[18] That is not so. The preliminary question of law will be determined on the basis of the facts alleged in the statement of claim. As the court will not be required to make any findings of fact, the defendant will not adduce evidence, and so the credibility of his witnesses will not be in issue.
[18] Plaintiff's outline of submissions 3 September 2014 [17].
I am satisfied that the preliminary question proposed by the plaintiff is in an acceptable form, notwithstanding that it involves the assumption, not agreement or proof, of facts in the statement of claim.[19]
[19] See Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 [53] quoting Jacobson v Ross [1995] 1 VR 337, 341; see also Bass [50],[52]; Barreto v McMullan [2014] WASCA 152 [55], [165].
Conclusion
For these reasons I would made the order proposed by the defendant.
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