Zhou v Koh - [2024] SADC 152

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ZHOU v KOH
[2024] SADC 152
Judgment of her Honour Judge Deuter
21 November 2024
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES
The Applicant seeks damages in defamation relating to the publication, on four occasions, by the respondent of a defamatory article involving another person (Mr Liu), and her relationship with him. In separate proceedings Mr Liu also sues the respondent in defamation. He only relies on two publications.
The applicant has made application to consolidate her proceedings with Mr Liu's proceedings. Alternatively, she seeks orders that there be a preliminary trial on the issues in common between the two actions and/or the two actions be Judge managed concurrently.
Held:
(1) that the proceedings should not be consolidated with the proceedings involving Mr Liu;
(2) the application for a joint preliminary trial on each action is refused.
Consideration of what is required for the consolidation of proceedings and for the listing of a joint preliminary trial involving different proceedings.
Limitation of Actions Act 1936 s 37, referred to.
Haddad v Nationwide News Pty Ltd; Cheikho v Nationwide News Pty Ltd (No 2) [2014] NSWSC 775; Cameron v McBain [1948] VLR 245; Buckley v Herald and Weekly Times Pty Ltd (2009) 24 VR 129; Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 2) [2011] SASC 92; Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699; Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97; Ong v Little Company of Mary Health Care Ltd & Anor [2024] SASC 99; Idoport Pty Ltd v National Australia Bank [2000] NSWSC 1215, considered.

ZHOU v KOH
[2024] SADC 152
Introduction

The applicant (Ms Zhou) seeks damages in defamation relating to, the publication of a defamatory article (the Article), by the respondent (Mr Koh) on four occasions. The publication of the Article occurred on 2 March and 26 March 2021. The proceedings were commenced on 25 March 2022 (the Zhou proceedings).[1]
[1] FDN 1.
Earlier proceedings in defamation were commenced by Mr Liu Yu (Mr Liu) on 1 March 2022. These relate to the publication of the Article by Mr Koh in WeChat groups on 2 March 2021 and 26 March 2021 (the Liu proceedings).[2]
[2] CIV-22-002072.
Ms Zhou has made application to consolidate her proceedings with the Liu proceedings.[3] Alternatively, she seeks orders that the two actions be judicially managed concurrently; or that there be a preliminary trial on the synonymous issues between the two actions.
[3] FDN 42.
The application for consolidation is opposed by Mr Koh, as respondent in each action. It is also opposed by Mr Lui and his counsel, who with the leave of the court, attended upon the argument as an interested party.
Conclusion
I dismiss the application in FDN 42 whereby Ms Zhou seeks an order that this action be consolidated with the Liu proceedings, or that there be a preliminary trial on issues in common between the two actions.
I will hear the parties further regarding the remaining orders sought in FDN 42, including whether the actions should be managed concurrently by the same judicial officer.
I set out my reasons below.
Background and Claims
The parties are all involved with the Overseas Chinese Association of South Australia (OCA). The OCA is an incorporated association with approximately 600 members. The respondent in both actions, Mr Koh, was the President of the 21^st executive of OCA between May 2018 and August 2020. Ms Zhou was a member of OCA and Mr Liu consulted to OCA.
Both Ms Zhou and Mr Liu claim that they were defamed by Mr Koh by the publication of the Article in WeChat Groups. The nature of the publication and defamation is however different for each applicant.
(i)Mr Liu’s claim
Mr Liu claims that he was defamed by two publications. The first publication was posted in a WeChat group platform on 2 March 2021. In this Article it was alleged that, Mr Liu had been convicted by the Tianjn Court for breach of trust, amongst other matters. The Article is alleged to have been posted to a private WeChat Group with 152 members using Mr Koh’s WeChat login (First WeChat Group).
On 26 March 2021, the Article was re-posted in a different WeChat group again allegedly using Mr Koh’s WeChat login. The article was posted to approximately 405 members (Second WeChat Group).
Mr Liu alleges that the article conveyed multiple false and defamatory meanings concerning him and his behaviour. In particular, behaviour designed to gain control of the OCA for him and his (alleged) mistress, Ms Zhou. It is pleaded that Mr Koh had referred to Mr Liu by name, and claimed he had left his wife for an affair with Ms Zhou; and as a result he was an immoral and corrupt person, using his connections for personal gain.
Mr Liu claims loss and damage that includes the impact of further dissemination in two further WeChat groups; communication between OCA members regarding material in the publication; and communication with immigrants from Asian countries. He pleads that his claim in damages therefore must include this ‘Grapevine Effect’.
(ii) Ms Zhou’s claim
Ms Zhou claims she was also defamed by the content of the Article. In her pleadings, she alleges that the Article was published on four occasions by Mr Koh as follows:
1.On 2 March 2021, when it was posted in the first WeChat Group. This is the first publication also relied on by Mr Liu;
2.On 2 March 2021, when it was published in a WeChat group named OCA Chinese Schools Parents Group with approximately 462 members (Second WeChat group).
3.On 2 March 2021, when it was published in a WeChat group, known as SA Xinjsong Combined Association with some 500 members (third WeChat group).
4.On 26 March 2021, when it was published into a WeChat group, named OSASA 22^nd members discussion group, with approximately 390 members (fourth WeChat group). Ms Zhou also claims that at the same time Mr Koh published a separate message concerning her in the fourth WeChat group (the Message).
Ms Zhou pleads that the Message defamed her by alleging that she had a criminal record. In relation to the Article, she pleads 15 defamatory imputations including that she:
-had sexual relations with Mr Liu and a second man Brother X. As a result she had destroyed families;
-had a criminal record;
-attacked members of the OCA because she could not provide a police clearance;
-betrayed her best female friend;
-stole tuition fees from OCA;
-interrupted OCA’s operations; attacked its 21^st committee; and may abscond with the sale proceeds of the sale of their assets.
Damages are claimed for loss and damage caused by the fourth publication of 26 March 2023 including the grapevine effect. Ms Zhou also seeks aggravated damages.
Ms Zhou commenced her proceedings on 25 March 2022. As a result, she cannot rely upon any of the first, second or third publications of 2 March 2021 in her claim for defamation. The one‑year time limit for her to issue proceedings claiming damages resulting from those publications had expired.[4] However, in an affidavit filed by Ms Zhou’s solicitor, Benjamin Johns, (the Johns Affidavit)[5] it was said that the first three publications are still relevant to her claim for aggravated damages. This is disputed by Mr Koh. It is not a matter I have to decide, beyond taking into account that at trial, Ms Zhou will seek to rely upon the three publications in a limited way, in that they were publications concerning her.
[4] Limitation of Actions Act 1936 at s37.
[5] FDN 43.
Interlocutory Application for Consolidation
The application is brought pursuant to UCR 53.1. This rule permits the Court to order consolidation of separate proceedings into one proceeding on such conditions as it thinks fit.
It is argued by Mr Zhou that there is significant factual overlap between her proceedings and the Liu proceedings, and as a result it is appropriate for the claims to be heard at the same time. The overlap is said to include that:[6]
1.the respective claims arise from the same series of publications and all involve publication of the Article;
2.Ms Zhou and Mr Liu both claim that Mr Koh was responsible for the publications, or published them himself through various WeChat groups;
3.the Article refers to and connects both Ms Zhou and Mr Liu, as it is an article about the “the two of them” and their joint activities;
[6] The Johns Affidavit at [20].
In summary, it was said that the Article overlapped each action as it dealt with:
The relationship between the parties and the factual background to the OCA election dispute; whether the Respondent wrote the Article; whether and how often he shared or posted the Article; his reasons and motivations for doing so; and whether the Article’s imputations are true, or vile or defamatory, is the common factual background of both proceedings”.[7]
[7] T30.
The application to consolidate the two proceedings was filed on 15 August 2024, over two years after the Zhou proceedings were filed. Argument proceeded on 9 October 2024. Ms Zhou, as applicant, relied upon the extensive material in the Johns Affidavit, and written submissions.[8] Mr Koh relied upon the affidavit of his solicitor, Alice Carter, (the Carter affidavit),[9] the pleadings, and written submissions.[10] Mr Liu relied upon the affidavit of his solicitor, Peter Campbell, (the Campbell affidavit)[11] and written submissions.[12]
[8] FDN 49 and Reply submissions at FDN 52.
[9] FDN48.
[10] FDN 51.
[11] FDN 47.
[12] FDN 50.
Relevant Legal Principles
The matters to be considered in determining whether two actions should be consolidated was set out by McCallum J (as she then was) in Haddad v Nationwide News Pty Ltd; Cheikho v Nationwide News Pty Ltd (No 2)[13] (Haddad).
[13] [2014] NSWSC 775.
This was a matter where there were two actions brought in defamation regarding articles in the Daily Telegraph. The articles were in relation to a protest by the Muslim community. Four men brought proceedings in respect of two articles (the Haddad proceedings). The following day, a fifth man, Chiekho, issued proceedings in respect of four articles (Chiekho proceedings). Two were the same as the articles sued upon in the Haddad proceedings, two were not. The defendant publisher applied to have the proceedings tried at the same time.
In considering the defendant’s application to have the two actions tried at the same time, before a jury, her Honour noted that there were some common questions, and that for the two articles relied on by all five plaintiffs, the imputations pleaded were the same. The Chiekho proceedings however raised two additional matters which did not concern the other four plaintiffs. In relation to the common imputations, conveyed by the same parts of the articles, McCallum J regarded it as likely perverse if there was a different answer to whether the imputation was in fact conveyed concerning each individual plaintiff.
Justice McCallum summarised the matters to be considered in exercising her discretion as follows:[14]
[13]The critical question is whether the Court should exercise its discretion to make the order in the circumstances of this case. The principles applicable in determining that issue were not in dispute. It was accepted that, apart from considering whether common questions render it convenient or desirable that two actions be tried together, an important issue is whether the order is likely to expose any of the plaintiffs to a substantial risk of real prejudice.
[14]In Cameron v McBain [1948] VLR 245, a decision of the Supreme Court of Victoria, it was noted that prior to the introduction of a specific rule (in similar terms to rule 28.5), there was no power to consolidate actions commenced by different plaintiffs. That was a case in which three passengers had all been seriously injured in the same motor vehicle collision. The Court noted that where there were different plaintiffs, the Court had no jurisdiction to bind without his consent one plaintiff in an action of tort by the decision of an issue in an action by a different plaintiff, even though it may be against the same defendant and arising out of the same transaction. The Court noted that the question whether the individual case was a suitable one for the exercise of its discretion to consolidate the proceedings was one which should be made by reference to the interests of the parties, which should not be prejudiced by the making of an order.
[15]Cameron v McBain was cited with approval by the Court of Appeal of Victoria in Buckley v Herald and Weekly Times Pty Ltd (2009) 24 VR 129. In that case, the Court stated that consolidating orders should very rarely be made and that, speaking generally, it is better to confine them to cases where several actions have been brought which might have been joined in one writ.
(emphasis added)
[14] Ibid at [13]-[15].
Her Honour ultimately found that there was a substantial risk of prejudice to the plaintiffs in the Haddad proceedings if the proceedings were tried together with the Chieko proceedings. A close examination of the two additional articles sued on by Mr Chieko suggested that the protest was a riot and that police were dealing with a home-grown Islamic terror cell. Such inflammatory material was not contained in the publications that Haddad sued upon.
Justice McCallum did however order that the two proceedings should be case managed together until one or both were ready for trial.
In Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 2),[15] White J considered the relevant factors for ordering joint trials at:[16]
[15] [2011] SASC 92.
[16] Ibid at [110].
It was common ground that the Court’s powers with respect to the control of litigation include a power to order the joint hearing of two or more actions. Quasar and Heathgate referred to the summary by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd[17] of the matters which are relevant to the exercise of the discretion to order joint trials. Besanko J listed the following matters:
[17] [2009] FCA 699 at [11].
1.     Are the proceedings broadly of a similar nature?
2.     Are there issues of fact and law common to each proceeding?
3.Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
4.Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?
5.Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?
6.Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?
7.Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
8.     Is one proceeding further advanced in terms of preparation for trial than the others?
9.Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?
I am of the view that, in exercising my discretion, I must consider:
1.whether there are common questions of law and/or fact between the two sets of proceedings;
2.whether Ms Liu or Mr Yoh will be prejudiced by consolidation;
3.whether there are practical reasons for the consolidation, including saving of time and cost; and
4.whether consolidation of these two proceedings will make them more conducive to their resolution.
The authorities suggest that the prejudice to the party opposing consolidation is of paramount consideration. This was set out clearly in the decision of Buckley v Herald & Weekly Times Pty Ltd where Nettle JA stipulated:[18]
Generally speaking, applications for the consolidation of proceedings are governed by two principles. First, as Young CJ said in Bolwell Fibreglass Pty Ltd v Foley,[19] consolidating orders should very rarely be made; speaking generally, it is better to confine them to cases where several actions have been brought which might have been joined in one writ. Secondly, as was recognised by Herring CJ in Cameron v McBain,[20] where a consolidation order is likely to expose a plaintiff to a substantial risk of real prejudice, the order should not be made.
Consideration
1. Consolidation
[18] [2009] VSCA 118 at [20].
[19] [1984] VR 97.
[20] [1948] VLR 245.
(i) Submissions
Mr Liu opposes consolidation for a number of reasons:
1.there is limited overlap between his proceedings and the Zhou proceedings;
2.the two proceedings stand alone;
3.Ms Zhou’s claim involves four publications made by Mr Koh, where Mr Liu has pleaded to only two of those publications;
4.Ms Zhou relies on the re‑publication of the Article on 26 March 2021 to plead an entitlement to aggravated damages. Mr Liu however claims loss and damage caused by both the publications on 2 March and 26 March 2021;
5.the imputations pleaded in the Lieu proceedings are significantly different to the imputations pleaded by Ms Zhou;
6.the joinder of the proceedings would cause real prejudice to him including:
·       that his proceedings would be prolonged due to delay caused by aspects of the Zhou proceedings that are not materially connected;
·       the likelihood of additional pre‑trial costs of more complex proceedings as each extra imputation pleaded by Ms Zhou must be proved, and evidence gathered to do so;
·       the evidence upon which the applicants, in their distinct claims, rely would be vastly different, including expert and lay evidence;
·       there would be a significantly longer trial which would ultimately result in further costs for Mr Lieu.
The extra trial costs Mr Liu would incur of a consolidated trial and being involved with issues not relevant to him are estimated by Mr Campbell, a very experienced defamation lawyer, at $80,000 - $100,000, including solicitor and counsel fees. This arises from an additional two weeks of trial, and additional trial preparation costs.[21]
[21] The Campbell Affidavit at [11].
Mr Campbell also submits that if the matters are consolidated, or there is a preliminary trial, that the potential for settlement would be impacted.
In argument, counsel for Mr Liu submitted that there were only two issues in common between the Zhou proceedings and the Liu proceedings. These were firstly whether the posting of the Article on WeChat constitutes publication. This issue involved questions of law and fact. The second issue is who published the Article for the first time. However, whilst this issue is common, it is also necessarily different as Ms Zhou faces a limitation of time point in relation to that publication.
The differences between the actions were argued to be substantial, and compromised by different representation for the applicant in each proceedings. It was submitted that in the proceedings before me, there was no intention to have one counsel for the two applicants. There was also no draft consolidated proceedings before the court. These are practical issues that have not been addressed, yet argued to be part of what must be considered before the court can determine any consolidation.

Whilst Ms Zhou’s counsel argued that the two applicants could negotiate who would represent them at trial, Mr Lieu’s counsel submitted that there was no intention to ‘engage in that process in these proceedings’.[22]
[22] T39.
I pause to note that it is my view that it is not for the court to expect, or insist, that the applicants compromise their legal representation. This is either by the pooling of counsel costs, or by having an applicant’s counsel leave the trial when issues not relevant to their client were being considered or explored.
Mr Liu’s counsel described the difficulty of drafting consolidated pleadings in that in the Zhou proceedings Mr Koh does not admit the translation of the Article annexed to the Statement of Claim.[23] There is no such plea in the defence in the Liu proceedings. How the factual differences, and the consequences therefore, are to be treated in consolidated proceedings, has never been addressed by Ms Zhou.
[23] FDN 6 (Revised Defence at para 13).
Mr Lieu concedes that there is a common question of fact in both sets of proceedings of whether Mr Koh was responsible for the initial posting of the Article on 2 March 2021. Mr Koh denies such responsibility in both sets of proceedings. However, it is argued that the determination of that issue will have a different impact on each applicant. Ms Zhou is statute barred from a claim in relation to the 2 March publication. The first 2 March publication is being used by her to claim aggravated damages, and that use is contested by Mr Koh. Mr Liu however sues on both the first publication 2 March and the 26 March publication. However, he does not sue on, or rely upon, the publications on 2 March in the third and fourth WeChat groups. Only Ms Zhou relies on these publications. Ms Zhou also sues upon the Message that was posted in the fourth WeChat group, which bears no relevance to the Liu proceedings.
It is argued that these factual issues lead to the two proceedings being fundamentally different, in relation to the extent of the claims being made and, what is required by each applicant to prove their claim.
Mr Liu also argues that other significant differences arise as a result of each proceeding concerning the reputation of a different person. This requires different witnesses to be called regarding that reputation, and how it has been damaged by the publication of the Article. Examples include that Ms Zhou intends to obtain psychiatric evidence to prove her damages; and that Mr Liu has engaged a forensic computer expert after argument before Judge Slattery regarding the proof of the publication. In addition, the Zhou proceedings have already been listed for trial, and whilst adjourned, are ready to be listed for trial again. The Liu proceedings are still in the discovery phase, despite being commenced before the Zhou proceedings.
Mr Koh relies upon many of the issues argued by Mr Liu in his opposition to the application for consolidation. On his counsel’s analysis, there is little in common between the two applicants’ claims, and a substantial risk of prejudice to him if the two proceedings are joined. In particular is the issue raised in the Liu proceedings as to who published the Article on 2 March. Mr Koh denies posting in the first WeChat group but admits to posting in the second WeChat group. This significant issue only relates to the Liu proceedings, as Ms Zhou is statute-barred from suing upon any publication on 2 March 2022. She however references three different publications on 2 March where as Mr Liu only relies on the one.
In relation to the imputations raised by each publication, Mr Koh agrees that these are different for each applicant. He submits that if there was a consolidated action, there would be different factual enquiries as to the interpretation of the publications as to each of Ms Zhou and Mr Liu.
Mr Koh submits that this is the same situation in relation to his defence of qualified privilege. The factual enquiry required to determine that issue is primarily directed to unreasonableness and malice. However, substantially different particulars are set out in each proceeding, and Mr Koh’s state of mind will necessarily be different in terms of the two applicants. Establishing malicious motivation to publish must necessarily be different for each applicant. In the Liu proceedings, Mr Koh pleads substantive defences of truth and contextual truth. Determining this defence will require a factual enquiry at trial that is not required in, or relevant to, the Zhou proceedings.
Mr Koh argues that he would be substantially prejudiced if the two proceedings were consolidated. Firstly, the Zhou proceedings are ready for trial/resolution, whereas the Liu proceedings are not. Consolidation therefore removes the opportunity for an early resolution of the Zhou proceedings. Secondly, Mr Koh argues that settlement of consolidated proceedings, with the many different issues between the applicants, is far less likely to occur than if the separate proceedings are negotiated.
Mr Koh’s counsel also raised issues in relation to the claims by each applicant that he acted maliciously in publishing the Article. Proof of malice will require extensive, but different, cross‑examination of Mr Koh regarding his state of mind and particularly, his intention to harm both Ms Zhou and Ms Liu. There necessarily has to be a different state of mind in relation to each applicant, as it must be proved that Mr Koh’s dominant purpose was to cause damage to each individual applicant.
(ii) Determination
As agreed by the parties, both proceedings raise several shared issues to be determined. This is not surprising given the nature of the matters addressed by the Article and its publication. The publications clearly link each of the applicants by suggesting some sort of illicit affair.
A close review of the publications finds different imputations in relation to each applicant. Of more importance is the construction of each applicant’s claim. As a result of Ms Zhou’s claim to sue on the publications of 2 March 2022 being statute barred, she has chosen to use three alleged publications of the Article published on that date as an aggravation of the damages claimed on the publication of 26 March. She also sues upon the Message as posted in the fourth WeChat group.
This is a considerably different case to that brought by Mr Liu, who has brought his claim for defamation based upon one publication on 2 March and one publication on 26 March. Mr Liu does not refer to, or rely upon, the second and third publications on 2 March relied upon by Ms Zhou, nor the Message published on 26 March. This means that if the proceedings are consolidated ,there will be a number of discrete questions only relevant to Ms Zhou. These issues are however complex, and mean that the extent of publication is much wider, than for Mr Liu.
I am of the view, on assessment of the pleadings in each proceeding, that they differ significantly as set out by Mr Koh and Mr Liu in their written submissions and their oral submissions.
In determining the application for consolidation, I take into account not only these issues, but also the principle adopted by McCullum J in Haddad that:[24]
…consolidating orders should very rarely be made and that, speaking generally, it is better to confine them to cases where several actions have been brought which might have been joined in one writ.
[24] [2014] NSWSC 775.
As in Haddad, Ms Zhou could have been made an applicant in the Liu proceedings, had the parties wanted to proceed in that way. They did not. That decision may be attributed to the vastly different issues in dispute as a result of the different publications sued upon and the proof required to successfully prosecute in defamation.
The claims were not brought together, and as I have found, the claims are markedly different. A further distinction is obviously that the assessment of damages for each applicant will not be the same. I agree with the submission of Mr Koh’s counsel that there is no commonality there, and each applicant’s distress must be proved. Evidence will be required of reputational loss and each separate and different claim of economic loss. Different witnesses will be required to prove the losses which each applicant has suffered independent of the other. Ms Zhou claims mental distress and an inability to find a partner for establishing a family. Mr Liu claims symptoms of depression for which he has required medical care. These ‘injury’ claims are different and the proof thereof, and evidence called will vary.
As a result of these matters, I am of the view that there is significant prejudice to Mr Liu in having his proceedings consolidated with Ms Zhou’s.
I accept that Mr Lieu would incur considerably higher legal fees in being involved in dealing with more complex issues that do not arise in his proceedings. The Zhou proceedings involve three additional publications, involving further matters only relevant to Ms Zhou. These suggest serious conduct on behalf of Mr Koh that is not alleged in the Lieu proceedings.
On the evidence, I am of the view that the two proceedings comprise varying issues and court resources will not be preserved, if they are consolidated. In addition, given the denial of any inappropriate relationship between them, the desire of Mr Liu to distance himself from Ms Zhou, is persuasive, especially given her reliance upon three additional publications, including the Message, that are not relevant to his proceedings.
The submissions of Mr Liu and Mr Koh have satisfied me that there is a significant risk of prejudice to all parties, especially to Mr Liu if the proceedings are heard together. I am therefore not prepared to order that the Liu proceedings and the Zhou proceedings be consolidated, and I refuse the application in FDN 42.
2. Alternative Order
In her interlocutory application Ms Zhou sought alternative orders that:
i)the two proceedings be judicially managed concurrently; or in addition, or in the further alternative,
ii)there be a preliminary trial on issues in common as between the two actions.
Both Mr Liu and Mr Koh oppose a preliminary trial. The issues to be determined in such a trial have not been clarified, and there is concern that a preliminary trial would lead to extra legal costs as each party would face multiple trials. In Mr Koh’s case this could be three trials, being the preliminary trial, followed by separate trials involving Ms Zhou and Mr Liu. He argued that this would cause significant prejudice to him.
Mr Liu and Mr Koh rely upon the recent decision of Stein J in (Ong v Little Company of Mary Health Care Ltd & Anor)[25] where her Honour considered the principles regarding preliminary or separate trials and said:
[20]The principles applicable to when a Court may order the hearing of a separate trial on distinct issues are well settled. The general rule and starting point remains that issues in contention between parties should be dealt with in a single trial and the trial process should not be unduly fragmented. The party seeking a departure from the general rule thus bears the onus to demonstrate to the Court that it is desirable for such a departure to be made on the relevant principles and the evidence before the Court. The Court’s power to order a separate trial is ultimately discretionary. Such discretion must be exercised judicially but cannot otherwise be fettered.
[21] A separate trial or the separate determination of issues should only be embarked upon where “the utility, economy and fairness to the parties are beyond question”. Consideration may be given to the ultimate object of the Rules as set out in r 1.5 of the UCR namely “to facilitate just, efficient, timely, cost‑effective and proportionate resolution or determination of the issues in proceedings”, and to the matters referred to in r 12.2(2) of the UCR.
….
[24] As commonly observed by other Courts, experience dictates that the savings of time and expense posed by the ordering of separate trials on issues are often illusory and in reality tend to lead to further costs and delay.
(citations omitted)
[25] [2024] SASC 99.
Justice Stein referred to the decision of Einstein J in Idoport Pty Ltd v National Australia Bank,[26] where he indicated that separate trials were only appropriate where the separate trial will lead to resolution of all issues between the parties, or where resolution of the separate issue will lead to resolution of the dispute between them. However, a separate trial should not be considered where:
… there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings.[27]
[26] [2000] NSWSC 1215.
[27] Ibid at [7].
Determination
The issues to be determined in a preliminary trial have not been adequately distilled by Ms Zhou. It is not for the court to determine what those preliminary issues to be decided should be. In those circumstances, I am not in a position to determine if there is any utility to a preliminary trial. There is nothing before me whereby I can determine if a preliminary trial will resolve the issues between the parties. However, upon my review of the pleadings in each proceeding, I cannot be satisfied that any separate trial would lead to an efficient and economical resolution of one, either or both proceedings.
In these circumstances, I am not prepared to commit the court and the parties to the expense of a preliminary trial. I refuse the application for a preliminary trial.
In relation to the two actions being managed by the same Judge in relation to pre-trial issues, so that they run concurrently, it was argued that this would be the most efficient use of judicial resources. I do not necessarily agree.
The two proceedings are between different parties, although with the same respondent. It is very possible that during the pre-trial hearings that matters are put to the Judge that disqualifies them from hearing the second action. This is especially the case in proceedings where all parties are well known, and in fact an alleged illicit affair is a significant issue.
If the proceedings are kept separate, then the Judge hearing pre‑trial issues in each matter is not disqualified from being the trial judge. It is my view that this could be a better use of Judicial resources. However, I am prepared to hear the parties further on this issue.
I will also hear the parties on any orders required that arise from these reasons.