JUDGMENT No. wurde dol cS. CATCHWORDS Practice and Procedure - Trial - Mode of trial - Discretion to order separate trials as to liability and damages. Federal Court Rules, Order 29 rule 2 15 SEP 1995 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY rae" Polskie y. Electric Furnace Co Ltd (1956] 1 WLR 562; [1956] 2 All ER 306 Emma Silver Mining Co v. Grant (1879) 11 Ch D 918 Coenen v. Payne [1974] 1 WLR 984; [1974] 2 All ER 1109 Dunstan v. Simmie & Co Pty Ltd [1978] VR 669 Marks v. Chief Constable of Greater Manchester Police, Times Law Reports 28 January MICHAEL JOHN ARNOLD vy. ATTORNEY-GENERAL FOR THE STATE OF VICTORIA and THE STATE OF VICTORIA VG 629 of 1995; ROSS FREDERICK BETTS v. THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA and THE STATE OF VICTORIA VG 630 of 1995; JOHN BRUCE BINGEMAN_v. THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA and THE STATE OF VICTORIA VG 631 of 1995; RICHARD JOHN BOWMAN v. THE ATTORNEY- GENERAL FOR THE STATE OF VICTORIA and THE STATE OF VICTORIA VG 632 of 1995; LYN ROSS BOYES vy, THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA and THE STATE OF VICTORIA VG 633 of 1995; MICHAEL JOHN CROYLE v. THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA and THE STATE OF VICTORIA VG 634 of 1995; PAUL JULIAN MULVANY_ v. THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA and THE STATE OF VICTORIA VG 635 of 1995; MICHAEL JOHN GREY GORTON v. THE ATTORNEY- GENERAL FOR THE STATE OF VICTORIA and THE STATE OF VICTORIA VG 636 of 1995; PETER BARRY HARDHAM v. THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA and THE STATE OF VICTORIA. VG637 of 1995 COURT: Sundberg J PLACE: Melbourne DATE: 8 September 1995 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN: AND: AND: ) ) No VG 629 of 1995 ) MICHAEL JOHN ARNOLD Applicant THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA THE STATE OF VICTORIA Respondents No VG 630 of 1995 BETWEEN: AND: AND: ROSS FREDERICK BETTS Applicant THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA THE STATE OF VICTORIA Respondents No VG 631 of 1995 BETWEEN: AND: AND: JOHN BRUCE BINGEMAN Applicant THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA THE STATE OF VICTORIA Respondents No VG 632 of 1995 BETWEEN: RICHARD JOHN BOWMAN Applicant AND: THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA AND: THE STATE OF VICTORIA Respondents No VG 633 of 1995 BETWEEN: LYN ROSS BOYES Applicant AND: THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA AND: THE STATE OF VICTORIA Respondents No VG 634 of 1995 BETWEEN: MICHAEL JOHN CROYLE Applicant AND: THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA AND: THE STATE OF VICTORIA Respondents No VG 635 of 1995 BETWEEN: PAUL JULIAN MULVANY Applicant AND: THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA AND: 'THE STATE OF VICTORIA Respondents No VG 636 of 1995 BETWEEN: MICHAEL JOHN GREY GORTON Applicant AND: THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA AND: THE STATE OF VICTORIA Respondents No VG 637 of 1995 BETWEEN: PETER BARRY HARDHAM Applicant AND: THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA AND: THE STATE OF VICTORIA Respondents ORDER Each of the above proceedings be tried at the same time. 4. 5. Unless the Court otherwise orders, the evidence of all witnesses at the trial be given by affidavit, subject to the right of an opposing party to require a deponent to attend for cross-examination. The affidavits be provided in accordance with the following timetable: (a) each applicant file and serve on the respondents, on or before 13 October 1995, the affidavits on which he proposes to rely at the trial; (b) the respondents file and serve on each of the applicants, on or before 17 November 1995, the affidavits on which they propose to rely at the trial; (c) each applicant file and serve on the respondents, on or before 1 December 1995, any affidavits in reply. The directions hearing be adjourned to 7 December 1995. The costs of the applications be reserved. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION ) ) ) BETWEEN: AND: AND: No VG 629-637 of 1995 MICHAEL JOHN ARNOLD and OTHERS -Applicants THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA THE STATE OF VICTORIA Respondents REASONS FOR JUDGMENT COURT: Sundberg J DATE: 8 September 1995 PLACE: Melbourne SUNDBERG J: Background The Accident Compensation Tribunal was established by the Accident Compensation Act 1985 (Vict.). On 19 November 1992 the Accident Compensation (Workcover) Act 1992 (Vict.) was enacted. Section 64 of that Act, which came into operation on 1 December 1992, declared that on that day the Tribunal ceased to exist, the office of member of the Tribunal was abolished, and the appointments and commissions of members of the Tribunal were revoked. The claims In February 1993 a number of persons who had been members of 'the Tribunal before its abolition commenced proceedings in the Supreme Court of Victoria against the State of Victoria and its Attorney-General, The plaintiffs' Amended Statements of Claim are in substantially common form, and I will take Mr. Arnold's as the example. In the first part (pars. 1 to 16) he alleges that he was a member of the Tribunal immediately before its abolition and was designated as a judge thereof, that 'the Tribunal was a court exercising part of the judicial power of the State of Victoria, and that as a judge of the court he had the status of a judge of the County Court of Victoria and held office during good behaviour until attaining 70 years of age. He then alleges the existence of a convention that on the termination of the existence of a court provision is made for the continuity and security of tenure of its judges.in equivalent judicial office (par.8). Paragraphs 8A and 8B were inserted by an amendment made in May 1995. They are as follows: 8A. The system of government adopted and continued by the Commonwealth Constitution for the Commonwealth and the Australian States necessarily requires for the efficacy and integrity of that system of government that: (a) the principle of the separation of judicial power be recognised and respected by the Executive Government and Parliament of each of the Australian States; and (b) the independence of the courts and judges of each of the Australian States should be protected against legislative and executive interference; and there is implied in the Commonwealth Constitution an underlying principle that the Executive Government and Parliament of each of the Australian States must not act inconsistently with that requirement. 8B. It is an essential element of the underlying constitutional principle referred to in paragraph 8A that the independence, continuity and security of tenure of the judges of the Court of a State should not be abrogated or diminished by the Parliament or by the Executive Government of that State. The pleading then alleges that no law of the Parliament provided for the continuation of the plaintiff's office as a judge, for his appointment to an equivalent office, or for the payment of salary equivalent to that attached to his office. Then it is said that in terminating the existence of the Tribunal without providing for those matters, the Parliament of Victoria exceeded its legislative powers, abrogated a fundamental element of the system of government established by the Victorian constitution (namely the independence and security of the judiciary in Victoria), and infringed the underlying constitutional principle referred to in paragraphs 8A and 8B, and that the 1992 Act is to that extent invalid. The second part of the pleading (pars.17 to 22) claims that the State represented to and promised the plaintiff that if he were to accept appointment as a judge of the Tribunal he would hold office until he attained the age of 70 years, would be paid the same salary and have the same status as a County Court judge, and that his appointment would not be terminated except by the Governor with the advice of the Executive Council on an address of both Houses of Parliament on the ground of misbehaviour. Then it is alleged that there was an agreement between the State and the plaintiff which had terms to the same effect as those representations and promises, and further that the plaintiff entered into the agreement in consideration of them, and that the State thereby warranted to the effect of the representations and promises. The termination of the plaintiff's appointment on 1 December 1992 constituted a breach of the agreement and the warranties asa result of which the plaintiff has suffered loss and damage. oe The third part of the pleading (pars.23 to 31) alleges that in reliance on' the representations referred to above the plaintiff gave up his former employment and accepted appointment as a judge of the Tribunal. It is then said that the State is estopped from acting contrary to the representations, and is obliged to avoid the detriment the plaintiff would suffer from the State acting contrary to the representations by procuring the plaintiff's appointment to an office equivalent to that of judge of the Tribunal, and by compensating him for the detriment he has suffered. The fourth part of the pleading (pars.32 to 51) alleges that the plaintiff had a number of "legitimate expectations": that his appointment would not be terminated except by the Governor on the address of both Houses, that if the Tribunal were abolished he would receive an equivalent appointment or compensation in lieu, and that he would be accorded procedural fairness in the Executive's consideration of his appointment to an equivalent office or the payment of compensation. It is next contended that in recommending to the State that the plaintiff not be appointed to the County Court or the Administrative Appeals Tribunal (i.e. to an equivalent office), the Attorney took into account certain matters that were adverse to the plaintiff and did not afford him an opportunity to be heard. Then it is maintained that in making the recommendation the Attorney failed to take into account relevant considerations, and that the recommendation was so unreasonable that no reasonable person could have made it. Similar claims are made in relation to the State's decision not to appoint the plaintiff to the County Court or the Administrative Appeals Tribunal. The. consequence of the foregoing is said to be that the recommendation and decision are void, that the Attorney is obliged to recommend, and the State to procure, the plaintiff's appointment to equivalent office and/or the payment to him of compensation, or, alternatively, that the Attorney and the State are. obliged to consider appointing the plaintiff to equivalent office and/or paying him compensation, and to accord him procedural fairness in that connection. The above is not a complete description of the lengthy Amended Statement of Claim (particularly the administrative law claims), but it is sufficient for present purposes. The claim to relief Under the first part of the pleading the plaintiff claims declarations that the relevant parts of the 1992 Act are invalid and that the provisions of the 1985 Act remain in force, with the consequence that he still is a judge of the Tribunal. Under the second part he claims damages for breach of contract and breach of warranty. Under the third part he claims a declaration that the defendants are obliged to procure his appointment to an equivalent office, and an order that the State compensate him for the detriment suffered. Under the fourth part he claims declarations that the Attorney's recommendation that he not be appointed to an equivalent office, and the State's decision not so to appoint him, are void, and a declaration that the defendants are obliged to appoint him to an equivalent office and to pay him compensation for loss of office. Alternatively, he claims a declaration that the defendants are obliged to consider his appointment to an equivalent office, and the payment of compensation, and in relation thereto to accord him procedural fairness. Defence The defendants have not pleaded to the Amended Statement of Claim, though they pleaded to the Statement of Claim before its amendment. The only material difference between the two documents is that the later one contains paragraphs 8A and 8B. Apart from admitting certain formal matters relating to the relevant legislation and the nature of the Tribunal, the Defence denies most of the relevant allegations, and also pleads that the Statement of Claim does not disclose any cause of action. Cross vesting By order of Southwell J. made 27 June 1995 each of the actions was transferred to this Court under s.5(1)(b)(ii) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vict.). The present application At the first directions hearing in this Court the parties agreed upon orders that the cases be tried at the same time and that evidence be on affidavit. But the respondents did not agree with the applicants' submissions that the trial of the proceedings be split into two parts, the first involving the validity of the relevant parts of the 1992 Act and the respondents' liability to the applicants, and the second the appropriate relief to be granted if the respondents are found liable. Order 29 rule 2 The Court is empowered by 0.29 r.2 to make orders for "the decision of any question separately from any other question". Questions of liability and damages will usually be tried together, but when it is just and convenient to order separate trials of those questions the court will do so: Coenen v. Payne [1974] 1 W.L.R. 984; [1974] 2 All E.R. 1109. Before an order is made there should be on the pleadings a clear line of demarcation between issues bearing on liability and those bearing on quantum: Polskie v. Electric Furnace Co. Ltd. [1956] 1 W.L.R. 562; [1956] 2 Ali E.R. 306. It was put by the respondents that there had to be some exceptional reason before a case involving liability and damages would be split. That poses too high a test, though until Coenen v. Payne in 1974 the practice under the comparable English rule was that a split would be granted only in "exceptional and extraordinary cases". See Coenen's Case, supra, at p.988. But in that case this strict test was discarded in favour of the more robust and less restrictive "just and convenient" test. Cf. however Marks v. Chief Constable of Greater Manchester Police, Times Law Reports 28 January 1992 (Court of Appeal). Accordingly, while an applicant has the onus of persuading the court to order a division, it is sufficient if it is shown that considerations exist which make it just and convenient to do so. The case, for a split In support of separating the issues of liability and quantum the applicants contended that court time might be saved were that separation to occur. The applicants' claim with respect to liability might fail, and quantum would never have to be determined. It was said by the applicants that without a split the hearing on liability would take between seven and ten days, and that another five days would be consumed dealing with quantum. It was emphasized that the applicants are private individuals, and that it is desirable to diminish the financial burden the proceedings impose on them, especially 'since there is.a considerable public interest element in the cases. Conclusion I do not think the applicants have made out a case for separating quantum from validity and liability; it cannot be said with assurance that this would be "just and convenient". Each of the applicants will have to give evidence about formal matters and about the representations that were made to him, and will be cross-examined at least about the representations. Rather than deferring their evidence about loss and damage for another time, it seems more convenient for each of the applicants to give the whole of his evidence at the one time and for him to be cross-examined once. I do not think any plaintiff's quantum evidence will be lengthy. He will presumably say what he was earning before his appointment, what he has earned since the abolition of the Tribunal, and what his expectations are for the future. Those who have returned to the bar might want to call their clerks to support their predictions. Expert evidence from an actuary might be necessary. It is difficult to see that evidence taking five days. It may be that at the hearing the trial judge will think it convenient, by reason of the way proceedings have developed, to hive off questions of quantum. But to do that now, on the ground that it might shorten proceedings and thus save the parties costs, would be an exercise of guesswork on my part. In any event, saving time and cost is not the only consideration. At least where the case for a split is not obvious, other considerations must be taken into account. These include the inconvenience to the parties and the Court of a break in proceedings, probably for a lengthy period. These cases raise profoundly important issues of State constitutional law and important administrative law issues as:they. apply in a State executive context. It may take the trial judge quite some time to prepare a judgment which does justice to these issues. The starting point of the applicants' case for a split was that if they were to fail on liability, the Court would not have to hear evidence and submissions. on quantum,.and this; would reduce the cost of the proceedings. That possible saving is not in my view sufficient to outweigh the inconvenience incident upon splitting the case in the event that the applicants succeed on liability with the result that quantum issues have to be dealt with. For the foregoing reasons I do not propose to accede to the applicants' submissions that the going Pp PP: trial proceed in the two stages they propose. The applicants also sought orders that the parties' submissions on questions of law on the issues of validity and liability be exchanged in accordance with a timetable running from the close of that relating to the affidavits. I think it premature to make such an order, especially in relation to liability. _The applicants can renew this part of their application at the directions hearing following the completion of the exchange of affidavits. I will order that the cases be tried at the same time, and that evidence be given by affidavit. I propose to order in each case that the affidavits be filed and served as follows: the applicant's on or before 13 October 1995, the respondents' on or before 17 November 1995, and any in reply by the applicant on or before 1 December 1995. I will adjourn the matters to the directions hearing on 7 December 1995. - I certify that this and- the preceding 9 pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg 8 September 1995 Counsel for the Applicants: Solicitors. for the Applicants: Counsel for the Respondents: Solicitors for the Respondents: Date of Hearing: Place of Hearing: Date of Judgment: A M North QC, P Hanks and M Young Ryan Carlisle Thomas "'D Graham QC, Solicitor-General for the State of Victoria, and M Sloss Victorian Government Solicitor 29 August 1995 Melbourne 8 September 1995