New South Wales Court of Appeal CITATION: Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2009] NSWCA 440 HEARING DATE(S): 11 December 2009 JUDGMENT DATE: 11 December 2009 JUDGMENT OF: Allsop P at 1 EX TEMPORE JUDGMENT DATE: 11 December 2009 DECISION: Notice of motion is dismissed. The question of costs to be stood over until the hearing of the appeal. CATEGORY: Procedural and other rulings PARTIES: Macquarie International Health Clinic Pty Ltd (Appellant)Sydney South West Area Health Service (Respondent) FILE NUMBER(S): CA 2009/298398 COUNSEL: Mr M Einfeld QC, Mr R Dubler SC, Mr S Phillips (Appellant) Mr G Burton SC, Mr P Bruckner (Respondent) SOLICITORS: S Moran & Co (Appellant) Bolzan & Dimitri (Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 1790/00 LOWER COURT JUDICIAL OFFICER: Nicholas J LOWER COURT DATE OF DECISION: 23 July, 2008, 7 July 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2008] NSWSC 738, Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2009] NSWSC 629 Judgment 1 ALLSOP P: Before me is a motion to separate out questions in the appeal. Alternatively, in February, to stage the appeal in such a way that a defined body of issues should be heard before the balance of the appeal. 2 I do not think any particularly detailed reasons need to be given for the course I propose to take, and I will keep the reasons to a minimum, but the underlying papers, if I may respectfully say so, helpfully put together by the parties, explain the contending arguments. 3 I have come to the view, not without some reluctance I should say, to dismiss the motion. 4 The reluctance is based on a prima facie view that there was some merit in attempting in a way that was not too risky to stage in tranches the hearing of what would otherwise be a significant factual appeal. 5 However, I think looking at the matter in the round, as it were, and taking a cautious view as to what can go wrong in these kinds of matters where separation occurs, I think it would be wisest not to separate out issues. 6 That being the case, the next question is whether the appeal should be staged in a way that ensures that preparation only occurs when it has to. The list of the Court is such that the Court can accommodate an all-issue appeal in March. That, in the ordinary course, with current procedures, would lead to the judges dealing with the matter being given sufficient time promptly after the appeal to write the appeal judgments. 7 I am, therefore, confident as far as I can be that if the appeal is heard in March, parties, with all likelihood, would have their Court of Appeal judgment by the end of June, if not sometime in mid July. 8 In those circumstances the advantages of a staged appeal are somewhat attenuated. 9 As I said I have some attraction to the staged appeal, but on listening to all the arguments I think the risks of separation and extension of the overall hearing time of the case, should various eventualities occur in terms of any appeal from a Court of Appeal decision, make the risks sufficiently strong to balance against the more adventurous course of staging the hearing of the appeal. 10 That said, I do not propose to make an order for costs of the appeal. 11 What I propose to do, in particular in the light of two facts, is to adjourn the question of costs of the motion to the Appeal Court. 12 Two reasons I do that are: first, as presently advised I will be a member of the bench. Secondly, even if I were not, the appeal bench would be in a good position, indeed perhaps a better position than I am today, to come to a view conclusively on the utility of the separate issue suggestion. 13 What I mean by that is as follows. The arguments for and against this suggestion for staging the appeal according to issues before me today, as I have said, have been clearly illuminated in the short clear written submissions. The debate was in short compass today and once again succinctly put by senior counsel on both sides. 14 The Appeal Court will be in a very good position, it seems to me, perhaps well before the appeal is completed to come to a view one way or the other about the doubts that have been thrown up about the utility of the mechanism suggested. I will refer in particular to how other matters will be argued that are said to detract from the utility of a separate hearing. 15 If it be the case that the matters as they are actually argued turn out to reinforce the utility of the process that was suggested it may be that, notwithstanding the motion being dismissed, an order for costs should be made conforming with the Appeal Court's views as to the utility of bringing the motion with the benefit of hindsight. 16 For those reasons I do not propose to separate out issues and the appeal will be called on for hearing in the days set aside in March. 17 I will leave the date in February not vacated until next Friday. The parties might consider whether or not there is any utility in commencing the appeal on 19 February. 18 There could conceivably be utility in both sides having an opportunity to address the Court for a period of time on that day to apprise the Court before the appeal proper in March as to arguments and other matters. 19 I am not suggesting that that would necessarily be a helpful course. It may be a waste of time and a waste of funds. 20 However, the parties might like to consider, given that they have the luxury of that additional day, whether or not the appeal should be called on for hearing on that day for one day to allow the parties, or the one party, to take advantage of preparing the Court, as it were, through preliminary address, which may conceivably make the despatch of the appeal in March easier and more expeditious in some fashion. 21 For those reasons I will dismiss the motion and stand over the question of costs of the motion to the Court hearing the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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