Supreme Court New South Wales Medium Neutral Citation: Paul Timothy Minogue v David Jonathan Rudd [2011] NSWSC 966 Hearing dates: 22 August 2011 Decision date: 29 August 2011 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) That all issues in relation to liability in the proceedings be heard and determined separately to issues in relation to damages, pursuant to UCPR 28.2. (2) Costs are costs in the cause. Catchwords: PROCEDURE - civil - interlocutory issues - partitioning hearing - severability of issues - application that all issues in relation to liability in the proceedings be heard and determined separately to issues in relation to damages, pursuant to rule 28.2 of the Uniform Civil Procedures Rules 2005 Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037 Admiral 1 Pty Ltd v Leighton Contractors Pty Ltd [2005] NSWSC 1105 Downey v Acting District Court Judge Boulton (No 4) [2010] NSWCA 114 Dunstan v Simmie & Co Pty Ltd [1978] VR 669 Flore v New South Wales Dept of Education and Training [2006] NSWSC 1227 Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66 Idoport Pty Limited v National Bank Ltd [2000] NSWSC 1215 Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464 Perre v Apand Pty Limited (1999) 198 CLR 180 Pioneer Park Pty Limited v ANZ Banking Group Limited [2005] NSWSC 832 State of New South Wales v Lepore (2003) 212 CLR 511 Tepko Water Board Pty Ltd [2001] HCA 19 Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8 Category: Procedural and other rulings Parties: Paul Timothy Minogue - Plaintiff David Jonathan Rudd t/as Rudd & Co Constructions Pty Ltd - First Defendant John Anthony Tilden - Second Defendant DMW Carpentry Services Pty Ltd - Third Defendant Representation: B Gross QC - Plaintiff D A Lloyd - First Defendant D Hooke SC - Third Defendant Carroll & O'Dea - Plaintiff Wotton & Kearney - First Defendant Curwood Lawyers - Third Defendant File Number(s): 2008/289464 Judgment 1HER HONOUR : By notice of motion filed 13 May 2011, the plaintiff seeks an order that all issues in relation to liability in the proceedings be heard and determined separately to issues in relation to damages, pursuant to rule 28.2 of the Uniform Civil Procedures Rules 2005 ("UCPR"). 2The plaintiff is Paul Timothy Minogue. The first defendant is David Jonathan Rudd t/as Rudd & Co Constructions Pty Ltd (Mr Rudd). The second defendant is John Anthony Tilden (Mr Tilden). The third defendant is DMW Carpentry Services Pty Ltd (DMW Carpentry). The plaintiff relied on the affidavit of Emily Kathelkakis affirmed 19 May 2011. The first and third defendants opposed this application. The second defendant is not represented and consents to the separate determination. 3The plaintiff was born on 6 August 1979 in County Clare, Ireland. He is currently 32 years of age. The plaintiff completed his schooling in Ireland and is a fully qualified carpenter. In November 2003, the plaintiff came to Australia on a working holiday. He obtained employment DMW Carpentry as a carpenter performing work on various job sites. 4For the purposes of this application, I have taken the plaintiff's case as that which has been pleaded. Of course, some of the facts as alleged will be the subject of dispute at trial. 5On 12 February 2004, the plaintiff was working on a home renovation in Vaucluse, under the employ of DMW Carpentry. Mr Rudd was the head contractor on the worksite. Mr Tilden was the architectural draftsman who was employed by the owner of the property. The plaintiff alleges that he was the owners' representative. On 12 February 2004, during the course of his work the plaintiff fell a distance of almost three metres, striking his head on a concrete floor. 6There are factual issues involved in the question of liability and, if relevant, apportionments amongst the defendants and the plaintiff, for contributory negligence. They include: (a) The nature and extent of the plaintiff's experience as a carpenter and worker in the building and construction industry; (b) Whether, assuming the joist was not properly secured, that fact ought to have been observed by any party, including the plaintiff; (c) Whether the plaintiff was in an area which had been barricaded or taped off; (d) Discussions and site inspections involving the third defendant the plaintiff at the subject premises; and (e) The system of work and means of access to areas of the premises. 7As a result of the accident, the plaintiff sustained severe injuries and ongoing disabilities. Immediately after the accident he was taken to St Vincent's Hospital and remained there until 4 March 2004, when he was transferred to the Royal Rehabilitation Centre in Ryde. On 23 April 2004, the plaintiff was discharged and received outpatient treatment in Sydney until he returned to Ireland in July 2004 to continue his rehabilitation there. 8By November 2007, the plaintiff's condition had stabilised and no further improvement was considered likely. The plaintiff has sustained severe brain injury and cognitive deficits. Professor McLeod determined (report, 30 November 2007) that the plaintiff had sustained 39% whole person impairment as a result of his cerebral, emotional and behavioural impairments. 9Since July 2004 to date, the plaintiff has lived in County Clare Ireland with his father, Thomas Patrick Minogue . The plaintiff's father, siblings and friends have been providing extensive care and assistance to the plaintiff. 10The plaintiff has only been able to obtain limited amounts of work since his return to Ireland. He suffers from excessive mental fatigue and is greatly restricted in the number of hours he can work. He is unable to undertake certain tasks, such as work on ladders and at heights. The plaintiff also suffers from memory loss and headaches. He is extremely slow in undertaking any tasks. 11The plaintiff has served an expert's report on liability. The expert is New South Wales based. If the defendants elect to serve expert's reports they will also be from New South Wales. 12The plaintiff's solicitor anticipates that the hearing in respect of liability issues will take approximately two to three weeks, given the extensive factual issues in dispute, complex legal arguments and the number of witnesses who will be required to give evidence as to the events leading up to the accident. There are cross claims between the defendants and it is likely that at least two experts will be required to give evidence. The damages claim 13Dr Buckley opined (report, 6 January 2008) that the plaintiff is unemployable on the open labour market. The plaintiff will be making extensive claims in respect of economic loss, past and future care and assistance with funds management. Detailed evidence will be required in respect of such claims. The quantum claim is currently undeveloped. 14It was further submitted that if the matter proceeds to hearing in respect of damages, it is anticipated that several witnesses who reside in Ireland would be required to give evidence. Such witnesses include the following, Thomas Patrick Minogue, the plaintiff's father; Thomas Michael Minogue and Patrick Minogue, the plaintiff's two brothers; The plaintiff's sisters-in-law, Rosa Foley (married to Patrick Minogue) and Orla Foley (sister of Rosa). Orla Foley is a qualified physical and sports injury therapist who has treated the plaintiff since July 2004 and accompanied the plaintiff to Sydney to attend medical appointments in November 2007; the plaintiff's cousin, Niall Minogue, who was living with the plaintiff in Sydney shortly before the accident and has remained in contact with the plaintiff in County Clare since the plaintiff's return there; Barry Tuohy, the plaintiff's lifelong friend who was living with the plaintiff in Sydney at the time of the accident. Mr Tuohy lived with the plaintiff during his outpatient treatment after the accident and provided the plaintiff with assistance at that time. He also remains in constant contact with the plaintiff in Ireland. Eamon Cooney will also give evidence on damages; Dr McGee, the plaintiff's general practitioner, who has also provided various reports in relation to the plaintiff's treatment and progress; Tony O'Brien, the plaintiff's accountant, who has prepared the plaintiff's financial records and has also provided an opinion as to the earnings of other carpenters in the County Clare area; and the plaintiff may also require evidence from other persons who have employed him since his accident. Statements from six witnesses referred to above have previously been served upon the defendants. 15Senior counsel for the plaintiff submitted that it would be extremely costly for the witnesses referred to give evidence by video link because the hourly rate for such video conferencing is very high. Also, the witnesses live in the west area of Ireland and would probably be required to travel to an area with appropriate video conference facilities. 16According to the plaintiff, if the alternative approach were adopted, it would also be extremely costly for the witnesses to travel from Ireland to Sydney for a hearing. In addition to the witnesses from Ireland, it is possible that evidence may be required from Sydney medico-legal specialists, Dr Buckley, Professor Lance and Peter Rawling. Reports from those specialists have been served upon the defendants. 17Given the estimated costs of a hearing on liability, the plaintiff submitted that to would be onerous to have liability and damages heard together. Counsel for the plaintiff submitted that it is more than likely that once the liability issues are determined, the assessment of damages could be resolved by mediation. 18Senior counsel for the third defendant submitted that the evidence contained in the affidavit of Ms Katheklakis did not give rise to the bald assertions that the costs of a single trial in the usual way would "be too onerous for the plaintiff". However, it is common knowledge to this court that in cases of this kind where the plaintiff suffers brain injury and claims for care, fund management and the like are made, the costs of obtaining those reports is very expensive. 19Counsel then submitted that even if that is so, it was not to the point because, firstly, there are very sound reasons why the ordinary process of the court is to have only one trial; secondly, the plaintiff has chosen his forum; thirdly, the legitimate forensic interest of the defendants whom the plaintiff has chosen to sue would be prejudiced by a severance of the issues; fourthly, unless the plaintiff fails outright in relation to liability, in which case the costs savings would be self evident, as in any other such case, the usual experience is that the severance of issues extends the time ultimately required for the trial of all issues and increases the costs of the litigation by reason of that fact and the need for preparation; and fifthly, there is not evidence in this case that a severance of the issues would result in any costs savings, rather, there is every likelihood of an appeal following the first trial and the added costs, delay and inconvenience occasioned by it. 20These submissions were adopted by counsel for the first defendant. Counsel for the first defendant added that there was no guarantee that Mr Cooney would come to Sydney to give evidence. Determination of separate question 21UCPR 28.2 states: "28.2 Order for decision The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings." 22There are a number of authorities on this topic which include Tepko Pty Limited v Water Board [2001] HCA 19, (2001) 206 CLR 1 ; Perre v Apand Pty Limited (1999) 198 CLR 180 at [436]; State of New South Wales v Lepore (2003) 212 CLR 511 at [187]; Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671; and per Rolfe J in ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037. In Idoport Pty Limited v National Bank Ltd [2000] NSWSC 1215, Einstein J at [7]-[8] helpfully provides a compendium of cases upon this topic which I need not reproduce here. 23In Tepko, Kirby and Callinan JJ cautioned against the severing of issues by the court. Their Honours stated (at [168] - [171]): "168 ...we should not leave this case without making four comments. Both Mason P and Fitzgerald JA were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. 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 have, 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. 169 The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties', interests. 170 Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question. 171 The fourth of our comments is related to evidence compiled, committed to writing and filed in advance of the hearing. Parties frequently, either together or separately, compile "books of documents". Although most of these have the potential to be admitted in evidence, often they are defective in form. Many of them are often irrelevant, or their significance is either not recognised or adverted to during the hearing. Their status, as in the case of the letter written by Mr Rhodes, can be ambiguous. Discrimination and economy should be exercised by those who prepare cases in which documentary evidence is likely to be extensive and important. Those who conduct such cases should ensure that what is actually in evidence, and its relevance and significance, are clearly identified." [Footnotes omitted] 24In Pioneer Park Pty Limited v ANZ Banking Group Limited [2005] NSWSC 832 (cited in Admiral 1 Pty Ltd v Leighton Contractors Pty Ltd [2005] NSWSC 1105 at [19] per Barrett J), Einstein J rejected an application for separation of liability and quantum. Einstein J in his reasons (at [7]) said, "By far and away the most significant factor" the fact that the evidence of a plaintiff was likely to be critical both as to liability and as to damages/quantum in a number of ways. Additionally, expert evidence which both parties anticipated putting on in relation to liability was also material to any assessment of loss or damage. His Honour stated (at [8]): "... It is envisaged that the same experts would be used relating to those issues both as to liability and as to quantum. Certainly, the same or very similar expertise is required and there is obviously a substantial overlap in the ... [material] ... the experts will need to review for the purpose of addressing the liability issues on the one hand, and the quantification issues on the other. It is obviously illogical and inefficient for the experts to engage in that exercise on two different occasions. ..." 25Since these decisions were handed down the Local, District and Supreme Courts in New South Wales have been affected by the Civil Procedure Act 2005. Sections 56, 57 and 60 are relevant. 26Sections 56, 57 and 60 of the Civil Procedure Act relevantly provide: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. ... 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. ... 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute." 27In Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464, Brereton J suggested (at [6]): "While much has been said against the resolution of separate questions in Courts of high authority, nonetheless, since the (NSW) Civil Procedure Act 2005, it is my view that the Court should take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously." See also Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8. 28Recently, in Downey v Acting District Court Judge Boulton (No 4) [2010] NSWCA 114, Basten JA succinctly described the operation of the rule in the following way: "Separation of issues [12] In dealing with an application for relief pursuant to s 69 of the Supreme Court Act , this court has power to direct the determination of a particular question separately from any other question arising in the proceedings: Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), r 28.2. However, in order to exercise that power, the court must be satisfied that there are issues which are in truth severable from other issues and as to the reason why the hearing should be partitioned. ... [14] The usual basis for determining one question (or group of questions) separately from other questions arising in proceedings is that determination of the separated question (or questions) will render unnecessary determination of the remainder. That may allow for an efficient allocation of court time and prevent unnecessary expenditure by the parties, but only when the separated question has a reasonable likelihood of determining the outcome of the proceedings and where there is significant quantifiable additional expense involved in preparing for, or determining, the remaining questions. ..." 29The first and third defendants relied upon Flore v New South Wales Dept of Education and Training [2006] NSWSC 1227 and Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66. 30Flore involved a personal injury claim where the plaintiff in the course of her cookery class slipped on a wet floor and fell causing injury to her right ankle. There were two competing notices of motion, the plaintiff seeking orders that evidence be taken on commission in Rome and London, from as many as 13 (or even more) witnesses, 10 of them (or more) in Rome and three (two of them medical practitioners) in London. The defendants sought a separate determination of liability and quantum. 31In Flore , Simpson J at [30] stated: "30 Findings relevant to the plaintiff's credit - whether adverse or favourable - on a separate liability hearing could create difficulties in a subsequent trial limited to damages. This would be particularly so if the same judge were to preside over both trials, but would nevertheless be the case even if the second trial were heard by a different judge. Indeed, once findings relevant to the plaintiff's credit had been made in a liability trial, there would exist a strong argument that that judge should be disqualified from the hearing on damages: see ABB Engineering Pty Ltd v Freight Rail Corporation [1999] NSWSC 1037, per Rolfe J." 32Her Honour was satisfied that there was no prospect of commonality of witnesses on the issues of liability and quantum but the plaintiff's credit was an element common to both issues. Her Honour concluded that the defendant did not discharge the onus of establishing that a departure from the ordinary trial, that is, all issues be heard at once rather that evidence should be taken on commission. 33Eamon Cooney, who employed the plaintiff in Ireland before the plaintiff came to Sydney on his working holiday, has provided a statement (dated 1 October 2005 - Ex 3D/1). His evidence is to the effect that the plaintiff completed his apprenticeship with him. The plaintiff worked for about 4.5 years until he left for a working holiday in Australia in 2003. He also gave the plaintiff work on at least two occasions after the plaintiff returned to Ireland after his accident. 34Mr Cooney's evidence is as follows: "During the time of his apprenticeship and his employment after he qualified I found Paul to be a very careful lad and an extremely competent worker. He was a good carpenter who could be relied upon to carry out his work without a great deal of supervision. He had a good head and would not be fazed too easily. He had the ability to size up what was needed to complete it successfully. His size and strength was a big advantage to him. He was very energetic and was not frightened of hard work. In all Paul worked for us for a total of four and half years I would be happy to re-employ him at any time I had a vacancy for a competent carpenter." 35Mr Cooney goes on to provide information as to what the plaintiff earned and what he would earn at today's rates. Since the accident, Mr Cooney has employed the plaintiff on two occasions. He explained the difficulties the plaintiff now experienced at work post accident. 36It is fair to say Mr Cooney is a witness who can give evidence both on liability and damages. On 23 August 2011, the plaintiff's solicitor had a conversation with Mr Cooney. She asked him whether if his flight and accommodation expenses were paid for him, would he agree to attend court in Sydney to give evidence at the trial? He replied that he would. The plaintiff's solicitors have undertaken to pay Mr Cooney's expenses in order for him to come to Sydney to give evidence. The plaintiff's senior counsel informed this court that a full proof of Mr Cooney's evidence would be served, together with a notice to admit facts. The plaintiff says that it will seek that the defendants pay for Mr Cooney's costs associated with his travel and accommodation in Sydney if a notice disputing facts is served. It would seem that an order as to who should pay the costs of Mr Cooney's giving evidence on liability would be a matter for determination at trial. 37Each case depends on its facts. Nearly all of the evidence, including witnesses on liability, is located in New South Wales. The plaintiff has given a history to Dr Buckley that he has no memory of the accident. The plaintiff is travelling to Sydney for the liability hearing. He can give evidence and be cross examined about this and other issues in relation to liability. Mr Cooney will travel from Ireland to Sydney to give evidence and be cross examined on the issue of liability. I accept that the evidence of both these witnesses overlaps the issues of liability and quantum and they will be called upon to give evidence twice. So far as the defendant referred to choice of forums, the plaintiff had no choice but to commence his action in New South Wales. 38I accept that the separating of the issues may give rise to two appeals. In the event that the plaintiff is unsuccessful on liability there will be no need for another trial. Alternatively, if the plaintiff's case against one or two defendants is unsuccessful, it will reduce the number of parties involved in the hearing of quantum. As previously stated, the costs of preparing this case on the issue of quantum is a very expensive exercise. If the plaintiff is successful on liability, the quantum claim may settle at mediation and there may be no trial on quantum. 39So far as expense is concerned, it is my view that it would be cheaper and quicker for the liability trial to be heard in Sydney, as nearly all the witnesses are Sydney based. 40That leaves the submissions relating to the plaintiff's credit. There was nothing specific put in evidence as to the plaintiff's credit. It is not alleged that the accident did not occur, or that the plaintiff suffered less serious injuries arising from the fall. He will be here to give evidence and be cross examined. There is a slight possibility that he may subtly change his demeanour when giving evidence on liability and quantum and this may be lost if liability is heard separately. I have taken this factor into account. 41The plaintiff has discharged its onus and it is my view that the overall circumstances of this case warrant a departure from the usual situation. There should be a separate trial on the issue of liability. 42Usually on motions of this type the appropriate costs order is that costs should be costs in the cause. I make such an order. The Court orders: (1) That all issues in relation to liability in the proceedings be heard and determined separately to issues in relation to damages, pursuant to UCPR 28.2. (2) Costs are costs in the cause. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2011