District Court New South Wales Medium Neutral Citation: Casey v Hart & Hart v Casey [2016] NSWDC 317 Hearing dates: 28 October 2016 Date of orders: 25 November 2016 Decision date: 25 November 2016 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: (1) Pursuant to UCPR r 28.2, the question of primary liability is severed and listed as a separate question for determination prior to the hearing of the remainder of the proceedings; (2) The orders sought in the Notice of Motion filed by the Plaintiff Casey, in paragraph [1] and in the Amended Notice of Motion, by the Plaintiff Hart in paragraphs [1](a) – (c) are declined; and (3) The Plaintiffs are to pay the Defendants' costs. Catchwords: APPEARANCES AND REPRESENTATION – separate representation of parties in interests as Plaintiff and Defendant – disapproval through costs orders – power of Court to restrain compulsory third party insurer from acting in the interests of insured Defendant PRACTICE AND PROCEDURE – separate question for determination prior to hearing of the remainder of proceedings – power of Court to control proceedings Legislation Cited: Civil Procedure Act 2005 (NSW) s 62 Evidence Act 1995 (NSW) s 26 Motor Accidents Compensation Act 1999 (NSW) s 77, 78, 79, 81, 87, 119 Uniform Civil Procedure Rules (NSW) rr 6.1, 6.9, 6.32, 7.8, 28.2 Cases Cited: Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125 Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356 GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 Grimwade v Meagher & Ors [1995] 1 VR 446 Hodgson v Crane (2002) 55 NSWLR 199; [2002] NSWCA 276 Newcastle City Council v GIO General Limited (1997) 191 CLR 85 Roth v RTA & Ors [2009] NSWSC 295 Southwell v Bennett [2010] NSWSC 1372 Tan v Mitchell [2006] NSWCA 178 Van Eeden v Henry (2005) 62 NSWLR 301; [2005] NSWCA 14 Category: Procedural and other rulings Parties: Ms Beverley June Casey Mr Sidney Robert Hart Representation: Counsel: Mr E Romaniuk SC with Mr M Eirth (for the Plaintiff, Casey) Mr S Harben SC (for the Defendant, Hart) Mr T Hickey (for the Plaintiff, Hart) Mr A Stone SC (for the Defendant, Casey) Farrell Lusher (for the Plaintiff, Casey) Moray & Agnew (for the Defendant, Hart) Commins Hendricks Solicitors (for the Plaintiff, Hart) McInnes Wilson (for the Defendant, Casey) File Number(s): 2012/61701; 2013/197636 Publication restriction: Nil Judgment 1. Before the Court are two notices of motion, being: 1. One filed by the Plaintiff, Beverly June Casey, [1] in 2012/61701; and 2. One filed by the Plaintiff, Sidney Robert Hart, [2] in an amended form, in proceedings 2013/197636. 1. These proceedings relate to a single vehicle motor accident said to have occurred on 22 May 2011, in which the Plaintiff in each instance, asserts that they were the passenger. Ms Casey was the owner of the vehicle, and QBE Insurance (Australia) Limited ("QBE") was the compulsory third party insurer at the relevant time. 2. Consequent to the accident, I was informed without objection, that both Ms Casey and Mr Hart have been accepted as permanent members of the Lifetime Care and Support Scheme. [3] 3. QBE has engaged two different firms of solicitors to enter appearances and conduct proceedings on behalf of the named Defendant in each of the Casey and Hart proceedings. 4. The motion brought by Casey as Plaintiff, seeks orders in both proceedings, pursuant to UCPR 6.9, 6.32, and 6.1 and in the following terms:- 1.1 The Defendants in the Casey proceedings, and the Hart proceedings, not be entitled to be represented by solicitors and counsel, engaged by the compulsory third party insurance of the motor vehicle, registration number AZ 07 QX; 1.2 The Notices of Appearance, filed in the Hart proceeding and Casey proceeding be treated as being of no force and effect, or alternatively, the solicitors who have entered an appearance, be required to file a Notice of Ceasing to Act; 1.3 An order that the compulsory third party insurer of motor vehicle registration AZ 07 QX, not be entitled to be joined in the proceedings under s 119 of the Motor Accidents Compensation Act 1999 (NSW) 2 Such further or other order as is necessary; 3 Costs. 1. The Amended Notice of Motion brought by Hart as Plaintiff, seeks orders identical to those sought by Casey as Plaintiff, but also seeks a further order in the following terms:- "aa An order that the question of primary liability be severed and listed for separate hearing and determination, prior to the hearing of the remainder of the proceedings." 1. In support of its motion, Casey as Plaintiff relied on an affidavit of Mr Grant Robert Gayler, sworn 19 July 2016. Tendered as Exhibit A was a s 81 notice dated 10 January 2012, on behalf of Hart as Defendant, denying fault on the basis that the police investigation failed to determine who was the driver of the vehicle. Also tendered as Exhibit B was correspondence dated 15 August 2012 and 17 September 2012, constituting a s 81 notice on behalf of Casey, as Defendant. That correspondence denies breach of duty and fault on the basis that Casey was not driving and Hart was not a passenger at the time of the accident. 2. The Defendant Hart tendered a statement from Mr Hart dated 26 March 2012, which was marked Exhibit 1. Also relied on was an affidavit of Mr Thomas Charles Lyons, sworn 9 September 2016. Mr Lyons annexed to his affidavit, two expert reports from Mr Michael Griffiths, a biomedical and mechanical engineer, dated 17 September 2014 and 3 February 2016. Plaintiffs' submissions 1. The case submitted by Mr Romanuik SC for the Plaintiff Hart and adopted by Mr Hickey for the Plaintiff Casey, was that QBE acting on behalf of the Defendants should not be entitled to what it termed as "double representation" in the form of two sets of solicitors and counsel. It contended that the position of QBE was that it sought to be entitled to be separately represented in respect of the insured aspect of its position in both aspects of the proceedings. 2. In arguing that this should not be allowed, Mr Romanuik SC relied on the decision in Van Eeden v Henry. [4] 3. Van Eeden concerned a collision between two vehicles and each Plaintiff alleged that the other driver had been negligent. However, in this instance, there was only one insured vehicle involved. 4. It was asserted that in Van Eeden, Spigelman CJ had eschewed "double representation." 5. It also contended that Van Eeden was not questioned or modified in any manner by the decision in Tan v Mitchell. [5] 6. Mr Romanuik SC sought to rely principally on the decision in Elphick v Westfield Shopping Centre Management Company Pty Ltd. [6] In that case, Young JA stated by way of obiter:- "[2] I do, however, wish to say something about the fact that the second respondent appeared by different counsel and solicitors on the cross appeal and the appeal. [3] There is no specific provision in the rules either permitting this practice or forbidding it. However, in my view it is contrary to the proper practice in this court unless the court gives leave for it to occur. [4] Some aspects of this matter are covered by the rules or the authorities or both. For instance, UCPR 7.25 makes it clear that a solicitor or his or her partner who is a party or acts for a party to any proceedings must not act for any other party not in the same interest except by leave. [5] Further, as it explains in the notes to Ritchie's Uniform Civil Procedure 7.25.5, plaintiffs must always be represented by the same solicitor: Herbert v Badgery (1893) 14 LR (NSW) Eq 321; Lewis v Daily Telegraph Ltd (No 2) [ 1964] 2 QB 601. [6] Normally this does not cause a problem though it has occurred as a problem where siblings make application under statutes allowing for the court to make provision for children out of deceased's estates. They all seek to be plaintiffs in the one action with different counsel and solicitors. That is a situation which is not permitted unless the court gives leave. The court will give leave if it considers that balancing questions of costs and the problems that might arise with a lawyer acting for conflicting interests justice requires one set of lawyers or more than one. [7] Further, the same party cannot be both plaintiff and defendant even though different interests are involved: Re Bubnich [1965] WAR 138, nor can the party be sued twice in the one action, once in his or her personal capacity and again in a representative capacity: Hardie & Lame Ltd v Chilton [1928]1 KB 663. [8] Again, the general rule is that the insured and insurer cannot have separate representation even if there are "insured" and "uninsured" elements to the claim: Carter v Marine Helicopters Ltd (1995) 9 Anz Ins Cas 61-299 at 76-347 (New Zealand High Court), applied by Einstein J in Sydney Airport Corporation Pty Ltd v Baulderstone Hornibrook Engineering Pty Ltd [2006] NSWSC 1106; 14 Anz Ins Cas 61-718 at [19]. [9] In Wilkins v Kingsley-Strack (BC 9606018, Giles CJ Comm D,12 December 1996, unreported), the plaintiffs were churchwardens of a church who had suffered a loss through theft. They sued virtually as trustees. The bank involved cross claimed against them to recover contribution on the ground that they were in breach of a duty of care owed to their church. Application was made that the churchwardens had different interests as plaintiffs and cross defendants and needed separate representation. Giles CJ Comm D said: "Normally each party's proceedings is permitted only one set of representation." His Honour then referred to a number of cases where there had been separate representation in unusual situations and the inherent power of the court to permit it appeared to have been assumed; see eg Tindle v Ansett Transport Industries (Operations) Pty Ltd (1990) 21 NSWLR 492 (CA). That was a case where a third party insurer wanted to be separately represented from the worker's compensation insurer in a personal injuries case before a jury. The court assumed the power to permit it, but ruled that it is was not appropriate in the conduct of proceedings before a jury. [10] Accordingly, the state of the law is that unless the court gives leave under its inherent power, there should not be separate representation even though, commercially speaking, a nominated party is a person behind whom different insurers stand or who is involved in more than one capacity. Furthermore, as appears from the decision in Wilkins' case, leave is not likely to be granted and full evidence must be submitted as to why an exceptional order should be made. [11] I have spent a little time dealing with this matter because it seemed to me from reading the transcript before the District Court and from hearing counsel, that it now appears to be assumed that where different insurers are involved, that there is a right for each to have its own counsel and solicitors appear in the name of the nominal party. This myth should be exploded." 1. Mr Romanuik SC contended that the compulsory third party [7] insurer had not troubled itself to make an application for the grant of leave pursuant to Elphick, however if the position is not to be resolved on this basis, then a discretion to grant leave required "exceptional circumstances" to be demonstrated. It was argued that QBE's position did not establish exceptional circumstances. 2. Mr Romaniuk SC submitted that as the present case involved a single motor vehicle the driver could only be Ms Casey or Mr Hart, and there was no difference in the respective positions of Ms Casey and Mr Hart from the CTP insurer on the question of who was the driver. On the question of damages and other questions concerning liability, it was argued that QBE could engage Ms Casey's and Mr Hart's legal representatives to act in its interests. It was further contended that there was no identifiable conflict of interest that would amount to "exceptional circumstances" to justify an order for double representation. Mr Romaniuk SC relied on Tan v Mitchell where it was said that the character of the conflict required to justify double representation was "an extreme conflict of interest between insurer and insured, disabling counsel from representing both interests." [8] In the instant case, it was asserted that there was no identifiable conflict of interest that meets that character. 3. During the course of oral argument, Mr Romaniuk SC did not press prayer 1.3 of his Notice of Motion and contended that the insurer's interest could be represented by a single counsel and solicitor. However, no formal amendment was made to the motion. 4. Whilst Mr Romaniuk SC noted that the relevant judgments in Van Eeden and Tan v Mitchell concerned costs, he contended that there was nothing in the judgments which indicated that the principles discussed were confined to disapproving costs orders. 5. Mr Romaniuk SC contended that if the Court accepts that the decisions Elphick and Tan v Mitchell required both leave and exceptional circumstances, then the relief sought in paragraphs 1.1 and 1.2 of his Notice of Motion should be granted. Mr Romaniuk SC noted the provisions of ss 78, 79 and 119 of the Motor Accidents Compensation Act 1999 (NSW) [9] do not allow specifically for separate representation of an insurer's interests and a reading to this effect could not be implied into s 78 as this would offend the principle enunciated by McHugh J in Newcastle City Council v GIO General Ltd, [10] which was subsequently cited in Hodgson v Crane. [11] The principle was expressed as follows: "[O]n rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose. In Jones v Wrotham Park Estates [[1980] AC 74 at 105] Lord Diplock said that three conditions must be met before a court can read words into legislation. First, the court must know the mischief with which the statute was dealing. Second, the court must be satisfied that by inadvertence Parliament had overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. Third, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect." [12] 1. It contended that QBE could conduct and make submissions by way of a single representative to the effect that both parties had failed to discharge the onus, and on the questions of contributory negligence and quantum. 2. Mr Hickey, on behalf of Casey as Plaintiff, adopted the submissions presented by Mr Romaniuk SC. In addition, Mr Hickey argued in support of his Amended Notice of Motion for the separate determination of liability and damages. He drew attention to the advantage of a separate trial as removing the need for one set of representatives. Mr Romaniuk SC opposed the separate determination of liability and damages contending that this would not be necessary if his application in opposing QBE's alleged "double representation" was permitted. Defendants' submissions 1. Mr Harben SC for Hart as Defendant, contended that the thrust of the orders sought by the Plaintiffs would deny QBE the right granted to it by s 78 of the 1999 Act. Mr Harben SC noted that the Defendant Hart, had been represented by them for four years. 2. Attention was drawn to the fact that the decision in Van Eeden fell for consideration of matters after the conclusion of the case, when the Court was concerned with the appropriate costs orders to be made. Accordingly it was said that Van Eeden was a case which involved analysis after hearing and determination and much of the discussion involved consideration of the evidence and the way it was dealt with by the legal representatives. Mr Harben SC particularly drew attention to where Spigelman CJ stated:- "[65] … Pursuant to the statutory policy, the insurer has a right to assume carriage of the defence and, therefore, has every right to its own first choice of counsel. The Plaintiff in his own right and the insurer, after assuming carriage of the defence, have a right to be represented by legal representatives of their choice." 1. Further in Van Eeden, there were two vehicles and two different compulsory third party insurers which distinguished itself from the case under present consideration. 2. Mr Harben SC further submitted that the instant case was not an ordinary case, as unless QBE has its own independent legal teams, submissions could not be made that both Casey and Hart could not prove that the other was the driver. It was pointed out that such submissions could not be expected to be made by the Plaintiff Hart on behalf of QBE. He drew attention to the real conflict of a Plaintiff acting on behalf of a Defendant insurer in a related matter, where informed consent to doing so would not be forthcoming. 3. In relation to the decision in Elphick, Mr Harben SC stated that the comments of Young JA were not adopted by the majority. Furthermore Elphick arose in circumstances involving separate representation for a single party, both in its own right and in the right of its workers compensation insurer. 4. Mr Harben SC argued that contrary to what Young JA had stated at [11] in Elphick, relating to a situation involving "different insurers", this is not the situation under consideration in the instant case. It contended that QBE has a right to represent the interests of Hart, consequent to the policy and has done so. 5. In respect of Tan v Mitchell, Mr Harben SC noted that the structure of representation in that case was the same as in the instant case before me. It noted that the leading judgment was given by Ipp JA with Mason P and Bryson JA agreeing. He drew attention to Ipp JA's judgment where it was stated:- "[5] Queries were raised from the bench as to the need for the double representation of the parties: see Van Eeden v Henry (2005) 62 NSWLR 301 where Spigelman CJ said at 304, [39] that double representation was "not a practice which this Court should encourage". It was common ground between the parties, however, that double representation in this matter was reasonable and, indeed, desirable. The Court was informed that, by arrangement between counsel, there would be no duplication in submissions. In the light of this consensus the Court accepted, without further argument, that the appeal should proceed with each party being doubly represented." 1. Noting that Bryson JA had agreed with Ipp JA, Mr Harben SC drew attention his Honour had stated:- "[72] In the appeal and at the trial there was double representation in that legal representatives appeared for the insurers and other legal representatives appeared for the litigants themselves. This did not lead to any contest or argument upon which the Court is to adjudicate. In the present appeal double representation placed a heavy additional burden of costs on the controversy. It had a justification in form in that there were two actions and two appeals, and in all strictness counsel appeared only in the case which concerned the interest they represented: those conducting the claims for damages appeared in the actions and appeals in which their respective clients were plaintiffs, and those conducting defences to the claims appeared in the actions and appeals in which their respective clients were defendants. Formal justification is not enough. Double representation is not a practice which the Court encourages, or should encourage: See Van Eeden v Henry (2005) 62 NSWLR 301 at 304 [39] (Spigelman C.J.). So far as I am aware it arose after McCann v Parsons (1954) 93 CLR 418 recognised that where motor insurance is compulsory, an insurer, appearing in the name of a litigant, could rely on its own state of knowledge when seeking a new trial on the ground of fresh evidence of facts, although the facts were known to the litigant at all times but were concealed from the insurer by deception. See the judgment of Dixon CJ, Fullagar, Kitto and Taylor JJ particularly at 430-431. The compulsory insurer obtained a new trial by advancing a case that its own insured had practised a deception as to the events in which the plaintiff was injured. The liability of the compulsory insurer, indisputable and automatically enforced, was central to the High Court's consideration. The approach taken by the High Court in that case can justify double representation only when there is a similarly extreme conflict of interest between insurer and insured, disabling counsel from representing both interests. The present case at trial was an example: each motorist claimed damages for personal injuries, and each insurer's economic interest and forensic choices related to the need to resist its opponent's claim, but were indifferent to the success of the claim made by its own insured. If both motorists have the same insurer the conflict is still more acute. Circumstances which justified double representation at trial may have been resolved and may no longer obtain on appeal. In the present case I make no adverse comment, and only say that the practice is not encouraged, and should be accepted only when legal representatives would be in such a situation of conflict that they cannot do otherwise." (emphasis supplied) 1. In highlighting the conflict in these circumstances, Mr Harben SC stated:- "[50] There are many examples of the conflict in this circumstance. For example: (i) With single representation there could be no submission made by the Defendant that both parties could or should lose. (ii) The fact that there was at least some relationship between the Plaintiffs at the time of the accident leads to the perception that there could be some collusion which could only be to the detriment of QBE. (iii) It is well known that insurers retain panel solicitors and retain them on the basis of negotiated costs agreements. Were the Plaintiffs' present solicitors to take over conduct of the matter that would obviously present a difficulty. (v) Were Hart's lawyers to take over the conduct of the defence in the Casey proceedings they would be entitled to the file of the present solicitors who are acting. This would give them access to advices, including settlement strategy and the like, which on any view of it ought not happen." [13] 1. Mr Harben SC next drew attention to the fact that notwithstanding what was in the s 81 notices, what had been pleaded was not an admission as to who was driving the vehicle. He stated that the Defendants were entitled to pursue this argument and put the Plaintiff to proof. He stated that a hearing involved many things, beyond what was dealt with at the trial. In these circumstances, preparation to negotiate matters required independent input and advice. He also stated that the Court was in a position to control the proceedings, however to do so now without all the relevant material would be the wrong approach. 2. Mr Harben SC noted that costs were compensatory and that the Court could make orders taking into account all matters so as to make an alteration to what would otherwise be allowed. 3. The present circumstances included the fact that Casey and Hart were in a relationship and it was submitted that this raised a difficulty. Mr Harben SC further drew attention to the fact that the expert report prepared on behalf of his client by Mr Michael Griffiths, biomedical and mechanical engineer states in his report of :- "…they were both likely to be thrown chaotically around inside the vehicle during the rollover process, before being ejected. This allowed a number of potential phases when they could have received their injuries." [14] 1. In these circumstances, it was contended that the conflict was patent. 2. Mr Stone SC, who appeared on behalf of Casey as Defendant, argued that this was not a classic case of "double representation" as the two proceedings had not been consolidated and what was actually involved was QBE exercising its rights of subrogation to defend Hart and Casey in each of the respective proceedings against them. It asserts that QBE has a statutory right to defend each of the cases pursuant to s 78 of the 1999 Act and that neither Plaintiff has identified any power that permits a Court to remove, modify or restrict that statutory right. Mr Stone SC submitted that this was acknowledged in Van Eeden [15] . He drew attention to the fact that in Van Eeden it was stated that there was no legal impediment to separate representation although the Court has a discretion in respect of the award of costs and could refuse to make an order for costs in favour of the party whose separate representation was unnecessary or inappropriate. [16] He noted that Spigelman CJ in Van Eeden also stated that a party should seek leave in advance to be separately represented and if leave was granted, full costs would generally be awarded. [17] 3. Mr Stone SC drew attention to the potential problems that could arise justifying QBE appointing separate representation to exercise a statutory right to defend the proceedings. These were said to include:- 1. Fully advising QBE; 2. Contributory negligence, bearing in mind that both parties are vulnerable to a finding of contributory negligence due to issues of wearing a seatbelt and alcohol and that neither party has an interest in pursuing contributory negligence. He stated that these were in direct conflict with QBE's desire and whoever wins, would be subject to the greatest possible deduction for contributory negligence; 3. Other conflicts of interest could arise in the course of the proceedings in terms of choice of counsel, the calling of witnesses, making offers of compromise and pursuing appeals. 1. The conflicts cited were as follows:- "The motions brought forward by the two plaintiffs and the affidavit evidence in support does nothing to address the practical complications that will arise if QBE is prohibited from participating in proceedings and becomes reliant upon the two plaintiffs to litigate as they see fit. Some very practical questions that the two plaintiffs are invited to answer include the following: (i) Does each plaintiff accept that in acting for QBE as defendant they will have a fiduciary duty to run the case as defendant in QBE's bests interests? (ii) Does each plaintiff assert that in exercising that fiduciary duty in conducting the defendant's case on behalf of QBE, there will be no conflict with their role in acting for the plaintiff? What will they do if a conflict does arise? (iii) Is each plaintiff's legal team prepared to provide full and frank advice to and accepting instructions from QBE in relation to the conduct of the case on behalf of the defendant? (iv) Is each plaintiff and plaintiff's solicitor prepared to accept instructions from QBE in relation to choice of counsel to appear at hearing? (v) What are the proposed arrangements for the retainer of solicitor and counsel in QBE's interests? (vi) Is it expected that QBE will enter into a retainer agreement with each of the solicitors to represent QBE's interests on behalf of a defendant? If so, will the solicitors accept QBE's standard retainer or is QBE to be forced to pay the rates and expenses of two sets of solicitors it does not choose? (vii) What is to be the division of costs between parties? What are Farrell Lusher and Commins Hendricks and the respective counsels going to bill to their own client as plaintiff as against what they propose billing to QBE as defendant?" 1. In referring to the three principal cases of Van Eeden, Tan v Mitchell and Elphick, Mr Stone SC adopted much of the submissions advanced by Mr Harben SC. 2. In summary, Mr Stone SC submitted that the Court did not have the power to make the orders sought and the only remedy that the Court could exercise was to disapprove of the arrangement through a costs order at the conclusion of the proceedings. He drew attention to the fact that there are inherent conflicts in the position of the parties, and accordingly there was no reason for the Court to disapprove of the arrangements. For these reasons it was submitted that there were good reasons for separate representation. 3. Mr Stone SC for Casey as Defendant, supported the separate determination of liability from damages. Mr Harben SC for Hart as Defendant made no submission on the matter. Determination 1. The Plaintiffs have not identified any power in the Court to grant the relief sought as to the question of the Defendants' representation. s 78 of the 1999 Act gives the insurer the statutory right to act on behalf of the insured, and their deemed agent. s 87 of 1999 Act imposes an obligation on the owner and driver to cooperate with the insurer including furnishing information as the insurer may reasonably request in connection with the claim. In doing so the insurer does not become a party to the proceedings. [18] 2. I see nothing in the language of ss 77,78, 79 or 119 of the 1999 Act which enable me to infer a power to exclude or limit an insurers' rights by limiting their capacity to represent the interest of the insured in the way sought. 3. UCPR 7.8 does give the Court power to give the conduct of the whole or any part of the proceedings to any person as it thinks fit. However, no argument was advanced that the Court should exercise this power, nor was it submitted that the case was such that the Court should exercise an inherent jurisdiction to prevent counsel or a solicitor from appearing for a particular party. [19] 4. At the hearing of this matter, the Plaintiffs contended that the basis upon which they sought the relief agitated, was the decision of Young JA in Elphick. It was contended that this decision required leave to be sought and "exceptional circumstances" to be demonstrated. That case is distinguishable because, as noted earlier, Elphick involved a single Defendant having separate representation, both in its own right and in the right of its insurer. In any event, the decision in Van Eeden, being a unanimous decision of the Court of Appeal, places no restriction on the representation of two Defendants subject to potential costs consequences. [20] The only requirement for leave that was foreshadowed in Van Eeden was one which would, if granted, prevent the making of an adverse costs order. [21] 5. For the reasons advanced by the Defendants, I am in any event satisfied that the circumstances of this case do present one of real conflict if their representation was to be limited in the way the Plaintiffs have proposed. In particular, it would restrain the Defendants advancing the case in respect of contributory negligence or that neither party had discharged the onus. This conflict was identified by Bryson JA in Tan v Mitchell. [22] 6. During argument, counsel for the Plaintiff Hart, advocated that any conflict could be addressed by a single representative on the part of QBE, thus separating the insurer from the two Plaintiffs. 7. Assuming this were possible, the practical difficulty of that proposal is that under s 87 of the 1999 Act, QBE is entitled to access information from each owner or driver at the time of the accident to which the claim relates. Whilst both Plaintiffs would be legally represented and have entitlements to claim privilege, I do not see how QBE would be able to fully benefit under s 87 absent separate representation on behalf of each Defendant. 8. The concern as to separate representation is able to be addressed to some extent by acceding to the Plaintiff Casey's application for a separate determination on the question of primary liability. 9. It appears that both the Plaintiffs have a limited ability to recollect the circumstances of the accident. [23] This circumstance makes it less likely to give rise to conflicting credit findings, if the question of primary liability was to be separately determined. I am further satisfied that the separate determination of the question of primary liability can result in a saving of time and costs. [24] 10. In any hearing involving separate representatives for the Defendants, the Court would be able to control the proceedings, in particular, by utilising s 26 of the Evidence Act 1995 (NSW), the power in s 62 of the Civil Procedure Act 2005 (NSW) as well as various common law powers. [25] 11. For these reasons, I propose to make the orders sought in [1](aa) of the Amended Notice of Motion, filed by Hart as Plaintiff, but otherwise decline the remaining orders that he seeks. I would further decline to make the orders sought by the Plaintiff Casey, in her Notice of Motion. 12. Despite the limited success of the Plaintiff Casey on the question of the separation of the trial, this occupied little time in argument and was not resisted by either of the Defendants. In the circumstances, the Plaintiffs should pay the Defendants' costs. Orders 1. The orders of the Court are: 1. Pursuant to UCPR r 28.2, the question of primary liability is severed and listed as a separate question for determination prior to the hearing of the remainder of the proceedings; 2. The orders sought in the Notice of Motion filed by the Plaintiff Casey, in paragraph [1] and in the Amended Notice of Motion, by the Plaintiff Hart in paragraphs [1](a) – (c) are declined; 3. The Plaintiffs are to pay the Defendants' costs. Endnotes 1. Beverly Casey was also referred to as "Beverley June" Casey 2. Sidney Robert Hart was also referred to as "Robert Sidney" Hart 3. See Written Submissions of the Plaintiff in Casey v Hart (2012/61701) filed 24 October 2016 at [8]; see also Defence filed by the Plaintiff on 15 October 2013 in Hart v Casey (2013/197636) at [5] 4. (2005) 62 NSWLR 301; [2005] NSWCA 14, 302 - 307 [30] – [63] (Spigelman CJ with Sheller and McColl JJA agreeing) but particularly at 303 [35] – [37], 304 [39] and 305 [46] – [48] 5. [2006] NSWCA 178 6. [2011] NSWCA 356 7. Hereinafter "CTP" 8. [2006] NSWCA 178 at [72] (Bryson JA) 9. Hereinafter the "1999 Act" 10. (1997) 191 CLR 85,113 (McHugh J) 11. 55 NSWLR 199 12. 55 NSWLR 199, 209 [36] (Heydon JA with Sheller JA and Davies AJA agreeing) 13. Written Submissions of the Defendant in Casey v Hart (2012/61701) dated 26 October 2016 at [50] 14. Annexure D to the Affidavit of Mr Thomas Charles Lyons dated 9 September 2016 – Report of Mr Michael Griffiths dated 3 February 2016, p 49 at [30]ff 15. (2005) 62 NSWLR 301; [2005] NSWCA 14, 303 [35] (Spigelman CJ with Sheller and McColl JJA agreeing) 16. (2005) 62 NSWLR 301; [2005] NSWCA 14, 304 [40] (Spigelman CJ with Sheller and McColl JJA agreeing) 17. (2005) 62 NSWLR 301; [2005] NSWCA 14, 307 [64] (Spigelman CJ with Sheller and McColl JJA agreeing) 18. Roth v RTA & Ors [2009] NSWSC 295 at [86] – [87] (Hall J) 19. Grimwade v Meagher & Ors [1995] 1 VR 446, 452 (Mandie J) 20. (2005) 62 NSWLR 301; [2005] NSWCA 14, 304 [40] (Spigelman CJ with Sheller and McColl JJA agreeing) 21. (2005) 62 NSWLR 301; [2005] NSWCA 14, 307 [64] (Spigelman CJ with Sheller and McColl JJA agreeing) 22. [2006] NSWCA 178 at [72] (Bryson JA) 23. See Exhibit 1, Statement of Mr Sidney Robert Hart, dated 26 March 2012 at [11] and [19]; Written Submissions of the Plaintiff in Casey v Hart (2012/61701) filed 24 October 2016 at [7]; Written Submissions of Defendant in Hart v Casey (2013/197636) filed 27 October 2016 at [6] 24. See Southwell v Bennett [2010] NSWSC 1372 at [15] (Hallen AsJ) 25. See: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, 23 (Young J) and Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125 at [44] – [45] (Finkelstein, Siopis and Katzmann JJ) Amendments 06 December 2016 - Paragraph [8]: The name of solicitor has been corrected (Lyon to Lyons) 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: 06 December 2016