Supreme Court New South Wales

• Medium Neutral Citation: Galagher v Merrywinebone Pty Ltd t/as Green Tree Farming; Dewson v Merrywinebone Pty Ltd t/as Green Tree Farming [2014] NSWSC 1375
• Hearing dates: 25 September 2014
• Decision date: 09 October 2014
• Jurisdiction: Common Law
• Before: Schmidt J

Decision

Order that the question of liability be heard separately from and prior to the hearing on damages.

• Catchwords: PROCEDURE - orders seeking transfer of two sets of proceedings from District Court to Supreme Court - not opposed - two matters to be heard together - orders made - separate question - question of liability to be heard separately from and prior to hearing damages
• Legislation Cited: Civil Procedure Act 2005 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
• Category: Procedural and other rulings
• Parties: Matter Number 267675 of 2014; Maxine Galagher (Plaintiff); Merrywinebone Pty Ltd t/as Green Tree Farming (First Defendant); Auen Grain Pty Ltd (Second Defendant); Matter Number 267703 of 2014; Monique Rachel Dewson (Plaintiff); Merrywinebone Pty Ltd t/as Green Tree Farming (First Defendant); Auen Grain Pty Ltd (Second Defendant)
• Representation: Counsel: Mr M Eagle (Plaintiffs); Mr D Wilson (Defendants); Solicitors: Turner Freeman (Plaintiffs); Lee and Lyons Lawyers (Defendants)
• File Number(s): 2014/267675; 2014/267703
• Publication restriction: No

Judgment

1 By summons filed in September 2014, the plaintiffs sought orders transferring two sets of proceedings commenced in the District Court to this Court and that they be heard together.

2 I made those orders in circumstances where they were not opposed by the defendants, it being common ground that the two matters should be heard together, given that both arose out of an accident when a car being driven by Mrs Dewson, in which her daughter Ms Gallagher was also travelling, struck a steer. The defendants deny owning the steer, or that it was under their care, control and management. Mrs Dewson was very seriously injured. It is also common ground that she is likely to obtain considerable damages, in excess of the District Court's jurisdiction, if she establishes liability.

3 In the District Court the defendants had sought an order under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), that liability and quantum be determined separately. The plaintiffs opposed that order being made. When the matter came to this Court, the defendants' position had been refined. They then pressed for separate determination of the claim that the steer had been under their care, control and management from other liability questions and damages. That, too, was opposed by the plaintiffs.

4 The hearing of the defendants' application was adjourned, when it emerged that the parties had not adhered to the timetable fixed in the District Court for preparation of the matter for hearing. Discussions resulted in further agreed directions being given, but no agreement as to the separate determination of the care, control and management allegation. The parties were unable even to agree how long such a hearing would take, or indeed, what hearing the entire case would require.

5 There is no question as to the Court's power to order separate determination of the factual questions involved in the claim that the steer was under the defendants' care, control and management (s 62 of the Civil Procedure Act 2005 (NSW)). The Court's power must be exercised in accordance with the objects provided in s 56, the just, quick and cheap resolution of the real issues in the proceedings. Consideration of matters such as the timely disposal of proceedings at an affordable cost (s 57); the degree of difficulty or complexity to which the issues in the proceedings give rise and what the dictates of justice require (s 58); elimination of delay (s 59); and proportionality of costs (s 60) must also all be borne in mind.

6 The usual position is that all issues are to be tried together. Determination of a discrete question involves an exceptional order. Whether such an order should be made requires determination of practical questions. Consideration must be given to whether credit issues are likely to arise in relation to witnesses who will be called to give evidence in relation to both the separate question and the balance of the case.

7 On the defendants' case the determination of the question will promote early resolution of the proceedings and would only take a day or so to hear. If the question is decided in their favour, the proceedings will fail and if decided against it, is likely to promote an early settlement. They contended that the findings on this issue are not relevant to the question of damages, which in the case of Mrs Dewson may be particularly complex, given the nature of the injuries which she has suffered. A full hearing is likely to take well over a week.

8 On the plaintiffs' case the proposed separate question could not be untangled from the other issues lying between the parties in relation to liability, about which the same witnesses would give evidence. Liability would take up to five days to hear and a full hearing considerably more. The two plaintiffs would also have to give evidence on damages and credit issues were likely to arise as to their evidence and that of other witnesses.

9 The dispute must be resolved in the context of the case advanced by the statements of claim, which each allege that:

"1. ...

2. At approximately 8.00 pm on or about 22 March 2009 the plaintiff was driving a 2003 Holden Commodore registration number AYD-02H along Quambone Road in the state of New South Wales, Quambone when a fully grown black angus steer ("the steer") weighing approximately 600 kilogrammes wandered onto the roadway and collided with the plaintiff's vehicle.

3. At all material times the defendants had the care, control and management of the steer.

4. The plaintiff says that the incident referred to above was caused by the negligence of the defendants or its servants and agents

5. The plaintiff says that it was a foreseeable risk to users of the roadway that if a steer owned by the defendants wandered onto the roadway that users such as the plaintiff could sustain injury

6. As a result of the above incident, the plaintiff suffered injury, loss and damage including economic loss.

7. PARTICULARS OF NEGLIGENCE

a) Failure to ensure that the defendants' steer was properly enclosed on the defendants' property;

b) Failure to ensure that the defendants' fencing was maintained appropriately;

c) Failure to ensure that the defendants' steer did not wander onto the roadway;

d) Failure to take sufficient steps to warn the plaintiff of the impending danger;

e) Failure to take proper steps so as to minimise the risk of danger to the plaintiff."

10 Particulars were sought in relation to paragraphs 1, 2, 3, 5 and 7, which went to matters such as Mrs Dewson's speed; when she first saw the steer; how it was alleged that the defendants had failed to ensure that the steer was properly enclosed and that fencing had not been maintained. The facts relied on to allege that the defendants had the care, control and management of the steer were sought and questions asked as to the steer's identification marks.

11 The plaintiff responded :

"10. The facts, matters and circumstances upon which the Plaintiff relies to allege that the Defendants had the care, control and management of the steer include the following:

(a) That the steer was in a roadway that divided the Defendants' property and considerably away from any other property.

(b) The Plaintiff's Partner and neighbours had, on a number of occasions, made contact with the Manager of the Defendants' property to advise that animals had escaped from its fencing. Would you please provide particulars of all reports received by the Manager of the Defendants' property to that effect?

(c) The fencing of the Defendants' property immediately adjacent to where the accident occurred was totally inadequate to retain an animal of the size of the steer that was involved in the accident. This was particularly the case in circumstances where there was relatively meagre feed on the paddocks of the Defendants' property and the feed on the side of the road way was quite lush in comparison."

12 Copies of photographs taken by police as showing the relevant branding mark were produced. The plaintiffs asked whether any employee or agent of the defendants had removed the ear of the steer after it had been struck; the identity of the steer as shown on the identification tag fixed to the ear that was so removed was also sought.

13 This request reflected that a police investigation had been unable to establish ownership of the steer. The police report referred to enquiries made of a neighbour, who is to be called by the plaintiffs to give evidence on liability. There is an issue as to whether information he gave to police is accurately recorded in the report. The defendants will call short evidence on the care, control and management issue. The plaintiffs will give evidence, as will Mr Dewson, who attended the scene shortly after the accident. Another person who then attended will also be called. The plaintiffs also intend to call expert evidence, which has not yet been served.

14 It seems to me that neither the plaintiffs nor the defendants' estimate as to how long the hearing of the issue identified by the defendants for separate determination is likely to take can be correct, but that the hearing of the liability question is likely to be significantly shorter than a hearing of the entire case. Hearing of the question of damages is undoubtedly going to involve very significant additional expense, if finally contested, particularly in Mrs Dewson's case, given the nature of her injuries.

15 I am not satisfied that the separate question finally pressed should be ordered. On the plaintiffs' case the care, control and management question in truth encompassed almost the entirety of the liability issues lying between the parties. Given the pleadings, the force of that submission is apparent. The separation proposed would leave other issues going to liability of seemingly relatively short compass still to be resolved. That and the possibility that credit issues will arise in respect of witnesses who will give evidence on other aspects of liability makes the proposed separation inappropriate and inconsistent with the achievement of the objectives of the Civil Procedure Act.

16 Still, the force of the separation of liability from damages in this case is also undeniable, given what a damages hearing may involve. In the result, I have concluded that determination of all liability issues should be separated from damages. I consider that in this case, resolution of the liability question is likely to promote an early resolution of the question of damages, which is not likely to depend on lay evidence, the credibility of which will be in issue.

Orders

17 For the reasons given, I order that the question of liability be heard separately from and prior to the hearing on damages.

**********

Decision last updated: 09 October 2014