Civil Trials Bench Book — Procedure generally

The court may give directions as to the order in which issues of fact are to be tried: CPA s 61.

The court may make orders for the separate decision of any question of fact or law, or mixed fact and law, and whether such a separate decision is to be decided before, after, or at any trial or further trial in the proceedings: r 28.2.

The court may order separate trials where the joinder of parties or causes of action may embarrass, inconvenience or delay the conduct of the proceedings: r 6.22.

The court has an incidental power to control its own procedures.

Ordinarily, a judge will need to look no further than r 28 which is in comprehensive terms.

The “Guiding Principles” in CPA ss 56–60 apply.

Preliminary questions may be questions of law, questions of mixed law and fact, or questions of fact; where facts are involved they may be assumed for the purposes of the preliminary determination, or agreed as correct, or requiring determination: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [52]–[53].

A separate determination may result in a substantial saving in time and costs. However, the risk of unforeseen complications is well recognised and demands caution.

A separate determination should be ordered only if the utility, economy and fairness to the parties of a separate hearing is beyond question: Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [170].

Cases where a separate hearing may be appropriate include the following.

A separate hearing will not be appropriate where the separate question requires, or may require, a decision concerning the credit of witnesses who are likely to be witnesses at a later hearing in the proceedings, if a later hearing is required: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. Nor is it appropriate when the basis upon which the matter is put before the court does not allow the court to resolve either way the matter in a final and determinative way: Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8 at [16]. In Tyrrell the distinction is made between “assumed facts” and “agreed facts”. Where the separate issue to be determined involves a mixed question of fact and law, it is inappropriate to rely upon “assumed facts”. The parties should agree on the facts so far as they can and, if necessary, present evidence to permit a fact-finding exercise on the part of the judge: Tyrrell at [12], [13].

As to the use of separate determinations relating to limitations issues, see Guthrie v Spence (2009) 78 NSWLR 225 at [16]–[19]. As to the use of separate determinations relating to issues of immunity from suit, see Jackson Lalic Lawyers Pty Limited v Attwells [2014] NSWCA 335 and Young v Hones [2014] NSWCA 337. However see also, Nikolaidis v Satouris (2014) 317 ALR 761 at [12], where Barrett JA said the position was “unsettled”. As to the use of separate determinations in defamation matters, see Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Co Ltd [2018] NSWCA 95 at [1]; [3]; [131]–[132].

The application for an order for a separate determination should be by motion which should specify the question for decision with precision: Rajski v Carson (1988) 15 NSWLR 84 at 88C–D. The question should be so framed that it can be answered “Yes” or “No”.

See rr 28.3 and 28.4 as to the need to cause the decision to be recorded or to give such judgment or make such order as the nature of the case requires, particularly where the determination disposes of the whole or part of the proceedings or renders any further hearing unnecessary.

For separate determinations in defamation proceedings, see Ritchie’s at [28.4.30].

For separate trial of a cross-claim, see r 9.8.

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