Bass v Building Workers' Industrial Union of Australia - NSW Branch and 3 Ors [1999] NSWSC 88 (19 February 1999)

Last Updated: 14 April 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Bass v Building Workers' Industrial Union of Australia - NSW Branch & 3 Ors [1999] NSWSC 88

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): R400006/96

HEARING DATE{S): 16 February 1999

JUDGMENT DATE: 19/02/1999

PARTIES:

ROBIN WARREN BASS

(Plaintiff)

BUILDING WORKERS INDUSTRIAL UNION OF AUSTRALIA - NSW BRANCH

(1st Defendant)

CONSTRUCTION FORESTRY, MINING & ENERGY UNION

(2nd Defendant)

JOHN HIGGINS

(3rd Defendant)

TREVOR ZELTNER

(4th Defendant)

JUDGMENT OF: Master Harrison

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr P Livingston

(Plaintiff)

Mr J W Nolan

(1st, 2nd & 3rd Defendants)

Mr J F Burn

(4th Defendant)

SOLICITORS:

The Law Firm of Solari's, Cronulla

(Plaintiff)

Taylor & Scott, Sydney

(1st, 2nd & 3rd Defendants)

Gary Robb & Associates, Canberra

(4th Defendant)

CATCHWORDS:

Separate determination on the issues of liability and quantum

ACTS CITED:

Trade Practices Act 1974 - s 45D

DECISION:

(1) The plaintiff's notice of motion filed 17 December 1998 is dismissed; (2) The plaintiff is to pay the defendants' costs.

JUDGMENT:

8

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 19 FEBRUARY 1999

R400006/96 - ROBIN WARREN BASS v

BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA - NSW BRANCH & 3 ORS

JUDGMENT (Separate determination on the issues of

liability and quantum)

1 MASTER: By notice of motion filed 17 December 1998 the plaintiff seeks a separate determination on the issues of liability and quantum. The defendants oppose this application. The plaintiff relied on the affidavit of Michael Solari sworn 16 December 1998 and the first, second and third defendants relied on the affidavit of Lachlan Riches sworn 15 February 1999.

2 I have set out the brief alleged facts in my earlier judgment dated 21 September 1998. They are that the plaintiff was the principal of R W Bass Pty Limited. The first and second defendants were industrial organisations of employees and Mr Higgins the third defendant was an officer of the Building Workers' Industrial Union of Australia, New South Wales branch (the first defendant). Mr Zeltner the fourth defendant was an officer of the Construction, Forestry, Mining and Energy Union (the second defendant). R W Bass (the company) agreed to perform building work on the building site known as "the Chevron site" situated in Macleay Street Kings Cross in Sydney. For the performance of work and supply of materials, CC (NSW) Pty Limited agreed to pay the company a lump sum of approximately 1.4 million dollars. This agreement was executed on 16 November 1988.

3 The plaintiff alleges that on 18 January 1990, at the direction of an officer, servant or agent of either the first or second defendants or both, employees of the company engaged on the building site, refused in breach of their contracts, to carry out all the duties at the lawful direction of the company and continued to refuse to do so until about 14 February 1990. On 14 February 1990 R W Bass Pty Limited was given notice that the contract was terminated by reason of non-performance of the company.

4 The plaintiff pleads in his further amended statement of claim that in contravention of s 45D of the Trade Practices Act 1974, the defendants wrongfully and maliciously conspired, and combined amongst themselves to injure the company and attempted to intimidate the plaintiff. It is also pleaded that the defendants interfered with the contract. It pleads that the defendants wrongfully and maliciously induced and procured employees not to carry out the lawful duties for the company and for CC (NSW) Pty Limited.

5 In relation to damages the plaintiff pleads that the actions of the defendants greatly injured his trade and therefore forced him to suffer loss and damage. The particulars of loss and damage are given as loss of

customers, loss of good will, loss of opportunity, mental distress, loss of business opportunity and loss of future business opportunity. The plaintiff claims both damages and aggravated damages.

6 The plaintiff submitted that a separate trial on liability should be granted because firstly the issues relating to liability, although complex questions of law, are clearly distinct from issues relating to quantum; secondly that if the hearing was to proceed on the issue of liability only it would take 4 to 5 days and the issue of quantum would take another 2 to 3 days in hearing; thirdly that to prepare the case on the issue of quantum would incur substantial additional costs such as those incurred in discovery, inspection, subpoenaing documents, the preparation of reports by an accountant and medical reports; and finally if the plaintiff is unsuccessful on the issue of liability there would not need to be a trial on quantum.

7 The first, second and third defendants oppose the application and submitted that firstly the plaintiff has been the cause of the delay over the last 8 years and is now seeking to gain a procedural advantage; secondly that the case has not been pleaded properly and it is premature for such an order to be made and thirdly they have not been served with any documents such as medical reports.

8 The fourth defendant submitted firstly that in a cause of action under s 45A damages are an essential element, and secondly that the matter involves a complex industrial tort which has far reaching effects in industrial law, thirdly that by separating the liability and quantum, the potential for two hearings and two appeals is raised and fourthly if the matters do go to appeal the delay would be longer than if both liability and quantum were heard together.

9 Part 31 r 2(a) of the Supreme Court Rules provides:

"2. The Court may make orders for -

(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings."

10 The plaintiff referred me to a decision of Nyland J in Treloar v Foresight Pty Limited (Supreme Court of South Australia, unreported, 28 February 1994). The first to third defendants referred me to Aitkenhead v Voss (unreported, Slicer J, Supreme Court of Tasmania, 9 September 1996) and Coenen v Payne & Anor; Payne v Coenen [1974] 2 All ER 1109 and Gaye (No 1) v Allan Rowlands Holdings Pty Limited (Kearney J, unreported, Supreme Court Northern Territory, 11 August 1987.

11 In Coenen, Dr Coenen's and Mr Payne's motor vehicles collided with each other on a road and both drivers sued each other for negligence. Dr Coenen then alleged that he was about to engage in lucrative remuneration as a vet in Germany. In those circumstances the court thought that it was appropriate to order separate trials on liability and quantum. The court referred to the normal practice as being that liability and damages should be tried together. However, it was stated that the court should be ready to order separate trials where ever it is just and convenient to do so. (This test appears in Part 26 r 1 of the Supreme Court Rules relating to directions)

12 The later Australian decisions cited above refer to the courts being more willing to order separate trials in accordance with current case management principles. In this regard see para 29.1 in Part 8 of Practice Note 88. Para 29.2(c) refers to one of the objectives of a status conference is to consider whether there should be a separate trial on liability held before the trial of issues as to quantum and if it appears to the judicial officer who conducts the status conference, that the case is suitable for such a separate trial the parties would be invited to consent to such an order and if consent is not given the party may apply to a judge or master for an order.

13 In CBS Productions v O'Neill (1985) 1 NSWLR 601 at 606 Kirby P referred to separate determination of liability and stated:

"Care must also be taken in utilising the procedures now available for the determination of preliminary points to avoid such determination in cases which are not ripe for this treatment. A matter is "ripe" for separate and preliminary determination where it is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy."

.....

"It is my view that the court should be facultative in the matter of separate decisions on questions arising in the course of the trial. The rules now provide for it. Where the exceptional circumstances exist that make it sensible to do so (and no reason exists to suggest the contrary) the procedure can be beneficial. It can contribute not only to the prompt disposal of crucial issues in the litigation (sometimes resulting in disposal of the whole action and even judgment for a party). It can also contribute to the saving of time and costs where an authoritative decision narrows the issues for trial substantially, excluding the necessity to explore factual matters which, on one determination of the preliminary question, are entirely unnecessary."

14 Kirby P also says that the resolution of a central issue may assist the parties involved in the litigation to reach a settlement.

15 In this case the parties and witnesses will be asked to give evidence of conversations which took place in January and February 1990, ie., over 8 years ago. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; 139 ALR 1 at 8 McHugh J refers to the whole quality of justice deteriorating where there is delay. McHugh J stated that sometimes the deterioration in quality is palpable and in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise the deterioration in the quality is not recognisable even by the parties. This is one reason why there should be no further delay in the matter being made ready and listed for trial.

16 In relation to written documents the situation is somewhat better. Holland J conducted a special inquiry in relation to the events that give rise to the statement of claim. These documents form part of the documents tendered to the Royal Commission into Productivity of the Building Industry in New South Wales.

17 This matter is currently listed for trial in Wagga Wagga and the plaintiff wishes it to remain there.. Although the plaintiff estimates that it will take 4 to 5 days on liability and three days on quantum, it is my view that this substantially underestimates the time that this case will actually take. It is my view that this case will be categorised as a long matter and will take 2 weeks plus. In these circumstances it is either appropriate that the matter be transferred to Sydney and listed as a long matter, or it be listed as a special fixture in Wagga Wagga.

18 On one hand it is possible that liability may be determined in favour of the defendants and in those circumstances both parties would be saved the expense of preparing for a trial on quantum. Likewise, if a determination is made in favour of the plaintiff, the parties may agree on quantum but to do so some medical and accounting reports would be required. In relation to the gathering of reports on quantum the plaintiff should have already obtained some medical reports relating to the plaintiff's medical condition since 1990.

19 On the other hand this matter is unusual. It cannot be considered a typical personal injury matter. It appears to be an essential ingredient to establish a cause of action pursuant s 45D of the Trade Practices Act that the conduct of the defendants was likely to have the effect of causing substantial loss and damage to the business of the plaintiff. However an essential ingredient of the tort of negligence is damage yet in those types of actions liability and quantum are severed. There are additional causes of action pleaded in this case namely intimidation and conspiracy. The plaintiff has claimed aggravated damages. He is seeking compensation because the alleged wrongful act was aggravated by the manner in which the act was done. In these circumstances, liability and damages should not be severed as the some of the acts done may be directly relevant to the amount awarded ( if any ) for aggravated damages. There would be a longer delay in finalising this matter if two trials which are both considered long matters had to be listed and determined. There would be less delay if it was listed as the one long matter. It is also not clear whether the court would require the same witnesses both at the hearing on liability and on quantum, and overlap of some of the witnesses cannot be discounted (bearing in mind the issue of aggravated damages). This case has not been sufficiently prepared by the parties to enable them to formulate agreed issues in dispute. Taking all of this into account, it is my view, on balance, that it is not just and convenient to sever the trials in relation to liability and quantum in this matter. Accordingly the plaintiff's notice of motion should be dismissed.

20 In relation to costs, the defendants had previously indicated that they did not consent to a separate determination on the issue of liability. The plaintiff elected to pursue this notice of motion not withstanding their objection. In these circumstances the plaintiff should bear the costs of the motion.

21 The orders I make are:

(1) The plaintiff's notice of motion filed 17 December 1998 is dismissed.

(2) The plaintiff is to pay the defendants' costs.

LAST UPDATED: 14/04/1999