Case: Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1
Outcome: cited
The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 38 The courts have repeatedly warned of the dangers that attend the trial of separate or preliminary questions. In Tepko at 55 [168]-[170], Kirby and Callinan JJ said that the attraction of trials of separate questions are often more chimerical than real; savings in time and expense can prove illusory and the process can generate other problems such as interlocutory appeals and consequent delays. Their Honours concluded that single issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question: at 55 [170]. In Direct Factory Outlets , Sackville J said, quite correctly, that the dangers of separate trials are well illustrated by the numerous cases in which the process has miscarried. In Save the Ridge at 103 [15], Black CJ and Moore J said that the O 29 procedure is one that should be adopted with caution as it can be fraught with difficulties. In Tallglen at 141-142, Giles CJ said that the ordering of separate trials must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of the order was intended to avoid. Similar statements can be found in this Court: see eg Novartis Corp Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] per Stone J. 81 In my opinion, this is not a case in which it can be said that 'the utility, economy and fairness to the parties' of hearing and determining the separate questions posed by the Commonwealth is ' beyond question': Tepko at 55 [170]. 82 Nor is this simply a case where there is a risk that the asserted advantages of separate trials will prove to be illusory. It has not been demonstrated that the proposed separate trial would deliver any savings of time and cost, when compared with a single trial of all issues. If a separate trial were to be ordered, and if that trial resulted in the dismissal of the proceedings on discretionary grounds, the question whether legal professional privilege attaches to the documents would then be susceptible to determination by the Commissioner under s 6AA. The process of determination before the Commissioner would, it seems to me, give rise to issues which would be no less complex than those presently before this Court. In addition, determinations by the Commissioner may not finally resolve the issue of legal professional privilege. The Commonwealth accepted that those determinations could be directly challenged in this Court under s 39B of the Judiciary Act , as the Commissioner has no authority to make determinations that are wrong in law. Alternatively, determinations by the Commissioner could be the subject of judicial review proceedings in this Court pursuant to the provisions of the ADJR Act. 83 The Commonwealth argued that if this Court refused to make a declaration in favour of AWB on discretionary grounds, and thereby allowed the Commissioner to proceed under s 6AA, this Court in any subsequent proceedings under s 39B or the ADJR Act would have the benefit of the issues having been properly joined and defined in a reasoned decision by the Commissioner. The Commonwealth added that the Commissioner's determinations could reduce the number of documents in dispute, either by upholding claims to legal professional privilege or by concluding that particular documents are irrelevant to his inquiries. However, on the material before me, it is equally arguable that the processes of a separate trial of questions 1.1 and 1.2 in this Court, potentially complex proceedings before the Commissioner pursuant to s 6AA, and then further applications to this Court challenging or seeking to review determinations by the Commissioner, will be productive of greater delay and greater costs than would be incurred if the current proceedings proceed in the ordinary way to a trial of all issues. The evidence before me does not satisfy me that the multiple processes envisaged by the Commonwealth are likely to prove to be more efficient, less costly and less protracted.