Case: CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601
Outcome: referred to
The Court has found that it may be appropriate to hear a preliminary issue where there is a 'crisp and clear demurrer point': Novartis AG v FH Faulding and Co Ltd [2004] FCAFC 254. Alternatively, the Court may decide to hear a question separately if there is a narrow point raised on the preliminary issue, and it has the potential to dispose of a significant part of the litigation if decided in one way: TVW Enterprises Ltd v Duffy ( Toohey J, 28 March 1985, unreported ) ; see also Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141 . In CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606, Kirby P expressed the view: '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.' 26 In Reading Australia supra, Branson J summarised the relevant principles governing the exercise of the Court's discretion under O 29 r 2, identifying the following factors as being relevant to that discretion: '(a) [T] he term "question" in O 29 r 1 includes any question or issue of fact or law in a proceeding. The distinction in the rule between an "issue" and a "question" is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an "issue", and less decisive matters of dispute being "questions" ( Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 425; 113 ALR 643 at 647); (b) a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties' rights ( Landsal Pty Ltd (in liq) v REI Building Society at FCR 425; ALR 647); (c) however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties ( Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 at [45] ); (d) where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined ( Jacobson v Ross [1995] 1 VR 337 at 341, referring to Nissan v Attorney-General [1969] UKHL 3 ; [1970] AC 179 at 242-3; [1969] 1 All ER 629 at 663-4 per Lord Pearson; Bass v Perpetual Trustee at [53]); (e) care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not "ripe" for separate and preliminary determination. An issue may not be "ripe" for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved ( CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 per Kirby P at 606); (f) factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may: (i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or (ii) contribute to the settlement of the litigation ( CBS Productions Pty Ltd v O'Neill per Kirby P at 607); (g) factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may (ii) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial ( GMB Research &amp; Development Pty Ltd v The Commonwealth [1997] FCA 934) ; (iii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding ( GMB Research &amp; Development Pty Ltd v The Commonwealth; Arnold v Attorney-General (Vic) (unreported, Fed C of A, Sundberg J, Nos VG629-37 of 1995, 8 September 1995, BC9502745). This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or (iv) prolong rather than shorten the litigation ( GMB Research &amp; Development Pty Ltd v The Commonwealth ).'