Case: Olbers Co Ltd v Commonwealth of Australia (No. 3) [2003] FCA 651
Outcome: applied
Honour further observed (at [8]) that the principles that govern the circumstances in which an order will be made under O 29 r 2 are relatively well established and she summarised them in a fashion which I gratefully adopt: '(a) the 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 245; 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 242-243 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 - (i) 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 Commonwealth [1997] FCA 934 ; (ii) 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 Commonwealth ; Arnold v Attorney-General (Vic) (unreported, Fed C of A, Sundberg J, Nos VG 629-37 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 (iii) prolong rather than shorten the litigation ( GMB Research &amp; Development Pty Ltd v Commonwealth ).' As French J observed in Olbers Co Ltd v Commonwealth of Australia (No. 3) [2003] FCA 651 at [8] : 'The overarching consideration informing the discretion to make an order under O 29 r 2 is efficient case management.' The Institute made the following submissions in support of its motion: (1) The conduct complained of by David Jones was not, on the Institute's part, conduct in trade or commerce for various reasons including that the media release and the further media release were not made for any business purposes of the Institute or Dr Hamilton but for the public benefit and to engender, participate in and foster public debate with the ultimate aim of, as suggested in the Discussion Paper, instigating improvements to the regulatory system for marketing and advertising of this kind. (2) An answer favourable to the Institute on the issue of whether its conduct is in trade or commerce would be a complete answer to David Jones' case; and (3) The evidence on the threshold issue of whether the conduct of the Institute complained of is in trade or commerce is discrete and totally, or almost totally, quarantined from the merits issues whether the conduct was misleading or deceptive and whether there was any contravention of the TPA. In furtherance of the submission in [16](3) above, the Institute submitted that the expert evidence in this case is entirely limited to the merits issues whether or not the conduct engaged in was misleading or deceptive and that apart from some accounting evidence, there is no expert evidence that could be called or would be helpful to the issue of whether the Institute or Dr Hamilton engaged in trade or commerce. This is why, the submission went, there is the potential for such an enormous cost saving and saving of court time because the contravention issues involve a very wide range of expert evidence, the nature of which is outlined in Ex. 2. It was submitted on behalf of the Institute that if there was an issue of credit, it might go to, for example, the sort of business the Institute is engaged in and the extent to which the discussion papers were published for a commercial purpose. Such credit issues would not be significant; they are not expected to overlap with the same issue on the merits part of the case; it is not expected that the same lay witnesses who would be called on the question of the business activities of the Institute would also be giving evidence about the nature of the advertising or the nature of the conduct engaged in by David Jones. Finally, the Institute submitted that, if there was a separate issue ordered and decided, the fact that it might generate an appeal was not a relevant factor. As to the possibility that the resolution of the question posed in a particular way would dispose of the proceedings or significantly shorten them with an attendant saving in time and money, one is reminded of what French J said in Olbers at [31]: '... any prophesied economies are to be balanced against the fragmentation of the trial of the issue. Experience in the courts over many years has demonstrated that fragmentation of proceedings rarely result in any saving of time in the long run and that projections as to costs savings are likely at best to be speculative.'