Case: Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651
Outcome: referred to
Order 29 rule 2 of the Rules confers power on the Court to make orders for "... the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceeding". The principles that govern the circumstances in which an order of the kind presently sought may be made were set out in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 (" Reading" ) at [7] and [8] per Branson J. French J reiterated these principles in Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 (" Olbers" ) at [7]. In Reading at [8], Branson J summarised the relevant principles as follows: "The principles that govern the circumstances in which an order will be made under O 29 r 2 are relatively well established. They may be summarised as follows: (a) the term "question" in O 29 r 1 includes any question or issue of fact or law in a proceeding. ... ; (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 ...; (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 ...; (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 ...; (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. ...; (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 ... . (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 ...; (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 ... . 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 ...." (Citations omitted) 43 As French observed in Olbers at [8]: "The overarching consideration informing the discretion to make an order under O 29 r 2 is efficient case management. It is subject to the limitation that the Court cannot give an advisory opinion on theoretical or hypothetical facts even if such an opinion were likely to lead to a settlement or resolution of the proceedings."