Case: Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
Outcome: considered
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. 29 The starting point must be that, as a general rule, all issues of fact and law should be determined at the one time: Reading at 497 [7]; Tallglen at 141-142; and Diageo at [23]. 30 A party seeking the determination of separate questions must satisfy the Court that it is 'just and convenient' for the order to be made: Reading at 499-500 [9]-[10]. 31 It would not be appropriate to separate a question if it would not permit or involve a conclusive or final judicial decision that is based on concrete facts, either established or agreed, for the purpose of quelling a controversy between the parties: Bass at 355 [45] and 357 [49]; and Reading at 498 [8]. In Bass , Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said at 357 [49]: 'As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.' 33 In Reading at 498 [8], Branson J said that all of the facts that are on any fairly arguable view relevant to the determination of the separate question must be 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. Where the separate question involves the grant or refusal of declaratory relief, the Court must be placed in a position where it can consider all relevant matters before it exercises its discretion to grant or refuse the relief: Reading at 500 [11]. 37 On the other hand, an issue will not generally speaking be 'ripe' for separate determination if it is simply one of two or more alternative ways in which an applicant frames its case, and its determination would leave other significant issues unresolved: Reading at 498 [8]; and Souflett Beheer at [20]. 39 In Reading , Branson J at 499 [8] listed factors that have been taken into account by the courts in making or refusing orders for the trial of a separate question. The relevant factors include the following: (i) whether the separate questions will contribute to the saving of time and cost by substantially narrowing the issues for trial or even lead to the disposal of the action; (ii) whether they will contribute to the settlement of the litigation; (iii) whether they will give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial; (iv) whether there will be any significant overlap between the evidence adduced on the hearing of the separate question and at trial; and (v) whether the questions will prolong rather than shorten the litigation. 56 In my opinion, the statements of principle by Branson J in Reading (which are summarised above in paragraph 33) are directly applicable. So too are the principles stated in Bass and Jacobson concerning mixed questions of fact and law. I am not satisfied that all of the necessary facts have been ascertained, agreed or proven so as to permit the judicial determination of question 1.1 as a separate question. Further, I am not satisfied that, on a separate trial of question 1.1, the Court would be placed in a position where it can consider all relevant matters before it exercises its discretion to grant or refuse relief. 57 There is no agreement between AWB and the Commonwealth as to the facts and circumstances which are relevant to the exercise of the Court's discretion. The argument before me made it plain that there would be significant factual disputes if I proceeded with an immediate trial of the separate questions, as requested by the Commonwealth. And there is a real prospect that significant contested factual issues would arise between the parties if question 1.1 were to be set down for preliminary hearing at a future date. In Reading at 499 [8], Branson J said that a factor which tells against the making of an order under O 29 r 2 is that the question may give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial. 58 The Commonwealth's argument that s 6AA offers an alternative remedy that would be more efficient and less time-consuming than court proceedings was advanced largely by way of assertion. It was disputed by AWB, and the Commonwealth's contention was not made good by placing relevant facts and evidence before the Court. 59 The Commonwealth submitted that, by virtue of the extensive investigations that have already been conducted by the Commissioner, the Commissioner and those assisting him are already familiar with the factual background to AWB's privilege claims. This was not disputed by AWB. At this stage, however, it is unclear whether, and to what extent, the resolution of the privilege claims will turn on the evidence that has already been gathered by the Commission. AWB has not argued these privilege claims in the Commission or adduced any evidence in support of them before the Commission. Over the past week, pursuant to directions made by this Court, AWB has filed affidavit evidence in support of its privilege claims in this proceeding. The Commonwealth has not suggested that any of this evidence has previously been considered by the Commissioner. In the course of its submissions, the Commonwealth asserted that the Commission is already in possession of much of the evidence necessary to determine AWB's privilege claims. But, again, this assertion was not supported by evidence. On the material before me, I am not in a position to form any view as to the extent to which the evidence already possessed by the Commission will be directly relevant to the determination of AWB's privilege claims. 69 Branson J held that the same principle should be applied where a claim for judicial review is made under the ADJR Act and alternatively under s 39B. In such a case, Branson J said at 130 [47] that 'the power of the Court to dismiss the application summarily where it is clear that no order would be made in favour of the applicant if a hearing were conducted, extends to the alternative claim formulated by reference to s 39B of the Judiciary Act '. Having regard to the fact that the Migration Act provided that the Authority's decision was amenable to full merits review before the Tribunal, and the fact that the applicant had already commenced proceedings in the Tribunal, Branson J concluded that a more convenient and satisfactory remedy existed before the Tribunal. Accordingly, she dismissed the application. 70 McGowan stands for the proposition that, in the context of judicial review, the court has the power to dismiss a judicial review application summarily where it is clear that the court would decline to grant relief at a final hearing. It does not assist in resolving the present application under O 29 r 2. It is not in dispute that this Court has power to refuse declaratory relief in the exercise of its discretion. The only question is whether, in the circumstances of this case, it is appropriate to order that this question be the subject of a separate preliminary trial. That question turns on the particular facts and circumstances of this case.