Some cases turn on a single point. If that point can be decided first, the rest of the trial may never be needed. Order 10 Division 4 of the National Court Rules 1983 provides for it.
Rule 20
In this Division “question” includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
Three points follow. The question may be one of fact as much as of law — this is not confined to preliminary points of law. It may be mixed. And it need not arise from the pleadings: agreement of parties or otherwise is enough.
So the parties may agree to isolate an issue that no pleading raises squarely, and ask the Court to decide it.
Rule 21
The Court may make orders for —
(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and
(b) the statement of a case and the question for decision.
| Question | Why separate it |
|---|---|
| Liability, with damages left over | Damages may be lengthy and expensive to prove, and unnecessary if liability fails |
| A limitation defence | If the claim is out of time, nothing else matters |
| Whether a section 5 notice was given | Without it no action lies against the State |
| Construction of a contract clause | Often decides the whole dispute |
| Jurisdiction or locus standi | Both are checklist items at the mention |
| Whether a rule of customary law applies | Pleaded under Order 8 Rule 20A, and may be decisive |
| Whether a party is bound by an agreement | Disposes of liability without reaching quantum |
Where the separate question depends on facts that overlap with the rest of the case, the same witnesses may have to give evidence twice. Where the answer will not actually dispose of anything, the exercise adds a hearing rather than removing one.
The test to apply is Rule 24: will the decision substantially dispose of the proceedings, or render unnecessary any trial or further trial? If not, separation is unlikely to help.
Rule 22
(1) Parties to proceedings in which a case is stated may, with the leave of the Court, agree that, on any question being decided in the sense specified in the agreement, a specified direction for entry of judgement or a specified order shall be made.
(2) On that question being so decided, the Court may make the agreed direction or order.
(3) Where the agreement is made before a case is stated, the terms of the agreement shall be set out in the stated case.
The parties agree in advance what follows from each possible answer: if the clause means X, judgment for the plaintiff in a stated sum; if it means Y, the proceedings are dismissed. The Court decides the question, and the agreed consequence follows.
That converts a contested trial into a single argued point, with the outcome settled either way. It requires the leave of the Court, and where the agreement precedes the stated case its terms must appear in the stated case itself.
Rules 23 and 24
Where a question is decided, the Court shall, subject to Rule 24, either —
(a) cause the decision to be recorded; or
(b) direct the entry of such declaratory judgement, or make such declaratory order, as the nature of the case requires.
Where the decision —
(a) substantially disposes of the proceedings or of the whole or any part of any claim for relief; or
(b) renders unnecessary any trial or further trial in the proceedings or on the whole or any part of any claim,
the Court may, as the nature of the case requires — (c) dismiss the proceedings or any part of any claim; (d) direct the entry of any judgement; or (e) make any other order.
Rule 24 means a separate question is not merely an advisory exercise. Where the answer disposes of the matter, the Court may dismiss the proceedings or enter judgment there and then.
A party proposing a separate question should therefore be as confident of the answer as they would be at trial — and should consider whether an appeal would lie. A judgment entered under Rule 24(d) is a final judgment; a decision merely recorded under Rule 23(a) is not, and an appeal from it may require leave under section 14(3)(b) of the Supreme Court Act (Chapter 37).
Division 3 — the commonest split of all
(1) Where judgment is entered for damages to be assessed, the proceedings shall, unless the Court otherwise orders, be set down in accordance with Division 1 for trial for assessment of damages.
(2) Where the proceedings are carried on against that party on any claim not determined by the judgment, or against any other party, the assessment shall be held together with any other trial.
This is the familiar split, and it arises automatically on a default judgment for unliquidated damages or a judgment on liability. See how damages are assessed.
Rule 18 applies the same machinery to a judgment for the value of goods to be assessed. Rule 19 provides that where damages are assessed in respect of a continuing cause of action, repeated breaches of recurring obligations, or intermittent breaches of a continuing obligation, they shall be assessed down to the time of assessment, including damages for breaches occurring after the commencement of the proceedings.
Raise it at the mention or directions hearing — the checklist includes identification of the factual and legal issues and the likely length of trial, both of which invite the question. Otherwise apply by notice of motion citing Order 10 Rule 21, with a draft formulation of the question. The formulation matters: a question loosely framed produces an answer that decides nothing.
Sources
- National Court Rules 1983 — O 8 r 20A; O 10 rr 17–24, Divs 1, 3, 4, 9A
- Supreme Court Act (Chapter 37) — s 14
- Claims By and Against the State Act 1996 — s 5
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.