Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1482

Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1482

The Court refused separate determination because QBE did not show that the proposed procedure would serve the interests of justice or achieve the just, quick and cheap resolution of the proceedings. The proposed questions would likely require evidence from witnesses also central to the substantive liability issues, including Ms Vasic, Mr Fairey, the plaintiff and his father, and would likely involve credibility findings overlapping with the final hearing. The asserted settlement and time-saving benefits were uncertain, Wesfarmers opposed the course, and an appeal might further delay and increase costs.

Jurisdiction
Australia
Judgment Date
20 December 2010
Procedural Posture
Application for Determination of Separate Questions / On the Papers
Outcome
Application for determination of separate questions dismissed with costs.
Legal Topics
['determination of Separate Questions' 'commonality of Witnesses' 'credit and Credibility Issues' 'just, Quick and Cheap Resolution of Proceedings' 'insurer Contribution Proceedings']
['practice and Procedure' 'civil Procedure' 'insurance'] ['determination of Separate Questions' 'commonality of Witnesses' 'credit and Credibility Issues' 'just, Quick and Cheap Resolution of Proceedings' 'insurer Contribution Proceedings']

Case Brief

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Procedural Posture

Application for Determination of Separate Questions / On the Papers

Legal Issues

  1. 1 ['Whether the Court should order, under rule 28.2 of the Uniform Civil Procedure Rules, separate determination of questions about the relationship between Mr Fairey and Ms Vasic before the remaining issues in the proceedings.' 'Whether determination of the proposed separate questions would facilitate the just, quick and cheap resolution of the proceedings.' 'Whether commonality of witnesses and likely issues of credit made separate determination inappropriate.']

Ratio Decidendi

The Court refused separate determination because QBE did not show that the proposed procedure would serve the interests of justice or achieve the just, quick and cheap resolution of the proceedings. The proposed questions would likely require evidence from witnesses also central to the substantive liability issues, including Ms Vasic, Mr Fairey, the plaintiff and his father, and would likely involve credibility findings overlapping with the final hearing. The asserted settlement and time-saving benefits were uncertain, Wesfarmers opposed the course, and an appeal might further delay and increase costs.

Court Disposition

Application for determination of separate questions dismissed with costs.

Orders

  • ['Dismiss the application of QBE for the separate hearing and determination of the questions relating to the relationship of Mrs Vasic and Mr Fairey.' 'QBE pay the costs of the application.']