PARTIES:	BURIC
V
TRANSFIELD PBM PTY LTD

TITLE OF COURT:	In the Supreme Court of the Northern
Territory of Australia

JURISDICTION:	Supreme Court of the Northern Territory of Australia exercising Territory jurisdiction

FILE :	428 of 1989
DELIVERED:	Delivered at Darwin 24 December 1992 HEARING DATES:	Heard at Darwin 6,7,9,16 July 1992 and 7
August 1992 and 28,29 September 1992

JUDGMENT OF:	Mildren J

CATCHWORDS:

COURTS AND JUDGES Judges Reasons Preliminary point only decided No negligence or breach of statutory duty entitled to so much of trial judge's time proper determination of issues
Motor Accidents (Compensation) Act (NT) ,s4

for	judgment finding	as	to
-	Litigant	only as necessary for

Ashmore and Ors v Corporation of Lloyd's (1992) 1 WLR 446, applied.
NEGLIGENCE - Statutes - Abolition of some common law rights by Motor Accidents (Compensation) Act (NT) - Plaintiff a resident of the Territory No common law action  in negligence

Motor Accidents (Compensation) Act (NT),s4 Wickham v Tacey (1985) 36 NTR 47, applied.

PRACTICE - Northern Territory - Practice and procedure - Claim in negligence from motor vehicle accident - Incumbent on plaintiff to prove outside Motor _:;ccidents (Compensation) Act (NT)

Motor Accidents (Compensation) Act (NT) Supreme Court Rules (NT),rl3.07(1)(a) Wickham v Tacey (1985) 36 NTR 47, applied.

STATUTES	-  Interpretation - "Resident  of the Territory"		- "Written agreement for employment for not less than three months" - "Resided in the Territory for a continuous period of three		months"		"Resided"	-	"Continuous"	- Questions		of fact	and			degree	-		Does		not	mean	exclusive	residence Physical		presence			may	be		interrupted		Intention	and duration relevant
Motor Accidents (Compensation) Act (NT),s4 Bassett v Bassett (1983) 24 NTR 9, applied.
Wickham v Tacey (1985) 36 NTR 47, applied.
Commissioner	of	Taxation	v	Miller	(1946)	73	CLR	93, referred to.
Gregory	v	Deputy	Federal	Commissioner	of	Taxation	(WA)
(1937) 57 CLR 774, referred to.
Inland	Revenue	Commissioners	v	Lysaght	[1928]	AC	234, referred to.
Levene	v Commissioners	of	Inland	Revenue	[1928]	AC	217, referred to.

Re	Control
Broadcasting referred to. Sargood	Eros applied.

Investments	Pty	Ltd
Tribunal	and	Ors
v The	Commonwealth

and	Ors
(1981-82)
(1910)	11

v	Australian
39	ALR	281,
CLR	258,	not

REPRESENTATION:
Counsel

Plaintiff: Defendant:
Solicitors Plaintiff: Defendant:

J Tippett G Hiley QC

Ward Keller
Elston & Gilchrist

Judgment Category classification: CAT A Court Computer Code: 8913971
Judgment ID Number: MIL92042 Number of pages: 15
General Distribution

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN

N2 428 of 1989 BETWEEN:
MICHAEL SLOBODAN BORIC
Plaintiff

AND:
TRANSFIELD PBM PTY LTD
Defendant

CORAM: Mildren J

REASONS FOR JUDGMENT
(Delivered 24 December 1992}

The plaintiff's claim is for damages for negligence, or alternatively, for breach of statutory duty, arising out of an alleged accident which occurred on 19 July 1986 in the course of the plaintiff's employment with the defendant. According to the Statement of Claim, as it appeared in its final form, the plaintiff sustained his injuries when, in order to lift a pipe, the plaintiff was operating a crane, which was affixed to the tray of a Bedford truck, when the crane became detached from its supports causing the pipe to strike him.

The defendant by its Amended Defence in its final form, admitted that the plaintiff was involved  in an "incident" on 10 July 1986, but did not admit the circumstances of the accident as pleaded. Further, the defendant denied any negligence, and denied any breach of statutory duty on its part. Further, the defendant pleaded that if the alleged breach of statutory duty was proven, the defendant did not admit that such breach caused the plaintiff' injuries. The defendant also pleaded that if the defendant was guilty of negligence or breach of statutory duty, the plaintiff was guilty of contributory negligence. Finally, the defendant submitted that the plaintiff was unable to recover any

damages	because	of	the Accidents			(Compensation) subject		of	any		formal

provisions	of	s5	of		the	Motor Act.	This submission	was not the pleadings,	and		the		plaintiff

contended, therefore, that this submission was not properly
before me.

The plaintiff was born on 20 April 1949. He received his primary and secondary education in Victoria. After pursuing a variety of other occupations, he acquired a florist's business in 1982 in Footscray, Melbourne. The business was unsuccessful. At the end of 1983, he and his wife and children moved to the Gold Coast, Queensland, to make a fresh start. However, he found it difficult to find work there. In December 1985, he and his family returned to Melbourne to spend Christmas. Whilst there, he applied for  a job with the defendant, and filled out a written application for employment as a crane truck driver. He had had previous experience as a fork lift driver, dogman, semi-trailer diver, and had been a self-employed  crane truck driver for some time before venturing into  the florist business. The plaintiff returned to his home at Mermaid Beach, Gold Coast in early 1986. In early February, he received advice from the defendant that he has been hired, and was to present himself the next day at Brisbane Airport to fly to Alice Springs. On arrival there, he was taken to a place fifty kilometres north west of  Barrow Creek where a camp had been set up, in order to commence work. The defendant was engaged in the laying of a portion of a gas pipeline from Palm Valley in the Amadeus Basin to Darwin.

The next day, he was given instruction as to his duties by one Tony Tschappellar, the defendant's supervisor. Essentially his job involved driving a crane truck provided by his employer along the path of the pipeline and to move offcuts of pipe to places where there were gaps left in the pipeline, and place the pipes into those gaps. He was not

provided with an assistant.

Apart from the written application for employment, the plaintiff was provided nothing in writing concerning the terms of his employment. In particular, he received no written instructions to take up residence in the Northern Territory, and nor did he, after entering the Northern Territory, enter into any written contract of employment. The plaintiff was told that he would work in the Northern Territory for twenty-eight days straight, and would then be flown home to the Gold Coast for seven days' rest at his employer's expense, after which he would be flown back to Alice Springs and transported back to the camp site to perform another twenty-eight days' straight work, and so  on, until the pipeline contract which the defendant had secured was completed. The plaintiff's pay was sent direct to his bank account at the ANZ bank, Nobby's Beach, Gold Coast.

The plaintiff's employment commenced on 5 February 1986.  The alleged accident occurred on or about 10 July 1986. The plaintiff claims that as a result of the accident, he injured his back. He says he stayed in bed back at the camp for three or four days thereafter; his back got a bit  better and "it was driving me - you know, just sort  of crazy just staying in bed all day" so he got up, and went back to work. His back was still painful,  but he was able to bear it, and he persevered until a few days later, when he returned to the Gold Coast for his seven day rest period which had become due. When he returned home, he rested, hoping it would get better, and did not seek any medical treatment. After the rest period was over, he returned to the camp, but after a few days, he was unable to cope, and he returned home again and consulted a Dr John Shilton. Thereafter, he continued to seek medical treatment, and claims that he had been unable to return to work since.

The defendant claims that, on the facts outlined above, the plaintiff is precluded from claiming any damages as a result of the accident, because of the provisions of s5 of the Motor Accidents  (Compensation)  Act  which,  as  at July 1986, provided as follows:
"5.	ABOLITION OF CERTAIN COMMON LAW RIGHTS

No action for damages shall lie in the Territory in respect of the death of or injury to a resident of the Territory in or as a result of an accident that occurred in the Territory."

The plaintiff raised in his final address for the first time as a preliminary objection to this submission, that the defendant, not having pleaded that the action was not maintainable, could not rely on s5 of the Act. Rule 13.07(1)(a) of the Supreme Court Rules provides that "a party shall, in a pleading subsequent to a statement of claim, plead specifically a fact or matter which the party alleges makes a claim not maintainable." However, in Wickham v Tacey (1985) 36 NTR 47, O'Leary CJ held that it was incumbent upon a plaintiff who wished to claim damages at common law for personal injuries as the result of a motor vehicle accident to plead, and prove, (a) that the plaintiff was not a "resident of the Territory" as defined; or (b) that the death or injury was not received in or as a result of an "accident" as defined, that occurred in the Territory. At the time when Wickham v Tacey, supra, was decided, s5 of the Act was not in precisely the same form as it was in 1986, but, I do not consider that that case can be distinguished on that ground. Also, it is apparent that the draftsman of the Statement of Claim had Wickham v Tacey, supra, in mind. The Statement of Claim was amended in March 1992 to plead that "at all material times the
plaintiff was not a resident of the Northern Territory within  the meaning  of the Motor  Accidents   (Compensation)   Act (NT) ''. This allegation was denied in the defendant's Defence. Further, counsel for the plaintiff, when he opened his case, told me that there was an issue as to whether or

not the plaintiff was a "resident of the  Northern Territory" within the meaning of the Act. I specifically asked him whether there was also an issue as to whether the incident was an "accident" as defined, as that issue  was not raised in the pleadings, and I was told by the plaintiff's counsel that "Your Honour can take it that it's an accident within the meaning of the Act. The  real question is residency." It was my understanding, right from the beginning of the case, that the plaintiff had accepted that it was incumbent upon him to prove, in accordance with Wickham v Tacey, supra, that the plaintiff was not a resident of the Territory, it being admitted that the injuries were caused by an "accident" as defined,  and I have no doubt that the case was all along fought by both parties on this basis. In those circumstances, even  if I had been of the view that Wickham v Tacey, supra, was wrongly decided, that I ought not follow it, and that the defendant ought specifically to have pleaded reliance upon s5 of the Act, I would not have precluded the defendant  from raising s5 of the Act, and I would have treated the pleadings as having had all amendments made to them  to raise that issue: Keith v R Gancia & Co Ltd [1904) 1 Ch 774 at 789; Bagnall v National Tobacco Corporation of Australia Ltd (1934) 34 SR(NSW) 421; Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563; Framar Money Management Pty Ltd v Territory Insurance Office and Ors (1986) 87 FLR 251 at 271-73. However, no argument was put to me that Wickham v Tacey, supra, was wrongly decided, and I am not satisfied that I, sitting as a single judge of this Court, ought not to follow the judgement of another judge of this Court. Accordingly, whichever way one looks at it, the defendant  is entitled to submit that s5 of the Act precludes the plaintiff from recovering any damages without any necessity to amend the pleadings.

I turn now to consider whether the plaintiff  is precluded by s5 of the Act from recovering any damages. I proceed on

the	basis	that	is	it	agreed	between	the	parties	that	the
incident	was an  "accident	that	occurred .in	the	Territory"
within the  meaning  of  the  Act,  and  that  the  only  question is whether or not the plaintiff was a "resident  of  the Territory" within the meaning  of  the  Act.  For  the  purposes of  this  case,  it  was not  disputed   that   that  question   fell to be determined by reference to those  parts  of  the definition  of  "resident  of  the  Territory"  contained   in   s4 of the Act which provided that the expression means (a) "a person who at the time of the accident has resided in the Territory for a continuous  period  of  three  months"  or  (b) "has entered the  Territory  to  take  up residence  pursuant  to a written direction of  his  employer,  or  a  written  agreement for his employment, that would require his services in the Territory for a period of not less that three months."

It	was  submitted   that the plaintiff			wasa "resident of the Territory"			because he had "entered the Territory to take up residence	pursuant	to		a   written   direction  of  his		employer, or		a		written	agreement		for		his		employment,	that		would require		his		services	in  the  Territory	for	a  period		of	not less	than		three  months."	The plaintiff		had made	a	written application					for		employment	which	was in respect of the 'Amadeus  Basin  to  Darwin  Pipeline  Project'  which,  provided that "in the event that my application is successful, the undertakings made in this application shall be regarded as conditions of my contract of employment and any breach of undertaking shall render me liable to have my employment terminated."   The  application,   when   it   was   completed,   did not  contain   all   the   terms   of   the   contract.   In  particular, it probably did not contain the terms of the plaintiff's remuneration.  Ext  Pl  has  provision  for  "Pay  Details"  and "Bank  Details"   which   appear   to   have   been   inserted   at   a later time.  I  note  that  the  plaintiff  signed  the   "Bank Details" on 29  January  1986,  over  a  month  after  he  had signed  the  application  form.  There  is   no   evidence   as   to when the "Pay Details" were completed. They may have been

completed at the same time as the "Bank Details" or at a time before or after that date. The application form is not signed by the employer. There is nothing in the application form to indicate the term of the contract of employment; or how often wages were to be paid, i.e. whether weekly, fortnightly or otherwise. The "Pay Details" indicate that the plaintiff was to be paid at an hourly rate, with some allowances paid at daily rates, and a clothing allowance at a weekly rate. The arrangement, which the plaintiff understood, that he would work for four weeks and then have one week off, and the fact that he was to be flown home at his employer's expense during the week off, is not mentioned.

I consider that Ext Pl evidences some of the terms of the contract, but is not evidence of all of the terms. It is arguable that it is not a "written agreement"for the plaintiff's employment, as it was not signed by both parties: see In re The New Eberhardt Company (Limited); ex parte Menzies (1890) 59 LJ Ch 73; but see In re Thomson
( 18 9 4 )	1 QB 4 6 2 •

The plaintiff said at one stage that he may have received advice of acceptance either by telephone or telegram, but  he later became more firm in his recollection that he was contacted by telephone, and I note that Ext Pl, which has provision in it for "Applicant advised by letter or  telegram on .../.../..." is left blank. I think it more probable that he was contacted by telephone, and there was no acceptance by telegram. I note also that although discovery of documents was given in this case, no attempt was made by the defendant to prove the existence of a telegram, which strengthens my view that the  probable medium of acceptance was by telephone.

Be that as it may, and assuming that the agreement for the plaintiff's employment is in writing within the meaning of

the statute, if the essential terms are reduced to writing and signed by the employee only, there is nothing in the agreement that required the plaintiff's services in the Territory for a period of not less that three months. The term of the contract of employment is not stated, and must be presumed to be terminable by either party on reasonable notice, which in the circumstances of this case, would not have required notice longer than four weeks at the most, (and probably less). There is nothing to indicate that the plaintiff was bound to serve for at least three months  under the contract. In those circumstances I do  not consider that the plaintiff was a "resident of the Territory" by reason of the existence of "a written agreement for his employment that would require  his services in the Territory for a period of three months."

The other basis upon which it was submitted that the plaintiff fell within the definition of "resident of the Territory" gives rise to two questions: (1) had the plaintiff resided in the Territory at  all at the time of the accident; and (2) if so, had he resided for  a continuous period of three months. The defendant submitted that, notwithstanding that the plaintiff's permanent home was on the Gold Coast, he nevertheless "resided" in the Northern Territory at the relevant time because that is where he worked, ate, and slept. The plaintiff contended,  on the other hand, that the word  "resided"  was not intended to be used by the draftsman  in a broad sense, so as to catch those who kept a permanent home elsewhere than in the Territory and who came into the Territory for brief periods of time in order to work, and then return to their homes, before returning to work again.

In Bassett v Bassett ( 1983) 24 NTR 9 at 10, Forster CJ construed the word "reside" in the context of the then definition contained  in s4 of the Act to mean "to live in or at a particular place." I note that the reason his

Honour preferred this interpretation was because the period of time mentioned in the section was relatively short. The form of the definition has changed, since that case was decided, inter alia, to shorten further the period of residence from six months to three months. This being so, there is no reason to depart from his  Honour's construction, which I consider that I should follow. Nevertheless, Bassett v Bassett, supra, is not a complete answer to the question. In one sense, it raises as many questions as it answered. When does a person "1ive in a particular place? Does a person "live in" the Territory if he still maintains a permanent home elsewhere, where his wife and family who depend upon his support, still reside, and where he returns whenever his work permits? Clearly,  the fact that he has a permanent residence elsewhere is not determinative of that question.  A  person can be a resident in more than one place at the same time: Gregory v Deputy Federal Commissioner of Taxation (WA) (1937) 57 CLR 774; Commissioner  of Taxation v Miller (1946) 73  CLR 93;  Levene v Commissioners of Inland Revenue [1928] AC 217 at 223, per Viscount Cave LC. Nor is it necessary for a person to  reside in the same place within the Territory for the whole of the period: Levene v Commissioners of Inland Revenue, supra, at 233. Nor is a person not resident in a place  simply because he did not voluntarily choose to go there, but was directed to go there under a contract  of employment: Commissioner of Taxation v Miller, supra, at  99, per Latham CJ. Nor is the question of where a person resides the same as the question as where he may keep his residence. Property is not a conclusive test, nor is a person precluded from being a resident because he lives in
hotels, or in	friends' homes, and in none of those places

for	very

long:

Inland

Revenue	Commissioners	v	Lysaght

[1928]	AC

234	at

244-45,	per Viscount	Summer.	Whether	or

not a person

is,

or is not, a resident of the Territory is

a	question
Commissioners

of	facts
V	Lysaght,

and	degree:		Inland		Revenue supra,	at	246-47,	per	Lord

Buckmaster;	Commissioner	of	Taxation	v	Miller,	supra,	at
103	per	Dixon	J.	In	Cesena		Sulphur	Co		Ltd	v		Nicholson (1876) LR 1 Ex D 428 at 452, Huddleston B said: "There is not		much		difficulty	in		defining	the		residence	of	an individual;		it	is	where	he	sleeps		and		lives."'		Latham		J applied  that dictum in Commissioner		of		Taxation	v Miller, supra,	at 100. I have not overlooked that it is not the noun "residence" but the verb "resided" that is  in question, and a man may sleep and eat at a place without residing there. Nevertheless, those factors are obviously important. Equally, the duration of time spent in the Northern Territory is important to the concept, for two reasons. Firstly, because the amount of time spent in a particular place has long been accepted as one of the important indicia: see, for example, Inland Revenue Commissioners v Lysaght, supra, at 240, 245-46, 248. Obviously, the amount of time spent will be one indication of whether the stay amounts to residence, or a mere sojourn or temporary visit, such as might be indicative of  a holiday or a brief visit for business purposes. Secondly, the section uses the expression "resided in the Territory for a continuous period of three months." I consider that the intention of the legislature in using the word "continuous" had a number of purposes: (1) to exclude those who had established themselves as residents, but for less than three months; (2) to prevent those who left  the Territory with the intention of no longer residing  here, but who returned to reside here again, from aggregating the two periods of residence into a total of three months;  (3)   to provide some practical guidance by a three month period of continuous residence as a relatively simple criteria for establishing residence rather than for example, the former definition which also looked at the intention  of a person at the moment he entered the Territory. True it is that in Re Control Investments Pty Ltd and Ors v  Australian Broadcasting Tribunal and Ors (1981-82) 39 ALR 281 at 387, Merling J observed that the meaning of "resident" in a

statute is to be ascertained by seeing what is the purpose of the enactment. Mr Tippett, for the plaintiff, points out that the objects of the Act, as set out in the preamble, include inter alia "to establish a no fault compensation scheme in respect of death or injury in or as a result of motor vehicle accidents to abolish certain common law  rights in relation to motor vehicle accidents, and for related purposes." But an examination of these purposes, in my opinion, does not assist the question of construction of the Act which I have to determine. It is a matter of political opinion, on which minds might differ, as to whether the no-fault statutory scheme is better or worse overall than the remedies available at common law.  Certainly there is no reason that I can think of, on examining the purposes of the Act, to construe residence so as to mean exclusive residence. Indeed, in relation to accidents that occur outside the Territory, the Act specifically contemplates the possibility of some kind of dual residency: see para (b) of the definition of "resident of the Territory." As to accidents that occur within the Territory, a narrow construction of the section would preclude some persons, who would otherwise have no claim at all, from getting the benefit of the no-fault scheme. I do not think that in interpreting legislation of this kind, it is helpful to approach my task by reference to the general rule of construction that the legislature is presumed  not to have intended to take away existing rights unless the language used is capable of no other construction: c.f. Sargood Eros v The Commonwealth (1910) 11 CLR 258 at 279.  To insist, by means of this kind, on a construction which favoured the preservation of the common law, might assist the plaintiff in this case, yet it would also penalise some others in whose favour the Act has been passed, viz,  some  of those who are unable to establish negligence. In these circumstances, I do not think this principle of  construction has any application: c.f. Pearce and Geddes Statutory Interpretation In Australia 3rd ed paras 5.10 and

5.11.

The word "continuous" means, according to the  Shorter Oxford Dictionary, "uninterrupted in time, sequence or essence; going on without interruption." Nevertheless,  it is the fact of residence that needs to be uninterrupted;  and in my opinion this is not the same question as whether the person physically remained in the Territory for a

continuous period of three months. In my opinion, who	arrived	in	the	Northern	Territory,	stayed

a person for	two

months, left for a day, intending to return the next day, and did so, and then remained for a further month, is not precluded from being a person who "resided in the Territory for a continuous period of three months." It is not essential for a person to be physically present in the Territory for the whole of the three months period for him to have resided here for the whole of that period. So much follows, in my opinion, from the fact that a person may reside in more than one place at the same time, and yet be held to reside in both places simultaneously. As Viscount Cave LC observed in Levene v Commissioners of Inland Revenue, supra, at 223 (in a dictum quoted with approval by Latham CJ in Commissioner of Taxation v Miller, supra, at 99): "In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is none the less resident there because from time to time he leaves it for the purpose of business or pleasure." I would add, with respect, that the same applies regardless of why he leaves it, if he intends to return and has not abandoned his intention to reside there. Clearly, the intentions of the plaintiff are relevant to this question: Gregory v Deputy Federal Commissioner of Taxation (WA), supra, at 778, and the final words of the definition of "resident of the Territory" in s4 of the Act: "but does not include a person who has left the Territory with the intention of no longer residing in the Territory."

The facts of this case establish that the plaintiff arrived in the Territory on about 5 February 1986. From that time  on he slept and ate in his employer's camps (which may have shifted location once or twice) near the places where construction work of the pipeline continued. His work involved driving the crane truck to the site where he was  to shift pipes, and along the pipeline and back to the camp each day. On some occasions, he was sent to Alice  Springs to pick up items from the defendant's yard there and bring them back to camp. Sometimes this involved  an overnight stay in a motel in Alice Springs. At no time did his work take him outside the Territory. Apart from occasions when  he returned to his home at the Gold Coast for seven days every four weeks, he worked and lived in this fashion until the alleged accident on 10 July 1986. On this basis, the plaintiff could not have spent more than twenty-eight days out of a total of 155 days outside of the Territory.  He kept his bank account on the Gold Coast, where his wife and family lived and it is clear that he did not abandon his residence there. It is not clear what personal  belongings he had with him in the camp. His intention was to remain in this job for so long as the job lasted, and he said that when he arrived here he had no idea whether it would last one month or twelve. Each time he returned home on recreation leave, he intended to return at the end of each seven day period. There is no evidence that he had a motor vehicle in the Territory, or even a driver's licence in the Territory. As to the former, he had no need for one. In his answers to interrogatories (Ext D5) the plaintiff said that his places of residence immediately before the accident  were "camps in the Northern Territory set up by the defendant for its workers along the natural gas pipeline that we were working on and where the accident occurred;  and 23 Toorak Park Avenue, Mermaid Beach, Gold Coast in the State of Queensland"; and that "my intention with regard to my place of residence at the date on which I entered the Northern Territory was to reside in the said camps as and

where	my	employer	required	me	to		and Queensland		address		in	accordance	with

to	reside	at	my the		terms	of	my

employment when I was on leave." On these facts,  it seems to me that the proper conclusion is that,  at the time of the alleged accident, the plaintiff had resided in the Northern Territory for a continuous period of  at least three months. True it is that he had left the Territory on perhaps four occasions during the five months he was in the Territory for a week on each occasion, but on none of those occasions had he abandoned his intention of residing in the Territory. Although there is no evidence that he had established a permanent place of abode in the Territory, such as a flat or the like, or brought with him a car or established any other indicia of residency, this is explicable by the fact that he lived in  his employer"s camps at a remote area and worked continuously for periods of twenty-eight days before returning home. Consequently  one would not expect him to have done so; nor would it have been feasible to have established any of the other indicia of a permanent place of abode, particularly as the camps were not even located in any permanent place, and he had no opportunity for recreation in the Territory.  Accordingly, in my opinion the plaintiff is precluded from bringing any action for damages arising out of the alleged accident.

I have considered whether I ought, in case there is an appeal, decide the other issues which were argued before  me, viz, whether or not negligence or breach of statutory duty had been established, the issue of causation, and the quantum of damages to which the plaintiff would be entitled if he had succeeded. These are not simple issues;  to resolve them fully would take considerable time. I am not  in any doubt that in many cases, such a course  is desirable, because it enhances the prospects of the Court  of Appeal disposing of the matter finally, if there is an appeal. By not doing so, there is a risk that I may be ordered to consider these matters, which could result in

yet another appeal. On the other hand, if I were to decide those issues, delivery of judgment in this matter will be delayed, as will judgments in other matters waiting my attention. I am mindful of the observations of Lord Roskill in Ashmore   and   Ors   v   Corporation   of   Lloyd's    (1992)    1    WLR 446 at 448:
"Litigants are not entitled to the uncontrolled use of

a	judge's		time.	Other	litigants	await Litigants  are only entitled	to so much judge's	time	as		is		necessary		for determination of the relevant issues."

their	turn. of the trial the	proper

As I am firmly of the view that this action must fail in limine, I have decided that on balance it is preferable for me not to decide these other issues.

Accordingly, the action is dismissed, with costs.

-15-