CIVIL PROCEDURE — separate determination of questions — whether appropriate — where one party seeks determination of a separate question by a referee — where substantive proceedings concern disputed validity of association meetings, members and office bearers — where AGM cannot be held — where separate question aimed at regularising an association — where there is a commonality of factual issues — where there is a commonality of witnesses — where issues of witness credit may arise in primary and separate proceedings — whether determination of a separate question would facilitate the just, quick, and cheap resolution of issues
CIVIL PROCEDURE — alternative dispute resolution — court referral to referee — whether appropriate — where one party suspects financial and other mismanagement — where parties said to be unlikely to cooperate — where further litigation said to be extremely likely
Quick Take
1Where both parties concede an overlap of factual issues and witnesses between a proposed separate question and the substantive proceedings, and no clear line of demarcation exists, the burden on the party seeking separate determination under UCPR r 28.2 is not discharged.
2Reliance on authorities where parties had agreed to hold fresh elections (the Ahmed cases) was distinguished where no such agreement existed; the absence of party consensus on the proposed pathway was treated as a fundamental distinguishing factor.
3A party seeking a separate question must articulate with precision the mechanism by which the separate inquiry would be conducted and explain why factual overlap does not undermine the utility of the order; undeveloped and uncertain proposals militate against the exercise of discretion.
