Weir v Telstra Ltd (No 2) CaseBase | [2026] FCA 19 | BC202601235 WEIR v TELSTRA LTD (NO 2) BC202601235 Unreported Judgments Federal Court of Australia · 44 Paragraphs Federal Court of Australia — Queensland District Registry Longbottom J QUD 449 of 2021 7 July 2025, 10 February 2026 Weir v Telstra Ltd (No 2) [2026] FCA 19 Headnotes PRACTICE AND PROCEDURE — Whether ends of justice render it expedient to direct a trial by jury under s 40 of the Federal Court of Australia Act 1976 (Cth) — Alleged sexual harassment, breach of confidence, misleading and deceptive conduct — No special reason demonstrated to justify departure from usual mode of trial — Whether utility in hearing the question of liability separately pursuant to r 30.01(1) of the Federal Court Rules 2011 (Cth) — Trial on all issues just and convenient. (CTH) Australian Human Rights Commission Act 1986 ss 46PO, 46PO(1), 46PO(4) (CTH) Competition and Consumer Act 2010 ss 236, 18 of Sch 2 (CTH) Federal Court of Australia Act 1976 ss 37M, 39, 40 (CTH) Privacy Act 1988 Privacy Principles 6, 11 (CTH) Sex Discrimination Act 1984 ss 28A, 28A(1), 28G, 28L, 106, 106(2) (CTH) Federal Court Rules 1979 O 29, rr 1, 2 (CTH) Federal Court Rules 2011 rr 1.32, 30.01, 30.01(1) (NSW) Defamation Act 2005 s 30 Aristocrat Technologies Australia Pty Ltd v Light & Wonder, Inc. (No 3) [2025] FCA 775 ; Australian Competition & Consumer Commission v Valve Corp (No 3) [2016] FCA 196 ; Australian Energy Regulator v Snowy Hydro Ltd [2014] FCA 1013 ; Comcare v John Holland Rail Pty Ltd [2010] FCA 981; (2010) 189 FCR 173 ; Dinnison v Cth of Australia [2000] FCA 1841; (2000) 106 FCR 418 ; Graham’s Factree Pty Ltd v Oak Enterprises (No 1) [2012] FCA 1033 ; Hughes t/as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126; (2020) 277 FCR 511 ; Lehrmann v Network Ten Pty Ltd (Tribunal of Fact) [2023] FCA 612 ; Miles v Commissioner of Patents [2013] FCA 1017 ; Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 ; Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495 ; Richardson v Oracle Corp Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334 ; Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd [2016] FCA 610 ; Verrocchi v Direct Chemist Outlet Pty Ltd [2015] FCA 234; (2015) 228 FCR 189 ; Walsh v Permanent Trustee Australia Ltd (1996) 21 ACSR 213 ; Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191; (2017) 255 FCR 61, cited Longbottom J. Page 2 of 8 Weir v Telstra Ltd (No 2), [2026] FCA 19 OVERVIEW [1] The Applicants (Weirs) and the Second Respondent (Mr Bose) are neighbours. The Weirs allege that they were sexually harassed by Mr Bose at a time when the First Respondent (Telstra) was his employer and provided them with telecommunication and information services. In this proceeding, the Weirs claim damages for sexual harassment, misleading and deceptive conduct and breach of confidence. They also seek permanent injunctive relief against Mr Bose for invasion of privacy, nuisance, intentional infliction of harm and trespass. [2] Before me are two interlocutory applications. The first, filed by the Weirs, seeks an order pursuant to s 40 of the Federal Court of Australia Act 1976 (Cth) and r 30.01 of the Federal Court Rules 2011 (Cth) for a trial by jury. The second, filed by Telstra, seeks an order pursuant to r 30.01 of the Rules for a separate question with respect to the issue of liability in the proceeding. THE PROCEEDING [3] It is convenient to begin with an overview of the issues arising in the proceeding (as revealed by the pleadings) relevant to the interlocutory applications for a trial by jury and separate question. Sexual Harassment [4] The sexual harassment claim is founded on a series of advertisements purportedly published by the Weirs between 27 September and 17 November 2017, in which it was falsely suggested that they were willing to engage in a range of unsolicited sexual acts at their home. Several of the advertisements included their home address and phone number and Mr Weir’s mobile phone number. [5] The Weirs allege that Mr Bose published the advertisements and this conduct constitutes sexual harassment within the meaning of s 28A of the Sex Discrimination Act 1984 (Cth). Materially, this requires the Weirs to establish that Mr Bose engaged in the alleged conduct “in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the [Weirs] would be offended, humiliated or intimidated”: Discrimination Act, s 28A(1). [6] In that event, and provided the Weirs can establish that the alleged conduct was unlawful and Mr Bose engaged in it “in connection with [his] employment”, it will be necessary to determine whether Telstra “took all reasonable steps to prevent [Mr Bose] from doing acts of [that] kind” such that it can avoid a finding of vicarious liability: Discrimination Act, s 106; see also, s 28G and s 28L. [7] The Weirs claim damages (including exemplary and aggravated damages) in respect of the alleged sexual harassment. They also seek a permanent injunction against Mr Bose restraining him from residing next to the Weirs or having any contact with their family. That relief is sought pursuant to s 46PO(4)(b) of the Australian Human Rights Commission Act 1986 (Cth), which is enlivened because the President of the Human Rights Commission terminated their complaint for sexual discrimination and the Weirs commenced proceedings in the Court alleging unlawful discrimination: s 46PO(1). Breach of Confidence [8] The breach of confidence claim is founded on the inclusion of the Weirs’ personal information in the advertisements. It is uncontroversial that the Weirs provided Telstra with personal information. The Weirs allege, amongst other matters, that the personal information was held subject to the requirements of the Australian Privacy Principles under the Privacy Act 1988 (Cth). [9] The further amended statement of claim does not plead specific provisions of the Privacy Principles. Nonetheless, at the hearing of the interlocutory applications, the Weirs placed emphasis on Privacy Principles 6 and 11. Those sections of the Privacy Principles relevantly provide: that an entity must take such steps as are reasonable in the circumstances to protect personal information from misuse; and the entity must not use or disclose personal information collected for a primary purpose, for a secondary purpose, unless the individual would reasonably expect the entity to use or disclose the personal information for the secondary purpose and the secondary purpose is either directly related (if the information is sensitive) or related to the primary purpose. [10] The Weirs claim damages (including equitable, exemplary and aggravated damages) in respect of the alleged breach of confidence. They also seek an injunction against Mr Bose as part of this aspect of the claim and an order that Telstra investigate and implement reforms of its privacy policy. Misleading and Deceptive Conduct [11] The misleading and deceptive conduct claim is founded on Telstra’s investigation of complaints made by Mrs Weir in 2014, 2016 and 2018. Those complaints concerned blank text messages Mrs Weir received from a person that she later discovered was Mr Bose. As a result of those text messages, Mrs Weir had concerns about her and her family’s safety and privacy. Page 3 of 8 Weir v Telstra Ltd (No 2), [2026] FCA 19 [12] The Weirs allege, amongst other matters, that Telstra represented that the complaints had been thoroughly investigated, were not caused by a Telstra employee and that there was no reason for Mrs Weir to be concerned or insist that action be taken against Mr Bose. It is further alleged that Telstra represented to Mrs Weir she had no basis to pursue further action with respect to the complaints. Those representations are alleged to constitute conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18 of Sch 2 of the Competition and Consumer Act 2010 (Cth). [13] The Weirs claim damages pursuant to s 236 of the Consumer Act in respect of the alleged misleading and deceptive conduct. They also seek an order that Telstra investigate and implement reforms of its complaint policies and procedures. TRIAL BY JURY [14] A trial by jury in a civil proceeding is a departure from the ordinary course that a trial shall be by Judge alone: Federal Court Act, s 39. In that regard, s 40 of the Federal Court Act provides that: The Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact, and may for that purpose make all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires. [15] The person who seeks an order under s 40 bears an onus to persuade the Court to order a trial of the suit or an issue of fact by a jury: Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191; (2017) 255 FCR 61 at [43] (Allsop CJ and Besanko J) and at [51] (Rares J); see also, Comcare v John Holland Rail Pty Ltd [2010] FCA 981; (2010) 189 FCR 173 at [22] to [25] (Bromberg J). He or she must do so not by reference to “general considerations” relating to the virtues of a jury trial, but by reference to the “particular case”: Wing at [43] and [52]; see also, Verrocchi v Direct Chemist Outlet Pty Ltd [2015] FCA 234; (2015) 228 FCR 189 at [316] to [326] (Middleton J). This requires demonstration of a “substantial reason” for departing from the usual mode of a trial by a Judge: Lehrmann v Network Ten Pty Ltd (Tribunal of Fact) [2023] FCA 612 at [5] (Lee J), citing Comcare at [13] to [16] and [22]. That burden is not necessarily onerous but requires the identification of a reason which transcends the general policy debate, and the usual reasons utilised in that debate, as to whether civil jury trials are better than judge-alone trials: Comcare at [22] to [27]. Argument [16] The Weirs contend that this is a “unique and unusual matter” that warrants departure from the usual mode of a trial because it raises issues that “involve giving effect to moral and social values of the community”, which a jury will be able to determine “in a way likely to arrive at a reflection of the attitude of society generally”: cf, Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 at [26] and [31] (Rares J). Those issues specifically concern: the claim for sexual harassment under the Discrimination Act; the claim for breach of confidence as it relates to the Privacy Principles; the claim for misleading and deceptive conduct under s 18, Sch 2 of the Consumer Act; and aspects of the resulting claim for damages made in the proceeding. Sexual Harassment [17] Insofar as it concerns the sexual harassment claim, the Weirs argue that the statutory test raises questions of reasonableness that a jury is especially suited to determine because they require an evaluation of the social and moral values of society. Section 28A(1) of the Discrimination Act provides: 28 A Meaning of sexual harassment (1) For the purposes of this Act, a person sexually harasses another person (the person harassed) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. (Emphasis in original). Page 4 of 8 Weir v Telstra Ltd (No 2), [2026] FCA 19 [18] The Weirs specifically rely on the “third element” in s 28A(1) of the Discrimination Act, as described by Perram J (with whom Collier and Reeves JJ agreed) in Hughes t/as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126; (2020) 277 FCR 511, in the following terms (at [24]): Thirdly, once it be established that there was conduct of a sexual nature towards another and that the conduct was unwelcome, the provision imposes an objective delimitation on the provision’s ambit. The ‘circumstances’ must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct. The ‘circumstances’ are defined broadly in s 28A(1A) and include, importantly for this case, the relationship between the harasser and the harassed. [19] The Weirs also emphasise the questions arising on the sexual harassment claim as to vicarious liability, damages and the relief sought under s 46PO of the Commission Act. Insofar as it concerns: (a) Vicarious liability: The Weirs highlight that, to avoid a finding of vicarious liability for sexual harassment (if established), Telstra will need to establish that it “took all reasonable steps to prevent [Mr Bose] from doing acts of the kind” the subject of the claim: Discrimination Act, s 106(2); (b) Damages: The Weirs rely on the observations of Kenny J in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334, that the quantum “historically awarded” in comparable fields revealed a “substantial disparity” with awards of damages for sexual harassment claims, bespeaking that the accepted range for sexual harassment claims “may be manifestly inadequate as compensation for the damage suffered by the victim, judged by reference to prevailing community standards”: at [109] (Kenny J). The Weirs argue that a jury will be able to “apply their common understanding of the human experience” to assess what value ought to be attributed to that loss; and (c) Relief under s 46PO of the Commission Act: The section empowers the Court to make such orders “as it thinks fit” if satisfied that there has been unlawful discrimination by a respondent: Commission Act, s 46PO(4). As outlined above, the relief sought by the Weirs includes a permanent injunction restraining Mr Bose from living next door. They submit that a jury “will be uniquely positioned to consider and determine such remedial relief in the unique and extraordinary circumstances of [the] case”. That is because, the Weirs contend, whether someone should be deprived of their “right to live in [their] home” is a matter which a jury – drawing “upon life experience and social values” – is best placed to decide. Breach of Confidence [20] Insofar as it concerns the breach of confidence claim, the Weirs argue that Privacy Principles 6 and 11 import questions of reasonableness with respect to the use, disclosure and security of their personal information by Mr Bose and Telstra which a jury, “comprised of ordinary people”, is particularly well-suited to determine. Should they succeed on liability, the Weirs further contend that a jury will be apt to determine the level of compensation. Beyond emphasising the questions of reasonableness involved and a generalised assertion that a jury of ordinary people is “particularly well-suited” to bring a “community standards lens” to bear on the issues arising in the proceeding, no clear explanation was given as to why this was said to be the case. Misleading and Deceptive Conduct [21] Insofar as it concerns the misleading and deceptive conduct claim, the Weirs emphasise that the claim requires consideration of the effect of the representations on a reasonable person in the position of Mrs Weir. This, they submit, is a matter that a jury of “ordinary reasonable people” is particularly well-suited to determine because of the importance placed on the criterion of reasonableness: cf, Australian Competition & Consumer Commission v Valve Corp (No 3) [2016] FCA 196 at [219] (Edelman J). Should they succeed on liability, those same considerations are said to apply to compensation. Again, beyond emphasising the criterion and a generalised assertion that a jury is well placed to assess “the impression that an ordinary reasonable person would gain” from the representations, there was no clear explanation as to why the claim was such as to warrant a trial by jury. Quantum [22] The Weirs also rely upon the particulars of loss and damage in the further amended statement of claim. The particulars relevantly allege that the injury, loss and damage the Weirs have suffered includes: embarrassment, anxiety, distress and fear attributable to the conduct of Telstra and Mr Bose; reputational damage; and loss of seclusion and enjoyment of their family home. The Weirs contend that a jury of “ordinary people” is uniquely placed to stand in the shoes of the Weirs and determine what value society places on those matters in resolving the questions of quantum. Page 5 of 8 Weir v Telstra Ltd (No 2), [2026] FCA 19 Consideration [23] I am not satisfied that the Weirs have discharged their burden of establishing, by reference to this proceeding, that the ends of justice render it expedient that there be a trial with a jury of the suit: Federal Court Act, s 39 and s 40; cf, Wing at [43] and Comcare at [22] to [25]. That is for three reasons. [24] First, the principal issue that founds the application for a trial by jury – the third element in s 28A(1) of the Discrimination Act relevant to the sexual harassment claim – is not in issue. Telstra admits in its defence that if Mr Bose posted the advertisements, then such conduct constitutes sexual harassment within the meaning of s 28A. In his defence Mr Bose denies posting the advertisements and that their placement was sexual harassment, as defined by the statute. But at the hearing of the interlocutory application, Mr Bose, by his counsel, stated that if it is established that he published the advertisements and that conduct was of a sexual nature and unwelcome, then Mr Bose concedes that a reasonable person would have anticipated the possibility that the Weirs would be offended, humiliated or intimidated by the conduct, such that the statutory criterion is satisfied: Discrimination Act, s 28A(1); see also, Hughes at [21] to [24] (Perram J, with whom Collier and Reeves JJ agreed). Thus, the tribunal of fact (be it a jury or the Court) will not be asked to decide the third element of s 28A(1) of the Discrimination Act because it is not in issue in the proceeding. [25] Second, while aspects of the Weirs’ claim involve questions of reasonableness, Judges of this Court routinely determine such questions. As Allsop CJ and Besanko J observed in Wing, in the context of considering whether there ought to be a trial by jury of a defamation claim involving the defence of qualified privilege under s 30 of the Defamation Act 2005 (NSW) (at [44]): … the principal issues at the trial are likely to be meaning, reasonableness under s 30(3) of the Defamation Act, malice and probably damages. Meaning and some aspects of reasonableness will require the tribunal of fact to interpret the article containing the matter complained of through the eyes of the ordinary reasonable reader and at least some aspects of the plea of reasonableness will call for the application of a normative standard. Judges of this Court carry out both of those exercises on a regular basis. For example, as to the former, in the field of misleading or deceptive conduct and passing off, the Court may be required to interpret statements from the perspective of the members of the class to whom they are directed (Campomar Sociedad, Limitada and Another v Nike International Ltd and Another (2000) 202 CLR 45 at [103]-[106]). As to the latter, the Court is not infrequently assessing conduct by reference to the standards of the community or a section of the community such as the commercial community (Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 321 ALR 584; Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; (2016) 341 ALR 572) … (Emphasis added) [26] The questions of reasonableness potentially arising in the proceeding are varied, extending from an assessment of the conduct of Telstra in the context of both the breach of confidence and sexual harassment claims to that of the effect of the alleged representations from the perspective of Mrs Weir. But taken individually, or in combination, those questions are not so “unique or unusual” that the ends of justice render it expedient to depart from the normal mode of trial: cf, Dinnison v Cth of Australia [2000] FCA 1841; (2000) 106 FCR 418 at [19] (Whitlam J). That is particularly so given that the Court is not infrequently called upon to make judgments by reference to standards of behaviour conditioned by requirements of reasonableness or similar value-laden considerations: cf, Comcare at [37]. The Weirs have not identified a reason transcending those customarily utilised in the general policy debate about civil jury trials versus judge-alone trials (eg, the benefits of the community standards lens) that would warrant a departure from the ordinary position enshrined in s 40 of the Federal Court Act: cf, Comcare at [24]. [27] Third, I am not persuaded that there is a real issue as to the identification of community standards or, indeed, the “human experience” insofar as it concerns the relief claimed by the Weirs such as to warrant a trial by jury. The high-water mark of that submission was the observation of Kenny J in Richardson outlined at [20(b)] above. The Weirs emphasis, in that regard, the view of the majority in Wing, that (at [45]): … we can envisage cases where there might be good reason to have a jury. For example, although not this case, there might be a case where there is a real issue as to whether changing community standards mean that the words considered defamatory of a person, say 30 years ago, would no longer be considered defamatory. There may be other circumstances, and it is neither possible nor desirable for us to state in advance the cases that might call for an order for a jury. (Emphasis added) Page 6 of 8 Weir v Telstra Ltd (No 2), [2026] FCA 19 [28] I am not satisfied that the views expressed by Kenny J compel the result for which the Weirs contend. Her Honour’s statement was made over 11 years ago (in 2014) and in and of itself constitutes judicial recognition of prevailing community standards when it comes to awards of damages in such cases. There followed the “#MeToo” movement (in 2017) with substantive public examination of community standards with respect to sexual harassment. There will, of course, always be discourse in respect of such matters, at least to some extent. However, I am not persuaded that over 10 years later there is such an issue as to societal norms when it comes to sexual harassment or, indeed, the other aspects of the relief claimed by the Weirs such that the ends of justice render it expedient that there be an order that those questions be determined by a jury. [29] That is not to say that the question of relief, as with the questions of reasonableness raised by the claims, are not issues that would be suitable for a trial by jury. But that is not the test. Rather, it is necessary for the Weirs to demonstrate the ends of justice render it expedient to depart from the norm of a trial by Judge alone: cf, Lehrmann at [5] and Comcare at [22]. For the reasons I have outlined above, I am not satisfied that the Weirs have established that this is such a case. The matters raised by the Weirs in support of the interlocutory application are either not in issue (the third element) or, alternatively, are not such as to provide a special reason for the exercise of the discretion to order that they be decided by a jury: cf, Federal Court Act, s 40. SEPARATE QUESTION [30] A separate question is a departure from the ordinary course that all issues of fact and law should be determined at the same time: Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd [2016] FCA 610 at [23] (Mortimer J). Rule 30.01(1) of the Rules provides, in this regard, that a question arising in the proceeding may be heard separately from any other questions. The discretion to make such an order is to be exercised in view of the ordinary position and only where the Court is satisfied that it is just and convenient for an order for a separate question to be made: Shopfitters at [23]. [31] As Mortimer J (as her Honour then was) went on to outline in Shopfitters (at [24]): It must also be recalled that this discretion, like other discretionary procedural powers in the Federal Court of Australia Act 1976 (Cth), is to be exercised in a way which “best promotes” the overarching purpose of the civil practice and procedure provisions in the Federal Court Act and the Federal Court Rules: see s 37M(3). That overarching purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Included in that overarching purpose are the more particular objectives set out in s 37M(2) of the Federal Court Act. [32] The factors which tend to weigh in favour, and tell against, the making of an order for a split trial were summarised by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495 at [8] (in relation to O 29, r 2 of the Federal Court Rules 1979 (Cth) (Old Rules)): The principles that govern the circumstances in which an order will be made under O 29, r 2 are relatively well established. They may be summarised as follows: (a) the term “question” in O 29, r 1 includes any question or issue of fact or law in a proceeding. The distinction in the rule between an “issue” and a “question” is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an “issue”, and less decisive matters of dispute being “questions” (Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 425); (b) a question can be the subject of an order for a separate decision under O 29, r 2 even though a decision on such a question will not determine any of the parties’ rights (Landsal Pty Ltd (in liq) v REI Building Society at 425); (c) however, the judicial determination of a question under O 29, r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [45]); (d) where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are 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 (Jacobson v Ross [1995] 1 VR 337 at 341, referring to Attorney-General (UK) v Nissan [1970] AC 179 at 242-243 per Lord Pearson; Bass v Permanent Trustee at [53]); (e) care must be taken in utilising the procedure provided for in O 29, r 1 to avoid the determination of issues not “ripe” for separate and preliminary determination. An issue may not be “ripe” for separate and preliminary Page 7 of 8 Weir v Telstra Ltd (No 2), [2026] FCA 19 determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 at 606 per Kirby P); (f) factors which tend to support the making of an order under O 29, r 2 include that the separate determination of the question may — (i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or (ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill at 607 per Kirby P); (g) factors which tell against the making of an order under O 29, r 2 include that the separate determination of the question may — (i) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial (GMB Research & Development Pty Ltd v Cth ; (ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding (GMB Research & Development Pty Ltd v Cth; Arnold v A-G (Vic) [1995] FCA 727). This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or (iii) prolong rather than shorten the litigation (GMB Research & Development Pty Ltd v Cth). [33] Those factors have been adopted in relation to the successor to O 29, r 2 of the Old Rules, r 30.01 of the Rules: see, eg, Graham’s Factree Pty Ltd v Oak Enterprises (No 1) [2012] FCA 1033 at [8] (Dodds-Streeton J); Aristocrat Technologies Australia Pty Ltd v Light & Wonder, Inc. (No 3) [2025] FCA 775 at [9] (Burley J); and Australian Energy Regulator v Snowy Hydro Ltd [2014] FCA 1013 at [40] (Beach J). Argument for a separate question [34] Telstra seeks an order for a separate question on the liability issues raised in [1] to [55], [57] to [60], [62] to [68] and [70] to [75] (except for the allegation in [72] that the Weirs have suffered loss and damage) of the further amended statement of claim dated 24 January 2025. The consequence of such an order is, Telstra submits, that the issues of loss and damage will fall to be determined after a trial on liability. [35] Telstra argues that a separate question on liability will contribute to the saving of time and cost because there is no overlap in the evidence to be called on the issues of liability as opposed to loss and damage. Its position is that the evidence with respect to loss and damage is likely to be confined to expert medical and property valuation evidence. Telstra also emphasises the prospect that resolving liability will narrow the scope of the evidence required, and hearing for, the loss and damage. That is because that answer will determine which claims succeed and in respect of which respondents. [36] Mr Bose consents to the order sought by Telstra for a separate question on the issue of liability. [37] The Weirs oppose an order for a separate question. That is for three reasons: (a) First, they submit that relief sought by Telstra is for a hearing on the “issue” of liability, which the Court is not empowered to order under r 30.01 of the Rules. The Weirs argue that this is because both r 30.01 and its predecessor (O 29, r 2) only refer to a “question”, but under O 29, r 1 of the Old Rules “question” was expressly defined to include an issue whereas no such definition appears in the Rules. The Weirs contend that a “question” within the meaning of r 30.01 refers to something less than an “issue” and the purpose of the Rules “is not to separate a justiciable controversy into two separate trials on liability and loss and relief” but to facilitate the determination of a discrete “non-decisive” question which may narrow the issues to be determined at the trial or shorten the litigation; (b) Second, the Weirs propose to give evidence with respect to both liability and loss and damage. They point to the risk of credit findings in the liability hearing, which is a factor that weighs against a separate question, as well as the personal cost to them in having to give evidence twice given the sensitive and upsetting nature of the events the subject of the claim; and (c) Third, the Weirs contend that the trial will be longer if there are separate hearings on liability and loss and damage. On their estimate, a trial on all issues will occupy between four and eight days (depending on Page 8 of 8 Weir v Telstra Ltd (No 2), [2026] FCA 19 whether evidence-in-chief is given by affidavit or orally) but may be up to 50 per cent longer if split, and a hearing on both liability and loss and damage go ahead. DISPOSITION [38] I am not persuaded that this is an appropriate case to order a separate question on liability. I accept, as Telstra contends, that a separate question on liability may narrow the issues to be determined at a hearing on loss and damage or resolve the need for such a hearing. But against that is the prospect of the Weirs having to give evidence at both stages of the hearing. Importantly, Telstra, by its counsel, accepted that this is a possibility. Moreover, Telstra did not seriously put in issue the Weirs’ contention that a split trial may ultimately be longer if a hearing on liability does not result in disposal of the matter, and a hearing on loss and damage goes ahead. [39] As such, in my view, this is not a proceeding in which it is just and convenient to depart from the ordinary course to order a separate question on liability. I am confirmed in that view by the relatively confined timeframe for a trial on all issues, being a hearing in an order of weeks rather than months. The prospect of a narrowing or disposal of the proceeding, as a result of the answer to a separate question on liability, is not sufficiently strong enough that it outweighs the prospect of an overlap in evidence and a lengthier hearing overall: cf, s 37M of the Federal Court Act. [40] Given that conclusion, it is not necessary to decide whether the Court lacks the power under r 30.01 of the Rules to make such an order because liability is an “issue”, not a “question”. Were it necessary to do so, I would reject the Weirs’ contention to that effect. That is for two reasons. [41] First, r 30.01 of the Rules refers to a separate trial on “a question”. The ordinary meaning of “question” is “subject of dispute or controversy”: Macquarie Online Dictionary (9th ed). Liability may be the “subject of dispute or controversy” in a proceeding. As such, the expression “a question” in r 30.01 is broad enough to capture a dispute or controversy about liability. [42] The Weirs’ reliance on the definition of “question” in O 29, r 1 (to include both a question and an issue) to restrict the ambit of r 30.01 (to a question) appears to derive from Reading at [8(a)]. Their reliance on the Old Rules creates an uncertainty that, for the reasons outlined immediately above, does not exist on the face of r 30.01 and cannot be permitted: Walsh v Permanent Trustee Australia Ltd (1996) 21 ACSR 213 at 215 (Brownie J) and Miles v Cmr of Patents [2013] FCA 1017 at [74] (Gordon J). Moreover, the construction for which the Weirs contend would produce the manifestly absurd result that the separate determination of an “issue” – that could lead to the disposal of the entire proceeding – would be beyond the scope of r 30.01: cf, Reading at [8(f)]. [43] Second, and in any event, r 1.32 of the Rules provides that the Court may make any order it considers appropriate in the interests of justice. In my opinion that includes an order for a separate trial on liability. CONCLUSION [44] For the reasons outlined above, both the interlocutory application for a trial by jury and the interlocutory application for a separate question on the issue of liability, will be dismissed. I will hear the parties as to costs. Order 1. The interlocutory application filed by the Applicants on 28 March 2025 is dismissed. 2. The interlocutory application filed by the First Respondent on 28 March 2025 is dismissed. 3. The parties be heard as to costs. Counsel for the applicants: Ms P Willoughby Counsel for the first respondent: Mr E Gisonda Counsel for the second respondent: Mr A J Schriiffer Solicitors for the applicants: Harmers Workplace Lawyers Solicitors for the first respondent: Seyfarth Shaw Solicitors for the second respondent: Armstrong Kutz Lawyers End of Document