The Applicant sought an assessment of damages resulting from the granting and execution of injunctive and Anton Piller relief which was overturned on Appeal. Noting factual disputes and credibility issues, the Respondents cross-applied to have the assessment of damages converted into a separate Action, pursuant to Rule 3.2(6).

The Court recognized the discretion available to it in controlling its own process, as manifested through the wide array of procedural Orders authorized under Rule 1.4, and the breadth of the directive in Rule 1.2 “to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way”. In exercising that discretion, the Court declined to direct that the Application be heard by way of a separate Action. As the existing Action had been discontinued against the Applicant, the Applicant “should not be put through the expense, time, and energy required of a full action.” Justice Shelley found that the factual disputes and credibility issues could be resolved by Court direction short of compelling a separate Action and set out a process to be followed in arriving at those directions.