Abstract

Principles for Order for Separation of Issue

Article

Separation of Issues

As to whether separate determination of an issue in an action should be ordered, as all issues should ordinarily  be determined together: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141, an applicant bears the onus of showing that separation would be appropriate: Crawley v Vero Insurance Ltd (2012) 17 ANZ Ins Cas 61-946 at [17]. It may be so if the issue is central between the parties, and its resolution will obviate the litigation or substantially narrow its scope: CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601. It is not appropriate if there are common factual matters relevant to its issue and to other issues in the case or if the same witnesses are likely to be called in relation to such issues: Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168]; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215. Whether a separation order will or will be likely to bring about a substantial saving in time and costs is an important factor: Todd Hadley Pty Ltd v Lake Maintenance (NSW) Pty Ltd [2019] NSWCA 262; Arch Underwriting Agency (Australia) Pty Ltd v Lexon Insurance Pte Ltd [2020] NSWSC 580.

Contribution between Insurers

It may not be necessary for a claimant for contribution to establish that it was liable to indemnify the insured. It is arguable that its liability is established if the payment it made was made in respect of its obligation to indemnify the insured and it would be unjust not to permit that insurer to recover contribution. The right usually arises though the indemnity made is not proved to have been due, but was reasonabe and honest where there was doubt as to the liability and its extent: GRE Insurance Ltd v QBE Insurance Ltd [1985] VR 83, where there was a liability but the amount of indemnity due was in doubt. However, it is at least arguable that the principles adopted in that case should be extended to the present one.