Mills v Dunpec Pty Ltd [2024] NSWSC 340

Chen J

The relevant principles relating to the power to order a separate determination have been summarised in a number of cases, including Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [87]-[97]. They have also been helpfully summarised in Crawley v Vero Insurance Ltd [2012] NSWSC 593 at [15]-[20] and in Cruden v Sae-Ung [2021] NSWSC 1070 at [41]-[42]. Drawing upon these, and other, authorities, the following matters warrant emphasis in connection with the defendant’s application.

First, it is generally considered appropriate that there should be a trial of all issues, not one or some: Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [168] (‘Tepko’). Secondly, whilst the Court retains the discretion to order a separate determination of any question, the exercise of the discretion should be approached with a degree of care and caution. The necessity to approach the exercise of the discretion with “care and caution” may be said to reflect the fact that the “attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory”: Tepko at [168]. In Crawley v Vero Insurance Ltd [2012] NSWSC 593 at [17], Beech-Jones J (as his Honour then was) described it as “an exceptional measure”. That remains so, notwithstanding the terms of ss 56-58 of the Civil Procedure Act 2005 (NSW) (‘the CPA’) empower the Court to “take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously”: Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 at [6]. Thirdly, it is for the defendant to demonstrate to the Court that a separate determination of the question proposed is appropriate.