Separate action
15 Meriton referred to Barclay's Bank v Tom [1923] 1 KB 221 at 224 where, in relation to third party procedures, Scrutton LJ stated:
"The object of the third party procedure is then in the first place to get the third party bound by the decision between the plaintiff and the defendant. In the next place it is directed to getting the question between the defendant and the third party decided as soon as possible after the decision between the plaintiff and the defendant, so that the defendant may not be in the position of having to wait a considerable time before he established his right of indemnity against the third party while all the time the plaintiff is enforcing his judgment against the defendant. And thirdly, it is directed to saving the extra expense which would be involved by two independent actions."
16 GIO referred to Martin v Cassidy; Federal Insurance Ltd (third party) (1969) 90 WN (Pt 1) (NSW) 433 and Waters v Smith & Anor [1969] 1 NSWR 151. In Walters at 152 MacFarlan J stated:
"It appears to me in this case that there may be some overlapping between the evidence to be adduced in support of the plaintiff's action and the evidence which will touch upon the question of whether or not the defendants were in breach of a condition of the policy requiring them to take all reasonable precautions. But it is also, in my opinion, clear that the issues arising out of the plaintiff's action and in the action by the defendants against the third party will be distinct and separate. It is, in my opinion, clear that it is not necessary for the plaintiff in his action against the defendants to prove facts which would show a failure to take all reasonable precautions by the defendants. Nor is it sufficient for the insurer, in third party proceedings, to show that the defendants were guilty of acts of negligence against the plaintiff for the purpose of proving failure to take all reasonable precautions.
…It seems to me in this case that a determination of the issues arising in the plaintiff's action does not involve or result in any determination of the issues arising in the proceedings brought by the defendant against the third party. There is not any risk, as I understand the matter, that there could be inconsistent findings by different tribunals of fact on these two separate issues.
I am also of the opinion that it is undesirable that these two issues being separated in the way I have described them, that the second issue, that is to say that arising between the defendants and the third party, should be tried at the same time as the issue between the plaintiff and the defendants. It is I think of some significance that the plaintiff in this case himself desires a separate trial and although that is not a matter that controls my decision, it is a matter to which I have given some consideration."
17 Similar statements were made by MacFarlan J in Martin.
18 However, more recently in Tepko Pty Ltd v Water Board [2001] HCA 19; 75 ALJR 775, Callan and Kirby JJ made comments in relation to the use of severing issues to be determined by the court. At 168 to 172 their Honours stated:
"The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P and Fitzgerald JA were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. 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, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.