BELL & ANOR v LEWIS [2026] SASC 67

First Applicant: JULIA JAYNE BELL Counsel: MR S OWER KC WITH MR E GUTHRIE - Solicitor: RANDLE & TAYLOR Second Applicant: ROBINA JUSTINE TRIGGS Counsel: MR S OWER KC WITH MR E GUTHRIE - Solicitor: RANDLE & TAYLOR Respondent: SUSANNE CHRISTINA LEWIS Counsel: MR P CAWTHORN KC WITH MR M O’CONNOR - Solicitor: DW FOX TUCKER Hearing Date/s: 06/05/2026 File No/s: CIV-25-015487 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BELL & ANOR v LEWIS [2026] SASC 67 Decision of the Honourable Justice McIntyre 8 May 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS PROCEDURE — CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS – SEPARATE DECISION OR DETERMINATION The parties are involved in concurrent proceedings in the Supreme Court of South Australia. These proceedings are ancillary to the primary proceedings. The applicants seek, by interlocutory application, a separate and urgent trial on the issue of liability in these proceedings. The question of liability concerns a deed of indemnity executed by the parties on 4 October 2024 (‘the Deed’) in which, it is alleged, the respondent agreed to indemnify the applicants against claims and costs connected with proceedings in the Supreme Court of South Australia. The applicants contend that they have incurred legal fees and disbursements in the primary proceedings that are within the scope of the Deed. It is said that the respondent has failed to pay the fees incurred and that the respondent defeats the function of the Deed by denying liability to indemnify the applicants while the primary proceedings continue. The application is opposed by the respondent, arguing that this is not a case where it is appropriate to depart from the general rule that issues in contention ought to be dealt with in a single trial. The respondent says further that the subject matter of the litigation is not of such importance as to warrant an urgent trial and that the applicants will not suffer any material prejudice should the application be dismissed. Held: Application dismissed. -- 1 of 11 -- Uniform Civil Rules 2020 (SA) rr 1.5, 3, 12.2, 101.1, 151.2, referred to. Tepko Pty Ltd v Water Board (2001) 206 CLR 1; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215; Lehrmann v Network Ten Pty Limited (Cross-claims) [2024] FCA 102, discussed. Ong v Little Company of Mary Health Care Ltd & Anor [2024] SASC 99; SA Water Corporation v United Water International Pty Ltd [2009] SASC 383, considered. -- 2 of 11 -- BELL & ANOR v LEWIS [2026] SASC 67 Civil: Application McIntyre J. 1 The applicants filed an interlocutory application seeking an urgent trial of this matter under r 101.1(3) of the Uniform Civil Rules 2020 (SA) (‘UCR’) or, alternatively, that there be an urgent trial of separate issues in the proceedings under UCR r 151.1(2).1 The applicants do not press the former issue, but rather contend that there ought to be an urgent trial in relation to the declaration sought at paragraph four of Part 4 of the Claim which is as follows:2 A declaration that the Respondent is liable to indemnify and keep the Applicants indemnified in respect of all reasonable cost, reasonable legal fees and disbursements, and loss and damage that they shall hereafter sustain and incur in respect of the Claim and by reason of the SA Proceedings in accordance with the terms of the deed dated 4 October 2024 made between the Applicants and the Respondent. 2 For the reasons that follow, I decline to order an urgent trial and I dismiss the application. Background 3 The applicants rely on the affidavit of Julia Jayne Bell sworn on 16 December 20253 (‘Bell Affidavit’), which sets out the background to this matter. This is largely undisputed. In short, the parties are sisters and were all named as executors of their late father’s estate. Probate was granted to the parties in the Supreme Court of Queensland on 8 January 2024. On 6 May 2024, the respondent issued proceedings in this Court in her own right and as executor of her father’s estate; these are CIV-24-004361 (‘the primary proceeding’). On 27 August 2024, the respondent commenced proceedings in the Supreme Court of Queensland seeking judicial advice and directions in relation to the primary proceedings under s 96 of the Trusts Act 1973 (Qld) (‘the advice proceedings’). Orders were made in the advice proceedings on 12 September 2024. 4 The Bell Affidavit deposes to and annexes a Deed of Indemnity (‘the Deed’)4 executed by the parties on 4 October 2024 in consequence of the orders made in the advice proceedings. The applicants refer in particular to clause 3.1 of the Deed which provides: Lewis indemnifies and agrees to indemnify and keep Bell & Triggs (as executors of the Estate and in their own right) and the Estate indemnified at all times from and following the date of this Deed in respect of the Claim including any adverse costs order, action, claim, proceeding, demand, reasonable cost, reasonable legal fees and disbursements, and 1 FDN 2. 2 FDN 1. 3 FDN 3. 4 FDN 3, see exhibit JJB-3. -- 3 of 11 -- [2026] SASC 67 McIntyre J 2 any loss or damage which Bell & Triggs may sustain or incur by reason of the SA Proceedings, unless Bell or Triggs join the SA Proceedings of their own volition. 5 It is contended that, from 22 November 2024, the applicants have incurred legal fees and disbursements (including counsel fees) that are within the scope of the indemnity in the Deed. The applicants further contend that, in breach of the Deed, the respondent has not indemnified the applicants and has failed to pay the applicants’ legal fees and disbursements incurred in the primary proceedings. Whilst these proceedings and the primary proceedings are being managed together as a matter of convenience; the proceedings are not joined. 6 The Deed is admitted by the respondent in the Defence. The applicants contend that the matters remaining in dispute concerning the Deed are essentially legal in character and can be resolved by reference to the terms of the Deed and the Court record (‘the liability issue’). The applicants say that the liability issue could be tried on the papers and estimate that a day is required. The remaining disputes are said to relate to quantum alone and, it is contended, could be resolved by reference to an expert referee or an Associate Justice (‘the quantum issue’). The questions to be resolved 7 Two questions arise on this application. First, whether there ought to be a separate trial of the liability issue and second, whether that trial ought to be listed urgently and before the primary proceedings. Legal principles 8 This application is to be determined under the UCR. The Court in making orders ought to have regard to the object of the rules5 and the overarching obligations of the parties as set out in UCR r 3. UCR r 1.5 sets out the object of the UCR as follows: The object of these Rules is to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings governed by these Rules. Trial of separate issues 9 The trial of separate issues is dealt with in UCR r 151.1, which provides: (1) Unless the Court otherwise orders, when it is ordered that a matter proceed to trial, there is to be a single trial of all issues (other than costs) in the proceeding. (2) The Court may order that there be separate trials of separate issues in a proceeding and may determine the order in which such trials are to be heard or determined. 10 Accordingly, as a general rule, issues in contention between parties should be dealt with in a single trial; the trial process should not be unduly fragmented. The applicants bear the onus of establishing that departure from the general rule is 5 Uniform Civil Rules 2020 (SA) r 12.2 (‘UCR’). -- 4 of 11 -- [2026] SASC 67 McIntyre J 3 appropriate in the circumstances of this case.6 The Court’s power to order separate trials is discretionary; the discretion must be exercised judicially but is unfettered. As Kirby and Callinan JJ stated in Tepko Pty Ltd v Water Board7 (‘Tepko’), a separate trial should only be embarked upon where the “utility, economy, and fairness to the parties are beyond question”.8 11 The principles set out by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd (‘Idoport’)9 are of relevance. His Honour summarised the circumstances where ordering a separate trial may be appropriate as follows:10 (a) where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy; (b) where the resolution of that separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation; (c) where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of witnesses. 12 Justice Einstein also referred to circumstances in which a separate determination would rarely be appropriate as follows:11 (a) there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation. (b) where there is a commonality of witnesses and issues of credit as between the separate issue and other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witness, thus possibly precluding that same judicial officer from again dealing with the matters going to the credit of the common witness in accordance with the decision of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (in liq). (c) there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings. (Citations omitted) 6 Ong v Little Company of Mary Health Care Ltd & Anor [2024] SASC 99. 7 (2001) 206 CLR 1 (‘Tepko’). 8 Ibid at [170]. 9 [2000] NSWSC 1215. 10 Ibid at [7] (Einstein J). 11 Ibid at [7]. -- 5 of 11 -- [2026] SASC 67 McIntyre J 4 13 Courts ought to be cautious in granting applications for separate trials. As Kirby and Callinan JJ stated in Tepko:12 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. The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties', interests. Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question. 14 Justice Einstein gave a similar warning in Idoport, concluding that for a Court to order separate trials, “it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings”.13 Urgent trials 15 The question of an urgent trial is dealt with in UCR r 101.1 which relevantly provides: (3) The purposes of a directions hearing include— ……… (c) monitoring the progress of the parties and making orders to progress the matter to resolution or trial or hearing as expeditiously and efficiently as practicable; [and] ……… (f) making orders for an urgent trial or hearing in urgent cases. 16 This too is a discretionary issue that will require weighing any detriment to the applicants if the trial of the liability issue is listed in the ordinary course, as against any prejudice to the respondent occasioned by a truncated timetable for pre-trial matters to be attended to.14 Further considerations also include the interests of other litigants who may have hearings delayed if this matter is given priority. 12 Tepko at [168]-[170]. 13 Ibid at [7]. 14 SA Water Corporation v United Water International Pty Ltd [2009] SASC 383. -- 6 of 11 -- [2026] SASC 67 McIntyre J 5 The parties’ contentions The applicants’ contentions 17 The applicants contend that the Court should determine liability under the contested indemnity by declaratory relief and refer the reasonableness of quantum to later assessment, relying upon the course taken by Lee J in Lehrmann v Network Ten Pty Limited (Cross-claims)15 (‘Lehrmann’), in what are said to be closely analogous circumstances. 18 The applicants have described four issues to be resolved in any separate trial of liability issues. The first is the “own volition” defence.16 It is said that the Deed's indemnity contains only one textual qualification: a proviso that it does not apply if the applicants “join the SA Proceedings of their own volition”. The respondent denies the applicants’ pleaded averment that they did not so join. It is contended that determination of this issue will only require limited evidence. 19 The second is the “scope” defence.17 It is contended that there is no fact in issue on this defence and that the Court can determine the scope defence on the face of the Deed and the Court record. 20 The third is the “step-down” defence18 in which the respondent contends that the applicants, by failing or refusing to step down as executors of their father's estate as she advised, have displaced the indemnity. It is said that the Defence does not identify the legal basis of this contention and that it can only be either, a construction argument that there is such a pre-condition; an argument that the Court should imply such a precondition as a term; or an application of mitigation principles to a contractual indemnity. It is said that each of those is a question of law and that the respondent's particulars draw on correspondence only; no fact in them is genuinely in contest. 21 The fourth and final defence is characterised as the “joint representation” defence19 in which the respondent contends that the applicants, by refusing to instruct her solicitors jointly with her in the primary proceedings, have displaced or abated the indemnity to the extent of the costs said to duplicate her own. It is contended that this defence turns on two questions of law: first, whether the Deed, properly construed, imposes on the applicants any implied obligation to instruct the respondent's solicitors; secondly, whether the interests of the respondent and the applicants in defending the Cross Claim are sufficiently aligned to deny that the applicants acted reasonably in retaining separate representation. It is further contended that the Court can resolve both inquiries on the pleadings and the correspondence. 15 [2024] FCA 102. 16 FDN 15, see also FDN 12 at [9]. 17 FDN 15, see also FDN 12 at [8]; [10]. 18 FDN 15, see also FDN 12 at [11.2.1]-[11.2.3]; [11.2.9]; [11.2.10.1]. 19 FDN 15, see also FDN 12 at [11.2.5]; [11.2.10.2]. -- 7 of 11 -- [2026] SASC 67 McIntyre J 6 22 The applicants contend in their summary of argument that:20 Applying the factors in Idoport: 1. A separate trial of the Declaration will not merely narrow the field of litigious controversy; it will collapse it. If the Court grants the Declaration, only quantum will remain, and the Applicants are content to have it assessed on reference. If the Court refuses the Declaration, the Claim falls. 2. Resolving the Declaration carries a realistic prospect that the parties will resolve the balance themselves. A declaration of the Respondent's continuing obligation has a real commercial utility in directing the parties' conduct over the remaining course of the Primary Proceedings. That prospect is strengthened by Lehrmann: the Respondent's joint representation answer is the argument Network Ten advanced, and abandoned, before Lee J, and it encounters the same difficulty here, heightened by the fact that Diana Mayfield alleges devastavit against all three executors jointly. 3. Liability and quantum are cleanly demarcated. No fact, no witness, and no question of credit crosses from one to the other. 23 The applicants further contend that the countervailing considerations in Idoport do not arise as the liability and quantum issues are not intertwined and no question of witness credit arises nor, it is said, is there any prospect of an interlocutory appeal fragmenting the proceedings. The Tepko threshold of utility, economy and fairness beyond question is said to be “comfortably met”. 24 As to the application for the separate trial to be heard urgently, the applicants contend that the Deed performs a clear commercial function to protect the applicants as indemnified parties while the primary proceedings are on foot. The purpose of the Deed is not to afford a delayed right of reimbursement once those proceedings are over. It is said that, by denying liability to indemnify while the primary proceedings continue, the respondent defeats that function. The applicants are compelled to fund a defence that was, on their case, always the respondent's to carry. Every further step in the primary proceedings adds to that burden. Against that, it is contended, the respondent suffers no prejudice of comparable weight. The respondent’s contentions 25 The respondent says that the applicants have not properly identified the questions for a separate trial with any clarity and that what the applicants have described as the liability issue is not solely a legal argument. The respondent does not agree that the liability issues are as confined as the applicants contend and opposes the application for a separate trial. The respondent further says that there is no proper basis on which this matter could be expedited for an urgent hearing. 26 The respondent says that the applicants’ application overlooks Defence Revision 121 which pleads agreements between the parties about balancing family inequities (‘the inequity claim’). The respondent is also seeking leave to file a 20 FDN 15 at [13]. 21 FDN 16. -- 8 of 11 -- [2026] SASC 67 McIntyre J 7 Cross Claim in which the remedy sought is damages to be set off against any orders made under the indemnity. The Cross Claim claims damages in excess of the indemnity amount. I note that the applicants’ failure to address these issues in their Summary of Argument is not surprising given the Defence Revision 1 was filed and the Cross Claim foreshadowed after the Application and Summary of Argument were filed. Nonetheless, they are relevant matters to be considered. 27 The respondent says that the defences raised on the pleadings are fact intensive and will require evidence to be given. The applicants’ submissions concede that there will need to be evidence from Ms Bell at least on the issue of the “own volition defence”. Evidence will also be required on the “joint representation issue” as to what representation was warranted and when, and on the “step down” defence as to what advice was given and when. 28 These are factual issues that require determination on liability and is a powerful reason not to have a separate trial on liability. In view of this, the respondent says that the applicants’ estimate that the trial of the liability issue will take one day is doubtful. It is further said that the applicants’ reliance on Lehrman is misplaced because, although it concerned an indemnity, the issue was whether it was reasonable for Ms Williamson to have separate representation and the appropriate time to determine reimbursement was at completion of the defamation trial. In this case, that time would be at the completion of the primary proceedings. 29 The respondent also contends that a separate trial on liability will not have the effect of resolving the entirety of the litigious controversy nor will it enhance the possibility of resolution because the quantum issue and the inequity claim will not be resolved. In line with the principles enunciated in Idoport there is no basis to order a separate trial. 30 The respondent further says that the Court should not order an urgent trial. It is said that there is no obvious prejudice to the applicants in that they do not allege they are without funds to defend the Cross Claim in the primary proceeding. There is nothing in the supporting affidavit about how the applicants will suffer material prejudice if orders for an expedited trial and determination of the action are not made. The subject matter is not of considerable importance, and this case does not have special or unusual importance or significance which warrants urgent hearing and determination. The subject matter of the litigation will not be lost if not heard urgently. Further the respondent says that a truncated timetable for completion of pleadings, discovery, and preparation of documentary and oral evidence is not warranted and will allow insufficient time to prepare a defence. It is said that an expedited timetable and trial should not be ordered at the expense of a just trial. Consideration 31 There is significant disagreement between the parties as to what a liability trial would entail, what pre-trial matters would need to be attended to prior to that trial and what, if any, benefit there is to a separate trial of this issue. The applicants say that a trial of the liability issue is largely a matter that could be determined on -- 9 of 11 -- [2026] SASC 67 McIntyre J 8 the papers and with submissions. It would take one day and could be listed relatively shortly. The respondent says that this estimate is doubtful because oral evidence will be required and a range of pretrial matters will have to be attended to including discovery which is likely to be contentious due to considerations of legal professional privilege. It is difficult to assess these issues at this early stage of proceedings. It is however clear that, although the application is couched in terms of declaratory relief, the issues will not be limited to a consideration of the terms of the Deed. The applicants concede that evidence will be required on the “own volition defence”. It seems unlikely that this will be uncontentious and there is a significant risk that responding evidence will be required. Likewise, it seems likely that evidence will be required on the “joint representation” and possibly also the “step down” defence, at least on the respondent’s case. There is, accordingly, the potential for questions of credit to arise. The issue of liability is not therefore something that can be determined solely on the papers. Accordingly, I am not satisfied that the trial of the liability issue will be as confined or as short as is contended by the applicants. 32 I further do not accept the submission that liability and quantum are cleanly demarcated. I accept that Lehrman is, to some extent, analogous dealing as it did with an application for declaratory relief about the scope of an indemnity for legal costs. In that matter, Lee J said:22 Clearly, there is a real and ongoing dispute between the parties about the extent of Network Ten’s liability to Ms Wilkinson pursuant to the terms of the indemnity, which necessitates resolution, and it is apt for the granting of declaratory relief. With that said, declaratory relief must be certain and is most appropriately granted in circumstances where it is as specific as possible. Subject to some further submissions which are to be filed, the defamation proceeding has now reached the stage where the vast bulk of any legal costs incurred by Ms Wilkinson have already been incurred and, no doubt, in addition to any invoices rendered for legal services, there will be work in progress and disbursements, which will be the subject of further invoices. (Citations omitted) 33 The declaratory relief sought in Lehrman was, however, couched in far more specific terms than is the case here. It is apparent from the judgment that initially relief was sought in less certain terms and was denied. It is also apparent that the declaratory relief was sought at a much later stage of proceedings than the present matter. The implication from submissions in this matter as to the commercial function of the indemnity suggests that the applicants seek payment of legal costs as and when they are incurred. This is not plain from the declaration sought which refers to liability but not to the manner in which claims would be made under the 22 At [46] – [47]. -- 10 of 11 -- [2026] SASC 67 McIntyre J 9 indemnity, or the timing of payments. It is neither certain nor specific. As Lee J said in Lehrman:23 ……a plaintiff should not frame a prayer for relief that a defendant “pay” a sum of money by reference to invoices, thus seeking an order akin to specific performance. If such an inappropriately framed order was made and not complied with in its terms, it could theoretically amount to a contempt. The proper relief was either a declaration of a liability by reference to invoices or seeking an order for judgment in a monetary sum (hence, if a judgment sum was not paid, then orthodox enforcement steps could be taken). 34 I also do not consider that determination of the liability issue in a separate trial will resolve the entirety of, or substantially narrow, the field of litigious controversy. There will remain a very significant issue related to the “inequity claim”. Prospects of settlement are likewise unlikely to be enhanced because of the uncertainty as to resolution of the inequity claim and issues of quantum. 35 These factors weigh against ordering a separate trial. The applicants have not persuaded me that a separate trial would facilitate a quicker or cheaper resolution, or that its utility, economy and fairness are beyond question. I am therefore not satisfied that I should depart from the general rule that proceedings be determined in a single trial. Further, I am not satisfied that there is any necessity for the trial of this matter to be listed ahead of other matters in the list. Whether it ought to be heard ahead of the primary proceedings is another issue that is best dealt with in a hearing at which all parties are present. 23 At [12]. -- 11 of 11 --