THOMPSON v INSURANCE AUSTRALIA LTD [2026] SASC 84

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DEUTER) CIV-25-009253 Appellant: LEE-ANNE ELIZABETH THOMPSON Counsel: MR P SCRAGG - Solicitor: PETER SCRAGG & ASSOCIATES Respondent: INSURANCE AUSTRALIA LTD Counsel: MS T FLAHERTY - Solicitor: HALL & WILCOX Hearing Date/s: 01/06/2026 File No/s: CIV-26-004257 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) 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. THOMPSON v INSURANCE AUSTRALIA LTD [2026] SASC 84 Judgment of the Honourable Justice McIntyre (ex tempore) 1 June 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 - APPEAL FROM DECISION OR DETERMINATION ON SEPARATE QUESTION This is an application for leave to appeal an interlocutory decision of a Judge of the District Court of South Australia, refusing the appellant’s application for separate trials on the issues of liability and quantum. The appellant requires an extension of time to file the appeal which was lodged ten days out of time. The appellant contends that leave to appeal should be allowed in the interests of justice and that the primary Judge incorrectly exercised the discretion to order separate trials. It is said that the filing delay is adequately explained by the affidavit material filed by the appellant. The respondent contends that leave to appeal should be refused as the judgment is not attended by sufficient doubt, no substantial injustice arises if the judgment stands and the appeal raises no issue of principle or general importance. Further, it is said that the extension of time should be refused as there is insufficient material to explain the delay. Held: Application for leave to appeal dismissed. Uniform Civil Rules 2020 (SA) rr 101.1, 151.1, 213.1, 214.1, referred to. House v The King (1936) 55 CLR 499, applied. -- 1 of 8 -- Draoui v Le [2021] SASCA 33; Ong v Little Company of Mary Health Care Ltd & Anor [2024] SASC 99; Tepko Pty Ltd v Water Board (2001) 206 CLR 1; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215; SA Water Corporation v United Water International Pty Ltd [2009] SASC 383, considered. -- 2 of 8 -- THOMPSON v INSURANCE AUSTRALIA LTD [2026] SASC 84 Single Judge Appeal: Civil McINTYRE J. Introduction 1 The appellant appeals from a decision of Judge Deuter of the District Court of South Australia on 2 March 2026 refusing the appellant’s application for a separate trial of issues of liability in the proceedings, to be followed by a second trial, if necessary, on issues of quantum. 2 The decision was interlocutory in nature. Accordingly, the appeal requires a grant of leave under r 213.1 of the Uniform Civil Rules 2020 (SA) (‘UCR’). 3 UCR r 214.1 requires any appeal to be instituted within 21 days after the date of the order. The appeal was lodged on 2 April 2026, some ten days out of time. The appellant requires an extension of time within which to bring the appeal. Background facts 4 The appellant commenced the civil action in the District Court on 5 August 2025 by short form Claim,1 seeking payment of “the insured sum” of $776,575 and asserted that her home had been destroyed by fire. The respondent, as insurer, filed a defence on 3 September 2025, disputing the claim and taking issue with the form of the pleading. Further substantive pleadings were not filed until after the decision that is the subject of this appeal. By interlocutory application dated 21 November 2025, the appellant sought orders, amongst other things, that liability under the policy be heard separately, before any determination of quantum together with an urgent hearing of the liability issue (‘the Application’). The Application was supported by the affidavit of Peter Scragg made on 21 November 2025. The respondent opposed the Application and filed affidavits of Pauline Davies and Mark Edwin Yeatman, each made on 12 January 2026. 5 On 2 March 2026, Judge Deuter dismissed the Application finding that the appellant had not established that: a trial on liability alone would facilitate a quicker and cheaper resolution of the legal proceedings; that there was a good reason to order a separate trial in relation to liability; or that the appellant was ready for that trial. Judge Deuter was, further, not satisfied that a separate trial on liability would lead to a resolution of all issues given the dispute regarding quantum. 1 CIV-25-009253. -- 3 of 8 -- [2026] SASC 84 McIntyre J 2 Legal principles Extension of time 6 Dealing now with the legal principles as to extension of time, the grant of an extension of time to institute an appeal is discretionary. The Court may vary the time fixed by UCR r 214.1 in the exercise of its inherent powers. The relevant considerations are well settled. They include: • the length of the delay; • the reason for the delay; • whether there is an arguable case on appeal; and • the degree of prejudice to the respondent. Leave to appeal 7 In relation to the question of leave to appeal, the impugned decision was a discretionary decision made on a matter of practice and law. Leave is required to appeal the decision under UCR r 213.1. 8 The principles of appellate restraint in House v The King2 apply. Accordingly, it is necessary to consider whether the Judge: • acted on a wrong principle; • was guided by extraneous or irrelevant facts; • mistook the facts; • failed to take into account a material consideration; or • reached an outcome which was manifestly unreasonable or plainly unjust. 9 In Draoui v Le,3 the Court of Appeal reviewed a decision of a single Judge to dismiss a proceeding due to the applicant’s failure to pay security for costs. I note in particular the comments of Doyle JA as to the practical impact of the principles in House v The King as follows:4 In accordance with these principles, an appellate court may intervene in two broad categories of case. First, if it is established that the judge below has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect them, has mistaken the facts, or has not taken into account some material consideration. Secondly, if it is established that the result embodied in the order made is, upon the facts, unreasonable or 2 (1936) 55 CLR 499 at 505 (‘House’). 3 [2021] SASCA 33. 4 House at [71]. -- 4 of 8 -- [2026] SASC 84 McIntyre J 3 plainly unjust, such that it can be inferred that there has been a failure to properly exercise the relevant discretion, despite the precise nature or source of the error not being identifiable. These two categories of case are sometimes distinguished from each other by referring to them as process and outcome errors, or as specific and inferred errors. 10 Accordingly, considerations relevant to the question of leave to appeal and the House v The King restrictions are similar and collectively impose a heavy burden upon appellants to convince the court to displace discretionary interlocutory decisions. The appellant therefore needs to demonstrate not only that an error occurred, but that there was a specific or inferred process error. Trial of separate issues 11 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. 12 Accordingly, as a general rule, issues in contention between the parties should be dealt with in a single trial; the trial process should not be unduly fragmented. The appellant bears the onus of establishing that departure from the general rule is appropriate in the circumstances of this case.5 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 Board6 (‘Tepko’), a separate trial should only be embarked upon where the “utility, economy, and fairness to the parties are beyond question”.7 13 The principles set out by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd (‘Idoport’)8 are of relevance and are set out in paragraphs 29 to 30 of the primary decision. His Honour summarised the circumstances where ordering a separate trial may be appropriate as follows:9 (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. 5 Ong v Little Company of Mary Health Care Ltd & Anor [2024] SASC 99. 6 (2001) 206 CLR 1 (‘Tepko’). 7 Ibid at [170]. 8 [2000] NSWSC 1215. 9 Ibid at [7] (Einstein J). -- 5 of 8 -- [2026] SASC 84 McIntyre J 4 14 It is clear that courts ought to be cautious in granting applications for separate trials.10 As Einstein J concluded in Idoport, 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”.11 This was considered further by Stein J (as she then was) in Ong v Little Company of Mary Healthcare Ltd & Anor. As noted in the primary decision at paragraphs 40 and 41 of the decision, Stein J said that a separate trial or the separate determination of issues should only be embarked upon where the utility, economy and fairness to the parties be beyond question. 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 appellant 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.12 Further considerations also include the interests of other litigants who may have hearings delayed if this matter is given priority. The parties’ contentions 17 Both parties have filed written submissions supplemented by oral argument. I will not repeat the matters that they have said other than in summary form. Extension of time 18 In relation to the extension of time, the appellant’s solicitor filed an affidavit setting out the reasons for the delay in filing the appeal. In essence, they relate to issues concerning an application for remission of fees and difficulties with filing documents on the portal. The respondent says that this affidavit does not properly explain the reason for the delay and further that, although the delay is not lengthy and the prejudice to the respondent limited, the Court must still consider whether there is sufficient material to justify disturbing the respondent’s right to retain the 10 Tepko at [168]-[170]. 11 Ibid at [7]. 12 SA Water Corporation v United Water International Pty Ltd [2009] SASC 383. -- 6 of 8 -- [2026] SASC 84 McIntyre J 5 judgment. That deficiency is decisive in circumstances where the proposed appeal is not reasonably arguable. Leave to appeal 19 In relation to the question of leave to appeal, the appellant’s written submissions concerning the primary decision do not identify a specific or inferred process error. Rather, they restate the arguments put to the primary Judge. To that extent they are unhelpful, but I will take the submissions as a complaint as to the Judge’s method of dealing with the arguments that were put. 20 The appellant seeks leave on the basis that the merits and circumstances of the matter indicate that the Court’s exercise of the discretion was wrong and, in the interests of justice, it is said that leave should be allowed. In oral submissions, the appellant put a new argument not put to the primary Judge. In summary, it was contended that if liability is determined this will dispose of the matter without the need for a trial on issues of quantum. This is based upon an interpretation of the policy conditions. This interpretation is not in conformity with the pleadings nor the manner in which this matter has been conducted in the past. It is my view that this is too late to raise in this appeal. This is not a rehearing. The submissions put are irrelevant to the resolution of this appeal. 21 The respondent contends that leave should be refused because the judgment is not attended by sufficient doubt, no substantial injustice arises if the judgment stands, and the appeal raises no issue of principle or general importance. Consideration 22 Leaving aside the issue as to whether there is a proper explanation of the admittedly short delay in filing the appeal, the question of whether to grant an extension of time and leave to appeal are linked by the issue as to whether the appellant has identified a reasonably arguable error in the primary Judge’s exercise of the discretion. In my view the appellant has not. The primary Judge identified the correct principles, considered the material before the Court, and reached a conclusion that was plainly open on that material. The additional matters raised on the pleading and expert reports are of marginal relevant leaving aside whether it’s appropriate to consider such matters on this appeal. 23 The decision represents an orthodox application of well-settled principles governing separate trials to the factors in this matter. There has been no error of principle demonstrated. The Judge appropriately considered the question in the light of the general rule that all issues should be dealt with in a single trial. The onus rested with the appellant. The appellant did not establish beyond question that the utility, economy and fairness of a separate trial on liability made the order appropriate. There is, further, no substantial injustice to the appellant in allowing the decision to stand. The order does not have the effect of determining or altering the substantive rights of the parties. The appellant remains free to pursue her substantive claim in the ordinary course, including limiting her claim to an issue -- 7 of 8 -- [2026] SASC 84 McIntyre J 6 of liability on the basis of the policy interpretation put forward on this appeal. The issue is furthermore not one of general importance and does not involve a difficult or complex question of law. Therefore, I decline to grant an extension of time within which to bring this appeal and, even were I to grant such an extension, I would for the same reasons refuse leave to appeal. 24 I order that the respondent have its costs of and incidental to this appeal. Costs are certified fit for junior counsel. -- 8 of 8 --