LEE-ANN THOMPSON - v INSURANCE AUSTRALIA LIMITED - [2026] SADC 17

APPLICANT: LEE-ANN THOMPSON - Counsel: MR P SCRAGG Solicitor: PETER SCRAGG & ASSOCIATES Respondent: INSURANCE AUSTRALIA LIMITED - Counsel: MR N RAMSAY Solicitor: HALL & WILCOX Hearing Date/s: 14/01/2026 File No/s: CIV-25-009253 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) 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 LIMITED [2026] SADC 17 Reasons for Decision of her Honour Judge Deuter 2 March 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS - SEPARATE DECISION OR DETERMINATION The applicant’s home at Salisbury was damaged by fire on 9 September 2024. The home was insured by the respondent for the sum of $776,575.00. The applicant seeks the sum of $776,575.00. The respondent denies that the applicant is entitled to the sum sought. The applicant seeks, by interlocutory application, an urgent trial on the issue of liability. The applicant’s counsel confirmed she was seeking separate trials on liability and quantum. The application is opposed by the respondent, arguing that the applicant’s financial restraints was not a proper basis for a separate trial. Held: That the applicant has not established that there is good reason to order a separate trial in relation to liability only. The applicant’s application for a separate trial on liability is refused. Uniform Civil Rules 2020 (SA) r 151.1; Customs Act 1901 (Cth) ss 2B,233ABAD (2); Tobacco and E-Cigarette Products Regulations 2019 (SA) reg 3C; Tobacco and E-Cigarette Products Act 1997 (SA) s 33(3), referred to. Ong v Little Company of Mary Healthcare Ltd and Anor [2024] SASC 99; Tepko Pty Ltd v Water Board (2001) 206 CLR 1; Idoport Pty Ltd & Anor v National Bank Ltd & Ors [2000] NSWSC 1215; SA Water Corporation v United Water International Pty Ltd [2009] SASC 383, considered. -- 1 of 13 -- -- 2 of 13 -- THOMPSON v INSURANCE AUSTRALIA LIMITED [2026] SADC 17 1 By an interlocutory application dated 21 November 2025,1 the applicant seeks the following orders: That there be a hearing of whether the applicant is entitled to be indemnified (by the respondent) for the loss that she sustained from damage to her property at 2 Oronga Street, Salisbury North (the property) on 9 September 2004, under a policy of insurance issued by the respondent, prior to a hearing of quantum of the loss sustained by the applicant from the event. 2 In an affidavit of the applicant’s solicitor of the same date,2 it was set out that the applicant is seeking an urgent trial on the issue of liability, to determine if the claim should proceed. In short, the applicant’s counsel confirmed that she was seeking separate trials on liability and quantum, with the trial on liability to be listed urgently. 3 It was submitted that the application was predicated upon the financial position of the applicant, her being a pensioner aged nearly 59 years,3 with limited resources. She was not in a position to fund the reports required to prove the quantum of her loss. It was argued that if liability was proved at an early trial, then the applicant could likely get advances on her quantum entitlements, and thereby fund the expert reports required to assess the quantum of the claim. No proof that this would occur was put before the Court. 4 The applicant’s counsel also submitted that the issues of liability and quantum were quite separate and definable, and thus there would be limited, if any, overlap of evidence in each trial. 5 The respondent opposes the application arguing that the applicant’s financial restraints was not a proper basis for separate trials; and that the applicant’s credibility was central to any finding, both in relation to liability and quantum. A liability trial would however limit the scope of the respondent’s cross-examination of the applicant. There were also factors related to liability which remained unknown, including any criminal prosecution of the applicant. 6 The application was brought pursuant to Rule 151.1(1) of the Uniform Civil Rules 2020 (UCR), which provides that when a matter is ordered to proceed to trial ‘there is to be a single trial of all issues (other than costs) in the proceedings.’ However the Court can of its own motion order that there be separate trials of separate issues, and determine the order of those trials.4 1 FDN 15. 2 FDN 16. 3 Date of birth being 17 February 1967. 4 Uniform Civil Rules 2020 (SA) r151.1 (2). -- 3 of 13 -- [2026] SADC 17 2 Background Facts 7 The applicant’s property was severely damaged by fire on 9 September 2024. At the time, she held a household policy of insurance with the respondent against loss, for a sum up to $776,575.00 (the policy). The applicant has claimed against the policy for the full amount of the insured sum, in relation to the fire damage to her property. 8 After Fire Services’ reports were obtained, the respondent conducted an independent review of the circumstances of the fire and loss, including engaging an independent investigator to review the circumstances of the fire. An interview with the applicant took place on 6 November 2024. The following information was determined: • On the day of the fire, the applicant was heating a block of tobacco (which she knew was an illegal product) in a microwave oven that she kept in her carport for the purpose of softening tobacco; • After going inside her house the applicant become aware that the microwave was on fire; • The fire then spread to flammable materials, and ultimately to the applicant’s house; • A later SAPOL search of the applicant’s property found an alleged commercial quantity of illegal tobacco and cigarettes, including some products that had been destroyed by the fire; • SAPOL seized the products, $28,000 in cash, and a journal setting out an inventory of the tobacco products. 9 As a result of the initial SAPOL investigation of the fire, and its surrounding circumstances, the respondent denied the applicant’s claim. The basis of the denial was a clause in the policy at page 25 where it is stated: You are not covered under any section of this policy: For loss, damage, liability, injury or death caused by or arising from…. - any illegal activity You or Your family are involved in; - any illegal drug or substance at Your Home or Site. 10 The illegal activity relied upon by the respondent relates to the seizure of tobacco products after the fire by police. These products were; 16 large boxes of loose tobacco in packages; 17 boxes/cartons of various brands of cigarettes; three bags of branded cigarettes; one bag of loose cigarettes; $28,740 in cash, in labelled bundles of $1,000; and a journal with notes regarding cigarettes. The respondent also relies upon photos taken at the scene, after the fire, showing a large quantity -- 4 of 13 -- [2026] SADC 17 3 of burnt cartons of cigarettes and tobacco, including the block of tobacco that the applicant was heating at the time of the fire. 11 The respondent argues that, the applicant breached several statutes that prohibit the possession of more than 50 cigarettes or 50 grams of tobacco product.5 Pursuant to the Customs Act 1901(Cth) possession of tobacco products greater than the limit of 50 cigarettes or 50 grams of tobacco are presumed to be possessed for the purpose of sale and imported with intent to defraud revenue on sales.6 12 As the applicant did not hold a retail tobacco licence, the respondent argues that no exclusion applies for the possession by the applicant of the large amount of tobacco and cigarettes found at the property after the fire. The respondent’s position is that the applicant was undertaking an activity which arose from her possession of illegal tobacco presumed by statute to have been in the applicant’s possession for the purpose of sale.7 13 SAPOL has not commenced any prosecution of the applicant in relation to the possession of the loose tobacco and cigarettes found at the property. However, in an Affidavit of the respondent’s solicitor of 12 January 20268 it was set out that recent discussions with SAPOL confirmed that the investigation was not closed, and it was believed that a prosecution was proceeding, with the applicant’s file being triaged by the Crown Solicitors Office.9 14 As a result of the fire damage to her home, the applicant has not been able to live at the property as it is not safe in its damaged state. The applicant has been able to reside in rental accommodation as a result of the terms of the policy which provides for payment of up to a maximum of 20% of the insured value of the property, by way of rental expenses, for a two-year period. The applicant negotiated a deal with the respondent for payments of $750 per month over 12 months. These payments expire in October 2026. Application for a separate and preliminary trial on Liability 15 The applicant submits that an urgent trial on the issue of liability only is required given her compromised circumstances, and on the basis that the determination of the liability issues will either resolve the matter, or assist the parties to resolve the issue of quantum. In addition, the applicant does not have the financial resources to obtain expert evidence on quantum regarding the damage to the property, and what will be required to repair, or replace her home. It was submitted that the respondent’s refusal to admit liability is stifling the claim. 5 Tobacco and E-Cigarette Products Regulations 2019 (SA) reg 3C; Tobacco and E-Cigarette Products Act 1997 (SA) s33(3) (as applied at the date of the fire) Customs Act 1901 (Cth). 6 Customs Act 1901 (Cth) ss 2B,233ABAD (2). 7 Paragraph 7 (g) of FDN 24. 8 FDN 22. 9 Exhibits PAD A7-A9, annexed to FDN 22. -- 5 of 13 -- [2026] SADC 17 4 16 The applicant submits that the issues of liability and quantum are quite separate, and that splitting the trial will not involve any repeating, or doubling up, of evidence. Her counsel also submitted that there were no issues of credit in relation to the quantum part of the claim that could impact the credit findings in relation to liability. He submitted that it was most unlikely that the applicant would ever have to give evidence regarding the quantum of the claim. Rather, it would be a quantity surveyor who would identify the loss, and the costs of rectification. Logically, the applicant giving evidence on this topic would not be necessary in the event that the applicant had the financial resources to obtain relevant expert reports. 17 The applicant’s counsel noted that the home-owners insurance policy held by the applicant did not cover contents. As a result, given that there would be no need for her to give evidence on her contents, nor about the structure of the property and its damage, the credit of the applicant regarding quantum could not be an issue. He argued that there was therefore no basis upon which the respondent could discredit the applicant in a trial only on liability. It was submitted that there was no factual overlap in relation to issues of liability and quantum. The applicant’s counsel asked the Court to reject the respondent’s submission that an informed view of the applicant’s credibility could not be determined based only on the liability evidence she would give. It was submitted that her evidence on quantum would not assist in determining the credit of the applicant. 18 In relation to the possibility of a police prosecution, the applicant’s counsel argued that this should not be a consideration in determining whether there was to be split trials. There was no proof that such a prosecution would impact the applicant’s credibility. It was submitted that there was no utility in waiting for the prosecution to proceed before having a trial on liability, as the result of a criminal prosecution would not be binding upon the parties in the civil trial. 19 It was also argued that the conduct of two separate trials would not necessarily increase legal fees. If liability was found against the applicant there would be no, or a reduced, second trial. 20 The applicant’s counsel argued that the quantum issues would involve a building dispute with multiple experts required to consider the damage, and the cost of repair, to the property. As a result, it was more efficient, and prudent, to determine the liability issue first, at a separate trial. It was said that a liability trial would be limited to evidence from the applicant, police and fire experts, and would take no more than two to three days. The result of a shorter trial on liability could decide the whole claim. If successful, the applicant could then negotiate quantum without a second trial. It was submitted in this regard that, this is not a case where the tort is mingled with damages, rather, it was argued that there is a clear line between liability and quantum. 21 A significant issue for the applicant is that she does not have the financial resources to engage a quantity surveyor to determine her losses, and what would -- 6 of 13 -- [2026] SADC 17 5 be required to repair the property. However, if liability was determined in her favour, the applicant could seek funding to obtain quantum evidence. It was submitted that this is now urgent as the applicant will soon use all the funding available under the policy for her ongoing accommodation. It was submitted that a judgment on liability in her favour may be useful in gaining bank funding for accommodation. No evidence was led to establish that such funding would be available. 22 Counsel also submitted that there would be no duplication of witnesses across two separate trials, as the issues in each trial would be quite different. The Respondent’s Responses 23 The respondent rejects the argument that there is complete separation between the liability and quantum issues, and witnesses in this matter. Counsel set out that there were many people who attended the property and spoke to the applicant in the days after the fire. These included MFS personnel; SAPOL personnel; fire investigators; staff from the Office of the Technical Regulator; employees of the Make Safe Providers; and other repair providers. It was submitted that the applicant likely spoke to all these persons regarding what she was doing at the time of the fire, and what she observed regarding how it started. It was submitted that there was no simple delineation between liability and quantum, and the potential witnesses involved. Although the quantum witnesses would be called to assist in determining damage and loss, in several circumstances they would also be examined and/or cross examined on what the applicant told them regarding how the fire started; or what she was doing with the tobacco. As a result, the quantum experts would likely give evidence that went to the credibility of the applicant, ie. in relation to the liability issues. 24 It was submitted that this was important, as what caused the fire was not as simple as the applicant’s counsel had suggested. Several possibilities remain as to what occurred, particularly whether there had been an electrical bypass at the applicant’s property that was causative of the fire. If this was the case, the respondent would deny the claim as such actions would void the policy for illegal activity. 25 The respondent’s counsel also argued that the case was not clear cut, and there would be few, or no, witnesses that would only give evidence on liability, or only on quantum. In addition, there continues to be uncertainty as to whether a criminal prosecution will be pursued. The respondent’s solicitors had made enquiries seeking to obtain the police file. They were advised that this will not be provided until a decision is finalised regarding the prosecution of the applicant. As a result of there being no decision on any prosecution, the respondent has not had access to all police documents to determine if any credit issues impacting either, liability and quantum or both that may arise from the police investigation. 26 The respondent’s position is that the Court should not move from the default position that all legal issues should be dealt with in one trial, relying upon the -- 7 of 13 -- [2026] SADC 17 6 decision of Stein J in Ong v Little Company of Mary Healthcare Ltd and Anor10 (Ong). Justice Stein (as she then was) found in Ong that all issues in contention should be dealt with in one trial, and that a party seeking departure from that rule, bears the onus of proving that departure is necessary. She adopted what was said by the High Court in Tepko Pty Ltd v Water Board11 (Tepko), that a separate trial should only be conducted when the ‘utility, economy and fairness are beyond question’. 27 In Ong, this was a high bar, which the applicant had not met. Her Honour stated that: ‘The attraction 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’.12 28 The respondent also relied upon the decision of Justice Einsten in Idoport Pty Ltd & Anor v National Bank Ltd & Ors13 (Idoport), where it was confirmed that it is ‘ordinarily appropriate that all issues in a proceeding should be disposed of at the one time. … Accordingly, it is for the party who wishes to have a question separately determined to show that it is desirable for that to occur’.14 29 The respondent set out the circumstances where Einsten J. considered that separate trials may be appropriate15: (a) where the resolution of the first separate trial, would resolve the entirety of “the litigious controversies or of substantially narrowing the field of litigious controversy”; (b) where resolution of the separate issue trial carries with it a “strong prospect” that the parties will thereafter be able to resolve their dispute themselves and avoid further litigation; and (c) where there is clear demarcation between the issues to be litigated and all other issues in the case, including issues going to the credit of the witnesses. 30 Justice Einstein also set out circumstances where the separate determination of issues was inappropriate16: (a) when there are ‘intertwined’ issues of fact or law between the separated question and the other questions, so that the determination of one will not have any substantial effect upon the width of the field of litigious controversy, or the prospect of settlement of the balance of the litigation; 10 [2024] SASC 99. 11 (2001) 206 CLR 1 at [170]. 12 Ibid at [24]. 13 [2000] NSWSC 1215. 14 Ibid at [7] (3). 15 Ibid at [7] (4). 16 Ibid at [7] (5). -- 8 of 13 -- [2026] SADC 17 7 (b) where there is common witnesses and issues of credit as between the separate issue and other issues which will, or may, necessitate a ruling on the credit of one or more of the common witnesses; (c) where 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 the separate issue, creating multiplicity of proceedings. 31 Justice Einstein concluded that the application for a liability only trial failed, as he did not accept that proceeding in that manner would increase the chance of the settlement of the litigation as a whole, and therefore such a radical step was not justified. 32 In summary the respondent submitted that the application should be refused for a number of reasons; 1. The applicant’s claim is for $776,575. However, if cover is accepted and available under the policy, the quantum evidence currently places it at between $338,000 and $440,000. As a result, quantum is unlikely to be agreed, and any trial on liability only will not resolve all issues; 2. The applicant has not always complied with Court rules. A coercive order was required to have her attend a pre-action meeting; 3. There are potential procedural inefficiencies for the Court with the duplication of evidence across two trials; 4. The commonality of witnesses over each of a liability and quantum trial. This is particularly so with the applicant who would have to give evidence at each trial. Witnesses from MFS and SAPOL may also be required to give evidence not only on how the fire ignited, but also the scope and nature of the alleged loss. In addition, those liability witnesses may have observations with respect to the applicant’s intention regarding replacing her home or repairing it; 5. The real risk of an appeal by the unsuccessful party of the findings on liability, leading to further duplication of proceedings. The respondent argues that this ‘would in fact defeat the very purpose of the application because it would actually make the proceedings significantly more expensive and drawn out.’ 6. If the application was granted, then the costs of two trials would increase the legal costs of both parties; 7. The unknown status of criminal proceedings being commenced, and the impact on the civil proceedings. A liability only trial could ultimately lead to inconsistent findings in relation to any criminal trial. -- 9 of 13 -- [2026] SADC 17 8 33 The respondent argues that the applicant’s credit is central to the outcome of the civil proceedings, and that a trial on liability only will not allow the Court to reach a fully informed view as to her creditability. The respondent in defending the claim intends to challenge the applicant’s credit relevant to representations made regarding quantum, and whether there would be a repair of her home or a rebuild. This is especially so if she had exaggerated the damage to obtain a re-build of her home. The possibility of a criminal investigation into the applicant complicates the credit issues further. As a result, it is argued that to proceed with a liability trial only would restrict the cross-examination of the applicant and as a result prejudice the respondent. 34 In making these submissions the respondent relies upon the statement of Justice Einstein in Idoport where he found that credit issues alone ‘clearly’ required that the application for separate trials should be dismissed.17 35 The respondent also argued that there were other significant issues that should be taken into account in determining this application, these being: 1. That the applicant’s financial constraints are not a valid basis for granting this type of application; 2. There is no affidavit evidence from the applicant regarding her current financial situation, and in particular that financial hardship is constraining her in these proceedings; 3. There is no evidence before the Court that establishes that any independent quantum experts have been approached, and/or engaged by the applicant; or whether any such experts would provide their assistance ‘on credit’ if cover was available under the policy, rather than expect payment on delivery of a report. 36 The respondent has made enquiries with SAPOL for disclosure of their file. They have been advised that this will not be provided until the completion of the prosecution. 37 The respondent’s submission is that all evidence should be before the Court before determining if there should be separate trials. At the current time there is no evidence from SAPOL, nor any independent experts, nor communication as to when any expert report/or evidence will be provided. In relation to experts there is simply no evidence that any have been approached by the applicant’s solicitors. 38 The respondent ultimately relies upon the statement of Stein J in Ong that:18 A separate trial or the separate determination of issues should only be embarked upon where ‘the utility, economy and fairness to the parties are beyond question.’ 17 Idoport at [12]. 18 Ong at [21] quoting Idoport at [7]. -- 10 of 13 -- [2026] SADC 17 9 Consideration 39 The general rule and the starting point is that all issues in dispute between the parties should be determined by a single trial, and that the trial process should not be unduly fragmented.19 As set out in Idoport,20 the party seeking departure from the general rule, bears the onus of demonstrating that it is appropriate for such a departure to be made on the evidence before the Court. 40 The principle adopted by Stein J in Ong,21 from Tepko in relation to separate trials, was that ‘a separate trial of issues should only be embarked upon where the utility, economy and fairness to the parties is beyond question’. Justice Stein determined that in combination with the object of the Uniform Civil Rules, this meant that consideration must be given to facilitating ‘just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in the proceedings’. 41 Justice Stein also found that unintentional delay, and cost, imposed by separate issue trials meant that before ordering such a process, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings. 42 Applying these principles, it has not been established that a trial on liability alone in this matter will facilitate a quicker and cheaper resolution of the legal proceedings. The applicant’s counsel, in submissions, made sweeping statements regarding the time savings which would be made by conducting a trial on liability before any trial on quantum. There was no detailed assessment, nor evidence of those savings. Counsel also did not address the issues raised by the respondent in relation to the credit issues in the applicant’s case, and how they were to be treated. 43 The fire at the applicant’s home occurred in unusual circumstances, and has led to SAPOL being involved. There is the possibility of a resulting police prosecution. No decision has yet been made. Any prosecution would concern the amount of tobacco and cigarette products found at the applicant’s home, or the actions that caused the fire, either by by-pass of electricity or using the microwave to soften illegal cannabis products. If the complete police file and documents are not yet available, particularly in the context of possible prosecution of the applicant, it is difficult to see how a trial on liability only can proceed. 44 The nature of the fire calls the applicant’s credibility into issue, and whether she was involved in some illegal activity. As such, I am of the view that it is not possible to conduct any part of the trial, including liability, until all the police documents have been released, and a decision made on a prosecution. I also find that the applicant’s credibility is relevant to the issues on quantum if it is found that she has deliberately claimed damages at a level that exceeds the damage that 19 SA Water Corporation v United Water International Pty Ltd [2009] SASC 383; Ong at [20]. 20 Idoport at [7]. 21 Ong at [21]; Tepko at [170]. -- 11 of 13 -- [2026] SADC 17 10 was occasioned to her property. However, the applicant has yet to provide any evidence of repair costs relative to the damage she has claimed occurred. 45 It appears from the evidence before me, that to date, the applicant has yet to obtain any reports in relation to either liability or quantum. This suggests that the applicant is not ready to proceed to trial on either liability or quantum. 46 In relation to a trial on liability only, I find that the lack of expert evidence regarding the cause of the fire also puts the credit of the applicant in issue. The cause of the fire is very much in dispute, and the applicant will have to give evidence. She has not provided evidence to establish her case, in the context of police involvement. In these circumstances it is difficult to determine how a trial on liability could proceed. No trial timetable, witness lists, or discovery of documents has been filed by the applicant or in fact presented on this application. The case is not prepared for trial. 47 The lack of trial preparation is consistent with the approach taken by the applicant’s solicitors from the time proceedings were issued. The initial Statement of Claim22 was in short form, simply noting that there was a fire at the applicant’s property and that the respondent had failed to pay the claimed payment of the insured sum of $776,575.00. This short term form of pleading should not have been used as the claim was neither uncontested, nor genuinely incontestable. No facts were pleaded, nor how the applicant would establish her claim. There were no facts pleaded to disclose a reasonable cause of action. As a result, an application for a stay was sought by the respondent.23 48 On 22 August 2025 solicitors for the respondent corresponded with the applicant’s solicitor advising that despite the applicant’s claim otherwise, … the claim is genuinely contested and my client takes the view that it is most certainly contestable. It is therefore erroneous that your client has issued proceedings under the short form method and my client seeks confirmation that (following completion of pre-trial protocols) your client will attend to filing an amended Statement of Claim that provides sufficient particularity in order for my client to understand the case which it needs to meet.24 49 An amended Statement of Claim was never filed, and instead, on 10 October 2025, the application for an early trial on liability was filed.25 This causes difficulty in considering the application for an early trial on liability only. It means that in considering the application, there is only short form pleadings for the applicant, and no detail of what she says occurred, and caused the fire. The applicant’s case is therefore reliant on initial police reports. 22 FDN 1. 23 FDN 6. 24 Email of Nick Ramsey of 12 April 2025 attached to affidavit of Nick Ramsey (FDN 7). 25 FDN 11. -- 12 of 13 -- [2026] SADC 17 11 50 The lack of a more detailed Statement of Claim, including detail of the applicant’s version of how the fire occurred is a clear reason why the action should not be proceeded by way of a separate trial on liability. 51 I find that the applicant has not established that there is a good reason to order a separate trial in relation to liability, or in fact that she is ready for that trial to proceed. 52 I am not satisfied that a separate trial on liability will lead to resolution of all issues, given the dispute regarding, and the lack of evidence in relation to quantum. The submissions of the respondent make it clear that the quantum issues remain very much in dispute. In this regard, the respondent’s position that the applicant has deliberately ‘overstated’ her claim, is another issue of credit that influences my decision not to grant a separate trial. 53 In summary, I adopt Justice Einstein’s words in Idoport in relation to a liability only trial, and his view that it limited the scope of the respondent’s cross- examination of the applicant, regarding her credit. In this case, this is in relation to the respondent’s submission that there is an over-inflation of the applicant’s claim as opposed to the damage caused to her home. However, there could not be cross-examination on those issues in a liability only trial. 54 Justice Einstein stated in Idoport that the assessment of credit issues, and the inability to cross-examine on all issues, was a factor that ‘clearly requires that the notice of motion be dismissed’.26 Order 1. I refuse the applicant’s application for a separate trial on liability. 2. I will hear the parties as to costs. 26 Idoport at [12]. -- 13 of 13 --