Macks v Tucker & Ors & QBE Insurance (Australia) Ltd (No 2) - [2006] SASC 350

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MACKS v TUCKER & ORS & QBE INSURANCE (AUSTRALIA) LTD (NO 2)
[2006] SASC 350
Judgment of The Honourable Justice White
21 November 2006
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT
Applications by plaintiff and first and second defendants for the trial of certain issues in the proceedings before the trial of other issues - Supreme Court Rules 1987, r 75.02 - discussion of relevant principles.
Held: applications dismissed.
Bankruptcy Act 1966 (Cth) s 249; Supreme Court Rules 1987 r 75.02, referred to.
Rivers v Rivers (2002) 220 LSJS 74; FAI General Insurance Co Ltd (In Liq) v Sherry & Ors (2002) 225 LSJS 141; Warman International Ltd v Dwyer (1995) 182 CLR 544; Chan v Zacharia (1984) 154 CLR 178; Duke Group Ltd (In Liq) v Arthur Young (No 2) (1991) 4 ACSR 355, applied.
Gartside v England Revenue Commissioners [1968] AC 533; Gerhardy v South Australian Auxillary to the British and Foreign Bible Society Inc (1986) 44 SASR 195; Dwyer v Ross (1992) 34 FCR 463; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; Re Buckle (1969) 15 FLR 460; Cirillo v Citicorp (2004) 236 LSJS 24; Re Burton; Wily v Burton & Ors (1994) 126 ALR 557; Nichols to Nixey (1885) 29 Ch D 1005; Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594; Duke Group Limited (In Liq) v Alamain Investments Limited (In Liq) [2006] SASC 33, considered.

MACKS v TUCKER & ORS & QBE INSURANCE (AUSTRALIA) LTD (NO 2)
[2006] SASC 350
Civil

WHITE J: This is a decision on applications pursuant to r 75.02 of the Supreme Court Rules 1987 (“SCR”) for the trial of certain issues in the proceedings before the trial of other issues.
The first and second defendants (“the Tucker defendants”) initially sought an order that one issue of fact be tried in advance of the substantive trial, and, in the event that that issue of fact was decided adversely to them, that certain questions of law then be decided. That application was opposed by the plaintiff. After the argument on the application had been substantially completed, the Tucker defendants applied for, and were given leave to amend their application so as to seek the determination, in advance of the substantive trial, of further questions of law. The application in its amended form was also opposed by the plaintiff. The application of the Tucker defendants was not opposed by the third and fourth defendants, but was not supported by the third party.
In his application, the plaintiff seeks an order that the action proceed to trial on the question of liability only, and that the issues of damages and compensation not be tried until after the determination of that question. The plaintiff’s application was opposed by all other parties apart from the third party.
The Parties
The late James Alastair McGregor (“the deceased”) died on 11 December 1990. His deceased estate was declared bankrupt on 17 February 1997. Since 19 March 2001, the plaintiff has been the trustee of his bankrupt estate.
The first defendant (“Mr Tucker”) is a legal practitioner. At relevant times he was a partner in the third defendant, Thomson Simmons & Co, and in the fourth defendant, Thomson Barristers and Solicitors. The second defendant is the trustee of a family trust associated with Mr Tucker. He and his wife are the directors and shareholders of the second defendant.
Mr Tucker acted for the deceased prior to his death. It is alleged that he did so in his capacity as a legal practitioner and as a partner of one or other, or both of the third and fourth defendants. Following the death of the deceased Mr Tucker and the third defendant, Thomson Simmons & Co, acted for the estate until December 1992. Thereafter, Mr Tucker and the fourth defendant, Thomson Barristers and Solicitors, acted for the estate until mid 1996.
The third party is an insurer of Mr Tucker. It has denied his claim for indemnity in respect of the plaintiff’s claims.
Background Circumstances
The plaintiff’s claim is that by reason of Mr Tucker’s conflicts of interest, breaches of fiduciary duty, and breaches of a retainer, the estate of the deceased has suffered loss. In the alternative, the plaintiff alleges that even if the estate has not suffered an actual loss, Mr Tucker or the second defendant has profited from opportunities which his retainer by the deceased and his estate provided, and claims that he should account to the estate for the benefits which he has thereby obtained.
Because of the nature of the application with which I am now dealing, it is neither necessary, nor desirable, for me to recount the circumstances alleged by the plaintiff in detail. I do so only to the extent to which I consider it necessary for the determination of the present application.
The plaintiff alleges losses, or an entitlement to equitable compensation, resulting from Mr Tucker’s dealings in relation to a discretionary trust known as the Anak No 1 Trust of which a Jersey company Anak Limited (“Anak”) is the trustee. The questions which the Tucker defendants seek to have determined in advance of others have their basis in the plaintiff’s allegations with respect to Mr Tucker’s dealings in relation to Anak and the Anak No 1 Trust. I will refer to these dealings as “the Anak transactions”.
The plaintiff also alleges losses, or an entitlement to equitable compensation, resulting from conduct by Mr Tucker in relation to other matters. These are the transfer by the deceased, three days before his death, of his late father’s estate to the second defendant; his action in 1996 in taking proceedings in the District Court against the estate to recover monies said to be owed to him by the deceased; his participation in a transaction involving the sale of Aboriginal paintings in which both he and the deceased had a beneficial interest, to Medolan Limited (a company in which it is said that Mr Tucker, or persons associated with him, had an interest); and the further sale of the paintings on the same day to a third party for a higher price than was paid by Medolan Limited.
I emphasise that these matters are allegations only at this stage.
The Anak Transactions
Anak administered two trusts: the Anak No 1 Trust and the Anak No 2 Trust. Broadly speaking, the Anak No 1 Trust related to the deceased and his family, and the Anak No 2 Trust to Mr Tucker and his family. Matheson Trust Company (“Matheson”) acted as the trustee of both Anak Trusts.
As at the date of death of the deceased (11 December 1990) the shares in Anak were held by Matheson. 10 of the 12 shares in Anak were held on behalf of the Anak No 1 Trust and the other two shares were held on behalf of the Anak No 2 Trust. It is alleged that as at 11 December 1990, and for a number of years before that, the deceased and Mr Tucker exercised effective control of Anak as the directors of Anak (who were employees of Matheson) were accustomed to act according to their directions.
The plaintiff’s claim, in substance, is that following the death of the deceased, Mr Tucker, in his capacity as executor of the estate, engaged in a course of conduct which involved removal of assets from Anak into entities or trusts associated with him. I do not consider it necessary for the purpose of determining the present application to canvass the complex of transactions which it is said Mr Tucker caused to occur in order to achieve that effect.
The plaintiff contends that in acting for the estate, and in engaging in the course of conduct alleged, Mr Tucker was afflicted by a conflict of interest between the estate and his own interests, and that he breached fiduciary duties owed to the estate. He seeks damages for breach of the contract of retainer and equitable compensation for the breach of fiduciary duty. He also seeks an inquiry into the profits which it is said Mr Tucker, or interests associated with him, have made arising from the breaches of fiduciary duty, and an account of those profits to the estate.
I repeat that the matters relied upon for the above description are, for the most part, allegations only.
The Tucker defendants contend that before it could be held that there was any conflict of interest, or breach of fiduciary duty, it would have to be established that, at material times, the estate of the deceased had a relevant interest in the Anak No 1 Trust or in its assets. They dispute the allegation of the plaintiff that the deceased had, at his death, an interest as an eligible beneficiary in the assets of the Anak No 1 Trust. They dispute therefore that the complex of transactions alleged by the plaintiff, even if proven, could have involved any conflict of interest or breach of fiduciary duty, or that any loss could have been caused to the estate, or that any occasion for an account of profits to the estate has arisen.
In what follows I have been conscious that it is inappropriate on an application of the present kind for the judge to determine the ultimate issues in the trial. While some of the parties’ submissions were directed, it seemed to me, to the resolution of the issues which will arise at trial, however it is conducted, I propose to refer to the matters raised only for the purpose of identifying the contentions and issues on the present applications.
The Anak No 1 Trust
The Anak No 1 Trust was established under the law of Jersey. The appointor of the Trust was the deceased “during his lifetime and after his death such of his children as shall be living and have attained the age of 21 years jointly or any person or persons nominated as Appointor in lieu of the named Appointor or such children ….” The Trust deed authorised the appointor to remove the trustee and to appoint a new trustee or trustees.
The beneficiaries are the persons described in Part 2 of the Second Schedule to the Trust deed “and any additional persons nominated by the Trustee” in the manner provided by the Trust deed. Part 2 of Sch 2 defined the beneficiaries in a way which, with one exception, could not, so the Tucker defendants contend, have included the deceased. Issues of fact are involved in reaching that conclusion. The possible exception is the description of the beneficiaries is Clause 3(2) of the Trust deed which provided:
The Trustees may at any times subject to the prior consent in writing of the Appointor by instrument nominate persons or classes of persons to be members of the class of Beneficiaries and no Beneficiary may prevent the nomination of new members.
However, the Tucker defendants contend that as at the death of the deceased, there had been no nomination of persons or classes of persons as beneficiaries pursuant to cl 3(2). Again it is to be noted that there is an issue of fact in that contention.
The Tucker defendants’ submission was that in these circumstances, it could not be held that the deceased was a beneficiary of the Anak No 1 Trust. Even if that submission was not accepted, then the plaintiff’s claim should still fail because the interest of an object of a discretionary trust is no more than a mere expectancy, and not an asset capable of devolving onto personal representatives nor able to form part of the divisible property of a bankrupt. The Tucker defendants referred in particular to Gartside v England Revenue Commissioners[1] and Gerhardy v South Australian Auxiliary to the British and Foreign Bible Society Inc & Ors (No 3).[2] Further, relying on Dwyer v Ross,[3] the Tucker defendants submitted that when a person’s estate is sequestrated, any “interest” in a discretionary trust is not property which passes to the trustee in bankruptcy and that no interest in any property subject to a discretionary trust vests in the trustee in bankruptcy.
[1] [1968] AC 553 at 606 and 621.
[2] (1986) 44 SASR 195 at 206-7.
[3] (1992) 34 FCR 463.
The First Set of Questions
Initially, the Tucker defendants submitted that it would be appropriate for the Court to hear and determine, in advance of the other issues in the trial, the following questions:
1.     That the following question of fact be tried before other facts:
(a)     Whether at the time of his death on 11 December 1990 James Alastair McGregor was a person within the range of beneficiaries named specified described or referred to in Part II of the Second Schedule of the Instrument of Trust made between Thomas Andrew Foster as Settlor and the Regent Trust Company limited as Trustee dated 18 July 1988 (“the Anak No 1 Trust).
2.If the answer to the question of fact referred to in paragraph 1 hereof is yes, that the following points of law be disposed of before trial of the facts:
(a)     Whether at the time of his death on 11 December 1990 James Alastair McGregor had any and if so what interest in the assets of the Anak No 1 Trust.
(b)     If at the time of his death on 11 December 1990 James Alastair McGregor had any interest in the assets of the Anak No 1 Trust, whether that interest devolved on his personal representatives on his death.
(c)     If at the time of his death on 11 December 1990 James Alastair McGregor had any interest in the assets of the Anak No 1 Trust, and that interest devolved on his personal representatives on his death, whether:
i.that interest passed, pursuant to Section 249(1) of the Bankruptcy Act 1996, on 17 February 1997 to the Trustee in Bankruptcy of his deceased estate; and
iithat interest became divisible property of the estate within the meaning of Section 249(8) of the Bankruptcy Act 1966.
It can be seen that the first question involves questions of fact going to the question of whether the deceased was a beneficiary, or potential beneficiary of the Anak No 1 Trust. The questions in paragraph 2 are questions of law.
The Initial Response of the Plaintiff
The plaintiff opposed the application on a number of grounds, some of which will be mentioned later. Importantly for present purposes, while not conceding the matters relied upon by the Tucker defendants, the plaintiff contended that the deceased did have an interest of a different kind in the Anak No 1 Trust which was capable of passing to his trustee in bankruptcy.
The plaintiff submitted that the divisible property of the deceased’s bankrupt estate was to be determined by reference to s 249(6) of the Bankruptcy Act 1966 (Cth). It is not necessary presently to consider the circumstances which, in the plaintiff’s submission, made s 249(6) applicable. It is sufficient to note that it does require the resolution of certain issues of fact. Section 249(6)(c) provides that in the circumstances to which s 249(6) applies, the divisible property of a bankrupt estate includes:
[t]he capacity to exercise, and to take proceedings for exercising, all such powers in, over or in respect of property as might have been exercised by the legal personal representative of the deceased person for the benefit of the estate at any time before an order releasing the estate from administration under this Part is made.
The plaintiff’s submission was that the deceased’s power as appointor to remove the trustee of the Anak No 1 Trust and to appoint another trustee was a “power … in respect of property” to which s 249(6)(c) referred. It was submitted further that this power could have been exercised by the deceased to appoint himself as trustee of the Anak No 1 Trust, and also to nominate himself as a beneficiary pursuant to cl 3(2) of the Trust deed. Next, it was submitted that those powers could have been exercised by the executor of the deceased’s estate following his death. This was a sufficient interest to give rise to conflicts of interest in Mr Tucker and the breach of fiduciary duty pleaded by the plaintiff.
It was submitted, in the alternative, that because the deceased was in the class of persons who were potential beneficiaries of the Anak No 1 Trust, he (and his estate) had an entitlement to enforce the due administration of the Anak No 1 Trust. That entitlement was, it was submitted, an interest of a relevant kind and capable of passing to the trustee in bankruptcy. Reference was made to Official Receiver in Bankruptcy v Schultz;[4] to ReBuckle[5] and to Cirillo v Citicorp.[6]
[4] (1990) 170 CLR 306 at 313-4.
[5] (1969) 15 FLR 460 at 466.
[6] [2004] SASC 293 at [78]; (2004) 236 LSJS 24 at 40-1.
The Amended Applications
In the course of his reply to the plaintiff’s submissions, Mr Slattery QC, who appeared with Mr Bevilacqua for the Tucker defendants, submitted that he had been taken by surprise in the way in which the plaintiff put his case. Against the opposition of Mr McNamara QC, who appeared with Ms Field for the plaintiff, I allowed an adjournment. Subsequently, I gave leave to the Tucker defendants to amend their application so as to seek the determination of further questions of law in advance of other issues at the trial, namely:
i.Whether the powers of Appointor under the Anak No 1 Trust was divisible property within the meaning of Section 249(6) of the Bankruptcy Act 1966.
ii.If the powers of Appointor under the Anak No 1 Trust was divisible property within the meaning of Section 249(6) of the Bankruptcy Act 1966, whether that property subsisted as divisible property after the death of James Alastair McGregor.
The Tucker defendants submitted that the response of the plaintiff which I have summarised above could not, as a matter of law, succeed. The further questions sought to expose the lack of merit for which they contended. The Tucker defendants’ submission was that a power of appointment in a trust is not property for the purposes of s 249(6)(c). Reference was made to Re Burton; Wily v Burton & Ors[7] and to the cases referred to therein, as well as Nichols to Nixey.[8] Even if the power of appointment was a power in respect of property, it was submitted that given the terms of the Trust deed in this case, it was a power which enured to the deceased only during his lifetime.
[7] (1994) 126 ALR 557.
[8] [1885] 29 Ch D 1005 at 1007.
The Case for Preliminary Determination of Issues
I am satisfied that the questions raised by the Tucker defendants for preliminary determination (with the exception of the first which raises questions of fact) crystallise, in an appropriate way, questions of law. I am also satisfied that those questions are substantive questions which will probably, but not inevitably, have to be determined in the trial. Subject to what I say below, I am also satisfied that it is likely that a number of the facts necessary for the determination of these questions could be agreed between the parties (as being non-contentious) or, if not agreed, would require a relatively short amount of evidence only.
The Tucker defendants submitted that the trial of the questions identified by them would take some three days. If evidence of the factual matters was required, the plaintiff estimated that the trial of the questions raised by the Tucker defendants could occupy 7-10 days. The plaintiff’s present estimated length of the trial on all issues is 12 weeks of which, in the plaintiff’s estimate, at least 50 per cent (and on the Tucker defendants’ estimate about 90 per cent) would be occupied with the Anak transactions. Accordingly, if the preliminary questions identified by the Tucker defendants were resolved adversely to the plaintiff, a substantial shortening of the trial would be achieved, with all the benefits to the parties and to the court which such a shortening would entail.
Relevant Principles
Rule 75.02 of the SCR provides:
Subject to the preceding subrules, the Court may at any time or from time to time in any proceeding, order:
(a)     that different questions of fact arising therein be tried by different modes of trial;
(b)     that one or more questions of fact be tried before the others;
(c)     that any point or points of law arising on the pleadings be disposed of before proceeding to trial of the facts;
and may appoint the place or places of such trials.
The principles relating to such applications are well settled. In relation to preliminary issues which raise questions of law only, the relevant principles were reviewed by Bleby J in Rivers v Rivers[9] with particular reference to the judgment of Walters J in Rogers v Baillieu Bullock Wilkinson Pty Ltd.[10]   Bleby J identified the following matters as being relevant:
1.An order that a point of law be set down for hearing and disposal before trial ought only to be made when the objection in point of law raises a question which, if decided if favour of the party objecting, would dispense with further trial of some substantial issue in the action. [It is not necessary] that the point must be conclusive of the whole matter, whichever way the point is decided.
2.Such a reference ought only to be made where there is no dispute on the relevant facts giving rise to it.
3.It will seldom be an appropriate procedure where facts have to be decided by the trial judge in order to determine the preliminary point.
4.The procedure should not be adopted when assumptions must be made as to the correctness of allegations of fact made in the Statement of Claim or defence.
5.If the procedure is adopted, there should be a clear definition of the point of law raised for determination.[11]
[9] [2002] SASC 197; (2002) 220 LSJS 74.
[10] (1981) 28 SASR 594.
[11] [2002] SASC 197 at [14]; (2002) 220 LSJS 74 at 77-78.

These principles have been discussed and elaborated in later cases.[12] All the cases have emphasised the inappropriateness of courts determining preliminary questions when the facts are in dispute or, at least, not settled. Although the prospect that the determination of a preliminary issue may dispose of a substantial issue in an action, or at least narrow substantially the area of dispute, may be sufficient in some cases to warrant an order for a preliminary determination of issues, it will not be appropriate if the factual basis for the determination is unsettled.[13]
[12] FAI General Insurance Co Ltd (In Liq) v Sherry and Ors [2002] SASC 431 at [38]; (2002) 225 LSJS 141 at 148; Duke Group Limited (In Liq) v Alamain Investments Limited (In Liq) [2006] SASC 33 at [24]-[26].
[13] FAI General Insurance Co Ltd (In Liq) v Sherry and Ors [2002] SASC 431 at [38]; (2002) 225 LSJS 141 at 148.
Countervailing Considerations
Although I consider that the Tucker defendants have made a persuasive case for the determination of the questions identified by them in advance of the trial of the remaining issues, there are a number of countervailing considerations.
In the first place, the plaintiff’s allegations with respect to the Anak transactions are not entirely separate and discrete from other allegations in the Further Amended Statement of Claim. Instead, the plaintiff alleges that Mr Tucker engaged, in effect, in a course of conduct of which the Anak transactions form part. The Further Amended Statement of Claim contains an allegation that at the time of his death the deceased was indebted to Mr Tucker or to the second defendant arising from an advance of about GBP£116,000 by Mr Tucker in the period between 31 July 1987 and 16 October 1987. It alleges that that debt was assigned by Mr Tucker to the second defendant on or about 2 October 1989 and was repayable with interest at the rate of 14 per cent per annum. Mr Tucker was aware, it is said, that the death of the deceased and his bankruptcy put at significant risk the prospect of recovery of that debt. The Anak transactions which had the effect of removing assets from the Anak No 1 Trust and putting them in entities controlled by Mr Tucker or interests associated with him were implemented as part of his objective to obtain recovery of that debt. So also (so the plaintiff claims) were the other transactions pleaded by the plaintiff in the Further Amended Statement of Claim. Thus the plaintiff submitted that the conduct attributed to Mr Tucker in relation to the Anak transactions will also be relevant to the assessment of his motives, objectives and conduct in relation to the other transactions. Accordingly, evidence concerning those transactions will be relevant to, and admissible in, the trial relating to the remaining transactions. In this respect it is relevant to note that some of the conduct said to comprise the Anak transactions was contemporaneous in a broad sense with other conduct pleaded by the plaintiff.
It is not altogether easy at this stage to assess the extent to which the Anak transactions will need to be explored as part of the presentation of the plaintiff’s claim in respect of the other transactions. However, given the plaintiff’s plea of the objectives which motivated Mr Tucker, I am satisfied that there is likely to be at least some overlap. Thus, even if the crystallised points of law were resolved in the Tucker defendants’ favour, the Court is still likely to have to hear and determine some evidence concerning the Anak transactions.
This point was elaborated in the plaintiff’s submissions on the Tucker defendants’ amended application. Mr McNamara QC emphasised that part of the plaintiff’s claim which sought an inquiry and account in respect of profits made by Mr Tucker, or interests associated with him, by reason of Mr Tucker’s alleged use of knowledge obtained by him as an executor, or by use of his fiduciary position. Such a claim does not depend upon the plaintiff showing that the estate has suffered a loss or that the estate could, given the opportunity, have earned the gain.[14] It focuses instead on the benefit or gain by a fiduciary which is obtained by reason of the defendant’s use of his fiduciary position or from an opportunity or knowledge resulting from that position.
[T]he principle of equity is that a person who is under a fiduciary obligation must account to the person to whom the obligation is owed for any benefit or gain (i) which has been obtained or received in circumstances where a conflict or significant possibility of conflict existed between his fiduciary duty and his personal interest in the pursuit or possible receipt of such a benefit or gain or (ii) which was obtained or received by use or by reason of his fiduciary position or of opportunity or knowledge resulting from it.[15]
[14] Warman International Ltd v Dwyer (1995) 182 CLR 544 at 561-3. See also Meagher, Gummow and Lehane’s Equity Doctrines and Remedies 4^th ed, LexisNexis, Australia 2002 at [5-245].
[15] Chan v Zacharia (1984) 154 CLR 178 per Deane J at 199.
In the present case, the plaintiff asserts that Mr Tucker (or interests associated with him) have obtained benefits arising from knowledge obtained by Mr Tucker in his capacity as executor. It is fair to note the response of Mr Slattery QC to the effect that all of Mr Tucker’s knowledge was acquired prior to the death of the deceased from his participation in various business activities with the deceased, and not from his capacity as executor. That, however, is a factual issue which can only be resolved at trial. What the plaintiff’s submission illustrates is that a trial of the plaintiff’s complaint with respect to the Anak transactions may be required even if the preliminary issues are resolved adversely to the plaintiff.
The position of the third party is also relevant here. It is a professional indemnity insurer of Mr Tucker. It has denied indemnity to Mr Tucker in respect of the plaintiff’s claim. It has raised a “dishonesty” exclusion in the professional indemnity policy in relation to each of the claims made against the Tucker defendants. The third party wishes to explore at the trial Mr Tucker’s motives and objectives, including the extent to which they are revealed in the Anak transactions.
In short, I am not satisfied that determination of the preliminary issues in a way which is adverse to the plaintiff will mean that the factual matters concerning the Anak transactions will not have to be canvassed at the trial. This undermines the submission of the Tucker defendants as to the savings of time and expense which their proposal entails.
The fragmentation of the trial process is another important consideration.[16] The course for which the Tucker defendants advocate involves the possibility of a trial of the preliminary issues, then a trial of the remaining liability issues and, if the plaintiff is successful on some or all of those issues, a subsequent inquiry into, and account of, the profits obtained by Mr Tucker or the interests associated with him. There may even be a fourth stage if there is argument as to the orders to be made following the inquiry and account. Such a fragmentation is undesirable. The events giving rise to this litigation are already very stale. Many of the important events, including the death of the deceased, occurred in 1990. Some transactions occurred even before then, for example, the alleged advances by Mr Tucker to the deceased in 1987. Fragmentation of the trial process will delay still further the finalisation of a matter which is already somewhat stale.
[16] Duke Group Ltd (In Liq) v Arthur Young (No 2) (1991) 4 ACSR 355 at 408 per Duggan J.
In addition, there is the prospect of an appeal after the determination of the preliminary issues with the potential to delay the completion of the trial still further. Mr Nicholson QC, who appeared for the third and fourth defendants, thought that however the liability issues are resolved, there is a high likelihood of appeal. That suggests, at the least, that it is desirable for all the issues concerning liability to be determined at the one time. It would be open to the Tucker defendants to proffer an undertaking to the Court not to appeal any adverse decision on the preliminary issues until after the final conclusion of the trial. Such a condition cannot, however, be imposed upon the plaintiff nor upon the other parties.
The considerations which I have just mentioned outweigh, in my opinion, the advantages to which the Tucker defendants have pointed. In particular, I am satisfied that a proper application of the principles indicates that in this case the application for the hearing and determination of the identified question in advance of the remaining issues should be refused.
The Plaintiff’s Application
The plaintiff sought an order that all issues of liability should be determined in advance of a hearing of the quantum aspects. It was said that adopting this course would permit the parties to devote their energies and resources to the liability issues. It would save expenditure on the investigation and preparation of the quantum issues until it became clear that such work was necessary. It was also said that it would involve, at least in the first instance, some saving of court time. Mr McNamara QC estimated that some four weeks in a 12 week trial would be spent on the quantum aspects. Mr Slattery QC, on the other hand, submitted that between one and two weeks would be required to deal with the quantum aspects.
I am satisfied that the plaintiff’s application should not succeed. Many of the matters which I have mentioned in connection with the application of the Tucker defendants are also relevant here. I mention in particular the desirability of avoiding fragmentation of the trial, and the disruption which an appeal prior to the final disposition of the matter could cause. Further, my impression is that this is a case in which there would be advantages to the trial judge in being able to determine the quantum aspects at the same time as determining the liability aspects.
Each of the estimates of the parties indicate that the time in the trial which will be spent on the quantum aspects will not constitute the major part of the trial.
In addition, experience suggests that if the parties are required to address the quantum aspects at the same time as the liability aspects, their attention is often better focussed on the merits of the claim and the defence and that the prospects of the parties reaching some compromise are enhanced.
For these reasons the plaintiff’s claim is also refused.

Conclusion

I decline to order the hearing and determination of certain issues as proposed by the first and second defendants in advance of the remaining issues in these proceedings. I also refuse the application by the plaintiff for the hearing and determination of the liability issues in advance of the quantum issues. I will hear the parties as to costs.