Quarmby v Qasair Investments Pty Ltd

[2014] TASFC 11

[2014] TASFC 11

COURT:        SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:                  Quarmby v Qasair Investments Pty Ltd [2014] TASFC 11

PARTIES:  QUARMBY, Alan
  v
  QASAIR INVESTMENTS PTY LTD

FILE NO:  1006/2013
JUDGMENT

APPEALED FROM:  Qasair Investments Pty Ltd v Quarmby [2013] TASSC 51

DELIVERED ON:  22 October 2014
DELIVERED AT:  Hobart
HEARING DATE:  10 October 2014
JUDGMENT OF:  Porter, Wood and Pearce JJ

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Procedure under rules of court – Other matters arising before trial – Power to order that in any proceeding any question be tried before any other – Circumstances in which appropriate to exercise power.

Supreme Court Rules 2000 (Tas), r 559(1).
Aust Dig Procedure [277]

Estoppel – Estoppel by judgment – Issue estoppel – Application of estoppel to what matters – Matters necessary to the decision – Matters extend to final conclusion and to those necessarily established as the legal foundation or justification for the conclusion.

Blair v Curran (1939) 62 CLR 464; Kuligowski v Metrobus (2004) 220 CLR 363; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853; Ramsay v Pigram (1968) 118 CLR 271; Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 355, applied.
Aust Dig Estoppel [1025]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  S Taglieri
Solicitors:
             Respondent:  Jim Saric Law

Judgment Number:  [2014] TASFC 11
Number of paragraphs:  34

Serial No 11/2014

File No 1006/2013

ALAN QUARMBY v QASAIR INVESTMENTS PTY LTD

REASONS FOR JUDGMENT  FULL COURT

PORTER J
WOOD J
PEARCE J
22 October 2014

Order of the Court

Appeal dismissed.

Serial No 11/2014

File No 1006/2013

ALAN QUARMBY v QASAIR INVESTMENTS PTY LTD

REASONS FOR JUDGMENT  FULL COURT

PORTER J
22 October 2014

1. I agree with Pearce J.  The appeal should be dismissed.

   File No 1006/2013

ALAN QUARMBY v QASAIR INVESTMENTS PTY LTD

REASONS FOR JUDGMENT  FULL COURT

WOOD J
22 October 2014

1. I agree that the appeal should be dismissed, for the reasons stated by Pearce J.

File No 1006/2013

ALAN QUARMBY v QASAIR INVESTMENTS PTY LTD

REASONS FOR JUDGMENT  FULL COURT

PEARCE J
22 October 2014

1. This appeal concerns the doctrine of issue estoppel. The appellant, Dr Quarmby, challenges orders made by Estcourt J on 11 September 2013 striking out Dr Quarmby's defence in two actions brought by Qasair Investments Pty Ltd ("Qasair") and granting the declaratory and injunctive relief sought by Qasair in the actions. His Honour ruled that Dr Quarmby was estopped from relying on the issues on which he sought to rely in his defence, Qasair Investments Pty Ltd v Quarmby [2013] TASSC 51 because those issues had been finally determined against Dr Quarmby in earlier proceedings in which both he and Qasair were parties: Quarmby v Keating & Qasair Investments Pty Ltd [2007] TASSC 65. The actions brought by Qasair are a continuation of a long running dispute concerning the respective entitlements of the parties to a strip of land along a shared boundary. Dr Quarmby is the registered proprietor of the land at 96 Lady Bay Road, Southport ("the Quarmby land"). Since 2 September 2003, Qasair has been the registered proprietor of the land at 80 Mundy's Road, Southport ("the Qasair land"). Both properties are registered land under the Land Titles Act 1980.

2. The trial of Qasair's actions, which were to be heard together, was due to commence on 11 September 2013. With the agreement of the parties Estcourt J determined the question of estoppel as a preliminary question pursuant to r 599(1)(b) of the Supreme Court Rules 2000. The question was posed in the following terms:

   "Given the issues decided in actions 33 of 2005 and 467 of 2006, is Dr Quarmby thereby estopped in the present proceedings from claiming or asserting that he has a legal or equitable right or interest over any part of the land of which Qasair Investments Pty Ltd is the registered proprietor, arising from adverse possession of any such land by him or others, sufficient to allow him or his agents to lawfully enter upon that land and maintain a fence upon it or, conversely, sufficient to prevent Qasair Investments Pty Ltd from entering upon its own land and removing any such fence erected thereon by Dr Quarmby?"

3. The question was determined without evidence by examination of the pleadings in the two Qasair actions. One action was commenced in 2009 and the other in 2012. Insofar as is relevant to this appeal the statements of claim in each action are the same except that the later action pleads facts which occurred after the statement of claim in the first action was delivered. In the later action Qasair pleads that:

   ·     Qasair became the registered proprietor and took possession of the Qasair land on 2 September 2003;

   ·     the Qasair land is comprised in folio of the register volume 242728 folio 1;

   ·     the Quarmby land is comprised in folio of the register volume 139705 folio 1;

   ·     Dr Quarmby is the registered proprietor of the Quarmby land;

   ·     prior to 2003 Dr Quarmby erected a fence approximately 215 metres long running in a line approximately 4 to 5 metres within the northern boundary of the Qasair land;

   ·     on six or seven separate occasions between January 2008 and January 2011, Mr John Keating, a representative of Qasair, removed all or part of the fence. On each occasion, Dr Quarmby repaired or replaced the fence.

1. In each action the relief claimed by Qasair is the same. Qasair claims:

   (a)declarations that:

   (i)     the Qasair land is as delineated by the title boundaries shown in folio of the register volume 242728 folio 1;

   (ii)     Dr Quarmby is not entitled to possession of the Qasair land or any part of it;

   (iii)    Dr Quarmby has wrongfully trespassed on the Qasair land;

   (iv)    Dr Quarmby is estopped from claiming that he has a possessory title to the Qasair land sufficient to allow him to enter onto it and erect a fence against Qasair's documentary title;

   (b)a permanent injunction restraining Dr Quarmby, his agents or whoever, from entering upon the Qasair land or erecting upon it any fence;

   (c)damages.

2. Most of the factual allegations in the Qasair statements of claim are not disputed by Dr Quarmby. He admits that each party is the registered proprietor named in the certificates of title referred to by the respondent. In his defence to the 2009 action Dr Quarmby:

   ·     admits originally erecting the fence, and repairing or replacing it when was removed by Mr Keating;

   ·     pleads that "the fence was erected on the southern boundary of his own land then in possession as purchased by a contract for sale of 9 February 1981 from the then vendors (a Mr and Mrs Hay)";

   ·     denies that he wrongfully maintained the fence "since it is on the true boundary of the fee simple in possession";

   ·     makes a counterclaim, although it claims no relief. In the counterclaim, Dr Quarmby denies that he is or has ever been in possession of any of Qasair's land.

3. Dr Quarmby's defence in the 2012 action is in similar but not identical terms. In that defence Dr Quarmby:

   ·     admits erecting the fence in 1981 but says it was on the "southern boundary of his land" and denies it was on the Qasair land;

   ·     denies that maintaining the boundary fence in the disputed location was "wrongful";

   ·     adds a counterclaim in which he pleads his purchase of "the land under contract dated 9 February 1981" and that he has been in possession of that land since then. He also pleads that the disputed strip of land between the fence and that boundary "was and remains in his legal possession" and claims damages for repairing and reinstating the fence on the occasions it was removed by Mr Keating.

4. The statement of claim in each Qasair action refers to the earlier proceedings identified in the question answered by Estcourt J, namely actions 33/2005 and 467/2006. These earlier actions will be referred to in more detail later in these reasons. It should be noted at this stage however that in his defence to both the 2009 and 2012 Qasair actions Dr Quarmby admits the existence and outcome of the earlier actions and that in both earlier actions a "possessory title was alleged" and that he "had an equitable interest by virtue of and arising from adverse possession" over the disputed land sufficient to ground an action for damages for trespass.

Issue estoppel

1. An issue estoppel prevents a party from having the same issue determined by a court or other tribunal more than once. There are obvious reasons for this. It prevents the undesirable situation of different courts and tribunals coming to different and conflicting conclusions on the same issue and encourages the finality of judgments. Issue estoppel operates to prevent, in some circumstances, an issue of fact or of law already determined being raised again later to pursue some other claim or cause of action. It is different to res judicata which relates to the cause of action itself being finally determined. Issue estoppel concerns the issues necessarily involved in the cause of action.

2. Dixon J explained this in the High Court in 1939 in Blair v Curran (1939) 62 CLR 464 at 531–532:

   "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. … The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."

3. Three preconditions must exist before issue estoppel will apply. The following requirements are derived from the speech of Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd[No 2] [1967] 1 AC 853 at 935:

   (1)the first decision was final;

   (2)the same question has been decided; and

   (3)the decision involves the same parties, or at least parties with the same legal interest.

4. Lord Guest's statement of principle was authoritatively approved and applied by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363. The doctrine of issue estoppel extends to the decision of any tribunal which has the jurisdiction to finally decide a question arising between the parties: Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 355 at 453. A final order is one which is final and conclusive on the merits, not one of an interlocutory character, but a decision that is completely effective unless and until rescinded, altered or amended: Kuligowski at 375 [25]. The fact that an appeal lies from the decision does not make it any less final: Administration of Papua New Guinea v Daera Guba (above) at 454.

5. An issue estoppel will only arise if the same issue or question has been decided. The High Court in Kuligowski approved the following statement of Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 at 276:

   "Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity.  The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case."

6. The estoppel extends not only to the final conclusion, but also to matters necessarily established as the legal foundation or justification for the conclusion. In Blair v Curran (above) Dixon J said at 531:

   "The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion ...

   Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. … In the phraseology of Coleridge J. in R v Inhabitants of the Township of Hartington Middle Quarter (1855) 4 E & B 780, at p 794 [119 ER 288, at p 293], the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue."

7. His Honour continued at 532:

   "In the phraseology of Lord Shaw, 'a fact fundamental to the decision arrived at' in the former proceedings and 'the legal quality of that fact' must be taken as finally and conclusively established.  But matters of law or fact which are subsidiary or collateral are not covered by the estoppel."

The earlier proceedings

1. The two earlier actions referred to in the question answered by Estcourt J were commenced in this Court in 2005 and 2006. In both actions:

   ·     Dr Quarmby and his wife were plaintiffs;

   ·     Qasair and Mr Keating were defendants;

   ·     the plaintiffs claimed, amongst other relief, an injunction restraining the defendants from entering "the plaintiffs' land or the plaintiffs' land in possession", and damages for trespass.

2. The trial of the actions was conducted before Tennent J. They were heard together. Her Honour gave reasons for judgment on 23 August 2007: Quarmby v Keating & Qasair Investments Pty Ltd [2007] TASSC 65. Her Honour dismissed both actions. It is beyond argument that the land dealt with in her Honour's reasons is the Quarmby land and the Qasair land. Her Honour dealt with the same disputed area of land, that is the 4 to 5 metre wide strip about 215 metres long contained between the fence originally erected by Dr Quarmby and the various replacements of it, and the line that Qasair says is the title boundary. Her Honour found that the post and wire fence dividing the properties had enclosed the disputed land with the Quarmby land since November 1981 and that the Quarmbys had occupied the disputed land since then. However she rejected Dr Quarmby's claim that the disputed land formed part of his documentary title. Tennent J found, at [25]–[27], that Qasair, and not Dr Quarmby, was the registered proprietor of the disputed land. She also rejected the Quarmby claim that they had paid rates on the disputed land during their period of occupation, and found that rates had been levied on both properties by reference to the area shown on the registered titles and paid by the respective registered proprietors. Those findings were not the subject of an appeal.

3. Tennent J also rejected Dr Quarmby's claim that he had acquired title to, or a right to possession of, the disputed land pursuant to the Limitation Act 1974, by virtue of his adverse possession of the disputed land since November 1981. Her Honour's findings were subject to an appeal. On 19 November 2008, the Full Court, comprising Crawford CJ, Slicer and Evans JJ, unanimously rejected the appeal: Quarmby v Keating (2008) 18 Tas R 284. Evans J, with whom Crawford CJ agreed, undertook a comprehensive review of the law relevant to Dr Quarmby's rights under Pt IXB of the Land Titles Act to acquire possessory title to land and the operation and effect of the Limitation Act, ss 10(2) and 21. It is unnecessary to repeat his Honour's analysis here. I respectfully agree with it. The substance and effect of what his Honour concluded is:

   ·     The finding of Tennent J that the rates on the disputed land had been paid by or on behalf of the registered owner of the Qasair land disposed of any prospect of a successful application by the Quarmbys to be the registered proprietors of the disputed land on the basis of possessory title under Pt IXB of the Land Titles Act. That is so because s 138U of that Act applies and provides that for the purposes of an application to acquire title to any land by possession, any period during which council rates are paid by or on behalf of the owner is to be disregarded.

   ·     His Honour rejected the submission that the Quarmbys acquired equitable title to the disputed land sufficient to ground an action in trespass pursuant to the Limitation Act and obtained a form of possessory title to the land even though it could not be converted into a registered title. His Honour found that s 138U(1) of the Land Titles Act should be construed as extending to all the purposes that relate to an application to acquire title to land by possession. Consequently, as to registered land, it is only when an adverse possessor has been in possession of land for 12 years, excluding any period during which rates have been paid in the interests of the owner, that s 138W(2) deems the registered proprietor to hold the land on trust for the adverse possessor. Consequently, the Quarmbys were not entitled to the protection of the Limitation Act. At [64] his Honour summarised his conclusion:

   "In the course of the appeal, counsel for the Quarmbys placed considerable emphasis on the distinction between an equitable and a legal title or estate in registered land, the former being the title obtained by an adverse possessor pursuant to s138W(2), and the latter being the title of a registered proprietor.  Valid as this distinction is, it does not assist the Quarmbys.  In order for them to acquire any title to the disputed land by possession, regardless of whether that title is categorised as legal or equitable, it was necessary for them to establish that they had possessed the disputed land for 12 years, excluding any period during which council rates were paid in the interests of the registered proprietor of the Qasair land.  They were unable to do so.  An adverse possessor of land is not entitled to the protection of the Limitations Act as against the owner where that possessor has not been in possession for the requisite statutory period, McGuire v Browne (1913) 17 CLR 365 and, for the reasons I have given, consistent with the applicable provisions of the Land Titles Act 1980, this period excludes any periods during which council rates were paid in the interests of the owner."

Estcourt J's decision

1. Estcourt J published his reasons for judgment on 11 September 2013. He referred to the proceedings in the 2005 and 2006 actions. His Honour then explained why he considered that the answer to the question posed may be dispositive of the actions before him. He undertook a detailed analysis of the issues and findings in the earlier actions and the pleadings in the actions before him. He answered the separate question "yes" and expressed the estoppel in these terms:

   "31 … Dr Quarmby is thus estopped from asserting as against Qasair Investments Pty Ltd in these proceedings that he has a possessory title (or a legal or equitable interest by virtue of, or arising from, his adverse possession or that of his predecessors in title), to or in Qasair Investments Pty Ltd's land sufficient to allow him now or to have allowed him in the past, to enter onto it and erect a fence, and he is estopped in these proceedings from asserting that he has any other enforceable right against the plaintiff's documentary title.

   32    Equally, Dr Quarmby is estopped from asserting the converse, that is, that Qasair Investments Pty Ltd has not had at all relevant times a complete right to enter upon its own land and remove any fence erected thereon by Dr Quarmby. The factual and legal existence of such a right is fundamental to the judgments in the earlier actions, indeed, it is a necessary corollary of them. And, for the avoidance of any doubt, my reference to Qasair Investments Pty Ltd's 'documentary title', 'land' or 'own land', includes the disputed area."

1. After publication of his reasons for these conclusions his Honour adjourned the proceedings to the following day. When the proceedings resumed his Honour made an order striking out Dr Quarmby's defences and, in both actions, made the declarations and ordered the injunctions sought by Qasair. He also made an order in favour of Qasair for damages to be assessed and for costs.

2. The appeal to this Court is a rehearing. Given that there was no evidence heard by Estcourt J this Court will be in as good a position to determine the issues as his Honour was. Dr Quarmby relies upon four grounds of appeal.

Ground 1

1. Ground 1 asserts that Estcourt J "erred in fact and in law in determining that the issues raised in the appellant's defence of 397 of 2009 and 23 of 2012 were estopped as res judicata". This ground can be quickly disposed of. Estcourt J made no such determination. His Honour found that it was unnecessary for him to decide whether the rights asserted by Dr Quarmby in defence of the actions and in support of his counterclaims had merged into the earlier judgments and are res judicata.

Ground 2

1. Ground 2 asserts that "the learned judge erred in fact and in law in determining that the issues raised in the appellant's defence of 397 of 2009 and 23 of 2012 were estopped as an issue estoppel". Estcourt J made no findings of fact in the decision appealed from. His determination that there was an estoppel was made on analysis of the issues raised on the pleadings in the actions before him and by comparing those issues with those previously determined by Tennent J and the Full Court. In determining this ground it is necessary to attempt to establish what Dr Quarmby's grounds of defence were. In his pleadings his contentions were expressed in various ways. He claims that the fence that separated his land from the Qasair land was on the boundary of the land he purchased from Mr and Mrs Hay in 1981. In his written submissions in this appeal he contends that:

   ·     the land he purchased in 1981 contains the disputed strip;

   ·     he is the registered proprietor of the disputed land and has "indefeasible title to it";

   ·     as purchaser under the contract he has "full legal title, good against all the world and especially [Qasair]" to the disputed strip;

   ·     his title is superior to that of Qasair;

   ·     that the failure of his claim to adverse possession in action 33/2005 did "not affect or nullify his rights";

   ·     his rights were a matter for trial and that the findings of Tennent J did not "reduce, negate or compromise the principles on which his rights were based".

2. It was necessarily established as a legal foundation of the judgment of Tennent J that Dr Quarmby was not the registered proprietor of the disputed land. It was necessarily established as a legal foundation of the decision of the Full Court that Dr Quarmby's possession of the disputed land gave him no equitable or legal right to the disputed land that entitled him to resist Qasair's claim. Both decisions were final and involved the same parties. By application of the principles earlier referred to, an issue estoppel as to those issues arose. The learned primary judge's conclusion that such an estoppel arose was, with respect, obviously correct.

3. During his oral submissions to this Court, Dr Quarmby referred at some length to the findings made by Tennent J. To the extent that the submissions sought to re-argue the matters on which he was unsuccessful before her Honour and the Full Court they are to be ignored. He contended however that Estcourt J was wrong to strike out his defences and make orders against him without proceeding to trial because the defences plead some fact or issue that disclose an arguable defence that he is not estopped from raising. I reject that submission. The defences plead no such issue. Dr Quarmby's pleadings do not disclose any other facts or issues beyond those to which I have referred which could, as a matter of law, found any other claim to or interest in the Qasair land which would constitute a defence to its claim for relief. Dr Quarmby was repeatedly requested by this Court to identify the claim or interest he says he has against the Qasair land. He failed to do so. The nature of the claim or interest is not pleaded. During his submissions Dr Quarmby repeatedly referred to the land he contracted to purchase in 1981 from other parties, and suggested that he was entitled to place a fence on the boundary of the land he "agreed to buy". Even if that were true, it gives no claim or interest against the Qasair land. In any event, Dr Quarmby's claim that he agreed to purchase land that either does not form part of the land comprised and described in his documentary title or, conversely, forms part of the land comprised and described in the documentary title of Qasair, is the subject of express findings to the contrary by Tennent J. Her Honour found that the land described in Dr Quarmby's certificate of title is the land he agreed to purchase.

4. By the Land Titles Act, s 39(1), the folio of the register naming Qasair as the registered proprietor is conclusive evidence Qasair is entitled to that land for that estate or interest described in the folio. Subject to any applicable exceptions, Qasair's title is indefeasible, that is, subject only to such estates and interests as are recorded on the folio of the register or registered dealing evidencing title to the land: s 40(1) and (2). Dr Quarmby has no registered interest in the Qasair land. The statutory exceptions to the indefeasibility of the title of a registered proprietor of land are set out in s 40(3). The only exception which could have application in this case is s 40(3)(h), the effect of which is that Qasair's title is not indefeasible "subject to section 138W, so far as regards rights acquired, or in the course of being acquired, under a statute of limitations". The combined effect of the decisions of Tennent J and the Full Court precluded Dr Quarmby from any legal or equitable interest based on such a claim. That exception can have no application. Thus, by s 40(5), Qasair's title to the Qasair land prevails, notwithstanding any interest claimed by Dr Quarmby. There is no other reason that the interest of Qasair as registered proprietor should not prevail over Dr Quarmby's claimed interest. In summary, the matters raised by Dr Quarmby in his defence in the actions before Estcourt J raised no fact or issue, other than those he was estopped from raising, capable of establishing some other interest that would preclude Qasair from the relief ordered, including a declaration that it is entitled to possession of the disputed land and an injunction restraining Dr Quarmby from entering the Qasair land. Taking into account the admissions in the defences and the effect of the estoppel, there was no error in his Honour proceeding to strike out the defences and grant the relief he ordered. This ground of appeal should fail.

Ground 3

1. Ground 3 asserts that "the learned judge erred in determining that a registered proprietor, being a transferee from a transferor out of possession, has an immediate right of entry to recover from the person in possession without proving title". This ground has no merit. His Honour found that the only issues raised by Dr Quarmby's defence capable of founding a defence to Qasair's claims or establishing a right over the Qasair land had been finally decided against him in earlier proceedings. One of those issues was the title to the Qasair land. Tennent J found that Qasair did establish title to the disputed land. In the actions before Estcourt J, Dr Quarmby pleaded no fact or issue, other than those already finally dealt with in other proceedings, which entitled him to resist Qasair's claims.

Ground 4

1. Ground 4 asserts that "the learned judge erred in determining that the issues in the appellant's defence were estopped insofar as these issues followed from the appellant's statutory rights: there being no estoppel against such rights". This ground has no merit for the reasons already explained. Dr Quarmby did not identify the statutory rights this ground refers to. As I have explained, Dr Quarmby had no "statutory rights" to the disputed land other than arising from issues found against him in the earlier proceedings. His claim to an interest in that land, as pleaded in the actions, had been finally determined against him in earlier proceedings. He may retain rights to make certain applications to the Recorder of Titles under the Land Titles Act. He indicated to the Court that he intended to apply to the Recorder of Titles for an order under s 142(14) of the Act for rectification of boundaries and amendment of the register. However Dr Quarmby's right to make such an application is not the subject of the Qasair actions and is not affected by the orders made in the Court below.

The separate question

1. None of the grounds of appeal raise, at least directly, the appropriateness of his Honour's decision to deal with the issue estoppel question as a separate question under r 559(1)(b) of the Supreme Court Rules. However in the course of his oral submissions Dr Quarmby criticised his Honour for proceeding in that way. The issue can be dealt with relatively briefly. A week before the trial was due to commence his Honour wrote to the parties giving notice that, in light of the issues raised on the pleadings in the actions to be before him, he would invite submissions on the legal effect of the earlier decisions of the Court. In anticipation of the submissions he drafted, and gave notice to the parties of, a separate question for determination. At the commencement of the trial counsel for Qasair took up the matter and applied for determination of the separate question. Dr Quarmby did not oppose such a course.

2. Rule 559 provides:

   "559  Questions of fact or law tried differently

   (1)   In any proceeding and at any time, the Court or a judge may order that –

   (a)  different questions, whether of fact or law, be tried at different places or by different modes of trial; or

   (b)  any question be tried before any other.

   (2)   On an application for an order under subrule (1), the Court or judge is to have regard to —  

   (a)  the advantage of hearing evidence without undue delay; and

   (b)  the costs which may be incurred; and

   (c)  any other relevant matter.

   (3)   If any issue which has been ordered to be tried or any question or issue of fact which has been ordered to be determined in any manner has been determined, the Court or a judge may give any judgment as is appropriate on the application of —  

   (a)  the plaintiff or applicant; or

   (b)  if the plaintiff or applicant fails to do so within 10 days, any other party.

   (4)   If only some of the questions or issues ordered to be determined or tried have been determined or tried and the result renders the determination or trial of the other questions or issues unnecessary or renders it desirable that their determination or trial be postponed, the Court or a judge may give any judgment as may be appropriate, without waiting for that trial or determination."

3. It was a matter for his Honour's discretion as to whether to accede to Qasair's application to determine the separate question. This Court cannot interfere unless there is error of the kind referred to in the Supreme Court Civil Procedure Act 1932, s 45(1). It is clear from the manner in which the question arose that his Honour was predisposed to determining it separately, but that was for good reason. Ordinarily, the power to order determination of a separate question should be exercised with caution: Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002 at [4]; Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Limited (No 2) [2004] VSC 341; Murphy v State of Victoria [2014] VSCA 238 at [28]. A case for an order under r 559 should be "a clear one": Harrex v Hall-King [2012] TASSC 45. His Honour made no error in proceeding as he did. This was a clear case for an order of this type. Determination of the question required no evidence and involved no disputed facts. As I have explained, determination of the issue put an end to the actions. It saved considerable inconvenience and expense, and resulted in the expeditious and inexpensive resolution of the litigation.

4. Dr Quarmby's real complaint about the separate question is that it was confined to the adverse possession issue, did not put an end to the issues pleaded in his defences and should not have deprived him of a trial of the actions. For the reasons I have already given, his submission should be rejected.

Conclusion and orders

1. None of the grounds of appeal have been made out. I would dismiss the appeal.