A Divided House Cannot Stand But Can a Divided Proceeding?

This article highlights the difficulty with succeeding in applications for split trials. Two superior Courts in separate jurisdictions each recently heard applications to split trials. In each instance, the applications were dismissed, reminding applicants of the heavy onus they bear. For those determined to embark on a splitting application, the decisions offer helpful guidance on the evidence a Court will require to be persuaded.

In complex or costly proceedings, it is often tempting to think that carving certain issues out for preliminary determination may help in achieving a quicker and cheaper resolution. No doubt, this path is especially tantalising when you are on the better side of the preliminary issue. However, two recent decisions of superior Courts in different jurisdictions act as a helpful check on this temptation. Instead, these decisions remind prospective applicants of the Court’s reluctance to depart from the “ordinary course” 1 unless there are compelling reasons to do so.

Target Australia v Smart Trike
Target Australia v Smart Trike (Bifurcation Application) [2026] FCA 6 (Smart Trike) concerns a consumer law claim by Target Australia under the respective Federal and State legislation. By way of crossclaim, the respondent, Smart Trike, also made  claims of its own under the Australian Consumer Law. Under r 30.1 of the Federal Court Rules 2011 (Cth), Smart Trike sought orders for certain issues concerning liability in its crossclaim to be determined prior to issues of pecuniary relief.

Smart Trike argued that its misleading or deceptive conduct crossclaim was part of a class of case “particularly likely” to benefit from a splitting of the issues of liability and quantum: at [15]. Further, Smart Trike argued, in similarly general terms, that by separating liability, the later determination of quantum would be more focused in scope and cost: at [18].

Justice Cheeseman was not persuaded by these arguments.

Her Honour noted the starting point for any splitting application is to consider how the Court’s overarching purpose to achieve the just resolution of disputes is best served: see s 37M of the Federal Court of Australia Act 1976 (Cth). This can only be done by having regard to the particular facts and circumstances of an individual case: at [16].

Her Honour helpfully summarised the framework for undertaking this assessment in the context of a splitting application. Citing University of Sydney v Resmed (No 5) [2012] FCA 232 at [41]-[47], her Honour elucidated the following principles (at [12]-[13]):

1. Generally, all issues in a proceeding should be determined at one time.
2. The party seeking to bifurcate or split a proceeding bears the onus of demonstrating there should be a departure from the ordinary course.
3. The narrowing of issues for trial and resulting time and cost savings are factors favouring the splitting of issues.
4. Conversely, significant contest on factual issues, overlap in evidence, and the prolonging of litigation are all factors that militate against the splitting of issues.
5. Usually, a splitting order should not be made until the parties have had an opportunity to properly assess the quantum of a claim against them. This is to allow “meaningful consideration” of the financial risk involved.

Items 3 and 4 of Cheeseman J’s list are, in effect, mandatory considerations in Tasmania under sub-r 559(2) of the Supreme Court Rules 2000 (Tas).

In this instance, her Honour was concerned with the overlap in issues between Target Australia’s claim and the crossclaim. As such, determining the crossclaim first would likely lead to “considerable duplicative work” with two rounds of discovery and evidence from lay witnesses required at both rounds of hearing: at [19]. In these circumstances, the overarching purpose of s 37M would not be best served by separating issues of liability and quantum.

A failure by Smart Trike to properly quantify its damages claim also influenced Cheeseman J’s decision. In these circumstances, her Honour considered determining the crossclaim first would be unlikely to assist in enhancing the prospect of an early settlement: at [20].

Green Gold Energy Pty Ltd v Trina Solar Investment Pte Ltd
In Green Gold Energy Pty Ltd v Trina Solar Investment Pte Ltd [2025] NSWSC 1490 (GGE), Peden J was faced with a similar application to split issues in the proceedings. The case concerned a breach of confidence claim by GGE. In a reversal of the above case, in this instance, it was the plaintiff that sought to separate issues for determination.

By way of procedural motion, GGE sought an order under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) separating the issue of pecuniary relief from “all other issues in the proceeding”. The latter were to be determined first: at [1].

GGE’s primary motivation for making this application appeared to be a desire to limit any wasted costs. It argued that if it was not successful on the issues of liability “the Court would not be required to decide the issue of monetary relief”: at [5]. Interestingly, the orders sought by GGE were consented to by the defendants.

In a clear demonstration of the Court’s reluctance to depart from the ordinary course and discretionary nature of splitting decisions, 2  Peden J dismissed GGE’s motion, despite its non-contested nature.

In weighing the potential time and costs savings if GGE’s motion was assented to, her Honour was particularly mindful of the delay that could be caused by any appeals process. Any order splitting issues of liability and pecuniary relief risked fragmentation and delay in the event of an appeal on the issue determined by way of separate hearing. This risk was exacerbated in her Honour’s view by the fact that the parties did not propose an undertaking not to take matters on appeal until issues of monetary relief were determined: at [9].

Whilst acknowledging the assessment of GGE’s pecuniary relief will likely be complicated, her Honour was not persuaded this issue on its own necessitated the splitting from issues of liability: at [10].

Observations
Smart Trike and GGE are cautionary tales for anyone considering an application to split issues in a proceeding. The decisions act as a reminder of the high onus an applicant is required to meet before a Court will depart from the ordinary course. Indeed, even apparently decisive issues, such as a limitations point, may not be to enough to justify separate hearings. 3

If a splitting application is to be made, applicants should ensure that the proceedings are at a point where the parties are able to meaningfully consider the financial stakes involved. The issues for separate determination should also be clearly articulated, disparate from any issues to be determined later, and capable of demonstrating how their early resolution could contribute to the disposal of the proceedings as a whole or encourage resolution of the balance of the proceedings. In certain cases, an application may be aided by an undertaking from the parties to not appeal or reagitate preliminary issues until all issues in the proceeding are determined. 4

In the absence of these assurances, bare assertions to the effect that the splitting of issues will achieve time and cost savings is liable to be seen by the Court as “more illusory than real”. 5

January 2026

Tristan Baker
Barrister
Old Mercury Chambers

1. See, for example, William Adams Pty Ltd v Goldamere Pty Ltd [2006] TASSC 77 at [14].
2. See Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [436], cited by Peden J at [7].
3. See Harrex v Hall-King [2012] TASSC 45.
4. In addition to Peden J’s comments at [9], see HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342, at [82] per Leeming JA and [193] per Payne JA.
5. [2026] FCA 6, at [21].