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Typically, the standard approach in litigation is to resolve all issues together in a single hearing. However, there are exceptions acknowledged by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) where a specific issue may be decided as a separate question before addressing the remaining disputes in the legal proceedings.

Definition of a separate question

The Civil Procedure Act 2005 NSW (CPA) has no specific definition of a ‘separate question’.  Generally, a separate question is a decisive, or potentially decisive, question regarding an issue which should achieve one of the following:

  1. definitively resolving the entire claim or a significant portion of the claim;
  2. reducing the extent and expenses of legal proceedings; or
  3. incentivising the involved parties to consider settling the remaining claims in dispute.

UCPR Rule 28.2

Rule 28.2 of the UCPR states that:

The Court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

Pursuant to rule 28.2, the Court possesses the discretion to make such orders for a separate question. The court’s authority will be exercised to align with the overriding purpose in section 56 of the CPA, which aims to facilitate the just, quick and cheap resolution of the issues in dispute.

When will the Court order a separate question?

Courts typically exhibit hesitancy to issue orders for a separate question, emphasising caution in such instances.

Reasons in favour of ordering a separate question

The court’s discretion is usually exercised in favour of a separate question only if it is evident that doing so will expedite the resolution of the proceedings and conserve costs.

This might be applicable for instance, when a separate question could:

  1. expeditiously conclude the proceedings;
  2. eliminate the need for an unnecessary or costly hearing; or
  3. potentially have the parties agree on the outcome of the remaining claims via settlement

Reasons against ordering a separate question

On the other hand, courts have recognised potential pitfalls in pursuing a separate question, such as:

  1. the risk of one party appealing causing a delay in the remaining claims in dispute;
  2. additional procedural complexities and delays as the separate question may extend the overall duration of the case; and
  3. the possibility of a witness providing testimony multiple times leading to inconsistent credibility findings.

These considerations typically discourage the granting of a separate question order.

In addition, if there is a substantial overlap in the evidence presented during the separate question hearing and the trial of remaining issues, it is likely to undermine the separate question hearing.


The party seeking the separate question bears the onus of persuading the Court that such a course of action is suitable. Careful consideration of the specific circumstances is necessary before applying for a separate question hearing.

Key takeaway

While separate question hearings may appear enticing for their potential advantages, they are not a universal solution for complex legal construction matters. The Court’s hesitancy to address a separate question highlights the importance of applying for a separate question order with caution.

Ultimately the decision to pursue a separate question order should be made judiciously. The Court has the discretion to order the separate question pursuant to UCPR rule 28.2 and will do so considering the unique facts of each case.

If you would like to discuss this article with us further, please contact Brett Vincent, Partner, or Barbara Farhat, Paralegal on (02) 9261 5900.