RAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LTD [1992] NSWCA 203

RAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P; PRIESTLEY JA and Hope AJA 9 August 1992, 24 November 1992 [1992] NSWCA 203

PRACTICE and PROCEDURE — order of hearing of related proceedings — complex litigation — primary judge (Rolfe J) orders trial of proceedings for breach of contract commenced in 1980 by T Co against R Co and R take place before proceedings commenced in 1985 by R Co and R against T Co and its solicitors for tortious abuse of process and conspiracy — judge orders 1980 proceedings to be heard also before 1986 proceedings brought by R Co and R against subsequent solicitors of TCO, DW — challenge to orders in Court of Appeal upon the grounds (a) of reasonable apprehension of bias on the part of Rolfe J; and (b) error in the exercise of the discretionary decision involved — held: (Priestley JA; Kirby P and Hope A-JA concurring): (1) No ground for apprehension of bias was established on the part of the primary judge; (2) The discretionary determination of the order of proceedings miscarried and was clearly wrong for various mistakes concerning the nature of the proceedings; the respective convenience of proceeding separately; the practical utility of proceeding first with the claim by T Co, it now having no assets; the respective strengths of the parties' several claims and the effectiveness of undertakings proposed by the judge to be secured as a means of preventing re-litigation of issues; (3) The errors were sufficient to authorise the Court of Appeal to set aside the discretionary orders made. In re the Will of F B Gilbert (1946) 46 SR (NSW) 318 (FC); Mace v Murray (1955) 92 CLR 370 applied; (4) But because of other procedural determinations yet to be made, the proceedings should be returned to the Division of the Supreme Court for re-determination of the order of proceedings in the light of the errors disclosed by the Court of Appeal.