COMMERCIAL UNION ASSURANCE CO OF AUSTRALIA Ltd v FERRCOM PTY LTD [No 2] [1993] NSWCA 75

COMMERCIAL UNION ASSURANCE CO OF AUSTRALIA Ltd v FERRCOM PTY LTD [No 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJA 24 June 1993; 31 August 1993, 17 September 1993 [1993] NSWCA 75

PRACTICE and PROCEDURE — Court of Appeal — part heard appeal — basis of judgment in Commercial Division removed — judgment against insurer set aside — at trial in the Commercial Division, Giles J orders that alternative claims against insurance broker and its professional liability insurer be dismissed as unnecessary to be determined — necessity of determination subsequently arises — whether trial of remaining factual issues should be held in the Court of Appeal — whether proceedings should be remitted for trial of remaining issues in the Commercial Division

held:

(1) The anticipatory views of the Judge of the Commercial Division concerning his determination of the alternative claims should not govern the outcome of such claims in the Court of Appeal.

Wade v Burns and Ors (1966) 115 CLR 537; King v Goussetis (1986) 5 NSWLR 89 (CA) applied;

(2) The preferable course was to remit the entire proceedings remaining to the Commercial Division for completion of the trial on the footing now established, viz that the insured had no claim against its insurer.

Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd and Anor (1991) 22 NSWLR 389 (CA) considered.

Insurance Contracts Act 1984 (Cth), s54(1)

Kirby P, Priestley and Handley JJA The question before the Court is the proper ordering of the hearing of outstanding issues in these proceedings. On one view, the proceedings should continue in this Court. Upon another, they should be returned to the Commercial Division of the Supreme Court for the trial and determination of outstanding questions. Having heard argument upon the preferable course, the Court reached the conclusion that the proceedings should be remitted to the Commercial Division. The formal orders were withheld until the Court could state its reasons. We now proceed to do so.