RAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LTD [1993] NSWCA 226

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

KIRBY P, PRIESTLEY JA and GILES AJA 7 and 8 June 1993, 8 July 1993 [1993] NSWCA 226

APPEAL — reopening of appeal — whether complex but separate proceedings should be heard separately or together — complaint that order of Court of Appeal remitting that question to the Commercial Division was based upon error — error alleged is misapprehension of primary judge's decision to determine the order of proceedings first and in advance of all remaining interlocutory questions — all parties agreed to that basis — Court of Appeal remits decision on order of proceedings to primary judge — declines itself to determine such order as being "premature" — held: (1) (by the Court):

COURTS and JUDGES — Court of Appeal — reconstitution — retirement of Judge of Appeal — appointment of additional Judge of Appeal under s36 Supreme Court Act — necessity to reconstitute Court.

The Court had jurisdiction to reopen its orders, such orders not having been entered.

Smith v New South Wales Bar Association [No 2] (1992) 66 ALJR 605 (HC); Autodesk Inc v Dyason [No 2] (1993) 67 ALJR 270 (HC); Wentworth v Rogers and Ors [No 9] (1987) 8 NSWLR 388 (CA) applied. Winrobe Pty Ltd and Anor v Sundin's Building Co Pty Ltd [No 2], Court of Appeal, unreported, 24 December 1992 [1992] NSWJB 139 referred to;

(2) (Kirby P and Priestley JA; Giles AJA dissenting): In the circumstances of the misapprehension of the primary judge's decision, agreed to at the time by the parties, the Court should reopen its order and make the order which ought properly to have been made, freed from that misapprehension;

(3) Such order was a decision by the Court of Appeal that the proceedings should be heard together;

(4) But it would remain for the primary judge, for relevant and important reasons, ultimately to reach a different conclusion in the light of the determination of outstanding interlocutory questions and/or supervening developments.