CE HEATH CASUALTY and GENERAL INSURANCE LTD v GREY and ORS [1993] NSWCA 52

CE HEATH CASUALTY and GENERAL INSURANCE LTD v GREY and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 25 October 1993, 17 December 1993

[1993] NSWCA 52

Mahoney AP On 7 October 1993 this Court delivered its reasons for judgment in this matter. It directed that the parties bring in short minutes of the orders to be made consequent upon the views expressed by the court. The parties have not agreed as to the orders to be made. Accordingly, on 25 October 1993, the parties addressed the court upon the question. It is necessary for the court, in the light of the submissions then made, to determine what order should be made.

In my opinion, the court should:

(a) declare that the first cross defendants ("the Directors") were parties to the Directors and Officers Policy referred to in the proceeding;

(b) order that the order that the eight questions directed by Rogers CJ of CommD be tried separately pursuant to Pt31 be set aside;

(c) order that the order made by Rogers CJ of CommD (as contemplated in his judgment of 16 March 1993) insofar as it directed that two further questions be tried separately, be set aside;

(d) declare that order (c) above is made for the reason that the two further questions there referred to are in form not appropriate to be dealt with separately and is made without prejudice to the right of the parties to apply for or to oppose the amendments to the pleadings as contemplated in relation to them or otherwise;

(e) direct that the proceedings be returned to the Commercial Division to be dealt with;

(f) order that the costs of the proceedings in the Court of Appeal be paid by the respondents and that the respondents, if entitled, have certificates under the Suitors' Fund Act.

The orders now made by this Court may be the subject of appeal. Alternatively, it will be necessary for a judge of the Commercial Division to deal further with the proceedings. I shall therefore indicate - with no more elaboration than is necessary - the main reasons why such orders should be made. I shall do so in general terms and without all of the exceptions and qualifications necessary to a full statement of what has occurred.