SAMTAM LIMITED v GEM PLASTICS PTY LIMITED [1995] NSWCA 412

SAMTAM LIMITED v GEM PLASTICS PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Kirsy ACJ, CLARKE JA and SHELLER JA 17 July 1995

[1995] NSWCA 412

PRACTICE & PROCEDURE — Court of Appeal — leave to appeal — parties consent — recent authority overlooked by parties and not drawn to notice of judge — parties agree to utility of reconsideration in the light of authority — held: (1) Leave to appeal is not granted by consent; (2) But consent may be an important consideration to the Court of Appeal; (3) In the circumstances the course proposed by the parties was sensible; (4) Leave granted, appeal upheld and matter remitted to Division.

Kirby ACJ. On 9 June 1995 Rolfe J determined a dispute between the parties concerning an exclusive jurisdiction clause whereby the parties agreed between them that 'this insurance is subject to South African jurisdiction.' On that day his Honour did not have the advantage of argument of the parties concerning a then recently-delivered decision of this Court in Akai Pty Limited v People's Insurance Limited, Court of Appeal (NSW), unreported, 28 April 1995; [1995] NSWJB. Both parties agree that the decision of this court in Akai is relevant to a consideration of the proper outcome of the dispute between them.

Although Akai had been decided shortly before Rolfe J delivered his reasons, it was not brought to his Honour's notice. Unsurprisingly, therefore, it was not referred to in his Honour's reasons.

The parties agree that this Court should afford his Honour the opportunity of reconsidering the orders which he made with the benefit of argument on Akai. That cannot be done unless this Court sets aside Rolfe J's orders, as made. HisHonour may or may not arrive at the same result. However, he will then, at least, have had the opportunity of considering the implications of Akai and the argument of the parties. Therefore by consent of the parties and of their request the Court will, in the circumstances, set aside Rolfe J's orders of June 1995. For that purpose it will grant leave and uphold the appeal. It will order that the proceeding be returned to the Commercial Division of the Court for reconsideration. The costs of the summons and proceedings in the Court will be costs in the cause.