CSR LIMITED v CIGNA INSURANCE AUSTRALIA; CSR AMERICA INC v CIGNA INSURANCE AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Kirpy P, CLARKE JA and POWELL JA 11 September 1995 [1995] NSWCA 108 INJUNCTIONS — anti suit injunctions — application for leave to appeal — important and arguable points — whether grand of leave timely — further proceedings between parties before trial judge within three months — held: As parties could apply to have injunction extinguished or varied at first instance, leave to appeal not timely — hearing of summons postponed. Kirby P. The statement which I now make is made on behalf of the Court. Before the Court are two summonses for leave to appeal from interlocutory anti-suit injunctions ordered by Rolfe J on 15 August 1995 against CSR Limited and CSR America Inc, the claimants respectively in each summons. The Court was informed at the outset of the hearing of the fact that Rolfe J has listed to commence on 4 December 1995, for a hearing of two weeks, proceedings for a stay of the claims on the grounds that New South Wales is a forum non conveniens. The final hearing of the injunction proceedings has not yet been fixed. However, presumably it will be some time in 1996. It would be open to the claimants or either of them to seek to return before Rolfe J (either on 4 December 1995 or at some time earlier) or at some time later, motions either to extinguish the injunctions granted by his Honour or to refine and limit the terms of the orders made. Nothing that this Court says, or does, today is intended to interfere with the claimants" rights in that regard. The issues raised by the claimants in support of the summonses for leave to appeal include, at least as the Court is presently minded to regard them, points of arguable importance possibly warranting examination by this Court at some time. The question is one of timing and the availability of time to this Court to give an early hearing, were leave now to be granted. The practicalities are such that, unless other cases presently fixed for hearing before the Court were to be cancelled this Court could not hear, still less be assured of deciding these appeals pursuant to leave granted, before the proceedings listed before Rolfe J in December are heard and possibly decided. The second claimant informed the Court that, so far as it was concerned, a fundamental mistake was revealed in the basis for the injunctions on the face of the reasons given by Rolfe J in support of the orders which he has made. If this be so, a matter which this Court has not decided, it would provide a further basis for the second claimant to seek a dissolution of the orders made by Rolfe J on that footing. I take that ultimately to have been accepted by counsel for the second claimant. Experience teaches this Court that some of the matters presently agitated by the claimants may be resolved at the hearing in the Commercial Division. In this case the Court has been informed of the a hearing fixed for December 1995. This Court will therefore be in a better position to consider the summonses, and any UNREPORTED JUDGMENTS remaining issues presented by them, in December, or as soon as Rolfe J has determined the applications before him. Accordingly the orders which the Court makes are: qd) (2) (3) (4) qd) (2) (3) (4) The summonsexsare stood over to be listed in the last motion day in Term for mention on that day and for consideration of further orders from the Court; The costs of the proceedings in the Court today are to be costs in the summonses; The transcript is ordered so that it will be available on the hearing of the summonses; and The Court is not to be regarded as part heard. The summonses are stood over to be listed in the last motion day in Term for mention on that day and for consideration of further orders from the Court; The costs of the proceedings in the Court today are to be costs in the summonses; The transcript is ordered so that it will be available on the hearing of the summonses; and The Court is not to be regarded as part heard. Counsel for the claimants: (CSR Ltd) T F Bathurst QC/J C Kelly SC Solicitors for the claimants: (CSR Ltd) Freehill Hollingdale and Page Counsel for the claimants: (CSR America Inc) F M Douglas QC Solicitors for the claimants: (CSR America Inc) Allen: Allen and Hemsley Counsel for the opponent: R R Stitt QC/J T Gleeson/A G Bell Solicitors for the opponents: Phillips Fox