RAJSKI v CARSON; RAJSKI v CARSON; RAJSKI v CARSON; RAYBOS AUSTRALIA PTY LTD & ORS v TECTRAN CORPORATION PTY LTD [2002] NSWSC 300

New South Wales Supreme Court

CITATION : RAJSKI v CARSON; RAJSKI v CARSON; RAJSKI v CARSON; RAYBOS AUSTRALIA PTY LTD & ORS v TECTRAN CORPORATION PTY LTD [2002] NSWSC 300 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10743/02; 10744/02; 10745/02; 10746/02 HEARING DATE(S) : 25 March 2002 JUDGMENT DATE : 25 March 2002

PARTIES : Leszek Rajski (Plaintiff) v Nicholas R Carson (Defendant) Raybos Australia Pty Limited (Plaintiff) v Tectran Corporation Pty Limited (Defendant) JUDGMENT OF : Adams J at 1

COUNSEL : Dr Rajski in person (Plaintiffs) Ms D Chang (Defendants) SOLICITORS : Dr L Rajski (Plaintiffs) Atanaskovic Hartnell (Defendants) DECISION : Application granted; Directions hearing adjourned to 20 May 2002; Liberty to apply on three days' notice should the mediation proceedings be concluded before 20 May 2002; Question of costs reserved.

Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

MONDAY 25 MARCH 2002 010743/02 - LESZEK RAJSKI v NICHOLAS R CARSON 010744/02 - LESZEK RAJSKI v NICHOLAS R CARSON 010745/02 - LESZEK RAJSKI v NICHOLAS R CARSON 010746/02 - RAYBOS AUSTRALIA PTY LIMITED & ORS v TECTRAN CORPORATION PTY LIMITED

JUDGMENT

1 HIS HONOUR: This matter comes before me for the purpose of making orders requiring the filing of affidavit evidence by the claimant upon which he wishes to rely for addressing a contempt proceeding against the opponent. 2 The claimant seeks an adjournment because he says that mediation is currently under way, that two days have already been spent in mediation and two more days will perhaps be required. He relies upon a communication by Mr J Basten QC, to which no objection is taken in this respect, that it is not likely that the mediation will be completed in less than a further four weeks but that six to eight weeks will be required. It is because of the chance that mediation will dispose of the extensive litigation that Dr Rajski says that he should not be put to the expense and difficulty of preparing and filing the affidavits which would be necessary to support his actions. 3 As appears from the judgment of the Court of Appeal, Rajski and Raybos Australia Limited v Carson and Tectran Corporation 11 March 2002, the contempt proceedings have a lengthy history in this Court. They have been stood over from time to time because of the exigencies of other litigation affecting the parties. 4 The Registrar decided that the reasons for adjourning the proceedings yet again no longer existed in the light of the settlement agreement which had been reached and that it would be unreasonable and unjust to the defendant to grant a further adjournment and he made orders which were designed to, as it were, place the contempt proceedings back in the queue for hearing. Dr Rajski and Raybos Australia Limited sought to review this decision in the Court of Appeal. The Court dismissed this application and remitted the contempt proceedings, including the defendants' motions to dismiss them "to the Common Law Division for hearing with appropriate priority". The Court was of course aware of the pending mediation but stated in this regard that: "We guess that as a practical matter there may be sufficient delay before any Common Law Division hearing for all reasonable efforts to mediate the settlement proceedings to have been exhausted". 5 It seems to me that the Court of Appeal was doing no more than saying these cases should be dealt with in accordance with appropriate case management within the Common Law Division, part of which is to make directions as appropriate to ready the matter for hearing. It does not seem to me that the Court was suggesting that the ordinary considerations which would apply to litigation in this case should no longer apply, nor was the Court suggesting that the mode for management should be any different in these cases to any other cases within the Division. Specifically, I do not think it would be fair to read the judgment of the Court of Appeal, with the greatest respect, as suggesting that no adjournments should be granted, still less that no adjournments should be granted whatever the stage of proceedings of the mediation. 6 I am conscious of the delay which has been visited upon Mr Carson in respect of the determination of serious allegations and that justice requires that those allegations should be dealt with as soon as reasonable possible. On the other hand this matter is now being managed within this list. Two days of mediation have already been spent and it is clear, and I think I should infer, that final determination of all these matters is still reasonably possible, otherwise I cannot imagine that it would be appropriate for the mediator, if he were of the view that mediation was a waste of time, continuing with his efforts. 7 On balance, therefore, I consider that Dr Rajski's application should be granted. The order he seeks is that the directions hearing in these proceedings be adjourned until 20 May 2002. I consider I should make that order. I add a further order that, if before the 20 May 2002, the mediation proceedings are concluded then the parties are at liberty on three days' notice to apply to restore the notices of motion of the opponent to the list. 8 I reserve the question of costs. **********