Rajski and Raybos Australia Ltd v Carson and Tectran Corporation [2002] NSWCA 51 | Case summary

Judgment 1 THE COURT: We are dealing with an application by Dr Rajski and Raybos Australia Ltd to review a decision of Registrar Irwin that certain contempt applications instituted by the applicants against Mr Carson should now be case managed with a view to their early determination. That application to review, made 13 February 2001, was duly referred to a bench of three for adjudication. 2 The applications were filed by the Rajski interests between November 1985 and November 1987. According to Mr Carson, no affidavits or other evidentiary material has been filed in support of the applications. 3 The learned Registrar gave his judgment on 12 February 2001. It was brief. He noted that Kirby P had indicated that the practice of the Court was that the present type of application should not be determined before the substantive proceedings had been dealt with. In accordance with this practice, the applications were, on 8 February 1988 stood over to 5 September 1988. It was then anticipated that the principal proceedings would be heard in May 1988. Since then, the applications have been adjourned for a period of six months each time they have surfaced in the list. 4 The Registrar noted that Dr Rajski had informed him that the principal proceedings had been settled and that there was currently a new suit to enforce the settlement. That settlement included the contempt applications. 5 The Registrar then said, "In those circumstances the reasons for adjourning the proceedings further, in my opinion, no longer exist and it would be unreasonable and unjust to Mr Carson to grant a further adjournment." He ordered that the matter be listed before Ipp AJA for special case management with a view to listing them for hearing at an appropriate time. 6 The application for review came before us on 19 July 2001. Most of the time on that day was occupied by Dr Rajski applying for each of the members of the Court to disqualify himself. Reasons were given on that day declining those applications. The matter was then adjourned to 18 September 2001 with special directions made limiting the time to be used by each party. 7 Before 18 September Dr Rajski made additional submissions as to why the judges should be disqualified. There was nothing in these further submissions that made any of us change our position. However Brownie AJA will shortly say something further about his situation. 8 At the close of the hearing on 18 September, we permitted limited additional submissions to be put in writing. Unfortunately, those of the respondent arrived much later than anticipated on 12 November. They covered a wider field than we had contemplated. Dr Rajski protested and sought that we not read the submissions or at least wait until after 30 January 2002 for him to have an opportunity to meet them. We waited until after 30 January: nothing emerged from Dr Rajski. In the circumstances, we read the submissions, merely scanning those which dealt with the detailed merits of the applications. 9 Another reason for delay was that we were informed that the suit to enforce the settlement was referred to mediation at the end of 2001 and that there was a real possibility of the whole matter being resolved. We have heard nothing of the result of the mediation. 10 It is thus now incumbent on us to determine the application to review. We also need to deal with the ancillary matter referred to us by Ipp AJA as to whether, if the application to review is dismissed, the contempt applications should be heard by a Court of Appeal or remitted to the Common Law Division. 11 Dr Rajski's basic submission is that Kirby P and the Court of Appeal made a determination, initially in 1986, that the principal proceedings should be heard before the contempt applications and that it was either incompetent for the Registrar to determine otherwise or alternatively he should not have done so. 12 Mr Brereton SC for Mr Carson essentially submits that Kirby P never made any such determination and that any statement made by Kirby P in the course of a directions hearing to the effect noted by Dr Rajski needs to be considered in the context and at the time it was made so that the learned Registrar, having decided that circumstances had changed, was entitled and justified in making the order he did. 13 Both arguments are correct up to a point. The Court made orders that the contempt proceedings be adjourned and the reasoning behind those orders (though expressed in statements during argument rather than in formal reasons) was the general principle that the principal proceedings should first be concluded. However, that assessment of the matter was an interlocutory assessment as is evidenced by the fact that the adjournment was only for six months or so. The orders were interlocutory orders. 14 The law has always been and still is that the Court has power and almost a duty to review all interlocutory orders, other than those which decide the rights of parties, so that they may be varied or rescinded whenever circumstances change sufficiently; see eg Wilkshire v Commonwealth (1976) 9 ALR 325, 331-332; Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126, 134. 15 Dr Rajski says that if his proceedings to enforce the settlement are successful, or if mediation produces a satisfactory outcome, the contempt proceedings will fall by the wayside. However, if the Court holds the proceedings have not been settled, Dr Rajski will do all he can to have those proceedings determined. He (Rajski) says that Dr Rajski should be permitted to devote the whole of his attention to the conclusion of the main proceedings. 16 This submission picks up words of Kirby P in his judgment in Rajski v Bainton (12 November 1991) repeated by his Honour in Rajski v Wood (3 February 1992). However, the context makes it plain that his Honour was concerned that continued interlocutory applications may delay the trial of the principal proceedings which trial then appeared imminent. At present, the only imminent hearing is the mediation or perhaps the equity suit to enforce the suggested settlement. 17 Dr Rajski thus says that there has been no real change in circumstances and that the regime set up in 1986 should continue until after disposal of the main proceedings. 18 In our view, the very fact that almost 16 years have elapsed since the determination (if there has been a determination) that the main proceedings should be heard first, constitutes circumstances pointing towards re-examining whether the reason for original adjournment of the contempt applications and subsequent continued adjournments needed to be reviewed. This is reinforced by Dr Rajski's insistence that the main proceedings have been settled. The fact that there are contested proceedings to enforce the settlement does not affect the matter. The circumstances now are quite different to 1986 or 1992. 19 Accordingly, we consider that the Registrar reached the correct decision. It is also the decision which we ourselves have reached on the same material. 20 We now turn to the question as to whether the contempt applications should be heard by the Court of Appeal or remitted to the Common Law Division. 21 As a general rule, issues of fact should be tried before a single Judge. This is both the ordinary procedure in the Court and is also the more efficient procedure. 22 The main reasons put forward by Mr Brereton SC for the Court of Appeal hearing these applications are: (1) that, when similar proceedings were remitted it took a long time for the issues to be tried; and (2) there is almost certain to be an appeal in any event. 23 Dr Rajski submits that the ordinary procedure should be followed. He says that delays in having the previous proceedings heard at Common Law were principally because the Common Law Judge was waiting determinations of this Court and the High Court before commencing the trial. 24 We have found the matter a borderline one. Dr Rajski is quite correct as to the usual procedure. He also gives a credible explanation for previous delays in the Common Law Division. The point that probably there will be an appeal also cuts both ways. It is difficult to run an appeal from a decision on fact made by a three member court of appeal, yet courts of appeal on occasion err and people should be entitled to a review. On the other hand, time and money is saved if the trial and the appeal are rolled into one as it were. However, it must constantly be borne in mind that many cases where an appeal appears inevitable before the hearing the litigants end up being satisfied with the trial and do not appeal. 25 Thus, we consider that we should remit the contempt applications to the Common Law Division. 26 This remitter will mean that the motions to dismiss the contempt applications filed by Mr Carson on 22 August 2001 will first be considered. If they are dismissed, the contempt applications should then be heard as a matter of priority. However, 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. 27 We thus order that the application to review Registrar Irwin's decision be dismissed with costs. We remit the contempt applications, including Mr Carson's motions to dismiss same to the Common Law Division for hearing with appropriate priority. ***********************

Rajski and Raybos Australia Ltd v Carson and Tectran Corporation

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