RAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LTD

COURTS and JUDGES - Court of Appeal - reconstitution - retirement of Judge of Appeal - appointment of additional Judge of Appeal under s36 Supreme Court Act - necessity to reconstitute Court.

The Court had jurisdiction to reopen its orders, such orders not having been entered.

Smith v New South Wales Bar Association [No 2] (1992) 66 ALJR 605 (HC); Autodesk Inc v Dyason [No 2] (1993) 67 ALJR 270 (HC); Wentworth v Rogers and Ors [No 9] (1987) 8 NSWLR 388 (CA) applied. Winrobe Pty Ltd and Anor v Sundin's Building Co Pty Ltd [No 2], Court of Appeal, unreported, 24 December 1992 [1992] NSWJB 139 referred to;

(2) (Kirby P and Priestley JA; Giles AJA dissenting): In the circumstances of the misapprehension of the primary judge's decision, agreed to at the time by the parties, the Court should reopen its order and make the order which ought properly to have been made, freed from that misapprehension;

(3) Such order was a decision by the Court of Appeal that the proceedings should be heard together;

(4) But it would remain for the primary judge, for relevant and important reasons, ultimately to reach a different conclusion in the light of the determination of outstanding interlocutory questions and/or supervening developments.

Kirby P The circumstances giving rise to this still further application to theCourt in this much contested saga of litigation are set out fully in the reasons of Priestley JA and of Giles AJA.

As the respective reasons of their Honours demonstrate there are strong grounds for each of the opposing points of view.

The strength of the respondents' opposition to reopening

There is nothing at all in the second basis raised by Raybos Australia Pty Ltd (Raybos) and Dr L Rajski for re opening the Court's orders of 24 November 1992. The suggestion that they were, or either of them was, denied procedural fairness ("natural justice") in the manner in which O.5 was then made by the Court is, quite frankly, impertinent. They had more than sufficient opportunity to put their cases as they wished to do so before the Court as it was then constituted. No other case in my experience has taken up so much time of this Court in

countless interlocutory proceedings. If matters were not made entirely clear in the earlier proceedings, that is the failure of the parties, including Raybos and Dr Rajski. The suggestion that it was because the Court declined to accord any of the parties procedural fairness before it made its orders must be firmly rejected. In this I agree with Priestley JA.

This brings me to the matter of difficulty upon which Priestley JA and Giles AJA disagree. I acknowledge the force of the conclusion which Giles AJA has reached. In favour of that conclusion are the following considerations:

• The interests of the administration of justice in the ordinary finality of court orders, including where pronounced in interlocutory matters;

• The exceptional nature of the jurisdiction which is involved to reopen a court's orders;

• The undesirability of allowing reopening applications to become a "back door procedure" for reargument by disgruntled litigants of issues which they have lost;

• The wide facility which exists anyway for the review of interlocutory orders even when finally made;

• The admittedly final say of the primary judge concerning the ultimate management and conduct of this large litigation;

• The proper relationship between this Court and the Division in which the proceedings will ultimately be tried; and

• The relative importance or lack of importance of the suggested misunderstanding of the basis upon which Rolfe J was proceeding which is said to trigger the ground for the application to the Court now to reopen O.5.

As against these considerations, like Priestley JA (with whose reasons and orders I concurred when the relevant judgment of this Court was published on 24 November 1992) I was not then aware, in proceeding to O.5, that the very basis upon which Rolfe J was dealing with the issues then under appeal was that he would first determine the order of hearing and, then only, deal with outstanding interlocutory matters. This was the basis that all parties had agreed before him. Upon that basis they had conducted their proceedings. In such circumstances, when the issue was tendered to this Court, that fact ought to have been made clear. For whatever reason, it was not. If it had been, it would have been inappropriate for this Court to suggest that the determination by his Honour of the order of hearing was "premature" for that was exactly what the parties had agreed, had sought from the judge and had secured in the orders then challenged.

It does therefore appear that a mistake has occurred in the appreciation by this Court of a consideration which was not without importance for the approach to what the Court should do.

It was common ground in the present proceedings that the orders of this Court, pronounced on 24 November 1992, had not been taken out. Likewise, it was not disputed that the Court had the power to withdraw its orders and to substitute those which it ought to have made, eliminating the above mistake. See Smith v New South Wales Bar Association [No 2] (1992) 66 ALJR 605 (HC); Autodesk Inc v Dyason [No 2] (1993) 67 ALJR 270 (HC). From time to time this Court has considered such applications but refused to reopen its orders. See eg Wentworth v Rogers and Ors [No 9] (1987) 8 NSWLR 388 (CA). On other occasions, where the Court is convinced that it has made a mistake, the earlier orders have been withdrawn, the matter re committed for argument and fresh consideration and

URJRAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LTD (Kirby P) 3

new orders then pronounced. This is the course which the Court took in Winrobe Pty Ltd and Anor v Sundin's Building Co Pty Ltd [No 2], unreported, 24 December 1992; [1992] NSWJB 139.

Where a mistake is plainly demonstrated in a matter important to the Court's orders, which can be corrected before those orders are entered and without substantial injustice to other parties, our system's commitment to justice according to law and to intellectual honesty suggests that the matter should be reopened, the flawed orders withdrawn and fresh orders made free from which the mistake which is eradicated. Remediability should not be the sole or even governing criterion in such an application to this Court. Otherwise the Court would always refuse to repair errors clearly demonstrated and readily corrected,because the facility of appeal by special leave to the High Court provides a means of remedy.

The result of this course may sometimes be the making of the same orders for different reasons (although that eventuality might also be a ground for ultimately refusing to reopen the orders earlier pronounced once that result seems clear). But at least then the mistake will have been openly corrected. The parties and members of the community who may be concerned will be reassured as to the integrity of the process. The justice of the system will be vindicated.

The ultimate control of the proceedings remains in the Division The ultimate difference between the view adopted by Priestley JA and that favoured by Giles AJA may be slight, in strictly practical terms. Priestley JA has taken pains to demonstrate that the order of this Court concerning the conduct of the hearing and the order of proceedings will itself be interlocutory. It will have to bend to any supervening events or unforeseen complications with may require, or suggest, a different course (and different orders) on the part of the primary judge having the responsibility of managing this complex litigation. Giles AJA on the other hand would reserve the matter to that judge and send the proceedings back to be considered afresh including in the light of any new developments.

The question remains for me what order should now be made, a misapprehension on the part of this Court having been demonstrated. In my view the proper approach is for the Court to return to the situation it was in when the first hearing of the appeal from Rolfe J's orders was conducted. Putting itself back in the situation which then existed, it should add to the ingredients of its decision making the clear understanding of the parties (and consequent approach of his Honour) that the order of proceedings should then be affirmatively and first decided. Adding that ingredient to the considerations which were before the Court when it proceeded to its orders of 24 November 1992, I must say that it would have led me then, as it leads me now, to decide that the 1980 proceedings should be heard together with the 1985 proceedings. It is, therefore, appropriate to state that conclusion. The Court should not to hold back from doing so for the erroneous reason previously stated which has now been eliminated on the reopening of the orders. I would take this course endorsing fully the statement of Priestley JA which reserves to the judge in the Division having control of the ultimate hearings the right to reach a different view should the remaining interlocutory steps (or some future important and presently unexpected development) supervene to require a different course.

I agree with the order which Priestley JA has proposed in relation to the costs of these further proceedings. In a sense, they were a continuation of, and an incident to, the proceedings earlier concluded in November 1992. It is therefore appropriate that the additional costs should run with the costs of the ultimate

proceedings. But because Raybos and Dr Rajski have, upon one of the grounds argued, been shown to have been justified in bringing the application for reopening and have succeeded in it against the opposition of the respondents, the costs should be their costs in those proceedings.

Before parting with this case it is appropriate to record two points. The first is that Hope AJA retired after the earlier hearing and before this motion could be heard. He was thus not available to participate in this application for reopening of the Court's earlier orders. Raybos and Dr Rajski urged the Court (and apparently the Attorney General) that his Honour should be reappointed to the Court. This did not occur. It is not disclosed whether his Honour would have been willing to return to judicial life to participate in these proceedings. Of necessity, the Court had to be reconstituted. See Cotogno v Lamb (1985) 3 NSWLR 221 (CA), 223. No party contested this necessity. In accordance with the Supreme Court Act 1970, s36 Giles J was appointed an Additional Judge of Appeal for the proceedings.

Secondly, Dr Rajski (but no other party) objected to Giles J's participation in the proceedings on the grounds of imputed bias. For reasons publicly stated by his Honour, the objection and imputation were rejected. The hearing then continued before the Court as now constituted.

The reconstitution of the Court and substitution of Giles J created no ultimate difficulty. The question whether an error or omission of the kind which would warrant reopening of the case is established depends not merely on the subjective cogitations and recollections of the judge(s) who made the order complained of but depends ultimately upon the Court's objective assessment of the application. So much is inherent in the requirement of the manifest, publicly demonstrated integrity of the processes of the Court which underlies the approach to this application which I ultimately prefer.

Orders I therefore agree in the orders proposed by Priestley JA.

Priestley JA On 24 November 1992 the court upheld an appeal against interlocutory orders made by Rolfe J. Raybos and Dr Rajski have applied to reopen O.5 then made, and seek that the court make a different order.

The reasons for the court's orders of 24 November 1992 were prepared by me. Kirby P and Hope AJA agreed with them. Rather than recapitulate those reasons in dealing with the present application, I will simply treat what I am now doing as a continuation of what I previously wrote.

Raybos and Dr Rajski rely on what are in substance two submissions in support of their request that O.5 be reopened.

Before dealing with these I need to spell out the basis on which O.5 was made. The main question decided in upholding the appeal against Rolfe J's interlocutory order concerning the order of hearing of the various cases was that, on the materials before him, his discretion had miscarried. My view was that on the materials before Rolfe J it would be wrong to come to any other conclusion than that 1980P and 1985P should be heard together. Although I would have thought that was clear from my reasons, I was not explicit about it because I also had in mind, as a result of the frequent references to them in the course of argument before us, that there were a number of matters, outside the materials upon which Rolfe I was acting, which might be relevant to the order of hearing.

UFRAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LTD (Priestley JA) 5

Thus, when, having reached the position that, in my opinion, the discretion exercised by the trial judge had miscarried and his consequential order should therefore be set aside, the question arose whether this court should proceed to exercise the discretion or should send the matter back to first instance for that to be done. Because it seemed to me that matters not taken into account by Rolfe J could be relevant to the further exercise of the discretion and since those matters were only fragmentarily before this court, I felt it better that the question should

• go back to a first instance judge to decide, upon whatever state the evidence then assumed, what order should be made. It seemed to me relatively obvious, in the light of this court's decision, that unless any further material of a very persuasive kind then emerged the first instance judge would think discretion should so be exercised that 1980P would not be heard before 1985P.

The first basis on which Raybos and Dr Rajski ask that O.5 be reopened is that this court should itself have dealt with the re exercise of discretion in regard to O.5, on the same materials and on the same basis acted on by Rolfe J. It was said that it was common ground before Rolfe J that he should act on the basis that he did. He had indicated on 10 October 1991 that he would first determine the order of hearing and in the light of his conclusion about that then deal with outstanding interlocutory matters. Raybos and Dr Rajski submitted that all parties acquiesced in that approach and thereafter conducted their proceedings on that footing. Similarly, it was submitted, the appeal was conducted by them on the same basis. They submitted also that there was no sign in the way their opponents conducted the appeal that they took any different approach.

My first comment about the approach said to have been taken by Rolfe J to the decision of the order of hearing of the various proceedings, is that although it was not the only one available in the circumstances, it was, with respect a sensible one. Various approaches were possible and it was necessary that one be chosen to the exclusion of others.

Unfortunately however, in the course of the many matters argued in the appeal, me fact that this approach was explicitly made known to the parties by Rolfe J before the substantive hearing of the question of the order of proceedings got under way, was never made clear to the court. I understand that the parties all agree on this.

Although unfortunate in the result, what happened is understandable. The approach taken by Rolfe J is clear enough when the observations he made on 10 October 1991 are looked at, particularly if the reader is conscious of the present point. It would be natural for the parties when arguing the case in this court, themselves inevitably having in mind the basis upon which Rolfe J acted, to assume, without necessarily giving any particular thought to the matter, that this court likewise fully understood the position. It is because of this, I assume, that the court's attention was not explicitly drawn to the position; the focus of attention was upon (i) the reasons given by Rolfe J for his conclusion, (ii) what took place in the substantive argument before him, and (iii) whether his orders should be set aside on appeal.

Much less attention was given to the question which would arise if the appeal were upheld, namely would this court or a first instance court then decide how the discretion should be exercised. Had I appreciated the relevance to this latter question of the approach adopted by Rolfe J, I would when dealing with that latter question towards the end of my reasons, have mentioned the approach and taken it into account in reasoning towards my conclusion on that question.

The submission of Raybos and Dr Rajski on this aspect of the reopening application, in one of its forms, went as far as contending that because of the way the matter was dealt with before Rolfe J, both their opponents and this court were bound to approach the question of which court should reexercise the discretion upon the same basis. I do not think this is right. My view, now that I understand more fully the basis upon which the case was conducted before Rolfe J, and have reviewed the way it was conducted in this court, is that it would have been open to this court to consider which court should re exercise the discretion on the basis upon which Rolfe J had dealt with it. I do not think it was bound to do so.

I will deal with the consequences of my view on this point after mentioning the second main head of the submissions made by Raybos and Dr Rajski supporting their request that O.5 be reopened.

This submission was that something I had said in my reasons (at 40) showed that I had acted, at least in part, in arriving at my conclusion, on a proposition in regard to which Raybos and Dr Rajski had not been heard, and that they were denied natural justice as a result. What I said was that various matters led me to think it was premature to decide that the hearing of 1980P must precede that of 1985P. The submission was that the count had never indicated to the parties in the course of argument that the notion of prematurity might play a part in the court's decision.

I do not think the submission of denial of natural justice has any substance. The question whether Rolfe J's orders should be set aside was considered entirely on the basis of the materials before him, as was emphasised at various stages in that part of my reasons dealing with that main question in the appeal.

It was when I was considering which court would be better fitted to deal with the further exercise of discretion that I took into account the existence of further matters which seemed to me to be of sufficient possible relevance to that further exercise of discretion as to make it undesirable for this court, in incomplete possession of the facts concerning those extra matters, to embark on the re exercise.

The matters that I mentioned in this respect were all matters which had been mentioned to a greater or less degree in the course of argument in the appeal. All parties had had a full opportunity to say anything they wanted about those matters. The word "premature" was simply a convenient label for the conclusion L arrived at (which was not relevant to what I was regarding as the first and main issue in the appeal) after considering the matters not considered by Rolfe J in deciding what I thought should happen about the further disposition of the case.

Although I do not think there is any substance in the denial of natural justice submission, the first submission made by Raybos and Dr Rajski carries considerable weight with me. With the opportunity I have had of reflecting on the matter with the benefit of a full understanding of the basis upon which Rolfe J dealt with it, I am now of the opinion that the court should have concluded that it should re exercise the discretion in question.

That does not necessarily mean that O.5 should be reopened. The law places a high value on the desirability of finality in decision making in litigation. The ordinary rule of courts must be that once a decision is made, then it is final. Reinforcing that prima facie position in the present case is the fact that the application to reopen O.5 was not made until after Rolfe J had sat to re exercise the discretion in consequence of his earlier order having been set aside. In the event, he did not re exercise the discretion ut, after considering at length a

UFRAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LTD (Priestley JA) 7

submission by Raybos and Dr Rajski that he should not sit to hear the case, thought himself bound, for reasons which he explained with particularity, to retire from further hearing of the case.

Notwithstanding these considerations my opinion is that O.5 should be reopened. Mr Heydon QC in the course of his submissions properly drew the attention of the court to R9 of Pt40 of the Supreme Court Rules which embodies the wide range of powers the court has in regard to the setting aside or variation of judgments both before and after the entry of judgment. These powers are particularly available in regard to interlocutory orders.

Although Mason CJ was in dissent in Autodesk Inc v Dyason (No 2) (1993) 67 ALJR 270, I think the approach in principle that he took to the question of reopening in that case (at 271 lh col) was common to all the Judges in the court, the difference between them being the application of the principles to the facts in the case. The safeguards mentioned by Mason CJ necessary to prevent the power of the court being used by unsuccessful litigants to re argue their cases should be observed by courts in regard both to final and interlocutory orders, but clearly there is somewhat greater scope for flexibility in regard to interlocutory orders.

I should note that in treating the question of the order of hearing of the various relevant proceedings as an interlocutory matter I must also take into account a matter I had in mind in considering Rolfe J's decision about the order of hearing; that is, that although his order was interlocutory and thus prima facie in a class of matter very desirable to leave to the decision of a trial judge, nevertheless this particular interlocutory matter is one of particular importance to the conduct of this complex litigation. What was to be decided involved much more than an ordinary practice point. This was one reason making me less reluctant than I otherwise would have been to conclude that Rolfe J's orders ought to be set aside. Notwithstanding that, what has happened in the present case, as I have described it, leads me to think that the proper administration of justice will be better served by reopening O.5 and concluding (as I have already indicated) that this court should decide the order of hearing debated before Rolfe J.

There was some suggestion in the most recent argument before us that if this conclusion were reached, then an opportunity should be given to the parties to put any further materials before the court they wished and then for further submissions to be entertained by the court. I think the court indicated in the course of argument that it would not entertain such a course; but whether or not that was made sufficiently clear, on the basis that I have explained for reaching my opinion, there should not be further evidence or submissions. My view is that O.5 should be reopened because the court in making it did not have sufficiently in mind the approach adopted by Rolfe J in deciding what he did, which was a very material matter in regard to the question decided. In those circumstances I think it follows that the reopening of O.5 should be limited to considering what to do on the basis of the materials before it on 24 November 1992. The parties had then put before the court all the materials that they wished the court to consider. The interest of finality in litigation should presently be observed at least to the extent that reconsideration of O.5 should be limited as I have indicated.

Having reached this point, it only remains for me to say that that part of my reasons of 24 November 1992 which led to my concluding that the appeal against Rolfe J's orders should be upheld in my opinion leads, on the material before him and on the basis on which he acted, to the further conclusion that 1982P should not heard before 1985P. The next step does not necessarily follow from what I previously said but is one that I think the court should take in the exercise of

discretion, again on the basis of the materials before Rolfe J and the approach he took, and that is that 1980P and 1985P should be heard together.

It may be helpful if I add that a decision by this court to that effect is itself interlocutory. When the next first instance judge to handle the various proceedings comes to do what it is necessary to do before 1980P and 1985P come to trial, that judge may have to deal with those matters mentioned in my earlier reasons which were put to one side by Rolfe I in adopting his basis for deciding the question. The judge may also encounter other possibly relevant matters. This court's present decision cannot preclude that judge from giving those matters such consideration as may be merited. It would seem to me however that unless something quite unexpected or dramatically decisive then emerges, it would not be appropriate for the order that 1980P and 1985P be heard together to be disturbed. That order will have been made on the footing of the sensible basis used by Rolfe J in deciding the question which I have earlier described, a basis which now, in my opinion, should be adopted by this court. The first instance judge will no doubt be more than usually alert to see that any efforts that may be made to alter the interlocutory order are not really what Mason CJ described in Autodesk (271 rh col) as back door methods by unsuccessful litigants seeking to re argue their case.

So far as I can see the reasoning of the court concerning costs orders up to 8 April 1993 is not affected by the result I favour in the present application. I think the appropriate order on the reopening application is that the costs of Raybos and Dr Rajski should be their costs in the proceedings ordered to be heard together.

1. In lieu of O.5 made on 24 November 1992, order that proceedings number 14716/85 be heard with proceedings number 16938/80.

2. The costs of Raybos and Dr Rajski on the application to reopen O.5 are to be their costs in proceedings Nos 14716/85 and 16938/80.

Giles AJA On 24 November 1992 the court delivered its judgment and made orders in this appeal. I will use the abbreviations found in, and will assume familiarity with, the reasons then given. Raybos and Dr Rajski applied to have the judgment "reopened" so far as it relates to O.5 then made, and for a different order in place of O.5. The court as originally constituted comprised Kirby P, Priestley JA and Hope AJA. Hope AJA was no longer available as his Honour's commission had expired, and I was nominated to act as an additional Judge of Appeal for the purposes of the appeal.

Rolfe J heard a motion concerned with the hearing together, or order of hearing, of proceedings 1980P, 1985P and 1986P. His Honour ordered that 1980P be heard prior to 1985P and 1986P. In the judgment delivered on 24 November 1992 it was held that his Honour's discretion had miscarried, the order was set aside, and by O.5 the proceedings were returned to the Commercial Division for reconsideration of the motion. The orders of this court have not been entered.

In the present application it was not sought to reopen the judgment so far as it was held that his Honour's discretion had miscarried and his order should be set aside. In those respects the judgment, and the reasoning on which it was based, were not in question. The application was directed to having this court decide whether the proceedings should be heard together or in a particular order, rather than return the motion to the Commercial Division for reconsideration of that matter.

URRAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LTD (Giles AJA) 9

There is power to review the judgment delivered on 24 November 1992, either under the general law or pursuant to Pt40 R9 of the Rules. The power is discretionary, and must be exercised having regard to the public interest in maintaining the finality of litigation. The occasions on which it may be exercised include, but are not confined to, where it is shown that the court has proceeded on a misapprehension as to the facts or the law not attributable solely to the neglect or default of the applicant, or that by accident and without fault on the applicant's part the applicant has not been heard. But the jurisdiction is exceptional, and the power is not to be exercised so that an unsuccessful applicant can reargue the case, or because the applicant did not present the argument as fully or as well as it might have been put. Further, since the jurisdiction is founded on prevention of injustice, it must appear that there will be relevant injustice otherwise not remediable if the power is not exercised. See Smith v New South Wales Bar Association (No 2) (1992) 66 ALJR 605, Autodesk Inc v Dyason (No 2) (1993) 67 ALJR 270 and cases referred to therein.

The ground for the application was that the decision to return the proceedings to the Commercial Division for reconsideration of the motion had been made on an erroneous basis, and had been so made without a proper opportunity to be heard in relation to O.5. The argument was as follows. As appeared from reasons given by Rolfe J on 10 October 1991, it was common to the parties that the first of the many interlocutory matters in the proceedings to be dealt with would be the order of hearing. The motion was heard by Rolfe J on that basis. On appeal, nothing was said to this court to impugn that basis, although the court was not informed of it. None of the parties submitted on appeal that it would be premature to determine the motion until other interlocutory matters had been dealt with. When Priestley JA, with whom Kirby P and Hope AJA agreed, gave as the or a substantial reason for returning the proceedings to the Commercial Division that it would be premature to determine the motion until after some other interlocutory matters had been dealt with, the decision which resulted in O.5 was arrived at on a basis contrary to that on which the parties had argued the motion and the appeal. Hence the judgment should be reopened in that respect.

It should be observed that the argument, if accepted, would lead only to review of O.5. Upon review, the same order might be made, and it would not follow from acceptance of the argument that this court would decide whether the proceedings should be heard together or in a particular order. Accordingly, in enquiring into relevant injustice otherwise not remediable it is necessary to remember that the question is not what order should be made on the original motion, but by whom that should be decided.

The argument summarised above rather overstates the position. Although Rolfe J indicated on 10 October 1991 that he proposed to hear the motion concerning the order of hearing, and thereafter hear the interlocutory matters in such proceeding or proceedings as were ordered to be heard, that did not exclude that there might be outstanding, or to come, applications the determination of which was relevant to the motion. His Honour so approached the motion in what he said concerning amendment of 1980P to 1980P2, and there was also reference to a copyright amendment. That the issues in the proceedings be known, so far as possible, before determining whether they should be heard together or in a particular order would ordinarily go without saying. The questions of amendment of 1980P to 1980P2 and a copyright amendment were before this court as matters relevant to whether the discretion of Rolfe J had miscarried, and when it was expressly raised whether, in the event that this court decided that it had, the

motion should be returned to the Commercial Division for reconsideration or determined here, it was open to the parties to address the significance of the questions to that matter. It appears that they did not do so, but that the present opponents acknowledged that the motion would go back to a single judge or that it was open for that to be done.

In those circumstances, I do not think that it can be said that the decision which resulted in O.5 involved such departure from a common basis adopted by the parties as to warrant reopening the judgment in that respect. Certainly it did not excite immediate complaint by any of the parties that this court had proceeded under a misapprehension whereby there had not been a proper opportunity to be heard in relation to O.5. The remitted motion came before Rolfe J in March 1993, his Honour was asked by Raybos and Dr Rajski to disqualify himself, and on 22 March 1993 he did so. This application was not brought until after his Honour's reasons delivered on 22 March 1993 had recorded that his Honour had raised with the parties what the reasons delivered on 24 November 1992 had said about prematurity, and had elicited a consensus that no submission had been made to this court that the determination of the motion was premature.

As I read the judgment delivered on 24 November 1992, the reference to prematurity simply drew attention to matters warranting consideration in connection with the re exercise of discretion. While recognising that the litigious odyssey generated by the proceedings is by no means ordinary, nonetheless it seems to me that the need to know the issues in the proceedings, so far as possible, before deciding whether the proceedings should be heard together or in a particular order, is compelling. The course originally proposed by Rolfe J was certainly an available course, but its basis was undermined by the debate which arose over amendments. As matters now stand, the questions of amendment of 1980P to 1980P2 and the copyright amendment are there. They will not go away, they must be determined, and they are best determined before or as part of a consideration of the order of hearing of the proceedings.

It must then be asked whether it is a proper approach to case management and a proper use of judicial resources to have those questions and the question of the order of hearing of the proceedings heard and determined by a single judge, possibly with an appeal to this court, or by this court in the first instance. In my opinion the answer must be that the questions should be heard and determined by a single judge. While this court, having decided that the discretion of a single judge miscarried, can and sometimes does go on to decide the matter for itself, here a new area of disputation can be foreseen where amendments are formulated and arguments marshalled. For all that is known, further facts will be put forward said to bear upon the questions of amendment. It may be that there will be an appeal from the decision of the single judge who hears the questions of amendment and reconsiders the motion heard by Rolfe J, but the issues will be refined and any necessary facts found. Raybos and Dr Rajski will not lose any rights by reason of adherence to O.5, since they will be able to put before the judge reconsidering the motion all that they have put or could put before this court with a view to obtaining the joint hearing or order of hearing which they desire, and will have the normal appellate rights if they do not obtain it.

For these reasons, therefore, I do not think a case has been made out for reopening the judgment delivered on 24 November 1992. The jurisdiction being founded on injustice otherwise not remediable, the requisite exceptional circumstances have not been shown to exist. On the contrary, proper principles

URRAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LTD (Giles AJA) 11

of case management and use of judicial resources call for O.5 to be maintained. In my opinion the application should be dismissed.

1. In lieu of O.5 made on 24 November 1992, order that proceedings 5 number 14716/85 be heard with proceedings number 16938/80; and
2. The costs of Raybos Australia Pty Ltd and Dr L Rajski on the application to reopen O.5 are to be their costs in proceedings numbers 14716/85 and 16938/80.

10 Counsel for Ist Appellant (Raybos): J Basten QC, Instructed by: Craddock Murray Neumann The 2nd Appellant (Dr Rajski) appeared in person 15 Instructed by: Craddock Murray Neumann Counsel for 1 to 8 and 12 and 13 Respondents: RJ Bainton QC / M Bozic Instructed by (1 to 8): Blake Dawson Waldron 20 Instructed by (12 to 13): Murphy and Moloney Counsel for 9 to 11 Respondents: JD Heydon QC / RJ Powell