AUSTRALIAN IRON AND STEEL PTY LTD v CIRAUDO [1990] NSWCA 15

AUSTRALIAN IRON AND STEEL PTY LTD v CIRAUDO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 30 November 1990, 30 November 1990 [1990] NSWCA 15

PRACTICE and PROCEDURE — stay — proceedings prerogative in nature directed to the District Court — Judge of District Court (Gallen DCJ) extends time for bringing negligence action on the basis of s58 Limitation Act 1969 — transcript arguably suggests he considered ignorance of legal cause of action was a "material fact" — whether arguable case of error of law on face of record having regard to Do Carmo v Ford Excavations Proprietary Ltd (1984) 154 CLR 234 — whether proceedings on discovery order should be stayed — held: (Kirby P) (1) In default of reasons it would be assumed that the transcript of proceedings was part of the record of the District Court — Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368 applied; (2) There was an arguable case of legal error; (3) The balance of convenience suggested that proceedings in the District Court on discovery should be stayed until the issues in that Court were defined; (4) Stay order made but hearing of summons expedited. Limitation Act 1969, s58. Supreme Court Act 1970, s46. ORDERS 1. Stay the further hearing of the proceedings in the District Court on ordinary statement of claim of Palmo Ciraudo v Australian Iron and Steel Pty Ltd No 41384 until the hearing and disposal of the summons of Australian Iron and Steel Pty Ltd v Palmo Ciraudo and Gallen DCJ CA 40652/90 or until any further or other order of the Court of Appeal; 2. Order the expedition of the hearing of the summons category C, to the intent that it will be heard before April or at the latest May 1991; and 3. Costs of this motion for a stay to be costs in the summons.

Kirby P Palmo Ciraudo (the opponent) has sued Australian Iron and Steel Pty Ltd (the claimant) in the District Court claiming damages in respect of deafness which he alleges he suffered as a result of negligence on the part of the claimant. The opponent commenced his proceedings in the District Court. In order to extend the period in respect of which he claimed, an application was made to that Court for an order under s58 of the Limitation Act 1969 (the Act) (as it then stood). That application came before Gallen DCJ. His Honour made an order extending the time. The claimant challenges that order in this Court.