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. Following the decision in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 the claimant is not entitled to challenge Gallen DCJ's order by way of appeal. However, it seeks to do so by process prerogative in nature, ie by summons to this Court claiming that an error appears on the face of the record of the District Court which this Court will therefore correct by quashing the order complained of. For the purpose of the proceedings before me it has been assumed that the transcript of evidence and the proceedings before Gallen DCJ constitute part of that record. The question of what is a record for the purposes of relief prerogative in nature in this Court is a matter of some controversy and also of recent authority. Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368, 388f. For the present purposes I will assume that the transcript is included in the record. 2 UNREPORTED JUDGMENTS Iam informed that no formal reasons were given by Gallen DCJ to support the order which he made. Therefore, to discover his reasons, I have been taken to the transcript of proceedings before his Honour on 3 September 1990. At least arguably on p 38 of that transcript his Honour supports the order which he made, extending time, by reference to the suggestion that the want of knowledge of a cause of action against the claimant was a "material fact" which authorised the order which he made under s58 of the Act. I say "arguably" because I have not heard full argument on the matter. The suggestion that such an error of law arises on the face of the record is contested by counsel for the opponent. But for the purposes of the proceedings before me the objection raised does appear to be arguable and, in particular, having regard to what was said about the subject by the High Court of Australia in Do Carmo v Ford Excavations Proprietary Ltd (1984) 154 CLR 234, 254. The proceedings remain in the District Court. In support of the claim, as elaborated pursuant to the order made under the Limitation ACt, an application has been made to that Court for discovery. That application is returnable before Gallen DCJ on 3 December 1990. Under the terms of that application as framed, and pursuant to the order which has been made under the Limitation Act, the claimant will be required to produce records, on one view of the matter, going back to 1978 and, on another, going back to 1966. It contends that it should not be put to that inconvenience until the issues between the parties as they will finally go to trial have been defined. Those issues will not be so defined until the summons to this court is determined. Having regard to the arguability of the case which the claimant brings to the Court and the balance of convenience as between the parties, it does seem to me appropriate to stay the proceedings in the District Court until this Court can determine the summons. It is necessary to do so because the learned judge declined an application by the claimant for a stay of the orders made by him. He did so on 24 September 1990, as appears in an affidavit which has been read. Counsel for the opponent resists the application for adjournment, contending that convenience dictated that the matter should proceed in the interlocutory stages in the District Court. He argued that it could readily so proceed, without interruption, until this Court had dealt with the matter. I do not believe that it is appropriate for the claimant to be put to potentially wasteful inconvenience in answering a discovery order which is based on a cause of action arguably too wide until the issues in the District Court have been clarified. That will not occur until this Court has disposed of the claimant's present summons. The issue raised by the summons is a short point. It should not take much time in resolution in this Court. It is desirable that the point be resolved as quickly as possible, both by reason of the nature of the relief sought and by reason of the fact that (as a consequence of the orders I propose to make today) the proceedings in the District Court will necessarily come to a halt. The orders which I make for these reasons exercising the powers conferred on me by the Supreme Court Act 1970, s46 are: 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; URJ AUSTRALIAN IRON AND STEEL PTY LTD v CIRAUDO (Kirby P) 3 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. 5 Counsel for the Applicant: M Bozic Counsel for the first Opponent: P Seery Counsel for the second Opponent: S Srivastava 10 Solicitors for the Applicant: Blake Dawson Waldron Solicitors for the Opponent: Maurice May and Co