SCREEN PRINTING SUPPLIES PTY LTD v THE DISTRICT COURT OF NSW R [1990] NSWCA 163

SCREEN PRINTING SUPPLIES PTY LTD v THE DISTRICT COURT OF NSW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, CLARKE and HANDLEY JJA 7 March 1990, 7 March 1990 [1990] NSWCA 163

District Court — Certiorari — Limitation Act, 1969, s58(2) Error of law — No legal error shown — No question of fact.

Samuels AP The Court has before it a summons pursuant to which the claimant seeks an order that the record of proceedings in matter No 3674 of 1988 be called up from the District Court of New South Wales and that the order be quashed or set aside.

The particular order in question was made by his Honour Judge Mahoney on 6 June 1989 and what his Honour did was to extend the limitation period for the cause of action in the proceedings pursuant to s58(2) of the Limitation Act, 1969. The grounds upon which the claimant seeks the order are that there are two errors of law which appear on the face of the record. Some discussion has taken place during the argument as to the extent of the materials to which the Court should look as constituting the record for the purposes of the consideration of the summons.

Despite the very careful, concise and helpful arguments of Mr Stevenson, there is no need to examine in this case the extent to which the Court can go. Even taking the most expansive view of the record, it appears to me that no error of law has been shown. When I say "taking the most expansive view", I mean to indicate that, even having regard to the pleadings, the reasons for judgment, the order and the transcript of evidence, the errors of law for which the claimant's counsel contends have not been shown.

The first error of law which is attributed to Judge Mahoney concerns an assumption which he is said to have made. That assumption was that the second opponent had remained at all relevant times in the employ of his employer since the time he sustained his injuries, and it was said that there was simply no evidentiary basis for the assumption. In some circumstances, an assumption of the nature made by his Honour could not possibly ground an order of the type sought in this case. But Mr Stevenson has argued with some force that the assumption had a particular importance in this case because it provided a material explanation for his Honour's conclusion as to the reason why the second opponent had not taken earlier steps to determine his medical condition or his rights of action.