PORT WARATAH STEVEDORING CO PTY LTD v GRECH; PORT WARATAH STEVEDORING CO PTY LTD v JOANNOU [1995] NSWCA 375

PORT WARATAH STEVEDORING CO PTY LTD v GRECH; PORT WARATAH STEVEDORING CO PTY LTD v JOANNOU

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and POWELL JJA 25-26 October 1995, 26 October 1995 [1995] NSWCA 375

S60F AND s60I LIMITATION ACT — WHETHER APPELLATE COURT COULD SAFELY DRAW INFERENCES FROM AVAILABLE EVIDENCE — trial judge makes orders under Limitation Act extending time for plaintiff to bring proceedings — in light of subsequent High Court decision in Dedousis parties and judge directing themselves to wrong issues — orders of trial judge set aside — question arises whether appellate court can safely draw inferences from the evidence which it would be necessary to draw in order to decide the matter by reference to the proper principles — question answered in the negative — trial judge's findings of fact not directed to the precise legal questions which now arise following Dedousis — trial judge greater opportunities for deciding such questions.

The judgment of the Court was delivered by:-

Priestley JA Two matters have been listed consecutively which in light of whathas happened in the course of the argument in the first one can be dealt with together. They are two matters in which Port Waratah Stevedoring Co Pty Ltd is the claimant.

In the first case, in which there has been considerable argument yesterday and today, the opposing party is named Grech. Both matters came from the District Court where Grogan DCJ had made orders under the Limitation Act extending the time for the plaintiff in each matter to bring proceedings for negligence against the defendant. Both matters were decided before the case of Dedousis was decided in the High Court. In both cases the parties directed themselves to the issues which before the High Court decided Dedousis were thought to be the relevant issues, principally revolving around s60F of the Limitation Act.