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. In light of what the High Court decided in Dedousis the parties and the judge were all directing themselves to the wrong issues. In dealing with the facts the trial judge dealt with a number of matters which are relevant to the issues arising post-Dedousis under s60I of the Act, but dealt with them by reference to the legal issues as they were then and differently understood to be. It became plain in the course of the argument of the Grech matter that the decision arrived at by Grogan DCJ could not now be supported on the basis upon which he had arrived at it. That meant that the court would have to set aside his orders. That meant in turn that the question for the court became whether it would go ahead and decide the fate of the application itself on the basis of the evidence as it was before Grogan DCJ or simply set aside his orders, making no further decision here and leave it to the District Court to hear the application anew. In the Grech matter it was arguable that the facts were sufficiently clear to enable the court to come to the conclusion on whether the application should be granted or not by reference to the now clear legal principles. The court considered whether or not this apparent arguability of the matter, if acted on would, in the circumstances, enable the court to deal fairly with the application. 2 UNREPORTED JUDGMENTS The court came to the conclusion that it could not safely draw various inferences which it would be necessary to draw in order to decide the matter by reference to the proper principles from the evidence as it stood. This is because the judge's findings of fact were not directed to the precise questions which now arise following Dedousis. To decide the application it would have been necessary to draw inferences one way or the other from what appears in the written record when the judge had made no direct finding relating to the necessary inferences, although he had made analogous findings in regard to somewhat different questions. A good deal could depend upon a court's reaction to the plaintiff, in particular, in both cases, as to the proper complexion to be put upon the plaintiff's knowledge and awareness or non- knowledge or non-awareness of critical matters at relevant times. Being of the view that it would be unsafe to draw the necessary inferences one way or the other in the absence of the greater opportunities a trial judge has of estimating such matters, the court came to the further conclusion the fairest way for these two applications to be dealt with, once the court had come to the conclusion the orders could not stand upon the basis upon which they had been formulated, was to take the course earlier mentioned of doing no more than setting aside the orders; the result is, once the orders are set aside, the applications are still on foot in the District Court and will be dealt with in accordance with the procedures of the District Court de novo. The second case concerns the opponent named Joannou. The court was told there was some distinction between the two cases. The conclusion already mentioned in regard to the case of Grech was arrived at by the court even although Grogan DCJ had, to some extent, dealt with questions arising under s611(1)(a)(iii). As earlier indicated, although to some extent he dealt with those questions, he had done so in the erroneous context under which all the courts in New South Wales were operating at the time. In Joannou's case the court was told the judge declined to consider para(a)(ili) questions at all. That makes that case an even clearer one for taking the course which the court has decided to take. It should also be recorded that in the course of events in the first appeal full argument was heard from counsel for the claimant and then when the submissions for counsel for the opponent began the court raised the question with him whether the fairest way of dealing with the matter would not be the one the court has now decided to follow. Counsel agreed that that would be the fairest course. In strict terms his position was that he agreed the judgment of Grogan DCJ could not be supported on the basis upon which the judge had arrived at his orders. He also would have submitted, if the court had not proposed the course it did propose, that the judgment could have been supported on the basis of the evidence and in light of the proper principles. Counsel for the claimant at first took the attitude of asking that the court, having decided to set aside the judge's orders, should go ahead, consider the application on the evidence before the court and come to a conclusion on it. After further discussion however, he obtained instructions which enabled him to inform the court that in view of what the court had said to that point his client agreed to the matter going back, once this Court had decided that the judge's orders had to be set aside. It was then that the decision concerning the Joannou matter was mentioned as being an a fortiori case once the court had decided what to do in the first case. UWRART WARATAH STEVEDORING CO PTY LTD v GRECH; PORT WARATAS STEVEDORING CO PTY LTD v JOANNOU (Priestley JA) In each of Grech and Joannou leave to appeal is granted the appeal is upheld, the orders of Grogan DCJ set aside and the matter of the application is to be decided in the District Court. The appellant, as it can now be called, in each case is entitled to its costs of the appeal and the respondent in each case is entitled to a Suitors Fund Certificate. 4. 5. Respondents entitled to Suitors Fund Certificate. 1. Leave to appeal granted. 2. 3. Orders of Grogan DCJ set aside and matter of the application to be Appeal upheld decided in the District Court. Appellants entitled to costs of appeal. Counsel for the Appellant: P DEAKIN QC/ DR RUSSELL Counsel for the Respondent: B ROBISON Solicitors for the Appellant: HICKSON LAKEMAN AND HOLCOME Solicitors for the Respondent. MAURICE MAY AND CO