THE PORT WARATAH STEVEDORING CO PTY LTD v NICOS JOANNOU [1998] NSWCA 230

PORT WARATAH STEVEDORING CO PTY LTD v JOANNOU

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY and BEAZLEY JJA 2 March 1998

[1998] NSWCA 230

Handley JA In this matter Mr Deakin of Queen's Counsel seeks leave to appeal from a decision of Judge Newton of 26 November 1997 who granted an extension of the limitation period on a notice of motion filed on 29 March 1993. This is the second time this matter has been before this Court.

Earlier an extension of time had been granted by Judge Grogan on 7 October 1993 which was set aside by this Court which ordered that the matter be returned to the District Court for further consideration following the decision of the High Court in Dedousis v The Water Board (1994) 181 CLR 171.

The case is, in many ways, unsatisfactory, bearing in mind the sparse nature of the evidence filed for the worker and the cross-examination of the worker before Judge Grogan. However, both parties elected to proceed before Judge Newton on the material which had been before Judge Grogan.

The worker acknowledged that he had some knowledge in 1980 that the employer could have taken steps to protect his hearing by providing suitable ear muffs. The case for the worker on which the extension was granted by Judge Newton was that in March 1993 the worker acquired additional knowledge of steps reasonably open to the employer to protect his hearing. The exact nature of that additional knowledge was never identified with any precision, and in those circumstances we do not think that this is an appropriate case for the grant of leave.

In an appropriate case where additional knowledge gained by the worker years after earlier knowledge is relied upon as supporting an extension because s601(1)(a)(iii) had been satisfied in that way, it may be appropriate for any extension to be limited to a cause of action based upon the subject matter of that additional information. However, this case was not conducted either in the District Court or in this Court on any such basis. In any event, in view of the lack of identification of the additional information obtained by the worker in 1993, over that which he already had in 1980, this is not a suitable vehicle for deciding whether limited leave to extend the limitation period can or should be granted.