an appeal from a Judge. Do Carmo v Ford Excavations Pty Limited

Kirby P. This is the second time that this case has been before this Court. This time it involves a fourth level of review of the proceedings. This follows an earlier decision of this Court which heard an appeal after an earlier judgment. The Court set the judgment aside and sent the matter back for retrial.

Unfortunately, incidental to the retrial, a pleading question arose. It was considered by the Prothonotary who permitted an amendment sought by the opponent to be made. There was then an appeal to the Master who reversed the Prothonotary's decision and refused the amendment. There was then a further appeal to James J, who again permitted the amendment.

The disaffected party now seeks an order from this Court for leave to appeal from James J. The object of the summons is to secure an order from this Court refusing the amendment and so requiring the trial to be conducted upon the pleadings, as earlier filed.

The grounds for leave that are put before us are, first, that James J misconceived his appellate function, and secondly, that he erred in principle by overlooking a relevant consideration.

The authority of this Court appears to be to the effect that a Judge in a Division of the Supreme Court, hearing an appeal from a Master, is in a position similar to that of this Court in relation to an appeal from a Judge of the Court. See Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 (SC), 419, a decision which has been approved in other cases.

I shall assume that Do Carmo states the correct principle. If it does, it appears clear enough that James J applied it. His Honour referred to the error of principle in the decision of the Master. From his reasons, he appears to have approached the matter in a sufficiently orthodox appellate manner. The first ground of objection to what James J did should therefore be rejected.

Perhaps more significant is the complaint that in allowing the amendment, James J failed to address an important objection which the claimant advanced before him, namely that to allow it would, in respect of a claim in contract, circumvent a limitation defence which was otherwise available to the claimant. However, although it is true that James J did not refer explicitly to this

consideration in his reasons, it remains equally true that a limitation defence could still be raised in pleading to the amendment which was granted. The issues so joined could then be tried in the normal way at the retrial of the action.

The point which is in issue between the parties is a simple matter of practice and procedure. It is one upon which minds can differ, as has been illustrated by the three levels of the hearing which have occurred to date.

I do not believe that any significant addition to jurisprudence would be secured, or any relevant injustice cured, by this Court permitting the matter to come to a fourth level of review.

I therefore propose that the summons for leave to appeal be dismissed. The opponent is to pay the claimant's costs.

Mahoney JA. In my view leave should be refused. I agree in the orders proposed.

Clarke JA. So do I. Kirby P. Such are the orders of the Court.

Counsel for the claimant: P Murphy / J Rowe Solicitors for the claimant: Hunt and Hunt Counsel for the respondent: D R Russell

Solicitors for the opponent: P W Turk and Associates