AV Winslow J:

I shall assume for the purposes of this judgment that I need not set out in detail the reasons why the judicial committee of the Privy Council found itself able to reach the conclusion that the shipment of certain goods, the subject matter of this action for conversion was a delivery to the vessels, Hua Heng and Hua Li, owned by the first defendant and chartered by the second defendants, as bailees for the plaintiffs so that thereby the pledge of the said goods to them was completed and the plaintiffs given the possessory title, on which they relied, entitling them to succeed in their claim for conversion.

The Privy Council accordingly dismissed the appeal of the two defendants herein against the judgment of the Federal Court in favour of the plaintiffs against the second defendants herein for damages to be assessed by the Registrar and confirmed the order that the remaining issue as to whether the first defendant was also liable in conversion should be remitted for a re-trial.

This issue eventually came before me for re-trial on 6 March 1972, damages having been finally assessed, on an appeal from the registrar, on 20 June 1969 in the sum of $570,500 which the second defendants have been unable to pay although they have paid slightly more than the total taxed costs and still have STG500 due back to them on that score.

The parties were represented by Mr. Le Quesne QC with Mr. Karthigesu for the plaintiffs and Mr. Parker QC with Mr. Grimberg for the defendants.

Mr. Le Quesne opened his case for the plaintiffs with a brief account of the previous history of the proceedings in this action culminating in the order of the Federal Court for the present re-trial of the issue as confirmed by the Privy Council as already stated. Whilst he was in the process of making submissions on what he considered to be the proper scope of the re-trial he ventured to submit that the Federal Court's judgment might be against the wrong defendant but that was, nevertheless, no bar to this Court's giving judgment against the first defendant Mr. Parker, who seemed to have been anxious to be heard on certain preliminary objections, immediately took his cue from Mr. Le Quesne's submissions at this stage to state quite emphatically that he did not agree that the judgment of the Federal Court was no bar to my giving judgment against the first defendant.

From then on until 4 p.m. on Thursday, 9 March 1972, as recorded on p. 35 of my notes, I heard arguments from both Counsel on two preliminary points of objection. In the course of that argument Mr. Parker handed up two sets of documents, Exhs. PD1 and PD2, setting out the agreed position between the parties on each of these points.

It may be useful at this stage to set out in full the agreed position stated out in these exhibits:

Exhibit PD1 reads as follows:

THE SECTION 11 POINT

1 It is accepted by both parties that under common law final judgment against one joint tortfeas or operates as a complete bar to all further proceedings against any other joint tortfeas or whether in the same action or otherwise.

(2) It is accepted by the defendant Chan that the Federal Court judgment, being only interlocutory, is not by itself a complete bar to all further proceedings against the defendant Chan under the common law.

(3) It is accepted by the plaintiffs that the Federal Court judgment, coupled with the assessment of damages thereunder, constitutes a final judgment and is a complete bar at common law to all further proceedings against the defendant Chan.

(4) It therefore follows that the plaintiffs' claim against the defendant Chan is now barred and that the claim against him must be dismissed unless the common law rule has been altered by statute.

(5) It is for this reason that s. 11(1)(a) of the Civil Law Act becomes relevant. The plaintiffs contend that section has altered the common law rule so that the final judgment already given in this case is not a bar to further proceedin