New South Wales Court of Appeal Creevey v Barrois [2005] NSWCA 264 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 11/07/05 JUDGMENT DATE: 15 August 2005 JUDGMENT OF: Handley JA at 1; McColl JA at 5; Basten JA at 6 DECISION: (1) Grant leave to appeal; (2) Appeal dismissed with costs CATCHWORDS: Limitations - extension of time to commence proceedings under Motor Accidents Act 1988 - whether a fair trial could be reasonably anticipated - whether prejudice suffered as a result of delay - whether lost opportunity to cross-claim against a third party - expiry of time to make cross-claim under s26 (1)(d) of the Limitations Act 1969 Motor Accidents Act 1988 Limitation Act 1969 Motor Accidents Compensation Act 1999 LEGISLATION CITED: Motor Accidents Amendment Act 1995 Law Reform (Miscellaneous Provisions) Act 1946 Dust Diseases Tribunal Act 1989 Salido v Nominal Defendant (1993) 32 NSWLR 524 Brisbane South Regional Health Authority v Taylor (1996-97) 186 CLR 541 Holt v Wynter (2000) 49 NSWLR 128 Itex Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Nelson v Wyong Shire Council (1989) 68 LGRA 164 Yates v Costain Australia Ltd (1989) 18 NSWLR 312 CASES CITED: Robins v Downes (1996) 24 MVR 180 Workers' Compensation Board of Queensland v Seltsam Pty Ltd [1999] 2 Qd R 679 Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254 Wallaby Grip (BAE) Pty Ltd (In Liq) v Eraring Energy (2004) NSWCA 269 Bossini v Independent Transport (WA) (1997) 25 MVR 65 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 John Creevey (Appellant) PARTIES: Peter John Barrois (Respondent) FILE NUMBER(S): CA 40606/04 P. Taylor SC/G. Gregg (Appellant) COUNSEL: M.R. Aldridge SC/P.N. Khandhar (Respondent) Phillips Fox (Appellant) SOLICITORS: Maxwell Berghouse & Ives (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 8614/02 LOWER COURT JUDICIAL OFFICER: Bishop DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40606/04 DC 8614/02 HANDLEY JA MCCOLL JA BASTEN JA 15 August 2005 JOHN CREEVEY v PETER JOHN BARROIS The applicant, Mr Creevey, sought leave to appeal from a decision of the District Court granting leave to Mr Barrois to commence proceedings out of time under the Motor Accidents Act 1988 (NSW). Section 52(4) of the Act required leave to commence proceedings more than three years after the date of the motor accident. The accident occurred on 9 March 1995 and it was not until 10 September 1999 that Mr Barrois first instructed a solicitor. There was a further delay between that time and the time when his solicitor applied to the District Court on 29 May 2000 for leave to institute proceedings out of time. After a number of applications (including a successful appeal) and some further periods of delay, the matter was heard and determined by Bishop DCJ on 20 May 2004, that decision being the subject of this leave application. The primary question for determination by the Court of Appeal was whether, notwithstanding the delay and the circumstances in which the delay occurred, a fair trial of the issues between the parties could reasonably be anticipated. To determine this question it was necessary for the Court of Appeal to consider whether the applicant suffered prejudice, primarily in relation to a lost opportunity to cross-claim against a third party, the time to file such a claim, as fixed by s26 (1)(d) of the Limitation Act 1969 (NSW), having expired and there being no power to extend or waive that period. Held per Basten JA (Handley JA and McColl JA agreeing): 1. The combination of a flexible rule with respect to the commencement of primary proceedings by an injured party, together with an inflexible limitation period on claims for contribution by a putative defendant, clearly has potential to cause results which may be arbitrary and unjust. 2. An assumed loss of a right to cross-claim against a joint tortfeasor will give rise to significant prejudice sufficient to render it unjust to allow a claimant to proceed out of time, but only where the possible claim for contribution has been shown to be viable and realistic, rather than a fanciful or theoretical possibility. 3. Had Mr Barrois considered he had a tenable cross-claim he could have joined the relevant third party as cross-defendant. He did not do so and the reason for this was not explored in cross-examination. In such circumstances, Mr Creevey had an evidential burden of producing some evidence to demonstrate an arguable case that the third party was a concurrent tortfeasor from whom contribution might reasonably be sought. 4. The material presented did not establish that the lost opportunity to bring a cross-claim against the third party involved the loss of anything more than a theoretical possibility. Query per Basten JA; (Handley JA contra): Arguably, when leave is given to commence proceedings out of time, the only limitation on the commencement of a cross-claim is that found in s26 (1)(a) of the Limitation Act 1969 (NSW). IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40606/04 DC 8614/02 HANDLEY JA MCCOLL JA BASTEN JA 15 August 2005 JOHN CREEVEY v PETER JOHN BARROIS Judgment 1 HANDLEY JA: In this appeal I have had the benefit of reading the reasons for judgment of Basten JA in draft. I agree with his Honour's reasons and proposed orders but wish to add some additional reasons of my own on the relationship between s 52(4) of the Motor Accidents Act 1988 and s 26 of the Limitation Act 1969. Section 52(4), in force at the relevant time, provided: "A claimant is not entitled to commence proceedings in respect of a claim more than three years after the date on which the claim must be made in accordance with section 43 except with the leave of the Court in which the proceedings are to be taken." 2 The section fixes a limitation period and the Court is empowered, in its discretion, to allow an action to be brought outside that period. When the Court exercises this power it does not extend the limitation period or fix a new one, it merely disapplies the period fixed by the statute. The limitation period as such is not affected. 3 Section 26(1)(b) of the Limitation Act provides a 4 year limitation period for contribution claims "running from the date of the expiration of the limitation period for the principal cause of action". The limitation period in s 52 is a limitation period for this purpose as s 26(3) makes the section applicable to limitation periods fixed by or under other Acts. An order under s 52(4) which disapplies that limitation period does not "fix" a longer limitation period under the Act, and a longer period is never "fixed … under" that Act. 4 The orders proposed by Basten JA should be made. 5 McCOLL JA: I agree with Basten JA's reasons and the order he proposes subject to one matter. I prefer not to express a view about the effect of a grant of leave under s 52(4) of the Motor Accident Act 1988 and its relationship to s 26 of the Limitation Act 1969 both because, as his Honour observes, the construction to which he is attracted is inconsistent with earlier authorities and in any event, was not argued in these proceedings. 6 BASTEN JA: This is an application by Mr Creevey (the defendant in proceedings brought in the District Court) seeking leave to appeal from a decision granting leave to an injured claimant to commence proceedings more than three years after the date of a motor accident to which the claim related. Such leave was required pursuant to s 52(4) of the Motor Accidents Act 1988 (NSW). Background 7 The accident occurred on 9 March 1995. 8 From 9 March 1995 until 10 September 1999, when he first instructed a solicitor in relation to the matter, no steps were taken by Mr Barrois to recover compensation from Mr Creevey, or anybody else. Mr Barrois was not, however, in doubt that he had suffered a significant injury. 9 The work being undertaken in 1995 was described in affidavits of Mr Barrois himself and of a Mr Ian Armstrong and a Mr Scott Knight, each of whom was engaged on the same work. These men, with two or possibly three others assisting, were constructing a pergola next to a house on a new residential development. The builder was identified as "A. V. Jennings". Mr Barrois described himself as a self-employed carpenter who contracted to supply services to a business run by a Mr Rob Clements, known as "Real Service Constructions". The Claimant, Mr Creevey, was apparently operating a bobcat, of which he was the owner. He appears to have been a subcontractor to A. V. Jennings. 10 The clearest description of the incident comes from the affidavit of Mr Armstrong, who noted that, in addition to Mr Barrois and himself, three other workers were involved in attempting to manipulate a heavy long hardwood pole into a hole. His evidence continued: "We all carried the pole to the hole and tried to stand it up but it was too heavy. John Creevey then said, 'we are struggling to lift the pole I will use by bobcat'. John Creevey then drove the bobcat to the pole and used the front bucket of the bobcat to lift the pole by moving forward. When the pole was about 70% raised from the horizontal the front wheels of the bobcat lifted from the ground. Peter Barrois, Scott Knight, Rob Clement, Darren and I then took the weight of the pole but in doing so the front wheels of the bobcat fell and in turn the bucket fell hitting Peter Barrois on the head." Whether or not that was an accurate description of how the accident occurred was not decided by the judge below, but it appears to be agreed for present purposes that both front wheels of the bobcat lifted off the ground and that the bucket fell when the weight of the pole was removed from the front bucket of the bobcat. 11 In an affidavit sworn on 5 April 2001, Mr Barrois noted that he received help from Mr Knight and had "sustained injuries to my neck, head and shoulders". He continued: "After the accident occurred I saw my general practitioner, Dr Wiles, and was sent to Gosford Hospital in an ambulance. I returned home after a few hours observation and was then sent off for physiotherapy. I had about a week off work and I then returned to my normal duties. My neck was still painful. It continued to be painful as the years went by. It gradually deteriorated over time and in the 1999 calendar year it deteriorated significantly. By the middle of 1997 I had severe neck pain and this pain radiated down through my shoulders into both arms." 12 Mr Barrois saw his solicitor on 9 September 1999. After noting that he did not seek legal advice until that time, he stated: "I sought this advice because my neck was still deteriorating and I came to the view that I may not be able to work at all in the future." 13 On 3 November 1999 the solicitors sent a letter on behalf of Mr Barrois to Mr Creevey, noting that "in March 1995 he was injured by a bobcat which you were driving". 14 The passage of time, to use a neutral term, from March 1995 until 9 September 1999 involved inaction on the part of Mr Barrois. Thereafter, the passage of time was attributable to the action or inaction of his solicitors. It is convenient to describe the period from March 1995 to September 1999 as the "first period". The "second period" may be said to extend from September 1999 until 29 May 2000, when an application was made to the District Court for an extension of time within which to file a statement of claim. Between 29 May 2000 and 31 January 2002 ("the third period") motions were filed and considered in the District Court and an appeal to this Court was determined. 15 What advice was given to Mr Barrois in conference by his solicitor in September 1999 is not revealed. However, the solicitors wrote to Mr Barrois on 10 September 1999 enclosing "a very rough draft statement of the events that surrounded your accident some 4 years ago", requesting that he complete the statement and execute authorities to enable the solicitors to obtain medical reports. The letter concluded: "Once we have marshalled all the factual matters we will be able to fully advise you as to the best avenue to follow for compensation." No great urgency was exhibited in the letter. 16 As noted above, the solicitors did not write to Mr Creevey for almost two months. He, however, replied in 14 days, noting that the bobcat was not registered, but that his business had a public liability insurance policy. On 23 November 1999 the solicitors reported this information to Mr Barrois and continued: "Accordingly, it appears to us that there will be no need to lodge a motor accident claim form and that your claim can be treated as a Common Law Claim for Damages. However, it is noted that the accident occurred on 9th March 1995 and that the claim is out of time. This means that an application will be needed to be made to the Court asking for an extension of time to file your claim. In view of the fact that you have sustained a serious injury and that you were unaware of the time limits we expect that there will be no problem in this regard." Arrangements were made to see counsel in conference on 7 December 1999. The solicitor reported in his affidavit that the conference took place on that date, but provided no information as to any advice which may have been given. 17 Arrangements were made to enable further medical reports to be obtained and, on 10 March 2000, counsel wrote briefly to the solicitors, thanking them for a medical report received on 28 February 2000 and continuing: "It seems to me that an application for an extension of time will have to be brought in respect of the accident. I will draw the motion in the next few days." The solicitor stated that the relevant documentation was received by him on 22 March 2000. However, nothing further appears to have been done by him until 12 May 2000, when he sent his client a copy of the draft affidavit. By itself, this delay may seem relatively insignificant, but the solicitors appear to have lacked any sense of urgency in relation to this matter. Application was made to the Court for an extension of time on 29 May 2000, some 9 months after Mr Barrois first sought legal assistance. 18 That application, apparently made under s 60C of the Limitation Act 1969 (NSW), came before Garling DCJ on 25 July 2000. According to a note prepared by Ms Ryan of counsel, who appeared on that application, Judge Garling expressed a "preliminary view" that the matter fell under the Motor Accidents Act. Whether or not that possibility had been addressed by counsel does not appear from the evidence, but the solicitors for Mr Barrois responded promptly by sending him a personal injury claim form under the Motor Accidents Act on 31 July 2000. That form, once completed, was apparently forwarded to the nominal defendant on 6 September 2000, presumably on the basis that the claim was one for a motor accident involving an unregistered and uninsured vehicle. 19 The application was, however, adjourned on 25 July 2000 to allow Mr Barrois to file an affidavit providing an explanation of the delay, and more details of the circumstances of the accident. The matter came back before Patten DCJ on 8 September 2000. His Honour appears to have been satisfied by the evidence before him that the accident was "prima facie due to the negligence of [Mr Creevey]". His Honour continued: "The full consequences of the injury did not as it seems become apparent until some time last year, whereupon the plaintiff quite promptly sought legal advice and after due investigation brought these proceedings. If it were not for the matter to which I will come, I would have little difficulty in concluding that it would be just and reasonable to give the plaintiff the relief he seeks." That being said, his Honour concluded that "the bobcat was a motor vehicle for the purposes of s 40 of the Motor Accidents Act ". He further concluded that "what happened falls squarely within the definition of 'claim' in s 40, and that the applicant is bound to rely upon such rights as he has under the Motor Accidents Act ". He concluded that it would be "futile to give the leave which is sought under s 60 of the Limitation Act ". No further action was taken in the Court until 9 April 2001 when a further notice of motion was filed which both maintained a claim for an extension of the limitation period under s 60C of the Limitation Act and sought an extension of time within which to make a claim pursuant to the Motor Accidents Act . The maintenance of the claim under the Limitation Act may appear curious, given the earlier judgment of Patten DCJ, but it was probably maintained because, by letter dated 18 December 2000, the insurance company acting as the nominal defendant denied that the accident fell within the ambit of the Motor Accidents Act . Despite that, there appears to have been a request for particulars made by the insurance company in a letter of 16 October 2000, to which a response was provided on 21 February 2001. Copies of Mr Barrois' medical reports were enclosed with that response, and the letter concluded with a reply to the insurers' letter of 18 December 2000 as follows: "The problem with that position is that when the claimant commenced his action in the District Court on the basis of common law liability the plaintiff lost his motion on the basis that the presiding Judge considered the claim as falling within the ambit of the Motor Accidents Act . Given that the defendant insurer denies liability the plaintiff proposes to file a further application seeking leave to file his claim out of time." On the same day, the solicitors wrote to Mr Barrois noting: "A major issue has developed in your case as to whether the site where the accident occurred was public land or private land. It is very very important that we have details as to where precisely this accident occurred." The letter continued by suggesting certain steps which should be taken to ascertain the status of the land. 20 A further conference was arranged with counsel on 8 March 2001 and further draft documents were received from counsel on 14 March 2001. The draft affidavit was executed by Mr Barrois on 9 April 2001. 21 The further application came on for hearing before Garling DCJ on 10 July 2001. His Honour noted that the first aspect of the application sought an extension of time within which to bring proceedings against the nominal defendant. His Honour dealt with that aspect of the matter by reference to s 31 of the Motor Accidents Compensation Act 1999 (NSW), on the basis that this Act applied in relation to a "motor accident occurring before or after the commencement of this Act". His Honour held that no claim lay against the nominal defendant because the accident did not occur "on a road" in New South Wales, for the purposes of s 33(1). Accordingly, he dismissed the application under s 52(4) of the Motor Accidents Act. His Honour then turned to the position of Mr Creevey and dismissed the application in relation to him too, though the precise issue being addressed is not entirely clear from his Honour's reasons. His Honour concluded: "Having said all that, it seems to me the plaintiff must also fail against [Mr Creevey]. But I have got to say this, this is a most unfair situation, if I am correct, because it seems to me that this plaintiff was injured under circumstances which indicated that someone, and probably Mr Creevey, was negligent." However, his Honour continued noting that questions of prejudice, sought to be raised on behalf of the defendants, had not been considered. 22 An appeal was brought from that decision to this Court, judgment being delivered on 31 January 2002. In relation to the nominal defendant, the application was dismissed by consent. In relation to Mr Creevey, Powell JA noted at [3]: "Insofar as the application sought an extension of time to bring proceedings against [Mr Creevey], Garling DCJ dismissed it on the basis that the proposed proceedings would be subject to the provisions of the MA Act and, therefore, the claimant was bound to fail – the reasons for that view were not elaborated upon." At [7] his Honour returned to the matter, noting: "It seems to us … that the truth of the matter is that Garling DCJ did not deal with an application by [Mr Barrois] pursuant to the MA Act and that it remains open to [Mr Barrois] to bring an application for such an extension of time, supported by such materials as may be thought necessary in order to enable the granting of an order under s 52(4) of the Act." The summons was accordingly dismissed. 23 A further notice of motion was filed in the District Court on 27 November 2002. Although it continued to pursue relief under s 60C of the Limitation Act, that aspect of the application was abandoned at the hearing on 20 May 2004. The only order then sought was an order pursuant to s 52(4) of the Motor Accidents Act, against Mr Creevey. 24 No affidavit was filed seeking to explain the delay between the decision of this Court on 31 January 2002 and the commencement of the further proceedings on 27 November 2002 ("the fourth period"). However, the solicitor was called, without objection, to give evidence that he had suffered a heart attack on 27 June 2002 and had been unwell for some three or four months prior to the heart attack. Under cross-examination, he agreed that there was an employed solicitor in his office during that time, but no other qualified practitioner. He agreed that both of them were aware of the decision of the Court of Appeal and the need to act expeditiously in pursuing any further application. 25 A final or fifth period may be said to run from the date on which the Notice of Motion the subject of the present proceedings was filed on 27 November 2002 to the date on which the proceedings were heard by Bishop DCJ, namely 20 May 2004. The material before this Court, however, is largely silent as to why a period of 18 months elapsed whilst the motion was pending. Part of the explanation may be found in the change of solicitors for Mr Creevey, and part in steps apparently taken by Mr Creevey's new solicitors to have further proceedings stayed until Mr Barrois paid costs which had been incurred by him in relation to prior unsuccessful applications. In any event, neither party in the present appeal sought to blame the other for the lapse of time. The delay was also largely irrelevant in relation to the principal matter relied upon by the Claimant, namely that he had lost an opportunity to seek contribution from potential joint tortfeasors, that right having lapsed (if it did) during the fourth period, namely on 9 September 2002. 26 In my view, the critical matters in the present case turn upon the inaction of Mr Barrois during the first period and of his solicitor during the fourth period referred to above. On one view, the first period is critical, because it was during that period that Mr Barrois failed to take any steps to pursue a claim. At that time nothing turned upon legal questions with respect to the operation of the Motor Accidents Act: by the time he reached a solicitor, any claim in negligence would have required an extension of time. Statutory provisions 27 Prior to the Motor Accidents Amendment Act 1995, s 52(4) made provision as follows: "52(4) A claimant is not entitled to commence proceedings in respect of a claim more than three years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken." Section 43(1) required that a claim must be made within six months after the date of the motor accident to which the claim related. A claim was to be made by "giving notice of the claim to the person against whom the claim is made". 28 Section 52(4), in its then form, has been understood as imposing a three year limitation period from the date "by which" the claim must be made, namely the last day of the six month period. The overall period provided for the making of a claim was therefore three years and six months, a period which, in the present case, would have expired on 9 September 1998, exactly one year before Mr Barrois sought legal advice. 29 Section 52(4) was replaced by the Motor Accidents Amendment Act 1995 (NSW) so that the three year period was to date from the date of the motor accident. However, the amendment was to apply "only in relation to motor accidents occurring on or after the commencement of the amendment": Motor Accidents Amendment Act 1995, Schedule 1 [43], item 17(2). The Act commenced on 1 January 1996, some nine months after the accident in question. Accordingly, the relevant form of the Act was that in force prior to the 1995 Amendment Act. 30 In its present form, s 52 makes express provision in sub-s (4B) as to the circumstances in which leave can be granted by the Court, for the purposes of s 52(4). Thus, the subsection provides: "52(4B) The leave of the court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident." There was, however, no equivalent provision in force prior to the 1995 Amendment Act. The new sub-s (4B) was subject to the same transitional provision as the new sub-s (4) and hence did not apply in relation to the accident now under consideration. Section 52(4), as presently relevant, was in the same form as considered by this Court in Salido v Nominal Defendant (1993) 32 NSWLR 524. The relevant principles, as set out by Gleeson CJ at pp 532E-533A, by Kirby P at 537G-539D and by Powell JA at 541 must therefore be applied, subject to such qualification as may be required by the judgments of the High Court in Brisbane South Regional Health Authority v Taylor (1996-97) 186 CLR 541. The operation of those principles, and the effect of the decision in Brisbane South Regional Health Authority , were addressed by this Court in Holt v Wynter (2000) 49 NSWLR 128 at [111]-[119] (Sheller JA), Brownie AJA agreeing. (See also Itex Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 at [46]-[62] (Ipp AJA, Spigelman CJ agreeing); see also Sheller JA at [3].) 31 The question is ultimately whether, given the delay and the circumstances in which the delay occurred, a fair trial of the issues between the parties can reasonably be anticipated. 32 A separate factor which will need to be taken into account in making this assessment is whether, if the matter proceeds, the defendant (being the Claimant in the present proceedings) will be precluded from seeking contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) because the limitation period provided by s 26(1) of the Limitation Act has already expired and is not capable of extension. Section 26 provides, so far as relevant: " 26 Contribution between tort-feasors (1) An action on a cause of action for contribution under subsection (1) of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first to expire of: (a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and (b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action. (2) For the purposes of paragraph (a) of subsection (1), the date on which a cause of action for contribution first accrues is: (a) if the plaintiff in the action for contribution … is liable in respect of the damage for which contribution is claimed by judgment in a civil action … - the date on which the judgment is given … . (3) In paragraph (b) of subsection (1), the expression the limitation period for the principal cause of action means the limitation period fixed by or under this Act or by or under any other enactment … for the cause of action for the liability in respect of which contribution is sought." Grounds of proposed appeal 33 The primary ground of appeal sought to be relied on by Mr Creevey was the failure of the primary judge to find that he would be barred by s 26(1)(b) of the Limitation Act from bringing any claim for contribution. The Court was of the view that the question of law raised by this ground was a matter of importance and that the primary judge appeared to have erred in the approach he took to the issue. Accordingly, leave to appeal was granted at the hearing. For the reasons set out below, I am of the view that the legal error is made out: nevertheless, Mr Creevey must go further in order to set aside the decision of the primary judge, by demonstrating that the error was material in the present case. This second leg of the argument involved a number of subsidiary questions will be addressed below. 34 The second category of grounds sought to be relied upon all asserted factual error in the findings made by the trial judge. These will be dealt with before returning to the major ground, as, in my view, none warrants interference with the decision of the primary judge. 35 The first of the factual grounds was that his Honour erred in finding that Mr Barrois "only sought medical advice when his condition had deteriorated to the extent that he was worried about his future employability". Mr Creevey refers to paragraphs [9] and [30] of the judgment as revealing the relevant error. 36 If his Honour in fact made the error suggested, it would be a startling proposition. There were in evidence numerous medical reports indicating that Mr Barrois had received medical attention from the day of the accident and on a continuing basis. Further, the statement made by Mr Barrois in his affidavit in this regard is set out at [12] above: his feared inability to work led him to seek legal advice, not medical advice. Consistently, the statement at [9] of the judgment below reads as follows: "He confirmed that he first consulted legal advice on 9 September 1999 because he was starting to worry because of his neck whether he would be able to work in the future." 37 The statement at [30] appears to be in different terms and reads: "As senior counsel for the applicant pointed out, he only attended for medical advice when his condition had deteriorated to an extent that he was worried about his future employability. It was after this that he consulted his solicitor for the first time, being already out of time." In my view, the word "medical" is a slip and should read "legal". In the second sentence, the word "this" refers to the deterioration and the resultant worry, rather than the "medical advice". In my view his Honour did not make the first factual error complained of. 38 The second factual complaint was that his Honour erred in finding that the evidence did not establish significant prejudice to Mr Creevey, because his Honour "failed to appreciate the nature of the liability issues that would arise". The gravamen of this complaint concerned the respective responsibilities of Messrs Creevey and Clements for the system of work which was adopted in seeking to place the pole upright with the assistance of the bobcat; this matter is directly relevant to the issue of contribution and will be dealt with below. 39 The third complaint was that his Honour ignored the evidence of Mr Creevey's solicitor that Mr Creevey "had little recollection of the circumstances of the accident". This involved an assessment of the evidence before the primary judge in relation to the manner in which the accident occurred and how the bucket of the bobcat came to fall and hit Mr Barrois on the head. In this respect, counsel for Mr Creevey relied on two passages in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554 and 555. In the first passage, his Honour noted the positive burden to be shouldered by an applicant seeking an extension of time to demonstrate that "the justice of the case requires that extension". The latter passage was in the following terms: "The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice." 40 The manner in which the accident occurred has been described above, in terms similar to those demonstrated to the Court by senior counsel for Mr Creevey. It was open to his Honour to find that the manner in which the accident occurred could be established without unfairness to Mr Creevey, due to the passage of time. So far as Mr Creevey's own knowledge of the matter was concerned, his Honour had before him an affidavit of Mr Creevey's solicitor stating, on information and belief, that Mr Creevey's recollection "of the circumstances surrounding the accident is vague". He was entitled to give that limited weight. No attempt was made to suggest that Mr Creevey did not remember the circumstances of the incident as set out by Mr Barrois and two other workers, in affidavits, being Mr Armstrong and Mr Knight. Mr Creevey has not demonstrated that, on the material before his Honour, the exercise of the discretion miscarried in this respect. Unavailable cross-claims 41 As noted above, the principal question raised on this application was whether it remained open to Mr Creevey to bring proceedings for contribution against others who may have owed a duty of care to Mr Barrois. The relevant limitation period for that purpose is found in s 26(1)(b), set out above at [32]. The four year period so defined runs from the date of the expiration of the limitation period for the principal cause of action, being a phrase defined in sub-s (3). That period is relevantly defined by s 52(4) of the Motor Accidents Act, set out above at [27]. In its terms, s 52(4) prescribed a fixed limitation period, within which proceedings must be commenced, "except with leave of the court". Thus, where leave is sought and granted, proceedings may properly be commenced in accordance with that leave, but there is no change in the limitation period. The result under s 26(1) of the Limitation Act, so it was argued, is that in relation to a claim covered by the Motor Accidents Act as then in force, a cause of action for contribution would not be maintainable unless brought within seven years and six months of the date of the accident. That period would have expired in the present case on 9 September 2002. 42 The combination of a flexible rule with respect to the commencement of primary proceedings by an injured party, together with an inflexible limitation period on claims for contribution by a putative defendant, clearly has potential to cause results which may be arbitrary and unjust. For example, a claimant with an excellent case for leave to commence proceedings out of time may be met with a complaint by the principal tortfeasor that the delay in commencing proceedings has caused prejudice to it because it is no longer able to bring proceedings for contribution. Such a situation could, in theory, arise even where the claimant had sought leave months, or even a year or two, prior to the expiration of the contribution claim limitation period, where an adverse decision of the primary judge was overturned after consecutive appeals to this Court and the High Court, followed by a rehearing in the District Court. 43 Four arguments may be raised in resisting that conclusion. The first relies upon the provisions of s 52 of the Motor Accidents Act, and in particular sub-s (5), which read: "(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim." The first question is whether this exclusion extends to proceedings by way of a claim for contribution in respect of a claim. If it does, the limitation period in s 26(1) of the Limitation Act would have no operation. 44 A second argument is that once a court grants leave to a claimant to bring proceedings in relation to "the principal cause of action" there is no longer any limitation period which has operation in respect of that cause of action and hence s 26(1)(b) imposes no limitation on the right to bring an action for contribution. 45 A third argument, which found favour with the primary judge, although he did not determine whether it was correct or not, is that the effect of the grant of leave is in practice, if not in its terms, the provision of an extension of the limitation period set by s 52(4). 46 Fourthly, as the Opponent argued before the primary judge, the circumstances relevant to the grant of leave may be limited to those concerning the fairness of any trial between the plaintiff and prospective defendant and may not include extraneous matters such as the ability of the defendant to seek contribution against a third party. The primary judge did not address that submission. 47 The Court's attention was drawn to a number of authorities, although none was definitive of the construction issues under consideration. In the earliest, Nelson v Wyong Shire Council (1989) 68 LGRA 164, Giles J considered the inter-relationship of ss 26 and 74 of the Limitation Act, holding that the effect of s 74 was, in effect, to allow the limitation period provided by s 26(1) to be avoided where a cross-claim was made against a person already party to the proceedings, where that person had been joined prior to the expiration of the limitation period for a claim of contribution by another party. For present purposes, his Honour's reasons do no more than affirm that s 74 will provide no benefit to a cross-claimant, where the proposed cross-defendant is a third party, not earlier joined in the proceedings. 48 Of greater relevance is Yates v Costain Australia Ltd (1989) 18 NSWLR 312. The principal claim in that case was a claim in negligence brought by the plaintiff against two defendants. One of the defendants sought to cross-claim out of time against a third party. It was said to be "common ground" that s 26(1)(b) rendered the claim for contribution not maintainable. Accordingly, an extension of time was sought under s 58 of the Limitation Act. The argument put on behalf of the defendant, and rejected by Smart J, was that no power existed to grant an extension of time in respect of a claim for contribution: 18 NSWLR, at 318E. However, his Honour noted that s 58, under which an extension of time could be granted in relation to the principal cause of action, contained its own automatic extension of the period prescribed by s 26(1)(b), to cover the circumstance where the court had ordered that a limitation period for the principal cause of action be extended. As was conceded in the present case on behalf of Mr Barrois, the absence of any equivalent language in s 52 of the Motor Accidents Act militates against the tentative conclusion reached by the primary judge, noted at [45] above. 49 In Victoria and Queensland there are decisions of each Court of Appeal holding, under wording which was less clear than s 26(3) of the Limitation Act, that time would run in respect of a claim for contribution from the date to which a statutory limitation period was extended by an order of a court. That result was achieved despite the reference to a period fixed "by" an enactment, rather than, as in this State, "by or under" an enactment: see respectively Robins v Downes (1996) 24 MVR 180, (Hayne JA, with whom Callaway JA and Smith AJA agreed) and Workers' Compensation Board of Queensland v Seltsam Pty Ltd [1999] 2 Qd R 679 (McMurdo P, Byrne J and Cullinane J). Hayne JA in Robins (at 189-190) noted the somewhat arbitrary results which might flow from a more restrictive construction. Nevertheless, those decisions do not assist in relation to a provision, such as s 52(4), which does not in terms provide for a court to extend a limitation period. 50 In Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254 this Court considered the question of prejudice suffered by a potential defendant against whom a claim was sought to be made out of time in relation to a work-related injury. The time limit there relevant was to be found in s 151D(2) of the Workers Compensation Act 1987 (NSW). That provision is substantially similar to s 52(4) of the Motor Accidents Act. Foster AJA noted (Meagher JA and Handley JA agreeing) at [41]: "There was no dispute before his Honour, nor before this Court, that the effect of the relevant sections of the Limitation Act 1969 precluded the bringing of any action by Tekno against [a subcontractor]. On the facts of the accident, as alleged by Milat, there would have been a viable cross-claim, available to Tekno." The Court also held: "Whether one regards the ability to bring a cross-claim for contribution or indemnity as an ordinary incident of the ability to have a fair trial, or whether the loss of it is to be regarded simply as an incident of prejudice arising from a plaintiff's failure to sue a defendant within time, the result, in my opinion is the same. The prejudice is obvious and significant." This last ruling is an express conclusion inconsistent with the fourth argument suggested at [46] above and was not challenged in the present proceedings. Accordingly, on authority, the fourth argument must be rejected. 51 In relation to the first argument noted at [43] above, Mr Creevey relied upon the decision of this Court of Wallaby Grip (BAE) Pty Ltd (In Liq) v Eraring Energy [2004] NSWCA 269; (2004) 60 NSWLR 701 for the proposition that s 52(5) of the Motor Accidents Act did not avoid the operation of the Limitation Act in relation to a claim for contribution. That case, however, was concerned with the exclusion of the provisions of the Limitation Act by s 12A(2) of the Dust Diseases Tribunal Act 1989 (NSW). Section 12A(2) read as follows: "(2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions." The term "dust-related condition" was defined in s 3 of that Act by reference to specified diseases and pathological conditions of the lungs and other organs that were attributable to dust. The condition is thus a condition suffered by an injured person. Mason P (with whom Sheller JA and Ipp JA agreed) held that the purpose and effect of this provision was to remove the operation of limitation periods with respect to claims brought by injured persons: see esp at [25]. It did not, therefore, exclude the operation of s 26 of the Limitation Act in relation to contribution claims. 52 The context and terminology of s 52(5) are similar, but by no means identical to s 12A of the Dust Diseases Tribunal Act. Nevertheless, in the absence of argument to contrary, I would accept that a similar construction should be given to s 52(5), so that the result assumed in Tekno Ceramics should be accepted, namely that s 26 of the Limitation Act operates in relation to claims for contribution with respect to a claim for damages covered by s 52 of the Motor Accidents Act. That conclusion is in accordance with the construction adopted by Master Malpass in Bossini v Independent Transport (WA) (1997) 25 MVR 65 at 68. 53 There remains an aspect of Wallaby Grip which has potential significance in the present circumstances. As noted by the President in Wallaby Grip at [19], the removal of any limitation period with respect to the principal cause of action by s 12A of the Dust Diseases Tribunal Act "also took s 26(1)(b) of the Limitation Act out of the equation, because s 12A meant that there was no longer any 'date of the expiration of the limitation period' for the principal cause of action that the plaintiff had against the respondent…". That conclusion raises an issue in relation to the effect of a grant of leave under s 52(4) of the Motor Accidents Act, identified as the third argument at [45] above. As counsel for Mr Creevey submitted in this Court, the grant of leave under s 52(4) "simply renders the limitation inoperative". In other words, once leave has been granted, there is no longer any limitation period "for the principal cause of action", at least in relation to the cause of action the subject matter of the proceedings. In those circumstances, it is clearly arguable that a similar result is achieved, on an ad hoc basis, as that achieved by s 12A of the Dust Diseases Tribunal Act, on a general basis. That construction is at least consistent with the definition in sub-s 26(3) which refers to a limitation period "for the cause of action for the liability in respect of which contribution is sought". 54 If this argument were correct, it does not follow that there is no limitation period in relation to a claim for contribution; rather, the period is that specified in par (a) of s 26(1), being a period of two years from, in the usual case, the date on which judgment is given in the principal action: see s 26(2)(a). That is the position under the Dust Diseases Tribunal Act. 55 This construction has the attraction that it avoids the apparently arbitrary results referred to at [42] above, and by Hayne JA in Robins v Downes (supra) at 189-190. However, because this construction is inconsistent with that assumed in previous cases and because it was not argued in the present proceedings, its correctness must be left for another day. It is therefore necessary to proceed on the basis that the primary judge was in error in his conclusion in relation to s 26(1)(b) and that the provision does apply in the way suggested by the proposed defendant. The next question is, therefore, whether the assumed inability to take proceedings by way of contribution may give rise to a prejudice of the kind which would render a trial between the present parties unfair to Mr Creevey. Was there a viable cross-claim? 56 As noted in the passage from Tekno Ceramics set out above at [50], an assumed loss of a right to cross-claim against a joint tortfeasor will give rise to significant prejudice sufficient to render it unjust to allow a claimant to proceed out of time, but only where the possible claim for contribution has been shown to be viable and realistic, rather than a fanciful or theoretical possibility. 57 As noted above, the residential construction work was being undertaken by a building firm shortly identified as A. V. Jennings. Mr Barrois was a carpenter who subcontracted his services to a business known as Real Service Constructions of whom the principal appears to have been a Mr Clements. In evidence, Mr Barrois said that he "just subcontracted to the same person", being Mr Clements. Mr Clements appears to have worked on a regular basis for A. V. Jennings, although the evidence did not state that A. V. Jennings was the sole source of its work. A separate subcontracting business run by Mr Creevey, and known as Habitat Landscapes, was also subcontracted on this particular job by A. V. Jennings, building pergolas for a display housing centre. Accordingly, as it was argued on behalf of Mr Creevey, there was a real issue as to whether both Mr Clements and Mr Creevey may have owed duties to Mr Barrois of the kind established in relation to subcontractors in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. 58 There was ample evidence before the primary judge to establish that Mr Creevey was in a position of control in relation to the operation in which Mr Barrois was injured, namely the raising of the large hardwood log into a vertical position. The question for present purposes is whether there was sufficient evidence before his Honour to suggest that Mr Clements may also have been in a position to exercise such control as could arguably have rendered him partly liable to Mr Barrois for any damage caused through an unsafe system of work or through the negligent operation of the bobcat. The primary judge made no finding of fact in this respect, but it was not argued that an appropriate assessment of the relevant evidence could not be made by this Court. 59 On any view, the evidence which might indicate a real basis for a cross-claim against Mr Clements was scanty. Mr Creevey himself, who may have been supposed to have some knowledge of the contractual relationships between A. V. Jennings and himself and Mr Clements, and as between himself and Mr Clements, did not give evidence. However, his solicitor swore an affidavit dated 8 April 2004 which was filed in the District Court. Whether it was relied on in the proceedings before the primary judge does not appear from the transcript of the hearing, but counsel for Mr Creevey made reference to it without objection on behalf of Mr Barrois. The relevant paragraph reads as follows: "15 I am informed by [Mr Creevey], and believe, that at the time of the accident: 15.1 A. V. Jennings was the head contractor on the site; 15.2 [Mr Creevey] had been retained by A. V. Jennings; and 15.3 [Mr Barrois] was a contractor to an organisation by the name of Real Service Constructions, which had been engaged to perform work on the site." 60 Paragraph 15.3 is silent as to the relationship between RSC and either Mr Creevey or A. V. Jennings. 61 Counsel for Mr Creevey also sought to draw some support from evidence given by Mr Barrois given in cross-examination. Again, the evidence was somewhat ambivalent, but the critical questions and answers read as follows: "Q. Who was directing you sir, on the day you had your accident in this task of assisting to place the poles in the hole, was it Mr Clements? A. Mr Clements, then Mr Creevey. Q. You worked for Mr Clements, didn't you? A. I worked for Mr Clements, yes. Q. The placing of the poles in the hole was something Mr Clements wanted to achieve for the purposes of the construction work he and you were carrying out, was it not? A. Yes, it was. … Q. Mr Creevey is a landscaper, is he not? A. Yes, he is. Q. And was not directly involved, prior to the actual accident, in the construction of the pergola was he? A. Yes and no. Q. Well, I suggest to you that he only became involved because the poles were too heavy for you, Mr Clements and the other workers to manouvre? A. It was too muddy for us to manouvre them into the holes. Q. So, somebody suggested Mr Creevey might assist with his bobcat? A. Yes, that was Mr Creevey. … Q. Why did you place yourself under the bucket of the bobcat? A. Because Mr Creevey suggested that as he lifted the bobcat up to a certain height that we take the weight of the pole then slip it in from that into the hole. Q. Mr Creevey didn't suggest that you go under the bucket of the bobcat? A. As far as I could see, he did, yes. … Q. I suggest to you that Mr Creevey wasn't giving you orders, Mr Clements was directing what was happening, wasn't he? A. I don't know. I thought Mr Creevey was the one giving orders. Q. Are you sure about that or are you not sure? A. I'm 99% sure." 62 The reasonable inference to be drawn from this evidence is that, whatever may have been the situation at other times and with respect to other aspects of the work, Mr Creevey was the person who took control of the raising of the pole with the bobcat. Nor did Mr Creevey put forward any evidence, direct or indirect, to contradict this conclusion. 63 In broad terms, the same proposition had been put forward by Mr Barrois in a statement dated 15 November 2000, which was annexed to an affidavit of his solicitor dated 6 July 2001. In that statement, Mr Barrois had said: "On the day of the accident Rob Clements, owner of Real Service Constructions and Ian Armstrong travelled up to Newcastle together. We were working for Habitat Landscapes building pergolas for a display housing centre. … At about 10am about seven of us tried lifting the poles into the holes but they were too heavy. John Creevey from Habitat Landscapes was already on the site with his bobcat doing landscape and John suggested we work out a technique of lifting the poles from the bobcat and slipping the poles into the holes." In addition, the Court's attention was drawn to the following paragraphs in Mr Barrois statement, relating to conversations immediately following the accident: "I was in shaken [sic] and in shock. Everyone came around me to make sure I was alright. I sat down for a while and John Creevey and Rob Clements came over and told me not to tell anyone that it was the bobcat that hit me in the head but to say that it was the timber. I recall John was very worried about me at the time and said he was sorry for the accident. … In the meantime my wife had received a call after she had arrived home from Rob Clements asking her not to mention I had been hit in the head with the bobcat." 64 The purpose for taking the Court to this evidence appears to have been to support the proposition that a claim against Mr Clements might have been worth pursuing. One inference which might be drawn from this material is that Mr Creevey and Mr Clements were concerned that Mr Creevey might have some personal liability because his bobcat was neither registered nor insured. However, this is a matter of pure speculation: I am not inclined to draw any relevant inference from this material. 65 In terms of well-established principle, it is a matter for the claimant to establish that any delay would not be likely to render proceedings unfair or cause real prejudice to the proposed defendant. However, the issue for present purposes is not concerned with the immediate effects of delay, whether in terms of presumed or actual prejudice in relation to the conduct of the trial, but such effects as may flow from the inability of the proposed defendant to bring a cross-claim against Mr Clements. Had Mr Barrois considered he had a tenable claim against Mr Clements and that Mr Clements had assets or insurance which made such a claim worth pursing, he could no doubt have joined Mr Clements as a proposed co-defendant. He did not do so: the reason for this omission was not explored in cross-examination. On such evidence as was presented to the trial judge, it may be inferred that he or his advisors did not think he had a tenable claim against Mr Clements. In these circumstances, Mr Creevey had an evidential burden of producing some evidence to demonstrate an arguable case that Mr Clements was a concurrent tortfeasor from whom contribution might reasonably have been sought. Evidence sufficient to discharge that burden was not forthcoming. Accordingly, on the basis of the material before the Court, I am not satisfied that the lost opportunity to bring a cross-claim against Mr Clements involved the loss of anything more than a theoretical possibility. Accordingly, no prejudice to Mr Creevey has been established, in a real and practical sense, flowing from the decision to grant leave to Mr Barrois to commence proceedings out of time. Conclusions 66 In these circumstances, I concurred in the grant of leave to appeal on the basis that the judgment of the primary judge in relation to the availability of a cross-claim was based upon an arguable error of law. Nevertheless, for the reasons set out above, I would dismiss the appeal with costs. ********** 20/10/2005 - Typographical error - Paragraph(s) 51 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.