Logan v GBR Helicopters[2021] QDC 91

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 1 June 2011, a helicopter engaged in low level flying for the purpose of spotting Miconia weeds encountered power lines and crashed.  The flight was part of a weed management program carried out by the State of Queensland and Cairns Regional Council.  On the helicopter were at least three passengers engaged in the weeds spotting work and the pilot.  Damage was done to the helicopter.  At least five proceedings are extant in this Court arising out of that accident.
2. [2]
   Three of the proceedings were brought by the passengers who were injured (the Passengers’ Proceedings):

   1. (a)
      The passengers are sufficiently identified as Messrs Logan, Murray and Grant;
   2. (b)
      Mr Logan was an employee of Cairns Regional Council; and 
   3. (c)
      Mr Murray and Mr Grant were employees of the State of Queensland.
3. [3]
   The other two proceedings comprise claims by the pilot, Mr Rose, presumably for damages for personal injury, and by the owner of the helicopter, HSC, presumably for damages for damage to the helicopter.  I say presumably because the details of those two proceedings were necessary to consider in determining the Applications dealt with in these reasons.

The Passengers’ Proceedings

4. [4]
   Each of the Passengers’ Proceedings followed substantially the same procedural history.  That history is relevant:

   1. (a)
      Each Passenger Proceeding was commenced in the Cairns District Court in May 2013, just one week before the second anniversary of the accident; and
   2. (b)
      In each case, the Passengers’ Proceedings sought damages only from GBR, the operator of the helicopter at the time of the accident.  The cause of action relied upon in each case was for damages pursuant to the Civil Aviation (Carriers' Liability) Act 1964 (Qld).
5. [5]
   That Act incorporates the terms of the related CLA, the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the CLA).   Relevantly:

   1. (a)
      Section 28 of the CLA makes a civil aviation carrier strictly liable for personal injury suffered by a passenger;
   2. (b)
      Section 31 limits liability for personal injury to $500K or some other amount specified by regulation (the precise sum is irrelevant to these Applications);
   3. (c)
      Section 34 extinguishes any claim under the Act if an action is not brought within, relevantly here, two years of an accident occurring;
   4. (d)
      Section 36 excludes civil liability for a carrier under any other law for injuries covered by the Act, subject to exceptions in s. 37 designed, it seems, to address by statute the matters dealt with in Unsworth v Commissioner for Railways (1958) 101 CLR 73 (more about that case later).
6. [6]
   Given those provisions, it is not surprising that the passengers pursued a remedy for damages against GBR as a civil aviation carrier under the CLA, simplifying the case by imposing strict liability on an identified party which is required by the CLA to carry insurance for that liability.^[1]
7. [7]
   It is not seemingly contentious that GBR settled the claims against it under the CLA by the passengers in January 2015 (Mr Logan), November 2015 (Mr Murray) and July 2016 (Mr Grant) for sums in the order $400,000, $380,000, and $450,000 respectively.
8. [8]
   Continuing the procedural history of the Passengers’ Proceedings:

   1. (a)
      On 11 September 2013, GBR issued a third party notice in each of the Passengers’ Proceedings against Ergon Energy Corporation Limited (Ergon).  The third party notice sought contribution from Ergon under s. 6(c) Law Reform Act 1995 (Qld) (LRA).  The third party notice alleged a duty of care owed by Ergon to the passengers arising, broadly, out of its responsibility for the location and visibility of the powerlines involved in the accident;
   2. (b)
      On 14 February 2017, following settlement of the claims against GBR, GBR filed an amended third party notice and statement of claim by which it abandoned the claim for contribution under s. 6(c) LRA pursuant to the alleged duty owed by Ergon to the passengers.  In its place, GBR advanced a claim in negligence against Ergon arising out of a duty of care alleged to be owed by Ergon to GBR;  
   3. (c)
      The gravamen of the pleading in each of the Passengers’ Proceedings by GBR is that Ergon owed a duty to take reasonable care in the location and marking of its powerlines to avoid the risk of loss to the operator of a helicopter arising from collision with those powerlines by a helicopter, and consequent injury to passengers for which the operator was liable under the CLA;
   4. (d)
      That duty was said to have been breached by Ergon’s failure, in broad terms, to take reasonable steps sufficiently to locate, mark or ensure visibility of the lines which were involved in the accident so as to avoid the kind of loss alleged.  There might be debates about the technical precision of the pleading of the breaches, but the gravamen of the pleading is clear enough; and
   5. (e)
      Importantly, the loss is articulated as being GBR’s loss (not the passengers’ loss) and as comprising the sum paid by GBR in settlement of the passengers’ claim under the CLA.  The only issue, apart from the quantum, which arises in the pleading of the loss is that the settlement was reasonable in the circumstances.  The onus of proving that matter would likely lie on GBR, not only because it alleges the reasonableness of the loss, but because its claim is for its liability under the Act which requires it to prove as a fact that the amount it claims from Ergon was the “damage sustained by reason of personal injury resulting from the accident” within the meaning of s. 28 CLA.
9. [9]
   At the time of the amended third party notice and statement of claim against Ergon, the passengers were no longer parties to the proceedings.  They had settled their claims against GBR.  Thus, although styled as third party notices in form, in substance the proceedings comprised claims by GBR, as plaintiff, against Ergon, as defendant, to recover pure economic loss arising from Ergon’s breach of a duty of care owed to GBR.  Even without that circumstance existing, the effect of Part 6 of Chapter 6 is to apply the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to third party proceedings as if the party issuing the third party notice was a plaintiff and the third party was a defendant.^[2]  
10. [10]
    On 18 December 2017, Ergon issued its own third party notice and statement of claim directed to the Cairns Regional Council in the Logan matter, and the State of Queensland in the Murray and Grant matters.  Those third party notices and statement of claims were materially in the same form.  They sought damages for negligence equal to any liability Ergon had to GBR for contribution under s. 6 LRA.
11. [11]
    That choice of defendant third party notice was dictated by the cause of action pleaded in each case. The basis of the claims in each case arose from the employment relationship.  In broad terms, the allegation was that Cairns Regional Council and the State respectively should have been aware of the risks of aerial weed spotting activities, and owed a duty of care, springing from their role as employers of the passengers, both to GBR and to Ergon to take reasonable care to plan and execute that kind of work.  The statements of claim are thin on detail, but that is the thrust of it. 
12. [12]
    On 9 March 2020, by consent, the Court made orders for all five proceedings to be heard together.
13. [13]
    That was the state of the pleadings when Ergon retained new solicitors in the Passengers’ Proceedings in June 2020.
14. [14]
    It is to be recalled here that at that point, the accident had occurred nine years before, the proceedings were commenced seven years before, and the settlement of the claims of the passengers had occurred around five years before. 

The other proceedings

15. [15]
    Mr Rose, as pilot, commenced proceedings against each of GBR, as employer, and Ergon, seeking damages for personal injury.  His proceedings allege that GBR and Ergon breached a duty of care to him to take reasonable care to prevent the accident.  HSC, the owner of the helicopter, has commenced proceedings against Ergon, claiming damages for Ergon’s breach of duty owed to HSC to take reasonable care to prevent the incident.  Ergon in turn relies on s. 31 Civil Liability Act 2002 (Qld) to seek to apportion liability, if any, Ergon has to HSC.  It identifies GBR and the State as concurrent wrongdoers in respect of that liability.

Current situation

16. [16]
    There was a mediation which sought to resolve all matters in November last year.  That mediation appears to have failed.  The result is that all proceedings remain unresolved except for the passengers’ claims against GBR.  There is no suggestion any of the matters are close to being ready for trial, much less all of them.

The applications

17. [17]
    Before turning to the specific matters upon which leave is sought, it is convenient to articulate the revised case which Ergon seeks to make against the State and Cairns Regional Council in each of the Passengers’ Proceedings (the revised case). That case is summarised in Ergon’s submissions as follows:^[3]

The notion that the employment relationship between the State or Council and the relevant passenger would, without more, result in the State or Council owing a duty of care to GBR and Ergon is novel. Having retained new solicitors and Counsel, Ergon does not wish to advance the case on this basis. Instead, it wishes to advance the case on the basis of the respective roles and responsibilities of the State and the Council regarding the weed spotting operation, which was undertaken as part of a collaborative government weed eradication programme, and during which the crash occurred. This accords with intermediate appellate court authority to the effect that those undertaking such aerial surveys will owe a duty of care to both passengers and the operator of the aircraft to exercise reasonable care in their planning and operation.  Thus Ergon wishes to allege in each proceeding that each of the State and the Council owed a duty of care to GBR (but not to Ergon) and breached that duty. Once the true basis for the legal responsibility of the State and the Council to GBR is appreciated, there is no reason to distinguish between the different proceedings. In principle, if they are liable to GBR in one passenger’s proceeding, they will be equally liable in the others. And, if Ergon has any liability to GBR, Ergon will be entitled to contribution or indemnity from the State and the Council.

18. [18]
    Having articulated the case which Ergon seeks to run against the State and the Cairns Regional Council, it is now finally time to consider the nature of the Applications before the Court in each proceeding.
19. [19]
    Taking the Logan proceedings as an example, the Application seeks several orders.  The main contest is over paragraph 1, which seeks leave pursuant to Rule 194 UCPR to issue a third party notice to the State of Queensland in a form articulating the claim for relief against the State, based on its alleged duty to GBR, arising from its role and responsibility for the weed eradication program.  Related to that relief is paragraph 2, which seeks an order under Rule 193(2)(b), providing for the inclusion of the draft statement of claim which is intended to plead the revised case I have outlined.  
20. [20]
    I make the following comments about that part of the Application.
21. [21]
    First, Rule 194 UCPR relevantly provides that a third party notice must be filed within 28 days after the time limited for filing of a defence by the defendant who makes the third party claim.  Because the approach taken by Ergon prior to the appointment of its new solicitors in June 2020 to its third party proceedings focussed on the employer of the relevant passenger, no third party notice has ever been issued in the Logan proceedings against the State of Queensland because Mr Logan was employed by Cairns Regional Council.  (This observation applies mutatis mutandis to Cairns Regional Council in the other two Passengers’ Proceedings.)
22. [22]
    Strictly speaking, the time for bringing a third party claim against the State in the Logan proceedings, therefore, passed some time in 2013.  While I suspect that the 28 day period for filing a third party notice without leave is honoured in the breach, it is a bit unusual that leave be sought over seven years since the time under the Rules expired.
23. [23]
    However, of itself, that is not decisive.  Whether it is seven years or seven days, strictly speaking, leave is required.  That leave is necessary to permit the third party notice to be filed in the proceedings. It must be kept firmly in mind, however, that that is all that Ergon is seeking.  Ergon only has the burden of persuading me in each case that it should be able to litigate the revised case it now seeks to bring against the State in these proceedings, not that the revised case is certain or even likely to succeed.
24. [24]
    Second, the same position exists in respect of the Cairns Regional Council in the other two proceedings.  There are existing third party notices against the State because it was the employer of the other two passengers.  Ergon therefore requires equivalent leave to issue a third party notice to Cairns Regional Council to raise its revised case against Cairns Regional Council in the Murray and Grant proceedings.
25. [25]
    Third, the Application in the Logan proceedings also seeks, by paragraph 3, leave under Rule 375 UCPR to amend the existing third party notice against the Council, and to serve an amended statement of claim on the Council and the State of Queensland.  It is to be noted that the revised case against the State and against Cairns Regional Council is proposed to be pleaded in a single statement of claim in each proceeding.
26. [26]
    The substantive amendment to the existing third party notice against the Council in the Logan proceeding sought, however, is such as only to omit that part of the third party notice which sought damages for negligence for a breach of a duty of care owed to Ergon by the Council. As can be seen from the proposed amended third party notice against the Council, the terms of the existing third party notice are said by Ergon to be sufficient to cover the relief sought in the revised claim and I did not understand this to be disputed by the respondents.  This is because a claim for contribution based on the previous pleading is already included in the third party notices, and ultimately that is the source of the cause of action in the revised claim by Ergon against the State and the Cairns Regional Council.
27. [27]
    It is therefore not necessary that leave be given for this amendment for the revised case against the Council to fall within the scope of the existing third party notice against the Council. 
28. [28]
    The same applies mutatis mutandis for the equivalent relief sought in respect of the extant third party notice against the State in the Murray and Grant proceedings.
29. [29]
    Accordingly, the only barrier to pleading the revised case against the existing third party in each Passengers’ Proceeding would be if there was a requirement for leave to amend the existing third party statement of claim.  However, despite the time that has passed, no such leave requirement was identified by the respondents.  I can see none.  Accordingly, it is open to Ergon to amend its extant statement of claim in the third party proceedings against the Council to plead its revised case against the Council in the Logan proceedings.
30. [30]
    The same applies mutatis mutandis in respect of the extant statement of claim in the third party notice against the State in the Murray and Grant proceedings.
31. [31]
    Ergon relies on this practical consideration as one which supports the grant of leave.  Of course, any amendment made without leave may be disallowed on application by another party under Rule 379 UCPR. No such application is foreshadowed yet.

Relevant principles 

32. [32]
    The Rules confer a discretion on the Court to permit the issue of a third party notice outside the time specified in the Rules.  No considerations are identified in Rule 194 informing the exercise of the discretion.
33. [33]
    In MGM Containers P/L v Wockner [2006] QCA 502, Williams JA, with whom Chesterman J and Keane JA agreed, explained:

[27] The applications called into question two conflicting principles. The first is that there are good reasons why a third party should be joined in an action where a defendant has an arguable case for contribution or indemnity from the third party against a plaintiff’s claim. Such a joinder ensures finality in litigation, avoids multiple proceedings with associated extra cost, and obviates the possibility that there might be different decisions given on the same issues if tried by different courts. The second principle is that a plaintiff should be allowed to prosecute its action and obtain judgment without being delayed or inconvenienced by the defendant’s endeavours to offset its liability. See Phonesivorabouth v Tops Services Pty Ltd (1992) 106 FLR 471.

34. [34]
    Various factors might properly inform the application of those broad principles in a given case.  Ergon identifies the following relevant considerations, without suggesting they are exhaustive:

    1. (a)
       The extent of delay and the explanation for it;
    2. (b)
       Whether the issuing of the third party notice would unduly complicate the hearing of the proceedings, having regard to the complexitity of the issues it raises and its impact on the length and cost of the proceeding;
    3. (c)
       The extent of overlap in the issues in the existing proceedings and the third party notice;
    4. (d)
       Whether the third party notice would unduly delay finalisation of the proceeding;
    5. (e)
       Whether Ergon could bring separate proceedings in respect of the claims in the third party notice for which leave is sought.
35. [35]
    Authority supports these considerations as relevant: see MGM Containers P/L v Wockner and McKenzie J’s decision in Just GI Pty Ltd & Ors v Nomoheith Pty Ltd [2000] QSC 163 at [11] to [14] (not cavilled with on appeal).
36. [36]
    These kinds of summaries of factors relevant to the exercise of a judicial discretion are not exhaustive.  The exercise of the discretion can be informed by any matter relevant to the discretion, such relevance to be determined by the statutory context and nature of the discretion conferred, and the factual context in which it falls to be considered.  One matter of statutory context is, of course, Rule 5(1) and (2) UCPR, though those statements of general principle must be applied in the particular context in which they fall to be applied.
37. [37]
    Another matter which arises in this case is whether the revised case is bound to fail.  In particular, the respondents contend that the cause of action which Ergon seeks to raise is statute-barred. The implied contention flowing from that proposition is that leave should be refused because it would be futile to permit the case advanced by Ergon to proceed.  This was the principal area of resistance to the Applications for leave.  I will deal with it after dealing with the other factors which require attention.

Effect of the leave on extant proceedings

38. [38]
    Many of the cases dealing with leave to issue a third party notice out of time are primarily concerned with the factors which can broadly be grouped under the rubric of the effect of the leave on the existing proceedings, and they arise usually at the behest of the plaintiff who is concerned to get their matter to trial without being delayed and exposed to the costs of the resolution of the dispute between third parties.  This is reflected in the second principle identified by Williams JA in MGM Containers P/L v Wockner.
39. [39]
    Ergon submits that it is open to Ergon to run its revised case without leave to issue the third party notice against the State and Cairns Regional Council in the matters where those entities are already third parties by amending the third party statement of claim.  As I have explained, the amendments for which leave is sought for the extant third party notice are not concerned with, or necessary for, the pleading of the revised case against the extant third party in each of the Passengers’ Proceedings.  Further, as I have observed already, it is open to Ergon to plead the revised case without leave.
40. [40]
    The State and Cairns Regional Council did not contend to the contrary. No application to disallow any such amendments has been foreshadowed by the State or Cairns Regional Council, though the time for doing so has not yet arrived.  But in any event, the only basis which it would seem likely that they would raise would be the limitations issue.
41. [41]
    GBR would be the other party which might seek to disallow the amendments on the basis that it would delay its course to trial, GBR now being the effective plaintiff in the Passengers’ Proceedings.  However, it does not oppose the Applications and clearly is sanguine about the impact of the revised case on the progress of its litigation.
42. [42]
    Once it is accepted that it is open to Ergon to plead the revised case, arguments springing from concerns about increased complexity and delay in the proceedings lose much of their force.  A fortiori where no other party to the Passengers’ Proceedings complains on that ground, particularly the effective plaintiff.
43. [43]
    In any event, such arguments would be of limited force in this case.  These proceedings already are complex.  The trial of the five proceedings together will take considerable time and will involve the resolution of all issues in the current pleadings at the same time.  The dice was cast on that situation when all parties consented to the matters being heard together.  This is not a case where a small case for the plaintiff is turned into a large case for the defendants inter se, to the prejudice of the plaintiff.  At worst, it is a large and complex case which will be made somewhat larger by the revised case.
44. [44]
    Further, although the revised case will involve new issues, many of those issues will arise in any event in the broader proceedings as currently pleaded.  For example, it is to be noted that the foundational matter for the revised case, which was the place of the weed eradication program in the identification of duties of the State and Cairns Regional Council, was raised to some degree in the current third party notice and statements of claim by Ergon against the Council (Logan) and the State (Murray and Grant), including the duties associated with embarking on such a program.  So much can be seen from paragraphs [5] to [13] and [18b] of each statement of claim.  While the issues raised in the revised case are somewhat different and the issues raised more extensive, some of the factual issues are to a substantial degree already raised on the extant pleadings.
45. [45]
    All these considerations make this case quite different from the usual contested application to issue a third party notice out of time.  Taken together, they at the least neutralise the broad issue of the risk of deleterious impacts on the path to trial as a factor in the discretion.
46. [46]
    There is one other matter briefly to address.  There were, in substance, only two parties in the Rose and HSC proceedings which were not before the Court, either directly or through common solicitors.  They were Mr Rose and GBR (as a party to the Rose proceedings).  While the Applications were filed only in the Passengers’ Proceedings, the order for all the proceedings to be heard together means that a grant of leave will impact on the path to trial of those proceedings as well.
47. [47]
    Mr Rose is represented by Lehmann Featherstone solicitors in Cairns.  In the Rose proceedings, GBR is represented by solicitors acting for Workcover, BT Lawyers.  Exhibit 1 in the Applications reveals that both parties were served with the applications and supporting material and were given notice of the hearing date.  They have not appeared nor sought to be heard on the Applications.  I infer they share GBR’s lack of concern about the impact of leave on their proceedings. 

Delay

48. [48]
    The delay in bringing the third party claims the subject of the Applications has been very long.  As I explained above, the time specified under the Rules passed many years ago.  However, it is not necessary that a good explanation for delay be given as a condition for leave in every case, nor is it the case that a long delay is of itself disentitling.  As Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 itself makes clear, the explanation for delay is primarily important so that the Court can weigh it against the effects of the delay and other discretionary considerations.^[4]
49. [49]
    Here, an explanation is given for the delay.  It is put quite frankly that the revised case has been developed because Ergon’s new solicitors and counsel consider it to have much better prospects than the existing third party claims by Ergon, based as they are on the employment relationship.  While I have not analysed each claim closely, it is evident to me that there is at least a good argument that Ergon is correct in its assessment.  That is particularly so, given the authority for the specific duty underpinning the revised case referred to by Ergon.^[5]
50. [50]
    There is no question, in any event, that the revised case is put forward bona fide and the reason is accepted.  The delay and its explanation must then be balanced against other consdierations.
51. [51]
    The considerations relevant to the impact on the proceedings have already been dealt with.  They do not tell against granting leave.  The only other point raised by any of the respondents to the Applications relates to prejudice from the length of the delay.  To that I now turn.

Prejudice from delay

52. [52]
    Regardless of whether limitation periods have expired or not, the Court might in some cases refuse leave to introduce a new case, where to do so would cause sufficient relevant prejudice to the party in the litigation who has to answer it.  However, the basis for preventing a case to be litigated, if it is not statute-barred, must be carefully considered in each case. Without seeking to be comprehensive, outside the arenas of leave to proceed and want of prosecution, one is probably left with an application for stay or dismissal based on abuse of process.  I do not need to trouble myself too much in further examination of the place of this consideration in these Applications.
53. [53]
    Only the solicitor for Cairns Regional Council in the Logan matter raised this issue as a matter telling against the grant of leave.  He did not point to any specific prejudice which arose from the revised case and no evidence was led to sustain any such specific prejudice.  In that situation, he was left with the inchoate kind of prejudice which flows from long delays, difficult to identify but real nonetheless, recognised in civil proceedings in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, and in crime, in Longman v The Queen (1989) 168 CLR 79.
54. [54]
    While some such inchoate prejudice might exist, given that these events reach back to 2010, I do not consider it sufficient to tell materially against granting leave.  The revised case is largely concerned with actions by the State and the Cairns Regional Council in respect of a program for weed eradication.  It is highly likely that the key elements of the program were recorded in writing and those elements would, in any event, have been relevant to a degree in third party notice proceedings currently advanced against the State and the Cairns Regional Council.

Joinder otherwise convenient

55. [55]
    There is no doubt that the facilitating of the hearing of the revised case is otherwise in the interests of justice (subject to the limitations point).  Ergon’s revised case is clearly arguable, and in the context of these five overlapping proceedings to be heard together, giving leave ensures “finality in litigation, avoids multiple proceedings with associated extra cost, and obviates the possibility that there might be different decisions given on the same issues if tried by different courts.” 

The limitations point

56. [56]
    At long last the parties might say, I reach the limitations point. 
57. [57]
    The respondents contend that Ergon’s claims against them which it seeks first to advance by the third party notices are statute-barred.  The starting point for understanding that contention is to recognise that although the revised case alleges a duty owed by the respondents to GBR, the source of Ergon’s claim against the respondents is in fact s. 6(c) LRA.
58. [58]
    That section provides:

6  Proceedings against, and contribution between, joint and several tortfeasors

Where damage is suffered by any person as a result of a tort (whether a crime or not) the following apply—

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.

59. [59]
    The claim against the respondents for contribution under that subsection has been long recognised as a sui generis right.  It is not a claim for the damages sought against Ergon.^[6]  The distinct nature of the cause of action created by that section is recognised in the Limitation of Actions Act 1974 (Qld) (LAA).  It provides:

40 Contribution between tortfeasors

(1) An action for contribution under the Law Reform Act 1995, section 6(c) shall not be brought after the expiration of the first of the following periods to expire—

(a) a period of limitation of 2 years running from the date on which the right of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims;

(b) a period of limitation of 4 years running from the date of the expiration of the period of limitation for the principal action.

(2) For the purposes of subsection (1)(a), the date on which a right of action for contribution first accrues is—

(a) if the plaintiff in the action for contribution or a person through whom the plaintiff claims is liable in respect of the damage for which contribution is claimed by judgment in a civil action or by arbitral award—the date on which the judgment is given or the award made whether or not in the case of a judgment the judgment is afterwards varied as to quantum of damages; or

(b) if, in a case to which paragraph (a) does not apply, the plaintiff in the action for contribution or a person through whom the plaintiff claims makes an agreement with a person having a right of action for the damage for which the right of action for contribution arises, which agreement fixes, as between the parties to the agreement, the amount of the liability in respect of that damage of the plaintiff in the action for contribution or a person through whom the plaintiff claims—the date on which the agreement is made.

(3) In subsection (1)(b)—

the period of limitation for the principal action means the period of limitation prescribed by this Act or by any other enactment (including an enactment repealed by this Act) for the action for the liability in respect of which contribution is sought.

(4) Nothing in this section affects the construction of the Law Reform Act 1995, section 6.

60. [60]
    The applicant and the respondents agree that the circumstances in s. 40(1)(a) have not yet arisen.  That appears to be correct.  Sections 40(1)(a) and 40(2) are concerned with the situation where the party seeking contribution does so outside the context of concurrent litigation of the claim for which contribution is sought and the claim for contribution.  So, applied to the circumstances of these Applications, it appears to me that:

    1. (a)
       Section 40(2)(a) would apply where GBR had obtained judgment against Ergon already.  In that case, Ergon would have two years to bring its contribution claims against the respondents; and
    2. (b)
       Section 40(2)(b) would apply where Ergon and GBR had reached a settlement of GBR’s claims against Ergon.  Again in that case, Ergon would have two years to bring its contribution claims against the respondents.
61. [61]
    Neither scenario applies here.  It is relevant to observe, however, that the focus of that limb of the limitation provision is on the claim by GBR against Ergon, not some anterior claim which might lead to the GBR claim. 
62. [62]
    The respondents contend that Ergon’s claims against them based on the revised case are statute-barred because the circumstances in s. 40(1)(b) have arisen.  Their contention is that, on its proper construction, the principal action in relation to Ergon’s claim for contribution from the State and Cairns Regional Council in the circumstances of the Passengers’ Proceedings is the claim for damages by the passenger plaintiffs which gave rise to GBR’s liability. They further contend that the period of limitation, if that is the principal action, is three years, because that principal action (being the Passengers’ Proceedings against GBR) was an action in respect of personal injuries within the meaning of s. 10(1)(a) and 11 LAA.  If that is correct, the respondents contend that it is over four years since that limitation period expired and accordingly the Ergon claim is statute-barred.
63. [63]
    Section 10(1)(a) LAA relevantly provides:

10 Actions of contract and tort and certain other actions

1. (1)
   The following actions shall not be brought after the expiration of 6 years from the dat eon which the cause of action arose:

1. (a)
   …an action founded on …tort where the damages claimed by the plaintiff do not consist of or include damage in respect of personal injury to any person…

64. [64]
    Alternatively, it was contended that even allowing for the change in GBR’s claim against Ergon from one seeking contribution in respect of the passengers’ claims to one seeking damages for a duty of care owed to GBR, the principal action remained the claim by the passenger plaintiffs.  This was based on the contention that when reference is made to s. 10(1)(a) to identify the limitation period applicable to the principal action, the reference to “the plaintiff” must be to the original plaintiff in the proceedings in which contribution is sought, regardless of how the contribution claims might develop in those proceedings over time as between parties remote to the cause of action advanced by the person who brings the proceedings initially.
65. [65]
    Ergon for its part contends that, in the context of these proceedings as currently constituted, the principal action is the action by GBR first advanced by the amendments in February 2017 by which GBR sought damages from Ergon, pursuant to a duty of care owed by Ergon to GBR to take reasonable steps to avoid its exposure to liability under CLA.  Ergon contends that that is the principal action because that action is the “action for the liability in respect of which contribution is sought” as articulated in the definition in s. 40(3) LAA.
66. [66]
    In my respectful view, Ergon’s contention is correct.  I hold that view for the following reasons.
67. [67]
    First, it is not to the point that prior to 2017, GBR’s claim against Ergon was itself for contribution.  Limitations provisions are of their nature concerned with causes of action.  The cause of action advanced is the connecting factor to a limitation provision.  Where the cause of action changes, so can the applicable limitation provision.
68. [68]
    Here, it is irrelevant to the application of the limitation provisions that, at some earlier time, some different case was advanced by GBR against Ergon.  In February 2017, GBR first advanced its claim based on a duty of care owed directly to it by Ergon.  It is in respect of that cause of action which Ergon seeks contribution from the State and Cairns Regional Council respectively.  That is the context in which the analysis of limitations provisions must occur.
69. [69]
    Second, I cannot see how the principal action for the purposes of s. 40(1)(b), read with the definition of “the period of limitation for the principal action”, can lead to the conclusion that the passengers’ claims are the principal action.
70. [70]
    Although the definition is not expressly a definition of the words “principal action”, the definition identifies, in my view, what was contemplated by Parliament as being the principal action by the process explaining how to determine what the limitation period is for the principal action.
71. [71]
    The key words, as I read the definition, are that the principal action is “the action for the liability in respect of which contribution is sought”.  This definition must be applied in the current procedural context:

    1. (a)
       First, it is Ergon seeking contribution from the respondents; and
    2. (b)
       Second, Ergon is seeking contribution from them for the liability it has for the action against it by GBR to recover its loss paid to the passengers under the CLA.
72. [72]
    The question posed by the definition then is, what is the period of limitation for the action by GBR against Ergon for loss arising from Ergon’s breach of duty of care allegedly owed to GBR, and when did that period expire?  To answer that question, one must characterise GBR’s cause of action for the purposes of the limitations provision, not the passengers’ cause of action against GBR.
73. [73]
    One is then taken to s. 10(1)(a) and 11 LAA, given GBR’s claim is an action founded on tort.  I emphasise again that one inquires as to the limitations provisions in those sections from the perspective of GBR’s cause of action. It is central to the respondents’ arguments that that inquiry is not to be undertaken by reference to GBR’s cause of action, but by reference to the passengers’ cause of action, because they are the original and only “plaintiff” for the purposes of those sections of the LAA.  However, that is to ignore the clear meaning of the provisions of s. 40 LAA.  And it must be kept in mind that the respondents’ construction has to be functional in all circumstances where s. 40 falls to be applied. For example, s. 10(1)(a) is the only section where there is a plaintiff mentioned.  How would the approach advocated by the respondents function in similar situations where there is no mention of the plaintiff in the limitations provisions applicable to the principal action as defined?  I do not think it sensibly can.

The alternative argument 

74. [74]
    The respondents developed an alternative argument.  As I understood it during the hearing, the contention was that even if the principal action on the proper construction of the Act was the claim by GBR against Ergon as formulated in February 2017, that cause of action remained one which was in respect of personal injury for the purposes of ss. 10(1)(a) and 11 LAA.  There are two issues to be resolved in relation to this argument:

    1. (a)
       The first is whether GBR’s cause of action against Ergon, as now advanced, is one where the damages claimed consist of damages in respect of personal injury to any person for the purposes of s. 10(1)(a) and s. 11 LAA; and
    2. (b)
       The second is whether, if so, GBR’s cause of action accrued at a time such that it is now more than four years since the expiry of the limitation period applicable to that cause of action.
75. [75]
    It is convenient to deal with the second issue first.  If GBR’s cause of action pleaded in February 2017 accrued at any time after April 2014, it is irrelevant whether it is properly characterised as being in respect of personal injury or not because the three year limitation period for that cause of action, taken with the four year period in s. 40(1)(b) LAA, will give a period of seven years within which to bring the proceedings, which (starting from April 2014) period has not yet expired.
76. [76]
    So, it will only be if GBR’s cause of action accrued by April 2014 that the alternative contention will make any difference.  In the circumstances of these proceedings, there are at least three potential dates that GBR’s cause of action against Ergon could have accrued: 

    1. (a)
       The first is the date of the accident: 1 June 2011; 
    2. (b)
       The second is the commencement of proceedings against GBR: May 2013; and
    3. (c)
       The third is the dates on which GBR settled its claims against each of the passengers, all of which are after April 2014.
77. [77]
    It is far from obvious which of these dates is the date at which GBR first suffered damage in respect of the claim against Ergon articulated in its 2017 amendments to its third party claims against Ergon.  Potentially difficult issues arise as to whether, prior to the settlements with the passengers, there was only potential loss and not actual loss.  The former seems reasonably arguable by analogy with the circumstances in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.  Further, this issue was not the subject of detailed submissions from the respondents.   It is far from clear at this stage when the cause of action by GBR against Ergon arose.  In that circumstance, the possibility of a limitations defence is not a sufficient reason to refuse leave.
78. [78]
    Turning to the first issue, similar considerations stand in the way of a summary determination that Ergon’s revised claims are statute-barred.  The issue to be resolved is whether GBR’s claim for damages against Ergon, measured by the loss it suffered in paying out for personal injury pursuant to its strict liability under the CLA, is a claim for damages which consist of damages “in respect of personal injury”.
79. [79]
    The words “in respect of” connote a relationship between two matters and can have a wide meaning.  However, the scope and nature of the relationship they contemplate must be derived from the context in which they are used.  The approach to this language was helpfully summarised by Muir JA in Fraser v The Irish Restaurant and Bar Company Pty Ltd [2008] QCA 270 as follows (footnotes omitted):

[40] The expression "in connection with" is capable of having a wide meaning but in common with expressions such as "relating to" and "in respect of" its meaning must be derived from the context in which it was used. The following passages from the reasons in Workers' Compensation Board (Qld) v Technical Products Pty Ltd illustrate the point:

“It has been said, perhaps somewhat extravagantly, that the words ‘in respect of’ ‘have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which the words refer’: Trustees Executors & Agency Co. Ltd. v. Reilly [[1941] VLR 110 at 111], cited in State Government Insurance Office (Q.) v. Crittenden [(1966) 117 CLR 412 at 416]. The words were cited again by Gibbs J. in McDowell v Baker [(1979) 144 CLR 413 at 419], and by Mason J. in State Government Insurance Office (Q.) v. Rees [(1979) 144 CLR 549 at 561], when his Honour added the comment: 'But, as with other words and expressions, the meaning to be ascribed to ‘in respect of' depends very much on the context in which it is found’. ... Undoubtedly the words ‘in respect of’ have a wide meaning, although it is going somewhat too far to say, as did Mann C.J. in Trustees Executors & Agency Co. Ltd. v. Reilly [[1941] V.R 110 at 111], that ‘they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer’. The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends.”

[41] The following observations of Davies J in Hatfield v Health Insurance Commission, although directed to a question of statutory construction, are also of relevance:

“Expressions such as “relating to”, “in relation to”, “in connection with” and “in respect of” are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute… The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.”

[42] After quoting the passage from Hatfield, Spigelman CJ, with whose reasons the other members of the Court agreed, said in R v Orcher:

“[32] Finally, the Full Federal Court returned to this matter in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 where the Court said: ‘The words ‘in connection with’ have been accepted as capable of describing a spectrum of relationships between things, one of which is bound up with or involved in another: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288. However, as was pointed out by Sackville J in Taciak v Commission of Australian Federal Police (1995) 59 FCR 285 at 295, the question that remains in a particular case is what kind of relationship will suffice to establish the connection contemplated by the statute. That requires a ‘value judgment about the range of the statute’: see Pozzolanic (at 289).”

80. [80]
    The respondents contended that GBR’s claim against Ergon as articulated in the revised case was in respect of personal injury because the loss claimed by GBR arises out of payments made to settle proceedings by the passengers for damages for personal injury.  This might be taken further to argue that, although the damage to GBR claimed from Ergon is not for personal injury, it is in respect of personal injury because it is a loss suffered by GBR in paying damages for personal injury to others under the CLA.
81. [81]
    Mr Pomerenke QC, who appeared with Mr Lumb for Ergon, cavilled with this proposition.  He submitted that a claim for damages, which was not for damages for personal injury, would only be a claim for damages in respect of personal injury where the plaintiff had some form of community of interest with the person who suffered the injury.  This is reflected in the acceptance that Lord Campbell’s Act actions and loss of consortium claims are accepted as falling within the exclusion in the subsection.
82. [82]
    The former might be thought to fall expressly within the exclusion in s. 10(1)(a), assuming that one accepts that that subsection must be read consistently with s. 11(1).  Section 11(1) provides:

(1) Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose.

[emphasis added]

83. [83]
    The express reference to damages resulting from the death of any person was relied upon in Unsworth to sustain the conclusion that a Lord Campbell’s Act claim was an “action to recover damages…in respect of personal injury” for the purposes of s. 121 Railways Act 1955 (Qld).
84. [84]
    Mr Pomerenke also relied on Taylor J’s reasoning in Unsworth at 91, applied in the context of the then current version of s. 6(c) LRA, that a claim for contribution under that section in respect of damages paid to a widow in a Lord Campbell’s Act claim was not an action to recover damages in respect of personal injury because the source of the liability in a personal injury claim was just an ingredient in the separate cause of action created by the contribution statute.  He relied on this passage:

The next question is whether the appellant's claim against the commissioner was “an action to recover damages in respect of personal injury”. Clearly it was not. The cause of action given by s. 5 (3) of The Law Reform Act, is of an entirely different character; it is, in effect a claim for a partial indemnity, and, although one of the ingredients which must be established is that the person against whom the claim is made is a person “who is, or would if sued have been, liable in respect of the same damage”, it is in no sense an action to recover damages in respect of personal injury. This view is inherent in such cases as Tuckwood v. Rotherham Corporation; George Wimpey and Co. Ltd. v. British Overseas Airways Corporation and Nickels v. Parks. In support of the contrary of this proposition some reliance was placed upon observations made in Hall v. Bonnett, but the reasons given by the Full Court of South Australia for the answer to the second question raised by the case stated are directly opposed to the respondent's submission on this point..

85. [85]
    For the purposes of these Applications, which, as I have said, are interlocutory in nature, I am not satisfied that Ergon’s revised claims are statute-barred on the alternative argument advanced by the respondents.
86. [86]
    First, I agree that Taylor J’s reasoning applies by analogy to GBR’s claim against Ergon.  GBR’s claim is not for damages for personal injury.  The damages for personal injury to the passengers in each proceeding were just “one of the ingredients which must be established” to make good the claim pleaded against Ergon for breach of duty of care.
87. [87]
    Second, that conclusion applies a fortiori when one keeps in mind that the claim advanced against Ergon is fundamentally to take reasonable steps to prevent GBR being exposed to liability under the CLA.  Although the case pleaded relates to liability arising from personal injury, such a cause of action could equally arise in respect of the strict liability for damage to property provided for in that Act.  It would seem odd if essentially the same cause of action had different limitation periods depending on how the heads of potential damage sought to be recovered arose or were characterised. 
88. [88]
    Third, the premise of the respondents’ argument is that it is possible to determine the cause of action of GBR is “in respect of” personal injury soley from the pleaded facts, which identify that the loss arises as a result of a payment under the CLA to a person claiming damages for personal injury under that Act.  However, this is an area where subtle factual considerations might intrude.  Determining whether the GBR cause of action consists of damages which are damages in respect of personal injury might well be affected by the circumstances and nature of the calculation of GBR’s loss under the CLA.  For example, issues of policy which underpin the shorter time for personal injury claims in ss 10(1)(a) and 11 LAA might not apply, or apply with the same force, in respect of GBR’s claim against Ergon, depending on how that claim is required to be proved.^[7]
89. [89]
    The application of the connection represented by the words “in respect of” involves application of the statutory phrase to particular facts.  The High Court urges circumspection on trial judges in summarily determining limitations defences.  In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, the High Court relevantly observed at 533:

We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases.

90. [90]
    While it might be thought unlikely that the circumstances of the determination of the payment under the Act would give rise to factual issues which might inform the application of the test, I know too little about those facts to be sufficiently confident that is so.
91. [91]
    In conclusion, I think the better view is that GBR’s claim against Ergon is not one in respect of personal injury, and in any event, it is not appropriate finally to determine that matter at this stage, much less to determine it in a manner which would be tantamount to deciding that Ergon had no real prospect of resisting the limitations defence if raised by the respondents.

Absurdity contention

92. [92]
    Mr Harding for the Cairns Regional Council also referred to the prospect that a series of claims might continue to be made far into the future if Ergon’s construction was correct.  I was unpersuaded that that was a factor favouring the specific construction arguments advanced.  It involved focussing on just one of numerous circumstances where s. 40 fell to be applied.  Further, the practical prospect of the endless chain of third party proceedings he contemplated seemed unlikely to occur very often in practice in any event.

Conclusion

93. [93]
    For these reasons, I consider that Ergon has established that the discretion conferred by Rule 194(1) should be exercised in its favour in each of the Passengers’ Proceedings and that the other orders sought in the Applications are appropriately made.