Andonovski v Barbeques Galore Pty Limited

Consideration 14Barbeques Galore takes the position that Mr Andonovski's notice of motion is simply the same as that determined by Letherbarrow DCJ on 31 August 2012 and again by Truss DCJ on 29 November 2012. When the matter was before Letherbarrow DCJ, Mr Andonovski conceded that the Limitation Act provisions precluded Barbeques Galore's right to file a cross-claim against Park-Tec Engineering. Mr Andonovski now says that such a concession was incorrect and should not have been made. Barbeques Galore contends that even if that is correct, the issue has already been decided and an appeal against its correctness has been dismissed. It says that there has been a judicial determination so that principles of res judicata are a complete answer to the claim: see Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466. Having been heard and determined by Letherbarrow DCJ and later also dismissed by Truss DCJ, I should not entertain a further attempt to relitigate the issues. That is said particularly to be so following the making of consent orders by the Court of Appeal. 15Mr Andonovski has submitted that when the matter came before Letherbarrow DCJ, the only relevant issue was whether Barbeques Galore had lost the opportunity to issue a cross-claim against Park-Tec Engineering. If it had lost that opportunity, it would have amounted to actual prejudice. He submitted that if it were otherwise, and the right to issue a cross-claim had not been lost, no actual prejudice could have been demonstrated and so it would have been appropriate to grant the leave sought by him for the purposes of s 151D. Mr Andonovski contends that the concession that actual prejudice had been demonstrated flowed from an erroneous and unfortunate acceptance by his counsel at the time that s 26(1)(b) of the Limitation Act alone carried the day. However, he now contends that his counsel at the time failed to have regard to the terms of s 74 of that Act, which meant that Barbeques Galore's right to cross-claim remained on foot unaffected by the operation of s 26 and therefore there was no demonstrable prejudice at all. 16Sections 26 and 74 of the Limitation Act provide relevantly as follows: "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) ... 74 Set off etc (1) Where, in an action (in this section called "the principal action"), a claim is made by way of set off, counterclaim or cross action, the claim, for the purposes of this Act: (a) is a separate action, and (b) is, as against a person against whom the claim is made, brought on the only or earlier of such of the following dates as are applicable: (i) the date on which the person becomes a party to the principal action, and (ii) the date on which the person becomes a party to the claim...." 17In the proceedings before Letherbarrow DCJ, neither party referred to the interaction between these two sections. The original statement of claim in these proceedings was filed on 9 March 2007. Park-Tec Engineering and Barbeques Galore were the first and second defendants respectively. By the operation of s 74, Barbeques Galore's right to seek contribution from Park-Tec Engineering was fixed at that time. 18Mr Andonovski's present application again seeks leave pursuant to s 151D. There is no fundamental bar to the bringing of such an application in appropriate circumstances: see Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139. The discretion conferred by the section is not to be narrowly construed. The general question is what is fair and just in the circumstances or what the justice of the case requires: see Itex Graphic Pty Ltd v Elliot [2002] NSWCA 104. No issues going to general discretion were raised before Letherbarrow DCJ, the issue being instead confined to the actual prejudice that Barbeques Galore would suffer if it were sued but its right to cross-claim were barred by statute. 19Mr Andonovski contends that no such impediment exists. The only obstacle confronting him is whether a further application for leave is viable having regard to the competing considerations of res judicata, issue estoppel or simply abuse of process. 20Mr Andonovski contends that if the submission made by both counsel to Letherbarrow DCJ, to the effect that the cross-claim that Barbeques Galore wanted to file was statute barred, was plainly wrong, that provides a substantial reason supporting the exercise of a discretion to extend the time under s 151D as sought. The burden of that submission lies in the notion that Barbeques Galore cannot or should not be entitled to take advantage of a decision in its favour arguably based to some extent at least upon a false premise that it embraced or failed to rectify. 21It seems to me that there is considerable merit in that contention. I have had particular regard to the discussion in Manning at [71] and [122]-[124]. The case has been plagued by a series of unfortunate events and consequent delays. There is no justification for refusing the present application and casting the potential burden of Mr Andonovski's problems on some other prospective defendant when a reasonable explanation for these matters exists and there is no question of principle or prejudice suggesting a different course. I consider that it is in the interests of justice to grant Mr Andonovski the relief that he seeks. 22Having regard to the multiplicity of proceedings and competing notices of motion, however, I will invite the parties to bring in short minutes of order to reflect these reasons and my conclusions. The costs of the proceedings before me should be the costs in the cause.

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