15 Mr Wilson's claim against the solicitor, like the present claim, pleaded causes of action in contract and in tort arising from the solicitor's failure to commence proceedings within time. (There was also a claim arising from the solicitor's conduct of an unsuccessful application for leave under s52(4), but that is not relevant for present purposes.) Giles JA (with whom Santow JA and Foster AJA agreed) noted at [20] that the claim in contract was statute barred because that cause of action accrued immediately upon the breach, that is, upon the expiry of the period prescribed by the Motor Accidents Act.
16 As to the claim in tort, Giles JA upheld the finding of the primary judge that it was also statute barred because time commenced to run from the expiry of the prescribed period. Giles JA said that Mr Wilson's cause of action was a valuable asset, the value of which was diminished once the solicitor had failed to commence proceedings by 1 July 1992. It was diminished because it was likely that the defendant in the claim for personal injury would rely upon the time bar, that Mr Wilson would have to apply for leave under s52(4) and that he might not obtain it. His Honour rejected an argument that he did not suffer damage until the defendant pleaded the time bar and he failed in an application for leave.
17 At [28] Giles JA found, as a matter of fact, that there had been a diminution in the value of Mr Wilson's asset and that "it was more than negligible". His Honour continued at [29]:
This was more than a risk or prospect of damage, or contingent damage. It was actual damage, albeit that by a successful application for leave the appellant could regain his pre-1 July 1992 position. Damage which is suffered but which might or might not be alleviated if some further event occurs is distinct from a risk or prospect of damage which might or might not be suffered or damage which will be suffered only if a contingency is fulfilled (as in cases such as Wardley Australia Ltd v The State of Western Australia ).
18 Mr Davies and Mr Reynolds submitted that the present case is indistinguishable from Wilson v Rigg. Here also, the breach of duty alleged is the defendants' failure to lodge the application to the Industrial Relations Commission within the time limited by legislation which, nevertheless, conferred upon the Commission a discretion to extend that time. As Mr Davies put it in oral argument, upon the expiry of the limited time "there was a diminution in the value of the asset" which the plaintiff had, that is, "his right to approach the Commission for reinstatement and/or compensation".
19 At first blush, the argument appears to be consistent with the principles expounded in Wilson v Rigg and with the general approach expressed by Ipp AJA in Cheney & Wilson v Duncan [2001] NSWCA 197 at [28], that is, where a client's cause of action becomes statute barred through the negligence of solicitors, "the client's right of action in negligence against those solicitors accrues at the time the action becomes statute barred, and damages are to be assessed at that time …". However, as Giles JA pointed out in Wilson v Rigg, when damage is first suffered in any particular case is a question of fact. The general approach is founded upon the typical case in which it may be assumed that the defendant to the statute barred claim would have pleaded the bar in defence and, if there were provision for an application for an extension of time, that application could not be assured of success.
20 However, as Mr Evans pointed out, the present case is not of that kind. In my view, the defendants' submission does not withstand close scrutiny. The time limit for the application to the Industrial Relations Commission which the applicant sought to make was expressed in weeks, not years. As I have said, the legislation conferred upon the Commission a discretion to accept the application out of time if it considered that it would not be unfair to do so. If the Commission had been asked to take that course shortly after the expiry of the 21 day period, it may have been clear that Qantas was not prejudiced and that no unfairness could have been occasioned. In particular, if the defendants at that early stage had acknowledged to the Commission that it was through their default that the application was not lodged in time, it might have been virtually inevitable that it would have been allowed to proceed.
21 If that were so, it might be arguable that any damage that the plaintiff suffered immediately upon the expiry of the 21 day period was no more than negligible. Whether it is so is not a matter which I could decide on the limited material before me. That may well require closer examination of the procedure in the Industrial Relations Commission and the issues which the Commission would have had to determine in the plaintiff's application. Accordingly, the limitation question is not one appropriate for decision in an application for the summary dismissal, or striking out, of this claim.
22 One of the cases cited by Giles JA in the first passage from Wilson v Rigg quoted above was Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514. Although the factual background to that case is very different from the present case, the admonition at the conclusion of the joint judgment at 533 is apposite:
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. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.
23 Mr Evans' principal submission was that the plaintiff's cause of action in tort did not crystallise until 25 March 2002 when, as a result of the compromise of the proceedings against Qantas, he effectively abandoned his claim for reinstatement. As I have said, the focus of his claim for damages is the loss of his opportunity for reinstatement. Mr Evans argued, accordingly, that the cause of action did not accrue until that opportunity was lost through the compromise. Until then, he said, any damage was no more than contingent or prospective and was not, in the relevant sense, measurable. He relied upon Commonwealth of Australia v Cornwell [2007] HCA 16, 234 ALR 148, and the cases referred to in that decision.
24 I would question whether there is a true analogy between the situation in the present case and those considered in Cornwell, Hawkins v Clayton (1988) 164 CLR 539 and Wardley v Western Australia. This issue is not an easy one to resolve but, in the event, I do not need to express a concluded view about it. The defendants' application was squarely based upon the proposition that the cause of action accrued immediately upon the expiry of the 21 day period prescribed by the Workplace Relations Act. For the reasons I have given, that is far from clear. In the absence of further material, it is not possible to reach a firm conclusion about when it accrued - whether at the date of the compromise or at some earlier time.
25 It is also unnecessary to decide Mr Evans' final argument, based upon the view expressed by Deane J in Hawkins v Clayton at 590, that there should be excluded from the limitation period any period during which the wrongful acts of the defendants "effectively precluded the institution of the proceedings". That view was not supported by the other members of the Court, and has not since been adopted by this Court: see, for example, Sampson v Zucker [1996] NSWCA 465, per Gleeson CJ at p 3.
26 In the result, it appears that the claim in contract is statute barred. I do not understand Mr Evans to have argued the contrary. The claim in tort, however, should be allowed to proceed.