"Whether the Plaintiff's causes of action are not maintainable having been brought after the expiration of the relevant limitation periods under s 14 of the Limitation Act, 1969 (NSW)".

Civil & Civic and Turfgrass are defendants in proceedings brought by Parramatta Stadium Trust (Stadium Trust) arising out of the alleged failure of a playing surface known as Parramatta Oval (the oval). The Stadium Trust is the successor to Sydney Cricket and Sportsground Trust (the Sydney Trust) pursuant to the provisions of Parramatta Stadium Trust Act 1988 (the Act) cl 4 of Sch 3 to the Act, providing that any contract entered into with the Sydney Trust in connection with Trust land should be treated as a contract entered into with Stadium Trust.

In 1985 the Sydney Trust entered into a contract with Civil & Civic for the design and construction of a stadium and the oval at Parramatta Park and, by force of the Act, that contract is deemed to be entered into with Stadium Trust.

It is alleged that part of the contractual obligations of Civil & Civic required it to provide a system of sub-soil drainage to cope with ground water. Stadium Trust alleges that Civil & Civic was in breach of that obligation and, as against Civil & Civic, claims damages for breach of contract and in tort for breach of a duty of care to carry out the design and construction of the subject drainage works in a proper and workmanlike manner.

Turfgrass was the sub-contractor engaged by Civil & Civic for the preparation of a specification for the oval and, against that defendant, Stadium Trust alleges a breach of duty of care in performing that work. The oval was opened on 5 March 1986. However, it was not until 15 September 1995 that these proceedings were brought by Stadium Trust. It is not immediately apparent why there was such a delay in the bringing of these proceedings.

It is accepted by all parties that the determination of this separate question if answered in favour of the applicants would bring these proceedings to an end. I think the central questions that require to be addressed on this application are:

1. Whether the hearing of the separate question will in fact result in a significant saving of court time in the event that the question is answered in favour of the defendants.

2. Whether an unfavourable answer to the defendants may involve findings as to credit which impact on the ability of the trial judge to hear the remainder of the issues in the proceedings: This matter was not addressed by the parties.

3. Whether this is a case where sufficient is clearly known of the subject damage as to justify the court embarking upon a Pt 31 determination.

I think there are lessons to be learned from Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 and from Magman International Pty Ltd v Westpac Banking Corporation [1991] FCA 41; (1991) 32 FCR 1 in that resorting to Pt 31 for the determination of a limitation question should only be entertained in cases where there is little or no doubt attendant upon the nature and incidence of the subject damage upon which the cause of action is reliant.

So far as question two is concerned, the fact that neither party has adverted to it, I think, should encourage the court to the view that is not anticipated to be a relevant factor in resolving this application.

Questions one and three call for a closer examination of the nature of the damage alleged in these proceedings and of its causation as it was known, or possibly ought to have been known, by Stadium Trust as being the result of the conduct or omissions of the defendants.

The parties have furnished me with material which recounts the history of this matter, essentially, as presented in Stadium Trust's case. I gave directions in the proceedings that Stadium Trust file and serve the evidence upon which it sought to rely in these proceedings but, on the application of the defendants, did not require the defendants to file statements of evidence upon which they relied, pending the hearing of this application. In retrospect, I think that was ill advised, in that, in considering the question raised on this application, I think the Court would be better served if it had available to it the evidence upon which the defendants sought to rely.

In support of their application, the defendants provided a chronology which purported to recount the events which occurred prior to the six years preceding the commencement of proceedings, that is, prior to 16 September 1989. That chronology was supported by documents comprised in the discovery documents of Civil & Civic and Stadium Trust's documents. From that material it is clear that, prior to 16 September 1989, serious problems were being experienced in the oval's surface. By way of example, at the end of the 1987 rugby football season the condition of the oval was described as that of "bare paddock". Similar problems were recorded through the 1988 and 1989 football seasons.

Given what one may infer to be stressful conditions to which the oval surface was subjected to throughout the football season and the fact that the establishment and maintenance of a turf surfaced oval is a dynamic situation affected by conditions of use, the influence of climatic conditions and the nature and extent of maintenance procedures, the experience of Stadium Trust does not necessarily equate to knowledge of or experience of damage occasioned by any actionable conduct or omission of the defendants. Indeed, if this matter is to proceed on all issues it is not too imaginative to expect that the defendants will place reliance upon such matters as being consistent with the incidence of damage experienced, unrelated to any alleged default on their part.

To that extent it would be, I think, misleading to draw too strong an analogy between the subject damage in this case and the analysis of the damage in such cases as Wardley and Magman. Nevertheless, this case is far removed from one where the damages are direct, manifest and clearly attributable to actionable conduct of a wrongdoer. From the material evidenced on this application, it appears that the principal cause of complaint was the design and installation of a surface layer which, under the conditions of wear to which the surface was subjected during successive sporting seasons, compacted and became impervious. This, it is alleged, resulted in conditions inimical to regrowth of grass and the establishment of a playing surface unacceptably hard for the body contact sporting fixtures for which it was designed.

In general terms, it appears that, in the first few years of its use, the number of sporting fixtures played on the oval were modest and the behaviour of the surface was comparatively unexceptional. Apparently, the process of compaction and the establishment of an impervious layer through the use of unsuitable material is a gradual one and one dependant upon, one presumes, the extent of use. By way of illustration, it appears that there were some twelve fixtures in the 1986 season, twenty-two in 1987, thirty-six in 1988 and eighty-eight fixtures in 1989 with the last game being played that year on 29 August.

Although it seems to be accepted by both parties that there was reasonable performance during those first few seasons, the statement of Graeme Francis Logan (Logan) dated 18 July 1996 filed by Stadium Trust contains the following paragraph:

"During the course of that season, I noticed the ground started to become very firm, which is unusual for a sand based layer. In the course of the season it was necessary to establish some goalpost footings for soccer. In excavating to establish those footings, I observed clumps of red clay in the topsoil. I arranged for some holes to be dug through the profile and I observed large amounts of clay in the topsoils. I measured the thickness of the layers in these holes and although I now have no record of my measurements, I recall that they were all at variance with what was contained in the specification. I also found significant amounts of clay in the top 700 millimetres. I also noticed during the course of this season that the growth of grass was slowing and that the draining of surface water was beginning to be poor. However, the ground was performing satisfactorily from my point of view as Curator. At the end of the 1987 season, we aerated the ground in order to promote growth. This is a standard procedure which would have been carried out regardless of the matters I have referred to in this paragraph."

As may be expected, the defendants will place reliance upon this material to establish a time when it could be said that time for the purposes of the statute of limitations had begun to run. I note, however, Logan's statement of opinion that, from the curator's point of view, "the ground was performing satisfactorily". The succeeding paragraphs of Logan's statement testifies to the worsening condition of the oval until a time, which he fixes as 10 December 1992, when a meeting took place at the oval which Logan describes as follows:

"On the 10th December 1992, there was a meeting at the ground attended by myself and Laurie Jackson, the General Manager of the Trust, the second defendant, Mr McMaugh and Ian Cuncliffe and Ron Powell from the second defendants. After the excavation referred to in the previous paragraphs, I had obtained certain information from some of the sub-contractors engaged in the construction of the ground. In the course of this meeting, I said to Mr McMaugh words to the following effect:

"I know for a fact that heavy material not meeting the specification was installed in the profile at the time of the construction of the field. When we excavated, we found heavy clay material and migration of that material into the drainage layer. There were irregularities in layer thickness as well. I have been told that during construction, Mr McMaugh was absent for about four weeks and during that time, foreign soil was introduced. Rather than holding up the schedule, I have been told that sand was simply applied to the foreign matter and rotary hoed in, and I actually know who supplied the sand and the remedy."

"Yes, that is the case. I was away sick for four weeks."

"You rotary-hoed sand into this foreign material rather than fixing it with the proper profile according to the specifications."

"How come this wasn't a problem for the first few years?"

"It takes a while for something like this to develop. For the first few years, there were not very many fixtures but under heavy use, the ground has compacted and the drainage is not occurring." "

McMaugh was a principal of McMaugh & Associates Pty Ltd who are described as horticultural and turfgrass specialists and a representative of Turfgrass.

If this evidence is accepted, in my view, it is evidence which is relevant to the behaviour of the subsurface conditions which may bear upon identifying the nature, time of onset and cause of the subject damage to the oval.

I do not regard it as necessary for the purpose of this application to recite the history of deterioration and renovation that took place in respect of the oval's surface. I think it is clear, however, in relating that history, which has been captured in a chronology by counsel for Civil & Civic, that there is much upon which reliance would be placed by the defendants in support of a defence that Stadium Trust's cause of action is statute barred.

It appears that matters came to a head with receipt by Stadium Trust of an advice by Keith McIntyre, the manager of the Technical Services Unit of the ACT Parks & Conservation Service. He visited the site on 9 July 1992 and furnished a report which comments on the subject design in the following terms:

"Comments on original design and apparent construction.

The original design appears to have been an attempt to construct a "sand based" playing field using the USGA (US Golf Association) type structure which provides a very uniform non-compacting sand as a topsoil over a drainage layer of a coarser material which causes a perched water table.

The design used in this case was doomed to failure from day one. It could never have worked for the following reasons.

The black silty topsoil should never have been used, because all it does is seal the drainage, and this has been the main reason for the ground's problems ever since it was built.

This topsoil is extremely poor, and should never be used for the construction of any playing field, let alone a supposed high quality "sand based" field. It has between 35% and 45% of fines which cause it to compact very badly under traffic.

When the soil is subjected to compaction caused by traffic such as football, its hydraulic conductivity (i.e. the rate at which water flows through it) slows down from a very acceptable level of above 500mm per hour to a totally unacceptable level of below 1mm per hour. (See test results for Sample No 92/265).

This probably explains why, for the first couple of seasons, the ground appeared to behave quite well, and then problems began to appear.

As the traffic increased, and games were played in the wet, the surface compacted and the rate at which water entered the profile below was reduced. This meant that puddling occurred, and grass cover was destroyed.

The grass root depth would have been reduced in these compacted areas and grass would have been torn out quite easily under heavy wear.

This I believe was the pattern of events which occurred from the time of construction until it was necessary to carry out some remedial work in 1989."

The defendants place reliance on this material, in particular the opinion of McIntyre that the "design used ..... was doomed to failure from day one". While that is relevant to the limitations question, it is also apparent from the quoted extract of McIntyre's statement that the condition was a dynamic one: its cause not immediately recognisable.

The conclusion I have reached is that there is evidence within the statements filed on behalf of Stadium Trust, detailing the history of the performance of the oval after its design and construction, which could lead to a conclusion that Stadium Trust's cause of action is statute barred. However, the dynamic nature of the conditions and the nature of the alleged cause of the unsatisfactory performance of the oval, together with, evidence of concealment in departure from specification, are all matters which, in my opinion, should prompt the court to be hesitant in proceeding along the course urged on behalf of the defendants.

Nevertheless, while it may be said that "insufficient is known of the damage sustained by (Stadium Trust) and of the circumstances in which it was sustained to justify a confident answer....." on the limitation question for its determination as a separate question pursuant to Pt 31 of the Supreme Court Rules, I would be disposed to make such an order if I was reasonably satisfied that it was otherwise appropriate to do so.

The view I have formed is that the task of resolving the limitations question will call for a fairly close analysis of the conditions which affected the oval, with the possibility of it being necessary to distinguish between deterioration in surface behaviour caused by things unrelated to the alleged conduct of the defendants and conditions of deterioration which may have been wholly or partly due to the alleged defective design and construction of the oval surface. Further, I think the limitations question is likely to give rise to the examination of the continuing nature of the effect of the alleged default under the influence of climatic conditions and the severity of usage throughout the sporting seasons.

This suggests that the determination of the limitations question will embrace a very significant portion of the expert evidence and of the history of performance of the oval so as to identify the nature, time of onset and cause of elements of unsatisfactory performance of the oval which amounts to the alleged failure of performance of the subject design and construct contract: the point being that, if the determination of that limitations question involves evidence of that extensive kind, the utility of recourse to Pt 31 is diminished to a point where it would be undesirable to accede to the defendants' application.

It may be that when one saw the whole of the evidence relating to the issues other than quantum, a more confident assessment could be made of the effect of making a Pt 31 order. A further factor, which is relevant to this approach to the application, is the view I have formed that the quantum issue may not involve a significant portion of court hearing time, once questions of causation and any reasonable rectification are resolved. In other words, it is my impression that a full hearing of the limitations question may leave comparatively little in the way of further issues.

It has been submitted on behalf of Turfgrass that, if the application was granted, any doubts attending the making of a Pt 31 order could be assuaged by the Court expressing an intention to revisit the question and rescind such an order if subsequent events justified that course. It was also submitted that if the application was refused, the Court should direct that the plaintiff be ordered to pay costs on an indemnity basis in relation to issues other than the limitation question, in the event that the latter issue was decided in favour of the defendants.

I do not regard either alternative as particularly attractive. As to the first, I think the prudent course is to determine the matter on the material presently before the Court. On the question of indemnity costs, the appropriate time to address that matter is at the conclusion of the proceedings.

Accordingly the application is dismissed with costs.

In order to ensure that the matter proceeds with due expedition, I direct the defendants to file and serve any statements of evidence, including expert reports, upon which each of them may wish to rely in the proceedings by 9 September 1996, that any statements of evidence in reply be filed and served by 19 September 1996 and that the matter be listed for further directions on 20 September 1996.