(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 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 is 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 cause of action for the damage for which the cause 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 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means the limitation period fixed by or under this Act or by or under any other enactment (including an enactment repealed or omitted by this Act) for the cause of action for the liability in respect of which contribution is sought.
(4) Nothing in this section affects the construction of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 .
8 If applicable, s26(1)(a) of the Limitation Act barred the amended cross-claim, because it was filed more than two years after the date on which the respondent's cause of action for contribution first accrued, ie when judgment was entered against it (see Limitation Act, s26(2)(a)).
9 The employer did not seek to justify amendment to its cross-claim by reference to Pt 20 r4 of the Supreme Court Rules (which rule applies in the Tribunal: see Dust Diseases Tribunal Rules, r2). (I am not implying that this option was open - the question was not explored.) Rather, the employer contended that s12A of the DDT Act had displaced s26 of the Limitation Act.
10 Section 12A of the DDT Act provides:
12A No limitation period
(1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time.
(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.
(3) Without limiting subsection (2):
(a) sections 14, 18A, 60C and 60G of, Division 6 of Part 2 of, and Schedule 5 to, the Limitation Act 1969 do not prevent the bringing or maintenance of any such proceedings before the Tribunal, and
(b) any such proceedings may be brought or maintained before the Tribunal even though a limitation period has already expired under that Act, and
(c) any such proceedings may be brought or maintained before the Tribunal as if Division 1 of Part 4 of that Act had never been in force.
11 Schedule 3 to the DDT Act contains the savings and transitional provisions referable to the enactment that introduced s12A. Clause 7 of that Schedule provides:
No limitation period
(1) Section 12A, which was inserted by the amending Act, applies in relation to causes of action arising before or after the commencement of that section, and extends to proceedings pending at that commencement.
(2) However, section 12A does not apply in relation to a cause of action to the extent that proceedings on the cause of action have been determined before the commencement of that section.
12 Judge Walker dismissed the appellant's motion on the basis that:
… s12A(2) of the Dust Diseases Tribunal Act overrides the provisions of s26 of the Limitation Act and there is no limitation period applicable to the issue of cross claims other than that imposed by the Supreme Court Rules.
13 His Honour's reference to "the Supreme Court Rules" was explained earlier in the judgment:
I take the view that unfairness is not, in itself, sufficient reason to justify a court rejecting the ordinary sense of the words in s12A; a section enacted to give special treatment to a class of litigants. In any event I see no unfairness because the Supreme Court rules apply a time limit after judgement for a cross-claim to issue subject only to the court's discretion to allow cross claims to be filed out of time. That judicial discretion protects the cross defendant from unfairness.
14 Any cross-claim was required to be filed by the respondent within the time limit for filing its defence (Supreme Court Rules Pt 6 r10). But this time could be extended when appropriate to avoid injustice (Supreme Court Rules Pt 2 r3, Seltsam Pty Ltd & Anor v Energy Australia & Ors: Re Banham (1999) 17 NSWCCR 720).