FEDERAL COURT OF AUSTRALIA

Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd [2017] FCA 14

ORDERS

THE COURT ORDERS THAT:

1.    The separate question, namely whether the commencement of the present proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) on behalf of group members constitutes the institution of an action by group members for the purposes of s 44 of the Limitation Act 1981 (NT), is answered in the affirmative.

2.    The respondent pay the applicant’s costs of and incidental to the separate question.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    This proceeding concerns a separate question for determination under r 30.01 of the Federal Court Rules 2011 (Cth) (the FCRs). The applicant is the representative party in a proceeding brought under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). The separate question concerns the ability of the Court to consider and determine whether to extend the limitation period under the Limitation Act 1981 (NT) (the Limitation Act) in such a proceeding and, in particular, the Court’s power to extend the limitation period in accordance with s 44 of the Limitation Act in respect of the claims of group members in such a representative proceeding. The terms of the separate question are as follows:

Whether the commencement of the present proceeding under Pt IVA of the Federal Court of Australia 1976 (Cth) on behalf of group members constitutes the institution of an action by group members for the purposes of s 44 of the Limitation Act 1981 (NT).

Summary of relevant background facts and matters

2    The following summary of the relevant background facts and other matters is drawn from the statement of claim dated 3 August 2016 (to date, no defence has been filed).

3    The applicant and group members are seaweed farmers in Indonesia who claim to have suffered loss by reason of the effect of an oil spill that occurred at the Montara Oil Field in 2009 (the Montara Oil Spill). The oil field is situated within the offshore area of the Territory of Ashmore and Cartier Islands. The respondent held the petroleum production licence for an area which included the Montara Oil Field and it was responsible for the operation of the oil wells there.

4    It is claimed that, from at least January 2009, the respondent planned to suspend what is known as the H1 Well in the Montara Oil Field. The applicant alleges that the manner by which the respondent implemented that suspension was negligent.

5    It is alleged that, as a result of the Montara Oil Spill, the applicant and group members suffered loss because of the effect of the oil spill on seaweed that they cultivated and that there was a drop in production of seaweed caused by the Montara Oil Spill.

6    In the statement of claim, a group member is defined as a person who:

(a)    during some or all of the period from August 2009 to August 2014 conducted business as a seaweed farmer in Indonesia; and

(b)    has suffered loss or damage;

(i)    by reason of the decline in, or loss of, seaweed production caused by the effects of the Montara Oil Spill; or

(ii)    by reason of the destruction of seaweed owned by them caused by the Montara Oil Spill; and

(c)    became aware of some or all of the material facts giving rise to the claims set out in the statement of claim no earlier than 12 months prior to the commencement of the proceeding; and

(d)    has prior to the commencement of the proceeding entered into a litigation funding agreement with Harbour Fund II LP.

The relevant statutory schemes summarised

7    It is convenient to now describe relevant provisions in both the Limitation Act and the FCA Act.

(a) Limitation Act

8    The Limitation Act applies to this proceeding because ss 8 and 80 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (the OPGGS Act) have the combined effect that the laws of the Territory of Ashmore and Cartier Islands apply to certain identified lands and waters, including the area where the Montara Oil Field is located. In turn, s 6 of the Ashmore and Cartier Islands Acceptance Act 1933 (Cth) provides that the laws of the Northern Territory apply to the Territory of Ashmore and Cartier Islands. Accordingly, the Limitation Act applies.

9    Section 12(1)(b) of the Limitation Act relevantly provides that an action founded on a tort is “not maintainable” more than three years from the date on which the cause of action first accrued. It is accepted that the present proceeding was not commenced within three years of the date of damage first suffered as a result of the Montara Oil Spill or the relevant breaches of duty pleaded in the statement of claim. For that reason, it appears that it is necessary for the applicant and each of the group members in this proceeding to obtain an extension of the limitation period.

10    Section 44 of the Limitation Act, which is at the core of the matter, provides a facility for the limitation period to be extended in respect of certain causes of action. That section relevantly provides:

(1)    Subject to this section, where this or any other Act, or an instrument of a legislative or administrative character prescribes or limits the time for:

(a)    instituting an action;

(b)    doing an act, or taking a step in an action; or

(c)    doing an act or taking a step with a view to instituting an action,

a court may extend the time so prescribed or limited to such an extent, and upon such terms,

if any, as it thinks fit.

…

(3)    This section does not:…

(b)    empower a court to extend a limitation period prescribed by this Act unless it is satisfied that:

(i)    facts material to the plaintiff's case were not ascertained by him until sometime within 12 months before the expiration of the limitation period or occurring after the expiration of that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff; …

and that in all the circumstances of the case, it is just to grant the extension of time.

(4)    Where an extension of time is sought under this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.

11    The term “plaintiff” is defined in section 4 as “a person bringing an action”. It may be noted that the nomenclature of “a party” is not used in the definition of who is a “plaintiff”. The term “action” is defined in s 4 as “including any proceeding in a court of competent jurisdiction”.

12    Section 44 specifies when the limitation periods set out in the Limitation Act may be extended. Section 44(1) of the Limitation Act relevantly provides that the Court may extend the time for instituting an action on such terms as it thinks fit. Section 44(3) of the Limitation Act conditions the circumstances in which an extension of the limitation period may be granted by relevantly restricting the exercise of such power to circumstances where the Court is satisfied that facts material to the “plaintiff’s” case were not ascertained by him or her until sometime after the expiration of the limitation period and that the action was instituted within 12 months after the “plaintiff” ascertained those facts. The Court must also be satisfied that it is just in the circumstances for an extension of the limitation period to be granted. The applicant accepts that if s 44 of the Limitation Act applies to this representative proceeding, both he and each group member will need to establish that s 44(3)(b)(i) applies to each of their particular circumstances.

(b) The FCA Act

13    Part IVA of the FCA Act contains provisions concerning the conduct of representative proceedings. Part IVA operates where there are seven or more people with claims against the same person and the claims arise from similar circumstances. There must be at least one substantial issue of law or substantial issue of fact that is common to the claims. One or more of the group conducts the proceedings on behalf of the other group members. As the High Court (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) observed in Wong v Silkfield Pty Ltd [1999] HCA 48; 199 CLR 255 (Wong) at [12], Pt IVA “attempts to resolve issues which bedevilled representative procedures as they had been developed, particularly by courts of equity”. The operation of some parts of the scheme in Pt IVA is described in cases such as Wong; Bright v Femcare Ltd [2002] FCAFC 243; 195 ALR 574 and Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd [2007] FCAFC 200; 164 FCR 275.

14    Section 33C is a key provision. It relevantly provides:

33C    Commencement of proceeding

(1)    Subject to this Part, where:

(a)    7 or more persons have claims against the same person; and

(b)    the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c)    the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

(2)    A representative proceeding may be commenced:

(a)    whether or not the relief sought:

(i)    is, or includes, equitable relief; or

(ii)    consists of, or includes, damages; or

(iii)    includes claims for damages that would require individual assessment; or

(iv)    is the same for each person represented; and

(b)    whether or not the proceeding:

(i)    is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or

(ii)    involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.

15    Section 33A contains the following relevant definitions:

33A    Interpretation

In this Part, unless the contrary intention appears:

“group member” means a member of a group of persons on whose behalf a representative proceeding has been commenced.

“representative party” means a person who commences a representative proceeding.

“representative proceeding” means a proceeding commenced under section 33C.

“respondent” means a person against whom relief is sought in a representative proceeding.

…

16    It may be interpolated at this point that the proceeding the subject of this application is a “closed-class” representative proceeding because to be a group member a person is required inter alia to take the positive step of entering into a funding agreement with a specified entity in order to qualify as a group member within the meaning of that concept in s 33A (see [6(d)] above).

17    Section 33J provides for a group member to opt out of a representative proceeding:

33J    Right of group member to opt out

(1)    The Court must fix a date before which a group member may opt out of a representative proceeding.

(2)    A group member may opt out of the representative proceeding by written notice given under the Rules of Court before the date so fixed.

(3)    The Court, on the application of a group member, the representative party or the respondent in the proceeding, may fix another date so as to extend the period during which a group member may opt out of the representative proceeding.

(4)    Except with the leave of the Court, the hearing of a representative proceeding must not commence earlier than the date before which a group member may opt out of the proceeding.

18    Section 33Z specifies the powers of the Court in determining a matter in a representative proceeding:

33Z    Judgment--powers of the Court

(1)    The Court may, in determining a matter in a representative proceeding, do any one or more of the following:

(a)    determine an issue of law;

(b)    determine an issue of fact;

(c)    make a declaration of liability;

(d)    grant any equitable relief;

(e)    make an award of damages for group members, sub-group members or individual group members, being damages consisting of specified amounts or amounts worked out in such manner as the Court specifies;

(f)    award damages in an aggregate amount without specifying amounts awarded in respect of individual group members;

(g)    make such other order as the Court thinks just.

(2)    In making an order for an award of damages, the Court must make provision for the payment or distribution of the money to the group members entitled.

(3)    Subject to section 33V, the Court is not to make an award of damages under paragraph (1)(f) unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment.

(4)    Where the Court has made an order for the award of damages, the Court may give such directions (if any) as it thinks just in relation to:

(a)    the manner in which a group member is to establish his or her entitlement to share in the damages; and

(b)    the manner in which any dispute regarding the entitlement of a group member to share in the damages is to be determined.

19    Section 33ZB describes the effect of a judgment in a representative proceeding:

33ZB    Effect of judgment

A judgment given in a representative proceeding:

(a)    must describe or otherwise identify the group members who will be affected by it; and

(b)    binds all such persons other than any person who has opted out of the proceeding under section 33J.

20    Section 33ZE is another significant provision. It relates to the suspension of limitation periods and provides:

33ZE    Suspension of limitation periods

(1)    Upon the commencement of a representative proceeding, the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended.

(2)    The limitation period does not begin to run again unless either the member opts out of the proceeding under section 33J or the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim.

21    Finally, the Court has a power under s 33ZF to make any order the Court thinks appropriate or necessary to ensure that justice is done in a Pt IVA proceeding:

33ZF    General power of Court to make orders

(1)    In any proceeding (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.

(2)    Subsection (1) does not limit the operation of section 22.

The applicant’s submissions summarised

22    The applicant relied upon the following five reasons in support of his contention that the commencement of the proceeding constituted the institution of an action by group members for the purposes of s 44 of the Limitation Act.

23    First, in the applicant’s outline of written submissions, it was contended that s 44 was a remedial or beneficial provision and should be given a liberal interpretation. In support of that contention the applicant relied on the following observations of the Hon Mr Paul Everingham MP who, in the course of debating the then Bill, stated:

…I draw honourable members’ attention to clause 44 which gives the court power in certain defined circumstances to extend any period of limitation. Clause 44(7) provides the court with power to extend the limitation period. …Most jurisdictions restrict this power of extending the limitation period to personal injuries and fatal injuries but this government believes that such a restriction may work injustice in many other cases and has adopted the approach of South Australia’s extension provisions, making the extension power a general power.

24    In oral address, however, Mr Finch SC (who appeared with Dr Cashman and Mr Ahmed for the applicant) qualified this submission to some extent by acknowledging that his client did not “need a particularly liberal or broad interpretation”.

25    Secondly, having regard to the requirement in s 44(3) that the Court be satisfied that “the [plaintiff’s] action was instituted within 12 months after the ascertainment of [the previously unascertained] facts by the plaintiff”, the question arises whether group members in a representative proceeding are “plaintiffs” in respect of whom an action has been instituted. It was submitted that the statutory definition of “plaintiff” is wide enough to include a group member in a representative proceeding in circumstances where:

(a)    the definition of “plaintiff” is “a person bringing an action”; and

(b)    the term “action”, which is also defined in s 4, should be given a wide meaning as encompassing any form of legal proceeding (citing Re Carter Smith; Ex parte Taxation Commissioners (1908) 8 SR (NSW) 246 at 248 per Street J).

26    The applicant’s contention was that a proceeding under Pt IVA of the FCA Act falls within the statutory definition of an “action” and a group member in a representative proceeding is a person “bringing” that action so as to be a “plaintiff” within the definition in s 4. This is primarily because the representative party who brings a Pt IVA proceeding does not act merely for themselves but also acts on behalf of all group members, as is reflected in the definition of “group member” in s 33A of the FCA Act (which is set out in [15] above). The applicant emphasised the importance of the phrase “on whose behalf a representative proceeding has been commenced” in the definition of “group member” in s 33A of the FCA Act.

27    The applicant acknowledged that group members were not “parties” to a representative proceeding, but he submitted that this did not prevent them from being “plaintiffs” within the meaning of the Limitation Act.

28    Thirdly, the applicant submitted that a purposive approach to the construction of s 44 supported his position that the separate question should be answered affirmatively. Referring to s 15AA of the Acts Interpretation Act 1901 (Cth) (as well as to s 62A of the Interpretation Act (NT)), the applicant submitted that preference should be given to an interpretation of a statutory provision which best achieves its purpose or object as opposed to one which does not promote that purpose or object. Relying upon statements in the extrinsic material which referred to the power to extend time in s 44 as being a “general power”, it was submitted that the provision should be construed as applying widely and as including group members in a representative proceeding.

29    The applicant submitted that if the commencement of a representative proceeding did not involve a group member bringing an “action”, the bar imposed by s 12(1)(b) of the Limitation Act would not apply to claims by group members. That is because there would be no “action” by a group member on which s 12(1)(b) could operate. Accordingly, on that construction, group members’ claims would fall to be determined without regard to the expiration of the limitation period, which could scarcely have been intended.

30    Fourthly, the applicant relied upon the following cases (two of which involved traditional representative actions), in support of his contention that the commencement of a Pt IVA representative proceeding constitutes institution of an action by group members.

(a)    The decision of the Full Court of the Queensland Supreme Court in Cameron v National Mutual Life Association of Australasia Limited (No 2) [1992] 1 QdR 133 (Cameron) at 137, where McPherson SPJ (with whom Moynihan J agreed) said in relation to o 3 r 10 of Queensland’s Supreme Court Rules:

In terms of the rule and of s 10(1) of the Limitation of Actions Act, the action is “brought” on behalf of all of them. On that view of the matter the plaintiffs, both those named and those represented but not named, brought this action when the writ was sealed on 22 December 1988.

(b)    In Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd [2005] NSWCA 83; 63 NSWLR 203 (Fostif) at [44], Mason P (with whom Sheller and Hodgson JJA agreed) said that where a provision governing the commencement of a traditional representative action was properly engaged, the proceedings are in terms “commenced… by [the lead plaintiff] as representing [the represented persons]” and that, therefore, “the limitation clock stops for the whole group”. This conclusion was regarded as consonant with the principle that represented persons are bound by the outcome of issues decided in a representative proceeding.

(c)    In a representative proceeding under Pt IVA of the FCA Act, McKerracher J determined in Morgan, in the matter of Brighton Hall Pty Ltd (in liq) [2013] FCA 970 (Morgan) at [75] that, where a representative party commences an action on behalf of group members, they too will have “brought” an action (emphasis added):

Although the second limb of the definition of ‘claim’ refers to civil proceedings which are brought by a third party for recovery of compensation or damages in respect of breach of professional duty, if a person sues, amongst other things, on behalf of another in a representative proceeding, even if the group member is not named, that unnamed group member nevertheless has brought proceedings.

31    Fifthly, the applicant submitted that if his preferred construction was not accepted, it was open to the Court to make an order under s 33ZF of the FCA Act (see [21] above) that group members should be taken to have instituted an action by reason of the commencement of the Pt IVA proceeding.

The respondent’s submissions summarised

32    The respondent submitted that the separate question should be answered in the negative. It also sought to have the question answered in a way which preserved its right to raise concerns about the adequacy of aspects of the originating application and statement of claim relating, in particular, to the group definition and common questions, which matters, it said, would be raised in its future defence. The respondent also drew the Court’s attention to the fact that, notwithstanding the separate question, the applicant’s solicitors had recently commenced multiple individual new proceedings as “protective proceedings” in the event that the separate question was answered negatively.

33    The respondent’s submissions in support of its position may be summarised as follows.

34    First, emphasis was placed upon the contemporary approach to statutory construction as described by Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 (Alcan) at [47]:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

35    While acknowledging that there is a general rule of statutory construction that a construction is to be preferred which promotes the purpose or object underlying the relevant statute (citing Carr v Western Australia [2007] HCA 47; 232 CLR 138 (Carr) at [5]-[6] per Gleeson CJ) and that remedial statutes are to be interpreted on the basis that they intend to remedy a perceived injustice or provide a benefit, the respondent claimed in its outline of written submissions that these general rules are only of utility where there is more than one interpretation available or there is uncertainty as to the meaning of particular words. The respondent submitted in [11] of its written outline of submissions that:

If the words of a statutory provision are clear, these general rules have no application.

36    The respondent further submitted that these general rules were of no real assistance where a statutory provision strikes a balance between competing interests, as was said to be the case here because the relevant limitation periods represented a careful balancing by the legislature of the rights and interests of plaintiffs and defendants.

37    Mr Scerri QC (who appeared together with Mr Arnott for the respondent) clarified in oral address that it was not intended to suggest in the respondent’s outline of written submissions that the relevance of context to the task of statutory construction was limited to a case where an ambiguity has first been identified. That clarification was properly made, having regard to the following observations of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 (CIC Insurance) at 408 (footnotes omitted and emphasis added):

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

38    In oral address, Mr Scerri QC relied upon various additional authorities regarding the construction of remedial or beneficial provisions. In particular, he emphasised the following observations of Mason, Brennen, Deane and Dawson JJ in Khoury v Government Insurance Office (NSW) [1984] HCA 55; 165 CLR 622 (Khoury) at 638 (emphasis added):

… the rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal must, as has been said, be restrained within the confines of “the actual language employed” and what is “fairly open” on the words used.

39    To similar effect, Brennan CJ and McHugh J said in IW v City of Perth [1997] HCA 30; 191 CLR 1 at 12 (footnotes omitted and emphasis added):

The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.

40    The respondent accepted that there was considerable utility in resolving the separate question at this point, and prior to it filing its foreshadowed defence, because the answer would affect the future course of the proceedings. Having said that, however, Mr Scerri QC submitted in oral address that it was not open to the Court to answer the separate question affirmatively so as to say that the proceeding had been commenced by group members within the meaning of s 44 because the Court did not have available to it any evidence as to when the group members had knowledge of the material facts.

41    It submitted that, for the following reasons, the structure of Pt IVA representative proceedings makes it plain that group members are not the persons bringing an action. First, group members play a passive role and are not parties to a representative proceeding.

42    Secondly, provisions such as ss 33A, 33D, 33E and 33H of the FCA Act indicate that the structure of Pt IVA is that the applicant who institutes or brings a representative proceeding does so on behalf of and as representing a broader group but that the group members do not institute or bring the action themselves. The respondent relied on the observations of Gaudron, Gummow and Hayne JJ in the High Court in Mobil Oil Australia Pty Ltd v The State of Victoria [2002] HCA 27; 211 CLR 1 at [37]-[38] in respect of provisions in the Supreme Court Act 1986 (Vic) concerning representative proceedings, where the position of persons who bring such proceedings as plaintiffs was contrasted with those whom they represented.

43    In support of its contention that group members are not the persons who institute or bring a proceeding under Pt IVA, the respondent also relied upon provisions such as ss 33Z, 33AB, 33R, 33S, 33P, 33ZE and 33ZH.

44    Secondly, after referring to s 12(1)(b) of the Limitation Act, the respondent submitted that, because the commencement of a representative proceeding did not constitute the bringing of an action by group members, time did not stop running by reason of s 12(1)(b) in respect of those group members. It was submitted that this issue was addressed by s 33ZE of the FCA Act which, so it was contended, presupposes that the commencement of a representative proceeding did not constitute the bringing of an action by each group member such that limitation periods cease to run. In oral address, Mr Scerri QC confirmed that the respondent’s position was that the references to the “plaintiff” in both ss 12 and 44 of the Limitation Act referred to the applicant and not a group member.

45    Thirdly, the respondent emphasised the limitations on the Court’s power to extend time under s 44(3)(b), which focuses direct attention on the individual circumstances of the plaintiff, being the person bringing the action. The respondent submitted that no power was granted under s 44 for the Court to extend time for persons on behalf of whom the plaintiff sues.

46    Acceptance of this submission would mean that the applicant in a representative proceeding can apply for an extension of time under s44 in respect of his or her own claim, but not on behalf of the group members. Nor could the group members themselves apply for an extension of time because they are not plaintiffs. Furthermore, if the applicant in such a proceeding is granted an extension, s 12(1)(b) will not bar his or her claim, but it will continue to bar the claims of group members. Section 33ZE of the FCA Act would apply to claims which are brought within time, but s 33ZE has no application with respect to limitation periods which have already expired.

47    Fourthly, the respondent emphasised that an application for an extension of time under s 44(3) was “quintessentially an individual issue”, turning as it does on the particular knowledge and circumstances of the person making the application.

48    Fifthly, the respondent submitted that, in light of the applicant’s acknowledgement in the originating application that each group member required an extension of time, each group member needed to come before the Court individually at some point so as to satisfy the Court of the matters set out in s 44(3).

49    Sixthly, the respondent submitted that cases such as Morgan, Cameron and Fostif were all distinguishable, primarily because the different procedural and conceptual provisions relating to traditional representative actions made those cases too remote. In oral address Mr Scerri QC submitted that Cameron was distinguishable because it concerned an equivalent provision to s 12 of the Limitation Act, and not s 44.

50    Finally, in response to the applicant’s alternative reliance on the power in s 33ZF, the respondent submitted that this reliance was misconceived because:

(a)    the power in s 33ZF is not an alternative if the separate question is answered in the negative, because the separate question is confined to the proper construction of s 44 and did not raise an issue concerning s 33ZF;

(b)    s 33ZF cannot be used as a vehicle to rewrite Pt IVA and to avoid procedures and constraints imposed by other provisions in that Part; and

(c)    the power in s 33ZF does not permit a rewriting of s 44 of the Limitation Act, which would raise “significant constitutional questions” which would attract the requirements of s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act).

Consideration and determination

51    For the following reasons, I consider that the separate question should be answered in the affirmative, to the effect that the power of the Court to extend time under s 44 of the Limitation Act applies not only to the applicant but also to each of the group members (as defined) who is able to satisfy the requirements of that provision.

52    First, in this matter the primary task is to construe and apply to the particular proceeding the relevant provisions of the Limitation Act. That task should be approached by reference to the now relatively well established principles of contemporary statutory construction, as summarised above in respect of the parties’ respective contentions. Having ascertained the proper legal meaning of the relevant provisions of the Limitation Act the task is then one of determining the extent to which the relevant provisions in the Limitation Act operate in respect of this proceeding brought under Pt IVA of the FCA Act.

53    Secondly, the context in which the relevant provisions of the Limitation Act are to be construed and applied includes not only the beneficial purpose of the legislation, as is reflected in the extract from the Second Reading Speech set out in [23] above, but also (and possibly more significantly) to the fact that, even though Pt IVA of the FCA Act had not been enacted at the time the Limitation Act was enacted, traditional representative actions were well known in the Northern Territory. This is reflected in the fact that, in 1981, o 19 r 10 of the Rules of the Supreme Court of the Northern Territory recognised the right to bring a traditional representative proceeding in that jurisdiction:

Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorized by the Court or a Judge to defend, in such cause or matter on behalf or for the benefit of all persons so interested.

54    It may be inferred that, in these circumstances, s 44 of the Limitation Act was enacted at a time when it must have been apparent that the traditional representative procedure applied in that jurisdiction and it may reasonably be inferred that that procedure was taken into account in formulating the terms of the Limitation Act, including ss 12 and 44. This view is supported by the statement in the Second Reading Speech that the Bill “seeks to provide for a comprehensive code of limitation periods in respect of all actions rather than simply providing limitation periods in respect of the general law and leaving individual statutes to provide for individual limitation periods in particular circumstances” (emphasis added). It can reasonably be inferred that the provisions were intended to accommodate not only orthodox proceedings but also class actions in the form of traditional representative proceedings.

55    Thirdly, the applicant’s submission that the definition of “plaintiff” in s 4 of the Limitation Act is sufficiently broad to include not only a person who instigates proceedings for themselves but also other persons in respect of whom a proceeding is commenced should be accepted. The definition of “plaintiff” in s 4 of the Limitation Act as “a person bringing an action” is expressed in sufficiently wide terms to encompass persons on whose behalf a proceeding is commenced and maintained by one or other persons, as is the case in a traditional representative proceeding or a proceeding brought in reliance upon Pt IVA of the FCA Act. The definitions of “representative party” and “group member” in s 33A of the FCA Act leave no room for any doubt that a representative proceeding commenced by a representative party under that statutory regime includes persons on whose behalf the proceeding has been commenced and that such persons are known as group members. Such persons are properly regarded as plaintiffs for the purposes of s 44 of the Limitation Act.

56    I respectfully agree with the view expressed by McKerracher J in Morgan that a group member in a Pt IVA proceeding, whether named individually or not, is a person on whose behalf the proceedings have been commenced by the representative party and is to be regarded as themselves having brought the proceedings. It is equally appropriate to describe a group member as having instituted an action within the terms of s 44(1) of the Limitation Act. A similar approach has been taken in respect of traditional representative proceedings as is exemplified by cases such as Cameron and Fostif.

57    I also respectfully agree with the parties’ common position that there is no material distinction between the concepts of “instituting”, “commencing”, “bringing” or “maintaining” an action.

58    The applicant’s submission that the definition of “action” in s 4 of the Limitation Act is broad enough to encompass any form of legal proceeding, including a proceeding commenced by a representative party under Pt IVA of the FCA Act should also be accepted. That definition encompasses any proceeding in a court of competent jurisdiction, which includes not only a traditional representative proceeding but also a proceeding brought in reliance upon Pt IVA of the FCA Act. The fact that Pt IVA was not in existence when the Limitation Act was enacted is not determinative of the issue having regard to the well-known principle of construction that a statute is generally to be regarded as “always speaking” (see R v Gee [2003] HCA 12; 212 CLR 230 at [7]; Stingel v Clark [2006] HCA 37; 226 CLR 442 at [26]-[27] and Commissioner of Police (NSW) v Eaton [2013] HCA 2; 252 CLR 1 at [97] per Gageler J). The respondent did not suggest that any of the qualifications to that principle applied here. As highlighted above, the relevant provisions of the Limitation Act are expressed in sufficiently broad terms to accommodate a Pt IVA proceeding.

59    Thirdly, acceptance of the respondent’s preferred construction of s 44 as not accommodating group members in a Pt IVA proceeding would have a profoundly unlikely and scarcely intended result, namely that the bar imposed by s 12(1)(b) of the Limitation Act has no application to group members in a Pt IVA proceeding. This is because, on the respondent’s construction, the commencement of a Pt IVA representative proceeding does not constitute the bringing of an action by group members. Consequently, while the applicant in such a proceeding would be confronted by the bar in s 12(1)(b), group members would not on the respondent’s construction. This seems most improbable and gives rise to anomalous consequences which could hardly have been intended (see the final sentence of the extract from CIC Insurance set out in [37] above).

60    In my view, a preferable construction, which is consistent with the text, context and purpose of the provision, is one which treats both the representative party and the group members as having instituted a proceeding when the Pt IVA regime is relied upon, with the consequence that the requirements of s 44 apply equally to both the representative party and each of the group members. As noted above, the applicant acknowledged that each of the group members in this proceeding would need in due course to persuade the Court that his or her particular circumstances satisfy the requirements in s 44(3)(b).

61    Fourthly, contrary to the respondent’s position, s 33ZE does not operate to avoid the anomalous consequences produced by the respondent’s preferred construction. This provision only applies to Pt IVA proceedings which are commenced within time and it has no application where the relevant limitation period had already expired when the proceeding was commenced, as is the case here.

62    The applicant’s preferred construction does not produce any evident anomalous consequences. It simply places group members in the same position as the representative party in terms of needing to establish that the requirements of s 44 of the Limitation Act are satisfied if time is to be extended so as to overcome the bar in s 12(1)(b).

63    For these reasons, the separate question should be answered in the affirmative. I should make it clear that this does not prejudice the respondent’s rights to raise in its defence other matters which it alleges constitute non-compliance with the relevant requirements of Pt IVA of the FCA Act.

64    Having regard to the resolution of the separate question in the applicant’s favour it is unnecessary to determine the applicant’s alternative reliance on s 33ZF of the FCA Act as providing a source of power for the Court to, in effect, circumvent the requirements in s 44 in the particular circumstances here. I can indicate, however, that if it had been necessary to determine the matter I would have accepted the respondent’s position that s 33ZF has no application to the particular issue here, relying on some but not necessarily all of the respondent’s submissions in relation to that position.

65    Finally, I do not accept the respondent’s submission that various provisions in Pt IVA of the FCA Act demonstrate that group members are not persons who institute or bring an action in a representative proceeding (see [43] above). These provisions are not inconsistent with the concept which is central to the definition of a group member, namely a person on whose behalf a representative proceeding has been commenced (or instituted). In particular:

(a)    ss 33Z and 33ZB, which permit the Court to decide common issues and make an award of damages in favour of group members, are not inconsistent with the notion of group members bringing an action. As the applicant pointed out, it would be remarkable if group members could have their claims determined in a Pt IVA proceeding, be bound by any subsequent judgment, and receive an award of damages without them being treated as having brought an action in respect of those claims;

(b)    s 33R, which allows the Court to permit a group member to appear in a representative proceeding to resolve an issue that relates only to the claim of that group member, is not inconsistent with the notion of a group member bringing a proceeding. The respondent’s reliance on this provision appears to have been based on a misapprehension which equates the notion of bringing a Pt IVA proceeding with being a “party” to such a proceeding. This ignores the fact that the definition of a “plaintiff” in the Limitation Act places no reliance on whether or not a person is a “party” to a proceeding and simply requires that the person bring an “action”;

(c)    s 33S, which permits the Court to give directions in relation to the commencement and conduct of a separate proceeding by a group member in certain circumstances, is not inconsistent with the notion of group members bringing a proceeding. Rather, the provision empowers the Court to allow a separate proceeding to be commenced where a matter cannot adequately be addressed in the context of an existing Pt IVA proceeding;

(d)    s 33P, which relates to a situation where the Court makes orders that a representative proceeding no longer continue under Pt IVA, is not inconsistent with the notion and the respondent’s reliance upon it is misconceived because it has elided the concept of a person bringing an action with the concept of a person being a “party” to the proceeding; and

(e)    s 33ZH, which is a deeming provision which provides that a group member is taken to be a party to a representative proceeding for the purposes of compensation provisions set out in s 87(1) of the Competition and Consumer Act 2010 (Cth) and s 238(1) of the Australian Consumer Law, is not inconsistent with the notion and the respondent’s reliance upon it is based upon the same elision of the concepts of bringing an action and being a party to the action.

66    As to costs, I am not persuaded that the respondent should not bear the applicant’s costs of the separate question having regard to the contested position adopted by it concerning the relevant questions of statutory construction.

Conclusion

67    For these reasons, the separate question should be answered in the affirmative and the respondent ordered to pay the applicant’s costs of and incidental to the separate question.

Associate:

Dated:    24 January 2017