FEDERAL COURT OF AUSTRALIA

The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 3) [2020] FCA 748

ORDERS

THE COURT ORDERS THAT:

1.    Within two weeks of the date of these orders, the parties are to confer with a view to agreeing on the orders to give effect to this judgment.

2.    If the parties are able to agree on the orders to give effect to this judgment, within three weeks of the date of these orders they are to provide a draft of those orders to the Court and arrange to have the matter listed for a case management hearing at which the proposed orders can be considered and, if considered appropriate, made by the Court.

3.    If the parties are unable to agree on the orders to give effect to this judgment, within three weeks of the date of these orders they are to file and serve written submissions, not exceeding ten pages, which annex their respective proposed orders and address the areas of disagreement, and arrange to have the matter listed for the hearing and determination of the issues dividing the parties in respect of the orders.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant in this representative proceeding, The Owners – Strata Plan No 87231, claims that the first respondent, 3A Composites GmbH, and the second respondent, Halifax Vogel Group Pty Limited, are liable to pay it, and the group members on whose behalf the proceeding has been commenced, statutory compensation and damages under the Trade Practices Act 1974 (Cth) (TPA), the Competition and Consumer Act 2010 (Cth) (CCA), and the Australian Consumer Law (Schedule 2 to the CCA) (ACL). Owners’ claims relate to, or arise from, their alleged acquisition of aluminium composite panels, with the brand name “Alucobond PE” and “Alucobond Plus”, which were manufactured by 3A and distributed in Australia by Halifax. Alucobond panels were fitted to apartments and other types of buildings throughout the States and Territories of Australia, including the building the common property of which is owned by Owners. The group members in the proceeding are persons who, like Owners, at some point have had an ownership or leasehold interest in a building to which Alucobond panels have been affixed.

2    In simple terms, Owners alleges that the relevant Alucobond panels were not fit for purpose or not of merchantable or acceptable quality because they were flammable or combustible and therefore dangerous and liable or prone to be banned by regulatory agencies in the States and Territories. They claim that 3A and Halifax are liable to compensate it and group members for loss and damage that they have suffered as a result of the panels not being of merchantable quality (s 74D of the TPA) or acceptable quality (ss 54 and 271 of the ACL). In its recently amended pleading, Owners also alleges that 3A and Halifax made misleading representations or engaged in misleading conduct concerning the nature of the Alucobond panels contrary to ss 53 and 55 of the TPA and ss 29 and 33 of the ACL. Owners claims damages pursuant to s 82 of the TPA and s 236 of the ACL or compensation pursuant to s 87 of the TPA and s 237 of the ACL arising from those contraventions.

3    An interlocutory issue has arisen in the conduct of the proceeding which needs to be resolved. 3A contends that it is likely to have potential contribution claims against various third parties in respect of the case brought against it by Owners and, perhaps more significantly, the claims of all group members. The potential contribution claims are against developers, builders, façade subcontractors, architects, private certifiers, fire or fire safety engineers or consultants, and other building consultants who were engaged in relation to the planning, development, construction, and certification of buildings to which Alucobond panels were affixed. 3A alleges that if it is liable in respect of any loss or damage suffered by Owners and the group members, those professionals who provided services or advice in relation to the use of Alucobond panels in or on the relevant buildings would, if sued by Owners and the group members, be liable in respect of the same damage. In those circumstances, 3A claims that it may seek to recover statutory contribution from them. Owners wishes to investigate and take appropriate steps in relation to those potential claims.

4    3A’s contention that it wishes to investigate those potential contribution claims has given rise to two issues: one being relatively immediate but not entirely intractable; the other being more contentious and capable of giving rise to at least a risk of prejudice to 3A if not resolved in the near future.

5    The first issue is that 3A needs information from the relevant building owners or lessees concerning the third parties against whom it has potential contribution claims. It has requested Owners to provide that information in respect of its building and, while some information has been provided in response to that request, there is an issue, albeit a relatively minor one, concerning whether its request has been fully satisfied.

6    This issue, however, is somewhat more complex when it comes to the claims of group members. That is because 3A does not know who the group members are, or at least does not know who all of them are. Nor, needless to say, does it know what professionals were retained in respect of the design, development, or construction of the properties in which the group members have a relevant interest. To make matters worse, even if it did know who the group members were, 3A would not necessarily be able to compel group members to provide the information it needs to investigate its potential claims.

7    3A sought to remedy this situation by applying for the approval of a notice to group members which would request or invite them to register their claims in this proceeding and, in doing so, provide the information which 3A needs to explore the potential contribution claims. Owners opposed that application, though it ultimately acknowledged that some form of registration regime, which also involved registering group members providing relevant information concerning their claims, may be appropriate in the circumstances.

8    The second issue, however, is more difficult and somewhat more pressing. 3A contended that a registration regime alone would not suffice. That was said to be because certain limitation provisions in various State and Territory statutes may apply to its potential contribution claims. Those limitation provisions, which apply to proceedings relating to, or arising from, building defects, are referred to as “long stop” limitation provisions because the limitation provisions which they create are generally not able to be extended. In those circumstances, 3A submitted that if the limitation provisions apply and have commenced to run, there was a real risk that unless it takes immediate action, some of its contribution claims may become statute barred in the relatively near future. More significantly, 3A submitted that if any registration process was not effectively mandatory, it faced the prospect of group members only identifying themselves after the trial of the common questions and after the relevant limitation periods had expired. That would, in its submission, cause it irremediable prejudice.

9    3A sought to remedy that situation by seeking an order which had the effect of “closing the class”. The order sought by 3A in that regard provided that group members who had not registered their claims and provided the requested information within a specified period would not be able to receive any distribution from any settlement or judgment in the proceeding. Those non-registering group members would nevertheless be bound by the terms of the settlement or judgment. Owners strenuously opposed the making of any such order. This was undoubtedly the most contentious aspect of 3A’s application.

10    3A also sought a number of alternative orders in the event that the Court was unable or unwilling to make the proposed class closure order. Those alternative orders included an order requiring Owners to amend the group member definition and an order that the proceeding not proceed as a representative proceeding. There were also a number of ancillary issues concerning the manner in which group members were to be notified of the need to register.

11    The resolution of 3A’s interlocutory application was complicated and delayed by the fact that, after the initial hearing of the application, Owners’ sought, and was ultimately granted, leave to amend its originating application and statement of claim. The amendments to the pleading were extensive: see The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 2) [2020] FCA 333 (Owners (No 2)). The issues raised by this interlocutory application have been approached and resolved by reference to the amended pleading.

12    Halifax did not file its own interlocutory application. It supported 3A’s application, but did not advance any submissions of substance in its own right. Such submissions as it did advance related to the suggestion, raised by Owners, that one way to resolve the issue concerning the identification of the group members was to require Halifax to discover documents which would disclose the buildings in Australia to which Alucobond panels had been affixed. That would, in turn, allow the group members to be identified. Halifax contended that ordering it to discover such documents would not resolve the issue and would, in any event, be unduly burdensome and costly. As will be seen, it is ultimately unnecessary to resolve this issue. Given Halifax’s limited role in this interlocutory dispute, these reasons will refer to 3A as the relevant moving party.

13    The issues raised by this interlocutory dispute were by no means straightforward or easy to resolve. It is necessary to give close attention to: the scope and nature of the representative proceeding; the nature of the potential contribution claims by 3A; the potential applicability and effect of the relevant limitation provisions; the Court’s power to make the orders sought by 3A; the appropriateness of the orders sought by 3A; and the availability and appropriateness of other orders to address any potential prejudice arising from the potential operation of the limitation provisions.

14    After the hearing of the application, the Court of Appeal of the New South Wales Supreme Court handed down a judgment in Haselhurst v Toyota Motor Corporation Ltd t/as Toyota Australia [2020] NSWCA 66. That judgment had a potentially significant bearing on the question whether this Court has the power to make the class closure order sought by 3A. The parties were invited to make supplementary submissions in relation to the impact of the decision in Haselhurst. They also requested a further oral hearing. The submissions advanced by the parties addressed not only Haselhurst, but also the significance of the recent decision of the High Court in BMW Australia Ltd v Brewster (2019) 94 ALJR 51; [2019] HCA 45.

NATURE AND SCOPE OF THE REPRESENTATIVE PROCEEDING

15    The nature and scope of the representative proceeding commenced by Owners is referred to at some length in Owners (No 2). It is unnecessary to repeat what was said there. The following short summary is essentially based on the Concise Statement recently filed by Owners. It should perhaps be noted, however, that this summary of the case advanced by Owners tends to belie the factual and legal complexity of the case as pleaded. Needless to say, the facts as outlined here are, at this stage, mere allegations and are, or may be, disputed by 3A and Halifax.

16    During the ten year period preceding the commencement of this proceeding, 3A manufactured two types of aluminium composite panels. Those panels were branded and marketed as “Alucobond PE” and “Alucobond Plus”. While those two products were different in certain respects, they will, for the sake of simplicity, generally be referred to collectively as the Alucobond panels unless further specificity is required. The Alucobond panels were exclusively distributed in Australia by Halifax.

17    The Alucobond panels were a form of light-weight architectural cladding. They were said to be suitable for a wide variety of uses on residential, commercial, and public buildings. The essence or main thrust of the case advanced by Owners is that Alucobond panels were in fact not suitable for use on any such buildings because they posed significant fire risks and were an inherently dangerous building product. That is alleged to be the case because the core of the panels comprised or included a proportion of polyethylene, which is a highly flammable plastic with a calorific value similar to that of petrol or diesel fuel. When subjected to the heat of a building fire, the aluminium coversheets which are glued to the core are, so it is alleged, prone to degrade and delaminate, thereby exposing the flammable polyethylene core. The core, once ignited as a result of that process, then burns fiercely causing the building fire to spread rapidly.

18    Owners alleges that, given the fire risks posed by Alucobond panels, there was always a risk that the relevant State or Territory building regulatory authorities in Australia could or would ban or prevent the use of the product, or find that the product did not comply with relevant building codes or standards. Perhaps more significantly, it is alleged that there was always a risk that those authorities could or would direct the owners of buildings to which Alucobond panels have been affixed to remove or replace the panels at their own cost.

19    The principal causes of action relied on by Owners are causes of action based on s 74D of the TPA and s 54 of the ACL. Those provisions require, in general terms, that goods relevantly supplied to, or acquired by, consumers are to be of merchantable or acceptable quality, respectively. That in turn requires, in simple or summary terms, that the goods be fit for all the purposes for which such goods are commonly bought. Owners alleges, in essence, that Alucobond panels were not fit for purpose and were not of merchantable or acceptable quality because they created or posed both a fire risk and a material risk that the relevant authorities might require them to be removed from buildings.

20    Owners is the owner of the common property of an apartment building upon which Alucobond panels have been affixed as part of, or as an attachment to, the external walls. The group members upon whose behalf the proceeding has been commenced are defined as persons who either own or have previously owned, or have or have previously had an ownership or leasehold interest in, a building in Australia which had been fitted with Alucobond panels where those panels were supplied within the ten year period preceding the commencement of the proceeding. It should perhaps be emphasised, at this point, that on just about any view, the size and scope of the proceeding is, or is likely to be, large and broad given the group member definition. Of particular significance, given the potential importance of limitation periods, is that the claims of some group members may relate to Alucobond panels supplied as long ago as 2009.

21    It is alleged that Owners and the group members suffered loss or damage arising from the fact that the Alucobond panels which they acquired, by reason of their ownership or leasehold interest in buildings upon which the panels were affixed, were not of acceptable or merchantable quality. The loss or damage is said to include the cost of removing and replacing the Alucobond panels, or otherwise rectifying the issues caused by them, or the reduction in the value of the building.

22    Owners now also relies on causes of action under s 53 of the TPA and s 29 of the ACL. It alleges that 3A and Halifax made misleading representations and engaged in misleading conduct concerning the nature of Alucobond panels. The alleged misleading representations concern, in general terms, the suitability, fabrication, and fire performance qualities of Alucobond panels, as well as their compliance with relevant building codes. The alleged misleading conduct concerns, in general terms, the failure to warn Owners and the group members about the suitability, fabrication and fire performance qualities (or the lack thereof, as the case may be) of Alucobond panels, and the fact that the panels did not, or might not, comply with relevant building codes.

23    The defences filed by 3A and Halifax to date join issue with many, if not most, of the key allegations made in Owners’ pleading. They also aver, among other things, that Alucobond panels were capable of being used safely and in compliance with relevant building codes, particularly when used in accordance with designs, plans, and specifications prepared by appropriately qualified and certified professionals.

24    The evidence filed by the parties in relation to the interlocutory application suggests that there is likely to be more, perhaps many more, than 1,000 group members and that the potential damages claims may total many billions of dollars.

THE POTENTIAL CONTRIBUTION CLAIMS

25    The potential contribution claims that 3A wishes to investigate are detailed at length in an affidavit sworn by its solicitor, Mr Samuel James Dundas. It is unnecessary to consider Mr Dundas’ evidence concerning the potential contribution claims in any great detail. While in its written submissions Owners asserted that 3A had not “properly articulated” any cross claims and that “it is difficult to see how any reasonably arguable cross claims could properly be brought”, Owners did not seek to cross-examine Mr Dundas or to otherwise challenge his evidence. Nor did it explain, in its written or oral submissions, exactly why the potential contribution claims articulated in Mr Dundas’ affidavit could not be said to be reasonably arguable, or were at least not worthy of proper investigation by 3A. Owners’ submissions, rather, focussed essentially on the limitation issues which formed the main basis of 3A’s application.

26    It is nevertheless necessary to give some more detailed consideration to the potential contribution claims that 3A claims it wishes to investigate.

The factual basis of the potential contribution claims

27    In relation to Owners’ claims, Mr Dundas’ evidence was that 3A wishes to investigate the availability of cross claims for contribution or indemnity against a number of third party professionals or tradesmen who were involved in the design, construction, or certification of the Shore building, which is the building upon which Alucobond panels have been affixed and in which Owners has a relevant ownership interest. Those third parties include the developers, the builders, the relevant façade subcontractors, the architects, the private certifiers, the fire or fire safety engineers and consultants, and the BCA [Building Code of Australia] consultants. The contribution claims that 3A may have against those third parties are said to be based on, or arise from, claims that Owners might or would have against them for breach of contractual or statutory warranties, negligence, or misleading or deceptive conduct contrary to the TPA or ACL.

28    The essence of 3A’s contention concerning the potential availability of contribution claims against the third parties is that some or all of them owed common law, contractual, or statutory duties or obligations in respect of the design, construction, and certification of the Shore building, including the use and affixation of Alucobond panels. If, as Owners contends, the Alucobond panels that were affixed to the Shore building were dangerous, defective, or not of acceptable quality, 3A contends that it may well be the case that the third parties breached their duties, or failed to comply with their relevant obligations. For example, by using Alucobond panels in those circumstances, the developer and builder may have breached statutory warranties imposed by provisions in the Home Building Act 1989 (NSW). Likewise, the architect may have acted negligently or engaged in misleading conduct if the advice or services provided in relation to the design or supervision of the construction included advice concerning the use of Alucobond panels. The same can be said in relation to the advice and services provided by engineers, construction or BCA consultants and certifiers.

29    The evidence of Mr Dundas was that he had been able to ascertain the identity, or likely identity, of the developer, the builder, the façade subcontractors, the architect, the private certifier, the fire consultant, and the BCA consultant involved in the design, development, and construction of the Shore building. He said, however, that he had insufficient information and documentation to properly advise 3A as to the preparation or filing of contribution claims against any of those third parties. That was the basis of the application for orders that would require Owners to provide further information or documentation relevant to the potential claims.

30    The effect of Mr Dundas’ evidence was that he had even less information in relation to potential third party contribution claims arising from, or relating to, the claims of the group members. While it would appear that there are likely to be more than 1,000 group members and therefore more than 1,000 buildings to which Alucobond panels have been affixed, Mr Dundas’ evidence was that he does not know the identity of the group members, or the location of the affected buildings. Mr Dundas also said that he anticipated that professionals or tradesmen such as developers, builders, façade subcontractors, architects, certifiers, fire or fire safety engineers or consultants, and construction consultants were likely to have been involved in the design, development, building, and certification of the buildings owned by group members. The services and advice provided by those professionals or tradesmen was likely to have included services and advice concerning the use of Alucobond panels. The difficulty, however, was that he was unaware of the identity of those third parties. It followed that, while 3A wished to investigate and take appropriate steps to preserve its rights with respect to any claims for contribution that it may have against some or all of those third parties, Mr Dundas had insufficient information or documents to advise 3A as to the availability of 3A’s claims in that regard.

31    There could be little doubt that Mr Dundas has a paucity of information and documents concerning the involvement of third parties in the design, development, construction, and certification of buildings to which Alucobond panels have been affixed throughout the States and Territories. In all the circumstances, however, there would appear to be reasonable grounds for Mr Dundas to expect or anticipate that 3A may have a proper factual basis upon which to pursue potential contribution claims against third parties in respect of the claims that Owners and the group members have against it. If, as Owners contends, Alucobond panels were dangerous, defective, or not of acceptable quality for affixation to buildings, it is unrealistic to expect that third parties such as developers, builders, façade subcontractors, architects, certifiers, and fire and constructions consultants might not also bear some liability for any loss or damage suffered by Owners and group members arising from the use of the panels in buildings owned or leased by them.

32    Indeed, the potential availability of such third party contribution claims is amply illustrated by the decision of the Victorian Civil and Administrative Tribunal in Owners Corporation No. 1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286. That case concerned the “attribution of responsibility to (and among) the eight respondents for the damage caused” by a fire which occurred in a building in La Trobe Street, Docklands in Victoria (at [3]). It was found that the rapid spread of the fire was in part a result of the fact that aluminium composite panels with a core containing polyethylene were installed on the external walls of the building (at [244]). The eight respondents included the builder, the building surveyor, the architects, and the fire engineer who were responsible for the design and construction of the building. A number of the respondents were found liable and the damages payable by them were apportioned between them (see the summary at [7]). Of course, this decision is simply illustrative of the potential liability of building and construction professionals arising from the use of materials found to be defective, deficient, or of unacceptable quality. It does, however, provide a fairly sound basis upon which it might be expected that 3A may have contribution claims against similar professionals and tradesmen if it is found liable to Owners and group members.

The legal basis of the potential contribution claims

33    The evidence of Mr Dundas did not really address the legal basis upon which it was said that 3A could pursue contribution claims against professionals such as developers, builders, façade subcontractors, architects, private certifiers, fire or fire safety engineers or consultants who were engaged in respect of the buildings upon which Alucobond panels were affixed. That issue was, however, addressed in 3A’s submissions. 3A contended that the legal basis for its potential contribution claims was the existence of statutory provisions in the States and Territories which provided a right of action for contribution between tortfeasors or wrongdoers.

34    There are, however, some potential issues in relation to the application of those State and Territory provisions, or at least some of them, to situations where, as here, the wrongdoers who are alleged to have caused damage to the applicant may not necessarily be said to be “tortfeasors”, or where the wrongdoers are alleged to be liable or potentially liable under different causes of action to those founding the applicant’s claims. The issues are particularly acute in New South Wales, where the relevant legislation has been described as being “a piece of law reform which seems itself to call somewhat urgently for reform” (Bitumen and Oil Refineries (Australia) Limited v Commissioner for Government Transport (1955) 92 CLR 200 at 211) and as being “notorious for the conceptual and practical difficulties it engenders”: James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78 at [7]; see Rahul Arora, ‘Contribution between wrongdoers of mixed liability: Discerning the role of equity and statute’ (2018) 45 Australian Bar Review 130.

35    In New South Wales, subs 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (LRMP Act) relevantly provides as follows:

Proceedings against and contribution between joint and several tort-feasors

(1)     Where damage is suffered by any person as a result of a tort (whether a crime or not):

…

(c)    any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been liable, in respect of the same damage ...

36    There are some potential issues in applying this provision to the claims against 3A and its proposed contribution claims.

37    One issue is whether it can be said, in the context of the case pleaded against 3A, that Owners and the group members have suffered damage as a result of a “tort” and whether 3A can be said to be a “tortfeasor” (or alleged tortfeasor) in respect of that damage. It will be recalled that the case pleaded against 3A is that it is liable to pay Owners’ and the group members’ damages or compensation under the TPA and ACL arising from their acquisition of goods that were not of merchantable or acceptable quality and as a result of misleading representations or conduct. The question is whether those statutory actions under the TPA and ACL can be said, for the purposes of the LRMP Act, to be “torts” and whether 3A can be said to be a “tortfeasor” if found liable under those provisions.

38    It is not necessary, for present purposes, to reach a concluded view in relation to that question. It is necessary only to consider whether the circumstances are such that it is reasonably arguable that subs 5(1)(c) of the LRMP Act may be engaged such as to give 3A a right to seek contribution from other tortfeasors who may also be liable in respect of the same damage suffered by Owners and the group members.

39    It is at least reasonably arguable that 3A may be considered to be a tortfeasor in respect of the claims by Owners and the group members for the purposes of subs 5(1)(c) of the LRMP Act. That is so for at least two reasons.

40    First, it would appear to be relatively well-settled that the application of subs 5(1)(c) of the LRMP Act does not depend upon a successful action in tort against the alleged tortfeasor by the person suffering damage. A defendant or respondent against whom an action for damages is brought may seek contribution even if the case pleaded against them is or was not a tort so long as they can demonstrate that they could also be held liable in tort for the same damages: Australian Breeders Co-Operative Society Ltd v Jones (1997) 150 ALR 488; [1997] FCA 1405 at 548-549. As Giles J put it in RW Miller & Co Pty Ltd v Krupp (Australia) (unreported, Giles J, 9 June 1992): “[i]t is enough that [the defendant] is a tortfeasor in respect of the plaintiff’s loss (although not held liable in tort at the suit of the plaintiff) and liable in respect of the plaintiff’s loss (although held liable in contract at the suit of the plaintiff)” and that “a defendant’s rights should [not] depend on how the plaintiff chooses to proceed”.

41    The clearest case in which this principle may apply is where a defendant is sued for breaching a contractual obligation which is co-extensive with a duty in tort. A defendant in such a case would be able to seek contribution under subs 5(1)(c) of the LRMP Act from a third party who is or may be liable to the plaintiff in tort for the same damage. There is, however, no immediately apparent reason why the principle would not apply equally in the case where a defendant is liable or potentially liable for damages in respect of a statutory cause of action if that action involves a breach of a statutory obligation or standard which corresponds or is co-extensive with a common law obligation or standard breach of which would constitute a tort. It would therefore perhaps be open to 3A to argue that, while Owners and the group members have sued it for damages or compensation under the TPA and ACL, they may equally have relied on a cause of action in tort and may have been held liable in tort.

42    Second, while there have been conflicting decisions over the years on this point, there is at least some authority to suggest that an action for damages under s 82 of the TPA for breach of s 52 of the TPA (a statutory prohibition of misleading or deceptive conduct) can be regarded as a “tort” and that the person who breached s 52 of the TPA may be considered to be a “tortfeasor” for the purposes of subs 5(1)(c) of the LRMP Act. In Australia and New Zealand Banking Group Ltd v Turnbull (1991) 33 FCR 265; [1991] FCA 920, Sheppard J held (at 277) that an action for breach of s 52 of the TPA was entirely statutory and not a tort. In Dorrough v Bank of Melbourne Ltd (1995) ATPR (Digest) 46-152, however, Cooper J said that there was a “substantial argument” that an action for breach of s 52 was a tort. His Honour was particularly influenced by an article by Mr J C Campbell (subsequently Campbell JA of the Court of Appeal of the Supreme Court of New South Wales), ‘Contribution, Contributory Negligence and Section 52 of the Trade Practices Act – Part I’ 67 Australian Law Journal 87. In Bialkower v Acohs Pty Ltd (1998) 154 ALR 534; [1998] FCA 446, the Full Court said that it preferred the views of Sheppard J in Turnbull, though it was unnecessary for the court to decide the matter. The same view was expressed by Lehane J in Burke v LFOT Pty Ltd (2000) 178 ALR 161; [2000] FCA 1155 at [131], though s 5 of the LRMP Act was not in issue in that case and nothing relevant was said in relation to it on appeal: (2002) 209 CLR 282; [2002] HCA 17.

43    In Jonstan Pty Limited v Nicholson (2003) 58 NSWLR 223; [2003] NSWSC 500, Hulme J gave detailed consideration to whether a breach of s 52 of the TPA was a tort and whether a person who breached that provision was a tortfeasor for the purposes of s 5 of the LRMP Act. Two defendants in that case had been found to be liable to the plaintiff for contravening s 52 of the TPA. The question was whether those defendants were tortfeasors and liable for, or entitled to, contribution, pursuant to s 5 of the LRMP Act. Hulme J found that they were.

44    Hulme J observed that there was no precise and universally accepted definition of “tort” at the time of the enactment of the legislation in the United Kingdom which was adopted verbatim in s 5 of the LRMP Act. His Honour referred, in that regard, to various definitions that had been included in well-known texts over the years. His Honour also referred to extrinsic material in relation to the enactment of s 5 of the LRMP Act which, in his Honour’s view, suggested that “no narrow meaning was intended to be given to the terms “tort” and “tortfeasor” and that “tort” was being used in contradistinction to contract”: Jonstan at [96].

45    Hulme J also considered the previous decisions which had addressed whether breach of s 52 of the TPA was a tort, including Turnbull, Dorrough and Bialkower. While his Honour did not say so in terms, his Honour appears to have concluded that the decisions in Turnbull and Bialkower adopted an overly narrow definition of “tort” that was not supported by the legislative intention suggested by the extrinsic material. His Honour was ultimately disposed to give the word “tort” in s 5 of the LRMP Act the meaning assigned to it in P H Winfield, Law of Torts (1st ed, Sweet & Maxwell, 1937): “[t]ortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”. His Honour noted (at [75]), in that context, that the statutory obligation created by s 52 of the TPA was “one which, absent s 82 … would be regarded as one the breach of which gives rise to a cause of action and amounts to a tort”. Upon detailed analysis, his Honour concluded that the presence of s 82 did not compel the conclusion that a breach of s 52 was not a tort.

46    It is unnecessary, for present purposes, to determine the correctness of Hulme J’s finding in Jonstan or to seek to reconcile it with the earlier contrary views expressed in this Court in Turnbull and Bialkower, noting that the view expressed by the Full Court in Bialkower was plainly dicta and is therefore not binding. It suffices to say that the decision in Jonstan indicates that it is at the very least reasonably arguable that a breach of s 52 of the TPA is a “tort” and the person who breaches s 52 is a “tortfeasor” for the purposes of s 5 of the LRMP Act. It would equally follow that it is at least reasonably arguable that, for the purposes of s 5 of the LRMP Act, an action under s 74D of the TPA for damages for the supply of goods which were not of merchantable quality, and an action for damages under s 271 of the ACL for non-compliance with an acceptable quality guarantee under s 54 of the ACL, are both actions in tort and the defendant or respondent in such actions is a “tortfeasor”. It is therefore reasonably arguable that 3A can have resort to s 5 of the LRMP Act and seek contribution from any other tortfeasor who caused Owners and group members to suffer loss or damage arising from the affixation of Alucobond panels to buildings in which they have an interest.

47    Another potential issue in relation to the application of subs 5(1)(c) of the LRMP Act is that the party against whom contribution is sought must also be a tortfeasor liable in respect of the same damage. It may be noted, in this context, that the causes of action against the third party professionals which 3A wishes to investigate as the basis of its claims for contribution include actions for “common law negligence”, breach of statutory warranties imposed by State and Territory building or environmental legislation including, for example, the Home Building Act, and claims under ss 18 and 29 of the ACL and ss 52 and 53 of the TPA. Obviously a third party professional who is alleged to be liable for negligence would be a tortfeasor for the purposes of subs 5(1)(c) of the LRMP Act. As for claims for breach of warranties under legislation such as the Home Building Act, many of the warranties imposed by that legislation are co-extensive with duties in tort, so the third party professionals could arguably be considered to be tortfeasors for the purposes of the application of subs 5(1)(c) of the LRMP Act on the basis of the principle in Australian Breeders referred to earlier. As for the claims based on causes of action under the ACL and TPA, the third party professionals could arguably be considered to be tortfeasors on the basis of the decision in Jonstan.

48    It follows that, despite the potential issues which may arise in applying subs 5(1)(c) of the LRMP Act, it is at least arguable that 3A may have statutory contribution claims against relevant third party professionals which can be brought under that provision.

49    There are provisions which are in similar terms to subs 5(1)(c) of the LRMP Act in Queensland, Western Australia, and the Northern Territory: s 6 of the Law Reform Act 1995 (Qld); s 7 of the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA); ss 12-13 of the Law Reform (Miscellaneous Provisions) Act 1956 (NT). The same issues accordingly may arise in the application of those provisions to the contribution claims that 3A wishes to investigate in respect of group member claims in Queensland, Western Australia, and the Northern Territory. For the reasons just given in the context of the application of subs 5(1)(c) of the LRMP Act in New South Wales, however, it is at least arguable that 3A has a proper legal basis upon which to make contribution claims against relevant third party professionals in Queensland, Western Australia, and the Northern Territory.

50    The position is somewhat clearer in relation to statutory provisions concerning contribution claims in the other States and Territories. That is because those provisions tend not to be restricted to torts and tortfeasors.

51    Subsection 23B(1) of the Wrongs Act 1958 (Vic), for example, provides as follows:

Entitlement to Contribution

(1)     Subject to the following provisions of this section, a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise).

52    Some of the others subsections of s 23B of the Wrongs Act deal with limitation issues. Those provisions will be considered later in these reasons. It suffices to note, for present purposes, that having regard to the nature of the claims by Owners and the group members, 3A could be said to be “a person liable in respect of any damage suffered” by Owners and the group members. It can therefore recover contribution from “any other person liable in respect of the same damage”. That arguably could include professionals such as developers, builders, façade subcontractors, architects, private certifiers, fire or fire safety engineers or consultants who provided relevant advice and services concerning the buildings to which Alucobond panels were affixed. Unlike in New South Wales, no issues arise as to whether 3A or those third party professionals are liable in tort or are tortfeasors.

53    The cognate provisions in South Australia, Tasmania, and the Australian Capital Territory are in not dissimilar terms.

54    It follows that there would appear to be a proper legal basis upon which 3A could make claims for contribution against relevant third party professionals in Victoria, South Australia, Tasmania, and the Australian Capital Territory.

Contribution claims worthy of investigation

55    3A did not go so far as to contend that it had viable or reasonably arguable contribution claims. It could not go that far because it did not have sufficient information to enable it to advance that contention. It did, however, in effect contend that it had a proper basis upon which to believe that it may have contribution claims and that those claims were worthy of further investigation. For the reasons just given, that contention should be accepted.

56    Owners’ submission that “it is difficult to see how any reasonably arguable cross claims could properly be brought” has no merit and must be rejected. Its contention that there was no evidence to suggest that 3A intends to file any cross claims is equally unmeritorious. While it is true that 3A has not filed any contribution claims in respect of Owners’ claim against it, Mr Dundas explained that this was simply the result of the fact that he had not been provided with sufficient information and documentation to date to allow him to properly advise 3A in relation to the filing of any such claim. It is also true that Mr Dundas’ evidence was only that, at this stage, 3A wished to investigate and take appropriate steps to preserve its rights with respect to contribution claims that it might have against third parties. It may readily be inferred, however, that if 3A is able to obtain sufficient information and documentation to establish that any such claims are viable, it intends to file cross claims.

57    The question whether the Court has power to require Owners and, perhaps more significantly, group members to divulge information and documents which may assist 3A in considering whether it has available and viable third party contribution claims is considered in detail below. Before addressing that issue, it is necessary to consider whether there are potential limitations issues in relation to any such claims that 3A wishes to pursue.

THE POTENTIAL LIMITATION ISSUES

58    The interlocutory relief sought by 3A was premised on there being an at least reasonably arguable case that the limitation periods in respect of at least some of its potential contribution claims were running and that there was a real risk that some of those claims would become statute barred, either by the time of the hearing of Owners’ case in respect of the common questions, or by the time that the group members would, in the ordinary course, be required to reveal their identities and register their claims. 3A submitted that it was not necessary for it to establish that the relevant limitation provisions definitely applied to its potential contribution claims, or that the limitation periods are definitely running and may expire prior to it being able to bring those actions. Indeed, it was submitted, in effect, that it would be inappropriate or inapposite to definitively determine those questions in the abstract, without proper details of the claims, and in the absence of the parties against whom those claims may be brought.

59    Owners, on the other hand, contended, in effect, that the Court could and should determine that the limitation periods identified by 3A did not apply to 3A’s potential contribution claims, or that, if they did apply, time had not yet started to run and would not do so until 3A’s liability, if any, had “crystallised”. In Owners’ submission, the limitation arguments advanced by 3A were not reasonably arguable and provided no basis for the interlocutory orders which were sought by 3A.

60    The issue concerning the potential applicability of particular limitation periods to the potential contribution claims identified by 3A is by no means easy to resolve. Even putting to one side the fact that the issue must be considered in the abstract, not in the context of an actual contribution claim, the difficulty is that the applicable limitation periods for the potential contribution claims will differ according to which State or Territory has the closest connection with the alleged obligation to make contribution. And, as will be seen, there are differences between the applicable limitation provisions in the States and Territories. The only common feature is that none of them are particularly easy to apply in the case of contribution claims relating to building defects.

61    This Court is obviously exercising federal jurisdiction given the nature of the causes of action pleaded by Owners. In those circumstances, the applicable law in respect of limitation periods for the potential contribution claims by 3A against persons in different States and Territories is to be determined in accordance with ss 79 and 80 of the Judiciary Act 1903 (Cth): John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [53]; Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8 at [33]. The starting point is s 80 which, in simple terms, directs attention to the common law unless relevantly modified by statute: Blunden v Commonwealth (2003) 218 CLR 330; [2003] HCA 73 at [16]-[18]; Sweedman at [33]. If the common law choice of law rules are not modified by statute in the State or Territory in which the Court is sitting, and the common law rules require the application of the statute law of another State or Territory, then it is that statute law that is to be applied.

62    There is much to be said for the view that the character of an action for statutory contribution is quasi-contractual, so that the applicable law will be that of the State or Territory with which the wrongdoer’s obligation to make contribution has the closest connection: Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd (2015) 89 NSWLR 104; [2015] NSWCA 73 at [1], [17]-[19], [94]. The law of the State or Territory with which the obligation on the part of the relevant third party professionals to make contribution to 3A has the closest connection is likely to be the State or Territory where the conduct giving rise to that obligation arose: Redbro at [19]. In most, if not all, cases, that is likely to be the State or Territory in which the relevant professional services were provided, which in most cases is likely to be the State or Territory in which the building the subject of the claim against 3A is located.

63    The evidence suggests that the properties the subject of the group members’ claims against 3A are located in each of the States and mainland Territories. It is therefore necessary to consider the laws of each of the States and mainland Territories to ascertain the relevant limitation laws that may apply. Regrettably, the limitation laws in each of the States or Territories in relation to contribution claims are not always easy to construe or apply, particularly in the present context which involves not only representative proceedings, but also involves claims that, on one view at least, could be characterised as claims arising out of, or in connection with, defective building work. The particular difficulty in that regard is that many of the States or Territories have so-called long stop limitation periods in relation to claims for defective building work. The critical question is whether those provisions apply to contribution claims that arise out of defective building work.

New South Wales

64    The limitation period for contribution claims pursuant to subs 5(1) of the LRMP Act is specified in s 26 of the Limitation Act 1969 (NSW). It is unnecessary to consider that provision. That is because 3A conceded that, because the limitation period operates by reference to the limitation period for the principal cause of action (relevantly, the action by Owners and group members against 3A), the running of the limitation period under s 26 has effectively been suspended by operation of s 33ZE of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

65    The potential difficulty for 3A arises, in its submission, as a result of the possible or likely operation of subs 6.20(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). That section provides as follows:

Limitation on time when action for defective building or subdivision work may be brought

(1)     A civil action for loss or damage arising out of or in connection with defective building work or defective subdivision work cannot be brought more than 10 years after the completion of the work.

66    Section 6.19 of the EPA Act defines “building work” as including “the design or inspection of building work and the issue of a complying development certificate or a certificate under this Part [Part 6] in respect of building work”. Certificates issued under Part 6 include a certificate that any completed building work complies with particular standards or requirements and a certificate that any aspect of a development complies with particular standards or requirements: see subss 6.14(e)(i) and (iv) of the EPA Act. “Civil action” is defined in s 6.19 as including a counter-claim.

67    The critical question is whether an action by 3A to recover contribution from a third party professional, such as an architect, or builder, or certifier, can be said to be a “civil action for loss or damage arising out of or in connection with defective building work”.

68    It is, or would appear to be, at least reasonably arguable that an action concerning the affixation to a building of allegedly combustible or otherwise defective panels would be an action arising out of or in connection with defective “building work” as defined in ss 6.1 and 6.19. But is an action by one tortfeasor to recover statutory contribution from another tortfeasor able to be characterised as a “civil action for loss or damage”? 3A contended that it is at least reasonably arguable that it is and that therefore s 6.20 would apply and fix a ten year limitation period for such an action. Owners submitted that an action for statutory contribution is not an action for loss or damage and therefore s 6.20 would not apply.

69    There is some authority which supports 3A’s contention that an action for contribution can properly be characterised as an action for loss or damage.

70    In The Owners – SP 67635 v Metlej Developments Pty Ltd [2013] NSWSC 1564, Sackar J refused an application by the plaintiff building owner to amend its claim against the defendant builder to include additional building defects. The main reason given by Sackar J for refusing leave to amend was that “viable and realistic” cross claims for contribution that the builder potentially had against subcontractors in relation to the additional building defects were statute barred by s 109ZK of the EPA Act: Metlej at [20]. That provision was the predecessor to, and was in relevantly the same terms as, s 6.20 of the EPA Act. Stevenson J arrived at essentially the same conclusion in similar circumstances in The Owners – Strata Plan 76841 v Ceerose Pty Ltd [2016] NSWSC 1545 (leave to appeal in relation to this aspect of the decision refused by the Court of Appeal, see The Owners – Strata Plan 76841 v Ceerose Pty Ltd [2017] NSWCA 140).

71    It is true, as Owners pointed out, that in Metlej, the plaintiff conceded that s 109ZK of the EPA Act applied to the proposed cross claims for contribution. There is accordingly no consideration, in the reasons of Sackar J, of the question of whether a contribution claim could be said to be an action for loss or damage. It is also true that Stevenson J in Ceerose did not give detailed consideration to that question. It is nevertheless clear that those two highly experienced commercial list judges plainly proceeded on the basis that s 109ZK of the EPA Act applied, which meant that they proceeded on the basis that a contribution claim may properly be characterised as an action for loss or damage.

72    For its part, Owners relied on the decision of the Court of Appeal of the Supreme Court of New South Wales in Dino Dinov v Allianz Australia Insurance Limited (2017) 96 NSWLR 98; [2017] NSWCA 270. In that case, a building owner made a claim against a builders’ home warranty insurance policy in respect of defective building work carried out by a building company which had since been deregistered. The insurance company then sued the directors of the building company under indemnities granted by the directors to the insurer against its liability under the policy. The question was whether that action was a building action that was time barred by s 109ZK of the EPA Act. The trial judge and the Court of Appeal held that it was not.

73    It is, however, readily apparent that the reason why the action by the insurance company was not time barred by s 109ZK of the EPA Act was that it was not itself an action for any harm or injury sustained as a direct or indirect consequence of the happening of the defective building work. That was because none of the parties to the action, namely the insurance company and the directors, had contracted to perform, or had performed, any building work. Rather, the action by the insurance company was an action for a remedy in relation to the harm that the insurance company would suffer if the indemnity under the policy was not performed at [18]-[19] per Meagher JA; see also [108] per McDougall J; Beazley P agreeing).

74    The Court of Appeal did not, however, hold that the action under the indemnity did not fall within s 109ZK of the EPA Act because it was not an action for loss or damage. Indeed, the reasoning of Meagher JA indicates that his Honour did consider that the action was for “loss or damage”. His Honour held (at [12]) that the reference to “loss or damage” in s 109ZK is a reference to “harm or injury, as distinct from damages which are compensation claimed for harm or injury”. His Honour added that an “action will be ‘for’ harm or injury if it claims a remedy, usually compensation, in relation to or because of it”. His Honour then observed (at [18]) that to the extent that the insurance company’s “claim is for loss or damage, it is for the damage it would otherwise suffer if the indemnity were not performed”.

75    If the reasoning of Meagher JA is applied to the circumstances of this case, it is at least arguable that an action for contribution by 3A against one of the third party professionals is an action for harm or injury, and therefore “loss of damage” for the purposes of s 6.20 of the EPA Act. That is because that action would be for a remedy in relation to the harm or injury that 3A would suffer if it is held liable to pay all the loss or damage suffered by a group member in circumstances where the third party, if sued, would have been liable for the same damage.

76    It should also be noted that McDougall J, in his reasons, referred (at [75]-[76]) to the “mischief” that s 109ZK of the EPA Act was intended to address. That mischief was said to be twofold: first, that a plaintiff in a building action could select a defendant with the “deepest pockets” and seek to recover the whole of its damages from them; and second, that there was a potential for “indeterminate” liability for building professionals to successors in title in cases involving latent defects having regard to the decision in Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17. 3A submitted that the mischief identified by McDougall J would not be addressed, and the object of s 109ZK of the EPA Act (and therefore s 6.20 of the EPA Act) would not be achieved, if that provision did not apply to statutory contribution claims.

77    Owners also relied on the decision of the High Court in Unsworth v Commissioner for Railways (1958) 101 CLR 73; [1958] HCA 41. In that case, both Fullagar J and Taylor J unequivocally found that a claim for contribution pursuant to subs 5(1)(c) of the LRMP Act was not “an action to recover damages or compensation in respect of personal injury” within s 121 of the Railways Acts 1914 to 1955 (Qld): at 86 (per Fullagar J) and at 91 (per Taylor J). Fullagar J (at 86) said that proceedings to recover damages or compensation are “proceedings taken to enforce liability for acts or omissions which are wrongful against the person taking those proceedings” and that proceedings to recover contribution are not such proceedings. Taylor J (at 91) characterised a claim for contribution as “in effect a claim of partial indemnity” and observed that “although one of the ingredients which must be established is that the person against whom the claim is made is a person ‘who is, or would if sued have been, liable in respect of the same damage’, it is in no sense an action to recover damages in respect of personal injury”. Unsworth was followed by the Supreme Court of South Australia in Coomblas v Gee (1998) 157 ALR 640; [1998] SASC 6894 at [66] (per Wicks J, Prior and Lander JJ agreeing).

78    There are, however, some indications that a broader view of the nature of an action for contribution has subsequently been taken in other cases, including cases in the High Court, notwithstanding what was said in Unsworth. That was certainly the view of Glass JA (with whom Moffitt P and Samuels JA agreed) in National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400. The issue in National Mutual was whether the language “contract of insurance by which he is indemnified against liability to pay any damages or compensation” in s 6 of the LRMP Act was “ample enough in point of construction to include the liability of one tortfeasor to pay contribution to another” under s 5 of the LRMP Act (at 404-405). His Honour held that it was.

79    Glass JA referred (at 406) to Unsworth as one of the “early decisions” which emphasised the difference between a proceeding for a contribution and an action for damages. His Honour then referred to a subsequent decision of the High Court in Genders v Government Insurance Office of New South Wales (1959) 102 CLR 363 as being the “turning point leading to a broader view of the tortfeasor’s liability”. His Honour then referred to a number of other subsequent High Court cases and said (at 407-408):

The effect of all these decisions shows a strong tidal movement in the direction of treating an indemnity against liability for damages, whether in the field of employers’ liability, third party liability or public liability, as a contract under which the insurer covers the insured against the whole of his liability arising out of the insurable incident, whether it be incurred directly to the injured party or indirectly to other tortfeasors liable to the latter. As between him and the injured party, whatever the tortfeasor is liable to pay is payable by way of damages properly so called. Anything due from him to another tortfeasor is to be regarded as part of his liability by way of damages in respect of the plaintiff’s injury even though in point of law the amount due under a contribution is payable by way of debt: State Government Insurance Office (Queensland) v Brisbane Stevedoring Pty Ltd (1971) 123 CLR 228, per Kitto J, at p 245. None of these decisions is exactly in point since none of the policy indemnities was expressed in language identical with that contained in the section. But since a tortfeasor’s liability to pay a contribution to another tortfeasor has been included within contractual phrases such as his “liability in respect of death or bodily injury” (Genders (1959) 102 CLR 363) and his “liability by way of damages” (Brisbane Stevedoring (1971) 123 CLR 228) it would, I think, be pedantic to exclude it from the statutory description of “liability to pay any damages”.

(Emphasis added.)

80    While the decision in National Mutual is not directly on point because it concerned the construction of s 6 of the LRMP Act, it does provide some contextual support for 3A’s contention that it is at least reasonably arguable that an action for contribution could properly be characterised as an “action for loss or damage” for the purposes of s 6.20 of the EPA Act. It is an action for loss or damage suffered by the plaintiff (the injured party), albeit that it is an action by one tortfeasor against another in respect of that loss or damage. The argument, in the present case, would be that an action for contribution pursuant to subs 5(1)(c) of the LRMP Act commenced by 3A against one of the third party professionals, such as an architect, builder, or certifier, can be properly characterised as an action for loss or damage suffered by the relevant group member for the purposes of s 6.20 of the EPA, albeit that it is an action between tortfeasors about the extent of their respective liabilities in respect of that damage.

81    In all the circumstances, there is merit in 3A’s contention that it is at least arguable that any action for contribution it may have against third party professionals may be considered to be an action for loss or damage in respect of defective building work for the purposes of s 6.20 of the EPA Act.

82    Putting to one side the question of whether an action for contribution can properly be characterised as an action for loss or damage, Owners argued that, in any event, if s 6.20 of the EPA Act was held to apply to actions for contribution, the result in some cases would be “incoherent”. That was said to be because in some cases, the result would be that the ten year time limit imposed by s 6.20 would expire before any judgment, award, or agreement “crystallised” the liability of the party seeking contribution. That allegedly incoherent result was said to militate against construing s 6.20 in such a way that it applied to actions for contribution.

83    There are, however, a number of possible flaws in that argument.

84    The first problem is that there is nothing “incoherent” about the fact that a claim for contribution may become statute barred prior to there being a judgment, award, or settlement of a plaintiff’s claim against the party who wishes to seek contribution. Indeed, such a situation appears to be specifically envisaged in subs 26(1) of the Limitation Act, which provides that the limitation period for an action for contribution under subs 5(1) of the LRMP Act is the first to expire of either: (a) a period of two years running from the date on which the cause of action for contribution first accrues; or (b) a period of four years from the date of the expiration of the limitation period for the principal cause of action. The date on which the cause of action first accrues is the date that any judgment, award, or settlement agreement is made in respect of the damage for which contribution is claimed: subs 26(2) of the Limitation Act; see Gallager Bassett Services NSW Pty Limited v Murdock (2013) 86 NSWLR 13; [2013] NSWCA 386. The limitation period for the principal cause of action is the limitation period fixed for that cause of action by any enactment. If the limitation period for the principal cause of action is fairly short, it is at least conceivable that the period specified in subs 26(1)(b) may expire before the period in subs 26(1)(a).

85    The second problem is that the Owners’ analysis hinges on the proposition that s 6.20 of the EPA Act is, or can be, the limitation period for the principal cause of action for the purposes of subs 26(1)(b) of the Limitation Act. That proposition is incorrect. The principal causes of action for the purposes of subs 26(1)(b) in this case are the causes of action under the TPA and ACL that are pleaded against 3A. The limitation periods for those causes of action are fixed by provisions in the TPA and the ACL. It follows that, but for the operation of s 33ZE of the FCA Act, the period fixed by subs 26(1)(b) would be four years from the expiration of the limitation periods fixed in the TPA and the ACL for the causes of action pleaded against 3A.

86    It may be accepted that the potential construction of s 6.20 of the EPA Act advanced by 3A, and the potential interaction of that section, as so construed, with subs 26(1) of the Limitation Act and s 33ZE of the FCA Act, may produce a somewhat anomalous or incongruous result in the case of representative proceedings which involve defective building work and potential contribution claims by a respondent in respect of a claim by group members. That anomalous or incongruous result is that the potential contribution claims in respect of a group member’s claims may become statute barred before the group member’s claim is statute barred and before the particulars of the group member’s claim are even known to the respondent. That anomaly, however, is essentially a product of the fact that s 33ZE of the FCA Act only suspends the running of any limitation period that applies to “the claim of a group member to which the proceeding relates”. It does not appear to operate to suspend any contribution claim that a respondent to such a representative proceeding might have in respect of any group member’s claim.

87    That said, it might perhaps be arguable that s 33ZE of the FCA Act is expressed in sufficiently broad terms to suspend the operation of any limitation period that applies to such a contribution claim. While a contribution claim is not a claim by a group member, it nonetheless could be said to relate to, or arise from, a claim of a group member because it relates to the loss or damage suffered by the group member. It might therefore be arguable that a limitation period which applies to a contribution claim relating to loss or damage suffered by a group member is a limitation period that “applies to the claim of a group member”. It is, however, undesirable to express any view about the merits of such an argument, particularly as it was not one that was advanced by Owners.

88    There could be little doubt that the application and operation of s 26 of Limitation Act and the potential operation of s 6.20 of the EPA Act raises complex and difficult issues in the particular and somewhat unique facts and circumstances of this case. There are arguments for and against the proposition that s 6.20 of the EPA Act can or would apply to provide a “hard time bar” for any actions for contribution that 3A may have against third party professionals who were involved in providing advice or services relating to the affixation of Alucobond panels to any of the buildings owned by group members. For the reasons already given, it is unnecessary and undesirable for any concluded position to be arrived at to resolve the present interlocutory application. It is necessary only to be satisfied that there is a reasonable argument that s 6.20 of the EPA Act may apply and may preclude 3A from pursuing some potential contribution claims if it is not able to begin to investigate those claims in the not too distant future. 3A has, in all the circumstances, demonstrated that there is at least a reasonable argument that that is the case.

Victoria

89    The position in relation to the limitation period for any potential contribution claims that 3A may have in respect of group member properties located in Victoria is even more complex and difficult.

90    The relevant limitation period for contribution claims is specified in subs 24(4)(a) of the Wrongs Act. It provides as follows:

Recovery of contribution

(4)     Notwithstanding any provision in any statute requiring a notice to be given before action or prescribing the period within which an action may be brought, where under section 23B any person becomes entitled to a right to recover contribution in respect of any damage from any other person, proceedings to recover contribution by virtue of that right may be commenced by the first-mentioned person—

(a)    at any time within the period—

(i)    within which the action against the first-mentioned person might have been commenced; or

(ii)    within the period of twelve months after the writ in the action against the first-mentioned person was served on him—

whichever is the longer; …

91    It can be seen that the limitation period is the longer of two periods: first, the period within which the action against the party seeking contribution (in this case 3A) might have been commenced; or second, the period of twelve months after the writ in the action against the party seeking contribution was served. 3A initially conceded that the running of the first of those two periods had been suspended by operation of s 33ZE of the FCA Act; that is, the running of the limitation period that applied to group members’ claims against 3A was suspended. If that is so, it would follow that the limitation period in subs 24(4)(a) of the Wrongs Act in respect of any claim for contribution 3A may have would also be suspended.

92    In its oral submissions, however, 3A sought to resile from that concession and argue that s 33ZE of the FCA Act did not apply as subs 24(4) of the Wrongs Act is not a limitation period that applies to the claim of any group member. That argument was only faintly put and appears to have little, if any, merit. The fact that subs 24(4) of the Wrongs Act may not be a limitation period which applies to a claim by a group member against 3A is effectively immaterial. The point is that the limitation period for contribution claims by 3A is fixed in part by reference to the limitation period applicable to the claims against 3A by group members. As that limitation period is suspended, it follows that the limitation period for 3A’s contribution claims is effectively suspended.

93    It might also be added that it is somewhat difficult to see how the second period referred to in subs 24(4) of the Wrongs Act can operate in the circumstances of this case when it comes to the claims of group members. It could only operate if the service by Owners of its originating application and pleading could be said to constitute not only the service of a writ in Owners’ action against 3A, but also the service of a writ in respect of each group members’ claim against 3A. It is, however, somewhat difficult to see how that could be the case, given that many, if not most, group members may not even know that they have a claim against 3A, let alone that a writ has been served on 3A on their behalf. In any event, this issue is considered later in the context of the relevant limitation provisions in Tasmania, which also hinge to an extent on the service of a writ.

94    3A’s main argument in relation to the relevant limitation provisions in Victoria concerned the potential operation of s 134 of the Building Act 1993 (Vic). That provision creates a long stop limitation period similar to that imposed in New South Wales by s 6.20 of the EPA Act. Section 134 of the Building Act provides as follows:

Limitation on time when building action may be brought

Despite any thing to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, a building action cannot be brought more than 10 years after the date of issue of the occupancy permit in respect of the building work (whether or not the occupancy permit is subsequently cancelled or varied) or, if an occupancy permit is not issued, the date of issue under Part 4 of the certificate of final inspection of the building work.

95    A “building action” is defined in s 129 of the Building Act as meaning “an action (including a counter-claim) for damages for loss or damage arising out of or concerning defective building work”. The expression “building work” is defined in s 129 as including “the design, inspection and issuing of a permit in respect of building work”.

96    It would appear that third party professionals such as architects, builders, consultants, and certifiers who provided advice and services concerning the affixation of Alucobond panels to buildings owned by group members in Victoria are likely to have engaged in “building work” as defined. There is, however, an issue as to whether any action by 3A for contribution against any of those professionals could properly be characterised as an action “for damages for loss or damage” arising out of that work. 3A contended that it was at least reasonably arguable that any such contribution claim could be so characterised and that s 134 of the Building Act applied. Owners submitted that an action for contribution could not properly be considered to be an action for damages for loss or damage.

97    The parties’ respective arguments in relation to that issue were, for the most part, the same as those advanced in respect of the potential operation and application of s 6.20 of the EPA Act in New South Wales. It is unnecessary to repeat those arguments. There is, however, one difference between the wording in s 6.20 of the EPA Act and s 134 of the Building Act. That difference is that s 6.20 of the EPA Act applies to an action “for loss or damage”, whereas s 134 applies of the Building Act (by reason of the definition of building action in s 129) to an action “for damages for loss or damage”. While at first blush that difference appears to be relatively minor, it is nevertheless potentially important. As discussed earlier, Meagher JA in Dinov explained that “loss or damage” in this context means “harm or injury” and an action can be considered to be one for harm or injury if it claims a remedy in relation to that loss or injury. It is arguable that an action for contribution is such an action because a remedy is sought to avoid the harm or injury that the party seeking contribution would otherwise suffer if held wholly liable for damage suffered by a person as a result of the wrongdoing by multiple people. It is, however, somewhat more difficult to see how an action for contribution could be said to be an action for “damages for loss or damage”. That is because it is difficult to characterise the remedy sought in an action for contribution as one for “damages”.

98    It is, nevertheless, still at least reasonably arguable that any actions for contribution that 3A may have that are governed by Victorian law might be found to fall within the ambit of s 134 of the Building Act. The argument is slightly more tenuous than it is in relation to the application of s 6.20 of the EPA Act in New South Wales, but it is still one that is reasonably available. As discussed in the context of s 6.20 of the EPA Act, the argument is that an action for contribution pursuant to s 23B of the Wrongs Act commenced by 3A against one of the third party professionals, such as an architect, builder, or certifier, can be properly characterised as an action for damages for loss or damage suffered by the relevant group member for the purposes of s 134 of the Building Act, albeit that it is an action between 3A and other wrongdoers about the extent of their respective liabilities to pay damages in respect of that loss or damage. The argument is, at least to a certain extent, supported by the analysis of Glass JA in National Mutual and perhaps by the decisions in Metlej and Ceerose.

99    There is an additional complexity in relation to the operation of the relevant provisions in Victoria. That complexity arises from the fact that both subs 24(4) of the Wrongs Act and s 134 of the Building Act both state that they apply notwithstanding or despite what is said in other relevant statutory provisions. Subsection 24(4) of the Wrongs Act is prefaced by the statement “[n]otwithstanding any provision in any statute … prescribing the period within which an action may be brought”, and s 134 of the Building Act is prefaced by the statement “[d]espite any thing to the contrary in … any other Act or law”. How is that apparent conflict to be resolved? Which provision is to prevail if they are both otherwise applicable?

100    Owners’ submitted that it was not a “rational construction” to suggest that s 134 of the Building Act was intended to disturb a specific statutory scheme in the Wrongs Act for the time limits as regards the bringing of contribution claims. There are, however, weaknesses in that submission. Plainly s 134 was intended to override other specific limitation periods for other causes of action which are provided for in other statutes where those causes of action arise in building claims. That would appear to be the very point of the provision. Why it would not have that effect, or was not intended to have that effect, in the case of contribution claims and the limitation period in subs 24(4) of the Wrongs Act is not readily apparent.

101    The issue has been ventilated in the Victorian Civil and Administrative Tribunal: see Nguyen v Dragicevic [2015] VCAT 1629 at [18]-[34]; Owners Corporation 1 PA538430Y v H building Pty Ltd (under external administration) [2019] VCAT 680 at [47]. While the Tribunal did not resolve the issue in either of those cases, nor did it reject as unarguable the contention that s 134 of the Building Act applied to contribution claims and prevailed over subs 24(4) of the Wrongs Act. The issue has not yet been considered by a court.

102    It is unnecessary and undesirable to give any more detailed consideration to this issue. It is difficult to avoid the conclusion that there is at least some risk that, if s 134 of the Building Act is found to apply in the case of any contribution claims that 3A seeks to bring, it may also be found that it overrides the limitation period otherwise specified in subs 24(4) of the Wrongs Act in relation to contribution claims.

103    It follows from this analysis of the relevant limitations provisions in Victoria that it is at least arguable that s 134 of the Building Act may apply to potential contribution claims that 3A may have against third party professionals who provided advice or services in relation to the affixation of Alucobond panels to properties owned by some group members in Victoria. It would follow that there is at least a risk that some of those contribution claims may become statute barred if 3A is unable to investigate and bring those actions fairly promptly. At present, it is unable to do so because of the paucity of information it has about the group members and their properties.

South Australia, Australian Capital Territory, and the Northern Territory

104    3A’s contentions concerning the risk that contribution claims that it might have against third party professionals in relation to buildings owned by group members in South Australia, the Australian Capital Territory, and the Northern Territory, hinged on the existence in those jurisdictions of long stop limitation provisions in similar terms to s 134 of the Building Act in Victoria.

105    Section 73 of the Development Act 1993 (SA) relevantly provides as follows:

73–Limitation on time when action may be taken    

(1)     Despite the Limitation of Actions Act 1936, or any other Act or law, no action for damages for economic loss or rectification costs resulting from defective building work (including an action for damages for breach of statutory duty) can be commenced more than 10 years after completion of the building work.

(2)    This section does not affect an action to recover damages for death or personal injury resulting from defective building work.

(3)    The period prescribed by subsection (1) cannot be extended.

106    Subsection 160(1) of the Building Act 1993 (NT) provides that “[a]n action is not maintainable by a plaintiff or a person claiming on behalf of a plaintiff if it is brought after the end of a limitation period of 10 years”. An “action” is relevantly defined in s 159 of the same statute as “an action for damages for economic loss and rectification costs resulting from defective construction of building work or other work carried out under this Act”.

107    Section 142 of the Building Act 2004 (ACT) provides that a “building action” may not be brought more than ten years after the certifier gives the certificate of completion, or otherwise the day when the last inspection took place, or otherwise the day the building was first occupied. A “building action” is defined in the same statute as an action “for damages for loss and damage” in relation to defective building work, defective construction work, or “the negligent exercise by a licensed construction practitioner of a function as a certifier, or the negligent failure to exercise such a function”: s 140 of the Building Act 2004 (ACT).

108    The relevant question, in each case, is whether an action for contribution can be properly characterised as an “action for damages” for economic loss, or rectification costs, or loss and damage. That issue has already been addressed at length in the context of the cognate provisions in New South Wales and Victoria, though the provisions in South Australia, the Australian Capital Territory, and the Northern Territory are closer to the provision in Victoria than the one in New South Wales.

109    It is unnecessary to add to what has been said in relation to the provisions in New South Wales and Victoria. For the reasons given in the context of the provisions in those States, it is at least arguable that the relevant long stop provisions in South Australia, the Australian Capital Territory, and the Northern Territory might be found to apply to contribution claims in building defects cases. There is accordingly at least a risk that some of the potential contribution claims that 3A may have in respect of claims made by group members in South Australia, the Australian Capital Territory, and the Northern Territory may become statute barred if 3A is unable to investigate and bring those actions in the relatively near future.

Tasmania

110    The position in relation to limitation periods for contribution claims in Tasmania is different again.

111    As noted earlier, claims for contribution in Tasmania are governed by the Wrongs Act 1954 (Tas). Subsection 3(5) of that statute provides as follows:

Proceedings against, and contribution between, wrongdoers

(5)     Notwithstanding any provisions of any enactment requiring notice of damage or injury to be given, or notice of an intended action to be given, or limiting the time within which an action may be brought, proceedings for contribution under this section may, although notice of damage or injury, or notice of an intended action, as the case may be, has not been given, or the time so limited has expired, be commenced at any time within the period of 12 months (or within such extended period as may be allowed pursuant to subsection (6) of this section) after the writ in the original action was served on the person seeking to recover contribution.

(Emphasis added.)

112    The effect of subs 3(6) is that there is a discretion to extend the period prescribed in subs 3(5) if the presiding judge “is satisfied that the person from whom contribution is sought to be recovered will not be prejudiced in his defence by reason of the extension”.

113    Section 4 of the Limitation Act 1974 (Tas) specifies the limitation periods for a number of different actions. The effect of subs 4(1)(d) is that “actions to recover any sum recoverable by virtue of an enactment” cannot be brought after the expiration of six years from the date on which the cause of action accrued. Section 7 of the same statute provides that where “an action is brought against a person in respect of any damage nothing in this Act shall be taken to prejudice or affect the operation of the Wrongs Act 1954 in relation to any action for contribution in respect of that damage”.

114    The combined operation of the abovementioned provisions would appear to be that the limitation period for an action for contribution is six years from the date that the cause of action accrues, which is ordinarily when a judgment or award in damages is entered against the person who seeks contribution, or when that person settles the action against them. If that period expires, however, an action for contribution can nevertheless be brought within 12 months after the writ in the original action was served on the person seeking to recover contribution.

115    3A contended that, notwithstanding that apparent operation of the relevant provisions, subs 3(5) of the Wrongs Act 1954 has been “applied as a hard limitation date”. It cited, in that regard, a decision of Tennant J in the Supreme Court of Tasmania in Mirkazemi v Manns [2008] TASSC 63. It would appear that in that case Tennant J did treat subs 3(5) as if it prescribed the limitation period for an action for contribution. There is, however, nothing in the judgment to suggest that there was any contest or argument in respect of that issue and there is no reference in the judgment to subs 4(1)(d) of the Limitation Act 1974. It would appear that the party who sought contribution either assumed or conceded that subs 3(5) prescribed the limitation period as he filed an interlocutory application seeking an extension of time under subs 3(6). That was the only real issue addressed in the case. In those circumstances, it is somewhat doubtful that the case stands as authority for the proposition that subs 3(5) prescribes a “hard limitation date”. Even if it was authority for that proposition, it would appear, at first blush at least, that it was wrongly decided. The better view would appear to be that the period referred to in subs 3(5) is only of relevance if a time limit prescribed by some other provision has expired.

116    3A nevertheless submitted that if subs 3(5) of the Wrongs Act 1954 did prescribe a “hard limitation date”, there was a risk that the limitation period in respect of any contribution claim may expire. The argument was that the service by Owners on 3A and Halifax of its originating application constituted “service of the writ in the original action” for the purposes of subs 3(5). In 3A’s submission, that was the case not only in relation to Owners’ claims, but also the claims of all group members. It followed, according to 3A, that the time period in subs 3(5) had commenced to run. In fact, if 3A’s contention is correct, the time period has effectively already expired, given that the originating application was served on 14 February 2019.

117    3A submitted that there were a number of factors which suggested that the service of an originating application in a representative proceeding might properly be considered to amount to the service of a “writ” in respect of the group members’ claims for the purpose of subs 3(5), even though group members are strictly not considered to be parties, or to have commenced proceedings. Those factors included: the originating application includes a claim for damages on behalf of group members; the originating application sets out what are said to be the common questions between the applicant’s claims and the claims of the group members; the Court may determine certain rights of group members and certain issues relating to group members without requiring the service of any further process on 3A and Halifax; and a judgment in a representative proceeding binds group members who have not opted out.

118    It is unnecessary to finally determine the merits of 3A’s contention that the service of Owners’ originating application amount to the service of a “writ” in respect of the group members’ claims for the purpose of subs 3(5). Even if it was accepted that 3A’s contention in that regard was reasonably arguable, it is difficult to accept that subs 3(5) of the Wrongs Act 1954 relevantly prescribes the limitation period for any contribution claims that 3A may have in respect of group member claims in Tasmania. More significantly, even if it did, 3A nonetheless would have the right to apply for an extension of time under subs 3(6).

119    There is, however, another possible risk for 3A in respect of the expiry of relevant limitation periods for contribution claims in respect of group members’ claims in Tasmania. That risk arises from the terms of s 327 of the Building Act 2016 (Tas), which appears to prescribe a form of long stop limitation period of either ten years or six years for a “cause of action for damages … incurred as a result of … defective building work or defective associated building work”. The shorter limitation period applies only to building work defined as “low-risk work”, whereas the longer period applies to “permit work or notifiable work”.

120    It is unnecessary to further analyse or examine the terms of s 327 of the Building Act, or the definitions of the words or expressions used in it. That provision is, in many respects, similar to the long stop provisions in Victoria, South Australia, the Northern Territory, and the Australian Capital Territory. The same complex and difficult issues arise in relation to the potential application of s 327 of the Building Act to contribution claims as arise in relation to the application of the cognate provisions in those other States and Territories. For the reasons given earlier in the context of those cognate provisions, it would appear to be at least arguable that s 327 might apply to at least some contribution claims that 3A might have available to it in Tasmania. There is accordingly a risk that some of those claims may become statute barred if 3A is not able to investigate, and in due course pursue, those claims in the near future.

Queensland

121    3A did not initially contend that there were any potential limitation issues in Queensland. In its reply submissions, however, it pointed out that there is a provision in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) which may present difficulties in relation to potential contribution claims it may have in respect of group members’ claims in Queensland.

122    Schedule 1B to the QBCC Act contains provisions relating to “domestic building contracts” as defined. Divisions 2 and 3 of Pt 3 of the schedule incorporate a number of implied warranties into all “regulated contracts”, which in general terms are domestic contracts for which the contract price is more than a specified amount. The implied warranties include, relevantly, warranties concerning the suitability of materials (s 20) and the standard of work and exercise of care and skill (s 22). The implied warranties are defined as “statutory warranties”. Importantly, subs 29(1) of the schedule provides that “[p]roceedings for a breach of a statutory warranty must be started before the end of the warranty period for the breach”. The “warranty period” for a regulated contract is six years for a breach that “results in a structural defect, as prescribed by regulation”, or one year on any other case, and relevantly starts on the completion of the work: subs 29(3) of the QBCC Act.

123    It is unnecessary to delve any further into the intricacies of Sch 1B to the QBCC Act, particularly as neither party made any detailed submissions in that regard. There may be an issue as to whether an action or cross claim for contribution based on a breach of a statutory warranty could be said to be “proceedings for a breach of a statutory warranty”, though it would appear to be at least reasonably arguable that that would be the case. Other issues may also arise in relation to the construction of these provisions, and it is by no means clear that any actions for contribution which 3A may wish to bring in respect of group members claims in Queensland would necessary relate to breaches of statutory warranties under the QBCC Act. It is, nevertheless, at least reasonably arguable that some of the contribution claims that 3A may have in relation to actions by group members in Queensland might be caught by the limitation provision in s 29 of Sch 1B. There is therefore at least a risk that some of those potential claims may become statute barred if 3A is not in a position to investigate and prosecute them within the relatively near future.

Western Australia

124    3A did not identify any relevant, or potentially relevant, limitation provisions in Western Australia.

Conclusion in relation to limitation issues

125    The preceding analysis of the limitation provisions in the States and Territories reveals that it is reasonably arguable that some long stop limitation provisions relating to defective building work claims may apply or operate in relation to some of the potential claims for contribution that 3A has identified. There are, however, some complex and difficult questions of construction and characterisation that would need to be considered and determined before it could definitively be said that the provisions are applicable to contribution claims of the sort proposed by 3A.

126    For the reasons already given, it is neither necessary nor desirable to finally determine those issues for the purposes of this application. It can, however, be concluded that there is at least a risk that some of the provisions may be found to apply, that the time periods prescribed in those provisions may be currently running and that, if 3A is not able to investigate and prosecute its potential claims in the relatively near future, at least some of those claims may become statute barred before 3A is able to bring them.

127    What cannot be determined at this stage, however, is the scope and extent of that risk. That is not only because the arguments concerning the application of the long stop limitation periods are by no means assured of success, but also because at this stage there is virtually no information available concerning any of the contribution claims which 3A might have available to it and might in due course seek to prosecute. Even accepting that 3A is likely to have some viable contribution claims, and that one or other of the long stop limitation provisions might apply to them, the number, size, and nature of any claims which might become statute barred within the next few years is almost impossible to gauge in the absence of further information.

128    Nevertheless, accepting that there is at least some risk, the next issue concerns what, if anything, can and should be done to minimise that risk.

REGISTRATION AND THE PROVISION OF INFORMATION

129    3A sought an order which required Owners to provide it with certain information and documents concerning relevant work done by third party professionals in relation to the installation of Alucobond panels. It also sought orders the effect of which were to require group members to register their claim and, as part of that registration process, provide Owners’ solicitors with certain information and documents relating to their individual claims, including: information in relation to the relevant building and their ownership or leasehold interest in it; information concerning the affixation of Alucobond panels to the building; and information and documents concerning third party professionals who provided services in relation to the design, construction, and certification of the building. The notice to group members in relation to registration and the provision of documents was to be sent or provided in conjunction with an opt out notice pursuant to s 33J and s 33X of the FCA Act.

130    Those proposed orders were not particularly contentious, at least insofar as they involved some form of registration process on the part of group members and the provision of some information and documentation concerning individual claims. It is nevertheless necessary to deal with some of the issues raised by the parties in relation to them.

131    The most contentious issue concerned the mandatory nature of the order requiring registration and, more significantly, the order sought by 3A which provided for what would happen to the claims of group members who neither opted out nor registered. That order, which the parties referred to as the “class closure order”, if made, would have the effect that group members who do not register their claims will not be able to receive anything from any settlement arrived at, or any judgment given, in the representative proceeding, but would nonetheless be bound by the terms of that settlement or judgment.

132    Owners opposed the making of any such order. 3A, however, submitted that such an order was necessary or appropriate to avoid the risk of prejudice to it arising from the potential application of long stop limitation periods to its potential contribution claims. The question whether the Court has the power to make such an order, and should make such an order at this early stage of the proceeding, will be dealt with separately after dealing with the less contentious aspects of the relevant orders.

Provision of information and documents by Owners

133    3A sought an order which required Owners to provide to it certain information and documentation relating to the design, construction, and certification of the Shore building which would enable it to investigate possible contribution claims against third party professionals who engaged in that work. Mr Dundas’ evidence was that previous attempts to obtain that information from Owners or its solicitors had largely been unsuccessful.

134    Owners did not suggest that the Court did not have power to order Owners to provide the requested information or documentation. Nor did it advance any compelling or persuasive reasons why, in all the circumstances, the Court should not order it to provide the requested information and documentation. It adduced some evidence from its solicitor, Mr Blagoj (Bill) Petrovski, which tended to suggest that it would be difficult, onerous, and costly for Owners to comply with the proposed order. There also appeared to be some suggestion that Owners may not possess, or have access to, some of the requested documentation. It was also submitted that the requirement to provide the information and documents was essentially an “interim discovery regime” and that, in any event, Owners had already provided much of the information.

135    It is neither necessary nor desirable to address in any detail the evidence or competing arguments concerning this aspect of 3A’s application. It suffices to observe that the information and documentation sought by 3A (annexure A to the interlocutory application) appeared to be reasonably confined and manageable. Despite the suggestions to the contrary in Mr Petrovksi’s evidence, it does not appear to give rise to any particularly onerous obligations. That is all the more so if, which 3A disputed, most of the requested information or documentation has already been supplied. If that was in fact the case, it would not take much to provide the balance of the information and documentation. In any event, the information and documentation requested by 3A is undoubtedly information and documentation that Owners would in due course have to collate and consider at some stage. To the extent that Mr Petrovski suggested that Owners may not possess some of the requested information or documentation, it almost goes without saying that Owners can only provide information which it knows or possesses, or which it could readily ascertain from reasonable inquiries, and can only produce documents which are relevantly in its custody or control.

136    It would, in all the circumstances, be appropriate to make an order requiring Owners to provide the requested information and documentation. It may, however, be that the scope of information and documentation that should be produced will need to be reconsidered in light of the recent amendments to the pleadings. The parties will need to give further consideration to this issue. They should also confer and hopefully agree on the scope of the information and documentation that should be provided.

Opt out or registration by group members

137    Owners did not oppose the order sought by 3A which required the Court to fix a date before which a group member may opt out of the proceeding. Such an order must be made at some stage: s 33J of the FCA Act. Owners did not suggest that it was not appropriate to make that order at this relatively early stage of the proceeding, though there may be an issue concerning the date by which group members must opt out.

138    Owners also did not oppose, or advance any substantive arguments in opposition to, the making of an order which had the effect of requesting or inviting group members to register their claims or interest in participating in the proceeds of any settlement or judgment in the proceeding. Nor did it submit that it was not appropriate for group members who wished to register their claims to be invited, as part of the registration process, to provide certain information concerning their claims. Owners also did not contend that the Court did not have power to make such orders, or to approve the sending of notices to group members which had that effect. As has already been noted, the main point of contention concerned the mandatory nature of the registration process sought by 3A and, more significantly, the class closure order which applied to group members who neither opted out nor registered. That point of contention will be addressed separately after consideration is given to whether the Court can and should make an order which invites group members to register and provide information.

139    There is no provision in the FCA Act which expressly requires or allows the Court to fix a date for a group member to register their interest in the proceeds of any settlement or judgment in a representative proceeding. Nor is there a provision which specifically empowers the Court to make an order which has the effect of requesting group members to register their interest, at least at this early stage of the proceeding. 3A contended that the Court was empowered to make such an order by s 33ZF of the FCA Act, a general provision which empowers the Court to “make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding”. The scope of the power conferred by s 33ZF is addressed later in the context of the proposed class closure order. As already noted, Owners did not submit that the Court did not have the power to make an order which requested or invited group members to register. It appeared to implicitly accept that the power to make such an order was to be found in s 33ZF of the FCA Act. As will be discussed shortly, recent authority appears to confirm that the Court does have power to make orders concerning the registration of group member claims.

140    As has been observed in many of the authorities concerning the scheme for representative proceedings under the FCA Act, group members are ordinarily not required to do anything at all until the later stages of the proceeding, often until after the trial in relation to the common questions has been held. In the particular and somewhat unique circumstances of this case, however, it may be accepted that it would be appropriate or necessary to ensure justice is done in the proceeding to invite group members to register their claims. There is good reason to consider that the early identification of group members will assist the proceeding to be brought fairly and efficiently to a just outcome. Perhaps most pertinently, it will enable 3A to investigate potential contribution claims and thereby ameliorate or reduce the risk of any prejudice that it may suffer by reason of the possible application of limitation periods relating to those claims. The first step in 3A being able to investigate potential contribution claims is for it to be able to ascertain the identity of group members and the buildings in which they have an interest. The registration process will plainly assist in that regard. But for some form of registration process, 3A may not be able to investigate, let alone commence, any cross claims it might have in respect of group member claims until after a trial in respect of the common questions. That would not be in the best interests of the parties or the group members. Nor would it be an efficient way to progress the proceeding.

141    It follows that the Court can and should make an order, pursuant to s 33ZF of the FCA Act, which requests or invites group members to register and provide information concerning their claims. An order or orders which had that effect would be appropriate or necessary to ensure that justice is done in the proceeding. That is not to say that an order in the precise terms sought by 3A can or should be made. As has already been noted, the order sought by 3A concerning registration was expressed in mandatory terms. 3A also sought an order which provided for certain implications or repercussions for group members who did not register. The question whether orders can or should be made in those terms is considered later.

Provision of information and documents by group members

142    The orders sought by 3A do not include an order requiring or requesting group members to provide information and documentation. Rather, the orders sought by 3A include the approval of a notice to group members concerning opt out and registration which attaches a registration form. A group member who wishes to register must complete and submit that registration form. The form requires the registering group member to provide certain information and documentation. The required information includes information about the building the subject of the claim and the group member’s ownership or leasehold interest in it, information concerning the affixation of Alucobond panels to the building, and information about the names of the builder, façade subcontractor, architect, fire safety engineer, BCA consultant, hydraulics or fire services consultant, and certifier. The documentation that is required to be provided includes copies of the contracts, reports, notices, designs, and other documentation relating to the work or advice provided by those professionals.

143    Owners did not submit that the Court did not have the power to make an order, or approve a notice to group members, which had the effect of requesting group members to provide information or documentation. Nor did it submit that it would not be appropriate to make such an order, or approve such a notice, even at this early stage of the proceeding. It is, nevertheless, necessary to give some brief consideration to whether the Court has power to make such an order, or approve such a notice, as well as whether such an order should be made, or such a notice should be approved, at this early stage of the proceeding.

144    In P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 2) [2010] FCA 176, Finklestein J made discovery orders against certain group members pursuant to s 33ZF of the FCA Act. His Honour said as follows in relation to the making of those orders (at [16]-[17]):

Although there is a power to make the orders sought under s 33ZF(1), it is another matter whether that power should be exercised. The starting point is that the class actions regime under Pt IVA of the Federal Court Act is designed to require little or no active involvement by group members. A group member is a group member principally for the limited purposes of taking the benefit, or suffering the burden, of findings on common questions (ie questions that are common to the claim brought by the named applicant and claims that may be pressed by group members). In an action where money relief may be sought by a group member, the group member will generally only be required to provide specifics about the quantum of his or her claim after the common questions have been resolved and that may be in a separate action.

Given the intent of the class action regime, there must be some compelling reason demonstrated before a court will order group members to go beyond their otherwise essentially passive role.

145    In Hopkins v AECOM Australia Pty Ltd (No 2) (2013) 92 ASCR 677; [2013] FCA 115 at [20], Nicholas J held that there was “ample power” for the Court to make an order which required the applicant in a representative proceeding to issue a questionnaire to group members. That power, according to his Honour, was to be found in ss 33ZF and 37P of the FCA Act. His Honour also considered that such an order should be made in that case, at least in respect of group members in certain States, because there was a “real possibility” that the respondent “might be prejudiced” because there was a danger or possibility that the limitation periods which might apply to contribution claims that the respondent had foreshadowed might expire. His Honour noted, in that context, that “[w]ere it not for the possibility of such cross-claims becoming statute barred in the near future, I would not require the applicants’ solicitors to issue the questionnaire to any of the group members” (at [39]).

146    The circumstances of this case are broadly analogous to those considered in Hopkins. Owners did not submit that Hopkins was wrongly decided or should not be followed. It supports the proposition that s 33ZF of the FCA Act empowers the Court to request group members to provide information and documentation, even at a relatively early stage of the proceedings. It also supports the proposition that such a course would be appropriate where, as here, the basis of the information and document request is to allow the respondent to investigate potential contribution claims that may be subject to limitation periods.

147    The circumstances of this case suggest, as in Hopkins, that an order approving the terms of a notice which requests group members to provide certain information and documentation concerning their claims is necessary or appropriate to ensure that justice is done in the proceeding. As has already been noted, the registration regime proposed by 3A involves giving group members a notice which attaches a registration form. The information and documentation request is included in the registration form. That would appear to be a reasonable and appropriate way in which to make the request. Owners did not submit otherwise. Indeed, it indicated that it was prepared to “countenance such a course”.

148    In the particular circumstances of this case, however, it would not be advisable or prudent to issue the proposed notice to only some States and Territories, as was done in Hopkins. While the arguments concerning the applicability of the long stop limitation periods to contribution claims may be stronger in some States or Territories compared to others, there is nevertheless a risk that relevant limitation provisions may apply in all the relevant States and Territories except Western Australia. It would be potentially confusing and somewhat counter-productive to issue the notice to group members in all of the States and Territories other than Western Australia. That is particularly so given that the proposed notice also deals with group members’ rights to opt out of the proceeding. It would be equally confusing to issue a different notice which did not require registration to group members in Western Australia.

149    As for the scope of the information and documentation request, Owner’s contended that the request was “over-inclusive in its ambit (and therefore onerous), and needs reconsideration”. It did not, however, advance any substantive submissions in support of that contention. Nevertheless, it may be accepted that the precise terms and scope of the information and documentation request may need to be reconsidered in light of the recent amendments to Owners’ pleading.

150    The evidence adduced by the parties also suggested that further consideration should be given to including some information in the notice which might assist persons who receive or read the notice to ascertain whether the cladding that is affixed to a building in which they have an interest is Alucobond cladding. Mr Petrovski’s evidence, in particular, addressed the possible difficulties that may be encountered in that regard. It is unnecessary to consider that evidence at length. It would be in the interests of both parties to ensure that possible group members are given assistance and guidance about how they may go about determining if the cladding affixed to their building is Alucobond cladding which is the subject of this proceeding if they are uncertain about that. This is an issue that should be discussed and hopefully agreed between the parties.

151    An important point of distinction between this case and both Brookfield and Hopkins is that the orders made concerning the provision of information or documents in those cases had nothing to do with group member registration or class closure. The orders made in Brookfield were in the nature of discovery of certain categories of documents. While it may be that compliance with those orders may have been mandatory, there is nothing to suggest that non-compliance with the orders by any group member would have had any implications for them beyond what is usual in the case of non-compliance with discovery orders. The discovery orders were also only sought and made against certain group members who, presumably, had already been identified. In Hopkins, the group members were already part of a “closed” class: only persons who had entered into a funding agreement were capable of satisfying all of the criteria by which the class was defined. There is nothing to suggest that completion of the questionnaire by group members was mandatory or, more significantly, that non-provision of information by any group members would have any implications for their status as group members or their ability to participate in any recovery in the proceeding.

152    In this case, however, the request to group members to provide information and documentation was tied to the process of registration, which was expressed in mandatory terms in the proposed orders. More importantly, the practical and legal effect of the orders sought by 3A was that there were significant implications for the rights of members who did not register and provide the required information and documentation. The critical question, which must now be addressed, is whether the Court has power to make orders which would have that effect.

MANDATORY REGISTRATION AND “CLASS CLOSURE”

153    As has already been noted, the orders sought by 3A concerning group member registration were expressed in mandatory terms. Order 6 in the interlocutory application was in the following terms:

Pursuant to s 33ZF of the FCA [Act], any Group Member who wishes to participate in any recovery in the proceeding, whether by settlement or judgment, must register its claim by completing the Group Member Registration Form, in the form of Schedule 2 to the Registration and Opt Out Notice, and returning it to the Applicant’s solicitors before the Class Deadline.

154    Order 10 in the interlocutory application approved the terms of the “Registration and Opt Out Notice”. As has already been noted, to complete the “Group Member Registration Form”, which was annexed to that notice, registering group members were required to provide certain information and documentation. The effect of Order 6 was that a group member who did not fully complete and submit that form would be taken not to have registered in accordance with Order 6.

155    The implications for a group member who did not register in accordance with Order 6 are spelt out in Order 7 in the interlocutory application, which was in the following terms:

Pursuant to s 33ZF of the FCA [Act], any Group Member who fails to register in accordance with Order 6 by the Class Deadline, shall not be entitled to receive any distribution from any settlement of, or judgment in, the proceeding, but (provided in the case of a settlement that the settlement is ultimately approved by the Court) shall be bound by the terms of the settlement agreement or the judgment and barred from making any claim against the Respondents in respect of or relating to the subject matter of this proceeding.

156    The “Class Deadline” is defined in Order 2 in the interlocutory application as being the date six weeks after the date of the orders.

157    The parties referred to Order 7 as an order which effected a “hard class closure”, though it is not readily apparent that that is an entirely accurate or apposite way to characterise the order. The effect of the order is not to close the class, in the sense of restricting or limiting the persons who may be taken to fall within the definition of “Group Members” in paragraph 1 of Owners’ pleading. Group members who do not register in accordance with Order 6 do not, as a result, somehow cease to be group members; they would still fall within the definition of “Group Members” in Owners’ pleading. Rather, the effect of the order is that such group members: first, would no longer be entitled to receive any dividend from any settlement of, or judgment in, the proceeding; second, would nonetheless be bound by the terms of the settlement agreement or the judgment; and third, would be barred from making any claim against 3A and Halifax “in respect of or relating to the subject matter of this proceeding”. A more accurate description of the order might be a “group member rights extinguishment” order.

158    Whatever it may be called, it is necessary to consider both whether the Court has the power to make an order such as Order 7 and, if it does, whether the discretion to make such an order should be exercised for the reasons advanced by 3A and in the particular circumstances of this case. Owners contended that the Court did not have power to make Order 7 on the grounds put forward by 3A and that, even if it did, the Court should not make it, at least at this stage of the proceeding.

Power to make Order 7

159    3A contended that the Court had “ample” power to make Order 7 and “close the class” pursuant to s 33ZF of the FCA Act which, as noted earlier, provides that the Court may “make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding”. It relied principally on two cases in support of its contention that s 33ZF empowered the Court to make Order 7: the decision of the Full Court in Westpac Banking Corporation v Lenthall (2019) 265 FCR 21; [2019] FCAFC 34; and the decision of Wilcox J in McMullin v ICI Australia Operations Pty Ltd (No 6) (1998) 84 FCR 1; [1998] FCA 658.

160    In Lenthall, the Full Court held that s 33ZF of the FCA Act empowered the Court to make a “common fund order”; an order which, in general terms, provides for the quantum of a litigation funder’s remuneration to be a fixed as a proportion of any moneys ultimately recovered in the proceeding and for all group members to bear a proportionate share of that liability. The Full Court said (at [86]) that s 33ZF is “the widest possible power that extends to all procedures appropriate or necessary to deal with the matter on a just basis” and considered that the language of s 33ZF “far from hinting at restriction, denotes width, amplitude and flexibility” (at [87]).

161    It can be seen that, while the Full Court’s decision in Lenthall provides support for the proposition that the power in s 33ZF is a very broad power, it is not authority for the proposition that the Court has power to make an order which has the effect of Order 7. That is because it concerned the Court’s power to make a common fund order, which is an order of a significantly different nature to Order 7.

162    In McMullin, Wilcox J considered whether s 33ZF empowered the Court to make an order which “would have the effect, after due notice, of ‘closing the class’ of group members; that is, would preclude (or, at least, inhibit) maintenance of a claim for damages by a group member who failed to come forward and identify himself or herself by a particular date” (at 2F). His Honour held (at 4C-4E) that s 33ZF “was intended to confer on the Court the widest possible power to do whatever is appropriate or necessary in the interests of justice being achieved in a representative proceeding” and that “an order fixing a date by which claimants must identify themselves is capable of falling within s 33ZF(1)”. Wilcox J made orders concerning the giving of notices to group members, though it is not clear exactly what, if any, orders were subsequently made to “close the class”.

163    It can again be seen that McMullin also provides support for the proposition that the power in s 33ZF is a very wide power. It also provides some support for the proposition that s 33ZF gives the Court power to make an order “closing the class” of group members. Importantly, however, the orders made by Wilcox J in McMullin were made after a judgment had been delivered in respect of the common issues or questions. The significance of that point will become apparent in due course.

164    It may nevertheless be accepted that the state of authority at the time the matter was first argued tended to support the position taken by the parties in relation to the Court’s power to make such an order. That changed, however, when two judgments were handed down: first, the judgment of the High Court in Brewster; and, perhaps more significantly for present purposes, the judgment of the five member bench of the Court of Appeal of the Supreme Court of New South Wales in Haselhurst. Both of those decisions concerned the scope of the power in s 33ZF of the FCA Act, or the equivalent provision in s 183 of the Civil Procedure Act 2005 (NSW) (CPA).

Brewster

165    In Brewster, the High Court allowed an appeal from the Full Court’s judgment in Lenthall, as well as an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales which had addressed the Supreme Court’s power to make a common fund order under s 183 of the CPA. Section 183 of the CPA is in relevantly identical terms to s 33ZF of the FCA Act. The majority in Brewster held that, while the power conferred by s 33ZF of the FCA Act and 183 of the CPA was wide, it did not extend to the making of a common fund order. Three considerations compelled that conclusion.

166    The first consideration was a textual one. As the language of the sections make plain, it only empowers an order which is appropriate or necessary to ensure justice “in the proceeding”. The plurality (Kiefel CJ, Bell and Keane JJ) said (at [47]):

While it has rightly been acknowledged that the power conferred by each of s 33ZF and s 183 is broad, it is one thing for a court to make an order to ensure that the proceeding is brought fairly and effectively to a just outcome; it is another thing for a court to make an order in favour of a third party with a view to encouraging it to support the pursuit of the proceeding, especially where the merits of the claims in the proceeding are to be decided by that court. Whether an action can proceed at all is a radically different question from how it should proceed in order to achieve a just result.

(Emphasis in original.)

167    Their Honours’ similarly reasoned as follows (at [50]-[51]):

The focus of the power conferred on the court by the text is upon ensuring, that is, making certain by the order, that justice is done in the proceeding as between the parties to it. As a matter of the ordinary and natural meaning of these words, they authorise an order apt to advance the effective determination by the court of the issues between the parties to the proceeding. Whether or not a potential funder of the claimants may be given sufficient financial inducement to support the proceeding is outside the concern to which the text is addressed.

The text of each of s 33ZF and s 183 assumes that an issue has arisen in a pending proceeding between the parties to it, and that the proceeding will be advanced towards a just and effective resolution by the order sought from the court. The construction of ss 33ZF and 183 for which the respondents contend departs from this assumption. The making of a CFO [common fund order] does not assist in determining any issue in dispute between the parties to the proceeding; it does not assist in preserving the subject matter of the dispute, or in ensuring the efficacy of any judgment which might ultimately be made as between the parties; it does not assist in the management of the proceeding in order to bring it to a resolution. Nor does it assist in doing justice between group members in relation to the costs of litigation.

168    It may be seen that this aspect of the plurality’s reasoning was directed at the fact that a common fund order “is directed to whether a litigation funder is given sufficient financial incentive to enable the proceeding to proceed at all” (at [54]) and that the question “[w]hether an action can proceed is a radically different question from how it should proceed in order to achieve a just result” (at [47], emphasis in original).

169    The second consideration was a contextual one. The plurality observed that the statutory context in which s 33ZF of the FCA Act and s 183 of the CPA appear “shows that each section is a supplementary source of power” and that “[i]t is not to be supposed that each section does much the same work as other provisions of Pt IVA of the FCA [Act] and Pt 10 of the CPA, or that each was intended to meet the exigencies of litigation not adverted to at all by those other provisions” (at [60]). The plurality said as follows in response to a submission by one of the respondents to the effect that the topics addressed in various provisions in Pt IVA of the FCA Act and Pt 10 of the CPA fell within the scope of s 33ZF and s 183 and that those provisions are “redundant where it is convenient” (at [70]):

… That submission is not helpful in seeking to come to grips with the meaning to be given to the words of limitation “appropriate or necessary to ensure that justice is done in the proceeding”. Further, it exalts the role of s 183 (and s 33ZF) above that of a supplementary or gap-filling provision, to say that it may be relied upon as a source of power to do work beyond that done by the specific provisions which the text and structure of the legislation show it was intended to supplement. The work which the respondents require s 183 (and s 33ZF) to do is beyond the scope of the other provisions of the scheme. As will be seen, those other provisions are engaged upon a different occasion and address materially different circumstances from those that are involved in the making of a CFO. Section 183 (and s 33ZF) cannot be given a more expansive construction and a wider scope of operation than the other provisions of the scheme. To accept this submission would be to use s 183 (and s 33ZF) as a vehicle for rewriting the scheme of the legislation.

(Footnote omitted.)

170    The plurality also emphasised one aspect of the statutory scheme in Pt IVA of the FCA Act and Pt 10 of the CPA which provided an important contextual consideration. The statutory scheme envisages the “identification of all group members so far as that is possible” so as to facilitate “the distribution of any proceeds of the proceedings, whether derived from a settlement or a favourable judgment” (at [72]). The scheme, however, is “designed so that a representative proceeding may continue even if group members are unaware of it; and group members are ‘under no obligation to identify themselves’” (at [73], citing Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1 at [38]-[40] and Brookfield at [31]). The plurality then noted the following in relation to the occasion for making orders in relation to the distribution of the proceeds of the action (at [73]):

That said, both the legislative schemes do allow identification of all group members (as far as is possible) in order to distribute any proceeds. That this is so is apparent from ss 33V, 33X(3)-(4), 33Z and 33ZA of the FCA [Act]. Reference to the terms of these provisions confirms that the legislative scheme contemplates that the occasion for the making of orders in relation to distribution of the proceeds of the action is its successful completion.

171    Nettle J also favoured the view that s 33ZF is only a supplementary power. His Honour said (at [124]):

… is in the nature only of a supplementary power to do what is necessary or incidental to achieve the objectives at which those other more detailed, specific provisions are aimed.

(Footnote omitted.)

172    The third consideration concerned the purpose or objectives of Pt IVA of the FCA Act. The plurality considered that the objectives of Pt IVA were identified by the Australian Law Reform Commission as being to “enhance access to justice for claimants by allowing for the collectivisation of claims that might not be economically viable as individual claims” and to “increase the efficiency of the administration of justice by allowing a common binding decision to be made in one proceeding rather than multiple suits” (at [82]). Those objectives were pursued through the regime for representative proceedings “tailored to address these defects in the law”. The plurality held, in that context, that s 33ZF of the FCA Act and s 183 of the CPA “do not empower the courts to rewrite Pt IVA and Pt 10 respectively in order to pursue other objectives in different ways”: at [82].

173    The reasons of the remaining judge in the majority in Brewster, Gordon J, also addressed this purposive consideration in conjunction with the contextual consideration. Her Honour said (at [147]):

Considered in the context of Pt IVA as a whole and ss 33C, 33J, 33M, 33N, 33V, 33Z, 33ZA and 33ZB in particular, s 33ZF(1) as a supplementary or gap-filling power is a power to do what is appropriate or necessary to advance the objective of Pt IVA — to provide a procedure for representative proceedings. As has been seen, none of the provisions mentioned envisages a Court being engaged in making a common fund order.

Haselhurst

174    While the decision of the High Court in Brewster concerned an order (a common fund order) which was of a different nature to the order under consideration in this matter, the same cannot be said of the decision of the Court of Appeal in Haselhurst. The order under consideration in that matter was not relevantly dissimilar to Order 7, though the rationale put forward for making it was different. The Court of Appeal unanimously held that s 183 of the CPA did not empower the court to make that order.

175    Like Order 7, the order which was considered in Haselhurst provided that group members who neither opted out of the proceeding nor registered were to remain as group members, but that if an in-principle settlement was reached before the trial on the common issues and that settlement was later approved by the court, those group members were both bound by the terms of the settlement and barred from making any claim against the defendant “in respect of or relating to the subject matter” of the proceeding. The rationale for the making of the order in Haselhurst – the reason it was said to be appropriate or necessary to ensure that justice was done in the proceeding – was that it operated to “facilitate the desirable end of settlement” and that a “mediation will only be effective if the parties know the likely number of participants and can thus offer an amount reflective of those numbers”: see [28] and [29] in the reasons of Payne JA, referring to the reasons of the primary judge.

176    Payne JA, with whom all the other members of the Court of Appeal agreed, concluded (at [61]) that the legal and practical effect of the order in question was to effect a contingent extinguishment of unregistered group members’ rights as against the respondent. Payne JA also found that the order was “problematic” for at least two reasons.

177    First, the aspect of the order which provided that unregistered group members were bound by the terms of the settlement was problematic because it went beyond the terms of subs 179(b) of the CPA, which is in the same terms as subs 33ZB(b) of the FCA Act, and provides that the Court’s judgment binds all group members who have not opted out. Payne JA reasoned (at [51]) that the order went beyond the terms of subs 179(b) of the CPA because it gave binding force to the terms of an approved settlement agreement, even though the agreement was likely to contain provisions that went beyond any order made by the court.

178    Second, the aspect of the order that provided that unregistered group members were barred from making claims against the defendant was problematic because Part 10 of the CPA only permits the making of an order which binds group members in that way in two circumstances: the approval of a settlement (s 173 of the CPA, which is in relevantly the same terms as s 33V of the FCA Act); and the delivery of a judgment after a hearing (s 177 of the CPA, which is in the same terms as 33Z of the FCA Act): see [53]. Payne JA noted (at [54]) that under Pt 10 of the CPA, group members need take no “positive step” in the prosecution of the proceeding to judgment to gain whatever benefit its prosecution may bring, whether that benefit arises by a settlement or a judgment. The order in question, however, purported to bar the making of claims against the defendants on the basis of the non-fulfilment of a registration condition.

179    Perhaps more significantly, Payne JA held that s 183 of the CPA (the equivalent provision to s 33ZF of the FCA Act) could not be construed as providing a power to make the order in question. That was essentially because other provisions in Pt 10 specifically provided for the barring of claims by group members, or the extinguishment of group members’ rights. His Honour reasoned that it would, in those circumstances, be “incongruous” and inconsistent with the reasoning of the majority in Brewster to construe s 183 as providing a power to extinguish group members’ rights in different circumstances: see [105] and [108].

180    The respondents to the appeal had argued that the order in question was consistent with the legislative scheme in Pt 10 of the CPA and therefore within power because it assisted in the management of the proceeding in order to bring it to a resolution. Payne JA said, in response to that argument (at [105]):

The difficulty with the respondents’ argument, however, is that the effect of order 16 is to address a matter, the barring of a claim held by a Group Member, which is addressed in s 173 in the case of a settlement and s 177 in the case of a judgment, in each case supplemented by the specific power in s 179 to make a judgment binding all Group Members. It is, so the plurality in Brewster explains, incongruous to read a power into s 183 when other provisions of Part 10 make specific provisions apt to accommodate that task but which operate at the conclusion of the proceeding. The power to bar a claim held by a Group Member is one that arises at the conclusion of a representative proceeding:

“[Brewster at [51]] The text of each of s 33ZF and s 183 assumes that an issue has arisen in a pending proceeding between the parties to it, and that the proceeding will be advanced towards a just and effective resolution by the order sought from the court. The construction of ss 33ZF and 183 for which the respondents contend departs from this assumption. The making of a CFO does not assist in determining any issue in dispute between the parties to the proceeding; it does not assist in preserving the subject matter of the dispute, or in ensuring the efficacy of any judgment which might ultimately be made as between the parties; it does not assist in the management of the proceeding in order to bring it to a resolution. Nor does it assist in doing justice between group members in relation to the costs of litigation.

…

[Brewster at [59]] The difficulty attending the making of a CFO at the outset of the proceeding goes beyond the practical difficulty identified in Money Max. Contrary to the view of the Full Court in that case, the problems that attend the fixing of the rate of the funder’s remuneration at the beginning of the proceeding are not concerned solely with the factual and prudential aspects of the exercise of the discretion conferred by s 33ZF; they also involve the conceptual difficulty of an absence of criteria to guide the exercise of discretion by the court. In addition, there is the incongruity of reading such a power into s 33ZF or s 183 when other provisions of Pt IVA and Pt 10 make specific provision apt to accommodate that task but which operate at the conclusion of the proceeding.”

(Emphasis in original, footnotes omitted.)

181    Payne JA also noted (at [106]) that “[c]ritically, for present purposes, the plurality [in Brewster] explained that s 183 was not a source of power to do work beyond that done by the specific provisions which the text and structure of the legislation show the section was intended to supplement”. His Honour referred, in that regard, to [70] of the judgment of the plurality in Brewster and then went on to say (at [107]) that the “plurality explained the structure of Part 10 as envisaging the identification of Group Members so as to facilitate the distribution of any proceeds of the proceedings, whether derived from a settlement or a favourable judgment” and that the “time for the making of orders in relation to distribution of the proceeds of the action is at its successful completion”. His Honour then extracted [72] and [73] of the judgment of the plurality in Brewster and concluded as follows (at [108]):

As I have said, order 16 contingently extinguishes unregistered Group Members’ rights against the respondents. This gives rise to an incongruity of the kind identified by the plurality in construing s 183 as providing power to extinguish Group Members’ rights, even contingently, before the time that Part 10 specifically envisages, being approval of settlement (s 173) or following a judgment (s 177).

182    Payne JA also noted (at [109]-[112]) that the reasoning of both Nettle J (Brewster at [125]) and Gordon J (Brewster at [147]) was inconsistent with a construction of s 183 as providing a separate power to extinguish group members’ rights, even contingently, before the time that Pt 10 specifically envisages. His Honour concluded (at [122]) that the order in question “strikes at the heart of the Part 10 regime, by setting up an alternative regime of extinguishment of Group Members’ rights of action for the purpose of encouraging the parties towards a pre-trial settlement” and that while the order “makes settlement more likely, it does so in a manner contrary to the scheme established by the legislature”.

183    It should be emphasised at this point that it is tolerably clear that the “incongruity” identified by Payne JA essentially arose because the order in question purported to extinguish group members’ rights in advance of, or otherwise than in the context of, or as part of, the court’s approval of a settlement, or a judgment. It may be noted, in that context, that his Honour did not disagree or disapprove of the order apparently made in McMullin. Indeed, his Honour noted (at [81]) that the decision in McMullin addressed “a quite different issue to the present” and went on to say:

It is one thing to make orders after a judgment answering common questions (and in the case of McMullin the creation of sub-groups to deal with all the remaining damages questions in the litigation). It is a quite different thing, in advance of any judgment about common questions or any settlement of proceedings, “in principle” or otherwise, to order that the rights of Group Members who fail to register are to be contingently extinguished.

184    His Honour also referred, with apparent approval, to the decision in Newstart 123 Pty Limited v Billabong International Ltd (2016) 343 ALR 662; [2016] FCA 1194, where orders which extinguished the rights of group members were made as part of, or in conjunction with, the approval of a settlement under s 33V of the FCA Act. Recent decisions in this Court have accepted that the decision or reasoning in Haselhurst does not preclude the Court from making an order extinguishing a group member’s claim under ss 33V and 33ZB of the FCA Act at the time of approving a settlement: see Inabu Pty Ltd as trustee for the Alidas Superannuation Fund v CIMIC Group Ltd [2020] FCA 510 at [5]-[8]; Fisher (trustee for the Tramik Super Fund Trust) v Vocus Group Limited (No 2) [2020] FCA 579 at [61].

185    It should finally be noted, in relation to the judgment of Payne JA, that his Honour had regard to what was said by the Full Court in Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1; [2017] FCAFC 98 at [72]-[75] concerning the Court’s power to make class closure orders to facilitate settlement. His Honour observed (at [95]), however, that what was said in Treasury Wine was dicta given that the appellant had conceded not only that the Court had power pursuant to s 33ZF of the FCA Act to make the order, but also that it was appropriate for the primary judge to make the order at that stage of the proceeding. More significantly, his Honour noted that the orders in Treasury Wine were made before the decision of the High Court in Brewster and found that the construction of Pt 10 of the CPA “preferred” by the majority in Brewster is “inconsistent with acceptance of the dicta” in Treasury Wine (at 99]).

186    Bell P agreed with Payne JA but added some additional observations. In particular, his Honour noted the observations of Beach J in Earglow Pty Ltd v Newcrest Mining Ltd (2015) 230 FCR 469; [2015] FCA 328 at [33] to the effect that the composite phrase “appropriate or necessary to ensure that justice is done” involves an element of necessity. His Honour then said (at [12]):

Returning to the order under consideration in the present case, it is difficult to conceive of how an order which destroys a person’s cause of action within the limitation period, without a hearing and with no guarantee that the person will necessarily know of the outcome or consequences of their failure to register, is an order that could be thought to be “necessary to ensure that justice is done in the proceedings”. To ask whether such an order could be thought to be “appropriate … to ensure that justice is done in the proceedings” is, for the reasons explained by Beach J in Earglow, to ask essentially the same question.

187    Payne JA agreed with the additional reasons of Bell P. Macfarlan and Leeming JJA agreed with Payne JA and the additional observations of Bell P. Emmett AJA agreed with Payne JA.

The parties’ supplementary submissions

188    As noted at the commencement of these reasons, the parties were invited to make supplementary submissions concerning the implications of the decision in Haselhurst. Those submissions also addressed the decision in Brewster.

189    Perhaps not surprisingly, Owners submitted the decisions in Brewster and Haselhurst compel the conclusion that 3A’s submission that, by reason of s 33ZF of the FCA Act, the Court has “ample power” to “close the class” by making Order 7, was and is plainly wrong. 3A’s submission in that regard was based on what had been said by the Full Court in Lenthall at [86]. Owners’ submitted that the plurality in Brewster (at [19]) “expressly disapproved” of the Full Court’s “paraphrase” in [86] of Lenthall and said that it was “inaccurate in a significant respect”.

190    Perhaps more significantly, Owners submitted that both Brewster and Haselhurst demonstrate that class closure orders, like Order 7, are “incongruous with the legislative scheme of Part IVA” and “at odds with the fundamental legislative purpose of Part IVA to enhance access to justice” because they “convert the present proceedings from an ‘opt out’ proceeding to an ‘opt in’ proceeding”. In Owners’ submission, the decision in Brewster, “as properly interpreted” in Haselhurst, was binding on this Court.

191    For its part, 3A advanced the following submissions concerning the implications of the decisions in Brewster and Haselhurst.

192    First, it submitted that Brewster only concerned the power to make a common fund order and does not hold that s 33ZF is not a source of power to make class closure orders like Order 7. It also submitted that the High Court did not expressly overrule the Full Court’s finding in Treasury Wine that the Court was empowered by s 33ZF to make class closure orders.

193    Second, it submitted that while the Court of Appeal in Haselhurst interpreted the reasoning of the majority in Brewster as being inconsistent with Treasury Wine, whether that is correct or not will, from the perspective of a single judge of this Court, ultimately be a matter for consideration and determination by the Full Court. Until that occurs, there is simply an inconsistency between Haselhurst and Treasury Wine. A single judge of this Court is not bound by either of those decisions: the reasoning of the Full Court in Treasury Wine concerning the power to make a class closure order was dicta and a single judge of this Court is not bound by a decision of the Court of Appeal of the Supreme Court of New South Wales. It followed, it was said, that in those circumstances a single judge of this Court should continue to follow the existing decisions of the Full Court, including Treasury Wine, which suggested that the Court has the power to make class closure orders like Order 7.

194    Third, 3A submitted that Haselhurst is distinguishable from this case because it was concerned only with whether there is power to make a class closure order to facilitate settlement. In 3A’s submission, Haselhurst has “no application” to the class closure order sought by it because its purpose is to ensure that 3A gets a fair trial by being able to prosecute cross claims for contribution against third parties.

195    Fourth, 3A submitted that, to the extent that Haselhurst is authority for the broader proposition that s 183 of the CPA or s 33ZF of the FCA Act do not empower the making of a class closure order prior to judgment or settlement, the decision is wrong and should not be followed. 3A identified what it contended were two errors in the reasoning in Haselhurst; first, that it misunderstands the decision in Brewster; and second, that it was wrong to find that class closure orders are incongruous with the balance of the statutory scheme in relation to representative proceedings.

196    Fifth, 3A submitted that the class closure order it sought was not draconian or disproportionate to the risk of 3A being deprived of a fair trial by losing its rights to cross claim against third parties. This was not, strictly speaking, a response to Brewster and Haselhurst. It is a submission that will nonetheless be considered in the context of the question whether, if the Court has discretionary power to do so, the Court should make the class closure order sought by 3A in the exercise of its discretion.

197    Sixth, it was submitted that, in any event, nothing said in Brewster or Haselhurst prevented the Court from granting other forms of relief which would ameliorate the potential prejudice to 3A. This submission will be dealt with separately later in these reasons.

Findings and conclusion in relation to power

198    The question whether the Court has the power to make Order 7 is by no means straightforward.

199    It is clear that, following Brewster, 3A can no longer rely on the dicta of the Full Court in Lenthall that s 33ZF is “the widest possible power that extends to all procedures appropriate or necessary to deal with the matter on a just basis”. Similar statements concerning the breadth of the power in Money Max Int Pty Ltd (as trustee for the Goldie Superannuation Fund) v QBE Insurance Group Limited (2016) 245 FCR 191; [2016] FCAFC 148 at [165] and Treasury Wine at [74] should also be approached with some caution in light of the analysis in Brewster of the scope of the power in s 33ZF of the FCA Act. While the power is broad, Brewster establishes that, properly construed, it is essentially a supplementary or “gap-filling” power which cannot be given a more expansive construction or a wider scope of operation than other provisions in the statutory scheme for representative actions: see in particular Brewster at [70]. Nor can it be used as “a vehicle for rewriting Pt IVA of the FCA Act”: Brewster at [69], [82].

200    While Brewster concerned the Court’s power to make a common fund order, the majority’s reasoning concerning the construction of s 33ZF of the FCA Act are binding and must be followed. Contrary to 3A’s submission, that reasoning travels well beyond the particular features of common fund orders that led the majority to conclude that they were beyond power. It is true that one of the textual considerations that was significant to the majority’s conclusion was that s 33ZF is concerned with how an action could proceed in order to do justice, not with the “radically different question” as to whether an action can proceed at all, which was the issue supposedly addressed by a common fund order (see Brewster at [3] and [47]). The reasoning of the plurality, however, also addressed both contextual and purposive considerations in relation to the construction of s 33ZF. Those considerations, carefully examined, are not limited in their application to common fund orders, but rather, strongly suggest that s 33ZF does not empower the Court to make an order in the nature of Order 7.

201    As has already been discussed in detail, one of the important contextual considerations in construing s 33ZF of the FCA Act referred to in the reasoning of the plurality in Brewster was that it was properly seen as a “supplementary source of power” which was not intended to “meet the exigencies of litigation not adverted to at all” by other provisions in Pt IVA of the FCA Act: Brewster at [60]. Nor could it be understood as a “vehicle for rewriting” Pt IVA: Brewster at [69]. The plurality also noted, in this context, that it was clear from the statutory scheme that “the occasion for the making of orders in relation to distribution of the proceeds of an action is its successful completion”, not some earlier time: Brewster at [73]; see also [72]. As for considerations of purpose, the plurality reasoned (at [82]) that the objectives of Pt IVA of the FCA Act were essentially to enhance access to justice for claimants by allowing for the collectivisation of claims and to increase the efficiency of the administration of justice by allowing a common binding decision to be made in one proceeding rather than multiple suits. It was emphasised, in that context, that s 33ZF did not “empower the courts to rewrite Pt IVA … in order to pursue other objectives in other ways”: Brewster at [82].

202    It is, in all the circumstances, unnecessary to resolve the jurisprudential debate about exactly what comprises the ratio decidendi in Brewster. It would in any event be wrong for a single judge of this Court not to consider and apply “seriously considered” reasoning of a majority of the High Court, even if the reasoning was strictly dicta: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134], [158].

203    Applying the reasoning of the majority in Brewster to the order in question in this case, it is difficult, if not impossible, to see how a provision which is said to provide a supplementary or gap-filling power could empower the Court, at this very early stage of the proceeding, to make an order which would have the effect of barring group members who do not register by a particular date from making any claim against the respondents “in respect of or relating to the subject matter of this proceeding” and yet disentitle them from receiving any distribution from any future settlement of, or judgment in, the proceeding. Such a drastic and far-reaching order would appear to be fundamentally at odds with the opt out nature of representative proceedings under Pt IVA and go well beyond the scope of the specific provisions in the statutory scheme which it is intended to supplement; in particular, those provisions concerning the distribution of money paid under a settlement approved by the Court (s 33V of the FCA Act), the orders that may be made in determining a matter in a representative proceeding (s 33Z of the FCA Act), and the effect of a judgment given in a representative proceeding (s 33ZB of the FCA Act).

204    It should perhaps be added, in this context, that 3A took issue with the description or characterisation of Order 7 as draconian. This issue, along with the question of proportionality, is addressed in more detail later in the context of discretionary considerations. It suffices at this point to observe that it is by no means unfair or inaccurate to describe this aspect of the relief sought by 3A as draconian. As has already been noted, the legal and practical effect of the order is that group members who do not register lose their right to participate in any recovery in the proceeding, whether that recovery is as a result of a settlement or judgment, but nonetheless remain bound by the terms of any settlement or judgment and barred from making any claim against 3A or Halifax relating to the Alucobond panels.

205    Even putting to one side the fairly short notice period (six weeks) and the fairly limited means by which the notice is proposed to be disseminated (advertisement in newspapers), there is a real possibility, if not prospect, that not all group members will become aware of the registration notice during the notice period. There is equally a real possibility, if not prospect, that some group members who do become aware of the notice may not appreciate that they are group members, perhaps because they are unaware of the brand or nature of panels on their building and uncertain how to go about ascertaining if they are the relevant Alucobond panels. Others may not be in a position to provide the information or documents necessary to register. The effect of Orders 6 and 7 is that all group members who do not complete and submit the registration form within time will have their rights against 3A and Halifax extinguished, at this very early stage of the proceeding, even if they are unaware of the proceeding, or unaware that they are group members, or unable for some other reason to register within time. That would appear, on just about any view, to be a harsh and potentially quite unfair outcome in all the circumstances, particularly given that representative proceedings are ordinarily opt out, rather than opt in, in nature. It is tolerably clear from the reasons of Bell P in Haselhurst (at [12]) that his Honour considered the order in question in that case to be harsh and draconian. On one view, at least, the order in question in this case is even more so.

206    Returning to the question of the Court’s power to make an order like Order 7, even if it was appropriate to put the decision in Brewster to one side, as was effectively submitted by 3A, the issue was essentially put beyond doubt, at least for a single judge of this Court, by the decision in Haselhurst. While that decision may not strictly bind this Court, a single judge of this Court should not depart from a considered decision of an intermediate appellate court of a State, particularly in relation to the interpretation of effectively uniform legislation, unless convinced that the interpretation or decision is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 at [4]; Farah Constructions at [135]; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 at [50]. That is not to say that the Court is necessarily bound by the Court of Appeal’s interpretation (in Haselhurst) of what the High Court said in Brewster. The primary guide to understanding the law as stated by the High Court is the language of that court’s reasons; a judicial decision as to what those reasons mean is, at best, a guide to, but cannot control, the meaning of that language: Hasler v Singtel Optus Pty Limited (2014) 87 NSWLR 609; [2014] NSWCA 266 at [98]; Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 at [62].

207    Consideration must also, of course, be given to the fact that some of the reasoning in Haselhurst conflicts with the dicta in the Full Court decisions of Money Max and Treasury Wine. Critically, however, both Money Max and Treasury Wine were decided before Brewster and must accordingly be approached with some caution. That is particularly the case given that some of the reasoning in Money Max and Treasury Wine concerning the breadth and scope of s 33ZF is somewhat inconsistent with the reasoning of the majority in Brewster. While it may be, as 3A suggested, that the Full Court may at some stage have to consider for itself whether the reasoning in Treasury Wine is inconsistent with the reasoning of the majority in Brewster, the issue, so far as it is relevant to this case, cannot be deferred until it comes again before the Full Court.

208    The decision in Haselhurst is not relevantly distinguishable from this matter as was suggested by 3A. It is true that Haselhurst concerned an order which, while in similar terms to Order 7, was said to have a different rationale, being to facilitate settlement. Some of the reasoning in Haselhurst therefore dealt with the issue of whether the order was appropriate or necessary to facilitate settlement. That said, much of the central reasoning of both Bell P and Payne JA addressed the more general question concerning whether s 183 of the CPA (and therefore s 33ZF of the FCA Act) empowers the Court to make a class closure order in advance of any settlement or judgment, irrespective of the particular rationale given for the order. Much of the reasoning is or would be equally applicable to the question of whether s 33ZF empowers the Court to make an order like Order 7, despite the fact that the rationale advanced for making it was quite different.

209    It is unnecessary to repeat, in this context, what has already been said about the reasoning in Haselhurst. It is clear that Payne JA accepted that the purpose for the relevant order in Haselhurst, which was to facilitate settlement, was a “desirable aim”: Haselhurst at [114]. Indeed, his Honour accepted that the words “justice in the proceeding” in s 183 of the CPA (and s 33ZF of the FCA Act) were apt to include resolution by way of settlement and that therefore the purpose of facilitating settlement was consistent with the statutory scheme: Haselhurst at [104].

210    That was not sufficient, however, to support a conclusion that the order was within power. The features of the order in Haselhurst which Payne JA considered to be problematic and inconsistent with the statutory scheme are equally present in the order in question in this matter. In particular, the order in Haselhurst, like Order 7 in this matter, barred group members who did not register from making any claims against the defendant, or extinguished their rights, before the time that specific provisions in the statutory scheme envisaged that to occur. That feature of the order gave rise to the “incongruity” which was one of the main bases upon which the order was found to be beyond power: see Haselhurst at [105]-[108]. That reasoning, which has nothing to do with the rationale or purpose of the proposed order, applies equally to Order 7 in this matter.

211    As for 3A’s contention that Haselhurst was wrongly decided if it stood for the broader proposition that s 183 of the CPA (and therefore s 33ZF of the FCA Act) does not empower the Court to make class closure orders, 3A’s main argument was that the Court of Appeal erroneously construed or interpreted the reasoning of the plurality in Brewster. In 3A’s submission, Payne JA erroneously elevated one aspect of the plurality’s reasoning concerning the place of s 183 of the CPA and s 33ZF of the FCA Act in the statutory scheme as having laid down a general rule that s 183 (or s 33ZF) does not empower the making of any orders the effect of which is to address matters which are in some way provided for in other provisions of Pt 10 of the CPA (or Pt IVA of the FCA Act). That is, however, not a fair characterisation or summary of the decision and reasoning in Haselhurst.

212    Relevant parts of the reasoning of the majority in Brewster and the reasoning of Payne JA in Haselhurst are set out or summarised earlier in these reasons. It is unnecessary to rehearse what was said there. The effect of the reasoning of Payne JA, fairly read, is that the class closure order that was in issue in that proceeding was not supplementary to any of the specific provisions of Pt 10 of the CPA which relevantly dealt with the extinguishment of group members’ rights and the binding effect of judgments. Rather, the order went well beyond the scope of those provisions. It was in that respect, or for that reason, that it was said that it was “incongruous” to read s 183 as empowering the Court to make the order in question. The reasoning does not lay down any general rule of the sort asserted by 3A. Nor does it involve any erroneous interpretation or application of the principles concerning the proper construction of s 183 and s 33ZF of the FCA Act explained in Brewster.

213    The second argument advanced by 3A as to why Haselhurst was wrongly decided was that Payne JA’s finding that it would be incongruous to read s 183 of the CPA as empowering the making of the order in question was erroneously based on the proposition (at [108]) that ss 173 and 177 of the CPA (ss 33V and 33Z of the FCA Act) provided that group members’ rights could only be extinguished upon the approval of a settlement or following judgment. That submission is again not based on a fair reading of Payne JA’s reasoning. It is clear that Payne JA was not suggesting that either s 173 or s 177 of the CPA (or the equivalent provisions in the FCA Act) dealt with the extinguishment of claims. The point his Honour was making, which was essentially the same point as was made by the plurality in Brewster (at [73]), was that the legislative scheme contemplates that the occasion for making orders concerning the distribution of the proceeds of the action and, as a consequence, the finalisation of group members’ claims, was at the successful completion of the action, either by way of settlement or judgment. There is no provision in the statutory scheme for the extinguishment of group members’ rights before that time.

214    The reasoning in Brewster and Haselhurst is directly applicable to the question of whether s 33ZF of the FCA Act empowers the Court to make Order 7 at this stage of the proceeding and for the reasons advanced by 3A. The proper application of the principles considered in Brewster and Haselhurst to the facts and circumstances of this case indicates that the Court is not empowered to make Order 7. Such an order is not truly supplementary to, but instead goes well beyond the scope of, the specific provisions in the statutory scheme concerning distribution of money paid under a settlement approved by the Court, the orders that may be made in determining a matter in a representative proceeding, and the effect of a judgment given in a representative proceeding. It is also substantially at odds with the opt out nature of representative proceedings under Pt IVA.

Discretion

215    Even if, contrary to what has just been determined, the Court has the power to make Order 7, the circumstances of this case do not warrant the making of such an order. It is not an order which, at least at this early stage of the proceeding, can be considered to be appropriate or necessary to ensure that justice is done in the proceeding.

216    For the reasons already given, it may be accepted that it is at least reasonably arguable that some of the long stop limitation provisions that apply to defective building claims in the States and Territories other than Western Australia may apply to some potential contribution claims that 3A may have against third party professionals such as builders, architects, building consultants, and certifiers who provided services or advice in respect of the affixation of Alucobond panels to properties owned by group members. It may equally be accepted that, in those circumstances, there is at least some risk that some of the contribution claims that 3A may have available to it may become statute barred if 3A is not able to investigate and prosecute them in the relatively near future. 3A’s proposed Order 7, in conjunction with the mandatory registration procedure, which required the group members to provide specified information and documents, was said by 3A to be necessary to eliminate that risk.

217    The difficulty for 3A is that it has not demonstrated that the risk of prejudice to it arising from the possibility of some contribution claims that might otherwise be available to it becoming statute barred is sufficiently great to outweigh the drastic and somewhat draconian effect that Order 7 might have for some group members. Nor has it shown that the making of Order 7 is the only means by which any risk of prejudice to it may be mitigated. In all the circumstances, the making of Order 7 at this early stage of the proceeding would be an unwarranted and disproportionate response to the risk of prejudice to 3A arising from the potential operation of some limitation periods in relation to some potential claims for contribution that it might otherwise have.

218    There could be little doubt that the making of an order which has the effect of “destroy[ing] a person’s cause of action within the limitation period, without a hearing and with no guarantee that the person will necessarily know of the outcome or consequences of their failure to register” is a drastic measure: see Haselhurst (at [12] per Bell P). It would, as 3A effectively acknowledged, require a “compelling reason” to make such an order: see Brookfield at [17]. That is all the more so at this early stage of the proceeding. As Bromberg J said, when refusing to make a similar order at a similar early stage of the proceeding in Winterford v Pfizer Pty Ltd [2012] FCA 1199 at [9], to make such an order at that stage would “turn on its head the very nature of the opt-out model chosen by the legislature”.

219    The risk of prejudice to 3A will be mitigated to a certain extent by orders which have the effect of requesting group members to register their interest in the proceeding and provide information and documentation about their buildings and the builders, architects, consultants, and certifiers who were relevantly involved in the design, construction, and certification of the buildings. For the reasons already given, it may be accepted that it is necessary or appropriate to make those orders. The effect of the making of those orders will be that 3A is put in a position whereby it can investigate any claims for contribution it may have in respect of each of the registered group member’s claims. The question is whether it is necessary or appropriate to go one step further and effectively extinguish the rights of group members who, for whatever reason, do not register.

220    3A submitted, in effect, that it was necessary or appropriate to make such an order because, without it, there was nothing to prevent a group member who had not registered or provided the requested information and documents from coming forward at a very late stage of the proceeding, after the determination of the common questions and at a point where it is no longer possible for 3A to pursue any contribution claims in respect of any damage suffered by that group member. In 3A’s submission, the prejudice it would suffer in those circumstances was, or would be, irreparable or irremediable.

221    The difficulty or weakness in 3A’s contentions in that regard is that, at least at this stage of the proceeding, it is effectively impossible to gauge or determine the real extent of the risk of prejudice faced by 3A. While the risk cannot necessarily be excluded, it equally cannot said to be significant or substantial. Indeed, on one view at least, the risk may be fairly theoretical or remote. It would require the following events or circumstances to occur or exist: first, a group member failing or refusing to register in accordance with the terms of the notice; second, that group member later coming forward and seeking to pursue its claim or rights as a group member sometime after the judgment in respect of the common issues; third, 3A having available to it a viable contribution claim or claims in respect of any damage suffered by that group member; fourth, the contribution claim or claims that 3A may have in respect of that group member’s claim being found to be subject to a relevant long stop limitation period; and fifth, that limitation period having expired at the time the group member comes forward. It cannot be said or predicted at this early stage of the proceeding that the combination and confluence of those events and circumstances is likely or probable. It is at best a possibility, perhaps even a remote one.

222    In any event, the risk to 3A of it suffering any such prejudice must be balanced against the risk that, if Order 7 is made, some group members may, perhaps through no fault of their own, be effectively deprived of their causes of action against 3A.

223    There is no sound basis to infer that a group member in a case such as this who received or became aware of a notice requesting them to register their claim, if they do not elect to opt out of the proceeding, would not either opt out or register their claim. It is difficult to imagine that any rational or reasonable person who received or became aware of the notice and who understood or believed that they were a group member would do nothing in response to it, unless perhaps they had no intention of ever pursuing any claim against 3A. That is particularly so given the nature of this case and the likely identity of most group members. Most group members’ claims against 3A are likely to be significant and substantial and most group members are likely to be owners corporations, like Owners, or commercially sophisticated property owners.

224    It must also be accepted, in this context, that there is always a risk that any notice which is sent out or published may not be received by, or come to the attention of, all group members. That is particularly the case where, as here, the notice procedure proposed by 3A provides only for the placing of advertisements in major newspapers and the display of the notice on the website of the solicitors for Owners. There is also undoubtedly a risk that some group members who receive or become aware of the notice may not be aware at that time that they are a group member. As discussed earlier, there was evidence to suggest that some group members may not necessarily know that the cladding that is affixed to their property is relevantly Alucobond cladding and that, to determine if that is the case, it may be necessary to have a panel removed and inspected.

225    The available inference in those circumstances is that the only group members who would neither opt out nor register would be likely to be group members who did not receive or become aware of the notice, or who did not understand or appreciate that they were group members, or who for some other reason were unable to, or simply neglected to, complete the registration form within time. There perhaps may be some group members who would not register because they had no intention of ever pursuing any claim against 3A. That category of group members can perhaps be put to one side for present purposes. That is because it would appear to be rather unlikely that group members falling within that category would, at some time in the future, have a change of mind and come forward and seek to participate in the proceeding.

226    The critical question, in these circumstances, is whether the risk of prejudice to 3A is such as to warrant an order which effectively extinguishes or destroys the causes of action or the rights of group members who either did not receive or become aware of the notice, or who did not know or appreciate that they were group members at the time they received the notice. The answer to that question, at least at this stage of the proceedings, is that such an order is unwarranted and a somewhat disproportionate response to the risk of prejudice to 3A.

227    On the one hand, for the reasons already given, it cannot be concluded at this stage that the risk of prejudice to 3A is significant or substantial. Indeed, on one view at least, the risk may be considered to be fairly remote. It remains uncertain at this stage whether 3A will in fact have any viable claims for contribution that it will seek to prosecute, let alone that any such claims will be subject to a long stop limitation period which may expire in the near future. On the other hand, there could be little doubt that, if Order 7 is made, there is a real and significant risk that at least some group members may, through no fault of their own, be effectively deprived of valuable rights, perhaps without even knowing that to be the case.

228    It is true that Order 7, if made, would be an interlocutory order and would be able to be varied or revised. A group member who failed to register within the required time because the notice did not come to their attention, or because they did not appreciate that they were a group member, could in those circumstances apply to have Order 7 varied so as not to apply to them. That perhaps goes some way to ameliorate the potentially harsh or draconian operation of Order 7. It does not, however, assist group members who never become aware of the notice. It also shifts the onus back onto the non-registering group members, who would not only have to demonstrate why the order should be varied, but would also have to prove why they did not receive the notice or register within time. They would also no doubt have to prove that 3A would not be relevantly prejudiced by the variation of the order. That may not be an easy task. Shifting the onus onto the group member in these circumstances must also be considered in the context that the ordinary course is that a representative proceeding is an opt out proceeding, not an opt in proceeding.

229    It is equally true that the statutory scheme for representative proceedings envisages that group members who do not identify themselves may at some point be bound by a judgment or settlement in the proceeding, and effectively barred from taking any action against the respondent to the proceeding, even if they may be unaware of the proceeding. It does not follow, however, that the order in question in this case cannot be said to be harsh or draconian. As was pointed out in both Brewster and Haselhurst, the statutory scheme only permits that to occur at the successful completion of the action by way of settlement or judgment: Brewster at [73]; Haselhurst at [52]-[53]. That is fundamentally different to making an order like Order 7 at this early stage of the proceeding.

230    As Payne JA made clear in Haselhurst (at [129]) it is necessary, when considering whether to exercise the discretion to make an order like Order 7, to have regard to the interests of all group members and to ensure that “the interests of the non-party group members are not sacrificed to the interests of the parties before the Court”: Capic v Ford Motor Company of Australia Ltd [2016] FCA 1020 at [19]. For the reasons given by Payne JA in relevantly similar circumstances in Haselhurst (at [129]), Order 7, by contingently extinguishing some group members’ rights if they do not register at this early stage of the proceeding, clearly prioritises the interests of the respondents, 3A and Halifax, over a section of group members.

231    Order 7 is also not the only reasonable means by which to address the potential risk of prejudice to 3A at this early stage of the proceeding. As has already been made clear, it is appropriate or necessary to ensure justice is done in the proceeding to make an order the effect of which is to request, by notice, group members to register by a particular date and to provide, as part of the registration process, certain specified information and documentation. There is no sound reason to doubt that the majority of group members who receive that notice will, in due course, register their claims (assuming they do not opt out) and provide the requested information and documentation. That is so even if the request to register is not expressed in mandatory terms and there is no “sanction” in the form of Order 7.

232    The responses received in response to the envisaged registration notice will allow 3A to investigate and, if thought necessary and desirable, to prosecute any cross claims for contribution that are considered to be available. That will in turn considerably reduce the risk of any prejudice to 3A which may arise from the potential operation of any relevant long stop limitation periods that may apply to any of its contribution claims. It may not entirely exclude the risk that some unregistered group member may come forward at some later stage when any contribution claims that 3A might have in respect of that group member’s claim may be subject to a limitation period. For the reasons already given, however, there is at this stage nothing to suggest that the risk of that occurring is anything more than remote or theoretical.

233    It is possible that the circumstances may change at some later point in this proceeding so as to justify an order similar to Order 7, assuming of course that the Court has the power to make such an order. It may, for example, be the case that at some later point 3A will be able to demonstrate that the risk of prejudice it faces as a result of available contribution claims becoming time barred is more significant or substantial than it is presently able to show. It may, for example, as a result of further investigations in conjunction with Halifax, be in a position to identify actual group members who have not registered or provided information or documentation in relation to their claims. It may also be able to point to specific or concrete examples of contribution claims it has in respect of those group members’ claims which may become statute barred if cross claims are not filed. Whether that occurs, however, remains to be seen.

234    It follows from the above reasoning that 3A’s submission that the class closure order was not a draconian or disproportionate response to the risk of it being deprived of a fair trial by losing its rights to cross claim against third parties must be rejected. It may be, and has been, accepted that there is a risk that 3A may be deprived of some possible or potential claims for contribution if it is not able to investigate and prosecute any such claims in the relatively near future. As has been explained, however, there is a significant degree of uncertainty as to whether 3A will ever in fact suffer any prejudice as a result of otherwise viable contribution claims being found to be statute barred. It must also be accepted that there is a degree of certainty that, if the class closure order proposed by 3A is made, some group members who have actual claims against 3A will be effectively deprived of the ability to prosecute their claims, possibly without ever knowing or appreciating that to be the case. There is, in all the circumstances, considerable merit in Owners’ submission that the order proposed by 3A is disproportionate.

235    It should finally be noted that, even if it was considered to be necessary or appropriate to make an order like Order 7, it would also be appropriate to require the notification process to involve far more than simply placing advertisements in various newspapers, which is the form of notification proposed by 3A. It would also be appropriate to provide group members with a much longer period within which to register than the six week period proposed by 3A. These issues are discussed in more detail later in these reasons.

ALTERNATIVE RELIEF

236    The principal relief sought by 3A was the regime which involved the service of opt out and registration notices together with a requirement that registering group members provide certain information and documentation. That regime also included Order 7. For the reasons already given, there is no reason in principle why the regime involving the service of opt out and registration notices, coupled with an information and documentation request, should not be put into effect. The difficulty is with Order 7 which, for the reasons given, is beyond power. Even if it were not, it is not, in any event, an order which is either necessary or appropriate, or should be made, at this early stage of the proceedings.

237    The orders sought by 3A included three alternatives to the principal relief; first, an alternative opt out and registration regime that applied only in relation to States and Territories where there was a potential limitation issue; second, an order amending the definition of group members in Owners’ pleading to restrict group members to persons who relevantly own an affected property in Western Australia; and third, an order under s 33N of the FCA Act that the proceeding no longer proceed under Pt IVA of the FCA Act. In its supplementary submissions, 3A flagged yet a further alternative, which involved an order which deemed group members who had not registered as having opted out of the proceeding.

238    It is necessary to briefly address each of those alternatives.

Alternative opt out and registration regime

239    The first alternative was an opt out and registration regime which applied only to those States and Territories which have long stop limitation provisions which were the main cause or source of 3A’s complaint concerning the risk of prejudice. The alternative regime included an order, Order 24, which was in relevantly identical terms to Order 7. Like Order 7, that order is beyond power and not, in any event, appropriate or necessary at this stage of the proceeding.

Amendment of the group member definition

240    The second alternative to the principal relief was an order which required the amendment of the group member definition such that only persons who own or have previously owned affected properties in Western Australia could be group members. The asserted reason for that rather drastic enforced narrowing of the group member definition was that only Western Australia did not have a long stop limitation period which could potentially apply to any claims for contribution which 3A may wish to prosecute.

241    This alternative relief was only faintly pressed by 3A and was not the subject of any detailed submissions. It accordingly can, and will, be dealt with shortly.

242    It was asserted that the Court had power under s 33ZF of the FCA Act to require an applicant to amend its pleading, on the application of a respondent and over objection, to narrow the group member definition. Two cases were cited in support of that proposition: Darcy v Medtel Pty Limited [2002] FCA 925 and P Dawson Nominees Pty Ltd v Multiplex Ltd (2007) 242 ALR 111; [2007] FCA 1061. Neither of those cases provide any support for the proposition that s 33ZF can be relied on to require an applicant to narrow the pleaded definition of the group members. P Dawson Nominees in fact suggests (at [55]) that the provision was only used in circumstances where the definition was enlarged.

243    In its supplementary submissions, 3A contended, in effect, that the Court of Appeal in Haselhurst had acknowledged that the Court had power under s 183 of the CPA (and therefore s 33ZF of the FCA Act) to make an order requiring a representative party to amend its pleading to narrow the group member definition. That is not correct.

244    It is true that in Haselhurst, Payne JA referred (at [72]) to the amendment of the definition of group members to be “one way in which a class may be ‘closed’”, however, none of the cases referred to by his Honour in that context involved an application by a respondent to require the representative party to narrow the group member definition. Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd (2007) 164 FCR 275; [2007] FCAFC 200 concerned an application under s 33N of the FCA Act for an order that a proceeding no longer proceed under Pt IVA of the FCA Act, the basis for which was said to be that the group members were confined to persons who had entered into a particular litigation funding agreement. Bray v F Hoffman-La Roche Ltd [2003] FCA 1505 concerned an application to amend by the representative party pursuant to s 33K of the FCA Act.

245    Bell P also referred (at [17]) to the amendment of the “class definition”, however his Honour’s observations were limited to that occurring, presumably by consent, as part of a settlement.

246    The reasoning of the majority in Brewster would also suggest that s 33ZF would not empower the Court to make such an order. Part IVA of the FCA Act contains a specific provision which deals with the amendment of an application to alter the description of the group. That provision, s 33K, provides only for such an amendment on the application of the representative party. It is, in those circumstances, difficult to accept that s 33ZF could be said to be “the source of power to do work beyond that done by the specific provisions which the text and structure of the legislation show it was intended to supplement”: Brewster at [70].

247    Even if the Court was empowered by s 33ZF of the FCA Act to amend and narrow the group member definition in Owners’ pleading over its objection, it would not be appropriate to make such an order in all the circumstances at this early stage of the proceeding. It may be accepted that the narrowing of the class which would result from the amendment would ameliorate, if not eliminate, any risk of prejudice to 3A arising from the potential operation of long stop limitation periods in respect of possible contribution claims that 3A might have. However, for essentially the same reasons as those given earlier in the context of whether Order 7 should be made in the exercise of the Court’s discretion, the risk of prejudice to 3A has not been shown to be sufficiently significant or substantial to warrant or justify the rather drastic remedy of compelling Owners, as the representative party, to substantially narrow the class.

“De-classing” pursuant to s 33N of the FCA Act

248    The third alternative to the principal relief sought by 3A was an order under subs 33N(1)(d) of the FCA Act that the proceeding no longer continue under Pt IVA as a representative proceeding. Like the second alternative, this alternative form of relief was also only faintly pressed and was not the subject of detailed submissions by 3A.

249    Subsection 33N(1)(d) relevantly provides as follows:

Order that proceeding not continue as representative proceeding where costs excessive etc.    

(1)     The Court may, on application by the respondent or of its own motion, order that a proceeding no longer continue under this Part where it is satisfied that it is in the interests of justice to do so because:

…

(d)    it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.

250    3A contended that it was both not in the interests of justice and inappropriate for the proceeding to continue as a representative proceeding because “it is the character of the proceedings as representative proceedings which leads to the prejudice currently faced” by it. It submitted that if the proceeding was not a representative proceeding, each of the separate claims by those who are presently group members would be pleaded and particularised and it would therefore have available to it “the usual procedural steps to obtain information for the purpose of investigating and prosecuting claims for contribution”.

251    It should be noted, in this context, that the evidence adduced in relation to the interlocutory application indicated that there were upwards of 1,000 group members. Accordingly, what 3A appears to be suggesting is that it is in the interests of justice for there to be upwards of 1,000 separately pleaded and particularised claims by each of the group members. It may also be presumed that 3A envisages upwards of 1,000 separate trials.

252    While the parties did not provide the Court with detailed submissions concerning s 33N, it is nonetheless necessary to say something briefly concerning the relevant principles in relation to it. The following brief summary of the principles is largely taken from the summary given in Bywater v Appco Group Australia Pty Ltd [2018] FCA 707 at [13]-[19].

253    A representative proceeding that is found to have met the requirements of s 33C of the FCA Act may nevertheless be the subject of an order under s 33N: Bright v Femcare Limited (2002) 195 ALR 574; [2002] FCAFC 243 at [128] (per Kiefel J).

254    The consequence of an order made under subs 33N(1) is that the proceeding may be continued as a proceeding by the representative party on his or her own behalf against the respondent: subs 33P(a) of the FCA Act. The Court can also order, on the application of a person who was a group member, that the group member be joined as an applicant in the proceeding: subs 33P(b) of the FCA Act.

255    The question posed by subs 33N(1) is not whether the continuance of the representative proceeding can be seen to be efficient, but whether the Court is satisfied that it is in the interests of justice to order its discontinuance as a proceeding under Part IVA for the reasons listed in subss 33N(1)(a)-(d): Bright at [128]. Subsection 33N(1) is not intended to be applied unless the requisite level of satisfaction is reached: Bright at [130]. It is not, however, necessary for a respondent who seeks an order under subs 33N(1) to demonstrate that the proceeding is an abuse of process: Bright at [130]. Nor is an application under s 33N an application for summary dismissal: Bright at [20].

256    Subsection 33N(1) “envisages that the Court will engage in a comparison between how the factors specified in grounds (a) to (d) apply to the existing representative proceeding and how they would apply to a hypothetical non-representative proceeding: Multiplex at [128]. The need for the Court to engage in that sort of comparison exercise might mean that an application for a s 33N order will be required to adduce detailed evidence of the likely course or form of the comparator proceeding: Multiplex at [129]; cf Bright at [76]. It may, however, not always be necessary for the Court to give detailed consideration to the likely course of the comparator proceedings, particularly in a case where “the inefficiency or inappropriateness of the claims as a representative proceeding will be so great that the only possible order is to ‘de-class’ the proceeding”: Multiplex at [131].

257    In considering the “inefficiency” and “inappropriateness” grounds in subss 33N(1)(c) and (d), the Court “will focus more closely on matters such as the commonality and non-commonality of issues raised in the representative proceeding, as well as the purpose of that proceeding”: Multiplex at [130].

258    It may be difficult for the Court to reach the requisite level of satisfaction required by subs 33N(1) where the proceeding is at an early stage: Bright at [18], [149]; Jenkins v Northern Territory of Australia [2017] FCA 1263 at [97]; Guglielmin v Trescowthick (No 2) (2005) 20 ALR 515; [2005] FCA 138 at [76].

259    It cannot be accepted, having regard to these principles, that it is in the interests of justice to order that the proceeding no longer continue as a representative proceeding, either because it is inappropriate that the claims be pursued by means of a representative proceeding or for any other reason.

260    For the reasons already given in the context of the principal relief sought by 3A, it may be accepted that there is at least a risk that 3A may suffer some prejudice if it is not able to investigate and, if thought appropriate, prosecute any viable contribution claims relating to group member claims within the relatively not too distant future. It cannot, however, be accepted at this early stage of the proceeding that that risk of prejudice is such as to make it inappropriate that the claims be pursued by means of a representative proceeding, or that it is in the interests of justice that the proceeding not continue under Part IVA.

261    That is so for essentially the same reasons as those given earlier in the context of the principal relief sought by 3A. In short, 3A has not demonstrated that the risk of prejudice is anything more than theoretical or remote. It has not demonstrated that it is significant or substantial. Nor can it be accepted, at least at this stage of the proceeding, that the making of an order under s 33N is a reasonable, let alone the only reasonable, means by which to address the potential prejudice to 3A. For the reasons already given, it is appropriate or necessary to make orders which have the effect that group members will be requested to register their claims and provide information and documentation which will assist 3A to investigate any potential contribution claims it may have against third parties in respect of the claims of registered group members. That procedure may not entirely eliminate the risk of prejudice to 3A arising from the possibility that some contribution claims may become statute barred. It will, however, significantly minimise or ameliorate the risk. 3A is only likely to suffer any prejudice if any group members choose not to register initially and later change their mind and come forward at a time when any possible contribution claims may be statute barred. Even then, 3A will only suffer actual prejudice if the contribution claims are found to be viable and are positively held to be statute barred.

262    Of course, the other side of the equation is to consider the appropriateness, efficiency, and effectiveness of the group members claims being pursued other than by way of a representative proceeding. It is difficult to see how it could possibly be said to be in the interests of justice for there to be potentially upwards of 1,000 separate proceedings, which would be the result if an order was made under s 33N. That is all the more so given that it appears likely that there will be at least some substantial common issues of law and fact arising from the group members’ claims. While the precise nature and scope of the common questions is still a potentially live issue in the wake of the recent substantial amendments to both the originating application and the pleading, 3A has effectively conceded that there are likely to be at least some substantial common issues. It is highly desirable that those common issues be determined in a representative proceeding.

Deemed opt out

263    In its further supplementary submissions, 3A applied for an order in the following terms:

Pursuant to s 33ZF of the FCA [Act], any Group Member who fails to opt-out in accordance with Order [3 in the first set of orders or 20 in the second set of orders], or to register in accordance with Order [6 in the first set of orders or 23 in the second set of orders], by the Class Deadline, shall be deemed to have opted out of the Proceeding and shall not be entitled to receive any distribution from any settlement of, or judgment in, the proceeding.

264    This was not an order sought in 3A’s interlocutory application. No application was made to amend the interlocutory application. 3A was given leave to file supplementary submissions in relation to the implications of the decision in Haselhurst. It was not given leave to pursue further alternative orders in light of the decision in Haselhurst.

265    Putting those procedural issues to one side, it is highly doubtful and difficult to accept, in light of the reasoning of the majority in Brewster, that the making of this order would fall within the power conferred by s 33ZF of the FCA Act. There is a specific provision in the statutory scheme in Pt IVA concerning group members opting out of representative proceedings. That provision, s 33J, provides that the Court must fix a date before which a group member may opt out of a representative proceeding and that a group member may opt out before the date so fixed. There is nothing in s 33J or the statutory scheme generally to suggest that the Court may deem a group member who does not register their claim to have opted out of the proceeding. It might reasonably be expected that “legislation intended to enlist the court in a task of this kind would make specific provision in that regard” and the fact that it has not done so “is itself some contextual indication that the power to make such an order is not to be discerned in ‘gap filling’ provisions such as s 33ZF”: Brewster at [69] (footnote omitted).

266    Perhaps more significantly, the effect of a deemed opt out order of the sort suggested by 3A would be to effectively turn the statutory scheme on its head. It would have the effect of converting what is and was plainly intended to be an opt out scheme for representative proceedings into an opt in scheme. Deeming a group member who has not positively responded to a notice requiring registration to have opted out is, for all intents and purposes, practically indistinguishable from requiring a group member to opt in. Whether that makes a deemed opt out order an oxymoron, as Owners submitted, is perhaps linguistically debatable. It is, however, clear that such an order, if made for the purpose advanced by 3A, effectively “rewrites” Pt IVA.

267    3A was unable to identify any previous case which supported the proposition that the Court was empowered by s 33ZF, or any other provision in the FCA Act, to make a deemed opt out order of the sort it proposed. It referred to orders made by Rares J in Mitsub Pty Limited v McGraw-Hill Financial Inc (No 2) [2016] FCA 1285, one of which included an order which was to the effect that a group member who registered for one class action was deemed, for the purposes of a mediation, to have opted out of other related and overlapping class actions. Putting aside the fundamentally different circumstances and purposes for which that order appears to have been made, it was made by consent and without any consideration or argument about the Court’s power to make it. It was also made before the decision in Brewster. It provides no support for 3A’s case that the Court has power to make a deemed opt out order.

268    In all the circumstances, Owners’ submission that the Court does not have power to make the order proposed by 3A must be accepted.

269    In any event, even if the Court was empowered by s 33ZF to deem a group member who has not registered as having opted out, it cannot be accepted, in all the circumstances, that such an order should be made in the exercise of the Court’s discretion at this early stage of the proceeding. It may be accepted that such an order would significantly ameliorate any risk of prejudice to 3A arising from the potential operation of long stop limitation periods in respect of possible contribution claims it might have. It may also be accepted that a deemed opt out order of the sort proposed by 3A is not as drastic a remedy as Order 7 because group members who are deemed to have opted out do not have their causes of action against 3A extinguished. It is, nevertheless, an order which could operate to the significant detriment of group members affected by it. The effect would be that the suspension of any applicable limitation provisions would no longer apply to those group members, who would also then have to then commence their own separate proceedings against 3A. For the reasons given earlier in the context of the proposed Order 7, 3A has not demonstrated that the risk of prejudice to it is such as to warrant or justify the making of an order which would have that potential detrimental effect on some group members at this early stage of the proceeding.

ANCILLIARY issues – method of notification and notice period

270    Owners and 3A were at odds in relation to a number of ancillary issues, including the method of notification and the notice period. It is neither necessary nor desirable to deal at length with those issues. The position previously taken by the parties in relation to those issues may well change as a result of the findings made in this judgment. The parties might also reasonably be expected to confer, in light of this judgment, in an effort to reach some common or middle ground in relation to issues such as the form and content of the relevant notice, the manner in which the notice can best be sent to, or brought to the attention of, group members, and the period of time that group members should be given to respond to the notice. There is always room for optimism, even in this matter, that the parties will take a reasonable and sensible approach in relation to such issues. To facilitate that occurring, it may assist if some preliminary or tentative views about those issues are proffered.

Method of notification

271    3A proposed that the opt out and registration notices should be “distributed” to group members in two ways: first, by displaying the notice on the website of Owners’ solicitors; and second, by causing an abridged version of the notice to be published in a number of major newspapers: The Australian, The Australian Financial Review, The West Australian, The Advertiser, The Age, The Mercury, The Sydney Morning Herald, The Canberra Times, the Courier Mail, and the Northern Territory News.

272    Owners submitted that the publication of the notice in major newspapers was not the most efficient or effective method of bringing the notice to the attention of group members. It contended that a “more tailored” form of notification based on records held by 3A and Halifax would be preferable. What was envisaged in that regard was that 3A and Halifax would, or should somehow be compelled to, compile a list of buildings to which the relevant Alucobond panels were affixed. The notices would then be sent to those buildings, or the owners of them, if that was able to be ascertained.

273    The method of notification proposed by 3A would appear to be substantially unsatisfactory and deficient having regard to the particular nature and circumstances of this case. That would be all the more so if the Court were, contrary to the conclusion that has been arrived at, to make an order in the nature of the proposed Order 7 (or Order 24), or an order that deemed a group member who did not register in response to the notice to have opted out. It is doubtful that the publication, in major daily newspapers, of a notice to group members such as that proposed in this matter would be likely to come to the attention of all, or even the majority, of group members. That is particularly so as the readership and prominence of newspapers as a source of news and information wanes in the face of other electronic means of communication, such as social media. It is perhaps equally doubtful that publication in newspapers is the best method by which to prompt some response from group members; that is, there is a risk that even group members who read daily newspapers may not immediately appreciate that a notice published in the newspaper is relevant to them or their circumstances.

274    That is not to say that publication in major newspapers should not be one of the means by which notification is to be accomplished. It just should not be the only means.

275    The method of notification proposed by Owners is, at first blush at least, likely to be a more effective and efficient means of notification. There was, however, evidence which suggested that it would be extremely time consuming, costly, and perhaps not even particularly fruitful, for Halifax to interrogate its business records with a view to identifying buildings in Australia to which the relevant Alucobond panels were affixed over the years covered by the Owners’ pleading. The interrogation of 3A’s records concerning supplies to Australia, such as they are, was likely to be even less fruitful. It is unnecessary to detail the evidence in relation to that issue. It would, in short, not be unfair to summarise the position as being that the method proposed by Owners was easier said than done.

276    That said, the issue concerning the identification of group members to this point appears to have been addressed in an unfortunately adversarial and combative way, as if what was being proposed was some sort of contested discovery exercise. It is plainly in the best interests of not only Owners and the group members, but also 3A and Halifax, for the notice to group members to be distributed in a manner that is most likely to bring the notice to the attention of all group members, as well as in such a way as to prompt an appropriate response; be it opting out or registration. With that in mind, it is difficult to accept that if the parties put their heads together and act in a cooperative and common sense way, they will not be able to come up with some effective, efficient, and relatively economical means by which a list of potential group members could be compiled from the business records of 3A and Halifax. That list may not be complete or even comprehensive, but it would be a start. The notice could then be sent directly to those group members, or potential group members.

277    The parties should also think laterally and explore other means by which potential group members may be able to be identified. There appears, for example, to have been some inquiries or investigations by various regulatory, government, or industry bodies or agencies which may have touched upon some of the issues that may arise in this proceeding. While issues may arise in relation to the confidentiality of information compiled by those bodies or agencies, it is difficult to accept that those potential sources of information cannot be utilised in some way.

278    The compilation of lists of possible group members may not be a complete answer to the issue of notification. It may also turn out to be necessary to publish the notice in major newspapers and perhaps other media outlets or forms. It might, for example, be necessary to consider the utilisation in some way of social media.

279    The parties should confer with a view to exploring the options and hopefully coming to a common position in relation to the most efficient and effective method or methods of notification in all the circumstances.

Content of notices

280    The parties did not make any detailed submissions in respect of the content of the proposed notices. It will, in any event, be necessary for the parties to consider the content of the notices in light of this judgment.

281    It is necessary to address only one issue concerning the content of the notice to group members.

282    The parties adduced evidence concerning the potential difficulties that some group members, or possible group members, may have in determining whether the cladding affixed to their building is the particular Alucobond panels which are the subject matter of this proceeding. It is unnecessary to consider that evidence in any great detail. The evidence indicated that there were several types or brands of aluminium composite panels in Australia and that many of them do not have any obvious external label or identifying feature which distinguish them from other brands. Alucobond panels generally have a label on the rear side of the panel. It followed that potential group members who wished to determine whether the panels affixed to their building are Alucobond panels might have to engage a relevantly qualified building professional to remove a panel or panels to see if there is any label on the underside. If there is no such label, the professional may then have to perform “composition testing” to identify the product. That is a potentially costly or time consuming exercise.

283    This is a potentially significant issue. A group member or possible group member who receives or become aware of the notice may not respond appropriately to it, or be capable of responding to it, if they do not know, or cannot readily ascertain, whether they are in fact a group member because the panels affixed to their building are in fact one of the relevant Alucobond panels. They may, in those circumstances, just ignore the notice. That is not in the interests of any of the parties. The notices proposed by 3A do not include any information that would assist group members, or possible group members, who receive the notice to ascertain whether the cladding affixed to their building is the cladding which is the subject of the proceeding. It would seem to be sensible for the notice to include some information in that regard.

284    The parties should confer and consider what information should be included in the notice to address this issue.

Notice period

285    3A proposed that the notice give group members six weeks in which to respond and register or opt out. It submitted that a six week period was reasonable and appropriate, particularly given that the long stop limitation periods were arguably running and that some potential contribution claims may become statute barred if any further time was allowed for a response to the notice.

286    Owners contended that a six week period was far too short. It submitted that a period of nine to twelve months was more appropriate.

287    There could be little doubt that, having regard to the particular circumstances of this case, a period of six weeks for group members to respond to the notice and either opt out or register would not be reasonable or appropriate. That would be all the more so if an order similar to Order 7 (or Order 24) was to be made. Group members who receive or become aware of the notice may have to ascertain whether the panels affixed to their building are in fact the relevant Alucobond panels. In some cases that may take time. Given the particular nature and complexity of the proceeding, it would also not be unreasonable to expect that some group members may wish to confer with others and take advice, including legal advice, about the appropriate response to the notice. A six week period is unlikely to be sufficient to enable or allow that to occur.

288    By the same token, a period of nine to twelve months appears to be somewhat excessive in all the circumstances. That is all the more so given that the main reason for requesting registration is to enable 3A to investigate potential contribution claims that may be subject to limitation periods. Owners’ contention that a period of six to twelve months was appropriate may have been the product of legitimate concerns about the effect and implications of Order 7. That is no longer an issue. It may be, in those circumstances, that Owners might temper its view about the appropriate notice period.

289    The parties should confer with a view to agreeing on the appropriate notice period in light of the findings made in this judgment.

CONCLUSION AND DISPOSITION

290    Owners did not oppose the fixing of a time by which group members may opt out of the proceeding. Nor did it take issue with the form of the notice proposed by 3A in that regard.

291    It was also essentially common ground that it would in all the circumstances be appropriate to request group members to identify themselves by registering their claims with Owners’ solicitors. Owners also effectively conceded that it would be appropriate to request registering group members to provide some information and documentation in relation to their claims so as to enable 3A and Halifax to investigate any possible contribution claims.

292    The Court has the power under s 33ZF of the FCA Act to make an order inviting or requesting group members to register their claims, even at this relatively early stage of the proceedings, if such an order is appropriate or necessary to ensure that justice is done in the proceeding. In the particular and somewhat unique circumstances of this case, it is appropriate or necessary to make such an order. The parties should confer with a view to agreeing on the form of notice that should be given to group members in that regard and the method by which that notice is to be brought to the attention of group members.

293    The Court does not, however, have power to require or compel group members to register at this early stage, or to order that group members who do not register within a particular time will not be able to receive any distribution from any settlement of, or judgment in, the proceeding, but will nevertheless be bound by any such settlement or judgment. Even if the Court did have the power to make such an order, 3A has not demonstrated that such an order should, in all the circumstances, be made at this early stage of the proceeding. Nor has 3A demonstrated that the Court can or should make an order that non-registering parties should be deemed to have opted out of the proceeding. There is also no sound legal or factual basis for compelling Owners to narrow the definition of group members so as to effectively exclude persons who own properties other than in Western Australia, and no sound basis to make an order “de-classing” the proceeding under s 33N of the FCA Act.

294    The parties should confer with a view to agreeing on the appropriate orders to give effect to this judgment, including in relation to the costs of the interlocutory application. If the parties are able to agree on the appropriate orders within two weeks of the date of this judgment, a draft of those orders should be provided to the Court and arrangements made to have the matter listed for a case management hearing on a suitable date at which those proposed orders will be considered and, if considered appropriate, made by the Court. If no agreement can be reached within two weeks of the date of this judgment, the parties should each prepare brief written submissions (not exceeding five pages) annexing a copy of their proposed orders and provide them to the Court within three weeks of the date of this judgment. The matter will then be fixed for further hearing to resolve the outstanding issues.

Associate:

Dated:    1 June 2020