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Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd[2024] QCA 74

Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd[2024] QCA 74

SUPREME COURT OF QUEENSLAND

CITATION:

Gladstone Ports Corporation Limited v Murphy Operator Pty Ltd [2024] QCA 74

PARTIES:

GLADSTONE PORTS CORPORATION LIMITED

ACN 131 965 896

(appellant)

v

MURPHY OPERATOR PTY LTD

ACN 088 269 596

(first respondent)

TOBARI PTY LTD

ACN 010 172 237

(second respondent)

SPW VENTURES PTY LTD

ACN 135 830 036

(third respondent)

FILE NO/S:

Appeal No 5961 of 2023

SC No 7495 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2023] QSC 35 (Crow J)

DELIVERED ON:

7 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2023

JUDGES:

Flanagan JA, Buss AJA and Kelly J

ORDERS:

  1. The appeal is allowed.
  2. The orders of the primary judge made on 19 April 2023 are set aside and in lieu thereof the following orders are made:
    1. The amendments to the definitions of Commercial Fishing Group Members and Fish Handling Group Members contained in paragraphs 3(a) and (b) of the Further Amended Statement of Claim filed 25 July 2018, as allowed by the orders dated 19 July 2018, take effect from 29 June 2018;
    2. The plaintiffs’ application filed 11 November 2022 is dismissed;
    3. The plaintiffs pay the defendant’s costs of the application filed 11 November 2022.
  3. The respondents pay the appellant’s costs of the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – MATTERS RELATING TO LIMITATION PERIOD – where the respondents sought leave to amend the further amended statement of claim – where a proposed second further amended statement of claim sought to include causes of actions for which time limitation periods had expired – whether, according to the proper construction of s 103Z and s 103ZA of the Civil Proceedings Act 2011 (Qld), the respondents ought to be granted leave to amend the further amended statement of claim to include new causes of action

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY  COURTS  –  CLASS  ACTIONS  OR  GROUP PROCEEDINGS – whether it was unnecessary to comply with r 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) due to the suspension of limitation periods in s 103Z of the Civil Proceedings Act 2011 (Qld) – whether a representative party obtains the same limitations relief provided to group members

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – CAUSES OF ACTION – where the respondents sought leave to amend the further amended statement of claim – where the amendments sought include new causes of action in respect of which limitation periods current at the date the proceeding was started, had ended – whether the causes of action sought to be included in the further amended statement of claim arose out of the same facts or substantially the same facts as the causes of action pleaded in the existing pleading – whether it was appropriate to grant leave to amend the further amended statement of claim pursuant to r 376(4) of the Uniform Civil Procedure Rules 1999 (Qld)

Civil Proceedings Act 2011 (Qld), s 16, s 103A, s 103B, s 103C, s 103D, s 103F, s 104G, s 103H, s 103I, s 103K, s 103M, s 103N, s 103O, s 103P, s 103S, s 103T, s 103X, s 103Y, s 103Z, s 103ZA, s 103ZB

Federal Court of Australia Act 1976 (Cth), s 33A, s 33C, s 33D, s 33H, s 33L, s 33N, s 33Q, s 33R, s 33S, s 33W, s 33X, s 33ZA, s 33ZB, s 33ZC, s 33ZE, s 33ZF

Limitation of Actions Act 1974 (Qld)

Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 375, r 376

Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529; [1987] VicRp 48, cited

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, applied

Allonnor Pty Ltd v Doran [1998] QCA 372, applied

Allphones Retail Pty Ltd v Weimann [2009] FCAFC 135, cited

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, applied

Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 84 FCR 512; [1998] FCA 819, cited

Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471; [1962] HCA 13, cited

Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59, applied

BHP Group Pty Ltd v Impiombato (2022) 96 ALJR 956; [2022] HCA 33, applied

BMW Australia Ltd v Brewster (2019) 269 CLR 574; [2019] HCA 45, applied

Borsato v Campbell [2006] QSC 191, applied

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833, cited

Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317; [2003] FCAFC 153, applied

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited

Bruce v Odhams Press Ltd [1936] 1 KB 697, cited

Cash Converters International Ltd v Gray (2014) 223 FCR 139; [2014] FCAFC 111, cited

Certain Lloyd’s Underwriters Subscribing to Contract

No IH00AAQS v Cross (2012) 248 CLR 379; [2012] HCA 56, cited

Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation (2017) 251 FCR 40; [2017] FCAFC 62, applied

Clyne v Deputy Commissioner of Taxation (Cth) (1981) 150 CLR 1; [1981] HCA 40, cited

Cooke v Gill (1873) LR 8 CP 107; [1873] UKLawRpCP 3, cited

Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150; [2017] FCA 896, applied

Donovan v Gwentoys Ltd [1990] 1 All ER 1018, cited

Draney v Barry [2002] 1 Qd R 145; [1999] QCA 491, applied

Dyczynski v Gibson (2020) 280 FCR 583; [2020] FCAFC 120, applied

ENT19 v Minister for Home Affairs (2023) 97 ALJR 509; [2023] HCA 18, applied

Ethicon Sarl v Gill (2018) 264 FCR 394; [2018] FCAFC 137, applied

Evans v Davantage Group Pty Ltd (No 2) [2020] FCA 473, cited

Federal Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) (2015) 257 CLR 544; [2015] HCA 48, cited

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, cited

Gibson v Malaysian Airline System Berhad (No 2) [2017] FCA 701, cited

Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

ICI Australia Ltd v Commissioner of Taxation (Cth) (1972) 127 CLR 529; [1972] HCA 75, cited

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts Reports 81-692; [2003] VSC 27, applied

King v GIO Australia Holdings Ltd (2000) 100 FCR 209; [2000] FCA 617, cited

Lennon v Gibson and Howes Ltd [1919] AC 709; [1919] UKPCHCA 2, cited

Matthews v SPI Electricity Pty Ltd (No 5) (2012) 35 VR 615; [2012] VSC 66, applied

McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1; [1998] FCA 658, cited

Menegazzo v Pricewaterhousecoopers (A Firm) [2016] QSC 94, applied

Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; [2005] HCA 9, cited

Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583; [2013] QSC 211, cited

Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27, applied

Mokrzecki v Popham [2013] QSC 123, cited

Monto Coal 2 Pty Ltd v Sanrus Pty Ltd as Trustee of the QC Trust [2014] QCA 267, cited

Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd [2024] QCA 74Murdoch v Lake [2014] QCA 216, applied

Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd [2024] QCA 74Murphy v Farmer (1988) 165 CLR 19; [1998] HCA 31, cited

Parkin v Boral Ltd (2022) 291 FCR 116; [2022] FCAFC 47, applied

Pianta v BHP Australia Coal Ltd [1996] 1 Qd R 65; [1995] QCA 53, applied

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45, cited

Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455; [2000] QCA 292, cited

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58, cited

Silkfield Pty Ltd v Wong (1998) 90 FCR 152; [1998] FCA 1488, applied

Stewart v Uber Technologies Incorporated [2020] NSWCA 208, cited

Stimpson v O'Toole (2022) 12 QR 27; [2022] QCA 194, cited

Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44, applied

Thomas v State of Queensland [2001] QCA 336, applied

Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd [2024] QCA 74Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580; [2020] VSCA 186, applied

Webster v Murray Goulburn Co-Operative Co Ltd (No 2) [2017] FCA 1260, applied

Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd [2024] QCA 74Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113, applied

Wong v Silkfield Pty Ltd (1999) 199 CLR 255; [1999] HCA 48, applied

COUNSEL:

R P Lancaster SC, with J Green, for the appellant

L W L Armstrong KC, with J P Tomlinson and M J May, for the respondents

SOLICITORS:

King & Wood Mallesons for the appellant

Clyde & Co for the respondents

  1. [1]
    THE COURT:

Introduction and background to this appeal

  1. [2]
    This appeal is from an interlocutory decision granting leave to amend a pleading. In 2011, a bund was constructed at the Port of Gladstone (“the Port”). The defendant (“the appellant”) is the Port operator. The plaintiffs (“the respondents”) are involved in differing roles in the fishing industry in the Gladstone region. The respondents contend that the bund detrimentally affected a large area of waters off the coast of Queensland which led to a reduction in the amount and quality of commercial species of fish in those waters. The proceeding is “a representative proceeding” and each respondent is a “representative party” within the meaning of those terms as defined in s 103A of the Civil Proceedings Act 2011 (Qld) (“the CPA”).
  2. [3]
    The proceeding started on 21 July 2017 and has been case managed by the primary judge. As at in or about October 2019, the pleadings were constituted by a further amended statement of claim filed 25 July 2018 (“the existing pleading”), a defence and a reply. On 22 October 2019, the primary judge made case management orders[1] which required the respondents to complete disclosure, serve their lay evidence and any expert reports and then, by 5 June 2020, file and serve a second further amended statement of claim. The respondents did not comply with the order to file and serve a second further amended statement of claim. Between 9 December 2020 and 8 April 2022, consent orders were made which required the respondents to provide their lay and expert evidence prior to making any application for leave to file and serve a second further amended statement of claim.[2] The primary judge later said of those orders:[3]

“By reference to ordinary litigation it is most unusual that expert evidence and lay witnesses evidence be required to be filed and served prior to the completion of the pleadings, however, class action litigation is by no means ordinary litigation. By the series of aforementioned orders, it was acknowledged that the case is complex and the final pleading could not effectively be determined until at least the receipt of the vast amount of expert evidence which the plaintiffs seek to adduce to prove its case.”

  1. [4]
    On 1 August 2022, the primary judge made orders to the following effect:[4]
    1. by 14 October 2022, the respondents were to deliver to the appellant a proposed second further amended statement of claim (“the proposed pleading”);
    2. by 28 October 2022, the appellant was to notify the respondents whether the appellant objected to the proposed pleading and the grounds of any objection;
    3. if there were no objections, the respondents would have leave to file and serve the proposed pleading;
  1. if there were objections, the respondents were to apply for leave to amend in terms of the proposed pleading.
  1. [5]
    The proposed pleading was delivered by the respondents and objected to by the appellant.
  2. [6]
    On 12 and 13 December 2022, the primary judge heard a contested application for leave to file and serve the proposed pleading. The appellant contended that leave should be refused because the proposed pleading included statute barred causes of action. The parties’ arguments directed attention to provisions of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) and the CPA dealing with amendments and Part 13A of the CPA, which contains procedural mechanisms for the conduct of representative proceedings.
  3. [7]
    In terms of the amendment provisions, s 16(2)(c) of the CPA provides that the court may order or grant leave to make an amendment even though a relevant period of limitation, current when the proceeding was started, has ended. Section 16(3) provides that “[d]espite subsection (2), the rules of court may limit the circumstances in which amendments may be made”. In terms of the “rules of court”, r 375 is expressed to be subject to r 376[5] and countenances the amendment of a claim or pleading at any stage of a proceeding on conditions the court considers appropriate. Rule 376(1) applies to an application for leave to amend “if a relevant period of limitation, current at the date the proceeding was started, has ended”. Rule 376(4) provides that the court may grant leave to amend to include a new cause of action only if “the court considers it appropriate” and “the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding”.
  4. [8]
    Within Part 13A of the CPA, s 103Z(1) provides that on the starting of a representative proceeding, the running of any limitation period applicable to “the claim of a group member to which the proceeding relates is suspended”. Section 103ZA confers upon the court a power to “make any order the court considers appropriate or necessary to ensure justice is done in the proceeding”.
  5. [9]
    By orders dated 19 April 2023, which followed the delivery of reasons on 20 March 2023 (“the Reasons”), the primary judge granted the respondents leave to amend substantially in the form of the proposed pleading subject to the respondents attending to matters set out in an annexure to those orders.[6] The primary judge found that whilst s 103Z suspended any limitation period for a cause of action relating to the claim of a group member,[7] the provision did not apply to a representative party.[8] The primary judge reasoned that a representative party could rely upon s 103ZA to “avoid the strictures of r 376(4)”[9] because “by the combination of s 103Z and s 103ZA … [r] 376(4) is not engaged”.[10] The primary judge concluded that “leave may be granted to make the amendments to include a new cause of action if they relate to the claim”.[11] In the alternative, on the assumption that r 376(4) applied, the primary judge found that the proposed pleading, but for one aspect involving a new allegation of a non-delegable duty of care, did not include new causes of action[12] and, in any case, the causes of action in the proposed pleading arose out of substantially the same facts as the facts constituting the causes of action in the existing pleading.[13] The primary judge also considered and resolved miscellaneous pleading complaints unconnected with limitations issues.
  1. [10]
    This appeal gives rise to three broad areas of dispute.
  2. [11]
    The first area of dispute, which encompasses grounds two, three and four of the notice of appeal, concerns the proper construction of s 103Z and s 103ZA of the CPA. The central controversy is the meaning of the expression “the claim of a group member to which the proceeding relates” in s 103Z(1). There is a secondary question as to whether s 103ZA confers a power to suspend limitation periods applicable to the claims of a representative party. In the context of this first area of dispute, the respondents seek to uphold the finding of the primary judge that r 376(4) did not apply to the application for leave to amend.
  3. [12]
    The second area of dispute arises if r 376(4) applied to the application for leave to amend. This area of dispute, which encompasses grounds one, five and six of the notice of appeal, is concerned with the application of r 376(4) to the facts. It is not in dispute that, to the extent that any new cause of action is included in the proposed pleading, the cause of action is the subject of a limitation period that was current at the time the proceeding started but which has since expired. The dispute essentially concerns whether new causes of action are included in the proposed pleading and, if so, whether any such cause of action arises out of the same facts or substantially the same facts as the causes of action pleaded in the existing pleading. If those issues are answered affirmatively, there is a further issue as to whether it was otherwise appropriate to grant leave to amend.
  4. [13]
    The third area of dispute is concerned with miscellaneous pleading complaints unconnected with limitations issues. Grounds seven and eight of the notice of appeal fall within this area of dispute.

Part 13A of the CPA

  1. [14]
    Part 13A of the CPA provides a regime for representative proceedings in the Supreme Court.
  2. [15]
    The definitions for Part 13A are contained in s 103A which provides:

“103A Definitions for pt 13A

In this part—

court means the Supreme Court.

defendant means a person against whom relief is sought in a representative proceeding.

group member means a member of a group of persons on whose behalf a representative proceeding has been started.

representative party means a person who starts a representative proceeding.

representative proceeding means a proceeding started under section 103B.

sub-group member means a person included in a sub-group established under section 103M.

sub-group representative party means a person appointed to be a sub-group representative party under section 103M.”

  1. [16]
    Division 2 of Part 13A is headed “Conduct of representative proceedings”. Within that division, the particularly relevant provisions are ss 103B, 103F, 103M, 103N and 103O.
  2. [17]
    Sections 103B and 103F are directed to the commencement of a representative proceeding.
  3. [18]
    Section 103B provides as follows:

“103B Starting proceeding

  1. A proceeding may be started under this part if—
  1. 7 or more persons have claims against the same person; and
  2. the claims of all the persons are in respect of, or arise out of, the same, similar or related circumstances; and
  3. the claims of all the persons give rise to a substantial common issue of law or fact.
  1. The proceeding may be started by 1 or more of the persons on behalf of some or all of the other persons.
  2. The proceeding may be started—
  1. whether or not the relief sought—
  1. is, or includes, equitable relief; or
  2. consists of, or includes, damages; or
  3. includes claims for damages that would require individual assessment; or
  4. is the same for each person represented; and
  1. whether or not the proceeding—
  1. is concerned with separate contracts or transactions between the defendant and individual group members; or
  2. involves separate acts or omissions of the defendant done or omitted to be done in relation to individual group members.”
  1. [19]
    Section 103F provides as follows:

“103FOriginating process

  1. The originating process for a representative proceeding, or a document filed in support of the originating process, must, in addition to any other matters required—
  1. describe or otherwise identify the group members to whom the proceeding relates; and
  2. state the nature of the claims made and relief sought on behalf of the group members; and
  3. state the questions of law or fact common to the claims of the group members.
  1. For describing or otherwise identifying the group members under subsection (1)(a), it is not necessary to name or state the number of the group members.”
  1. [20]
    A suite of provisions then deal with the conduct of a representative proceeding where deciding the common issues may not be of particular utility in finally deciding the claims of all group members. Those provisions may be set out as follows:

“103MWhere not all issues are common

  1. If it appears to the court that deciding the issue or issues common to all group members will not finally decide the claims of all group members, the court may give directions in relation to deciding the remaining issues.
  2. If an issue is common to the claims of some only of the group members, the directions given by the court may include directions—
  1. establishing a sub-group consisting of those group members; and
  2. appointing a person to be the sub-group representative party for the sub-group members.
  1. If the court appoints a person other than the representative party to be a sub-group representative party, that person, and not the representative party, is liable for costs associated with deciding the issue or issues common to the sub-group members

103NIndividual issues

  1. In giving directions under section 103M, the court may allow an individual group member to appear in the proceeding for the purpose of deciding an issue that relates only to the claims of that member.
  2. If an individual group member is allowed to appear under subsection (1), the individual group member, and not the representative party, is liable for costs associated with deciding the issue.

103ODirections for further proceedings

If an issue can not properly or conveniently be dealt with by the court under section 103M or 103N, the court may give directions for the starting and conduct of other proceedings, whether or not the other proceedings are representative proceedings.”

  1. [21]
    The court may order that a proceeding no longer continue under Part 13A if it is in the interests of justice to do so because “the proceeding will not provide an efficient and effective way of dealing with the claims of the group members”.[14]
  2. [22]
    Some other provisions of Part 13A are noteworthy. Except for certain public entities, the consent of a person to be a group member is not required (s 103D). Group members are given notice of the starting of a representative proceeding (s 103T) and are given the right to choose to opt out of that proceeding (s 103G). A representative party may apply for leave to amend the originating process to change the description of the group members where a cause of action has accrued after the start of the representative proceeding (s 103H). Various other notices to group members are contemplated. A court may order notice to be given to group members of the payment into court of money “in answer to a cause of action on which a claim in the representative proceeding is based” (s 103T(3)). A judgment given in a representative proceeding binds the group members other than a person who has opted out of the proceeding (s 103X).
  3. [23]
    Finally, s 103Z and s 103ZA appear in Division 6 of Part 13A which is headed “Miscellaneous”. Those sections provide as follows:

“103Z Suspension of limitation periods

  1. On the starting of a representative proceeding, the running of any limitation period applying to the claim of a group member to which the proceeding relates is suspended.
  2. The limitation period does not start running again unless—
  1. the member opts out of the representative proceeding under section 103G; or
  2. the representative proceeding, and any appeal from the proceeding, is decided without finally disposing of the member’s claim.
  1. This section applies despite anything in the Limitation of Actions Act 1974 or any other law or rule of law.

103ZA General power of court to make orders

In any proceeding, including an appeal, conducted under this part, the court may, on its own initiative or on application by a party or group member, make any order the court considers appropriate or necessary to ensure justice is done in the proceeding.”

The CPA and UCPR amendment provisions

  1. [24]
    The CPA and UCPR each contain provisions relevant to the amendment of an originating process and pleadings.
  2. [25]
    Section 16 of the CPA provides as follows:

“16Amendment for new cause of action or party

  1. This section applies to an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding.
  2. The court may order an amendment to be made, or grant leave to a party to make an amendment, even though—
  1. the amendment will include or substitute a cause of action or add a new party; or
  2. the cause of action included or substituted arose after the proceeding was started; or
  3. a relevant period of limitation, current when the proceeding was started, has ended.
  1. Despite subsection (2), the rules of court may limit the circumstances in which amendments may be made.
  2. This section—
  1. applies despite the Limitation of Actions Act 1974; and
  2. does not limit section 103H.”
  1. [26]
    Rule 5 of the UCPR materially provides:

“5Philosophy—overriding obligations of parties and court

  1. The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
  2. Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
  3. In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.”
  1. [27]
    Rules 375 and 376 provide as follows.

“375Power to amend

  1. At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.
  1. The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
  2. If there is misnomer of a party, the court must allow or direct the amendments necessary to correct the misnomer.
  3. This rule is subject to rule 376.

376 Amendment after limitation period

  1. This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.

….

  1. The court may give leave to make an amendment to include a new cause of action only if—
  1. the court considers it appropriate; and
  2. the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.”

The first area of dispute

  1. [28]
    The primary judge was dealing with an application by representative parties to amend their pleading in a representative proceeding. No application was made for an order under s 103ZA. The order granting leave to amend did not reference, or state that it was being made pursuant to s 103ZA.[15] In granting leave to amend, the primary judge reasoned that a representative party could rely upon s 103ZA to “avoid the strictures of r 376(4)”[16] because “by a combination of s 103Z and s 103ZA … [r] 376(4) is not engaged”.[17]
  2. [29]
    The primary judge’s reasoning in relation to the meaning of “claim” and the operation of s 103Z may be outlined as follows. The word “claim” in s 103B and s 103Z was used in a broad sense and was to be contrasted with the use of the phrase “cause of action” in s 103H.[18] The claims of group members referenced “facts, circumstances and legal rights anterior to and independent of the class action”.[19] Those claims could relate to several different causes of action available to different group members.[20] The claims of group members benefitted from the suspension of applicable limitation periods[21] in the sense that “s 103Z(3) provides ... group members with sanctuary from the defence limitations which may be pled against them pursuant to the Limitation of Actions Act 1974 (Qld) with respect to any part of their claim that falls within s 103B(1)”.[22] The suspension meant that the applicable limitation period had not “ended” within the meaning of r 376(1) and r 376(4) did not apply to any application by a group member to amend to add a cause of action.[23] Relevantly, the primary judge said “… the correct analysis of s 103Z is that the group members who have had the time limitation period suspended in respect of any causes of action relating to the claim … may apply to amend a proceeding brought on their behalf to add causes of action that have arisen without having to comply with the requirements of r 376(4)”.[24]
  1. [30]
    In relation to the respondents’ application to amend, the primary judge concluded that, “by the combination of s 103Z and s 103ZA … [r] 376(4) is not engaged”.[25] The reasoning for that conclusion was as follows. Although s 103Z provided a suspension in favour of group members, it did not provide any suspension in favour of representative parties. Absent s 103ZA, a representative party would be subject to “the strictures of r 376(4)”.[26] It was anomalous and unjust to allow group members to litigate upon broader causes of action, involving common issues, than those which might be pursued by a representative party.[27] Section 103ZA is “a supplementary or gap-filling provision intended to allow the court to fairly deal with all issues which might arise in relation to the operation of class action proceedings”.[28] Section 103ZA “allows the representative parties to avoid the strictures of r 376(4) and leave may be granted to make the amendments to include a new cause of action if they relate to the claim”.[29] This last reference to “the claim” did not differentiate between the claim of a group member and the claim of a representative party.
  2. [31]
    The appellant contends that the primary judge erred in finding that s 103Z provided group members “with sanctuary from the defence limitations which may be pled against them pursuant to the Limitations of Actions Act 1974 (Qld) with respect to any part of their claim that falls within s 103B(1)” and permitted group members “to add causes of action that have arisen without having to comply with the requirements of…r 376(4)”.[30] The primary judge is said to have erred:
    1. by failing to find that the claims in the proposed pleading to which the appellant objected on the basis that limitation periods had expired, were not claims “‘to which the proceeding relates’ for the purposes of s 103Z”;[31]
    2. in finding that s 103ZA allowed representative parties to “avoid the strictures of … r 376(4)” and permitted the inclusion of new causes of action for which limitation periods had expired.[32]
  3. [32]
    The appellant submitted that s 103Z(1) only applied to claims which are “the subject of” the representative proceeding.[33] The “claim” was said to be constituted by the causes of action and relief sought in the commenced proceeding, as reflected in the filed claim and pleading.[34] The suspension of limitation periods could only be sensibly understood as applicable to causes of action that “comprise the proceeding”.[35] Several textual considerations were said to support that construction. In particular, s 103Z(1) applied “[o]n the starting of a representative proceeding”, to “the claim of a group member”, being a person on whose behalf the representative proceeding “has been started”.[36] The claim of the group member was not just any claim but one “to which the proceeding relates”. Hence, there was a required relationship between the claim and the commenced representative proceeding. In contrast, s 103B(1) was not concerned with the representative proceeding as started but with the conditions which must exist before a representative proceeding could be started.
  1. [33]
    The appellant sought to support its construction by reference to contextual matters. The CPA included s 16, which recognised that the UCPR might limit the circumstances in which an amendment might be allowed when a relevant period of limitation, current when the proceeding started, had ended. Rule 376 UCPR was such a limiting rule. Nothing in s 103Z, and Part 13A more generally, displaced the operation of r 376 in representative proceedings. Rather, s 103Z(1) was directed to a procedural issue which arises because group members are not parties to a representative proceeding. The appellant described s 103Z as a procedural provision “designed to avoid the administrative inconvenience of requiring all group members to become parties to representative proceedings”.[37]
  2. [34]
    The respondents submitted that the words “claim” or “claims” had a settled meaning in the context of class action litigation.[38] That meaning was said to embrace “the facts or circumstances that on different legal frameworks can give rise to a right to bring a proceeding”.[39] Adopting that settled meaning of “claim”, the respondents described their “essential proposition” as being that “the limitation period is suspended in respect of the various causes of action that might arise from those anterior factors and circumstances of the class member”.[40] Hence, when s 103Z spoke in terms of a claim to which the representative proceeding “relates”, it contemplated that “the proceeding arises from a set of related facts and circumstances” and s 103Z ensured that “limitations are then suspended in respect of all of the…causes of action that might have arisen from those anterior circumstances”.[41]
  3. [35]
    By their notice of contention, the respondents contended that the primary judge should have held that, on its proper construction, s 103Z had the effect of “suspending the running of any limitation period applying to the claims of [the respondents] to which th[e] proceeding relates (in addition to suspending the running of any such limitation period in respect of group members)”. That construction was said to be consistent with the text, context and purpose of Part 13A and avoided “obvious absurdity and procedural bifurcation”.[42]  The suspension of limitation periods applicable to the claims of the respondents to which the proceeding relates, meant that, by operation of r 376(1), r 376(4) was not engaged on the application.[43]
  1. [36]
    If their argument the subject of the notice of contention failed, the respondents submitted that there would then be a clear “gap” in Part 13A in relation to the operation of time bars on representative plaintiffs, that “makes no sense, serves no purpose, and operates in a manner contrary to the apparent objectives of the class action regime”.[44] In such circumstances, the respondents submitted that s 103ZA was “available to fill the legislative gap”.[45]

Consideration of the first area of dispute

  1. [37]
    Before turning to the relevant statutory language as contained in Part 13A of the CPA, it is convenient to set out some matters of historical context.
  2. [38]
    Part 13A was introduced into the CPA by the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld). The explanatory notes to the Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016 note that Part 13A was modelled on substantially similar legislative schemes including Part IVA of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”).[46] Part IVA of the FCA Act contains a representative action procedure developed following the Australian Law Reform Commissioner’s report entitled “Grouped Proceedings in the Federal Court” (“the ALRC report”).
  3. [39]
    The ALRC report referred to then existing representative procedures in Australia which enabled a single plaintiff to bring an action on behalf of numerous persons against a single defendant. In that context, the ALRC report noted that the institution of a representative claim “prevents the limitation period running against a member of the plaintiff group”.[47] The ALRC report included in its Appendix A, a draft Federal Court (Group Proceedings) Bill 1988 (“the ALRC draft bill”) and an explanatory memorandum to the ALRC draft bill. An essential concept enshrined within the ALRC draft bill was that of “group members’ proceedings”. The ALRC draft bill contemplated that a person (“the principal applicant”) might commence a proceeding against a respondent (“the principal proceeding”) but also commence, by the same application, other proceedings (“group members’ proceedings”) each of which would be between another person, a group member and the respondent.[48] A group member would be a party to the proceeding between that group member and the respondent.[49] The ALRC report noted that the principal proceedings and the group members’ proceedings “would be conducted together by the principal applicant…and could be separately conducted for individual issues”.[50] The ALRC report observed that there “would be no difficulties in regard to limitation periods as all proceedings would be commenced together on the same date”.[51] The ALRC report made no recommendation in relation to limitation periods, presumably because no difficulties were foreseen in relation to the operation of limitation periods within the context of the ALRC draft bill.[52]
  1. [40]
    Some three years later, the bill which introduced Part IVA into the FCA Act (“the Part IVA bill”)[53] was different to the ALRC draft bill and did not provide for group members’ proceedings. Rather, the Part IVA bill provided for a representative proceeding to be commenced by a representative plaintiff on behalf of other persons described as group members. In Mobil Oil Australia Pty Ltd v Victoria,[54] the joint judgment[55] observed that “[a] group member is not a plaintiff”, reflecting the fact that it is the representative party, not a group member, who starts the representative proceeding.
  2. [41]
    The reforms in the Part IVA bill were explained as being “of similar effect to those introduced in the Supreme Court of South Australia some years ago” and were said to provide “a more detailed procedure and greater guidance in the use of the new procedure”.[56] The explanatory memorandum to the Part IVA bill described the new procedure as follows:[57]

“2. Under the new procedure a person may bring an action as representing a group of seven or more persons where all have claims against the same person. The claims must give rise to a substantial common issue of law or fact requiring determination and arise out of the same, similar or related circumstances.

  1. The procedural reforms in the Bill confer no new legal rights. They build on the existing centuries old representative action procedure which is already available in the Federal Court and State and Territory Supreme Courts.”
  1. [42]
    Part 13A of the CPA, like Part IVA of the FCA Act, contains procedural mechanisms for the grouping of claims in representative proceedings.[58] In that regard, Part IVA, “‘assumes the investment by another law of the Parliament of [the Federal Court] with jurisdiction to entertain the subject matter of the representative proceeding’ and ‘creates new procedures and gives the court new powers in relation to the particular exercise of that jurisdiction’”.[59]
  2. [43]
    A particular conundrum presented by the grouping of claims in representative proceedings concerns the treatment of limitation periods for group members who are not parties to the representative proceeding. In South Australia, the “Thirty-Sixth Report of the Law Reform Committee relating to Class Actions” had relevantly stated:[60]

“Class actions require some modification of the rules regarding limitation of actions. The ordinary limitation provisions must be made subject to the right of individual members of a class to establish their claims after the common questions have been determined, notwithstanding that the time for instituting proceedings has expired. Some provision must also be made for members of the class who may have delayed their remedy as the result of the class action but who are disappointed in that expectation, as where an order to proceed as a class action is refused or having been granted is subsequently rescinded. We have not included these provisions in our draft bill as the parliamentary counsel will doubtless wish to advise the government as to whether such provisions should be included in the Class Actions Bill or in the statutes relating to limitation of actions.”[61]

  1. [44]
    Notwithstanding the recommendations of the Law Reform Committee, the South Australian legislature does not appear to have made any provision for suspension, or other special treatment, of limitation periods in the context of class actions. The Part IVA bill did include a specific provision (s 33ZE) addressed to the suspension of limitation periods. The explanatory memorandum to the Part IVA bill provided the following explanation of that provision:[62]

“Division 6 — Miscellaneous

New section 33ZE: Suspension of limitation periods

49. This section provides for the suspension of the limitation period that applies to the claim of a group member on the commencement of a representative proceeding. The suspension is lifted if the member opts out or the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member’s claim. The provision is designed to remove any need for a group member to commence an individual proceeding to protect himself or herself from expiry of the relevant limitation period in the event that the representative action is dismissed on a procedural basis without judgment being given on the merits.”

  1. [45]
    Turning then from those matters of background, there is no real dispute about the principles relevant to the resolution of the construction questions encompassed by the first area of dispute.
  2. [46]
    In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[63] the plurality observed:

“... the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[64] (footnotes omitted)

  1. [47]
    In Baini v The Queen,[65] the plurality,[66] with reference to earlier authority,[67] confirmed that “… ‘[t]he fundamental point is that close attention must be paid to the language’ of the relevant provision because ‘[t]here is no substitute for giving attention to the precise terms’ in which that provision is expressed”.
  2. [48]
    As Alcan makes clear, to ascertain the meaning of the text it is permissible to consider the context of the statutory provision, which will include the general purpose and policy of the provision and the mischief to which it is addressed. What has been described as the “modern approach to statutory interpretation”, countenances reference to extrinsic material such as explanatory memorandum and the reports of law reform bodies so as to ascertain the mischief which a statute was intended to remedy.[68] It is permissible to have regard to context, without disregarding the importance of beginning and ending with the statutory language. In Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation,[69] Allsop CJ observed:

“To begin and end with the words of the statute does not reflect a call to narrow textualism; it is the recognition that, ultimately, it is the words used by Parliament which frame the question of meaning, and which will provide the answer to that question of meaning. Context, however, is indispensable, whether as an explicit or implicit consideration.”

  1. [49]
    The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions.   See  Certain  Lloyd’s  Underwriters  Subscribing  to  Contract No IH00AAQS v Cross.[70] The intended reach of a legislative provision is to be discerned from the words of the provision and not by making a priori assumption about its purpose. See Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd.[71]
  2. [50]
    Recently, in ENT19 v Minister for Home Affairs,[72] Gordon, Edelman, Steward and Gleeson JJ made these observations:

“The context of the words, consideration of the consequences of adopting a provision’s literal meaning, the purpose of the statute and principles of construction may lead a court to adopt a construction that departs from the literal meaning of the words of a provision (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [78]). One such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [70]). As expressed by Gageler J in SAS Trustee Corporation v Miles, “statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means” (SAS Trustee Corporation v Miles (2018) 265 CLR 137, [41] (footnotes omitted)). Where conflict appears to arise in construing an Act, “the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”, and this “will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’” (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [70], quoting Institute of Patent Agents v Lockwood [1894] AC 347, 360). Ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [78]. See also Zheng v Cai (2009) 239 CLR 446, [28]; Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, [76]).

  1. [51]
    In discerning the meaning of the expression, “the claim of a group member to which the proceeding relates” in s 103Z(1), and giving a coherent operation to s 103Z(1) and Part 13A as a whole, it is important to have regard to matters of context. A relevant contextual consideration is that Part 13A is modelled on, and contains materially similar provisions to those contained in, Part IVA of the FCA Act.[73] In Wong v Silkfield Pty Ltd,[74] the High Court outlined the correct approach to the construction of Part IVA of the FCA Act, and in particular s 33C, (the equivalent provision being s 103B of the CPA) as follows:

“Like other provisions conferring jurisdiction upon or granting powers to a court, Pt IVA is not to be read by making implications or imposing limitations not found in the words used; this is so even if the evident purpose of the statute is to displace generally understood procedures.

In particular, the scope of s 33C is not confined by matters not required by its terms or context; however, the terms must be construed and the context considered.” (footnotes omitted)

  1. [52]
    On this appeal, the materially operative provision, s 103Z(1) of the CPA (s 33ZE being the equivalent provision of Part IVA), provides that on the starting of a representative proceeding, “the running of any limitation period applying to the claim of a group member to which the proceeding relates is suspended”. This language directs attention to the meaning of the word “claim” but as it appears in the broader expression, “the claim of a group member to which the proceeding relates”.
  2. [53]
    Some immediate observations can be made about the statutory language. The word “claim” is not defined. When regard is had to Part 13A as a whole, the words “a claim” or “claims” are used separately from the expression “a cause of action”.[75] Section 103T(3) notably speaks in terms of “a cause of action on which a claim in the representative proceeding is based”. The term, “a claim” is not merely referencing a remedy but rather is something which gives rise to substantial issues of law or fact.[76] Hence, the “claims made” in a representative proceeding are distinguished from the “relief sought” in that proceeding.[77] Finally, the language of s 103Z(1) suggests that it was within the contemplation of the legislature that a limitation period could have application to a claim.
  3. [54]
    The term “claims” initially appears in s 103B of the CPA. The equivalent provision in Part IVA of the FCA Act, s 33C, has been described by the High Court as containing “threshold requirements”,[78] pivotal to the operation of Part IVA,[79] “concerned with the commencement, not subsequent conduct, of litigation using the procedures provided in Pt IVA”.[80] Section 33C has been broadly construed[81] as providing a “wide gateway for the commencement of representative proceedings”.[82]
  4. [55]
    In BHP Group Ltd v Impiombato,[83] after noting that all group members “must have ‘claims’ under s 33C of the FCA Act”, the plurality[84] described such claims in the following way:[85]

“… ‘claims’ to which s 33C refers have an existence prior to and separately from the commencement of the class action and encompass the facts and circumstances which are said to give rise to the action and the legal rights that are asserted as the basis for the action.” (footnotes omitted).

  1. [56]
    That description referenced the joint judgment of Murphy and Colvin JJ in Dyczynski v Gibson,[86] which emphasised that the criteria under s 33C(1) must be satisfied at the commencement of a class action.[87] Murphy and Colvin JJ went on to observe:[88]

“The word ‘claims’ in s 33C is a reference to the existence of facts, circumstances and legal rights antecedent to, and in that sense separate from, the class action.  … Thus, to say that a class member has a ‘claim’ is not to say that the person has a right or entitlement to relief; but rather that there exists facts, circumstances and legal rights anterior to and independent of the class action, which may ground a right or entitlement to relief when that person’s claim is ultimately heard and determined by the Court.” (emphasis in original).

  1. [57]
    Given its central importance, perhaps not unsurprisingly, the notion of a “claim” has been recognised as “a fundamental concept in Part IVA proceedings”.[89] Whilst the essential meaning of the notion is encapsulated by the plurality’s succinct statement in Impiombato, some of the earlier decisions of first instance and appellate courts provide further insight into the breadth of the notion, and the limitations on its meaning which are to be eschewed.
  2. [58]
    In Dillon v RBS Group (Australia) Pty Ltd,[90] Lee J explained the concept of “a claim” for the purposes of s 33C as follows:

“It is critical to understand that a ‘claim’ is not the cause of action pleaded: King v GIO Australia Holdings Ltd (2000) 100 FCR 209 at [23]-[24] and at [34]-[35] per Moore J. It is a term to be given a wide meaning (Allphones Retail Pty Ltd v Weimann [2009] FCAFC 135 at [80] per Tracey and McKerracher JJ) and need not be based on the same conduct and may arise out of quite disparate transactions. The breadth of the concept was explained by Lindgren J in Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 84 FCR 512 at 523:

‘As to the meaning of “claims” in s 33C(1)(a), certain matters are tolerably clear.

First, the claims must be claims recognised by the law.

Second, s 33C(2)(a)(i) shows… that the “claims” to which s 33C(1)(a) refers are not confined to claims to relief as of right.

Third, whatever the word “claims” in the provision denotes, they have an existence independent of, and antecedent to, the commencement of the proceeding, since it is only if seven or more  persons have claims  against  the  same  person  that a proceeding under Part IVA may be commenced by one or more of them. Perhaps this signifies that it is not a sufficient condition of the existence of a claim that a claim has been “made”, “asserted” or “threatened”.

Fourth, for obvious reasons, s 33C(1)(a) does not speak of a “right” or “entitlement” to relief — a matter which cannot be known until a final hearing.

Fifth, it is not required that the persons who have the claims be aware that they have them, let alone that they have asserted them.’” (emphasis in original).

  1. [59]
    In Webster v Murray Goulburn Co-Operative Co Ltd (No 2),[91] Beach J, after accepting Lee J’s analysis in Dillon, went on to observe:

“First, the concept of ‘claim’ as used in s 33C has a wide meaning and is broader and different to the concept of a cause of action. Second, the claim of one person does not need to be based upon the same conduct as the claim of another person and, moreover, may arise out of a separate and different transaction, as long as the threshold elements of s 33C(1)(b) and (c) are satisfied. Third, the fact that the plaintiff’s individual case may ultimately fail does not mean that the plaintiff does not have a claim per se in terms of satisfying the threshold elements at this point. Fourth, a claim of a member say of sub-group A and a claim of a member say of sub-group B can both be together undifferentiated ‘claims’ within the statutory term as used in s 33C(1); the very idea of sub-groups entails that they are part of a broader set i.e. a group having and making claims through the representative party. And if one appreciates that proposition, then the real focus must be on the conditions in s 33C(1)(b) and (c).”

  1. [60]
    To engage s 33C(1), the claims must be of seven or more persons,[92] give rise to “a substantial common issue of law or fact”[93] and be “in respect of, or arise out of, the same, similar or related circumstances”.[94] In Bray v F Hoffman-La Roche Ltd,[95] Finkelstein J considered the meaning of “claims” in the context of these requirements and relevantly said:

“The better view, in my opinion, is that the word means, in this present context, the facts which give rise to the action as well as to the legal basis of the action. That is, s 33C is concerned to establish that the action be sufficiently collective in nature so as to warrant it being brought as a representative or class action. For an action to be ‘collective in nature’ I mean that it involves claims which are closely connected either by reference to the underlying facts (inevitably there will be differences) or to the underlying legal principles (where there might also be differences) that are raised by the facts. This approach appears to be mandated both by the language of s 33C(1) as well as its context.”

  1. [61]
    Finkelstein J’s statement was accepted by the Full Court of the Federal Court in Cash Converters International Ltd v Gray.[96]
  2. [62]
    Finally, it should be noted that in Wong v Silkfield Pty Ltd,[97] the High Court, made clear that a “substantial” common issue of law or fact “does not indicate that which is ‘large’ or ‘of special significance’ or would ‘have a major impact on the … litigation’ but, rather, is directed to issues which are ‘real or of substance’”.
  3. [63]
    Apart from s 103B of the CPA, the other important “gateway” provision is s 103F, which has its equivalent in s 33H of Part IVA.[98] Section 103F requires “three connecting  limbs”[99]  be  endorsed  on  the  originating  process  commencing a representative proceeding or a document filed in support of that process. The connecting limbs are a description or identification of the group members, specification of the nature of the claims made on behalf of the group members and the relief claimed and specification of the questions of law or fact common to the claims of the group members. These requirements have been described as “not only the minimum requirements but also the outer limit of the connection between the group members”.[100]
  4. [64]
    Some representative proceedings may not necessarily proceed by way of pleadings.[101] Most will, and where they do, the role of a pleading in a representative proceeding is to demonstrate that “the s 33C ‘gateway’ has been passed through by specifying the matters required by s 33H”.[102] It has been considered sufficient compliance with s 33H that an application, or a document filed in support of an application, such as a pleading or affidavit, “demonstrates compliance with s 33C by describing and specifying those matters mandated by s 33H”.[103]
  5. [65]
    In Dillon v RBS Group Australia Pty Ltd,[104] Lee J relevantly noted:

“Given that an applicant may know nothing about the precise details of individual claims of group members (other than they meet the description in s 33C), s 33H does not require that group members’ individual claims be pleaded in any particular way, only that specification is required of ‘the nature of the claims made on behalf of the group members and the relief claimed’. There may be cases where the demands of procedural fairness require descent from a relatively high level of generality, but this will depend on the particular circumstances of the case and, more importantly, the stage it has reached.”

  1. [66]
    There is a principle of statutory construction to the effect that the legislature may be taken to have intended to attach the same meaning to the same words when they are used in a later statute in a similar connection.[105] That principle has application even where the previous statute was made in a different jurisdiction.[106] The foregoing analysis of the authorities, demonstrates that, by the time of the introduction of Part 13A into the CPA,[107] the term “claim” had a settled meaning in the context of the jurisdictional requirements for a representative proceeding brought under Part IVA of the FCA Act, the scheme upon which Part 13A was modelled. The settled meaning of a “claim” references the existence of facts, circumstances and legal rights antecedent to and independent of a representative proceeding which might ground a right or entitlement to relief. The term “claims” as it appears in Part 13A should be afforded that settled meaning.
  1. [67]
    There is no discernible reason why “claim” or “claims” should not have a consistent meaning throughout Part 13A. To acknowledge that consistent meaning reflects an orthodox construction presumption, albeit a presumption described as “of the mildest kind” and one which “readily yields to context”.[108] Here the context favours conferring a consistent meaning.
  2. [68]
    In Dillon v RBS Group (Australia) Pty Ltd,[109] Lee J analysed how the term “a claim” is deployed throughout Part IVA of the FCA Act. In the following detailed analysis, his Honour considered provisions in Part IVA of the FCA Act which are materially similar to those in Part 13A of the CPA:

“Apart from its use in ss 33C and 33H, the notion of a claim is found, relevantly, in a variety of other sections within Part IVA, in particular:

  1. Section 33D,[110] which provides that a representative applicant retains sufficient interest to continue as a representative ‘even though the person ceases to have a claim against the respondent’;
  2. Section 33N,[111] which provides that a proceeding may be ‘declassed’ when it is in the interests of justice to do so because, inter alia, the proceeding ‘will not provide an efficient and effective means of dealing with the claims of group members’ or ‘it is otherwise inappropriate that the claims be pursued by means of a representative proceeding’;
  3. Section 33Q,[112] which provides that if the determination of the common issues ‘will not finally determine the claims of all group members’, the Court may give directions (including establishing sub-groups) in relation to the determination of ‘the remaining issues’;
  1. Section 33S,[113] which provides where ‘an issue cannot properly or conveniently be dealt with’ under sections (s 33Q or s 33R,[114] which deal with directions as to individual issues), the Court may:
  1. if the issue concerns only ‘the claim of a particular member’, give directions about a separate proceeding; or
  2. if the issue is common to ‘the claims of all members of a sub‑group’, give directions relating to the commencement of another representative proceeding ‘in relation to the claims of those members’;
  1. Section 33W,[115] which allows a representative party to settle ‘his or her individual claim’ and thereafter withdraw as representative party;
  2. Section 33X,[116] which requires notice to be given of, inter alia, bringing into Court of money ‘in answer to a cause of action on which a claim in the representative proceeding’ is founded;
  3. Section 33ZA,[117] which provides that if there is a fund for distribution to group members, the Court may provide for the payment by the respondent into the fund of instalments ‘to meet the claims of group members’;
  4. Section 33ZC,[118] which provides:
  5. that appeals can be brought by an applicant as a representative proceeding against a judgment ‘to the extent that it relates to issues common to the claims of group members’ and the same in respect of sub-groups; and
  1. like with s 33H, on an appeal, the notice of appeal ‘in relation to issues that are common to the claims of group members’ must describe or otherwise identify the group members but need not specify the names or number of those members; and
  1. Section 33ZE,[119] which provides that:
  1. ‘the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended’; and
  2. the limitation period does not begin to run again unless either the member opts out or the proceeding and any appeals ‘are determined without finally disposing of the group member’s claim’.”
  1. [69]
    Having conducted that detailed analysis, Lee J relevantly concluded:

“As can be seen by the way in which the notion of a claim is always employed in Part IVA, the key is to identify whether or not the relevant claim of a person has the characteristics identified in s 33C, that is, that it has sufficient commonality in the sense that it is one of seven or more claims of persons which are in respect of, or arise out of, the same, similar or related circumstances and give rise to at least one substantial common legal or factual question. That claim is then the subject of the Part IVA regime until either opt out, settlement approved by the Court, judicial determination at an initial or later ‘group’ hearing (if the orders made at that stage, which are binding on the group member under s 33ZB, are determinative), or by judicial determination at an individual trial after a ‘declassing’.”

  1. [70]
    It is noteworthy that Lee J’s conclusion as to “the way in which the notion of a claim is always employed”, extends to the way in which “claim” is deployed in s 33ZE, the equivalent provision to s 103Z of the CPA.
  2. [71]
    As will be apparent, the notion of a “claim” is inextricably linked with the jurisdictional requirements for a representative proceeding. When the authorities speak of “a claim”, having an existence independent of, and antecedent to, the representative proceeding, that language is directed to the situation prior to commencement of a representative proceeding.[120] That a “claim” exists independently prior to the commencement of a representative proceeding, should not conflate the enquiry as to whether, upon the starting of a representative proceeding, a claim is to be regarded as related to the commenced proceeding.
  3. [72]
    Section 103Z applies “on the starting” of a representative proceeding and is directed to the situation where a representative proceeding has been commenced. The critical language in s 103Z is, “the claim of a group member to which the proceeding relates”. The words “to which the proceeding relates” are important because they indicate that, for a limitation period applying to a claim of a group member to be suspended, there must be some relationship between that claim and the representative proceeding.
  4. [73]
    The claim of a group member to which a representative proceeding relates may extend beyond the “subject matter” or “scope” of a representative proceeding. That is, the claim of a group member may “relate” to a representative proceeding without being wholly within the “subject matter” or “scope” of that proceeding. In Timbercorp Finance Pty Ltd (in liq) v Collins,[121] the High Court considered and explained the “subject matter” or “scope” of a representative proceeding.  In that case, a representative proceeding had been dismissed and a later proceeding commenced against the respondents, who had been group members in the earlier proceeding.[122] Where earlier and later proceedings have been commenced, the “subject matter” of the earlier proceeding is relevant to any consideration of abuse of process and Anshun estoppel principles.[123] In Timbercorp, there was a controversy as to whether abuse of process and Anshun estoppel[124] principles, precluded the respondents from raising certain defences in the later proceeding.
  1. [74]
    In that context, the plurality relevantly said:[125]

“[Sections 33C and 33H] identify the subject matter of a group proceeding as a claim which gives rise to common questions of law or of fact. The plaintiff represents the group members with respect to their interests in that regard and the group members claim through the plaintiff to the extent of that interest. Their relationship is therefore that of privies in interest with respect to that claim.” (footnotes omitted).

  1. [75]
    Having identified the “subject matter” of a representative proceeding in those terms, the plurality noted that group members might have “individual claims” which do not form part of that subject matter. In particular, the plurality observed:[126]

“… other provisions of Pt 4A also make plain that group members may have other, individual, claims which do not form part of the subject matter of the group proceeding. … And in Wong v Silkfield Pty Ltd, this Court held that it was not necessary for a representative proceeding to be likely to resolve wholly, or even to any significant degree, the claims of all group members.

Section 33Q provides that where it appears to the Court that the determination of the questions common to all group members will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining questions and for that purpose may establish sub-groups. Section 33R allows the Court to permit an individual group member to take part in the proceeding for the purpose of determining a question that relates only to the claim of that group member. In this circumstance, however, the group member is liable for the costs associated with the determination of that question, a liability which does not generally arise in the group proceeding itself.

Part 4A creates its own kind of statutory estoppel. Section 33ZB requires that a judgment in a group proceeding identify the group members affected by it and, subject to a provision not presently relevant, provides that that judgment ‘binds all persons who are such group members at the time the judgment is given’. In order to understand that to which the group members are bound, it is necessary to read s 33ZB in the context of Pt 4A as a whole and ss 33C(1) and 33H in particular. By that process it will be seen that group members are bound by the determination of the claims giving rise to the common questions.” (footnotes omitted).

  1. [76]
    In a separate judgment, Gordon J said:[127]

“Section 33C sets out the conditions that must be satisfied before a group proceeding may be commenced. First, there must be seven or more persons who have claims against the same person. Secondly, the claims of all those persons must be ‘in respect of, or arise out of, the same, similar or related circumstances’. And thirdly, those claims must ‘give rise to a substantial common question of law or fact’ (emphasis added). If those conditions are met, then s 33C(1) goes on to provide, importantly, that ‘a proceeding may be commenced by one or more of those persons as representing some or all of them’. Put simply, the effect of those conditions is that the proceeding can only be representative to the extent of the commonality.

…

These conditions in s 33C are central to the scheme set out in Pt 4A. The purpose of commencing a group proceeding is so that a substantial common question of law or fact can be decided for at least seven persons whose claims involve the same, similar or related circumstances. Section 33C expressly recognises that each group member may, as an individual, have different claims against the defendant, but the foundation of the group proceeding is that they all have an interest in the resolution of a substantial common question of law or fact.” (footnotes omitted).

  1. [77]
    In a later part of her Honour’s reasons, Gordon J observed:[128]

“… it must be recalled that a group proceeding may be commenced whether or not the proceeding involves separate acts or omissions of the defendant done or omitted to be done in relation to individual group members. The group proceeding is only representative to the extent of the commonality.

In truth, these matters … go to the heart of the scope of the group proceeding, as defined by reference to s 33C. It may be accepted that the respondents’ claims are in respect of, or arise out of, similar or related circumstances. But as explained above, the Act does not envisage that all of those claims will be resolved by answering the common questions. Rather, s 33C acknowledges that the answers to the common questions might assist in the resolution of other claims of group members in later proceedings.” (footnotes omitted).

  1. [78]
    Her Honour further addressed “individual claims” in the following passage:[129]

“Indeed, Pt 4A expressly contemplates and provides for the individuality of claims within a group proceeding. For example, a group proceeding may be commenced ‘whether or not the relief sought ... is the same for each person represented’ and whether or not the proceeding ‘is concerned with separate contracts or transactions between the defendant and individual group members’, or ‘involves separate acts or omissions of the defendant done or omitted to be done in relation to individual group members’.

…

That the focus of the group proceeding is on answering a common question of law or fact and is representative is reinforced by other provisions in Pt 4A. Section 33D(2) provides that if a person has commenced a proceeding on their own behalf as well as on behalf of other persons who satisfy s 33C(1), that person retains a sufficient interest to continue the proceeding (and bring an appeal from a judgment in that proceeding) ‘even though the person ceases to have a claim against the defendant’. Section 33E provides that the consent of a person to be a group member is not required.

What is required is that the essential elements stipulated in s 33C are satisfied and, if they are, then s 33H(2) of the Act requires that the following three connecting limbs be indorsed on the writ commencing the group proceeding – the description or identification of the group members; the specification of the nature of the claims made on behalf of the group members and the relief claimed; and, finally, the specification of the questions of law or fact common to the claims of the group members. These are not only the minimum requirements but also the outer limit of the connection between the group members.” (footnotes omitted).

  1. [79]
    The “scope” or “subject matter” of a representative proceeding may evolve or change as the proceeding is case managed, particularly if directions are made pursuant to s 103M of the CPA[130] to permit an individual group member or members to appear for the purpose of determining issues relating only to their individual claims. In that sense, representative proceedings are dynamic proceedings, commenced through broad, gateway jurisdictional criteria[131] and, thereafter, managed through flexible, extensive case management powers.[132] The Part 13A regime, like Part IVA of the FCA Act, is to be regarded as a bespoke regime with the evident purpose of displacing generally understood procedures.[133]
  2. [80]
    It is accepted that the case management of a representative proceeding may legitimately involve the identification of questions which go beyond “strictly common questions”, the common issues of law or fact, required by ss 33C and 33H.[134] Hence, in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd,[135] Gillard J recognised that it was “important that the Court conducts group proceeding litigation in a practical manner and ensures that as many questions of law and fact having a degree of commonality are decided”. In making that observation, Gillard J noted that “[o]nce the group proceeding is completed and if an individual claim is to proceed, the individual litigant has the benefit of findings of law or fact to assist him in obtaining relief”.[136]  In Matthews v SPI Electricity Pty Ltd (No 5),[137] Forrest J referred to a practice of permitting individual group members to give evidence at trial as to relevant facts concerning their individual claims with a view to that evidence then enabling the court to make findings and determinations in relation to those other claims.
  1. [81]
    Whilst the “subject matter” or “scope” of a representative proceeding may evolve during case management, it is important to note that s 103Z applies in terms “[o]n the starting of a representative proceeding …”.  At the time of commencement of a representative proceeding “the claim of a group member to which the proceeding relates” must be identifiable or ascertainable. Such a claim will be a claim having the characteristics identified in s 103B(1), that is, a claim which has the required commonality in the sense that it is able to be described as one of seven or more claims of persons which are in respect of, or arise out of, the same, similar or related circumstances and give rise to at least one substantial common legal or factual question. Upon the starting of a representative proceeding, such a claim becomes subject to the Part 13A regime. As Lee J observed in Dillon,[138] such a claim is then “the subject of the [Part 13A] regime until either opt out, settlement approved by the Court, judicial determination at an initial or later ‘group’ hearing … or by judicial determination at an individual trial after a ‘declassing’”.
  2. [82]
    The claims of group members to which the representative proceeding relates may be quite different to the claims of a representative party.[139] That differences may exist reflects the broadly construed, wide “gateway” that is sufficient to establish jurisdiction under Part 13A. However, differences between the claims are not germane to ascertaining the claims to which the representative proceeding relates. Rather, the claims over which the Court has jurisdiction, and the claims to which the representative proceeding relates, are the entirety of the claims of each person which existed separately prior to commencement of the representative proceeding and which satisfy the jurisdictional requirements in s 103B.
  3. [83]
    This point is well illustrated in Dillon, where Lee J posited a hypothetical case involving an infrastructure project conducted by a government described as Project B. An industrial accident on Project B caused wide ranging different types of economic and non-economic loss. The hypothetical representative party had suffered damage to real property and claimed damages in tort. A group member had also suffered damage to real property but also damage of a very different nature, psychological injury. Lee J observed about this scenario:[140]

“Aspects of the person’s claim for damages or statutory compensation may be quite different but that does not mean he or she has more than one claim – rather, there is one claim with different heads of damage or perhaps different causes of action which arise out of the same substratum of facts.

It would, of course, be possible for a representative applicant to commence a proceeding defining the Project B class action by reference to a criterion which restricted the class only to persons who have suffered, say, damage to real property. This does not mean, however, that a representative applicant can unilaterally restrict the nature or ambit of the individual claims of those persons (whose individual claims are the subject to the class action)… [T]he group members are a group of persons (not groups of claims of persons) and although an applicant may only wish to pursue common issues and the applicant’s claim (which may only include one type of loss), this does not mean that when it comes to the determination of individual issues, the whole of the claim of the group member (with different types of loss or possibly additional causes of action) is somehow unable to be advanced by that group member.” (emphasis in original)

  1. [84]
    The appellant’s submission that a “claim” is “constituted by the causes of action and relief sought in the pleading”,[141] should be rejected. A similar submission was rejected by the Victorian Court of Appeal in Uber Australia Pty Ltd v Andrianakis.[142] In that case, the appellant’s counsel submitted that the earlier mentioned statement of Finkelstein J in Bray “should be understood as limiting the concept of ‘claims’ in s 33C(1) to the material facts and legal principles making up the cause of action alleged by the plaintiff in a group proceeding”.[143] In advancing that narrow reading of s 33C(1)(b), the appellant relied upon other provisions within Part IVA of the Victorian Act to submit that the concept of a “claim” was used to refer to “a judicial remedy for relief arising out of the material facts that constitute the cause of action”.[144]
  2. [85]
    In rejecting that submission, the Victorian Court of Appeal reasoned as follows:[145]

“We do not accept that the word ‘claims’ in s 33C(1)(b) should be given so narrow a construction. The terms of Finkelstein J’s statement in Bray are much wider. His Honour described the concept of ‘claims’ in s 33C(1) as being claims that are ‘sufficiently collective in nature’, in the sense that they are:

closely connected either by reference to the underlying facts (inevitably there will be differences) or to the underlying legal principles (where there might also be differences) that are raised by the facts.

This is general language. Finkelstein J did not talk in terms of the material facts necessary to constitute the cause of action alleged by the plaintiff, and expressly stated that close connection may arise by reference to either underlying facts or underlying legal principles. Such an approach to the construction of s 33C(1) is consistent with other judicial interpretation of the concept of ‘claims’ …”

  1. [86]
    The Victorian Court of Appeal went on to conclude, consistently with the authorities to which reference has already been made, that the “claim” of a group member includes the facts which constitute the causes of action of the group member as well as the legal basis for those causes of action.[146]
  2. [87]
    The “claim of a group member to which the proceeding relates” should be interpreted as a claim which satisfies the jurisdictional requirements in s 103B. If the claim of a group member satisfies those jurisdictional requirements, then, to the extent that the group member’s claim gives rise to, or to use the language of s 103T(3) is “based” on, a cause of action or causes of action, the limitation period applicable to any such cause of action is suspended. Properly construed, s 103Z contemplates limitation periods applying to a claim of a group member where the claim gives rise to or forms the basis of a cause of action or causes of action.
  1. [88]
    The aims of Part IVA of the FCA Act have been recognised as including to “improv[e] access to justice and promot[e] efficiency through aggregation of claims”.[147] In Mobil Oil Australia Pty Ltd v Victoria,[148] Gleeson CJ said:

“The legislative policy underlying group proceedings may be open to legitimate difference of opinion, but the primary object is clear enough. It is to avoid multiplicity of actions, and to provide a means by which, where there are many people who have claims against a defendant, those claims may be dealt with, consistently with the requirements of fairness and individual justice, together.”

  1. [89]
    Although the ALRC report had contemplated separate proceedings being commenced in the names of individual group members, under the procedural schemes enshrined in Part IVA and Part 13A, a group member is not a party to the representative proceeding. As a result, a group member is not to be regarded as someone who has “started” or “commenced” a proceeding. Section 103Z of the CPA (and its equivalent Part IVA provision, s 33ZE) suspends the limitation period applicable to any relevant cause of action until such time as an unwilling group member elects to opt out of the representative proceeding or the representative proceeding, and any appeal from the proceeding, is decided without finally disposing of the member’s claim. Section 103Z suspends the limitation period automatically “on the starting of a representative proceeding” without any need for an application or court order.
  2. [90]
    Absent s 103Z, where the claim of a group member to which the representative proceeding relates gave rise to or formed the basis of a cause of action, time would continue to run in respect of that cause of action. The evident purpose of suspending any limitation period applying to the claim of a group member to which the representative proceeding relates is to avoid the need for group members to commence separate individual proceedings merely to protect themselves against the expiry of limitation periods. To require group members to commence separate individual proceedings for that purpose would countenance multiplicity of proceedings and be counterintuitive to the primary object of the legislative policy underpinning Part IVA and Part 13A.
  3. [91]
    By their notice of contention, the respondents contend that the term “group member” as it appears in s 103Z should be interpreted as including the representative party because a representative party starts a representative proceeding on its own behalf as well as on behalf of group members and is properly described as a person on whose behalf a representative proceeding has been started. The respondents pointed to other provisions within Part 13A which used language consistent with the contention that a representative party was a group member.
  4. [92]
    The respondents sought to characterise a representative party as “a group member under s 103B”.[149] That characterisation does not engage with the defined terms in s 103A, “group member”, “representative party” and “representative proceeding”. The term “group member” is defined to mean “a member of a group of persons on whose behalf a representative proceeding has been started”. A “representative party” is  defined  to  mean  “a  person  who  starts  a  representative  proceeding”. A “representative proceeding” is defined to mean “a proceeding started under s 103B”. A proceeding may be started under s 103B if “7 or more persons have claims against the same person” and the claims “are in respect of, or arise out of, the same, similar or related circumstances” and “give rise to a substantial common issue of law or fact”. As to who may start a representative proceeding, s 103B(2) provides that the proceeding “may be started by 1 or more of the persons on behalf of some or all of the other persons”. The “persons” are the “7 or more persons” referred to in s 103B(1).
  1. [93]
    In BHP Group Ltd v Impiombato,[150] Kiefel CJ and Gageler J, referring to the Part IVA equivalent of s 103B, said:

“The concluding words of s 33C(1) make clear that a representative party and group members are all to come from within the common pool of ‘7 or more persons’ who have claims of the nature s 33C(1) describes. Those words equally make clear that any person from within the pool who becomes a group member could have chosen to be a representative party.”

  1. [94]
    It may be accepted that a representative party is someone from within the common pool of seven or more persons who have claims against the same person as contemplated by s 103B(1)(a). However, membership of the common pool is not determinative of whether a person is to be regarded as a representative party or as a group member. The passage just quoted from BHP speaks in terms of “…any person from within the pool who becomes a group member could have chosen to be a representative party”. That language illuminates the operative effect of s 103B is that a member of the common pool chooses to become a representative party by starting a representative proceeding, with the consequence that other members then become group members.
  2. [95]
    The defined terms for the statutory scheme enshrined by Part 13A make a careful distinction between a “representative party” and a “group member”.  Although a representative party and a group member may come from the “7 or more persons” referred to in s 103B(1), the representative party is referred to as the person “who starts a representative proceeding” and the group member is referred to as “a member of a group on whose behalf a representative proceeding has been started”. The reference to “on whose behalf a representative proceeding has been started” should be read with s 103B(2) which speaks in terms of a representative proceeding being started “by 1 or more of the persons on behalf of some or all of the other persons”. The statutory language, when it speaks of a representative proceeding being started “on behalf of persons”, is directed to identifying those persons who are represented by the representative party. The language “on whose behalf” is referencing a situation where one or more persons starts a proceeding on behalf of other persons.
  3. [96]
    The definitions of “group member” and “representative party” are directed to the relationship between members of the common pool of persons at the point in time when the representative proceeding is started. At the start of the representative proceeding, it is possible to ascertain from the common pool of persons described in s 103B(1)(a), who is a representative party (a person who has started the representative proceeding) and who is a group member (a member of the group of persons on whose behalf the representative proceeding has been started). That dichotomy is fundamental to the operation of Part 13A.
  1. [97]
    The respondents identified a number of provisions of Part 13A which, they submitted, as a matter of language, supported the conclusion that a representative party is a group member. Section 103ZB(b) speaks of “… a group member who is not a representative party”. Section 103P(1) contemplates an application to substitute “another group member  as  the  representative  party”.   Section  103Y(3)  provides  that  if a representative party does not start an appeal, “another member of the group” may start an appeal on behalf of the group members.
  2. [98]
    The language of s 103ZB(b) is explicable without having to equate a representative party with a group member. Section 103ZB(b) is concerned with the power of the court to award costs. The provision makes clear that, except in cases involving the determination of the claims of sub-groups or of an individual group member, the court may not order costs against a “group member who is not a representative party”. To understand that expression, it is important to recognise that, after the start of a representative proceeding, the status of persons within the common pool may change. A group member may opt out and cease to be a group member. More relevantly, s 103P(1) and s 103S(3) contemplate that, in differing circumstances, a group member may be substituted as the representative party. Only a representative party is a party to, and has standing to conduct, the representative proceeding. As a general proposition, it is only if the representative party is not able to adequately represent the group members’ interests, or if the representative party has settled that party’s individual claims, that the control of the representative proceeding may pass to a group member. Hence, s 103ZB, in the context of costs, makes it clear that the costs power is generally not to be exercised against a group member, unless the group member has been substituted as the representative party, or been appointed as a sub-group representative party or has been allowed to appear in the representative proceeding to pursue individual claims.
  3. [99]
    Section 103Y(3) does not speak in terms of “another group member” but rather “another member of the group”. That language is able to be, and should be, interpreted as a reference to the “7 or more persons” referred to in s 103B(1)(a).
  4. [100]
    The language of s 103P(1) which speaks of an application to substitute “another group member as the representative party”, assists the respondents’ argument that the term “group member” is apt to include the representative party. The respondents rely upon that language as indicating that a representative party is a group member for the purposes of s 103P(1) and should be given a consistent meaning throughout Part 13A. This particular construction issue really reduces to the court’s consideration of the care exercised by the draftsperson in using the word “another” as it appears in s 103P(1).[151] The language in s 103P(1) does not sit comfortably alongside the defined terms “representative party”, “group member” and “representative proceeding”. The latter definition makes express reference to “a proceeding started under s 103B” and s 103B(2) provides that such a proceeding may be started by one or more of the seven persons “on behalf of some or all of the other persons”. The word “another” as it appears in the phrase “another group member” in s 103P(1) would seem to be an infelicitous choice of words by the drafter. The presumption in favour of consistency does not apply with any force in this particular instance.
  1. [101]
    The respondents also referenced s 103I and s 103B(1). Section 103I (s 33L being its equivalent within Part IVA) provides that if at any stage of a representative proceeding, it appears likely that there are fewer than seven group members, the court has a discretionary power, on conditions considered appropriate, to order the proceeding continue, or not continue, as a representative proceeding. Section 103B(1), like s 33C(1), relevantly permits a representative proceeding to be started if “7 or more persons have claims against the same person”. The respondents submitted that, if the term “group member” did not include the representative party, in the limited situation where the common pool comprised exactly seven persons, s 103B(1) would permit the commencement of a representative proceeding but s 103I would provide a discretionary power for an immediate order that the proceeding not continue as a representative proceeding. It can be accepted that this is a somewhat anomalous outcome in the contemplated situation.
  2. [102]
    The anomalous outcome is explicable by reference to the genesis of s 33L, clause 10 of the ALRC draft bill. Clause 10 addressed a circumstance where if, at any stage, “the Court finds that there are fewer than 7 group members’ proceedings”. The explanatory memorandum to the ALRC draft bill noted that clause 10 “ensures that the goals of efficiency are achieved by providing that, if the Court finds that there are fewer than 7 group members’ proceedings, the Court must decide whether to allow the proceedings to continue or to separate the proceedings and give their conduct to each group member concerned”.[152] That efficiency was to be achieved in the context of the content of ALRC draft bill which, by clause 7(1), contemplated that the principal applicant might commence the principal proceeding against the respondent and also commence group members’ proceedings in which group members would be the applicants.[153]
  3. [103]
    The ALRC Report dealt with the contemplated efficiency as follows:[154]

“Should a minimum number be prescribed?

140. … While the efficiency of the proposed procedure will increase as the potential number in the group increases, grouping could be advantageous even if only small numbers are involved. Establishing a minimum number would promote the efficiency of the procedure and ensure that cases are not grouped where joinder or consolidation is more appropriate. While the choice of any figure in these circumstances is arbitrary, the Commission considers that the grouping procedure should be available so long as there are at least seven group members plus the principal applicant, making eight in all.”

  1. [104]
    It is apparent from the above passage and the language of clauses 7(1) and 10 of the ALRC draft bill, that the arbitrary number for the purpose of the efficiencies contemplated by the ALRC draft bill was “at least seven group members plus the principal applicant”. Whilst the ALRC draft bill contained a provision, clause 10, which was comparable to s 33L, it contained no comparable provision to s 33C(1).
  1. [105]
    Part IVA of the FCA Act now has the jurisdictional provision, s 33C(1), which requires a common pool of seven or more persons to start a representative proceeding and a purely procedural provision, s 33L, which provides that the court has a discretionary power to permit or not permit a properly started proceeding to continue as a representative proceeding if at any stage there are fewer than seven group members. The anomalous outcome postulated by the respondents’ submission, which only arises in circumstances where the common pool comprises precisely seven persons, would appear to be attributable to the draftsperson of Part IVA having adopted clause 10 of the ALRC draft bill despite the ALRC draft bill having contained different provisions and, materially, no equivalent to s 33C(1) of the FCA Act. The anomalous outcome does not provide a cogent basis for equating “representative party” with “group member” throughout Part 13A or for the purposes of s 103Z.
  2. [106]
    There are also important provisions in Part IVA which militate strongly against the contention that a representative party is to be regarded as a group member.
  3. [107]
    A fundamental right recognised in Part IVA is the right of a group member to opt out of the representative proceeding. That right is enshrined by s 103G. The right to opt out may be exercised by the group member giving written notice before a date fixed by the Court.[155] Under s 103T(1) group members are to be given notice of the opt out date. The right to opt out before the date fixed by the Court is unqualified. Section 103S(2) provides that a representative party who has settled the representative party’s individual claim may apply for the leave of the Court to withdraw as a representative party. Notice of that kind of application is also required to be given to a group member under s 103T(1).
  4. [108]
    Were a representative party to be regarded as a group member, absurd consequences would arise in the operation of Part 13A. A representative party who had standing to start a representative proceeding, could start the representative proceeding but then exercise an unqualified right to opt out prior to the opt out date. Part 13A contains no provision for the substitution of a representative party who has opted out. The representative party would have to give notice to itself of the right to opt out and, in different circumstances, would have to give notice to itself that it was applying for leave to withdraw because it had settled its individual claims.
  5. [109]
    The defined terms in s 103A “representative party”, “group member” and “representative proceeding” read with s 103B(2) and the contextual operation of s 103G and s 103T make it sufficiently clear that, throughout Part 13A, there is maintained a clear distinction between a representative party and a group member. The term “group member” as it appears in s 103Z does not include a representative party.
  6. [110]
    That conclusion sits comfortably alongside the specific context in which s 103Z operates. The suspension of limitation periods caused by s 103Z has potentially important consequences for a defendant’s substantive rights.[156] A primary purpose of a limitation period is to protect a defendant from “the injustice of having to face a stale claim”.[157] There is a legitimate need to suspend the running of any limitation period applying to the claim of a group member to which the proceeding relates so as to avoid multiplicity of proceedings. There is no need to suspend any limitation period applying to the individual claims of the representative party because the representative party is a party to the representative proceeding and, by starting the proceeding, can protect itself against the expiry of any limitation periods applicable to its individual claims. The ALRC Report gave no consideration to, and made no mention of, any need to protect a representative party from the expiry of limitation periods pertaining to its individual claims, presumably because the need for such protection simply does not arise. The representative party not only starts the representative proceeding but has standing to conduct and control the content of the representative proceeding.[158] There is no reason to infer a legislative intention to unburden a representative party from operative limitation provisions, or to deny to a defendant to a representative proceeding the benefit of limitation provisions as against the representative party.[159]
  1. [111]
    Section 103ZA provides that the Court may “make any order the court considers appropriate or necessary to ensure justice is done in the proceeding”. The primary judge identified the issue in relation to s 103ZA as being “whether Parliament intended, in framing s 103Z, and s 103ZA that group members could obtain a broader time limitation relief than that which is available to the representative plaintiffs”.[160] The primary judge found that s 103ZA “allows the representative parties to avoid the strictures of r 376(4) and leave may be granted to make the amendments to include a new cause of action if they relate to the claim”.[161] The primary judge later observed that “by the combination of s 103Z and s 103ZA of the Act, [r] 376(4) is not engaged”. Implicit in this reasoning is a conclusion that s 103ZA operates to provide to a representative party the same limitations relief provided to group members by s 103Z, namely relief which applies automatically “on the starting of a representative proceeding”.
  2. [112]
    Section 103ZA confers upon the Court a discretionary power to make an order. The exercise of that power requires consideration of the circumstances of the particular case and, more particularly, what is appropriate or necessary to ensure justice is done in that case.[162] It is noteworthy that at no stage of this proceeding has any order pursuant to s 103ZA been applied for or made, suspending, prospectively or nunc pro tunc, limitation periods applying to the individual claims of the representative parties. The primary judge’s conclusions that “by the combination of s 103Z and s 103ZA, [r] 376(4) is not engaged” and “s 103ZA allows the representative parties to avoid the strictures of r 376(4)” suggest that the primary judge treated s 103ZA as akin to s 103Z, an operative provision with automatic application. Section 103ZA has no such application.
  1. [113]
    In BMW Australia Ltd v Brewster,[163] the plurality described s 33ZF, the Part IVA equivalent of s 103ZA, as a “supplementary” or “gap-filling” provision which “… cannot be understood as ‘a vehicle for rewriting’ Part IVA”.[164] The plurality relevantly observed:[165]

“ … it exalts the role of … 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 … s 33ZF … cannot be given a more expansive construction and a wider scope of operation than the other provisions of the scheme.”

  1. [114]
    In Parkin v Boral Ltd,[166] Murphy and Lee JJ said that the question as to whether the Court has power to make an order under s 33ZF requires consideration of whether “there is a lacuna for the ‘gap-filling’ power in s 33ZF to fill”.
  2. [115]
    The reasoning of the primary judge involves the notion that s 103ZA can do work or achieve a wider scope of operation in respect of relief from the operation of limitation periods than the specific provision of Part 13A which is directed towards providing relief from limitation periods, s 103Z. There is no lacuna or gap to be filled in Part 13A in respect of relief from limitation periods. The legislature has addressed the topic in s 103Z. There was a legitimate need to suspend “the running of any limitation period applying to the claim of a group member to which the proceeding relates” to avoid multiplicity of proceedings. To use s 103ZA as a vehicle for recognising limitations relief in favour of a representative party who, unlike a group member, is a party to and controls the representative proceeding, would involve an impermissible rewriting of Part 13A.
  3. [116]
    There is also the consideration that, for reasons already explained in relation to the specific context in which s 103Z operates, providing limitations relief in favour of a representative party who has started and controls the proceeding, has no regard to ensuring justice in the proceeding from the perspective of the defendant. In Evans v Davantage Group Pty Ltd (No 2),[167] Beach J cautioned that the concept of a “just outcome” is not to be “decontextualised and read up to be looked at from the perspective only of the applicant and group members”. In Brewster,[168] the plurality observed that whilst s 33ZF confers a broad power, “the words of limitation should not be ignored” and referred with approval to McMullin v ICI Australia Operations Pty Ltd, where Wilcox J had said:[169]

“... The criterion ‘justice is done’, involves consideration of the position of all parties. An order preventing unfairness to a particular party may be necessary to ensure justice is done in the proceeding.”

  1. [117]
    The primary judge approached the construction of s 103ZA on the basis that the provision “ought to be interpreted to avoid a bifurcation of determination of procedural issues”.[170] The Reasons variously state that it would be “grossly inconsistent”[171] with the scheme of Part 13A to allow “some plaintiffs (group members) to seek to have determinations of common issues which may result in judgment in their favour … but deny that essential relief involving common issues to the representative plaintiffs”.[172]  The primary judge added that it would be “anomalous to allow the group members to proceed upon causes of action which are broader than the causes of action which are available to the representative plaintiffs”.[173]
  1. [118]
    It must be emphasised that the suspension provided by s 103Z operates in favour of someone who has not started, and who does not control, the representative proceeding. As Bell P observed in Stewart v Uber Technologies Incorporated,[174] the suspension “… is functionally important because, although group members are not strictly parties to group or class action proceedings, their claims are ‘in play’, as it were, and not necessarily to their knowledge or with their approval”. Further, the suspension applies only for so long as the group member does not opt out or until the representative proceeding, and any appeal, is decided without finally disposing of the group member’s claim. It is within the contemplation of Part 13A that the claim of a group member may be quite different to the claim of a representative party and may need to be determined in further proceedings after the conclusion of the representative proceeding. In that sense, the prospect of divergent proceedings is contemplated and countenanced by Part 13A.
  2. [119]
    The primary judge was concerned by an outcome whereby a representative party might be time barred from including a new cause of action into a representative proceeding, but a group member might remain entitled to litigate a similar cause of action. The detriment suffered by the representative party reflects the usual position of a plaintiff who seeks to litigate stale claims. The beneficial position of the group member reflects the legislature’s judgement to protect the position of that person, who has not started and does not control the representative proceeding.[175] Whether the cause of action of a group member in fact benefits from the suspension of an applicable limitation period will depend upon whether the cause of action is properly characterised as a cause of action arising out of or based upon the group member’s claim to which the representative proceeding relates. That issue directs attention back to the jurisdictional elements of s 103B, the circumstances which gave rise to the group member’s claim and the substantial common issues of law or fact discernible from that claim. Whether, and in what capacity, a group member should be allowed to appear in a representative proceeding and pursue individual claims are matters for case management pursuant to ss 103M, 103N, 103O and 103P of the CPA.
  3. [120]
    The primary judge erred in concluding that s 103ZA is a source of power for an order granting a representative party limitations relief of the same kind provided to group members by operation of s 103Z. Rule 376(4) of the UCPR applied to the respondents’ application for leave to amend in relation to each respondents’ claim as a representative party.

The second area of dispute

  1. [121]
    The application of r 376(4) calls for a comparison between the causes of action and material facts contained in the existing pleading and those contained in the proposed pleading. To facilitate the comparison, it is necessary to provide an overview of the essential allegations contained in the existing pleading and the proposed pleading.

Synopsis of the existing pleading

  1. [122]
    An overview of the existing pleading is as follows.
  1. [123]
    In March 2010, the Port’s “Western Basin Master Plan” was published.[176] To meet the objectives of the master plan, the appellant undertook the Gladstone Port Projects which involved two projects, the Port Expansion Project and the Dredging and Disposal Project.[177] The Port Expansion Project involved reclaiming 170 hectares for the Port’s expansion and constructing a bund into which 10 million m3 of dredge sediment could be deposited.[178] The Dredging and Disposal Project involved dredging up to 46 million m3 of sediment and constructing a 235 hectare bunded reclamation area into which some of the dredged material could be deposited.[179] The reclamation areas for the two projects were contiguous and required a single bunded area with capacity to receive and retain approximately 55 million m3 of dredge sediment (that area being referred to in the existing pleading as “the Bund”).[180]
  2. [124]
    The appellant planned and controlled the Gladstone Port Projects and in particular “the construction, commissioning and use of the Bund”.[181] Materially, the appellant was required to:
    1. design and construct the Bund;[182]
    2. monitor the environmental effects of dredging, construction or use of the Bund;[183]
    3. comply with conditions imposed by State and Federal governments in connection with the operation of the Port and the conduct of the Gladstone Port Projects.[184]
  3. [125]
    The Gladstone Ports Projects were undertaken against the background of approvals and legislative requirements. There was a general, overarching requirement to take all reasonable and practicable measures to prevent or minimise environmental harm caused or likely to be caused by the Gladstone Port Projects.[185] There were conditions related to the way in which dredging was to be conducted,[186] the design and construction of the Bund[187] and its operation.[188] The design and construction obligations extended to design, construction materials and construction methodology.[189] A notable obligation was to “ensure that any direct or indirect discharge, including water and anything in water, from the Bund would not cause any environmental harm, adverse impacts on water quality … or sediment build up or erosion of any land including the bed of any receiving waters” (that discharge being referred to in the existing pleading as “Prohibited Discharge”).[190] The concept of “Prohibited Discharge”[191] encompassed “Base Discharge”,[192] being water and sediment, including PASS sediment, [193] escaping under and through the Bund Wall at high flow rates, and “Bund Fill Discharge”,[194] being Base Discharge and dredge spoil.
  1. [126]
    Until June 2010, the Gladstone Port Projects remained in concept design.[195] The appellant engaged an engineering consultant to provide a concept design for the design and construction of the Bund including the Bund’s wall (“the Bund Wall”).[196] The concept design specified a 1,100g/m2 geo-fabric liner to be embedded in the core of the Bund Wall to contain dredge spoil within the Bund.[197] The appellant knew that the capacity of the Bund to contain dredge spoil was dependant on the installation of an adequate geo-fabric liner in or on the Bund Wall.[198] In around June 2010, tenders were called for the design and construction of the Bund, including the Bund Wall.[199] In October 2010, the successful tenderer was announced.[200] From October 2010, the Bund was constructed.[201] Construction was staged between December 2010 and July 2011.[202]
  2. [127]
    From around 1 July 2011:
    1. the Bund as constructed was defective in that it was not deep enough, water and sediment was piping through the Bund Wall, the geotextile was inadequate to filter or seal the Bund, water flows through and under the Bund Wall were eroding sediment and mud flats (“the Bund Defects”);[203] and
    2. the Bund Defects caused or allowed the escape of Base Discharge and caused a decrease in the quality of the water in identified waters (“the Affected Waters”).[204]
  3. [128]
    On or about 21 July 2011, the appellant:
    1. was informed that the Bund was incapable of preventing Base Discharge or Bund Fill Discharge and the only method to rectify the problem was to dismantle part of the Bund Wall and install a geo-fabric liner and/or concrete the face of the Bund Wall;[205] and
    2.  nevertheless, declined to halt construction of the Bund or Bund Wall or direct remediation works to be undertaken.[206]
  4. [129]
    Between 1 July 2011 and 31 March 2012, the appellant knew or ought to have known about the Bund Defects and that they were causing or allowing the escape of Base Discharge into the Affected Waters.[207]
  1. [130]
    On or around 6 September 2011:
    1. the appellant, with knowledge of the Bund Defects and their causal effects, commenced dredging in the Port and disposing of dredge spoil into the Bund (“the Bund Filling Operations”);[208]
    2. the dredge spoil deposited into the Bund together with Base Discharge (“the Bund Fill Discharge”) immediately escaped from the Bund in significant quantities;[209] and
    3. the Bund Wall was incapable of retaining substantial volumes of the dredge sediment deposited within it.
  2. [131]
    The escape of the Bund Fill Discharge was “a result of the Bund Defects”.[210] Subsequent attempts to remediate the Bund failed.[211]
  3. [132]
    There was a reasonably foreseeable risk that any failure by the appellant to take reasonable care “in the dredging, disposal and retention of dredge spoil during the Gladstone Port Projects” would cause or allow Prohibited Discharge and harm water quality, damage the marine ecosystem and cause financial loss to classes of group members (“the Discharge Risk”).[212] Dredging and disposal of dredge spoil material was an inherently dangerous activity.[213] The appellant was able to exercise a high degree of control “so as to avoid or alleviate the Discharge Risk”.[214] The respondents and the group members “could not direct, control, or influence the manner in which [the appellant] managed or used the Bund”[215], could not protect themselves from the Discharge Risk and were highly vulnerable to harm from the manner in which the appellant managed or used the Bund.[216] By reason of the Discharge Risk and the vulnerability of the respondents and group members, “in managing or using the Bund”, the appellants owed a duty to the respondents and group members to take reasonable care to prevent Base Discharge and Bund Fill Discharge from the Bund (“the Duty”).[217]
  4. [133]
    The Discharge Risk was obvious[218] and could be materially reduced if the appellant took reasonable care in dredging and disposing and retaining dredge spoil in 14 identified respects (“the Precautions”).[219] The appellant breached the Duty by reference to circumstances which existed and arose from on or around 1 July 2011.[220] The particulars of breach essentially mirrored, and involved a failure to take, the Precautions. By reason of the appellant’s breaches, there has been Prohibited Discharge, water quality in the Affected Waters decreased leading to a reduction in quality and volume of commercial fish species leading to financial losses.[221]
  1. [134]
    The respondents claim exemplary damages arising out of the appellant having “commenced and continued to allow the construction of the Bund” and in circumstances where, from 6 September 2011, the appellant was aware of the Bund Defects and their causal effects.[222]
  2. [135]
    A claim in public nuisance is advanced by reference to the appellant’s conduct as relied upon in the negligence case.[223]

Synopsis of the proposed pleading

  1. [136]
    The proposed pleading makes extensive amendments to the existing pleading.[224]
  2. [137]
    An overview of the proposed pleading is as follows.
  3. [138]
    “The Projects” is a reference to the Fisherman’s Landing Port Expansion Project (or FLPE Project) and the Dredging and Disposal Project.[225] In about March and April 2010, the appellant prepared a tender concept design for the design and construction of an initially proposed reclamation area which is referred to as “the original reclamation area” or “the pre-modified reclamation area”.[226] Between July 2010 and 22 October 2010, the appellant modified the proposed works by “reshaping and resizing the proposed ‘footprint’ of the original reclamation area” (“the Modified Reclamation Area”).[227]
  4. [139]
    The works undertaken by the appellant included the design and construction of the sequence of bund walls framing and dissecting the Modified Reclamation Area (those walls being referred to in the proposed pleading as “the Bund Walls”). The Bund Walls included outer walls (“the Perimeter Walls”).[228] The area covered and ultimately enclosed by the Bund Walls is then referred to in the proposed pleading as “the Bund”.[229] In late 2010, the successful tenderer, Abigroup, (and its engineering consultant SMEC) completed the final design for the construction of the Bund Walls and the Modified Reclamation Area.[230] The tender concept design had provided for a 1,100g/m2 geotechnical liner to be embedded in the Perimeter Walls.[231] Abigroup proposed savings by placing the geotextile fabric on the surface of the Bund Walls.[232]
  5. [140]
    The Bund was constructed from two directions with the Perimeter Walls being joined or closed at the end of the process.[233] Between May and September 2011, Abigroup installed geotextile on the inside face of the Perimeter Walls.[234] On 21 July 2011, the construction reached the point where the Perimeter Walls joined from different directions and enclosed the lagoon.[235] By early September 2011, construction of the Bund Walls was sufficiently complete to allow the filling of the Bund to commence.[236] On 6 September 2011, the appellant commenced disposing of dredge spoil into the Modified Reclamation Area.[237] From on or around 6 September 2011, Prohibited Discharge was escaping in significant quantities from the Bund at various locations along the Perimeter Walls and, in particular, at the northern section and through an area described as “the Backdoor”.[238] Between October 2011 and May 2012, as a result of signs of excessive Prohibited Discharges through the northern part of the Bund, the appellant built an internal sand wall within the Modified Reclamation Area.[239] From around October 2011, the appellant engaged in other work directed at remediating and sealing the Perimeter Wall.[240]
  1. [141]
    The “Risk of Harm”[241] is defined by reference to three separate and distinct risks namely the “Modification Risk”,[242] the “Mud Wave/Paleochannel Risk”[243] and the “Sealing Risk”.[244] The Risk of Harm arose in relation to “the design, construction or filling of the Bund” and was a risk that any failure by the appellant, or those under its direction and control, to take reasonable care in the design, construction, commissioning, filling, management or remediation of the Bund (referred to in the proposed pleading as “the Bund Works”) would cause one or more of the Modification Risk, the Mud Wave/Paleochannel Risk and the Sealing Risk to eventuate.[245] The appellant in undertaking the Bund Works owed to the group members a duty to take reasonable care, by its officers, servants and agents and as a non-delegable duty, to ensure reasonable care was taken by its contractors to avoid the Risk of Harm (“the Bund Works Duty”).[246]
  2. [142]
    The Modification Risk related to the design of the Modified Reclamation Area and arose “At all material times prior to and during construction of the Bund”.[247] The shape of the Modified Reclamation Area increased the velocity of tidal flows around its northern tip and western edge.[248] In that vicinity, there was an area of mud flats containing contaminants that could be easily disturbed, mobilised and resuspended into the waters (“the Mud Flats”).[249] As the Bund was constructed and the gap between the converging ends of the perimeter walls narrowed in the vicinity of the northern area, hydrostatic loads would place increased pressure on permeable sections of the Bund Walls and lead to discharges from the Bund that would cause environmental harm, impact water quality, cause sediment build up and erosion (“Prohibited Discharges”)[250] in the area of the Mud Flats.[251] Scouring, or erosion of the Mud Flats would increase as a result of the construction of the Bund in accordance with the Modified Reclamation Area.[252]  The disturbance and resuspension of sediment from the Mud Flats “was likely to be materially greater around the Modified Reclamation Area compared to the original reclamation area”.[253]
  1. [143]
    The Mud Wave/Paleochannel Risk related to the design and construction of the Perimeter Walls for the Modified Reclamation Area.[254] The Perimeter Walls were to be constructed on a seabed that contained PASS,[255] and traverse paleochannels.[256] The Bund Wall was to be constructed using a mud wave technique which created risks of adverse environmental marine outcomes, described as shearing, washout erosion and backward erosion piping.[257] The presence of the paleochannels meant that a greater volume of soft sediment was likely to be displaced and further increased the risks of shearing, washout erosion and backward erosion piping.[258]
  2. [144]
    The Sealing Risk related to the design, construction and filling of the Bund.[259] The Perimeter Walls, with the incorporation of geotextile, was meant to contain spoil within, and prevent Prohibited Discharges from, the Modified Reclamation Area.[260] The appellant knew or ought to have known that spoil in the Bund’s lagoon would contain contaminants,[261] the geotextile needed to be of appropriate specification and properly installed[262] and, if one section of the Perimeter Walls was less impermeable than other sections, that section would create a pathway for Prohibited Discharges and contribute to further shearing, washout erosion and backward erosion piping.[263]
  3. [145]
    In relation to the Modification Risk, the appellant breached the Bund Works Duty during the design and construction of the Modified Reclamation Area by failing to take what are described as “General Modification Precautions” and “Specific Modification Precautions” (those breaches being referred to in the proposed pleading as “the Modification Breaches”).[264] In particular, the appellant failed to undertake expert modelling in relation to the potential impacts of the modification to the shape of the reclamation area on water flow patterns and velocities.[265] That modelling should have been undertaken, and provided to regulatory authorities for review, before any construction work was commenced.[266] As a result of the modelling not being undertaken, the Modification Risk was not identified during design and at any time before construction of the Bund.[267] From about mid-2011, as the Perimeter Walls approached closure, the velocity of water flows across the northern and western perimeters of the Bund and across the Mud Flats increased.[268] The increased velocities caused Prohibited Discharges, scouring and erosion.[269] Had the modelling been performed, and provided to regulatory authorities, during design, the Modified Reclamation Area would not have been approved or, alternatively, only approved on conditions which required amendments to its design.[270]
  1. [146]
    In relation to the Mud Wave/Paleochannel Risk, the appellant breached the Bund Works Duty during the design and construction of the Bund by failing to take “General Construction Precautions” and “Specific Mud Wave/Paleochannel Precautions” (those breaches being referred to in the proposed pleading as “the Mud Wave/Paleochannel Breaches”).[271] In particular, the appellant failed to ensure that the design of the Perimeter Wall using the mud wave technique minimised the volume of any mud wave expected to be created during construction, increased the stability of the seabed mud under the Perimeter Wall and mitigated the effects of turbidity.[272] The appellant approved designs for the Perimeter Wall that were inappropriate.[273] But for those breaches, the Bund Walls, or alternatively sections of the Bund Walls constructed after April 2011, would have been constructed using a different geotextile material and different construction techniques.[274] The Mud Wave/Paleochannel Breaches led to Prohibited Discharges from the lagoon escaping under and through the Perimeter Walls.[275]
  2. [147]
    In relation to the Sealing Risk, the appellant breached the Bund Works Duty during design and construction by failing to take the General Construction Precautions and Specific Sealing Precautions (those breaches being referred to in the proposed pleading as “the Sealing Breaches”).[276] The tender did not provide a document referred to as a “Functional Performance Specification” for the geotextile or refer to requirements set out in reports of the Coordinator-General dated May 2010 and July 2010 for environmental impact statements for the Project.[277] The appellant did not undertake any or any adequate review of the suitability of the proposed design.[278] The design and construction of the Backdoor section of the Perimeter Wall either omitted installation of geotextile at all or installation in accordance with appropriate Australian industry practice.[279] The geotextile liner that was installed during construction was affected by defects that meant it was ineffective to prevent Prohibited Discharges. At all material times from not later than or about 1 July 2011, the Perimeter Wall was unsuitable to prevent Prohibited Discharges from the Bund.[280] But for the breaches, the Prohibited Discharges would not have occurred.[281]
  3. [148]
    The Prohibited Discharges caused by the Modification Breaches, the Mud Wave/Paleochannel Breaches and the Sealing Breaches caused Contamination Effects[282] which led to reductions in quality and volumes of commercial fish species leading to economic losses for the group members.[283]
  1. [149]
    Exemplary damages are claimed.[284] A claim in public nuisance is advanced by reference to the appellant’s conduct as relied upon in the negligence case.[285]
  2. [150]
    The primary judge’s reasoning in relation to the application of r 376(4) may be outlined as follows.
  3. [151]
    In relation to whether new causes of action were included in the proposed pleading, in an early part of the Reasons, the primary judge made a finding that the existing pleading alleged negligence against the appellant, after the design and construction of the Bund, involving alleged failures to cease dredging and bund filling and implement adequate rectification work.[286] With reference to paragraphs 85 and 86 of the existing pleading, the primary judge relevantly said that the particulars of breach “all related to various means by which it is alleged [the appellant] failed to cease dredging and/or bund filling operations and/or implement adequate rectification works after [the Bund] had been designed and constructed”.[287] The primary judge found that, in terms of the existing pleading, “the actions said to constitute the cause of action occurred from on or around 1 July 2011 until August 2012”.[288] In respect of the proposed pleading, the primary judge found that the alleged negligence was in the design, construction and commissioning of the Bund Wall.[289]
  4. [152]
    Later in the Reasons, the primary judge expressed the view, in relation to the existing pleading, that “[s]everal of the particulars of negligence in paragraph 85 do relate to post-design and construction matters”.[290] The primary judge reasoned that paragraphs 85(c) to (i) were “sufficiently broadly pleaded to raise causes of action relating to the design and construction of the [B]und”[291] and noted that the existing pleading made numerous references to the provision of further and better particulars after the completion of interlocutory processes.[292] The primary judge then expressed this conclusion:[293]

“In my view, it is too narrow a reading of the [existing pleading] to reach the conclusion that it brought causes of action relating solely to post-design and construction of the [B]und [W]all. I would conclude that the amendments sought in the [proposed pleading] do not, but for the allegation of non-delegable duty of care, raise a new cause of action. The allegation … raising a non-delegable duty of care, does, in my view, amount to an allegation raising a new cause of action.”

  1. [153]
    The primary judge went on to find that the allegations in the proposed pleading relating to design, construction and commissioning arose out of substantially the same facts as the facts constituting the causes of action in the existing pleading.[294] The primary judge reasoned that “[t]he clearest indicator of this is the same timelines in the [existing pleading] which focus upon the actions of [the appellant] from 14 October 2005 (see paragraph 16(a) of the [existing pleading]) until after the [B]und had been constructed, and the [proposed pleading] which also proposes facts prior to the design of the [B]und commencing on 29 September 2005 (see paragraph 9 of the [proposed pleading])”.[295] Paragraph 16(a) of the existing pleading and paragraph 9 of the proposed pleading each referred to the date on which the project involving the expansion of the Port was declared to be a “significant project” under the State Development and Public Works Organisation Act 1971 (Qld).
  1. [154]
    The respondents sought to characterise the existing pleading as having “always included allegations that the design and construction methodology of the Bund involved a breach of duty by [the appellant]”.[296] The respondents submitted that the proposed pleading merely added “granular detail” which was to be expected in a complex representative proceeding.[297] The appellant submitted that any allegations about the design and construction of the Bund as contained in the existing pleading were by way of background and the operative duty and breaches involved dredging, and the use and management of the Bund after July 2011.[298] According to the appellant, r 376(4)(b) was not satisfied because the existing pleading was “far distant from a pleading of facts that would be material to a case about failure of a duty in design or…construction”.[299]

Consideration of the second area of dispute

  1. [155]
    Rule 376 applies to applications to amend where “a relevant period of limitation, current at the date the proceeding was started, has ended”.[300] Relying upon ss 103Z and 103ZA, the respondents argued that any relevant period of limitation current at the date the proceeding was started had not ended.[301] Apart from that argument, the respondents did not contend that any relevant period of limitation remained current at the time of their application to amend. The respondents’ submissions in relation to ss 103Z and 103ZA having been rejected, it is uncontroversial that the condition in r 376(1) is satisfied and r 376(4) applies to the proposed pleading.[302] As r 376(4) applies, there can be no recourse to the general discretion in s 16 of the CPA.[303]
  2. [156]
    Where the particular application to amend is to “include a new cause of action”, r 376(4) permits such an amendment if “the court considers it appropriate”[304] and the new cause of action “arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment”.[305] The issues raised on this appeal concern whether the proposed pleading includes new causes of action which arise out of substantially the same facts, and it is otherwise appropriate to grant leave to make the amendments.
  1. [157]
    In Borsato v Campbell,[306] McMurdo J provided the following classical explanation of the meaning of “cause of action” as it appears in r 376:

“The term ‘cause of action’ was defined in Cooke v Gill[307] as being ‘every fact which is material to be proved to entitle the plaintiff to succeed’, a definition which many judgments have employed in the context of this rule or its equivalent …. But it has not been applied literally, for otherwise any new fact to be added to a plaintiff’s case would be treated as raising a new cause of action which required leave in the context of a rule such as r 376(4). …. The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff’s case is described.”

  1. [158]
    In Murdoch v Lake,[308] P Lyons J considered that a cause of action “is the combination of facts which gives rise to a right to sue” and, in that regard, referred to Bruce v Odhams Press Ltd[309] where Scott LJ had observed that it is often difficult to distinguish between a material fact and information which it is reasonable to plead in order for the defendant to know the case that has to be met at trial. P Lyons J further observed:[310]

“… if an amendment introduces a new material fact, then a new cause of action is introduced, even if the cause of action is of the same type or category as one pleaded before the amendment. However, if the material facts remain the same, then no new cause of action is introduced.”

  1. [159]
    There is a need to distinguish between the addition of facts which involve a new cause of action and further particulars of an already pleaded cause of action. The distinction between material facts and particulars, although easily stated, is not always easily applied. In a different context, it has been observed that where, in a complex case, a pleader adopts a narrative style of pleading, as distinct from a material fact model of pleading, “the would-be analyst of the pleading is left swimming in a sea of evidentiary facts while trying to identify the material facts for each cause of action”.[311]
  2. [160]
    In Wolfe v State of Queensland, Keane JA spoke in terms of ascertaining “the scope” of an existing pleading on a “fair reading”.[312] When determining whether a new cause of action is sought to be included, a mistaken view as to the scope of the existing pleading is a legal error of the kind recognised in House v The King[313] and may indicate that the discretionary power granted by r 376(4) has miscarried.[314] In Wolfe, Keane JA went on to “test” whether a proposed case included a new cause of action by considering whether, without the amendment, evidence probative of the new allegations would have been objectionable at trial on the grounds of relevance and surprise.[315] That approach is very much directed to the substance of the cause or causes of action contemplated by the existing pleading. The analyses and outcomes in Borsato and in Wolfe are informative.
  1. [161]
    In Borsato, a medical negligence claim, a plaintiff sued surgeons for the negligent performance of surgery. The plaintiff sought to amend to include a case based upon a negligent failure to warn about the inherent risks in the then proposed surgery. The plaintiff submitted that the obligation to warn was part of the same duty which the surgeons owed in the performance of the surgery, being a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty was described, by reference to authority,[316] as a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”.
  2. [162]
    McMurdo J relevantly reasoned as follows:[317]

“The duty to warn of a material risk inherent in a proposed treatment can form part of the content of that more general duty. By expressing the doctor’s duty at the more general level, it may be accepted that the duty upon which the plaintiff relies in this amendment is the same which founds his original case. That however does not determine the present question.

Indisputably, the breach of duty now alleged is quite distinct from that already alleged. In substance it is such a different case from an allegation of negligent performance of the surgery that it cannot be described as some further particularisation of the original claim of breach of duty. It requires the plaintiff to prove a distinct fault, necessarily prior in time to the alleged breach in the course of the surgery, and then to prove the likelihood of some sequence of events in response to a proper warning. I do not accept that it is appropriate for present purposes to characterise the duty in this new case as the same as in the existing case, but on any view the new case involves quite a different breach.

Then there is a difference in the new case which is relevant for the assessment of damages. The existing case, that of negligent surgery, involves a loss measured by the difference between the plaintiff’s actual position and that which he would enjoy, had he had the benefit of the surgery but not the detriment from the severance of the nerve. Under the failure to warn case, his loss would be the difference (if any) between his actual position and the position in which he would be, had he been warned….

Accordingly, the new case involves a different breach with a different consequence. In my conclusion it is not a further particularisation of the cause of action previously pleaded; it is a new cause of action. It cannot be pleaded without a grant of leave under r 376(4).”

  1. [163]
    In Wolfe v State of Queensland,[318] a plaintiff suffered personal injury when he crashed into a tree after losing control of his car when it hit welts on the surface of a highway. The alleged negligence involved, relevantly, a failure by the State to bind, seal or otherwise deal with the welts which had appeared in the highway surface, a failure to carry out any or any adequate maintenance of the surface so as to render the surface reasonably smooth and/or safe for cars travelling at speed and a failure to warn about the uneven surface. The plaintiff sought leave to amend to allege negligent construction of the highway by failing to provide adequate subsurface drainage to prevent the welts forming and a failure to maintain the highway by providing adequate subsurface drainage. The primary judge reasoned that whilst the proposed case about negligent construction involved a new cause of action, the proposed case about failing to maintain by providing adequate subsurface drainage did not involve a new cause of action, essentially because it concerned “maintenance questions”.
  2. [164]
    On appeal, Keane JA emphasised that the facts pleaded prior to the proposed amendment “made no reference to any deficiency in the condition of the sub-surface of the highway which the State was duty-bound to correct in order to discharge its obligation to exercise reasonable care for users of the highway”.[319] Keane JA observed that the determination of whether an act or omission involves a breach of a duty of care depended upon the identification of the particular facts said to reveal the breach of the duty.[320] His Honour then said:[321]

“In the present case, the facts previously pleaded on Mr Wolfe’s behalf concerned acts which it was alleged should have been carried out on the surface of the highway to remove welts which had formed there. They gave no hint that Mr Wolfe was contending for findings of fact to support the proposition that the State had unreasonably omitted to attend to the condition of the sub-surface of the highway and had thereby breached its duty of care to the users of the highway. The amendment sought by Mr Wolfe alleged a quite different breach of duty from the breach previously pleaded. It sought to set up a quite different allegation of breach of the State’s duty of care to users of the highway.

An amendment which sets up a different breach of duty is not within the scope of r 376(4)(b) of the UCPR. … I consider that the cause of action raised by the amendment involving, as one of its elements, an alleged breach of duty on the part of the State in relation to the maintenance of the condition of the sub-surface of the highway, is a new cause of action. A breach of duty involving acts or omissions relating to the condition of the sub-surface of the highway, and the arrangements necessary for its efficient drainage, was not previously part of Mr Wolfe’s case. The factual basis for the alleged breach of duty is substantially different from that previously pleaded; it does not arise out of substantially the same facts as the previously pleaded cause of action.”

  1. [165]
    If an amendment introduces a new cause of action, the next inquiry is whether the new cause of action arises out of substantially the same facts as those already pleaded. The words “substantially the same facts” are not to be read as tantamount to the same facts.[322] Rule 376(4) countenances the introduction of some facts in an amended pleading in support of a new cause of action. In Draney v Barry, Thomas JA observed:[323]

“If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts.”

  1. [166]
    In Thomas v State of Queensland, the Court described “the story” as “a shorthand reference to the matters that the plaintiff has to prove”[324] and the requirement that a new cause of action arise out of substantially the same facts as involving “… a fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended”.[325] Earlier, in Draney, Thomas JA had said that the requirement was not to be viewed as a “straitjacket”.[326] Whether the requirement is satisfied has been said to involve matters of “impression”[327] and “degree”.[328] Perhaps unsurprisingly, in some cases, it can be difficult to decide on which side of the line a particular case falls in relation to the satisfaction of the requirement.[329] Given that such a decision involves a point of practice and procedure, and recognising the “particular caution”[330]and “circumspect[ion]”[331] with which an appeal from such a decision must be approached, this Court will only interfere with such a decision if it is clearly wrong.[332] The demonstration of error where matters of impression and judgment are involved, requires this Court to have formed a sufficiently clear different opinion from that formed by the primary judge.[333]
  2. [167]
    Pianta v BHP Australia Coal Ltd,[334] is a clear example where a new cause of action did not arise out of substantially the same facts. An employee sued his employer for a lower back injury sustained on 24 August 1990 whilst he was driving a front-end loader over rough terrain. It was alleged that the vehicle had inadequate suspension. The employee later sought to amend to allege that, on 22 January 1991, during the course of his employment with the same employer, he had suffered another injury to his lower back whilst attempting to repair a dozer. The Court relevantly observed:[335]

“The facts out of which each of the causes of action arose were those giving rise to the duty of care, those which constituted a breach of that duty and the fact of injury. The submission that the duties of care owed by the respondent to the applicant in each case were the same because the parties were the same and they were, in each case, in the relationship of employer and employee is correct only in a general sense. Relevantly the precise duties owed are correlative to the breaches of those duties and, as the applicant conceded, the facts constituting the breaches of duty in each case were quite different; neither the same nor substantially the same.”

  1. [168]
    A less clear example is provided by Allonnor Pty Ltd v Doran,[336] where a plaintiff was allowed to amend to include a further injury suffered later, but on the same day as an initial injury upon which he had based his claim. McPherson JA relevantly observed:[337]

“It would, in my opinion, be an unduly refined an application of the definition of ‘cause of action’ to regard those two lifting incidents as giving rise to distinct causes of action. To do so it would be necessary to assume that the pain suffered by the plaintiff in those parts of his body was quite unrelated. Common experience in cases of this kind suggests the contrary. Injury to a person’s back or neck commonly imposes stress on other parts of the human body, such as the shoulder, rending it more vulnerable to injury from the effects of the additional stress that is in consequence imposed on that other part. At the present stage of the proceedings, this is a matter of pleading, and therefore of common sense, rather than a matter for precise evidence. On any view of what is pleaded, the plaintiff was, at the end of the day in question, left with physical injury to his body, which resulted from the same cause, which was lifting (whether on one or more than one occasion) in the course of the same employment with the same employer. It is not unreasonable to state it in this way, although admittedly it is to some extent a matter of the level of generality at which the proposition is expressed.”

  1. [169]
    Whilst the inquiry as to whether a new cause of action arises out of substantially the same facts, may involve resort to matters of impression and the application of “a broad brush”,[338] it is an inquiry directed to ascertaining whether the factual basis for the new cause of action is substantially different from that previously pleaded. That is not to convert the inquiry into a straitjacket, but merely recognises that the lawful exercise of the discretion conferred by r 376(4) at least demands an understanding of the substantive facts underpinning the existing and the new causes of action. The broad brush approach must always be premised upon, and referable to, that required understanding.
  2. [170]
    A relevant example where an appellate court corrected an inappropriate application of the broad brush approach is Thomas v State of Queensland.[339] A plaintiff, an injured motorcyclist, sued the State as the authority responsible for a highway on which his accident occurred on 12 June 1993. The plaintiff had travelled around a bend, been confronted with a large quantity of soil on the road surface, lost traction and control and collided with a car travelling in the opposite direction. The plaintiff initially alleged that contemporary construction work had caused the soil to be on the road. The State’s defence alleged that the only contemporary construction work in the region had been in an area far removed from the accident. The plaintiff then changed tact and sought to amend to allege negligence in the initial construction of the highway and use of an inappropriate mixture of bitumen and exposed metal aggregate. The highway had been originally constructed in the 1940’s. There were other amendments. The primary judge allowed the amendments in full.
  1. [171]
    On appeal, the Court found that the amendments included new causes of action. In that regard, the Court relevantly reasoned:[340]

“The essential elements in a claim for damages for negligence are the duty of care, breach of that duty and injury caused by that breach. Here, although only the one injury and incident is alleged, different duties, different breaches and different causes of injury are now alleged. In our view the effect of the amendment is to include new causes of action.”

  1. [172]
    The real issue concerned whether the new causes of action arose out of substantially the same facts. The Court found that the primary judge had “permitted too much in favour of the plaintiff, and used rather too broad a brush”[341] and leave to amend to allege negligence in the initial construction of the highway and use of an inappropriate mixture of bitumen and exposed metal aggregate should have been refused because those allegations did not arise out of substantially the same facts as the original claim.
  2. [173]
    If a new cause of action is sought to be introduced which arises out of substantially the same facts, the amendment should only be allowed if it is appropriate. Whether it is appropriate to grant leave is a potentially broad inquiry, not confined to questions of prejudice.[342] In Menegazzo v Pricewaterhousecoopers (A Firm), Applegarth J observed:[343]

“In determining whether the proposed amendment is appropriate, regard should also be had to the principles discussed in Aon Risk Services Australia Ltd v Australian National University[344] and r 5 of the UCPR. The purpose of the rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. Principles have developed governing amendments for which leave is required.[345] They include the principle that an application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. An application to amend will not be acceded to without adequate explanation or justification, including an explanation for any delay in applying for the amendment. The interests of justice require consideration of the prejudice caused to other parties if the amendment is allowed. This includes considering the strain litigation has on litigants and the distress caused by delay and proposed changes to a case. These may be greater where there is no adequate explanation for why the changes were not made sooner.”

  1. [174]
    The starting point then is to consider the existing pleading. The Duty, in terms, is alleged to have arisen “in managing or using the Bund”.[346] That is an important premise which necessarily contemplates that the Bund existed, had already been designed and constructed. The Discharge Risk, which is alleged to have given rise to the Duty, was a risk that was alleged to arise “in the dredging, disposal and retention of dredge spoil”.[347] To address and avert the Discharge Risk, the Duty, in managing or using the Bund, required the appellant to take the Precautions. The breaches of the Duty involved a failure to take the Precautions. The Precautions and associated breaches, in some instances exemplified by paragraphs 85(c) to (i), were pleaded in broad, general language. Viewed in isolation, and without regard to the Discharge Risk or the Duty, that language may have embraced steps involved in design and construction. However, properly construed that broad language did not “raise causes of action relating to the design and construction”[348] of the Bund. The Precautions, and the breaches which reflected a failure to take the Precautions, fell to be construed, in the pleaded context of the Discharge Risk and the Duty. In that context, the Precautions and breaches of the Duty were directed to acts required to be taken in dredging, disposing of and retaining dredge spoil in the course of managing and using the Bund.
  2. [175]
    This objective reading of the existing pleading is consistent with how the existing pleading was explained to the primary judge by one of its pleaders on 16 June 2020:[349]

“It is the case that [the respondents] do not seek to attribute liability to [the appellant] for the fact of the design of the [B]und or even the particular method of construction of the [B]und [W]all … The focus of [the respondent’s] allegations against [the appellant] is that the company proceeded to fill the [B]und – that is, pump dredge spoil into the area enclosed by the [B]und [W]all – in circumstances where [the appellant] knew or ought reasonably to have known that because of the design and/or the construction, the [B]und [W]all was not going to be effective to prevent what we’ve referred to in the pleading as base discharges … the discharges themselves are principally concerned with what might be called the escape of the dredge spoil once it started to be pumped inside the bund walls from the dredges that were operating out in the harbour. But the thrust of [the respondents’] allegations is that [the appellant] ought not to have proceeded to start to fill the area inside the bund walls in circumstances where it knew or ought to have known that the walls were not going to be effective to prevent either of those types of discharge.”

  1. [176]
    The proposed pleading is concerned with alleged negligence in the design and construction of the Bund. By way of contrast to the existing pleading, the proposed pleading abandons the Duty and the Precautions and is directed to negligence in the design and construction of the Bund. The Bund Works Duty is a duty to avoid the Risk of Harm, which comprises three distinct risks, namely, the Modification Risk, the Mud Wave/Paleochannel Risk and the Sealing Risk. Each of those risks arose during design and construction.
  1. [177]
    In the case of the Modification Risk, the Bund Works Duty is alleged to have been breached by the Modification Breaches involving failures to take the General Modification Precautions and the Specific Modification Precautions. Those breaches rely upon conduct engaged in prior to the construction of the Modified Reclamation Area. In the case of the Mud Wave/Paleochannel Risk, the Bund Works Duty is alleged to have been breached by the Mud Wave/Paleochannel Breaches involving failures to take the General Construction Precautions and the Specific Mud Wave/Paleochannel Precautions. Those breaches rely upon conduct engaged in at the time of approval of the design of the Perimeter Walls. In the case of the Sealing Risk, the Bund Works Duty is alleged to have been breached by the Sealing Breaches involving failures to take the General Construction Precautions and the Specific Sealing precautions. Those breaches rely upon conduct engaged in at the time of tender and prior to any contract with Abigroup. Properly analysed, the proposed pleading sought to include new causes of action because it alleged different duties and different breaches from those alleged in the existing pleading. As Keane JA observed in Wolfe,[350] it was particularly relevant to have regard to the facts relied upon as revealing breaches of the various duties. The existing pleading did not allege any breaches of duty in design or construction and, in the context of any trial conducted by reference to the existing pleading, any evidence led to establish breaches of duty in design and construction would have been objectionable as irrelevant.
  2. [178]
    As to whether the new causes of action arose out of substantially the same facts as the facts constituting the causes of action in the existing pleading, in the existing pleading, the facts giving rise to the alleged breaches of the Duty referenced circumstances existing from on or around 1 July 2011. The proposed pleading relies upon facts giving rise to alleged breaches of the Bund Works Duty by reference to circumstances occurring at a distinctly earlier time, namely during 2010 when the tender was being conducted and the design of the Modified Reclamation Area was being prepared. Not only are different periods of time involved but the nature of the relevant material facts is markedly different. The proposed pleading introduces substantial facts concerned with the circumstances in which the Modified Reclamation Area came to be designed and the original reclamation area came to be discarded, the reasonableness of design work performed at that time, the reasonableness of conduct involved in the approval of designs of the Perimeter Wall and the adequacy of the tender process. The introduction of these facts involved not merely a change of focus with elicitation of additional details but rather a substantially different factual basis for markedly different duties and markedly different breaches.
  3. [179]
    In deciding that the new causes of action arose out of substantially the same facts as the existing causes of action, the primary judge identified “the clearest indicator” as “the same timelines”. However, properly characterised, the matters referred to merely referenced matters of historical background, to which the existing pleading attached no significance in alleging the Duty, the Precautions or breaches of the Duty. That is, to the extent that the existing pleading referenced matters concerning design and construction, which it undoubtedly did, those matters were properly characterised as background matters but were not facts relied upon as revealing a breach of duty. To adopt the language of the Court in Pianta,[351] “the facts constituting the breaches of duty in each case were quite different; neither the same nor substantially the same”.
  1. [180]
    The issue as to whether the new causes of action arose out of substantially the same facts as the existing causes of action involved matters of impression and degree and a point of practice and procedure. The primary judge should be afforded significant deference in relation to discretionary decisions involving practice and procedure in the case management of a very difficult and complex representative proceeding. Even allowing appropriate weight to the primary judge’s conclusions, a “fair reading”[352] involving an analysis of “the scope”[353] of the existing pleading and the proposed pleading, demonstrates error in the conclusion that any new causes of action arose out of substantially the same facts as the facts constituting the causes of action in the existing pleading. The proposed pleading sought to include new causes of action which did not satisfy the requirements of r 376(4)(b). The new causes of action were integral to, and permeated, the proposed pleading. Leave to amend in terms of the proposed pleading should have been refused.
  2. [181]
    Having reached that conclusion, the further question of appropriateness under r 376(4)(a) does not now arise for determination. It may, however, be observed that one of the reasons that the primary judge appears to have concluded that it was appropriate to allow the amendments was because they were made in the context of case management in which it had been expected that the respondents’ case would eventually be based upon numerous and complex expert reports to be obtained prior to the close of pleadings. The primary judge considered that “the final pleading could not effectively be determined until at least the receipt of the vast amount of expert evidence which [the respondents] seek to adduce to prove [their] case”.[354] That consideration, whilst relevant, did not relieve the respondents of their obligations to comply with rule 5 of the UCPR.
  3. [182]
    In any particular case, whether it is appropriate to allow an amendment will require consideration of the purpose of the UCPR as explained by r 5(1). In that regard, in civil litigation, parties have choices as to what claims are made and how they are framed but there will be limits upon their ability to effect changes to their pleading.[355] In Aon Risk Services Australia Ltd v Australian National University,[356] French CJ said by reference to the particular facts of that case:

“The requirement to make amendments for the purpose of deciding ‘the real issue in the proceeding’ does not impose some unqualified duty to permit the late addition of any new claim. The real issues in the proceeding were to be determined in this case by reference to the limited way in which ANU had deliberately chosen to frame its original claim against Aon, and its persistence in that limited approach up to the trial date itself.”

  1. [183]
    In the present case, the proceeding was at a different stage to the proceeding in Aon. However, what were “the real issues” in this proceeding called for some consideration of the manner in which the respondents had conducted the litigation, how the case had been framed and whether there had been a sufficient opportunity to raise a negligence case based upon breaches in design and construction.

The third area of dispute

  1. [184]
    Having reached the conclusion that leave to amend in terms of the proposed pleading should have been refused, it is unnecessary to consider ground seven of the notice of appeal which concerned the proposed pleading, the adequacy of its pleas of causation and of breach of the non-delegable duty of care and whether proper particulars were provided by reference to passages of expert evidence.
  2. [185]
    It remains necessary to consider ground eight which, at least in part, concerns the existing pleading. There are two parts to ground eight. The first part concerns the definitions of “Commercial Fishing Group Members” and “Fish Handling Group Members”. The second part concerns the definition of “Affected Waters”.
  3. [186]
    As to the first part of ground eight, by an order dated 19 July 2018, the primary judge permitted amendments to the definitions of “Commercial Fishing Group Members” and “Fish Handling Group Members” as contained in the current pleading, the amended statement of claim filed 9 May 2018.[357] The amended definitions are contained in the existing pleading.
  4. [187]
    The amendments to the definition of “Commercial Fishing Group Members” may be set out as follows:

Amended statement of claim filed 9 May 2018 at [3(a)(i)]

Existing pleading at [3(a)(i)]

“persons ... who ... generated income from the use of a commercial fishing boat licence… issued pursuant to the Fisheries Regulation 2008 (Qld) ... that authorised the taking of fish...”

“persons ... who ... generated income as the licensee of, or owner of, operator of or profit-sharing skipper or profit-sharing crew-member on a boat fishing under, a commercial fishing boat licence ... issued pursuant to the Fisheries Regulation 2008 (Qld) ... that authorised the taking of fish ...”

  1. [188]
    The amendments to the definition of “Fish Handling Group Members” may be set out as follows:

Amended statement of claim filed 9 May 2018 at [3(b)(i)]

Existing pleading at [3(b)(i)]

“persons … who … conducted business in the processing of Fish caught in the Affected Waters for commercial sale”

“persons … who … conducted business in the processing, (including storage, or transport) of Commercial Species caught in Affected Waters for commercial sale”

  1. [189]
    The 19 July 2018 orders provided that the amendments were to take effect “on a date to be later determined by the Court”.[358] The appellant did not object to the amendments operating prospectively from the date the respondents applied to make the amendments, 29 June 2018,[359] but objected to the amendments being given retrospective effect from the date the representative proceeding was commenced. The primary judge dealt with this issue in the Reasons.
  1. [190]
    In relation to the amendments to the definition of “Commercial Fishing Group Members”, the primary judge reasoned as follows:[360]

“In my view, the proposed amendment does not expand the class of group members, but rather more carefully defines them as each of the licensee, owner, operator, profit-sharing skipper or profit-sharing crew member and does fall within the category of those persons who may have generated income from the use of a commercial fishing boat licence.

In my view, it is appropriate to conclude that the amendments take effect from the date of the commencement of the original proceedings in this action.”

  1. [191]
    In relation to the definition of “Fish Handling Group Members” the primary judge reasoned as follows:[361]

“The effect of the alteration is to define fish handling group members instead of fish processing group members to include not only those persons who conducted businesses in the processing of fish caught from the affected waters, but to include storage and transport as an aspect of the processing of fish caught in the affected waters. It seems to me that it is difficult to envisage a situation where fish can be processed without being stored, at least for some period of time, and also transported, at least some distance.

When reference is had to the objectives of class proceedings litigation, I conclude it is appropriate to allow the amendments and to allow them to have effect from the commencement of the original proceedings.”

  1. [192]
    The respondents submitted that the primary judge was correct in reasoning that the amendments did not expand the class of group members. The appellant’s submission that the amendments did expand the class of group members was to the following effect. As regards the definition of “Commercial Fishing Group Members”, the person who “generates” income “from the use” of a commercial fishing boat licence was said to be the holder of the licence. A crew member “generates” income from their personal skill and labour and not “from the use” of a commercial fishing boat licence. The same could be said of a boat skipper or other operator. It was to be inferred that the respondents amended the definition to capture further individuals or entities. As regards the definition of “Fish Processing Group Members”, the “processing” of fish was said to involve some treatment or transformation of the fish (for example, filleting, cooking or preserving). It was incorrect to describe a person or business that simply stored fish as “processing” that fish. Nor could a courier be described as someone involved in “processing” the items carried.
  2. [193]
    The second part of ground eight is concerned with amendments to the definition of “Affected Waters” contained in the proposed pleading. The existing pleading contains an “Annexure A” which is a “Chart of Affected Waters”.[362] The chart identifies a large area of water extending north from Brisbane to just south of Mackay. Each chart is overlaid with grid references. The “Chart of Affected Waters” annexed to the proposed pleading[363] introduces three new grids into the definition of “Affected Waters”: grids R 27, S 27 and U29.
  1. [194]
    Before the primary judge, the appellant adduced evidence which suggested that five fishing licences had reported catch of one or more commercial species of fish in one of the new grids, but not in the other grids that were within the “Chart of Affected Waters” annexed to the existing pleading. Relying upon that evidence, the appellant submitted that the proposed pleading’s expanded definition of “Affected Waters” introduced at least some additional Group Members. The appellant submitted before the primary judge that the definition of “Affected Waters” should take effect from the date of the amendment rather than from the date of the commencement of the proceeding, to preserve limitations defences to any claims of the new Group Members. Before the primary judge, the respondents submitted to the effect that, as far as they were aware, the amendment to the definition of Affected Waters added no persons to the group.[364]
  2. [195]
    In the Reasons, the primary judge allowed the amendment to the definition of “Affected Waters” and reasoned as follows:[365]

“ … The solution to this dilemma is to allow the amendment to the definition of ‘[A]ffected [W]aters’ but to order that the amendments take effect ‘on a date to be later determined by the court’ so that [the appellant’s] rights in respect of any time limitation defence are preserved until the issue can be determined, and which can only be determined by reference to the rights of [the appellant] and any of the five fishing licences referred to…”

Consideration of the third area of dispute

  1. [196]
    In Gibson v Malaysian Airline System Berhad (No 2),[366] Perram J said “the analogy between the joinder of a new party and the amendment of a class definition may be sufficiently close to suggest that an amended class definition should date from its amendment”. Later, in Ethicon Sarl v Gill,[367] the Full Court of the Federal Court observed:

“It is consistent with the scheme introduced by Pt IVA and, in particular, the need for there to be certainty as to the persons who comprise the class at all times, that the Group Definition Amendment should have been ordered to take effect from the date of amendment. …. Apart from anything else, this prevents the topsy turvy notion that someone retrospectively becomes a group member on commencement, when the Court has thus far proceeded on the basis that they are not group members. As a matter of principle, such an approach would avoid the vice of potentially resuscitating causes of action by persons who have never sought to agitate them. It would be odd that by becoming a group member through the augmentation of a class, substantive rights were conferred on a claimant that had been either extinguished or barred by operation of statute and could not otherwise be advanced by that claimant.

…Given the suspension of limitations caused by the operation of s 33ZE, the question of inclusion (or, as occurred here, unusually, exclusion) of group members has potentially important consequences on substantive rights. As does the date when any such order is to take effect.  Whatever might be the nature of other amendments to a statement of claim, or to relief claimed in an application, attention must be given by parties to the legal consequences of class composition changes. Irrespective as to when other amendments might take effect, the consequences of amendments to group definition can affect the rights of third parties, being the absent group members or proposed group members. Although it would be inappropriate to lay down inflexible rules, the default position is that a s 33K order (or an equivalent order under s 33ZF) has effect from the time the definition is changed, consistent with the requirements of class certainty. It is a sound practice for applicants, in seeking such orders, to deal separately with amendments concerning class composition to assist in avoiding any confusion.”

  1. [197]
    In relation to the first part of ground eight, in circumstances where it was well arguable that the proposed amendments to the definitions of “Commercial Fishing Group Members” and “Fish Handling Group Members” expanded the class of group members, the protection of the substantive rights of the appellant required that the amendments take effect on the date they were made, so as to operate prospectively. The approach of the primary judge was in error because it risked prejudicing the substantive rights of the appellant.
  2. [198]
    In relation to the second part of ground eight, the conclusion has been reached that leave to amend in terms of the proposed pleading should have been refused. It is not entirely clear whether the respondents seek to incorporate the amended definition of “Affected Waters” into the existing pleading or whether the amendment of that definition was sought solely for the purposes of the causes of action sought to be advanced in the proposed pleading. In circumstances where there was evidence before the primary judge that the definition was “expanding a number of group members”, in the interests of addressing the important requirement of class certainty, if the amendment to the definition were to have been allowed, it ought to have been made effective from the date on which it was made.

Orders

  1. [199]
    The orders on the appeal should be:
  1. 1.
    The appeal is allowed.
  1. 2.
    The orders of the primary judge made on 19 April 2023 are set aside and in lieu thereof the following orders are made:
  1. a.
    The amendments to the definitions of Commercial Fishing Group Members and Fish Handling Group Members contained in paragraphs 3(a) and (b) of the Further Amended Statement of Claim filed 25 July 2018, as allowed by the orders dated 19 July 2018, take effect from 29 June 2018;
  1. b.
    The plaintiffs’ application filed 11 November 2022 is dismissed;
  1. c.
    The plaintiffs pay the defendant’s costs of the application filed 11 November 2022.
  1. 3.
    The respondents pay the appellant’s costs of the appeal.

Footnotes

[1] ARB 2, p 586.

[2] ARB 1, p 11 at [5].

[3] ARB 1, p 11 at [6].

[4]ARB 2, p 598.

[5] UCPR, r 375(4).

[6] ARB 1, p 66.

[7] ARB 1, p 22 at [40].

[8] ARB 1, p 19 at [32].

[9] ARB 1, p 23 at [46].

[10] ARB 1, p 23 at [47].

[11] ARB 1, p 23 at [46].

[12] ARB 1, p 40 at [109].

[13] ARB 1, p 26 at [56]-[59].

[14] CPA, s 103K(1)(c).

[15] ARB 1, p 67.

[16] ARB 1, p 23 at [46].

[17] ARB 1, p 23 at [47].

[18] ARB 1, p 18 at [29].

[19] ARB 1, pp 18-19 at [29].

[20] ARB 1, p 19 at [30].

[21] ARB 1, pp 18-19 at [29].

[22] ARB 1, p 19 at [31].

[23] ARB 1, p 22 at [40].

[24] ARB 1, p 22 at [40].

[25] ARB 1, p 23 at [47].

[26]ARB 1, p 22 at [40].

[27] ARB 1, pp 22-23 at [42] and [44].

[28] ARB 1, p 22 at [39].

[29] ARB 1, p 23 at [46].

[30] ARB 1, p 2, Notice of Appeal, Ground 2.

[31] ARB 1, p 3, Notice of Appeal, Ground 3.

[32] ARB 1, p 3, Notice of Appeal, Ground 4.

[33] Appellant’s Amended Outline of Submissions, [46]; Appellant’s Amended Outline in Reply, [13].

[34] Transcript T1-5, lines 40-45.

[35] Transcript T1-5, line 45; Transcript T1-7, lines 01-10; and Transcript T1-7, lines 25-30.

[36] Refer to CPA s 103A, definition of “group member”.

[37] Appellant’s Amended Outline of Submissions, [51].

[38] Transcript T1-41, line 45 to Transcript T1-42, line 02; citing Wong v Silkfield Pty Ltd (1999) 199 CLR 255; BHP Group Ltd v Impiombato (2022) 96 ALJR 956; Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212.

[39] Transcript T1-39, lines 43-45.

[40] Transcript T1-49, lines 21-23.

[41] Transcript T1-49, lines 25-32.

[42]Respondents’ Amended Outline of Submissions, [2(c)].

[43] ARB 1, p 8.

[44] Respondents’ Amended Outline of Submissions, [40].

[45] Ibid.

[46]Explanatory Notes to the Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016, p 3.

[47] ALRC report, p 4 at [6].

[48] ALRC report, Appendix 1, ALRC draft bill, clause 7(1), p 155.

[49] ALRC report, p 46 at [96].

[50] Ibid.

[51] Ibid.

[52] ALRC report, p 45 at [95] and p 46 at [96]; see also Grave, Adams and Betts, Class Actions in Australia (Thomson Reuters, 3rd ed, 2021) p 1258 at [22.20].

[53] Federal Court of Australia Amendment Bill 1991.

[54] (2002) 211 CLR 1, [50].

[55] Gaudron, Gummow and Hayne JJ when considering Part IVA of the Supreme Court of Victoria Act 1986, which is generally along the lines of Part IVA of the FCA Act: Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1, [4] (Gleeson CJ).

[56] Explanatory memorandum to Federal Court of Australia Amendment Bill 1991, p 2.

[57] Ibid, p 2.

[58] BHP Group Ltd v Impiombato (2022) 96 ALJR 956, 969.

[59] Ibid, 960.

[60] Thirty-sixth Report of the Law Reform Committee of South Australia to the Attorney-General relating to Class Actions 1977, p 10.

[61] No such provision was contained in the Supreme Court Rules 1987 (SA) or is now contained in the Uniform Civil Rules 2020 (SA) or the Limitation of Actions Act 1936 (SA).

[62] Explanatory memorandum to Federal Court of Australia Amendment Bill 1991, p 13.

[63] (2009) 239 CLR 27.

[64] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47].

[65] (2012) 246 CLR 469, [14].

[66] French CJ, Hayne, Crennan, Kiefel and Bell JJ.

[67] Fleming v The Queen (1998) 197 CLR 250, [12].

[68] Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) p 88.

[69](2017) 251 FCR 40, [3].

[70]Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 379, [26] (French CJ and Hayne J).

[71] Minister for and Workplace Relations v Gribbles Pty Ltd (2005) 222 CLR 194, [21] (Gleeson CJ, Hayne, Callinan and Heydon JJ).

[72] ENT19 v Minister for Home Affairs (2023) 97 ALJR 509, [87].

[73] In particular:

  1. a)
    s 103A of the CPA and s 33A of the FCA Act contain materially identical definitions of “group member”, “representative party”, “representative proceeding”, “sub-group member” and “sub-group representative party”;
  1. b)
    s 103B of the CPA and s 33C of the FCA Act contain materially identical provisions concerned with commencing or starting a representative proceeding;
  1. c)
    s 103F of the CPA and s 33H of the FCA Act contain materially identical provisions concerned with the content of the originating process or a document filed in support of the originating process for a representative proceeding;
  1. d)
    s 103N of the CPA and s 33R of the FCA Act contain materially identical provisions concerned with the determination of issues that relate only to the claims of an individual group member;
  1. e)
    s 103Z of the CPA and s 33ZE of the FCA Act contain materially identical provisions in relation to the suspension of limitation periods;
  1. f)
    s 103ZA and s 33ZF of the FCA Act contain materially identical provisions concerned with the court’s power to make any orders the court considers appropriate or necessary to ensure that justice is done in the representative proceeding.

[74](1999) 199 CLR 255, 260-261; see also BHP Group Pty Ltd v Impiombato (2022) 96 ALJR 956, 961-62 (Kiefel CJ and Gageler J).

[75] The language of “a claim” or “claims” are used in ss 103B(1)(a) to (c), 103B(3)(a)(iii), 103C(1), 103C(2), 103C(3), 103F(1)(b), 103F(1)(c), 103K(1)(c), 103K(1)(e), 103K(2), 103M(1), 103M(2), 103N(1), 103S(1), 103S(2), 103Y(2)(a) and 103Z(1). The language of “cause of action” is used in s 103H(2)(a) and s 103T(3).

[76] CPA, s 103B(1)(c).

[77] CPA, s 103F(1)(b).

[78] Wong v Silkfield Pty Ltd (1999) 199 CLR 255, [28].

[79] BHP Group Ltd v Impiombato (2022) 96 ALJR 956, [8].

[80] Wong v Silkfield Pty Ltd (1999) 199 CLR 255, [26].

[81] Dyczynski v Gibson (2020) 280 FCR 583, [165]; see also King v GIO Australia Holdings Ltd (2000) 100 FCR 209, [23]-[24] and [34]-[35]; Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317, [113] and [245]; Allphones Retail Pty Ltd v Weimann [2009] FCAFC 135, [80].

[82] Silkfield Pty Ltd v Wong (1998) 90 FCR 152, 156 (Foster J); Dyczynski v Gibson (2020) 280 FCR 583, [167].

[83] (2022) 96 ALJR 956, [55].

[84] Gordon, Edelman and Steward JJ.

[85] BHP Group Ltd v Impiombato (2022) 96 ALJR 956, [55].

[86] (2020) 280 FCR 583.

[87] Ibid, [166].

[88] Ibid, [168].

[89]Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150, [43].

[90] (2017) 252 FCR 150, [43].

[91] [2017] FCA 1260, [77].

[92] FCA Act, s 33C(1)(a).

[93]FCA Act, s 33C(1)(c).

[94] FCA Act, s 33C(1)(b).

[95] (2003) 130 FCR 317, [245].

[96] (2014) 223 FCR 139, [24].

[97](1999) 199 CLR 255, 267.

[98]Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150, [48].

[99] Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212, [107].

[100] Ibid, [107].

[101] Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150, [48].

[102] Ibid, [48].

[103] Ibid, [48].

[104](2017) 252 FCR 150, [60].

[105] The principle is often referred to as the in pari materia principle. See Lennon v Gibson and Howes Ltd [1919] AC 709, 711-12; Harrison v Melhem (2008) 72 NSWLR 380, [131].

[106]Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 10th ed, 2024) p 120 at [3.42]; ICI Australia Ltd v Commissioner of Taxation (Cth) (1972) 127 CLR 529, 541 and 581.

[107] Part 13A was introduced into the CPA by the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld) which commenced on 1 March 2017.

[108] Herzfeld and Prince, Interpretation (Thomson Reuters, 2nd ed, 2020) p 118 citing Clyne v Deputy Commissioner of Taxation (Cth) (1981) 150 CLR 1, 15; Murphy v Farmer (1988) 165 CLR 19, 26-27; and Federal Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) (2015) 257 CLR 544, [27] and [120].

[109] (2017) 252 FCR 150, [52]-[53].

[110]Section 103C is the equivalent provision in the CPA.

[111] Section 103K is the equivalent provision in the CPA.

[112]Section 103M is the equivalent provision in the CPA.

[113] Section 103O is the equivalent provision in the CPA.

[114] Section 103N is the equivalent provision in the CPA.

[115] Section 103S is the equivalent provision in the CPA.

[116] Section 103T is the equivalent provision in the CPA.

[117] Section 103W is the equivalent provision in the CPA.

[118] Section 103Y is the equivalent provision in the CPA.

[119] Section 103Z is the equivalent provision in the CPA.

[120] Dyczynski v Gibson (2020) 280 FCR 583, [166]-[167].

[121] (2016) 259 CLR 212.

[122] The facts in Timbercorp involved the application of s 33C and s 33H of the Supreme Court Act 1986 (Vic) which are materially the same as s 33C and s 33H of the FCA Act. The Victorian provisions speak of a “group proceeding” rather than a “representative proceeding”.

[123] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 602.

[124] The form of estoppel recognised as a matter of principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

[125] Timbercorp Finance Pty Ltd v Collins (2016) 259 CLR 212, [49].

[126] Ibid, [50]-[52].

[127] Ibid, 246-247.

[128] Ibid, 249-250.

[129] Ibid, [104]-[106].

[130] The equivalent provision in the FCA Act is s 33Q.

[131] Dyczynski v Gibson (2020) 280 FCR 583, [165].

[132] Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 164, [66].

[133] Ethicon Sarl v Gill (2018) 264 FCR 394, [49] (the Court).

[134] Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 164, [63].

[135] [2003] VSC 27; (2003) Aust Torts Reports 81-692, [42].

[136] Ibid, [42].

[137] (2012) 35 VR 615, [4].

[138] (2017) 252 FCR 150, [53].

[139] (2017) 252 FCR 150, [44].

[140] Ibid, [57]-[58].

[141] Transcript T1-5, lines 41-42.

[142] (2020) 61 VR 580, [85]-[87].

[143] Ibid, [85].

[144] Ibid, [85].

[145] Ibid, [86]-[87].

[146] Ibid, [79].

[147] Dyczynski v Gibson (2020) 280 FCR 583, [162].

[148] (2002) 211 CLR 1, [12].

[149] Respondents’ Amended Outline of Submissions, [35].

[150] (2022) 96 ALJR 956, [17].

[151] Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529, 540.

[152] ALRC report, p 172.

[153] ALRC report, Appendix 1, ALRC draft bill, clause 7(1), p 155.

[154]ALRC report, pp 60-61 at [140].

[155] CPA, s 103G(2).

[156] Ethicon Sarl v Gill (2018) 264 FCR 394, [52].

[157] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 565 (Kirby J) citing Donovan v Gwentoys Ltd [1990] 1 All ER 1018, 1024 (Lord Griffiths).

[158] Part 13A of the CPA, s 103S expressly contemplates that the representative proceeding may include the individual claims of the representative party.

[159] Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471, 489: where Windeyer J spoke in terms of a defendant’s right to benefit from statute of limitations.

[160] ARB 1, p 19 at [32].

[161] ARB 1, p 23 at [46].

[162] Parkin v Boral Ltd (2022) 291 FCR 116, [143].

[163] (2019) 269 CLR 574, [45]-[47].

[164]Ibid, [68]-[70].

[165] Ibid, [70].

[166] (2022) 291 FCR 116, [143].

[167] [2020] FCA 473, [57].

[168] (2019) 269 CLR 574, [45]-[47].

[169] (1998) 84 FCR 1, 4.

[170] ARB 1, p 23 at [43].

[171] ARB 1, p 22 at [42].

[172] ARB 1, pp 22-23 at [42].

[173] ARB 1, p 23 at [43].

[174] [2020] NSWCA 208, [14].

[175] Stewart v Uber Technologies Incorporated [2020] NSWCA 208, [13] (Bell P).

[176] ARB 1, p 186 at [7].

[177] ARB 1, p 186 at [8] to p 188 at [11].

[178] ARB 1, p 186 at [9].

[179] ARB 1, p 187 at [10].

[180] ARB 1, p 188 at [11].

[181] ARB 1, p 188 at [13(d)] and [13(e)].

[182] ARB 1, p 189 at [14(e)].

[183] ARB 1, p 189 at [14(e)].

[184] ARB 1, p 189 at [14(f)].

[185] ARB 1, p 202 at [41].

[186] ARB 1, p 193 at [18A]; p 196 at [24]; p 197 at [25]; p 197 at [37]; and p 203 at [42].

[187] ARB 1, p 195 at [21]; p 195 at [22]; p 196 at [23]; p 197 at [28]; p 198 at [29]; and p 201 at [38].

[188] ARB 1, p 198 at [30]; p 198 at [31]; p 199 at [32]; p 200 at [34]; and p 201 at [36].

[189] ARB 1, p 195 at [21].

[190] ARB 1, p 196 at [23].

[191] ARB 1, p 196 at [23].

[192] ARB 1, p 212 at [59(g)].

[193] ARB 1, p 197 at [25]: PASS is a reference to Potential Acid Sulfate Soils.

[194] ARB 1, p 215 at [66].

[195] ARB 1, p 209 at [46]-[49].

[196] ARB 1, p 209 at [46].

[197] ARB 1, p 209 at [47].

[198]ARB 1, p 209 at [48].

[199] ARB 1, p 209 at [49].

[200] ARB 1, p 209 at [50].

[201] ARB 1, p 210 at [55].

[202] ARB 1, p 211 at [57].

[203] ARB 1, p 211 at [59].

[204] ARB 1, p 212 at [60].

[205] ARB 1, p 214 at [63].

[206] ARB 1, p 214 at [64].

[207] ARB 1, p 213 at [62].

[208]ARB 1, p 215 at [65].

[209] ARB 1, p 215 at [66].

[210]ARB 1, p 216 at [66A].

[211] ARB 1, p 216 at [67] to p 219 at [81].

[212] ARB 1, p 203 at [42]–[44(a)].

[213] ARB 1, p 204 at [44(b)].

[214] ARB 1, p 204 at [44(c)] to p 205 at [44(e)].

[215] ARB 1, p 205 at [44(f)].

[216] ARB 1, p 205 at [44(g)] and [44(i)].

[217] ARB 1, p 205 at [45].

[218] ARB 1, p 206 at [45A(a)].

[219] ARB 1, p 207 at [45B].

[220] ARB 1, p 223 at [85]; p 211 at [59]; p 212 at [60]; and p 213 at [62].

[221]ARB 1, p 226 at [87] to p 229 at [91].

[222] ARB 1, p 231 at [94].

[223] ARB 1, p 230 at [93A]-[93D].

[224] The existing pleading contains 97 paragraphs, 2 annexures and 58 pages in total. The proposed pleading comprises 160 paragraphs, 5 annexures and totals 181 pages.

[225] ARB 2, p 1174 at [8(c)].

[226] ARB 2, p 1245 at [52].

[227] ARB 2, p 1184 at [11].

[228] ARB 2, p 1187 at [13(e)(A)(b)].

[229] ARB 2, p 1187 at [13(e)(B)].

[230] ARB 2, p 1250 at [60].

[231] ARB 2, p 1247 at [54(d)(ii)].

[232] ARB 2, p 1247 at [56].

[233] ARB 2, p 1249 at [59].

[234] ARB 2, p 1250 at [63].

[235] ARB 2, p 1250 at [65].

[236]ARB 2, p 1251 at [66].

[237]ARB 2, p 1254 at [67(b)].

[238] ARB 2, p 1255 at [68].

[239] ARB 2, p 1258 at [71] and p 1259 at [72].

[240] ARB 2, p 1260 at [73].

[241] ARB 2, p 1237 at [48].

[242] ARB 2, pp 1223-1229 at [45].

[243] ARB 2, pp 1229-1231 at [46].

[244] ARB 2, pp 1232-1236 at [47].

[245] ARB 2, p 1237 at [48].

[246] ARB 2, pp 1244-1245 at [51]

[247] ARB 2, p 1223 at [45].

[248] ARB 2, p 1228 at [45(c)] and [45(d)].

[249] ARB 2, p 1223 at [45(a)].

[250]ARB 2, p 1211 at [27].

[251] ARB 2, p 1227 at [45(b)].

[252] ARB 2, p 1229 at [45(e)].

[253] ARB 2, p 1229 at [45(g)].

[254] ARB 2, p 1229 at [46].

[255] ARB 2, p 1229 at [46(a)].

[256] ARB 2, p 1229 at [46(b)].

[257] ARB 2, p 1230 at [46(c)] and [46(d)].

[258] ARB 2, p 1231 at [46(e)].

[259] ARB 2, p 1232 at [47].

[260] ARB 2, p 1232 at [47(a)] and [47(b)].

[261] ARB 2, p 1233 at [47(c)].

[262] ARB 2, p 1234 at [47(d)].

[263] ARB 2, p 1235 at [47(e)].

[264] ARB 2, p 1266 at [81] and p 1271 at [88].

[265] ARB 2, p 1263 at [76].

[266] ARB 2, p 1263 at [76].

[267] ARB 2, p 1271 at [89].

[268] ARB 2, p 1271 at [89(c)].

[269] ARB 2, p 1271 at [89(d)].

[270] ARB 2, p 1272 at [90(b)].

[271] ARB 2, p 1281 at [101]; p 1283 at [103]; p 1285 at [105]; p 1286 at [107]; and p 1286 at [108].

[272] ARB 2, p 1275 at [94].

[273] ARB 2, p 1280 at [100] and p 1283 at [100(h)].

[274] ARB 2, p 1288 at [111].

[275]ARB 2, p 1287 at [109(d)].

[276] ARB 2, p 1305 at [131] and p 1306 at [132].

[277]ARB 2, p 1294 at [120]; p 1182; and p 1176.

[278] ARB 2, p 1294 at [121(c)].

[279] ARB 2, p 1297 at [124].

[280]ARB 2, p 1306 at [133(d)].

[281] ARB 2, p 1307 at [135]; and p 1307 at [133(e)].

[282]ARB 2, p 1306 at [132] to p 1312 at [139].

[283] ARB 2, p 1312 at [139] to p 1319 at [141].

[284] ARB 2, p 1327 at [153].

[285] ARB 2, p 1325 at [146] to p 1327 at [152].

[286] ARB 1, p 24 at [49].

[287] ARB 1, p 24 at [49].

[288] ARB 1, p 24 at [50].

[289] ARB 1, p 24 at [51].

[290] ARB 1, p 40 at [107].

[291] ARB 1, p 40 at [108].

[292] ARB 1, p 40 at [108].

[293] ARB 1, p 40 at [109].

[294] ARB 1, p 26 at [56].

[295] ARB 1, p 26 at [57].

[296] Respondents’ Amended Outline of Submissions, [55].

[297]Ibid, [60].

[298] Transcript T1-24, lines 5-16.

[299] Transcript T1-29, lines 9-15.

[300] UCPR, r 376(1).

[301] ARB 1, p 20 at [36]; ARB 2, p 612 at [30], p 813 at [5]; Appellant’s Amended Outline of Submissions, [37]; Respondents’ Amended Outline of Submissions, [2(b)], [5] and [7] Transcript T1-21, lines 15-20.

[302] The difficulties which can sometimes arise in relation to the satisfaction of r 376(1) do not arise in this case: Mokrzecki v Popham [2013] QSC 123, [21].

[303] Stimpson v O'Toole [2022] QCA 194, [40].

[304] UCPR, r 376(4)(a).

[305] UCPR, r 376(4)(b).

[306] [2006] QSC 191, [8].

[307] (1873) LR 8 CP 107, 116.

[308] [2014] QCA 216, [17].

[309] [1936] 1 KB 697, 712-713.

[310] [2014] QCA 216, [17].

[311] Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583; [2013] QSC 211, [60].

[312] [2009] 1 Qd R 97; [2008] QCA 113, [10]-[11].

[313] (1936) 55 CLR 499.

[314] Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113, [10].

[315] Ibid, [11]-[12].

[316] Rogers v Whitaker (1992) 175 CLR 479, 483.

[317] Borsato v Campbell [2006] QSC 191, [13]-[16].

[318] [2009] 1 Qd R 97; [2008] QCA 113.

[319] Ibid, [10].

[320] Ibid, [13].

[321] Ibid, [16]-[18].

[322] Draney v Barry [2002] 1 Qd R 145; [1999] QCA 491, [57].

[323] Ibid, [57].

[324]Thomas v State of Queensland [2001] QCA 336, [19].

[325] Ibid, [19].

[326] Draney v Barry [2002] 1 Qd R 145; [1999] QCA 491, [57].

[327] Thomas v State of Queensland [2001] QCA 336, [17].

[328] Menegazzo v Pricewaterhousecoopers (A Firm) [2016] QSC 94, [50].

[329] Thomas v State of Queensland [2001] QCA 336, [18].

[330] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177.

[331] Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455; [2000] QCA 292, [23].

[332] Thomas v State of Queensland [2001] QCA 336, [17].

[333] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, [29].

[334] [1996] 1 Qd R 65; [1995] QCA 53.

[335] Ibid, 68.

[336] [1998] QCA 372.

[337] Ibid, [7].

[338] Thomas v State of Queensland [2001] QCA 336, [19].

[339] [2001] QCA 336.

[340] Ibid, [16].

[341] Ibid, [20].

[342] Menegazzo v Pricewaterhousecoopers (A Firm) [2016] QSC 94, [51].

[343] Ibid, [52]-[53].

[344] (2009) 239 CLR 175.

[345] Monto Coal 2 Pty Ltd v Sanrus Pty Ltd as Trustee of the QC Trust [2014] QCA 267, [74].

[346] ARB 1, p 205 at [45].

[347] ARB 1, p 203 at [42].

[348] ARB 1, p 40 at [108].

[349] ARB 2, p 1737, lines 15-35.

[350] Wolfe v State of Queensland [2009] 1 Qd R 97, [13].

[351] Pianta v BHP Australia Coal Ltd [1996] 1 Qd R 65, 68.

[352] Wolfe v State of Queensland [2009] 1 Qd R 97, [11].

[353] Ibid, [10].

[354] ARB 1, p 12 at [6].

[355] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [112].

[356] Ibid, [31].

[357] ARB 2, p 585 at [1(h)].

[358] Ibid.

[359] ARB 2, p 798 at [307].

[360] ARB 1, p 44 at [127]-[128].

[361] ARB 1, p 45 at [133]-[134].

[362] ARB 1, p 236.

[363] ARB 2, p 1335.

[364] ARB 1, p 43 at [122].

[365] ARB 1, p 43 at [123].

[366] [2017] FCA 701, [33].

[367] (2018) 264 FCR 394, [51]-[52].

Close

Editorial Notes

  • Published Case Name:

    Gladstone Ports Corporation Limited v Murphy Operator Pty Ltd

  • Shortened Case Name:

    Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd

  • MNC:

    [2024] QCA 74

  • Court:

    QCA

  • Judge(s):

    Flanagan JA, Buss AJA, Kelly J

  • Date:

    07 May 2024

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QSC 3520 Mar 2023Representative proceedings relating to the construction and use of a bund at the Port of Gladstone; representative parties' application for leave to amend granted: Crow J.
Appeal Determined (QCA)[2024] QCA 7407 May 2024Appeal allowed; orders below set aside; substituted orders made: Flanagan JA, Buss AJA and Kelly J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529
2 citations
Jump To
Cite 1 - [1987] VR 529
Cite 2 - [1987] VR 529
Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (1981) 148 C.L.R 170
2 citations
Jump To
Cite 1 - (1981) 148 C.L.R 170
Cite 2 - (1981) 148 C.L.R 170
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39
1 citation
Jump To
Cite 1 - [1981] HCA 39
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
1 citation
Jump To
Cite 1 - [2009] HCA 41
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Allonnor Pty Ltd v Doran [1998] QCA 372
2 citations
Jump To
Cite 1 - [1998] QCA 372
Cite 2 - [1998] QCA 372
Allphones Retail Pty Ltd v Weimann [2009] FCAFC 135
3 citations
Jump To
Cite 1 - [2009] FCAFC 135
Cite 2 - [2009] FCAFC 135
Cite 3 - [2009] FCAFC 135
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
3 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Cite 3 - (2009) 239 CLR 175
Aon Risk Services Australia Limited v Australian National University (2009) HCA 27
1 citation
Jump To
Cite 1 - (2009) HCA 27
Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 84 FCR 512
2 citations
Jump To
Cite 1 - (1998) 84 FCR 512
Cite 2 - (1998) 84 FCR 512
Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1998] FCA 819
1 citation
Jump To
Cite 1 - [1998] FCA 819
Australian Iron & Steel Ltd v Hoogland [1962] HCA 13
1 citation
Jump To
Cite 1 - [1962] HCA 13
Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471
2 citations
Jump To
Cite 1 - (1962) 108 CLR 471
Cite 2 - (1962) 108 CLR 471
Baini v The Queen (2012) 246 CLR 469
2 citations
Jump To
Cite 1 - (2012) 246 CLR 469
Cite 2 - (2012) 246 CLR 469
Baini v The Queen [2012] HCA 59
1 citation
Jump To
Cite 1 - [2012] HCA 59
BHP Group Limited v Impiombato [2022] HCA 33
1 citation
Jump To
Cite 1 - [2022] HCA 33
BHP Group Pty Ltd v Impiombato (2022) 96 ALJR 956
8 citations
Jump To
Cite 1 - (2022) 96 ALJR 956
Cite 2 - (2022) 96 ALJR 956
Cite 3 - (2022) 96 ALJR 956
Cite 4 - (2022) 96 ALJR 956
Cite 5 - (2022) 96 ALJR 956
Cite 6 - (2022) 96 ALJR 956
Cite 7 - (2022) 96 ALJR 956
Cite 8 - (2022) 96 ALJR 956
BMW Australia Ltd v Brewster (2019) HCA 45
1 citation
Jump To
Cite 1 - (2019) HCA 45
BMW Australia Ltd v Brewster (2019) 269 CLR 574
3 citations
Jump To
Cite 1 - (2019) 269 CLR 574
Cite 2 - (2019) 269 CLR 574
Cite 3 - (2019) 269 CLR 574
Borsato v Campbell [2006] QSC 191
3 citations
Jump To
Cite 1 - [2006] QSC 191
Cite 2 - [2006] QSC 191
Cite 3 - [2006] QSC 191
Branir Pty Ltd v Owston Nominees [No 2] Pty Ltd [2001] FCA 1833
1 citation
Jump To
Cite 1 - [2001] FCA 1833
Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
2 citations
Jump To
Cite 1 - (2001) 117 FCR 424
Cite 2 - (2001) 117 FCR 424
Bray v F Hoffman-Le Roche Ltd (2003) 130 FCR 317
3 citations
Jump To
Cite 1 - (2003) 130 FCR 317
Cite 2 - (2003) 130 FCR 317
Cite 3 - (2003) 130 FCR 317
Bray v F Hoffmann-La Roche Ltd [2003] FCAFC 153
1 citation
Jump To
Cite 1 - [2003] FCAFC 153
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
1 citation
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Cite 1 - [1996] HCA 25
Bruce v Odhams Press Ltd (1936) 1 KB 697
2 citations
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Cite 1 - (1936) 1 KB 697
Cite 2 - (1936) 1 KB 697
Cash Converters International Ltd v Gray (2014) 223 FCR 139
2 citations
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Cite 1 - (2014) 223 FCR 139
Cite 2 - (2014) 223 FCR 139
Cash Converters International Ltd v Gray [2014] FCAFC 111
1 citation
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Cite 1 - [2014] FCAFC 111
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
1 citation
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Cite 1 - [2012] HCA 56
Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation (2017) 251 FCR 40
2 citations
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Cite 1 - (2017) 251 FCR 40
Cite 2 - (2017) 251 FCR 40
Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation [2017] FCAFC 62
1 citation
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Cite 1 - [2017] FCAFC 62
Clyne v Deputy Commissioner of Taxation [1981] HCA 40
1 citation
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Cite 1 - [1981] HCA 40
Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1
2 citations
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Cite 1 - (1981) 150 CLR 1
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Commissioner of Taxation v Muller and Dunn as Liquidators of Australian Building Systems Pty Ltd [2015] HCA 48
1 citation
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Cite 1 - [2015] HCA 48
Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150
9 citations
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Cite 1 - (2017) 252 FCR 150
Cite 2 - (2017) 252 FCR 150
Cite 3 - (2017) 252 FCR 150
Cite 4 - (2017) 252 FCR 150
Cite 5 - (2017) 252 FCR 150
Cite 6 - (2017) 252 FCR 150
Cite 7 - (2017) 252 FCR 150
Cite 8 - (2017) 252 FCR 150
Cite 9 - (2017) 252 FCR 150
Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896
1 citation
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Cite 1 - [2017] FCA 896
Donovan v Gwentoys Ltd [1990] 1 All ER 1018
2 citations
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Cite 1 - [1990] 1 All ER 1018
Cite 2 - [1990] 1 All ER 1018
Draney v Barry[2002] 1 Qd R 145; [1999] QCA 491
6 citations
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Cite 1 - [1999] QCA 491
Cite 2 - [1999] QCA 491
Cite 3 - [1999] QCA 491
Cite 4 - [2002] 1 Qd R 145
Cite 5 - [2002] 1 Qd R 145
Cite 6 - [2002] 1 Qd R 145
Dyczynski v Gibson (2020) 280 FCR 583
7 citations
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Cite 3 - (2020) 280 FCR 583
Cite 4 - (2020) 280 FCR 583
Cite 5 - (2020) 280 FCR 583
Cite 6 - (2020) 280 FCR 583
Cite 7 - (2020) 280 FCR 583
Dyczynski v Gibson [2020] FCAFC 120
1 citation
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Cite 1 - [2020] FCAFC 120
ENT19 v Minister for Home Affairs (2023) 97 ALJR 509
2 citations
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Cite 1 - (2023) 97 ALJR 509
Cite 2 - (2023) 97 ALJR 509
ENT19 v Minister for Home Affairs [2023] HCA 18
1 citation
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Cite 1 - [2023] HCA 18
Ethicon Sarl v Gill (2018) 264 FCR 394
4 citations
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Cite 1 - (2018) 264 FCR 394
Cite 2 - (2018) 264 FCR 394
Cite 3 - (2018) 264 FCR 394
Cite 4 - (2018) 264 FCR 394
Ethicon Sarl v Gill [2018] FCAFC 137
1 citation
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Cite 1 - [2018] FCAFC 137
Evans v Davantage Group Pty Ltd No 2 [2020] FCA 473
2 citations
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Cite 1 - [2020] FCA 473
Cite 2 - [2020] FCA 473
Federal Commissioner of Taxation v ICI Australia Ltd (1972) 127 CLR 529
2 citations
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Cite 1 - (1972) 127 CLR 529
Cite 2 - (1972) 127 CLR 529
Federal Commissioner of Taxation v Muller (2015) 257 CLR 544
2 citations
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Cite 1 - (2015) 257 CLR 544
Cite 2 - (2015) 257 CLR 544
Fleming v R (1998) 197 CLR 250
2 citations
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Cite 1 - (1998) 197 CLR 250
Cite 2 - (1998) 197 CLR 250
Fleming v The Queen [1998] HCA 68
1 citation
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Cite 1 - [1998] HCA 68
Gibson v Malaysian Airline System Berhad (No 2) [2017] FCA 701
2 citations
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Cite 1 - [2017] FCA 701
Cite 2 - [2017] FCA 701
Harrison v Melhem [2008] NSWCA 67
1 citation
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Cite 1 - [2008] NSWCA 67
Harrison v Melhem (2008) 72 NSWLR 380
2 citations
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Cite 1 - (2008) 72 NSWLR 380
Cite 2 - (2008) 72 NSWLR 380
House v R (1936) HCA 40
1 citation
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Cite 1 - (1936) HCA 40
House v The King (1936) 55 CLR 499
2 citations
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Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
ICI Australia Ltd v Commissioner of Taxation (Cth) [1972] HCA 75
1 citation
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Cite 1 - [1972] HCA 75
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27
2 citations
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Cite 1 - [2003] VSC 27
Cite 2 - [2003] VSC 27
King v GIO Australia Holdings Ltd (2000) 100 FCR 209
3 citations
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Cite 1 - (2000) 100 FCR 209
Cite 2 - (2000) 100 FCR 209
Cite 3 - (2000) 100 FCR 209
Lennon v Gibson and Hones, Ltd. (1919) AC 709
2 citations
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Cite 1 - (1919) AC 709
Cite 2 - (1919) AC 709
Lennon v Gibson and Howes Ltd [1919] UKPCHCA 2
1 citation
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Cite 1 - [1919] UKPCHCA 2
Matthews v SPI Electricity Pty Ltd (No 5) (2012) 35 VR 615
2 citations
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Cite 1 - (2012) 35 VR 615
Cite 2 - (2012) 35 VR 615
Matthews v SPI Electricity Pty Ltd (No 5) [2012] VSC 66
1 citation
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Cite 1 - [2012] VSC 66
McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1
2 citations
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Cite 1 - (1998) 84 FCR 1
Cite 2 - (1998) 84 FCR 1
McMullin v ICI Australia Operations Pty Ltd [1998] FCA 658
1 citation
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Cite 1 - [1998] FCA 658
Menegazzo v Pricewaterhousecoopers (A Firm) [2016] QSC 94
3 citations
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Cite 1 - [2016] QSC 94
Cite 2 - [2016] QSC 94
Cite 3 - [2016] QSC 94
Mills v Scott (1873) , L.R. 8
2 citations
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Cite 1 - (1873) , L.R. 8
Cite 2 - (1873) , L.R. 8
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9
1 citation
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Cite 1 - [2005] HCA 9
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194
2 citations
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Cite 1 - (2005) 222 CLR 194
Cite 2 - (2005) 222 CLR 194
Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211
2 citations
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Cite 1 - [2013] QSC 211
Cite 2 - [2013] QSC 211
Mio Art Pty Ltd v Macequest Pty Ltd & Ors (2013) 95 ACSR 583
2 citations
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Cite 1 - (2013) 95 ACSR 583
Cite 2 - (2013) 95 ACSR 583
Mobil Oil Australia Pty Ltd v State of Victoria [2002] HCA 27
1 citation
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Cite 1 - [2002] HCA 27
Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1
4 citations
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Cite 1 - (2002) 211 CLR 1
Cite 2 - (2002) 211 CLR 1
Cite 3 - (2002) 211 CLR 1
Cite 4 - (2002) 211 CLR 1
Mokrzecki v Popham [2013] QSC 123
2 citations
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Cite 1 - [2013] QSC 123
Cite 2 - [2013] QSC 123
Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267
2 citations
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Cite 1 - [2014] QCA 267
Cite 2 - [2014] QCA 267
Murdoch v Lake [2014] QCA 216
3 citations
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Cite 1 - [2014] QCA 216
Cite 2 - [2014] QCA 216
Cite 3 - [2014] QCA 216
Murphy Operator Pty Ltd v Gladstone Ports Corporation Ltd [No 9] [2023] QSC 35
1 citation
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Cite 1 - [2023] QSC 35
Murphy v Farmer (1988) 165 C.L.R 19
2 citations
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Cite 2 - (1988) 165 C.L.R 19
Murphy v Farmer [1998] HCA 31
1 citation
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Cite 1 - [1998] HCA 31
Parkin v Boral Ltd (2022) 291 FCR 116
3 citations
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Cite 1 - (2022) 291 FCR 116
Cite 2 - (2022) 291 FCR 116
Cite 3 - (2022) 291 FCR 116
Parkin v Boral Ltd [2022] FCAFC 47
1 citation
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Cite 1 - [2022] FCAFC 47
Patent Agents v Lockwood (1894) AC 347
1 citation
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Cite 1 - (1894) AC 347
Pianta v BHP Australia Coal Limited [1995] QCA 53
2 citations
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Cite 1 - [1995] QCA 53
Cite 2 - [1995] QCA 53
Pianta v BHP Australia Coal Ltd [1996] 1 Qd R 65
3 citations
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Cite 1 - [1996] 1 Qd R 65
Cite 2 - [1996] 1 Qd R 65
Cite 3 - [1996] 1 Qd R 65
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
3 citations
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Cite 1 - (1981) 147 CLR 589
Cite 2 - (1981) 147 CLR 589
Cite 3 - (1981) 147 CLR 589
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
1 citation
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Cite 1 - [1981] HCA 45
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
4 citations
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Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Cite 3 - (1998) 194 C.L.R 355
Cite 4 - (1998) 194 C.L.R 355
Ridolfi v Rigato Farms Pty Ltd[2001] 2 Qd R 455; [2000] QCA 292
4 citations
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Cite 1 - [2000] QCA 292
Cite 2 - [2000] QCA 292
Cite 3 - [2001] 2 Qd R 455
Cite 4 - [2001] 2 Qd R 455
Rogers v Whitaker (1992) 175 CLR 479
2 citations
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Cite 1 - (1992) 175 CLR 479
Cite 2 - (1992) 175 CLR 479
Rogers v Whitaker [1992] HCA 58
1 citation
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Cite 1 - [1992] HCA 58
SAS Trustee Corporation v Miles (2018) 265 CLR 137
1 citation
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Cite 1 - (2018) 265 CLR 137
Silkfield Pty Ltd v Wong (1998) 90 FCR 152
2 citations
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Cite 1 - (1998) 90 FCR 152
Cite 2 - (1998) 90 FCR 152
Silkfield Pty Ltd v Wong [1998] FCA 1488
1 citation
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Cite 1 - [1998] FCA 1488
Stewart v Uber Technologies Incorporated [2020] NSWCA 208
3 citations
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Cite 1 - [2020] NSWCA 208
Cite 2 - [2020] NSWCA 208
Cite 3 - [2020] NSWCA 208
Stimpson v O'Toole(2022) 12 QR 27; [2022] QCA 194
3 citations
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Cite 1 - [2022] QCA 194
Cite 2 - [2022] QCA 194
Cite 3 - (2022) 12 QR 27
Stringer v Flehr & Walker (2003) Aust Torts Reports 81
2 citations
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Cite 1 - (2003) Aust Torts Reports 81
Cite 2 - (2003) Aust Torts Reports 81
Thomas v State of Queensland [2001] QCA 336
7 citations
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Cite 1 - [2001] QCA 336
Cite 2 - [2001] QCA 336
Cite 3 - [2001] QCA 336
Cite 4 - [2001] QCA 336
Cite 5 - [2001] QCA 336
Cite 6 - [2001] QCA 336
Cite 7 - [2001] QCA 336
Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212
5 citations
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Cite 1 - (2016) 259 CLR 212
Cite 2 - (2016) 259 CLR 212
Cite 3 - (2016) 259 CLR 212
Cite 4 - (2016) 259 CLR 212
Cite 5 - (2016) 259 CLR 212
Timbercorp Finance Pty Ltd (in liquidation) v Tomes [2016] HCA 44
1 citation
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Cite 1 - [2016] HCA 44
Uber Technologies Inc v Andrianakis (2020) 61 VR 580
2 citations
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Cite 1 - (2020) 61 VR 580
Cite 2 - (2020) 61 VR 580
Uber Technologies Inc v Andrianakis [2020] VSCA 186
1 citation
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Cite 1 - [2020] VSCA 186
Webster (Trustee) v Murray Goulburn Co-op Co. Ltd (No 2) [2017] FCA 1260
2 citations
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Cite 1 - [2017] FCA 1260
Cite 2 - [2017] FCA 1260
Wolfe v State of Queensland[2009] 1 Qd R 97; [2008] QCA 113
10 citations
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Cite 1 - [2008] QCA 113
Cite 2 - [2008] QCA 113
Cite 3 - [2008] QCA 113
Cite 4 - [2008] QCA 113
Cite 5 - [2009] 1 Qd R 97
Cite 6 - [2009] 1 Qd R 97
Cite 7 - [2009] 1 Qd R 97
Cite 8 - [2009] 1 Qd R 97
Cite 9 - [2009] 1 Qd R 97
Cite 10 - [2009] 1 Qd R 97
Wong v Silkfield Pty Ltd (1999) 199 CLR 255
6 citations
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Cite 1 - (1999) 199 CLR 255
Cite 2 - (1999) 199 CLR 255
Cite 3 - (1999) 199 CLR 255
Cite 4 - (1999) 199 CLR 255
Cite 5 - (1999) 199 CLR 255
Cite 6 - (1999) 199 CLR 255
Wong v Silkfield Pty Ltd [1999] HCA 48
1 citation
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Cite 1 - [1999] HCA 48
Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428
1 citation
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Cite 1 - (2019) 266 CLR 428
Zheng v Cai (2009) 239 CLR 446
1 citation
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Cite 1 - (2009) 239 CLR 446

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1

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