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[2024] QCA 74
This appeal concerned whether the respondents should be given leave to amend a statement of claim which would, ordinarily, have added claims that were statute barred. However, the respondents contended that the effect of ss 103Z and 103ZA of the Civil Proceedings Act 2011 was that the limitation period was suspended for representative proceedings. The Court of Appeal accepted that argument in respect of all the group members, but not in respect of the representative party. The Court also held that leave to amend could not be granted under r 376(4) because the new causes of action were not based on the same or substantially the same facts.
Flanagan JA, Buss AJA and Kelly J
7 May 2024
In 2011, a Bund was constructed at the Port of Gladstone. [2]. The appellant is the port operator and the respondents are, in various ways connected with the fishing industry in the Gladstone region. [2]. The respondents allege that the Bund reduced the amount and quality of fish in the region. [2]. The proceedings are representative proceedings and each respondent was a representative party under the Civil Proceedings Act 2011 (“CPA”). [2]. In 2022, the respondents sought leave to amend the statement of claim, and the appellants objected. [4]–[6]. The primary judge granted leave. The issues on the appeal related to whether, first, the CPA had the effect of suspending the relevant limitation period and second, if not, leave should be granted under r 376(4) Uniform Civil Procedure Rules 1999 (“UCPR”).
Suspension of time
Representative proceedings are dealt with under Part 13A of the CPA. Under s 103A, a “group member means a member of a group of persons on whose behalf a representative proceeding has been started”. [15]. A “representative party means a person who starts a representative proceeding”. [15]. Under s 103B, a representative proceeding may be started if 7 or more persons have “claims” against the same person, the claims of all persons are in respect of the same, similar or related circumstances and the claims all give rise to a “substantial common issue of law or fact”. [18]. Part 13A contemplates that not all issues in a representative proceeding will be common to all group members, and it create mechanisms for the specific issues of group members to be resolved. [20].
Under s 103Z, “[o]n 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”. [23]. Section 103ZA gives the court a general power to make “any order the court considers appropriate or necessary to ensure justice is done in the proceeding”. [23].
At first instance and on appeal, the respondents contended that leave to add a claim outside of time was unnecessary because s 103Z suspended the limitation period. The Court of Appeal rejected this argument in three stages.
First, s 103Z refers to the “claim” of a group member. Contrary to submissions made by the appellant, the notion of a “claim” is broader than a “cause of action”. [84]. Given the language of s 103B, the “claim” of group members is antecedent to the bringing of the proceedings. [66]. Necessarily, given the nature of representative proceedings, group members will have causes of action different to the formulation of the causes of action in the statement of claim. [85]–[86]. The “claim of a group member to which the proceeding relates” under s 103Z should be interpretated as a claim which satisfies the jurisdictional requirements of s 103B. [87]. In respect of all those causes, the limitation period will be suspended under s 103Z. [87].
Second, representative parties are not group members. Part 13A is, generally, careful to distinguish between the two. [97]–[105]. In addition, absurd results would follow if a representative party was also a group member. For example, group members have the right to opt out of the proceeding and Part 13A provides no mechanism for replacing a representative party who has opted out. [108]. As such, when s 103Z refers to “group members” that does not include the representative party. [109]. That party does not get the benefit of the suspension. [109]. There is nothing perverse in that outcome because the representative party can protect their own interests by controlling the proceedings. [110]. Group members have no such right.
Third, s 103ZA serves only a gap filling or supplementary role. As such, it cannot be used to provide a wider relief from the operation of limitation periods than the specific provisions of Part 13A. [115].
Accordingly, while limitation period may have been suspended in respect of the claims of group members, it was not suspended for the representative party. As the representative party is the party pursuing their claim and seeking the amendment, leave is needed under r 376(4).
Leave to amend
The Court next considered whether leave to amend should be granted under r 376(4). Under that provision where a party seeks to add a new cause of action after the expiry of a limitation period, leave can only be granted where “the court considers it appropriate” and the new cause of action “arises out of the same facts or substantially the same facts” as the existing causes of action. [156]. Broadly, the existing statement of claim sought relief in negligence and in nuisance. [135]. The breach was said to arise because the appellant, with the knowledge that the Bund was defective, commenced dredging works and began depositing the dredge spoil in the Bund. [130]. Discharge from the Bund caused loss to the respondents. The new pleading alleged breaches that were said to arise from the design and construction of the Bund. [145]–[149], [176].
The Court was satisfied that the newly pleaded breaches amounted to new causes of action. [177]. If the matter had gone to trial on the existing pleading, evidence going to prove the newly pleaded breaches would have been irrelevant. [177]. In addition, the new causes of action did not arise out of the same or substantially the same facts. [178]. The relevant time period was markedly different, and the new pleading introduced substantial facts concerning the design and construction of the Bund which were not relevant in the existing pleading. [178]. As a result, leave could not be granted under r 376(4).
L Inglis