Gladstone Ports Corporation Limited 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)

FILENO/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)

DELIVEREDON: 7 May 2024

DELIVEREDAT: Brisbane

HEARINGDATE: 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:

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;

b.   The plaintiffs’ application filed 11 November 2022 is dismissed;

c.   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
Murdoch v Lake [2014] QCA 216, applied
Murphy 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
Uber 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
Wolfe 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

THE COURT:

Introduction and background to this appeal

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”).
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 orders¹ 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.”
On 1 August 2022, the primary judge made orders to the following effect:⁴
(a)by 14 October 2022, the respondents were to deliver to the appellant a proposed second further amended statement of claim (“the proposed pleading”);
(b)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;
(c)if there were no objections, the respondents would have leave to file and serve the proposed pleading;

ARB 2, p 586.
ARB 1, p 11 at [5].
ARB 1, p 11 at [6].
ARB 2, p 598.

(d)if there were objections, the respondents were to apply for leave to amend in terms of the proposed pleading.

The proposed pleading was delivered by the respondents and objected to by the appellant.
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.
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 376⁵ 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”.
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”.
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

UCPR, r 375(4).
ARB 1, p 66.
ARB 1, p 22 at [40].
ARB 1, p 19 at [32].
ARB 1, p 23 at [46].
ARB 1, p 23 at [47].
ARB 1, p 23 at [46].

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 action¹² 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.

This appeal gives rise to three broad areas of dispute.
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.
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.
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

Part 13A of the CPA provides a regime for representative proceedings in the Supreme Court.
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.
ARB 1, p 40 at [109].
ARB 1, p 26 at [56]-[59].

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.”

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.
Sections 103B and 103F are directed to the commencement of a representative proceeding.
Section 103B provides as follows:

“103B Starting proceeding

(1)A proceeding may be started under this part if—
(a)7 or more persons have claims against the same person; and
(b)the claims of all the persons are in respect of, or arise out of, the same, similar or related circumstances; and
(c)the claims of all the persons give rise to a substantial common issue of law or fact.

(2)The proceeding may be started by 1 or more of the persons on behalf of some or all of the other persons.
(3)The proceeding may be started—
(a)whether or not the relief sought—
(i)       is, or includes, equitable relief; or
(ii)      consists of, or includes, damages; or
(iii)     includes claims for damages that would require individual assessment; or
(iv)     is the same for each person represented; and
(b)whether or not the proceeding—
(i)       is concerned with separate contracts or transactions between the defendant and individual group members; or
(ii)      involves separate acts or omissions of the defendant done or omitted to be done in relation to individual group members.”

Section 103F provides as follows:

“103F Originating 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—
(a)describe or otherwise identify the group members to whom the proceeding relates; and
(b)state the nature of the claims made and relief sought on behalf of the group members; and
(c)state the questions of law or fact common to the claims of the group members.

(2)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.”

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:

“103M Where 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—
(a)establishing a sub-group consisting of those group members; and
(b)appointing a person to be the sub-group representative party for the sub-group members.

(3)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

103N Individual 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.

103O Directions 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.”

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
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).
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—
(a)the member opts out of the representative proceeding under section 103G; or
(b)the representative proceeding, and any appeal from the proceeding, is decided without finally disposing of the member’s claim.

(3)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.”

CPA, s 103K(1)(c).

The CPA and UCPR amendment provisions

The CPA and UCPR each contain provisions relevant to the amendment of an originating process and pleadings.
Section 16 of the CPA provides as follows:

“16 Amendment 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—
(a)the amendment will include or substitute a cause of action or add a new party; or
(b)the cause of action included or substituted arose after the proceeding was started; or
(c)a relevant period of limitation, current when the proceeding was started, has ended.

(3)Despite subsection (2), the rules of court may limit the circumstances in which amendments may be made.
(4)This section—
(a)applies despite the Limitation of Actions Act 1974; and
(b)does not limit section 103H.”

Rule 5 of the UCPR materially provides:

“5 Philosophy—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.”

Rules 375 and 376 provide as follows.

“375 Power 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.

(2)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.
(3)If there is misnomer of a party, the court must allow or direct the amendments necessary to correct the misnomer.

This rule is subject to rule 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.
….
(4)The court may give leave to make an amendment to include a new cause of action only if—
(a)the court considers it appropriate; and
(b)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

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
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 periods²¹ 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

ARB 1, p 67.
ARB 1, p 23 at [46].
ARB 1, p 23 at [47].
ARB 1, p 18 at [29].
ARB 1, pp 18-19 at [29].
ARB 1, p 19 at [30].
ARB 1, pp 18-19 at [29].

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

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.
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:
(a)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
(b)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
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

ARB 1, p 19 at [31].
ARB 1, p 22 at [40].
ARB 1, p 22 at [40].
ARB 1, p 23 at [47].
ARB 1, p 22 at [40].
ARB 1, pp 22-23 at [42] and [44].
ARB 1, p 22 at [39].
ARB 1, p 23 at [46].
ARB 1, p 2, Notice of Appeal, Ground 2.
ARB 1, p 3, Notice of Appeal, Ground 3.
ARB 1, p 3, Notice of Appeal, Ground 4.
Appellant’s Amended Outline of Submissions, [46]; Appellant’s Amended Outline in Reply, [13].

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.

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
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
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

Transcript T1-5, lines 40-45.
Transcript T1-5, line 45; Transcript T1-7, lines 01-10; and Transcript T1-7, lines 25-30.
Refer to CPA s 103A, definition of “group member”.
Appellant’s Amended Outline of Submissions, [51].
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.
Transcript T1-39, lines 43-45.
Transcript T1-49, lines 21-23.
Transcript T1-49, lines 25-32.
Respondents’ Amended Outline of Submissions, [2(c)].

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

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

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.
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”).
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

ARB 1, p 8.
Respondents’ Amended Outline of Submissions, [40].
Ibid.
Explanatory Notes to the Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016, p 3.
ALRC report, p 4 at [6].
ALRC report, Appendix 1, ALRC draft bill, clause 7(1), p 155.
ALRC report, p 46 at [96].
Ibid.
Ibid.

were foreseen in relation to the operation of limitation periods within the context of the ALRC draft bill.⁵²

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 judgment⁵⁵ 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.
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.
3. 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.”
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

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

ALRC report, p 45 at [95] and p 46 at [96]; see also Grave, Adams and Betts, Class Actions in Australia
(Thomson Reuters, 3^rd ed, 2021) p 1258 at [22.20].
Federal Court of Australia Amendment Bill 1991.
(2002) 211 CLR 1, [50].

⁵⁵Gaudron, 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).

Explanatory memorandum to Federal Court of Australia Amendment Bill 1991, p 2.
Ibid, p 2.
BHP Group Ltd v Impiombato (2022) 96 ALJR 956, 969.
Ibid, 960.
Thirty-sixth Report of the Law Reform Committee of South Australia to the Attorney-General relating to Class Actions 1977, p 10.

“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

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.”
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.
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

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).
Explanatory memorandum to Federal Court of Australia Amendment Bill 1991, p 13.
(2009) 239 CLR 27.

purpose and policy of a provision, in particular the mischief it is seeking to remedy.”⁶⁴ (footnotes omitted)

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”.
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.”
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
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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47].
(2012) 246 CLR 469, [14].
French CJ, Hayne, Crennan, Kiefel and Bell JJ.
Fleming v The Queen (1998) 197 CLR 250, [12].
Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9^th ed, 2019) p 88.
(2017) 251 FCR 40, [3].
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 379,
[26] (French CJ and Hayne J).
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194,
[21] (Gleeson CJ, Hayne, Callinan and Heydon JJ).
ENT19 v Minister for Home Affairs (2023) 97 ALJR 509, [87].

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]).

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

In particular:
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”;
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;
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;
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;
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;
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).

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)

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”.
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.
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 construed⁸¹ as providing a “wide gateway for the commencement of representative proceedings”.⁸²
In BHP Group Ltd v Impiombato,⁸³ after noting that all group members “must have ‘claims’ under s 33C of the FCA Act”, the plurality⁸⁴ 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 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).
CPA, s 103B(1)(c).
CPA, s 103F(1)(b).
Wong v Silkfield Pty Ltd (1999) 199 CLR 255, [28].
BHP Group Ltd v Impiombato (2022) 96 ALJR 956, [8].
Wong v Silkfield Pty Ltd (1999) 199 CLR 255, [26].
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].
Silkfield Pty Ltd v Wong (1998) 90 FCR 152, 156 (Foster J); Dyczynski v Gibson (2020) 280 FCR 583,
[167].
(2022) 96 ALJR 956, [55].
Gordon, Edelman and Steward JJ.
BHP Group Ltd v Impiombato (2022) 96 ALJR 956, [55].

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).

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).
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.
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

(2020) 280 FCR 583.
Ibid, [166].
Ibid, [168].
Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150, [43].
(2017) 252 FCR 150, [43].

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).

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).”
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.”

[2017] FCA 1260, [77].
FCA Act, s 33C(1)(a).
FCA Act, s 33C(1)(c).
FCA Act, s 33C(1)(b).
(2003) 130 FCR 317, [245].

Finkelstein J’s statement was accepted by the Full Court of the Federal Court in Cash Converters International Ltd v Gray.⁹⁶

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’”.
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
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
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.”
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

(2014) 223 FCR 139, [24].
(1999) 199 CLR 255, 267.
Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150, [48].
Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212, [107].
Ibid, [107].
Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150, [48].
Ibid, [48].
Ibid, [48].
(2017) 252 FCR 150, [60].
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].

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.

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.
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:
(a)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’;
(b)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’;
(c)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’;

¹⁰⁶Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 10^th ed, 2024) p 120 at [3.42]; ICI Australia Ltd v Commissioner of Taxation (Cth) (1972) 127 CLR 529, 541 and 581.
¹⁰⁷Part 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.
¹⁰⁸Herzfeld and Prince, Interpretation (Thomson Reuters, 2^nd 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].

(2017) 252 FCR 150, [52]-[53].
Section 103C is the equivalent provision in the CPA.
Section 103K is the equivalent provision in the CPA.
Section 103M is the equivalent provision in the CPA.

(d)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:
(i)if the issue concerns only ‘the claim of a particular member’, give directions about a separate proceeding; or
(ii)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’;

(e)Section 33W,¹¹⁵ which allows a representative party to settle ‘his or her individual claim’ and thereafter withdraw as representative party;
(f)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;
(g)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’;
(h)Section 33ZC,¹¹⁸ which provides:
(i)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
(ii)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

(i)Section 33ZE,¹¹⁹ which provides that:
(i)‘the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended’; and
(ii)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’.”

Section 103O is the equivalent provision in the CPA.
Section 103N is the equivalent provision in the CPA.
Section 103S is the equivalent provision in the CPA.
Section 103T is the equivalent provision in the CPA.
Section 103W is the equivalent provision in the CPA.
Section 103Y is the equivalent provision in the CPA.
Section 103Z is the equivalent provision in the CPA.

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’.”
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.
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.
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.
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

Dyczynski v Gibson (2020) 280 FCR 583, [166]-[167].
(2016) 259 CLR 212.

¹²²The 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”.

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

of process and Anshun estoppel¹²⁴ principles, precluded the respondents from raising certain defences in the later proceeding.

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).
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).
In a separate judgment, Gordon J said:¹²⁷

The form of estoppel recognised as a matter of principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
Timbercorp Finance Pty Ltd v Collins (2016) 259 CLR 212, [49].
Ibid, [50]-[52].
Ibid, 246-247.

“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).

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).
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’.

Ibid, 249-250.
Ibid, [104]-[106].

…
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).

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 CPA¹³⁰ 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 criteria¹³¹ 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
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

Ibid, [16].
Ibid, [20].
Menegazzo v Pricewaterhousecoopers (A Firm) [2016] QSC 94, [51].
Ibid, [52]-[53].
(2009) 239 CLR 175.
Monto Coal 2 Pty Ltd v Sanrus Pty Ltd as Trustee of the QC Trust [2014] QCA 267, [74].

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.
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.”
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.

ARB 1, p 205 at [45].
ARB 1, p 203 at [42].
ARB 1, p 40 at [108].
ARB 2, p 1737, lines 15-35.

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.
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.
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”.

Wolfe v State of Queensland [2009] 1 Qd R 97, [13].
Pianta v BHP Australia Coal Ltd [1996] 1 Qd R 65, 68.

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.
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.
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.”
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.

Wolfe v State of Queensland [2009] 1 Qd R 97, [11].
Ibid, [10].
ARB 1, p 12 at [6].
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [112].
Ibid, [31].

The third area of dispute

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.
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”.
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.
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 ...”

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”

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.

ARB 2, p 585 at [1(h)].
Ibid.
ARB 2, p 798 at [307].

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.”
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.”
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.
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

ARB 1, p 44 at [127]-[128].
ARB 1, p 45 at [133]-[134].
ARB 1, p 236.

to the proposed pleading³⁶³ introduces three new grids into the definition of “Affected Waters”: grids R27, S27 and U29.

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
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

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

ARB 2, p 1335.
ARB 1, p 43 at [122].
ARB 1, p 43 at [123].
[2017] FCA 701, [33].
(2018) 264 FCR 394, [51]-[52].

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.”

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.
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

The orders on the appeal should be:
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:
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;

b.The plaintiffs’ application filed 11 November 2022 is dismissed;
c.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.

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)
FILENO/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)
DELIVEREDON:	7 May 2024
DELIVEREDAT:	Brisbane
HEARINGDATE:	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: 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; b. The plaintiffs’ application filed 11 November 2022 is dismissed; c. 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.

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”