PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - COMMENCEMENT OF ACTION
LIMITATION OF ACTIONS - OTHER MATTERS
PROCEDURE - COSTS - SECURITY FOR COSTS
The plaintiff brought proceedings against the first and second defendants for losses allegedly caused by a bushfire as a result of their negligence.
The plaintiff applies for authorisation pursuant to rule 81 of the Supreme Court Civil Rules 2006 (SA) to bring the action as representative of all land owners and occupiers who suffered property loss and damage caused by the bushfire (“the group”).
The defendants oppose the application. In the alternative, they seek an order pursuant to rule 194, or alternatively rule 81, that the plaintiff provide security for costs.
Held:
Per Blue J:
1. The prerequisite for an authorisation order under rule 81(1), that the group has a common interest in questions of law or fact to which the action relates, is satisfied. There are several substantive questions in which the group has a common interest against the first defendant and against the second defendant (at [79], [185]).
2. It is not a requirement of rule 81 that each and every member of the group have an action against each defendant (at [77]).
3. Under rule 81, an action is “commenced” on behalf of the represented persons within the meaning and for the purpose of section 35 of the Limitation of Actions Act 1936 (SA) upon filing the summons and statement of the plaintiff’s claim and not when the authorisation is sought or granted (at [109]).
4. This action was instituted on behalf of the group members within the time prescribed by section 35(c) of the Limitation of Actions Act 1936 (SA). The section is no impediment to the making of an authorisation order under rule 81 (at [122], [183]).
5. The factors in favour of authorisation point overwhelmingly in favour of the exercise of discretion to make an authorisation order under rule 81 (at [143], [183]).
6. The action is brought in a representative capacity within the meaning of rule 194(1)(a). In any event, it is in the interests of justice within the meaning of rule 194(1)(e) to order security for costs. The discretion should be exercised in favour of ordering security for costs (at [152], [171], [186]).
Common Law Procedure Act 1852 (UK) s 41;Corporations Act 2001 (Cth) s 1335;Federal Court Act 1976 (Cth) Part IVA, s 33C, s 33N, s 43, s 56;Judiciary Act 1903 (Cth) s 79;Limitation Act 1969 (NSW);Limitation of Actions Act 1936 (SA) s 35, s 39, s 40 s 45-48; Rules of Procedure under the Supreme Court of Judicature Act 1873 (UK) r 10, r 22; Rules of Procedure under the Supreme Court of Judicature…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Proude v Visic (No 3) [2012] SASC 234
Case
[2012] SASC 234
Decision Date
CaseChat Overview and Summary
Proude v Visic (No 3) involves a dispute arising from a bushfire that occurred in South Australia. Mr Proude, as a representative of a large group of landholders, sought to bring a representative action against Mr Visic and the Country Fire Service (CFS) over the alleged negligence that led to the bushfire. The case raised several legal issues, including whether the group had a common interest in the questions of law and fact pertinent to the action, whether the limitation period under the Limitation of Actions Act 1936 (SA) precluded an authorisation order, the discretion of the court in granting an authorisation order, the applicability of security for costs, and the terms of any authorisation order. The primary concern was whether Mr Proude could represent a group of approximately 257 landholders in a representative action, given the limitation period had expired for some of the claimants.
The court considered whether the prerequisite for an authorisation order under rule 81(1) of the Supreme Court Civil Procedure Rules 2006 (SA) was met, specifically if the group had a common interest in the questions of law or fact to which the action related. It also evaluated whether the authorisation order would be precluded by section 35(c) of the Limitation of Actions Act 1936 (SA), which mandates that actions founded on tort be commenced within six years of the cause of action accruing. Furthermore, the court deliberated on the discretionary aspects of granting an authorisation order, the necessity of security for costs, and the appropriate terms for such an order if granted.
In its decision, the court found that the group indeed had a common interest in the questions of law and fact pertinent to the action, thus satisfying the requirement under rule 81(1). The court also concluded that the commencement of the action did not breach the limitation period as it hinged on the date of the authorisation order, not the filing of the summons and statement of claim. Additionally, the court exercised its discretion to grant an authorisation order, taking into account the public interest and the potential for individual assessments of damages. The court further held that security for costs was not applicable under the circumstances and outlined specific terms for the authorisation order to ensure fairness and efficiency in the proceedings.
The court ultimately granted the authorisation order, defining the group, the nature of the claims, the common questions of law or fact, and the directions for determining other issues. The authorisation order allowed Mr Proude to proceed with the representative action on behalf of the landholders, subject to the specified terms.
Orders
Orders of the court
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Background
Background to the litigation
The applications raise five questions:1.Does the group have a common interest in questions of law or fact to which this action relates within the meaning of rule 81(1)?2.Is an order for authorisation precluded by section 35(c) of the Limitation of Actions Act 1936 (SA) because it would entail the commencement of an action on behalf of the group members more than six years after their causes of action accrued?3.Should an authorisation order be made as a matter of discretion?4.Can and should security for costs be ordered pursuant to rule 194 or rule 81? 5.If an authorisation order is made, what should be its terms?Background facts On 10 January 2005 at about 3:00 pm, a fire broke out on the eastern side of Lady Franklin Drive, Lower Eyre Peninsula, approximately 45 kilometres north-west of Port Lincoln.[4][4] Third Statement of Claim [7], first defendant’s Defence [7], second defendant’s Second Defence [7]. Some time prior to 3:00 pm, Mr Visic drove and parked his land cruiser in the general vicinity in which the bushfire broke out.[5] [5] Third Statement of Claim [6], first defendant’s Defence [6], second defendant’s Second Defence [6]. The bushfire burnt a local area of land up to a swamp known as paperbark swamp during the afternoon and night of 10 January 2005.[6] The burnt land comprised five properties owned by five persons or families.[7][6] Third Statement of Claim [13-16], first defendant’s Defence [16], second defendant’s Second Defence [13], [15], [16].[7] Affidavit of Mr Humphries sworn on 9 November 2012 (FDN 53) [3]. On the morning of 11 January 2005, a fire or fires (it being in dispute in the action whether it was the same fire or a different fire or fires resulting from back burning by the owner of one of the five properties) broke out of the paperbark swamp. Mr Proude’s case is that it broke out at one point south (“area A”) and another point east (“area C”) of the paperbark swamp. The fire or fires ultimately burnt approximately 78,000 hectares on 11 January 2005.[8] [8] Affidavit of Mr Humphries sworn on 22 October 2012 (FDN 35); Affidavit of Mr Humphries sworn on 9 November 2012 (FDN 53). I use the term landholder to encompass a group of related persons or entities who between them own or have exclusive possession of land. Mr Proude’s case is that the fire or fires (collectively “the bushfire”) caused extensive damage to land owned or occupied by at least 257 landholders.[9] His case is that:1.the bushfire burnt land owned by five landholders on 10 January 2005;2.the bushfire burnt land owned by three of those five landholders and at least an additional 252 landholders (including Mr Proude) on 11 January 2005.[10][9] Third Statement of Claim [18] not admitted by the defendants; Affidavit of Mr Humphries sworn on 22 October 2012 (FDN 35).[10] Affidavit of Mr Humphries sworn on 9 November 2012 (FDN 53) [4]-[6]. The 257 landholders’ land represents approximately 70,000 hectares.[11] There are or may be additional landholders who Mr Proude (seeks to) represent(s) who hold approximately 8,000 hectares. [11] Affidavit of Mr Humphries sworn on 13 December 2012 (FDN 54).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Turning to rule 73, Mr Visic does not contend that the joinder by Mr Proude of both defendants is contrary to that rule. Nor does he seek an order pursuant to rule 74 or rule 77 for the disjoinder of the CFS from the action.Conclusion The prerequisite for an authorisation order under rule 81(1) that the group has a common interest in questions of law or fact to which the action relates is satisfied. Time Limitation The second issue is whether an order for authorisation is precluded by section 35(c) of the Limitation of Actions Act 1936 (SA) (“the Limitation Act”) because it would entail the commencement of an action on behalf of the represented persons more than six years after their causes of action accrued. Section 35(c) relevantly provides:The following actions namely:…(c) actions founded on tort;…shall … be commenced within six years next after the cause of action accrued and not after.Section 35 is expressed in the passive tense (“action shall be commenced”) rather than the active tense (“a person shall commence an action”). Section 35 leaves it to the general law to determine the date on which the relevant cause of action accrued. Section 35 leaves it to the procedural law of the relevant court to determine the date on which an action is “commenced”. Rule 81 provides as follows:(1) The Court may authorise a plaintiff to bring an action as representative of a group with a common interest in questions of law or fact to which the action relates.(2) If a plaintiff intends to apply for an authorisation under this rule, the action may be commenced in the ordinary way but the originating process must bear an endorsement in the approved form stating that the plaintiff proposes to apply for the authorisation.(3) An application for an authorisation under this rule must be made within 28 days after the time allowed for the defendant to file a defence.(4) An authorisation under this rule is not to be refused on the ground that—(a) damages which would require individual assessment are sought by way of remedy; or(b) the action is based on separate contracts or transactions between individual members of the group and the defendant.(5) An order authorising a plaintiff to proceed with an action as a representative action under this rule must—(a) define the group on whose behalf the action is brought; and(b) define the nature of the claim or claims made on behalf of the members of the group and specify the remedy sought; and(c) define the common questions of law or fact that are to be determined in the action; and(d) give directions about the determination of other issues raised in the action that are not common to all members of the group.(6) The Court may vary the order at any time before the Court gives final judgment in the action. Mr Proude contends that an action is “commenced” when the summons and statement of claim are filed invoking rule 81. Mr Visic and the CFS contend that, on its proper construction, rule 81 does not involve an action being “commenced” within the meaning of section 35 unless and until an order is made by the Court authorising the bringing of an action by the plaintiff as a representative action.