Visic v Proude

Case [2013] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

VISIC v PROUDE & ANOR

[2013] SASCFC 62

Judgment of The Full Court

(The Honourable Justice White, The Honourable Justice Peek and The Honourable Justice Stanley)

28 June 2013

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - COMMENCEMENT OF ACTION

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION

STATUTES - ACTS OF PARLIAMENT - VALIDITY OF LEGISLATION GENERALLY

Appeal against an order made by a judge of this Court under 6SCR 81 authorising a plaintiff to bring an action as a representative action - the judge held the action of group members in a representative action commenced when the claimant filed the originating process – representative action was commenced as a result of a bushfire that burnt a large area of land – the first respondent commenced an action – although the summons did not contain the endorsement required by 6SCR 81(2), the accompanying statement of claim set out that he proposed to apply for an authorisation under 6SCR 81 to bring the action as a representative of the group of all landholders who suffered property loss or damage caused by the bushfire – the appeal raised the interrelationship between 6SCR 81 and s35(c) of the Limitation of Actions Act 1936 (SA), as the authorisation order was made after the expiration of the time limit under s35(c).

The appellant submitted that the action must commence when the Court grants the authorisation under 6SCR 81(1) – that by filing the summons, the first respondent had only commenced a personal action.

The appellant further submitted that the construction of 6SCR 81 adopted by the judge is repugnant to s35 (c) of the Limitation of Actions Act in that it allows a person to maintain an action in tort despite doing nothing to prosecute the action within six years of the cause of action accruing.

The second respondent adopted the submissions of the appellant and in addition submitted that a group member cannot be taken to have commenced an action until an authorisation order had been made, and that since the order for authorisation would not retrospectively cure the expiration of the time limit, there was no utility in granting the authorisation.

Held (per Stanley J, White and Peek JJ agreeing) (dismissing the appeal): 

1. The action brought by the first respondent as a representative action in accordance with 6SCR 81 was commenced within time – it is the only action to which the Limitation Act applies – the appellant’s argument is founded on the misconception that the action brought by the first respondent is not a representative action unless and until the Court makes an authorisation order and that until this happens, the group members have not commenced an action – that is not the case - there is only one action, which is the action that has been brought by the first respondent.

2. Pursuant to 6SCR 81(5)(a), the order authorising the first respondent to proceed with…

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Visic v Proude [2013] SASCFC 62
Case
[2013] SASCFC 62
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CaseChat Overview and Summary

This case concerned an appeal to the Full Court of the Supreme Court of South Australia regarding an order authorising a plaintiff to commence a representative action. The dispute arose from a bushfire that caused property damage to a large number of landholders. The first respondent initiated proceedings, and although the initial summons lacked the specific endorsement required by rule 6SCR 81(2) of the Supreme Court Rules, the accompanying statement of claim indicated an intention to seek authorisation under rule 6SCR 81 to proceed as a representative action. The core of the appeal lay in the interrelationship between rule 6SCR 81 and section 35(c) of the Limitation of Actions Act 1936 (SA), particularly as the authorisation order was granted after the expiry of the limitation period prescribed by the Act.

The appellant contended that a representative action under rule 6SCR 81 only commences when the Court grants the authorisation, arguing that the filing of the summons alone constituted a personal action. The appeal therefore raised three key legal issues: firstly, whether the filing of the summons could be considered the commencement of an action on behalf of the specified group members; secondly, if so, whether the action was also commenced on behalf of all members within the group definition, not just those specifically identified; and thirdly, whether the trial judge's interpretation of rule 6SCR 81 rendered it repugnant to section 35 of the Limitation Act, and thus invalid to that extent.

The Full Court, comprising White, Peek, and Stanley JJ, dismissed the appeal. Their Honours reasoned that the appellant's argument erroneously treated the group members as if they were individual plaintiffs from the outset. Rule 6SCR 81, which governs representative actions authorised by the Court, operates in conjunction with section 72(1)(b) of the Supreme Court Act 1935 (SA), which empowers the Court to make rules for regulating the initiation of actions. Unlike rule 6SCR 80, which allows for representative actions based on written authorisation from group members, rule 6SCR 81 involves a judicial screening process to ensure the group and claims are properly defined and that common questions of law or fact exist. The Court held that rule 6SCR 81 simply defines when an action is commenced as a representative action, which is upon the filing of the summons. The Limitation Act, in turn, operates by reference to these rules. Therefore, the commencement of the action for the purposes of the Limitation Act occurred when the summons was filed, not when the authorisation was granted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J (dissent) PEEK J (dissent)
The appellant’s argument depends on treating the group members as if they were plaintiffs. For the reasons explained earlier, that characterisation is erroneous. As the learned judge found, 6SCR 81 simply defines that the action is commenced as a representative action at the time of filing the summons. It says nothing about the Limitation Act. It is the Limitation Act itself which operates by reference to the rules, including 6SCR 81. Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

The appellant submits the appeal raises the following issues:1.Whether, by the filing of the summons, it can be said that an action had been commenced for the specified group members;2.Whether, if the action was commenced on behalf of the specified group claimants, the action was also commenced on behalf of persons within the group definition who were not specified group claimants (i.e. the rest of the group members); and3.Whether the trial judge’s construction of 6SCR 81 means that it is repugnant to s 35 of the Limitation Act and therefore, to that extent, invalid. The operation of 6SCR 81 Section 72(1)(b) of the Supreme Court Act 1935 (SA) provides that Rules of Court may be made for regulating the pleading, practice and procedure of the Court in any jurisdiction, and the initiating of actions and proceedings therein. 6SCR 81 is a rule made by the Court to regulate the conduct of representative or class actions. It has a counterpart in 6SCR 80. That rule provides:80—Bringing of representative action where common interest exists(1)If a group of persons has a common interest in the subject matter of an action or proposed action and a member of the group is authorised in writing by the other members of the group to bring or defend the action as representative of the group, the person may bring or defend the action as representative of the group.(2)A person who brings an action as representative of a group under this rule must file in the Court the written authorisation to represent the group when filing originating process.(3)A person who defends an action under this rule as representative of a group must file in the Court the written authorisation to represent the group as soon as practicable after the authorisation is given.(4)The written authorisation must contain a list of the names and addresses of the persons authorising the person bringing or defending the action to act on their behalf.(5)The Court may, at any time, terminate the right of a representative plaintiff or defendant under this rule to represent the relevant group of plaintiffs or defendants. It cannot be doubted that a representative action brought pursuant to 6SCR 80 commences on the date the action is instituted. 6SCR 81, unlike 6SCR 80, is confined in its operation to plaintiffs authorised by the Court to be representatives. Like 6SCR 80, 6SCR 81 empowers the Court to exercise a degree of control over the conduct of a representative action by a plaintiff. 6SCR 80 permits the Court to terminate at any time the right of the representative party to represent the group. 6SCR 81 requires the Court to sanction an action commenced by a plaintiff as a representative action. It involves a screening process. The Court is not to authorise the action, brought by a plaintiff as a representative action, to proceed as such, unless the Court is satisfied as to certain matters. Those matters are:(1)the group on whose behalf the action is brought by the plaintiff can be properly defined; (2)the nature of the claim or claims made on behalf of the members of the group can be properly defined; (3)the group on whose behalf the action is brought have a common interest in questions of law or fact to which the action relates; and(4)those common questions of law or fact that are to be determined in the action can be, and are, properly defined.