Visic v Proude - [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 his action as a representative action defined the group on whose behalf the action has been brought – the identification of a group in the summons and/or statement of claim cannot limit the power conferred by sub-rule (5)(a) to define the group.
3. The appellant's characterisation of the group members as plaintiffs is erroneous - 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 of Actions Act - it is the Limitation of Actions Act that operates by reference to 6SCR 81.
Held (per White J, Peek J agreeing) (dismissing the appeal):
1. Section 35 of the Limitation of Actions Act does not specify that claimants must themselves commence an action within six years of the cause of action accruing.
2. Under 6SCR 81, a representative action is commenced not on the Court’s grant of authority but “in the ordinary way”, with the grant of authority only being a condition of the continuation of the action.
3. The first respondent commenced the action, as a representative action, within the six year limitation period.
Supreme Court Civil Rules 2006 (SA) r 34, r 80, r 81, r 82, r 83, r 84, r 92, r 200; Limitation of Actions Act 1936 (SA) s 3, s 35, s 48; Supreme Court Act 1935 (SA) s 5, s 27, s 72; Supreme Court Civil Rules 1987 (SA) r 34, referred to.
Cameron v National Mutual Life Association of Australasia (No. 2) [1992] 1 Qd R 133; Fostif Pty Ltd v Campbells Cash and Carry Pty Ltd [2005] NSWCA 83, (2005) 63 NSWLR 203, applied.
R v Seigneur (2009) 103 SASR 207, discussed.
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Mitsubishi Motors Ltd v Kowalski (2004) 236 LSJS 101; Braeside Bearings Pty Ltd v H J Brignell & Associates [1996] 1 VR 17; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Stevens v Perrett (1935) 53 CLR 449; Powell v May [1946] KB 330, considered.

VISIC v PROUDE & ANOR
[2013] SASCFC 62
Full Court: White, Peek and Stanley JJ

WHITE J. I agree that the appeal should be dismissed. I agree generally with the reasons of Stanley J. I add the following.
At first instance, the appellant (the first defendant below) agitated a number of matters in opposition to the grant to the first respondent (the plaintiff) of an authorisation under r 81(1) of the Supreme Court Civil Rules 2006 (the 2006 Rules). However, his notice of appeal raised one issue only. That was that the Judge had erred in law in finding that the action was instituted within the six year limitation period prescribed by s 35(c) of the Limitations of Actions Act 1936 (SA) (the Limitations Act) on behalf of group members other than the plaintiff, and in finding that, as the claims of the group members were not statute barred, an authorising order could be made.
In the submissions on appeal, the first defendant’s proposition became more refined. That was that r 81 did not permit the Court to grant an authority to a plaintiff to bring an action as the representative of a group after the expiry of the applicable limitation period, unless the group members had themselves commenced an action within the limitation period. Absent that circumstance, an action under r 81 had to be both commenced and authorised as a representative action within the applicable limitation period.
Put that way, the first defendant’s submissions seemed to require consideration not only of the effect of r 81 and its interaction with the limitation period prescribed by s 35(c) of the Limitations Act, but also consideration of the potential for its extension under s 48 of the Limitations Act. However, on reflection, I consider that s 48 does not arise, other than in an incidental way.
Instead, the resolution of the appeal turns on a proper understanding of s 35 of the Limitations Act and on the proper construction of r 81. Those provisions are set out in the reasons of Stanley J but, for convenience, I will repeat s 35(c).
Section 35(c) provides:
The following actions namely:
...
(c) actions founded on tort;
...
shall, save as otherwise provided in this Act, be commenced within six years next after the cause of action accrued and not after.
As can be seen, s 35(c) is expressed in the passive voice. It provides that an action founded on tort, such as the present, shall, save as otherwise provided in the Act, be commenced within six years of the cause of action accruing.
Section 35(c) does not specify the way in which an action is to be brought and, in particular, does not specify that a claimant must himself or herself commence an action within six years. That may well be the usual way in which an action brought within the limitation period will be commenced, but it is not required by s 35 itself. Actions may be commenced, and the jurisdiction of a court thereby invoked, for the purposes of s 35(c), in a variety of ways. The manner in which actions may be commenced is governed by legislation and rules of court, and not by the Limitations Act. This was the point made by McPherson SPJ in Cameron v National Mutual Life Association of Australasia Ltd (No 2)[1]in relation to the Queensland counterpart of s 35(c) in the passage quoted in the reasons of Stanley J.
[1] (1992) 1 Qd R 133.
Once s 35(c) of the Limitations Act is understood in this way, many of the contentions of the defendants on the appeal fall away.
The manner in which a party may commence an action in this Court is controlled by the Supreme Court Act 1935 (SA) and by the 2006 Rules. Again, the relevant provisions are contained in the reasons of Stanley J.
Rules 80 and 81 provide for two circumstances in which one person may bring an action as the representative of others. Rule 80 applies if members of a group have authorised, in writing, one member of the group to bring the action as the representative of the group. The representative plaintiff in that circumstance acts as a form of agent of the group members by virtue of that express authority.
Rule 81 operates when a plaintiff does not have such a written authority. Leaving aside some purely procedural aspects, the ability of the plaintiff to “bring” the action under r 81 as the representative of a group in this circumstance turns on the group having a common interest in questions of law or fact to which the action relates and on the grant of an authority by the Court. This is evident in r 81(1).
If that subrule stood by itself, there may have been a question as to whether a plaintiff had to obtain the grant of authority before commencing the representative action. However, any doubt on that score is removed by subrules (2) and (3). Under subrule (2), a plaintiff who intends seeking an authority may commence the action in the ordinary way, subject to the originating process containing a specified endorsement. The endorsement is a means of giving notice that the plaintiff brings the action as a representative action and will be seeking the Court’s authority to do so. The effect of subrule (3) is to require the plaintiff to seek the authorisation under subrule (1) at an early stage of the proceedings.
Rules 34 to 37 provide “the ordinary way” for the commencement of the general run of actions in this Court but rules relating to particular forms of claims, or rules relating to special Acts, may govern the way in which some actions are to be commenced.
Rule 81 contemplates a single action as the representative action. The use of the definite article before the word “action” in subrules (1), (2), (4)(b), (5)(a), (5)(c) and (5)(d) is one indication of this. The fact that the rule contemplates a plaintiff bringing an action as the representative of a group, and not bringing an action as representative of other actions, is another indication.
The grant of authority under subrule (1) is an important element in r 81 given the absence of a requirement that the plaintiff have an authorisation from the group members to bring the action. It is a means by which this Court may control the bringing of such an action, and regulate its conduct (subrule 5)).
However, I am unable to discern any indication in r 81 that the action is commenced by the representative of a group only on the grant of the authority under subrule (1). On the contrary, subrule (2) provides specifically that the action, that is, the representative action, may be commenced in the ordinary way. Once commenced, the action has invoked the Court’s jurisdiction but it may be continued as a representative action only with the grant of authority. That is the sense in which the word “bring” is used in subrule (1). The requirement for the grant of authority is in the nature of a condition subsequent. Satisfaction of that condition means that the action may, subject to the directions of the Court under subrule (5), continue as a representative action. It does not mean that the action alters in character or that some new action on behalf of the group members is then commenced.
The grant of authority under r 81 is not to be likened to the joinder of a plaintiff as a party to the action under r 74. The expiry of a relevant limitation period may have some significance in that context, in particular having regard to the terms of r 74(5). The grant of authority is more akin to the grant of permission under r 200(1) in relation to actions for judicial review.
The present plaintiff commenced the action within the six year limitation period prescribed by s 35(c). At the time of its commencement it was a representative action. The Judge’s grant of authority meant that the plaintiff could proceed as the representative of the defined group and that orders could be made in the action binding the group members and the defendants.
Accordingly, it is unnecessary, as I had originally supposed, to consider the effect of the qualifying words “save as otherwise provided in this Act” in s 35, or the effect of s 48 of the Limitations Act.
As to the remaining matters agitated by the defendants, I agree with the reasons of Stanley J. I would dismiss the appeal.
PEEK J. I agree that the appeal should be dismissed. I agree with the reasons of Stanley J and the additional reasons of White J.
STANLEY J: Rule 81(1) of the Supreme Court Civil Rules 2006 (6SCR 81) permits the Court to authorise a plaintiff to bring an action as a representative of a group with a common interest in questions of law or fact to which the action relates. The question on this appeal concerns the time at which the action of the group members, other than the claimant who is the plaintiff, is commenced for the purposes of s 35(c) of the Limitation of Actions Act 1936 (SA) (the Limitation Act). Is it, as the judge found, when the claimant filed the originating process (the summons) in the Court? Alternatively, is it, as the appellant contends, when the Court grants the authorisation under 6SCR 81(1)?
Background Circumstances
On 10 and 11 January 2005 a bushfire burnt a large area of land northwest of Port Lincoln, including the land of the plaintiff, Mr Proude (the respondent to this appeal). It caused substantial damage to the property of some 257 landholders. Mr Proude alleges that the losses were caused by the negligence of the appellant, Mr Visic, and of the South Australian Country Fire Service (the CFS).
On 21 December 2010, Mr Proude’s solicitors commenced an action in this Court. Mr Proude is the named plaintiff. Although the summons did not contain the endorsement required by 6SCR 81(2) of the 2006 Rules, the accompanying statement of claim pleaded that Mr Proude brought the action on his own behalf and that he proposed applying for 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 (“group members”). This included 285 landholders named in a schedule to the statement of claim (“specified group claimants”).
Subsequently, on 29 August 2011, Mr Proude filed an interlocutory application seeking the Court’s authorisation under 6SCR 81 for him to bring the action as representative of the group. Mr Visic and the CFS opposed the application on a number of grounds, but the Judge overruled those objections. The judge authorised the plaintiff to proceed with the action as a representative action. The judge determined that the group on whose behalf the action was brought included not only the specified group claimants, but all group members (“the authorisation order”). This appeal concerns only one of the issues determined by the Judge adversely to the defendants which was that s 35(c) of the Limitation Act did not preclude the grant of an authorisation. The defendants had contended that s 35(c) did have that effect because the grant of authorisation would mean that the action on behalf of the represented landholders had been commenced more than six years after the causes of action accrued.
Section 35(c) provides:
The following actions namely:
…
(c) actions founded on tort;
…
shall, save as otherwise provided in this Act be commenced within six years next after the cause of action accrued and not after.
Mr Proude’s summons was commenced within the six year period prescribed by s 35(c) but the order of authorisation under 6SCR 81 made formally on 28 February 2013 was well after that period had expired.
Rule 81 provides:
(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.
The judge’s reasons
At first instance, the judge reasoned as follows:
1.The decisions in Cameron v National Mutual Life Association of Australasia Ltd (No. 2)[2] and Fostif Pty Ltd v Campbell’s Cash and Carry Pty Ltd[3] support the following propositions:[4]
(i) The Limitation Act does not define or dictate when an action is commenced, but rather leaves this to the procedural law of the relevant court;
(ii) An action may be commenced (within the meaning of the Limitation Act) if it is commenced on behalf of a represented person, even though the represented person is not a named plaintiff; and
(iii) Rules of court are not repugnant to the Limitation Act merely because they define when an action is commenced.
2.Neither the history of 6SCR 81 and its predecessors, or the text of 6SCR 81, warrants a departure from these propositions in construing the rule.[5]
3.On the contrary, the text, context and purpose of 6SCR 81 support a conclusion that an action is “commenced” on behalf of represented persons within the meaning and for the purpose of s 35 of the Limitation Act upon filing the summons and statement of the plaintiff’s claim invoking 6SCR 81.[6]
4.This construction of 6SCR 81 does not mean that it is repugnant to s 35 of the Limitation Act and therefore, to that extent, invalid. The rule simply defines that the action is commenced as a representative action at the time of filing the summons. 6SCR 81 says nothing about the Limitation Act. It is the Limitation Act itself which picks up the rule. Section 35 of the Limitation Act is silent as to when an action is “commenced”. The commencement of an action is dependent upon the practice and procedure of the Court, including 6SCR 81.[7]
[2] [1992] 1 Qd R 133.
[3] [2005] NSWCA 83, (2005) 63 NSWLR 203.
[4] [2012] SASC 234 at [87].
[5] [2012] SASC 234 at [88] – [104].
[6] [2012] SASC 234 at [109].
[7] [2012] SASC 234 at [120].
Issues on appeal

The appeal is against:
1.The authorisation order; and
2.The order defining the group members.
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); and
3.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.
6SCR 81 contemplates a single action brought by an individual plaintiff commenced in the ordinary way, except that the originating process bears an endorsement in the approved form stating that the plaintiff proposes to apply for authorisation to bring the action as the representative of a group with a common interest in questions of law or fact to which the action relates. It does not require a person intending to commence a representative action to obtain the permission of the Court prior to the commencement of proceedings.
Instead, it expressly permits the action to be commenced “in the ordinary way”. 6SCR 81(5) describes the order for authorisation as being one to “proceed” with the action as a representative action. In this respect, it is similar to the requirement in 6SCR 200 for permission being required to proceed with an application for judicial review,[8] except that in the case of the action commenced by the plaintiff in accordance with 6SCR 81, if the authorisation order is not made, the plaintiff’s action can still proceed as a personal action.
[8] Likewise, the judge drew an analogy with ratification for the purposes of the law of agency. See [2012] SASC 234 [100].
If the Court authorises the plaintiff to proceed with the action as a representative action, this enables the group to obtain a remedy from the Court in the nature of a right to recover damages from the defendant or defendants to the action.
The application for authorisation must be made within 28 days after the time allowed for the defendant to file a defence.[9] A defendant is required to file a defence within 28 days of service of a statement of claim.[10] Once the plaintiff has applied for the authorisation contemplated by the rule, it is a matter for the Court when the application is heard and determined. That is a matter outside the control of the plaintiff. The time when an order authorising the plaintiff to bring an action as a representative action is made might be long after the plaintiff filed the proceedings in Court.
[9] 6SCR 81(3).
[10] 6SCR 92(2).
At any time before final judgment is entered, the Court may vary the authorisation order. That power may be exercised to expand the definition of the group on whose behalf the action has been brought. The expiry of the limitation period prescribed by s 35 of the Limitation Act, which would otherwise be applicable to those persons, would be a matter for consideration in the exercise of that power.
On the basis of my construction of 6SCR 81, I turn to consider the issues the appellant identified as arising on the appeal.
Whether, by the filing of the summons, it can be said that an action had been commenced for the specified group claimants?
It is convenient to put to one side for the moment, the question of the definition of the group members.
Section 35(c) of the Limitation Act provides that an action founded on tort “shall be commenced within six years” after the cause of action accrued.
By s 3 of the Limitation Act “action” is defined to mean “legal proceedings of all kinds”.
An action is commenced when a step is taken to invoke the jurisdiction of a court to “quell a controversy”[11] In a different statutory context, it was found that the expression “proceedings commenced” refers to the initiation of proceedings.[12] Pursuant to 6SCR 34, an action is commenced by the filing of a summons.
[11] D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [25], [32] and [43], (2005) 223 CLR 1 at 14-15, 16, 20; Mitsubishi Motors Ltd v Kowalski [2004] SASC 302 at [36], (2004) 236 LSJS 101 at 107; Braeside Bearings Pty Ltd v H J Brignell & Associates [1996] 1 VR 17 at 20.
[12] R v Seigneur [2009] SASC 59 [38], (2009) 103 SASR 207 at 222.
Section 35(c) of the Limitation Act does not require that a person must commence such an action on his or her own behalf within the prescribed period. It is silent on how an action is commenced and who may commence such an action.[13] It is the Court that determines when its jurisdiction has been invoked, to determine for whose benefit proceedings are commenced, and to identify whose controversy the jurisdiction of the Court has been invoked to quell.
[13] Cameron v National Mutual Life Association of Australasia Ltd (No. 2) [1992] 1 Qd R 133 at 136.
Section 27 of the Supreme Court Act provides:
The court in every cause or matter pending before it shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as it deems just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of every legal or equitable claim properly brought forward by them respectively, in such cause or matter, so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.
Pursuant to s 5 of the Supreme Court Act:
(1)a “cause” is “any action, suit or other original proceeding between a plaintiff and a defendant”;
(2)a “matter” is defined to include “every proceeding in the Court not in a cause”;
(3)“parties” is defined to include “as well as the plaintiff and defendant in the action, any person not originally a party against whom any counterclaim is set up, or who has been served with notice to appear under any of the Rules of Court; and also every person served with notice of or attending any proceeding, although not named on the record”; and
(4)a “plaintiff” is “a person who brings any form of proceeding in the court …”.
Section 27 empowers the Court, in the exercise of its jurisdiction, to grant remedies in favour of persons who are not plaintiffs and who do not commence proceedings in the Court, but who have been served with notice of the proceedings. In this matter the Court made orders for the giving of notice to the group members permitting them to opt out of the group. Such notice was to be effected in a number of ways including personal notice and various advertisements.
The Supreme Court Act does not regulate the manner in which proceedings are to be commenced for the benefit of persons who are not the plaintiff or plaintiffs to those proceedings. The Court has regulated those matters in relation to class actions through the exercise of its rule making power under s 72 of the Supreme Court Act by making 6SCR 80 – 6SCR 84.
There is nothing unusual in this. There are a number of examples of actions which are not commenced by the person ultimately standing to take the benefit of the action which were referred to by Mr Wells QC, counsel for the respondent. Trustees, personal representatives of deceased estates, executors, litigation guardians, agents for undisclosed principals, administrators, receivers and liquidators, are all examples of persons who do so.
Mr Morcombe QC, counsel for the appellant, submitted that the filing of the summons by the plaintiff in this matter did not constitute the commencement of an action by the group members. He contended that, as a matter of law, the action the plaintiff commenced by filing the summons was his personal action only, until such time as the Court made the authorisation order. Once it did so, that order operated prospectively. Therefore, for claimants who are not the plaintiff, the action is only commenced once the order for authorisation is made.
The appellant’s argument is founded on a misconception. It proceeds on the premise that the action brought by the plaintiff is not a representative action unless and until the Court makes an authorisation order. He argues that unless and until the authorisation order is made, the group members have not commenced an action. But that is not the position at all. There is only one action. It is the action which has been brought by the plaintiff. This construction is supported by the use of the definite article in sub-rules 6SCR 81 (1) and (2). The action was brought within time. Once the authorisation order was made, that action, which was brought as a representative action, proceeds as a representative action, and the group members will be bound by the Court’s determination of issues in the action. If the action succeeds, the group members can take the benefit.
When the plaintiff filed his summons and statement of claim, he invoked the jurisdiction of the Court to quell the controversy, not only between himself and the defendants, but between the group members and the defendants. It is not a matter of saying that, by the filing of the summons, an action had been commenced by the group claimants. Rather, by the filing of the summons and statement of claim, the plaintiff commenced an action on behalf of the group claimants. So much is made plain by the terms of 6SCR 81(5)(a). The making of the order authorising the plaintiff to proceed with the action as a representative action under the rule merely permitted the action, already commenced as a representative action, to proceed on that basis.
Mr Morcombe QC relied on textual considerations. He submitted that the verb “to bring” in sub-rule (1) is used in contradistinction to “commenced” in sub-rule (2) because sub-rule (2) is speaking of the initiation of the proceeding, whereas sub-rule (1) is speaking of an authorisation which occurs subsequently to the initiation of the proceedings. On the face, the bare text of sub-rule (1) does present some difficulty given the construction I have adopted. However, I do not find that textual construction persuasive. I agree with the learned judge that when sub-rule (1) refers to the Court granting authority to a plaintiff to “bring an action as representative of a group”, the authorisation relates both to the commencement of the action (which has already occurred), and its future prosecution.[14] After all, it is the plaintiff, not the Court, who brings the action. The construction for which the appellant contends depends upon steps being taken by the Court, rather than a litigant, for the commencement of an action. Intuitively, this seems an unlikely interpretation. Given the potential for delay before an application for an authorisation might be decided, which might be outside the control of the plaintiff, the Court should shrink from adopting such construction unless compelled to do so because of the consequence of such a construction in relation to the application of the Limitation Act. I do not consider I am compelled to do so. The grant of authority does not, per se, amount to the “bringing” of the action. I consider the learned judge is correct in construing “bring” in this context to encompass “commence”.
[14] [2012] SASC 234 [99].
I am reinforced in this construction by the use of the verb “to proceed” in sub-rule (5). This phrase is to be understood in the context of 6SCR 81 to mean to go on with the action. It is a recognition that the action is on foot and the making of the authorisation order permits the proceedings to continue as a representative action. It is not a synonym for the expression “to commence”. It connotes a further step in the proceedings. By contrast, “commencement” refers to the initiation of the action and not any subsequent step in the proceedings.[15]
[15] R v Seigneur [2009] SASC 59 [38], (2009) 103 SASR 207 at 222.
The appellant also sought to rely upon a difference in the wording between 6SCR 81 and the predecessor rule under the 1987 Supreme Court Rules r 34. He submitted that the difference in wording reflected a change in the scheme that operated under r 34 of the 1987 Rules.
Rule 34 provided:
34.01
(1)Where numerous persons have common questions of fact or law requiring adjudication, one or more members of that group of persons may commence an action as representative parties on behalf of all or some of the group.
(2)Without derogating from the general words of subrule (1), in actions for the protection of property including actions by remaindermen or reversioners, and in actions in the nature of waste or a devastavit, one person may sue on behalf of himself and of all persons having the same interest.
Application to be made to allow action to continue as a representative action
34.02        The representative parties must within twenty-eight days after the day upon which the defendant filed a notice of address for service, or after the date of the defendant’s default in doing so, apply to the Court for:
(a)     an order authorising the action to be maintained as a representative action;
(b)     directions as to the conduct of the action.
Individual assessments of damages and separate contracts or transactions are not to preclude a representative action
34.03        Authorisation shall not be refused on the ground:
(a)     that the relief claimed includes claims for damages that would require individual assessment;
(b)     that separate contracts or transactions made with or entered into between the members of the group represented and the defendant are involved.
Order to define group represented, the nature of the claims, the relief claimed and the common questions of law or fact
34.04        An order that an action is to be maintained as a representative action shall:
(a)     define the group on whose behalf the action is brought;
(b)     define the nature of the claim or claims made on behalf of members of the group and specify the relief claimed;
(c)     define the questions of law or fact common to the claims of members of the group and make such other orders and give such directions as the nature of the proceedings may require.
Court may vary the order
34.05        An order that an action be maintained as a representative action may be varied upon the application of any party at any time before judgment in the action.
Common questions to be determined in the common proceedings and individual questions as directed in separate hearings
34.06        Questions which are common to the group shall be determined in common proceedings, and questions that require the participation of individual members of the group may be directed to be dealt with either in separate actions or by separate trials within the action.
Derivative actions not affected
34.07        Nothing in this Rule affects the bringing of derivative actions in relation to bodies corporate.
General power to allow representatives for parties
34.08        In addition to the rights and remedies given by the preceding subrules, where numerous persons have the same interest in any proceedings, the proceedings may be brought, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
In proceedings under 34.08 power to appoint a representative for the defendants
34.09        At any stage of proceedings under Rule 34.08 the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing the defendants who are sued, to represent all, or all except one or more, of those persons in the proceedings; and where, in exercise of the power conferred by this Rule, the Court appoints a person not named as a defendant, it shall make an order adding that person as a defendant.
Judgment in proceedings under 34.08 binding on all parties but not to be enforced against a person not a party without leave
34.10        A judgment or order given in proceedings under Rule 34.08 shall be binding on all the persons as representing whom the plaintiffs sue, or, as the case may be, the defendants are sued, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.
Application for leave under 34.10 to be served personally
34.11        An application for leave under Rule 34.10 shall be served personally on the person or persons against whom it is sought to enforce the judgment or order.
Rights of person served under 34.11 to dispute liability
34.12
(1)Any person served with an application under Rule 34.11 may, notwithstanding the binding nature of any order made under Rule 34.10, dispute his liability to have the judgment or order enforced against him on the ground that by reason of facts or matters particular to his case, he is entitled to be exempted from liability.
(2)Any question which arises as to whether a judgment or order made or sought to be made under Rule 34.10 is or ought to be enforceable against the person, or any of the persons, against whom the application is made, may be tried and determined in any manner in which an issue or question in an action may be tried or determined.

The appellant submitted that on its proper interpretation, r 34 provided for the commencement of an action as a representative action, and later consideration by the Court as to whether it will revoke representative status.
In my view, the operation of 6SCR 81 replicates the operation of r 34.01 – 34.07 of the 1987 Rules. I agree with the judge that there was nothing to indicate an intention to radically change the substance of the scheme of representative actions as they operated under the 1987 Rules, in making the 2006 Rules. In my view, both rules contemplated that an action could be commenced as a representative action by a plaintiff, but could only proceed on that basis with the subsequent authorisation of the Court. The textual differences between the two rules, such as they are, do not warrant a conclusion that the representative action was no longer commenced by filing the summons in accordance with 6SCR 81, but would depend upon the making of the authorisation order.
This construction of 6SCR 81 has the further advantage, as the learned judge observed, of harmonising the operation of 6SCR 80 and 6SCR 81 so that both rules provide that the representative action is commenced on the date the action is instituted.
The appellant also submitted that the judge erred in relying upon the authority of Cameron[16] and Fostif.[17]It submitted that the terms of the relevant rules in Queensland and New South Wales were different from 6SCR 81. It submitted that they provided for the commencement of the litigation as a representative proceeding unlike 6SCR 81. This rendered the reasoning in those cases distinguishable.
[16] Cameron v National Mutual Life Association of Australasia Ltd (No. 2) [1992] 1 Qd R 133.
[17] Fostif Pty Ltd v Campbell’s Cash and Carry Pty Ltd [2005] NSWCA 83, (2005) 63 NSWLR 203.
In my view, however, the work to be performed by the respective rules in Queensland under consideration in Cameron, and New South Wales under consideration in Fostif, does not differ in any material sense from the work to be performed by 6SCR 81.
In Cameron the relevant rule provided:[18]
When there are numerous persons having the same interest in the subject matter of a cause or matter, one or more of such persons may sue, and the court or judge may authorise one or more of such persons to be sued, or may direct that one or more of such persons shall defendant, in such cause or matter, on behalf or for the benefit of all persons so interested.
[18] Cameron v National Mutual Life Association of Australasia Ltd (No. 2) [1992] 1 Qd R 133 at 139.
The Full Court of the Supreme Court of Queensland had to consider the application of its limitation of actions legislation, which was relevantly in the same terms as s 35 of the Limitation Act, to unnamed persons on whose behalf the representative proceedings were commenced. McPherson SPJ, with whom Moynihan J agreed, said:[19]
The Rule is expressed in the well known terms originating in the rules made under the Judicature Act 1873 (Eng.) authorising one or more of numerous persons having the same interest in the subject matter of a cause to sue “on behalf or for the benefit of all persons so interested …
The problem here concerns the application of the Limitation of Actions Act. Its operation depends not upon whether the unnamed plaintiffs were “parties” to the action but on whether they brought an action. Whether or not they were parties may perhaps assist in resolving the problem, but is not decisive of the matter.
By s.10 of the Limitation of Actions Act:
“(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action arose –
(a) an action founded on contract … or tort …”
The section uses the expression “action brought”. It does not say that the plaintiff must bring the action, although that must needs be implicit in the requirement …
The writ issued in this action on 22 December 1988 does not name the plaintiffs to whom Dowsett J on 5 March 1990 gave leave to accede to the action as named co-plaintiffs. The question then is whether, although they were not previously named, they nevertheless “brought” the action commenced on 22 December 1988. That falls to be decided according to the language of O. 3 r. 10. It says that one or more numerous persons “may sue … on behalf … of all persons so interested” … The terms of O. 3 r. 10 thus apply to bringing an action, and to doing so “on behalf of all persons … so interested”. The rule, it will be seen, makes no distinction between named plaintiffs and unnamed plaintiffs. The action is brought by one or more persons on behalf of them all. In view of this, I do not think it possible to say that the action is brought by or on behalf of the named plaintiff or plaintiffs but not by or on behalf of those not named. In terms of the rule and of s. 10(1) of the Limitation of Actions Act, the action is “brought” on behalf of all them. On that view of the matter the plaintiffs, both those named and those represented but not named, brought this action when the writ was sealed on 22 December 1988.
[19] Cameron v National Mutual Life Association of Australasia Ltd (No. 2) [1992] 1 Qd R 133 at 134 and 136-137.
In Fostif, the New South Wales Court of Appeal followed Cameron. Mason P, with whom Sheller and Hodgson JA agreed, held that the relevant New South Wales rule was similar to the Queensland rule. He said:[20]
Like McPherson SPJ, I consider that status as a party is not critical to the application of the Limitation Act to representative proceedings that are properly constituted. In New South Wales it is the rules of court which determine when an action is begun for the purposes of the Limitation Act (Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 720, per Gleeson CJ). Where Pt 8, r 13 is properly engaged, the proceedings are in terms “commenced … by [the lead plaintiff] as representing [the persons having the same interest in the proceedings]”. In other words, the limitation clock stops for the whole group (see also American Pipe & Construction Co v Utah 414 US 538 (1974)). This conclusion about the Limitation Act is consonant with the principle that represented persons are bound by the outcome of issues decided in the representative proceedings (see below).
[20] Fostif Pty Ltd v Campbell’s Cash and Carry Pty Ltd [2005] NSWCA 83 at [44], (2005) 63 NSWLR 203 at 214.
In my view, the learned judge did not err in relying upon the reasoning in Cameron and Fostif.
Mr Doyle, counsel for the South Australian Country Fire Service, the second defendant to the action but a respondent to the appeal, in supporting the appellant, submitted that unless and until an authorisation order was made in respect of a group member, that group member cannot be taken to have commenced an action in tort for the purposes of s 35(c) of the Limitation Act, and since an order for authorisation would not retrospectively cure the expiration of a time limit, there was no utility in granting the authorisation and the learned judge erred in doing so. Because of the importance the law accords to compliance with statutory time limits, as reflected in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor,[21] he submitted the Court should not construe 6SCR 81 in a manner which would deprive the defendants of the protection of the limitation period prescribed by s 35(c) of the Limitation Act.
[21] [1996] HCA 25, (1996) 186 CLR 541.
Mr Doyle developed this submission on the basis that the Court, in the exercise of its discretion pursuant to 6SCR 81, in deciding whether to make an authorisation order where the limitation period had expired, could have regard to the provisions of s 48 of the Limitation Act in deciding whether to make the order, although the learned judge was not asked to do so in this case.
The difficulty with this submission is apparent from a consideration of the terms of s 48 which provides:
48—General power to extend periods of limitation
(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a)     instituting an action; or
(b)     doing any act, or taking any step in an action; or
(c)     doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
…
(3)     This section does not—
(a)     apply to criminal proceedings; or
(b)     empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—
(i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii) that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
…
(Emphasis added).
In deciding whether to grant an extension of time, the Court, pursuant to s 48(3) must be satisfied that facts material to the plaintiff’s case were ascertained by the plaintiff in the period of twelve months preceding the expiry of the limitation period or within twelve months preceding the institution of the action. Section 48(3) is unconcerned with the conduct of persons who are not a plaintiff in an action governed by 6SCR 81 but who form part of the group on whose behalf the plaintiff has brought the action.
In my view, this is a strong contra indication against the construction contended for by the Country Fire Service. It is not a question of construing the rule in a manner which detracts from the accrued but inchoate right the expiry of a limitation period confers upon a defendant. Rather, it is a matter of identifying the action to which the provisions of s 35 of the Limitation Act applies. That is the representative action commenced by the plaintiff. For the reasons set out above, that representative action commenced within time. In no sense can the group members be considered to have commenced an action in tort within the meaning of the Limitation Act. They are not plaintiffs. They are merely the beneficiaries of the representative action commenced by the plaintiff.
For these reasons, the action brought by the plaintiff as a representative action in accordance with 6SCR 81 was commenced within time. The representative action has been brought by the plaintiff on behalf of the group. It is the only action to which the Limitation Act applies.
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 but who were not specified group claimants (ie, the rest of the group members)?
I turn now to the question of the definition of the group members.
The appellant sought to draw a distinction between the 285 specified group claimants identified in the schedule to the statement of claim and the other group members. There is no basis for such a distinction. Pursuant to 6SCR 81(5)(a), the order authorising the plaintiff to proceed with his action as a representative action defined the group on whose behalf the action has been brought. It is that group, as defined by the learned judge in the authorisation order,[22] on whose behalf the action was commenced by the plaintiff on 21 December 2010. The identification of a group in the summons and/or statement of claim cannot limit the power conferred on the Court by sub-rule (5)(a) to define the group. In this case, the group members are the defined group.
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?
[22] Case book page 338 order 2 dated 28 February 2013.
The appellant contends that the construction of 6SCR 81 adopted by the learned judge is repugnant to s 35(c) of the Limitation Act because it permits a person to maintain an action in tort as claimant, even if they have done nothing to prosecute that action within six years of the cause of action accruing.
The appellant puts this submission on the basis that 6SCR 81 is delegated legislation. He calls in aid the principle that delegated legislation that is repugnant to the general law is, to the extent of its repugnancy, invalid. For these purposes, the “general law” includes other acts of the same parliament.[23] He contends that as the construction of 6SCR 81 adopted by the learned judge allows non-parties to subvert the effect of s 35(c), the rule is ultra vires the rulemaking power conferred on the Court by s 72 of the Supreme Court Act.
[23] Stevens v Perrett (1935) 53 CLR 449; Powell v May [1946] KB 330.
I reject this submission.
Accepting, for the sake of argument, as the learned judge did, the basic premise of the submission, the appellant’s argument founders on the conclusion that 6SCR 81 does not save a representative action that is statute barred by s 35(c) of the Limitation Act. But this action was not statute barred.
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.