D. The Relation Back Amendment
44 Ground 2 in the draft notice of appeal includes contentions that the primary judge's discretion miscarried in failing to order that the amendment should take effect from the date of the order because the primary judge: (a) failed to take into account a material consideration, namely that each new group member had a different accrual date for their causes of action; and (b) acted upon a wrong principle or took into account an irrelevant matter, namely "that the usual position is that an amendment to a pleading or originating process takes effect from the commencement of the proceeding", when the primary judge was determining an amendment that expanded class membership.
45 Given the misapprehension as to class composition, it was understandable that before the primary judge, the respondents emphasised the fact that each new class member had a different accrual date for their cause of action sounding in monetary relief. The respondents have pleaded various limitation provisions as against all group members (although why it is presently necessary to plead defences to individual claims for group members whose claims are not being determined at the initial trial is unclear). In any event, by allowing the Group Definition Amendment to relate back, it was said that the primary judge deprived the respondents from relying on those limitation provisions as against the new class members. This was thought to be relevant as all the consumer claim limitation provisions are three years fixed by reference to when the group member became aware, or ought to have become aware, of matters relevant to the accrual of a cause of action (the so-called "discoverability" provisions). The claims in negligence, of course, will be governed by the applicable State or Territory limitation legislation picked up under s 79 of the Judiciary Act 1903 (Cth).
46 By way of example, the respondents asserted that they will not be able to argue that an individual with an implantation date in 2013 and a pleaded complication in 2014 is barred from bringing a claim under cl 143 of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) because the amendment is taken to have been made on 15 October 2012. This ignores the fact, explained above, that such a person became a group member by the filing of a second further amended originating application pursuant to an order made amending the group definition in October 2015 (provided they met the other criteria in that group definition as at the amendment date).
47 Be that as it may, the point of principle raised by the respondents has substance for two reasons. The first is that it is somewhat an overgeneralisation to say that the "usual position" is that an amendment of a statement of claim takes effect from the commencement of the proceeding. As Perram J explained in Voxson Pty Ltd v Telstra Corporation Limited (No 7) [2017] FCA 267; 343 ALR 681, the former rules provided that a respondent should not generally lose its right to a successful limitation defence where an amendment arose out of facts which were not substantially the same by making provision for an "otherwise order": see former O 13, r 3A. Notwithstanding the new rules were not intended to operate differently, there is no analogue under the current rules to the former O 13, r 3A. Although it is undoubtedly the case in ordinary inter partes litigation, that amendments often take effect from the commencement of the proceeding, this is in circumstances where the amendment is to add a claim between existing parties that arises out of the same or substantially the same facts. This flexibility operates as an amelioration of the rule of practice established by Weldon v Neal (1887) 19 QBD 394. As the case law has developed, to the extent that there is a usual position, it is as explained by Brereton J in Street & 7 v Luna Park Sydney Pty Ltd [2006] NSWSC 230 at [46] to [47]:
It is true that ordinarily "an amendment, duly made, takes effect, not from the date the amendment is made, but from the date of the original document which it amends" [Baldry v Jackson [1976] 2 NSWLR 415, 419 (Samuels JA)]. Since Baldry v Jackson, there has been considerable judicial discussion of this "relation-back" doctrine, in the context of limitation periods [Liff v Peasley [1980] 1 All ER 623, 641-643 (CA); [1980] 1 WLR 781, 802-804; Ketteman v Hansel Properties Ltd [1987] AC 189 (HL); Wenham v General Credits Ltd (NSWSC, McLelland J, 16 December 1988, unreported); Fernance v Nominal Defendant (1989) 17 NSWLR 710 (NSWSC); Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, 559-562 (HCA); Morgan v Banning (1999) 20 WAR 474 (WASC, FC); Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63 (VCA); Agtrack (NT) Pty Ltd v Hatfield (2005) 218 ALR 677 (HCA)]. Generally, these cases have dealt with the relation-back doctrine in the context of two categories of amendments: those which would add a new defendant after the applicable limitation period against that defendant had expired, and those which would introduce a new cause of action after the limitation period for its commencement had expired.
As to the first, it is clear that the relation-back principle does not apply to an amendment which adds a party: where a party is added, proceedings against it are commenced only at the date of its joinder, so that the relation-back doctrine does not deprive a party joined after expiry of a limitation period of its limitation defence [Liff v Peasley; Ketteman v Hansel Properties; Wenham v General Credits; Fernance v Nominal Defendant].
48 These principles were referred to in the different context of representative proceedings by Perram J in Gibson at [33], where his Honour articulated that "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".
49 The second difficulty is more significant and relates to the inaptness, or at least the limitations of, drawing analogies between aspects of ordinary inter partes litigation and Part IVA procedures. Although s 33ZG provides that nothing in Part IVA affects the Court's powers under other provisions, Part IVA provides its own bespoke and detailed regime and, in significant respects, the evident purpose of the Part is to displace generally understood procedures: see Wong v Silkfield Pty Ltd [1999] HCA 48; 199 CLR 255 at 260-261 [11] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
50 By the amendment of a group definition, a new group member affected is not becoming a party, still less is the group member an existing party seeking to bring a new cause of action arising out of similar circumstances. The legal consequence is that the claim of a new group member, which claim gives rise to at least one substantial issue of law or fact with others, has become subject to the operation of the Part, subject to opt out or declassing. When one recognises that the regime expressly contemplates and provides for the individuality of claims within a group proceeding, what is brought into focus is that an order for amendment, which has the consequence of expanding the group definition, is sui generis and that analogies drawn from other contexts are apt to mislead.
51 It is consistent with the scheme introduced by Part 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, being the date of filing of the 5FASOC. To adopt that course is consistent with the expansion of the class effected by the earlier Amendment Orders which, unfortunately, were not drawn to the attention of the primary judge in the present context. 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 either extinguished or barred by operation of statute and could not otherwise be advanced by that claimant.
52 Before leaving this topic it is worth making a further point. 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.