Plaintiffs v Defendant

GROUP PROCEEDINGS - Whether the plaintiff have leave to amend the group member definition in the amended statement of claim - Suspension of limitation period upon the commencement of a group proceeding - Supreme Court Act 1986 (Vic) ss 33C, 33K, 33ZE.

1 The plaintiffs, Tracey Leigh Hepi and Eru Martin Hepi ('Hepi') apply for leave to file a further amended writ and amended statement of claim which provides for:

(a) the joinder pursuant to rr 9.02 and 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') of a new defendant, Aioi Nissay Dowa Company Australia Pty Ltd ('ADICA');

(b) the amendment to the statement of claim pursuant to r 36.01 of the Rules so as to add new claims ('add-on insurance claims') against the defendant, Toyota Finance Australia Ltd ('Toyota'), and ADICA in relation to the sale of insurance which was 'added on' ('add-on insurance') to car loans obtained by Hepi on their own behalf and representative plaintiffs from Toyota's authorised dealers ('dealers');

(c) the amendment of the group member definition pursuant to s 33K of the _Supreme Court Act 1986 (_Vic) ('Supreme Court Act') to include additional group members comprising those who have add-on insurance claims against both Toyota and ADICA ('Insurance Group Members').

2 The proposed amendments are contained in a proposed amended statement of claim ('proposed ASOC') annexed to the summons filed 30 October 2024 ('summons') and supported by two affidavits of Andrew Paull, solicitor made 22 November 2024 and 18 December 2024. Mr Paull is a director of Echo Law, the plaintiffs' solicitors and has the care and conduct of this proceeding on behalf of the plaintiffs.

3 Toyota opposes the application and relies upon the affidavit of Ross David McInnes made 5 December 2024 ('the McInnes affidavit'). Mr McInnes is a partner of Clayton Utz which acts for Toyota in the proceeding. ADICA also opposes the application.

4 On 16 June 2023, Belinda Jenner, as a representative plaintiff, commenced this proceeding by filing a generally endorsed writ.

5 By orders made 25 March 2024, Hepi was substituted for Ms Jenner as representative plaintiffs and on 2 April 2024, Hepi filed an amended writ and a statement of claim which alleged, inter alia, that Toyota did not disclose to customers the existence or content of flex commission arrangements entered between Toyota and dealers ('flex claims'). Hepi sought relief on a variety of bases in substance for the losses said to have been caused by the provision of credit to customers on which flex commissions were payable. Flex commissions are payments made by Toyota to the dealer of an amount which represents the difference between a base interest rate set by Toyota on car loans which were provided by dealers to customers from 1 January 2010 to 31 October 2018 and a higher contract rate set out in the car loan arranged by the dealer with the customer. The amended writ and statement of claim alleged breaches of the National Consumer Credit Protection Act 2009 (Cth) ('NCCP Act'), the Corporations Act 2001 (Cth) ('Corporations Act'), the Australian Securities and Investments Commission Act 2001 (Cth) ('ASIC Act') and an entitlement to restitution on the basis of alleged unjust enrichment.

6 On 31 May 2024, Toyota filed a defence denying liability for the flex claims. In the defence, Toyota among other things raised a series of limitation defences including in respect of car loans entered into prior to 16 June 2017, which is six years prior to the filing of the writ.

7 By letter dated 7 August 2024, Hepi notified Toyota of a proposal to amend the statement of claim so as to incorporate the add-on insurance claims. The add-on insurance claims related to the sale of add-on insurance products distributed between 1 January 2010 and 'mid-2021'. Hepi indicated that the proposed inclusion of the add-on insurance claims would introduce a cohort of Toyota add-on insurance consumers who are not currently group members in the proceeding. This was for one of two reasons; either they entered into a car loan during the period from 1 January 2010 to 31 October 2018 but do not fall within the existing group member definition as no flex commission was paid in respect of their car loan or they entered into their car loan outside that period.

8 On 13 August 2024, Toyota raised several concerns about the proposed pleading amendments, including that the proposed amendments did not appear to satisfy the procedural requirements of Pt 4A the Supreme Court Act and in particular the threshold requirements specified in s 33C(1).

9 Toyota also observed that because the proposed amendments would require amendment to the group member definition, the applicable limitation date should be calculated by reference to the date of any amendment and not the date the proceeding was commenced.

10 On 18 September 2024, Hepi provided Toyota with a draft version of the proposed ASOC. Relevantly, the draft version of the proposed ASOC:

(a) proposed amendments to the Hepi's misleading or deceptive conduct, unfair conduct, unjust transactions and unjust enrichment claims to incorporate the add-on insurance claims and proposed the addition of two further causes of action relating to the sale of the add-on insurance products (namely, unconscionable conduct and inappropriate personal advice);

(b) sought to join ADICA as the second defendant to the proceeding in respect of the sale of the add-on insurance products.

11 On 2 October 2024, Hepi filed a writ commencing proceeding number S ECI 2024 05243 ('2024 proceeding') against Toyota and ADICA. The writ contained a general indorsement. The general indorsement stated that the 2024 proceeding had been commenced by Hepi on behalf of persons who had entered into car loans with Toyota between 1 January 2010 and 5 October 2021 (or where the discussions concerning the car loan had occurred during that period) where a flex commission was paid to the dealer and where the car loan included premiums for the add-on insurance products. It also included persons whose car loan was entered into on or after 1 November 2018 and included premiums for add-on insurance products but where no flex commission was paid.

12 On 11 October 2024, Toyota advised that it did not consent to the filing of the draft proposed ASOC. Among other things, Toyota asserted that the draft proposed ASOC included two entirely different groups of claims (namely the flex claims and the add-on insurance claims) with different claim periods, limitation periods and distinct group members. Relevantly, Toyota observed that flex commissions were not paid after 31 October 2018 and that Hepi's car loan had been entered into on 18 December 2017. As to the different limitation periods, Toyota asserted that the amendment to the group definition would take effect from the date any amended statement of claim was filed and directed Hepi's attention to the decision of the Full Court of the Federal Court in Ethicon Sarl v Gill[1] ('Ethicon Sarl') and of Macaulay J in this Court in Andrianakis v Uber Technologies (Ruling No 2)[2] ('Uber Technologies').

13 Although Hepi took no steps to serve the 2024 proceeding on either defendant, it had come to Toyota's attention by 24 October 2024. It wrote to Hepi asserting that the 2024 proceeding was an abuse of process as Toyota should not be vexed with two actions involving the same conduct, which would be the case if the amendments sought in the draft proposed ASOC were granted. It suggested that Hepi should abandon the proposed amendments and if it wanted pursue the 2024 proceeding. Alternatively, Hepi should abandon the 2024 proceeding and make its amendment application in this proceeding.

14 On 25 October 2024, Hepi enclosed an amended version of the draft proposed ASOC, namely the proposed ASOC, which is the subject of the summons.

Relevant rules and legislative provisions in the Supreme Court Act

15 Consideration of the plaintiffs' application requires consideration of rr 9.02, 9.06, 9.11 and 36.01 of the Rules and s 34 of the Limitation of Actions Act 1958 (Vic) ('Limitations Act').

16 Rules 9.02, 9.06 and 9.11 provide relevantly as follows:

9.02 Permissive joinder of parties

Two or more persons may be joined as plaintiffs or defendants in any proceeding -

(a) where -

(i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; or

(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b) where the Court, before or after the joinder, gives leave to do so.

9.06 Addition, removal, substitution of party

At any stage of a proceeding the Court may order that -

...

(b) any of the following persons be added as a party -

(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or

(ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding.

9.11 Amendment of proceeding after change of party

(1) Where an order is made under Rule 9.06 or 9.08 -

(a) the writ or other originating process filed in the Court shall, subject to Rule 27.02(5) and (6), be amended accordingly within the time specified in the order, and otherwise within 10 days after the making of the order; and

(b) a reference to the order, the date of the order and the date on which the amendment is made shall be indorsed upon such originating process.

(2) The filing of a copy of the originating process amended and indorsed as required by paragraph (1) shall be a sufficient compliance with that paragraph.

(3) Where an order is made under Rule 9.06 or 9.08 adding or substituting a person as defendant -

(a) the proceeding against the new defendant commences upon the amendment of the filed originating process in accordance with paragraph (1) or (2);

(1) For the purpose of -

(a) determining the real question in controversy between the parties to any proceeding; or

(b) correcting any defect or error in any proceeding; or

(c) avoiding multiplicity of proceedings -

the Court may, at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.

(a) originating process;

(b) an indorsement of claim on originating process; and

(c) a pleading.

(6) Notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, the Court may make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of that party's claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.

Abrogation of rule in Weldon v. Neal [1887] UKLawRpKQB 161; (1887) 19 Q.B.D. 394

(1) If a court would, but for the expiry of any relevant period of limitation after the day a proceeding in the court has commenced, allow a party to amend a document in the proceeding, the court must allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise.

(2) This section does not apply to an amendment in a proceeding commenced before 1 January 1987.

19 Hepi emphasises that the joinder discretion conferred by r 9.02(b) is in wide and ample terms. It submits that the Court should take the course most conducive to the just resolution of the dispute between the parties, having regard to the desirability of reducing, as far as practicable, costs and delayed litigation.[3]

20 Hepi draws attention to the summary of relevant factors set out by Dixon J in Lee v Korean Society of Victoria Australia Inc:[4]

(a) whether there would be common evidence or common questions of fact and law;

(b) the public interest and the need to avoid multiplicity of proceedings;

(c) unfairness or prejudice to any party, understood in the context of the Court's powers to manage the proceeding so as to address or minimise any prejudicial consequences;

(d) delay is relevant but is not decisive and should be explained to enable a rational assessment of competing considerations;

(e) unless the claim against the proposed defendant is obviously bad in law or futile, the merits of the claim are not a decisive consideration. The Court would not refuse to allow an amendment because it raised a claim that ought not to succeed for this will be an issue at trial.

21 In relation to Hepi's reliance upon r 9.06(b)(ii), Hepi submits that an applicant seeking to rely upon the sub-section must establish that:

(a) there are two entities, namely the person to be added and a party to the proceeding;

(b) between the two entities, there may exist a question arising out of or relating to or connected with any claim in the proceeding;

(c) it is just and convenient to determine that question between the proposed party and the other party as well as between the parties to the proceeding.[5]

22 Hepi emphasises that the word 'question' in r 9.06(b)(ii) is defined broadly and includes any question of fact or law[6] and is not to be conflated with a cause of action.[7] As Nichols J noted in FNH United Pty Ltd v United Petroleum Franchise Pty Ltd,[8] the same question of fact may properly inform two different causes of action between two sets of parties.[9] To similar effect, her Honour recognised that 'if there exists a 'common' factual question (ie, one which requires determination between the proposed new party and an existing party, as well as between the existing parties to the proceeding) then the question is at least related to or connected with an existing claim in the proceeding'.[10]

23 The expression 'arising out of', 'relating to' or 'connected with' has been said to encompass three types of relationships between the relevant question and a claim in the proceeding in a spectrum of decreasing closeness. The expressions 'relating to' and 'connected with' are also open to a broad interpretation.

24 Hepi emphasises that the third requirement of the rule, namely whether it is just and convenient to determine the question between the proposed party to be added and a party as well as between existing parties is an enquiry which must of necessity be made with regard to the circumstances of the proceeding as a whole.

25 In support of the application, Hepi submits that the proposed ASOC reveals a substantial common factual substratum underpinning the claims of Hepi and the group members against Toyota and ADICA because the claims against both arise from either:

(a) the conduct of dealers alleged to have been agents for both Toyota and ADICA respectively in the sale of car loans with flex commissions and in the sale of add-on insurance; and/or

(b) the conduct of Toyota, who is alleged to have been the agent of ADICA, in the issue of add-on insurance to group members.

26 Accordingly, Hepi submits that the claims against Toyota and ADICA will give rise to at least the following questions which satisfy the requirement in r 9.06(b)(ii) that there must exist a question arising out of or relating to or connected with any claim:

(a) What was the car loan process that was adopted by dealers when transacting with group members?

(b) What disclosures or representations were made by dealers/Toyota (or not) when transacting with group members? In particular, what were group members told in respect of both flex commissions and add-on insurance, and the incentives being received by dealers as a result of the car loan transactions; such incentives includes both flex commissions and commissions paid for the sale of add-on insurance.

(c) Did dealers give 'personal financial advice' to insurance group members within the meaning of the Corporations Act and, if so, did that advice contravene relevant requirements in the Corporations Act? Both Toyota and ADICA are said to be liable for such contraventions as a result of their agency relationship/s with dealers.

(d) Was Toyota's conduct (including non-disclosures and other conduct in respect of both flex commissions and add-on insurance) unconscionable conduct? ADICA is also alleged to have engaged in such conduct that may be found to have been engaged in by its agent, Toyota (pursuant to s 12GH of the ASIC Act).

(e) What is the quantum of loss incurred by group members in the form of premiums paid by group members (and interest on such amounts) arising from the alleged contraventions? Such losses include additional interest paid on car loans as a result of add-on insurance being funded by these loans.

27 Hepi submits that a joinder avoids multiplicity of proceedings and that if the current amendments/joinder are not permitted, the 2024 proceeding will self-evidently give rise to multiplicity of proceedings and attendant overlap or duplication of interlocutory steps such as discovery, the process for group members to be notified and given the opportunity to opt-out, the evidence to be led by Hepi, and if settlement is reached the distribution process. Hepi otherwise submits that joinder avoids the risk of inconsistent findings if the claims against ADICA proceed by way of separate proceedings and argues that joinder will give rise to little to no prejudice to Toyota given that the proceeding is at an early stage.

28 Regarding discovery, Mr Paull deposes to a belief that there is likely to be a significant overlap in the categories of documents produced by Toyota and ADICA, as well as the repository searches by Toyota and ADICA when meeting their discovery obligations for the flex claims and add-on insurance claims. He makes particular reference to Hepi's intention to seek discovery of the training materials which were provided by Toyota to dealerships to assist with the provision of finance and sale of insurance.

29 In relation to duplication of costs from conducting two separate opt-out processes, Mr Paull deposes to an expectation that there will be significant overlap in persons who are current group members with flex claims and those who have add-on insurance claims. He states that a separate, additional opt-out process would lead to unnecessary and increased expenses and inefficiencies. He deposes that a single opt-out process would be a more efficient use of the parties' and the Court's time and resources.

30 Mr Paull further deposes to his expectation that there will be significant overlap in the evidence which will be led in respect of the flex claims and add-on insurance claims. He states that sample group members will likely be called to give evidence relating to their experience with dealers and dealer representatives when acquiring finance and add-on insurance. If separate proceedings continue, the sample group members may have to give evidence twice, leading to duplicated efforts and increased costs. Additionally, Mr Paull highlights an overlap in the evidence to be led regarding the loss suffered by Hepi and group members because the premiums for add-on insurance products were bundled into the loans. This meant that Hepi and group members paid interest on their premiums (and for those persons with flex claims at an inflated interest rate), which interest expenses would form part of their claimed losses.

31 Hepi argues that if the flex claims and add-on insurance claims are advanced in separate proceedings and settlements were reached, each would require its own settlement approval process and its own subsequent settlement distribution scheme.

32 As to the amendment of the statement of claim, Hepi submits that the proposed amendments fall within the ambit of r 36.01(1) and that in such circumstances the threshold requirements for commencement of a group proceeding specified in s 33C of the Supreme Court Act do not arise.

33 However, to the extent to which s 33C is relevant, it is satisfied given the liberal approach to the interpretation of sub-ss 33C(1)(b) and (c). Hepi emphasises that the claim of one group member need not be based on the same conduct as the claim of another group member and may arise out of a separate and different transaction as long as the threshold elements of sub-ss 33(1)(c)(b) and(c) are satisfied.[11] Hepi submits that s 33C(1) does not require that each group member has a claim against each defendant.[12]

34 Hepi also submits that it should be given leave to amend the writ so as to alter the description of the group so as to include those persons affected by the add-on insurance claims who are not already caught by the current group.

35 In relation to the commencement date of the add-on insurance claims, Hepi draws a distinction between three categories of claims; the claims brought by the original group members against Toyota, the claims of new group members and the commencement of the add-on insurance claims against ADICA.

36 In relation to the claims brought by the original group members against Toyota, Hepi argues that r 36.01(6) must be interpreted beneficially and that when read in the light of s 34(1) of the Limitations Act, the loss of any limitation defence is not a relevant form of prejudice. Such loss must be put to one side as it would undermine the abrogation of the rule in Weldon v Neal[13] which Parliament expressly legislated for in both r 36.01(6) and s 34 of the Limitations Act. Hepi then argues that the amendment to the statement of claim relates back to the date of the document, not the date of amendment. In doing so, it rejects any suggestion that the 'relation-back rule' only applies where the amendments introduce claims that 'arise out of the same facts or substantially the same facts as support the claims already pleaded',[14] as suggested by Ormiston JA, with whom Chernov JA and O'Bryan JJA agreed, in Agtrack (NT) Pty Ltd t/as Spring Air v Hatfield[15] ('Agtrack').

37 Regarding the second category of add-on insurance claims, being those brought by the new group members, Hepi accepts that their claims will generally be considered to commence from the date of the amendment.[16] However, Hepi also notes that the Court can exercise its discretion to grant leave for the amendment to relate back such as where it would be just or appropriate to ensure that justice is done in the proceeding.[17]

38 In relation to the third category of add-on insurance claims, being those of all group members (original and new) against ADICA, Hepi accepts that the effect of r 9.11(3)(a) of the Rules is that the proceeding against ADICA commences on the filing of the amended writ and that in those circumstances, ADICA may avail itself of certain statutory limitations defences. Hepi stresses however that this does not mean that they do not have any claims against ADICA, even allowing for the fact that the Hepi car loan was entered into on 18 December 2017, given the equitable claims against ADICA.

39 There is no real dispute as to the relevant principles but Toyota and ADICA submit that the proper exercise of discretion is such that the application should be refused. First, Toyota submits that allowing the amendments would cause significant inefficiencies which could readily be avoided by leaving Hepi or another representative plaintiff to pursue the add-on insurance claims in the 2024 proceeding. Toyota draws attention to the fact that the flex commission claims relate to the period from 1 January 2010 to 31 October 2018 ('First Relevant Period') arguing that the new claims against Toyota and ADICA relate to the period from 2 October 2018 to 5 October 2021 ('Second Relevant Period'). As will be explained later, the significance of the 2 October 2018 date is that it is six years prior to the commencement of the 2024 proceeding. As such, Toyota submits that there is a maximum overlapping period of just 29 days between the flex commission claims and the add-on insurance claims.

40 Secondly, Toyota submits that the flex claims and the add-on insurance claims are factually and legally distinct and that any attempt to combine them in one proceeding will cause unnecessary complexity and costs. Toyota submits that Hepi's characterisation of the asserted commonality boils down simply to saying that both sets of claims involve 'the conduct of dealers' and 'the conduct of Toyota'. Toyota submits that when attention is given more closely to the nature of the two claims, any overlap is superficial. In particular, Toyota points out that the foundation of the flex claims is the arrangements between it and dealers in respect of the payment to dealers of 'flex commissions' and the alleged non-disclosure of those commissions to customers during the First Relevant Period. In contrast, the foundation of the add-on insurance claims is the interactions between dealers and their customers in respect of the sale of the add-on insurance products and the alleged lack of suitability, value and benefit of those products to 'some customers depending on their individual circumstances' during the Second Relevant Period. Relatedly, Toyota submits that credit and insurance are distinct products which are governed by different legislation and were treated by Toyota as distinct. In connection with the separation of products, Toyota held difference licences (including an Australian credit licence to offer finance products and Australian financial services licence to distribute insurance products) and had separate arrangements in place with dealers (including an arrangement known as a trade agreement in relation to finance and an agreement known as an authorised representative agreement in relation to insurance).

41 Thirdly, Toyota submits that amendment would have the effect that Hepi's add-on insurance claims are statute barred and as such a new representative plaintiff will have to be identified to pursue the add-on insurance claims. Relatedly, it submits that the commencement date for the add-on insurance claims should be the date of the amendments (if leave to amend is granted) and not relate back to the date of the commencement of this proceeding.

42 ADICA's submissions largely mirror those of Toyota. ADICA placed particular emphasis on the fact that Hepi's claims against it are statute barred given that Hepi's car loan was entered into on 18 December 2017, more than six years prior to the date on which any amended writ will be filed against it as the second defendant. ADICA further emphasises that neither Hepi or the group members will suffer prejudice if leave is not granted to join ADICA, given that the 2024 proceeding will remain on foot. Otherwise and relatedly, ADICA submits that if it is joined to this proceeding it will suffer prejudice as it will be embroiled in a proceeding which includes the flex claims with which it has no involvement.

The general indorsement, the existing statement of claim, the 2024 proceeding general indorsement and the proposed ASOC in more detail

43 Before evaluating the parties' submissions, it is useful to examine the claims as presently framed in the proceeding and the 2024 proceeding, as well as the claims sought to be made in the proposed FASOC.

44 The general indorsement states that the plaintiff[18] commenced the proceeding as a group proceeding pursuant to Pt 4A of the Supreme Court Act on her own behalf and on behalf of all persons who had entered into a finance agreement with Toyota obtained through a dealer for the purposes of acquiring an automobile in which a flex commission was paid to the dealer and where the discussions concerning finance and/or the execution of the car loan took place during the First Relevant Period. Flex commission is defined as a percentage of the difference between a base interest rate set by Toyota and the higher contract interest rate set out in the car loan. The dealer received the flex commission. The general indorsement set out a range of claims in broad terms derived from the non-disclosure of the base rate and asserted that the plaintiff was entitled to relief of a varying nature related to the differential between the base rate and the contract rate.

45 The statement of claim states the proceeding has been commenced by Hepi as a group proceeding pursuant to Pt 4A of the Supreme Court Act on their own behalf and on behalf of the group members. The group comprises all persons who entered into a finance agreement for the acquisition of an automobile with Toyota, obtained through a dealer, which was the subject of discussions concerning finance with the dealer and/or executed during the First Relevant Period and in respect of which a flex commission was payable ('Original Group Members').

46 In broad terms, Hepi advances claims on their own behalf and on behalf of the Original Group Members arising from the fact that the dealers procured that Hepi and the Original Group Members entered into car loans which provided for a rate of interest which was higher than the base rate of interest as a result of which Toyota paid the flex commission to the dealer. Hepi complains of the non-disclosure by Toyota through its dealers of, inter alia, the flex commission and alleges that such conduct involved breaches of the NCCP Act, the Corporations Act, the ASIC Act and otherwise gave rise to an entitlement to restitution on the basis of unjust enrichment.

47 The defence filed by Toyota relevantly admits the entering into of agreements between Toyota and the dealers to facilitate the provision of car loans to the Original Group Members, that Toyota set the base interest rates and that where the customer entered into a car loan with an contract rate higher than the base rate, Toyota would pay the dealer a commission.

48 Toyota otherwise denies that its conduct gave rise to breaches of the relevant Acts alleged and asserts various limitation defences. Specifically, it pleads that any claims in relation to any car loans entered into prior to 16 June 2017 are statute barred by reason of s 180A(5) of the NCCP Act, that claims in relation to any car loan that was rescinded, discharged or otherwise came to an end prior to 16 June 2021 are statute barred by reason of s 80(1) of the sch 1 of the NCCP Act (ie, the Credit Code) and that any claims under the Corporations Act or ASIC Act for misleading and deceptive conduct resulting from any car loan entered into prior to 16 June 2017 are statute barred by reason of s 1041(2) of the Corporations Act and s 12GF(2) of the ASIC Act. Lastly, it alleges that claims of unilateral mistake in relation to any car loan entered into prior to 16 June 2017 are statute barred by reason of the various State limitation Acts.

49 The general indorsement which accompanies the writ in the 2024 proceeding alleges that Hepi commenced the proceeding as a group proceeding pursuant to Pt 4A of the Supreme Court Act. The 2024 proceeding was commenced on Hepi's behalf and on behalf of all persons who, inter alia, entered into a finance agreement for the acquisition of an automobile (ie, a car loan with Toyota) which was obtained through a dealer and between 1 January 2010 and 5 October 2021 entered into discussions concerning finance with the dealer and/or the execution of a car loan where a flex commission was paid to the dealer and the car loan funded premiums for various add-on insurance products. The group also extends to those who entered into car loans after 1 November 2018 where the car loan funded premiums for add-on insurance products but where no flex commission was paid.

50 Hepi alleges that ADICA, inter alia, was part of the same corporate group as Toyota, and since 29 November 2013, traded as Toyota Insurance. It otherwise alleges that from at least 1 January 2014 until 5 October 2021, ADICA was the underwriter of the add-on insurance and Toyota was appointed by ADICA during the car loan process as its representative, inter alia, issuing add-on insurance on behalf of ADICA under a binder within the meaning of s 761A of the Corporations Act.

51 Hepi also alleges, inter alia, that the add-on insurance policies were inappropriately sold to Hepi and to group members, that they were of little value or worthless and were misrepresented to consumers as being mandatory rather than optional or were not disclosed at all. Such conduct is alleged to give rise to an entitlement to relief under ss 76 and 77 of the NCCP Act as unjust transactions, misleading or deceptive conduct in breach of s 1041H of the Corporations Act and/or s 12DA(1) of the ASIC Act, unconscionable conduct in breach of s 12CB of the ASIC Act, inappropriate advice in breach of ss 961B and 961G of the Corporations Act and an entitlement to claim for restitution.

52 The proposed ASOC presents as a combination of a statement of claim which pleads out in more detail, the broad allegations made in the indorsement of claim in the 2024 proceeding and makes some changes to the existing statement of claim in this proceeding. Whilst there are some amendments which relate to the existing flex claims, the majority of the amendments relate to the matters the subject of the general indorsement in the 2024 proceeding.

53 For the most part, those parts of the proposed ASOC which condescend to the add-on insurance claims represent a more detailed elucidation of the allegations which currently constitute the general indorsement in the 2024 proceeding. Had a statement of claim been served in the 2024 proceeding, it would (or at least should) have stated the claim set out in the general indorsement in a more specific way. The basic nature of the claim contained in the indorsement cannot be changed but the plaintiff has broad authority to widen, lessen or express in better terms its claim so long as the substance is consistent with the original claims contained in the indorsement.[19]

54 The proposed change to the description of group members from that set out in the statement of claim and the manner in which the flex claims and the add-on insurance claims are pleaded warrants close reading. Only by an analysis of those matters, can the similarity or otherwise of the flex claims and the add-on insurance claims be properly assessed.

55 Section A.1 of the proposed ASOC headed 'The Group Members' pleads to matters relevant to the identification of the group, no doubt in purported compliance with s 33H(2) of the Supreme Court Act which provides:

(2) The indorsement on the writ must, in addition to any other matters required by the Rules to be included -

(a) describe or otherwise identify the group members to whom the proceeding relates; and

(b) specify the nature of the claims made on behalf of the group members and the relief claimed; and

(c) specify the questions or fact common to the claims of the group members.

56 Paragraph 1(a)-(c) identifies the Original Group Members which in effect are those that entered into a car loan in the First Relevant Period pursuant to which a flex commission was paid. Aside from the insertion of the word 'First' and 'Original' there is no change from the statement of claim.

57 Paragraph 1(d) identifies those who entered into a car loan in the Second Relevant Period where the car loan includes premiums for add-on insurance. These persons are described as the 'Further Group Members'. Payment of flex commissions is not a feature of membership and the relevant period for the claims of the Further Group Members is the Second Relevant Period. This paragraph is new and expands the cohort of group members to those whose loans were not the subject of flex commissions.

58 Paragraph 2 pleads that immediately before the commencement of the proceeding there were more than seven Original Group Members and Further Group Members, which are then defined collectively as the 'Group Members'.

59 The overlap between the commencement date of the Second Relevant Period of 2 October 2018 and the end date of the First Relevant Period of 31 October 2018 explains the 29 day overlap period referred to by Toyota in its correspondence with Hepi's solicitors.[20]

60 Paragraphs 4 and 5 are much expanded from the current paragraphs 4 and 5 but essentially so as to incorporate allegations relating to the add-on insurance claims. Paragraph 4 relevantly pleads that Toyota entered into agreements with accredited dealers throughout the First Relevant Period and Second Relevant Period and appointed the dealer's staff as 'Accredited Persons' to arrange car loans and/or add-on insurance. Paragraph 5 pleads the implementation by Toyota of a process where dealers would offer and write car loans and issue add-on insurance during the course of which, inter alia, the dealer or its representative promoted or arranged both car loans and add-on insurance. It further pleads that the dealers collected personal information which was provided to Toyota and if add-on insurance was included, to ADICA.

61 Paragraph 11 introduces the 'Insurance Group Members' who are those who received advice about and/or the issue of add-on insurance products. The Insurance Group Members include Hepi and 'some Group Members'. It is the Insurance Group Members who are the component of the Group Members who have the add-on insurance claims against Toyota and ADICA. The Insurance Group Members therefore comprise Hepi, some Original Group Members,[21] and all of the Further Group Members.

62 Contrary to the submissions of Toyota, the overlap between those with flex claims and those with add-on insurance claims extends beyond those Original Group Members who entered into car loans during the 29 days between 2 October 2018 to 31 October 2018. It extends to those who entered into car loans prior to 2 October 2018 whose car loans were subject to flex commissions and where the loans funded premiums for the add-on insurance.

63 In effect, the Group Members fall into three categories. First, those who entered into car loans in the First Relevant Period in respect of which a flex commission was paid; secondly, those who entered into a car loan in the First Relevant Period whose car loans were the subject of a flex commission and whose car loan included premiums relating to add-on insurance and, thirdly, those who entered into car loans from 2 October 2018 where a flex commission was not paid but the car loan funded premiums for add-on insurance. Hepi falls into the second category but not the third. To return to the definitional approach used in the proposed ASOC, Hepi is both an Original Group Member and hence a Group Member, but is also one of the Insurance Group Members and hence, on Hepi's case, a person with an entitlement to pursue the add-on insurance claims.

64 For the most part, the causes of action advanced on behalf of the Insurance Group Members (which again comprise Hepi, a proportion of the Original Group Members and all the Further Group Members) are separate and distinct from the causes of action which relate to the flex claims. The linkage between the two groups of claims largely relates to the fact that all members of the group dealt with Toyota's appointed dealers. These appointed dealers were participants in the Toyota sales process identified at paragraph 5 in respect of which, and depending on when the car loan was entered into, involved payment by Toyota to the dealer of a flex commission. For some it also involved the promotion of add-on insurance products.

65 The pleading is structured by reference to various sub-headings which conveniently distinguish between the two sets of claims; thus there is a sub-heading for the flex commission misleading and deceptive conduct with attendant allegations followed by a sub-heading for the add-on insurance misleading and deceptive conduct with attendant allegations. As would be expected the essential vice for each type of contravention differs; in the case of the flex commission misleading and deceptive conduct, the essence of the claims by Hepi and the Original Group Members is one of non-disclosure by the dealers of the fact that the contract rate set by the dealers was higher than the base rate in the Toyota's car loans and that the dealers received a commission referable to the difference between the contract rate and the base rate. In contrast, the gist of the misleading and deceptive conduct concerning the add-on insurance relates to the fact that Hepi and some Insurance Group Members, defined as the 'Mislead Insurance Group Members', were not told of the optional nature of the add-on insurance and/or were not told that the add-on insurance products may have been unsuitable to their needs. This was because, inter alia, the add-on insurance overlapped with existing benefits available to each of the Misled Insurance Group Members including through superannuation and otherwise and as they may not have been eligible for such insurance under the terms of the relevant product disclosure statements.

66 That is not to say that there is no overlap. As noted above, the plea in paragraph 5 as to Toyota's process is a plea as to a single process with elements relating to both the promotion and sale of car loans and the add-on insurance products.[22] The overlap is most clearly apparent from the unconscionable conduct allegations in section D.5 which is headed 'Unconscionable conduct'. Hepi pleads separately the unconscionable flex conduct in section D.5.1 and the unconscionable insurance conduct in section D.5.2, but then in D.5.3 Hepi pleads unconscionable conduct generally which relates to both the flex claims and the add-on insurance claims. To put it another way, in section D.5.3 the unconscionable conduct cause of action involves aspects of both the flex claims and the add-on insurance claims. There are various other parts of the plea which have overlapping elements. For example, section D.3 which is headed 'Unjust Transactions' pleads separately allegations of unjust transactions in respect of the flex claims and the add-on insurance claims[23] but there is commonality between the features which make the transaction unjust in the relevant respect such as an inequality of bargaining power and an inability to negotiate.

67 Limitation issues loom large in the proposed ASOC. Illustratively, paragraph 76 of the proposed ASOC reads:

1. The Plaintiffs and Misled Insurance Group Members whose Car Loan or Add-on Insurance was issued, or entered into, during the six-year period:

(a) prior to commencement of this proceeding, may recover their loss and damage pursuant to s 12GF(1) and/or s 12GM(1) of the ASIC Act and/or s 1041I of the Corporations Act from Toyota; and/or

(b) prior to 2 October 2024, may recover their loss and damage pursuant to s 12GF(1) and/or s 12GM(1) of the ASIC Act and/or s 1041I of the Corporations Act from [ADICA].

68 The commencement date of this proceeding was 16 June 2023. By seeking to introduce the add-on insurance claims in this proceeding, Hepi seeks to establish a right to compensation for all Insurance Group Members who entered into car loans from 16 June 2017 onwards. This is the consequence if the amendment is allowed and relates back to the commencement date of this proceeding. In contrast, if the add-on insurance claims were to be prosecuted in the 2024 proceeding, the corresponding period would start six years prior to the commencement date of that proceeding (2 October 2024) which is 2 October 2018, thus reducing the cohort of group members whose claims are prosecuted. Nor is the 2 October 2024 date referred to in paragraph 76(b) of the proposed ASOC and the Further Group Members definition start date of 2 October 2018 merely idiosyncratic. Hepi seeks to rely on the commencement of the 2024 proceeding on 2 October 2024 as giving rise to the suspension of any limitation period by reason of s 33ZE of the Supreme Court Act, for the purposes of this proceeding as against ADICA, notwithstanding that it accepts the proceeding against ADICA will only commence on the filing of an amended writ in this proceeding and by parity of reasoning those entitled to relief would be those who entered into car loans with add-on insurance within the six years prior to the filing of that amended writ.[24]

69 The proposed ASOC concludes with the identification of the common questions of law or fact. Relevantly, the proposed common questions of law or fact in the existing pleading have been modified so as to include questions of law or fact which relate to the add-on insurance claims. Insofar as the common questions of law or fact have been otherwise amended, much of the amendments are stylistic such as changes from 'unfair conduct' to 'unfair flex conduct', whilst in other cases, the common question of law or fact has been cast in more general terms so as to encompass matters relevant to both the claims of the Original Group Members and the Further Group Members.

70 In Hepi's oral submissions, they expressed a degree of bemusement as to why Toyota and ADICA opposed the amendment application. Hepi asserts that the case for leave to amend is very strong given the overlap between the flex claims and the add-on insurance claims which both arose out of the sales processes followed by a Toyota dealer. They emphasise that there is no basis to oppose the amendments on 'Aon grounds'[25] given that the proceeding was in its early stages with only pleadings having been served, no discovery or evidence and no imminent trial date. In contrast, Toyota and ADICA, deny any substantial overlap and argued that any alleged overlap or inefficiencies could be satisfactorily dealt with by case managing the 2024 proceeding and this proceeding and in due course, if it became necessary, making orders that the two proceedings be heard at the same time with evidence in one proceeding evidence in the other.

71 Insofar as questions of overlap and efficiency impact on the desirability of amendment so as to add new claims rather than provide for two separate proceedings with complementary case management, questions of efficiency inevitably are influenced by the particular perceptions of each protagonist. It is easy to understand why Hepi and its solicitors see it as more efficient for there to be one proceeding rather than two. In the case of one proceeding and not two, there would only be a need for discovery to be given once, not twice; evidence would only need to be prepared in one proceeding, not two, and so on. Likewise, it is easy to understand why ADICA would consider that separate proceedings are the preferable course given that it has no interest in the flex claims. If there were one proceeding, ADICA argues, the discovery that would be provided by Hepi would inevitably encompass both the flex claims with which it had no interest and the add-on insurance claims which concerned it, with relevantly similar issues applying in relation to evidence. Whilst Toyota may be advantaged in some ways by one proceeding not two, the matters giving rise to inconvenience deposed to by Mr McInnes are rational and cannot be dismissed out of hand.

72 Assessing the desirability of amendment as opposed to the continuation of the two proceedings is also much more finely balanced when the comparison is between two proceedings being case managed together in the early stages, with questions of overlap in the evidence being considered down the track as the evidence develops and the real issues in dispute become clear. Issues such as the overlap of evidence are often best dealt with once the issues become refined. The risk of inconsistent findings and duplication of evidence can be dealt with by both proceedings being heard together with evidence in one proceeding being evidence in the other and vice versa. Any resultant vexing of ADICA by being immersed in a trial which also incorporates the flex claims can sensibly be dealt with by case management and scheduling. There is little practical difference between two proceedings being heard together and an amendment being allowed which effectively combines the two. Even matters such as the sending out of opt-out notices and settlement management can be seen as both in favour of and against the prosecution of one proceeding. Whilst opt-out notices may have to be sent out twice not once, the content of the notices could be easily or arguably more easily set out in two notices not one. In relation to settlement, much depends on the settlement and how it is structured. In any case, it is not possible at this early stage to give this consideration any real significance.

73 The question of the alleged overlap between this proceeding and the 2024 proceeding, and associated questions of efficiency arising from one proceeding not two are largely neutral in circumstances where there are two proceedings on foot, as is the case here, provided limitation issues do not intrude. This is particularly so when the analysis is carried out at an earlier stage, before pleadings have closed, evidence has been put on and the precise extent of overlap and the risk of inconsistency in fact finding is far from easy to determine. By way of illustration, the first two common questions are 'Did Toyota enter into agreements with Dealers and appoint Dealer Representatives as agents and Accredited Persons to arrange Car Loans or Add-on Insurance or both, to the Plaintiffs and Group Members?' and 'Did Toyota implement a process by which Dealer and Dealer Representatives participated in the Car Loan Process?'. These common questions (or substantially the same questions) arise in this proceeding and the 2024 proceeding so there is overlap however one suspects minimal controversy and hence little or no risk of inconsistent findings.

74 However as the argument developed, it became apparent that the key motivation for Hepi's desire to amend the statement of claim in this proceeding and join ADICA rather than prosecuting the 2024 proceeding, was the consequence, so Hepi asserted, that any amendment to the claims brought by Hepi and the Original Group Members so as to add the add-on insurance claims would relate back to the commencement date of this proceeding, ie, 16 June 2023, and not the later date of the commencement of the 2024 proceeding, ie, 2 October 2024. The result being expanding the size of the group members with add-on insurance claims. It would be naïve to think that Toyota's position was not similarly influenced.

75 There is limited utility in examining the critical question solely through the prism of the rules for joinder set out in rr 9.02 and 9.06 of the Rules. If the add-on insurance claims are included by way of amendment to the statement of claim as against Toyota, joinder of ADICA as a defendant is uncontroversial. In any case, the effect of r 9.11 is that the proceeding does not commence against ADICA until the amended writ is filed naming ADICA as the second defendant. So much is conceded by Hepi given the concession that the proceeding against ADICA does not relate back to the commencement of this proceeding on 16 June 2023. The most germane issue on the application is whether the amendments introducing the add-on insurance claims should be allowed as against Toyota and, if allowed, whether they relate back to commencement date of this proceeding. These issues do not directly arise if the analysis is conducted solely through the prism of joinder.

76 The critical question, in view of the limitation questions involved, is whether it is appropriate to give leave to Hepi to amend its statement of claim as against Toyota to include the add-on insurance claims and necessarily, as part of that process, join ADICA as the second defendant and amend the group definition pursuant to s 33K of the Supreme Court Act.

77 The fate of the application, and hence the substantive part of these reasons, therefore focusses on whether Hepi should be permitted to amend its statement of claim in the current proceeding as opposed to being required to pursue the add-on insurance claims against Toyota and ADICA in the 2024 proceeding.

78 If Hepi is so permitted, this will self-evidently be of advantage to Hepi and those other Original Group Members whose car loans were entered into more than six years prior to 2 October 2024.

79 In a letter to Toyota's solicitors dated 25 October 2024, in rejecting the assertion made in an earlier letter from Toyota's solicitors that the add-on insurance claims were time barred, Hepi's solicitors asserted that the limitation period with respect to Hepi's add-on insurance claims was suspended on the commencement of this proceeding, ie, upon the filing of the generally endorsed writ on 16 June 2023, by reason of s 33ZE of the Act.

80 Section 33ZE of the Supreme Court Act provides:

(1) Upon the commencement of a group proceeding, the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended.

(2) The limitation period does not begin to run again unless either the member opts out of the proceeding under section 33J or the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim.[26]

81 This assertion was not advanced directly in Hepi's written outline of submissions filed 22 November 2024. It was addressed briefly in Toyota's written outline of submissions filed 5 December 2024.[27] Given that it was neither responded to in Hepi's written reply submissions filed 18 December 2024 or in oral submissions, it can be taken as not having been pressed. As noted by the Full Court of the Federal Court in Impiombato v BHP Group Limited[28] ('Impiombato'), the meaning of the phrase 'the claim of a group member to which the proceeding relates' has received little consideration.[29] One view, which is the approach advocated by Toyota in its outline is that the phrase refers to those claims that are advanced through the proceeding by the representative party by the originating process and any pleading. The alternative view is that s 33Z applies to all claims of group members that satisfy the conditions in sub-ss 33C(1)(b) and (c). In Impiombato, the Court did not consider it necessary to express any final view on the meaning of the section. In any case, and aside from reliance on s 33ZE not being pressed, it is important to note that the amendment application is one which relates to the claims of Hepi who brings claims on their own behalf and on behalf of group members. In that context, it is not easy to see how the position of the group members could differ from that of the representative party bringing the claims on their behalf.

82 As r 36.01 makes clear, the Court's discretion to order that a statement of claim be amended may be exercised, inter alia, for the purposes of determining the real question in controversy between the parties to any proceeding or avoiding multiplicity of proceedings. Of course in the present case, an amendment to the statement of claim so as to provide for the prosecution of the add-on insurance claims in this proceeding will not in and of itself avoid multiplicity of proceedings. On the contrary, the grant of leave to amend so as to incorporate those allegations in this proceeding will in fact create, not avoid a multiplicity of proceedings given the existence of the 2024 proceeding. Multiplicity will only be avoided once Hepi executes the declared intention to discontinue the 2024 proceeding in the event that leave is granted to amend in the terms of the proposed ASOC. In the lull between the filing of the proposed ASOC and amended writ and the discontinuance of the 2024 proceeding there will be in fact be two proceedings in respect of the same subject matter. In the ordinary course, the existence of a pending proceeding in the Court involving one set of allegations operates as an impediment to the grant of leave in another proceeding to raise relevantly identical allegations. Ordinarily, it will be seen as an abuse of process for a court to be vexed with two proceedings involving the same subject matter and such a course will be perceived as an abuse of process.[30]

83 Putting that temporarily to one side, Hepi invokes sub-r 36.01(1)(a) submitting that the amendment is necessary in order to determine the real question in controversy between parties to the proceeding (viz Hepi and Toyota).

84 In the Rules, 'question' means 'any question, issue or matter for determination by the Court, whether of fact or law or of fact and law, raised by the pleadings or otherwise at any stage of a proceeding by the Court, by any party or by any person not a party who has a sufficient interest'.[31] The words 'the real question in controversy' can include a question not raised by the existing pleadings.[32] It may form part of the controversy between the parties and thus become 'a real question, so as to enliven the jurisdiction of the Court to allow a pleading amendment'.[33] Notwithstanding that the add-on insurance claims are not presently the subject of the statement of claim filed in this proceeding, that absence does not mean that the question of the merit or otherwise of facilitating their inclusion by the grant of leave to amend does not give rise to a relevant question in controversy so as to invoke the Court's discretionary power to make an order for leave to amend. On the contrary, the fact that it is not a current pleaded claim is the very reason for the need to seek leave to amend. No party submitted otherwise.

85 As noted above, the real point of contention is whether, and notwithstanding the complication of the 2024 proceeding, the Court should make an order giving Hepi leave to amend to include the add-on insurance claims so as to bring them in this proceeding notwithstanding that insofar as those claims are now sought to be brought by Hepi and certain of the Original Group members, the relevant limitation period pertaining to at least some or all of the claims sought to be advanced has now expired.

86 Hepi submits that the plain wording of r 36.01(6) of the Rules either alone or in combination with s 34(1) of the Limitations Act is such that prejudice occasioned by the expiry of a relevant period of limitation must be put to one side or, to put it another way, is not relevant prejudice for the purposes of determining whether it is appropriate to grant leave to amend. Hepi argues this is the clear consequence of the express wording contained in r 36.01(6) and s 34 and has been accepted by this Court in various cases notably Willmott Forests Ltd v Armstrong Dubois Pty Ltd[34] ('Willmott') and Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd (No 2)[35] ('Pentridge Village').

87 Hepi argues that r 36.01(6) and s 34 take away a defendant's ability to rely upon the expiry of any relevant period of limitation in respect of an existing proceeding between a plaintiff and a defendant where a plaintiff seeks to raise by way of amendment an arguable claim against a defendant unless the defendant can point to another form of prejudice apart from the expiry of the relevant limitation period. Hepi submits that is so regardless of the nature of the amendment; in other words, it is open to a plaintiff to introduce an entirely new claim in respect of which the limitation period has expired provided the limitation period had not expired at the date of commencement of the proceeding. Hepi argues that if the amendment is granted, the commencement date of the new claim is deemed to relate back to the date of the original commencement of the proceeding.

88 That was not the interpretation of r 36.01(6) of the Rules and/or s 34 of the Limitations Act favoured by the Court of Appeal in Agtrack. Agtrack involved an existing proceeding brought by a plaintiff who sought damages for negligence and breach of contract in respect of the plaintiff's husband's death in a plane crash in the Northern Territory in August 1997. Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ('Carriers' Liability Act') created a scheme of no fault liability damages for losses resulting from injury or death caused by interstate or intra-territory commercial flights. Section 34 of the Carriers' Liability Act provided that the statutory right to damage was extinguished if an action was not brought within two years of the date when the aircraft arrived or ought to have arrived at its destination. Section 35 of the Carriers' Liability Act provided that the statutory liability was imposed in substitution for any civil liability of the carrier under any other law.

89 The proceeding claiming damages for negligence and breach of contract was commenced in January 1999. There was no claim made in reliance on the no fault liability provision under the Carriers' Liability Act. Immediately after the expiration of the two year limitation period applicable to the statutory liability claim, the defendant carrier asserted that the claim was unsustainable by reason of s 35 of the Carriers' Liability Act. The plaintiff sought leave to amend so as to assert the statutory liability claim and asserted that if leave was granted, the statutory liability claim would relate back to the date of commencement of the proceeding, ie, January 1999, and as such the statutory liability claim would not be statute barred.

90 The primary judge allowed the amendment. The Court of Appeal dismissed an appeal against the grant of leave. In the leading judgment of Ormiston JA, with whom Chernov JA and O'Bryan AJA agreed, his Honour considered it appropriate that the Court exercise its discretion to allow the amendment notwithstanding the expiry of the limitation period. Critical to his Honour's reasoning was his view that the amendment should be allowed because there was a 'a close connection between the claim which has already been instituted by the filing of the writ with the indorsed statement of claim and the claim which the respondent wishes to add by way of amendment'.[36]

In essence, for the discretion to be exercised favourably towards her under the rules, the new claim must arise out of the same facts or substantially the same facts as support the claims already pleaded. In truth, there will then be a mere amendment of an existing claim, albeit in the present case it involves a characterisation of the claim in a different way and in the form of a different cause of action, so long as it is a mere recategorisation (or change of legal theory) of the claim or a restatement in different legal terms of the alleged outcome of the essential pleaded facts.[37]

The conclusion was fundamental to his Honour's reasoning including his Honour's detailed consideration that first, the amendment related back to the commencement date of the original proceeding and, secondly, that in those circumstances, it was not necessary for the Court to consider a further argument advanced on behalf of the appellant (defendant) which was to the effect that s 34 of the Limitations Act was inconsistent with Pt IV of the Carriers' Liability Act and hence invalid.

92 It did not matter that a new cause of action was added. According to his Honour:

Technically the correct cause of action was not identified but I would hold that the identification and characterisation of the correct cause of action should be treated as a matter of mere form, capable of ready amendment, so enabling the plaintiff to prosecute a claim which must be known by the defendant to be the only claim capable of being pursued under Pt IV of the Act from the outset of proceedings.[38]

His Honour did not accept (albeit by way of obiter) that the r 36.01(6) of the Rules and s 34 of the Limitations Act gave a Court carte blanche to permit amendments providing for the addition 'years later of stale claims bearing little connection to the original claim'.[39] The position was however different where the amendment sought to 'add or vary a few minor details and to give the existing claim a new characterisation, closely akin and by no means remote from the subject matter of the original claim. That is a true amendment and the kind of which the court ought be free to give effect to'.[40]

93 In oral submissions, Hepi eschewed the restrictions on the types of claim that might attract the favourable grant of leave referred by Ormiston JA. Hepi submitted that insofar as his Honour stated that the new claim must arise out of the same facts or substantially the same facts as support the claims already pleaded, such constraint finds no textual support from the r 36.01(6) or s 34.

94 If Hepi's analysis is correct, then the approach required to be taken by courts in Victoria in applying r 36.01(6) and s 34 is significantly different to that required by statute or rules of court operating in the Federal Court, and some other Australian States.[41]

95 Thus and by way of example, in Queensland, an amendment to a statement of claim so as to add a new cause of action, where the relevant period of limitation was current at the date the proceeding had started but had ended by the time of the amendment, would only be granted if the Court considered 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 by the party applying for leave to make the amendment.[42] Rule 8.21 of the Federal Court Rules 2011 (Cth) is drafted in a relevantly similar way.

96 Likewise, in New South Wales, s 65(2) of the Civil Procedure Act 2005 (NSW) provides that, in substance, at any time after the expiration of the relevant limitation period a plaintiff may amend the originating process (which includes any pleading filed in the proceeding) to add or substitute a new cause of action together with a claim for relief on the new cause of action arising from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.[43]

97 In such jurisdictions, but not so Hepi contends, Victoria, a plaintiff seeking to add a new cause of action which would now be statute barred, must establish that the new claim arises out of the same facts or substantially the same facts as those already pleaded.

98 In the alternative, Hepi argues that the new claim (the add-on insurance claims) in any case satisfies such description.

99 Both r 36.01(6) of the Rules and s 34(1) of the Limitations Act were introduced for the purpose of abrogating the so-called rule in Weldon v Neal. Determining whether Hepi's construction of r 36.01 of the Rules and/or s 34 of the Limitations Act is correct, and the Court of Appeal's fetter on the operation of those provisions inherent in Agtrack is in error, requires examination of, firstly, the rule in Weldon v Neal and the various means by which jurisdictions, most relevantly Victoria, sought to deal with that problem.

100 In Agtrack, Ormiston JA conducted a detailed analysis of the so-called 'rule' in Weldon v Neal, and more particularly how that rule came to be applied in various jurisdictions and in particular in Victoria.[44] As noted above, the controversy arises where a party seeks to amend a statement of claim so as to introduce a claim which is statute barred at the time of the application but would not be statute barred if the amendment relates back to the date of commencement of the proceeding.

101 In Weldon v Neal, Lord Esher MR, with the concurrence of Lindley and Lopes LJJ expressed the Court's view as follows:

We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust.[45]

102 Lord Esher MR allowed only one qualification, namely that under 'very peculiar circumstances'[46] a court might have power to allow such an amendment.

103 As Ormiston JA noted in Agtrack, , there was a lack of clarity as to what amounted to a 'new cause of action'. Recently, Leeming JA of the Court of Appeal in New South Wales has conducted a similarly detailed analysis of the rule and its exceptions in Commonwealth of Australia v Winston ('Winston').[47] In terms echoing Ormiston JA's observation in Agtrack, Leeming JA noted that 'cause of action' was a chameleonic term taking colour from its context.[48]

104 Returning to Agtrack, Ormiston JA noted that in the 90 years following Lord Esher MR's description of the 'settled' rule of practice, the particular scope of the 'rule' came to be worked out ultimately resulting in changes to the amendment rules in virtually all jurisdictions. The primary difficulty lay with what appeared to be fine distinctions between amendments introducing new factual matters which gave rise to a new cause of action (which were not allowed) and those where the amendments changed the characterisation of the cause of action in law but resting on the same facts.

105 In this State, the courts considered the application of the rule in various cases during the 1960s and 1970s culminating in Cutrona v Harnischfeger Australia Pty Ltd[49] ('Cutrona'). In Cutrona the Full Court, influenced by two decisions of the High Court in Black v City of South Melbourne[50] ('Black') and Renowden v McMullin,[51] ('Renowden') took a strict view as to the operation of the rule in Weldon v Neal considering that it prohibited amendments to alter the legal category of a claim in a technical sense even in circumstances where there was no substantial change to the underlying facts.

106 In coming to that view, the Full Court disapproved of the approach followed by Lush J in Christodoulopoulos v Rowntree & Co (Australia) Pty Ltd[52] ('Christodoulopoulos'). Christodoulopoulos was a case where a plaintiff sued her employer for negligence after being injured while required to lift excessively heavy boxes. The plaintiff sought to amend her statement of claim to include damages for breach of statutory duty under the relevant labour legislation which restricted employers from requiring females to lift weights exceeding a specified limit. Lush J allowed the amendment distinguishing Christodoulopoulos from cases in other jurisdictions where adding a claim for breach of statutory duty to an original claim in negligence was prohibited.[53] In his Honour's reasoning the new allegations of breach of duty in the other cases 'were accompanied by allegations of fact which had the effect of giving a different account of the relevant incident from that originally given'.[54] In contrast, in Christodoulopoulos, the amendments raised a new cause of action in a technical sense but no new allegations of fact had been raised. It was only the foundation in law which had changed.[55]

107 In contrast, in Juric v Dixon Supply Co Pty Ltd[56] ('Juric'), Menhennitt J took a different approach. The plaintiff who was injured whilst welding due to an unsupported metal frame falling, sued the employer in negligence. After the limitation period expired, he sought to amend the claim to allege the frame was supported by a crane and to add particulars of negligence regarding the defendant's failure to comply with the relevant crane legislation and breaches of the statutory duties imposed by that act. Menhennitt J chose not to follow Christodoulopoulos and considered that he was bound to follow the approach of the High Court in Black and Renowden which, according to his Honour, was one where 'the relevant concept is the cause of action involved as distinct from the case involved, or whether or not a new case is involved'.[57]

108 The Full Court addressed the conflicting approaches in Christodoulopoulos and Juric in Cutrona. There, the plaintiff brought an action against his employer in negligence and breach of a statutory duty imposed by the relevant crane legislation after being injured by a falling connector from a crane. The proposed amendment sought to allege a different breach of statutory duty under the relevant labour legislation. The Full Court refused the amendment, agreeing with the reasoning of Menhennitt J in Juric and disapproving of the decision in Christodoulopoulos.

109 In a joint judgment, Young CJ, Newton and Murphy JJ stated:

It is clear that the paragraphs sought to be added to the statement of claim...do introduce a new cause of action in the technical sense. They allege a breach of statutory duty, viz. of the duty said to be imposed on the defendant by reg. 13(1) of the Labour and Industry (Building Industry) (Safety, Health and Welfare) Regulations 1969. Such a cause of action is not pleaded in the existing statement of claim, which alleges a cause of action in common law negligence and a cause of action for breach of a statutory duty imposed upon the defendant by "the Lifts and Cranes Act and/or the regulations made thereunder."

...

In these circumstances we have reached the conclusion that we are obliged by two decisions of the High Court to hold that the amendments sought ought not to be allowed. Those decisions are [Black] and [Renowden].[58]

110 Dissatisfaction with the approach in Cutrona (and other jurisdictions) was encapsulated in Susan Campbell's article 'Amendments and Limitations: The Rule in Weldon v Neal'.[59] Ms Campbell ultimately making the submission that a new provision should be introduced into the Victorian rules similar to that which had been introduced into the English rules of court which permitted the introduction by way of amendment of a new cause of action provided it arose out of the same or substantially the same facts.[60]

111 As Ormiston JA noted in Agtrack, a proposal was made to the Rules Committee of the this Court and a detailed submission was forwarded to the Council of Judges in which it was asserted that it was unreasonable to shut out a plaintiff from amending merely because a plaintiff wished to place a new or added legal characterisation on facts already pleaded. Such an amendment could be distinguished from objection to a cause of action being brought out of time dependent on new facts as opposed to one which changed the form or characterisation of an action otherwise commenced in time, where the fresh claim was directly related to the original subject matter.[61]

112 At the time the proposal was forwarded to the Rules Committee, new rules had already been introduced in England and in New South Wales. The relevant New South Wales rules, ie, the Supreme Court Rules 1970 (NSW) ('former New South Wales Rules') are explained in McGee v Yeomans[62] and are described as being similar to but different from the English Rules of the Supreme Court ('English Rules'). They are also similar to but different from the Rules.

113 The English Rules made in 1965 relevantly provide in ord 20 r 5 that:

(1) ... the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in the paragraph if it thinks it just to do so.

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

114 Part 20 of the former New South Wales Rules provided:

(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms, that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court deems fit.

(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

(3) Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if he were a party.

(3A) An order may be made, or leave may be granted, under subrule (1) notwithstanding that the effect of the amendment is, or would be, to add or substitute a cause of action arising after the commencement of the proceedings, but in such a case the date of commencement of the proceedings, so far as concerns that cause of action, shall, subject to rule 4, be the date on which the amendment is made.

(4) This rule does not apply to amendment of a minute of a judgment or order or of a certificate.

(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of sub-rules (2), (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.

(5) Where a plaintiff, in his statement of claim, makes any claim for relief on a cause of action arising out of any facts, the Court may order that he may have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action.

115 As noted in McGee v Yeomans, the English rules had promoted a division of opinion within the ranks of the judiciary as to the extent to which they introduced any general relaxation of the rules regarding amendments where a period of limitation has expired. Glass JA wrote that the rule in Weldon v Neal had been destroyed and replaced by a general discretion:

By providing in r 4(3)-(5) that an amendment may be authorized which allows the substitution of a new party, the suing by the plaintiff in a new capacity in and the substitution of a new cause of action, the rule was, in those circumstances, totally destroyed. I am unable to accept that it continued, nonetheless, to operate in circumstances outside their terms with undiminished vigour. When it is further provided that the abrogation of the settled rule of practice in certain defined situations shall not in any way abridge the width of the general power to amend, there is in my view an implication that other amendments might in the exercise of discretion be properly allowed in situations not expressly dealt with the by the rule, notwithstanding that they introduce causes of action then barred by the expiry of a period of limitation.

I am driven to the conclusion that the Supreme Court Rules, upon their proper construction, displace the settled rule of practice laid down in Weldon v. Neal..., and all the finespun distinctions which it engendered. In its place there has been substituted a general discretion to allow an amendment, notwithstanding that it raises a barred cause of action, whenever justice so requires. The exercise of the discretion is unfettered by any rules of practice. It is not possible by judicial decision to establish in advance categories of amendments which it would be just or unjust to allow.... The discretion, having been set free, should not again be confined by rigid technicality. The Court hearing the application will necessarily have regard to the hardship of the plaintiff, if the amendment is refused, and the prejudice to the defendant, if it is granted. It must also consider all other relevant circumstances, such as the fault of the plaintiff or his advisers, the period of time since the limitation has expired, and the defendant's knowledge of the new cause of action or the new capacity. In my opinion, it follows that his Honour applied a rule of practice which has been superseded and that his exercise of discretion is on that account to be set aside.[63]

116 Returning to Agtrack, Ormiston JA observed that the ultimate form of the new ord 36 was more broadly expressed than its New South Wales equivalent. In that context, his Honour's focus was clearly on pt 20 rr 4(1) and 4(5) of the former New South Wales Rules and not the general amendment provision in pt 20 r 1(1).[64] Thus, his Honour observed[65] that although the original proposals for changing the pleading amendment rule in Victoria were confined to a rule along the lines of the rules introduced in England and New South Wales allowing new claims arising 'out of the same transaction or series of transactions' previously alleged, the new rule was more broadly expressed so as to depend solely on the absence of prejudice in the conduct of the other party's case 'notwithstanding the expiry of any relevant limitation period'. As his Honour's judgment made clear, Ormiston JA was unable to shed light on the reasoning behind the apparent difference in approach with the relevant footnote providing 'neither my recollection nor my records reveal why the expansion was thought by the Rules Committee to be preferable, except, no doubt, that it seemed a good idea at the time'.[66] The interaction between the general amendment New South Wales provision in pt 20 r 1(1) and the more restrictive rules pt 20 rr 4(1) and 4(5) has been considered in a number of cases with the consensus that the more restrictive pt 20 rr 4(1) and 4(5) did not limit the discretion provided under pt 20 r 1(1).[67]

117 One other possible motivation for the approach of the Rules Committee, in addition to it seeming to be 'a good idea at the time', might have been that it was unnecessary to include more restrictive criteria of the kind in pt 20 rr 4(1) and 4(5) if that criteria did not in any event confine the breadth of the more general discretion of the kind in pt 20 r 1(1). This is particularly so as the phrase 'new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action' might give rise to similar fine points of distinction as those that were sought to be avoided.

118 His Honour then noted that it was also decided that it would be desirable to seek legislative sanction not merely for the Victoria's new rules as a whole but in addition by way of amending the Limitations Act.[68]

119 Thus, new rules including an added section came into operation on 1 January 1987 in the form of the General Rules of Procedure in Civil Proceedings 1986 ('1986 Rules'). Rule 36.01(6) of the 1986 Rules is essentially the same as r 36.01(6) of the Rules.

120 At the same time, Parliament enacted the new s 34(1) of the Limitations Act. Ormiston JA considered and characterised the effect of r 36.01(6) of the 1986 Rules and s 34 of the Limitations Act. His Honour concluded that the rule was intended only to have a procedural effect; the alteration was intended to confer a much broader discretion on the Court when considering amendments which might otherwise appear to defeat limits laid down in limitations legislation.[69]

121 After noting that the Court was not taken to any discussion in the course of parliamentary debates which might shed light on the intention of the legislature enacting the amendments to the Limitations Act (and in respect of which apparently there was no such discussion), his Honour considered that the purpose of the limitations legislation was simply to make sure that the amending rule would not be struck down as impinging on substantive aspects of limitations law.[70]

122 His Honour reached that view despite and only after noting that s 34 was expressed in mandatory terms, not permissive terms like the Rules, and also that both the rule and the legislation went further than the relevant rules on the same subject in England and New South Wales. In particular, his Honour noted that the use of the word 'must' might imply that a court was compelled to allow an amendment in respect of the introduction of a quite separate cause of action unrelated to those presently alleged except in terms of convenience at trial, even where the subject matter of the amendment was clearly statute barred, unless the responding party could show prejudice in the conduct of its case. In its essence this is the Hepi argument.

123 His Honour rejected that interpretation observing that notwithstanding the choice of language, the legislature should not be treated as having intended such a 'bizarre' consequence and that both the rule and the section ought be treated effectively as permissive only.[71] Thus Ormiston JA concluded that the proper sphere of operation of r 36 of the 1986 Rules (and hence the Rules) was that it was intended to have a 'procedural effect designed to ensure the proper and fair consideration of applications to amend pleading'.[72] Accordingly, the proper exercise of the Court's discretion involved it looking at the totality of the circumstances to resolve whether it would be fair to permit the claim to be introduced by way of amendment. His Honour perceived that the concern was that the rule in Weldon v Neal had been given so rigid an interpretation in Cutrona that any attempt to overtake that interpretation effected solely by changes to rules of court might arguably be invalid insofar as it sought to remove the immunity of a defendant or other rights given to that defendant pursuant to a limitations statute.[73] In order to militate against that risk, Parliament went further and enacted s 34 of the Act. Thus, his Honour concluded that the statutory provision in s 34 was a 'fail safe' devised after r 36.01(6) was drafted and passed.[74] In the result, his Honour considered that it was appropriate to allow the amendment by exercising a broad discretion in favour on the basis that the amendment was one which sought to add or vary a few minor details and to give the existing claim a new characterisation closely akin to and by no means remote from the subject matter of the original claim.[75]

124 Subsequent to pt 20 of the former New South Wales Rules, considered in McGee v Yeomans, those rules were overtaken and replaced by the amendment provisions in ss 64 and 65 of the Civil Procedure Act 2005 (NSW) ('CPA'). These are once again similar to, but have important differences from ord 36 of the Rules and s 34 of the Limitations Act.

(cf SCR Part 20, rules 1 and 4); DCR Part 17, rules 1 and 4)

(1) At any stage of proceedings, the court may order -

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate.

65 Amendment of originating process after expiry of limitation period

(cf SCR Part 20, rule 4; DCR Part 17, rule 4)

(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.

(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as--

(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or

(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or

(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.

(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.

(4) This section does not limit the powers of the court under section 64.

(5) This section has effect despite anything to the contrary in the Limitation Act 1969.

(6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.

126 Putting aside the concluding words of s 64(3), s 64 bears considerable similarity to r 36.01 of the Rules. Relevantly for present purposes, it is recognised as settled law in New South Wales that s 65 does not curtail the general power conferred by s 64.[76]

127 The other relevance of Agtrack for present purposes relates to Ormiston JA's analysis of the so-called 'relation-back principle'.[77] In his Honour's detailed analysis, he accepts that the nature of an amended pleading relating back to the initial filing of process was well accepted[78] but describes it not as a matter of high principle but of practice, representing a characterisation of what is in fact sought and done which was altering an existing document which had come into existence at some time in the past.[79]

128 Characterised in that way, his Honour concluded that the relation-back nature of any amendments does not apply if the amendment is sufficiently extensive so as to change the character of the original document, such as would be the case where the amendment either involved the addition of a new party either as a plaintiff or defendant, or the introduction of a new and distinct claim based on different facts. In such a case, the result of any amendment goes beyond the mere amendment of an existing process (including pleading) but adds something of such a substantial nature as to justify a conclusion that what is sought to be achieved is not a mere amendment to an existing document but the substitution of a new document which includes an entirely new case. Here of course, on one view, the amended or, if you will, substituted document does both; adding a new and distinct claim against an existing defendant and the prosecution of that new case against a new defendant.

129 As to the latter circumstance, there appears to be no controversy insofar as the amendments affect the proposed second defendant ADICA, Hepi accepts that such a claim albeit introduced by the same amendment as expands the claim against Toyota only commences as against the new party upon the filing of amended process. This is reflected in r 9.11 of the Rules which provides that where an order is made for joinder of a new party under r 9.06 or r 9.08, the writ shall be amended within the time specified in the order and otherwise within 10 days of the making of the order, and that the filing of a copy of the originating process amended and indorsed as required by paragraph (1) shall be sufficient compliance with that paragraph.[80] Rule 9.11 therefore makes clear that the joinder affected by the Court's order pursuant to r 9.06, which necessarily requires the amendment to the writ, is not affected unless and until the party seeking the joinder files a copy of the originating process as amended. It is common ground therefore that under the Rules, the amendment to the writ which gives rise to the joinder of ADICA does not take place until the filing of the amended writ. Necessarily therefore, the amended statement of claim insofar as it relates to the claims against ADICA cannot take effect and therefore does not relate back to the filing of the original writ on 16 June 2023.

130 Although this is accepted, Hepi argues that the part of the reasoning in Agtrack which points to the conclusion that the amendment as against Toyota cannot relate back because it goes beyond a mere amendment and amounts to a new case, ought not be followed.

131 Toyota points to Street v Luna Park Sydney Pty Ltd[81] ('Street'), a decision of Brereton J of the New South Wales Supreme Court. In Street, Brereton J considered an application to join two new defendants and to file a further amended statement of claim which alleges that they were persons involved in the misleading and deceptive conduct of the first defendant (the existing defendant) and otherwise that they be joined on various other bases. The existing defendants did not oppose the joinder of the additional defendants but argued that the amended pleading should not be allowed insofar as it would seek orders against those two defendants which would affect them in their performance of their duties as directors of another company which was also an existing defendant.

132 In granting the amendment and making orders for joinder (aside from one aspect of the claim), his Honour accepted that it was clear that the relation-back principle does not apply to an amendment which adds a party.[82] In respect of the second category of amendment where it has been said that the relation-back doctrine may not apply, namely an amendment which adds a new cause of action,[83] his Honour referred to Ormiston JA's judgment in Agtrack and in particular that part of it where his Honour suggested that relation-back was not a principle of law but a matter of convenient practice applicable only for some purposes. His Honour distinguished Agtrack saying that it was not the law in New South Wales at least where, since 1970, it had been accepted that it was permissible to allow amendments which introduced a time barred cause of action and that an amendment which adds such a cause of action is not futile because the amendment relates back to the date of the original pleading.[84] Brereton J disagreed that the relation-back principle could be dismissed as a mere 'rule of practice reflecting a common sense characterisation of what was in fact sought and done' as distinct from a rule or principle of law.[85] His Honour considered that the relation-back doctrine was a manifestation of a general principle that except insofar as the nature of the proceedings or relief required attention to be given to the actual position of the parties at the time of judgment, the rights and liabilities of parties are determined as at the date of the commencement of the proceedings unless a statute changing the law expresses a clear contrary intention.[86] As his Honour concluded:

Relation-back recognises that a pleading speaks from the date it bears, and that an amendment speaks from the date of the original pleading that it amends, so as to state a claim for relief to which the party is entitled as at the date at which the rights and liabilities of the parties will be judged. This has important consequences: since a pleading must disclose a cause of action entitling the plaintiff to relief upon the date on which it is filed, amendments cannot add causes of action which accrue only after the date of the original pleading, absent statutory provision to the contrary.[87]

133 I do not propose to give leave for the amendment of the statement of claim and for the joinder of ADICA in this proceeding.

134 First, by the amendment, Hepi seeks to introduce claims which are already the subject of a pending proceeding in this Court in the form of the 2024 proceeding. An application to amend a pleading so as to incorporate a set of allegations already the subject of an existing proceeding is prima facie vexatious and an abuse of process.[88]

135 The force of this conclusion is not diminished by Hepi's proposed discontinuance of the 2024 proceeding in the event that leave to amend and joinder orders are made in this proceeding. Nor is it diminished by the fact that the apparent motivation for the commencement of the 2024 proceeding was to secure the advantage provided to the group members the subject of the 2024 proceeding by s 33ZE of the Supreme Court Act.

136 The evident purpose of s 33ZE is that it does not require group members the subject of the 2024 proceeding to themselves commence their own proceeding lest the limitation period that relates to their individual claim expire. Whilst the position of the named plaintiff is protected by reason of the commencement of the proceeding in that person's name,[89] absent a provision such as s 33ZE, the limitation period for any group members claim may otherwise expire. The suspension of limitation period operates until the group member opts out or the proceeding is determined without finally disposing of the group member's claim. Any discontinuance constitutes a determination.[90]

137 Hepi's strategy is to have commenced the 2024 proceeding not for the purposes of prosecuting that proceeding to settlement or judgment, but rather to obtain the advantage of the suspension of a limitation period for group members in this proceeding by reason of the commencement of the 2024 proceeding on 2 August 2024. The next step in the strategy was to seek to amend the claim in this proceeding so as to, inter alia, add the claim against ADICA and seek to maintain a claim on behalf of group members who entered into finance agreements in the Second Relevant Period (2 October 2018 being the last date within six years of the date of commencement of the 2024 proceeding). Hepi's plea in the proposed ASOC assumes that the effect of s 33ZE is that group members can carry over the benefit of the suspension of the limitation period to a later proceeding. That is certainly an available interpretation although as noted earlier,[91] the section has received scant judicial consideration. In any case, it need not be considered further here. Then, once leave is given to amend and add in this proceeding, to then discontinue the 2024 proceeding.

138 Arguably, the commencement of the 2024 proceeding for that purpose constitutes an abuse of process as Toyota asserts.[92] It is not necessary to form any view on that or determine that issue. The fact remains that as things are, there is a pending proceeding on foot and yet by the amendment and joinder application, Hepi seeks to commence a concurrent proceeding against the same defendants. This stands against any amendment being allowed.

139 Secondly, when viewed as a matter of substance, the proposed new claims in the form of the add-on insurance claims, whether brought against Toyota or against ADICA, are entirely new. On no view of the general indorsement or the statement of claim, could it be said that Hepi and the Original Group Members were seeking to advance a claim against Toyota (regardless of the claim against ADICA) in respect of the add-on insurance claims. There is not a hint of any such claim in the general indorsement or in the statement of claim. So much is obvious on the most cursory scan of the proposed ASOC even if viewed solely through the perspective of the new allegations against Toyota. The end point of the relevant time period to the new allegations against Toyota has expanded from 31 October 2018 to 5 October 2021; there is an entire new subject matter of complaint (which relate to the add-on insurance products) and a new cohort of group members who do not have flex claims. The fact that there are some overlapping facts does not affect this conclusion.

140 Thirdly, and related to the entirely new nature of the allegations now sought to be advanced against Toyota (and ADICA), such claims could not have been brought by Hepi against Toyota alone in the statement of claim as filed. Where a proceeding is commenced by writ with a general indorsement the plaintiff is required to serve a statement of claim within 30 days after appearance.[93] The statement of claim so served cannot expand beyond the area marked out by the indorsement.[94] Whilst a plaintiff may widen the statement of claim or lessen it or express it in better terms, its substance must be consistent with that set out in the writ.[95] A plaintiff cannot in the statement of claim change the whole character of the proceeding by introducing an entirely new and original cause of action.[96] Therefore, by way of example, it has been held to be not open to a plaintiff in a statement of claim in a proceeding for libel to rely upon publications not identified in the indorsement of claim on the writ.[97] The statement of claim served by Hepi after the general indorsement fell within the permissible scope.

141 By this application, Hepi seeks to achieve an outcome which it could not have achieved by way of the service of the statement of claim. By now seeking to introduce a later amendment to that statement of claim and arguing that the width of the discretion given to the Court under r 36.01(6) of the Rules when read with s 34 of the Limitations Act, does not prevent an amendment introducing an entirely new claim, Hepi is seeking to circumvent the strictures which apply where a writ is filed with a general indorsement and a later statement of claim is served. Rule 36.01(6) and s 34 of the Limitations Act should be construed in manner which, where possible, is coherent with the Rules as a whole.

142 Indeed Hepi's argument goes further; its inclusion is mandated provided the new claim is arguable absent a defendant being able to point to 'Aon prejudice'.[98] The loss of limitation defences reflect the loss of a substantive right.[99] Limitation periods reflect a fundamental and all but universal policy that the litigation of stale claims constitutes potentially significant injustice.[100] In Brisbane South Regional Health Authority v Taylor,[101] McHugh J observed that a limitation period 'represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated'.[102]

143 Against the background, I do not accept that the amendments introduced by the 1986 Rules pursuant to r 36.01(6) (and now present in the Rules), coupled with the contemporaneous and apparently related introduction of s 34 of the Limitations Act, was intended to deprive a defendant of such a fundamental right; especially in the absence of any clear indication to that effect in any contemporaneous indicia. Additionally, it is unlikely that such a significant change would be made by amendment to the rules of court alone in such a way which would set Victoria on a course distinct from other States and from the United Kingdom. The interest of justice are not to be looked at only from the perspective of the plaintiff and the group members. Consideration must be given to the position of all parties.[103]

144 Nor does s 34 of the Limitations Act compel any such conclusion. The task of statutory construction must begin with the consideration of the text itself, but the meaning of the text may require consideration of its context and the mischief it is seeking to remedy.[104] Further, it is a well-recognised rule of statutory interpretation that an Act will not be interpreted as taking away an existing right unless it is reasonably capable of no other construction.[105] Equally well-recognised is the presumption that a court will not interpret legislation in a way which confines or limits the court's jurisdiction unless found in clear words.[106] Even if one focusses solely on the text of s 34, I do not accept that the text casts aside or in some way bars consideration of the loss of a limitation defence. The text first requires a court to consider whether it would allow a party to amend a document in the proceeding but for the expiry of any relevant period of limitation. Those introductory words suggest that the initial focus is on whether a court would exercise the permissive power to grant leave to amend under r 36.01. In the context in which the section was enacted, which was to abrogate the rule in Weldon v Neal (as the sub-heading in the section suggests), the first stage of the enquiry therefore is whether the Court ought exercise its discretion to grant leave to amend but for a technical expiry of the limitation period. This was the Weldon v Neal vice. By couching the rule with respect to amendment in such general terms, I accept, as Glass JA did in McGee v Yeomans in relation to a similar rule, that the effect of the new r 36.01 in the 1986 Rules was to displace the rule of practice laid down in Weldon v Neal (and all its finespun distinctions) as it had come to be applied and replace it with a general discretion to allow an amendment notwithstanding that it raised a barred cause of action whenever justice so required.

145 But that broad criterion does not by a side wind, give rise to a widespread abrogation of the right to rely on limitation statutes in all cases of amendment. The abrogation of the rule in Weldon v Neal does not require it and nor does the language of s 34(1) compel it. It is one thing to put to one side the subtle distinctions that bedevilled courts following Weldon v Neal. It is another thing entirely to effect a carte blanche removal of a substantive right in respect of the introduction of a new cause of action which could not have been introduced in a statement of claim filed after commencement by writ with general indorsement but which a defendant was powerless to resist. Noting too that whilst some limitation provisions may be found in State legislation, others such as some of those relied on by Toyota in this proceeding, are found in Commonwealth legislation. Some bar the remedy and have to be pleaded in a defence; others have the effect that the cause of action no longer lies or is extinguished unless a proceeding is commenced within a designated time. Some of those are present here; note for example the plea in paragraph 76 of the proposed ASOC (and equivalent pleas in relation to the statutory misleading and deceptive conduct claims). Such provisions have been held to be incapable of extension and to bar both the right to make the claim and the remedy.[107] To interpret s 34(1) in a way which either removes a defendant's substantive right without regard to context, the balance of the Rules and the mischief which the section was intended to address, would as Ormiston JA observed in Agtrack produce a bizarre outcome. All the more so where the interpretation of such a provision may cut across Commonwealth legislation.[108]

146 Ultimately, whether the interests of justice require the expiry of a limitation period to be put to one side is to be approached as a matter of substance. Where a new statutory cause of action is sought to be introduced arising out of the same facts as those already pleaded, and a defendant is on notice that a claim is being made against it with respect to those same facts, the interests of justice are likely to favour amendment, notwithstanding that what is sought to be set up is technically a new cause of action. Similarly, an amendment which introduces new facts which are uncontroversial, is unlikely to provide a proper basis for opposition.

147 Characterising the operation of the rule and the section in this way involves no departure from the judgment of the Full Court in Agtrack. Properly considered, in my view, Agtrack does not involve reading into r 36.01(6) or s 34 some requirement that an amendment can only be allowed if a new cause of action arose out of the same or substantially the same facts. The reasoning, albeit obiter dicta, is that of a strong Court of Appeal and it would be surprising if Ormiston JA reintroduced the same or substantially the same facts hurdle having noted a few pages earlier that the new rule was not drafted in this manner. A contextualised reading of the reasons suggests that his Honour's recognition that the new cause of action arose out of exactly the same facts as were already pleaded (and moreover that the new cause of action was the only legal liability available and would have been appreciated as such) was relevant to and informed an assessment that the overall interests of justice favoured amendment.

148 This approach is not inconsistent with Willmott or Pentridge Village. In Willmott Derham AsJ said as follows:[109]

(a) the rule and the section are remedial and should be given a beneficial interpretation - the widest interpretation which its language will permit;[110]

(b) although r 36.01(6) does not refer to the addition or substitution of a cause of action outside the limitation period, the power of the Court to allow an amendment which adds or substitutes a cause of action after expiry of the relevant limitation period is made clear by the reference in r 36.01(8) to r 14.03(2);

(c) both s 34 and r 36.01(6) apply to a limitation period arising under a statute of any kind,[111] or under a contract;[112]

(d) together r 36.01(6) and s 34 direct the court in exercising its discretion to allow a party to amend a document in a proceeding to disregard the expiry of any limitation period provided it is satisfied that any other party to the proceeding would not by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise;

(e) prejudice to the opposing party by reason of the amendment proposed is prejudice in the conduct of the other party's claim or defence, that is, in the handling or management of the claim or defence, for instance, arising from the death or disappearance of a vital witness;[113] or prejudice in the exercise of rights against other parties who might be liable to contribute;[114]

(f) an amendment which merely deprives the other party of a limitation defence does not give rise to such prejudice;[115]

149 In Pentridge Village Connock J referred to Willmott Forests with approval.[116]

150 The observations made in Willmott and Pentridge Village need to be understood in their relevant context. In Willmott, Derham AsJ's observations were made in the context of an application to amend a statement of claim which had been first filed following the commencement of a proceeding by general indorsement. The critical question in the application was whether the proposed new pleading went beyond the perimeter of the claims set out in the indorsement. A subsidiary issue which arose was whether the fact that the statement of claim filed following the indorsement was said to not include certain claims that appeared in the indorsement meant that the plaintiff had abandoned such claims and on this basis leave to amend should be refused.

151 Derham AsJ rejected this argument and concluded that the claims introduced in the statement of claim and sought to be retained in the subsequent plea fell within the perimeter of the general indorsement with one exception.

152 To the extent therefore that the allegations in the pleading fell within the perimeter, they must arise out of the same or substantially the same facts. His Honour's conclusion with respect to the one aspect of the claim which did travel beyond the perimeter set by the indorsement and his grant of leave for the pleading to be amended to include that claim, does however require consideration.

153 His Honour's reasons set out the content of the indorsement noting that, among other things, it alleged that the defendant had audited plaintiff's affairs and provided audit reports to the plaintiff for the 'relevant audit years' which was a term which had earlier been defined by his Honour in his reasons as the audits for the three financial periods ending 30 June 2007, 2008 and 2009. In the indorsement, the plaintiff gave notice of a claim of a failure to exercise due care and skill and to perform the audit (in the relevant audit years) with due care and skill and otherwise that the defendant's representation that the financial reports were in accordance with relevant legislation and accounting standards was a false representation which gave rise to a contravention of the Trade Practices Act 1974 (Cth) ('TPA') and the Fair Trading Act 1999 (Vic) ('FTA') because they were misleading and/or deceptive.

154 In the statement of claim, the plaintiff alleged, inter alia, in addition to the negligence and misleading and deceptive conduct claims with respect to each of the relevant audit years, that the auditor had engaged in misleading or deceptive conduct in contravention of s 1041H of the Corporations Act in respect of the relevant audit years. There is no material difference between the substance of s 1041H of the Corporations Act and the corresponding provisions in the TPA and the FTA. It is in that context that his Honour concluded that the misleading and deceptive conduct claim under the Corporations Act constituted a new statutory cause of action which fell outside the perimeter of the indorsement. Of course the facts were essentially the same. The only difference is that it sought to invoke a new statutory prohibition 'in relation to a financial product or a financial service'.[117] Indeed, his Honour concluded that:

Although the claim for contravention of s 1041H of the Corporations Act is a new cause of action, it turns on the largely similar allegations as the claims under the Trade Practices Act and the Fair Trading Act, with the principal difference being that the representations constitute statements of opinion which could reasonably be regarded as intended to influence a person or group of persons in making a decision in relation to [the plaintiff's] shares... and therefore constituted conduct in relation to a financial services for the purposes of s 1041H of the Act.[118]

155 On no view could it be contended that the new Corporations Act claim did not arise from the same or similar facts. The additional facts alleged, namely that it could be regarded as intended to influence a person in making a decision in relation to the company shares, were non-controversial background facts.

156 It is exactly the type of claim that prompted the types of controversies which caused dissention with the application of the rule in Weldon v Neal and then led to the statutory change. Further, and contrary to Hepi's submissions, Derham AsJ plainly accepted that the new claim under s 1041H of the Corporations Act must have arisen out of the same facts or substantially the same facts as support the claims in the indorsement such that it constituted an amendment of an existing claim albeit one which characterised the claim in a different way and in the form of a different cause of action. His Honour found that it was a recategorisation of the claim or a restatement in different legal terms and as such it was permissible to allow it.[119]

157 His Honour's observations as set out in sub-paragraphs 157(e) and (f) above must be seen in that context. If that is so, then the reference to the deprivation of the other party (of a limitation defence not constituting relevant prejudice) is confined to circumstances which accords with the approach of Ormiston JA in Agtrack with both influenced by the fact that the new claim arose out of the same facts or substantially the same facts.

158 Once Willmott is seen in that context, there is nothing controversial or difference in Connock J's approach in Pentridge Village where, among other things, the question of the date on which the amendments took effect was deferred to trial.

159 Further, I note that the relevant cases that were footnoted in Willmott as supporting the proposition set out in subparagraph 157(f), which at footnote 115 of these reasons, are all unreported cases decided before Agtrack. A review of the reasons in each suggests that there was scant argument as to the operation of s 34 and its interaction with r 36.01(6) and there is no suggestion of the level of consideration undertaken in Agtrack.

160 In Winston, Leeming JA provided a very useful roadmap as to the considerations to be borne in mind in the application of the New South Wales provisions in ss 64 and 65 of the CPA. Whilst the New South Wales provisions include in s 65, a narrower power still referable to a new cause of action arising out of the same or substantially the same facts, as his Honour's judgment made clear, the prescribed circumstances of s 65 do not curtail the general power conferred by s 64, and s 64 (putting aside the content of s 64(3) which has a particular provision relating to the relation-back principle), is in relevantly similar terms to ord 36 of the Rules.[120] As such his Honour's approach provides a useful roadmap to the considerations applicable to an application under ord 36.

161 Asa to the relevant considerations with respect to a grant of leave to amend, his Honour stated the following:[121]

1. First, the premise of the inquiry is that the plaintiff is advancing an out-of-time cause of action which is different from that already pleaded.
2. Secondly, the underlying concern which drives the exercise of discretion to amend is the prejudice to the defendant who, by dint of the amendment relating back to the time the original pleading was filed, may be deprived of a limitation defence. Limitations reflect a fundamental and all but universal policy that the litigation of stale claims is potentially significant injustice....
3. Thirdly, because the concern is prejudice to the defendant, the matter is to be approached as a matter of substance, rather than form....One manifestation of that is that one does not merely look at the allegations, but also the extent to which those allegations are apt to give rise to issues in the case....An amendment which merely introduces uncontroversial allegations is decidedly unlikely to provide a proper basis for opposition....
4. Fourthly, quite a few of the cases have been argued on the basis that the issue was whether the same cause of action was being pleaded, with the amendments being regarded as particulars of the existing cause of action, or whether the amendments introduced a "new" cause of action....Obviously, if the court concludes that a different cause of action is pleaded, it will be necessary to ask whether it arises from the same or substantially the same facts. But even where the debate is sought to be framed in terms of whether it is a different particularisation of the same cause of action, the conclusion will tend to turn on whether the facts sustaining the new particulars are substantially the same as those underlying the original allegations....
5. Fifthly, a mere change in the legal character of a cause of action will be a different cause of action, but nonetheless one which arises out of the same facts. An example might be adding a cause of action in tort based on a wholly concurrent duty in contract and tort where the original pleading only alleged a breach of contract....
6. Sixthly, the extent to which an amendment introduces issues of fact is self-evidently a matter of degree. What is relevant is the extent of the novelty coupled with the extent to which the defendant is prejudiced. I would resist the temptation to seek to place the cases into particular categories, if the point of doing so was to apply some general approach that "design cases" or "planning cases" or "failure to warn" cases always or normally did not arise from substantially the same facts as "defective construction cases" or "defective surgery" cases.

162 As noted earlier, much of the controversy has arisen where there is a dispute as to whether a new cause of action is one which arises out of the same or substantially the same facts; another is where the amendments are sought to be characterised as particulars or perhaps where that which is sought to be produced is a new head of damage. Whatever those distinctions, they have no relevance here. On any view, when viewed as a matter of substance, what is sought to be introduced by the amendments contained in the proposed ASOC is novel and not part of the subject matter that could have been relevantly anticipated by Toyota upon the filing of the general indorsement. It is a 'new story', or a 'new set of ideas'[122] which if introduced by way of amendment now in this proceeding (and assuming the allegations against Toyota relate back to commencement of this proceeding) will deprive Toyota of substantive limitation advantage and benefit Hepi and the Original Group Members on whose behalf Hepi brings his claims.. Hepi[123] remains free to pursue the 2024 proceeding. As such, I do not consider that it is in the interests of justice for the amendment to be introduced in this proceeding.

163 Even if the 2024 proceeding posed no barrier to a grant of leave to amend, and the new add-on insurance claims arose out the same or substantially the same facts as those in the statement of claim, and even if Hepi's submissions as to the appropriate exercise of discretion under r 36.01(6) and s 34 are accepted, namely, that the expiry of the limitation period is not a relevant form of prejudice to be considered, I accept that, in any event, the effective date of amendment does not relate back to the date of commencement of the proceeding.

164 Whatever the differences between Ormiston JA's observations in Agtrack and those of Brereton J in Street, there is no controversy that where the amendment seeks to add a party to the proceeding, the amendment only takes effect when the amended document is filed. So much is conceded by Hepi insofar as the amendments introduce the claim against ADICA.

165 Likewise, Hepi accepts that insofar as the amendments affect the composition of the group (that is to say paragraphs 1(d), (e) and (f)) of the proposed ASOC, they do not take effect until the filing of the amended writ. Such concession, insofar as it relates to the amendment to the group members, is consistent with the approach in Ethicon Sarl v Gill and Uber Technologies.

166 The effect of these concessions is that certain paragraphs of the proposed ASOC take effect on one date and other paragraphs take effect on another date. But there is only one document which embodies the amendments, which is the proposed ASOC.

167 The analysis of both Ormiston JA and Brereton J concerned whether the amendments contained in the document related back to when the document was filed. They differed on whether it was a principle of law or a matter of practice. Putting that to one side there was no disagreement that the amendments to the document did not relate back to commencement where the amendments to the document added a new defendant. That is the case here; there is only one document but the amendments do two things at the same time. I do not see any scope in either analysis or any proper basis for a conclusion that certain parts of the document have a retrospective effect but not others or the question of the retrospective effect of the document differs from one defendant to another.

168 On that basis, where a party seeks to both join a new defendant to the proceeding and at the same time amend the existing claim so as to both add the new defendant and make those same allegations against the existing defendant, there is but one document which is properly regarded as a new document. It takes effect as a substitute document not a mere amendment to the existing document.

169 It falls within the accepted exception therefore that an amendment which adds a new party, does not relate back to the commencement date. The documents which are the subject of leave to amend, the proposed further amended writ and the proposed ASOC are documents which add a defendant. On that basis, those documents do not relate back to the date of commencement regardless of whether the reasoning followed in Agtrack or that in Street is followed.

170 It is not necessary to decide what the position would have been had the amendments been limited to the inclusion of new claims against Toyota, thus not requiring the addition of a new defendant. Had that been the case, the substantively new case would have been material to both the question of whether amendment should have been allowed at all given that if it related back it would deny Toyota a limitation defence to an entirely new claim. Conversely, if it only took effect on the filing of the proposed amended pleading it may be futile given the limitation issues that would arise. There will ordinarily be no practical difference between the two.

171 I note that the reasoning in Agtrack has been followed in the group proceedings context. In Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (a firm),[124] a representative action brought by shareholders of Tamaya Resources Limited (under Pt IVA of the Federal Court Act 1976 (Cth)), Gleeson J dismissed the plaintiff's application for leave to file various amended pleadings which sought to introduce new causes of action in connection with an impugned audit, in circumstances where the new causes of action relied on an entirely new factual foundation and did not arise out of the same facts or substantially similar facts as to those already pleaded.[125] Her Honour stated the following:

I do not accept that the additional audit issues are matters that arise out of the same facts or substantially the same facts as those already pleaded to support existing claims for relief. On a pragmatic level, that submission is falsified by the sheer volume of the proposed amendments. On a geographic level, the submission is falsified by the location of the relevant assets on different continents from the Lichkvaz mine. Although the cases concern, in essence, a single audit and a single set of financial statements, in my view, those matters do not overcome the diversity of the facts required to be considered such that the "story" now sought to be set up is "the same story as that set up all along": cf Dornan v JW Ellis & Co Ltd [1962] 1 QB 583 at 593 to 594.[126]

(a) referred to Agtrack and held that, ordinarily, leave to amend should be on terms that the amendments (in respect of the new causes of action) take effect from the date of the amendment;[127] and

(b) rejected a submission that if the relevant amendments were allowed, the question of the time from which they should take effect was a matter for determination by the trial judge.

173 For completeness, I do not consider that the plaintiffs' reliance on s 33K(1) of the Supreme Court Act adds anything to the argument. Section 33K of the Supreme Court Act is in the following terms:

33K Causes of action accruing after commencement

(1) The Court may, at any stage of a representative proceeding on application made by the plaintiff, give leave to amend the application commencing the group proceeding so as to alter the description of the group.

(2) The description of the group may be altered so as to include a person -

(a) whose cause of action accrued after the commencement of the representative proceeding but before such date as the Court fixes when giving leave; and

(b) who would have been included in the group or, with the consent of the person would have been included in the group, if the cause of action had accrued before the commencement of the proceeding.

(3) The date mentioned in paragraph (2)(a) may be the date on which leave is given or another date before or after that date.

(4) Where the Court gives leave under subsection (1), it may also make any other orders it thinks just, including an order relating to the giving of notice to persons who, as a result of the amendment, will be included in the group and the date before which such persons may opt out of the proceeding.

174 By s 33K(1) of the Supreme Court Act, the Court is given a broad discretion to do what is just and convenient. The amended description can expand the membership of the group. Its evident object is to include as many potential group members as possible to facilitate the aims of access to justice and judicial economy by the resolution of common questions in the one proceeding. Section 33K(1) permits an amendment to the description of the group where the description appears in a statement of claim. Although not a fixed rule, where the amendment has the effect of adding new group members, it will likely be consistent with Pt 4A and the need for certainty as to the persons who comprise the class at all times, that the amendment be ordered to take effect from the date of amendment, not the commencement of the proceeding.[128]

175 Given my conclusions above, I do not accept that it is just and convenient to amend the statement of claim so as to alter the description of the group. This is so even assuming in favour of Hepi that the undoubtedly broad and wide power given under s 33K is capable of proper invocation when what is sought to achieve is not the addition of persons who may take the benefit of the existing claim but rather expand the group so as to allow the prosecution of new claims.

176 Had I been otherwise disposed to give leave to amend, I would have accepted Toyota's submission that the appropriate course was to hold that the amendments take effect as at the date of filing of the amended writ.

177 Aside from those amendments in the proposed ASOC agreed to by Toyota to correct errors in respect of the flex claims currently pleaded and the proposed amendments contained in section D.5.1. which contains the unconscionable flex conduct allegations against Toyota alone, the application is dismissed.

178 The dismissal of this application does not carry with it any suggestion that the Court will not entertain appropriate case management procedures consistent with the overarching purpose enshrined in the Civil Procedure Act 2010 (Vic). Accordingly, this proceeding and the 2024 proceeding will be case managed together.

179 I will otherwise hear from the parties as to the appropriate form of orders including costs and such further directions as may be necessary.

[1] [2018] FCAFC 137; (2018) 264 FCR 394, 406-407 [50]-[52] ('Ethicon Sarl').

[2] [2020] VSC 152, [27] ('Uber Technologies').

[3] Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43, [24].

[4] [2015] VSC 262, [10], citing Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43, [20]-[38].

[5] S Pirrie Equities Pty Ltd v Venetian Media Group Pty Ltd [2023] VSC 253, [84] (Elliott J), quoted in FNH United Pty Ltd v United Petroleum Franchise Pty Ltd [2024] VSC 366, [41] (Nichols J) ('FNH United').

[6] Supreme Court (General Civil Procedure) Rule 2015 (Vic) r 1.13.

[11] Webster v Murray Goulburn Co-Operative Co Ltd (No 2) [2017] FCA 1260, [31].

[12] See for example Patrice Sarah Turner v Bayer Australia & Ors [2024] VSC 760.

[13] [1887] UKLawRpKQB 161; (1887) 19 QBD 394 ('Weldon v Neal').

[14] Agtrack (NT) Pty Ltd t/as Spring Air v Hatfield [2003] VSCA 6; (2003) 7 VR 63, 91 [49] ('Agtrack').

[16] Ethicon Sarl (n 1) 406-407 [52]; Capic v Ford Motor Co of Australia Ltd (No 7) [2018] FCA 1631, [5]; Uber Technologies (n 2) [27].

[17] Impiombato v BHP Group Ltd (No 5) [2024] FCA 591 [105], [244].

[19] Willmott Forests Ltd v Dubois Pty Ltd [2016] VSC 61, [30] ('Willmott'); Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 595-596 ('Renowden'); Dundas v Incorporated Nominal Defendant [1976] VicRp 71; [1976] VR 667, 669 ('Dundas').

[21] According to the letters from the plaintiffs' solicitors, about one-third of the Original Group Members. Thus about one-third of the group members who have flex claims also have add-on insurance claims. The Further Group Members only have add-on insurance claims.

[22] And one presumes, the promotion and sale of Toyota motor vehicles.

[23] Section D.3.1 Flex Unjust Transactions and D.3.2 Add-on Insurance Unjust Transactions.

[24] That is to say that if any amended writ is filed on say 30 March 2025, the members of the group entitled to relief would be those who entered into car loans 6 years prior to that date and following, ie, 30 March 2019.

[25] See Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27; (2009) 239 CLR 175 ('Aon').

[26] Supreme Court Act 1986 (Vic) s 33ZE (emphasis added).

[27] Toyota asserted 'for completeness' that s 33ZE(1) had no application because the add-on insurance claims were not the subject of the 'claim' to which this proceeding (on commencement) related.

[28] [2025] FCAFC 9.

[30] Perera v GetSwift Ltd [2018] FCAFC 202; (2018) 263 FCR 92, 126 [149].

[31] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 1.13.

[32] Ibid; Neil J Williams, LexisNexis, Civil Procedure Victoria, vil 1 (at Service 296) [36.01.15].

[35] [2020] VSC 284 ('Pentridge Village').

[41] See Federal Court Rules 2011 (Cth) r 8.21(2); Supreme Court Rules 1987 (NT) r 36.01(6); Limitation Act 1981 (NT) s 48A; Civil Procedure Act 2005 (NSW) s 65(2)(c); Uniform Civil Procedure Rules 1999 (Qld) r 376; Uniform Civil Procedure Rules 2020 (SA) r 69.2; Supreme Court Rules 2000 (Tas) r 427; Rules of Supreme Court 1971 (WA) r 5(2). The applicable rules and legislation in the Northern Territory and Tasmania is substantially the same as Victoria. The approach in New South Wales, Queensland and that of the Federal Court Rules all pick up the reference to the same or substantially the same facts. The South Australian Rules provide for the amendment to take effect on the date ordered by the Court but otherwise do not limit the considerations which arise on the application in any relevant way. The Western Australian rules give discretion to allow amendments that may be just including without determining whether any relevant limitation period has expired or not.

[42] Uniform Civil Procedure Rules 1999 (Qld) r 376; see consideration of r 376 in Gladstone Ports Corporation Limited v Murphy Operator Pty Ltd [2024] QCA 74.

[43] The section also permits, inter alia, amendments to correct a mistake in the name of a party or to enable the plaintiff to maintain proceedings in a capacity in which he or she has since the proceedings were commenced become entitled to bring and maintain the proceedings, none of which has application here.

[44] See generally his Honour's analysis in Agtrack (n 14) 79-85, 89-93.

[47] [2024] NSWCA 277 ('Winston').

[49] [1977] VicRp 36; [1977] VR 306 ('Cutrona').

[50] (1964) 38 ALJR 309.

[52] [1971] VicRp 46; [1971] VR 378 ('Christodoulopoulos')

[53] See, inter alia, Marshall v London Passenger Transport Board [1936] 3 All ER 83; Batting v London Passenger Transport Board [1941] 1 All ER 228; Smith v Wilkins and Davies Construction Co Ltd [1958] NZLR 958.

[56] [1976] VicRp 76; [1976] VR 701.

[59] (1980) 54 Australian Law Journal 643.

[60] Ibid 657-658; Agtrack (n 14) 83-84 [34].

[62] [1977] 1 NSWLR 273.

[64] So much is clear from the footnote, but also the content of his Honour's analysis.

[67] See below [126] and the judgment of Leeming J in Winston (n 47) in relation to the similar ss 64 and 65 of the Civil Procedure Act 2005 (NSW).

[77] Agtrack (n 14) 85-89 [37]-[42].

[80] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 9.11(2).

[81] [2006] NSWSC 230.

[88] Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, 591.

[89] Gladstone Ports Corporation Limited v Murphy Operator Pty Ltd [2024] QCA 74.

[90] Moira Shire Council v JLT Risk Solutions [2024] VSC 4.

[92] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509.

[93] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 14.02.

[95] Moore v Alwill (1881) 8 LR lr 245, 247-8; Dundas (n 19) 669.

[96] Ibid; United Telephone Co v Tasker (1888) 59 LT 852; Cave v Crew (1893) 62 LJCh 530.

[97] Rubenstein v Truth & Sportsman Ltd [1960] VicRp 75; [1960] VR 473.

[99] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503.

[100] Abdulla v Birmingham City Council [2012] UKSC 47; Moubarak v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218, 234 [72].

[101] (1996) 186 CLR 541.

[103] BMW Australia Ltd v Brewster (2019) 269 CLR 575, 599-600 [45]-[47]; McMullin v ICI Australia Operations Pty Ltd ([1998] FCA 658; 1998) 84 FCR 1, 4.

[104] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27.

[105] Sargood Bros v Commonwealth [1910] HCA 45; (1910) 11 CLR 258, 279; Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560, [179].

[106] Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-420 [55]; Brewster v BMW Australia Ltd [2019] NSWCA 35 [56]-[57].

[107] Austructures Pty Ltd v Makin [2014] VSC 544, [30], [39]-[45], [50].

[108] Agtrack was the subject of an appeal to the High Court; see Agrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251, 266-268 [45]-[49]. Although the High Court upheld the decision of the Court of Appeal it did so on a different basis and noted that an interpretation of s 34(1) of the Limitation Act which permitted the relation-back of an amendment introducing a new cause of action even based on similar facts was incompatible with the limitation provision in the Carriers' Liability Act and as such was invalid. No invalidity argument was addressed on this application which would involve potentially complex issues. The relevance of incompatibility to these reasons is limited to the fact that it illustrates the potential sphere of operation of the provision if Hepi's submission is accepted, which sphere of operation is unlikely to have been intended by the legislature.

[110] Bridge Shipping Pty Ltd v Grant Shipping SA & Anor [1991] HCA 45; (1991) 173 CLR 231, 260-261.

[111] Agtrack (n 14); PSL Industries Ltd v Simplot Aust Pty Ltd [2003] VSCA 7; (2003) 7 VR 106.

[112] Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212; Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375, [36].

[113] Duncan Davis (Sales) Pty Ltd v Davis [2006] VSC 127, [36].

[114] Wintle v Conaust (Vic) Pty Ltd (2001) VSC 315, [16].

[115] Ibid; Pyramid Building Society (in liq) v Farrow (VSC, Beach J, No 2057/92, 30 April 1993, unreported); Murphy v BPTC Ltd (in liq) (VSC, Smith J, No 12377/91, 7 May 1993, unreported); Re WM Train & Co Pty Ltd (VSC, Beach J, No 8341/94, 24 January 1995, unreported); Neil J Williams, LexisNexis, Civil Procedure Victoria, vol 1 (at Service 285) [36.01.230].

[116] Pentridge Village (n 35) [27].

[121] Ibid [135]-[140] (citations omitted).

[122] Clasul Pty Ltd v Commonwealth [2014] FCA 1133, [41]-[51].

[123] There may be a remaining issue in the 2024 proceeding as to whether Hepi is an appropriate representative plaintiff for the add-on insurance claims given the date on which they entered in to the car loan. To the extent to which this is pressed and needs to be addressed it will be dealt with in an application made in that proceeding.

[124] [2015] FCA 1098.

[127] Ibid [163], [166], accepting a submission extracted at [139].