The respondent's submissions summarised
32 The respondent submitted that the separate question should be answered in the negative. It also sought to have the question answered in a way which preserved its right to raise concerns about the adequacy of aspects of the originating application and statement of claim relating, in particular, to the group definition and common questions, which matters, it said, would be raised in its future defence. The respondent also drew the Court's attention to the fact that, notwithstanding the separate question, the applicant's solicitors had recently commenced multiple individual new proceedings as "protective proceedings" in the event that the separate question was answered negatively.
33 The respondent's submissions in support of its position may be summarised as follows.
34 First, emphasis was placed upon the contemporary approach to statutory construction as described by Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 (Alcan) at [47]:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
35 While acknowledging that there is a general rule of statutory construction that a construction is to be preferred which promotes the purpose or object underlying the relevant statute (citing Carr v Western Australia [2007] HCA 47; 232 CLR 138 (Carr) at [5]-[6] per Gleeson CJ) and that remedial statutes are to be interpreted on the basis that they intend to remedy a perceived injustice or provide a benefit, the respondent claimed in its outline of written submissions that these general rules are only of utility where there is more than one interpretation available or there is uncertainty as to the meaning of particular words. The respondent submitted in [11] of its written outline of submissions that:
If the words of a statutory provision are clear, these general rules have no application.
36 The respondent further submitted that these general rules were of no real assistance where a statutory provision strikes a balance between competing interests, as was said to be the case here because the relevant limitation periods represented a careful balancing by the legislature of the rights and interests of plaintiffs and defendants.
37 Mr Scerri QC (who appeared together with Mr Arnott for the respondent) clarified in oral address that it was not intended to suggest in the respondent's outline of written submissions that the relevance of context to the task of statutory construction was limited to a case where an ambiguity has first been identified. That clarification was properly made, having regard to the following observations of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 (CIC Insurance) at 408 (footnotes omitted and emphasis added):
It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
38 In oral address, Mr Scerri QC relied upon various additional authorities regarding the construction of remedial or beneficial provisions. In particular, he emphasised the following observations of Mason, Brennen, Deane and Dawson JJ in Khoury v Government Insurance Office (NSW) [1984] HCA 55; 165 CLR 622 (Khoury) at 638 (emphasis added):
… the rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal must, as has been said, be restrained within the confines of "the actual language employed" and what is "fairly open" on the words used.
39 To similar effect, Brennan CJ and McHugh J said in IW v City of Perth [1997] HCA 30; 191 CLR 1 at 12 (footnotes omitted and emphasis added):
The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical". Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.
40 The respondent accepted that there was considerable utility in resolving the separate question at this point, and prior to it filing its foreshadowed defence, because the answer would affect the future course of the proceedings. Having said that, however, Mr Scerri QC submitted in oral address that it was not open to the Court to answer the separate question affirmatively so as to say that the proceeding had been commenced by group members within the meaning of s 44 because the Court did not have available to it any evidence as to when the group members had knowledge of the material facts.
41 It submitted that, for the following reasons, the structure of Pt IVA representative proceedings makes it plain that group members are not the persons bringing an action. First, group members play a passive role and are not parties to a representative proceeding.
42 Secondly, provisions such as ss 33A, 33D, 33E and 33H of the FCA Act indicate that the structure of Pt IVA is that the applicant who institutes or brings a representative proceeding does so on behalf of and as representing a broader group but that the group members do not institute or bring the action themselves. The respondent relied on the observations of Gaudron, Gummow and Hayne JJ in the High Court in Mobil Oil Australia Pty Ltd v The State of Victoria [2002] HCA 27; 211 CLR 1 at [37]-[38] in respect of provisions in the Supreme Court Act 1986 (Vic) concerning representative proceedings, where the position of persons who bring such proceedings as plaintiffs was contrasted with those whom they represented.
43 In support of its contention that group members are not the persons who institute or bring a proceeding under Pt IVA, the respondent also relied upon provisions such as ss 33Z, 33AB, 33R, 33S, 33P, 33ZE and 33ZH.
44 Secondly, after referring to s 12(1)(b) of the Limitation Act, the respondent submitted that, because the commencement of a representative proceeding did not constitute the bringing of an action by group members, time did not stop running by reason of s 12(1)(b) in respect of those group members. It was submitted that this issue was addressed by s 33ZE of the FCA Act which, so it was contended, presupposes that the commencement of a representative proceeding did not constitute the bringing of an action by each group member such that limitation periods cease to run. In oral address, Mr Scerri QC confirmed that the respondent's position was that the references to the "plaintiff" in both ss 12 and 44 of the Limitation Act referred to the applicant and not a group member.
45 Thirdly, the respondent emphasised the limitations on the Court's power to extend time under s 44(3)(b), which focuses direct attention on the individual circumstances of the plaintiff, being the person bringing the action. The respondent submitted that no power was granted under s 44 for the Court to extend time for persons on behalf of whom the plaintiff sues.
46 Acceptance of this submission would mean that the applicant in a representative proceeding can apply for an extension of time under s44 in respect of his or her own claim, but not on behalf of the group members. Nor could the group members themselves apply for an extension of time because they are not plaintiffs. Furthermore, if the applicant in such a proceeding is granted an extension, s 12(1)(b) will not bar his or her claim, but it will continue to bar the claims of group members. Section 33ZE of the FCA Act would apply to claims which are brought within time, but s 33ZE has no application with respect to limitation periods which have already expired.
47 Fourthly, the respondent emphasised that an application for an extension of time under s 44(3) was "quintessentially an individual issue", turning as it does on the particular knowledge and circumstances of the person making the application.
48 Fifthly, the respondent submitted that, in light of the applicant's acknowledgement in the originating application that each group member required an extension of time, each group member needed to come before the Court individually at some point so as to satisfy the Court of the matters set out in s 44(3).
49 Sixthly, the respondent submitted that cases such as Morgan, Cameron and Fostif were all distinguishable, primarily because the different procedural and conceptual provisions relating to traditional representative actions made those cases too remote. In oral address Mr Scerri QC submitted that Cameron was distinguishable because it concerned an equivalent provision to s 12 of the Limitation Act, and not s 44.
50 Finally, in response to the applicant's alternative reliance on the power in s 33ZF, the respondent submitted that this reliance was misconceived because:
(a) the power in s 33ZF is not an alternative if the separate question is answered in the negative, because the separate question is confined to the proper construction of s 44 and did not raise an issue concerning s 33ZF;
(b) s 33ZF cannot be used as a vehicle to rewrite Pt IVA and to avoid procedures and constraints imposed by other provisions in that Part; and
(c) the power in s 33ZF does not permit a rewriting of s 44 of the Limitation Act, which would raise "significant constitutional questions" which would attract the requirements of s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act).