B THE FIRST ISSUE: LIMITATION OF ACTIONS
3 As I explained in the judgment (at [6(4)] and [15]), the proposed settlement does not prevent claims being brought by those who may allege, at some time in the future, they have suffered personal injury arising from alleged wrongful conduct of the Commonwealth. I noted the seriousness of the concern raised by various members of the community, but cautioned that group members should seek legal advice about any personal injury claim they may have.
4 My reasons were not intended to express, and should not be taken as expressing, any definitive view about the limitations position concerning those claims.
5 By operation of ss 33C and 33D of the FCA Act, the applicants had standing to bring proceedings on behalf of persons with claims against the same person or persons, where those claims were in respect of or arising out of the same, similar or related circumstances, and gave rise to a substantial common issue of law or fact.
6 In other words, the standing of the representative applicants was founded upon the commonality of claims attached to persons, that is, the group members. This is consistent with s 33J of the FCA Act, which provides a group member may opt out of a representative proceeding by giving written notice. In other words, the opt out provision speaks in terms of the right of persons to opt out, not the right of persons to opt out of particular claims. After all, it is fundamental to the operation of Pt IVA of the FCA Act that a "claim", as that term is used in s 33C, is not necessarily the causes of action pleaded in the statement of claim.
7 The individual claim of a group member comprises the entire justiciable controversy between that group member and the respondent or respondents in a class action. Upon the commencement of a representative proceeding, s 33ZE of the FCA Act provides that the running of any limitation period applicable to the claim of the group member to which the proceeding relates is suspended. Section 33ZE(2) provides as follows:
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.
(Emphasis added).
8 In Gill v Ethicon Sàrl (No 4) [2019] FCA 1814 (at [14]-[22]), I observed as follows:
14. Section 33ZE of the Act provides for the suspension of the running of "any limitation period" that applies to the claim of a group member to which the proceeding relates, upon the commencement of a representative proceeding. The plain objective of s 33ZE is that group members who are not parties but who have claims should be protected from the need to commence individual proceedings while they are group members. The Explanatory Memorandum to the Federal Court of Australia Amendment Bill 1991 (Cth) described the intended purpose of s 33ZE as follows at [49]:
New section 33ZE: Suspension of limitation periods
This section provides for the suspension of the limitation period that applies to the claim of a group member on the commencement of a representative proceeding. The suspension is lifted if the member opts out or [scil. "of"] the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim. The provision is designed to remove any need for a group member to commence an individual proceeding to protect himself or herself from expiry of the relevant limitation period in the event that the representative action is dismissed on a procedural basis without judgment being given on the merits.
15. There are two matters to observe immediately about s 33ZE: the first is that it makes reference to "any limitation period". This is, obviously, a broad phrase which relates not only to limitation periods provided for by laws of the Commonwealth, but also any applicable state limitation periods which are "picked up" and applied to the justiciable controversy between the group member and the relevant respondent. It is trite that there is no concurrent state and federal jurisdiction. The "matter", to use that word in the constitutional sense, is wholly federal and will remain wholly federal.
16. It is also basic that a State Parliament is incapable of enacting a valid law which governs the exercise of federal jurisdiction by this Court or any state court exercising federal jurisdiction: see Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR. As the majority in that case observed at 26 [63]:
The incapacity of a State Parliament to enact a law which governs the exercise of federal jurisdiction by a court, whether it be a federal court or a State court, explains the necessity for s 79 of the Judiciary Act and is key to understanding the nature and extent of its operation.
17. As is well known, s 79 of the Judiciary Act 1903 (Cth) fills the gap by picking up the text of a state law, including a law relating to limitations, and applying it as "surrogate" federal law in the exercise of federal jurisdiction by this Court. In their operation as surrogate federal law, those laws are applied but only to the extent that such laws are not inconsistent with either the Constitution or the laws of the Commonwealth. Although it has been said by some writers that there are unresolved questions regarding the power to regulate state limitation periods insofar as the Commonwealth Parliament is concerned, when the principled operation of s 79 is understood in the exercise of federal jurisdiction, those issues fall away.
18. The second matter to observe about s 33ZE is that after the limitation period is suspended, it does not begin to run again until the happening of certain events. In Ethicon Sàrl v Gill [2018] FCAFC 137; (2018) 264 FCR 394 the Full Court (Allsop CJ, Murphy and Lee JJ) went through the evolving group definition in relation to this case, including the very broad definition in the initial originating application and statement of claim. As was noted at 398 [12]:
From an initial broad definition, as time went on, more specificity was given to the identification of the various implants and particulars were included in the definition as to the complications alleged. By April 2016, the group definition was changed to accommodate sub-groups being introduced (being the Mesh Sub-Group Members and the Tape Sub-Group Members), and two new applicants were added.
19. The Full Court went on to note at 401 [27] that:
The effect of this valid commencement [of the proceeding], was that the running of any limitation period applying to "the claim of any group member to which the proceeding relates" was suspended (s 33ZE (1)) and the limitation period did not begin to run again unless either: (a) the member opted out of the proceeding under s 33J; or (b) the proceeding and any appeals are determined without finally disposing of the group member's claim (s 33ZE(2)). Notably, no reference is made in the Act to the limitation proceeding beginning to run when, as later occurred, some group members were excluded from the class by Court order upon amendments to the group definition. The legal consequences for individual claims (including the operation of s 33ZE) caused by the later exclusion of some group members, raise potentially complex issues which do not require further exploration in the present case.
20. I am required, however, to give consideration to this issue in order to satisfy myself as to whether or not there is any prejudice occasioned to the new group members attendant upon their exclusion. Put in simple terms, the question arises, that upon my making of the order vacating earlier orders providing for their inclusion as group members, does the limitation period for the new group members begin to run?
21. This is a matter in which there is a difference between Pt IVA and the cognate provision in the Victorian regime, being Pt 4A of the Supreme Court Act 1986 (Vic). In Pt IVA, the suspension limitation period operates as identified above, but this is subject to an exception with respect to group proceedings under Pt 4A. Section 33J(5) of the Supreme Court Act 1986 (Vic) provides that, unless the Court otherwise orders, a person who has opted-out of a group proceeding: "must be taken never to have been a group member".
22. There have not been, as far as my researches go, many cases concerning what constitutes a "determination" for the purposes of s 33ZE, although Kenny J in Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388 observed that a dismissal pursuant to a self-executing order constitutes a determination. Both textually and contextually, it seems to me that s 33ZE(2) is directed to the suspension continuing unless and until a decision has been made by the group member (opting-out) or there has been some judicial resolution of the claim of the group member. Obviously enough, neither of these eventualities is the same as an order, of which the group member is likely to have no notice, including and then later excluding them from a class.
9 These comments have been considered in a number of cases not directly relevant to the immediate context, collected by Murphy J in Turner v Tesa Mining (NSW) Pty Ltd (No 2) [2022] FCA 435; (2022) 314 IR 214. Justice Murphy pointed to some uncertainty as to whether the discontinuance of a representative proceeding constitutes a "determination" of the proceeding for the purposes of s 33ZE(2), such that the limitation period applicable to a group member's claim begins to run. After referring to my remarks, his Honour then noted the following developments (at 219-220 [14]-[20]):
14 Shortly following Gill, Lee J handed down Calinoiu v QLD Law Group - A New Direction Pty Ltd [2019] FCA 2194 which involved the discontinuance of group members' claims. His Honour allowed the application and said (at [8]) that "the limitation period will again commence to run" as a result. It can be said that it is implicit in this that his Honour considered the discontinuance to be a "determination". However, in my view his Honour's remarks are properly understood as having been made in the context of a settlement approval rather than a discontinuance. His Honour described the application (at [2]) as involving a "settlement … which provides for discontinuance of the proceeding and hence requires approval" (emphasis added). It appears that that the settlement concerned the applicant's individual claim and included a requirement for group members' claims to be discontinued: Calinoiu at [7]-[8]. Thus, the decision in Calinoiu can be distinguished from the cases concerning approval of a discontinuance.
15 Subsequently, in Babscay, Anastassiou J said that, if Lee J's construction of s 33ZE(2) in Gill at [22] is correct, it would result in the limitation period for group members' claims remaining suspended, notwithstanding the discontinuance of the representative proceeding. At [33], Anatasssiou J extracted the following passage from the confidential opinion of counsel in that case, which said:
" … if that outcome follows his Honour's remarks, those remarks are incorrect and ought not be followed. This is because we read the word 'determined' in s 33ZE(2) as including one of its verbal senses ('to come to an end'), and thus being relevantly synonymous with 'terminated', on which basis a discontinuance does involve a determination (or termination) of the proceeding without disposing of the group member's claim."
16 His Honour said (at [34]) that it was unnecessary to decide whether counsels' opinion was correct, as it was sufficient for the purposes of the discontinuance application to find there was a "material risk that the suspension of the limitation periods would cease upon discontinuance". His Honour, however, went on to say in obiter that if it was necessary to determine the question he would respectfully disagree with the construction of s 33ZE(2) in Gill.
17 The issue arose again in Maximus. Wigney J found it unnecessary to decide the question, but said in obiter (at [53]), that "to the extent that there is any issue about whether discontinuance of the proceeding would end the s 33ZE suspension of the running of limitation periods, the better view would appear to be that discontinuation would end the suspension".
18 Then, in Oculus at [55]-[59], Derrington J considered the issue. His Honour noted the reasoning in Gill, Calinoiu and Babscay, and said that there is at least a real risk that discontinuance might be taken to "determine" the proceedings. His Honour considered that while that might seem to be inconsistent with the plain language of s 33ZE(2), the alternative construction would lead to "the permanent suspension of the running of the limitation period, an extraordinarily unjust outcome from the perspective of the respondent to a discontinued representative proceeding" (at [56]).
19 His Honour contemplated making an order under s 33ZF to provide for the re-starting of the limitation period once the group members were served with the notice of discontinuance, but declined to do so (at [57]) as he considered: (a) it involved impropriety for the applicant to seek an order which adversely affected group members' interests when the respondent had not sought such an order; and (b) it was "not entirely clear" that s 33ZF empowered the Court to substantially alter the operation of s 33ZE by making an order which allowed the limitation period to begin to run again, citing Wotton v Queensland (2009) 109 ALD 534 at [41] (Rares J).
20 It is high time that this uncertainty is put to bed. I agree with Lee J's construction of s 33ZE(2) in Gill at [22]. Both textually and contextually, the phrase "the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim", indicates that a "determination" is properly understood as a judicial resolution of a group member's claim. It is directed to the suspension of the limitation period continuing unless and until a decision has been made by the group member opting out or there has been some judicial resolution of the claim of the group member.
10 His Honour noted that this construction was consistent with the statutory purpose I referred to in Gill v Ethicon (No 4). The difficulty with this construction, however, is that it is capable of sometimes occasioning real unfairness upon a respondent. On the proper construction of s 33ZE, upon the Court approving the discontinuance of a representative proceeding, the respondent is left in the position that the limitation applicable to the group member's claim will remain suspended, and the respondent will thereafter be exposed to the risk of claims by group members.
11 I agree with Murphy J that it is unlikely the legislature intended such a result. Consequently, a practice has arisen whereby upon a discontinuance, orders are made pursuant to s 33ZF of the FCA Act such that the relevant limitation periods begin to run from a particular point in time.
12 I mention these matters because an analogous issue may have some relevance in the present circumstances.
13 It is tolerably clear that resolution of a group member's claim can occur by way of settlement approved under s 33V(1) of the FCA Act, that is, a "determination" need not be on the merits following a trial. But the better of way of looking at an approved settlement (and in contradistinction to a discontinuance) is that the entire claim is either extinguished or merges in a s 33V order (which then binds all group members upon making a s 33ZB order). It is unnecessary to be definitive or more specific for present purposes.
14 What presently matters is that complications can arguably arise in a subset of cases, such as the present, when an express term of the approved settlement is that it only deals with part of group members' claims and, consequently, does not fully resolve or "determine" or affect the group members' claims - because here no damages for personal injury have been pleaded, particularised or resolved. One could argue the "claim" referred to in s 33ZE(2) means (as is the case elsewhere in Pt IVA) the whole of the group member's claim, irrespective as to how different heads of damage of a cause of action in tort and nuisance were pleaded and particularised from time to time. Of the course, it is trite the concept of a "claim" is a notion distinct from a cause or causes of action advanced to vindicate the claim.
15 I mention this point to make it clear that by making the comments I made in the judgment, I did not want it to be thought I was expressing a final view, in the absence of any submissions (or a necessity to do so) as to whether the limitation period had begun to run again. I can only repeat the view that I raised in the judgment (at [15]), namely that this is a matter in respect of which group members should obtain legal advice.