interlocutory application seeking leave to amend Second Further Amended Originating Application and Third Further Amended Statement of Claim
where applicants seek extension of time to commence action for proposed group members under s 38 Limitation Act 2005 (WA)
where applicants seek amendment to common questions for determination at initial trial including issues as to the extension of time
Quick Take
1Whether an extension of time under s 38 of the Limitation Act 2005 (WA) should be granted for group members in representative proceedings may not be amenable to determination as a common question where individual circumstances of each group member may bear upon the outcome, and the court declined to frame common questions addressing the ultimate extension issue in the absence of demonstrated commonality of relevant circumstances.
2The inclusion of sample group member claims at an initial trial under s 33Q of the Federal Court of Australia Act 1976 (Cth) is appropriate where the representative applicants' own circumstances are not adequately representative of the range of group member positions on limitation and damages issues, but the number of sample members must be proportionate to the demonstrated variation in circumstances.
3Whether the commencement of a representative proceeding under Pt IVA constitutes the commencement of an action on a cause of action for each group member under the Limitation Act 2005 (WA) remains an open question warranting determination as a common question, given that prior authority on this point concerns different limitation statutes.
