The applicants in the long running equine influenza (horse flu)
class action have had a procedural victory, obtaining leave to
amend their claim despite a statute of limitations argument against
The Federal Court representative proceedings are brought on
behalf of 587 group members, predominantly members of the horse
racing industry, against the Commonwealth. The action arises from
the horse flu epidemic which brought the Australian horse racing
industry to a standstill in 2007. The applicants allege that the
outbreak was caused by the Commonwealth government's negligent
management of the Eastern Creek Quarantine Station in Sydney, in
particular the government's failure to ensure that a visitor to
the centre who had been in contact with an infected horse was
appropriately disinfected before leaving the station.
The applicants' case against the Commonwealth is based on
the Commonwealth's direct liability as occupier of the station,
and also its vicarious liability for alleged omissions of 7
Commonwealth employees responsible for management of the station.
The 7 employees are also named as respondents to the
In August 2014 the applicants filed an interlocutory application
seeking to amend the pleadings to allege that the Commonwealth was
also vicariously liable for the negligence of an eighth
Commonwealth employee, Graham Turner. The Commonwealth opposed the
amendments primarily on the basis that the amendment would create a
new cause of action which was time-barred, being in excess of the 6
year limitation period (the applicants each having suffered a loss
prior to 31 December 2007).
Rule 8.21 of the Federal Court Rules relevantly provides that an
applicant may apply to amend pleadings to:
".... add or substitute a new claim for
relief, or a new foundation in law for a claim for relief, that
out of the same facts or substantially the same facts as
those already pleaded to support an existing claim for relief by
the applicant; or
in whole or in part, out of facts or matters that have
occurred or arisen since the start of the proceeding
Rule 8.21 also specifically provides that such an application
may be made after the end of any relevant limitation period.
The applicants argued that the amendments merely added a
"new foundation in law" within the meaning of
the rule. The Commonwealth, by contrast, argued that the amendments
effectively added a new claim for relief, rather than merely a new
foundation in law for an existing claim for relief. Justice Gleeson
preferred the applicants' argument.
Ultimately, however, the application turned on the issue of
whether the amendments arose out of "substantially the
same facts" as the previous pleading. The Commonwealth
argued that they did not as the amended pleading alleged new facts
distinct from Mr Turner's involvement; and the claim for the
Commonwealth's vicarious liability, insofar as it related to Mr
Turner, depended on these facts. Justice Gleeson disagreed with
this interpretation and preferred the applicants' position that
"substantially the same facts" should be
interpreted with a level of generality. His Honour found that the
new allegations being generally related to the previously pleaded
issues concerning the equine influenza outbreak and the alleged
mismanagement of the quarantine station was sufficient.
Justice Gleeson also considered that discretionary
considerations favoured allowance of the amendments – in
particular facilitating the just resolution of the dispute by
ensuring that the applicant's claim covered the negligence of
all Commonwealth employees who might be vicariously liable in
connection with the outbreak of equine influenza.
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