Australia: Transnational Class Action Dispute Over Oil Spill Commenced in Australia

Last Updated: 1 June 2017
Article by John Emmerig, Michael Legg and Jordan N. Phoustanis

In Short

The Background: Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd raised the question as to whether the Federal Court of Australia possesses the power to consider an extension of time on the class members' statute-barred claims.

The Issue: The Federal Court of Australia may be an appropriate forum for the resolution of transnational class action disputes involving events occurring in external Australian territories and beyond, including Indonesia.

Looking Ahead: The implication of this proceeding is that class members whose claims are statute-barred may apply for an extension of time, although each may, in certain circumstances, have to apply to the Court individually. This was the position reached by the Court in light of the Northern Territory limitations legislation and may impose a significant evidentiary burden on class members seeking an extension of the limitation period.

Following the 2009 Montara Oil Field oil spill in the Timor Sea, an Indonesian seaweed farmer brought a class action in Australia against the operator of the Montara Oil Field. The action was commenced on behalf of a class of Indonesian seaweed farmers who allegedly suffered loss as a result of the oil's sterilization of certain Indonesian waters, causing a decline in seaweed production. On 24 January 2017, Griffiths J handed down judgment in Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd [2017] FCA 14 ("Sanda v PTTEP") on the separate question of whether the Federal Court of Australia possesses the power to consider an extension of time on the class members' statute-barred claims.


It was not contentious that Sanda and the class members had commenced proceedings after the expiration of the relevant statutory limitation period of three years, stipulated by section 12 of the Limitation Act 1981 (Northern Territory) ("Limitation Act"). To sustain the action, Sanda would have to apply for an extension of the limitation period in respect of not only his own claim, but those of the class members he represented.

The question of whether, in a class action context, section 44 of the Limitation Act may apply to the extension of the limitation period on the claims of class members turned on whether a class member:

  • Is a "plaintiff" for the purpose of section 44 of the Limitation Act; and
  • Can, themself, be considered to institute the relevant class action proceedings in satisfaction of the requirements of section 44.

Are Class Members Plaintiffs and Do They Institute Class Action Proceedings?

Section 44(b) of the Limitation Act specifies that time may be extended where a "plaintiff" (who is defined as a person bringing an action and not a party to the action) ascertains new facts and institutes an "action" (which is defined as including a proceeding in a court of competent jurisdiction) after the expiration of the relevant statutory limitation period. Justice Griffiths held that the Limitation Act's definition of "plaintiff" is broad enough to capture class members on whose behalf a class action proceeding is instituted and the definition of "action" is sufficiently broad to encompass any form of legal proceeding.

In light of the language of and legislative intention behind the Federal Court Act, His Honour held that class members are properly regarded as plaintiffs (for the purpose of the Limitation Act) who have instituted proceedings. Furthermore, consistent with modern principles of statutory interpretation, Justice Griffiths concluded that class members must be understood to constitute plaintiffs, at least in the context of the Limitation Act. A contrary interpretation would lead to a "profoundly unlikely and scarcely intended result" whereby the statute bar may not have applied to the class members as it did to the representative party.

Therefore, His Honour was satisfied that the Court's power not only extended to considering extending time on the representative party's claim but on the claims of each of the class members as well.

Three Key Takeaways

  1. A class member, at least as far as the Limitation Act is concerned, will be construed as a plaintiff in respect of a class action in which it is represented. The notion that class members are plaintiffs in their own right may have more widespread implications, although broader ramifications will depend on the context.
  1. An implication of treating class members as individual plaintiffs is the potential diminishment of the efficiency of a class action proceeding where many or all class members apply to the court for an extension of time and the facts of each application must be determined individually. This may also increase the burden upon and cost to the defendant, if it should seek to contest some or all of those applications.
  1. The FCA's decision in Sanda v PTTEP specifically turned on the language of the Limitation Act. Proceed with caution when extrapolating the implications of Griffith J's decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions