CIVIL PROCEDURE — application by representative plaintiffs seeking a discontinuance of the representative proceeding — where Funder is not willing to fund the proceeding while representative plaintiffs are lead plaintiffs — whether there is an issue regarding limitation period for other group members to commence proceedings should representative proceeding be discontinued — whether discontinuance would be unfair, unreasonable, or adverse to the interests of group members — whether a declaration that the discontinuance does not affect any rights of the plaintiffs or any group members to pursue claims be made — whether notice of the proposed discontinuance should be given to group members — confidentiality orders made — representative proceedings discontinued — declaration made
Quick Take
1When approving discontinuance of representative proceedings under s 173 CPA (NSW), the court asks whether discontinuance would be unfair, unreasonable, or adverse to the interests of group members; it need not be satisfied that discontinuance is positively in their interests, and where group member rights are preserved there is a low evidentiary bar to justify discontinuance.
2Whether notice of a proposed discontinuance must be given to all group members depends on the facts; where the proceeding has not materially advanced, no funding is available, no substitute lead plaintiff has been identified, and broad notification would be prohibitively expensive, notice limited to identified group members who are aware of the proceeding may suffice.
3Discontinuance of a representative proceeding is likely a 'determination' for the purposes of s 182 CPA (NSW), causing the suspended limitation period to recommence running, though the point was not fully argued.
