› Whether discontinuance fair and reasonable and in interests of group members
› Civil Procedure Act 2005 (NSW), s 173
Quick Take
1Discontinuance of representative proceedings under s 173 of the CPA requires court approval even where all parties consent, because the court's function is protective of group members' interests; the court must be satisfied the discontinuance is fair, reasonable and in the interests of group members as a whole.
2Unlike a dismissal, a discontinuance does not prevent individual group members from recommencing their own proceedings (UCPR r 12.3), and this distinction is relevant to the court's assessment of whether discontinuance is in group members' interests.
3Where a class action can no longer viably proceed as a representative proceeding (here, due to the need for individual applications to set aside a prior settlement deed), discontinuance returning group members to their pre-commencement position may satisfy the fairness requirement.
