Application by plaintiff for leave to discontinue the proceeding
Consideration of appropriate test for approval of discontinuance
Discontinuance has no unfair, unreasonable or adverse consequence for group members
Quick Take
1The appropriate test for court approval of discontinuance of a representative proceeding under s 23 of the Civil Procedure (Representative Proceedings) Act 2022 (WA) is whether the discontinuance is 'not unfair, unreasonable or adverse' to the interests of group members as a whole, rather than the 'fair and reasonable' test applicable to settlement approval.
2Where group members have not been identified, notified or taken any steps in reliance on the proceeding, the 'not unfair or unreasonable' test is plainly satisfied, and there is no requirement under the CPRP Act to notify group members of an application for leave to discontinue (as distinct from settlement approval under s 25(4)).
3A discontinuance approved under the CPRP Act constitutes a 'determination' within s 32(2), such that the suspension of limitation periods ceases to operate without the need for any separate order, following Peter Gleeson v Apple Inc [2025] VSC 366 and Moira Shire Council v JLT Risk Solutions Pty Ltd [2024] VSC 4.
