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[2025] QSC 101
The plaintiff, as representative of a group in a representative proceeding, sought leave to discontinue proceedings against the fifth to eighth defendants. This raised questions as to whether the discontinuance would be unfair to group members, and also the effect of such a discontinuance on the limitation periods applying to the claims against the fifth to eighth defendants. Considering a number of authorities, her Honour concluded that the discontinuance was not unfair to group members in the circumstances. The remaining issue of the limitation periods for bringing claims against the fifth to eight defendants, which were frozen by the operation of the Civil Proceedings Act 2011, was resolved by her Honour (after careful consideration of the relevant authorities) determining that the limitation period remained frozen notwithstanding the discontinuance, that this was unjust to the relevant defendants, and consequently the making by her Honour of orders to recommence the running of the limitation periods.
Williams J
17 June 2025
The plaintiff applied for leave to discontinue its representative proceeding against the fifth to eighth defendants. [1]. An identified foreseeable consequence of the discontinuance was that the limitation periods in respect of the claims of group members against the fifth to eighth defendants might start running again; in the circumstances, that might have meant as little as 20 days for the group members to consider whether to bring their own proceedings against those defendants. [31]–[33]. The questions for the Court were whether:
(1)The proposed discontinuance was unfair, unreasonable or adverse to group members; and,
(2)The Court should order that the limitation periods recommence (and whether such an order was necessary).
Whether the proposed discontinuance was unfair, unreasonable or adverse to group members
Section 103R(1) Civil Proceedings Act 2011 (“the Act”) states that “[a] representative proceeding may not be settled or discontinued without the approval of the court.” [16]. The plaintiff submitted that the Court was required to consider whether the proposed discontinuance was unfair, unreasonable or adverse to group members. [18].
Notice of the discontinuance application was sent to group members via advertisements and information on the plaintiff’s solicitor’s website. [20]. Referring to Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435 and R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Carriage Application) [2022] FCA 1444, her Honour concluded that the test as put forward by the plaintiff (whether a discontinuance was unfair, unreasonable or adverse) was the correct one. [27]–[28].
Having regard to the imminent expiry of the limitation periods if they were to recommence, her Honour determined that the notice to group members of the risk of the expiry through the relevant advertisements, and the absence of any response from those members, meant that the discontinuance application would not be unfair, unreasonable or adverse to those members, subject to her Honour’s consideration of how the limitation periods would operate in these circumstances and what orders should be made. [31]–[42].
Whether the Court should order that the limitation periods recommence
Section 103Z of the Act provides:
(1)On the starting of a representative proceeding, the running of any limitation period applying to the claim of a group member to which the proceeding relates is suspended.
(2)The limitation period does not start running again unless –
(a)The member opts out of the representative proceeding under section 103G; or
(b)The representative proceeding, and any appeal from the proceeding, is decided without finally disposing of the member’s claim.
(3)This section applies despite anything in the Limitation of Actions Act 1974 or any other law or rule of law. [50]. (emphasis added).
The fifth to eighth defendants argued that because a discontinuance did not “decide” a matter for the purposes of s 103Z, it was therefore necessary for her Honour to make orders which recommenced the running of the limitation period. [43]–[45]. Her Honour’s attention was drawn to Federal Court and Victorian authorities under those jurisdictions’ equivalent legislation. [46]. That legislation used the phrase “determined” instead of “decided”. [52].
Her Honour compared the Federal Court and Victorian authorities; the Federal Court had concluded that a discontinuance did not “determine” a proceeding for the purposes of their legislation, and so to avoid the unfairness to defendants of a limitation period being permanently suspended, it was necessary for courts to make an order that a limitation period recommence sometime after the discontinuance. [53]–[57]. The Victorian Supreme Court had preferred a broader reading of “determined” than the Federal Court, and found that “determining” a proceeding encompassed a discontinuance; the Federal Court has continued to prefer its own construction and rejected the reasoning of the Victorian Supreme Court. [58]–[67].
Considering the interpretation of “decide” under s 103Z of the Queensland provision, including the context in which it is used in other parts of the Act, her Honour concluded that a unilateral discontinuance could not mean that anything had been “decided”, and that the approach of the Federal Court should be followed in respect of the Queensland provision. [68]–[82]. The consequence of this construction was that the limitation periods would remain suspended notwithstanding the discontinuance, because nothing had been “decided”. [82]–[83].
Her Honour went on to find that a perpetual suspension of the limitation period was unjust and unfair to the fifth to eighth defendants, and that s 103ZA of the Act provided a basis for the Court to impose a condition on the discontinuance that the limitation periods would recommence running from a specified date. [90]–[91]. It was held reasonable and appropriate to order that the limitation periods that apply to the claims of the group members against the fifth to eighth defendants would begin to run again 30 days after the date of the discontinuance order. [97].
Disposition
The Court ordered that the proceedings be discontinued as against the fifth to eighth defendants, and that the limitation periods that apply to claims against those defendants resume running 30 days from the date of the orders. [112].
B Wilson of Counsel