AUB19 v Commonwealth of Australia

1. Proceedings VID185/2019 and VID186/2019 be discontinued, with the approval of the Court.
2. Each party is to bear its own costs of the proceedings.
3. The discontinuance is without prejudice to any claims the applicants in each proceeding may have whether as individuals or representatives, and without prejudice to any claims the group members in each proceeding may have. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 These two proceedings were allocated to my docket in early March 2019, following orders made by the High Court on 11 February 2019 remitting both proceedings to the Federal Court. 2 On 7 March 2019, my Chambers wrote to the parties advising them that the proceedings had been listed for first case management hearing on 2 April 2019. 3 On 28 March 2019, the parties provided signed consent orders to Chambers, as well as a letter. That letter addressed a number of procedural matters, and included an acknowledgment that "[t]he parties agree that s 33C and Pt IVA of the Federal Court of Australia Act 1976 (Cth) are capable of governing these two proceedings and can be applied in their terms". 4 The first case management hearing was vacated on account of the consent orders received from the parties. Orders were subsequently made on 3 April 2019 to, amongst other matters, regularise the identities of the applicants (including by assigning pseudonyms) and timetable the exchange of pleadings (including by granting the applicants leave to file and serve any amended statements of claim). The proceedings were re-listed for case management hearing on 3 September 2019. 5 The parties wrote to my Chambers on 5 June 2019, requesting extensions to the timetabling orders made on 3 April 2019. I made orders granting those extensions on 6 June 2019. The parties were informed that they would be expected to have a trial preparation timetable prepared for discussion at the case management hearing on 3 September 2019. 6 On 28 June 2019, the date that amended statements of claim were due to be filed on behalf of the applicants, an email was received from the applicants' legal representatives indicating that the parties were in "discussions" and that the amended statements of claim would not be filed that day. 7 A few days later, on 2 July 2019, I directed that correspondence be sent to the parties requesting an update on the ongoing conduct of the proceedings, indicating that I would consider whether to list the proceedings for an urgent case management hearing. 8 Later that day, correspondence was received from the applicants' legal representatives indicating that the parties were engaged in "serious discussions" in an effort to resolve the proceedings, and noting that the respondent required further time to consider the proposals. 9 In the circumstances, I agreed to make orders vacating the existing timetabling orders. I also made an order re-listing the proceedings for case management hearing on 10 September 2019, at which time the parties were told to be prepared to provide an update to the Court on their "discussions". 10 On 6 September 2019, the respondent's legal representatives wrote to my Chambers requesting an adjournment of the case management hearing listed on 10 September 2019, on the basis that a "short further amount of time" was required for the parties to continue their "discussions". The parties were informed that appearances were still required at the case management hearing. 11 At the case management hearing on 10 September 2019, it was revealed that the applicants had made offers seeking to resolve the proceedings, but the respondent required at least a further two weeks to respond to those offers. In order to avoid further delay in the proceedings, in circumstances where no substantive programming steps had in fact been taken, I made the following order in both proceedings: If, by 4 pm on Friday 13 September 2019, there is no confirmation on behalf of the respondent by email to the Court, copied to the applicant's solicitors, that the respondent will provide a response to the applicant's offer of settlement of the proceeding to the applicant's solicitors on or before 4 pm on 24 September 2019, the proceeding will be referred to a Judicial Registrar for urgent mediation, and any case management in the context of that mediation that the Judicial Registrar considers appropriate. 12 On 13 September 2019, the respondent's legal representatives wrote to my Chambers advising that no instructions had yet been received to confirm the respondent would provide a response to the offers of settlement by 4 pm on 24 September 2019. Accordingly, orders were made that day referring the proceedings to Judicial Registrar Gitsham for urgent mediation. The proceedings were re-listed for case management hearing on 8 October 2019. 13 In the context of that mediation, on 30 September 2019 two notices of discontinuance were provided to Judicial Registrar Gitsham. The notices were provided to my Chambers on 7 October 2019, and were in the following terms: AUB19 and AUC19, the applicants, discontinues the whole of the proceeding. The discontinuance is by consent on the following terms: 1. Each party to bear its own costs of the proceeding. 2. Without prejudice to any claims the plaintiffs may have whether as individuals or representatives. AUE19 and BJF19, the applicants, discontinues the whole of the proceeding. The discontinuance is by consent on the following terms: 1. Each party to bear its own costs of the proceeding. 2. Without prejudice to any claims the plaintiffs may have whether as individuals or representatives. 14 In correspondence to Chambers, the respondent's legal representatives referred to these notices and queried whether appearances were still required at the case management hearing on 8 October 2019. In response, the parties were relevantly advised as follows: … her Honour expects the parties to appear at the case management hearing listed at 9.30am tomorrow to discuss those notices. In particular, her Honour requests that the parties be prepared to address how the requirements of s 33V of the Federal Court of Australia Act 1976 (Cth) are to be met in the circumstances, having regard to the principles relevant to the Court's grant of approval to discontinue representative proceedings as recently summarised by Murphy J in Adams v Navra Group Pty Ltd [2019] FCA 1157 at [19]. 15 Due to issues with counsel availability, and circumstances which led to me being unavailable on an alternative hearing date, the parties were given leave to file written submissions in lieu of appearances.