Blue Dog Group Pty Ltd v Credit Suisse Equities

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - CLASS ACTIONS OR GROUP PROCEEDINGS - where the plaintiff sought leave to discontinue representative proceedings against the fifth to eighth defendants - where notice of the application to discontinue was given through national newspaper advertisements directing group members to the plaintiff's solicitor's website - where it was a foreseeable consequence of the discontinuance that the limitation periods in respect of the claims against the fifth to eighth defendants may begin to run again - where group members were informed of the potential need to take prompt action - where there were no responses from the group members - whether the proposed discontinuance was unfair, unreasonable or adverse to group members

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - CLASS ACTIONS OR GROUP PROCEEDINGS - where the plaintiff sought leave to discontinue representative proceedings against the fifth to eighth defendants - whether the discontinuance was a 'decision' for the purposes of s 103Z(2)(b) of the Civil Proceedings Act 2011 (Qld) - whether the limitation periods would remain suspended under s 103Z(1) of the Civil Proceedings Act 2011 (Qld) - whether the power in s 103ZA of the Civil Proceedings Act 2011 (Qld) should be exercised to order that the limitation periods begin to run again from a date after the order granting leave to discontinue

Babscay Pty Ltd v Pitcher Partners [2020] FCA 1610; [2020] 148 ACSR 551, cited

Fenton v Monsanto Australia Pty Ltd [2024] FCA 1525, followed

Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd [2024] QCA 74, cited

Moira Shire Council v JLT Risk Solutions Pty Ltd [2024] VSC 4, not followed

R & B Investments Pty Ltd v Blue Sky Alternative Investments Ltd (Administrators Appointed) (in liq) (Carriage Application) [2022] FCA 1444, followed

Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435, followed

Civil Proceedings Act 2011 (Qld), s 103R, s 103Z, s 103ZA

Uniform Civil Procedure Rules 1999 (Qld), r 303(1), r 304(2)

• [1] The plaintiff applies for leave to discontinue the representative proceeding against each of the fifth to eighth defendants on the basis that the plaintiff pays the costs of the fifth to eighth defendants on the standard basis (Discontinuance Application).[1] Each of the fifth to eighth defendants do not oppose the Discontinuance Application.
• [2] Each of the fifth to eighth defendants apply for an order pursuant to s 103R and/or 103ZA of the Civil Proceedings Act 2011 (Qld) (CP Act) that the limitation periods begin to run again from the date 30 days after the order granting leave to discontinue the proceeding and costs (Limitation Period Applications).[2]
• [3] The plaintiff does not oppose the Limitation Period Applications but submits that the defendants are to satisfy the Court that the Court has power, and it is appropriate, to make the orders sought.[3]
• [4] The four applications were heard together on 30 April 2025. The issues for determination are:

(a) Should leave be granted to the plaintiff to discontinue the representative proceeding as against each of the fifth to eighth defendants?

(b) If so, should the Court order that the limitation periods applying to the claims against the fifth to eighth defendants begin to run again from a date after the order granting leave to discontinue?

(c) What are the appropriate orders?

• [5] Each of these issues have various sub-issues which will be addressed in the consideration of the main issue.

Should leave be granted to the plaintiff to discontinue the representative proceeding as against each of the fifth to eighth defendants?

• [6] In March 2024, two separate Supreme Court proceedings were commenced by the plaintiff as representative proceedings pursuant to Part 13A of the CP Act. Proceeding number 2951 of 2024 was commenced against ten defendants and proceeding number 3644 of 2024 was commenced against three defendants. On 19 July 2024, Bradley J ordered that the proceedings be consolidated and that the consolidated proceeding proceed under proceeding number 2951 of 2024.[4]
• [7] On 30 July 2024, the plaintiff filed a consolidated statement of claim against the 13 defendants alleging various claims including conspiracy, contravention of s 1041E(1), s 1041F(1) and s 1041H(1) of the Corporations Act 2001 (Cth) (Corporations Act), and insider trading. The claims pleaded against the fifth to eighth defendants can be briefly summarised as follows:

(a) as against the fifth defendant:

(i) contravention of s 1041E(1), s 1041F(1) and s 1041H(1) of the Corporations Act;

(ii) involvement in a conspiracy with the ninth and tenth defendants and an involvement in the alleged contravention of s 1041E(1), s 1041F(1) and s 1041H(1) of the Corporations Act by the ninth and tenth defendants;

(b) as against the sixth and seventh defendants:

(i) contravention of s 1041E(1), s 1041F(1) and s 1041H(1) of the Corporations Act;

(ii) involvement in a conspiracy with the ninth and tenth defendants, and/or the eighth defendant, and an involvement in the alleged contravention of , and of the by the ninth and tenth defendants;

• [8] Each of the defendants brought an application to strike out the consolidated statement of claim. Consent orders were made on 23 September 2024 striking out the consolidated statement of claim and the plaintiff was ordered to file an application for leave to replead.
• [9] Further, on 3 October 2024 the representative proceeding against the first defendant, the Australian Securities and Investments Commission, was struck out.
• [10] Following the consolidated statement of claim being struck out, the solicitor for the plaintiff wrote to the solicitors acting for the fifth to eighth defendants seeking answers to specific questions relevant to the claim pleaded against those defendants. The correspondence is set out at Exhibits WEW 2 to 8 to the affidavit of Dr Wild affirmed 18 December 2024.
• [11] Each of the fifth, sixth, seventh and eighth defendants provided substantive responses to the questions asked. The practical result of the substantive responses provided by the fifth to eighth defendants is, in part, that certain inferences that were previously relied upon were no longer available.
• [12] On 18 December 2024, the plaintiff filed two further applications. The first being the Discontinuance Application and the second, an application seeking leave to replead against the remaining defendants.[5]
• [13] The application for leave to replead is being dealt with separately by another judge. Relevant to the Discontinuance Application, the proposed amended claim and amended consolidated statement of claim does not plead any claims against the fifth to eighth defendants.
• [14] The Discontinuance Application is made pursuant to s 103R and/or 103ZA of the CP Act and Rule 303(1) and/or 304(2) of the Uniform Civil Procedure Rules (UCPR).
• [15] Section 103R(1) of the CP Act provides:

"A representative proceeding may not be settled or discontinued without the approval of the court."

• [16] Section 103ZA of the CP Act provides the Court with a general power as follows:

"In any proceeding, including an appeal, conducted under this part, the court may, on its own initiative or on an application by a party or group member, make any order the court considers appropriate or necessary to ensure justice is done in the proceeding."

(a) Rule 303(1): "A party who represents another person in a proceeding may discontinue or withdraw only with the court's leave".

(b) Rule 304(2): "... after being served with the first defence or first affidavit in reply, a plaintiff or applicant may discontinue a proceeding or withdraw part of it only with the court's leave or the consent of the other parties".

• [18] The plaintiff seeks to discontinue the representative proceeding unilaterally against each of the fifth to eighth defendants. It is submitted that in these circumstances the Court is to consider whether the proposed discontinuance is unfair, unreasonable or adverse to group members.[6]
• [19] Whilst there is some potential divergence of views as to the test to be applied, the plaintiff submits that this is the appropriate test as the practical effect of the proposed discontinuance of the representative proceeding against the fifth to eighth defendants is to return group members to the position they were in before the commencement of the proceeding. This view is consistent with recent decisions of the Federal Court on the issue.[7]
• [20] The plaintiff contends that the proposed discontinuance is not unfair, unreasonable or adverse to group members, particularly where there is nothing to suggest that group members will suffer any prejudice or disadvantage by it. Relevantly, notice of the Discontinuance Application was given to group members by advertisements published nationally in newspapers (both electronically and in hard copy) (Advertisements) directing them to information placed on the plaintiff's solicitor's website (Website Information) and no group member has objected or identified any prejudice, nor sought to appear.
• [21] The plaintiff has identified a potential consequence of the proposed discontinuance in respect of the limitation periods that needs to be considered by the Court. The limitation periods in respect of the claim of group members to which the proceeding relates may start running again from any order granting leave to discontinue (or an order of the Court). The consequence that flows from that is that group members may only have a short period of time to commence any proceedings on their own behalf before the limitation periods expire.
• [22] The Advertisements and the Website Information informed group members of the Discontinuance Application, the risk in respect of the limitation periods beginning to run again, and that group members may need to take action promptly to preserve their rights.
• [23] The plaintiff submits that this notice to group members mitigates the risk of any adverse impact of the discontinuance on group members.

".... the court will, normally, at any rate, allow a plaintiff to discontinue if he wants to, provided that no injustice will be caused to the defendant. It is not desirable that a plaintiff should be compelled to litigate against his will. The court shall therefore grant leave, if it can, without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he has already gained..."[9]

• [27] In Turner v TESA Mining (NSW) Pty Ltd (No 2), the approach of whether the discontinuance is unfair, unreasonable or adverse to group members was recognised as the appropriate test where the practical effect of the discontinuance is to return group members to the position they were in before the commencement of the representative proceeding.[10]
• [28] More recently in R & B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Carriage Application), Lee J reaffirmed his view that there was no real difference between the two tests.[11]
• [29] Here, it is uncontentious between the parties that the unilateral discontinuance of the representative proceeding against the fifth to eighth defendants places the group members in the same position they would have been in if the representative proceeding had not been commenced. There is an argument that the group members may in fact be in a better position.[12]
• [30] In respect of this issue, Murphy J in Turner v TESA Mining (NSW) Pty Ltd (No 2) recognised that:

"[T]he group members will be returned to the position they were in before the proceeding was commenced, and their rights against the respondents will not have been affected. There has been no hearing or judicial determination in relation to the merits of [group members'] claims and no question of res judicata or issue estoppel arises. Thus, any group member who wishes to commence his or her own proceeding against one or other of the respondents will be free to do so."[13]

• [31] To assist the Court in considering whether the proposed discontinuance is unfair, unreasonable or adverse to group members, the plaintiff has, consistently with the authorities, sought to identify "any incidental consequences of discontinuance for group members that may foreseeably arise".[14] Here, an identified foreseeable consequence of a discontinuance is that the limitation periods in respect of the claims of group members against the fifth to eighth defendants may start running again.
• [32] By the commencement of the representative proceeding against the fifth to eighth defendants on 8 March 2024, the limitation periods were suspended pursuant to s 103Z(1) of the CP Act. The plaintiff submits that it is likely that the proceeding was commenced about 20 days before the limitation periods would have expired, in respect of at least the claims pleaded under the Corporations Act.[15]
• [33] The imminent expiry of a limitation period is an issue for particular consideration by the Court where leave is sought to discontinue a representative proceeding. An important consideration is whether group members have sufficient time to consider their own individual positions and the Court may take this into account in making appropriate orders.[16]
• [34] Orders were made on 11 February 2025 to facilitate notice being given to group members of the Discontinuance Application through the Advertisements and the Website Information. These steps provided group members an opportunity to raise any issues in response prior to the Discontinuance Application being heard and put them on notice that prompt action may be required to protect their interests if leave was granted to discontinue the representative proceeding and they wanted to commence individual proceedings.
• [35] The operation of s 103Z(2) of the CP Act is considered further below in respect of the second issue. For the purposes of the Discontinuance Application, it is sufficient to identify:

(a) Section 103Z(2) of the CP Act provides that a limitation period does not start running again unless a group member opts out or the representative proceeding is "decided without finally disposing of the member's claim".

(b) An earlier line of authorities proceeded on the basis that upon the discontinuance of a representative proceeding the unexpired period of a limitation period automatically runs. There is a recent Victorian Supreme Court decision which affirms that approach.

(c) However, another recent line of authorities proceed on the basis that the suspension of the limitation period will continue until there is an order of the Court. These authorities will be considered in more detail in respect of the Limitation Period Applications.

(d) On either view, there is a material risk that the suspension of the limitation periods will cease upon discontinuance (or shortly thereafter by an order of the Court) and start running again.

• [36] The affidavit of Dr Wild affirmed 21 March 2025 confirms the steps taken in respect of the Advertisements and the Website Information and the content of the Advertisements and the Website Information in accordance with the orders made on 11 February 2025. Dr Wild also deposes to there being no response from the group members.
• [37] The Advertisements published in newspapers across the country put group members on notice that they should read the Website Information and that individual group members may need to take action promptly to preserve their rights.
• [38] Further, the Website Information specifically identified that if an individual group member chose to commence a proceeding in their own name against one or all of the fifth to eighth defendants, then the group member would only have a short period of time to do that after the proposed discontinuance took effect.
• [39] Whilst the Advertisements and the Website Information did not grapple with the issue of whether the re-activation of the limitation periods operated automatically on the discontinuance or required a Court order, the group members were clearly put on notice that the "worst case scenario" was that time would run from the discontinuance taking effect and they may have only a short period of time to take any action that they choose to before the limitation periods expired.
• [40] There has not been any response from group members raising any basis that the discontinuance would be unfair, unreasonable or adverse to them. Further, no group member has identified any other consequence of the discontinuance that has not been identified by the plaintiff.
• [41] In these circumstances:

(a) There is no evidence that the proposed discontinuance is unfair, unreasonable or adverse to group members.

(b) The impact of the identified foreseeable consequence of the discontinuance that the limitation periods in respect of the claims of group members against the fifth to eighth defendants may start running again is substantially mitigated by the notice that has been given to the group members through the Advertisements and the Website Information. The group members have been on notice of the Discontinuance Application and the risk in respect of the re-activation of the limitation periods since on or about 11 February 2025, being a period of approximately four months.

(c) The effect of the unilateral discontinuance is that the group members are put in the same position as if the representative proceeding had not been commenced. There is no identified prejudice to the group members by the representative proceeding having been commenced against the fifth to eighth defendants and later discontinued.

• [42] Accordingly, I am satisfied that the discontinuance of the representative proceeding against the fifth to eighth defendants would not be unfair, unreasonable or adverse to group members. Subject to the consideration of the Limitation Period Applications, it is appropriate to make the orders sought in the Discontinuance Application.

Whether the Court should order that the limitation periods recommence?

• [43] Each of the fifth, sixth and seventh, and eighth defendants provided written submissions in respect of the Limitation Period Applications and further oral submissions were made at the hearing, with the sixth and seventh defendants taking the lead. The ultimate positions of the defendants are consistent in respect of the construction of s 103Z(2) of the CP Act, the power of the Court to order that the limitation periods recommence, and the appropriateness of making such an order.
• [44] The plaintiff's submissions refer to the divergent views in the authorities in respect of the construction of s 103Z(2) of the CP Act but do not contend for a particular construction given it is for the defendants to persuade the Court in respect of the issue.
• [45] In respect of each of the Limitation Period Applications, the fifth to eighth defendants contend that if the Court grants leave to discontinue the representative proceeding, then the Court should also order that the limitation periods in relation to the claims made against the fifth, sixth, seventh and eighth defendants recommence 30 days after leave to discontinue is granted.
• [46] The fifth to eighth defendants submit that this contention is consistent with three recent orders made in representative proceedings in the Federal Court under the equivalent provisions in the Federal Court of Australia Act 1976 (Cth) (Federal Court Act): namely, Turner v TESA Mining (NSW) Pty Ltd (No 2),[17] R & B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Carriage Application),[18] and Fenton v Monsanto Australia Pty Ltd.[19]
• [47] It is acknowledged that a contrary view has been taken by Lyons JA of the Victorian Supreme Court in Moira Shire Council v JLT Risk Solutions Pty Ltd.[20]
• [48] The rationale for the contention is:

(a) By operation of s 103Z(1) of the CP Act, the commencement of the representative proceeding suspended any further limitation periods which apply to the group members' claims against the fifth to eighth defendants.

(b) Section 103Z(2) of the CP Act specifies the particular circumstances in which the limitation periods resume to run.

(c) On the proper construction of s 103Z(2) of the CP Act, the particular circumstances are not engaged by a discontinuance of a representative proceeding.

(d) The consequence that follows is that the limitation periods may remain suspended indefinitely.

(e) The proper construction of s 103Z(2) of the CP Act results in a "gap" in the legislation which produces an "extraordinarily unjust" result.

(f) It is appropriate to make the order sought pursuant to the general powers of the Court:

(i) pursuant to s 103ZA of the CP Act, to make any order that the Court considers appropriate or necessary to ensure justice is done in the proceeding; or

(ii) pursuant to s 103R of the CP Act, as a condition of the leave to discontinue being granted.

• [49] It is necessary to consider the relevant provisions in the CP Act and the equivalent provisions in the Federal Court Act and the Supreme Court Act 1986 (Vic) (Victorian Supreme Court Act), together with the identified authorities.
• [50] Section 103Z of the CP 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

(b) the representative proceeding, and any appeal from the

proceeding, is decided without finally disposing of the

(3) This section applies despite anything in the Limitation of Actions Act 1974 or any other law or rule of law." (emphasis added)

• [51] Section 33ZE(2) of the Federal Court Act states:

"The limitation period does not begin to run again unless either the member opts out of the proceeding under section 33J or the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim."[21] (emphasis added)

• [52] The provisions are substantially the same. One difference that may be relevant is the CP Act uses "decided" and the Federal Court Act and the Victorian Supreme Court Act use "determined". This will be considered further later in these reasons.
• [53] In Turner v TESA Mining (NSW) Pty Ltd (No 2), Murphy J summarised the history of the uncertainty as to whether a discontinuance of a representative proceeding is a "determination" of the proceeding for the purpose of s 33ZE(2) and construed the provision.[22]
• [54] His Honour stated:

"[20] It is high time that this uncertainty is put to bed. I agree with Lee J's construction of s 33ZE(2) in Gill at [22]. Both textually and contextually, the phrase 'the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim', indicates that a 'determination' is properly understood as a judicial resolution of a group member's claim. It is directed to the suspension of the limitation period continuing unless and until a decision has been made by the group member opting out or there has been some judicial resolution of the claim of the group member.

[21] This construction is also consistent with the statutory purpose. The Explanatory Memorandum to the [Federal Court Act] at [49] states:

[Section 33ZE] is designed to remove any need for a group member to commence an individual proceeding to protect himself or herself from expiry of the relevant limitation period in the event that the representative action is dismissed on a procedural basis without judgment being given on the merits.

[22] It is also consistent with Lam v Rolls Royce PLC (No 5) [2016] NSWSC 1332 at [13] where, in relation to the cognate provision of the NSW class action regime, Beech-Jones J said that it 'appears to contemplate the Court finally determining a group member's claim and that must extend to either upholding it or dismissing it in such a way to finally determine it.'

[23] As has been noted, the difficulty with this construction is that it is capable of causing real unfairness to the respondent to a class action. If s 33ZE(2) is construed in this way, upon the Court approving the discontinuance of a representative proceeding, the respondent will be left in the position that the limitation period applicable to a group member's claim (which is suspended by operation of s 33ZE(1)) will remain suspended and the respondent will be forever exposed to the risk of claims by group members. It is unlikely that the legislature intended such a result."

• [55] His Honour went on to conclude that the identified unfairness could be addressed by an order under the power in ss 33V(1) and 33ZF, and it was appropriate to make an order that the limitation periods that applied to the claims of group members to which the proceeding related began to run again from the date 60 days after the applicant filed a notice of discontinuance.
• [56] This form of order reflects the procedure in the Federal Court for the discontinuance of a proceeding, and the Court concluded that a 60 day period was appropriate to provide sufficient time for the group members to seek advice and commence any proceedings on their own behalf.[23]
• [57] Subsequently to that decision, Lee J further considered this issue in R & B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Ltd (Administrators Appointed) (in liq) (Carriage Application).[24] His Honour relevantly stated:

"[27] In Turner (at 220 [20]), Murphy J agreed with my construction in Gill v Ethicon Sarl (No 4) [2019] FCA 1814 (at [22]) that under s 33ZE(2) a limitation period remains suspended unless and until a decision has been made by the group member to opt out, or there has been some judicial resolution of the group member's claim (which does not occur upon discontinuance by the applicant). Indeed, the whole point of discontinuance is that it does not mean the underlining res had been finalised.

[28] It should be said, however, that this construction may operate unfairly. As Murphy J acknowledged in Turner (at 221 [23] - [24]) ...

[29] Section 33ZE is an important part of the scheme in Pt IVA. It was expressly inserted into the [Federal Court Act] to deal with circumstances which may not have been evident at the time Pt IVA was enacted. It operates as a 'gap filler'. As Murphy J noted, it is intolerable that respondents should be subjected to a suspended limitation period, notwithstanding there is no extant litigation against them, and it is highly unlikely this 'gap' in the scheme reflected any intention of the legislature."

• [58] The next decision of relevance is that of Lyons JA in Moira Shire Council v JLT Risk Solutions Pty Ltd where a contrary conclusion was reached on the construction of s 33ZE(2).[25]
• [59] In that matter, the Court considered an application for leave to discontinue the representative proceeding, together with a request[26] for an order that any applicable limitation periods continue to run 30 days after the orders approving the discontinuance. Lyons JA approved the discontinuance but did not make the order in respect of the recommencement of the limitation periods.
• [60] The application was made in the context of a discontinuance pursuant to terms of a settlement deed providing that group members were free to pursue their own claims.[27] The application was dealt with on the papers, without the benefit of oral submissions.[28]
• [61] In respect of the limitation period issue, Lyons JA considered the development of the "narrow construction" and the "broader construction" of s 33ZE.[29] Further, in construing "determined" in s 33ZE(2), Lyons JA stated:

"[48] I am conscious of the particular experience of Murphy J and Lee J in relation to group proceedings. Nevertheless, and not withstanding there was no oral argument or contradictor, I prefer the view that 'determined' for the purpose of s 33ZE(2) of the [Victorian Supreme Court Act] includes discontinuance of a group proceeding, with the result that filing the notice of discontinuance ends the suspension (i.e. the broader construction)."

• [62] That is, "determined" means "to come to an end" or "terminate". No requirement for judicial resolution arises from the language, nor is it supported by the statutory context or purpose.[30] Once leave is granted, a group proceeding is "determined" for the purposes of s 33ZE(2) upon the filing of a notice of discontinuance.[31]
• [63] The reasons for this conclusion included:

(a) The meaning of "determined" considered in context does not mean "only by way of a judicial determination". It could be a judicial determination without disposing of the group member's claims or the proceeding could be determined by other means such as a consent order or the filing of a notice of discontinuance.[32] This also extends to any appeals arising from the proceedings.[33]

(b) Construing "determined" to included "discontinuance" sits comfortably with the statutory purpose. The protection of the suspension in s 33ZE(1) ends when the notice of discontinuance is filed following court approval.[34]

(c) The practical consequence of a construction that results in a limitation period continuing indefinitely indicates why that construction is not preferable.[35]

(d) Leaving aside the views of Murphy J and Lee J, the "weight of authority, albeit expressed in obiter" supports the broader construction.[36]

(e) If a judicial determination is required, the requirement is met by the necessary court approval being given and the limitation period resumes upon the filing of a notice of discontinuance.[37]

• [64] Consequently, it was not necessary to make the order sought.
• [65] Most recently, the issue arose in Fenton v Monsanto Australia Pty Ltd and, subsequently to granting leave to discontinue, Lee J ordered that any limitation periods that applied to a claim of group members began to run again 60 days after the date of the orders.[38]
• [66] In respect of both the application for leave to discontinue and the application for an order that any limitation periods re-commence, Lee J emphasised the differences between a discontinuance and a dismissal. These differences include:

(a) A discontinuance being an act of the moving party and a dismissal being an act of the Court.[39]

(b) More particularly in a practice and procedure context, a discontinuance is a "breaking off or ending of proceedings" by an act of the applicant. In contrast, a dismissal is an order for "the termination of a plaintiff's action in favour of the defendant".[40]

(c) A discontinuance is no bar to fresh proceedings for the same relief.[41]

• [67] In considering the issue of whether an order pursuant to s 33ZF of the Federal Court Act was necessary, Lee J considered the reasoning of Lyons JA in Moira Shire Council v JLT Risk Solutions. Relevantly, his Honour stated:

"[25] I do not propose to wade further into this debate, save to note that the word 'determine' has an ordinary English meaning but, more importantly, has a legal meaning. As the High Court observed in Patton v Buchanan Borehole Collieries Pty Ltd [1993] HCA 23; (1993) 178 CLR 14 (at 17 per Mason CJ, Deane and Dawson JJ), the word 'tried' in the context of a provision of the District Court Act 1973 (NSW) means 'heard and determined' (emphasis added).

[26] It seems to me the notion of determination is to quell or resolve, in some way or another, a justiciable controversy by the operation of judicial power. This may be done either through a claim being heard and determined, or resolved by way of an approved settlement which, generally speaking, alters the rights of a group member against the respondent into a substituted right to participate in the administration of a settlement fund (or to participate in a settlement). It is readily apparent that these concepts encompass the resolution or determination of a claim of a group member. The claim of the group member comes to an end.

[27] But by way of contrast ... discontinuance is a unilateral action undertaken by an applicant, in contrast to the dismissal of a claim, and it seems to me to fall into a different category. It may be pragmatic to adopt a different and 'broader' construction, but the distinction between dismissal or merger of rights (which legally resolves or determines the claim) and discontinuance (which does not legally resolve or determine the claim) is a fundamental one, and I continue to adhere to the view that the appropriate way of resolving an apparent anomaly in the statute is to use the gap-filling power in s 33ZF." (emphasis added)

• [68] In considering the Limitation Period Applications, the starting point is to construe s 103Z of the CP Act in context. Accordingly, the use of "decided" in s 103Z rather than "determined" falls to be considered.
• [69] It was submitted that the word "decided" has a narrower meaning than "determined". "Decided" is not defined in the CP Act, nor is there any definition in the Acts Interpretation Act 1954 (Qld).
• [70] Dictionary definitions do not provide any particular assistance in this exercise. If anything, the dictionary definitions may lead to circularity. For example, the written submissions include the Oxford English Dictionary meanings of both "decide" and "determine", which both have similar elements. Both contain an element of resolution or conclusion. One meaning of "determine" is "settle or decide".
• [71] As recognised by Lee J in Fenton v Monsanto Australia Pty Ltd,[42] dictionary definitions do not address the legal meaning, particularly in a procedural context. As is evident from the nature of a unilateral discontinuance, the underlying cause of action is not modified or impacted and can continue (subject to any limitation periods). The reasoning of Lee J in Fenton v Monsanto Australia Pty Ltd is highly persuasive.
• [72] Part 13A of the CP Act contains the provisions providing for representative proceedings in the Supreme Court of Queensland. As recognised in the Explanatory Notes to the Limitations of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016_,_ the amendments to the CP Act were to:

"introduce a comprehensive statutory regime to facilitate the effective conduct and management of representative proceedings (commonly called 'class actions') in Queensland."[43]

• [73] Further, the amendments to the CP Act were to:

"enact a statutory regime modelled on substantially similar legislative schemes in place in the Federal Court of Australia (under the [Federal Court Act] (Part IVA)); in Victoria (under the [Victorian Supreme Court Act] (Part 4A)) and in New South Wales (under the Civil Procedure Act 2005 (NSW) (Part 10)).

This new statutory regime will enhance access to justice and promote efficiency in the administration of justice by providing a clear and comprehensive set of procedures for the conduct and management of representative proceedings. It provides for matters which include the threshold requirements to commence a representative proceeding, standing, group (or class) membership, settlement, discontinuance of proceedings, costs, distribution or payment of money to group members and appeals."[44]

• [74] In respect of the notes on specific provisions, the Explanatory Notes are brief and relevantly provide:

(a) In respect of s 103R: "requires any settlement or discontinuance of representative proceedings to be approved by the court. If the court gives approval, it may make any orders it considers just for the distribution of money paid under a settlement or paid into court".

(b) In respect of s 103Z: "provides for the suspension of certain limitation periods on the starting of a representative proceeding".

(c) In respect of s 103ZA: "provides that in any proceeding, including an appeal conducted under Part 13A, the court may, on its own initiative or on an application by a party or group member, make any order the court considers appropriate or necessary to ensure justice is done in the proceeding".[45]

• [75] The use of "decided" in s 103Z(2)(b) of the CP Act appears to be a drafting change adopted throughout the provisions in Part 13A with "decide" being used rather than "determine".[46] For example:

(a) Section 103M of the CP Act (the equivalent of s 33Q of the Federal Court Act) states: "[i]f it appears to the court that deciding the issue or issues common to all group members will not finally decide the claims of all group members..." (emphasis added). In contrast, s 33Q states "determination" and "determine" respectively.

(b) Section 103V(1) of the CP Act (the equivalent of s 33Z of the Federal Court Act) states:

"The court may do any 1 or more of the following in deciding a matter in a representative proceeding -

(a) decide an issue of law;

(b) decide an issue of fact;

(c) make a declaration of liability;

(d) grant equitable relief;

(e) make an award of damages for group members, sub-group members or individual group members, consisting of stated amounts or amount worked out in a stated way;

(f) award damages in an aggregate amount without stating amounts awarded in respect of individual group members;

(g) make any other order the court considers just." (emphasis added)

In contrast s 33Z uses "determining" and "determine" respectively.

• [76] The fifth to eighth defendants sought to distinguish the authorities on the basis of the use of "decided" in s 103Z of the CP Act and contended that the approach of Murphy J and Lee J reflected the proper construction of s 103Z(2)(b) of the CP Act.
• [77] It is submitted that "decide" is narrower than "determine". While that may be arguable on some parts of the dictionary definitions, construing "decide" in the context of the CP Act, and in particular s 103V concerning the power of the Court, that conclusion is not reached.
• [78] Both "decide" and "determine" construed in context involve a task for judicial resolution to a level of finality. It involves a judicial intellectual process of evaluating competing positions and reaching a resolution.
• [79] A unilateral discontinuance procedurally concludes the representative proceeding,[47] leaving the cause of action "unmodified" and capable of being pursued in other proceedings. Nothing has been "decided" in respect of a group member's claim.
• [80] A settlement of a representative proceeding may have the character of a discontinuance, a dismissal, a judgment, or a combination of them depending on the terms of the settlement in a particular case. A settlement may give rise to other considerations depending on the particular facts.
• [81] The reasoning of Murphy J and Lee J in Turner v TESA Mining (NSW) Pty Ltd (No 2),[48] R & B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Ltd (Administrators Appointed) (in liq) (Carriage Application),[49] and Fenton v Monsanto Australia Pty Ltd[50] is highly persuasive and I consider it is the correct construction and approach. The reasoning is consistent with the construction of s 103Z of the CP Act outlined above.
• [82] The Discontinuance Application requires a consideration of whether the proposed ending of the representative proceeding by the plaintiff[51] is "unfair, unreasonable or adverse" to the group members. Whilst the grant of leave to discontinue brings the representative proceedings to an end, nothing has been "decided" in respect of a group member's claim.
• [83] The consequence is that s 103Z(2)(b) of the CP Act is not established and the limitation periods remain suspended.

"[29] In the circumstances of the present case there is a gap to be filled and such an order is appropriate or necessary to ensure justice is done in this proceeding. Having regard to the reasons set out at [61]-[73] below, it is plain that the Court should approve discontinuance of the proceeding, but if that is done the respondents will be left in a position where the limitation periods applicable to group members' claims will remain suspended and their claims will never become time-barred. The respondents would be exposed to a risk of claims by group members in perpetuity.

[30] The criterion in s 33ZF, 'appropriate or necessary to ensure justice is done in the proceeding', involves consideration of the position of the parties and group members. An order preventing unfairness to a particular party may be appropriate or necessary to ensure justice is done in the proceeding: McMullin v ICI Australia Operations Pty Ltd [1998] FCA 658; 84 FCR 1 at 4 (Wilcox J). In the circumstances [of] the present case, it is in the interests of justice in the proceeding that the respondents do not remain exposed to the risk of group members' claims in perpetuity. To adapt the words of the plurality in Brewster (at [47]), an order that the limitation periods applicable to the claims of the group members to which the proceeding relates begin to run again from the date 60 days after the applicant files a notice of discontinuance, will assist in ensuring that 'the proceeding is brought fairly and effectively to a just outcome'. Such an order is within power.

[31] To make such an order is not to rewrite or modify s 33ZE (cf Oculus at [57]), but merely to recognise that there is a gap in the legislative regime."

• [87] In R & B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Carriage Application),[53] Lee J similarly reasoned:

"[29] Section 33ZE is an important part of the scheme in Pt IVA... It operates as a 'gap filler'. As Murphy J noted, it is intolerable that respondents should be subjected to a suspended limitation period, notwithstanding there is no extant litigation against them, and it is highly unlikely this 'gap' in the scheme reflected any intention of the legislature."

• [88] In Fenton v Monsanto Australia Pty Ltd, Lee J again concluded in respect of this issue: "... the appropriate way of resolving an apparent anomaly in the statute is to use the gap-filling power in s 33ZF."[54]
• [89] The equivalent power in the CP Act is contained in s 103ZA (see provision in full set out at [16] above).
• [90] Recently, in Gladstone Ports Corporation Ltd v Murphy Operator Pty Ltd,[55] the Queensland Court of Appeal recognised that the power in s 103ZA of the CP Act is wide enough to enable the Court to make any order necessary to ensure that justice is done, but the power in s 103ZA is concerned with "filling gaps" consistent with the reasoning of the High Court decision in BMW Australia Ltd v Brewster in respect of s 33ZF.[56]
• [91] Given the classification of a "gap filling" power, it is necessary that there is, in effect, a gap. On the construction of s 103Z of the CP Act outlined above, a gap or "lacuna" arises. Section 103ZA of the CP Act is available as a basis for the Court to order that the limitation periods recommence to run from a specified date.
• [92] An alternative basis is as a condition of the Court's grant of leave to discontinue. Section 103R(1) of the CP Act is set out in full at [15] above.
• [93] The fifth to eighth defendants submit there is an implied power to impose conditions as part of approving a discontinuance as reflected in the decision of Chesterman J in Wickham v Bells Securities Pty Ltd in respect of leave to discontinue under the UCPR:

"UCPR 304 does not, in terms, permit the court to impose conditions on the grant of leave to discontinue but UCPR 310 clearly contemplates that conditions may be imposed to which the grant of leave is subject. There are a number of cases in which leave to discontinue is made conditional upon the plaintiff not commencing fresh proceedings arising out of the same cause of action, or circumstances, which were the subject of the proceedings allowed to be discontinued."[57]

• [94] Given the injustice and unfairness to the fifth to eighth defendants as a consequence of the discontinuance and the suspension of the limitation periods continuing in perpetuity without an order of the Court, s 103R of the CP Act provides a basis for the Court to impose a condition on the discontinuance that the limitation periods recommence running from a specified date.
• [95] The fifth to eighth defendants contend that it would be appropriate to provide a period of 30 days from the date of the order granting leave to discontinue the representative proceedings after which the limitation periods recommence. This is less than what was ordered in Turner v TESA Mining (NSW) Pty Ltd (No 2), R & B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrator Appointed) (in liq) (Carriage Application) and Fenton v Monsanto Australia Pty Ltd where a period of 60 days was allowed_._
• [96] It is contended that here, the group members have been on notice since 11 February 2025 and the Court should take into account the period between the date of the Website Information and the order being made. It is submitted that the period of 30 days is reasonable, given the approximately four months that the group members have already had.[58]
• [97] I have reached the conclusion that it is reasonable and appropriate to order that the limitation periods that apply to the claims of the group members against the fifth to eighth defendants to which the proceeding relates shall begin to run again from the date 30 days after the date of the discontinuance order. In reaching this conclusion, I have taken into account the injustice and unfairness to the fifth to the eighth defendants and allowed a reasonable time for the individual group members to take advice and commence proceedings, if they choose to do so.
• [98] At least in respect of the claims under the Corporations Act, there are approximately 20 days of the limitation periods still to run. Allowing a period of 30 days effectively gives the group members just over one and a half months from the date of the order, which is on top of the approximately four months that has already passed since the Website Information was originally posted on 11 February 2025 and the Advertisements were published on 14 February 2025, to take action.

• [99] The agreed form of orders sought by the plaintiff and the fifth to eighth defendants are as follows:

1. Pursuant to section 103R of the Civil Proceedings Act 2011 (Qld) and/or Rule 303(1) of the Unform Civil Procedure Rules 1999 (Qld), the plaintiff has leave to discontinue the proceeding against each of the fifth, sixth, seventh and eighth defendants.
2. Pursuant to section 103R and/or 103ZA of the Civil Proceedings Act 2011 (Qld), the limitation periods that apply to the claims of the group members against the fifth, sixth, seventh and eighth defendants to which the proceeding relates shall begin to run again from the date 30 days after the date of order 1.
3. The plaintiff pay the fifth, sixth, seventh and eighth defendants' costs of the proceeding on the standard basis, as agreed or assessed.
4. The plaintiff pay the fifth, sixth, seventh and eighth defendants' costs of the applications filed 18 December 2024, 1 April 2025 and 2 April 2025 on the standard basis, as agreed or assessed.

1. Order 1 does not affect any rights of any group member to pursue the claims brought in this proceeding, in another proceeding."

• [100] Order 1 is the relief sought by the plaintiff in the Discontinuance Application. Order 2 is the order sought by the fifth to eighth defendants in the Limitation Period Applications.
• [101] Order 3 and order 4 reflect the orders sought and the agreed position on costs in respect of each of the Discontinuance Application and the Limitation Period Applications.
• [102] For the reasons set out above, it is appropriate to make these orders in the terms sought.
• [103] The plaintiff also submits that the Court should make the declaration to the effect that the approval of the discontinuance does not affect the rights and interests of group members in any other proceeding that they may wish to bring to pursue similar claims.
• [104] This declaration has been made by the Federal Court in similar representative proceedings so that group members are not in any doubt about the effect of the court order approving the discontinuance.[59]
• [105] The fifth to eighth defendants take a similar position to that taken in respect of the Discontinuance Application.
• [106] In Turner v TESA Mining (NSW) Pty Ltd (No 2), Murphy J found there was utility in making a similar declaration as it would mean there was "no doubt that any rights group members may have against the respondents are not foreclosed or affected by approval of the discontinuance".[60]
• [107] In Fenton v Monsanto Australia Pty Ltd, Lee J declined to make a similar declaration on the basis that it was procedurally irregular and he was not persuaded that there was any utility in making the declaration where it merely states "a proposition which flows from the very nature of the discontinuance".[61]
• [108] Here, the Website Information does set out the effect of the proposed discontinuance, including that if the representative proceeding is discontinued an individual group member could choose to commence a proceeding in their own name against one or all of the fifth to eighth defendants in relation to the matters alleged in the representative proceeding.[62]
• [109] However, there remains some utility in making the declaration as it provides clarity and certainty to group members, particularly those in a broad group who may not be familiar with court proceedings, and in particular the effect of court approval to discontinue representative proceedings. The legal debate about the construction and operation of s 33ZE(2) itself may add a level of uncertainty to a group member's understanding.

1. Pursuant to section 103R of the Civil Proceedings Act 2011 (Qld) and/or Rule 303(1) of the Unform Civil Procedure Rules 1999 (Qld), the plaintiff has leave to discontinue the proceeding against each of the fifth, sixth, seventh and eighth defendants.
2. Pursuant to section 103R and/or 103ZA of the Civil Proceedings Act 2011 (Qld), the limitation periods that apply to the claims of the group members against the fifth, sixth, seventh and eighth defendants to which the proceeding relates shall begin to run again from the date 30 days after the date of order 1.
3. The plaintiff pay the fifth, sixth, seventh and eighth defendants' costs of the proceeding on the standard basis, as agreed or assessed.
4. The plaintiff pay the fifth, sixth, seventh and eighth defendants' costs of the applications filed 18 December 2024, 1 April 2025 and 2 April 2025 on the standard basis, as agreed or assessed.

1. Order 1 does not affect any rights of any group member to pursue the claims brought in this proceeding, in another proceeding.

[2] Application by the fifth defendant dated 1 April 2025, application by the sixth and seventh defendants dated 1 April 2025 (filed 2 April 2025) and application by the eighth defendant dated 2 April 2025.

[3] Consistent with the observations of Derrington J in Francis v Oculus Accounting Pty Ltd (No. 2) [2021] FCA 1275; (2021) 400 ALR 701 at 716 - 717 [57].

[4] Which is the proceeding in which the current applications are brought.

[5] Being the second, third, fourth and ninth to thirteenth defendants.

[6] Babscay Pty Ltd v Pitcher Partners [2020] FCA 1610; [2020] 148 ACSR 551 at 552 [3], 557 [26]-[29]. See also R & B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed (in liq) (Carriage Application) [2022] FCA 1444 at [24].

[7] See summary of the authorities in Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435 at [8] and also at [10]; R & B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Carriage Application) [2022] FCA 1444 at [24] where Lee J concluded that there was no real difference between the two tests.

[8] This reflects consideration of whether the discontinuance works any injustice against the fifth to eighth defendants. This is considered further in respect of the Limitation Period Applications discussed below.

[9] Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 at 879. This was followed in Fuller v Toms & Ors [2010] QCA 283 at [25].

[10] [2022] FCA 435 at [10] per Murphy J.

[11] [2022] FCA 1444 at [24]. Between whether the question was whether the proposed discontinuance is fair and reasonable to group members, or alternatively whether the proposed discontinuance is unfair, unreasonable or adverse to group members.

[12] In the sense that the relevant limitation periods have been suspended and may recommence (as discussed further in respect of the second issue) and they also have the benefit of the conduct of the representative proceedings to date.

[13] [2022] FCA 435 at [72].

[14] Babscay Pty Ltd v Pitcher Partners [2020] FCA 1610; [2020] 148 ACSR 551 at 558 [32].

[15] The loss and damage claimed was alleged to have been suffered from 28 March 2018 with the publication of the "Glaucus report".

[16] Babscay Pty Ltd v Pitcher Partners [2020] FCA 1610; [2020] 148 ACSR 551 at 559 [37].

[17] [2022] FCA 435.

[18] [2022] FCA 1444.

[19] [2024] FCA 1525.

[20] [2024] VSC 4.

[21] Section 33ZE(2) of the Victorian Supreme Court Act is in identical terms.

[22] [2022] FCA 435, see [12] to [20].

[23] [2022] FCA 435, see [25]. The respondents in that case sought a period of 30 days, but the Court ordered a 60 day period after the filing of a notice of discontinuance by the applicant.

[24] [2022] FCA 1444.

[25] [2024] VSC 4.

[26] The plaintiffs made the request on behalf of the defendant. See [3].

[28] See "DATE OF HEARING: On the papers". See also the statement at [27] "without the benefit of oral argument or any contradictor".

[38] [2024] FCA 1525. In that case Lee J dispensed with the need to file a notice of discontinuance: see [40].

[41] At [20] where UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 is considered, in particular at [47] per Kiefel CJ, Bell and Keane JJ.

[42] [2024] FCA 1525.

[43] Explanatory Memorandum, Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016 (Qld) at page 1.

[46] Possibly also for consistency with other provisions in the existing CP Act.

[47] Or part of the representative proceeding against certain defendants such as the case here.

[48] [2022] FCA 435.

[49] [2022] FCA 1444.

[50] [2024] FCA 1525.

[51] Here in respect of the fifth to eighth defendants only.

[52] [2022] FCA 435.

[53] [2022] FCA 1444.

[54] [2024] FCA 1525 at [27].

[55] [2024] QCA 74 at [112]- [114].

[56] [2019] HCA 45; (2019) 269 CLR 574, see Kiefel CJ, Bell and Keane JJ at 606 [70].

[57] [2006] QSC 167 at [25].

[58] Calculation updated to the date of the orders being made and these reasons being published.

[59] Babscay Pty Ltd v Pitcher Partners [2020] FCA 1610; [2020] 148 ACSR 551 at 561 [43]; Simonetta v Spotless Group Holdings Ltd [2017] FCA 1071 at [29]; Mutch v ISG Management Pty Ltd (No 3) [2023] FCA 648 at [26].

[60] [2022] FCA 435 at [72], referring to Watson v Maximus Holdings (NSW) Pty Ltd [2021] FCA 87 at [60], Babscay Pty Ltd v Pitcher Partners [2020] FCA 1610; [2020] 148 ACSR 551 at 561 [43] and Simonetta v Spotless Group Holdings Ltd [2017] FCA 1071 at [29].

[61] [2024] FCA 1525 at [39].

[62] Affidavit of Scott Castledine sworn 1 April 2025, Exhibit SC-5.

[63] There may be different considerations if there are terms of settlement which make the position clear.