First Plaintiff v Defendant

1 The plaintiffs are two Victorian local municipal councils constituted by the Local Government Act 1989 (Vic) (LGA) and bring this proceeding on the behalf of 16 other Victorian local councils also constituted by the LGA (group members). I will refer to the plaintiffs and group members together as the Victorian local councils.

2 The plaintiffs brought this proceeding against the defendant, JLT Risk Solutions Pty Ltd (JLT) which, through a mutual fund, procured insurance against property risks on behalf of the Victorian local councils. In summary, there are two claims against JLT (the JLT claims): first, for breach of contract and negligence by reason of JLT's alleged failure to identify and pursue property insurance options on the open market (loss of opportunity claim); and second, for breach of fiduciary duty by reason of JLT receiving 'underwriting fees', where those amounts were allegedly not referrable to underwriting services (underwriting fee claim).

3 In this application, the plaintiffs now seek leave to discontinue this proceeding pursuant to s 33V of the Supreme Court Act 1986 (Vic) (the Act) (discontinuance application). JLT does not oppose the discontinuance application. Further, at the request of JLT, the plaintiffs seek an order, pursuant to ss 33V and 33ZF of the Act, that any limitation period applicable to the plaintiffs' claims (and the claim of any group member) continues to run from 30 days after orders are made by the Court approving the discontinuance of the proceeding (limitation period application). The plaintiffs also sought an order dispensing with the requirement to notify group members of the discontinuance application pursuant to ss 33X(4) and 33Y of the Act, which I declined to make. As a result, pursuant to an order made 18 September 2023, notice of the discontinuance application and the limitation period application was given to group members on 19 September 2023. No group member sought to oppose the discontinuance application or the limitation period application.

(a) to approve the discontinuance application, with no further order as to costs; and

(b) not to grant the limitation period application.

5 In support of their applications, the plaintiffs rely upon two affidavits of Ms Michelle Fox, solicitor for the plaintiffs, affirmed 7 August and 23 October 2023. The plaintiffs and JLT also filed submissions.

6 JLT and its associated entities controlled a mutual fund: 'JLT (Municipal Asset Protection Plan) - Discretionary Trust Arrangement' (JMAPP). Among other things, JMAPP procured insurance against property risks on behalf of its members, being municipal local councils and other local government bodies. The plaintiffs allege that JLT provided insurance broking services for the members of JMAPP (including the Victorian local councils) between 1 January 2009 and 28 June 2019.

7 As noted above, the JLT claims comprise two principal claims arising from its operation of JMAPP, and in particular, the annual renewal process. As to the loss of opportunity claim, the plaintiffs claim to have suffered loss or damage in the financial years from 2009 to 2019, being loss of a commercially valuable opportunity to obtain cheaper alternative property insurance than that obtained for them by JLT. As to the underwriting fee claim, the plaintiffs allege that 'underwriting fees' were paid in the years from 2010 to 2019 which were not referrable to underwriting services, but instead constituted undisclosed commissions.

8 This proceeding was filed on 28 June 2019. On 23 July 2021, the hearing date in this proceeding was vacated to await the outcome of a New South Wales Supreme Court group proceeding brought on behalf of local councils in NSW (the NSW group members) against JLT, by reason of JLT procuring insurance through the NSW equivalent of JMAPP: Richmond Valley Council v JLT Risk Solutions Pty Ltd [2022] NSWSC 1761 (NSW proceeding). This is because the resolution of the NSW proceeding was likely to inform this Court's assessment of the plaintiffs' loss of opportunity claim. The plaintiff in the NSW proceeding (NSW plaintiff) did not make a claim analogous to the underwriting fee claim.

9 On 19 December 2022, Williams J handed down judgment in the NSW proceeding. The alleged broking services, contracts and recommendations were key premises underlying the causes of action against JLT. Most relevantly, Williams J held that:

(a) JLT did not provide or undertake to provide the alleged broking services,[1] nor did an alleged contractual arrangement govern provision of any such services;[2]

(b) JLT did not recommend that the NSW plaintiff should obtain or renew its liability insurance and/or property insurance through the NSW equivalent of JMAPP);[3]

(c) JLT did not owe the alleged duties of care to the NSW plaintiff,[4] nor did it breach those duties (if they were in fact owed);[5]

(d) even if a duty had been owed and breached, the NSW plaintiff did not establish loss of any commercially valuable opportunity that could enliven an entitlement to damages;[6] and

(e) JLT was not in a fiduciary relationship with the NSW plaintiff and, in any event, consistent with (d) above, no entitlement to equitable compensation would have arisen.[7]

10 The claims made on behalf of the NSW group members were relevantly the same as the NSW plaintiff's, with the result that their claims were similarly disposed of.[8]

11 Notwithstanding that the facts and documents relied upon in the NSW proceeding were not precisely the same as those in this proceeding, the legal advisers for the plaintiffs considered that, having regard to the overlap of legal and evidentiary issues, resolution of the NSW proceeding was relevant to the prospects of the loss of opportunity claim, in particular the likelihood of obtaining damages. As a consequence, after the notice period for appeal from the NSW proceeding elapsed, the plaintiffs commenced negotiations in an attempt to settle this proceeding. This resulted in JLT making an offer that the proceeding be discontinued with no order as to costs.

12 Ms Fox, the solicitor for the plaintiffs, deposed to the communications between her firm and the group members in respect of the proposed resolution of this proceeding:

(a) on or about 19 May 2023, Ms Fox caused an email to be sent to the group members containing JLT's offer (that the proceeding be discontinued with no order as to costs) and inviting them to a call scheduled for 23 May 2023 to discuss the offer and answer any questions from group members;

(b) on 23 May 2023, and before JLT's offer was accepted, Ms Fox participated in the call, which was attended by the plaintiffs and 10 group members in which JLT's offer was discussed;

(c) on or about 1 August 2023, all group members were informed that JLT's offer had been accepted, that the parties were negotiating the settlement deed and preparing the discontinuance application. Group members were also advised that if the discontinuance application succeeded, the relevant limitation periods applicable to their claims would resume; and

(d) between 19 May 2023 and 4 August 2023, Ms Fox's firm received consent to JLT's offer from the plaintiffs and 14 of the group members (including the 10 that were present during the call on 23 May 2023 and two additional group members).

13 The plaintiffs submitted that, through the informal communication described above, the group members had been provided prior notice of the plaintiffs' intention to apply for discontinuation and an opportunity to provide their consent or raise objections. The plaintiffs submitted that the substance of these communications conveyed all the relevant information that the Court would ordinarily require group members be notified of, disposing with any need for group members to receive formal notification under s 33X(4) of the Act.

14 The deed of settlement between the plaintiffs, its solicitors and funders, and JLT, is dated 13 September 2023 (the settlement deed). It relevantly provides:

(a) the plaintiffs and JLT shall approach the Court for orders that the proceeding be discontinued with no further order as to costs;

(b) upon finalisation of the discontinuance, the plaintiffs, but not the group members, release JLT from claims which are the subject of this proceeding; and

(c) save to the extent necessary to give effect to the settlement deed or to provide advice to group members in relation to the matters contained in the settlement deed and/or the application for Court approval, the solicitors and litigation funders for the plaintiffs agreed not to accept instructions from or provide assistance to any person in respect of the subject matter of this proceeding.

15 On 5 September 2023, I informed the parties that I had determined not to dispense with the notice requirement under s 33X(4) of the Act, notwithstanding that the group members had notice of the substance of the settlement of this proceeding, that the majority of group members consented (the plaintiffs and 14 out of 16 group members), and no group members objected (two group members did not consent or object).

16 In summary, I formed the view, consistent with the relevant principles in Turner v Bayer Australia Ltd,[9] that requiring the plaintiffs to provide the notice would not bring about disproportionate expense and inconvenience. For the most part, this was because of the small number of group members, the ease of contacting them by email, and the fact that the orders actually sought by the plaintiffs did not precisely align with what had been communicated to group members between May and August 2023. Further, I wished to give the group members notice, in particular, of the limitation period issue, the limitation period application and the fact that the law is unsettled as to whether the Court has power to extend the limitation period in the manner sought by the parties.

17 As a result, on 18 September 2023, I made orders pursuant to s 33X(4) of the Act for the distribution of a settlement notice to all group members in a form approved by me for the purpose of s 33Y of the Act (Notice). The Notice advised, among other things, that:

(a) the Court's approval of the discontinuance application would result in this proceeding no longer being on foot with group members receiving no compensation;

(b) while the proposed discontinuance would not affect the legal rights of group members to institute new proceedings against JLT, there are time limits to bring claims and that, importantly, any group member wishing to make an individual claim should seek legal advice as soon as possible;

(c) generally, the effect of the proposed discontinuance is that time will begin to run again for limitation purposes, and any group member bringing an individual claim may be statute barred if proceedings are not commenced before discontinuance of the group proceeding;

(d) while the plaintiffs and JLT were seeking an order that any limitation period that applies to a group member to which the proceeding relates shall continue to run from 30 days after the date of the discontinuance, the law is unsettled as to whether the Court has the power to extend the limitation period in this way; and

(e) inviting any group member who wishes to object to complete and return (by email or post) a notice of objection to the Commercial Court Registry before 4:00pm on 16 October 2023.

18 In her affidavit of 23 October 2023, Ms Fox deposed that on 19 September 2023 she caused the Notice to be sent to the plaintiffs and each of the 16 group members using contact details supplied by the group members when providing their written consent to be group members in this proceeding. She also deposed that:

(a) on 17 October 2023, she received an email from the Commercial Court Registry advising that the Court had not received any notices of objection; and

(b) as at 23 October 2023, the solicitors for the plaintiffs had not received any notices of objection, correspondence or other indication that a group member objected or proposed to object.

19 As noted above, the NSW proceeding did not include a claim similar to the underwriting fee claim. To enable this Court to assess the discontinuance application with respect to the underwriting fee claim, the plaintiffs produced a confidential opinion of their counsel (legal opinion). The legal opinion addresses the merits of pursuing the loss of opportunity claim in light of the judgment in the NSW proceeding. It also expresses counsel's view on the merits and costs of pursuing the underwriting fee claim, either as part of this proceeding or separately by group members. I have read and considered the legal opinion for the purpose of determining this application.

20 Section 33V governs the discontinuance of group proceedings commenced under Part 4A of the Act. Relevantly, it provides:

(1) A group proceeding may not be settled or discontinued without the approval of the Court.

(2) If the Court gives such approval, it may make such orders as it thinks fit with respect to the distribution of any money, including interest, paid under a settlement or paid into court.

21 I pause to note that while section 33V(1) provides that a group proceeding may not be discontinued without approval of the Court, it is the group proceeding plaintiff who in fact discontinues the proceeding by filing a notice of discontinuance in accordance with r 25.02(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules).[10] It is on the filing of the notice of discontinuance that the proceeding comes to an end.

22 The legal distinction between a settlement and a discontinuance in the group proceeding context has been discussed in several cases. In Babscay Pty Ltd v Pitcher Partners (Babscay), Anastassiou J summarised the difference as follows:

The legal effect of a unilateral discontinuance compared with a settlement agreement may be readily summarised as follows. In the case of a discontinuance, the applicant is free to commence a new proceeding against the same respondents if so advised. As there is no agreement by which the proceeding is compromised, there can be no merger of the applicant's rights in the proceeding. Similarly, in the absence of any judicial determination, there can be no res judicata or issue estoppel.

In contrast, where a settlement agreement has been reached it will be binding upon all group members who have not opted out of the representative proceeding pursuant to s 33J of the Act. Subject to Court approval under s 33V of the Act, the rights of the group members merge in the settlement agreement, or in the case of an accord executory, merge upon performance of the terms of the agreement. The legal consequences for group members of a settlement agreement are therefore more significant, as the agreement will operate to extinguish their rights in the proceeding and bar them from bringing later proceedings in relation to the same causes of action.[11]

23 I will comment on this distinction further below.

24 The legal principles concerning the court's consideration of an application to discontinue a group proceeding are reasonably settled. Dixon J summarised these principles in Hassan v van Diemen as follows:

(a) A representative proceeding cannot be discontinued without the approval of the court. Any order that is made must have regard to the interests of the present parties and group members who may be affected by the terms of any grant of leave to discontinue. The order must not have a substantive impact on group members or affect their rights. The court must guard against any injustice that could be done to persons who are not represented in these proceedings and whose rights may be adversely affected by their outcome. The court has an important responsibility of safeguarding the interests of group members as a whole. It must carefully scrutinise the way in which any order is formulated.

(b) Some courts have found that, in approving a discontinuance against certain defendants, the test is the same as a settlement or compromise of a claim, in that the court must assess whether the discontinuance is a fair and reasonable one, in the interests of the group members as a whole, not just the applicant and respondent. The applicant bears the onus to establish this.

(c) Other courts have held that the test is whether the discontinuance will not adversely impact the legal or financial position of any group members, and will not be unfair, unreasonable or adverse to the interests of group members.

(d) In cases of unilateral discontinuance at an early stage of the proceeding and well in advance of the expiry of limitation periods after discontinuance, I prefer this latter approach. The legal effect of a unilateral discontinuance is different to a settlement because in this case, the applicant is free to commence a new proceeding against the same respondent and no res judicata or issue estoppel arises.

(e) An approval for discontinuance of a claim may be brought on the basis that, after further investigation, the plaintiff comes to the conclusion that the cause of action bears slim or no prospect of success, there is a want of economic viability, and there is no res judicata or impending expiry of a limitations period.[12]

25 As is evident, an unresolved question in the authorities is whether a court must be satisfied that the proposed discontinuance is 'fair and reasonable' in the interests of the group members as a whole (which I shall refer to as the fair and reasonable test),[13] or whether the court should approve the proposed discontinuance if it is not 'unfair, unreasonable or adverse'[14] to the interests of the group members as a whole (which I shall refer to as the not unfair or unreasonable test).

26 Nichols J recently lent support to the not unfair or unreasonable test, at least in respect of applications for unilateral discontinuance brought at an early-stage in the proceeding, well in advance of the expiry of limitation periods after discontinuance.[15] Several authorities in the Federal Court of Australia have also expressed a preference for, and have applied, the not unfair or unreasonable test and did not limit its application to an early-stage discontinuance.[16] However, many of these comments were qualified by observations that the not unfair or unreasonable test should be applied to a unilateral discontinuance that does no more than return group members to the position they were in before the commencement of the proceeding.[17]

27 Without the benefit of oral argument or any contradictor, I am unwilling to form any concluded view in respect of the test to be applied for court approval of a 'settlement' or 'discontinuance' of a group proceeding. However, in the circumstances of this case, I also prefer the not unfair or unreasonable test (i.e. that the court must be satisfied that the discontinuance is not unfair, unreasonable or adverse to the interests of group members as a whole). This is because while the discontinuance application is the result of the settlement deed, the terms of settlement do not extinguish group members' rights in the proceeding, nor are they prevented from bringing future proceedings in relation to the JLT claims. Thus, from the perspective of group members, the effect of the settlement deed is more similar to a unilateral discontinuance, as described by Anastassiou J in Babscay set out at [22] above.

28 Further, in my view, the not unfair or unreasonable test directs practitioners and the courts to identify and address any negative outcomes that may occur to group members as a result of the discontinuation. I consider that this enquiry accords with the statutory purpose of s 33V[18] and the Act more broadly, pursuant to which the Court has a supervisory role in relation to the conduct, management and, relevantly, disposition of group proceedings.

29 In considering whether either test has been satisfied, relevant factors include: the terms of any settlement; the proceeding's prospects of success; the relationship between discontinuing and continuing claims; the size, complexity and cost of the proceeding; the proceeding's economic viability; the size of the group; group members' awareness of the proceeding; the residual position of group members whose claims are discontinued; the interests of group members whose claims are continuing (if applicable); the costs consequences of discontinuance and the overarching purpose in civil litigation.[19]

Consideration of the discontinuance application

30 I have formed the view that the discontinuance of this proceeding with no order as to costs satisfies the not unfair or unreasonable test. If I am wrong about the appropriate test, I have also formed the view that the discontinuance of this proceeding satisfies the fair and reasonable test. This is in light of the following matters.

31 First, and significantly, having regard to the reasons of Williams J in the NSW proceeding, the loss of opportunity claim does not appear to have good prospects of success. As to the underwriting fee claim, as noted above, the legal opinion raises issues as to liability and compared the advantages and disadvantages for group members of prosecuting the underwriting fee claim as part of this group proceeding or individually. Having read the legal opinion, I have formed the view that it may be more advantageous to group members to pursue any individual underwriting fee claim separately from the present group proceeding.

32 Second, the settlement deed does not provide for any release by each of the group members in respect of the subject matter of this proceeding. Thus, the group members can still pursue their own claims against JLT within the limitation period.

33 Third and relatedly, I am conscious that, as a consequence of my conclusion in relation to the limitation period application, the suspension of the limitation period will come to an end upon a notice of discontinuance being filed in this proceeding. Given that the claims in this proceeding relate to breach of contract or fiduciary duties between 2009 and 2019, should group members wish to bring their own proceeding in respect of those claims, it is possible that some claims or parts of claims may be statute barred at or soon after the discontinuance. As to the loss of opportunity claim, I refer to my comments relating to the prospects of success set out above at [31]. As to the underwriting fee claim, which is based on breaches of fiduciary duties, I also refer to my comments in [31] above and note that the legal opinion did not address any applicable limitation periods.

34 Fourth and relatedly, there are a limited number of group members (16) each of which is aware of the discontinuance application. Further, each of them received the Notice which identifies the risks raised by the discontinuance application upon the limitation period with respect to their claims. That risk was also communicated in an earlier email from the solicitors for the plaintiffs to group members dated 1 August 2023, which noted that: (1) claims relating to years between 2009 and 2013 may be statute-barred (given the proceeding was issued in 2019); and (2) each group member should get legal advice on how resumption of the limitation period may affect their claims as soon as possible.

35 Fifth and relatedly, each group member is a sophisticated local municipal council with, at the very least, ready access to qualified legal practitioners to advise in respect of this proceeding and the likely effect of its discontinuance on each group member's own claim against JLT, including as to the limitation period. Indeed, it is apparent from the affidavit material that the majority of group members have internal legal teams. Further, the group members have had ample opportunity to obtain legal advice since being contacted by the plaintiffs' solicitors.

36 Sixth, none of the group members has objected to the discontinuance application in light of the issues raised in the Notice. Indeed, 14 group members consented to JLT's settlement offer, pursuant to which the plaintiffs now make the discontinuance application.

37 Seventh, I have considered the restraint on the plaintiffs' solicitors and the litigation funder in the settlement deed. On balance, I consider that this restraint is reasonable. I refer to my comments set out above at [34] to [36]. Further, should group members choose to bring fresh proceedings against JLT, the plaintiffs' counsel is not subject to any restraint, the group members have the benefit of the reasons in the NSW proceeding and (with leave of the Court) group members may be able to consider the material that has been filed to date in this proceeding.

38 In all these circumstances, I am satisfied that I should approve the discontinuance of this proceeding with no further order as to costs.

39 Finally, and more generally, to the extent that there might be remaining concerns that certain group members may be unaware of how approval being granted in a discontinuation application could affect their claims, it would be open to a court to make orders:

(a) specifying that the notice of discontinuance must be filed not before a certain date and not after a certain date; and

(b) that the solicitors for the plaintiffs send to the group members a copy of such orders and the reasons in support of them.

40 Such orders would give group members a further opportunity to consider the impact of the discontinuance on their claims, including with respect to applicable limitation periods. In this case, given the matters set out at [34] to [36] above, I do not consider that orders of the kind set out in [39(a)] are necessary.

41 As noted above, at the request of JLT, the plaintiffs also make the limitation period application. Paragraph four of the plaintiffs' minute of proposed order is in the following terms:

Pursuant to ss 33V and 33ZF of the Supreme Court Act 1986 (Vic), or alternatively, by consent of the parties, any limitation period that applies to the claim of the Plaintiffs and any group member, to which the proceeding relates, shall continue to run from 30 days after the date of these orders.

42 JLT contends that the need for this order arises because of uncertainty created by s 33ZE of the Act. Section 33ZE(1) provides that, upon the commencement of a group proceeding, the running of any limitation period applicable to the claim of the group member to which the proceeding relates is suspended. Section 33ZE(2) provides as follows:

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.

43 JLT submits that there is uncertainty in the authorities as to whether a proceeding that is discontinued has been 'determined without finally disposing of the group members claim' for the purpose of s 33ZE(2). Reliance was placed, in particular, on the judgment of Murphy J in Turner v TESA Mining (NSW) Pty Ltd (No 2) (Turner)[20] which was quoted with approval by Lee J in Wreck Bay Aboriginal Community Council v Commonwealth of Australia (No 2) (Wreck Bay).[21] Reference was also made to other decisions of Murphy J and Lee J, being Petersen v Workpac Pty Ltd[22] and Lloyd v Belconnen Lakeview Pty Ltd (No 3),[23] respectively. Relevantly, ss 33ZE, 33V and 33ZF of the Federal Court Act 1976 (Cth) (Federal Court Act) are in the same terms as the corresponding provisions of the Act.

(a) 'determined' for the purpose of s 33ZE(2) of the Federal Court Act means determined by judicial resolution of the group members' claims (which I will refer to as the narrow construction) and does not encompass a discontinuance (which I will refer to as the broader construction);

(b) as a consequence of the narrow construction in (a), there is a possibility that the limitation period under s 33ZE(1) may be indefinitely suspended after the date of discontinuance; and

(c) as a result of the uncertainty in (b), pursuant to s 33ZF of the Federal Court Act, it was appropriate to order that the limitation period commences to run from a specific date.

45 As to the order contemplated by (c) above, s 33ZF of the Act grants the Court a wide discretionary power in respect of group proceedings:

In any proceeding (including an appeal) conducted under this Part the Court may, of its own motion or on application by a party, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.

46 JLT submits that the Court's power to make an order that the limitation period recommences from a specific date is supported by the first order made in Matthews v SPI Electricity Pty Ltd (Ruling No 13), which was in the class closure context.[24]

47 As the group members would benefit from the perpetual suspension of any applicable limitation period, the plaintiffs advance no submissions with respect to this proposed order. However, JLT contends that, without such an order, the lack of certainty in the authorities creates the possibility that the limitation period would remain indefinitely suspended, depriving JLT of finality in respect of claims the subject of this proceeding and occasioning significant prejudice.

Construction of 'determined' in s 33ZE(2) and consideration of authorities

48 I am conscious of the particular experience of Murphy J and Lee J in relation to group proceedings. Nevertheless, and notwithstanding there was no oral argument or contradictor, I prefer the view that 'determined' for the purpose of s 33ZE(2) of the Act includes discontinuance of a group proceeding, with the result that filing the notice of discontinuance ends the suspension (i.e. the broader construction). I will state my reasons shortly.

49 First, s 33ZE(2) provides that any limitation period suspended by operation of s 33ZE(1) does not begin to run again unless either (1) the group member opts out of the proceeding under s 33J; or (2) 'the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim'. Thus, one of the statutory preconditions for resumption of the limitation period is that a proceeding is 'determined' in a manner that does not finally dispose of a group member's claim. The question that arises in this proceeding is whether a discontinuance (where, pursuant to the terms of the settlement deed, group members are free to pursue their own claims) satisfies this precondition.

50 'Determined' is the past tense of the word determine. The word determine has a number of meanings including 'to put an end to; terminate'[25] and 'to settle or decide ... by an authoritative decision'.[26] Of course the meaning of the word can be influenced by the context in which it is used. In s 33ZE(2), the relevant context is that any limitation period is suspended by operation of s 33ZE(1) and does not begin to run again 'unless ... the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim'. So it is when the group proceeding (or any appeals therefrom) are determined without finally disposing of the group member's claim that the suspension of the limitation period ends.

51 While a proceeding or appeal can be determined by judicial determination (without finally disposing of the group member's claim), that is not the only way a proceeding can be so determined: it could also be determined, for example, by consent orders or by filing a notice of discontinuance. In my view, neither the language of s 33ZE(2) nor any other relevant provision mandates a construction of 'determined' for the purpose of s 33ZE(2) to mean only by way of a judicial determination. I note that the first kind of act which terminates the suspension of the limitation period in s 33ZE(2) (by the giving of an opt out notice by group member) does not require judicial determination; rather, the suspension ends when the group member's interest in the relevant proceeding comes to an end by giving the opt out notice.

52 I am conscious that the second aspect of s 33ZE(2) refers to the proceeding 'and any appeals arising from the proceeding' being 'determined'. This might be thought to lend some further support for the narrow construction. However, I am far from convinced this is so. I note that appeals may also be discontinued with the leave of the Court. In my view, the most significant words in this part of s 33ZE(2) are 'determined without finally disposing of the group member's claim'.

53 Second and relatedly, in my view, the mischief s 33ZE(1) attempts to address is the possibility that the limitation period for a group member's claim might expire whilst a group proceeding is afoot: it does so by providing a suspension of the limitation period from the commencement of the group proceeding. Section 33ZE(2) sets out the circumstances in which that suspension comes to an end. Construing the word 'determined' so as to include a 'discontinuance' sits comfortably with this statutory purpose. Group members are protected by s 33ZE(1) until the group proceeding comes to an end, in this case, when the notice of discontinuance is filed (following court approval), which ensures they do not lose the opportunity to pursue their claims by virtue of a group proceeding terminating prior to final judgment. The Explanatory Memorandum to the Courts and Tribunals Legislation (Miscellaneous Amendments) Bill 2000 (Vic), which introduced s 33ZE, merely notes that s 33ZE is a provision relating to 'the operation of any limitation period applying to group proceedings'.[27]

54 I note that Murphy J in Turner placed some reliance on the Explanatory Memorandum to the Federal Court of Australia Amendment Act 1991 (Cth), which introduced the Federal Court Act equivalent of s 33ZE in leading to his preference for the narrow construction. To the extent that it might be relevant to the construction of the (Victorian) Act, I can see nothing in this Explanatory Memorandum that suggests to the contrary of the statutory purpose I have described.

55 Third, the effect of the narrow construction (i.e. that 'determined' does not extend to a discontinuance) militates against such a construction. In short, if a discontinuance does not fall within the statutory precondition to resumption of the limitation period, the applicable limitation periods for group members' claims will remain suspended in perpetuity by virtue of s 33ZE(1). In my view, the practical consequence of this construction from a respondent's perspective indicates why the narrow construction is not preferable.

56 Fourth, notwithstanding the views of Murphy J and Lee J, the weight of authority, albeit expressed in obiter, appears to support the broader construction: I refer to the comments of Anastassiou J in Babscay,[28] Wigney J in Watson v Maximus Holdings (NSW) Pty Ltd,[29] and Derrington J in Francis (Trustee) v Oculus Accounting Pty Ltd (No 2).[30]

57 Further, many cases appear to have proceeded on the basis that the effect of a discontinuance will be to resume the limitation period applicable to group members' claims. In this Court, in Laine v Theiss Pty Ltd Dixon J stated that "[d]iscontinuance will have the effect that time within the limitation periods will recommence to run".[31] Likewise, Kennedy J (as she then was) approved a discontinuance in Domaschenz v Scene No 3 Ltd and noted that 'even if a group member wishes to commence an individual action post discontinuance, that s 33ZE provides for the suspension of limitation periods while the group proceeding was on foot'.[32] Implicit in this statement is that the effect of the discontinuance, once finalised, was to resume time running for the purpose of the limitation periods. With respect to the cognate provisions under the Civil Procedure Act 2005 (NSW) (CPA) and Federal Court Act, several other authorities contain comments that indicate the court has proceeded on the basis that a discontinuance satisfies s 33ZE(2).[33] In this context, I note that the authors of Class Actions in Australia also suggest that 'determined' should be construed so as to include discontinuance.[34]

58 Finally, I also note that there are two decisions of the New South Wales Court of Appeal which support the broader construction, although neither of them involved whether the discontinuance of a group proceeding means that it has been 'determined' for the purpose of the cognate provision of the CPA, being s 182(2). I refer to Haselhurst v Toyota Motor Corp Australia Ltd t/as Toyota Australia where Payne JA (with whom Bell P, Macfarlan and Leeming JA, and Emmett AJA agreed) discussed the effect of class closure orders on the limitation period for the purpose of s 182(2) of the CPA.[35] I also refer to a similar discussion of Ward P, Leeming JA and Basten AJA in Nguyen v Rickhuss in relation to orders that a proceeding no longer continue as a group proceeding.[36] In relation to both kinds of orders, the view is expressed that the effect of making such orders is that the suspension of the limitation period under the CPA equivalent of s 33ZE(2) is lifted. Significantly for present purposes, the making of these orders does not involve judicial resolution of group members' claims.

59 In all these circumstances, I am not persuaded by the reasoning in support of the narrow construction of Lee J in Gill (a case which did not involve a settlement or discontinuance), of Murphy J in Turner (which involved a unilateral discontinuance with no reference to an underlying settlement agreement), the principles of which appear to have been adopted by Lee J in Wreck Bay (which involved consideration of the impact of a settlement agreement that did not fully prevent the bringing of certain claims).

60 As a result, for the reasons provided above, I have concluded that the word 'determined' should be given the meaning of 'to come to an end' or 'terminate' for the purpose of s 33ZE(2). I do not consider that 'determined' requires judicial resolution of group members' claims. No such requirement arises by the language of the Act; nor is it supported by the statutory context and purpose.

61 However, to the extent that 'determined' might require such judicial determination or resolution, in my view, because discontinuance of the group proceeding necessitates court approval, any such requirement for the purpose of s 33ZE(2) is met if such approval is given. Nevertheless, on this construction of the word 'determined', the limitation period would resume upon the filing of the notice of discontinuance as a result of the decision of the court in approving the discontinuance.

62 As a result, regardless of which interpretation is adopted, the limitation period will resume upon filing of the notice of discontinuance. From the perspective of group members, this outcome is commendable: it avoids a situation whereby a judgment is handed down and group members are informed after-the-fact that the limitation period applicable to their claims has resumed. Further, the court can make orders on the grant of leave that require, if practicable, group members to be notified ahead of the filing of the notice of discontinuance. I refer to my comments at [39(b)] above.

63 As a result, I have concluded that upon filing of the notice of discontinuance (pursuant to approval of the Court under s 33V of the Act), a group proceeding is 'determined' for the purpose of s 33ZE(2).

Consideration of the limitation period application

64 The enquiry under s 33ZE(2) then turns to whether a group member's claim has been finally disposed by the terms of the discontinuance (as approved by the Court). Ordinarily, a discontinuance does not finally dispose of group members' claims. However, that may depend on the terms of any underlying settlement agreement.

65 Turning to the facts of this case, it is clear from the settlement deed - which forms the basis of the discontinuance application - that group members are free to bring their own claims against JLT should they wish to do so. As a result, the nature of this discontinuance, finalisation of which will result in the proceeding being relevantly 'determined', does not finally dispose of the group members' claims. It follows that the statutory precondition in s 33ZE(2) is satisfied and the limitation periods that were suspended pursuant to s 33ZE(1) will resume.

66 It is unnecessary for me to consider the court's power to specify a time from which the limitation period resumes. This is because I have formed the view that the limitation periods that were suspended pursuant to s 33ZE(1) will resume upon the plaintiffs filing the notice of discontinuance. In any event, in the circumstances of this case, I would decline to make such an order. In forming this view, I have considered both the sophisticated nature of the 16 group members and that each of them has had more than sufficient opportunity to consider and obtain legal advice in respect of the JLT claims, including the applicable limitation period relating to any such claim. I refer to my comments in [34] to [36] above.

Can the parties, by consent, agree to extend the limitation period?

67 Paragraph four of the proposed form of order is expressed to be in the alternative to the Court making an order restarting the limitation period, i.e. the parties 'by consent' agree to the time beginning to run on the limitation period. According to JLT's submissions, this is raised to assuage any concerns the Court may have about making the order on the first basis, noting the consent of the parties to the order.

68 I do not consider that I should make this order by consent of the plaintiffs and JLT. This is because I am not satisfied that a court has the power to make such an order based solely on the consent of the plaintiffs and a defendant in a group proceeding. No authorities were cited in support of any such power.

69 In any event, the principal reason JLT sought this order was to address any risk that the limitation period would continue in perpetuity. JLT will have comfort from these reasons that the limitation period resumes upon notice of the filing of the notice of discontinuance, with a consequence that this proposed order is no longer necessary.

(a) the plaintiffs have leave to discontinue this proceeding by filing a notice of discontinuance pursuant to r 25.02(2) of the Rules by 4:00pm on 12 February 2024; and

(b) a copy of the orders and of these reasons be sent to the email address of each group member by no later than 4:00pm on 29 January 2024.

71 Further, in relation to the remaining aspects of the plaintiffs' summons, I propose to order by consent that all orders as to costs made to date in this proceeding be vacated and that there be no further orders as to costs in this proceeding. I propose to order that the plaintiffs' summons dated 30 June 2023 is otherwise dismissed.

[1] Richmond Valley Council v JLT Risk Solutions Pty Ltd [2022] NSWSC 1761, [590] (Williams J).

[6] Ibid [639]-[640], [648]-[651].

[9] [2021] VSC 241, [29] (Dixon J).

[10] See generally Rodgers & Sons v Gerson [1888] VicLawRp 99; (1888) 14 VLR 298.

[11] [2020] FCA 1610; (2020) 148 ACSR 551, 555 [22]-[23] ('Babscay') (citations omitted).

[12] [2021] VSC 839, [21] (citations omitted).

[13] Mercedes Holdings Pty Ltd v Waters (No 1) (2010) 77 ACSR 265, 267-8 [9]-[10] (Perram J). See also Tate v Westpac Banking Corporation (No 2) [2020] FCA 1374 [39] (Middleton J); Adams v Navra Group Pty Ltd [2019] FCA 1157, [19] (Murphy J); Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia (No 2) [2020] FCA 215, [70] (Murphy J).

[14] Laine v Thiess Pty Ltd; Beetson v SunWater Ltd [2016] VSC 689, [34] (Dixon J) ('Laine v Thiess'). See also Babscay [2020] FCA 1610; (2020) 148 ACSR 551, 558-9 [28]-[29] (Anastassiou J).

[15] Crawford v ANZ [2022] VSC 297, [5] (Nichols J).

[16] See, eg, Babscay [2020] FCA 1610; (2020) 148 ACSR 551, 558-9 [28]-[29] (Anastassiou J); Turner v TESA Mining (NSW) Pty Ltd (No 2) (2022) 314 IR 214; [2022] FCA 435, [10] (Murphy J) ('Turner v TESA**'**); Lloyd v Belconnen Lakeview Pty Ltd (No 3) [2022] FCA 761, [6] (Lee J); Mutch v ISG Management Pty Ltd (No 3) [2023] FCA 648, [18] (Bromberg J) ('Mutch v ISG').

[17] See, eg, Babscay [2020] FCA 1610; (2020) 148 ACSR 551, 558-9 [28] (Anastassiou J); Turner v TESA (2022) 314 IR 214; [2022] FCA 435, [10] (Murphy J).

[18] See above at [24].

[19] See, eg, Markovic v Unified Security Group (Australia) Pty Ltd [2021] VSC 840, [11] (Dixon J).

[20] Turner v TESA (2022) 314 IR 214; [2022] FCA 435, [20]-[26].

[21] [2023] FCA 811, [11] ('Wreck Bay').

[22] [2022] FCA 476, [7]. See also Wruck v Telstra Ltd [2023] FCA 932, [26]-[28] (Murphy J).

[23] [2022] FCA 761, [11]. See also R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Ltd (Admins Apptd) (In Liq) (Carriage Application) [2022] FCA 1444, [27]-[28] (Lee J).

[24] [2013] VSC 17; (2013) 39 VR 255, [73] (Forrest J).

[25] Macquarie Dictionary (online at 18 December 2023) 'determine' (def 7); Oxford English Dictionary (online at 18 December 2023) 'determine' (def 1).

[26] Macquarie Dictionary (online at 18 December 2023) 'determine' (def 1).

[27] The Explanatory Memorandum, Courts and Tribunals Legislation (Miscellaneous Amendments) Bill 2000 (Vic), 7.

[28] Babscay [2020] FCA 1610; (2020) 148 ACSR 551, 558-9 [33]-[34].

[29] [2021] FCA 87, [53].

[30] [2021] FCA 1275; (2021) 400 ALR 701, [56].

[31] [2016] VSC 689, [32].

[32] [2018] VSC 593, [35].

[33] See, for example, Fernandez v State of New South Wales (No 2) [2021] NSWSC 471, [19] (Wright J); Tate v Westpac Banking Corp (No 2) [2020] FCA 1374, [40] (Middleton J); Mutch v ISG [2023] FCA 648, [20] (Bromberg J); Baker v Woolworths Group Ltd (No 2) [2022] FCA 534, [68] (Murphy J); Calinoiu v QLD Law Group - A New Direction Pty Ltd [2019] FCA 2194, [8] (Lee J).

[34] Damien Grave, Ken Adams and Jason Betts, Class Actions in Australia (3rd ed, 2021) [22.20].

[35] [2020] NSWCA 66; (2020) 101 NSWLR 890, 906 [69]-[70].

[36] [2023] NSWCA 249, [50]. See, also, Hassid v Queensland Bulk Water Supply Authority (T/as Seqwater) (No 2) [2017] NSWSC 1064, [27], in which Beech-Jones J considered that the effect of ordering that a proceeding no longer continue as a group proceeding was that group members' claims would be statute barred as a result of the suspension being lifted.