Kinsella v Commonwealth of Australia [2026] NSWSC 846 | Case summary

Kinsella v Commonwealth of Australia [2026] NSWSC 846 | Case summary | Zoe

Although a plaintiff may ordinarily discontinue or settle proceedings at any time and without leave of the Court, representative proceedings are different. Representative proceedings such as these may only be settled or discontinued with leave of the Court: s 173 of the CPA. Even though all parties might consent to the discontinuance, it is still necessary for the Court to grant leave.
The reason for that requirement is that the Court’s function in respect of representative proceedings is essentially protective: see Findlay v DSHE Holdings Ltd [2021] NSWSC 249 at [12] (Stevenson J). Although the proceedings may be pursued through a lead plaintiff, decisions made by the lead plaintiff and other group members might necessarily impact upon the rights of all group members. The Court must have regard to the interests of all group members and be aware of the possibility of conflicts of interest or conflicts between the lead plaintiff and group members or between other group members.
The Court must be satisfied that the proposed discontinuance would be fair and reasonable and in the interests of group members as a whole and not only the interests of the lead plaintiff: see Mercedes Holdings Pty Ltd v Waters (No 1) [2010] FCA 124 at [9]-[10]. See also Fisher v BT Funds Management Ltd (No 2) [2024] FCA 1340 at [24].
It is also important to note that a discontinuance is different from a conventional settlement. A discontinuance of proceedings generally does not prevent a plaintiff from recommencing proceedings (unlike, for example, a dismissal of proceedings): see r 12.3 of the Uniform Civil Procedure Rules 2005 (NSW).
In proceedings other than representative proceedings, a party may discontinue proceedings without approval of the Court and without any estoppel arising as no findings are made about the issues in the proceedings. That is an important aspect of the Court’s function in representative proceedings in approving a discontinuance rather than a settlement.

Firstly, I am satisfied that the solicitors for the plaintiff have taken all appropriate steps to notify group members of the decision to discontinue the proceedings. In accordance with orders previously made by Coleman J, those solicitors have either:
Emailed group members who had provided an email address; or
Sent an SMS to group members who had provided a phone number; or
Sent a notice by ordinary mail in circumstances in which a group member provided their residential or post office address.
Notice has been given to approximately 101 group members. No objections have been received as to the proposed discontinuance.
A notice has also been published on the plaintiff's solicitors’ firm website and the website of this Court. Further, as set out by Mr Price, the approximately 101 group members fall into three categories, being:
75 who participated in the 2015 settlement distribution following the earlier class action;
6 who also participated in the 2015 settlement distribution and have since also accepted an offer under the National Redress Scheme, thereby extinguishing any further entitlement to common law damages from the defendants; and
Approximately 20 who did not participate in the 2015 settlement distribution.
The solicitors for the plaintiff have conferred with approximately 68 of the potential group members who previously participated in the 2015 settlement distribution. I am satisfied that these group members have been advised of certain issues arising in the proceedings. I am satisfied that none have objected to the proposed discontinuance.
I have also reviewed the confidential opinions provided by counsel. In circumstances in which the effect of the application is to permit the plaintiff to discontinue the proceedings, rather than bring to an end the potential right of any group member to bring their own individual proceedings, it is not appropriate that I comment on those confidential opinions. It is only necessary to say that whatever the intentions might have been at the commencement of these proceedings, it became apparent that to pursue further damages, it may be necessary for individual group members to apply to set aside the deed of settlement entered into at the time of the original class action.
It is also apparent that some other issues have arisen in the proceedings, which may or may not impact upon the rights of any individual plaintiff, but again, the prospects any individual plaintiff might have in obtaining damages from the defendants can only be assessed on a case by case basis.
The effect of the discontinuance is not to bring to an end the rights of any individual plaintiff (if any particular individual has any rights) to pursue their own action against the defendants but merely reflects that which has become apparent, being that this matter can no longer proceed as a representative proceeding.
No adverse order for costs is sought by the defendants and no such order will be made.
In all these circumstances, I am satisfied that approval should be given to the plaintiff to discontinue the proceedings in the terms sought. Having regard to the matters raised in the confidential opinions, I am satisfied that it is in the best interests of group members that these proceedings be discontinued, thereby allowing any individual claimant to pursue his or her own action.
In reality, group members will be returned to the position that they would have been in if these proceedings had not been commenced. The Court has made no findings, there are no adverse costs orders and nothing has occurred in these proceedings which would necessarily impact upon any action which any individual may now wish to pursue.

Kinsella v Commonwealth of Australia

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