Plaintiff v First Defendant

2 The plaintiff alleges that the defendants, Apple Inc and Apple Pty Ltd (ACN 002 510 054), represented to customers that the software updates would provide benefits and improvements to Affected Phones when, contrary to those representations, there were known issues with a power management feature which adversely affected the performance, functionality and technical capabilities of these phones. This conduct is alleged to have constituted misleading or deceptive conduct under the Australian Consumer Law. In addition, the plaintiff alleges that the relevant software updates constituted a trespass to goods which damaged the Affected Phones.

3 The proceeding was commenced by writ and general indorsement of claim on 20 December 2023. To date, these have not been served on the defendants nor have group members been notified regarding the commencement of the proceeding. The plaintiff's solicitors had some without prejudice discussions with the second defendant. Those discussions did not bear fruit. The plaintiff's solicitors sought to secure third party litigation funding but have been unsuccessful. The plaintiff's solicitors are unwilling to proceed without litigation funding.

4 The plaintiff seeks to discontinue the proceeding.

5 By summons dated 17 April 2025, the plaintiff seeks:

(a) Leave to discontinue the group proceeding pursuant to s 33V of the Act.

(b) Orders dispensing with the requirements:

(i) for group member notifications pursuant to s 33X(4) of the Act; and

(ii) to serve on the defendants the summons dated 17 April 2025 and supporting materials, and any notice of discontinuance pursuant to r 2.04(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

6 For the reasons which follow, those orders should be made.

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

8 It is well established that, for a settlement to be approved under s 33V(1), it must be fair and reasonable in the interests of the group members as a whole ('the fair and reasonable test').

9 In a number of cases, both in this Court and in the Federal Court of Australia, judges have pointed to the differing consequences of a settlement approval and discontinuance.[1] In the former, group members are bound, usually their rights in the proceeding extinguished and they are barred from bringing later proceedings on the same causes of action. In a discontinuance, the applicant and group members are free to commence their own proceedings against the defendants relating to the same subject matter as the discontinued proceeding and generally, the only consequence for group members is that any suspension of limitation periods under s 33ZE ceases.

10 This has led to a growing judicial consensus that the appropriate test for approval of a discontinuance under s 33V(1) is whether the discontinuance is not 'unfair, unreasonable or adverse' to the interests of group members as a whole ('the not unfair or unreasonable test').[2] I would respectfully agree that that is the proper test. Judges have generally accepted that in practice there will often be little difference in outcome whichever test is applied, but I am persuaded that the not unfair or unreasonable test better captures the limited consequences which flow from approval of a discontinuance as opposed to approval of a settlement.

11 In this case I am satisfied that discontinuance is not unfair, unreasonable or adverse to the group members.

12 I was provided with a confidential opinion of counsel which canvassed the risks and potential prospects in the proceeding. I accept that that opinion has properly considered those risks and prospects, including the risk that many of the group members' claims may be statute barred. However, I am not persuaded that it matters in this case whether the claims in the proceeding had great prospects and low risk or had low prospects and great risk or were somewhere in the middle. Whatever the case regarding prospects and risk, after discontinuance group members will be free to bring their own proceedings should they choose, they are no better or worse off than if the proceeding had not been instituted.

13 There might be cases where group members can show that in some way or another the existence of a group proceeding has caused them to act in a particular way to their detriment, an example might be by contributing to the plaintiff's costs. In such a case, a court will need to carefully consider whether there is an unfair, unreasonable or adverse consequence for group members arising from the discontinuance. However, in this case, where group members have taken no steps and indeed are likely completely unaware of the existence of the proceeding the not unfair or unreasonable test is plainly satisfied.

14 There is a disagreement in the authorities regarding whether a discontinuance brings the suspension of limitation periods under s 33ZE to an end.

(1) Upon the commencement of a group proceeding, the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended.

(2) 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.

16 On the one hand, a line of authority in the Federal Court has held that a discontinuance does not 'determine' the proceeding within the meaning that term bears in s 33ZE(2) and so, absent a specific order made under s 33ZF, a discontinuance leaves limitation periods suspended for group members as against a defendant in perpetuity.[3] That counterintuitive result is said to flow from the fact that 'determined' should be interpreted as meaning 'judicially determined' and that discontinuance does not legally resolve or determine the claims. More recently, the Supreme Court of Queensland has reached a similar view but notably, in that case, the legislation under consideration used the word 'decided' rather than 'determined'.[4] This has led to those courts making specific orders under s 33ZF for the recommencement of limitation periods after a discontinuance has taken effect.

17 In this Court in Moira Shire Council v JLT Risk Solutions Pty Ltd ('Moira Shire Council')[5] Lyons JA held that the words 'determined without finally disposing of the group member's claim' encompassed a discontinuance. In essence, his Honour reasoned that:

(a) 'determined' has a number of meanings including 'to put an end to; terminate' or 'to settle or decide ... by an authoritative decision';

(b) neither the language of s 33ZE(2) or any other relevant provision requires that determined be interpreted as meaning only judicial determination;

(c) the mischief which s 33ZE(1) seeks to address is the potential expiry of limitations periods whilst the group proceeding is on foot; and

(d) it was preferable to avoid a construction of s 33ZE(2) which led to the consequence that after discontinuance (and absent specific orders) the suspension of limitation periods would continue in perpetuity.

18 In Fenton v Monsanto Australia Pty Ltd Lee J considered Moira Shire Council but adhered to his earlier expressed view that a discontinuance did not determine a proceeding for the purposes of s 33ZE(2). This was said to be because:

(a) the word 'determined' has a legal meaning;[6] and

(b) of a 'fundamental' 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) ...[7]

19 For the former proposition, his Honour cited Patton v Buchanan Borehole Collieries Pty Ltd ('Patton'),[8] a High Court decision in which the plurality held that the word 'tried' in s 79A of the District Court Act 1973 (NSW) meant 'heard and determined'.[9] I am not persuaded Patton assists in the resolution of the proper construction of the word 'determined' in s 33ZE(2). Patton was a case, relevantly, about the meaning of a different word, 'tried,' in a different section in different legislation. In other words, the text, context and purpose were all different. It may be accepted that the plurality were using the word 'determined' in that judgment as something which quelled a justiciable controversy, but that does not mean the case is authority for the proposition that the word 'determined' must always bear such a meaning regardless of context or consequence. Indeed in Patton, the plurality accepted that the word 'tried' itself might bear different meanings depending on context.[10]

20 Nor, in my view, is it apparent that a distinction that is drawn between something which resolves a claim (which is said to be a 'determination') and something which does not, is of any real assistance in ascertaining the meaning of a phrase which speaks of determining a proceeding 'without finally disposing of the group member's claim'. The very thing which remains unresolved under s 33ZE(2) is said to need to be resolved for a proceeding to be 'determined'.

22 In this case, the plaintiff did not seek any order under s 33ZF providing for the recommencement of the running of limitation periods. If, contrary to the view I hold, such an order were necessary to protect the defendants from the prospect of a suspension of limitation periods continuing in perpetuity, I would have required the plaintiff to give notice to the defendants and given the defendants an opportunity to contend for such an order. On the view I hold regarding the operation of s 33ZE(2), consistent with the reasoning in Moira Shire Council, such an order is unnecessary and, as a result, no notice to the defendants is necessary.

Unless the Court is satisfied that it is just to do so, an application for approval under section 33V must not be determined unless notice has been given to group members.

24 In Turner v Bayer Australia Ltd John Dixon J said:[11]

The discretion of the court to dispense with the notice requirement for a s 33V application needs to take into account the consequences for a group member of being bound by an adverse determination, should the application succeed, of which they have not had prior notice. Factors relevant to the discretion include:

(a) whether there was any real prospect that a group member, acting rationally, would oppose the orders sought;

(b) whether the expense and inconvenience of requiring the notice to be provided to group members would be disproportionate to any benefit that would arise;

(c) whether provision of notice will create a risk of confusion or uncertainty on behalf of group members; and

(d) the court's statutory obligation, enshrined by s 8 of the Civil Procedure Act 2010 (Vic), to seek to give effect to the overarching purpose to facilitate the just, efficient, timely, and cost effective resolution of the real issues in dispute in the proceeding.

25 For the reasons set out above, upon filing a notice of discontinuance a group proceeding is 'determined' for the purposes of s 33ZE(2) of the Act, the suspension of limitation periods applying to group members' claims effected by s 33ZE(1) ceases and those limitation periods begin to run again. In the ordinary course this would be a strong reason to order that notice be given to group members of the application for leave to discontinue in accordance with s 33X(4).

26 In this case however, I am persuaded that it is just not to make an order for such a notice because the evidence establishes that:

(a) There has been no mass communication or publication of the intention of the plaintiff to issue this proceeding or of the fact that the proceeding was issued;

(b) The only 'public' information regarding the existence of the claim arises from a Lawyerly article earlier this year. Lawyerly is a subscription only publication read mostly by lawyers. The publication of that article would not have brought the existence of the proceeding to the attention of the overwhelming majority of group members;

(c) Another law firm had taken registrations from approximately 270 persons ('registrants') regarding their interest in a claim against the defendants regarding Affected Phones;

(d) After discussions between that law firm and the solicitors for the plaintiff, in December 2023 the solicitors for the plaintiff sent emails to registrants that they were investigating a potential class action against the defendants regarding Affected Phones and asking the registrants to confirm if they had such a phone and if they would be interested in being the lead plaintiff;

(e) Some phone calls were made to registrants to the same effect as the email communication;

(f) 31 individuals responded to the email communication, the plaintiff was one of these people;

(g) Other than the plaintiff, no registrant was told that the proceeding had been issued and, based on the contents of the communications, I am satisfied that none would have an expectation or understanding that a proceeding was to be issued, but rather just that it was being investigated; and

(h) As a result, I am satisfied that the overwhelming proportion of the group had no awareness of the proceeding and have not relied in any way upon the suspension of limitation periods by the proceeding.

27 The potential size of the group is in the millions. A notice to all group members would involve considerable time and expense and is likely to prompt confusion and uncertainty on the part of group members who are currently in complete ignorance of the proceeding or its potential discontinuance. A notice to those group members who received the December 2023 email or to that subset who responded would plainly involve considerably less time and expense but would similarly seem to serve no purpose.

28 In these unusual circumstances, I am satisfied that it is just to approve the application for leave to discontinue without notice to group members.

29 The plaintiff seeks dispensation of any requirement to serve its summons seeking leave to discontinue and any notice of discontinuance. In circumstances where the writ has not been served and is no longer valid for service, it is appropriate to grant that dispensation and to dispense with any requirement to serve evidence and submissions in support of the application for leave to discontinue. The plaintiff also seeks an order dispensing with the 'requirement' to serve the writ. There is no such requirement and so such an order is unnecessary.

30 In light of the fact the defendants have not been served, I am satisfied no order should be made as to costs.

[1] See Moira Shire Council v JLT Risk Solutions Pty Ltd [2024] VSC 4, [20]-[28] ('Moira Shire Council'); Hassan v Van Diemen [2021] VSC 839, [21] ('Hassan'); Babscay Ptd Ltd v Pitcher Partners [2020] FCA 1610; (2020) 148 ACSR 551, 555 [22]-[23] ('Babscay').

[2] Laine v Thiess Pty Ltd [2016] VSC 689, [34]; Moira Shire Council [27]; Hassan [21]; Crawford v Australian and New Zealand Banking Group Pty Ltd [2022] VSC 297, [5]; Babscay 557-8 [28]-[29]; Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435, [10]; Mutch v ISG Management Pty Ltd (No 3) [2023] FCA 648, [18].

[3] Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435; Wreck Bay Aboriginal Community Council v Commonwealth of Australia (No 2) [2023] FCA 811; Fenton v Monsanto Australia Pty Ltd [2024] FCA 1525 ('Fenton').

[4] Blue Dog Group Pty Ltd v Credit Suisse Equities (Australia) Limited & Ors [2025] QSC 101.

[5] Moira Shire Council [48]-[63].

[8] [1993] HCA 23; (1993) 178 CLR 14.

[9] Ibid 16-17 (Mason CJ, Deane and Dawson JJ).

[11] [2021] VSC 241, [29].