Background
Two representative proceedings concerned the removal of First Nations children by the State of Queensland between March 1992 and November 2023. Madison May Burns alleged that conduct following her removal from her family occurred wholly or partly because of race, contravened the Racial Discrimination Act 1975 (Cth), and breached duties and obligations under the Child Protection Act 1999 (Qld). She represented other First Nations children. Brett Harold Gunning alleged racial discrimination arising from the removal of his children and represented other First Nations parents.
The substantive claims had not been heard. After the litigation funder terminated funding, the applicants’ lawyers unsuccessfully sought replacement funding and representation and concluded that they could not continue acting pro bono in proceedings of this complexity. Both applicants ultimately instructed their lawyers to seek discontinuance on their own behalf and in their representative capacities.
The Court’s Holding
Dowling J concluded that discontinuance would not be unfair, unreasonable, or adverse to group members. Without funding or legal representation, the claims could not appropriately be pursued, and refusing discontinuance could leave the proceedings stalled or expose them to summary resolution without adjudication on the merits. Discontinuance would not itself finally determine the substantive claims, although any later proceedings would remain subject to limitation issues.
The Court also concluded that group members should receive notice, particularly because they had not been notified of the discontinuance applications and many were vulnerable or lived in remote communities. On 28 September 2026, however, the Court made only orders requiring Queensland to draft a notice explaining the proceedings, the approved discontinuance, and its effect on group members, with agreed or competing drafts to be submitted for judicial approval. The Court expressly deferred the formal s 33V discontinuance order and the proposed notice-dissemination, limitation-period, and costs orders until after approving the notice.
Dowling J indicated that the later orders would provide for notice through the class-action website, the Federal Court’s website, email, and post; restart limitation periods 60 days after the notices of discontinuance were accepted for filing; and require each applicant to pay Queensland’s agreed costs of $175,000 under the funding indemnity, with Queensland seeking no costs personally from them. Those intended orders had not yet been made on the judgment date.
Key Takeaways
- A representative proceeding may be discontinued where loss of funding and representation makes continued prosecution impracticable and discontinuance is not unfair, unreasonable, or adverse to group members.
- The Court may require notice of an approved discontinuance under s 33X(5), even though the statute does not automatically require such notice.
- The judgment decided the course the Court intended to take but deferred the formal discontinuance and consequential orders until the group-member notice had been approved.
Why It Matters
The decision illustrates the Federal Court’s protective role when an unfunded class action ends without a merits determination. Approval of discontinuance depends not merely on the representative applicants’ wishes, but on the practical consequences for absent group members.
It also highlights the need to address notice and limitation periods expressly. Here, the Court sought both to give group members time to understand and respond to the discontinuance and to provide Queensland with certainty about when limitation periods would resume.