Background
David Kinsella commenced representative proceedings on behalf of approximately 101 group members who were residents of Fairbridge Farm School at Molong between 1937 and 1974, alleging serious physical and/or sexual abuse. The proceedings followed an earlier class action (the Giles class action) that settled in 2015 with court approval, under which no claims for economic loss were pursued. Kinsella sought court approval to discontinue the representative proceedings pursuant to section 173 of the Civil Procedure Act 2005 (NSW). Both the Commonwealth of Australia and the State of New South Wales consented to the discontinuance and sought no costs orders.
The plaintiff’s solicitors notified group members of the proposed discontinuance through email, SMS, and ordinary mail. Approximately 75 group members had previously participated in the 2015 settlement, 6 had also accepted offers under the National Redress Scheme, and approximately 20 had not participated in the earlier settlement. No group members objected to the discontinuance, and counsel for the plaintiff provided confidential opinions addressing issues that had arisen during the proceedings.
The Court’s Holding
Justice Cavanagh approved the discontinuance of the representative proceedings, finding it fair, reasonable, and in the interests of all group members. The court distinguished discontinuance from settlement: discontinuance does not prevent plaintiffs from recommencing proceedings and does not result in findings about the substantive issues. Critically, the court held that the discontinuance preserves the right of individual group members to pursue their own separate actions against the defendants if they so choose.
The court noted that pursuing further damages may require individual group members to apply separately to set aside the 2015 settlement deed, and that “the prospects any individual plaintiff might have in obtaining damages from the defendants can only be assessed on a case by case basis.” By discontinuing the representative proceedings, group members are returned to the position they would have occupied had the class action not been commenced, as the court made no findings and no adverse costs orders were imposed.
Key Takeaways
- Representative proceedings require court approval for discontinuance, even when all parties consent, because the court has a protective function toward group members’ interests
- Discontinuance differs materially from settlement: it does not preclude future proceedings and involves no findings on substantive issues
- Court approval requires satisfaction that discontinuance is fair, reasonable, and serves the collective interests of all group members, not merely the lead plaintiff
- Individual group members retain the right to pursue separate actions after discontinuance of representative proceedings
Why It Matters
This judgment clarifies the court’s gatekeeping role in representative proceedings, establishing that even consensual discontinuances must receive judicial approval to protect class members. The decision underscores that discontinuance, as a procedural tool distinct from settlement, allows claimants to abandon problematic group litigation without extinguishing individual rights—particularly significant where, as here, the viability of claims depends on separately addressing prior settlement deeds.
The case is instructive for abuse survivors and their counsel considering whether to pursue group remedies: group claims may fail or become untenable, but discontinuance does not foreclose individual recovery. For defendants, it illustrates that consent to discontinuance need not entail costs consequences, particularly where group members have been adequately notified and offer no resistance.
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