These three class actions relate to separate proceedings but the decisions are dealt with together on the basis that they share significant commonality, including the following:
The central allegation in the cases was that the applicants and class members alleged they were treated as casuals but were entitled to the employment benefits provided for non-casual employees under the Fair Work Act 2009 (Cth) (FWA) and the relevant Awards.
Subsequent to the commencement of the proceedings:
Those developments meant that the proceedings no longer enjoyed any reasonable prospect of success.
His Honour considered that the appropriate test in the circumstances was whether “discontinuance would be unfair or unreasonable or adverse to the interests of group members”.
His Honour noted there was uncertainty as to whether the discontinuance of a representative proceeding constitutes a ‘determination’ of the proceeding for the purpose of s 33ZE(2), such that the limitation period applicable to a class member’s claim commences to run again. His Honour preferred the construction that it was not a ‘determination’ pursuant to that provision, and therefore that discontinuance, in and of itself, would not cause any limitation period to recommence. For that to occur, a further order was necessary under ss 33V(1) and 33ZF that the limitation periods that apply to the claims of the class members to which the proceeding relates begin to run again.
Ultimately, his Honour made orders in the same form in each proceeding, approving the discontinuance, re-enlivening the limitation period from 60 days after the date the notice of discontinuance was filed, vacating all orders and making no orders to costs, and noted that the discontinuance did not affect any rights of the applicant or class members to pursue the claims that are the subject of the proceedings in other proceedings.
Those orders were made for the following reasons:
Federal Court of Australia, Murphy J, 26 & 29 & April 2022,
2 May 2022
Applicants’ Solicitors (Turner proceedings): Adero Law
Applicants’ Solicitors (Petersen proceeding): Adero Law, Slater & Gordon
Respondents’ Solicitors (Turner proceedings): Herbert Smith Freehills, King & Wood Mallesons, Colin Biggers & Paisley
Respondents’ Solicitors (Petersen proceedings): Ashurst
Applicants’ Funder: N/A
Austlii Link: Available here
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