Federal Court of Australia

Gunning v State of Queensland (Discontinuance) [2026] FCA 1418

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 33X(5) of the Federal Court of Australia Act 1976 (Cth), the Respondent is to draft a notice addressed to group members of the proceedings VID 943 of 2023 and VID 944 of 2023 to the effect that the discontinuance of these proceedings has been approved by the Court, explaining the brief circumstances of the proceedings and the discontinuance, as well as the nature and effect of that discontinuance on the claims of group members of each proceeding. The proposed terms of that notice are to be agreed upon by the parties, or failing agreement the parties are to prepare alternative proposed terms of the notice.

2.    The Respondent’s draft notice, as well as the Applicant’s draft notice in the event that its terms cannot be agreed upon, are to be provided to my Chambers by email to Associate.DowlingJ@fedcourt.gov.au by no later than 4 pm on Monday 12 October 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 33X(5) of the Federal Court of Australia Act 1976 (Cth), the Respondent is to draft a notice addressed to group members of the proceedings VID 943 of 2023 and VID 944 of 2023 to the effect that the discontinuance of these proceedings has been approved by the Court, explaining the brief circumstances of the proceedings and the discontinuance, as well as the nature and effect of that discontinuance on the claims of group members of each proceeding. The proposed terms of that notice are to be agreed upon by the parties, or failing agreement the parties are to prepare alternative proposed terms of the notice.

2.    The Respondent's draft notice, as well as the Applicant's draft notice in the event that its terms cannot be agreed upon, are to be provided to my Chambers by email to Associate.DowlingJ@fedcourt.gov.au by no later than 4 pm on Monday 12 October 2026.

[Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.]

REASONS FOR JUDGMENT

DOWLING J

1    These two proceedings are representative proceedings under Part IVA of the Federal Court of Australia Act 1976 (Cth). The substantive claims have not been heard. The applicants in each proceeding now apply for the Court’s approval to discontinue the proceedings. The principal reason for seeking that approval is the termination of the applicants’ litigation funding.

2    The substantive claims concern the consequences of the removal of First Nations children from their parents by the State of Queensland, pursuant to the Child Protection Act 1999 (Qld) (CP Act) in the period between March 1992 and November 2023. In the first proceeding, Burns v State of Queensland, Ms Burns, a First Nations woman, alleges certain conduct and consequences following her removal from her family by the State. She alleges that conduct and those consequences occurred wholly or partly because of her race, and were in breach of the Racial Discrimination Act 1975 (Cth) (RD Act). Ms Burns further alleges that by its conduct, the State breached its duties and obligations under the CP Act. Ms Burns brings the proceeding on her own behalf and on behalf of other First Nations children. In the second proceeding, Gunning v State of Queensland, Mr Gunning, a First Nations man, alleges certain conduct and consequences following the removal of his children by the State. He alleges that conduct and those consequences occurred wholly or partly because of his race and were in breach of the RD Act. Mr Gunning brings the proceeding on his own behalf and on behalf of other First Nations parents.

3    The applications for approval to discontinue give rise to a number of issues. First, whether the proposed discontinuance under s 33V of the Act would be unfair or unreasonable or adverse to the interests of group members. Second, whether it is appropriate for there to be notice to group members of the approval of the discontinuance under s 33X and what form that notice might take. Third, what orders should be made concerning the suspension of limitation periods under s 33ZE. Fourth, whether any declassing orders might be appropriate under s 33N as an alternative to approving a discontinuance. Fifth, the suitability of proposed costs orders. Each issue is addressed below. For the reasons explained I will approve a discontinuance under s 33V and consider it appropriate that there be notice of this to group members under s 33X.

The background to the applications for approval

4    Both proceedings were commenced by originating applications and statements of claim filed on 12 November 2023. At that time the applicants’ solicitor, Ms Jerry Tucker, was employed by Bottoms English Lawyers. Defences to the statements of claim were filed on 15 March 2024.

5    Both proceedings were commenced with the support of a litigation funding agreement. Those agreements were entered into by the applicants and Therium Litigation Finance Atlas AFP IC and executed by Therium on 31 July 2020.

6    Mr John Hayward, a director of WGC Lawyers (the applicants’ current lawyers), deposes to there being “a website for the class action” at the domain https://docsclassaction.com.au/ (the Website) which was created by Bottoms English Lawyers as early as May 2024. He deposes to there being a registration link for prospective group members on the Website. He says that WGC Lawyers has dealt with enquiries from various group members about the status of the proceedings, and to the best of his knowledge there are “approximately 300 group members” (apparently, for both proceedings taken together). The evidence before the Court does not otherwise provide a clear indication of how many people may be eligible group members in both proceedings, and how many of those have formally registered their interest in the proceedings or provided contact details (or when).

7    In May 2025, Therium informed the applicants’ solicitors that it would no longer continue to manage the litigation and that Fortress Investment Group would be responsible for the litigation funding management on behalf of Therium.

8    On 8 August 2025, Fortress informed the applicants’ solicitors that it was considering terminating its funding of the proceedings. On 10 September 2025, Fortress terminated the litigation funding agreement with the applicants.

9    In October 2025, Ms Tucker moved to WGC Lawyers. That firm took over the running of the proceedings.

10    Since that time, WGC Lawyers have made significant attempts to secure alternative litigation funding, including by approaching a number of litigation funders. As at the date of the hearing of this interlocutory application, the applicants have been unable to obtain that funding.

11    Ms Tucker deposes that since being aware that litigation funding would be terminated, she contacted law firms with class action experience and interest in human rights cases to make enquires about whether those firms might take over the proceedings. She had no success.

12    Mr Hayward deposes that while he was contacted by two large firms experienced in class actions who expressed some interest in the proceeding, neither firm made any commitments, and no arrangement eventuated.

13    Mr Hayward also deposes that WGC Lawyers is a regional firm based in Cairns. He says that WGC Lawyers has not received any payment in relation to the proceedings and that from October 2025 to 21 August 2026, the firm undertook approximately 150 hours of unpaid work in relation to these proceedings (though it was not stated with clarity whether this was in respect of both proceedings together, or each one individually). Mr Hayward says that WGC Lawyers has also fielded enquires from group members about the status of the proceedings and has incurred expenses related to the proceedings. Mr Hayward says the next step in the proceedings would be the analysis of discovery produced by the State which would require, at least, payment to the third-party database host which would cost between $6,235 and $13,635. Mr Hayward says that even leaving aside his time, WGC Lawyers cannot continue to carry those costs. Mr Hayward says that in the circumstances where there is no litigation funder, WGC Lawyers cannot continue to act in proceedings of this complexity on a pro bono basis.

14    WGC Lawyers has obtained instructions from Mr Gunning, which were confirmed in writing, that he seeks to discontinue the Gunning proceeding both on his own behalf and in his representative capacity on behalf of all group members.

15    At the time orders were made timetabling the interlocutory applications for hearing, WGC Lawyers had not yet obtained instructions from Ms Burns to discontinue that proceeding. In fact, Mr Hayward’s evidence is that they were unable to locate or communicate with Ms Burns at all for a period of nine months from October 2025 to July 2026 despite repeated attempts. In circumstances where WGC Lawyers sought orders discontinuing the Burns proceeding without any instructions from the representative applicant, I considered it appropriate to appoint pro bono Amici Curiae to address me on at least the appropriateness of that course. The Amici Curiae provided written submissions, and reply submissions, on that issue and four of the five issues identified at [3] above. I am very grateful for the assistance provided by the pro bono Amici Curiae. I return to their submissions below.

16    In the end, and prior to the hearing of the applications for approval of discontinuance, WGC Lawyers were able to obtain oral, and later written, instructions from Ms Burns to discontinue the proceeding on her own behalf and in her representative capacity on behalf of all group members.

17    In each proceeding, the applicants now seek the following orders:

1.    Pursuant to Section 33V of the Federal Court of Australia Act 1976 (the Act), the Court approves the filing of a Notice of Discontinuance of these proceedings.

2.    Pursuant to Section 33ZE of the Act, any limitation period that applies to the claims of the applicant and any group member, to which the proceeding relates, shall begin to run again from the date on which discontinuance of this proceeding takes effect

3.    The interlocutory application filed by the applicant on 24 October 2025 [seeking that the proceeding be stayed] be dismissed by consent.

4.    By consent, any costs order already made be vacated.

5.    The Applicant pay the Respondent’s costs in the agreed amount of $175,000, on the basis that the Applicant is to be indemnified pursuant to the funding agreement between Therium Litigation Finance Atlas AFP IC and the Applicant dated 11 September 2020.

18    No orders were sought for the giving of notices to the group members, under s 33X of the Act, explaining the discontinuances.

Consideration

Would a discontinuance under s 33V be unfair to group members?

19    Section 33V(1) of the Act provides that a representative proceeding may not be settled or discontinued without the approval of the Court. The applicants seek that approval.

20    In Babscay Pty Ltd v Pitcher Partners [2020] FCA 1610; 148 ACSR 551, Anastassiou J (at [20]-[22]) drew attention to the important difference between the Court’s task in approving a discontinuance and the task in approving a settlement of a representative proceeding. His Honour explained the legal consequences of both. In the case of a discontinuance, he said:

the applicant is free to commence a new proceeding against the same respondents if so advised. As there is no agreement by which the proceeding is compromised, there can be no merger of the applicant’s rights in the proceeding. Similarly, in the absence of any judicial determination, there can be no res judicata or issue estoppel.

(citations removed.)

21    In contrast, his Honour explained (at [23]) that where a settlement agreement has been reached it will be binding upon all group members who have not opted out of the representative proceeding pursuant to s 33J of the Act. He said:

The legal consequences for group members of a settlement agreement are therefore more significant, as the agreement will operate to extinguish their rights in the proceeding and bar them from bringing later proceedings in relation to the same causes of action.

22    His Honour then discussed two different approaches to an application for approval to discontinue a representative proceeding. In Mercedes Holdings Pty Limited v Waters (No 1) [2010] FCA 124; 77 ACSR 265, Perram J said that the question was whether “the proposed discontinuance would be fair and reasonable in the circumstances”, not only in the interests of the immediate parties but of the group members as a whole: at [10], [24]. In Laine v Thiess Pty Ltd; Beetson v SunWater Limited [2016] VSC 689, John Dixon J considered whether the discontinuance would “be unfair or unreasonable or adverse to the interests of group members”: at [34]. Justice Anastassiou preferred the approach in Laine.

23    In Fisher v BT Funds Management Ltd (No 2) [2024] FCA 1340, O’Bryan J surveyed the authorities on the consideration of Laine and Mercedes Holdings. His Honour concluded, correctly in my respectful view, that the weight of the authorities supports the approach in Laine. Namely, that the task of the Court is to assess whether the discontinuance would be unfair or unreasonable or adverse to the interests of group members: see Fisher at [24]. The Amici Curiae urge that approach. I approach the application for approval to discontinue on that basis. The applicant submits that either approach is satisfied.

24    I consider that the proposed discontinuance would not be unfair or unreasonable or adverse to the interests of group members for the following reasons.

25    First, I am satisfied in the circumstances of this case, as the Amici Curiae submit and where the parties do not contend otherwise, that the claims of the applicants and group members could not be appropriately pursued without financial support or legal representation. That is especially so where the proceedings are at a relatively early stage and there is significant dispute between the parties on the substantive claims. The State does not admit that the proceedings are properly representative proceedings. The State disputes certain of the alleged conduct attributed to it, the legal characterisation of its conduct, and that any of its conduct breached the RD Act and CP Act. There is also likely to be, as the Amici Curiae submit in Burns, a factual dispute about the applicants’ personal claims, and the use of those claims as a basis for the Court to answer common questions. Given the relative novelty and complexity of the legal and factual claims underlying the proceeding, and the procedural requirements and contests that ordinarily arise in representative proceedings, I am not satisfied that the claims can be appropriately prosecuted without financial support or legal representation.

26    Second, as the applicants submit, if they are permitted to discontinue the proceedings, they will be able to litigate their claims later, subject to any limitation issues. If they are not permitted to discontinue, they will be committed to a proceeding which it is apparent they are not able to properly advance, and the case may remain unresolved by the operation of the stay originally sought by them, or the claims may be summarily determined without any adjudication on the merits. Either of those outcomes would be undesirable for group members.

27    Third, as the Amici Curiae submit, where the applicants are not able to continue to act on behalf of all group members in each proceeding, and assuming that the proceeding could otherwise be maintained, it may be necessary for a group member to bring an application pursuant to s 33T of the Act to substitute the applicant in each proceeding for another person. In circumstances where the proceeding is not funded, and where it appears that a substituted group member would not be legally represented, such an application seems unlikely. Accordingly, a discontinuance would not in practical terms be unfair or unreasonable or adverse to group members’ interests where the hypothetical alternative does not appear to be the continuation of the proceeding by a new representative applicant.

28    I will therefore approve the filing of a Notice of Discontinuance in each proceeding. I will make an order to that effect following the approval of a notice under s 33X and orders about its dissemination as discussed below.

The appropriateness and form of notices to group members under s 33X

29    Neither of the parties proposed orders notifying the group members of the discontinuances. The Amici Curiae submit that such a course would be appropriate, at least in respect of the Burns proceedings in which they make submissions. They say that course will put group members on notice, both of the Court’s order approving the discontinuance of the proceeding and of the effect of that discontinuance on their claims. The principal reason for the applicants resisting such a course was the incurring of further unrecoverable costs.

30    The applicants also submitted that s 33X of the Act, concerning notices in representative proceedings, evinces an intention to not require notice to be given to group members of discontinuance. They say that where s 33X(4) requires only for a notice to be given to group members for “an application for approval of a settlement under section 33V” the provision deliberately intends there to be no notice under s 33X for a discontinuance. The applicants, and the intervener Therium, also directed attention to s 33Y(5) which provides that the “Court may not order that notice be given personally to each group member unless it is satisfied that it is reasonably practicable, and not unduly expensive, to do so”.

31    As explained, Mr Hayward deposed that there are approximately 300 group members (apparently, across both proceedings). Whilst the proceedings are still at a relatively early stage, I understood that approximate figure to estimate those group members who have registered their interest, have made their contact details known, or have made inquiries with the applicants’ solicitors or former solicitors. However, it was submitted by the applicants’ counsel that some of the group members are unlikely to have an email address, or unlikely to have a reliable postal address due to frequently moving location.

32    The group members were not notified of these interlocutory applications by which the discontinuances are sought. The group members have been described by counsel for the applicants at previous interlocutory or case management hearings as in large part living in “very remote communities” that are “widely dispersed”, having experienced “unhappy educational experiences”, and having been “deprived of” their cultural heritage. As senior counsel for the applicants stated at the hearing of this interlocutory application, from her own experience dealing with group members, these proceedings raise “very, very difficult, painful, sensitive issues” for group members. Whilst I make no findings on the claims, the proceedings raise allegations of institutional mistreatment and discrimination by the State. A failure to provide notice of the discontinuance of proceedings in which group members have an interest has the potential to give rise to further concerns of institutional neglect.

33    In Cumaiyi v Northern Territory of Australia [2025] FCA 244, Rangiah J made orders approving the discontinuance of a representative proceeding brought on behalf of First Nations group members resident in Wadeye, Northern Territory, which also alleged unlawful discrimination under the RD Act. Justice Rangiah observed that in considering a discontinuance application under s 33V, “the Court has an onerous role to protect the interests of group members who are not directly represented in the proceedings”: at [3]. While his Honour did not order that notice of the approval of the discontinuance be given, that was in circumstances where notice to group members of the applications for discontinuance was ordered four months earlier: at [5].

34    In the circumstances of the present case where the group members were not notified of the applications for discontinuance, I consider it would be very unsatisfactory if those group members received no notice of the approval of discontinuance of the proceedings in which they are group members and in connection with which they have registered their interest or made their contact details known.

35    On the day of the hearing of these interlocutory applications, and in response to my queries, Ms Saunders of WGC Lawyers deposed to arrangements put in place between Ms Tucker on behalf of the applicants and EPIQ Global, a British provider of database management services, with respect to the Website for the class action. EPIQ Global was engaged to facilitate the communication to group members. Ms Saunders also deposed that she was aware of only one group member who did not have an email address and required notification by physical mail.

36    After the hearing, and with the agreement of the Court and the State, Mr Hayward deposed to the results of his further communications with EPIQ Global. In summary it advised that it could:

(1)    Replace the Website with a landing page that would contain a notice about the discontinuance; and

(2)    Perform a bulk mail out by email to registrants to advise them of the discontinuance; and

(3)    After a relevant period [of two to three months] decommission and delete the Website.

It advised that the costs for those services would be AUD $3,920.

37    The State advised at the hearing, and subsequently confirmed in writing to the applicants’ solicitors, that “if the Court was minded to order that a s 33X notice be issued, the State would not object to being ordered to contribute up to $5,000 to the costs of disseminating and publishing any s 33X notice”. It said further that should the Court order that the s 33X notices “be effected by the taking of the steps proposed to be taken in the email from EPIQ Global (at the anticipated cost), the State would raise no objection to orders being made to that effect”. Further, whilst the parties agreed and emphasised that such a notice should be agreed between them, the State agreed to prepare the first draft of the notice where WGC Lawyers said its employees did not have the requisite expertise to prepare this notice on behalf of the applicants and where any such work would be unpaid.

38    I accept that s 33X(4) does not on its terms require that notice of an application for discontinuance, or notice of the approval of discontinuance, be given to group members: see Babscay at [38]-[41], where Anastassiou J considered that in the circumstances of that case notice of the approval of the discontinuance was not required. However, that subsection also does not preclude the giving of such notice, particularly where s 33X(5) provides that the “Court may, at any stage, order that notice of any matter be given to a group member or group members.” I am satisfied in the circumstances of this case that a notice to the group members of the Court’s approval of the discontinuance is appropriate. I am fortified in that view where the objection of the applicants was in substance to the cost of preparing the notice, rather than the giving of notice itself, and where that cost will not now be borne by them. There was no meaningful objection to such a notice by the State or Therium. I am also satisfied, in the circumstances described above, that a notice of the kind described is reasonably practicable and not unduly expensive.

39    Where I am satisfied that a notice under s 33X(5) should be given, s 33Y(2) provides that the “form and content of a notice must be as approved by the Court”.

40    The orders that I will make today will require the State to draft a s 33X notice addressed to the group members of each proceeding to the effect that both of these proceedings have been discontinued, explaining the brief circumstances of the proceedings and that discontinuance, as well as the nature and effect of that discontinuance on the claims of group members. The precise terms of that s 33X notice are to be agreed upon by the parties as far as possible, or failing agreement the parties are to devise alternative proposed terms of the notice, which in either case is to be provided to my Chambers for the Court to approve.

41    Once the proposed terms of the s 33X notice are provided to the Court, I will determine the approved form of the notice and the orders I propose to make in respect of the approved form of that notice are that:

(1)    The s 33X notice is to be placed on the landing page which is to be established for the Website (https://docsclassaction.com.au/);

(2)    The landing page and Website is to be decommissioned three months after the s 33X notice is placed on the Website;

(3)    The s 33X notice is to be placed on the website of the Federal Court of Australia, by staff of the Court, at the following two webpages;

(a)    The ‘Current class actions’ page (https://www.fedcourt.gov.au/law-and-practice/class-actions/class-actions#vic): with a pdf form of the s 33X notice embedded as a document in the rows in the table for ‘Victoria’ which pertain to each of these proceedings, with the title of each proceeding to include the words “Department of Child Safety (DOCS) Class Action” so that the nature of the proceeding is more easily identifiable;

(b)    The Online File for these two proceedings (https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/gunning-v-queensland): with the s 33X notice displayed as text above the table of documents for each of the proceedings, with the title of the Online File to include the words “Department of Child Safety (DOCS) Class Action” so that the nature of the proceeding is more easily identifiable;

(4)    The s 33X notice is to be emailed to all identified group members or persons who have identified themselves to the parties or their legal representatives as being, or as suspecting themselves of being, a group member (notifiable group members) for whom any of the parties or their legal representatives possess an email address; and

(5)    The s 33X notice is to be sent by physical post to any notifiable group members for whom the parties or their legal representatives have a postal address but for whom they do not have an email address.

(6)    The State is to bear the costs of steps (1), (2), (4) and (5) above up to the amount of $5,000.

What orders should be made about limitation periods under s 33ZE?

42    Section 33ZE(1) of the Act suspends the running of any limitation period that applies to the claim of a group member, upon the commencement of a representative proceeding to which the claim relates. Section 33ZE(2) provides that where time has been suspended, time will not start to run again unless the group member opts out of the proceeding under s 33J of the Act or the proceeding is “determined without finally disposing of the group member’s claim”.

43    The objective of s 33ZE is to ensure that the claim of an individual group member is not prejudiced by the proceedings having been brought as a representative proceeding: Bright v Femcare Ltd [2002] FCA 11 at [8] (Stone J).

44    The applicants seek an order pursuant to s 33ZE of the Act, that any limitation period that applies to the claims of the applicants and any group member, shall begin to run again from the date on which the discontinuance of the proceeding takes effect.

45    The Amici Curiae submit that it would be appropriate for a further order to be made under s 33ZF extending for a short period of time the operation of s 33ZE, so that the possibility of a different group member coming forward (with legal representation) could be preserved without the claims of the applicants (or alternative representative applicants), and the claims of group members, being subject to limitation defences arising immediately following the discontinuances. By limitation defences they refer to the consequences of s 33ZE(2). As explained s 33ZE(2) provides that time will not start to run again in respect of a group member unless the group member opts out of the proceeding or the proceeding is determined without the final disposition of the group member’s claim. The Amici Curiae contend that a discontinuance of the proceeding pursuant to s 33V(1) will determine the proceeding without finally disposing of the group members’ claims, and I take them to contend that the limitation period therefore does begin to run from the date of discontinuance. However, they draw attention to a dispute in the authorities on the question of whether the limitation period commences to run pursuant to s 33ZE(2) upon a discontinuance, or whether the limitation period remains suspended. It is that dispute and legal uncertainty around the time at which the limitation period begins to run that they suggest might give rise to a limitation defence. I will explain the dispute.

46    In Gill v Ethicon Sàrl (No 4) [2019] FCA 1814 at [22] Lee J said (though not in the context of an application to discontinue), “Both textually and contextually, it seems to me that s 33ZE(2) is directed to the suspension continuing unless and until a decision has been made by the group member (opting-out) or there has been some judicial resolution of the claim of the group member” (emphasis in original).

47    In Babscay at [33]-[34] Anastassiou J doubted the correctness of Lee J’s approach in Gill (No 4) and expressed agreement with the joint opinion of counsel in Babscay that the word ‘determined’ in s 33ZE is to be construed as meaning “(‘to come to an end’), and thus being relevantly synonymous with ‘terminated’, on which basis a discontinuance does involve a determination (or termination) of the proceeding without disposing of the group member’s claim”. In Fisher at [33]-[34] O’Bryan J expressed agreement with Anastassiou J’s approach in Babscay.

48    In Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435; 314 IR 214 at [20]-[21], referring to the purpose of s 33ZE identified by [49] of the Explanatory Memorandum to the Federal Court of Australia Amendment Act 1991 (Cth), Murphy J reviewed the authorities to that point and observed:

It is high time that this uncertainty is put to bed. I agree with Lee J’s construction of s 33ZE(2) in Gill at [22]. Both textually and contextually, the phrase “the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member’s claim”, indicates that a “determination” is properly understood as a judicial resolution of a group member’s claim. It is directed to the suspension of the limitation period continuing unless and until a decision has been made by the group member opting out or there has been some judicial resolution of the claim of the group member.

This construction is also consistent with the statutory purpose. The Explanatory Memorandum to the Federal Court of Australia Amendment Act 1991 (Cth) at [49] states:

[Section 33ZE] is designed to remove any need for a group member to commence an individual proceeding to protect himself or herself from expiry of the relevant limitation period in the event that the representative action is dismissed on a procedural basis without judgment being given on the merits.

49    Noting the unfairness that this construction could cause to respondents who would be “forever exposed” to the risk of group members’ claims, Murphy J ordered under ss 33V(1) and 33ZF that the relevant limitation periods begin to run again from the date 60 days after filing of a Notice of Discontinuance: at [23]-[24]. His Honour considered such an order to be necessary and within the scope of the power in s 33ZF which permits the Court, by application or of its own motion, to make any order in a representative proceeding it thinks “appropriate or necessary to ensure that justice is done in the proceeding”: at [25]-[31]. In R&B Investments Pty Ltd v Blue Sky Alternative Investments Ltd (admins apptd) (in liq) [2022] FCA 1444 at [27]-[30] Lee J followed the approach of Murphy J in TESA Mining and made equivalent orders.

50    In Gleeson v Apple Inc [2025] VSC 366; 76 VR 622 at [14]–[22] Watson J referred to the dispute in the authorities across different courts, but preferred the view expressed by Lyons JA also of the Supreme Court of Victoria in Moira Shire Council v JLT Risk Solutions Pty Ltd [2024] VSC 4; 76 VR 340, where his Honour held that the words “determined without finally disposing of the group member’s claim” encompassed a discontinuance. Justice Watson considered it was not necessary to make an order of the kind made in TESA Mining.

51    It is not necessary for me to resolve this dispute in the authorities as to the construction of s 33ZE. If I were required to, I would prefer the approach of Murphy J in TESA Mining. That approach seems most consistent with the purpose of s 33ZE. If s 33ZE is intended to remove the need for group members to commence their own proceeding in the event that the representative proceeding is dismissed (without judgment on the merits), that suggests that the limitation period should not commence upon discontinuance. If it did then individual group members would need to commence their own proceedings to protect themselves from expiry of the limitation period. However, and in any event, it is that context in which the Amici Curiae submitted that on the present state of authorities, if the Court grants leave to discontinue, the Court may also consider ordering, pursuant to s 33ZF, that time commences to run again for group members from a specified point in time. The Amici Curiae submits that a period of 60 days from the date on which the parties notify the Court that notice of discontinuance has been given is appropriate. They say the purpose of that course would be to make clear what the effect of the order for discontinuance is on group members’ individual claims, to provide the State with certainty, and to allow time during which notice of the discontinuance under s 33X may be given to group members.

52    Ultimately, although neither the applicants nor the State proposed such an order, either they nor the intervenor Therium sought to argue against it and no prejudice to any party from the order was identified.

53    I accept that making such an order is a prudent and appropriate step, and that in the circumstances of this case such an order is appropriate to ensure that justice is done, both in fairness to the State having certainty as to any limitation applicable to claims against it, and to allow the group members sufficient time to be exposed to and to act in response to the s 33X notice of approval of the discontinuance. The Court, in the exercise of its supervisory jurisdiction over representative proceedings, must be concerned to ensure that all persons affected by the s 33V(1) order are apprised of the consequence of the order for their claims. I will therefore make an order under s 33ZF that the limitation period referred to in s 33ZE(1) begin to run again on the date that is 60 days after the date the Notice of Discontinuance is accepted for filing with the Court.

Would it be appropriate to make a declassing order under s 33N?

54    Section 33N(1) of the Act provides that the Court may, on application by the respondent or of its own motion, order that a proceeding no longer continue as a representative proceeding where it is satisfied that it is in the interests of justice to do so because:

(a)    the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or

(b)    all the relief sought can be obtained by means of a proceeding other than a representative proceeding; or

(c)    the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or

(d)    it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.

55    An order under s 33N was raised as a potentially relevant course when WGC Lawyers had been unable to contact Ms Burns or confirm her consent to discontinue the application on her own behalf and on behalf of the group members. This circumstance gave rise to a concern from the Court that it might be inappropriate for the proceeding to continue as a representative proceeding where the representative applicant could not be contacted to confirm instructions. As explained, by the time of the hearing Ms Burns was able to be contacted and written instructions were obtained, and the impetus for a s 33N order was no longer as apparent.

56    Neither the applicants nor the State submitted that such a course was appropriate. The Amici Curiae submitted that the Court should not be satisfied that s 33N is engaged in the present circumstances. In these circumstances, I do not consider it necessary to deal with the potential for a s 33N order any further.

The suitability of the proposed costs orders

57    The parties agreed that the applicant in each proceeding will pay the State’s costs in the agreed amount of $175,000, on the basis that the applicants are to be indemnified pursuant to the funding agreement between Therium and the applicants. The State confirmed that it will not seek any costs from the applicants personally. While the applicants’ proposed orders provided in advance of the interlocutory hearing referred to the date of the funding agreement as 11 September 2020, as indicated above the copy of the funding agreement that has been provided to the Court was executed by Therium on 31 July 2020. The orders will refer to that date. I am otherwise satisfied that such an order is appropriate.

The notes proposed with the orders sought

58    The parties proposed and agreed that the orders in each proceeding shall contain a note. In the Burns proceeding the parties propose the following note:

A.    The respondent will not seek any costs from the applicant personally, but will rely for its costs of the proceeding on recovery pursuant to the funding agreement between Therium Litigation Finance Atlas AFP IC and the applicant dated 11 September 2020.

B.    There is no document publicly available on the Court website which identifies any member of the applicant’s family other than the applicant herself.

59    The applicants explain that the first note is to give comfort to group members, so they clearly understand that no costs will be sought personally against them. I am satisfied that the note is appropriate, though subject to changing the date of the funding agreement to which it refers. Again, the Court, in the exercise of its supervisory jurisdiction over representative proceedings, should be concerned to ensure that all persons affected by the s 33V(1) order and consequential orders, understand the consequences of, and not be confused by, those orders.

60    The second note is to provide comfort to Ms Burns, specifically, about the identification of her family, in circumstances where she raised those concerns with WGC Lawyers. No one spoke against the note. I am satisfied that, in the circumstances of this case, it is appropriate.

61    In the Gunning proceeding, the parties only sought the note set out at [58A.] above. For the reasons explained above I am satisfied that that note is also appropriate for the Gunning proceeding. I will make the proposed notes substantially in those terms.

Disposition

62    In all of those circumstances I will first make orders in each proceeding pursuant to s 33X(5) requiring the State to draft a notice to group members that the discontinuance of these two proceedings has been approved by the Court. The proposed terms of that s 33X notice are to be agreed upon by the parties as far as possible, or failing agreement the parties are to devise alternative proposed terms of the notice, which in either case is to be provided to my Chambers for the Court to approve.

63    Once the Court has approved the s 33X notice, I will at that time make the following orders in each proceeding, with the only difference being that Note B will not be included in the orders made for the Gunning proceeding:

THE COURT NOTES THAT:

A.    The Respondent will not seek any costs from the Applicant personally, but will rely for its costs of the proceeding on recovery pursuant to the funding agreement between Therium Litigation Finance Atlas AFP IC and the Applicant, which was executed by Therium on 31 July 2020.

B.    There is no document publicly available on the website of the Federal Court of Australia which identifies any member of the Applicant’s family other than the Applicant herself.

THE COURT ORDERS THAT:

1.    Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (the Act), the Court approves the filing of a Notice of Discontinuance of this proceeding.

2.     The interlocutory application filed by the Applicant on 24 October 2025 (seeking to stay the proceeding) be dismissed by consent.

3.    Pursuant to ss 33X(5) and 33Y(2) of the Act, the terms of the notice set out in Annexure A to these Orders (s 33X notice) is approved.

4.    Pursuant to ss 33X(5) and 33Y(3) of the Act:

a)    WGC Lawyers is to cause a landing page to be established for the website (https://docsclassaction.com.au/) (Website) and to cause the s 33X notice to be placed on that landing page;

b)    WGC Lawyers is to cause the landing page and Website to be decommissioned three months after the s 33X notice is placed on the Website;

c)    The s 33X notice is to be placed on the website of the Federal Court of Australia, by staff of the Court, at the following two webpages:

i)    The ‘Current class actions’ page (https://www.fedcourt.gov.au/law-and-practice/class-actions/class-actions#vic): with a pdf form of the s 33X notice embedded as a document in the rows in the table for ‘Victoria’ which pertain to each of these proceedings, and with the title of each proceeding to include the words “Department of Child Safety (DOCS) Class Action” so that the nature of the proceeding is more easily identifiable;

ii)    The Online File for these two proceedings (https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/gunning-v-queensland): with the s 33X notice displayed as text above the table of documents for each of the proceedings, and with the title of the Online File to include the words “Department of Child Safety (DOCS) Class Action” so that the nature of the proceeding is more easily identifiable;

d)    The s 33X notice is to be emailed to all identified group members or persons who have identified themselves to the parties or their legal representatives as being, or as suspecting themselves of being, a group member (notifiable group members) for whom any of the parties or their legal representatives possess an email address; and

e)    The s 33X notice is to be sent by physical post to any notifiable group members for whom the parties or their legal representatives have a postal address but for whom they do not have an email address.

f)    The costs of completing steps a), b), d) and e) above are to be borne by the Respondent up to the amount of $5,000.

5.    Pursuant to s 33ZF of the Act, the limitation period referred to in s 33ZE(1) for a group member in this proceeding is to begin to run again on the date that is 60 calendar days after the date the Notice of Discontinuance is accepted for filing with the Court.

6.    By consent, any costs order already made in this proceeding be vacated.

7.    The Applicant pay the Respondent’s costs of the proceeding in the agreed amount of $175,000, on the basis that the Applicant is to be indemnified pursuant to the funding agreement between Therium Litigation Finance Atlas AFP IC and the Applicant which was executed by Therium on 31 July 2020.

64    Annexure A to those orders will be the form of the s 33X notice that I approve. The precise form of those orders is subject to any issue that might be brought to my attention by the parties at the time the proposed s 33X notice is provided to my Chambers. I again express the Court’s gratitude to the pro bono Amici Curiae.

Associate:

Dated:    28 September 2026