Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435

Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435

Given the fundamental change in law due to retrospective amendments to the Fair Work Act 2009 (Cth) and the High Court's decision in Rossato, the class action has poor prospects of success. It is not unfair, unreasonable or adverse to group members' interests to approve discontinuance, provided group members are given notice and limitation periods recommence after a 60-day period post-discontinuance.

Jurisdiction
Australia
Judgment Date
26 April 2022
Procedural Posture
Representative Proceeding (class Action) / Application for Approval to Discontinue Representative Proceeding
Outcome
Approved discontinuance of representative proceeding with conditions; limitation periods to recommence 60 days after notice of discontinuance; no order as to costs; declaration preserving rights to bring proceedings.
Legal Topics
['class Actions' 'discontinuance of Proceedings' 'limitation Periods' 'employee Entitlements' 'casual Employment' 'notice to Group Members']
['employment Law' 'industrial Relations' 'practice and Procedure'] ['class Actions' 'discontinuance of Proceedings' 'limitation Periods' 'employee Entitlements' 'casual Employment' 'notice to Group Members']

Case Brief

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Procedural Posture

Representative Proceeding (class Action) / Application for Approval to Discontinue Representative Proceeding

Legal Issues

  1. 1 ['Whether the Court should approve the discontinuance of a representative proceeding under s 33V(1) of the Federal Court of Australia Act 1976 (Cth)' "Whether, on discontinuance, limitation periods for group members' claims begin to run again under s 33ZE" 'What principles apply to approval of discontinuance in a class action' 'Whether group members should be notified of proposed discontinuance']

Ratio Decidendi

Given the fundamental change in law due to retrospective amendments to the Fair Work Act 2009 (Cth) and the High Court's decision in Rossato, the class action has poor prospects of success. It is not unfair, unreasonable or adverse to group members' interests to approve discontinuance, provided group members are given notice and limitation periods recommence after a 60-day period post-discontinuance.

Court Disposition

Approved discontinuance of representative proceeding with conditions; limitation periods to recommence 60 days after notice of discontinuance; no order as to costs; declaration preserving rights to bring proceedings.

Orders

  • ['Discontinuance of the proceeding is approved under s 33V(1) of the Federal Court of Australia Act 1976 (Cth). Applicant may discontinue by filing a notice of discontinuance.' 'Limitation periods for claims of the applicant and any group member shall begin to run again from a date 60 days after filing of a notice...