Commonwealth Bank of Australia v The Law Debenture Trust Corporation Plc [No 3]

The Commonwealth Bank of Australia was the plaintiff in a proceeding against The Law Debenture Trust Corporation Plc in the Supreme Court of Western Australia. The plaintiffs sought to discontinue their action, which was defended, as well as a counterclaim by the defendants. The case involved substantial overlap with other proceedings, including the Bell proceedings and CIV 2666 of 2016. The plaintiffs did not seek to ventilate certain issues in this action and wished to bring the action to an end. However, they did not seek leave to discontinue or dismiss the action. The defendants had given undertakings to the court in October 2004, which the plaintiffs wished to remain in effect until an application to discharge them could be made. The primary legal issue before the court was whether to grant leave to discontinue the action without prejudice to any application to discharge the undertakings. The court considered the inherent jurisdiction to dismiss an action where no relief is sought and no intention to prosecute the action exists. The court also examined the rules of the Supreme Court 1971 (WA) O 20 r 19(1)(d) and the potential for abuse of process. The court found that there was no substantial prejudice from the action remaining on foot for the time being and that the application to release the undertakings was likely to be made. Therefore, the court granted leave to discontinue the action without prejudice to any application to discharge the undertakings. The court also ordered that the plaintiffs' costs of the application be paid by the defendants.