Turner v TESA Mining (NSW) Pty Ltd (No 2)

The Federal Court was asked to decide on an application by the applicant, Turner, to discontinue a representative proceeding against TESA Mining (NSW) Pty Ltd and others. The applicant and the group members, who were all employed by TESA, alleged that they were wrongly classified as casual employees and were denied entitlements such as paid annual leave and redundancy pay. The court had to determine whether the proceeding could be discontinued without notice to the group members and whether the limitation period for the group members’ claims should start again if the proceeding was discontinued.

The court held that it was inappropriate to grant leave to discontinue the proceeding without giving notice to the group members, as they needed to make informed decisions about their rights. The court also held that if the proceeding was discontinued, the limitation period for the group members’ claims should start again from 60 days after the filing of a notice of discontinuance. The court approved the discontinuance on the condition that notice was given to the group members and that the limitation period for their claims started again.

The court ordered that the proceeding be discontinued, with the limitation period for the group members’ claims starting again 60 days after the filing of a notice of discontinuance. The court also ordered that there be no order as to costs of the interlocutory application for approval of the discontinuance or in the proceeding, and that all existing orders as to costs be vacated. The court declared that the order for discontinuance did not affect any rights of the applicant or any group member in the proceeding to pursue the claims in another proceeding.