JUDD -v- AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION [2026] WASC 360

[2026] WASC 360 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : JUDD -v- AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION [2026] WASC 360 CORAM : HOWARD J HEARD : 26 AUGUST 2026 DELIVERED : 26 AUGUST 2026 FILE NO/S : CIV 1460 of 2025 BETWEEN : SYLVIA JUDD Plaintiff AND AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Defendant Catchwords: Representative proceedings - Application by plaintiff for leave to discontinue the proceeding - Consideration of appropriate test for approval of discontinuance - Discontinuance has no unfair, unreasonable or adverse consequence for group members - Where group members have not been identified or notified - Leave to discontinue given - Requirement for notice to group members dispensed with - Orders made Legislation: Australian Securities and Investments Commission Act 2001 (Cth) Civil Procedure (Representative Proceedings) Act 2022 (WA) s 23, s 25, s 32 Rules of the Supreme Court 1971 (WA) O 7 r 1(1), O 67B r 5(2) Supreme Court Act 1986 (Vic) s 33V(1), s 33X(4), s 33ZE -- 1 of 10 -- [2026] WASC 360 Page 2 Result: Application granted Category: B Representation: Counsel: Plaintiff : Ms A M Morgan Defendant : N/A Solicitors: Plaintiff : Banton Group Defendant : N/A Case(s) referred to in decision(s): Fenton v Monsanto Australia Pty Ltd [2024] FCA 1525 Moira Shire Council v JLT Risk Solutions Pty Ltd [2024] VSC 4 Peter Gleeson v Apple Inc [2025] VSC 366 -- 2 of 10 -- [2026] WASC 360 HOWARD J Page 3 HOWARD J: 1 At the conclusion of the hearing today, I made orders on the plaintiff's application. These are my reasons for making those orders. 2 On 2 May 2025, the plaintiff filed a Writ with an indorsement of claim which invoked the Civil Procedure (Representative Proceedings) Act 2022 (WA) (CPRP Act). 3 The defendant (ASIC) is the relevant market regulator which is established by, and provided for, the Australian Securities and Investments Commission Act 2001 (Cth). 4 The plaintiff alleged that she had invested moneys in a managed investment scheme run by or through the 'Sterling Group' of companies:1 which Group was defined in the Writ to include 12 trusts or legal persons. 5 Her claim in the Writ, broadly, against ASIC was that it had been negligent in its regulation of the activities of the Sterling Group such that ASIC should have, but did not, exercise its statutory powers to prevent the plaintiff investing in the scheme run by or through the Sterling Group. 6 By her Summons dated 16 June 2026 and filed 23 June 2026, the plaintiff sought the following orders: 1. Pursuant to s 23 Civil Procedure (Representative Proceedings) Act 2022 (WA) (the Act), leave be granted to discontinue the proceeding with no requirement to notify group members. 2. Pursuant to the inherent power of the Court, the following requirements to serve on the defendants be dispensed with: 1. The Summons; 2. The plaintiff’s Writ of Summons on 2 May 2025; and 3. Any Notice of Discontinuance. 3. Pursuant to Order 67B rule 5 of the Rules, until further order of the Court, the following documents be marked confidential on the Court file, not be published, disclosed or accessed by any person or party, except pursuant to an order of the Court and their contents be supressed: 1 Writ of summons filed on 2 May 2025 [2(a)]. -- 3 of 10 -- [2026] WASC 360 HOWARD J Page 4 1. Paragraphs 10(a.)(i.) to (v.), 10(d.), 10(e.), 14, 16.(a.) to 16.(p.), 18, 21 to 29 of the confidential affidavit of Melissa Ann Morgan, sworn on 16 June 2026 and pages 12 to 21 of the confidential Exhibit MAM-1 to that affidavit; and 4. No order as to costs. 7 To support her Summons, the plaintiff relied on a confidential affidavit of her solicitor, Melissa Ann Morgan, made 16 June 2026 and, initially, filed 23 June 2026. That affidavit as first filed did not annex the attachment 'MAM-1'. An affidavit with the attachment 'MAM-1' was filed on 17 August 2026. 8 From Ms Morgan's affidavit, it appears: 1. before the Writ was issued, there were without prejudice discussions between the plaintiff's solicitors and ASIC which were unsuccessful in reaching a settlement; 2. the issuing of the Writ was not brought to ASIC's attention; 3. ASIC has not been served with the Writ; 4 in addition to the named plaintiff, the plaintiff's solicitors hold instructions on behalf of six other separate potential parties; and 5. apart from those seven parties, the solicitors have not: (a) contacted any potential group members; nor (b) undertaken any 'bookbuilding' process. 9 It may be observed that the Writ was not served within 12 months of its being issued and so had become stale: Rules of the Supreme Court 1971 (WA) O 7 r 1(1). 10 As Ms Morgan's affidavit deposed, the plaintiff sought funding from a number of different litigation funders to progress her claims. The plaintiff had been unsuccessful in doing so and, consequently, did not serve the Writ on ASIC. 11 The plaintiff sought for her Summons to be determined on the papers without a hearing. As this is, to my knowledge, the first such application made under the CPRP Act, I declined to determine the matter on the papers. -- 4 of 10 -- [2026] WASC 360 HOWARD J Page 5 12 In the alternative to a determination on the papers, the plaintiff sought for her Summons to be heard and determined ex parte. In all the circumstances, I considered that that was appropriate. 13 In correspondence, the plaintiff's solicitors enquired as to whether the Court required or would be assisted by a confidential opinion from counsel being filed. 14 My chambers enquired as to whether it was intended to put any further relevant information before the Court via such an opinion from counsel. That enquiry was not answered directly by the plaintiff's solicitors. 15 On an ex parte application, it is always for the moving party to ensure that the Court has all the information before it which may impact upon its discretion. How that is most appropriately done is generally the responsibility of the moving party. 16 In the circumstances of this application being made by the Summons, I consider that, absent any statutory provision or well-established practice, it is for the applicant to decide whether it will put such an opinion before the Court. This is a matter I return to below. The application for leave to discontinue 17 Relevantly, s 23 of the CPRP Act provides: (1) A representative proceeding cannot be settled or discontinued without the approval of the Court. 18 The plaintiff submitted that this Court should follow the approach taken by the Victorian Supreme Court in Peter Gleeson v Apple Inc [2025] VSC 366 (Watson J) in determining an application under the materially same Victorian provision. 19 In Peter Gleeson, Watson J, in dealing with a very similar application to discontinue a 'group proceeding'2 under s 33V(1) of the Supreme Court Act 1986 (Vic) (VSC Act), said: [8] It is well established that, for a settlement to be approved under s 33V(1), it must be fair and reasonable in the interests of the group members as a whole ('the fair and reasonable test'). 2 For present purposes, there is no material difference between a 'group proceeding' under the VSC Act and a 'representative proceeding' under the CPRP Act. -- 5 of 10 -- [2026] WASC 360 HOWARD J Page 6 [9] In a number of cases, both in this Court and in the Federal Court of Australia, judges have pointed to the differing consequences of a settlement approval and discontinuance. In the former, group members are bound, usually their rights in the proceeding extinguished and they are barred from bringing later proceedings on the same causes of action. In a discontinuance, the applicant and group members are free to commence their own proceedings against the defendants relating to the same subject matter as the discontinued proceeding and generally, the only consequence for group members is that any suspension of limitation periods under s 33ZE ceases. [10] This has led to a growing judicial consensus that the appropriate test for approval of a discontinuance under s 33V(1) is whether the discontinuance is not 'unfair, unreasonable or adverse' to the interests of group members as a whole ('the not unfair or unreasonable test'). I would respectfully agree that that is the proper test. Judges have generally accepted that in practice there will often be little difference in outcome whichever test is applied, but I am persuaded that the not unfair or unreasonable test better captures the limited consequences which flow from approval of a discontinuance as opposed to approval of a settlement.3 (footnotes omitted) 20 With respect, I have adopted and applied that test to the application here for leave to discontinue. 21 As to the provision of a confidential opinion from counsel, his Honour said: I was provided with a confidential opinion of counsel which canvassed the risks and potential prospects in the proceeding. I accept that that opinion has properly considered those risks and prospects, including the risk that many of the group members' claims may be statute barred. However, I am not persuaded that it matters in this case whether the claims in the proceeding had great prospects and low risk or had low prospects and great risk or were somewhere in the middle. Whatever the case regarding prospects and risk, after discontinuance group members will be free to bring their own proceedings should they choose, they are no better or worse off than if the proceeding had not been instituted.4 22 His Honour then went on to say: There might be cases where group members can show that in some way or another the existence of a group proceeding has caused them to act in a particular way to their detriment, an example might be by contributing to the plaintiff's costs. In such a case, a court will need to carefully 3 Peter Gleeson v Apple Inc [2025] VSC 366 [8] - [10]. 4 Peter Gleeson [12]. -- 6 of 10 -- [2026] WASC 360 HOWARD J Page 7 consider whether there is an unfair, unreasonable or adverse consequence for group members arising from the discontinuance. However, in this case, where group members have taken no steps and indeed are likely completely unaware of the existence of the proceeding the not unfair or unreasonable test is plainly satisfied.5 (emphasis added) 23 I consider that this case is materially similar to that in Peter Gleeson in that, here, potential group members have taken no steps and are likely unaware of the existence of the proceedings such that the 'not unfair or unreasonable' test is met. 24 I do not read Peter Gleeson as standing for a proposition that the Court should, ordinarily, be supplied with such an opinion from counsel in circumstances such as are present in this case. 25 With respect, I also understand why Watson J was not assisted by the confidential opinion from counsel. It is difficult to imagine how, in the present circumstances, the Court would be assisted by counsel opining on the risks or merits of the proceeding if it were to proceed. 26 I do not express any general view as to the desirability or necessity of an opinion from counsel being supplied to the Court on an application under s 23 of the CPRP Act. 27 The last part of Order 1 sought by the Summons was to the effect that there be no requirement on the plaintiff to notify group members of any order giving leave to discontinue these proceedings. 28 Watson J considered s 33X(4) of the VSC Act which provided: (4) Unless the Court is satisfied that it is just to do so, an application for approval under section 33V must not be determined unless notice has been given to group members. 29 It may be noted that s 25 of the CPRP Act is not materially similar to s 33X(4) of the VSC Act. Rather, the relevant provisions are: 25. Notice to be given of certain matters … (4) Unless the Court is satisfied that it is just to do so, an application for the Court’s approval of a settlement of a 5 Peter Gleeson [13]. -- 7 of 10 -- [2026] WASC 360 HOWARD J Page 8 representative proceeding must not be determined unless notice has been given to group members. (5) The Court may, at any stage, order that notice of any matter be given to a group member or group members. … 30 That is, it may be noted that there is no express requirement under the CPRP Act that an application for the giving of leave to discontinue only be heard after notifying group members. 31 Further, I do not consider, on the material before me, that there is a sensible reason for the plaintiff to give notice to potential group members pursuant to s 25(5) of the CPRP Act. 32 Indeed, here the plaintiff's solicitors have not yet sought to identify group members generally. So, there is necessarily uncertainty as to their identity and as to obtaining their contact details. 33 It appears that a potential funder had created a 'closed' Facebook page for potential group members. I understand that it did not state that the Writ had issued. Nor was any such information posted on the plaintiff's solicitors' website. The significance of those matters is that no potential group member has been informed of the Writ's issue, nor would have held off commencing their own proceedings by reason of its issue. 34 In the absence of funding to continue the proceedings, it does not appear to be sensible or necessary for an order to be made giving notification of either the application or the Court's granting of leave to discontinue. Notice to the defendant 35 I considered, in all of the circumstances, that it is appropriate to make an order in terms of Order 2 sought in the Summons. There does not appear, on the material before me, to be any utility in requiring any of those three documents to be served on ASIC. 36 The only issue identified to the Court which may have weighed in favour of notifying ASIC was the impact of an order granting leave to discontinue the proceeding on s 32 of the CPRP Act. -- 8 of 10 -- [2026] WASC 360 HOWARD J Page 9 37 Section 32 of the CPRP Act provides as follows: 32. Suspension of limitation periods (1) On the commencement of a representative proceeding, the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended. (2) The limitation period does not begin to run again unless either the member opts out of the proceeding in accordance with this Act or the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim. 38 Watson J considered a similar issue in Peter Gleeson. 39 Watson J considered the effect of s 33ZE of the VSC Act which is in materially similar terms to s 32 of the CPRP Act: see Peter Gleeson [14] and following. 40 His Honour reached the view that there was no requirement for any order to be made to, effectively, recommence the running of a limitation period. In this respect, his Honour agreed with the reasoning and conclusion reached in Moira Shire Council v JLT Risk Solutions Pty Ltd [2024] VSC 4 (Lyons JA) [48] - [63], rather than a somewhat different view expressed by Lee J in Fenton v Monsanto Australia Pty Ltd [2024] FCA 1525 [25] - [27]. 41 With respect, I agree with Watson J's view to the effect that s 32(2) of the CPRP Act here, which refers to 'determined', must be read in its own statutory context. And that, properly construed, is to be read to the effect that a discontinuance under the CPRP Act would be, relevantly, a determination within s 32(2) of the CPRP Act. 42 Further, I agree with Watson J, with respect, that the effect of s 32(2) of the CPRP Act is to obviate an argument that without notice the defendant may be prejudiced in not being aware of the suspension of the limitation period pursuant to s 32(1) of the CPRP Act. Confidentiality orders sought 43 The last matter which falls to be considered are the orders sought under O 67B r 5(2) of the RSC in respect of Ms Morgan 's affidavit. -- 9 of 10 -- [2026] WASC 360 HOWARD J Page 10 44 By correspondence with my chambers, it appeared that what was sought was an order which would cover the entirety of Ms Morgan's affidavit. 45 The terms of Ms Morgan's affidavit were different in that it foreshadowed the seeking of confidentiality orders in respect of: 1. the attachment 'MAM-1' to the affidavit; and 2. the parts of the body of the affidavit which had been shaded or marked in grey. 46 The Summons, by its Order 3, also limited the parts of Ms Morgan's affidavit over which confidentiality orders were sought. There was not an exact coincidence of those parts shaded in grey in Ms Morgan's affidavit and those sought to be protected in the Summons. 47 I considered that the confidentiality orders articulated in Ms Morgan's affidavit at [6] and [7] were appropriate and should be made, rather than some blanket confidentiality order applying to the whole of the affidavit, or the less precise Order sought in the Summons. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. MM Associate to the Hon Justice Howard 26 AUGUST 2026 -- 10 of 10 --