Class Actions Insights

An important issue in consumer claims for allegedly defective goods in breach of acceptable quality guarantees under the Australian Consumer Law, including consumer class actions brought against goods manufacturers and/or suppliers, has been whether damages are available for reduction in value when a repair becomes available after supply and, if so, how to measure those damages.

The High Court has confirmed it will consider whether solicitors can get the commercial equivalent of contingency fees in class actions through "solicitor common fund orders". It will also consider whether common fund orders can be made at all (i.e. in favour of litigation funders).

This is a significant point for both the class action and legal market in Australia, and will finally answer long disputed questions. In anticipation of the judgment, our article sets out the issues and potential implications.

Cooperation between competing class action outfits in order to proceed as a single consolidated claim is becoming more common. The Victorian Supreme Court has said that cooperation of that kind is not unlawful anti-competitive behaviour, and can actually be a positive factor in carriage motions where there are multiple competing proposals.

We explain in this update.

Remediation programs are an important tool in managing potential class action risks. A well designed remediation program can reduce the incentives for litigation funders and plaintiff lawyers to pursue class actions.

In this article, we consider how remediation programs can affect class action risk, how courts have dealt with remediation in class actions, and what factors to focus on when designing a remediation program to mitigate class action risk as far as possible.

The NSW Court of Appeal has rejected a novel claim in which class action plaintiffs have sought to have the litigation funding commission paid as damages (i.e. in addition to ordinary compensation, rather than taken from it). If it had been successful, the argument would have fundamentally changed the litigation funding market and significantly increased damages exposure in class actions.

We discuss the issue and decision in our update.

For the first time, the Supreme Court of Victoria has approved a contingency fee under the Group Costs Order regime as part of its approval of a class action settlement. The Court has also provided guidance on the factors relevant to whether a Group Costs Order should be amended at the time of settlement.

Our latest Class Action Update explores the decision and its implications for future class actions.

The High Court is set to provide much awaited guidance on key class actions issues.

the Supreme Court of Victoria and the Federal Court of Australia have resolved a carriage dispute regarding three competing claims against IC Markets that were commenced within four months of each other, with substantially the same allegations.

Solicitors can now take cut of class action proceeds in Federal Court as well as Victorian Supreme Court.

The Federal Court has dismissed the shareholder class action against Commonwealth Bank in Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Limited (No 5) [2024] FCA 477 for alleged breaches of its continuous disclosure obligations and misleading or deceptive conduct in relation to its non-compliance with AML/CTF laws.

The Federal Court has dismissed an application seeking "soft" class closure orders prior to mediation where the orders were strenuously opposed by the applicants on cogent grounds.

The Full Federal Court has re-confirmed its earlier decision that it has the power to make a common fund order ("CFO") at settlement.

Earlier this week, the House of Lords discussed the Litigation Funding Agreements (Enforceability) Bill (LFA Bill) during its second reading. The Bill will be scrutinised in more detail at the Committee stage, however, it was generally welcomed by the Lords.

The NSWCA has maintained its position ruling out the availability of notices signalling a future intention to seek "soft" class closure orders in representative actions.

A recent Federal Court decision has departed from previous case law which suggested that Calderbank letters and Offers of Compromise will rarely be effective in class action proceedings where (as is common) the ultimate potential liability to group members is not known when the offer is made.

Australia has the highest per capita rate of climate-related litigation in the world, and is second only to the United States in total volume of climate-related litigation.

There have been two further significant shareholder class action judgments in favour of defendants. Shareholders have failed to secure an award for damages in all four shareholder class actions that have gone to judgment in Australia.

In Commission Recovery Ltd v Marks & Clerk LLP, the Court of Appeal ruled that a claim in respect of "secret commissions" paid by an IP renewal services firm could proceed as a representative action under CPR 19.8.

The Dispute Resolution team at Ashurst offer our take on the top 10 developments from 2023 and areas to watch in 2024.

Once again the commercial litigation team at Ashurst welcomed the New Year with a discussion on the main issues of 2023 and our predictions for 2024. Our top ten are as follows.

In Wirral Council v Indivior plc [2023] EWHC 3114 (Comm), the High Court rejected the use of the representative action procedure under CPR 19.8 to bring claims under sections 90 and 90A and Schedule 10A of the Financial Services and Markets Act 2000 (FSMA).

The High Court decision in Karpik v Carnival plc [2023] HCA 39 on class action waivers and the broad extraterritorial application of the UCT regime.

Is the use of the representative action procedure for large scale data-related claims doomed to fail? This is a view we've heard a lot recently. But is it right?

The Federal Court (Lee J) has approved a pre-mediation registration and opt out notice to group members that foreshadows a "soft" class closure order being sought if the matter settles.

The increase in employment claims is starting to lead to overlapping class actions, union and regulatory proceedings. This was the first application for a stay between competing union and class action proceedings.

The Federal Court has repeated that it considers there is power to order contingency-like payments to plaintiff lawyers as part of a solicitors' common fund order despite the legislative ban on contingency fees.

The Full Federal Court has confirmed the court's power to order that proceeds of settlement be paid to litigation funders from class action group members who have not agreed to that, through a "Common Fund Order"..

A new class actions regime has come into effect in Western Australia.

The Full Federal Court considered that a "proper conceptual approach" to the question of any reduction in value of consumer goods arising from the defect, in breach of the Australian Consumer Law, was to determine the extent of the loss of utility of the consumer good over its useful life measured as a component of the purchase price, having regard to the seriousness of the defect, its consequences and utility of the good despite the defect (rather than the resale value).

O'Callaghan J of the Federal Court of Australia has held that the Court does not have power to make a common fund order (CFO) at settlement.

We analyse the potential implications arising from the UKSC judgment in R (on the application of PACCAR Inc and others) (Appellants) v Competition Appeal Tribunal and others (Respondents).

Data breaches lead to regulatory focus and increased penalties.

The High Court of Australia has unanimously upheld a decision of the Court of Appeal of the Supreme Court of Western Australia that a statutory authority owed a duty of care to avoid or minimise the risk of harm to persons and their properties in the vicinity of its electricity distribution system.

The High Court has confirmed that all persons, including Australian non-residents, can participate as group members in Australian class actions. This contrasts with the position in the UK and many other jurisdictions, where there are restrictions on foreign members being included in a class action, either at all or unless they register to participate.

There has been uncertainty about whether class action waiver clauses, in which a potential group member agrees to waive their right to participate in a class action when contracting with a potential defendant, are enforceable in Australia.

In a significant recent judgment, the Competition Appeal Tribunal (CAT) has granted a collective proceedings order (CPO) in a standalone opt-out claim for the first time (Justin Le Patourel v BT Group Plc and British Telecommunications Plc [2021] CAT 30). When it was handed down, the judgment was only the second competition claim, and the first standalone claim, to be certified to proceed as collective proceedings. The CAT has denied BT permission to appeal and it is understood that BT intends to seek permission from the Court of Appeal.

On 10 November 2021, the Supreme Court published its much-anticipated judgment in the landmark data breach litigation case, Lloyd v Google.

On 31 March 2022, the Competition Appeal Tribunal refused to certify two claims advanced against a number of UK banks for their participation in a foreign exchange spot rate manipulation cartel as opt-out collective proceedings. The novel issue before the Tribunal at the certification hearing was a 'carriage dispute', whereby it was invited to consider which of the two rival applicants looking to bring an opt-out claim would be most suitable to represent the interests of the class members. By declining to certify either claim on an opt-out basis, the Tribunal effectively side-stepped the issue.

On 8 June 2022, the Competition Appeal Tribunal (CAT) handed down judgment in respect of two applications for collective proceedings (heard jointly) comprising follow-on damages claims arising from the European Commission's 2016 infringement decision in relation to the Trucks cartel.

A recent decision of the High Court offers renewed hope for claimants looking to bring group representative actions under CPR 19.6, following the Supreme Court's important 2021 judgment in Lloyd -v- Google.

Latest High Court judgment illustrates the difficulties of a representative claim and the same interest test.