15 December 2016

Class Action Update: Q4 2016 - Common fund orders, individual defences and other recent developments

Welcome to Class Action Update Q4 2016.

Since our last update, we have seen a significant amount of activity, with the first-ever Court orders approving the establishment of a common fund as a basis for third party litigation funding, a number of challenges to the finality of class actions and the introduction of new Court practice notes.

In this edition:

In the market place:

At least five new class actions have been commenced since our last update including in relation to:

  • alleged continuous disclosure failures by Slater & Gordon (the action by Maurice Blackburn has been filed, while the possible action by ACA Lawyers remains under investigation);
  • alleged misleading or deceptive representations in Ashley Services Group Limited’s prospectus issued on 7 August 2014;
  • CIMIC Group, concerning conduct which is also the subject of an existing securities class action brought by Melbourne City Investments;
  • alleged sham contracting by Appco relating to fundraising; and
  • alleged contamination by firefighting foam used at the Royal Australian Air Force base at Williamtown.

We have also seen a significant number of new class actions under investigation, including in relation to:

  • potential shareholder class actions against Pacific Current Group Limited, and Bellamy's Australia Limited;
  • power blackouts in South Australia;
  • property owners near the proposed F6 freeway in Sydney who were allegedly given incorrect information by LPI;
  • franchisees and employees of Caltex in relation to workers’ rights;
  • speeding fines issued on the Peninsula link in Victoria;
  • concussion injuries while playing professional sports;
  • the 2015 Scotsburn bushfire; and
  • cancer allegedly linked to Camden High School being partially built on an old gas works.  

Other significant developments in the past quarter have included:

  • the common fund orders in the QBE securities class action (read our article here), with similar orders since being made in the Macmahon Holdings securities class action;
  • the approval of settlements in the Billabong and Newcrest securities class actions, the DePuy Hip Implants class action, the Jack River bushfire class action, the Grand Western Lodge class action and the class action relating to claims of discrimination by workers with intellectual disabilities who work in Australian Disability Enterprises (this settlement is of particular interest as it involves the establishment of a legislative compensation scheme); and
  • the discontinuance of the Deception Bay and Callide Dam class actions (they were filed, but not served).

Watch list:

Our watch list for the quarter ahead includes:

  • Settlement approval hearings for the Allco securities class action and the Willmott Forests class action (seeking approval of a revised settlement, as approval for the first proposed settlement was refused); and
  • Trials for the 2014 Mickleham-Kilmore bushfire class action and the Nurofen advertising class action.

Courtside:

As part of its implementation of the National Court Framework (read our earlier article here), the Federal Court has issued the finalised Class Actions Practice Note, after a period of consultation on the draft.

The Supreme Court of Victoria has also announced that it will issue a revised Group Proceedings Practice Note on 30 January 2017. 

The two new practice notes cover a number of areas, including:

  • the commencement of proceedings;
  • case management, with:
    • the introduction of a two-judge case management / hearing approach where considered appropriate; and
    • the creation of a “Class Actions Registrar” role to assist in the co-ordination of certain types of class actions (Federal Court only);
  • urgent applications in the commercial court (Supreme Court of Victoria only);
  • disclosure (including disclosure of cost agreements and litigation funding agreements). Significantly, while the Federal Court has retained the requirement that litigation funding agreements be disclosed to the Court, it appears to have been removed by the Supreme Court of Victoria;
  • communications with class members;
  • trial of common questions;
  • settlement; and
  • judicial supervision of deductions for legal costs or litigation funding charges (Federal Court only).

We hope you find this edition of our Class Action Update informative and that you have a safe and happy summer.

Signposts

Class actions now part of Queensland legal landscape

Class actions formally became part of the Queensland legal landscape on 8 November 2016. The legislation provides the Queensland Supreme Court with the opportunity to develop new case management practices which draw on experience in other jurisdictions to attempt to facilitate the early resolution of proceedings.

“It’s time”: Federal Court approves common fund class action model and flags a new era of Court intervention in funding arrangements

On 26 October 2016, the Full Court of the Federal Court handed down its decision in Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Limited [2016] FCAFC 148, approving for the first time an application to conduct a class action on a “common fund” basis. This decision is a game changer in Australian class action litigation, paving the way for litigation funders in “open class” actions to obtain fees from class members without the need to enter into funding agreements.

Australia's Data Breach Bill - third time lucky?

On 19 October 2016, the Privacy Amendment (Notifiable Data Breaches) Bill 2016 was introduced into the Australian Parliament. This is the Federal Government’s latest iteration of the long-anticipated mandatory data breach notification law. There is some concern that it may encourage class action litigation against companies that suffer eligible data breaches, as notification may often look like admission of liability.

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