26 August 2016

Outlook - What's next for class actions in Australia?

On the radar

A large number of hearings have been set down, including:

  • for the two Christmas Island class actions – the first is a negligence claim in relation to the sinking of asylum seeker vessel SIEV221 (26 September 2016) and the second by detainees alleging negligence in failure to provide adequate health care (14 November 2016),
  • the claim by residents of the residential facility Grand Western Lodge (commencing 27 September 2016),
  • a claim by investors of misleading conduct against Villa World Developments regarding a Gold Coast property development (5 October 2016),
  • the Allco shareholder class action (24 October 2016),
  • the Snake Valley bushfire class action (6 February 2017),
  • the Mickleham-Kilmore Bushfire class action (13 February 2017),
  • the Walla Walla class action brought in relation to negligent management of a tip (April 2017),
  • Sandhurst Trustees (on behalf of debenture holders of Wickham Securities, 3 July 2017),
  • the Johnson and Johnson class action over transvaginal mesh surgery (4 July 2017) and,
  • the Wivenhoe Dam class action for water-related damage (now postponed to October 2017).

Significant appeals:

  • An application for leave to appeal, and the appeal itself, has been heard in the McGraw Hill class action in respect of the decision to order the defendants’ chief executive officer to file an affidavit in relation to the applicability of findings in two earlier cases regarding certain aspects of the ratings methodologies. Judgment is reserved.
  • The Timbercorp appeal is due to be heard by the High Court in September 2016.


We await judgment on the common fund application in the QBE class action.


A number of class action settlements are awaiting Court approval, including the claim against the Commonwealth by workers with intellectual disabilities claiming discrimination in relation to the payment of wages (as yet undisclosed, 30 August 2016) and the shareholder action against Tamaya Resources ($6.75 million, 16 September 2016). The equine influenza class action has been abandoned, with an in principle settlement providing for discontinuance of proceedings and no compensation (30 August 2016).

Stop press

Just outside the review period we have seen:

  • approval of the OZ Minerals settlement ($32.5 million, 18 July 2016) and settlement of the Rivercity class action in relation to the preparation of traffic forecasts ($121 million, 10 August 2016).
  • conditional settlement of the Jack River bushfire class action and Billabong securities class action.
  • the High Court’s dismissal of the bank fees class action against ANZ, with a majority holding that late payment fees did not constitute penalties and are not otherwise unconscionable, unjust or unfair under relevant statutory provisions.

Proposed class actions

A significant number of matters are being examined by law firms or reported by media outlets as potential class action candidates. Potential actions include:

Securities: actions against Arrium, Surfstitch, Dick Smith, a second action in relation to Murray Goulburn, PaperlinX SPS Trust, and Slater and Gordon.

Other investment and financial product claims: potentially include an action against ANZ in relation to financial and investment advice in failed investments in agribusiness schemes.

Government and public interest claims: against the Department of Defence for toxic contamination of the land surrounding RAAF Base Williamstown (with an additional investigation in relation to contamination at Oakey); by drivers who suffered loss at the Road Safety Remuneration Tribunal; against the Queensland government in relation to contamination of land by underground gas company Linc Energy; and by current and former employees of NSW Ambulance Service for bullying and harassment.

Consumer claims:

  • against egg producers for alleged misleading “free range” claims;
  • claims by farmers against milk processors for representations about milk prices;
  • against CommInsure for “unethical” processing of insurance claims (with numerous firms investigating claims);
  • against Dick Smith by gift card holders;
  • against Thermomix for defective product injuries; by 7/Eleven franchisees over failure to disclose costs of running franchises;
  • against Bayer for an allegedly defective contraceptive device;
  • against Bet365 for failure to disclose onerous conditions of bets offered;
  • by patients of the Cosmetic Institute who allege negligence in the performance of breast surgery;
  • against poker machine manufacturers for misleading and deceptive poker machine designs;
  • against various banks for alleged rigging of the bank bill swap rate;
  • against Evocca College for substandard teaching and unfair marketing practices;
  • against Jetstar and Virgin for “drip pricing” tactics;
  • and against GSK regarding the side effects of anti-depressant Paroxetine.

Natural Disasters/Events: a class action in relation to the 2013 Lithgow bushfires.

  • Class actions commenced after the review period include:
    • an action by India-based investors against the Australian-based assets of the Pearls Group,
    • an action by the families of passengers on Malaysian Airlines flight MH17, and
    • an action against PPTEP by Indonesian seaweed farmers in relation to the 2009 Montara oil spill.

Regime change

On 5 August 2016, the Queensland Attorney-General Yvonne D’Ath announced that legislation would be introduced within the month to establish a class action regime in the Supreme Court. Legislation that broadly mirrored the Federal, NSW and Victorian regimes was introduced under the previous government but lapsed at the 2015 election, and it is expected that a similar form will be used. Ms D’Ath stated:

At present, Queenslanders who wish to take class action lawsuits have to operate through other jurisdictions to do so. For people who are often involved in emotionally and financially difficult circumstances, this can limit their access to justice through unnecessary complexity and inconvenience. There can also be an additional cost burden for claimants who currently need to pursue class action matters through other jurisdictions. For cases that are particularly pertinent to Queensland, it will also allow the knowledge and expertise of our judges and lawyers to be better utilised.

Only one class action was filed in Queensland in 2015/2016,[1] although a number of recent class actions with an obvious Queensland nexus have been filed in the New South Wales Supreme Court, such as the Queensland floods class action and Bank of Queensland in relation to conduct by Brisbane-based Sherwin Financial as well as two actions filed in the past 12 months against Cash Converters regarding conduct affecting Queenslanders.

In Western Australia, the Law Reform Commission’s report on representative proceedings was released in October 2015, recommending that the existing, limited procedure under the Supreme Court Rules be supplemented with legislation to accommodate greater access to representative proceedings.[2] While the recommendation has received in principle support from the present government and opposition alike, it is not expected that any reforms will be introduced before the next State election in March 2018. In the meantime, a number of bushfire-related proceedings are having to rely on the Supreme Court procedure.

[1] Action by investors against Sandhurst Trustees (as trustee for notes issued by Wickham Securities) in the Queensland Registry of the Federal Court.

[2] See Michael Lundberg and Robert Slattery “Stay classy WA: the proposed changes to representative proceedings in Western Australia” (18 December 2015) at http://www.kwm.com/en/au/knowledge/insights/western-australia-proposed-changes-representative-proceedings-20151218.

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