Commentary and case law from the Commercial Bar Association's finest.
The decision of the Full Court of the Federal Court, and the separate decision of Lee J, in the Ethicon Sàrl class action, provide a useful diptych of modern-day class action jurisprudence relating to amendments to group definitions.
The Federal Court dismissed an application by the administrator of a class action settlement fund appealing the decision of the Commissioner of Taxation disallowing the deduction of costs and expenses incurred in the course of administering the fund.
On 24 January 2019, the Australian Law Reform Commission issued a report entitled Integrity, Fairness and Efficiency – an Inquiry into Class Actions Proceedings and Third-Party Litigation Funders. The ALRC report sets out a comprehensive analysis of the current Australian class actions framework and makes 24 recommendations in relation to the regulation of class action proceedings and funding arrangements. Key aspects of the recommendations are set out below.
All partners can potentially be liable for wrongs committed by any one partner, so can a partnership claim the privileges against self-incrimination and exposure to civil penalties? In some “extraordinary and troubling” circumstances, the Federal Court recently determined whether Deloitte Touche Tohmatsu could claim the privileges.
Competing proceedings are now a feature of the class action landscape. GetSwift was the first opportunity for the Full Court of the Federal Court to provide guidance as to the management of competing class actions.
In Botsman v Bolitho & Ors [2018] VSCA 278, the Court of Appeal agreed that a settlement sum of $64 million was fair and reasonable but overturned the trial judge’s decision to approve distributions in respect of legal costs and pursuant to a common fund order.
A Federal Court class action, brought on behalf of Indonesian seaweed-farmers, nudges the outer bounds of the Australian class action regime – both geographically and temporally.
The Victorian Court of Appeal has ruled that a settlement deed containing releases and acknowledgements beyond the scope of common issues in the Great Southern class action is binding upon group members, despite the High Court’s holding that representative plaintiffs and group members are not privies in relation to uncommon issues.
Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51
The interplay between the Anshun principle and class actions has been examined in detail by the High Court, which determined that class members are not precluded from raising individual issues and un-pleaded common issues by reason of their being a class member.
Two recent single judge decisions in the Timbercorp and Willmott Forests litigation, have brought into focus the role of group members in class actions and thrown real doubt over the correctness of earlier decisions in the Great Southern litigation concerning the applicability and scope of Anshun estoppel in that context
Consideration of the arguments in relation to the extent to which parties in a group proceeding can, in settling the proceeding, bind group members to their compromise and preclude them from agitating rights against the defendants not pleaded by the applicants or addressed by the common questions.
The Court has rejected an interlocutory application by the respondent in a shareholder class action for the appointment of “institutional” investors as sample group members on the basis that such a move was not necessary to “ensure justice is done” in the proceeding.
Article by Cam Truong. A short excursion into the aftermath of the Timbercorp Group collapse that included an unsuccessful grower class action and appeal, and currently hundreds of proceedings being pursued against and resisted by, individual growers. Looming test cases.
Circumstances in which lawyers who are connected with litigation funders and stand to benefit from a contingency fee arrangement (either directly or indirectly) – will be restrained from continuing to act in order to protect the integrity of the judicial process and the due administration of justice.