The courts' recent focus on the commencement and management of class actions suggests both a continued trend towards increased class action activity and judicial acceptance of the increased activity.
Key developments included:
+ Queensland introduces class actions regime
In November 2016, Queensland passed an Act introducing a class actions regime for Queensland State Courts largely modelled on schemes in the Federal Court, Victoria and New South Wales. The Queensland class action regime commenced on 1 March 2017.
+ Western Australia moves toward a new class actions regime
In late 2015, the Law Reform Commission of Western Australia tabled the Final Report on Representative Proceedings in parliament recommending the introduction of class actions legislation based on the Federal regime. While in early 2016 it seemed likely that legislation would be developed as the Western Australian Government supported this in principle, we are still waiting to see whether WA will follow Queensland’s lead.
+ Federal Court of Australia increases management of class actions
Indicative of the Federal Court’s growing experience in dealing with class actions and the sophistication of the judicial approach to class actions in Australia, the Court issued a class actions specific practice note, as part of the National Court Framework (NCF) reforms, which introduced:
- obligations regarding the disclosure of costs and litigation funding agreements to class members, the Court and the other parties;
- requirements for costs and litigation finding agreements to include provisions for managing conflicts of interest between any of the applicant, class members, applicant’s lawyers and any litigation funder;
- an obligation on the applicants’ lawyers to provide class members (who are clients or potential clients) with a breakdown of the costs that they have incurred, including any “uplift” costs;
- the practice of the Court appointing a second “Case Management Judge” to appropriate proceedings, whose role is to conduct case management hearings between the parties and to drive the expeditious and efficient management of the proceedings, particularly with respect to interlocutory matters; and
- guidance on communications with class members.