A CLASS ABOVE - THE EMERGENCE OF AUSTRALIA AS A PRIME CLASS ACTION JURISDICTION

Class actions, or “representative proceedings” (as they are commonly called in Australia), can be commenced in the Federal Court by a representative applicant in circumstances where seven or more people have claims which arise out of the same or related circumstances and give rise to a substantial common issue of fact or law.  The State Supreme Courts of Victoria and New South Wales have class action regimes which largely mirror the Australian Federal Court class action regime, whilst the other Australian States and Territories simply have “same interest” procedures (which are arguably narrower).

Whilst it is possible to bring a class action in either the Federal Court or a State Supreme Court, current available court filing statistics indicate that the Federal Court is overwhelmingly the forum of choice in Australia for class actions (with over 90% of all class actions filed in Australia from 1992 – 2009 being filed in the Federal Court).

A LIBERAL CLASS ACTION REGIME

The Australian Federal Court class actions regime is one of the most liberal and plaintiff-friendly in the world.  In comparison with other jurisdictions, the threshold requirements outlined above for the commencement of a class action in the Federal Court (i.e. there needs to be seven or more people who have claims which arise out of the same or related circumstances and give rise to a substantial common issue of fact or law) are relatively simplistic.  Further, unlike the USA, there is no preliminary class certification procedure or requirement in the Federal Court.  Indeed, a class can be defined by a set of criteria, meaning it is not necessary to specify all members of the class, or the total value of the claims.  The representative applicant does not need the consent of the relevant class members, or even know who they are.  The potential class members who fall within this class definition are recognised as members of the class unless they elect to opt-out of the proceeding, or unless there is a specific arrangement that obliges members to opt-in to the proceeding.  This opt-out arrangement is another point of difference from other class action jurisdictions, such as in Europe, which oblige class members to opt-in to a proceeding.  There is also no requirement in Australia that the common issues between class members prevail over the individual issues.  Instead, there is simply the requirement that there is at least one substantial common issue of law or fact.  Furthermore, the Australian regime allows sub-group or even individual issues to be determined as part of a larger class action, proving to be particularly advantageous to plaintiffs in drug and medical device litigation, where the inherently idiosyncratic nature of injuries are no obstacle to a suit proceeding as a class action.

TYPES OF CLASS ACTIONS

One significant feature of the Australian regime is the extraordinary diversity of class actions, spanning personal injury, migration, human rights and investor cases, and dealing with products as diverse as peanut butter and complex debt obligation products.  A 2009 study found that over the past 17 years, a total of 22.4% of all class actions were product liability related, and 9.9% of actions were brought by investors / shareholders.  However, the GFC and rise of third party litigation funders has seen a recent shift towards increasing investor class actions, presenting a new paradigm in the Australian class action landscape

i. Investor class actions

A number of recent seminal judgments in this area have cemented the place of investor class actions in Australia, with growing international significance and ramifications.  The basis of most investor class actions is either optimistic forecasts of corporate performance or representations of future market conditions.  Inaccurate forecasts, or representations as to future events, run the risk of falling foul of the broad statutory prohibition in Australia against corporate conduct that is either misleading or deceptive, or is “likely” to mislead or deceive.  This broad statutory prohibition is a point of difference to most other common law countries, as it is not necessary for an Australian plaintiff to prove that the impugned conduct was fraudulent, intentional or negligent.

Standard and Poor’s/Lehman Brothers - International precedent?

In March this year, the Federal Court awarded over AU$20 million in damages and interest to a class action comprising councils, charities, not-for-profit and church groups against rating agency Standard & Poor’s (S&P) and the arranging bank.  S&P were found to have breached the statutory prohibition in Australia against misleading or deceptive corporate conduct by assigning a AAA rating to a number of complex financial products known as constant proportion debt obligations (CPDOs).  This was the first successful case in the world against a ratings agency for misleading and deceptive conduct, with S&P’s AAA rating described as “hopelessly deficient”.  In a similar case, a collection of councils, charities and churches brought a class action against Lehman Brothers Australia Ltd (in Liq) in the Federal Court seeking to recover their losses from the purchase of collateralised debt obligations (CDOs).  Lehman Brothers was found to have engaged in statutory misleading and deceptive conduct in its promotion of CDOs and was also found to have breached its duties as a financial adviser to each of the applicants.

Both the S&P and Lehman Brothers rulings are being appealed, with fears that the ruling could also apply to other investment banks and the global CDO market, worth about AU$2.1 trillion, which collapsed during the credit crisis.  Already, similar lawsuits have been filed in the USA and Europe.  

A characteristic investor class action: Arup Pty Ltd

A recent example of a typical Australian investor class action was the announcement of a AU$450 million class action on behalf of investors in Brisconnections against private engineering consultancy Arup Pty Ltd, over "wildly optimistic" traffic forecasts for the Brisbane airport link toll road.  The suit accuses the Australian subsidiary of consulting giant Arup Group of breaching corporate legislation by not including all materially relevant information in the product disclosure statement on its traffic forecasts accompanying the IPO.  In addition, the investors allege Arup engaged in statutory misleading conduct by providing traffic forecasts without a reasonable basis.  After six months of operation, the traffic numbers for the toll road were only 26 per cent of the forecast contained in the product disclosure statement, despite the introduction of toll free periods and discounted tolls.

ii. Product Liability class actions

Product liability remains a potent source for class action proceedings in Australia.  The introduction of the newly formulated Federal consumer protection law, the Australian Consumer Law (ACL), in 2011 fortified the existing protections given to consumers, giving rise to a broader array of possible avenues for class action litigation.  In particular, the introduction of mandatory reporting, a broader test for bans and recalls, and prescribed requirements for warranties against defects, impose more onerous obligations on suppliers and manufacturers.  There are a number of product liability class actions scheduled for hearing in 2013, with the largest three involving Bonsoy soy milk, DePuy Hip Implants and Aspen Pharmacare.

iii. Regulatory and government

Class actions against regulatory authorities and governments remain a relatively small portion of the Australian class action landscape, but attract considerable publicity due to the inherently large classes and high level of potential damages.  

Natural disaster class actions

Five bushfire class actions were commenced in 2009 against power companies, the Victorian government and a number of related agencies on behalf of thousands of people who suffered personal injury, property damage and economic loss because of bushfires.  The plaintiffs alleged the government department failed to reduce fuel loads in the bush, and that the related emergency services failed to issue appropriate warnings.  Three of these proceedings have been settled in favour of class members, and the other two are still on foot.  A class action has also been filed against the Queensland government department that is responsible for the Wivenhoe Dam in relation to major floods in 2011 that resulted in a number of deaths, property damage and economic loss.

The major “litigation funder” in Australia, IMF (Australia), has warned government agencies and power companies to be ever more diligent in exercising their duties, especially with the advent of more regular extreme climate events in Australia.

Pan Pharmaceuticals

The Pan Pharmaceuticals class action was one of the largest claims ever brought against the Commonwealth (Federal) government.  The class comprised companies who were supplied by, or provided services to, Pan Pharmaceuticals (a company that went into liquidation after the Therapeutic Goods Administration (TGA) ordered a recall of its products and suspended its licence to manufacture therapeutic goods).  The class members sought to recover from the Commonwealth economic loss, and aggravated damages, stemming from the collapse of Pan.  The Commonwealth was alleged to have been negligent in the manner in which the TGA performed its regulatory functions, a number of TGA officers were alleged to have engaged in misfeasance in public office and the Commonwealth was alleged to have been vicariously liable for the officers’ conduct.  The case was ultimately settled without any admissions of liability, but nonetheless indicates the risks of government being held responsible for the actions of its regulators via the class action regime.

TRENDS IN CLASS ACTIONS

Increase in settlements

A clear recent trend has been the increasing number of settlements in class action proceedings and, as such, a willingness of defendants to pay a premium for closure in otherwise long-running litigation.  Indeed, according to Federal Court records, in 2012 the value of investor class action settlements alone was approximately AU$480 million.

Contingency fee arrangements and litigation funders

Although common in countries such as the US, Australia continues to prohibit contingency fee arrangements where the lawyer’s fee is calculated by reference to a percentage of the client’s verdict.  However, the rules surrounding contingency type fee arrangements have been somewhat relaxed and Australia now tolerates a wide variety of alternative fee arrangements.  Lawyers and clients can now enter into fee agreements where the normal fee, or a fee calculated by reference to some pre-determined criteria such as the amount of time expended by a lawyer, can be increased by an agreed percentage within legislated limits.  Furthermore, as the rules relating to contingency fee arrangements only apply to lawyers, the Courts have accepted that non-lawyers can enter into contingency-style arrangements with applicants to effectively arrange all aspects of the proceedings, and to retain a lawyer who conducts the litigation on behalf of the promoter in line with the legal profession rules.  This has given rise to a number of companies in Australia who act as “litigation funders” in return for a contingency fee and has allowed for a substantial growth in funded class actions.

Increasing risks to financial services organisations

The recent seminal judgments against Lehman Brothers and S&P evince an ever-growing risk to financial services organisations in Australia, and not only from actions arising from the GFC.  For example, a series of coordinated class actions, comprising approximately 170,000 bank customers and worth around AU$200 million, allege that the exception or overdraft fees charged by Australia’s largest banks constituted unlawful penalties.  In September 2012, the High Court of Australia effectively reversed the law of penalties, stating that the doctrine of penalties may apply outside the context of a breach of contract, meaning that bank fees may potentially be penalties.  The Federal Court of Australia is expected to hear these bank fee class actions in December 2013.

Click 'Download' to view the original article, which appeared in Commercial Dispute Resolution Magazine.