Rebecca Gilsenan Introduction

With a line now well and truly drawn under an eventful 2023, it’s timely to review how the big shifts in class actions and corporate conduct last year may impact on the courts, legal practitioners, and group member participants over the course of 2024.

In this edition of Maurice Blackburn’s Class Actions Landscape Australia report, we can see evidence of how the management of class actions over 2023 might continue to shape the challenges we are likely to face in 2024.

Carriage fights continue to be a prominent feature of the landscape, with a more defined procedure beginning to emerge.  While the track record on experience and recovery are increasingly being recognised by the courts as relevant factors in determining who should be awarded carriage, such as in the Hino carriage dispute, the most significant factor remains funding arrangements and the likely return to group members.

So too is an ability to demonstrate to the court that the managing firm can proceed in a way likely to save the court time and resources whilst acting in the best interests of group members, which was a feature of the recent decision to award carriage of the EDI Downer shareholder class action to Maurice Blackburn.

Sitting in the wings still is the Federal Government’s response to the 2018 ALRC review into class actions, and any direction or answers that might provide to guide the courts and practitioners through the current maze.

A clear trend that is also emerging, is the increasing propensity of defendants to seek larger amounts of security for costs and refusing to accept that the balance sheet of substantial law firms and funders as adequate assurance of an ability to pay adverse costs. It will be interesting to see how the Courts approach the early decisions in these challenges, which have significant implications for access to justice, and if this trend is matched by increased requests from the plaintiff side to unveil true levels of company insurance early in a proceeding.

Late last year, and with a number of class action trials expected through 2024, we have also seen a rush towards soft class closures directed towards facilitating the resolution of matters prior to trial.  This serves as a sharp reminder to participants and their representatives of the importance of early registration in matters that are generally on foot for several years.

In addition to this year’s busy class actions trial schedule, already a couple of major settlements have been achieved. The NSW Junior Doctors underpayment class action settlement was quickly followed by the settlement in the class action against Uber on behalf of participants in the taxi and hire car, limousine, charter vehicle industries. Both settlements will be in the top 10 class actions settlements in Australian legal history.

Most recently, Monash University’s Professor Vince Morabito has released his latest report on the class actions regime, looking at Group Costs Orders and Funding Commissions, and unsurprisingly to those of us that have followed the evidence and advocated strongly for their inclusion as a funding option, Professor Morabito has found that the contingency fee regime in Victoria “provides a vastly superior outcome for class members.”

Finally, in some news closer to home for Maurice Blackburn, after helping the firm to secure its 10^th listed securities recovery in excess of $100 million on the AMP shareholder action, Andrew Watson has departed the firm to take up a role as a Justice of the Supreme Court of Victoria.

We know he’ll be an excellent addition to the Court, and I am extremely grateful for the opportunity to lead the brilliant team here at Maurice Blackburn as we continue to deliver on the work that both he, and Justice Murphy of the Federal Court before him, began many years ago.

Rebecca Gilsenan
National Head of Class Actions

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