Rebecca Gilsenan

As we close out another extraordinary year of developments, revelations and results in Australian class actions, this latest edition of Class Actions Landscape Australia addresses some of the pressing issues that trended in 2024.

We saw research published by Monash University’s Professor Vince Morabito and the McKell Research Institute, each examining the life of Victoria’s Group Costs Order (contingency fees) regime. 

Both reports independently concluded that the GCO regime in Victoria clearly delivers better outcomes for class action litigants. The Morabito report found GCOs deliver “a vastly superior outcome for class members”, while the McKell report suggested that “Victoria’s GCO model should, in the interests of access to justice, be replicated across all of the Commonwealth’s class action regimes”.

In a further and first-hand vote of confidence in the GCO regime, Victorian Supreme Court Judge Jim Delany declared to this year’s Corporate Conduct and Class Action Symposium that he was a convert to the benefits of contingency fees, having presided over several cases where his preexisting fears were allayed and where he saw the benefits of GCOs for class members and the justice system. 

The power and propensity of courts in different jurisdictions to make pre-trial orders closing the class for mediation was contentious this year, as several of the articles in this edition demonstrate. The issue now sits with the High Court of Australia for final determination – one of several significant matters on appeal during November.  
 
Two recent decisions, one in the Worley shareholder class action and the other in the CBA shareholder class action, have created some significant challenges for plaintiffs in planning and presenting cases brought on behalf of shareholders. Two main consequences follow from those cases. 

First, they have established a narrow test for listed companies’ disclosure obligations, and placed a requirement on plaintiffs to anticipate the contextual information that companies might disclose along with any announcement of wrongdoing, making it hard for plaintiffs to establish liability. 

Secondly, as a prerequisite for proving loss, they impose a strict requirement on plaintiffs to prove how a market would hypothetically have reacted if the company had complied with its disclosure obligations. That is often difficult to do, given the uncertainties created by the company’s own failure to disclose and the time periods involved. It is important to note, however, that both are decisions of single judges, and both are presently being appealed. The CBA class action appeal was heard in the week commencing November 18 and the Worley appeal is due to be heard in March 2025.

Although there is already some Full Federal Court authority suggesting disagreement with the initial approaches in those cases, both of those appeals will be carefully watched by plaintiffs and defendants alike.  

The corporate interests that lobbied the former Liberal Government to give big businesses a Covid-reprieve on their continuous disclosure obligations will have welcomed the outcome of this year’s Lewis Report. That report – a review commissioned by the government into continuous disclosure changes after two years of operation – concluded that insufficient time has passed to allow a proper assessment of the effects of the changes so the Covid settings ought to remain for private litigation, but be relaxed for matters pursued by the Australian Securities and Investment Commission. 

Despite these developments, and the fact that the number of new class actions being filed is lower than it has been for several years, an odd smattering of ill-informed, right wing “think tanks” and other apparently politically motivated organisations are starting to complain again about the harms of class actions. There must be an election on the horizon.  

In good news for class members and as an ongoing demonstration of the utility of the regime, 2024 has been bookended with noteworthy settlements. 

The early 2024 settlements in Uber and NSW Young Doctors class actions mentioned in the last edition of CALA were significant in terms of the remedial impact for those classes as well as in effecting broader change. Both of those settlements sit in the top echelon of historical recoveries in Australia.

In recent weeks we have seen settlements secured in the second shareholder action against Treasury Wine Estates, the case against Allianz for junk add-on insurance products, and the case against ANZ in relation to commissions paid to car dealers on consumer car loans. These settlements (still subject to court approval) represent a strong end to 2024 for clients of Maurice Blackburn.  

Data privacy has led class action and legislative developments during 2024, and we expect to see it continue to feature prominently into 2025 and beyond. 

One thing is certain, 2025 will continue to present challenges across the board for those grappling with consumer, shareholder, and data privacy issues, among a raft of serious corporate conduct concerns that deserve the proper scrutiny of private enforcement.

Rebecca Gilsenan
National Head of Class Actions

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