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‘Return to sanity’ on regulating litigation funding welcome, says Maurice Blackburn

“Hundreds of thousands of Australians” have benefited from class actions, the national plaintiff firm says, which will continue given recent and looming regulatory changes. 

user iconLauren Croft 17 October 2022 Big Law
‘Return to sanity’ on regulating litigation funding welcome, says Maurice Blackburn
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On Friday (14 October), Maurice Blackburn held its Corporate Conduct + Class Actions Symposium 2022, during which their national head of class actions reflected on recent years.

Andrew Watson, national head of class actions at Maurice Blackburn, began the event with some opening remarks on the state of the class action space in Australia.

Since the last symposium, there have been two federal elections, a US presidential election, an Olympics, a war in Ukraine, and a pandemic — and a lot has happened within the Australian class actions sector within that time, Mr Watson noted.


“The High Court has decided against early-stage common fund orders, narrowly decided that the rule in competing class actions should not be first come, first served, and fortunately, just this week, rejected a challenge to the capacity of foreign group members to be part of an Australian class action in the BHP shareholder case.

“The NSW Court of Appeal decided against class closure, in fact, said you couldn’t even suggest in a notice that you might seek class closure on settlement approval, and then a recent Full Court of the Federal Court decided (sort of) that class closure was OK or more precisely said you could say in a notice that you might seek class closure on a settlement approval,” he said.

“A single instance, [a] judge in our case for shareholders against Crown made orders so that we could speak with a whistleblower, only for those orders to be overturned by a Full Court of the Federal Court — so the situation remains that whilst a whistleblower can talk to ASIC, a member of parliament and a journalist, they are effectively precluded from talking to a lawyer representing the victims of corporate misconduct.”

March this year marked 30 years of class actions in Australia — and since the election of the Albanese government earlier this year, new consultation over a new regulatory approach to litigation funding in class actions has begun.

“Since the election of the Albanese government, we’ve had a Full Court of the Federal Court tell us what was frankly always evident — that trying to fit litigation funding and class actions into the framework of managed investment scheme regulation was [like] trying to fit a square peg into a round hole. Something which the new federal government has sensibly taken up in consultation over a new regulatory approach to litigation funding in class actions, which is really a restoration of the old approach, which is that the courts should supervise,” Mr Watson continued.

“However, it’s not all good news post-May because in its recent decision in the Ruby Princess case, a Full Court of the Federal Court in what can only be described as a terrible decision has held that a corporation can, in effect, use standard form contracts to avoid being sued in a class action — a decision [that] hopefully will be overturned by the High Court but in respect of which the Attorney-General should feel free to take up the Chief Justice’s invitation in that judgment and make clear by legislation that you cannot contract out of the class actions regime.”

However, despite this “maelstrom” of activity, Australia’s class action system has continued to meet three critical tests, according to Mr Watson.

He noted that it has “delivered real and substantive compensation to victims of mass harm”, “contributed to judicial economy by efficiently resolving the claims of hundreds of thousands of Australians” and, finally, “provided a form of private regulation for corporate misbehaviour, which complements the role of public regulators”.

“Over the course of the last 30 years, our class actions regime has played a critical role in holding corporations and governments to account for their misconduct and promoting integrity by enforcing better standards of corporate governance,” he added.

“In the four years since the last symposium, Maurice Blackburn has settled 18 class actions for a total of approximately $1.4 billion, bringing our total class action settlements to over $4.1 billion. Those recoveries have been for victims of faulty products, consumers ripped off by payday lenders, consumers ripped off by banks and insurance companies, young people who were subjected to abuse in detention, those devastated by disasters and shareholders in listed companies — in short, everyday Australians — and that’s just our firm’s results — the undeniable truth is that Australia’s class action system has delivered real compensation, to real victims of real wrongs.”

In terms of what comes next, Mr Watson emphasised that the class action regime in Australia will “continue to provide compensation to victims of mass wrongs and hold corporate wrongdoers to account”.

“Now that we have a government that is committed to evidence-based policy in this area, we will get a comprehensive response to the ALRC report and a proper review of the continuous disclosure laws. The government was already consulting on improving privacy protections, something which has been given added impetus by the extraordinary circumstances of the Optus breach — if ever there was a graphic illustration of the need for a mass remedy for mass data breaches, it is that breach,” he said.

Moreover, Mr Watson said, there has been a “return to sanity on regulation of litigation funding”. 

“One way or another, the law needs to be clear that corporations can’t use standard form contracts to avoid being held to account in class actions. At some stage, I’d like to be able to talk to a whistleblower without being accused of inducing breach of contract.”