2024 trends in an evolving class actions space
Following a busy 2023 and the class action space in Australia being called “one of the most active and profitable jurisdictions in the world”, these lawyers weigh in on what 2024 will look like for the practice area.
The class actions landscape is continually evolving in Australia – and 2024 will be no exception, as litigation grows with expanding practice areas such as cyber and environmental, social and governance (ESG). In conversation with Lawyers Weekly, six class action lawyers shared their predictions for the next 12 months and revealed the key trends they’re anticipating.
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2024, DLA Piper partner Kieran O’Brien said, will see a number of key 2023 trends continue.
“The class action trends that have been emerging in recent years will continue to set the pace in 2024. Data breach, cyber security and privacy-related events, consumer class actions (across both products and services), shareholder actions and wage underpayment class actions will continue to be pursued,” he told Lawyers Weekly.
“The continuing focus on ESG-related issues will also see attention turn to the pursuit of environmental and climate-related mass torts. With litigation funders having a success in late 2023 with the Federal Court again approving the making of common fund orders, the class action regimes around Australia will face renewed activity by those keen to invest in such litigation, notably in Victoria with the Supreme Court of Victoria’s access to contingency fees.”
In addition, class actions stemming from the group costs order regime of 2020 will also begin to be resolved throughout the year, added Maurice Blackburn national head of class actions Rebecca Gilsenan.
“In 2024, we can expect to see cases brought under the group costs order regime introduced in Victoria in July 2020 begin to resolve. In that context, we will see how the Supreme Court of Victoria will deal with these cases at the back end. In particular, we will see whether adjustments are made to the percentage GCO ordered in the early phases, in light of the size and circumstances of resolutions, and what weight is placed on costs on the conventional time billing basis as a comparator for the GCO percentage sought,” she explained.
“We can also expect to see a stabilisation of the procedure for the conduct of carriage fights and, in particular, the ‘conditions of tender’ as described by Osborne J in the carriage decision in the Hino class action in the Supreme Court of Victoria. We may see a tender practice emerge in the Federal Court.”
Shine Lawyers’ class action practice leaders Kione Johnson and Jonathan Wertheim said they’ve seen a number of judgments THAT are likely to continue developing throughout this year.
“We’re likely to see further developments in Australian jurisprudence in securities class actions, which is presently limited. We had two post-trial judgments just before Christmas (Worley and Insignia), and there are at least two others where judgment is reserved and likely to be delivered in the first half of this year (Brambles and CBA). So, the odds are we’ll also see one or more appeals arising from those cases, leading to more definitive principles being developed at the appellate level. The trend of securities cases proceeding to trial is also likely to continue,” the pair said.
“First Nations cases, consumer and product liability claims are likely to remain a key focus. Financial services claims will continue. We have likely seen the last of the runoff from the Hayne royal commission, which opens opportunities up in new areas to test alleged price gouging and unconscionable conduct. Data and technology is an emerging area, especially given the increased scrutiny around cyber breaches and the increasing sophistication of artificial intelligence. Recent changes to the unfair contract terms laws, and the recent success in the High Court in the Ruby Princess judgment, will likely increase scrutiny around standard form contracts.
“We can also expect some clarity as to the availability of ‘solicitor CFOs’, with the full court expected to hear the question of power in May in the Blue Sky class action. Subject to the outcome of that question, we can expect to see an increasing trend of cases funded via a ‘solicitor CFO’.”
Despite clarity in some areas, Keypoint Law consulting principal Philip Argy warned of a “serious flaw” in the Federal Court representative action regime.
“The full court of the Federal Court has dismissed an application for leave to appeal against an order that the applicants, representing approximately 100 present and former franchisees of the Hog’s Breath Café system, pay almost $2 million into court (in tranches) failing which the proceedings would be stayed and, ultimately, dismissed. There seems to be a significant flaw in the Federal Court’s representative action regime,” he opined.
“The evidence that must be adduced in support of any contention that an order for security will stultify the proceedings (the onus being on the party resisting security) now requires a shadow-boxing exercise requiring evidence that every conceivable source of funding has been fruitlessly pursued! That includes evidence from each person who could, would or might be within the class, evidence explaining why no litigation funder would take on the matter, and evidence that no other funding options are available, such as borrowings or fund-raising campaigns.”
Finally, Clayton Utz partner Ross McInnes said that in addition to the regulation of litigation funders and group costs orders, the class actions landscape will continue to change and evolve.
“The class actions landscape has evolved in recent years. Most of the changes have stemmed from developments in class action law, largely driven by new issues arising in a procedural sense. For example, the courts and the legislature in certain jurisdictions have grappled with the regulation of litigation funders, including group cost orders. The law has also matured in its approach to resolving class actions, with the courts considering class closure and the appropriate boundaries for settlement approvals.
“New categories of claims have emerged and will continue to emerge this year, using the class action regimes. This includes claims in the ESG space, employment underpayment claims, and data privacy class actions. We expect to see growth in employment underpayment class actions, following a series of class actions in this space, including against large companies such as Coles, Woolworths, and Merivale. In response to rising cyber concerns, data privacy claims will also continue to increase,” he explained.
“It’s interesting to see the myriad of issues being pursued in ESG-related class actions. While some claims target conduct that results in environmental harm, others focus on the accuracy of statements that entities make about their green credentials, known as ‘greenwashing’ cases. Separately, some claims focus not on harm that has actually occurred but [on] the question of whether reasonable steps have been taken to mitigate climate risks or environmental damage. This rich tapestry of ESG-related class actions will likely find a voice in Australia in the coming years.”