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From little things, big things grow – Herbert Smith Freehills launches 25 years of class actions in Australia

10 March 2017 | Australia

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Herbert Smith Freehills has launched 25 Years of Class Actions in Australia, a definitive review of the development of the law and practice of class actions between 1992 and 2017.

Edited by Herbert Smith Freehills partner Damian Grave and executive counsel Helen Mould, the book has been published in conjunction with the Ross Parsons Centre of Commercial, Corporate and Taxation Law at the University of Sydney. It features contributions from current and former members of the judiciary, academics, the business community and a number of Herbert Smith Freehills lawyers based in Australia and London.

“In March 1992 Australia’s class actions regime was introduced, and in the 25 years since we have seen class actions become a significant feature of Australia’s litigation landscape. The law and practice associated with class actions has developed considerably over this time, with many people contributing to this. 25 Years of Class Actions in Australia brings together a range of perspectives to reflect on, and provide analysis of, these developments, as well as look at what’s ahead,” Mr Grave said.

The growth in class actions is clear from empirical analysis which confirms that around 500 class actions have been commenced in Australia over the 25 year period.

“The number of actions filed has grown steadily since the class actions regime was introduced. The regime has developed in parallel with the growth in litigation funding. Approximately half of all Federal Court class actions filed in the last five years have been funded by a third party litigation funder, including many funders from overseas,” Mr Grave said.

Ms Mould said: “In the opening chapter, the Honourable Murray Wilcox AO QC shares his recollections as an author of the Australian Law Reform Commission report which was the genesis of the regime and as a judge of the Federal Court in several early cases. In the final chapter, ‘Class Actions: the Good, the Bad and the Ugly’, former Federal Court judge the Honourable Ray Finkelstein AO QC provides some reflections on the meaning of ‘access to justice’ and potential solutions to existing challenges which the regime gives rise to.”

Other contributors examine a range of topics, such as whether the class actions regime has met its objectives, the evolution of litigation funding, the approach to settlement approvals and particular controversies in the area of securities class actions, including the requirements for causation and measuring and proving loss. Between 2003 and 2016, over half of all class actions commenced in the Federal Court were claims by investors or shareholders.

“There is likely to be a continued growth in shareholder class actions," Mr Grave said. "That is due to a number of reasons: the entry of promoters of those actions, whether they be plaintiff law firms or funders, including overseas funders, and the continued sophistication in the litigation funding industry.”

The rise in competing claims by different groups of investors is also an issue. "There has been an increase in recent years in the number of competing class actions, leading to complexity and uncertainty for defendants," Mr Grave said.

The practicalities of class action litigation are examined in depth, including through a chapter by the Honourable Justice Jack Forrest of the Victorian Supreme Court on the management of the pre-trial, trial and settlement stages of Australia’s largest tort class action to date, the Kilmore East Kinglake bushfire trial and settlement.

Regimes in other countries are also explored, including by Herbert Smith Freehills London based partners Harry Edwards and Simon Clarke who look at securities class actions in England and Wales and explain some of the reasons for recent growth in that area.

25 Years of Class Actions in Australia was officially launched last night at a function in Melbourne. Copies of the book can be purchased from the Ross Parsons Centre.

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