Recent Class Action Judgements & Related Developments
Application for common fund order refused on grounds of:
(a) Being premature given the unresolved status of debts claimed in the external administration of a defendant (being the same claims sought in the class action), and the potential for joinder of additional defendants to the action; and
(b) The terms proposed would allow the funder to take a success fee for debts recovered the administration, not just the class action it was funding.
- Court and decision maker: Master Sanderson in the Supreme Court of Western Australia
- Citation and link: Minister For Environment -v- Eclipse Resources Pty Ltd (Administrator Appointed)  WASC 318
The case is a class action to recover Aborigines or Torres Strait Islanders’ wages misappropriated between 1939 and 1972. Till this judgment the case was limited to persons who had signed a litigation funding agreement (known as a closed class).
Nearly two years after a settlement scheme was devised, the plaintiff’s lawyer (as scheme administrator) requested four new types of costs. The Court granted two of the costs (tax and accounting fees), and denied two (expert costs and more generous administration costs).
Court considered: Plaintiff’s application to file revised expert report and make consequent pleading changes in a 5th amended statement of claim. Defendant vigorously opposed. Court allowed new report despite prejudice and delay and allowed some of the proposed amendments.
Eight weeks before the 28 August 2017 trial of a shareholder class action against Treasury Wine Estates (TWE), the global wine company asked the Court to let witness Ms Le Drew give evidence via video link from America, where she lives. TWE argued that Ms Le Drew was really busy with her work in a new job plus her son’s first visit to her in about 9 months was to take place during the Trial.
On 9 Jan 2017 a second class action was brought against Queensland Water Authorities for the January 2011 Brisbane floods. The second claim (the Hassid Case) was brought by Philip Hassid and Koula Hassid, as a class action, apparently because the first class action (the Rodriguez Case) abandoned pure economic loss claims in February 2016.
The exclusion of litigation funding arrangements and proof of debt arrangements from the National Credit Code has been extended for a further two years, until 12 July 2019.
The judgment granted the plaintiff’s request for leave to file an amended application and statement of claim.
The case had been expected to recover $30m but ended with a lump sum settlement sum of $6.75m.
In Walsh v Worley Parsons  VSC 292, delivered 26 May 2017. Cameron J stayed a shareholder class action as an abuse of process. Amongst other things the Court made observations about the role of a litigation funder.
A decade and two months since a High Court of Australia decision gave a clear greenlight to litigation funding down under, our Federal Court has now increased litigation funders certainty, at an early stage of proceedings, that they will be able to take their success fee in a class action from all group members, despite not having a funding agreement with each of those group members.
CGU Insurance Limited v Blakeley  HCA 2
The High Court of Australia upheld orders granting claimant liquidators the right to join the defendants’ insurer to the proceeding, to pursue the claim against the defendants’ insurer (who had rejected the defendants’ insurance claim). In dismissing the insurer’s High Court appeal, the High Court reviewed sections 562, 588G and 588M of the Corporations Act (Cth), and considered state and federal jurisdictions over those provisions by virtue of section 79 of the Judiciary Act (Cth).
Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited  NSWSC 17
Faced with two class actions with very similar claimants and subject matter, and a defendant wanting one case stayed, the Court determined that both cases could proceed and be heard together.
Camping Warehouse Australia Pty Ltd (Formerly Mountain Buggy Australia Pty Ltd) v Downer EDI Ltd  VSC 29
During the trial of a class action a plaintiff was ordered to provide security for costs, at pain of the proceeding being stayed. The case settled not long after. In another case, a delay in an application for security for costs did not prevent it being ordered, however the Court adjusted the period of costs secured.
1165 Stud Road v Power & Ors (No 2)  VSC 735
The Supreme Court of Victoria set out a detailed explanation of where a non-party is exposed to liability for costs. The Court demonstrated a real willingness to make that type of order against non-party stakeholders whose role justifies liability for costs an order.