The First 25 Years: Has the Class Action Regime Hit the Mark on Access to Justice?

Chapter three of book entitled, "25 years of Class Actions in Australia"
Edited by Damian Grave and Helen Mould

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3.1 Introduction

The central aims of the representative procedure regime in Part IVA of the Federal Court of Australia Act 1976 (Cth) (Part IVA) include enhancing access to justice and improving judicial economy by allowing a common, binding decision to be made in one proceeding instead of in multiple proceedings.^[1] Similar purposes underpinned the introduction of the Victorian, New South Wales (NSW) and Queensland class action regimes which broadly copied the Part IVA regime.^[2] Indeed, such purposes underpin class action regimes around the world.^[3]

The right of access to justice is a fundamental human right^[4] and an "expression of a social need which is imperative, urgent and more widespread than is generally acknowledged."^[5] There are, of course, two elements to it. "Access" to the justice system necessarily depends on the existence of legal mechanisms to enforce rights and the removal or reduction of barriers to the exercise of such rights including costs and complexities associated with accessing the system, economic capacity, education, geographic location, health, language and cultural issues. "Justice" is difficult to define but it denotes the fair administration of the law according to accepted principles. In broad terms access to justice means relatively equitable access to a fair and transparent legal process.^[6]

The importance of access to justice is highlighted in class proceedings often brought on behalf of many people with legal claims arising from alleged mass civil wrongs.^[7] The purpose of this chapter is to explore the extent to which the Part IVA regime and its State counterparts have enhanced access to justice from the perspective of persons with such claims.

We do so by canvassing the views expressed by the Australian Law Reform Commission (ALRC) and other law reform bodies, the position taken by federal and State legislatures, the views of lawyers acting for the respondents to class actions, views from the bench, through empirical data, and by reference to the diverse claims brought by a great number of similarly-situated claimants over the last 25 years.^[8] We usually only refer to the Part IVA regime but by this we also mean the similar regimes enacted in Victoria, NSW and Queensland.

We touch on the counter-balancing question as to whether, and if so to what extent, the operation of the Part IVA regime has given rise to difficulties sometimes associated with class actions in the United States of America (US), as envisaged by opponents of the regime at the time of its introduction. We also briefly deal with some present issues regarding access to justice under the regime.

We conclude that the access to justice provided under the Part IVA regime is not perfect, and financial and technical barriers mean that there are many cases that cannot be brought. However, the procedure provides real, practical and broad-based access to justice, which must be seen as a substantial improvement, and it has proved flexible and adaptable in meeting challenges to the utility of the regime as they appear. The regime seems appropriately balanced. We can see few signs of systemic problems in its operation and there are reasons to be confident that the courts will deal with any serious problems that may later emerge.

3.2 Access to Justice

3.2.1 The climate in which the Part IVA regime was introduced

In February 1977, the Commonwealth Attorney-General (in a Coalition government) asked the ALRC to report on the adequacy of the existing law relating to class actions in the Federal Court and other courts.^[9] It was not until December 1988 that the ALRC report was tabled in Parliament by the (Labor) government of the day, and legislation to reflect the recommendations was not introduced to Parliament until September 1991.

The delay, at least in part, reflected the concern of the report's drafters as to the likely controversy that the introduction of their proposed regimes would provoke.^[10] That concern was well founded. The Bill to introduce Part IVA received vigorous criticism from members of the opposition, some leading law firms, the Business Council of Australia and some legal commentators.^[11] Many of the concerns focused on fears that class actions would cause serious impediments to business through legal entrepreneurialism promoting class proceedings and US-style litigation, including by misusing proceedings and the media to generate financial and reputational pressures to force settlements (regardless of the merits of the substantive claims), which would "open the floodgates" of litigation. Similar claims have been reiterated at various points over the last 25 years.

We can see few signs of such problems in the operation of Part IVA. In our view the proponents of those concerns did not take sufficient account of the important differences between the proposed Part IVA regime and the Federal Rule 23 and State class action regimes in the US. They did not accord sufficient significance to the cost-shifting rules in Australia which provide a powerful disincentive to speculative litigation compared to the position in the US. Nor did they sufficiently recognise that Australian class actions are not heard by a jury, that awards of exemplary damages are exceedingly rare, that Australian lawyers are prohibited from charging damages-based contingency fees, and that the litigation culture in Australia is more conservative than in the US.

3.2.2 The views of the ALRC and other commissions

If there were such problems in the operation of the Part IVA regime we would expect that the ALRC and other law reform and ad hoc commissions that have given consideration to the regime would have pointed to such difficulties, but they have not. Detailed reports by law reform and other commissions over the last 16 years have expressly recognised the significant enhancement to access to justice provided through class proceedings, and they indicate that the concerns about the operation of the regime have not come to fruition.

In 2000, the ALRC finished a detailed review of the federal civil justice system which included consideration of the Part IVA regime. The ALRC concluded:

"Procedures for representative proceedings generally appear to be working well and in accordance with legislative intentions. The Federal Court does not view such cases as more problematic than other complex cases."^[12]

In 2008, the Victorian Law Reform Commission (VLRC) completed a review of the Victorian civil justice system which included consideration of the Victorian Part IVA-based regime.^[13] The VLRC did not suggest that the concerns expressed by opponents of such regimes had come to fruition. Instead, it made recommendations to reduce the financial and non-financial barriers to the use of the regime including through a public fund to fund class actions and by allowing cy pres remedies,^[14] which would increase class action litigation.

In September 2009, the Access to Justice Taskforce of the Commonwealth Attorney-General's Department handed down a report which made recommendations aimed at enhancing the ability of the Part IVA regime to secure the goals of access to justice and judicial economy, rather than to restrict its operation.^[15]

In 2014, the Australian Productivity Commission produced a detailed report into "Access to Justice Arrangements".^[16] The report expressly rejected the statements of some commentators that there was a significant increase in unmeritorious shareholder class actions and that a US-style litigation culture was developing. It said that, by reference to population, shareholder class actions were 2.4 times more likely in the US than in Australia, and by reference to the filings per listed company such actions were 15 times more likely in the US. It also noted that the economic impacts of such litigation in the US were far more pronounced because, up to 2013, the top ten settlements in the US ranged from approximately $1 to 7 billion, while the top ten settlements in Australia ranged from $35 to 200 million.

The report stated:

"the suggestion that Australia is becoming as litigious as the US is unwarranted. Such an outcome is also unlikely because the loser pays rule will continue to provide a strong deterrent to bringing unmeritorious claims and the comparatively limited use of punitive damages reduces the expected return from litigation."^[17]

While calling for greater regulation,^[18] the Productivity Commission report endorsed third party litigation funding.^[19] It concluded:

"In the Commission's view, in terms of achieving a balance of risks, public debate about the underlying law is clearly more appropriate than attempting to stifle a [litigation funding] mechanism that provides broader access to justice benefits. Further, given the small proportion of additional [funded] actions (less than one per cent) and the relatively low number of securities class actions in Australia, there is a risk that the spectre of actions, rather than evidence, is driving policy debate."^[20]

The Productivity Commission said that it had received no evidence that caused it to believe that litigation funding of class actions promoted unmeritorious claims or that litigation funders took advantage of claimants. Importantly, the Commission also saw no evidence to indicate that the courts and regulators would not be able to address such problems if they emerged.^[21]

In October 2015, following a detailed review into whether a class action regime should be introduced in Western Australia (which included reviewing different class action models around the world), a report by the Law Reform Commission of Western Australia (LRCWA) was tabled in State parliament.^[22] The Commission recommended the introduction of a class action regime closely modelled on Part IVA^[23] expressly doing so to improve access to justice.^[24] Importantly, the report stated that the prediction that Part IVA-type regimes would "open the flood gates" for litigation had not been proven in practice.^[25] It noted that the adoption of such regimes in Victoria and NSW had occurred "without significant dissent from stakeholders" and described them as a "tested solution".^[26]

3.2.3 The position of federal and state legislatures

Another way of assessing the extent to which the Part IVA regime is meeting the aim of enhancing access to justice (and the extent to which it is giving rise to the problems flagged at its inception) is to consider the position taken by federal and State legislatures since its introduction.

Although the federal regime has now been in place for 25 years, there have been only two amendments made. The first amendment, made only a few months after the regime came into operation, was critical and directly aimed at enhancing access to justice. The amendment inserted s 43(1A) into the Act which made it clear that class members in Part IVA proceedings enjoyed an immunity from adverse costs orders. Plainly, any requirement for class members to meet an adverse costs order in an action they did not bring or direct would have seriously reduced usage of the regime and therefore access to justice.

The second amendment, made in October 2001, was directly aimed at reducing access to justice. Following a number of class actions on behalf of asylum seekers, the Migration Act 1958 (Cth) was amended to prohibit the employment of the Part IVA regime in any proceeding relating to visas, deportations or removal of non-citizens.^[27]

The only other relevant change at a federal level was the introduction of the Corporations Amendment Regulation 2012 (No 6) (Cth). Before this regulation was gazetted (until an interim exemption was allowed by ASIC) many funded and unfunded class actions around Australia had been brought to a halt because the financial arrangements underpinning them might have constituted an unregistered managed investment scheme.^[28] This regulation exempted litigation funders from the requirement to hold an Australian Financial Services License. The interim exemption and this regulation enhanced access to justice by allowing the previously stalled cases to recommence.

In explaining this change the Explanatory Statement said:

"The Government supports class actions and litigation funders as they can provide access to justice for a large number of consumers who may otherwise have difficulties in resolving disputes."^[29]

This indicates that the Federal Government of the day considered the Part IVA regime to be operating appropriately.

In relation to State legislatures, it is noteworthy that the Victorian, NSW, Queensland and West Australian legislatures had between 8 to 24 years respectively to consider the operation of the Part IVA regime before deciding whether to introduce the same regime into State courts. In 2000, 2011 and 2017, Victoria,^[30] New South Wales^[31] and then Queensland^[32] enacted class action regimes that essentially copied the federal regime. In October 2015, the Western Australia Attorney-General announced that the government would adopt a class action regime based on the Part IVA regime.^[33]

It is often said that imitation is the sincerest form of flattery, and these decisions are a strong indication that the Part IVA regime is meeting its objectives. We infer that those legislatures did not consider the concerns expressed about the operation of the regime to be well founded.

3.2.4 The views of lawyers acting for class action defendants/respondents

Of course, defence lawyers hold varying views as to the operation of the Part IVA regime and some are strong critics. Having said this, our analysis of the websites of the main Australian class action defence law firms, and discussions which the first-named author (and to a lesser extent the second-named author) have had with senior, experienced class action defence lawyers at numerous class action seminars, conferences and symposiums over the last 20 years indicates that in broad terms most say that the Part IVA regime is working reasonably well.^[34] Mr Ken Adams and Mr Damian Grave, partners of Herbert Smith Freehills, Australia's largest defence class action practice and co-authors of the leading Australian text on class actions, wrote in a 2010 article:

"There is a lot of hysteria surrounding class actions in Australia and unfortunately for all parties involved it can lead to some serious misconceptions about what's happening in the local legal sector."^[35]

3.2.5 The views of Australia's main corporate regulators

The two main corporate regulators in Australia have expressed support for the role that class actions play in providing access to justice and assisting the regulation of corporate misconduct.

In December 2005, the Deputy Chairman of the Australian Securities and Investments Commission (ASIC), Mr Jeremy Cooper, said in a conference presentation:

"The increase in shareholder vigilance, coupled with the emergence of shareholder class actions, means that ASIC is better able to focus on its surveillance and enforcement functions while shareholders play a proactive role in protecting their interests. ASIC cautiously welcomes these developments."^[36]

In April 2012, the Chairman of ASIC, Mr Greg Medcraft, was quoted in the media as having said (in a conference presentation) that class action litigation was "very good at equalling up the tables", that class actions "democratise access to the law" and that "ASIC relied on the fact that in some matters, other parties would pursue compensation claims, freeing it from having to do so".^[37]

In July 2006, the Chairman of the Australian Competition and Consumer Commission (ACCC), Mr Graeme Samuel, welcomed the settlement of the vitamins cartel class action and said that the $41 million settlement was "a lesson to those that are involved in cartels".^[38] He referred to a three pronged approach which included private class actions brought by consumers and businesses. In April 2012, the then Chairman of the ACCC, Mr Rod Sims, made similar statements. He was quoted in the media as having said that private class actions are "from our point of view… terrific, because if companies are trying to enforce the Act that means less that we have to do.… If companies feel aggrieved, the more they take the action themselves rather than through us, the better."^[39]

The support of ASIC and the ACCC for the Part IVA regime has also manifested itself in another more tangible manner, as both regulators have brought class actions on behalf of aggrieved investors and consumers. Some of these class actions have had significant success, which is another route by which claimants have obtained access to justice through the regime. ^[40]

3.2.6 The views from the Bench

Initially there was trenchant opposition to class actions from some judicial quarters, perhaps best illustrated in the remarks of Callinan J in Mobil Oil Australia Pty Ltd v Victoria.^[41] While it would be wrong to suggest that there is unanimity of views amongst judges, we believe it is now safe to say that most judges do not view class actions with suspicion and see them as providing access to justice.

In 1999, the judges of the Supreme Court of Victoria gave a strong collective indication of judicial support for Part IVA-based regimes by agreeing to comprehensive Part IVA-based court rules to permit class actions in that court. This unusual step reflected judicial frustration with the failure of the Victorian Government to implement the 1997 recommendation by the Law Reform Advisory Council to introduce a statutory class action regime for the Supreme Court.^[42]

In 2005, the NSW Court of Appeal in Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd (Mason P with whom Hodgson and Sheller JJ agreed)^[43] expressed strong support for the access to justice provided through litigation funding of class proceedings. In 2006, in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd,^[44] the High Court endorsed Mason P's remarks.

In 2008, in Kirby v Centro Properties Ltd,^[45] Finkelstein J observed:

"While there are problems with securities class actions, it must, I think, be accepted that they serve a useful function. It is often said that these actions promote investor confidence in the integrity of the securities market. They enable investors to recover past losses caused by the wrongful conduct of companies and deter future securities laws violations. According to the United States Supreme Court, they provide "a most effective weapon in enforcement" of the securities laws and are a "necessary supplement to [Securities Exchange] Commission action.""^[46] (citations omitted)

In 2016, in Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd (Money Max),^[47] the Full Federal Court said:

"It is undeniable that funded class actions brought on a closed class basis have provided access to justice to a great number of claimants. The huge costs and risks of such cases mean that many of them would not have proceeded in the absence of litigation funding."^[48]

The Full Court endorsed the access to justice objectives of Part IVA and the "common fund" orders made were said to enhance such access.^[49] Also in 2016, Justice Jack Forrest of the Victorian Supreme Court expressed strong support for the access to justice provided under the regime.^[50]

More generally, after 25 years of operation there are now numerous decisions in class proceedings in case management decisions, strike out applications, applications to "de-class" proceedings under s 33N (and its State equivalents), settlement approval applications and applications alleging abuse of process, in which it was open to the Court to note serious problems in the regime or its operation. While judicial criticism of the conduct or approach of the parties (or more usually their lawyers) in class proceedings is not unusual,^[51] the authors are unaware of any judgment which points to any systemic problem with the operation of the regime. Further, the cases indicate that the courts are well capable of dealing with any problems that may emerge.

3.2.7 Empirical data on Part IVA proceedings

Empirical data collected by the second-named author (as discussed in Chapter 4) shows that in the first 24 years of the operation of Part IVA, proceedings filed with respect to product liability claims and mass torts constituted approximately 18.3% of all Part IVA proceedings filed over that period, followed by claims by investors (16.7%); shareholders (14.5%); employees (13.7%); consumer protection claims (8.9%); persons wishing to reside in Australia (8.1%); real estate owners (3.5%); franchisees, agents and/or distributors (3.5%); borrowers and/or guarantors (3.2%); miscellaneous claims (3.2%); lessees (1.6%); alleged victims of cartels (1.3%); alleged victims of racial discrimination in non-migration proceedings (1.3%); native title holders (0.8%) and taxpayers (0.8%).^[52]

The class members in such diverse claims, which arise out of hugely varied circumstances and quite different fields of human endeavour, are people, corporations and entities of various types or kinds. That they have all been able to seek and often obtain remedies through the Part IVA regime is a strong indication that it is providing broad-based access to justice.

This is confirmed by the fact that in the first 22 years of the regime just over one in every four federal class actions and just over one in every three non-investor federal class actions were brought on behalf of vulnerable persons.^[53] This runs against the criticism sometimes made that class actions have transmogrified into a vehicle only for shareholder and investor claims. It is true that the capital of litigation funders is primarily directed to the claims of shareholders and investors and that they make up the bulk of proceedings presently before the Federal Court,^[54] but the fact that claims on behalf of the vulnerable make up a significant proportion of proceedings indicates the breadth of the access to justice provided.

3.2.8 The claimants

A case-by-case review also shows the number and varied kinds of claimants and the diversity of the causes of action brought through Part IVA-based regimes.^[55] It is noteworthy that since 1992 at least $3.5 billion has been paid by respondents pursuant to judicially-approved class action settlements.^[56]

(a) "Disaster" class actions

In September 1998, four class actions were filed arising out of an explosion and fire at the Longford gas plant in Victoria, which led to the shutdown of the reticulated gas supply to Victoria for just over two weeks. The class members totalled approximately 1.2 million gas consumers and businesses and thousands of stood-down employees. Following a trial and the filing of appeals by both sides the action was settled for $32.5 million.^[57]

In 2000, two class actions were filed arising out of Australia's largest-ever outbreak of Legionnaires' disease that occurred at the Melbourne Aquarium. Class members totalled more than 170 people including the estates of 16 people who died. Both proceedings were settled in favour of the claimants.^[58]

A total of 16 class actions have been filed on behalf of the victims of various bushfires around Australia involving many thousands of claimants,^[59] including six class actions on behalf of the victims of the "Black Saturday" bushfires in Victoria in February 2009. The most significant of these actions was brought in relation to more than 10,000 claims of loss or damage as a result of the Kilmore East-Kinglake bushfire, which killed 119 people, caused serious injuries to approximately 1,900 people, and damaged or destroyed more than 1,770 homes and properties. The action settled after a 12 month trial for almost $500 million,^[60] which is Australia's largest-ever class action settlement. The other five Black Saturday class actions also settled,^[61] and overall the settlements totalled close to $1 billion.^[62]

In 2010, a class action was filed on behalf of Victorian abalone licence holders and divers in relation to the escape of a virus from an abalone farm, which decimated the wild abalone population off the Victorian coast. The action was unsuccessful at trial.^[63]

Three class actions have been filed on behalf of victims of floods.^[64] The largest is an action on behalf of thousands of claimants who suffered loss and damage from major Queensland floods in January 2011.^[65]

(b) Claims under the Migration Act

There have been 28 class actions brought on behalf of asylum seekers. They were filed before October 2001 when, as noted above, an amendment to the Migration Act 1958 (Cth) prohibited the employment of the Part IVA regime in any proceeding relating to visas, deportations or removal of non-citizens.^[66] Such proceedings had a low rate of success,^[67] but some success was achieved in other class actions where persons wishing to remain in Australia sought compensation from unscrupulous migration agents,^[68] and against the Commonwealth Government for illegal detention.^[69]

(c) Personal injury through food, water or product contamination

Nineteen class actions have been filed on behalf of individuals who were the victims of allegedly contaminated food or drinks. In all but four of these class actions, a settlement was obtained in favour of the victims in question.^[70] The products in question include peanut butter,^[71] fruit juices,^[72] water,^[73] oysters,^[74] pizza,^[75] pork rolls,^[76] chocolate mousses,^[77] Spanish mackerel,^[78] food provided on a holiday cruise,^[79] meat products,^[80] gelati,^[81] Caesar salads,^[82] and soy milk (which settled for $25 million).^[83] Tort law changes introduced in 2002 to limit personal injury claims mean that there are now many fewer such claims.

(d) Personal injury through defective products

There have been many class actions of this type. They have included claims arising from the use of breast implants,^[84] tobacco,^[85] pacemaker batteries,^[86] pacemaker leads,^[87] sterilisation clips,^[88] knee implants,^[89] travel sickness pills,^[90] morning sickness tablets (which settled for $89 million),^[91] weight loss tablets,^[92] pelvic mesh,^[93] medication prescribed for the treatment of acne,^[94] arthritis^[95] and Parkinson's disease,^[96] and hip implants (which recently settled for $250 million).^[97]

(e) Shareholder class actions

Over 60 class actions have been brought on behalf of shareholders against various listed companies for misleading or deceptive conduct and/or breaches of the continuous disclosure regime on the ASX. The largest settlements are the GIO class action ($112 million),^[98] Aristocrat class action ($145 million),^[99] Multiplex class action ($110 million),^[100] and Centro class actions ($200 million).^[101]

(f) Investor class actions

Over 90 class actions have been filed by investors complaining of conduct by promoters of various investments including in debentures and security notes,^[102] vehicle tracking technology,^[103] margin lending arrangements,^[104] bank holdings of collateralised debt obligations (settled for $115 million),^[105] investments in synthetic collateralised debt obligations,^[106] apartment purchases,^[107] and infrastructure projects (e.g. the River City class action brought by investors in Brisbane's Clem 7 road tunnel which settled for $121 million).^[108]

(g) Anti-cartel class actions

Five class actions have been filed on behalf of consumers and businesses in relation to cartel conduct,^[109] three of which concerned international cartels and two related to local cartels. The first class action concerned an alleged cartel with respect to certain grades of pre-mixed concrete; it was not allowed to continue as a Part IVA proceeding.^[110] The applicants were successful in three of the class actions, namely the Vitamins Cartel class action (settled for $41 million),^[111] the Amcor-Visy Cartel class action (settled for $120 million),^[112] and the Air Cargo Cartel class action (settled for $38 million).^[113] The Rubber Chemicals Cartel class action settled for only $1.5 million which was less than the costs and disbursements incurred.^[114]

Although cartel behaviour affecting Australian businesses and consumers is frequently revealed, there have been very few such cases, largely because of legal, practical and funding obstacles which it is beyond the scope of this chapter to address.

(h) Consumer class actions

These have included class actions filed by consumers induced by misrepresentations to purchase goods which were not as represented,^[115] eleven class actions filed against Australian banks with respect to bank fees charged,^[116] four class actions against Cash Converters in NSW and Queensland alleging among other things that they charged excessive interest on personal loans or cash advances,^[117] five class actions filed against Volkswagen, Audi and Skoda with respect to an emissions control defeat device on certain models of the cars manufactured,^[118] and a class action filed on behalf of persons who purchased Ford Focus cars with an allegedly faulty transmission.^[119]

(i) Environmental class actions

These have included class actions on behalf of:

• over 30,000 Papua New Guinean villagers with respect to the discharge of ore-tailings and waste products from the Ok Tedi mine into the Ok Tedi and Fly Rivers. The action was settled;^[120]
• persons who suffered personal injuries allegedly caused by industrial pollution. These actions were unsuccessful;^[121]
• persons whose property values were allegedly reduced by methane gas from a disused landfill in Cranbourne, Victoria (settled for $23.5 million);^[122]
• Indonesian seaweed farmers who suffered losses through damage to seaweed allegedly caused by oil and dispersants arising from a blowout at the Montara Wellhead platform (located in Australian waters approximately 685 km west of Darwin and 250 km south-east of Indonesia);^[123] and
• persons whose property values were allegedly reduced by toxic fire-fighting chemicals which leached into the groundwater from the Williamtown Air Force Base.^[124]

(j) Human rights class actions

The human rights class actions include cases on behalf of:

• children and young people who were wrongfully arrested and detained by NSW police for breach of bail (settled for $1.85 million);^[125]
• persons who were allegedly physically and/or sexually assaulted whilst residents of the Fairbridge Farm School in NSW between 1937 and 1974 (settled for $24 million);^[126]
• indigenous residents of Palm Island in respect of alleged unlawful racial discrimination following the death in custody of an indigenous man. Judgment has been handed down in favour of the applicant and family members, with class members' claims to be assessed;^[127]
• persons with disabilities who were allegedly assaulted, falsely imprisoned and suffered financial losses while residents of Grand Western Lodge in NSW between 2000 and 2011 (settled for $7.05 million);^[128]
• workers with intellectual disabilities alleging unlawful discrimination and underpayment of wages (recently settled);^[129]
• asylum seekers and refugees detained at the Christmas Island detention centre relating to the legality and conditions of detention;^[130]
• asylum seekers and refugees detained at the Manus Island detention centre relating to the legality and conditions of detention;^[131] and
• asylum seekers relating to the shipwreck on the coast of Christmas Island causing the death and injury of a large number of people.^[132]

(k) Trade union class actions

Trade unions have filed more than 40 class actions,^[133] although 19 of those cases were brought with respect to the same industrial dispute.^[134] As might be expected, these claims relate to employment issues such as underpayment claims;^[135] disputes about employer conduct in obtaining workplace agreements^[136] and orders against imminent termination of employment.^[137]

(l) Miscellaneous

Numerous other class actions have been commenced for causes of actions which fall outside the categories we set out above. They include class actions by women infected with Hepatitis C at a medical clinic,^[138] by travel agents to recover commissions on fuel charges paid by airlines,^[139] by clients of a legal firm who allege they were overcharged under their legal costs agreements,^[140] and to stop the 1999 Constitutional referendum with respect to Australia becoming a republic.^[141]

In our view, the number of claimants, the variety of their claims, and the diversity in the types of people and entities who have had access to justice through the class action procedure shows that the regime allows substantial and broad-based access to justice.

3.2.9 The financial and technical barriers

The main practical barrier to usage of Australia's class action regimes is the enormous costs and risks associated with complex and strenuously defended class proceedings. The legal costs for the applicant in large class actions are commonly in the order of $10 million and the applicant is exposed to adverse costs liability in a similar amount.^[142] Indeed, when there are multiple respondents (as is often the case) or when the dispute is particularly complex, trenchant or long-running, the applicant's legal costs and adverse costs exposure may be many times higher than this. The legal costs mean that most ordinary (or even wealthy) Australians cannot afford to utilise the class action mechanism, and the adverse costs risk acts as a strong disincentive to taking on the role of representative party.

These financial barriers, based as they are in our adversarial system and "costs follow the event" rules, cannot just be wished away. To an extent they are reduced through the preparedness and financial capacity of some legal firms to conduct major class actions on a "no win-no fee" or a pro bono basis. However, only a handful of legal firms are prepared to take on the burden of complex class action litigation, their capital is limited, and it must be accepted that many legal firms lack the capacity to successfully run such major litigation. In any event, because no win-no fee arrangements do not protect the applicant against adverse costs liability, this risk remains.

The result is that few people are able or willing to take on the burden of being the representative party, without whom a class action cannot proceed. As Strathy J said in the Canadian decision, Dugal v Manulife Financial Corporation:

"The grim reality is that no person in their right mind would accept the role of representative plaintiff if he or she were at risk of losing everything they own."^[143]

These realities led to a decline in the usage of the Part IVA regime, with the period 2000-2004 marking the low point.^[144] That gap was filled by the advent of, and growth in, commercial third-party litigation funding. The use of litigation funding has grown significantly since then. In the period from September 2013 to September 2016, almost half of all class actions filed in the Federal Court were funded by a litigation funder.^[145]

Litigation funding plainly facilitates access to justice but it comes at a cost. Class members are commonly charged between 25-40% of the compensation they obtain.^[146] The role of the courts in protecting class members against any excessive funding charges,^[147] in combination with increasing competition in the litigation funding market,^[148] may operate to reduce funding charges over time but it seems unlikely that funding commission charges will reduce greatly. Essentially this is because funders that assume the substantial costs and risks of a class action must be allowed a commercially realistic return.^[149]

While litigation funding has permitted a great deal of access to justice, it is not a panacea. Amongst other things, whether funding is offered is a commercial decision for the funder and in many cases it is not available. For example, litigation funders commonly do not fund cases that are heavily dependent on oral evidence, that require a factually-rich and complex forensic inquiry, where there are difficulties for the funder in "book-building", where the claim is made up of too many small claims, where the remedies sought are not damages, where the proposed respondent's capacity to pay may be doubted, where there are multiple defendants, and smaller (albeit strong) class actions where the percentage funding commission may not justify the costs and risk required to be assumed.^[150]

There are also technical barriers to the use of the regime, including that the claim must meet the threshold requirements of s 33C and may face an application that the proceeding be "de-classed" pursuant to s 33N. They have the effect that some claims in relation to mass wrongs may not be brought through the regime and claimants must rely on other, usually less efficient, mechanisms. Space does not permit that we give these technical barriers any attention.

It is undeniable that the financial and technical barriers to which we have referred mean that the access to justice provided through the regime is far from complete.

3.3 Current challenges to access to justice

We now provide an overview of some of the current challenges to the access to justice provided through the Part IVA regime.

3.3.1 Security for costs

In the Draft Bill annexed to ALRC Report No 46, cl 31(2) states:

"In a group member's proceeding, an order for security for costs may not be made against the principal applicant on the ground that the proceeding is for the benefit of the group member and not for the benefit of the principal applicant."^[151]

The Explanatory Memorandum for the Draft Bill states that the clause "prevents the operation of the rule that security for costs may be ordered if a person is conducting proceedings not for his or her own benefit but for the benefit of another person. It ensures that an order for security for costs cannot be made on that ground alone."^[152]

In drafting Part IVA, the legislature did not include any such limitation on security for costs. As drafted, the Part included s 33ZG(c)(v) which provides that, except as otherwise provided by Part IVA, nothing in the Part affects the operation of any law relating to security for costs.

Then the legislature gave the question as to whether class members were liable for adverse costs further thought. On 7 December 1992, the Act was amended by the insertion of s 43(1A). It provides that in representative proceedings the Court or Judge may not award costs against a class member (except in the limited circumstances described).

Until 2003, in a series of decisions which relied on s 43(1A), the Federal Court displayed real reluctance to order security for costs in Part IVA proceedings.^[153] The cases show, first, a concern that an order for security would have an adverse impact upon access to justice.^[154] As a commentator said in 2000:

"the Court has been acutely conscious that an order for security for costs has the potential effectively to prevent a proceeding continuing, thereby inhibiting the public interest aspect of the procedure."^[155]

Second, they show a concern that the immunity from an order for costs under s 43(1A) would be undermined if security for costs was awarded in reliance on s 33ZG. That concern was based on the risk that an order to provide security for costs might force absent class members to share, with the applicant, the financial burden of the order and thereby effectively lose the immunity conferred under s 43(1A).^[156]

Then, in Bray v F Hoffmann-La Roche Ltd (Bray)^[157] in 2003 the Full Federal Court took a different view. In this case the Court apprehended that large companies that could afford to put up security for costs were standing behind the applicant. The Court considered that an order for security for costs did not affect the immunity under s 43(1A) and it upheld an appeal against an order refusing security.

More recently, in Madgwick v Kelly (Madgwick)^[158] the Full Court reaffirmed this principle in upholding an appeal against an order refusing security for costs, deciding that an order for some security was appropriate given the nature of the underlying claims and the "proved ability of at least a not insignificant number of group members to contribute" to a fund for such a purpose.^[159] We note though that the applicant (the respondent to the appeal) did not contend that Bray was wrongly decided.

As Perram J recently observed in Capic v Ford Motor Co (No 2):^[160]

"It was nevertheless held in [Bray] that it was still legitimate to take into account in assessing whether to order security the fact that costs could not, by dint of s 43(1A), be ordered against an individual class member (at [6]). … The outcome of [Bray and Madgwick] is that the fact that costs may not be awarded against class members is a relevant matter to be taken into account, but does not necessarily provide a basis for refusing an application for security for costs."^[161]

The application for security for costs in Madgwick was remitted to the docket judge (the first-named author) with orders that required the amount of security to be fixed together with the manner and terms of its provision. That necessitated orders for notices to be sent to class members seeking a contribution to security and warning that they may be excluded from participation in the proceeding if they did not make a reasonable contribution or explain why they were financially unable to do so. That process was (correctly) described by Perram J as "cumbersome and expensive".^[162]

The result of this process in the Kelly litigation cannot be seen as positive in terms of access to justice. A great many class members who did not make a contribution to security for costs and who did not satisfy the Court that their refusal to contribute was reasonable, were excluded from obtaining any benefit in the proceeding or under any settlement. They remained class members^[163] and were bound by the result but they lost their rights to claim compensation, even in separate proceedings.

This prompted Justice Perram to remark:

"It is not self-evident that Part IVA …was intended to operate to permit the well-resourced to pursue their claims whilst debarring those of lesser means. Indeed, the Attorney-General's remarks on the introduction of the bill introducing Part IVA rather suggest to the contrary".^[164]

Professor Issacharoff, the Reporter in the American Law Institute's restatement of the Principles of Aggregate Litigation,^[165] has observed that the decision in Madgwick "has the two-fold effect of discouraging class-funded litigation by making it significantly more expensive initially, and exacerbating the free rider problem by giving class members added incentive not to become known".^[166]

The access to justice ramifications of the principles enunciated in Bray and Madgwick will need to be closely monitored, not only with respect to the number and proportion of class members who may lose their entitlement to participate in class proceedings through any security for costs order, but also how this judicial approach might create disincentives for class actions that do not use litigation funding.

3.3.2 The level and nature of judicial scrutiny of class action settlements

(a) Increasing acceptance of the importance of judicial scrutiny of settlements

Section 33V of Part IVA and its State counterparts provide that a class action cannot be settled or discontinued without the approval of the Court. In ASIC v Richards, the Full Federal Court confirmed:^[167]

"The role of the court [in a settlement approval application] is important and onerous. It is protective. It assumes a role akin to that of a guardian, not unlike the role a court assumes when approving infant compromises. In the current context, the Court's role is to protect those group members who are not represented by [the solicitors for the applicant] and whose interests may be prejudiced by their absence."^[168] (Citations omitted.)

The Court must be alive to the possibility of conflicts of interest between (amongst others) the applicant and class members and the applicant's lawyers and class members who are not clients of the lawyers and the risk that a settlement reflects the interests of the parties at the settlement table rather than the absent class members. As the Court said in Kelly v Willmott Forests Ltd (in liquidation) (No 4):^[169]

"It should be kept in mind that the Court assumes its onerous burden at a stage of the proceeding when the interests of the applicant and the respondent have merged in the settlement and neither side seeks to critique the settlement from the perspective of class members. Both sides have become "friends of the deal".^[170]

Careful judicial attention to settlement approval can be critical in ensuring class members have access to a fair and transparent legal process.

The Federal Court Class Actions Practice Note provides a detailed non-exhaustive checklist as to the factors to be considered by judges in deciding whether a settlement is fair and reasonable in the interests of class members to be bound to it,^[171] echoing the considerations set out in Williams v FAI Home Security Pty Ltd (No 4).^[172]

In our view, the Practice Note (and its State counterparts) reflect an increasing judicial appreciation of the crucial importance of close scrutiny of the important dimensions of proposed settlements. This development is also evident from: (a) the more detailed nature of settlement approval judgments over the last few years;^[173] (b) a greater judicial willingness not to endorse proposed settlements that have unjust or unreasonable features;^[174] (c) a close consideration of a wider range of matters in settlement applications;^[175] and (d) a willingness to take an active role with respect to the distribution of settlement funds.^[176] That bodes well for access to justice in the future.

(b) Increasing judicial scrutiny of litigation funding charges

It is uncontentious that the Federal Court has power to refuse to approve a settlement if the funding commission arrangements or the funding commission rate or quantum are not fair and reasonable in the interests of class members, including as between class members.^[177] Until recently, a controversy remained as to whether the Court has power to vary the rate and/or quantum of the litigation funding commission charged to class members, in a similar way as with legal costs charged to them.

In Earglow Pty Ltd v Newcrest Mining Ltd (Earglow)^[178] the applicant in a funded class action submitted that the Court had no power to interfere with class members' freely assumed contractual rights and obligations under their funding agreements, and could not approve, reduce or vary the funding commission rate that had been agreed. The Court held that it had power to make orders approving the proposed settlement but disallowing or reducing an excessive funding commission, but decided that the funding commission was fair and reasonable.

The Court concluded that it had power to make such orders because a decision as to whether to approve a settlement:

"must include having regard to the funding commission that will be payable by class members under the settlement, essentially because that commission will be deducted from their settlement amounts pursuant to the terms of the settlement for which approval is sought. The funding commission rate and aggregate quantum necessarily affect the fairness and reasonableness of the proposed settlement for class members because the deduction will directly impact on the quantum of compensation they will receive "in hand"."^[179]

The Court considered it relevant that the settlement in that case provided for the deduction of an equivalent amount to the funding commission from the settlements of class members who had not entered into funding agreements, through a funding equalisation mechanism (as is common).^[180] It said that there was no reason in principle for treating litigation funding costs incurred to achieve a settlement differently from legal costs incurred to achieve the settlement.^[181]

In drafting recommendations for class actions in that country, the New Zealand Rules Committee took a similar view. It recommended rules which provide for judicial scrutiny of "fee agreements" (which were defined to include litigation funding agreements) and to permit the court on its own motion or on application to make orders to vary an excessive or disproportionate funding commission.^[182]

The decision in Earglow reflects the increasing importance of commercial litigation funders in Australia's class action landscape.^[183] As we have said, almost 50% of all federal class actions filed in the last three years were funded by commercial litigation funders and 90% of such cases were successfully settled. Judges are commonly confronted with applications for settlement approval in funded class actions where the largest single deduction from the recoveries of class members is the funding commission".^[184] Judicial scrutiny of funding commission rates as part of settlement approval, in order to protect class members' interests, can only enhance their access to justice.

(c) Judicial scrutiny of settlement administration

The distribution of the proceeds of a class action settlement amongst class members will usually require court approval of a settlement distribution scheme (Distribution Scheme).^[185] It is axiomatic that for a proposed Distribution Scheme to be fair and reasonable as between class members it must achieve a fair division of the proceeds of the settlement. Access to a fair legal process requires that class members receive a fair share of settlement proceeds and that settlement proceeds are not eaten up or distribution unreasonably delayed through the settlement administration process.

As Associate Professor Legg has noted:

"The settlement distribution process is guided by two competing objectives. First, individual compensation should reflect the merits of the individual claim so that the group member receives compensation commensurate with the amount to which they are entitled. This is usually compensation as determined by law through the courts. Second, the distribution process is completed in a manner that minimises cost and delay. The objectives compete, or conflict, in that a distribution scheme that seeks to take account of more individual factors, which are relevant to the quantum of recovery so as to reflect the merits of the claim, will be more costly and time consuming, especially when the class action includes both strong and weak claims."^[186]

In deciding whether to approve a Distribution Scheme, the Court must balance the cost of a more perfect assessment procedure against the notional benefit of a more exact distribution.^[187]

Upon approval of the Distribution Scheme, a question arises as to the extent of the Court's role in supervising the scheme administration. It is noteworthy that in Australia's first shareholder class action^[188] Moore J monitored the progress and cost of the scheme administration and required regular reports on affidavit and sometimes appearances before the Court by the scheme administrator. Stone J took a similar approach in the next shareholder class action settlement.^[189] It appears, however, that such monitoring (at least in shareholder and investor class actions) is no longer common practice.

To an extent this may reflect the fact that administration processes in such cases are now well-established and more streamlined and that in some cases the administration costs are estimated and approved in advance. It seems likely however that it also reflects a view that such scrutiny is unnecessary.

The Court's obligation to protect class members' interests does not cease with settlement approval and in many cases it will be appropriate for the court to require reports as to the progress and costs in the administration. When that material raises concerns, it may be appropriate to require the scheme administrator to appear and answer questions. Judicial monitoring of settlement administration may protect class members' interests, and it can also assist the scheme administrator in relation to criticism of his or her conduct.

This can be seen in the complex administrations of the $500 million settlement of the Kilmore East-Kinglake bushfire class action, the $300 million settlement of the Murrindindi-Marysville bushfire class action, and the $25 million settlement of the Bonsoy class action. These settlement administrations recently attracted a deal of adverse publicity.

In 2016, articles in The Australian newspaper strongly criticised the role of the Administrator in each case, who was a lawyer in the legal firm Maurice Blackburn, in relation to what were said to be serious delays and excessive costs.^[190] Those settlement administrations concerned:

(a) in the Kilmore East-Kinglake bushfire class action, approximately 1,900 personal injury/dependency claims and approximately 9,000 property and economic loss claims (comprising 3,960 claims for uninsured or above insurance losses and 5,035 subrogated claims brought through an insurer);

(b) in the Murrindindi bushfire class action, approximately 425 personal injury/dependency claims and approximately 2,443 property and economic loss claims (comprising 1,184 claims for uninsured or above insurance losses and 1,259 subrogated claims brought through an insurer); and

(c) in the Bonsoy class action, 569 personal injury claims.^[191]

The settlement administrations involved the Administrator taking a detailed statement from each claimant, obtaining medical reports from treating doctors and arranging independent medical examinations in the personal injury claims, arranging assessments by independent assessors in the property damage and economic loss claims, undertaking or arranging individual assessments of each claim by solicitors or barristers, and arranging independent review of the assessment by senior barristers where a class member sought review. Particularly in the property damage and economic loss claims some difficult and novel legal issues arose. In many ways the Kilmore East-Kinglake bushfire class action Distribution Scheme involved an "unprecedented settlement administration".^[192]

Justice Jack Forrest (in the Kilmore East-Kinglake bushfire and Bonsoy class actions) and Justice John Dixon (in the Murrindindi bushfire class action) closely supervised the settlement administrations through reports on affidavit by the Administrators, by requiring the Administrator to appear at case management conferences, by ruling on legal issues arising in the administration, and by allowing class members to raise their concerns directly with the Court. Amongst other things, the Court dealt with concerns expressed by class members as to the costs incurred in the administrations, delays in the distribution of settlement monies, and as to the Administrator's diligence in dealing with a potential tax liability arising from interest earned on the settlement sum.

In each case, the Court appointed an experienced independent costs assessor as a special referee to provide a report as to the reasonableness of the administration costs charged. The special referee gave evidence and was questioned by the Court (and in one case also by class members). The Administrator also put on reports on affidavit. In the Kilmore East-Kinglake and Murrindindi bushfire cases the Administrator gave evidence and was questioned by the Court, and in one case also cross-examined by class members.

Having heard the evidence, the Court said that:

(1) in the Kilmore East-Kinglake bushfire class action, the costs charged by the Administrator were reasonable, the administration of the Distribution Scheme had been both reasonable and efficient, and the Administrator had acted appropriately in relation to the potential taxation liability;^[193]

(2) in the Murrindindi-Marysville bushfire class action, the costs charged by the Administrator were reasonably incurred and reasonable in amount, and the approach by the Administrator in relation to the potential taxation liability was proper and appropriate;^[194] and

(3) in the Bonsoy class action, the Administrator efficiently and competently managed the Distribution Scheme.^[195] The Court described the scheme administration as "an exemplar of good management of a class action settlement"^[196] and said that the settlement was administered "in an extraordinarily efficient and capable fashion and the fact that the group members have been paid out rapidly and forcibly is a tribute to the scheme administrator."^[197]

It was important for access to justice that the concerns of class members were dealt with transparently and that they were given a fair hearing. The Court's findings also proved important for the Administrators in relation to what appear to be largely unjustified criticisms of their performance of the settlement administration.

We agree with the remarks of J Forrest J when his Honour said:

"One can't think that when the case settles that the Court's role or those of the practitioners has ended. In fact, to a considerable extent it is just beginning."^[198]

Appropriate judicial attention to the administration of a Distribution Scheme can only enhance the quality of access to justice provided to class members.

(d) Other developments and practices relating to judicial scrutiny of settlements

There are five other matters relating to the judicial scrutiny of class action settlements to which we wish to briefly draw attention. In recent years there appears to be:

(1) a greater judicial willingness to seek the assistance of a contradictor where the Court has concerns with aspects of the settlement in question;^[199]

(2) an increased judicial recognition of the fact that no or few objections from class members to a settlement may not, generally speaking, be regarded as reliable evidence that all or most of the class members who will be bound by it are happy with it;^[200] and

(3) signs of an increased judicial preparedness to allow objecting class members to recoup some of the costs they incurred in objecting to a proposed settlement, where their objections assisted the Court.^[201]

Those three developments are likely to enhance access to justice. However, the next two matters are negative:

(1) it is problematic that many settlement approval judgements do not disclose the litigation funding commission charged to class members.^[202] As recently noted in Earglow, "the Court should require disclosure of the funding commission rate and quantum. Doing so will assist the Court in deciding whether the funding commission is fair and reasonable including by allowing comparison with rates charged in other cases";^[203] and

(2) a practice has developed under which the parties seek consent orders which operate so that class members who do not opt out or register in a class member registration process remain as class members but are precluded from obtaining compensation under any settlement or judgment. The rationale proffered for such orders is that they are necessary to facilitate settlement, but they are sometimes sought outside the context of settlement discussions^[204] and the preclusion applies even if settlement is not achieved.

The practice may go further than is necessary to facilitate settlement, the full effect of such orders on the interests of class members may not be apparent at the stage the orders are made,^[205] and there may be reasons to doubt that class members' interests are being properly considered. The courts should be cautious before locking class members out of their right to make a claim in the event settlement is not achieved.

3.3.3 Common fund orders

There can be no doubt that the class action landscape envisaged by the ALRC and the drafters of Part IVA is fundamentally different from the current picture. One major difference is the development of commercial litigation funding which was not foreseen at the time. Indeed, the ALRC report cautioned that third parties who fund class actions should not receive a share in the proceeds or subject matter of the action.^[206]

The advent of litigation funding increased the incidence of closed class representative proceedings because (although this is changing) funders have generally only been prepared to fund class actions where the class is limited to those persons who enter into a litigation funding agreement. It cannot be doubted that litigation funding of closed class actions has provided access to justice to a great number of claimants.^[207] However, limiting the ambit of class actions to those who have agreed to enter into a litigation funding agreement undermines one of the key rationales for an opt out class action procedure and is a far cry from the class action landscape envisaged by Parliament.^[208]

In Money Max, the Full Federal Court made orders which permitted the litigation funder to charge a (reduced) funding commission to the whole class, not just to those class members who had signed a funding agreement.^[209] We will be brief in dealing with this important judgment because it is dealt with in more detail in other chapters.

The Court based its decision on the interests of justice in the extant proceeding rather than by reference to broad policy considerations, but it considered the common fund order it made would facilitate access to justice by encouraging the greater use of open class representative proceedings,^[210] and would better protect class members' interests in relation to the funding commission charged.^[211]

The Court declined to fix the appropriate funding commission rate at that stage and said that it would do so when the Court was armed with better information, including as to the quantum or likely quantum of the settlement or judgment. Most likely, this will be at the point of settlement approval or distribution of damages.^[212] The Court did not suggest that it will always be necessary or appropriate to decline to set the funding commission rate until settlement approval, as it will depend upon the circumstances.^[213] The Court's preparedness to set a reasonable funding commission rate at an early stage may depend on the quality of the information that is able to be provided as to the costs and risks faced by the funder and the likely size of any settlement.^[214]

In our view, appropriate common fund orders are likely to enhance access to justice because the classes in such actions will not be limited just to those who signed a funding agreement. They may operate so that the opt out nature of the regime is, to an extent, restored.

Some concerns have been expressed as to the possible effects of common fund orders. These include that class actions will be commenced too speedily, that class actions will be larger, and that there will be more class actions because funders will no longer consider it necessary to sign up sufficient claimants before commencing a case.^[215]

To the extent that a common fund order allows a greater proportion of claimants who suffered an alleged mass civil wrong to participate in a class action brought in relation to that wrong, that is entirely consistent with the opt out nature of the Part IVA regime and it enhances access to justice. In relation to the other fears, time will tell whether they come to pass. These concerns might be answered in different ways, depending on the case, but:

(1) the concern that there will be a significant increase in funded class proceedings does not appear to take account of the fact that 72% of all funded federal class actions filed in the three years prior to 3 September 2016 were commenced on an open class basis.^[216] Nor does it appear to recognise that most closed class proceedings are later opened, at least for a period, through the class opening and closing orders described in Money Max;

(2) it seems unlikely that the availability of common fund orders will prompt litigation funders to "rush to the courthouse" and abandon the due diligence processes that have served them well to this point. The risk of substantial adverse costs orders will continue to be a disincentive to rushed litigation and a funder that decides to cut corners is likely to have its fingers burnt;

(3) if there is a rush to the courthouse, it is established that being first to file a class action does not mean that that action should proceed before a later filed but better prepared class action. It may be appropriate to stay the poorly prepared case and allow the case that best serves class members' interests to proceed. We briefly deal with competing class actions below; and

(4) the courts have ample powers to deal with funders or lawyers that file a poorly prepared class action in a rush to defeat their competitors, including the power to dismiss proceedings for abuse of process or to order costs against them personally. The cases indicate that the courts are prepared to take steps to curb such behaviour.

3.3.4 Competing class actions

It is unfortunate that Part IVA does not provide a mechanism to deal with competing class actions. As the Full Court said in Money Max, overlapping or competing class actions can "cause increased legal costs for both sides, wastage of court resources, delay, and unfairness to respondents, particularly when they are commenced in different courts (such as in both the Federal Court of Australia and a State Supreme Court)".^[217] The Canadian Uniform Law Conference described the difficulties associated with competing class actions in the following terms:

"the potential for chaos and confusion remains high: potential class members may find themselves presumptively included in more than one class action and may be subject to conflicting determinations; defendant and class counsel may be plagued by uncertainty as to the size and composition of the class; and it will be difficult to determine with certainty which class members will be bound by which decisions."^[218]

The empirical data shows that there have been 30 instances of competing class actions in Australia, eight of which have involved proceedings filed in more than one jurisdiction. With the introduction of class action regimes in Queensland and Western Australia, the frequency of different solicitors filing class actions in different jurisdictions with respect to the same dispute is likely to increase.

A common feature of judgments dealing with competing class actions has been a judicial reluctance to choose between the cases,^[219] which compares unfavourably with the way such situations are dealt with in Canada. Under the Canadian procedure, one or more of the competing class representatives may bring what is referred to as a "carriage motion", seeking a stay of all the other (present or future) class actions with respect to the same subject matter.^[220] On the hearing of a carriage motion, the court's starting point is that "there cannot be two class actions for the same putative class asserting the same cause(s) of action".^[221]

Canadian courts have displayed a far greater willingness to choose between competing class actions than Australian courts,^[222] but it seems likely that Australian courts will soon be asked to determine whether the carriage motion mechanism is an appropriate approach. A carriage motion cannot though deal with competing class actions filed in different courts, and existing cross-vesting provisions do not appear to be adequate to do so.^[223] It may become necessary for Australian courts exercising class action jurisdiction to develop protocols for the transfer of competing class actions between jurisdictions.

3.4 Conclusion

The Part IVA regime and its State counterparts have provided a flexible and adaptable procedure for dealing with mass civil claims, which has provided practical access to justice for an enormous number of claimants of many kinds or types, and allowed them to bring cases based in diverse causes of action arising out of a huge range of circumstances. In most cases the claimants would have been unable to bring their claims before the courts if the class action mechanism was not available to them, and many of them have enjoyed significant success in doing so. Notwithstanding the financial and technical barriers to the use of the class action procedure, we would describe the access to justice provided through the regime as broad-based and substantial. In our view there can be no doubt the regime has significantly enhanced access to justice.

All indications are that the regime is operating well and in a sustainable fashion. The empirical data confirms that there has been no explosion in class action litigation. On average over the last 25 years there have been approximately 19 class actions filed every 12 months since 4 March 1992. Most recently, over the three years from 4 September 2013 to 3 September 2016, a total of 103 class actions were filed providing an annual average of 34 class actions. However, whether that trend is maintained, or reflects factors such as increased litigation arising out of the global financial crisis (of which there are presently more than 10 class actions in the Federal Court alone) remains to be seen. We do not suggest that there have been no problems in the operation of the regime but we can see few systemic difficulties, and there are reasons to be confident that the courts will be able to deal with such difficulties as emerge.

On 7 December 2016, on making orders which paved the way for the distribution of almost $700 million to many thousands of class members in the Kilmore East-Kinglake and Murrindindi bushfire class actions, Justice Jack Forrest said:

"This demonstrates that the class action process works. It shows that when it is properly managed, many substantially disadvantaged and affected people can recover compensation that they would otherwise not have been able to obtain."^[224]

We respectfully agree.