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Significant implications of judgment allowing foreign citizens in Aus class actions
Late last year, the High Court established that non-residents could be group members in Australian class actions. Here, a BigLaw firm partner outlines how this may change the appearance of class actions in Australia.
Jess Feyder
A judgment made in October 2022 by the High Court of Australia confirmed that people who are not residents of Australia could be group members in Australian Federal Court class actions.
The ruling established that foreign residents who purchased a company’s shares on the ASX are permitted to be group members. It also established that persons who purchased a dual-listed multinational company’s shares on a foreign stock exchange could have their claims determined by the Federal Court of Australia — as long as the claims fall under the Federal Court’s jurisdiction.
This decision has the potential to increase the class action risk profile of multinational companies, David Taylor, partner at MinterEllison, told Lawyers Weekly.
“The Australian class action risk for multinational companies may now be greater than previously anticipated,” Mr Taylor explained, “especially if consideration and assessment of that risk [were] previously by reference to the geographical confines of Australia only”.
When asked if the judgment might change the landscape of class action cases in Australia, Mr Taylor answered: “Any decision which potentially increases the exposure of a company that is already a class action target has the potential to increase the likelihood that a class action will be commenced against it.”
This is because those that finance class actions, for example, litigation funders, will typically consider at the outset their return on investment based upon a share of the potential overall “pie”, which might be received by way of a settlement or judgment award, Mr Taylor said.
The defining judgment was received quite differently by plaintiff and defendant class action lawyers, explained Mr Taylor.
“Plaintiff lawyers and class action promoters have largely welcomed the judgment — stating that it increases access to justice by allowing foreign group members to have their claims heard and determined in Australia,” he told Lawyers Weekly.
“This might mean that a potential class action against a multinational company [that] was previously considered non-viable (e.g. if that multinational company had relatively small volume of securities listed on the ASX) may suddenly become more attractive if a plaintiff can allege that the company’s (more significant) overseas listing was also impacted by a claim falling under the Federal Court’s jurisdiction.
“We expect to see litigation funders and plaintiff law firms increasing their efforts to advertise potential Australian class actions internationally.”
They will, he said, aim to “increase foreign investors’ awareness of, and interest in participating in, Australian class actions — both of which would lead to an increased exposure for multinational corporate defendants”.
“On the other hand, lawyers advising multinational companies are concerned that the judgment raises practical issues regarding the ability to accurately identify foreign group members, which leads to increased complexities in the notification and opt-out procedures in Australia, as well as in settlement discussions,” Mr Taylor explained.
