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2023 class action filings ‘on pace to significantly outstrip’ last year’s numbers: Allens
The volume of class action proceedings being filed is ticking back up to pre-pandemic levels, with competing claims and cyber matters driving the uptick, according to a global law firm.
Jerome Doraisamy
In a market update about class action risks, BigLaw firm Allens noted that class actions filed in this calendar year are “on pace to significantly outstrip” the number of proceedings that were filed in 2022.
Allens’ key takeaway, it wrote, is that “filings in the first half of the year were significantly higher than the equivalent period last year”.
In fact, it appears that the number of proceedings filed to 30 June 2023 is double that of last year’s figures by the mid-way point of 2022 – 28 to 14.
What kinds of class actions are being filed?
The increase in filings, the firm suggested, has been “fuelled by a rise in competing class actions and the first significant wave of cyber class actions”, the latter being the result of the various data breach incidents.
As of the start of July, Allens detailed, five filed claims arose from data breach incidents.
As Professor John Swinson of the University of Queensland told Lawyers Weekly earlier this year, cyber security threats are more dynamic than ever, and the consequential data breach class actions have broader implications for the Australian market, as was reported in December. Lawyers in this space also, partners across the country advised back in September, need to be aware of the precedents being set in overseas jurisdictions.
Back in March 2022, Corrs Chambers Westgarth partner and head of class actions Chris Pagent predicted that there would be an increase in the volume of cyber and data privacy-related proceedings.
You can read Lawyers Weekly’s full coverage of cyber-related matters in law here.
On the point of competing class actions, Allens continued, 12 of the 2023 filings are competing matters, which the firm labelled as “claimed commenced on a ‘copycat’ basis after a similar class action was already on foot”.
At the midway point of 2022, there were only two competing proceedings and no data breach actions filed, Allens said.
Location and types of claims
It appears, Allens went on, that most class actions continue to be filed in the Federal Court of Australia – however, filings in Victoria’s Supreme Court “have continued to gain momentum”, accounting for two in five (40 per cent) of filings for the year to date.
This is in contrast, the firm noted, from the 28 per cent of such fillings across all of 2022.
Plaintiff lawyers are filing in that state Supreme Court, Allens hypothesised, so they can “pursue the group costs orders (i.e. contingency fees) which are, at present, uniquely available in Victoria”.
Elsewhere, more than three in four filed class actions pertaining to consumer and shareholder claims, with data breach incidents having given rise to “a new type of consumer claim”, being those impacted by the hacks experienced by the likes of Optus and Medibank.
The rate of employment claims “has continued to dwindle”, Allens noted, and “we are now working through the tail-end of COVID-19-related claims”.
Thus far this year, the firm outlined, the sectors that have been most under threat are industrials, infrastructure, power and utilities, retail, hospitality and leisure, and banks and financial institutions.
However, Allens added, “it is apparent that filing levels across these sectors have been driven by the high rate of competing class actions rather than a range of different risks specific to each sector”.
“For example, four of the six class actions in the infrastructure, power and utilities sector are competing claims brought against the same company, and the issue of multiplicity impacts six of the eight class actions in the industrials sector involving automakers,” it said.
Looking ahead
In mid-January, Ironbridge Legal partner Trevor Withane wrote that 2023 would be the “year of the litigator”. If the volume of class actions is anything to go by, that prediction is holding true – and may continue to do so in the remaining five months of the year.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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