To delve deeper into this topic, Lawyers Weekly spoke with four class action lawyers: Claire Pirie, principal lawyer at Slater & Gordon; Melissa Gladstone, partner at Herbert Smith Freehills; Jack Power, special counsel at King & Wood Mallesons; and Lee Taylor, principal lawyer at Maurice Blackburn, about key trends they expect to shape the class action landscape in 2025 and strategies for effectively navigating these developments.

High Court decisions shaping class action procedures

Pirie highlighted that two pivotal cases currently before the High Court of Australia will play a central role in shaping the class action landscape in 2025.

“There are two matters before the High Court that have the potential to meaningfully shift the landscape for class actions in 2025.

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“Both matters concern the scope of powers conferred to the NSW Supreme Court and Federal Court by the relevant regimes: Lendlease, concerning the power to make class closure orders, and Blue Sky, concerning the power to make settlement common fund orders,” Pirie said.

“If the High Court finds that the regimes do not confer the requisite power to make those orders, we anticipate a further increase in the number of class actions that are issued in the Supreme Court of Victoria, where the legislation expressly permits class closure orders and group costs orders.”

Due to the already heavy caseload in the Supreme Court of Victoria, Pirie noted that this shift “would place [an] increased burden on those judges hearing class actions”.

In anticipation of this potential ruling, Pirie advises that plaintiff practitioners may need to reassess and strengthen their “book-building” strategies to navigate the changes effectively.

“To prepare for the possibility that settlement common fund orders are beyond power, plaintiff practitioners and litigation funders may need to re-enliven their book-building processes,” Pirie said.

“On the other hand, if the High Court finds that the requisite powers are conferred by those regimes – in particular, the Federal Court’s power to make a solicitors’ common fund order at settlement – we expect to see an uptick in the number of class actions issued in the Federal Court.”

Increased class action risk

While class action filings in Australia were “marginally down” in 2024, Gladstone highlighted that class action risk continued to be a prominent trend and may even intensify in the year ahead.

She said: “Class action risk persists in 2025 due to new firms entering the Australian market, increased availability of funding and funding models, the emergence of low or ‘no-cost’ jurisdictions, and a continued broadening of the types of claims pursued – there is an increased focus on consumer rights, ESG, employment, and cyber claims.”

To effectively manage this risk, Gladstone recommends that organisations remain proactive by continually assessing their exposure to class action risks.

“Preparation starts with knowledge. We recommend organisations regularly assess risk against class action and regulatory developments,” Gladstone said.

Gladstone also cautioned that there is no “one-size-fits-all” approach, urging organisations to customise their risk assessments to address the “specific vulnerabilities” inherent to their industry or business.

She added: “Organisations with complex supply chains may need to assess risk more closely against ESG considerations, while organisations with a large number of employees will focus on employee entitlements and compliance with company and industry requirements.”

A stronger force of consumer protection

Taylor noted that a recent High Court ruling has reinforced the authority of the Australian Consumer Law (ACL) in protecting consumers from defective products, a development with significant implications for future consumer and shareholder class actions.

“In the recent cases Toyota v Williams [2024] HCA 28 and Capic v Ford [2024] HCA 39, the High Court has made clear the Australian Consumer Law has teeth when it comes to protecting Australian consumers from defective products,” Taylor said.

“We think the decisions make clear that the loss and damage provisions of the ACL are there to protect consumers, and we expect that courts will extend the reasoning of those cases to other kinds of consumer actions based on defective or worthless products.”

Additionally, Taylor noted that the outcome of the appeal in Zonia v Commonwealth Bank of Australia will provide much-needed clarity on the application of continuous disclosure provisions.

“In the shareholder class action sphere, the outcome of the appeal to the full court of the Federal Court of Australia in Zonia v Commonwealth Bank of Australia will clarify the application of the continuous disclosure provisions and reinforce listed companies’ obligations to inform the market of material information that investors need to make fully informed decisions,” Taylor said.

The dominance of consumer and financial product class actions

Power observed a significant decline in the class action landscape in Australia in 2024, with filing rates reaching their lowest levels since the 2016–2017 period.

He attributes this trend to “a combination of several favourable decisions for defendants, including those on continuous disclosure, and a ‘reversion to the mean’ following the increase after the royal commission”.

Despite the decline in fillings, Power asserts that consumer and financial product class actions are likely to remain “dominant” in 2025 as “regulators are prioritising areas like greenwashing/ESG, cyber, and matters seen as relevant to the cost-of-living crisis, like superannuation and lending”.