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The High Court’s growing interest in the class action landscape
As class action litigation continues to evolve in Australia, a partner from a global law firm examines the increasing significance of the High Court in shaping how class actions are filed, funded, and resolved.
Grace Robbie
Speaking on a recent episode of The Lawyers Weekly Show, Eleanor Atkins, a partner at King & Wood Mallesons, shed light on the High Court of Australia’s growing impact on the class action space. She also highlighted the potential for such cases to transform the procedures surrounding class actions significantly in the future.
In the same episode, she addressed the significant decline in class action filings, reaching their lowest levels in seven years, and the reasons for this decrease.
Atkins indicated how, in 2024, it became increasingly apparent that “the High Court is taking an interest in class actions, and particularly class action procedures”.
One of the most closely observed matters that Atkins pointed to is the Lendlease matter, where the High Court is anticipated to deliver a crucial ruling concerning “the ability to make a class closure order”.
Atkins reflected on the court’s clarification on the feasibility of so-called “soft class closures” and elaborated on the implications of this decision.
“Essentially, that’s an order that requires group members to register their interest in order to participate in a settlement, and the rationale behind those orders is that it allows both the plaintiff and the defendant to assess the class size so that they can rationally arrive at a settlement,” she said.
Further, Atkins explained how the High Court is poised to weigh in on another significant matter concerning class actions, specifically the group cost order regime in Victoria.
“There is also another High Court decision pending concerning the ability of a group cost order [in Victoria] to travel to a different jurisdiction … that regime allows law firms, essentially, to recover their legal costs as a percentage of the amount either awarded by the court or by way of settlement.
“[It] is unique to Victoria, and the matter that is before the High Court concerns a question of whether if an order is made in Victoria and the proceeding is transferred to a different jurisdiction, whether that group costs order can travel to that other jurisdiction,” she said.
Atkins said that this ruling has the ability to significantly impact the financing of class actions throughout Australia, affecting both the plaintiff law firms and the entities providing funding for these legal actions.
“It really does have the potential to influence the funding of class actions. So specifically, whether a plaintiff law firm can file in a jurisdiction and recover their costs by way of percentage out of the settlement, and similarly for funders just knowing where and when they can fund class actions,” she said.
Despite these important developments, Atkins asserted that the High Court’s rulings will “not entirely” dictate the future of class actions in Australia.
However, she added: “There are a few decisions that are currently on appeal that certainly have the potential to influence new filings. So the appeal from the decision in the CBA securities class action comes to mind. What we have seen in the past 12 months is only two securities claims were filed.
“Whether or not that’s directly attributable to the decisions that have been favourable to defendants in the few claims that have proceeded to trial, we’ll wait and see.”
