Access to Justice—Litigation Funding and Group Proceedings: Report (html)

1. Introduction

This reference

Referral to the Commission

1.1 By letter dated 16 December 2016, the Attorney-General, the Hon. Martin Pakula MP, asked the Victorian Law Reform Commission (the Commission), under section 5(1)(a) of the Victorian Law Reform Commission Act 2000 (Vic), to report on access to justice by litigants who seek to enforce their rights using the services of litigation funders and/or through group proceedings. The referral was publicly announced on 16 January 2017.^[1]

1.2 The terms of reference are set out on page viii.

Scope of the reference

Access to justice

1.3 The overarching theme of the terms of reference, and this report, is access to justice. Access to justice is a broad concept that means different things in different contexts. In general terms, it refers to the ability of those who seek to enforce their rights to use the legal system to obtain an outcome by means of a fair and open process. Further significant themes of this report are:

• the appropriate regulation of litigation funders

• maintaining the proper ethical conduct of lawyers

• not imposing unfair or disproportionate burdens on litigants.

1.4 The services provided by litigation funders and the introduction of the class action regime in Victoria have enabled more Victorians to obtain redress where legal action may otherwise have been beyond their reach. At the same time, there is concern about the wider impact on the legal system and the rights and interests of people on whose behalf funded litigation and class actions are conducted.

1.5 The terms of reference identify in particular the need to ensure that litigants who use the services of litigation funders and/or participate in group proceedings are not exposed to unfair risks and disproportionate cost burdens. To this end, the Commission is asked to report on three possible strategies:

• increasing the supervisory powers of Victorian courts or regulatory agencies in respect of proceedings funded by litigation funders

• removing the existing prohibition on law firms charging contingency fees

• further regulating group proceedings under part 4A of the Supreme Court Act 1986 (Vic) and similar proceedings that involve a number of disputants being represented by an intermediary.

Litigation funding

1.6 ‘Litigation funding’, as used in the terms of reference and in this report, refers to an arrangement between a commercial litigation funder and one or more potential litigants to pay the costs of the litigation in return for a share of the award if the claim succeeds. Arrangements of this type are also known as ‘third-party litigation funding’ and ‘third-party financing’ because the litigation funder is not a party before the court—it is a commercial entity that does not represent the litigant and has no other interest in the litigation.

1.7 Over the past 20 years, litigation funders have become an accepted feature of the legal system. They enhance access to justice by reducing financial risk and postponing or removing the cost barrier to participation.^[2]

1.8 In this report, ‘litigation funding’ does not refer to the financing of legal claims by a party that does not hold itself out in the marketplace as a litigation funder. Private loans to a plaintiff to assist in meeting the costs of bringing proceedings, or other private financial undertakings, are not included. In addition, ‘litigation funder’ does not refer to a government agency or an insurer, or a lawyer working pro bono or under a ‘no win, no fee’ costs agreement.^[3]

Contingency fees

1.9 The Commission has been asked to report on whether removing the existing prohibition on law firms charging contingency fees (except in personal injury, criminal and family law matters and other areas in which contingency fees would be inappropriate) would help to mitigate the issues presented by the practice of litigation funding. These issues have been identified during the reference as:

• the selection of cases to fund

• the amount charged

• the priority given to the funder’s commercial interests over the plaintiff’s or class members’ interests.

1.10 ‘Contingency fees’ has a specific meaning in this context. It refers only to the practice of charging clients a percentage of the amount recovered if the claim is successful. While this is standard practice among litigation funders, lawyers are not permitted to charge on this basis. It has been suggested that contingency fees may improve access to justice by providing a means of financing legal claims that are not viable investments for litigation funders.

1.11 Currently, legal costs can depend on the outcome of the litigation, but the amount that may be charged is based on the lawyer’s regular fee, not on the amount recovered on the client’s behalf. If the claim succeeds, a lawyer acting under a ‘no win, no fee’ or ‘conditional’ cost agreement charges an amount based on their regular fee for the work done, plus an ‘uplift fee’ of up to an additional 25 per cent of the regular fee. Law firms commonly charge on a ‘no win, no fee’ basis in class actions, including when a litigation funder is involved.

Group proceedings (class actions)

1.12 In Victoria, a ‘group proceeding’ is the procedure whereby a single representative can bring or conduct a claim on behalf of others in the same, similar or related circumstances. Procedures of this type are commonly called ‘class actions’, so this report refers to group proceedings as class actions except when discussing specific provisions in legislation.

1.13 Class actions provide access to justice for class members by allowing them to share the costs of taking legal action, each paying less than the cost of bringing separate proceedings. Combining multiple claims into a single class action also reduces the defendant’s costs and the court’s caseload.

1.14 Australia’s first class action regime was established on 4 March 1992, when part IVA of the Federal Court of Australia Act 1976 (Cth) came into effect. It applies to class actions brought under the jurisdiction of the Federal Court of Australia and is based on the recommendations of the Australian Law Reform Commission in its seminal 1988 report Grouped Proceedings in the Federal Court.^[4]

1.15 A similar regime has operated in Victoria since 1 January 2000, enabling class actions to be conducted under the jurisdiction of the Supreme Court of Victoria. It was initially established by Supreme Court rules.^[5] Previous rules had allowed for a representative action procedure but had been interpreted narrowly and fell into disuse.^[6] The Victorian Parliament subsequently passed the Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 (Vic), which introduced part 4A into the Supreme Court Act.^[7]

1.16 Part 4A of the Supreme Court Act is substantially the same as part IVA of the Federal Court Act. Although the terms of reference concern the operation of Victorian law, most class action litigation has been conducted in the Federal Court, and some of the most significant decisions have been made under the Commonwealth legislation. As the two regimes are similar, the Commission has drawn from the experience of both jurisdictions in preparing this report.

1.17 The Commission has also taken into account the class action regimes that were introduced in New South Wales^[8] in 2011 and in Queensland^[9] in 2017. They are also modelled on the Commonwealth legislation.

The Commission’s process

Division

1.18 The Commission Chair exercised his powers under section 13(1)(b) of the Victorian Law Reform Commission Act to constitute a Division to guide and oversee the conduct of the reference. The Commissioners who joined him on the Division were: Helen Fatouros; His Honour David Jones AM; Alison O’Brien; and the Hon. Frank Vincent AO QC. All Commissioners considered and approved this report.

Consultation paper

1.19 The Commission published a consultation paper on 17 July 2017 which posed a series of questions and invited written submissions by 22 September 2017. On request, submissions continued to be accepted after this date until 10 December 2017.

1.20 In preparing the consultation paper, the Commission was greatly assisted by the insights given by lawyers, litigation funders, judicial officers, academics and regulators during informal discussions held in May and June 2017. The paper was otherwise based on an examination of case law, relevant literature and the reports of earlier reviews.

Submissions

1.21 The Commission received 36 submissions, and they are listed at Appendix A.

Consultations

1.22 The publication of the consultation paper marked the beginning of formal consultations. Lawyers, litigation funders, academics and regulators were invited to participate in a series of roundtables in September and October 2017. Class members and others who could discuss the issues from a client’s perspective attended a roundtable on 31 October 2017 to share their experience of the class action process and their views on the need for reform.

1.23 In addition, separate discussions were held with judges and other contributors throughout the reference. The consultations are listed at Appendix B.

Other reviews

1.24 Class actions, litigation funding, and the ban on law firms charging contingency fees have been subjects of protracted debate and various reviews over the past 25 years. Three reviews in particular have stimulated and shaped discussion of the issues and are frequently mentioned in this paper:

• the Australian Law Reform Commission’s report Grouped Proceedings in the Federal Court (1988)^[10]

• the Victorian Law Reform Commission’s Civil Justice Review (2008)^[11]

• the Productivity Commission’s report Access to Justice Arrangements (2014).^[12]

Australian Law Reform Commission (1988)

1.25 The Australian Law Reform Commission’s report on grouped proceedings in the Federal Court put forward recommendations for a class action regime and included a draft Bill to establish it. As noted above, part IVA of the Federal Court Act is broadly based on that report.

1.26 Today, the report remains the first point of reference for discussion about the objectives of the Commonwealth’s class action regime, and the Victorian and other regimes that have been based on it, and the merits of proposed reforms.

1.27 In a subsequent report on the adversarial system of litigation, published in 2000, the Australian Law Reform Commission (ALRC) discussed the procedural and ethical issues which arise in class actions and made recommendations to improve efficiency, transparency and fairness. It did not support the lifting of the ban on lawyers being able to charge contingency fees.^[13]

Victorian Law Reform Commission (2008)

1.28 In 2008, the Victorian Law Reform Commission completed a wide-ranging review of the civil justice system. The report contained 177 recommendations to make civil litigation cheaper, simpler and fairer. Many were implemented by the Civil Procedure Act 2010 (Vic). Among the recommendations were:

• the introduction of new requirements for the disclosure of the identity of litigation funders and insurers exercising control over proceedings^[14]

• legislative amendments to improve remedies in class actions^[15]

• a call to reconsider the prohibition on lawyers charging contingency fees.^[16]

1.29 The Commission has revisited some of the issues that it examined during the 2008 review. Developments in class action procedure, the commercialisation of law practices and the growth of the litigation funding industry have substantially changed the context within which they need to be considered.

Productivity Commission (2014)

1.30 The Commonwealth Government has before it recommendations made by the Productivity Commission in its report Access to Justice Arrangements. The report discussed dispute resolution in Australia, with a focus on constraining costs and promoting access to justice and equality before the law. Private funding of litigation was among the comprehensive range of issues addressed by the report.

1.31 The following recommendations of the Productivity Commission are of particular relevance to the current review:

• establish a licence for litigation funding companies to verify their capital adequacy and properly inform clients of relevant obligations and systems for managing conflicts of interest

• remove the ban on lawyers being able to charge contingency fees, except in family and criminal law matters, and apply a percentage cap on a sliding scale

• amend court rules to ensure that the court’s discretionary power to award costs against non-parties, and obligations to disclose funding agreements, apply equally to lawyers charging a contingency fee and litigation funders.^[17]

Australian Law Reform Commission (2017)

1.32 On 15 December 2017, the Commonwealth Attorney-General announced that he had asked the ALRC to inquire into class action proceedings and third-party litigation funders. The terms of reference for the inquiry embrace a number of issues that are discussed in this report and reflect the Commonwealth’s broader jurisdiction to regulate the litigation funding industry. The inquiry is to be completed by 21 December 2018.

1.33 Appropriately, the Victorian Law Reform Commission’s terms of reference focus on the powers and practices of the Supreme Court of Victoria. In considering reforms, the Commission has taken into account a number of matters that are also specified in the ALRC’s terms of reference, notably conflicts of interest and cost controls, but is necessarily doing so from the perspective of Victoria’s jurisdiction.

1.34 While the Commission has been asked to report on the question of whether lifting the ban on law firms charging contingency fees would assist to mitigate the issues presented by litigation funding, the ALRC has been asked to report on legal costs more extensively, namely ‘the costs charged by solicitors in funded litigation, including but not limited to class action proceedings’.^[18]

1.35 The Commission met with the President of the ALRC and staff following the institution of the ALRC inquiry.

International comparisons

1.36 The challenges and reform options that the terms of reference raise are being addressed internationally. While it is wrong to expect that replicating the policies and laws of another country will create the same results in Victoria, it is prudent to take account of overseas experience when exploring ways to resolve local issues.

1.37 The experience of three overseas jurisdictions is particularly relevant to this review:

• The United States, because the Australian Law Reform Commission drew from the law and experience of the United States when recommending a class action regime for Australia. The legal profession in the United States has long been able to charge contingency fees and—unlike plaintiffs in Australia, Canada and the United Kingdom—plaintiffs in the United States do not face the risk of paying the other side’s costs if the litigation is unsuccessful.

• England and Wales, which has a national self-regulatory scheme for litigation funders overseen by the Association of Litigation Funders of England and Wales. England and Wales has recently removed the blanket prohibition on lawyers being able to charge contingency fees, to a muted response from the legal profession. In addition, there is extensive use of ‘after the event’ insurance. Comparisons must be made with care, because the litigation funding market is quite different to that in Australia for a number of reasons, and so are the issues.

• Canada, which does not have a large litigation funding industry, and now also allows lawyers to charge contingency fees, although the regulations vary between the provinces.^[19] Contingency fees are mainly charged in personal injury actions^[20] but are less common in Canada than the United States. In Ontario, a public fund provides funding for certain class actions.

1.38 These and other features of the approaches taken by other countries are considered in this report where relevant to the issues under discussion.

National context for reform

The need for a nationally consistent approach

1.39 Although the terms of reference properly concern proceedings in Victorian courts, decisions about whether to introduce reforms, and which are most suitable, need to take national implications into account. The Commission agrees with the Law Council of Australia’s observation that:

For the legal system to be seen as enabling access to justice and for the community to be confident in the justice system, we should have consistent regimes throughout Australia as much as possible. ^[21]

1.40 The reasons are well established and uncontroversial yet bound to be revisited whenever reforms to state and territory law are proposed. Without exception, the views expressed in submissions and during consultations for this report either called for, or implied there should be, a nationally consistent approach to proceedings funded by litigation funders and class actions.

1.41 While views differed about whether regulation of litigation funders is necessary, it was made clear that Victoria should not act unilaterally. Most submissions called for the national regulation of the litigation funding industry, and the Commission agrees.^[22]

1.42 With regard to class actions, stakeholders observed that consistency:

• provides greater certainty, of benefit to all stakeholders^[23]

• reduces the likelihood of forum shopping and the making of borderline claims to attract a particular jurisdiction^[24]

• encourages the development of national jurisprudence as to the important procedural and other issues that arise.^[25]

1.43 Clearly, the class action regimes in Australia are intended to operate in a nationally consistent way because they have been established by similar legislation, first enacted in 1992 as part IVA of the Federal Court Act. This has enabled national jurisprudence to develop, as noted by the Supreme Court of Victoria:

Sensibly, State legislation mirrors (almost entirely) the federal model, allowing learnings in the federal sphere to be translated to the State sphere and vice versa. There is a constant cross-pollination of decisions and principles derived from those decisions.^[26]

1.44 Having nationally consistent class action regimes, with a common procedural form, does not mean a prescriptive approach should be taken to case management. One of the strengths of Australia’s class action regimes is the court’s ability to respond flexibly in response to the circumstances of each case. In Victoria, the Supreme Court has a broad power under section 33ZF of the Supreme Court Act to ‘make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding’. The Court has deliberately maintained significant flexibility in its class actions practice:

Each case requires individual management adapted to its peculiar features, such as proceedings involving:

• A large class where the identity of each individual is at the time of commencement unknown or a small class of clearly identifiable individuals 


• A single defendant or multiple defendants 


• A complicated factual basis or relatively straightforward proceeding 


• A class of individuals with litigation and commercial experience seeking redress in relation to commercial dealings or a class of individuals with personal injuries who have never previously engaged with the court system

• A litigation funder or where the plaintiff’s lawyers are acting on a [no win, no

fee] basis.^[27]

1.45 The Federal Court judges with whom the Commission consulted also stressed the importance of being able to respond flexibly and of avoiding overly prescriptive legislative amendments and procedural guidance.^[28]

1.46 Although the legislation underpinning class actions in Australia today is substantially unchanged since the Commonwealth regime was introduced in 1992, the types of proceedings that are now brought before the courts, and the way they are financed and structured, are not as envisaged at that time.^[29] Justice Jack Forrest reflected on the difference at a recent panel discussion:

If you’re ever minded to read the Law Reform Commission Report of 1988 which preceded the introduction of Part IVA of the Federal Court Act, you’ll think it was drafted by someone living on Mars. It has no resemblance now to how we conduct class action litigation in this country at all. It envisaged open classes, and it envisaged mass tort claims, and really no more than that.^[30]

1.47 Courts have been able to rely on broad statutory powers, and their inherent powers, to adapt to changing conditions arising from the growth of the litigation funding industry, legal entrepreneurialism, technological change and government policy decisions. There is strong support among stakeholders for the courts to continue to be able to respond flexibly on a case-by-case basis—while also supporting a nationally consistent approach where possible.

The Commission’s approach

1.48 The Commission does not recommend major reform to the Supreme Court’s powers, procedures and practices in funded proceedings and class actions. The Court does not seek it and few contributors to the review have called for it.

1.49 Over time, the management of class actions has improved. Courts, law firms and litigation funders have learnt through experience, legal procedures have become well established and the body of case law has grown. Issues that were problematic a decade ago have been resolved; many challenges to the fair conduct of class actions have been overcome.

1.50 The Commission’s recommendations support the role of the Supreme Court in class actions as it has evolved, especially in ensuring that the interests of unrepresented class members are taken into account throughout the proceedings. Further recommendations are made regarding other types of proceedings in which funders may be involved.

1.51 The recommendations are not intended to entrench current practices at the expense of innovation, but to underpin best practice as it is perceived now and may develop in the future. If implemented, they would:

• establish express statutory powers for the Court in place of reliance on its discretionary powers

• introduce more prescriptive requirements to provide funding information to the Court and class members

• align practices and powers with those in the other jurisdictions with class action regimes to support national consistency.

1.52 The need for each recommendation is discussed later in the report, yet the following recurring themes will be apparent in the reasons for reform:

• The number of law firms and litigation funders involved in class actions is increasing. Clear statutory powers and more comprehensive court procedures are likely to assist newcomers to understand the court’s role, what is expected of them, and the differences between class actions and other forms of litigation.

• While the ability to rely on broad discretionary powers enables the court to respond flexibly, it also creates opportunities for legal dispute about the matters for decision, adding to the legal costs borne by the parties. Further, some important developments in court practices do not have express statutory footing and could be open to legal challenge.

• A nationally consistent approach to class actions should be transparently so, especially with the growth in the number of jurisdictions with class action regimes. Otherwise, importance will be attached to real or apparent differences, which could encourage forum shopping.

1.53 Before turning to the substantive recommendations, the Commission wishes to make clear that, even though it is essential that the Court is able to respond flexibly to the circumstances of each class action proceeding, a nationally consistent approach remains desirable.

Recommendation

1 The recommendations in this report to amend the Supreme Court Act 1986 (Vic) and the Supreme Court of Victoria’s practice note on class actions31 should be implemented with the aim of advancing the nationally consistent regulation and conduct of class actions.

Structure of this report[31]

1.54 The report examines the regulation of proceedings funded by litigation funders, followed by a discussion of whether contingency fees would mitigate litigation funding issues. It then turns to the regulation of class actions. Court resources are discussed at the conclusion of the report.

1.55 Chapter 2 discusses the effect that litigation funders have had on improving access to justice and the regulatory challenges presented by the growth of the litigation funding industry. The introduction of a participant who is not a party to the proceeding, but has a financial stake in how it is conducted and the result achieved, changes the dynamics of the proceeding and raises the risk that it will not be a fair process or produce a fair outcome. Calls for national regulation, and proposals concerning disclosures to the court and the parties, and cost controls, are discussed in this context.

1.56 Whether allowing lawyers to charge contingency fees would mitigate issues with litigation funding practices is examined in Chapter 3. The Commission concludes that, in principle, lawyers should be able to charge contingency fees, subject to regulation, because it would provide another funding option for clients who are unable to bring proceedings without financial assistance. The ban has been the subject of debate for many years and is a national issue which involves broader considerations than the impact on litigation funding. However, there is scope for Victoria to introduce contingency fees for lawyers within class actions to enable a broader range of claims to be brought, without lifting the ban unilaterally, and a proposal for doing so is set out in the second part of the chapter.

1.57 Chapters 4 and 5 discuss class actions in Victoria. Chapter 4 considers improving procedural efficiencies to ensure that litigants are not exposed to disproportionate cost burdens. Proposals regarding certification and the management of multiple class actions and settlement distribution are discussed. Because of the representative nature of class action proceedings, it is also important that the parties running the proceedings on behalf of class members are accountable to them. The chapter examines the role of the representative plaintiff’s lawyers, the litigation funder, the representative plaintiff and the court in class actions, and discusses ways to improve accountability. It concludes with proposals to improve communication with class members to ensure that they are aware of any risks or costs involved in proceedings, and can protect their interests accordingly.

1.58 Chapter 5 responds directly to the issue of disproportionate cost burdens for litigants raised in the terms of reference. It discusses how the risks of losing and the costs of winning, inherent in litigation, are structured in class actions. As class members have little ability to negotiate these costs, the supervisory role of the court is important in ensuring that costs are fair and reasonable. The Commission makes recommendations to strengthen the court’s role.

1.59 In preparing this report, the Commission was asked to consider the implications of any reforms for the workload and resource requirements of the Supreme Court of Victoria. Court resources are discussed in Chapter 6, along with an overview of how technology is changing the way civil litigation is managed and funded.

1.60 Chapter 7 concludes the report.

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1. Attorney-General of Victoria, ‘Making Civil Justice Fairer for Victorians’ (Media Release, 16 January 2017).

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2. Movitor Pty Ltd (rec and mgr apptd) (in liq) v Sims (1996) 54 FCR 380; Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386.

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3. The narrow definition is determined by the terms of reference and is effectively confined to commercially available funding for plaintiffs. As noted in the submission by LCM, in some contexts the distinction between this and other sources of funding, such as funding available to defendants under an insurance policy, can be somewhat artificial: Submission 14.

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4. Law Reform Commission (now the Australian Law Reform Commission), Grouped Proceedings in the Federal Court, Report No 46 (1988).

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5. Supreme Court (General Civil Procedure) Rules 1996 (Vic) O 18A (repealed). In 1997, judges of the Supreme Court suggested to the Attorney-General that Victoria introduce legislation along the lines of pt IVA of the Federal Court of Australia Act 1976 (Cth). When this appeared unlikely to occur, the procedure was established by means of rules of court that came into operation on 1 January 2000: Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia (2000) 1 VR 545, 549 (Brooking J).

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6. Supreme Court Act 1958 (Vic) s 62(1C) (repealed); Supreme Court Act 1986 (Vic) ss 34, 35 (repealed). See also Victoria, Parliamentary Debates, Legislative Council, 4 October 2000, 431 (Marsha Thomson, Minister for Small Business).

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7. Although the amending legislation was passed and received Royal Assent in November 2000, it was deemed to have come into operation on 1 January 2000: Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 (Vic) s 2(2).

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8. Civil Procedure Act 2005 (NSW) pt 10. It commenced on 4 March 2011.

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9. Civil Proceedings Act 2011 (Qld) pt 13A. The new class action regime commenced on 1 March 2017.

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10. Law Reform Commission (now the Australian Law Reform Commission), Grouped Proceedings in the Federal Court, Report No 46 (1988).

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11. Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008).

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12. Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72 (2014).

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13. Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) 527–553; Recommendations 78–82.

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14. Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008) 461, 471–2; Recommendation 86.

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15. Ibid 521–60; Recommendations 101–-7.

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16. Ibid 687–8.

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17. Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72 (2014) vol 2, 601–37; Recommendations 18.1–18.3.

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18. Australian Law Reform Commission, Australian Law Reform Commission Terms of Reference—Inquiry into Class Action Proceedings and Third Party Litigation Funders (15 December 2017) <https://www.alrc.gov.au>.

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19. Law societies across Canada regulate the amount, or percentage, a lawyer can charge to a client under a contingency fee agreement. For example, the British Columbia Law Society Rules 2015 state that, unless a court otherwise orders a higher remuneration, a lawyer cannot claim more than 33¹/₃% of the amount received for any personal injury or wrongful death arising out of a motor vehicle accident, and no more than 40% in any other claim for personal injury or wrongful death: pt 8, r 8–2(1).

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20. Law Society of Ontario, Seventh Report of the Advertising & Fee Arrangements Issues Working Group, Contingency Fee Recommendation Report (November 2017) 12 <http://www.lsuc.on.ca/advertising-fee-arrangements>.

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21. Submission 21 (Law Council of Australia).

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22. See, eg, Submissions 19 (US Chamber Institute for Legal Reform), 26 (Australian Institute of Company Directors). See also Victorian Law Reform Commission, Access to Justice—Litigation Funding and Group Proceedings, Consultation Paper (2017) Ch 2. Some suggestions were made that Victoria should regulate unilaterally, but only in the absence of action by the Commonwealth.

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23. Submission 12 (Allens).

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24. Submissions 15 (Phi Finney McDonald), 30 (Supreme Court of Victoria).

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25. Submission 15 (Phi Finney McDonald).

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26. Submission 30 (Supreme Court of Victoria).

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27. Ibid.

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28. Consultation 2 (Judges of the Federal Court of Australia).

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29. For example, while the Australian Law Reform Commission (ALRC) envisaged mass tort class actions being run on an open basis, the most prevalent types of class action filed in the Federal Court since the introduction of the regime have been investor and shareholder class actions: Vince Morabito, An Empirical Study of Australia’s Class Action Regimes, Fifth Report: The First Twenty-Five Years of Class Actions in Australia (July 2017) 39–40. Closed class actions, although declining in use since October 2013, have also been common in Federal Court proceedings. Unlike open class proceedings (which were envisaged by the ALRC), closed class actions allow participation in proceedings to be restricted by reference to funding criteria, for example, that the class member has executed a funding agreement.

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30. Panel discussion ‘Achieving Finality to Class Action Litigation’ (IMF Bentham and UNSW Class Action Conference, Sydney, 1 June 2017) <http://www.imf.com.au/newsroom/class-action-centre/full-post/class-action-centre/2017/06/24/panel-discussion-achieving-finality-to-class-action-litigation>.

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