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

6. Court resources

Introduction

6.1 The Commission recommends reforms aimed at improving procedural efficiency, strengthening accountability and controlling costs in class action proceedings. In this chapter, the implications of these recommendations for the workload and resource requirements of the Supreme Court are considered, as required by the terms of reference.

6.2 Most of the recommendations in this report concern the Court’s role and powers, primarily in class actions. Some will have an impact on the level of legal and administrative support needed in managing proceedings of this type; others will directly affect the judge’s role. While additional resources will be needed to implement the recommendations, the Commission expects there will also be savings from improvements to procedural efficiency.

6.3 The Supreme Court has expressed a commitment to innovation and excellence and is upgrading the technology it uses and streamlining its processes. Changes in technology are improving the efficiency of court proceedings, and are beginning to affect access to the legal system generally and the types of class action that are being instigated. These developments are perhaps most visible in the United States. If they become more prevalent in Australia, they could stimulate new debate about the place of class actions in our legal system. This chapter concludes with an overview of these trends.

Resource implications of the Commission’s recommendations

Current allocation of resources

6.4 Class actions represent a small fraction of the Supreme Court’s workload, with an average of five being filed each year. More than 6000 cases were initiated across the Court in the financial year ending 30 June 2017.^[1] However, compared to other cases, class actions are significantly more resource-intensive, and often require extensive judicial case management.

6.5 At the heart of the Court’s approach to facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute is differential case management. The resources required vary considerably, both between cases and over the course of a proceeding. Accordingly, the Court allocates staff as necessary rather than retaining a permanent support team.

6.6 In addition to their other duties, two legally trained members of staff have been allocated ongoing roles as Class Actions and Major Torts Coordinator and Commercial Court Class Actions Coordinator. They assist in the management of class actions in the Common Law Division and the Commercial Court respectively. Their roles are to serve as contact points for the public and the profession, which saves time for practitioners and facilitates registry processes, and to provide support directly to members of the Court, which allows for the best use to be made of judicial time in managing proceedings.

6.7 When a number of class actions are before the Court at the same time, resources are stretched and the level of support suffers. Staff are often removed from other areas of the Court to deliver judgments quickly and ensure the continuing progress of the class action case. While this has been a highly effective measure, it reduces the availability of research and associate support in the areas of the Court from which the staff are drawn.^[2]

6.8 In its submission, the Supreme Court identified a need for additional legally qualified staff to support the judiciary and provide better services to the profession. This would reduce the cost of class action litigation overall, and improve access to justice. The Commission considers that, in implementing the recommendations of this report, the Court will require additional staff to work on class actions.

6.9 The Supreme Court’s submission also identified the benefit of referring discrete issues arising in class actions to specialised areas or offices of the Court, where necessary.^[3] For example, the expertise of the Costs Court and Funds in Court have been called on to assist judges in some class actions. The Commission encourages continued referral of certain issues to specialised areas of the Court, subject to the availability of resources.

Recommendations that affect the Court

6.10 The recommendations in this report that affect the Court fall into three categories:

• procedural changes, to improve efficiency, accountability and national consistency

• better information for, and communication with, the public

• legislative changes to clarify and strengthen the Court’s powers.

6.11 The resource implications for each differ and are discussed below.

6.12 All of the changes will benefit from consultation with stakeholders about their introduction. The Commission notes that the Court has established a class action user group drawn from the legal profession; it convenes every 12 to 18 months, and the Court has found the group to be quite constructive.^[4] The user group could be a useful forum for consulting about amendments to the practice note on class actions (Supreme Court Practice Note), or the production of materials for class members, or any other changes that affect the way in which class actions are conducted and managed.

6.13 The Commission considers that consultation with the user group about the recommendations would be even more helpful if the membership were expanded to include class members. Clearly, class members can provide advice on recommendations concerning the information provided to the public, and how it is communicated. In addition, as the costs of proceedings are generally paid from the settlement or judgment amount before class members receive their share, class members have an interest in procedural changes that will improve efficiency and transparency.

Recommendation

30 The Supreme Court should consider expanding the class action user group to include individuals with experience in class actions, either as a class member or a representative plaintiff, particularly to consult on the implementation of the Commission’s recommendations on Court powers, procedures and services.

Procedural changes

6.14 The Commission recommends that the Supreme Court consider amending the Supreme Court Practice Note.^[5] Some of the changes will clarify the Court’s expectations and procedures, providing guidance without reducing the Court’s flexibility.^[6]

6.15 Other changes will introduce new procedural requirements. New disclosure obligations will ensure that the Court, and class members, are routinely informed about funding arrangements or other matters that may affect the way in which the proceedings are conducted or resolved.^[7] The recommendation that the Supreme Court Practice Note should specify additional matters that affidavits in support of settlement approval should address will also improve transparency, as well as efficiency.^[8]

6.16 While the task of introducing the amendments will require the time and expertise of legally qualified staff, the ongoing resource implications for the Court are not expected to be onerous and may produce savings.

Information for, and communication with, the public

6.17 The Court is likely to require additional resources to implement the Commission’s recommendations about information that is made available to class members and the community.

6.18 Preparation by the Court of standard form opt-out and settlement notices, as recommended, is a discrete task that will require in-house expertise and the resources to engage an appropriately qualified contractor or consultant.^[9] It should not have ongoing resource implications.

6.19 In addition, the Commission’s recommendations that the lawyers for the representative plaintiff provide a Class Action Summary Statement and, if a litigation funder is involved, a Funding Information Summary Statement,^[10] will require the Court to identify what details these statements should contain. Then there will be an ongoing administrative burden in ensuring that the statements are provided.

6.20 The Commission proposes that the standard form notices and summary statements be published on the Court’s website.^[11] This will create an ongoing administrative responsibility, to ensure that the information is published. However, this could be incorporated into the existing duties of staff who maintain the information about class actions on the website.^[12]

6.21 Similarly, with regard to the resource implications of upgrading and managing the Court’s website, no additional information technology resources should be necessary. The Commission notes that its recommendation falls within the ambit of technological changes that are currently underway in the Court, which includes a new website that will be delivered in 2018.^[13]

Court powers

6.22 A number of recommendations concern the Court’s role. Some clarify existing powers and may increase efficiency by avoiding the delays and disputes that can arise where there is uncertainty.^[14] Efficiencies may also be achieved by the introduction of recommended new own motion powers to order that a proceeding no longer continue as a class action, and to replace the representative plaintiff with another class member.^[15] The other recommendations that affect the Court’s role are for incremental changes that do not depart substantially from the powers currently available to courts under other Australian class action regimes. They include recommendations that:

• lawyers be able to apply for a common fund for the payment of costs that they incur for and on behalf of their clients

• the Court have the discretion to make orders about the distribution of money remaining after settlement distribution

• the Court have discretion in making an adverse costs order or security for costs order.^[16]

6.23 The overall effect of the recommendations reinforces the Court’s protective role at settlement approval, which is a role that can be onerous, and may become more so. For example, the greater prevalence of common fund orders will increase the Court’s role in reviewing risk-based costs. This trend predated this review and would have continued in its absence.

6.24 It is difficult to predict the impact of these recommended changes on the Court’s resources because the features of class actions differ and not all of the changes will be relevant in every case. As so few class actions are filed in the Court, the Commission considers that the workload implications for judges will be manageable, with appropriate research and associate support.

Conclusion

6.25 As noted above, the Court has identified a current need for more legally qualified staff to support the judiciary and provide better services to the legal profession. The Court has also submitted that, with additional resources, it could:

• develop more accessible explanations of the class action process

• develop templates for opt-out notices

• enhance digital communication.^[17]

6.26 The Commission’s recommendations will increase the need for staff to assist members of the Court, initially in developing and introducing the changes, and into the future as the Court’s protective role strengthens and it raises its profile as a source of information about class actions generally. The Class Action Coordinators for the Common Law Division and the Commercial Court have responsibilities that are affected by many of the recommendations and may need assistance for their part in responding to them.

6.27 The Commission recommends that additional legally qualified staff be assigned to support members of the Court in managing class actions. They could provide research assistance and case management assistance as required and would otherwise work in conjunction with the Class Action Coordinators in implementing the recommendations and monitoring the progress of cases, responding to enquiries from the public, and liaising with the parties.

6.28 In making this recommendation, the Commission is acknowledging that there is a resource requirement that needs to be met. It notes that the allocation of Court resources is a matter for the Court, which in turn receives funding through Court Services Victoria. The Commission is also aware that any additional allocation of resources to class actions as a result of the Commission’s recommendations may be offset by efficiencies that are expected to be achieved through the digital transformation of court processes.

Recommendation

31 The Supreme Court should consider providing additional legally qualified staff to support the role of Class Actions Coordinator in the Common Law Division and the Commercial Court in implementing the Commission’s recommendations and managing the ongoing responsibilities arising from them for the Court.

Technological innovation and the conduct and management of class actions

6.29 New technologies are rapidly changing the delivery of traditional legal services. The Law Society of New South Wales has described the pace and extent of change as a ‘tidal wave of innovation’.^[18] Automation, artificial intelligence, the rise of social media, big data, cloud computing, encrypted digital currency, blockchains and smart contracts are some of the many recent innovations changing the way lawyers work and the delivery of legal services.^[19] These innovations are being applied in the delivery of legal services to improve access and efficiency and reduce costs.

6.30 Both practitioners and clients are driving the uptake of new technology. Law firms are recognising that it can help in identifying potential clients, and lead to greater efficiencies and productivity. Consumers are demanding greater access to the legal system and the quick resolution of claims. Traditional legal models are increasingly viewed as too slow and too costly.

6.31 Across the legal market, lawyers, together with regulators, professional bodies and universities, are moving to meet the demands and challenges that come with such rapid transformation. This change is now affecting the way most court services are delivered. In the next section, the digital transformation of the Supreme Court is discussed.

6.32 The application of new technologies to legal processes is changing how class actions are managed and the types of claim that it is cost-effective for legal firms to bring. High-volume/low-value claims that previously would have been too costly to run are being brought within reach. Access to justice by the use of the class action procedure is improved and, in principle, this trend should be welcomed.

6.33 Developments in the United States, while not directly applicable to Victoria, suggest the direction in which class actions may evolve. There, reluctance on the part of regulators to pursue low-value compensation for victims of corporate misconduct combined with the ability of law firms to use new technology to quickly aggregate claims on behalf of those victims have led to a growth of high-volume/low-value class actions that was not envisaged 25 years ago.

6.34 A concerning trend is that the value of the claims to the class members can become so small that the benefit in providing access to justice is, by any measure, slight. The public interest is served only to the extent that the class action provides a means of regulating corporate activity. This was not the purpose of introducing class actions in Australia and, if the trend strengthens locally, it will raise questions about the most effective use of court resources and the role of the regulator in claims against corporate misconduct. The issue is discussed at the end of this chapter.

Technology upgrades at the Supreme Court of Victoria

6.35 The Supreme Court is undergoing a significant technological transformation that aims to put it at the forefront of technological innovation in the delivery of court services. The Supreme Court’s vision for digital transformation, under an ambitious Digital Strategy, is to design and deliver services that are more effective, less costly and more responsive for court users.

The Digital Strategy is built on the well-founded assumption that targeted investment in a number of key electronic services will improve access to justice. The Strategy is drawn from an internal needs assessment and external best practice, which together present a coherent, measured approach.^[20]

6.36 The Court aims to adapt business processes to meet both the changing expectations of the legal industry and the community and to be ready for future developments.^[21] To promote the effective use of new technologies in the conduct of civil litigation, and specifically to reduce time and costs, the Court has issued a practice note that makes it clear that it expects parties to apply technology to meeting their obligations to ensure their costs are reasonable and proportionate under the Civil Procedure Act 2010 (Vic).^[22] The practice note acknowledges that different uses of technology are appropriate across the spectrum of court proceedings and will develop over time.^[23] However, if technology is available to improve efficiencies and lower costs, parties will be expected to use it.

6.37 The digital transformation of processes in the Commercial Court has begun, and this will improve the efficiency of class action procedures. Indeed, one of the factors driving change in the Commercial Court has been the increase in complex ‘mega litigation’ including class actions and the associated resource demands. Judicial Registrar Julian Hetyey recently remarked that the reforms to enhance service delivery and manage commercial matters more effectively and efficiently had become critical:

The Supreme Court of Victoria has an extensive history of accommodating the particular needs of the business community in the management and hearing of commercial cases. This is because the Court has long recognised that certainty, predictability and timeliness are the lifeblood of commerce. And increasingly, commercial litigants and their lawyers have come to demand expedition and commerciality in decision-making.^[24]

6.38 The introduction of e-filing and a new electronic case management system will greatly improve efficiencies in class action processes. Electronic case management will allow faster and more streamlined access to case information for parties. It will also allow the Court to capture more data about matters as they progress through the Court.

6.39 Rebuilding the Court’s network infrastructure and upgrading in-court technology will enable the Court to live-stream cases, video conference and web-cast hearings in all of its 34 courtrooms. The benefits of the Court’s commitment to incorporating the use of new technologies in the context of class actions is already being experienced. The Court has introduced courtroom technology to enhance the in-court experience of the parties and the judge:

The Kinglake-East Kilmore Black Saturday class action was conducted as an electronic trial for the full 208 days of trial. The parties used electronic court books which ultimately saw 23,105 documents (including videos and sound files) in digital form loaded and 10,400 tendered. Any documents not in the e-court book could only be added in digital form. NuLegal managed the process in the courtroom. The documents, when referred to by counsel, were displayed on numerous screens in a purpose-built court room. The trial was webstreamed live so that group members did not need to travel to Melbourne CBD to observe the trial.^[25]

6.40 Class members in roundtable consultations with the Commission strongly supported the use of video links in the bushfires class action. Class members highlighted that live streaming during any court proceedings and/or trial ensured that any class member would be able to observe the progress of the case.^[26]

6.41 The Commission was told that the Supreme Court expects that, by upgrading the capabilities of all courts and allowing for digital trials, time savings of between 25 and 33 per cent will be achieved. The Court advised that within a couple of years all class actions will be run as digital trials.^[27]

Innovation in the delivery of legal services

6.42 Innovation in the delivery of legal services is helping to improve access to justice. Globally, companies and law firms are using new communications, information and data management and analysis technologies and specialised software to provide legal services differently to traditional legal practices.^[28] Sometimes referred to as ‘disrupters’ or ‘innovators’, they are not only creating greater efficiencies, they are also extending legal services to people who may not have used legal services in the past.^[29]

6.43 Social media and mainstream media are also changing the ways that lawyers promote their services and interact with clients. Law firms are developing online systems that can access millions of clients and need not confine their operations to a geographical location. Global access to legal disputes and clients is creating unprecedented opportunities, as well as global competition.

6.44 The following examples of legal services provided through online platforms and specialised software are not only lean and efficient, they are also providing greater transparency and price certainty, with fixed prices for particular services that clients can afford.^[30]

• Marketplace/Online lawyers. A range of online platforms, including websites, enable lawyers to market their services to potential clients, and applications connect clients to their lawyers. More complex platforms allow consumers to post a legal issue directly online and, through the use of algorithms, their request is matched with a lawyer who then handles the specific legal work entirely on the online platform.^[31]

• Document automation. Companies are providing clients with fixed priced online access to documents that can be customised online. There is also an increasing use of smart contracts that can fully automate transactions.^[32]

• Practice management. These platforms provide online back office support for law firms. Platforms can provide detailed case management, online communications channels, as well as time and billing management software.^[33] There is also software specifically designed for the management of class actions and settlement distribution.

• Legal research and analytics. Legal research is increasingly undertaken by artificial intelligence software. Specific legal research software is able to undertake complex legal research in seconds in response to almost any legal question. Software that provides ‘big data’ analytics is also increasingly being used in assessing legal risk management. Such software can research decades of case law and immediately uncover trends and patterns to help consider how a particular case will fare in a particular jurisdiction.^[34]

• Online dispute resolution. Platforms manage a range of disputes including divorce and parenting disputes and there are online tribunals dedicated to residential tenancy disputes.^[35]

• E-discovery. Digital tools for law firms are enhancing the process of discovery in litigation. De-duplication technology removes duplicated documents from discovery, reducing the number of discoverable documents and saving costs. Similar technology groups e-mail threads and automatically detects documents that might be privileged from production and is now considered a regular part of litigation.^[36] The Court expects parties with discoverable documents exceeding 500 pages to implement a cost-effective discovery plan incorporating the use of technology.^[37]

6.45 Adapting to automation is quickly becoming a business imperative for legal practice. Law firms that are early adopters of new technology are able to offer profoundly different services to those that rely on traditional processes. Technological innovation presents both opportunities and challenges for the courts, as observed by Justice Michelle Gordon, of the High Court, in a presentation on disruptive technology and rule of law.^[38] Justice Gordon highlighted in particular the increasing prevalence of online dispute resolution platforms and the emergence of automated decision-making technology, which can improve access to justice and efficiency but may also reduce the transparency of judicial and administrative processes.

Technology has the potential to bring enormous benefits to our legal system. But we need to embrace those benefits with the knowledge and understanding of the effects, risks and challenges that accompany technological change. Failing to consider and, where appropriate, to address the effects, the risks or the challenges is not an option. Pretending that they do not exist is also not an option. Indeed, the sooner we ask, and answer, these fundamental questions, the better it will be for the development of new tools and ideas that utilise technology, as well as for the rule of law.^[39]

6.46 Characteristics of class actions lend themselves to technological innovation. The Commission notes that the ongoing initiatives of the Supreme Court of Victoria to improve efficiency across all of its activities provides the opportunity to deliver more effective, efficient and affordable access to justice through the class action procedure in a considered and planned way.

Innovation in class actions

6.47 Class action regimes in the United States are increasingly supported and managed by independent companies that provide online registration and administration of class actions, using software developed for this purpose. Class members can submit documentation online and ask questions of an online evaluator considering their claim. They can interact with a resolution platform and the software can then facilitate the administration and distribution of the settlement.^[40]

6.48 Technology is being used in similar ways in Australia. Maurice Blackburn noted in its submission that it is increasingly making use of digital technology in the management of class action awards, implementing cost-effective and efficient settlement administration processes. All of its class action registration processes are online, which removes the risk of misplacing hardcopy materials and increases speed and accuracy in claims management.^[41] Innovative software of this type may also be able to provide objective and targeted assistance to the court, balancing fairness and cost in the settlement distribution process.

6.49 However, the combination of class action procedures and technological innovation also enables lawyers to be more ‘entrepreneurial’, where they act less as an agent in the claim and more as the initiating party.^[42] Submissions have highlighted the growing risk of the class action system being used for ‘lawyer-driven’ litigation that needs to be appropriately managed.^[43]

6.50 Many products and services are mass-produced and mass-marketed; when they cause harm, they do so on a large scale.^[44] Simply being a consumer can also mean being a member of a class action somewhere in the world. However, the potentially large settlements in mass scale class actions may not translate into benefits for the victims of the misconduct, while the actions themselves place a significant burden on the justice system.^[45]

6.51 With the ability to aggregate mass claims, there has been a significant increase in consumer class action claims in the United States that are high-volume and low-value. They are referred to as ‘negative value’ claims and are discussed below.

Negative value claims

6.52 Consumer class actions involving the food and beverages industry in the United States have increased from 20 claims in 2008 to more than 170 new claims filed, or moved to, federal courts in 2016. Commonly referred to as ‘shopping aisle class actions’, they have been brought on behalf of consumers who have been misled by labelling, packaging and advertising. While the potential damages available for individuals in such claims can be as little as a few dollars, once aggregated, these class actions have reached multimillion dollar settlements.^[46]

6.53 Research into the outcomes of class actions in the United States found that, although some types of class action provide for the automatic distribution of benefits to class members, this has almost never occurred in consumer class actions. Some consumer class actions were settled without even the potential for a monetary payment to class members.^[47]

6.54 Although the litigation culture in Australia is more conservative than in the United States, there have been recent examples of low-value consumer class actions. A class action recently brought against the manufacturer of a pain medication produced a settlement scheme providing for consumers to be compensated between $3.16 and $5.70 per product purchased.^[48] The loss suffered by one of the representative plaintiffs was valued between $185.90 and $363.35.^[49]

6.55 As noted by the Consumer Action Law Centre, class actions can be important to ensure that the full scope of wrongdoing is assessed and remedied by a court, but they might not always be the most efficient mechanism to deliver compensation. ^[50]

6.56 Allens raised concern that, where class actions are pursued for reasons other than seeking an adequate remedy for class members, there is an increased risk of the system being used for ‘speculative or reverse engineered claims’ rather than proper consideration being given to the best and most efficient way to advance class members interests.^[51]

6.57 Submissions also highlighted that class actions are not the only mechanism to facilitate access to justice for a group of affected consumers. Other mechanisms in relation to consumer claims include public action by regulators and systemic conduct investigations by industry-based ombudsman schemes that may have the ability to deliver more efficient remedies to consumers than the class action regime.^[52]

Class actions as a form of regulation

6.58 Class actions have been considered a useful deterrent to corporate misconduct in Australia.^[53] However, this is not how the Australian Law Reform Commission (ALRC) envisaged class actions would be used. The use of class actions as a form of regulation was specifically rejected in the ALRC’s 1988 report on grouped proceedings. The ALRC clearly specified that the primary goal of the scheme would be to deliver legal remedies to those who have suffered loss or damage.^[54]

6.59 Currently, regulators’ enforcement actions are guided by the broader public interest of deterring corporate misconduct, while compensation and restitution is left to private litigation. This means that, even where a regulator has taken action in court on a particular matter, individual consumers or businesses are left to seek compensation for particular harm through private litigation or through class actions.^[55]

6.60 However, as ways of providing a remedy to a victim of corporate misconduct, private litigation and class actions continue to be expensive options. The 2017 review of Australian Consumer Law identified court action as a significant barrier to consumers in seeking compensation for loss or damage. Court proceedings are often too costly and difficult for consumers, especially where foreign goods or parties are involved.^[56]

6.61 The private sector will take on the compensatory role of the regulator only in situations that provide commercial outcomes. For example, noting that individual shareholders are unlikely to be able to take legal action in response to corporate misconduct and that litigation funders invest in only a minority of possible claims, the Australian Shareholders’ Association submitted that access to justice is constrained under the class action regime.^[57]

6.62 Class actions can be extremely complex litigation. They can be long and expensive. If the remedy being sought for each class member is of little value, particularly after the costs of litigation are met, it is appropriate to question whether bringing a class action is the most effective method to achieve a fair outcome for those who have suffered loss or damage, and the most effective use of court resources. With the development of automated and online case management and settlement distribution software, regulators could consider alternative mechanisms to facilitate more effective redress than relying on private litigation and the class action system.^[58]

6.63 In a recent example, the Australian Consumer and Competition Commission used its power under section 87B of the Competition and Consumer Act 2010 (Cth) to negotiate enforceable undertakings from a group of telecommunication companies that contravened Australian Consumer Law. The regulator was able to negotiate to deliver compensation to the 58,700 affected consumers without the need to commence court proceedings.^[59] However, as the Consumer Action Law Centre pointed out in its submission, many sector-specific regulators do not have powers to obtain compensation for affected consumers, and those that do rarely exercise them.^[60]

6.64 The Commission notes that this may be a matter that the ALRC might wish to consider in its current review of the Commonwealth’s class action regime.

1. Supreme Court of Victoria, Annual Report 2016–17 (2017) 7.

   ↑

2. Submission 30 (Supreme Court of Victoria).

   ↑

3. Ibid.

   ↑

4. Consultation 4 (Judges of the Supreme Court of Victoria).

   ↑

5. Supreme Court of Victoria, Practice Note SC Gen 10—Conduct of Group Proceedings (Class Actions), 30 January 2017.

   ↑

6. Recommendations 11, 16, 22, 25, 26.

   ↑

7. Recommendations 3, 5.

   ↑

8. Recommendation 17.

   ↑

9. Recommendation 21.

   ↑

10. Recommendations 6, 23.

    ↑

11. Recommendation 21.

    ↑

12. The Class Actions Coordinators currently update the website with key information about cases and class actions generally: information provided by the Supreme Court, 18 December 2017.

    ↑

13. Supreme Court of Victoria, Digital Strategy and Implementation Plan 2015–2020 (2015); Consultation 4 (Judges of the Supreme Court of Victoria).

    ↑

14. Recommendations 15, 24, 26, 27.

    ↑

15. Recommendations 10, 14.

    ↑

16. Recommendations 8, 19, 28, 29.

    ↑

17. Submission 30 (Supreme Court of Victoria).

    ↑

18. The Law Society of New South Wales, The Future of Law and Innovation in the Profession (2017) 2.

    ↑

19. Julian Hetyey ‘”The Way Forward: Placing Innovative Ideas into Practice” Technology, Innovation and Change in the Supreme Court of Victoria’ (Paper presented at Law Institute of Victoria Future Focus Forum, Melbourne, 23 November 2017) 1.

    ↑

20. Supreme Court of Victoria, Digital Strategy and Implementation Plan 2015–2020 (2015) 4.

    ↑

21. Supreme Court of Victoria, Strategic Statement <https://www.supremecourt.vic.gov.au/strategic-statement>.

    ↑

22. Supreme Court of Victoria, Practice Note SC Gen 5—Technology in Civil Litigation, 30 January 2017, [4.1].

    ↑

23. Ibid [4.2].

    ↑

24. Julian Hetyey ‘”The Way Forward: Placing Innovative Ideas into Practice” Technology, Innovation and Change in the Supreme Court of Victoria’ (Paper presented at Law Institute of Victoria Future Focus Forum, Melbourne, 23 November 2017) 3.

    ↑

25. Supreme Court of Victoria, Digital Strategy and Implementation Plan 2015–2020 (2015) 11.

    ↑

26. The Supreme Court is aiming for all physical courtrooms to have the equipment needed for the electronic trial of any matter by 2020: Supreme Court of Victoria, Digital Strategy and Implementation Plan 2015–2020 (2015) 27.

    ↑

27. Consultation 4 (Judges of the Supreme Court of Victoria).

    ↑

28. For example, Techindex, hosted by the Stanford Center for Legal Informatics’ website CodeX, provides a curated list of legal technology companies and tech-based law firms: <https://techindex.law.stanford.edu/ CodeX>.

    ↑

29. Katie Miller, Disruption, Innovation and Change: The Future of the Legal Profession (Law Institute of Victoria, 2015) 6.

    ↑

30. Ibid 19.

    ↑

31. For example, there are companies such as UpCounsel that allow clients to collaborate directly with lawyers (online) to resolve complaints (at an estimated 60% reduced costs than through a traditional law firm model): <www.upcounsel.com/howitworks>. There are also market place platforms such as Crowd and Co that allow lawyers to directly tender to potential clients online and engage lawyers for bespoke projects: <www.crowdandco.com.>.

    ↑

32. For example, platforms such as Lawpath, which is currently delivering legal documents to over 40,000 users: <https://lawpath.com.au>. International platforms such as Legalzoom claim to have provided legal services directly to over 2 million clients: <www.legalzoom.com/country/au>. Smart contracts are increasingly used in the finance and property sector and they remove the need to draft and exchange paper contracts. In contrast to other online legal documents, the contracts are self-executing, with computer code that records the terms of the agreement on blockchain technology. The smart contract will fully automate the transaction, so that once one contract condition is satisfied, it will automatically trigger performance of another condition.

    ↑

33. For example, US company Houdini Esq provides legal software for practice management: <www.houdiniesq.com>.

    ↑

34. For example, Ravel Law provides free computer assisted legal research: <http://ravellaw.com>, and ROSS uses ‘artificial intelligence’ software to provide detailed legal research: <http://rossintelligence.com>.

    ↑

35. For example, the Dutch Legal Aid Board has developed an online interactive dispute resolution support service for family law disputes: <www.hiil.org/project/rechtwijzer-divorce-separation-netherlands>. In Canada, the Civil Resolution Tribunal provides online dispute resolution for small claims: <https://civilresolutionbc.ca>.

    ↑

36. For example, companies such as Law in Order provide software for electronic discovery as well as other online services for online court management: <www.lawinorder.com.au>.

    ↑

37. Supreme Court of Victoria, Practice Note SC Gen 5—Technology in Civil Litigation, 30 January 2017, [8.3].

    ↑

38. Justice Michelle Gordon, ‘Courts and the Future of the Rule of Law’ (Speech delivered at the Centre for Comparative Constitutional Studies Constitutional Law Conference, Melbourne Law School, 21 July 2017).

    ↑

39. Ibid 14–15.

    ↑

40. For example companies like Epiq provide online class action administration: <www.epiqglobal.com>. Other independent firms that provide a range of specific administration services for class actions include Analytics: <www.analyticsllc.com>; and JND Legal Administration: <www.jndla.com>.

    ↑

41. Submission 13 (Maurice Blackburn Lawyers).

    ↑

42. John C Coffee Jr ‘The Globalization of Entrepreneurial Litigation: Law, Culture and Incentives’ (2017) 165 University of Pennsylvania Law Review 1895, 1897.

    ↑

43. Submissions 12 (Allens), 19 (US Chamber Institute for Legal Reform).

    ↑

44. Michael Legg, ‘A Comparison of Regulatory Enforcement, Class Actions and Alternative Dispute Resolution in Compensating Financial Consumers’ (2016) 38 Sydney Law Review 311, 311.

    ↑

45. Cary Silverman and James Muehlberger, The Food Court: Trends in Food and Beverage Class Action Litigation (US Chamber Institute for Legal Reform, 2017) 1–4 <www.instituteforlegalreform.com/research/the-food-court-trends-in-food-and-beverage-class-action-litigation>.

    ↑

46. Cary Silverman and James Muehlberger, The Food Court: Trends in Food and Beverage Class Action Litigation (US Chamber Institute for Legal Reform, 2017) 4 <www.instituteforlegalreform.com/research/the-food-court-trends-in-food-and-beverage-class-action-litigation>. As an example, in January 2013, an Australian teenager posted a photo on Facebook of a ‘foot-long’ Subway sandwich he had purchased in the US. The sandwich was photographed next to a ruler which showed that the sandwich actually measured an inch short of a foot. The post went viral on the internet and within weeks lawsuits had been filed across the US by people claiming their sandwiches were also less than the advertised size. The parties reached a settlement in 2016, however the US Court of Appeals for the Seventh Circuit recently overturned the decision. See In re Subway Footlong Sandwich Marketing and Sales Practices Litigation, 869 F 3d 551 (7th Cir, 2017).

    ↑

47. Mayer Brown LLP, Do Class Actions Benefit Class Members? An Empirical Analysis of Class Actions (US Chamber Institute for Legal Reform, 2013) 2 <http://www.instituteforlegalreform.com/uploads/sites/1/Class-Action-Study.pdf>.

    ↑

48. Less a 20% litigation funding fee. The settlement also provided for the costs of the scheme administrator to be deducted from the settlement distribution fund, and, if the claims of participating group members exceeded the fund, for the amounts payable to class members to be reduced on a pro rata basis. Legal costs were to be paid separately: Hardy v Reckitt Benckiser (Australia) Pty Ltd (No 3) [2017] FCA 1165 (20 September 2017).

    ↑

49. Hardy v Reckitt Benckiser (Australia) Pty Ltd (No 3) [2017] FCA 1165 (20 September 2017). The class action settled for $3.5 million (excluding legal costs and the ‘after the event’ insurance premium) and followed successful proceedings initiated by the Australian Competition and Consumer Commission: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25. In this decision, the Full Federal Court ordered Reckitt Benckiser to pay a revised penalty of $6 million (up from a $1.7 million penalty imposed by the trial judge) for making misleading representations about its Nurofen-specific pain products.

    ↑

50. Submission 24 (Consumer Action Law Centre).

    ↑

51. Submission 12 (Allens).

    ↑

52. Submissions 24 (Consumer Action Law Centre), 12 (Allens).

    ↑

53. Submission 23 (Australian Shareholders’ Association); see also Ben Slade and Jarrah Ekstein, ‘Class Actions and Social Justice: Achievements and Barriers‘ in Damien Grave and Helen Mould (eds), 25 Years of Class Actions in Australia: 1992–2017 (Ross Parsons Centre of Commercial, Corporate and Taxation Law, 2017) 281, 283–4.

    ↑

54. Law Reform Commission (now Australian Law Reform Commission), Grouped Proceedings in the Federal Court, Report No 46 (1988) 132.

    ↑

55. Submission 24 (Consumer Action Law Centre).

    ↑

56. Consumer Affairs Australia and New Zealand, Australian Consumer Law Review, Final Report (2017) 37. <http://consumerlaw.gov.au/consultations-and-reviews/review-of-the-australian-consumer-law/final-report/>.

    ↑

57. Submission 23 (Australian Shareholders’ Association).

    ↑

58. Michael Legg, ‘A Comparison of Regulatory Enforcement, Class Actions and Alternative Dispute Resolution in Compensating Financial Consumers’ (2016) 38 Sydney Law Review 311, 338.

    ↑

59. Australian Competition and Consumer Commission, Public Registers: TPG Internet Pty Ltd, Telstra Corporation Ltd, Optus Internet Pty Ltd
    
    (20 December 2017) <http://registers.accc.gov.au/content/index.phtml/itemId/1204847>.

    ↑

60. Submission 24 (Consumer Action Law Centre).

    ↑