Class Actions (Representative Proceedings) in the Federal Court
News: Protocol between the Supreme Court of NSW and the Federal Court
In November 2018, the Chief Justice of the Federal Court of Australia and the Chief Justice of the Supreme Court of New South Wales agreed to a protocol for communication and cooperation between the two courts in class action proceedings.
The protocol was drafted to address measures by which management of class action proceedings involving common parties and the same or similar issues commenced at or about the same time can be co-operatively managed by the two courts.
The overarching objective of the protocol is to ensure access to justice and facilitate the efficiency and effectiveness of class action proceedings in circumstances where multiple proceedings are brought in competing courts and across more than one jurisdiction.
- About Class Actions
- The Class Actions regime
- Current Class Actions in the Federal Court
- Case management of Class Actions
- NCF reforms and Class Actions
- Allocation of Class Actions
- Role of Class Actions Registrar
- Disclosure of legal costs and litigation funding agreements
- First case management hearing
- Second and subsequent case management hearings
- Alternative Dispute Resolution (ADR) and settlement
- Opt out notice
- Practice Notes
- Fees, forms and rules
- commencing a class action
Part IVA of the Federal Court of Australia Act 1976 (Cth) and Division 9.3 of the Federal Court Rules 2011 (Cth) provides a regime for commencing Class Actions in the Federal Court, which has been in place since March 1992. Since its commencement the Part IVA regime has become an effective, sustainable and well accepted system for Class Actions in Australia, including Class Actions relating to:
- shareholder and investor actions
- personal injury through food, water or product contamination, and defective products
- actions under the Migration Act
- cartel actions
- disaster actions
- consumer actions
- environmental actions
- human rights actions
- trade union actions
Current Class Actions in the Federal Court
For the current Class Actions currently before the Court, see the list of all of the Court's current Class Actions.
Case management of Class Actions
NCF reforms and Class Actions
The changes to the Federal Court's approach to case management of Class Actions are intended to reduce the delay and expense associated with Class Actions and often high level of interlocutory disputes. As part of the NCF reforms, the Federal Court has issued a new Class Actions Practice Note (GPN-CA), which builds on the former practice note. The key features of this practice note include:
- allocation of Class Actions to a docket judge and, in appropriate cases, to a designated case management judge and/or a registrar
- tailored case management to ensure the expeditious and efficient management of the class action
- disclosure requirements regarding costs agreements and litigation funding agreements both to class members (see Part 5 of the Practice Note) and to the Court and other parties (see Part 6 of Practice Note)
- guidance on communication with class members
Allocation of Class Actions
At an appropriate time after the matter is filed the matter will be allocated to a Docket Judge, who will be responsible to conduct the trial of the proceedings. The Docket Judge will be a member of the appropriate National Practice Area (NPA) (and Sub-area, if any), and will have expertise in Class Actions.
In appropriate cases (usually more large or complex Class Actions), a Case Management Judge may also be assigned to a matter, who will work collaboratively with the Docket Judge to ensure an efficient and consistent approach to the management of the proceeding.
Role of Class Actions Registrar
In appropriate cases, a Class Actions registrar may also be assigned to a class action to:
- assist in identifying any early procedural issues that may be important for the Court to be apprised of
- be a central contact point for the parties' enquiries or in relation to difficulties arising during the proceeding
- attempt to understand and address the impediments to possibly settle the matter, and to assist the parties to achieve settlement at the earliest time.
Disclosure of legal costs and litigation funding agreements
Some cases over the last few years have found the disclosure to class members of legal costs or litigation funding arrangements to be inadequate (ie. Modtech v GPT, ASIC v Richards). Through the NCF reforms, the Court is endeavoring to ensure that class members, the respondent and the Court are properly and appropriately informed of these matters. Parts 5 and 6 of the Class Actions Practice Note (GPN-CA) sets out how the Court expects disclosure should take place in a class action.
First case management hearing
The first case management hearing will ordinarily be fixed for a date within 8 weeks from filing. The extended time (usually it would be within 5 weeks from filing) allows for the fact that Class Actions are often large, complex and will require the parties to undertake a significant amount of case preparation. The first case management hearing may (where appropriate), be conducted along relatively informal lines, with an emphasis on an "exchange" between all participants.
Part 7 of the Class Actions Practice Note sets out the matters to be dealt with at the first case management hearing.
Second and subsequent case management hearings
Case management hearings are integral to the effective and efficient management of a class action. The Court expects that parties will consider and discuss with the other parties the "case management imperatives" (which are set out in the Court's Central Practice Note (CPN-1)), and the additional specific imperatives set out in Part 7 of the Class Actions Practice Note (GPN-CA) prior to the relevant case management hearing.
Alternative Dispute Resolution (ADR) and settlement
A large number of Class Actions will settle before trial. The Court expects that parties will, at the appropriate stage of the proceeding, mediate or utilise other appropriate ADR processes. After the close of pleadings, the Court will generally hold a case management hearing to investigate suitable steps for the settlement of the class action – including appropriate ADR processes.
A class action cannot settle or be discontinued without the court's approval (see s 33V(1) of the Federal Court Act). The procedure for making an application for the Court's approval of a proposed settlement is detailed in Part 14 of the Class Actions Practice Note.
Opt out notice
In accordance with s 33J of the Federal Court Act the Court must fix a date that a class member may opt out of the class action. Parties should also be familiar with Part 11 of Class Actions Practice Note and the sample form of opt out notice, which is available on the Court's website.
All practice notes are to be read with the Central Practice Note (CPN-1) which is the essential guide to practice in the Federal Court in all proceedings.
The Class Actions Practice Note, is a general practice note, which sets out the arrangements for the management of Class Actions matters within the National Court Framework (NCF). It applies to actions commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth):
Parties must also familiarise themselves with the relevant NPA practice note that the Class Action relates to:
NPA practice notes:
Other general practice notes and Court developed guides which may be relevant to this NPA include:
General practice notes:
Fees, Forms and Rules
Filing fees for commencing a proceeding in this NPA may apply. Information about Court Fees, including the fees payable and circumstances where an exemption or deferral can be given is available on the Court's website or from the Registry.
Commencing a Class Action
A class action may be commenced by filing the following forms:
Other forms specific to Class Actions include:
Form 20 – Notice of consent to be a group member
Form 21 – Opt out notice
Form 22 – Application for an Order relating to the procedure to be followed in a representative proceeding
Notice of Disclosure - Litigation Funding Agreements
All other Federal Court forms are available from the Forms webpage.