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A class act: Queensland’s class action regime passed

15 November 2016

#Dispute Resolution & Litigation

Toby Boys

Published by Toby Boys, Wylie Thorpe

A class act: Queensland’s class action regime passed


The Queensland Parliament has passed legislation to introduce a class action regime in the Queensland Supreme Court.[i] Representative proceedings (or class actions) enable one person to bring an action on behalf of multiple claimants whose claims are in respect of, or arise out of the same, similar or related circumstances, and give rise to a substantial common issue of law or fact.

As set out in our last update, the legislation brings Queensland into line with class action regimes that have been in place for decades in the Victorian and NSW Supreme Courts and the Federal Court.[ii] This comes off the back of Queensland losing out to NSW for the high profile 2011 Flood Class Action which goes to trial in the NSW Supreme Court next year. Other high profile class actions have been commenced in the Federal Court, including the class action brought by investors in the Clem 7 tunnel against the traffic forecaster AECOM and owner operator, RiverCity Motorway.

The new regime

The Act introduces Part 13A, “Representative Proceedings in Supreme Court” into the Civil Proceedings Act 2011 (Qld) which provides for a comprehensive statutory regime to facilitate the effective conduct and management of representative proceedings in Queensland. The Act provides the following class action regime:

  • A representative proceeding may be started where:
    • 7 or more persons have claims against the same person; and
    • the claims of all the persons are in respect of, or arise out of, the same, similar or related circumstances; and
    • the claims of all the persons give rise to a substantial common issue of law or fact.[iii]
  • There is generally no requirement for a person to consent to being a group member in representative proceedings.[iv]
  • A person must, however, be given notice of the commencement of a representative proceeding and the right of group members to opt out.[v]
  • The court must fix a date by which a group member may opt out of a representative proceeding.[vi]
  • A judgment or court approved settlement will bind all members of the group other than those persons who have opted out.[vii]
  • In making an award for damages, the court must provide for the payment or distribution of the money to the group members entitled.[viii]
  • In providing for the distribution of money to group members, the court may provide for the constitution and administration of a fund consisting of the money to be distributed.[ix]

What does this mean for you?

Class actions raising a cause of action in Queensland will be able to be brought in the Queensland Supreme Court. The regime will commence on a date to be fixed by proclamation and will only apply to proceedings commenced after the commencement of regime (even though the cause of action may have arisen before the commencement of the regime).[x]

The regime will be closely monitored by litigation funders, particularly following the decision in Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Limited[xi] where the Full Federal Court approved a ‘common fund’ doctrine finding that all class members should pay the same pro rata share of legal costs and funding commission regardless of whether they had entered into a funding agreement with the litigation funder.

Businesses should check that their insurance policies provide cover for class actions and consider the parts of their business where they may be vulnerable to class actions.

Authors: Toby Boys and Wylie Thorpe

[i] Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld) which amends the Civil Proceedings Act 2011 (Qld).

[ii] In the Federal Court of Australia under the Federal Court of Australia Act 1976 (Cth) (Part IVA), in Victoria under the Supreme Court Act 1986 (Vic) (Part 4A) and in New South Wales under the Civil Procedure Act 2005 (NSW) (Part 10).

[iii] Section 103B “Starting proceeding”.

[iv] Section 103D “Whether consent required to be a group member”.

[v] Section 103T “When notice must be given”.

[vi] Section 103G “Right of group member to opt out”.

[vii] Section 103X “Effect of Judgment”.

[viii] Section 103V “Judgment”.

[ix] Section 103W “Constitution etc. of fund”

[x] Section 2 “Commencement and Section 111 “Application of pt 13A”.

[xi] Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Limited [2016] FCAFC 148.


Contact:

Brisbane
Toby Boys, Partner 
T: +61 7 3135 0649
E: toby.boys@holdingredlich.com

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Toby Boys

Published by Toby Boys, Wylie Thorpe

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