Class Actions Australia and New Zealand

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Omni Bridgeway encourages regulation of the dispute finance industry in Australia and New Zealand.

In 2020 the Australian Government conducted a Parliamentary inquiry into the class actions regime and the role of dispute financiers in the Australian landscape. Omni Bridgeway has long supported reform of the Australian class action regime and the regulation of dispute financiers and lodged submissions to the Parliamentary Joint Committee on Corporations and Financial Services (PJC) which was established to consider regulatory reform. In 2021 Omni Bridgeway also lodged submissions to the New Zealand Law Commission for its review into class actions and litigation funding.

Following the change in the Australian Government in 2022, the new Government has unwound some of the regulatory changes implemented by the previous Government. As a result, class actions in Australia are now exempt from the managed investment scheme (MIS) regime, Australian Financial Services Licence (AFSL) requirements, product disclosure regime and anti-hawking provisions in the Corporations Act 2001.

Australian Submissions and Reports

On 30 September 2021, Treasury published exposure draft legislation responding to a number of recommendations made by the Parliamentary Joint Committee on Corporations and Financial Services in its report on litigation funding and the regulation of the class action industry and sought stakeholder views on the draft https://treasury.gov.au/consultation/c2021-211417.

On 27 October 2021, the Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill 2021 was tabled in Parliament and referred to the Parliamentary Joint Committee on Corporations and Financial Services.

On 2 September 2022, Treasury published draft regulations which propose changes to the regulation of litigation funding schemes under the Corporations Act 2001. The proposed changes include reinstating exemptions from the Australian Financial Services Licence and Managed Investment Scheme regimes for litigation funders.

Other Class Action Resources

Omni Bridgeway has extensive relationships across the finance, legal and adjacent industries. We work with leading law firms, academics, arbitrators, mediators, market analysts, economists and other experts throughout the world. Here we share links to Australian class actions commentary from a selection of leading organisations and individuals, in addition to Court decisions and our class actions blogs and videos.

Omni Bridgeway Commentary

As Australia’s leading dispute financier, we have advocated for appropriate industry regulation and governance in Australia. Our submissions to previous industry reviews and Inquiries in Australia, along with a selection of publications and podcasts on class actions, are available here.

Academia Commentary

Class Actions Blog

Disclaimer: The information contained in this blog is general in nature and does not constitute legal advice. We recommend that claim holders obtain advice from their lawyers on litigation funding.

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The High Court expands the scope and purpose of s596A of the Corporations Act 2001 (Cth) – who can conduct a public examination

The High Court of Australia (HCA), in a majority decision, has held that the pursuit of a claim for the benefit of some shareholders may be as valid as a claim made for all shareholders. In each situation, the claim in respect of corporate misfeasance is in the public interest because it seeks to enforce the law and protect shareholders and creditors alike.

Law Commission calls for further submissions on draft procedure for class actions

The Aotearoa New Zealand Law Commission handed down its supplementary issues paper in its ongoing review of class actions and litigation funding in New Zealand and has confirmed its view that a statutory class action regime is desirable, observing that even those submitters who were sceptical of the benefits of class actions preferred the certainty of such reform.

A False Start to Victoria's Group Costs Order Regime

Plaintiff law firms have been eagerly awaiting a decision to be handed in respect of Victoria’s group costs order legislation, which permits a plaintiff’s solicitor to be remunerated by reference to a percentage of any award or settlement obtained. The Supreme Court of Victoria has now published its first decision in respect of the group costs regime, however, has the wait been worthwhile?

Statutory price cap proposal: leaving victims of wrongdoing with nowhere to go

The Australian Government is considering the merits of legislating a minimum return to group members in funded class actions, potentially as high as 70 per cent of gross proceeds. The introduction of a 70 per cent minimum would be a completely arbitrary measure and is not supported by reference to any analysis of the negative implications for the funding of class actions or the risks being assumed by litigation funders.

It’s the insurers, not class actions, driving D&O liability insurance premiums

Brick by brick, the claim that funded class actions are the primary driver of rising directors’ liability insurance premiums is being dismantled. Even more precarious is the claim that the Commonwealth Government’s continuous disclosure reforms are the answer and will result in enormous savings for Australian business.

Explosion? What explosion? The truth about class actions

So much for the so-called ‘explosion’ in shareholder class actions backed by unscrupulous litigation funders. This claim, used liberally by sections of corporate Australia and their US big business allies to justify self-serving attacks on the litigation funding industry, was always based on dubious accounting. But now we have incontestable evidence that the ‘explosion’ is nothing more than a myth.

New Zealand Feltex case highlights importance of choosing a reliable litigation funder

The Supreme Court of New Zealand has dismissed an application for leave to appeal an “unless” order striking out the proceedings unless the claimants’ provided security for costs by a certain date. The case was a multi-party action brought on behalf of some 3,600 investors in the failed carpet-maker, Feltex Carpets Ltd (Feltex). Despite the case being funded, the security was never provided and the Supreme Court’s refusal to grant leave has effectively brought the case to an end.

Omni Bridgeway supports appropriate regulation of litigation funders in New Zealand

Litigation funding is becoming a more regular feature of the legal landscape in New Zealand, particularly in the funding of large multi-party actions. However, there are no specific legislative or regulatory provisions that apply to litigation funding and no statutory class actions regime.

The proposed cap on litigation funders’ returns would deny access to justice for many victims

A number of sensible reforms to Australia’s 30-year-old class action system are underway, with the ‘light touch’ regulatory regime that has drawn legitimate criticism starting to get a little heavier.

NZ property owners one step closer to compensation in combustible cladding class action

The Omni Bridgeway-funded class action against the manufacturer and suppliers of certain polyethylene (PE) core cladding has commenced in the High Court of New Zealand. The action seeks compensation for New Zealand property owners and lease holders who have suffered or will suffer financial loss in relation to the Alucobond PE and Alucobond Plus cladding products which are or were affixed to their buildings.

Compensation distributed to members of Williamtown Contamination Class Action

This week, the members of the Williamtown Contamination Class Action received some good news in the run up to Christmas: $57m in compensation was distributed by their settlement scheme administrator, Ben Allen of Dentons. The distributions followed from the landmark settlement achieved in February 2019 by Omni Bridgeway’s funded class action.

Queensland Supreme Court decision recognises public benefit of funded class actions

A recent decision of the Supreme Court of Queensland (Court of Appeal) held that the funding agreements between a funder and the members of a class action were not unenforceable as being against public policy and recognises the public benefit to be derived from class actions funded by a third party litigation funder.

Australian combustible cladding class actions – important information regarding Omni Bridgeway’s online registration for building owners, bodies corporate and public bodies

Building owners, bodies corporate and public bodies of properties in Australia who believe their buildings may be affected by combustible cladding will find important information on Omni Bridgeway’s Australian Combustible Cladding Class Actions webpage. The webpage contains Notices for likely class members that have been approved by the Federal Court of Australia and full details of the online registration process.

Omni Bridgeway granted an Australian Financial Services Licence under new regulatory regime for Australian class actions

Omni Bridgeway is pleased to be the first company in Australia to be granted a litigation funding Australian Financial Services Licence (AFSL). The AFSL means we are able to fund Australian class actions in compliance with the new regulations that came into force last month.

How class actions help address the cost of misconduct

In Australia, shareholder class actions are one mechanism that can be deployed when other safeguards have failed to protect shareholder rights, enhance long-term value and change behaviour for the better.

Ensuring fairness in Australian class actions – appropriate returns to group members

To improve confidence and fairness in the Australian class action system, Omni Bridgeway has recommended the introduction of a minimum return to group members of no less than 50 per cent of the proceeds from a successful action. We believe this would strike the right balance.

Licensing of litigation funders worked in the past – and it can work again

Omni Bridgeway supports the introduction of a licensing regime for litigation funders operating in Australia that includes minimum onshore capital adequacy requirements. This would increase confidence in the Australian class actions system and benefit all parties – class members, defendants and the courts.

Litigation funding reforms in Australia must strike the right balance

The role of litigation funders in the Australian class action system is currently under assault from a number of vocal pro-business advocates. Their motive is clear: remove the funders and you remove class actions against large companies.

Circularity arguments against Australian shareholder class actions ignore their significant benefits

Pro-business advocates have used ‘circularity’ arguments in their attempts to discredit shareholder class actions in Australia and prevent investors from seeking justice. In our latest blog we examine these arguments and the many significant benefits of these actions for shareholders and more broadly for Australia’s financial markets.

Cladding class actions in Australia and New Zealand gain momentum: register now

Watch Omni Bridgeway’s Gavin Beardsell in this interview with Amanda Farmer, founder of Your Strata Property, discussing two Australian class actions Omni Bridgeway is funding against manufacturers of combustible cladding products, as well as a potential combustible cladding class action in New Zealand.

Without litigation funders to back class actions, everybody loses

Litigation funding not only provides access to justice for claimants in Australian class actions but provides protection to defendants who know their costs will be paid in the event the action is unsuccessful. Funded class actions also have a number of other benefits.

Litigation funders level the playing field

Why are so many class actions bankrolled by litigation funders? Simple. Because class actions are high risk, highly complex and highly expensive.

Funder's fees put in context

The Murray Goulburn class action, taken on behalf of aggrieved unit holders in the dairy business and which settled late last year, has been cited repeatedly in the current Australian Parliamentary inquiry into class actions and litigation funding. To some, the returns generated by Omni Bridgeway, which funded the successful action, were too high. To others – including the one person in the best position to judge – they were reasonable. This article explains a number of critical factors that need to be considered.

In Australia, class actions are good for our markets – just ask the investors

No company wants to face a class action from its own shareholders. They are disruptive, time-consuming, reputation-shredding and expensive – potentially very expensive. Fortunately, there is a proven way to avoid class actions: don’t break the law.

Australian Parliamentary inquiry into litigation funding and class actions – getting the balance right

Andrew Saker, CEO of Omni Bridgeway, welcomed the opportunity to appear before the Australian Parliamentary Joint Committee on Corporations and Financial Services on 13 July 2020. The Joint Committee is inquiring into litigation funding and the regulation of the class action industry.

Corporate wrongdoing is the real reason D&O premiums in Australia are rising

Andrew Saker, CEO of Omni Bridgeway, explains how corporate wrongdoing is the real reason D&O premiums are rising in Australia.

Litigation funding returns in Australian class actions - the facts

Omni Bridgeway has welcomed the Parliamentary inquiry into litigation funding and class actions that is currently underway in Australia. It provides an opportunity to improve the Australian class action system. However, opponents of litigation funding and class actions are using the inquiry to spread misinformation, in particular about returns generated by funders on successful actions. We set out some facts.

Correcting the record – litigation funding and returns to group members in Australian funded class actions

The Parliamentary inquiry into litigation funding and class actions announced earlier this year seeks to ensure fair and equitable outcomes for claimants and group members. As a pioneer of the industry and largest funder in Australia, Omni Bridgeway fully supports these aims. Part of our business is to provide finance and access to justice to claimants and group members in class actions who lack the resources to pursue complex and costly disputes.

Conditional settlement of PFAS contamination class actions

Dispute finance plays a valuable role in the community providing access to justice for those without the means to pursue complex and costly disputes. Omni Bridgeway Limited provides non-recourse finance and strategic know-how to claimants and group members in class actions, that enables them to seek redress without risk in the event of an unsuccessful outcome.

Thousands of Queensland flood victims expected to be compensated after Omni Bridgeway-funded court action

Global disputes funder Omni Bridgeway Limited welcomed the Supreme Court of New South Wales judgment in November 2019 in the Brisbane floods class action. The court found that the claim for negligence, brought by the class representative, against each of the State of Queensland, Queensland Bulk Water Supply Authority trading as Seqwater and Sunwater Limited, was proven.

Omni Bridgeway supports litigation funding licensing proposal

Omni Bridgeway Limited welcomes the proposal outlined by the Federal Government today to require all litigation funders operating in Australia to hold an Australian Financial Services Licence (AFSL) and to conduct class actions in compliance with the managed investment scheme (MIS) regime.

IMF Bentham welcomes High Court ruling against common fund orders in funded class actions

The High Court of Australia has handed down its judgment(1) on common fund orders in the most significant ruling relating to litigation funding since the Fostif case(2). A majority of the High Court held that neither the Federal Court of Australia nor the Supreme Court of New South Wales have the power to make a ‘common fund order’ (CFO), at least not in the early stages of litigation.

IMF Bentham / UNSW Class Actions Conference 2018

Key issues in class action litigation were debated at an important conference presented under the auspices of the IMF Bentham Class Actions Research Initiative with UNSW Law. Watch the videos from the event.

IMF Class Action Conference Overview

Listing of all IMF Class Action Conference Videos

Conference Keynote Address by The Hon Justice Lee

The Hon Justice Michael Lee (Federal Court of Australia) explores the issue of whether the courts have the power to adjust litigation funders’ contractual commission rates.

CARI research “Settlement Distribution Schemes”

Cutting edge research on Settlement Distribution Schemes was presented by Associate Professor Michael Legg (UNSW Law) and Rebecca Gilsenan (Principal, Maurice Blackburn Lawyers), at the IMF Bentham Class Action Conference.

Panel discussion “Achieving Finality to Class Action Litigation”

Class action experts came together to explore issues in finalising class actions. Panel experts included: Hon Justice Jack Forrest (Supreme Court of Victoria); Professor Simone Degeling (UNSW Law); Bill Petrovski (William Roberts Lawyers); Jason Betts (Herbert Smith Freehills); Brett Jordan (Senior Technical Claims Advisor, Major Loss Financial Lines Claims, AIG Australia Limited), and was moderated by Wayne Attrill (IMF Bentham).

25 Years of Class Actions in Australia

IMF Bentham Senior Investment Manager, Wayne Attrill, discusses the development of class actions over the past 25 years, and whether we have reached another turning point in the courts’ acceptance of litigation funding of class actions.

"Litigation Funding" in Legg (ed), Resolving Civil Disputes (LexisNexis Butterworths, 2016)

In 2006 the High Court of Australia, by a majority in the renowned Fostif decision, approved of a litigation funder agreeing by contract to meet the costs of a legal proceeding in return for a share of any sums recovered. This chapter examines the growth, developments and regulation of the litigation funding industry.

Presentation "Advanced Issues in Class Actions" - The College of Law (2016) - by W Attrill

In the presentation to the College of Law, IMF Senior Investment Manager, Wayne Attrill, discusses some of the advanced issues in class actions including the role of a funder in facilitating class actions, "competing" class actions, common fund orders and the regulation and future of litigation funding in class actions.

Funding Justice - The Role of Litigation Funders in Class Action Proceedings (2015) - by W Attrill

The importance of litigation funding to facilitate access to the civil justice system in Australia is now widely accepted. The article explains the funding process and the assistance that a funder can bring to funded proceedings, to the benefit of clients and lawyers alike.

“The Regulation of Conflicts of Interest in Australian Litigation Funding” (2013) Journal of Civil Litigation and Practice - by W Attrill

In July 2013, Regulations were introduced to require funders to have "adequate practices" for managing any conflicts of interest that might arise in litigation they fund. The article gives an overview of the conflicts management regime, how it is managed and the impacts it will have for litigation funders.

Presentation "Management of Conflicts of Interest in Australian Litigation Funding" (2013) to UNSW Class Actions: Securities and Investor cases

Regulations introduced in 2013 requires litigation funders to have adequate, documented practices for managing any conflict of interest that might arise in funded litigation. The presentation provides an overview of the conflicts management regime, how it is managed and the impacts it will have for litigation funders.

Presentation "The role of Institutional Investors in Australian shareholder class actions" (2012) by W Attrill

The benefits to institutional investors and their clients of adopting a policy of active participation in relevant shareholder class actions.

Presentation "Dispute Resolution in the next 40 years - Access to justice and continuing limitations on the use of Class Actions" UNSW Law Conference (2011)

The UNSW Law Conference presentation explores the issues around the conduct and resolution of Class Actions in Australia.

“Funding Criteria for Class Actions” (2009) - The University of New South Wales Law Journal - by W Attrill, J Walker and S Khouri

IMF Bentham has financed many significant Australian representative proceedings and class actions, particularly those brought on behalf of aggrieved shareholders and investors. IMF chooses its cases with care and in this paper for the UNSW Law Journal, the funding criteria for multi-party actions are examined and discussed, including IMF's assessment of liability risks, quantum risks and enforcement risks.

Class Actions in Australia Video Series

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03-Sep-2020

Improvements to the Australian class actions regime

With a federal parliamentary inquiry underway into Australia’s class action regime and the role of litigation funding, industry experts Clive Bowman of Omni Bridgeway and Jason Betts of Herbert Smith Freehills sat down in June 2020 and debated proposed reforms to improve the class actions regime.
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03-Sep-2020

Proposed regulation of litigation funders in Australia

Class actions experts Clive Bowman of Omni Bridgeway and Jason Betts of Herbert Smith Freehills sat down in June 2020 and discussed the Australian Government’s proposals to enhance regulation of litigation funders operating in Australia.
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03-Sep-2020

Appropriate returns to group members in Australian class actions

The Australian class action system and the role of litigation funders are currently under the spotlight. In this discussion industry experts Clive Bowman of Omni Bridgeway and Jason Betts of Herbert Smith Freehills sat down in June 2020 and discussed whether any reform is needed to ensure group members receive appropriate returns from successful class actions.
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03-Sep-2020

Impact of contingency fees in Victoria - implications for Australian class actions

Victoria has recently passed legislation permitting lawyers in that State to charge “percentage-based” or contingency fees in class actions. In this discussion Clive Bowman of Omni Bridgeway and Jason Betts of Herbert Smith Freehills sat down in June 2020 and discussed the potential impact of proposals to allow contingency fees in class actions more broadly.
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03-Sep-2020

Jurisdiction over class actions in Australia involving Federal law

Class actions experts Clive Bowman of Omni Bridgeway and Jason Betts of Herbert Smith Freehills sat down in June 2020 and debated whether the Federal Court of Australia should have exclusive jurisdiction over securities class actions.
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03-Sep-2020

Class closure orders in Australian class actions

Critical issues relating to Australian class actions and litigation funding are being considered and debated due to the federal parliamentary inquiry currently underway. Class actions experts Clive Bowman of Omni Bridgeway and Jason Betts of Herbert Smith Freehills sat down in June 2020 and talked about issues relating to class closure orders.
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