An Empirical Study of Australia's Class Action Regimes --First Report: Class Action Facts and Figures / by Prof. Vince Morabito, Dept. of Business Law and Taxation, Monash University. December 2009.
EXECUTIVE SUMMARY (Full report available for download below)
- A total of 241 Part IVA applications have been filed up to 3 March 2009 and 245 up to 30 June 2009, providing an average of 14 class action proceedings every 12 months since the Part IVA regime came into operation on 4 March 1992.
- Dividing the first 17 years of Part IVA into four equal periods of 4 years and 3 months, we find an extremely limited use of this regime in the first quarter - from 4 March 1992 to 3 June 1996 - (33 proceedings), more extensive use from 4 June 1996 to 3 September 2000 (92 proceedings) and a decreasing number of Part IVA proceedings ever since: 63 from 4 September 2000 to 3 December 2004 and 53 from 4 December 2004 to 3 March 2009.
- In no financial year, since Part IVA came into operation, have Part IVA proceedings constituted more than 0.74% of all Federal Court proceedings.
- Just over 81% of all the Part IVA proceedings filed in the first 17 years of Part IVA’s operation were filed in the Victorian and NSW Registries with 35% in the former and 46% in NSW.
- New South Wales was the leading Part IVA jurisdiction overall and in the first eight and half years of Part IVA. But 48.2% of all the Part IVA applications filed since 4 September 2000 were filed in Victoria.
- The average number of respondents has been 3.65. In 51% of Part IVA proceedings, there were multiple respondents. In the pre-Philip Morris era, 51.6% of Part IVA proceedings were brought against more than one respondent. It is interesting to note that this percentage increased to 54.8% in the post-Philip Morris period. There were both multiple respondents and applicants in 14.5% of all class action proceedings.
- The average duration of all finalised Part IVA proceedings is 698 days (approximately 23 months) whilst the median duration is 446 days (approximately 14 months). Close to 42% of all finalised Part IVA proceedings were resolved within 12 months and close to 70% were concluded within two years.
- The average duration of Part IVA proceedings filed in NSW is 817 days (approximately 27 months). This average is 39% and 81% greater than the average duration of all non-NSW Part IVA proceedings and Victorian Part IVA proceedings, which stand at 587 (approximately 19 months) and 450 days (approximately 15 months), respectively.
- Using the Federal Court’s classification of causes of action, 40.2% of all Part IVA proceedings were consumer protection applications, 16.1% were corporations applications and 14.1% were “industrial” applications.
- Employing an unofficial classification of the types of Part IVA actions (prepared by Prof. Sweeney) that have been brought over the last 17 years, we find a total of 22.4% product liability class actions followed by 17.4% of Part IVA proceedings with respect to industrial/workplace claims whilst migration cases constitute 10.3% of all Part IVA applications. Contrary to popular beliefs only 9.9% of Part IVA proceedings were shareholder class actions whilst 8.2% concerned claims pertaining to investment and property schemes and in 4.5% of the cases the impugned conduct essentially concerned investment advice provided by professional advisers.
- In the post-insurance crisis reform era (from July 2004), we saw a sharp decrease in product liability class action proceedings and a significant increase in Part IVA proceedings concerning shareholders and investors. In this post-July 2004 rankings Part IVA applications with respect to claims by shareholders are ranked first as 25% of all Federal class action proceedings, filed in this period, fell in this category followed by proceedings with respect to impugned investment advice (17.8%) and consumer protection cases (9%).
- With respect to the legal representatives of Part IVA applicants, Slater & Gordon have been involved in more Part IVA proceedings than any other firm - 49 (20.3%) - followed by Maurice Blackburn with 33 proceeding (13.6%). No other law firm or entity, on the plaintiff side, has been involved in ten or more Part IVA proceedings. But since December 2007, when it filed its first Part IVA application, the Australian Securities and Investments Commission (“ASIC”) has filed more Part IVA proceedings than any other entity including Slater & Gordon and Maurice Blackburn. These Part IVA proceedings concerned various financial products issued by entities within the Westpoint Group.
- The most frequent way in which Part IVA proceedings have been resolved is through settlement. In fact 85 (38.9%) of the 218 resolved Part IVA proceedings were settled. The next most frequent outcome of Federal class actions has been the dismissal of the proceeding. This has occurred in 46 (21.1%) Part IVA proceedings. The next three ways in which Part IVA proceedings have been resolved are as follows: the proceedings were discontinued by the applicants (39 –17.8%); proceedings were discontinued as Part IVA proceedings (26 – 11.9%) and judgments were delivered that were favourable to the applicant/class (16 – 7.3%).
- In the “second” eight and half years of Part IVA’s operation, 52.6% of Part IVA proceedings were resolved through settlements. This compares extremely favourably with the settlement rate in the first eight and half years, which was 28.8%. 4 There are significant differences between the outcomes of those proceedings run by Slater & Gordon and Maurice Blackburn and those proceedings where neither of those firms was involved. In fact, 68% of the Part IVA proceedings conducted by these two firms were settled. On the other hand, 25.8% of the class action proceedings, which did not see the involvement of either of these firms, were settled. It should also be noted that 30.4% of the class actions, not brought by Slater & Gordon and Maurice Blackburn, were dismissed whilst none of the Part IVA proceedings in which these two firms were involved were dismissed.
- There are significant differences between the way in which Part IVA proceedings have been resolved in NSW, on the one hand, and Victoria and Queensland, on the other hand. A significant proportion of NSW proceedings, 32.3%, were dismissed. On the other hand, the dismissal rates in Victoria and Queensland were, respectively, 7% and 9.5%. A similar divergence exists with respect to settlement rates. In the Queensland Registry, 57% of Part IVA proceedings were finalised through a settlement, followed by Victoria with a 56% settlement rate. In NSW, on the other hand, only 23.8% of Part IVA proceedings were finalised through a settlement.