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Murphy, Justice Bernard --- "Access to justice under the Part IVA regime" (FCA) [2016] FedJSchol 4

aThis demonstrates that the class action process works. It shows that when it is properly managed, many substantially disadvantaged and affected people can recover compensation that they would otherwise not have been able to obtain.a

  • There has not been one judgment of a superior court in the past 25 years which points to any systemic problem with the operation of Part IVA, and there have been a number of judgments which show that the courts are well capable of dealing with any difficulties which arise.

7 The claimants

Another obvious touchstone with regard to the breadth of access to justice under the regime is its application to enormously diverse causes of action, including:

  • disasters;
  • personal injury, through contamination of a variety of foods and products;
  • personal injury through medical devices;
  • breaches of the continuous disclosure regime on the ASX;
  • misleading conduct in investment prospectuses;
  • cartel conduct;
  • consumer claims;
  • environmental damage;
  • employment related issues;
  • breaches of human rights and anti-discrimination laws; and
  • miscellaneous matters that are not easily categorised.

The breadth of the causes of action, the hundreds of thousands of claimants, and the variety in the types or kinds of claimants (including mums and dads, consumers, employees, small businesses, private companies, public companies, retail investors and institutional investors) that sign retainer and litigation funding agreements so as to join the actions, indicates the breadth of the access to justice provided (and incidentally, a level of community acceptance well beyond that which I thought likely 25 years ago).

8 Conclusion

The Part IVA procedure provides real, practical and broad based access to justice and it is a regime of which we should be proud. The importance of the regime means the community should expect the Federal Court to be vigilant in protecting it against undesirable practices that may try to creep in, so that it remains directed to the interests of the parties and the community and remains appropriately balanced and sustainable.

Justice Bernard Murphy

23 March 2017


Justice of the Federal Court of Australia

Commonwealth, Parliamentary Debates, House of Representatives, 14 November 1991, at 3174 (M Duffy - Attorney-General);Australian Law Reform Commission, aGrouped Proceedings in the Federal Courta, Report No 46, 1988, at [13] (ALRC Report No 46).

[2] In doing so I draw directly on the chapter in the recently published book a25 Years of Class Actions in Australiaa, which I co-authored with Professor Vincent Morabito.

[3] See, Commonwealth, Parliamentary Debates, Senate, 13 November1991, at 3019-3022 (Senator Durack); Commonwealth, Parliamentary Debates, House of Representatives, 26 November 1991, at 3284-3290 (P Costello a Shadow Attorney-General); D J Harland, aGroup Actions in Civil Procedure: Class Actions, Public Actions, Parens Patriae and Organisation Actionsa in AE-S Tay (ed), Australian Law and Legal Thinking a Between the Decades (a collection of 33 Australian reports presented at the 13thInternational Congress of Comparative Law, McGill University, Montreal, 18-24August 1990), at 101 and 115; W Pengilley, aClass Actions - A Legislative Hammer to Crack a Nut?a (1988) 26 Law Society of New South Wales Journal 28.

[4] S Danckert, aClass actions: No Americanisation of Australian legal system, says top judge", The Sydney Morning Herald, 22 March 2017.

[5] Vincent Morabito, An Empirical Study of Australia's Class Action Regimes -First Report: Class Action Facts and Figures (Department of Business Law and Taxation, Monash University, December 2009) (athe First Reporta);Vincent Morabito, An Empirical Study of Australia's Class Action Regimes-Second Report: Litigation Funders, Competing Class Actions, Opt Out Rates, Victorian Class Actions and Class Representatives (Department of Business Law and Taxation, Monash University, September 2010), (athe Second Reporta); Vincent Morabito, aClashing Classes Down Under- Evaluating Australia's Competing Class Actions Through Empirical and Comparative Perspectivesa (2012) 27 Conn. J. Intal L. 245 (athe Third Reporta); with Vincent Morabito and Vicki Waye, Reining in Litigation Entrepreneurs: A New Zealand Proposal (2011) New Zealand Law Review 323, 346 (athe Fourth Reporta).

[6] Chief Justice Allsop, "Class Actions", Keynote address at Law Council seminar, Sydney, 30 October 2016.

[7] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) 530.

[8] VLRC, aCivil Justice Reviewa, Report No 14, 2008.

[9] Commonwealth Attorney-Generalas Department, Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System, September 2009, recommendation 8.11.

[10] Productivity Commission, aAccess to Justice Arrangementsa, Inquiry Report, December 2014.

[11] Ibid, at 601.

[12] Western Australia, Parliamentary Debates, Legislative Council,21 October 2015, at 7658 (M Mischin a Attorney-General).

[13] Ibid, at 34-35.

[14] Explanatory Statement to the Corporations Amendment Regulation 2012(No 6) (Cth), at 1.

[15] Courts and Tribunals Legislation (Miscellaneous Amendments) Act2000 (Vic), inserting Part 4A of the Supreme Court Act 1986 (Vic).

[18] Western Australia, Parliamentary Debates, Legislative Council,21 October 2015, at 7658 (M Mischin - Attorney-General).

[19] J Cooper, aCorporate Wrongdoing: ASICas Enforcement Rolea, speech delivered at the First International Class Actions Conference, Melbourne, 2December 2005, available at <download.asic.gov.au/media/1338470/ICAC2005_speech_021205.pdf>, at 11.

[20] A Boxsell, aRegulators praise private court actionsa, Australian Financial Review, 5 April 2012. See also, H Low, aASIC a class act in Centro casea, Australian Financial Review, 30 June 2011, at 10 where the following is attributed to Mr Medcraft: ato me that a| is another way of leveraging the system for the benefit of consumers and investors a| the evolution of class actions a| is a great outcomea.

[21] Interview with G Samuel, ABC Radio National PM Program, 17 July 2006.

[22] A Boxsell, aRegulators praise private court actionsa, Australian Financial Review, 5 April 2012.

[23] (2002) 211 CLR 1 at 73 where Callinan J said: aThe question here is not whether, by their nature, group or class proceedings are oppressive to defendants, give rise to entrepreneurial litigation, in fact proliferate and prolong court proceedings, undesirably substitute private for public law enforcement or are contrary to the public interest, with disadvantages outweighing a public interest in enabling persons who have been damnified but who would not, or could not bring the proceedings themselves, to be compensated for their lossesa.

[24] [2005] NSWCA 83; (2005) 63 NSWLR 203 at [100]- [101] and [105] (Mason P, with whom Hodgson and Sheller JJ agreed).

[25] [2006] HCA 41; (2006) 229 CLR 386 (Gummow, Hayne and Crennan JJ at [65] with whom Gleeson CJ at [1] and Kirby J at [147]-[148] agreed).

[27] Ibid at [8].

[28] [2016] FCAFC 148 (Murphy, Gleeson and Beach JJ).

[29] Supreme Court of Victoria, Media Release, 7 December 2016, quoting Justice J Forrest.

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