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Global | Publication | July 2018
On 11 December 2017, then Attorney-General of Australia, Senator the Honourable George Brandis QC, asked the Australian Law Reform Commission (ALRC) to consider whether and to what extent class action proceedings and third party litigation funders should be subject to Commonwealth regulation. The inquiry is set against the background of:
In the 2016/2017 financial year, 58 per cent of class actions filed in Australia involved litigation funding. In the 2017/2018 financial year, approximately 65 per cent of class actions filed are expected to involve litigation funding.
On 23 May 2018, the ALRC released a discussion paper noting that the aim of the inquiry is “to ensure that the costs of [class actions] are appropriate and proportionate and that the interests of plaintiffs and class members are protected.” The discussion paper is a timely contribution to the debate that has been raging for quite some time on the appropriate regulation of class action proceedings and litigation funding. In general, the paper lends support to the supervisory approach to case management increasingly being adopted in the Federal Court.
In short, the terms of reference require the ALRC to consider two overarching issues of the class action regime: The integrity of third-party funded class actions, and the efficacy of the class action system.
More specifically, the terms of reference require the ALRC to consider:
The ALRC has put forward the following proposals:
The ALRC has invited submissions by 30 July 2018 to assist with the reform process in the inquiry. There will therefore be an opportunity for all individuals and corporations to make submissions.
We will focus on the evolving class action climate and the importance of managing conflicts of interest for lawyers and funders and the implications of securities class actions for the Australian D&O market.
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