It is the University’s expectation that only those who are well and not presenting with COVID-19 symptoms attend a Monash campus or location. View our latest updates.
Below you will find examples of current and completed research projects in litigation, dispute resolution and access to justice including:
December 2001 saw the world’s first instance of funding by a commercial litigation funder of class action litigation, when a subsidiary of IMF Bentham Ltd (now Omni Bridgeway Ltd) agreed to provide financial support with respect to two class actions filed in the Federal Court of Australia in 1998 and 2000, with respect to the so-called waterfront industrial dispute. This research provides extensive empirical data with respect to this involvement of funders during the last 21 years, so as to facilitate an informed and objective analysis of the impact that litigation funders have had on Australian class actions.
Researcher
Research Output
Common Fund Orders’ (CFOs) have had a significant effect on Australian third party-funded class actions by requiring all class members to make a contribution to the third-party litigation funder’s fee in the event of a successful outcome. This altered past practice whereby only class members who had contracted with the litigation funder would be liable for such a contribution. However in a 5:2 decision in BMW Australia Ltd v Brewster in 2019, the High Court cast some doubt on CFOs, determining that neither s 33ZF Federal Court of Australia Act 1976 (Cth) nor s 183 Civil Procedure Act 2005 (NSW) provided a legal basis for making CFOs at the outset of proceedings so as to secure litigation funding support. This seminal judicial pronouncement has been reviewed closely by a number of federal trial judges, primarily with a view to answering the crucial practical question of whether Brewster prohibits the making of common fund orders when approving a settlement. The aim of this research is to explore this post-Brewster jurisprudence.
Further, in late 2020, the Commonwealth Parliamentary Joint Committee (PJC) on Corporations and Financial Services recommended that legislation be enacted to ‘address uncertainty’ in Brewster in a manner that would enable CFOs to be made at settlement or judgment. The second research team canvass the normative arguments as to the merits of CFOs and compare the alternative practice of making Funding Equalisation Orders (FEOs). Given the possibility of legislative intervention, they also review arguments as to the potential constitutional validity of CFOs, a matter that was raised, but received very limited treatment from the High Court in BMW.
Australia’s federal class action regime under Pt IVA of the Federal Court Act 1976 (Cth), is based on recommendations of the Law Reform Commission (‘LRC’) in 1988. The LRC noted a barrier to group litigation in the risk of plaintiffs being ordered to defendant costs if the plaintiffs were unsuccessful in their class action claim. The LRC thus recommended the creation of a class action fund to provide financial assistance to lead plaintiffs, however this has never been implemented by government. In practice, lead plaintiffs in Pt IVA litigation are often nowadays indemnified by litigation funders or after-the-event insurance. This is however largely confined to commercial class actions such as shareholder class actions. As a result, the barrier has remained with respect to many potential class actions likely to be appropriately characterised as public interest litigation, including proceedings brought on behalf of vulnerable or disadvantaged persons. In the current climate of significant class action reform designed to ensure that class actions do serve the interests of class members and the broader community, this research looks at legislative measures designed to reduce this costs barrier to class action litigation. This could include a modified version of a recommendation by the Victorian Law Reform Commission (‘VLRC’) in 2018, empowering trial judges, when deciding whether to make an adverse costs order against unsuccessful lead plaintiffs, to take into account, among other things, the function of class actions in providing access to justice and whether the class action involved a matter of public interest.
Prompted by class action litigation reform in New Zealand, this research examines private civil class actions as a means of enforcing securities disclosure laws that regulate the New Zealand securities market. It looks at the nature of the private securities class action generally and the normative, regulatory and procedural aspects including views from Australian and American practice before examining the importance of market disclosure and current legal regulation of securities disclosure in New Zealand. Recent public enforcement of securities disclosure in that country (particularly of continuous disclosure laws) including notable actions is reviewed, opening the discussion as to the role for private enforcement where the question is posed as to whether securities class actions can or do improve corporate disclosure including the effects of private securities class actions as remedial as well as preventative. The research also notes the New Zealand Law Commission’s enquiry into class actions and litigation funding noting particularly their relevance to securities class actions in New Zealand.
The cy-près doctrine permits a damages award or settlement sum in a class action proceeding to be distributed to the "next best" alternative when all or some of the class members cannot, for various reasons, be compensated individually. This research is the first comprehensive empirical study undertaken in Australia of cy-près remedies granted in class actions. The empirical findings reveal that the cy-près doctrine is alive and well in Australia's class action regimes, particularly in relation to uncollected settlement proceeds. The findings also demonstrate that deterrence has become an accepted and integral policy goal in this context. But they also reveal that cy-près relief has been granted in an inconsistent manner by Australian judges. In light of these findings, the research recommends that an express legislative cy-près power be conferred on judges presiding over class actions.
The phrase ‘access to justice’ is growing more common in contemporary debates about the Australian civil justice system. This research examines the concept of access to civil justice, why it is important, and the obstacles to achieving it, before reporting the results of an empirical survey on changes in access to civil justice for average Australians. It reports on significant areas of legal problems, their impact, the most popular legal services sought and perceptions of changes in access. It analyses perceptions of changes in access including a discussion of effects of innovations such as no-win-no-charge, class actions and third party litigation funding. The research reports findings on the public desire to be informed of legal rights of action, differences in problems in inner-city, suburban and rural settings as well as the production of index numbers for levels of access in particular legal areas of law.
In the Second Reading Speech for the 1991 Bill that brought Part IVA of the Federal Court of Australia Act 1976 (Cth) (Part IVA) into law, the Attorney-General articulated the well-known trilogy of benefits that the new class actions regime was expected to bring, which were to enhance access to justice, reduce costs and promote efficiencies in the use of court resources. It was hoped that Part IVA would achieve these purposes by facilitating claims by people whose individual loss, although significant, was outweighed by the cost or risk of bringing individual legal action. It was also hoped that spreading costs across a group of people would make it possible and economical for these types of claims to be brought, and that efficiencies could be realised by eliminating the need to separately try the same issue. The interests of defendants would be protected by an avoidance of inconsistent verdicts and results and by the resolution of a large number of claims in a single action.
Debt collection activity is expected to rise significantly in 2021, as financial hardship becomes more prevalent due to the economic impact of the COVID-19 pandemic. Consumer advocates have warned of an impending “avalanche in debt collection” and have called for better enforcement of laws designed to protect consumers from harassment as well as unfair, misleading and deceptive conduct by debt collectors. Women’s groups have also pointed to a rise in economic abuse and resulting indebtedness during the pandemic. This research examines the legal framework governing the Australian debt collection industry and draws on recent case law and a series of focus groups conducted by the authors.
The research also considers the regulation of debt management firms in the countries that have made significant strides in this burgeoning field, drawing lessons from their experiences. It highlights the key features of regulatory frameworks that contribute to better outcomes for consumers, while revealing the gaps that have allowed predatory businesses to avoid regulation. Specific strategies developed to mitigate risks of consumers being channelled towards unsuitable and unaffordable arrangements provide useful examples to other countries that are seeking to safeguard financially stressed consumers from harm.
Interpretation of private international law on sales and arbitration by Australian courts
Important aspects of Australia’s private international law—including its international commercial arbitration and international sales laws—have international origins. The instruments underlying these laws rely upon uniform interpretation to fulfil their trade pro-motion purposes. Yet Australia does not always fulfil its part of this bargain: internationally minded interpretations of these instruments’ local implementations are not always evident in the case law. The research analyses the interpretative rules governing Australia’s international commercial arbitration and international sales laws, identifying a legal requirement of internationalist interpretation. It assesses the extent to which their interpretations by Australian courts live up to this standard, demonstrating improvements over time in the case of arbitration law but ongoing deficiencies in the sales law field. As a result, recommendations are made as to how the reasoning of Australian courts in international sales cases can be improved. These recommendations are ultimately directed at aiding Australian merchants and their trading partners, the intended beneficiaries of these laws.
In December 2019, the New Zealand Law Commission disclosed the terms of reference pursuant to which, over the next two years, it would conduct a review of the law relating to class actions and litigation funding in New Zealand. The aim of this research is to assist the NZLC’s study by providing a review of the Australian experience, over the last 15 years or so, with the involvement of commercial litigation funders in proceedings brought pursuant to the five legislative class action regimes that currently operate in the country. This review will place reliance on Prof Morabito’s comprehensive empirical data on class actions funded by litigation funders and will also include an evaluation of the responses of Australian courts, governments and law reform commissions to the challenges created by the activities of litigation funders in the context of class action litigation. The recommendations made by New Zealand’s Rules Committee in 2009, in relation to the regulation of funding agreements entered into with respect to class action litigation, will then be considered
This research notes consumer financial dispute resolution mechanisms in the ASEAN 5 countries, Australia and New Zealand and compares single-body schemes with multiple-body schemes. The comparison between Australia and New Zealand reveals that the choice of schemes inevitably involves trade-offs. While Australia has decisively endorsed the single-body approach, New Zealand’s endorsement of its multiple-body scheme is more qualified. Only time will reveal whether the decision to move towards a single-body system in Australia has been the correct one. There are precedents – such as the system in the UK and Singapore – that augur well for a single-body system. That said, various questions remain open for discussion and research in relation to a single-body system. These questions include how significant the cost implications will be and whether size and scale really matter in terms of the outcomes for consumers.
This research examines the validity and legal effect of exclusion clauses under the Malaysian Contracts Act 1950 including Malaysian case law where some exclusion clauses were held to be valid, thereby favouring some businesses relying upon the clauses to the detriment of consumers/customers/buyers. The research also examines other legislation affecting exclusion clauses, namely, the Sale of Goods Act 1957, Hire Purchase Act 1967 and Consumer Protection Act 1999 and their effectiveness in governing validity and effect of exclusion clauses in Malaysia. A comparative study of the legal position in the United Kingdom and Australia is also carried out as to the approach taken in those countries and the ineffectiveness of common law given the lack of a level playing field between business persons and consumers. The effect on exclusion clauses of the UK Unfair Contract Terms Act 1977 and Consumer Rights Act 2015 as well as the Australian Trade Practices Act 1975 (Cth) and Competition and Consumer Act 2010 (Australian Consumer Law) is considered. The research proposes a new Act to regulate exclusion clauses to ensure business does not take advantage of customers/buyers/consumers and to ensure the legal framework governing exclusion clauses in Malaysia is in tandem with the legal position in developed countries in ensuring equity and fairness between contracting parties
Researcher
Research output:
Most civil lawsuits are negotiated in private and settled between the parties without judicial consent constraining the ability to determine the merits of these lawsuits and the justness of the settlements. Class action settlements are different as they do require court approval, yet their ability to secure access to justice clearly depends upon the court properly exercising this role in the settlement approval process. This requires class action judges to protect the interests of class members when scrutinising settlement agreements executed by the formal parties to the class action proceeding and this properly needs to take place in a "fishbowl"; clearly visible to, not only the class members, but also the media, commentators, scholars and the public in general. The purpose of this research is to provide an empirical evaluation of the extent to which the principles underpinning the concept of open justice have been adhered to in Australian federal class action settlements over the last 27 years or so.
The correct analysis of proof of causation of loss in securities market nondisclosure class actions (referred to as "shareholder class actions") is hotly disputed. As well as being a matter of doctrinal significance, it has substantial relevance to the practicalities and costs of prosecuting these actions and to the related issue of court efficiency and case management. Traditionally, reliance-based causation is required but market-based causation was considered arguable at an interlocutory stage by the Full Federal Court in a class action. It has also been accepted by the NSW Supreme Court in a non-class action. It is suggested that final judicial acceptance of market-based causation in a class action at trial could be balanced by safeguards that would allow rebuttal of causation in some situations and some limiting of the class. This may allay somewhat the fears of those who see market based causation as contrary to policy and principle.
Strategic climate change litigation can take a number of different legal forms, involve a range of public and private actors and pursue various objectives. While it is generally framed as a tool to achieve policy or social change, it can also be thought of as a tool to help address and remedy the injustices associated with climate change. Climate injustices involve highly contested questions of distributive justice(eg who should take responsibility for reducing emissions and financing adaptation considering wealth and capacity?),compensatory justice (eg how should historical contributions to climate change impacts be taken into account and who should compensate victims?) and intergenerational justice (eg to what extent should future generations bear the brunt and cost of managing climate change impacts caused by the actions and decisions of past and present generations?). Strategic climate change litigation can help to establish, recognise or clarify legal responsibilities of public and private actors, shift social norms and public discourse and thereby the decision-making of both private and public actors, including by pressuring governments to introduce new laws and policies to address climate justice and responsibility.
There is an increasing phenomenon of competing class actions – class actions purporting to cover the same or nearly the same common issues of alleged wrongdoing but brought by different representative parties (or "lead applicants") with different lawyers and often different litigation funders. A decision by a court allowing one class action proceeding (with, presumably, one set of lawyers acting) to proceed while staying all others is significant and raises a number of matters that deserve consideration. Facilitating just resolution inexpensively and efficiently was a key factor in the Full Court appeal in Perera v GetSwift where Lee J's decision to stay two proceedings to allow one to proceed was upheld. While the decisions of the two courts in relation to the trial of the common issues are undoubtedly correct, there may be a number of wider issues that have been raised by the decisions, particularly on the question of efficiency, and whether there is a salient difference between the common issues stage and the individual issues stage of a class action.
In several countries, including Australia, class action litigation most frequently has been resolved through settlement agreements. Class action settlements are legally effective only if approved by the court because the outcome of class action litigation binds not only the formal parties to it, but also the class member claimants represented by the lead plaintiffs. This research looks at lessons that may be learned from the Australian experience with respect to judicial review of class action settlements including the need to encourage and facilitate a close judicial scrutiny of the fairness, reasonableness and adequacy of settlement agreements - to ensure maximum protection of the interests of all class members. This may be secured through various measures, including a greater use of court-appointed independent experts; facilitating class members' ability to properly assess the likely impact of a proposed settlement agreement on them and to advise the court of any concerns; giving courts more powers as to remuneration of litigation funders; empowering courts to increase the settlement proceeds that class members will receive; and providing clear guidance as to when it is appropriate for courts to authorise additional payments to lead plaintiffs, sub-group representatives and class members who assume an active role in conducting the proceedings.
Access to justice is universally regarded as the main benefit that can be secured through the use of class action regimes. In this article it is posited that, with respect to class actions filed in the Federal Court without the support of commercial litigation funders, attainment of this desirable goal is threatened by rulings by the Full Federal Court that authorise trial judges to award security for costs against lead plaintiffs on the expectation that such security can only be provided through contributions from group members.
Australians have a formal right to justice and equal treatment before the law, but what does ‘access to justice’ in the civil sphere really mean? Does it only mean ‘having your day in court’ or does it go wider? What are the areas of civil law that are most important to average people? And is access to justice increasing? This research will attempt to answer some of these questions both doctrinally and through an empirical survey of users of the justice system in Australia. .
New laws often involve the creation of new private rights of action for breach of those laws. The chose in action in the form of the statutory right to civil compensation is a type of right that has multiplied over the last fifty 50 years. The increase in rights has led to greater litigation and one reaction is the occasional complaint that society has become too litigious. ‘Reining in’ such litigation might occasionally suggest the statutory modification of rights of action, however, a question then arises as to the status of such choses in action as a form of private property. In particular, would intervention by the legislature to diminish such rights constitute an acquisition of property within s 51(xxxi) of the Commonwealth Constitution requiring the provision of just terms? The article examines the nature of, and justification for, private property protection and plots a connection to statutory choses in action. It then analyses the relevant jurisprudence on s 51(xxxi) and assesses in some detail how far that section may apply to a legislative diminution of private statutory causes of action.
The last decade has seen unprecedented interest – from within Australia, and from abroad – into the topic of arbitration in Australia. Key cases have been decided by the Australian courts; legislative amendments have been made; arbitration has been a matter of government policy; and scholarship on the topic has flourished.
On 4 December 2009, ACICA – the Australian Centre for International Commercial Arbitration – held an ‘International Commercial Arbitration: Efficient, Effective, Economical?’ conference in Melbourne. As its title suggests, this conference explored themes surrounding the efficiency, effectiveness, and economic viability of arbitration in Australia at the time.
This research takes a retrospective look at the themes of this conference, given the flurry of arbitration activity in Australia since. It examines the extent to which arbitration in Australia, in the intervening eight years, has lived up to these efficiency, effectiveness, and economic viability goals.
Private securities class actions now appear to be a part of Australia’s legal landscape but opinions about their value are not unanimous. The research reviews the ‘private attorney-general’ argument for the utility of private securities class actions as ‘vindicating the public interest’ and supplementing public enforcement of securities laws. It then analyses the rationales for public enforcement of securities laws and assessing the extent to which private securities class actions seek to, can or do achieve these objectives. Data on the nineteen largest successful securities class actions or claims in Australia are examined by reference to various attributes which derive from these rationales and public interest scores allocated accordingly.
In the world of professional baseball Major League Baseball (‘MLB’) annually generates US$9 billion in revenue. The average Major League salary is nearly US$4 million and some players earn over US$20 million per year. Minor League Baseball (‘MiLB’) is also lucrative and teams can generate millions of revenue. Yet Minor League players are paid as little as US$1,100 per month in Class Rookie and A leagues and as much as US$2,150 per month at the Class AAA level. These players are not paid for training or offseason work and are only paid during the championship seasons. This research examines the plight of Minor League players in accessing a fair wage or a ‘living’ wage through the use of antitrust law and federal labor law on minimum wages and overtime. There are currently two class actions using both of these areas of law to challenge the Minor League pay system and class actions will be viewed in the context of access to justice.
International commercial arbitration is a preferred means of settling international business disputes, and offers many advantages over litigation in State courts - including its flexibility, and the parties' broad autonomy to shape the arbitral procedure to best fit their needs. Parties (and sometimes arbitrators) also have broad powers to select the law that will govern the substance of the dispute - but in a context where no appeals lie from arbitral awards, the matter of how parties and arbitrators identify the governing substantive law is one that requires serious and considered attention.
This research investigates why careful attention should be paid to choices of law by the parties, and why conflict of laws determinations by arbitrators always matter, even where the parties themselves have chosen an applicable law. This research also addresses the enforceability implications of choice of law and conflict of laws decisions.
Regulation of Third Party Litigation Funding, Claimant Protection in the Tripartite Contract and the Lens of Theory.
The advent of third-party litigation funding (TPLF) is arguably one of the most significant developments in civil litigation in Australia for many decades. It has affected corporate law and other areas of law through major funded class action litigation which has put company directors on notice that they may be increasingly financially accountable to shareholders and others. Whilst third-party funded and indemnified defendants have appeared in common law courts for some centuries, the recent corresponding appearance of third-party funded and indemnified plaintiffs is in many ways a seismic shift in our civil litigation culture. Whether this has been a welcome and overdue move towards improved access to justice and protection of rights of ordinary citizens or a dangerous step towards the multiplication and inflammation of otherwise sleeping controversies is a topic of considerable and sometimes fierce debate. The research focuses on the governance of the relationship between litigant, funder and lawyer, with some bias towards the protection of the litigant as the more vulnerable party of the three. Given the importance of contract in governing TPLF arrangements the research explores some key theoretical insights into the phenomenon of complex multi-party contracting and the extent to which these have application to TPLF arrangements. Insights from both game theory and transaction cost economics are applied to analyse the tripartite contractual relationships between lawyer, litigant and funder. The research will also further develop at some length the application of agency theory. In doing so the research seeks to answer difficult questions of how government and regulators should deal with third-party litigation funding, including analysis of the regulatory options.
Class actions on behalf of aggrieved shareholders and other investors have become the most common form of group litigation filed in the Federal Court of Australia. This increasing importance of investor class actions has raised a number of important practical and conceptual issues. One such issue is how this private enforcement of the laws that are intended to protect investors interacts with the operation of the public enforcement model and their respective abilities to deter illegal conduct and secure compensation for the losses suffered by investors. The aim of this project is to explore this issue by comparing and contrasting the enforcement actions that have been undertaken by the Australian Securities and Investments Commission, the public regulator, with the federal class actions that have been filed on behalf of investors with respect to the same conduct or legal disputes over a 17 year period. This empirical study focuses on the nature of the relief that was sought, the persons and entities against whom this relief was sought and/or secured, the outcomes of these actions and the problems that may be encountered when the same conduct prompts public and private enforcement activity.
In the United Kingdom debate over the appropriate balance between publicly and privately driven forms of collective consumer redress has favoured a regulatory solution exemplified by the FSA's new rule making powers mandating the establishment of consumer redress schemes. This project examines another solution – a co-regulatory scheme involving Australia's Financial Ombudsman Service (FOS). In particular it compares, within a comparative and empirical framework, the costs and benefits of FOS intervention apropos systemic breach with other forms of collective consumer redress including class actions and public regulator action.
Developments in United States securities class actions: The status of 'fraud on the market' causation and implications for Australia.
In 1988 the United States Supreme Court brought down the judgment of Basic Inc v Levinson which recognised the “fraud on the market” theory of causation of investor loss in a securities class action. More recently, legislative reform and the US Supreme Court’s decision in Dura Pharmaceuticals v Broudo have circumscribed somewhat the permissive approach to such claims by creating more stringent requirements at the pleading and certification stage. The development of behavioural finance also questions somewhat the theory of efficient capital markets on which the “fraud on the market” causation theory partly rests. In Australia meanwhile, market based causation has not been tested yet in our courts. To the extent that causation of loss through the effects of non disclosures on the market is accepted by Australian courts it is not clear that the gloss developed in Dura would necessarily have application here.
The existence of insurance indemnity has long been an important aspect of personal injury practice for lawyers. Insurance makes litigation less problematic as prospects for recovery are increased and the chances of “empty judgments” and the dangers of judgments against “straw persons” are reduced. The ubiquity of insurance indemnity in such areas has flowed partly from the compulsory nature of insurance in some cases (such as workers compensation and motor vehicle claims - and now for licensed financial advisers). It has also followed from the traditional high level of litigation in these areas due to inherent risk of injury. Disclosure of the existence and extent of such insurance can be a critical matter for plaintiffs, their lawyers and any litigation funder particularly where payment of legal fees is effectively contingent on a successful outcome and where an “empty judgment” could mean major problems for a plaintiff’s cost recovery. On the other hand there is the issue of privacy and claims “floodgates” for insureds and insurers. The Australian position still seems to be that such disclosure is not likely to be available, at least not by way of discovery in the absence of special facts or pleadings. There is therefore a question about whether or not the law needs to be reformed in this area.