New Federal Court Class Actions Practice Note (GPN-CA)

On 20 December 2019 the Federal Court issued a new Class Actions Practice Note (GPN-CA). The new Practice Note contains several changes from the previous Practice Note issued on 25 October 2016. The changes include:

  • a change to para [3.1] to permit the use of ‘Concise Statements’ in place of pleadings (albeit only in cases where it is likely that there will be no substantial factual matters in contest);
  • a change to para [7.1] to provide for the first case management hearing to be held within four weeks (instead of eight weeks) from the date of filing;
  • changes to para [7.8] (which sets out the matters to be addressed at the first case management hearing), including new sub-paras (e), (f) and (h);
  • an entirely new Part 8, dealing with competing class actions, including an obligation on the parties to notify the judge immediately they become aware of any actual or proposed competing action;
  • a change to para [9.2(i)] (formerly para [8.2(i)]) to include an express reference to ‘Merck orders’ as one of the matters to be dealt with at subsequent case management hearings;
  • a new para [14.3] and [14.4] in the following terms:

[14.3] In preparing documentation recording a settlement of a class action which will be the subject of an application for approval, the applicant's lawyers should be conscious that the applicant has a duty to not take steps to act contrary to the interests of class members connected with the conduct of the class action, and that the representation by an applicant of class members is for a limited purpose. That purpose is dealing, in accordance with Part IVA, with the claims of the class members which are in respect of, or arise out of, the same, similar or related circumstances and which give rise to at least one substantial common issue of law or fact. [14.4] In providing instructions for the preparation of any settlement documentation, the applicant should not, without express authority from class members, give releases, indemnities or covenants which go beyond dealing with the claim [sic] which are the subject of the class action.

  • a change to para [15.1(a)(i)] (formerly para [14.1(a)(i)]) to provide that confidentiality orders on settlement approval applications will, in the usual course, be restricted to the confidential opinion provided by counsel for the applicant(s);
  • a new para [15.4] and [15.6] in the following terms:

[15.4] Particularly in an open class action, the parties, class members, litigation funders and lawyers may expect that unless a judge indicates to the contrary the Court will, if application is made and if in all the circumstances it is fair, just, equitable and in accordance with principle, make an appropriately framed order to prevent unjust enrichment and equitably and fairly to distribute the burden of reasonable legal costs, fees and other expenses, including reasonable litigation funding charges or commission, amongst all persons who have benefited from the action. The notices provided to class members should bring this to their attention as early in the proceeding as practicable.

[15.6] Lengthy and unnecessary affidavit evidence on settlement approval applications is to be discouraged. The legal representatives of the applicant should ensure that only costs necessary to be incurred in the settlement approval process are incurred.

  • the deletion of para [14.5] (which previously set out a list of the matters to be stated, to the extent relevant, in the affidavit(s) filed in support of a settlement approval application);
  • the deletion of paras [15.2] and [15.4], and the inclusion of new paras [16.2] and [16.3] as follows:

[16.2] No lay or expert evidence should be filed by the lawyers for the applicant [on a settlement approval application] seeking to justify legal costs without prior leave being granted by the Court.

[16.3] Although individual judges may approach the question of considering the reasonableness of legal costs differently depending upon the circumstances of the case, in class action settlements of significant size, the legal representatives of the applicant should be aware that that [sic] a referee may be appointed to inquire into and report upon the reasonableness of the legal costs proposed to be deducted. If such a referee is appointed, it is necessary for the lawyers for the applicant to assist the referee in the performance of the referee's task of inquiry and report.

  • an entirely new Part 17, dealing with confidentiality orders, as follows:

[17.1] The legal representatives of the parties should be aware that confidentiality or non-publication orders will not be made otherwise than in accordance with Part VAA of the Federal Court Act which provides that the starting point for consideration of such orders, for the Court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

[17.2] Such orders will only be made if the Court must be satisfied that the order is necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a)). It should be recalled that "necessary" is a "strong word": Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30].

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Andrew Watson

National Head of Class Actions, Class actions, Melbourne

"I'm an experienced litigator in class actions, particularly for shareholders who have been victims of corporate misconduct."

Ben Slade

State Managing Principal, Office Leader, Class actions, Sydney

"I am driven to give a voice to those who would otherwise have to suffer because those who have done them wrong are all too powerful."

Kimi Nishimura

Principal Lawyer, Class actions, Melbourne

"I'm committed to fighting for the rights of victims of corporate misconduct as well as pursuing compensation on behalf of my clients."

Rebecca Gilsenan

Executive Director, Principal Lawyer, Class actions, Sydney

"I have extensive experience in running complex and novel litigation, including class actions in the areas of price fixing, failed investment schemes, product liability and securities."

Miranda Nagy

Principal Lawyer, Class actions, Sydney

"I have a strong conviction that the community should be able to expect our governments and the companies we deal with to comply with the law."

Julian Schimmel

Principal Lawyer, Class actions, Sydney

"Class actions are a unique legal mechanism that have helped hundreds of thousands of people receive compensation after mistreatment at the hands of powerful companies, and it’s gratifying to help people get access to justice when otherwise it would’ve been difficult for them."

Vavaa Mawuli

Principal, Class actions, Brisbane

"The most rewarding thing about my work is the change in scale of what we are able to accomplish."

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