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Will we see an increase in class actions and funded litigation following the COVID-19 financial crisis similar to that following the global financial crisis? If there is an onslaught of corporate failures, including failed managed investment schemes, then such litigation seems likely to ensue. However, in the last year, Parliament and the courts have taken steps which might slow such litigious activity, says Susan Goodman of Holding Redlich.
A sense of frustration with current uncertainty in the caselaw and inconsistency in the approaches of judges was a prominent theme that emerged from personal interviews with 30 experienced class action practitioners conducted over two months by Dr Peter Cashman and Amelia Simpson of the University of New South Wales.
As the economic impact of Covid-19 continues to develop, we can expect promoters of class actions to explore claims which arise from the pandemic – some of these will be in familiar territory, whilst other claim may be novel, say Herbert Smith Freehills' Harry Edwards and Dylan O'Keefe.
Recent changes in the Australian regulation of third-party funders will have a dramatic effect on the funding of certain disputes. Although these changes were accompanied by Government and industry commentary that they would not affect litigation funding for insolvency-related claims, this may not be the case for all insolvency funding arrangements, writes Lina Kolomoitseva of funder Litigation Capital Management.
The public hearings before the Parliamentary Joint Committee on Corporations and Financial Services as part of an inquiry into litigation funding and regulation of the class action industry proved to be polarised and, at times, hostile and adversarial in tone. But the inquiry has proven to be a useful and insightful process and questioning by the Committee served to unearth not only relevant factual information and important empirical data but also touched on the commercial and financial interests of those on both sides of the debate.
A recent decision in ASIC's case against ANZ has highlighted the potential risks of waiver of client legal privilege, with the Federal Court observing that the distinctions can be "fine". While ANZ avoided having to disclose its legal advice to the regulator, the decision is a reminder of the potential pitfalls of referring to legal advice in correspondence, and that pleading a state of mind in litigation carries risks from a privilege perspective, says Hall & Wilcox partner Jacob Uljans.
It is entirely possible that the first effective SARS-CoV-2 vaccine is developed in Australia, with an Australian firm securing patent rights to the vaccine. If that occurs, it is important to remember that a patent is not an impenetrable fortress. Patent laws already contain mechanisms to enable "special access" to patented pharmaceuticals and other technologies, including (perhaps especially) in times like this, say James Neil and Richard Hoad of Clayton Utz.
The shocking revelations about the complaints of sexual harassment of young female associates working for Justice Dyson Heydon in his years on the High Court have prompted many reactions and a collective sharing by women across the profession about their own personal experiences. These stories have been incredibly powerful and are a clear call to arms for significant and lasting change. Chief Justice Susan Kiefel set the tone by committing to the adoption of all recommendations of the investigator, but the reforms should not stop there, says Professor Andrew Lynch, the Head of School and Deputy Dean at UNSW Law.
While some judges have suggested a deed of company arrangement can be terminated at the comparatively low threshold that a liquidator may be "potentially" successful in litigating a claim, this is clearly not the test after a recent Full Federal Court ruling that affirms the high standard to be met by any challenge to a DOCA, where the deed compromises a commercial dispute, writes Baker McKenzies' David Walter, Maria O'Brien and Ian Innes.
Much of the criticism of the ligitaion funding industry being played out in the media recently is based on misinformation, says Andrew Saker of Omni Bridgeway.