How Culture, Economics and Politics Shape Collective Litigation
Edited by Deborah R. Hensler, Christopher Hodges and Ianika Tzankova
Chapter 9: Litigation as ‘core business’: Analyzing the access to justice and regulatory dimensions of commercially funded class actions in Australia
Class actions have come a long way in Australia in a relatively short period of time. Since Part IVA of the Federal Court of Australia Act 1976 (Cth) (the FCAA) was introduced in 1992, group litigation has shifted from the old-fashioned representative action to a modern, ‘North American style’ class action regime. Statutory class action procedures were also adopted in Victoria in 2000 and in New South Wales in 2005. While the empirical evidence available clearly shows that there has not been the explosion of cases that some have predicted (Morabito, 2010), Australia now has what may fairly but not unreservedly be called a robust class action regime. Most class action litigation in Australia has taken place in the Federal Court, and that jurisdiction will be the focus in this chapter. A unique feature of Australia’s class action culture is the dominant role of commercial litigation funding. From about 2001, funded class actions have gradually become commonplace. This can be attributed to a variety of factors, including entrepreneurial class lawyers and funders, judicial decisions affirming the legitimacy of litigation funding and the positive contributions it makes to access to justice, and a costs jurisdiction with a cost shifting rule that prohibits lawyers (but not litigation funders) from charging contingency fees. It is safe to say that among the jurisdictions examined in this book, Australia has been a leader in the development of commercial litigation funding for class actions.
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