Extract

Mass settlements are most common and most regulated in Australia in relation to ‘class actions’ or ‘representative proceedings’ under Part IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). In the Multiplex shareholder class action, Finkelstein J observed: It goes without saying that the court should encourage the settlement of class actions and other complex cases. Perhaps more than most cases, class actions lend themselves to compromise because of the uncertainty of their result, difficulties of proof, complexities in the assessment of damages, as well as the expense of a long trial. It is no surprise that settlement of class actions is the most common way in which they are resolved. Further, class action settlements have been for substantial sums of money, including $200 million for a shareholder class action and $120 million for a cartel class action. A share of these recoveries will be taken by lawyers and/or litigation funders. As a result this chapter will focus on the settlement of class actions in the Federal Court of Australia by examining the requirements for settlement that flow from the representative nature of the class action and highlighting some of the continuing controversies around how settlement operates in this context. The chapter will also briefly examine non-class action mass settlements.