CLASS ACTIONS EXPLAINED
Everything you need to know about class actions
A class action is a type of legal proceeding in which one person (the plaintiff or applicant) brings a claim on behalf of a wider group of people who have been affected in a similar way, or by the same conduct. By grouping claims together and pursuing them collectively, the overall value of the claim goes up, while the cost to each member goes down.
Because our class action is in relation to a judicial review the same usual considerations regarding the value of the claim will not be present. Our main goal is not to obtain compensation but rather to stop the current course of action taken by the States and Territories.
There are many different kinds of class action
Class actions don’t cover any one specific area of law in the way that areas like workers compensation or motor vehicle accident claims do, for example. They are simply a mechanism for organising large numbers of claims together for people who have been affected by similar circumstances - in many areas of the law.
The novel aspect about our class action is that we are not seeking monetary compensation but we are seeking the restoration of our human rights for liberty and the restoration of the rigorous processes that must be applied first to ensure that the States and Territories don’t direct a group of people to carry out a Biosecurity measure in the absence of any identifiable risk and in the absence of any evidence that such a request is warranted.
How to start a class action
Formally, there are only a few requirements in the relevant legislation to be able to commence a class action:
There must be seven or more persons with claims against the same defendant;
The group's claims must all be in respect of, or arise out of, the same, similar or related circumstances; and
The group's claims must give rise to a substantial common issue of law or fact.
Despite the apparent simplicity of these criteria, it’s important not to underestimate the complexity involved in constructing a class action correctly.
Who is the 'applicant representative'?
Class actions ordinarily involve a single applicant (known as the ‘applicant representative’) pursuing a claim on behalf of a larger group that has been similarly affected. They are the only person assuming the risk and cost of the litigation, and they are running their claim in the interests of all affected parties within the group they define, meaning even people who don’t know about a class action can still benefit from them.
Every class action is different and proceeds in its own way, but in general they will be run using the applicant representative individual claim as a vehicle to allow a Court to resolve as many of the factual and legal issues that they have in common with the rest of the group as possible. This process allows those issues to be determined just once, in the applicant representative's claim, and means that class members don’t need to establish those matters again in their own claims – the more common issues that can be resolved in this way, the fewer individual issues remain in each group member’s claim following that.
A application representative has the same obligations as any plaintiff in a typical piece of ‘individual’ litigation, however they also have a number of additional obligations that are specific to class actions.
Most importantly, they have obligations to the class members that they represent – they need to ensure that the claim they run serves the interests of the group members in the case, and that it is not pursued solely for their own personal benefit. The applicant representative is the party who provides instructions to their lawyers about the way that the claim is run, and they are the party who can make decisions when it comes to making settlement offers or negotiating to resolve a claim.
This process doesn’t expose any class member other than the applicant representative to financial cost or risk. Compared to the costs, time and risk involved in bringing large numbers of individual claims, the advantages of class actions are very significant.
Given this requirement we are requesting each of you to complete the enclosed form and give consideration as to whether you would like to be a lead applicant representative. The preference is that you elect to be an applicant representative if you do not own any properties and have limited cash. This means that any adverse costs order will be easily mitigated and avoided as we can negotiate your release from that and it will ensure that the rest of the group will not be exposed to any risk at all. This means that if we lose for any reason, and we most certainly do not plan to do so, then we will negotiate a release of those costs on the basis that you do not have any liquid assets or cash. The other class members will NOT be targeted.
If you elect to be a applicant representative the only expectation is that you only pay $100. costs associated with this action.
Are class actions 'opt-in' or 'opt-out'?
Class actions in Australia are run on what is known as an “opt-out” basis. This means that claims are commenced and initially pursued on behalf of a defined group, regardless of whether all of the members of the group know about the claim when it is commenced. This means that even people who are out of contact or who do not have ready access to lawyers will still have their rights protected by the claim.
Once the class action has reached a stage where the issues in dispute are well-defined, the Court will make orders requiring an “opt-out notice” to be publicised and brought to the attention of all group members, to the extent this is possible. This notice will provide classd members with the ability to remove themselves from the claim if they do not want to be a part of it, by 'opting out'.
The usual reason for an “opt-out notice” is that those people that remain within the group will get the benefit of compensation. However, given that this class action is peculiar in that we are seeking to have a declaration and prohibition order for the States and Territories to stop doing what they are doing and we are not necessarily seeking a compensation amount, it may be that the Court will need to waive the requirement to opt out as any positive outcome from our case will positively impact all the class of people affected by the decision whether they opt out or not.
How long does a class action take?
Generally, most class actions tend to take between one and three years to resolve, although this can vary depending on the circumstances of individual claims.
Each class action is different, and the time required for a claim depends on a variety of factors, such as the complexity of the issues involved, the amount of evidence to be considered, and the tactics adopted by the defendants in defending the claim.
We anticipate that our matter will take one year.
What happens when a class action is successful?
In Australia, class action settlements require the approval of the Court before they can take effect. The application representative will make an application to the Court to approve a proposed settlement, in which they will need to provide the Court with a significant amount of information about the settlement, how it was reached, and what it will mean for class members.
As stated before, given the peculiar nature of our class action, it is unlikely that there will be any settlement distribution scheme or assessment of compensation. I will deal with you on a case by case basis to ascertain what communications would be required with your aged care facility provider or employer with regards to restoring your rights and liberties.
Does the "loser pays" rule apply?
The “loser pays” rule generally does apply but successful respondents can only obtain costs orders against the applicant representative. The Court is not permitted to make an adverse costs order against the remaining class members. Also, the identities of the remaining class action participants will not be revealed.
The process of funding
Third party litigation funders have become an entrenched and accepted part of the class action landscape. However, in our case the funding will come from a subset of the group of claimants who are happy to proceed to sign the costs agreement and disclosure statement as well as generous community donations.
Information provided regarding class actions, has been taken from Slater & Gordon, who have consented to using this content from their website. https://www.slatergordon.com.au/class-actions/class-actions-101