Judge floats option for class action lists

Jurisdictions may establish class action lists with dedicated judges, Queensland Supreme Court Justice David Boddice told AILA’s Queensland insurance law intensive in Brisbane.

He said NSW Chief Justice Tom Bathurst was reported as saying it was important class actions be overseen by judges with specific expertise.

The Federal Court was the class action “forum of choice”, with more than 90% of class actions in Australia from 1992 to 2009 filed in the Federal Court.

But steps were being taken to give Qld a class action regime, perhaps by adopting the Federal Court’s class action rules.

Qld currently had only representative actions, in accordance with rule 75 of the Uniform Civil Procedure Rules.

“Unlike class actions, parties to a representative action must have the same interest in the dispute, a test which is harder to satisfy than the ‘similar or related circumstances’ test for a representative or class action in other jurisdictions,” Justice Boddice said.

Qld’s lack of class action procedural rules meant many were lodged in NSW, for example, an action against the Qld Government alleging dam mismanagement during the 2011 floods. “It seems odd such an action was filed with the NSW Supreme Court, rather than the Qld Supreme Court. However, the lack of applicable rules provides the likely explanation,” he said.

Justice Boddice said the rise in class actions had occurred since the advent of litigation funders and particularly since the High Court’s 2006 Fostif decision, which found third-party litigation funding was “not contrary to public policy or an abuse of process, even though individual funding arrangements may fall foul of those imperatives”.

He said many personal injuries firms now focused on class actions because tort law changes made injury claims more difficult to prosecute.

Disclosure ‘a challenge’

Justice Boddice said disclosure was a major cause of delays and excessive costs in civil litigation. Commercial arrangements now comprised multiple documents and emails with multiple responses and counter responses. “With the advent of social media and texting, the problem is only going to escalate in the future,” he said.

There was a tendency for “over disclosure”. Efforts by the courts to have electronic document management systems had seen no significant reduction in the level of disclosure. “If anything, it encourages over-disclosure, as the attitude is to place everything on a USB stick and worry about it later.”

Justice Boddice suggested parties file copies of documents they intended to rely on initially and then be required to seek leave of the court to obtain further disclosure and would have to demonstrate “specific relevance”.

Justice Boddice said challenges faced by insurers in litigation were significant. Courts needed to adopt practical measures to ensure delivery of justice through a litigation process that was timely and efficient.

“The solution is not alternative dispute resolution measures. There is a public interest in have disputes between citizens, or between citizens and their governments, determined in the public forum of a law court.”

Without that, there was a danger dispute resolution would be governed by convenience rather than justice, he said.

Self-representation was an increasingly common occurrence. Justice Boddice said Qld last year introduced a supervised case list of self-represented litigants, which balanced the need to adherence to the Uniform Civil Procedure Rules against the recognition the rules were hard for self-represented litigants to understand.

He said an important factor related to disclosure, which was not required until the court ordered it to occur.

The list aimed to facilitate non-litigious dispute resolution; preparing matters for efficient, effective trials that focused on central issues; reducing the risk of trial adjournments; and minimising costs.

Despite self-represented litigants’ unfamiliarity with court processes, courts could only assist “in so far as is consistent with ensuring a fair trial”.