An Evidence-Based Approach to Class Action Reform in Australia: Closed Class Actions, Open Class Actions and Access to Justice

Abstract

In May 2018 the Australian Law Reform Commission (“ALRC”) released a discussion paper on class action proceedings and third party litigation funders. It contained the proposal that the federal class action legislation should be amended to provide that all federal class actions should be initiated as open class actions. I have reviewed the descriptions of represented groups - provided in the originating applications and statements of claim - with respect to all the federal class actions filed before 30 September 2018. In this report I will provide some of the major data and findings that have emerged from this review, in the hope that it will be of some assistance - to the ALRC, the Commonwealth Attorney-General and/or other interested persons and entities - in determining whether the ALRC’s proposal, that all federal class actions should be commenced as open class actions, should be retained in the ALRC’s final December 2018 report and, if so, in identifying the major issues and challenges that will need to be addressed in implementing this recommendation as well as its likely impact.