Class Actions Landscape Australia
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Class Actions Landscape Australia December 2020 The class action battleground of 2020 Australia has a fair and effective class actions system which has delivered access to justice and billions in compensation to millions of Australians over the life of the regime. So it is disappointing that in this year when there were so many other important things on which to focus, the intense political and ideological battle waged on the Australian class action regime by some conservative politicians and the powerful business interests they represent continued. At a time when Government and community resources everywhere are required to address the needs of a global health and economic crisis, it has been appalling to see some business lobbyists wage an opportunistic war against class actions seeking to exploit the pandemic by pushing an agenda which will lower corporate governance standards, reduce accountability for wrongdoing and reduce transparency in the market. It is an even greater pity to see the Federal Government accede to that agenda. Rather than implement the advice and recommendations of independent reports by the Productivity Commission, the Victorian Law Reform Commission and the Australian Law Reform Commission, the Federal Government decided to implement changes aimed at restricting access to justice, water down continuous disclosure laws and hastily convene a Parliamentary Inquiry into the very same issues which the independent inquiries had addressed. Government members of that committee have shown themselves to be partisan and uninterested in the evidence of the benefits of class actions for claimants and for corporate governance. Sadly it is clear this Parliamentary Inquiry is designed not with a view to deliver good policy but in search of a political outcome. We have seen signs of progress in other quarters. The Justice Legislation Miscellaneous Amendments Bill 2019 (Vic) commenced operation on 1 July 2020, permitting contingency fees in class actions in the Supreme Court of Victoria. This legislation follows the recommendations of the three independent agencies (the Productivity Commission, the Victorian Law Reform Commission, and the Australian Law Reform Commission) who each found that contingency fees would deliver increased access to justice and lower costs for class action members. Next year will continue to pose challenges to the legal sector and to society more broadly. We at Maurice Blackburn will do all we can to ensure that Australia’s system remains fair and effective and that we continue delivering compensation for the victims of mass wrongs by holding corporate wrongdoers to account. It has been an extraordinary year. Let’s hope 2021 is so much better (for society generally and for the debate around class actions). Andrew Watson National Head of Class Actions Maurice Blackburn Lawyers Index Maurice Blackburn files second class action against Crown Resorts over money laundering risk allegations 2 Australian Securities and Investments Commission v Big Star Energy Ltd (No 3) [2020] FCA 1442 3 Stallard v Treasury Wine Estates Ltd [2020] VSC 679 6 Arnold Bloch Leibler (a firm) v Slater & Gordon Ltd [2020] FCA 1496; Hall v Arnold Bloch Leibler (a firm) [2020] FCA 1495 8 Crowley v Worley Ltd [2020] FCA 1522 11 Brewster v BMW Australia Ltd [2020] NSWCA 272 13 Bywater v Appco Group Australia Pty Ltd [2020] FCA 1537 14 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 25) [2020] NSWSC 1544 15 Stewart v Uber Technologies Inc [2020] NSWCA 208 17 Webb v GetSwift Ltd (No 6) [2020] FCA 1292 18 Brewster v BMW Australia Ltd [2020] NSWSC 1261 19 Kenquist Nominees Pty Ltd atf The Kenquist Superannuation Fund v Campbell (No 6) [2020] FCA 1388 20 Jones v Treasury Wine Estates Ltd; In the Matter of Treasury Wine Estates Ltd (No 4) [2020] FCA 1131 22 Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 25 Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954 27 DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia [2020] FCA 958 29 Uber Australia Pty v Andrianakis [2020] VSCA 186 31 Zantran Pty Ltd v Crown Resorts Ltd (No 2) [2020] FCA 1024 34 New Class Actions Practice Note – Supreme Court of Victoria 36 CJMCG Pty Ltd (as trustee for CJMCG Superannuation Fund) v Boral Ltd [2020] FCA 914 37 Contingency Fees in Victoria 39 Cantor v Audi Australia Pty Ltd (No 5) [2020] FCA 637 40 Uren v RMBL Investments Ltd (No 2) [2020] FCA 647 44 Gill v Ethicon Sàrl (No 7) [2020] FCA 700 46 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 23) [2020] NSWSC 650 47 Komlotex Pty Ltd v AMP Ltd [2020] NSWSC 504; Wigmans v AMP Ltd [2020] NSWCA 104 49 Class Actions Landscape Australia | Issue 3 1 December 2020 Maurice Blackburn files second class action against Crown Resorts over money laundering risk allegations Maurice Blackburn Lawyers has filed a second class The new class action claim alleges that Crown engaged action against Crown Resorts Limited (ASX:CWN) – with in misleading and deceptive conduct; breached its the new action targeting Crown over alleged money continuous disclosure obligations; and conducted its laundering allegations following explosive evidence affairs contrary to the interests of members as a whole in by Crown directors and executives at the NSW Casino the period. Inquiry this year, and a concession from Crown it was “more probable than not” that criminals had laundered This new class action has been launched following money through bank accounts of its subsidiaries. Crown’s ASX announcement early on 19 October 2020 that the anti-money laundering regulator, AUSTRAC, Filed in the Supreme Court of Victoria, the claim covers had initiated a formal enforcement investigation into a lengthy period from 11 December 2014 to 18 October Crown having identified potential non-compliance 2020, and alleges Crown had inadequate systems and in relation to ongoing customer due diligence, and processes for ensuring compliance with its obligations adopting, maintaining and complying with an anti- under anti-money laundering laws, including as money laundering / counter terrorism financing program. they applied to its VIP international business and Following that announcement, there was a significant engagement with overseas junket tour operators. At the market response, with a decline in the Crown share price AGM on 22 October 2020, chairwoman Helen Coonan of over 8% on 19 October 2020. “unreservedly apologised” for Crown’s “governance and risk management failings”. The class action aims to recover compensation from the company, seeks the potential buy-back of investors’ shares at a fair value, and seeks that Crown implement a proper anti-money laundering training program. Applicants’ Solicitors Maurice Blackburn Applicants’ Funder The case is being run by the law firm without a litigation funder More information | Media release 2 Maurice Blackburn October 2020 The Australian matrix of public and private corporate conduct enforcement works – ASIC takes on Big Star Federal Court holds director breached duties, ASIC alleged that Antares contravened the continuous and should have disclosed details regarding the disclosure provisions by failing to disclose: (i) the name sale of assets and identity of purchaser. of the prospective purchaser under the contracts; or (ii) alternatively, the name of the prospective purchaser, the fact that Mr Cruickshank had specifically been told that Whilst not a class action, this was a civil penalty the purchaser did not have financial approval in place proceeding brought by the Australian Securities and for both relevant acquisitions, and that Antares had not Investments Commission (ASIC) alleging that the otherwise independently verified or determined the first respondent (then known as Antares Energy Ltd) capacity of the purchaser to complete the acquisitions. (Antares) and its Chairman and Chief Executive Officer ASIC further alleged that Mr Cruickshank was ‘involved’ (Mr Cruickshank) had contravened the continuous in those contraventions and/or breached his duties disclosure provisions of the Corporations Act 2001 (Cth) as a director of Antares (by failing to cause Antares to (CA). Antares itself did not defend the proceeding, such comply with its continuous disclosure obligations). that Mr Cruickshank was the only active respondent. Mr Cruickshank asserted that disclosure of the In short, the facts were that Antares was an oil and gas purchaser’s identity would potentially have prejudiced exploration and production company listed on the the transactions, and that the purchaser insisted on its Australian Securities Exchange (ASX). Its assets included identity being kept confidential (despite the fact that certain oil and gas properties in Texas, USA, known as neither of the contracts expressly imposed any such the ‘Northern Star Assets’ and the ‘Big Star Assets’. On 5 obligation). September 2015 (a Saturday) Antares entered into two The judgment is lengthy, running to some 534 contracts with Wade Energy Corporation to sell those paragraphs(103 pages). However, some of the key points assets for a combined total in excess of US$250 million to note are: (an amount which was, at that time, 15 times Antares’ market capitalisation). On the following Monday (7 • Mr Cruickshank sought to draw comfort from the ASX’s September 2015) Antares announced to the ASX the entry Guidance Note 8 concerning continuous disclosure, in into those two contracts. The announcement, however, contending that the identity of the purchaser was not did not disclose the identity of the purchaser under required to be disclosed. As to this, Banks-Smith J said the contracts, nor any other information concerning (at [225]): the purchaser’s ability to complete the contracts. A I do not accept that the wording of Guidance further announcement was issued by Antares a few Note 8 introduces a level of ambiguity or choice days’ later which again failed to disclose the identity of as to whether or not certain information is to be the purchaser, but did state that there “are no conditions disclosed.