Current Class or Group Investigations:
Class Actions & Test Claims
An event or condition that affects numerous people in a similar way can be the subject of a representative lawsuit. This can be by way of “class action” in which a member or members act as group representatives. Or the allegations and liability theory can be tested in a lawsuit by a person whose injuries or losses are typical of those in the group.
Whether or not a “class action” or an individual “test claim” is preferable in any particular circumstance depends on a variety of factors. The capacity for wrongdoers to gain “security for costs” orders in class actions is a recent Australian development that militates in favour of individual “test actions”.
Class actions first arose in Australia on the inception of our Federal Court.
Since then, most states implemented their own class action regimes, in Queensland this only having occurred in March 2017.
Such actions are brought by one or more representatives on behalf of all members of the group and must arise out of similar circumstances and raise a substantial common issue of law of fact.
The Queensland regime – now contained in Part 13A of the Civil Proceedings Act 2011 – is cognate to those of the Federal Court and the New South Wales and Victorian Supreme Courts.It specifies there must be at least seven members of the ‘group’ for a class proceeding to be commenced, as compared to six in New South Wales. There can be only one representative.
The federal and most state systems (including Queensland) are “opt-out” scheme. Thus the person is automatically in the group (without the necessity of their express consent) if they come within its class parameters.All class members must however be notified of their right to opt-out by a particular specified date.
If they do not opt out within the specified period, they are deemed to be a member of the group and bound by decisions made in relation to it. An opt-out class action is therefore commenced without the express consent of the “absent” class members.
In recent years defendants have successfully argued that a class-action representative be required to produce “security for costs” i.e. an amount to cover the defendant’s legal costs in the event that the class-action claim is successful.The security amount has typically been set at around 10% – 15% of the estimated defence costs but even at that reduced amount, a “security for costs” order is a significant obstacle that has the potential to stifle class action litigation.
A court will rarely require an individual injury claimant to post “security for costs” in favour of a defendant.For these reasons and because individual claims can often be brought before a court quicker than the class-action, individual test claims are becoming more prevalent.
Cruise Ship Accidents
With the increasing popularity of cruise ship vacations, the volume of accidents and mishaps suffered by passengers is escalating.
Bodily or mental injury as a result of events at sea pose numerous legal complexities for passengers. The law of the contract is usually that of the place at which the contract is formed. With online bookings and EFT payments, this issue must be carefully explored. Equally as important is the “flag state” of the vessel and the location at which the mishap occurred.
In general terms, cruise operators have “due care and skill” obligations that they do their best to limit. Excursions and medical treatment after example, usually specifically excluded from the cruise operators own liability.Full contracts formed in Australia, compensation can be recovered here regardless of where in the world the on-board mishap has occurred.
Whether or not and event at sea can be conducted as a “class action” is dependent on a number of factors.
Textured Breast Implant Associated Lymphoma
The discovery of anaplastic lymphoma in women who received these prostheses is the subject of current litigation.
Most women feel that the supplier’s offer to contribute to the cost of removal of the implants inadequately compensates them for their anxiety, physical injury and ongoing risk of the appearance or recurrence of the disease.
We are evaluating financial compensation claims to families caused by allegedly substandard treatment of children to whom care was provided by this organisation.
App fees & exit obstacles
The business model of many smartphone App providers and even Telcos relies on income streams from customers regardless of whether the consumer is utilising the service. Providers have an obligation to highlight any exit obstacles or recurring fees in large text and colours designed to draw a reader’s attention to them.
The following are examples of “unfair terms” affecting hundreds of thousands of customers for which recompense can be received on an individual or a group basis:-
- Continuous never-ending contracts the recurring finance charge for which often go undetected by consumers for months or years;
- Non-transparent standard form contracts that fail to sufficiently alert consumers that a “weekly” service is in fact indefinitely recurring on a weekly basis;
- Not providing an in-App or other smart phone based means of subscription cancellation.