On 6 August 2010, the Hon. John Hatzistergos MLC, Attorney
General and Minister for Industrial Relations, announced a proposal
to reform class action laws in New South Wales (NSW). According to
the Attorney General, the reforms (which received preliminary
support from Cabinet) seek to eliminate the lack of clarity in the
current system which he believes does not 'provide clear
guidelines as to who may commence a class action, in what
circumstances and other issues such as settlement of proceedings,
costs and appeals'.1 The proposed reforms, modelled
on already existing laws in the Federal and Victorian
jurisdictions, will eliminate uncertainty whilst promoting a
uniform system to minimise confusion for litigants.2
Whilst the Attorney General has not outlined the specific
changes to the current regime, he has indicated that NSW will make
improvements as recommended by the Victorian Law Reform
Commission's 2008 Civil Justice Review and the
Commonwealth Attorney-General's Department's 2009
Access to Justice Report. Major recommendations and
implications are as follows:
the removal of the requirement that all class members must have
a claim against all defendants as established in Philip Morris
(Australia) Ltd v Nixon (2000) 170 ALR 487. Adoption of this
recommendation would promote greater flexibility and allow for
groups of related claims to be dealt with in
the adoption of a cy-press-like remedy to distribute unclaimed
damages to a charity rather than be retained by the respondent.
This would ensure that 'funds are being put to their next best
use, rather than being returned to the party or company that was
sued in the class action'.4
the requirement that those who participate in a class action
consent to the conduct of proceedings on their behalf.5
This would enable the 'settlement of claims by some members of
a (funded) class while the class action
The adoption of a uniform system in NSW is likely to promote the
state as a viable alternative to regimes in other states and
territories in Australia. As a result, it is likely that the number
of class actions in NSW will increase upon the adoption of the
A draft Bill and discussion paper is expected to be released
later this year for public consultation.
1 The Hon. John Hatzistergos MLC 'NSW Set to
Reform Class Action Laws' (Media Release, 6 August 2010). 2 The Hon. John Hatzistergos MLC 'NSW Set to Reform
Class Action Laws' (Media Release, 6 August 2010). 3 Commonwealth Attorney-General Department Access to
Justice Report (2009), 115. 4 The Hon. John Hatzistergos MLC 'NSW Set to Reform
Class Action Laws' (Media Release, 6 August 2010). 5 Victorian Law Reform Commission Civil Justice
Review (2008), 38. 6 Commonwealth Attorney-General Department Access to
Justice Report (2009), 115.
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