As we come to the end of another busy year that has again presented us all with some unexpected challenges, our National Dispute Resolution and Litigation team reflects on significant achievements, developments and industry trends and looks forward to what the year ahead may have in store.
"2022 has seen the welcome return of in-person hearings but the developments in technology which emerged to respond to the pandemic will have a lasting beneficial effect. The coming year will likely see further focus on climate related litigation, and litigation from the fallout of cyber security attacks."
Anne Freeman - Practice Team leader
"Australian firms have done well in 2022 relative to global firms facing recession, rising costs and competition and are well poised for growth in cross-border litigation in the areas of human rights (e.g., modern slavery), tort, consumer laws and corporate disclosure laws. Work practices are regularising and whilst hybrid arrangements are likely to stay, good management and supervision will be key for firms."
Ian Nathaniel - Practice Team Leader
Industry insights
Throughout 2022, we have seen a number of new emerging priorities, and subsequently, a number of changes in the dispute resolution and litigation space.
The prioritisation of ESG for businesses and regulators continues to shape the industry, as it forms one of the globe's most critical and ongoing transformational tasks. The rising scrutiny on greenwashing allegations - stemming from Australian Securities & Investments Commission (ASIC) Chair Joe Longo at the AICD Australian Governance Summit earlier in the year - has formed a growing trend of refocusing on corporate governance and the impact business operations have on climate change. The increase of climate-related risk consequently means we will see a rise in litigation, particularly around the aforementioned greenwashing and misleading 'net-zero' claims.
We saw the use of Legal Professional Privilege protections face increased scrutiny by the Federal Court of Australia earlier in the year. This scrutiny highlighted the importance of clear and well-structured engagement documentation within multidisciplinary practices and their clientele.
In the class actions space, we've seen some movement in how the Courts award aggregate damages in a funded representative proceeding - particularly regarding guidance on how the Court will approach claims where only part of the claim is suitable for determination on an aggregate basis. Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344 was the catalyst for this movement, and the judgement is liable to spur a trend in claims for aggregate damages.
As we look forward to the coming year, we anticipate the developments in class actions, including dusting off the ALRC recommendations which had been shelved by the previous Government, and the increase in climate change litigation being the issues affecting the dispute resolution and litigation environment.
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