Message from the Chair

Litigation Funding and the Regulation of the
Class Action industry

On 29 July 2020, the Law Council appeared before the Parliamentary Joint Committee on Corporations and Financial Services as part of its Inquiry into Litigation Funding and the Regulation of the Class Action Industry.

The Law Council was represented at the public hearing by former President, Ms Pauline Wright, former Chair of the Federal Litigation and Dispute Resolution Section, Mr John Emmerig, Member of the Corporations Committee of the Business Law Section, Mr Greg Golding and Senior Policy Lawyer, John Farrell. Thanks all contributors to this submission.

Key positions outlined by the Law Council’s representatives at the hearing included that the Law Council:

• considers that while Australian class actions are generally working well, there are opportunities to improve the system;
• opposes permitting lawyers to charge contingency fees as it is not persuaded that potential marginal gains in access to justice are outweighed by the risks to the ethical duties of lawyers and the potential effect that any compromise of these duties could have on the interests of class members;
• supports carefully calibrated regulation of litigation funding, in particular by authorising increased oversight by the courts and through the increased oversight of ASIC as part of the application of the Australian Financial Services Licensing Regime; and
• opposes any additional regulation of Australian legal practitioners.

Please see report released on the 21 December 2020.

Litigation Funding - ASIC

The ASIC Corporations (Litigation Funding Schemes) Instrument 2020/787 (20 August 2020) was made under the Corporations Act 2001 No. 50 (Cth) on 21 August 2020.

According to the explanatory statement, the purpose of the instrument is to "support the transition to the new regulatory framework for litigation funding schemes commencing on 22 August 2020 and to give effect to [g]overnment policy on the regulation of litigation funding".

The Australian Securities and Investments Commission has stated that the instrument includes relief from:

• "the obligation to give a Product Disclosure Statement (PDS) to 'passive' members of open litigation funding schemes - on the condition the PDS is available on the scheme operator's website and referred to in advertising material;
• the obligation to regularly value scheme property;
• the statutory withdrawal procedures for members who withdraw from a class action under court rules; [and]
• the requirement to disclose detailed fees and costs information and information about labour standards or environmental, social or ethical considerations".

ASIC has also issued a no-action position (21 August 2020) "in relation to the obligation under Chapter 2C of the Corporations Act to set up and maintain a register of members of a registered litigation funding scheme".

See: ASIC media release (21 August 2020). 

A Federal Human Rights Act

The Law Council of Australia believes that now is the time to reignite the conversation and calls on the Australian Government to implement a federal Human Rights Act.

Addressing the National Press Club in Canberra on 18 November 2020,former Law Council President, Pauline Wright, said in launching the Law Council’s policy position, that many Australians would not know that their human rights are not protected by the Constitution or legislation. Read more

See the National Press Club address here.

Client legal privilege, public interest immunity, privilege against exposure to penalty and penalty privilege
and case notes

The following case notes have been provided by Stephen Tully, Barrister, Sixth Floor, St James' Hall Chambers.

Australian Building and Construction Commissioner v O'Halloran [2020] FCA 1291

The Australian Building and Construction Commissioner (the Commissioner) sought declarations and penalties against individual respondents following alleged unlawful industrial action. In their defence, the respondents claimed and reserved their right to claim the privilege against self-exposure to civil penalties. At issue was whether the respondents could plead an amended defence, relying on positive defences not previously pleaded, after the close of the Commissioner’s case (at [24]). Read more.

Roberts-Smith v Fairfax Media Publications PTY Limited (No 6) [2020] FCA 1285

Mr Roberts‑Smith commenced defamation proceedings against several respondent media companies and journalists concerning his conduct whilst serving in Afghanistan. The Inspector‑General of Australian Defence Force (IGADF) asserted public interest immunity over certain documents sought by the respondents which were held by Mr Roberts-Smith and required by law to be confidential. In conditions of strict confidentiality, the ICADF was conducting an Inquiry into the alleged conduct of Australian Special Forces while serving in Afghanistan. Read more. 

BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181

An Administrative Appeals Tribunal decision was challenged on the basis that the Tribunal exceeded its jurisdiction by failing to observe an inviolable limitation on its power by questioning a protection visa applicant about communications between himself and his lawyer before advising that applicant that legal professional privilege entitled him to refuse to answer certain questions. The primary judge found that the Tribunal’s questions did not invite the disclosure of legal advice, that any privilege was impliedly waived by the appellant’s inconsistent conduct and that the appellant had not been deprived of a favourable outcome. Read more. 

Roberts-Smith v Fairfax Media Publications Pty Limited (No 8) [2020] FCA 1630

This judgment followed Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285 (described above) concerning the examination of communications undertaken for the purposes of an Inquiry into the alleged conduct of Australian Special Forces while serving in Afghanistan.

A further question arose after confidential affidavits had been received: what approach was to be adopted for information provided to the Inspector-General of Australian Defence Force (IGADF) by persons other than Mr Roberts-Smith in circumstances where the statutory abrogation of the privilege against self-incrimination was effected on the express basis that the information given or documents produced would not be admissible in evidence against the person in any civil or criminal proceeding. Read more.

Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232

The Australian Competition and Consumer Commission (the Commission) commenced proceedings against NSW Ports Operations Hold Co Pty Limited and two of its subsidiaries (the NSW Ports parties) alleging anti-competitive conduct. The Commission as well as the Port of Newcastle Investments Pty Limited and two related companies (the Port of Newcastle parties) claimed legal professional privilege over certain communications by its employed or “in-house” lawyers. They supported their privilege claims by affidavit evidence from solicitors who had no direct knowledge of the purpose of the communications or the circumstances in which they were made. Read more.

Federal Court Case Management Handbook

The Federal Court Case Management Handbook is a handy reference tool for practitioners. It is available here.

Privilege and Immunities Committee

The Chair of the Privilege and Immunities Committee is seeking expressions of interest from members in each state and territory, who have a special interest in LPP, Public Interest Immunity and Without Prejudice Privilege to contribute to the work of the committee. Please contact Ian Bloemendal.  

Australia's National Integrity System: The Blueprint for Action - Comments

The Law Council of Australia believes that release of the report into the integrity of the Australian Government could not have come at a better time. Australia is falling behind in its international obligations in its efforts to fight corruption, resist undue influence and protect the integrity of democracy. That is why the Law Council welcomes the release of the Blueprint, outlining the actions needed to ensure a high integrity future, with the development of a new federal integrity commission a vital step in making sure Australian maintains a trustworthy government.

The Law Council believes that the current model of Commonwealth Integrity Commission as proposed in the government’s Exposure Draft is problematic, due to the differing thresholds of conduct that will be deemed to be corrupt depending on whether it is engaged in by members of law enforcement agencies or members of public sector agencies. Read more.

Competition and Consumer Amendment (Australian Consumer Law - Country of Origin Representations) Act

The Competition and Consumer Amendment (Australian Consumer Law - Country of Origin Representation) Act 2020 No. 94 (Cth) creates an explicit power to prescribe one or more processes that fulfil the definition of "substantially transformed" in relation to the county of origin provisions under the Competition and Consumer Act 2010 (Cth).

Law Council Update - Information for the legal profession about the COVID-19 outbreak

The Law Council has put together a webpage with helpful links for the legal profession. Read more.

To join the Section and renew your membership click here.

Newsletter contributions:

Please send to the Editor, Ian Bloemendal at ibloemendal@claytonutz.com.

Selection of Judicial speeches and other publications

September - October 2020

23 September 2020: The Hon Justice S C Derrington: "World in a Box: What Legal Issues Might Yet Need to be Resolved and By What Mechanism?" as part of the Australian Academy of Law "World in a Box" online seminar. Read more.

23 September 2020: Justice Stewart: "World in a Box: Impact of Containerisation on Shipping Transactions" as part of the Australian Academy of Law "World in a Box" online seminar. Read more.

20 October 2020: Justice Colvin: "Virtue, Honour and Ethics: Problems with a Deontological Perspective on Ethical Responsibilities of Lawyers" a paper prepared for the Western Australian Bar Association Spring CPD. Read more.

ABC Law Report - "How well did the ADF Legal Officers in Afghanistan perform their task? And the right to silence a focus in High Court decision"

The ABC Law Report broadcasted on 24 November 2020 discusses Justice Brereton's report into the alleged war crimes by our special forces in Afghanistan, and failures in lines of accountability by on-the-ground Australian Defence Lawyers. The report also considers the 'right to silence' and the High Court decision which quashed a conviction and ordered a retrial due to a trial judge's comments to the jury regarding the accused's decision not to give evidence. Watch here.

ABC Law Report - "Royal Commission into Lawyer X findings. And Family Court's Lighthouse Project new approach to family violence"

The ABC Law Report broadcasted on 1 December 2020 discusses the Royal Commission into the Management of Police Informants. It also covers the Family Court's 'The Lighthouse Project', a pilot scheme designed to link support services to families experiencing violence. Watch here.

Senate Committee Report

The Senate Legal and Constitutional Affairs Committee has made its November report available regarding the Federal Circuit and Family Court of Australia Bill 2019 (Cth) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth). The Senate endorsed the Bills and recommended that they be passed. Read more.

Australian Law Reform Commission News

Associate Professor Andrew Godwin has been welcomed as Special Counsel for the Review of the Legislative Framework for Corporations and Financial Services Regulation. Read more.

On 28 October 2020, the Law Council of Australia hosted an online webinar, "Closing the Justice Gap: Implementing the Australian Law Reform Commission's Pathways to Justice Roadmap". The webinar discussed the report's recommendations, priorities for implementation, and whether a roadmap to meet the justice targets in the new National Agreement on Closing the Gap already exists. Read more and to view the recorded webinar.

Administrative Appeals Tribunal News

The AAT Bulletin is a weekly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions.

The current and past Bulletins can be accessed here. 

The AAT's annual report for the financial year ending 30 June 2020 was tabled in Parliament on 15 October 2020. The report includes an overview from the President and Registrar, analysis of the AAT's and Immigration Assessment Authority's caseloads, results against key performance measures, and information about management and finances.

See the 2019-20 at a glance for a summary.

Fair Work Commission

The Fair Work Commission has made available Benchbook-Jobkeeper disputes (Coronavirus economic response) (19 October 2020). It aims to assist parties lodging or responding to jobkeeper dispute applications under the Fair Work Act 2009 No. 28 (Cth).

High Court of Australia Update

Attorney-General and Prime Minister appointments to the High Court of Australia

On 28 October 2020, Attorney-General Christian Porter and Prime Minister Scott Morrison jointly announce the appointments of Honourable Justice Simon Steward and the Honourable Justice Jacqueline Gleeson as Justices of the High Court of Australia.

They fill the vacancies arising upon the retirements of the Honourable Justice Geoffrey Nettle AC on 30 November 2020 and the Honourable Justice Virginia Bell AC on 28 February 2021.

Attorney-General's media release (28 October 2020). 

Federal Court of Australia Update

Chief Justice Allsop has revoked and reissued Form 26

A minor amendment was made to a default description, specifically following the field titled ‘Identity and address of the addressee’ on the first page of Form 26 was amended so that it now reads ‘person to be served’, instead of ‘Central Authority / additional authority’.

See the new Form 26 here.

Special Measures Information Notice

The FCoA and the FCCA have recently made available the Special Measures Information Notice (SMIN-2) - Subpoena Inspection in the Melbourne and Dandenong Registries, setting out provisions for the operation of subpoena inspections.

Practice Information Note APP 1: Case Management of Full Court and Appellate Matters

On 17 November 2020, the Chief Justice issued Practice Information Note APP 1: Case Management of Full Court and Appellate Matters to acquaint parties and the profession with the Court’s practice and procedure for the case management of its Full Court and appellate workload so that they can better prepare and assist the Court. Read More.

New Regulations - International Arbitration

Under authority of the International Arbitration Act 1974 No. 136 (Cth), the International Arbitration Regulations 2020 (Cth) were made in order to prescribe the Australian Centre for International Commercial Arbitration as the sole competent authority in accordance with sections 18(1) and (2) of the governing Act.

The Federal Court has established an online file in view of the public interest regarding Ben Roberts-Smith v Fairfax Media Publications Pty Ltd.

The Federal Court has established an online file in view of public interest regarding Virgin Australia Holdings Ltd (Administrators Appointed).

Federal Circuit Court Update

Registry opening hours December 2020-January 2021

For Townsville, Newcastle, Parramatta, Canberra, Dandenong, Hobart, Cairns, Launceston, Rockhampton, Darwin, Dubbo, Sydney (William Street) and Wollongong registries will be closed from Friday 25 December 2020 and re-open on Thursday 7 January.

For Albury and Lismore registries will be closed from Friday 25 December and re-open Monday 11 January.

For Adelaide, Brisbane, Sydney (Lionel Bowen Building), Melbourne, Perth and the National Enquiry Centre will be open throughout the period (with minimal staff) with the exception of Friday 25 December 2020, Monday 28 December 2020 and Friday 1 January 2021

Attorney-General appointments to the Family Court and the Federal Circuit Court

On 13 November 2020, Attorney-General Christian Porter announced the appointment of Judge Thomas Altobelli as a judge of the Family Court of Australia and Ms Kylie Beckhouse as a judge of the Federal Circuit Court.

Attorney General's media release (13 November 2020).

FCCA's media release (13 November 2020).

• September 2020, the Federal Court Liaison & Federal Circuit Court Liaison Committees, made a submission in relation to the changes to the quantum of costs allowable to legal practitioners under each court’s scale of costs.
   
• September 2020, the Military Justice Committee, made a submission in relation to the Royal Commission into National Natural Disaster Arrangements.
   
• October 2020, the Military Justice Committee, made a submission in relation to the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020.