Class actions
Decisions on representative and group proceedings, including funding orders and the requirements for commencing them.
Common fund orders
- BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45
On appeals from the Full Court of the Federal Court and the New South Wales Court of Appeal, a majority of the High Court held that neither section 33ZF of the Federal Court of Australia Act 1976 (Cth) nor section 183 of the Civil Procedure Act 2005 (NSW) empowers a court to make a common fund order, and allowed both appeals.
Funding equalisation orders
- BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45
On appeals from the Full Court of the Federal Court and the New South Wales Court of Appeal, a majority of the High Court held that neither section 33ZF of the Federal Court of Australia Act 1976 (Cth) nor section 183 of the Civil Procedure Act 2005 (NSW) empowers a court to make a common fund order, and allowed both appeals.
Claims against several respondents
- Bray v F Hoffmann-La Roche Ltd [2003] FCAFC 153
On applications for leave to appeal from interlocutory orders in a Part IVA representative proceeding under the Federal Court of Australia Act 1976 (Cth), the Full Court of the Federal Court dismissed the Australian respondents’ appeals on section 33C, although Branson J and Finkelstein J held that the proceeding as framed did not satisfy section 33C and would allow it to be amended, and the judges divided on whether every group member must have a claim against every respondent.
What counts as a claim
- Bray v F Hoffmann-La Roche Ltd [2003] FCAFC 153
On applications for leave to appeal from interlocutory orders in a Part IVA representative proceeding under the Federal Court of Australia Act 1976 (Cth), the Full Court of the Federal Court dismissed the Australian respondents’ appeals on section 33C, although Branson J and Finkelstein J held that the proceeding as framed did not satisfy section 33C and would allow it to be amended, and the judges divided on whether every group member must have a claim against every respondent.
Validity of the representative proceedings regime
- Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27
On demurrers in its original jurisdiction, the High Court by majority rejected territorial and section 73 challenges to Part 4A of the Supreme Court Act 1986 (Vic), the group proceeding regime inserted in 2000, did not read it down and allowed each demurrer with costs.
Group members from other States
- Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27
On demurrers in its original jurisdiction, the High Court by majority rejected territorial and section 73 challenges to Part 4A of the Supreme Court Act 1986 (Vic), the group proceeding regime inserted in 2000, did not read it down and allowed each demurrer with costs.
Damages for breach of consumer guarantees
- Capic v Ford Motor Company of Australia Pty Ltd [2024] HCA 39
On an appeal by special leave, the High Court held that damages under section 272(1)(a) of the Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth), for a reduction in the value of goods are assessed at the time of supply, with later-acquired knowledge of the defect and any repair attributed to a reasonable consumer at that time but without any adjustment to avoid over-compensation, and it allowed the appeal and remitted the appellant's damages to the primary judge.
- Williams v Toyota Motor Corporation Australia Limited; Toyota Motor Corporation Australia Limited v Williams [2024] HCA 38
On appeals by special leave in a representative proceeding, the High Court held that the amount of damages under section 272(1)(a) of the Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth), for a reduction in the value of goods is fixed as at supply, attributing to a reasonable consumer what was known by trial about the defect and any repair; it allowed the lead applicants' appeal and dismissed the manufacturer's appeal and, by majority, remitted damages to the primary judge.
Same interest and open classes
- Campbells Cash and Carry Pty Limited v Fostif Pty Limited [2006] HCA 41
Allowing wholesalers' appeals by special leave, the High Court held by majority that opt-in representative proceedings under Part 8 rule 13 of the Supreme Court Rules 1970 (NSW) did not meet that rule's requirements; five Justices also concluded, in reasons not necessary to the orders, that the litigation funding was not a ground to stay the proceedings as an abuse of process or as contrary to public policy.
Litigation funding
- Campbells Cash and Carry Pty Limited v Fostif Pty Limited [2006] HCA 41
Allowing wholesalers' appeals by special leave, the High Court held by majority that opt-in representative proceedings under Part 8 rule 13 of the Supreme Court Rules 1970 (NSW) did not meet that rule's requirements; five Justices also concluded, in reasons not necessary to the orders, that the litigation funding was not a ground to stay the proceedings as an abuse of process or as contrary to public policy.
Competing class actions
- Wigmans v AMP Limited [2021] HCA 7
On appeal from the Supreme Court of New South Wales, the High Court dismissed the appeal, a majority holding that the stay power in section 67 of the Civil Procedure Act 2005 (NSW) is not confined by a first-in-time rule or presumption, and that where several firms of solicitors with different funding models run competing open class proceedings and the defendant's interests are not differentially affected, the court hearing the stay applications decides, by reference to all relevant considerations, which proceeding going ahead best serves group members, a stay being only one way to deal with multiplicity.
Group costs orders
- Bogan v The Estate of Peter John Smedley (Deceased) [2025] HCA 7
On questions reserved for the Court of Appeal of the Supreme Court of Victoria and removed into the High Court, the High Court unanimously held that a group costs order under section 33ZDA of the Supreme Court Act 1986 (Vic) would not survive transfer to the Supreme Court of New South Wales under the Corporations Act 2001 (Cth), and a majority held that the order was relevant to transfer under section 1337H(2) and here weighed decisively against it, so that the proceeding should not be transferred.
Transferring class actions between courts
- Bogan v The Estate of Peter John Smedley (Deceased) [2025] HCA 7
On questions reserved for the Court of Appeal of the Supreme Court of Victoria and removed into the High Court, the High Court unanimously held that a group costs order under section 33ZDA of the Supreme Court Act 1986 (Vic) would not survive transfer to the Supreme Court of New South Wales under the Corporations Act 2001 (Cth), and a majority held that the order was relevant to transfer under section 1337H(2) and here weighed decisively against it, so that the proceeding should not be transferred.