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Litigation Funding and Group Proceedings: Consultation Paper

The submission to the Victorian Law Reform Commission's Access to Justice – Litigation Funding and Group Proceedings: Consultation Paper was prepared by the Law Council. The Law Council is grateful for the assistance of the Class Actions Committee of the Federal Litigation and Dispute Resolution Section and the Law Institute of Victoria. 

This submission addresses a number of the discussion questions identified in the Consultation Paper which are of most importance to the Law Council.

The Law Council agrees that:

‘Over the past 25 years, class actions, after a slow start, have served Australian society well. Any reasonable analysis of the actions commenced and resolved since 1992 in the Federal, Victorian and New South Wales Supreme Courts1 will conclude that the actions, in the main, have produced valuable outcomes for society. That is, most class actions have properly aired a dispute that concerns many complainants, and the resolution of the dispute has achieved finality, not only for them, but also for the defendants. Whether settled, won, struck out or dismissed, most class actions have performed the role that was intended. They have been, in the words of the second reading speech introducing the federal legislation in 1991, an ‘effective procedure to deal with multiple claims’. 1

The Law Council would be most concerned if action was to be taken by the Victorian Government to amend Part 4A of the Supreme Court Act 1986 (Vic) (Part 4A) in a manner that caused the class action regime to differ markedly from the regime in Part IVA of the Federal Court of Australia Act 1976 (Cth) (Part IVA of the Federal Court Act).

The Law Council will be equally concerned if an attempt was made to regulate third party litigation funding in Victoria that was inconsistent with the regulation of third party funding in the Federal jurisdiction. Any Victorian change should not be progressed in the absence of Federal reforms as national consistency is very important in legal service delivery. Many companies are national entities. If not, many of those trade across borders. Members of class actions are, in the main, from all Australian jurisdictions. For the legal system to be seen as enabling access to justice and for the community to be confident in the justice system, we should have consistent regimes throughout Australia as much as is possible.

You can read the full submission below.

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