NEW ZEALAND Trends and Developments Contributed by: Kate Cornegé and Jessica Phillips, Tompkins Wake
to make CFOs but left determination of any specific order to a later stage in proceedings. The Court of Appeal confirmed the High Court’s juris- diction to make CFOs and found that as a matter of general principle, CFOs should be made at an early stage of proceedings. The Court of Appeal observed: • the courts in New Zealand continue to “test, evalu- ate and modify the way they supervise representa- tive proceedings in response to emerging innova- tions in this area of law”; • representative proceedings “require flexibility”; • establishing the commercial viability of a litigation funding-arrangement enhances access to justice by providing certainty in the way a representative proceeding is funded; and • the overall interests of justice and, in particular, access to justice are best achieved through a CFO being made as early as possible in a proceeding. The defendant banks sought to appeal this aspect of the High Court decision, but the Supreme Court declined to grant leave for a second appeal, broadly endorsing the Court of Appeal’s reasoning on this point and noting that the jurisdiction to make a CFO arises naturally from the making of an opt-out order. This means that the Court of Appeal’s decision stands as binding precedent, subject to any subsequent Supreme Court decision or legislative initiative. Other notable recent claims Ongoing proceedings illustrate the range of potential claims being brought as class actions, reflecting the deepening understanding of the regime and the flex- ibility in New Zealand’s procedural rules. • In February 2025, a representative action was filed against Johnson & Johnson (J&J) relating to its marketing of widely used cold and flu medications Benadryl, Codral, and Sudafed as providing relief for cold and flu sinus symptoms. These products contain Phenylephrine (PE) as an active ingredient, which the FDA recently found to be no more effec- tive than a placebo when used orally. The claim alleges that J&J breached provisions of the Con- sumer Guarantees Act and that its conduct was misleading and deceptive under the Fair Trading
Act. This is one of the first large-scale pharmaceu- tical consumer class actions in New Zealand. It is intended that the class action will be run on an “opt-out” basis. • In October 2025, the High Court considered whether an existing claim against Hawke’s Bay Regional Council, one of New Zealand’s local gov- ernment authorities, could proceed as an opt-out class action. The plaintiff claims that failures of the Council’s infrastructure planning and management led to widespread flooding in Wairoa, affecting more than 400 homes and businesses. The Court’s decision has not yet been issued. • A representative action against the government filed by the New Zealand College of Midwives, a professional body for midwives in New Zealand, was heard in the High Court in August–Septem- ber 2025. The claim, brought on behalf of over 1,000 self-employed midwives, seeks damages for breaches of an agreement to increase midwives’ pay and for breach of the plaintiffs’ right to be free from discrimination on the basis of gender under the New Zealand Bill of Rights Act 1990. • An ongoing representative action against Dilworth School, a long-established Auckland boarding school for boys, is continuing before the Human Rights Review Tribunal. Filed in 2021, the claim concerns the school’s failure to protect students from sexual abuse by its staff and others in posi- tions of authority that occurred between 1970 and 2006. Significant recent settlements Settlements of class actions will often require approval of the Court, which considers whether the proposed settlement is fair and reasonable in the interests of the group members considered as a whole. In other cases, the Court may be invited to approve the meth- odology for the distribution of settlement proceeds between class members. Media attention given to recent settlements keeps class actions front-of-mind for the public and the pro- fession and may encourage more potential plaintiffs to consider whether their cases lend themselves to collective redress.
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