AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Sarah Aljassim, Clayton Utz
have the power to make “soft closure” order, which is an order that temporarily closes an oth - erwise open class to facilitate settlement discus - sions. One Australian jurisdiction has legislated to allow true contingency fees in class actions. A plaintiff in a Victorian Supreme Court class action may apply for “group costs order” , which – if grant - ed – will allow that plaintiff’s lawyers to recover a percentage of any settlement or judgment in the class action, in lieu of the usual time-costed fees. In response, in July 2024, the Full Court of the Federal Court of Australia held that sections 33V(2) and 33Z(1)(g) of the Federal Court Act 1976 (Cth) empower the court to make solici - tors’ common fund orders at the time of settle - ment or judgment. A solicitors’ common fund order has a similar effect to the Victorian group costs order, in that it permits the solicitors act - ing for the plaintiff to be renumerated by taking a percentage of the settlement or judgment. The difference is that a group costs order is made at an early stage of a proceeding, whereas a solici - tors’ common fund order may only be made as part of a settlement approval or judgment. This decision is currently on appeal before the High Court of Australia. It is expected that the High Court of Australia’s decision will address the availability of common fund orders at any stage in class action proceedings and will also clarify the potential beneficiaries of common fund orders. In relation to product liability, the current prod - uct liability regime has remained relatively unchanged since its introduction in 2011 as part of the Australian Consumer Law. However, class actions are now a significant driver of a number
of different forms of litigation, including product liability litigation. 3.2 Future Policy in Product Liability and Product Safety Amendments to Australian Consumer Law In March 2017, Consumer Affairs Australia and New Zealand published the report of its review of the Australian Consumer Law. The report made a number of recommendations in rela - tion to amendment of the Australian Consumer Law ‒ some of which (eg, the increased penal - ties described in 3.1 Trends in Product Liability and Product Safety Policy ) have already been implemented. However, one that has not been implemented is the recommendation that Aus - tralia should introduce a general safety provision that imposes: • an obligation on suppliers in Australia to ensure the safety of a product before it enters the market; and • penalties on suppliers in accordance with the new penalty regime for failing to do so. Product Safety Priorities The ACCC remains committed to minimising and raising awareness of the risks posed by unsafe consumer goods. In its product safety priori - ties for 2024–25, the main areas of focus for the regulator include: • focussing on consumer product safety issues for young children, particularly the safety of nursery products including furniture, baby bottle self-feeding devices, and infant sleep products.; • strengthening product safety online ‒ for example, through compliance monitor - ing, encouraging best practices by online platforms, and raising awareness to reduce
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