2016 was an important year for the development of class action jurisprudence in Australia. The year brought at least 25 new class action lawsuits and substantial settlements that will impact litigation moving forward.
The key decisions of 2016 are summarised in Table 1. The High Court of Australia delivered judgments in relation to two class actions. In Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28 the High Court found that the bank fees, the subject of the class action, were not a penalty, nor did they contravene consumer protection laws. Consequently, the bank fee class action, which had been touted as Australia's largest class action, ended with a decision in favour of the banks. In Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44 the High Court heard an appeal from the Victorian Court of Appeal and determined that a class member in an unsuccessful class action, who later raised individual defences against a claim from a defendant to the original class action, was not precluded from raising them by reason of Anshun estoppel, nor were the defences an abuse of process. The High Court explained that statutory class action regimes in Australia are structured so that a representative party represents class members only with respect to the claim, the subject of the class action, and the common issues, but not with respect to their individual claims. This has important ramifications for identifying the common issues and achieving finality in class actions.
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