Concurrent Australian Class Actions Allowed To Proceed Due To Different Funding Arrangements And Case Strategy

Key Points

• Australian courts have broad powers to make orders to manage cases of multiple representative proceedings, or class actions, brought against the same defendant(s) if it is in the interests of justice to do so—for example, under ss166 and 183 of the Civil Procedure Act 2005 (NSW) in New South Wales and under ss33N and 33ZF of the Federal Court of Australia Act 1976 (Cth) federally.
• In Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited [2016] NSWSC 17, the Supreme Court of New South Wales addressed the problem of two partially overlapping classes through allowing group members to decide which class action they would opt out of or the court would make orders removing them from the class action they had not affirmatively joined.