PLANNED CLASS ACTION(S) ON BEHALF OF MEDICAL PRACTITIONERS & HEALTH PROFESSIONALS
General information – GOLDMAN & CO LAWYERS PTY LIMITED
We are national law firm that has been successful and developed considerable expertise in defending medical practitioners against poor legal representation and unfair targeting and/or sanction.
This inept approach appears to be widespread and not limited to the clients that we have acted for.
As a result, the medical practitioners we have represented have suffered severe financial and reputation harm. In addition, we cannot underestimate the mental health and personal well-being costs of such unfair and poorly contested proceedings.
Therefore, we are at this stage seeking expressions of interest and to provide some general information only for those practitioners who may wish to be part of these prospective class actions. Please note, we are not providing any specific legal advice or legal advice to any individual practitioners and there is no guarantee that any class action or class actions will be commenced.
Please treat this as general information only.
What is a class action? A class action is an action by a group of people, called a “class.” It is brought on behalf of all class members by one or a small number of representative plaintiffs, who are the only class members who are parties to the proceedings. The actions are brought against a common party.
The class can be defined by a list of names or by a set of criteria (such as “all persons who had medical insurance with XT Co and had representation against a regulators enquiry/action during 2017”).
There are four threshold requirements for the commencement of representative proceedings:
1. There must be a claim (or possible claim) by seven or more persons, although it is not necessary to specify the number of people in the class or name the group members. 2. Where there is only one respondent, the applicant and group members must all have claims against that respondent. If the applicant has satisfied the requirement that there are seven or more persons who have claims against the same person, then the applicant can join other respondents in respect of whom some group members have claims and some do not. 3. The claims must arise out of similar or related circumstances. 4. There must be a substantial common issue of law or fact. There is no requirement for the common issues between class members to dominate over the individual issues. In addition, in the Federal Court other considerations include whether the representative proceeding satisfies a cost-benefit analysis and whether it is an efficient mechanism for the resolution of the claims of group members.
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The Australian statutory class action regimes are separate from longstanding procedures that allow courts to deal with similar claims together, such as: • Traditional representative proceedings; • The joinder of two or more persons as plaintiffs; • The use of a “test case” to determine common issues and • The consolidation of proceedings that have been commenced separately.
A recent example of this in the medical field is the case brought against Ethicon Sarl and others (including Johnson & Johnson) on behalf of some women who have had vaginal mesh implants. Only three women are named as plaintiffs, but they represent the other women who have received these implants.
Potential Claimants – who starts the process? If the threshold requirements for a class action are met, then a person with “sufficient interest” to commence the action can bring the claim as the representative party for the group. To have a sufficient interest, the representative party must fulfill each threshold requirement (above). Once the proceedings are commenced, the representative party is deemed to continue to have a sufficient interest, even if the representative party ceases to satisfy each threshold requirement (section 33D, Federal Court of Australia Act 1976 (Cth). There is no requirement that the representative party must have the largest claim. The standing provisions mean that “ideological” groups, such as environmental or political organizations, are unable to bring class action proceedings if they do not have a personal claim against the defendant(s). Members of groups, however, may be able to bring class action proceedings if they do have a personal claim against the defendants.
Who can join a class action? People who can join a class action are people who fit the criteria such as “all persons who had medical insurance with ABC Co and had representation against a regulator’s enquiry/action during 2017”). Class actions are initiated in respect of a defined group (mentioned above), who then comprise the universe of possible claimants.
The proceedings can be commenced without the consent of the group members, but group members are later informed via opt-out notices usually sent by and at the cost of the representative party, that they can elect not to continue as group members and instead to maintain the right to pursue their own claim.
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Where does a class action happen? Although several jurisdictions in Australia specifically provide for class action proceedings, they are mainly brought in the Federal Circuit Court of Australia, the Supreme Court of Victoria, the Supreme Court of New South Wales, and the Supreme Court of Queensland. The decision on where to file relies heavily upon the facts of a case, the plaintiffs, and the defendants.
Funding and Costs Claimant law firms typically represent class action group members on a conditional fee arrangement, where the lawyers’ entitlement to payment is conditional on a successful outcome to the proceedings, but the fees are calculated on an ordinary time and cost basis Contingency or success fee arrangements are currently prohibited. There is a limited exception for uplift fees, which allow lawyers to charge up to a 25% premium on their ordinary fees (excluding disbursements) if a successful outcome is achieved in litigious matters. In most jurisdictions, the lawyer must also have a reasonable belief that a successful outcome is reasonably likely before charging an uplift fee. As the prohibition on contingency or success fee arrangements only applies to lawyers, third party litigation funders can engage legal representation on an ordinary or conditional fee basis, indemnify the group members for legal costs incurred and charge group members a contingency or success fee (more about third-party funding below). From a group member’s perspective, the result is indistinguishable from the lawyer directly charging a contingency fee. There have also been recent attempts (which so far have not come to fruition) by litigation funders to act concertedly with law firms to co-fund claims, raising concern that law firms might exploit co-funding arrangements to obtain contingency fees indirectly.
Third Party Funding A third-party funder is a party who funds litigation who does not have a direct interest in the outcome. When the case settles or is won, the third party funder receives a pre-negotiated amount of the settlement or award.
In 2006, the High Court of Australia gave approval to the concept of third party funding in Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41, and since then many major class actions have been brought with support from a domestic or international third-party funder. Between June 2012 and May 2017, almost 50% of class actions filed in Australia were supported by a third-party funder.
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Damages Damages are generally calculated in accordance with common law principles of causation, remoteness and contributory liability, with regard to specific statutory recovery regimes. Although exemplary damages can be awarded (usually in common law proceedings), this is rare and occurs only when the respondent has shown a conscious and scornful disregard for the plaintiff’s rights.
Calculating Damages If the class is closed and the different group members are all party to an agreement which covers apportionment, the damages recovered may be apportioned between them based on the methodology agreed. However, distribution of damages must be approved by the court, including as part of its oversight of a proposed settlement. One factor the court must consider is whether the amount offered to each group member is “fair and reasonable” and whether any settlement is in the interests of the group as a whole and not just a part of the group. Pre-judgment interest will ordinarily be awarded on the damages award, up to the date of judgment.
Recovering Damages Respondents can cross claim against other parties in class action proceedings to ensure that arguments about those parties’ contributions to loss and damage can be heard and decided by the court. Respondents can also seek recovery against other parties once a court decision has been handed down, subject to any relevant limitation period arguments. • The amount offered to each group member. • The reasonableness of the settlement as between group members. • The prospects of success in the proceeding. • The likelihood of the group members obtaining judgment for an amount significantly in excess of the settlement offer. • The terms of any advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding. • The likely complexity, duration and cost of the proceeding if continued to judgment. • The attitude of the group members to the settlement. In the April 2016 Willmott Forests decision, the Federal Court rejected a settlement on reasonableness grounds where the settlement required a broad release of the defendants, which would have precluded group members from raising individual claims in the future. However, in October 2016 (Newstart 123 Pty Ltd v Billabong International Ltd [2016] FCA 1194), the Federal Court approved a settlement that gave a far-reaching release of the defendant company, Billabong International Ltd, and of its related entities. Justice Beach reasoned that such releases are “a common feature” of commercial settlements, that the release was crucial to achieving a settlement between the parties, and that any individual claims that may be hampered by the release were unlikely to be of “any significant value”.
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A related issue is whether group members dissatisfied with settlement terms must “opt-out” of the proceedings to retain an entitlement to bring an individual claim against the defendant. The authority is unsettled on this point.
SEPARATE SETTLEMENTS A settlement between respondents and an individual group member does not require court approval unless the individual group member is a representative party, or the settlement has the legal effect of resolving the entire representative proceeding.
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CURRENT TRENDS
In recent years, the majority of class actions have comprised claims by securities holders alleging market misrepresentation by listed entities. On 14 December 2017, the Governor-General established the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (FS Royal Commission). On 19 February 2018, UBS released a report titled Earnings predictability vs the scrutiny of the Royal Commission, stating that “evidence of mortgage mis-selling and irresponsible lending” could potentially open the banks up to class actions.
REGULATORY-DRIVEN CLASS ACTIONS In 2017, the CBA suffered a material share price drop when AUSTRAC launched proceedings alleging breaches of anti-money laundering and terrorism financing laws. On 9 October 2017, Maurice Blackburn filed a class action alleging that CBA knew about serious instances of non-compliance and that its failure to disclose amounted to misleading and deceptive conduct, and a breach of its continuous disclosure obligations. If successful, this class action has the potential to affect the way in which companies publicly report material instances of internal non-compliance. The Morabito Report also notes there is an increasing trend for multiple class actions to be filed against the same defendant in respect of the same legal dispute. Professor Morabito states that this is particularly prevalent in investor and shareholder class actions. As class actions grow increasingly complicated and sophisticated, we expect a continued rise in the number of claims emerging from single events. Professor Morabito identifies (at 30 June 2018): • 28 instances of overlapping class actions, of which 16 were shareholder claims. • 11 instances of overlapping class actions filed in multiple Australian jurisdictions. • Eight instances of non-overlapping class actions with respect to the same dispute. A number of class actions have been launched in the aftermath of natural disasters. In recent years, there have been filings of class actions in relation to: • The Black Saturday bushfires in Victoria in 2009. • The Queensland floods in 2011. • The Snake Valley bushfire in Victoria in 2013. • The Winmalee/Springwood bushfires in New South Wales in 2013.
There has been an increased number of class actions against local, state and federal governments, including in relation to the Commonwealth home insulation programme, the Liverpool City Council following the dumping of asbestos, and the Royal Australian Navy in relation to alleged misrepresentations made in relation to opportunities for training.
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REGISTERING YOUR EXPRESSION OF INTEREST
By sending an email with your details and at least a one paragraph summary of the facts to: legal@goldman-lawyers.com with the following in the subject line “MEDICAL CLASS ACTION GENERAL”
STRESS FREE LEGAL HELP – GOLDMAN & CO LAWYERS PTY LIMITED
As a leading Australian law firm, we pride ourselves on achieving the highest standards in providing legal services for you, without stress and without unnecessary cost. While we are seeking expressions of interest on this class action, we are still more than willing to speak to you to discuss other legal matters with which we can assist you. We welcome your enquiries on 1300 343 560 and www.goldman-lawyers.com