News
Exposure Draft of the Treasury Laws Amendment (Measures
for Consultation) Bill 2021 (the Bill)
On 30 September 2021, the Federal Government released the Bill and sought consultation within a seven day period following this date. ALFA wished to make submissions to the Government in respect of the Bill, but considered that this time period was wholly inadequate for that to occur. ALFA requested an extension of time to make further submissions which was refused. Despite this refusal, ALFA made submissions in relation to the Bill and provided it to Treasury on 15 October 2021. Read ALFA's submissions here.
Draft Bill to cap class action fees threatens access to justice
Federal Government plans to limit legal fees attached to class actions will threaten access to justice for millions of Australians. Read ALFA's Media Release here.
ASIC Dollar Disclosure Relief Granted to ALFA
In November 2020, ALFA made application to ASIC for conditional relief from the requirement to disclose the relevant information in dollar terms in the PDSs of registered litigation funding schemes. This application was made on behalf of ALFA Members, but it benefits the litigation funding industry more broadly. In April 2021, ASIC granted this relief for a period of 12 months. See ASIC relief here and as amended here.
ALFA Makes Submissions to Treasury and the A-G's
Department on Minimum Returns to Class Members
ALFA has lodged its submissions opposing the introduction of a statutory minimum return of the gross proceeds of a class action to group members, set at any graduated rate or taking a graduated return.
See the full submissions here.
See the full submissions here.
ALFA Appoints Two New Directors
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The Association of Litigation Funders of Australia is delighted to announce that Stephen Conrad of Litigation Lending and Doug Hayter of Ironbark Funding have been appointed directors. ALFA looks forward to the valuable contributions they will both make.
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ALFA Makes Submissions to the Te Aka Matua o te Ture NZ
Law Commission on behalf of its Members
Extensive, thorough and detailed consultation with diverse stakeholders is critical to the integrity of the process being undertaken by the NZ Law Commission, and to the recommendations expected to be made to the Minister of Justice in May 2022.
In recent times in Australia, we have seen an ad hoc, rushed, and unhelpful political focus on changes to class actions and litigation funding, resulting in regulation that is not fit for purpose and has unintended or unfavourable consequences for access to justice.
ALFA is supportive of the review being undertaken by the NZ Law Commission, the time frame within which this review is being conducted, and the extensive consultation process being undertaken. This comprehensive review will enable considered and careful changes to be made in New Zealand and ones that will be fit for purpose.
See the full submissions here.
In recent times in Australia, we have seen an ad hoc, rushed, and unhelpful political focus on changes to class actions and litigation funding, resulting in regulation that is not fit for purpose and has unintended or unfavourable consequences for access to justice.
ALFA is supportive of the review being undertaken by the NZ Law Commission, the time frame within which this review is being conducted, and the extensive consultation process being undertaken. This comprehensive review will enable considered and careful changes to be made in New Zealand and ones that will be fit for purpose.
See the full submissions here.
Government warned on watering-down of continuous
disclosure laws
ALFA agrees that the proposed easing of continuous disclosure laws for listed companies is a heavy-handed attempt to prevent class actions and will fail to bring down the high cost of insurance for directors.
“It now seems that, contrary to the Treasurer’s statements in March 2020 when introducing the temporary amendments to the continuous disclosure obligations, the pandemic has provided cover for a legislative agenda that will have the effect of permanently shifting the balance away from the interests of ordinary investors and well-regulated capital markets, and towards the narrow sectional interests of the corporate and insurance lobbies” ALFA is quoted in the AFR article here.
“It now seems that, contrary to the Treasurer’s statements in March 2020 when introducing the temporary amendments to the continuous disclosure obligations, the pandemic has provided cover for a legislative agenda that will have the effect of permanently shifting the balance away from the interests of ordinary investors and well-regulated capital markets, and towards the narrow sectional interests of the corporate and insurance lobbies” ALFA is quoted in the AFR article here.
ALFA Makes Submissions to the Senate Economics
Legislation Committee
ALFA is pleased to have made submissions to the Senate Economics Legislation Committee Inquiry into the Treasury Laws Amendment (2021 Measures No.1) Bill 2021 (TLB Bill).
The TLA Bill seeks to amend the continuous disclosure obligations and the misleading or deceptive conduct provisions of the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001 to remove strict liability for companies and officers that fail to disclose market-sensitive information.
The proposed amendments would weaken the continuous disclosure regime in the interests of protecting corporate management and insurers and at the expense of the integrity of Australia’s capital markets and the interests of the millions of Australians who invest in shares directly and through their superannuation funds.
See the full submissions here.
The TLA Bill seeks to amend the continuous disclosure obligations and the misleading or deceptive conduct provisions of the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001 to remove strict liability for companies and officers that fail to disclose market-sensitive information.
The proposed amendments would weaken the continuous disclosure regime in the interests of protecting corporate management and insurers and at the expense of the integrity of Australia’s capital markets and the interests of the millions of Australians who invest in shares directly and through their superannuation funds.
See the full submissions here.
Media Release - PJC Report and the Government's Response
On 21 December 2020, the Australian Parliamentary Joint Committee on Corporations and Financial Services (PJC) released its Final Report following its inquiry into class actions and litigation funding (Report). The PJC Report can be accessed via this link:
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/Litigationfunding/Report
Stakeholders expected the Report, which runs over 450 pages and contains 31 recommendations, to be comprehensively responded to by the Government within three (3) months of its release. Instead, we have seen an initial response prioritising permanent legislative changes to continuous disclosure laws, changes that do not facilitate access to justice, discourage wrongdoing or promote the efficient and effective use of court resources, topics which the PJC had identified as needing an increased focus.
ALFA supports access to justice but does not support the Government's attempts to water down Australia's securities law via the Treasury Laws Amendment (2021 Measures No.1) Bill 2021 (the bill). The Bill seeks to permanently amend the continuous disclosure and misleading and deceptive conduct provisions in the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001 so that civil penalty proceedings commenced under those provisions must prove that an entity or officer acted with 'knowledge, recklessness or negligence' in respect of an alleged contravention. These changes, if made permanent, will make it more difficult for group members to secure quick and efficient access to justice.
ALFA wonders which of the remaining 30 recommendations will be addressed next. Will the Government look to implement the recommendations that support access to justice or those seeking to suppress class actions as a means of access to justice? Given the Government is yet to respond to the comprehensive Australian Law Reform Commission (ALRC) report into Class Action Proceedings and Third-Party Litigation Funders, which was tabled in Parliament on 24 January 2019, it is not difficult to guess the answer.
See the full Media Release here.
ALFA Welcomes CASL
Mortgages
ALFA is pleased to welcome CASL as its newest member funder. We look forward to CASL's contribution to the association.
The Parliamentary Joint Committee Report into Class
Actions and Litigation Funding
Mortgages
The Parliamentary Joint Committee report on litigation funding and the regulation of the class action industry was handed down in December 2020. It recommends significant changes to the class action regime and the Federal Court’s control. Review the report here.
ALFA Appoints Two New Directors
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The Association of Litigation Funders of Australia is delighted to announce that Simon Burnett of Balance Legal Capital and Kevin O'Connor of Southern Cross Litigation Finance have been appointed directors. ALFA looks forward to the valuable contributions they will both make.
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ALFA Responds to the Parliamentary Inquiry into Class
Actions and Litigation Funding
The Association of Litigation Funders of Australia is pleased to have lodged its submissions to the Parliamentary Joint Committee on Corporations and Financial Services (57).
ALFA intends to engage openly with the Committee and has sought to provide helpful and detailed insights into litigation funding and class actions.
ALFA has also provided responses to the recent announcements by the Federal Government that:
(a) it will require litigation funders operating in Australia to hold an AFSL and to conduct Class Actions as a managed investment scheme; and
(b) it will temporarily amend the continuous disclosure provisions that apply to companies under the Corporations Act 2001.
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/Litigationfunding/Submissions
Thanks to all who contributed to these comprehensive submissions: Pip Murphy, John Walker, Neill Brennan, Tom McDonald, Kim May, Augusta Ventures (Australia), Balance Legal Capital LLP, Grosvenor Litigation Funding, International Litigation Partners, Investor Claim Partner Pty Ltd, Ironbark Funding, Litigation Lending Services Limited, Southern Cross Litigation Finance and Vannin Capital
ALFA intends to engage openly with the Committee and has sought to provide helpful and detailed insights into litigation funding and class actions.
ALFA has also provided responses to the recent announcements by the Federal Government that:
(a) it will require litigation funders operating in Australia to hold an AFSL and to conduct Class Actions as a managed investment scheme; and
(b) it will temporarily amend the continuous disclosure provisions that apply to companies under the Corporations Act 2001.
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/Litigationfunding/Submissions
Thanks to all who contributed to these comprehensive submissions: Pip Murphy, John Walker, Neill Brennan, Tom McDonald, Kim May, Augusta Ventures (Australia), Balance Legal Capital LLP, Grosvenor Litigation Funding, International Litigation Partners, Investor Claim Partner Pty Ltd, Ironbark Funding, Litigation Lending Services Limited, Southern Cross Litigation Finance and Vannin Capital
The Association of Litigation Funders of Australia is pleased to have lodged its submissions to the Parliamentary Joint Committee on Corporations and Financial Services (57).
ALFA intends to engage openly with the Committee and has sought to provide helpful and detailed insights into litigation funding and class actions.
ALFA has also provided responses to the recent announcements by the Federal Government that:
(a) it will require litigation funders operating in Australia to hold an AFSL and to conduct Class Actions as a managed investment scheme; and
(b) it will temporarily amend the continuous disclosure provisions that apply to companies under the Corporations Act 2001.
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/Litigationfunding/Submissions
Thanks to all who contributed to these comprehensive submissions: Pip Murphy, John Walker, Neill Brennan, Tom McDonald, Kim May, Augusta Ventures (Australia), Balance Legal Capital LLP, Grosvenor Litigation Funding, International Litigation Partners, Investor Claim Partner Pty Ltd, Ironbark Funding, Litigation Lending Services Limited, Southern Cross Litigation Finance and Vannin Capital
ALFA intends to engage openly with the Committee and has sought to provide helpful and detailed insights into litigation funding and class actions.
ALFA has also provided responses to the recent announcements by the Federal Government that:
(a) it will require litigation funders operating in Australia to hold an AFSL and to conduct Class Actions as a managed investment scheme; and
(b) it will temporarily amend the continuous disclosure provisions that apply to companies under the Corporations Act 2001.
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/Litigationfunding/Submissions
Thanks to all who contributed to these comprehensive submissions: Pip Murphy, John Walker, Neill Brennan, Tom McDonald, Kim May, Augusta Ventures (Australia), Balance Legal Capital LLP, Grosvenor Litigation Funding, International Litigation Partners, Investor Claim Partner Pty Ltd, Ironbark Funding, Litigation Lending Services Limited, Southern Cross Litigation Finance and Vannin Capital
Litigation Funding and the Australian Financial Services Licence
Media Release
Litigation Funding and the Australian Financial Services Licence
The Federal Government has announced today that it will require litigation funders operating in Australia to hold an Australian Financial Services Licence (AFSL) and to conduct class actions as a managed investment scheme.
The Association of Litigation Funders of Australia (ALFA) is surprised by this action particularly in light of the final recommendations of the Australian Law Reform Commission (ALRC), and the views of the Australian Securities and Investments Commission (ASIC), that the courts are best placed to regulate funders and to oversee and manage specific claims and the costs of those claims.
See the full Media Release:
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Lawyers Weekly Reports on the Sydney ALFA & Shine Conference
On 17 February 2020, Lawyers Weekly published a detailed summary of the insights and comments of Federal Court Justice Michael Lee at the recent ALFA conference in Sydney. We agree with the author when he says "...from Justice Lee's speech to the ALFA conference, much discussion will continually be raised ahead into the future of class actions, the questions regarding the Victorian contingency fee model, competition and the future of the common fund order"
https://www.lawyersweekly.com.au/biglaw/27487-more-questions-raised-for-the-future-of-class-actions?utm_source=LawyersWeekly&utm_campaign=17_02_20&utm_medium=email&utm_content=1&utm_emailID=
https://www.lawyersweekly.com.au/biglaw/27487-more-questions-raised-for-the-future-of-class-actions?utm_source=LawyersWeekly&utm_campaign=17_02_20&utm_medium=email&utm_content=1&utm_emailID=
ALFA Conference - Save the Date - February 2020
Common Fund Orders: CEO Comment in Insurance News
Following the decision of the High Court regarding the power of the Court to make Common Fund Orders, Chief Executive Officer of The Association of Litigation Funders of Australia, Pip Murphy provided comments on behalf of ALFA in the article below:
https://www.insurancenews.com.au/local/high-court-decision-disappointing-class-action-funders-say
https://www.insurancenews.com.au/local/high-court-decision-disappointing-class-action-funders-say
ALFA New Chief Executive Officer
The Association of Litigation Funders of Australia is delighted to announce that Pip Murphy has joined as its new Chief Executive Officer.
Pip is a former partner of global law firm Baker McKenzie and more recently was the Regional Managing Director, Australasia of Vannin Capital, a leading global dispute resolution funding firm.
Pip is a former partner of global law firm Baker McKenzie and more recently was the Regional Managing Director, Australasia of Vannin Capital, a leading global dispute resolution funding firm.
ALFA New Director
The Association of Litigation Funders of Australia is delighted to announce that Tom McDonald has joined the Board as a Director.
Tom is the Regional Managing Director, Australasia, of Vannin Capital, a leading global dispute resolution funding firm. Vannin is wholly owned by Fortress Investment Group and has offices in Australia, Europe and the Americas. Tom has overall responsibility for the Vannin’s investing activities in Australasia.
Prior to joining Vannin, Tom was a restructuring lawyer at Ashurst. Tom is a professional member of ARITA and holds a BA/LLB (hons) from the University of Queensland.
Tom is the Regional Managing Director, Australasia, of Vannin Capital, a leading global dispute resolution funding firm. Vannin is wholly owned by Fortress Investment Group and has offices in Australia, Europe and the Americas. Tom has overall responsibility for the Vannin’s investing activities in Australasia.
Prior to joining Vannin, Tom was a restructuring lawyer at Ashurst. Tom is a professional member of ARITA and holds a BA/LLB (hons) from the University of Queensland.