 |
 |
 |
 |
 |
 |
||||
    | ||||
|
|
A class actMultiple claimants have better access to justice, thanks to a Monash report on class action law, writes FIONA PERRY Cold showers or no showers. Meals cooked in electric frypans and on barbecues. Businesses going bankrupt. Workers stood down. Few can forget the chaotic aftermath of the 1998 explosion at Esso’s Longford gas plant, when gas supplies were cut to Victorian homes and businesses for almost two weeks – at an estimated cost to industry of $1.3 billion. While the crisis brought out the best in people, who pulled together
to get In fact, lawyers representing class action plaintiffs had routinely avoided the Victorian Supreme Court since 1992, when judges, frustrated with the limitations of Sections 34 and 35 and Orders 18 and 9 of the 1986 Victorian Supreme Court Act, attacked the class action laws, calling them "useless" and "harmful to justice", and asked state legislators to repeal them. Instead, the Longford case went straight to the Federal Court, where, to ensure the case would fit within the court’s jurisdiction, lawyers had to invent an artificial claim: that Esso’s failure to supply gas and honour its contracts with businesses and consumers was a contravention of the Trade Practices Act. It was a flimsy claim that was rejected by the full bench of the Federal Court. More than two years after the explosion, and with a second claim of negligence pending before the Federal Court again, justice has been unnecessarily slow, says Mr Vince Morabito, senior lecturer in the Department of Business Law and Taxation at Monash University. "If the Victorian Supreme Court Act had been effective, lawyers would never have been forced to come up with an artificial claim to get the case into the Federal Court," he says. "This situation could have been avoided if we had had the laws in place in Victoria that we have now." In November 2000, the Victorian Parliament repealed Sections 34 and 35 of the Victorian Supreme Court Act and added new provisions to Part 4A of the Act. These were recommendations put forward by Mr Morabito and Monash senior law lecturer Mr Judd Epstein in their report, Class Actions in Victoria: Time for a New Approach, commissioned by the Victorian Attorney-General. In part, the new provisions mean that Victorian claimants now have access to the popular ‘opt-out’ scheme, which has applied in the Federal Court since 1992. Under this scheme, those eligible to join a class action no longer have to register as members – they are automatically included as part of the action and are eligible for any resulting benefits flowing from the action. However, the class members are offered the opportunity to 'opt-out' or exclude themselves from the action if they do not wish to be involved. "The new legislation increases access to justice for those who wouldn’t be able to afford it on their own, which is what class action is all about," Mr Epstein says ACTION: To find out more about Monash Law and its current activities, visit www.law.monash.edu.au |
through it, for those queuing up for compensation – for
example, restaurateurs who lost income – it also revealed a
fundamental flaw in Victoria’s class action laws. Despite the claims
mounted against Esso falling within the jurisdiction of the Victorian
Supreme Court, inadequate state class action laws meant Victorians had
to go elsewhere for justice.