Dispute Resolution & Litigation: 2021 Year in Review
15/12/2021
As we come to the end of another busy year that has again presented us all with some unexpected challenges, our National Dispute Resolution and Litigation team reflects on significant achievements, developments and industry trends and looks forward to what the year ahead may have in store.
2021 has been an incredibly busy year. We have seen an increase in dispute resolution and litigation activity across many sectors, with COVID-related disputes forming part of that growth.
Anne Freeman – Practice Team leader
While this year has been a challenging one, we have been amazed and impressed at the resilience, flexibility and innovation displayed by our team, our clients and the community at large.
Ian Nathaniel – Practice Team leader
Industry insight
2021 brought a number of significant changes in the dispute resolution and litigation space.
The use of technology for virtual hearings and mediations, which began last year, has increased and been widely adopted this year. Although we are seeing the tentative return to “in person” hearings in some courts, it is likely that some hearings, or parts of hearings, and mediations will be conducted remotely in the future. This will be welcome news in terms of costs efficiencies for our clients, especially where parties and witnesses are located in different jurisdictions or for less contentious hearings, such as returns of subpoena.
The landscape for funded litigation is constantly evolving, with regulatory changes which require litigation funders to hold Australian Financial Services Licences and the registration of class actions as managed investment schemes, and attempts to cap returns to funders and end open class actions. The ability of a court to order common fund orders remains unresolved and will be the subject of a High Court judgment. The ability of solicitors to enter into contingency fee arrangements has seen greater activity in the class action space in Victoria. All the changes, and proposed changes, result in continued uncertainty for both plaintiffs and defendants in this space.
2021 has also seen the onset of litigation in relation to climate change, including a Federal Court decision (now on appeal) that imposed a novel duty of care on the Minister for the Environment to avoid causing harm to children when deciding whether to grant an approval to expand a coal mining project. There have also been misleading or deceptive claims brought alleging “greenwashing” in relation to emission targets.
As we look forward to the coming year we anticipate the regulation of class actions and the increase in climate change litigation being the issues affecting the dispute resolution and litigation environment.
Team movements
This year we were delighted to promote a number of team members within our ranks and welcome some wonderful new additions to our team. Caterina Meduri from our Sydney office was promoted to Special Counsel during mid-year promotions and Hannah Veldre, also from our Sydney office, was promoted to Senior Associate.
We also welcomed two new Senior Associates to our growing Sydney team – Sian Ede and Kate Sambrook – who have both hit the ground running and have enjoyed working with our fantastic clients on challenging and complex matters.
Significant matters
Throughout the year, we continued to represent and advise our clients on many and varied types of disputes including:
SEAS Sapfor Forestry Scheme Class Action (IMF Bentham / Omni Bridgeway)
Securing an $80 million judgment in Supreme Court of New South Wales proceedings for investors in the SEAS Sapfor forestry scheme in a case concerning breach of trust and negligence by Australian Executor Trustees (a subsidiary of IOOF).
Zoetis
Acting for Zoetis Australia defending a claimed $53 million class action brought by owners of horses which were administered with the Hendra Virus vaccine marketed by Zoetis, who allege the horses suffered side effects from the vaccine.
Bogasi Pty Ltd
Representing a trustee company (Bogasi Pty Ltd) in relation to proceedings concerning the beneficial ownership of significant trust assets. The claim relates, amongst other things, to the construction of a Will of the late patriarch of the Sundell family. The assets in dispute are in the order of more than $50 million.
Pentridge Village Pty Ltd
Representing plaintiffs including the liquidator of Pentridge Village Pty Ltd(In Liq) and related entities in relation to four concurrent Supreme Court matters against several defendants ranging from CFMEU, a receiver and manager, a first tier bank and a subsequent third tier lender. The matters are complex and involve causes of action ranging from torts of intimidation, nuisance and interference with contractual relations to breaches of the Corporations Act in relation to directors duties, powers of receivers, misleading and deceptive conduct and unconscionability as just some of the issues. The loss and damage in each claim is interrelated but essentially relates to a loss of opportunity of a developer and builder to complete a significant domestic and commercial site in Victoria.
LCM Operations Pty Ltd
Assisting LCM with its successful declaration upholding the enforceability of its class action funding agreements in the Gladstone Fisheries class action – a landmark decision confirming the validity of the class action funding business model in jurisdictions whose legislatures have not abolished the torts of maintenance and champerty.
Maxi EFX Global
Acting in relation to multi-million dollar Federal Court Proceedings brought by the Australian Securities and Investments Commission (ASIC) in relation to alleged breaches of the Corporations Act and Australian Securities and Investments Commission Act by Maxi EFX Global AU Pty Ltd in the conduct of Forex and CFD trading.
Peregrine Corporation
Currently defending an employment class action on behalf of SEPL Pty Ltd, a Peregrine Corporation company. The Applicants claim damages over a 6 year period from current and former employees in respect of five distinct claims. The proceedings have been defended, and after a contested application, Piper Alderman’s client secured the Applicants’ agreement to make corrective statements about various public claims made about the proceedings. Peregrine is one of the top 15 private companies in Australia and the largest private company and employer in South Australia. The class action has also involved novel questions of class closure.
Queensland Energy Class Action (LCM Finance)
Currently acting on the largest energy class action in Australian history. The claim is being brought against Stanwell Corporation Limited and CS Energy Limited on behalf of all electricity consumers in Queensland (roughly 1.7 million residential and 440,000 business consumers).
Point Cook Land Investment/Breach of Directors’ Duties
Acted for a director accused of breaching his directors duties when issuing shares pursuant to an Option Agreement to founding shareholders, resulting in gains exceeding $80m to those shareholders. After running a ten day trial in the Federal Court, the matter was the subject of extensive settlement negotiations and ultimately a court approved settlement.
Recognition
Across our national dispute resolution & litigation practice team, we have received a number of individual and team recognitions this year. We thank our clients and colleagues for their ongoing support.
The Legal 500 Asia Pacific
In the 2021 edition of The Legal 500 Asia Pacific, Piper Alderman was recognised across 10 areas of law including Dispute Resolution. A number of our team members were highlighted as recommended or key lawyers for this category, including:
- Gordon Grieve
- Greg Whyte
- Ian Nathaniel
- Anne Freeman
- Louise Gehrig
- Simon Morris
- Martin del Gallego
- Lillian Rizio
The Best Lawyers® in Australia, 2022 edition
In the 2022 edition of The Best Lawyers in Australia, 51 of Piper Alderman’s lawyers are recognised across 42 legal areas including the following partners in our Dispute Resolution & Litigation team:
- Nick Burkett: Insurance Law / Legal Malpractice Litigation – Brisbane “Lawyer of the Year”
- Anne Freeman: Alternative Dispute Resolution
- Louise Gehrig: Insolvency and Reorganization Law
- Tom Griffith: Alternative Dispute Resolution
- Simon Morris: Alternative Dispute Resolution / Litigation
- Simon Ward: Defamation and Media Law – Adelaide “Lawyer of the Year” / Litigation
- Greg Whyte: Insurance Law / Legal Malpractice Litigation / Litigation
We were also delighted to receive some very kind feedback from clients and contacts during the research process for the legal directories, including:
‘Piper Alderman has a team with a wide range of experience across commercial litigation. The firm has a skilled group of litigation solicitors, who are a pleasure to deal with. They also have good insight and judgment across commercial litigation generally, as well as particular experience in class actions.‘
‘Compared to other firms, in my experience, the Piper Alderman litigation practice is very experienced in both preparing and running cases. They have strong relationships with and work well with barristers that they brief and they are also very good at managing clients both in terms of the legal issues and the process of the case. They apply the correct amount of resourcing to the case.‘
Business Development activities
The Dispute Resolution & Litigation team was also involved in a number of client and industry facing events, sponsorships and partnerships, whilst actively producing and publishing a number of timely insights.
Our team was also involved in producing webinars for clients, including those below (which are now available to view on demand):
Webinar: ACCC Priorities 2021 – Tom Griffith & Andrew Rankin