Dispute Resolution & Litigation: 2023 Year in Review
As we approach the conclusion of yet another busy year, our national Dispute Resolution & Litigation team reflects on 2023’s accomplishments, developments, and industry trends, and predicts what the coming year ahead may have in store.
“2023 has seen the Piper Alderman Dispute Resolution and Litigation team continue to attract a significant volume of complex and rewarding work. We are grateful for the confidence and trust that our clients readily place in our team, which is a testament to the quality of our lawyers and the efforts taken by each and every member, from non-fee earners through to senior partners, in prioritising the pursuit of outstanding results.”
Martin del Gallego – Practice Team leader
2023 has witnessed increasing risks of regulatory investigation, enforcement action, and litigation for businesses, particularly in areas related to competition and privacy. Regulator prioritisation of greenwashing, data privacy and security, intellectual property and unfair contract terms has contributed to a growing number of commercial disputes – and consequently, greater penalties being issued.
In the class actions space, the Full Federal Court in the McDonald’s case (Elliott-Carde v McDonald’s Australia Limited  FCAFC 162) has confirmed that the Court has power under s33V(2) to make common fund orders as part of the settlement approval process. Similarly, the Honourable Justice Michael Lee in the Jaguar case (Greentree v Jaguar Land Rover Australia Pty Ltd  FCA 1209) has also opened the door for solicitor CFO’s in certain circumstances, disrupting the long held notion that solicitors (in states other than Victoria) are prohibited in all circumstances from receiving contingency based fees.
The High Court has granted special leave to weigh in on important questions regarding the availability of aggregate damages awards in class actions (on appeal from Toyota Motor Corporation Australia Limited v Williams  FCAFC 50). And finally, in Karpik v Carnival plc  HCA 39, the High Court has provided guidance on the application of Australia’s unfair contract terms regime, finding that s 23 of the ACL can apply to contracts governed by foreign law and applies to the conduct of foreign entities carrying on business in Australia. Further, by reference to the criteria set out in s 24 of the ACL, found the class action waiver clause to be void as an unfair term (despite not otherwise being incompatible with Australia’s class action regime).
Looking forward, we expect to see class action and non-class action claims alike continuing to rise in cases relating to unfair contract terms, unconscionable conduct, automotive claims, and claims for data and privacy breaches, both based on existing legal frameworks and potential expansion of causes of action available through legislative changes. The Privacy Act 1988 (Cth) reforms around serious invasions of privacy, for example, may impose a significant risk for businesses who have not reviewed and perhaps modified their existing privacy policies.
We congratulate Kate Sambrook on her promotion to Partner in January 2023 and to Caterina Meduri on her promotion to Partner in July 2023.
The team was also pleased to announce the promotion of Jordana Yencken-Nissenbaum (Senior Associate), Harry Best (Senior Associate), Millie Byrnes Howe (Senior Associate), Laura Godfrey (Senior Associate) and Daniel Ryan (Associate) in July 2023.
We welcomed Tim Maybury (Senior Associate), and Sean Felthouse (Associate) in our Sydney office, and Holly Chillingworth (Senior Associate) and Christine Lim (Senior Associate) in our Brisbane office.
Throughout the year, we continued to represent and advise our clients, across various industries and dispute types, including:
AAFC1 v Tokio Marine
Piper Alderman acts for a Singapore head-quartered alternative asset manager in claims against insurer Tokio Marine, seeking indemnity under trade credit insurance policies for defaults on debts owed to Piper Alderman’s clients. This claim, funded by Omni Bridgeway, is one of a number of trade credit related insurance claims making their way through the Supreme Court of NSW and the Federal Court of Australia arising following the onset of Covid-19.
Koper v Zurich Plc
Following a unanimous decision in August 2023 of a 7-judge bench of the High Court of Australia dismissing Zurich’s appeal against the jurisdiction of the Supreme Court of NSW to determine a class action brought pursuant to the Third Party Claims Act 2017, Piper Alderman continues to act for the lead plaintiff seeking payment of a judgment sum obtained in the New Zealand High Court on behalf of claimants for whose benefit the judgment was made.
Slater & Anor v IG Markets Limited
Piper Alderman acts for the lead applicants in a class action against IG Markets Limited in relation to complex financial products known as contracts for difference or CFDs. Funded by Omni Bridgeway, the claim alleges failures to adequately assess investors’ objectives and financial situations, inadequate disclosures of risks, misleading and deceptive conduct and unconscionable conduct.
Zoetis Australia Pty Ltd
Piper Alderman continued to act for Zoetis Australia in successfully defending a purported $53 million class action brought by the owners of horses which were administered with the Hendra Virus vaccine developed by Zoetis, who allege the horses suffered side effects from the vaccine. Following a judgment in its favour, Zoetis obtained favourable costs orders.
Queensland Energy Class Action
The Queensland Electricity Class Action was filed in January 2021 by Piper Alderman in the Federal Court of Australia. The claim is brought against Stanwell Corporation Limited (Stanwell) and CS Energy Limited (CS Energy) on behalf of all electricity consumers in Queensland, Australia between 2015 and 2021.
AMP Class Action
Piper Alderman, together with Shine Lawyers, act for the applicants in a class action (funded by Woodsford) against AMP Financial Planning Limited, Charter Financial Planning Limited, Hillross Financial Services Limited, AMP Limited and Resolution Life Australasia Limited (formerly AMP Life Limited).
Ardent Leisure Class Action
Piper Alderman acted for the lead applicant in this shareholder class action against Ardent Leisure Group arising from the tragic accident which claimed four lives at the Dreamworld Theme Park on 25 October 2016. Funded by Woodsford, Piper Alderman obtained court approval of a settlement of the claim in November 2023.
Count Financial Class Action
Piper Alderman acts for the lead applicant in a class action against Count Financial Limited. Funded by Woodsford, the applicant seeks compensation and alleges, inter alia, that the respondent relevantly received conflicted remuneration (including commissions), charged ongoing service fees where those services were not provided and failed to provide any or adequate personal advice with respect to certain financial and insurance products.
SLB Investments Queensland Pty Ltd v Queensland Motorways Management Pty Ltd & Ors
Piper Alderman assumed the conduct of this important class action in 2022. Funded by Litigation Capital Management, the class action seeks compensation on behalf of persons who used Queensland toll roads, did not pay the required toll “on the spot” or within the time permitted, and, as a result, were invoiced for and paid additional administrative charges.
Geoffrey Peter Davis & Anor v Quintis Limited & Ors
Piper Alderman acts for the lead applicants in a shareholder class action against the former managing director and CEO of Quintis Limited, and Big Four accounting firm Ernst & Young (EY). Funded by Litigation Capital Management, the claim advances allegations of misleading and deceptive conduct in contravention of the Corporations Act.
Polchor Pty Ltd & Ors v Batchfire Pty Ltd & Ors
Piper Alderman acts for the minority shareholders in an oppressive conduct claim against a leading Queensland thermal coal producer, its majority shareholder, and director. Funded by funded by Balance Legal Capital I UK Ltd.
Bogasi Pty Ltd
Piper Alderman is 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 $70 million.
Piper Alderman has been retained by JRI Orthopaedics, a manufacturer and supplier of surgical devices based in Sheffield in the United Kingdom, to act in an appeal in the Administrative Appeals Tribunal in relation to a decision by the Therapeutic Goods Administration to remove a hip replacement device from the Australian Register of Therapeutic Goods, and therefore remove it from sale in the Australian market.
Millinium Capital Managers
Piper Alderman acts for the responsible entity of a managed investment scheme in NSW Supreme Court proceedings commenced in the commercial list in 2019.
Maxi EFX Global
Acting on behalf of the Maxi EFX Global in relation to $50 million Federal Court Proceedings brought by the Australian Securities and Investments Commission (ASIC) in relation to alleged breaches of the Corporations Act and the ASIC Act in the conduct of Forex and CFD trading.
This year, we have had some outstanding recognition – both for the team and our individuals – across our national dispute resolution & litigation practice team. We are grateful for our clients and colleagues and are looking forward to another successful year in 2024.
The Legal 500 Asia Pacific
In the 2023 edition of The Legal 500 Asia Pacific, Piper Alderman was recognised across 12 areas of law including Dispute Resolution: Class Actions. A number of our team members were highlighted as recommended, key or rising star lawyers for this category, including Anne Freeman, Greg Whyte, Ian Nathaniel, Kate Sambrook, Lillian Rizio and Martin del Gallego. Furthermore, Piper Alderman was also recognised for Dispute Resolution: Litigation. A number of our team members were highlighted as recommended or key lawyers for this category, including Anne Freeman, Gordon Grieve, Greg Whyte, Ian Nathaniel, Lillian Rizio, Martin del Gallego, McKenzie Moore and Meriel Steadman.
In the 2023 edition of Doyle’s Guide, Martin del Gallego was recognised as a Leading Australian Class Actions Lawyer.
Chambers and Partners, Asia-Pacific
In the 2023 edition of Chambers and Partners Asia-Pacific, Martin del Gallego was recognised as a notable practitioner. Our clients and contacts throughout the research process provided the following testimonials:
“prefers Piper Alderman to any other class action firm in Australia,” and adds: “Piper Alderman’s strengths are that they are entrepreneurial in devising class action opportunities, flexible in terms of fee structure, and have the ability to run very large multi-party litigation while maintaining focus on the desired commercial outcomes.”
Another client, who speaks of Piper Alderman’s
“strong reputation in the class action space,” goes on to say: “All the partners I have dealt with are astute and provide practical advice which goes to the heart of the issues in dispute. As a client, I feel I can trust the advice I receive from the firm, and they produce a reliable work product in an efficient manner. Their hourly rates are reasonable and I have confidence their advice will be of a high calibre.”
The Best Lawyers in Australia
In the 2024 edition of The Best Lawyers in Australia, 54 of Piper Alderman’s lawyers are recognised across 43 legal areas including the following partners in our Dispute Resolution & Litigation team:
- Tony Abbott – Litigation, Trade Law, Alternative Dispute Resolution
- Nick Burkett – Insurance Law, Ethics and Professional Responsibility Practice, Legal Malpractice Litigation, Professional Malpractice Litigation
- Anne Freeman – Alternative Dispute Resolution
- Louise Gehrig – Insolvency and Reorganization Law
- Tom Griffith – Alternative Dispute Resolution
- Sian Ede – Alternative Dispute Resolution – One to Watch, Litigation – One to Watch
- Simon Ward – Defamation and Media Law, Litigation
- Greg Whyte – Insurance Law, Litigation
- James Nunn – Alternative Dispute Resolution & Litigation – One to Watch, Litigation – One to Watch
- Meriel Steadman – Litigation
- Kate Sambrook – Alternative Dispute Resolution – One to Watch
- Hannah Veldre – Alternative Dispute Resolution & Litigation – One to Watch, Litigation – One to Watch
- Timothy Ward – Alternative Dispute Resolution – One to Watch
- Beau Weigand – Alternative Dispute Resolution & Litigation – One to Watch, Litigation – One to Watch
We were also delighted to receive some very kind feedback from clients and contacts during the research process for the legal directories, including the following testimonials from The Legal 500 Asia Pacific: Australia, 2023 edition:
“Well regarded in the areas of bankruptcy and insolvency, and dispute resolution generally. Partners collaborate well with legal team and supporting services (ie. barristers). Very user-friendly for clients and supporting services.”
“Considerate, communicative, competent, and honourable. The highest level of integrity, which is apparently self-imposed and regulated. Highly trustworthy.”
“The teams at Piper Alderman have a more collegiate approach than many other firms – they work well together, are supportive of each other and the client, and are innovative while being well grounded in the basics. The teams are able to pivot rapidly, which is invaluable in large or fast-moving matters.”
“Very strong, responsive, and hard-working team. Commercially minded and good diversity, with a balanced ratio of male and female solicitors.”
“Inclusive approach to dispute resolution and litigation, which avoids nasty surprises. Very capable tactically in all areas. Tenacious litigators with an enviable track record of success.”
“The Piper Alderman litigation team is a leading commercial litigation practice in Sydney. Highly competent, skilled in commercial litigation, and uniformly easy to work with.”
“The firm’s historic and continued strength is litigation. They offer the best level of responsiveness and service levels of any Australian external counsel that I use.”
“Class action litigation is all encompassing and this team are adept at being across every element of the claim and responding in a strategic and commercial way.”
“They are fantastic and can explain things in layman’s terms.”
“Excellent knowledge of the class actions and litigation space, law and procedure. High quality talent in the junior partner and senior associate ranks. Can work to a budget with targeted strategy. Commercial and problem-solvers. Know funders and funding well.”
“The Piper Alderman class action team is a leading, usually plaintiff side, class action practice. The team has successfully pursued numerous claims, with a skilful approach to achieving a return for group members. The team is highly competent, skilled in the field of class actions and easy to work with.”
The Dispute Resolution & Litigation team actively produced and published a number of timely insights while partaking in a multitude of client and industry facing events, sponsorships, and partnerships. Our team was also involved in producing some memorable content for clients and have a fantastic line-up of content for 2024 in the works.