Allens

Litigation & Dispute Resolution

Our experienced Litigation & Dispute Resolution legal team regularly publishes articles and updates - the full list of publications appears below. If you'd like to be notified when we add new Litigation & Dispute Resolution publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

Read about our track record in Litigation & Dispute Resolution.

Litigation & Dispute Resolution Publications

  • Unravelled: Financial Services Class Actions

    6 September 2016

    Our class actions team recently published our Class Action Risk 2016 report. The objective of the report is to look behind the headlines and hype that often surrounds class actions to provide a more holistic and objective assessment of class action risk for our clients. This is particularly important in an environment in which the press surrounding class actions has often heralded a developing crisis for Australian business.

    Read More
  • Client Update: Privilege during class action investigations - no client required

    2 September 2016

    Our recently released Class Action Risk 2016 report highlights the effect of lawyer and funder entrepreneurialism on the class action landscape. Last week's decision in the ongoing confidentiality dispute between IOOF Holdings Limited and Maurice Blackburn has provided a rare insight into the way class actions are prepared, promoted and funded. The court has also determined that class action lawyers are able to claim privilege over advice given to potential funders or to themselves in connection with the preparation of a class action, before any prospective client has given them instructions. Partner Jenny Campbell and Associate Jerome Entwisle report.

    Read More
  • Special Report: Class Action Risk 2016

    19 August 2016

    This report provides a holistic assessment of class action risk by reference to objective data – including filing and resolution trends, the sectors most at risk, the biggest contributors to risk and potential agents for change.

    Read More
  • Paper: Class actions in Australia

    18 August 2016

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation.

    Read More
  • Paper: Shareholder class actions in Australia

    18 August 2016

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation. This evolution has been facilitated by recent developments in the Australian legal landscape and Federal government support for class actions (and the litigation funding of class actions). This paper outlines some of the key issues and trends in Australian class actions (including litigation funding).

    Read More
  • Focus: Finally - a class action regime for Queensland

    17 August 2016

    Class actions in Queensland are one step closer with the introduction of proposed new legislation into the Queensland Parliament. Partner Michael Ilott, Special Counsel Robyn Morrison and Senior Associate Suzie Fraser report.

    Read More
  • Linklaters Insights: Business Crime Quarterly

    3 August 2016

    In the latest edition of Business Crime Quarterly, our global alliance partner Linklaters, with input from Allens, looks at issues including the release of the Australian Government's long-awaited report on the statutory review of the Anti-money Laundering and Counter-terrorism Financial Act; a number of convictions for fraud and corruption, particularly in the UK; the Libor prosecutions that are set to take place in the US; the EU's enhanced package to tackle money laundering and terrorist financing; and financial crime on the increase in Australia.

    Read More
  • Focus: Compliance with multi-tiered dispute resolution clauses

    28 July 2016

    The Queensland Supreme Court has stayed proceedings on the basis that the parties did not follow the agreed contractual provisions for the proper escalation of a dispute. Partner Leighton O'Brien, Senior Associate Julian Berenholtz and Law Graduate Flora Ma report on the decision that emphasises the importance of constructing appropriate dispute resolution clauses for each transaction.

    Read More
  • Client Update: Penalties: The final word

    27 July 2016

    Today, the High Court handed down its long-awaited decision in Paciocco v Australia and New Zealand Banking Group Limited, bringing an end to six years of litigation. The High Court dismissed the appeal, holding that the late payment fee charged by ANZ on credit card accounts was not a penalty or otherwise unconscionable, unjust or unfair under the relevant statutory prohibitions. The decision provides the final word on the application of the penalties rule (at least for now). Partner Belinda Thompson, Managing Associate Kate Austin and Lawyer Kelly Roberts consider the decision and its implications.

    Read More
  • Focus: Shareholder activism: Full Court says no to revolution by resolution

    18 July 2016

    At a time of increasing shareholder activism, a recent decision of the Full Court of the Federal Court has confirmed that activist shareholders have a very limited part to play in the exercise of a board's power in the management of a company. Partners Kim Reid and Julian Donnan and Associate Manu Jaireth report on the decision and what it means for boards of listed companies dealing with activist shareholders.

    Read More
  • Focus: Predictive coding endorsed again by English High Court

    29 June 2016

    In its second decision on predictive coding this year, the English High Court has again accepted the use of this innovative technology in discovery, this time in a contested application. Partner Duncan Travis, Managing Associate Kate Austin and Law Graduate Yi-Ling Ng examine the case and its implications.

    Read More
  • Allens insights: Back to basics: Managing supply chain risk from an Australian product liability perspective

    29 June 2016

    Allens Partners Phillip Cornwell, Michael Ryan and Ben Farnsworth were part of the global panel analysing the project finance market, including key economies, regional analysis and PPPs. In Getting the Deal Through's second annual issue focusing on the global project finance markets, Phillip, Michael and Ben analysed the evolving legal and regulatory landscape in Australia.

    Read More
  • Linklaters Insights: Legal professional privilege

    17 June 2016

    After months of political stalemate in negotiations with its creditors to unlock access to bailout funds, the Greek government has announced a referendum on proposed bailout conditions, an extended bank holiday and the imposition of capital controls.

    Read More
  • Allens insights: A safe harbour for now - product liability risk exposure stemming from human rights abuses in supply chains

    2 May 2016

    Globalisation has created significant benefits for consumers by making products cheaper to purchase. It has allowed consumers to access food that is out of season from halfway across the globe, or regularly update the model of their phone. However, the long and complex supply chains that facilitate these outcomes are unpredictable and difficult to control.

    Read More
  • Client Update: Court accepts market-based causation

    21 April 2016

    Perhaps the most important unanswered question in Australian class action law has been how causation may be established in a shareholder class action. After more than a decade of uncertainty, the Supreme Court of NSW has ruled that shareholders can prove causation by establishing that the price of the shares they bought was 'inflated' by a company's misleading statements. Partner Jenny Campbell and Senior Associate Mark Hare report.

    Read More
  • Focus: Full Federal Court blocks US depositions for Australian class action

    18 April 2016

    The Full Federal Court has ordered an anti-suit injunction against the applicant and a group member in the Treasury Wine Estates shareholder class action, preventing the taking of oral depositions from US-based employees under US court procedures. Partner Duncan Travis and Associate Michela Agnoletti report on a decision that emphasises the importance of the Federal Court's case management of class action litigation.

    Read More
  • Focus: Court refuses to approve class action settlement

    12 April 2016

    In a recent Federal Court decision, Justice Murphy refused to approve the settlement agreement between the parties to the Willmott class action, finding that the terms of the settlement were not 'fair and reasonable'. Partner Belinda Thompson and Graduate Lawyer Nathan Van Wees examine what this decision means for future class action settlements.

    Read More
  • Focus: Contractors face uphill battle restraining security calls

    7 March 2016

    The Supreme Court of Western Australia has dismissed a subcontractor's application for an interlocutory injunction restraining a call on a bank guarantee. Partners Nick Rudge and Jeremy Quan-Sing and Lawyer Evan Lacey discuss the decision and its implications.

    Read More
  • Focus: You've got to be perfected - Equipment leasing and the PPSA

    7 March 2016

    A recent decision of the Supreme Court of New South Wales has again illustrated the potentially severe consequences for lessors of equipment and other goods under the 'vesting' provisions of the Personal Property Securities Act 2009 (Cth). The lease can be a security interest. If the lessors don't perfect the lease by registration, they can lose the equipment. Partner Kim Reid, Senior Associate Przemek Kucharski and Lawyer Kane Kersaitis report.

    Read More
  • Focus: Predictive coding: the future of electronic document production?

    25 February 2016

    A recent decision of the English High Court may pave the way for the use of 'predictive coding' in large scale discovery and regulatory investigations in Australia. Partners Nick Rudge and Duncan Travis, Managing Associate Kate Austin and Associate Emily Giblin look at the benefits and risks of the new software.

    Read More
  • Focus: Australia has lifted certain sanctions on Iran

    18 February 2016

    In response to recent confirmation that Iran has met its international nuclear commitments, the Australian Government has lifted all nuclear-related economic and financial sanctions against that country. Partner Rachel Nicolson, Managing Associate Hilary Birks and Associate Sarah Jenkins report on what has changed and the potential opportunities for Australian businesses.

    Read More
  • Focus: Strangers no more - Taking action against an insolvent defendant's insurer

    16 February 2016

    The High Court of Australia has decided that a third party claimant can join an insolvent or potentially insolvent defendant's insurer to proceedings to seek a declaration that the insurer is liable to indemnify the defendant. Partner Andrew Maher and Lawyer Shelley Drenth discuss the decision and its implications. 

    Read More
  • Contract Law Update 2015

    11 February 2016

    Our Contract Law Update provides an overview of important contract law decisions by Australian appellate courts in the past 12 months and considers their significance for the development of Australian contract law.

    Read More
  • Focus: The investment chapter of the Trans-Pacific Partnership

    14 December 2015

    The release of the text of the Trans-Pacific Partnership Agreement has renewed the debate about the ability of foreign investors to sue governments under investor-State dispute settlement mechanisms which are commonly part of international trade agreements or investment treaties between States. Partner Peter O'Donahoo, Managing Associate Hilary Birks and Associate Chris Holland report on the investment protections available in the Trans-Pacific Partnership Agreement and how the parties have attempted to strike a balance between a State's right to regulate and the rights of foreign investors.

    Read More
  • Client Update: Significant High Court decision on settlement of regulatory proceedings

    9 December 2015

    The High Court today held that parties and regulators are permitted to put before the court an agreed position as to the value of a penalty reached as part of a settlement agreement. Our Regulatory team reports.

    Read More
  • Focus: UK Supreme Court counters High Court on penalties

    19 November 2015

    The highest appellate court in the UK has affirmed and restated the penalty rule as it applies in the UK in a recent decision that directly addresses, and counters, the High Court of Australia's approach to the rule in Andrews. Partner Nick Rudge and Lawyer Patrick Easton report.

    Read More
  • Focus: Federal Court judgment in the Chevron transfer pricing case

    10 November 2015

    The Federal Court's much-anticipated judgment in Chevron Australia Holdings v Commissioner of Taxation is the next important step in the development of Australia's transfer pricing rules. Partners Martin Fry and Toby Knight discuss certain implications of the decision.

    Read More
  • Focus: High Court rules on freezing orders for prospective overseas judgments

    4 November 2015

    The High Court of Australia recently upheld the Western Australian Court of Appeal's decision allowing for the WA Supreme Court to make freezing orders for a prospective judgment in Singapore. The core of the decision was a finding that the federal jurisdiction of state Supreme Courts to register overseas judgments under the Foreign Judgments Act is accompanied by an inherent power to make freezing orders in relation to a prospective judgment that, once made, may be registered under that Act. Partner Marshall McKenna and Associate Katie Gardiner report.

    Read More
  • Focus: Ashley Madison - litigation risks exposed

    15 September 2015

    The recent hacking of website AshleyMadison.com has exposed the website's parent companies to lawsuits in the US and Canada and has attracted the attention of the Australian Privacy Commissioner. The Ashley Madison hack will undoubtedly fuel the perception that threats to privacy are growing in the digital age. Partner Gavin Smith, Senior Associate Aleisha Brown and Law Graduate Shelley Drenth examine the litigation risks that stem from incidents of cyber-attack or data breach.

    Read More
  • Client Update: Class actions game changer averted - for now

    10 August 2015

    A potential game changer that sought to test the boundaries of the class action regime has been averted after the Federal Court refused to make a 'common fund' order in the shareholder class action against Allco Finance. The court has, however, questioned whether legislative reform is required to deal with the role played by litigation funders in class actions. Partners Ross Drinnan and Jenny Campbell report on this latest development in class action law.

    Read More
  • Client Update: ASIC to seek recovery of investigation costs

    31 July 2015

    This week, ASIC flagged a change in its approach to the exercise of its power to make orders to recover expenses and costs associated with investigations. Information Sheet 204 indicates that ASIC will be making greater use of this power to seek recovery of its costs from individuals and companies that are the subject of an investigation. While technically the power only exists in relation to proceedings finally determined by a court, it is possible that the change in approach could be applied more broadly, with ASIC seeking to recover investigation costs as part of agreed resolutions to investigations. Partner Richard Harris and Senior Associate Alexandra Mason report.

    Read More
  • Focus: Support for principals with bank guarantees

    25 June 2015

    A principal has successfully challenged a decision to grant an interlocutory injunction restraining it from calling on performance bonds. The Victorian Court of Appeal's decision reaffirmed the court's general approach in favour of rejecting such applications where, as in many cases, the purpose of the bond is to provide security and allocate cash flow risk. Partner Nick Rudge and Senior Associate Julian Berenholtz report on the Victorian Court of Appeal decision in Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd and its implications.

    Read More
  • Paper: Class actions in Australia

    28 May 2015

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation.

    Read More
  • Paper: Shareholder class actions in Australia

    28 May 2015

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation. This evolution has been facilitated by recent developments in the Australian legal landscape and Federal government support for class actions (and the litigation funding of class actions). This paper outlines some of the key issues and trends in Australian class actions (including litigation funding).

    Read More
  • Focus: High Court limits proportionate liability regime and expands insurers' liability for costs

    14 May 2015

    The High Court yesterday overturned a decision of the Full Court of the Federal Court and held that if the same loss is caused by both apportionable and non-apportionable claims, proportionate liability does not apply to the non-apportionable claims. The High Court also ordered that the defendant's insurer pay the costs of the appeal, resulting in its total liability being greater than the limit of indemnity under the policy. Partners Malcolm Stephens and Jenny Campbell and Senior Associate Mark Hare examine the decision and its implications.

    Read More
  • Focus: What next after FATF's mixed review of Australia's anti-money laundering and counter-terrorism financing regime?

    11 May 2015

    The Financial Action Task Force has released its report on the effectiveness of Australia's anti-money laundering and counter-terrorism financing regime, focusing on the extent to which it complies with international standards. The report's findings and recommendations come at a key stage in the evolution of Australia's anti-money laundering and counter-terrorism financing framework, and are likely to guide future developments. Partner Peter Haig, Senior Associate Edward Martin, Associate Andrew Shetliffe and Lawyer Glyn Ayres consider the potential impact of the report on the regulatory and enforcement landscape.

    Read More
  • Focus: When are LDs a penalty?

    8 May 2015

    The Supreme Court of Queensland recently considered whether liquidated damages in a standard form construction contract were a penalty. In a decision that traversed long-held doctrines on penalties and recent developments in Andrews and Paciocco, the court ruled that the obligation to pay liquidated damages in this case was not penal. Partners Nick Rudge and David Donnelly and Lawyer James Waters report.

    Read More
  • Focus: Third parties are no bar to arbitration: A win for arbitration?

    7 May 2015

    The Supreme Court of New South Wales has confirmed in a recent case that the impact of any dispute on third parties will generally not determine its arbitrability, which rather will be determined on the proper construction of the arbitration agreement. Partner Nick Rudge, Senior Associate Alex Price and and Lawyer James Waters report.

    Read More
  • Client Update: Significant 'blow' for penalties claims

    8 April 2015

    Today the Full Federal Court clarified the law of penalties as it applies to fees. The key development is that, in considering whether the amount of a fee is 'extravagant and exorbitant' compared to the potential costs incurred in dealing with a failure to perform an obligation, the court held that indirect costs could be taken into account. Subject to a likely attempt to appeal to the High Court, this development imposes a substantial hurdle for current and future penalties class actions. Partner Jenny Campbell and Lawyer Alicia Lyons report.

    Read More
  • Class Action Insights

    7 April 2015

    The recent settlement of the Great Southern class action raises a number of interesting and important issues, not only because the court took the unusual step of publishing its reasons for judgment after the settlement had been announced.

    Read More
  • Client Update: The driver, the racing team, the Grand Prix and the court - high-speed arbitration enforcement in the Victorian Supreme Court

    16 March 2015

    In just over a week of fast-paced litigation, the Supreme Court of Victoria acted quickly and decisively to enforce an international arbitration award. Partner Duncan Travis (view CV) and Associate Christopher Holland report on the litigation between Dutch driver Giedo van der Garde and Formula One racing team Sauber Motorsport AG, which was settled on the eve of the Australian Grand Prix.

    Read More
  • Focus: Babcock & Brown - a market disclosure claim decided

    10 March 2015

    The Federal Court has dismissed shareholders' claims against Babcock & Brown alleging failure to disclose market sensitive information. The court made important findings on the scope of listed entities' continuous disclosure obligations in the context of accounting irregularities, and potential insolvency. The court has also given theoretical support to market-based causation, although this was not necessary to decide the case. Partner Duncan Travis and Lawyer Michela Agnoletti report on the decision, and its implications.

    Read More
  • Focus: Further guidance on promoter penalty provisions

    27 February 2015

    The Federal Court has recently had another opportunity to consider the application of the promoter penalty provisions in the Taxation Administration Act. The Federal Court's recent decision indicates that the promotion of schemes that are clear and deliberate tax exploitation schemes will result in substantial penalties. Partner Alex Cuthbertson and Managing Associate Susie Stone report.

    Read More
  • Focus: The year to come for Australia's Anti-Money Laundering and Counter-Terrorism Financing regime

    27 February 2015

    Having recently acquired a new CEO and a significant funding boost, AUSTRAC is being closely watched by reporting entities for an indication of its future direction and priorities, both at the policy and the enforcement level. In light of this, and with major review reports pending, 2015 promises to be a significant year for Australia's Anti-Money Laundering and Counter-Terrorism Financing regime. Partner Peter Haig, Senior Associate Edward Martin and Associate Andrew Shetliffe consider the year ahead.

    Read More
  • Focus: Bigger sticks, smaller budget: ASIC's enforcement in 2015

    25 February 2015

    In 2014, the Australian Securities and Investments Commission (ASIC) was chastened by the Senate Economics References Committee, which wants ASIC to be more effective, but encouraged by the Financial System Inquiry, which wants ASIC to take on greater powers. Meanwhile, the Federal Government has reduced ASIC's funding. The release of ASIC's latest six-monthly enforcement report and its updated regulatory guide on enforceable undertakings provides an opportunity for Partners Matthew McLennan and Alex Cuthbertson and Associate Catherine Li to consider how ASIC might reconcile its competing enforcement priorities in 2015.

    Read More
  • Focus: Finality: an important objective of class actions

    12 February 2015

    The recent Great Southern class action settlement included a term by which group members acknowledged and admitted that loans taken out with independent financiers to finance investments in Great Southern managed investment schemes were valid and enforceable. Two separate Victorian Supreme Court decisions found that such a term was fair and reasonable because, among other things, it provided finality to the litigation. Partner Belinda Thompson and Senior Associate Kate Austin examine the decisions and their implications.

    Read More
  • Focus: Managing shareholder activism - who is in the driver's seat?

    3 February 2015

    The recent New South Wales Supreme Court decision of Molopo Energy Limited v Keybridge Capital Limited reflects the continuing growth of shareholder activism in the Australian corporate landscape. The case is a reminder that boards need to remain aware of developing activist strategies, particularly where attempts are made to usurp the powers vested in the directors. Litigation Partner Kim Reid, Corporate Partner Kate Towey and Senior Associate Jack Power report on this decision and the implications for directors of listed companies in responding to activist shareholders.

    Read More
  • Contract Law Update 2014

    2 February 2015

    Our Contract Law Update provides an overview of important contract law decisions by Australian appellate courts in the past 12 months and considers their significance for the development of Australian contract law.

    Read More
  • Vietnam Legal Update: New Law on Bankruptcy to take effect in January

    22 December 2014

    Vietnam's new Law on Bankruptcy will take effect from 1 January 2015, bringing in a number of changes, including a new definition of 'bankruptcy'. Partner Robert Fish and Junior Associates Giang Quang Nguyen and Linh Nguyen look at the most significant features of the new law and note what will differ from the current regime.

    Read More
  • Focus: Public authorities - reduced protection against negligence

    19 December 2014

    In coming to a recent decision, the Queensland Supreme Court has taken a narrow view of a section of that state's civil liability legislation that was designed to limit the liability of public authorities in Queensland. Partner Nicholas Ng and Senior Associate Goran Gelic report on this decision and its implication of greater liability exposure.

    Read More