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

  • Focus: Productivity Commission - third party litigation funding and contingency fees

    17 April 2014

    The Productivity Commission's draft report on its inquiry into Australia's system of civil dispute resolution has now been released. The comprehensive review focuses on ways to constrain costs and promote access to justice. One of the areas the Productivity Commission is examining is Australia's private funding for litigation regime, focusing on third party litigation funding and contingency fees. Partner Peter O'Donahoo, Senior Associate Tim Maxwell and Lawyer Simone Kaser report

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  • Focus: Civil penalties: are negotiated outcomes still negotiable?

    12 March 2014

    A recent decision of the High Court could intensify uncertainty about the legitimacy of resolving civil penalty proceedings by the regulator and the defendant approaching the court with an 'agreed penalty' supported by an agreed statement of facts. Partner Matthew McLennan and Lawyer Megan Sandler report.

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  • Focus: Investor-State dispute settlement under the Korea-Australia Free Trade Agreement

    6 March 2014

    In a shift from the previous Australian Government's position, a free trade agreement between Korea and Australia, which was recently concluded by the new Coalition Government will include investor-state dispute settlement clauses. Partner Peter O'Donahoo, Senior Associate Hilary Birks and Lawyer Anna McMahon report.

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  • Paper: Class actions in Australia

    12 February 2014

    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.

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  • Paper: Shareholder class actions in Australia

    12 February 2014

    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).

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  • Focus: Proposed reforms to create a consistent proportionate liability regime

    31 January 2014

    In response to concerns about inconsistencies across various state-based jurisdictions, and following a public consultation process, the Standing Council on Law and Justice has released revised draft model legislation to reform Australia's proportionate liability laws. Partner Andrea Martignoni and Senior Associate Andrew Lazzaro report on the proposals.

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  • Focus: More certainty for foreign corporations under Alien Tort Claims Act

    28 January 2014

    Since a landmark decision has narrowed available claims against defendants under the Alien Tort Claims Act for alleged violations of customary international law, US courts have sought to clarify exactly what geographical connection is required to justify a claim against corporate defendants. Partner Rachel Nicolson, Senior Associate Hilary Birks and Lawyer Freya Dinshaw look at a recent US Supreme Court decision that tests the waters of the new framework.

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  • Focus: Sidestepping arbitration clauses - a potentially explosive business!

    28 January 2014

    The Supreme Court of Western Australia has rejected a wide-ranging attack, by a contracting party preferring litigation to arbitration, on the operation of an arbitration clause. Partner Andrew Maher reports.

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  • Contract Law Update 2013

    17 December 2013

    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.

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  • Audio: Positive outlook for international arbitration in Australia

    12 December 2013

    Local and international arbitrators gathered in Sydney recently for Arbitration Week. Allens Partner and head of the firm's International Arbitration Group, Andrea Martignoni, spoke to BRR Media about the major issues raised during the week and the outlook for arbitration in Australia.

  • Focus: Agents, airlines, and ash - the ACCC's 'A'-list bring less than 'A'-grade results

    12 December 2013

    The ACCC has had mixed results with some recent judgments in high profile competition cases. Partner Jacqueline Downes, Lawyer Emma Arbon and Knowledge Management Lawyer Julie Playfair report on the decisions which have important implications for businesses with agency arrangements and substantial market power.

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  • Class Action Insights

    4 December 2013

    Welcome to the first edition of Class Action Insights - Allens' quarterly publication in relation to current class action issues.

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  • Client Update: US Supreme Court to reconsider 'fraud on the market'

    28 November 2013

    Perhaps the most important unanswered question in Australian class action law is how causation may be established in the context of a shareholder class action. In the United States, this issue has been addressed by the 'fraud on the market' theory. The US Supreme Court has, however, recently decided to hear a challenge to the validity of that theory. The outcome in that case is likely to be significant in determining how the causation issue is resolved in Australia. Partners Ross Drinnan and Jenny Campbell and Lawyer Thomas Bagley report.

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  • Audio: Cross-border cooperation among regulators

    25 October 2013

    Regulatory activity in Australia and globally is increasing, with a trend towards a new level of cooperation between overseas regulators. Partner Matthew McLennan, of Allens' Commercial Litigation & Dispute Resolution team, and Linklaters' Global Practice Head for Litigation Marc Harvey speak to BRR Media about the current situation and the trend towards companies commissioning their own internal investigations

  • Focus: Flooding generates more debate on consequential loss exclusion

    14 October 2013

    A recent decision of the Western Australian Supreme Court arising out of a flooding incident at a remote power station near Lake Argyle, WA has shone a bright light on the law on consequential loss in the wake of the previous authority that had informed this area of law. Partner Michael Hollingdale and Senior Associate Nicholas Gallina report on the case.

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  • Focus: Federal Court confirms pro-enforcement approach to foreign arbitration awards

    3 October 2013

    The Full Court of the Federal Court has dismissed an appeal from a Federal Court decision to enforce an award rendered in London, confirming a pro-enforcement attitude to foreign arbitration awards that gives significant weight to the decisions of courts at the seat of arbitration. The award debtors had already applied, unsuccessfully, to the English High Court of Justice to have the award set aside on procedural grounds. The Federal Court had agreed with the High Court's decision and further held that it would generally be inappropriate for an enforcement court applying the New York Convention to reach a different conclusion from the court at the seat of the arbitration. Partner Andrea Martignoni, Senior Associate James Morrison and Lawyer Theodore Souris report.

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  • Focus: Smooth sailing for arbitration clauses

    30 September 2013

    In a split decision, the Full Court of the Federal Court of Australia has signalled its support for upholding and enforcing arbitration clauses negotiated by sophisticated commercial parties. In this case, the court interpreted legislation that restricted the parties' ability to choose arbitration in 'sea carriage documents' so as to give effect to the parties' choice of arbitration in London as the dispute resolution method in a charter party for shipping goods from Australia. Partner Peter O'Donahoo, Special Counsel Nicola Nygh and Lawyer Laura Johnston report.

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  • Focus: UK the first to release a 'Good Business' plan

    23 September 2013

    In a world first, the UK Government has released a comprehensive national action plan for the implementation of the UN Guiding Principles on Business and Human Rights, which sets a new benchmark for the implementation of the Guiding Principles at the domestic level and is likely to serve as a model for other governments developing similar national plans. The plan makes clear the Government's expectation that UK businesses respect human rights in their operations, both in the UK and abroad, and outlines the measures it is proposing to take to support businesses to meet those expectations. Partner Rachel Nicolson and Lawyers Tessa Meyrick and Freya Dinshaw report.

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  • Focus: Threshold for successful prosecution of promoter penalty claims lowered

    11 September 2013

    In the first appeal court guidance on the proper construction of the promoter penalty provisions, the Full Federal Court has upheld an appeal by the Commissioner of Taxation regarding their application and, in doing so, lowered the threshold for a successful prosecution of a promoter penalty claim. Partner Tony Kuhn, Senior Associate Jonathan Joseph and Lawyer Sarah Gittus report.

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  • Focus: Clear out the dead wood? A 'root and branch' review of competition law

    9 September 2013

    The Coalition has promised a 'root and branch' review of competition law on a scale that has not been undertaken for more than 20 years, but with little guidance on the review's scope and nature. It has indicated it will extend the protections of the unfair contract terms provisions in the Australian Consumer Law to 'small business', and will resource the Australian Competition and Consumer Commission to monitor prices after the repeal of the carbon tax. Partner Jacqueline Downes and Knowledge Management Lawyer Julie Playfair report.

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  • Focus: Tipped off: the stockbroker, the client and their phone conversations

    28 August 2013

    A recently released Supreme Court of Western Australia judgment illustrates the role that recorded telephone conversations can play in the investigation and prosecution of insider trading offences. Changes to telecommunications interception legislation in 2012 increased the scope for the use of recorded conversations in the enforcement of the insider trading law. Partner Matthew McLennan and Lawyer Roslyn Stein look at the case that flags a number of issues for companies that operate recording systems.

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  • Client Update: Acceptance of class action funding reaches new heights

    21 August 2013

    The Full Federal Court signalled a new level of acceptance of class action funding when it recently required that security for costs be provided in a series of related (and unfunded) class actions. Of particular interest is the court's finding that a failure by the representative applicants to provide evidence as to why their claims were not commercially funded was a factor in favour of ordering that they provide security. This is the first time an order for security has been made in a class action that is not commercially funded and is another indication of the growing acceptance of third-party funding by the courts. Partner Jenny Campbell and Lawyer James Ebert report.

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  • Focus: ACCC scores 'clean sweep' against unconscionable vacuum-cleaner sales tactics

    16 August 2013

    The Federal Court has provided guidance on the values that might inform 'unconscionability' in future decisions, having allowed an appeal by the Australian Competition and Consumer Commission. The court declared that the sale of vacuum cleaners to elderly women in their own homes, following appointments for 'free maintenance checks' of their existing vacuum cleaners, was unconscionable. Partner Jacqueline Downes, Senior Associate Rebecca Cope and Knowledge Management Lawyer Julie Playfair report.

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  • Focus: Shifting investor-state arbitration into the public spotlight

    5 August 2013

    In response to public interest concerns, the United Nations Commission on International Trade Law has adopted new transparency rules for treaty-based investor-state arbitrations. By mandating greater disclosure of information and permitting third parties to intervene in proceedings, the new rules represent an important shift away from the privacy and confidentiality that have been traditional hallmarks of investor-state arbitration. Partner Andrea Martignoni, Senior Associate James Morrison and Lawyer Laura Johnston report.

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  • Focus: Dispute resolution clauses: are yours enforceable?

    30 July 2013

    A recent Victorian Supreme Court decision has reinforced the need for dispute resolution clauses to set out the process to be followed to resolve a dispute with sufficient certainty to enable them to be enforceable. Partner Nick Rudge, Senior Associate Nicholas Gallina and Law Graduate Emily Giblin report on the case.

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  • Audio: Human rights obligations for business in Australia

    26 July 2013

    Corporate human rights law obligations are increasing steadily in Australia and overseas. These legal reforms are informed by recent watershed international developments in this area, including global recognition of the corporate responsibility to respect human rights and rigorous standards of expected business conduct. Partner Rachel Nicolson, who leads the firm's International Business Obligations group, speaks to BRR Media about the key issues and risks facing businesses in Australia.

  • Focus: A different roadmap for investor-state dispute settlement?

    23 July 2013

    The United Nations Conference on Trade and Development has identified key shortcomings of the current system of investor-state dispute settlement, and has outlined five broad paths for reform in a recent report. The negotiation and implementation of these reforms will affect foreign investors and policymakers globally. Partner Rachel Nicolson, Senior Associate Hilary Birks and Lawyer Laura Bellamy report.

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  • Focus: Food

    16 July 2013

    We look at a new voluntary labelling system to give consumers greater information about the nutritional content of food; renewed calls for changes to the country of origin labelling regime; a push to loosen the standard of what can be sold as gluten-free; renewed scrutiny of alcohol advertising; defining the difference between a food and a medicine; and the debate around the safety of GM foods.

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  • Focus: New guidance from ASIC on its intervention in private proceedings and disclosure of documents

    8 July 2013

    The Australian Securities and Investments Commission has released guidance on its approach to involvement in private court proceedings, and on providing information and documents to private litigants. Partner Michael Schoenberg, Senior Associate Joel Phibbs and Lawyer Stuart Packham examine how this recent guidance is likely to impact on companies and individuals that are subject to ASIC investigations and enforcement actions.

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  • Client Update: Important changes to Queensland crime and misconduct law

    5 July 2013

    The Queensland Government has announced plans to make significant changes to crime and misconduct legislation. The planned changes, to be introduced into Parliament later this year, represent a new approach to the making and handling of complaints. Partner Michael Ilott and Senior Associate Stephen Hurford report.

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  • Focus: Implied waiver of legal professional privilege - when is it OK to share?

    12 June 2013

    The Federal Court recently reaffirmed that the extent, context and purpose of a disclosure of legal advice will guide whether or not legal professional privilege has been waived. Partner Duncan Travis, Senior Associate Tim Maxwell and Lawyer Monisha Sequeira report.

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  • Focus: The house always wins - problem gambling and unconscionability

    7 June 2013

    The High Court has provided useful guidance on the considerations that a court must take into account when determining whether conduct is unconscionable within the meaning of the 'unwritten law'. Partner Duncan Travis and Lawyer Mark Hosking report.

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  • Focus: Aggressive regulation of consumer goods - is 'junk food' next?

    6 June 2013

    Governments and public health experts throughout Australia are turning their attention to the health impacts of excessive consumption of 'junk food'. Although the industry is currently subject to reasonably limited regulation, recent events both here and overseas suggest that the status quo may be under threat. Partner Peter O'Donahoo, Senior Associates Susie Stone and Tim Maxwell and Lawyer Mark Hosking report.

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  • Focus: Serving a response - just press send?

    5 June 2013

    A recent decision by the Supreme Court of WA not to quash an adjudication determination, even though the adjudicator's findings may have been wrong, revolves around issues of sending responses to an adjudication electronically. Partner Michael Hollingdale reports on a case that has broad implications for service under WA's electronic transactions legislation.

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  • Focus: Federal Court refuses to approve Vioxx class action settlement

    31 May 2013

    The Federal Court recently refused to approve a proposed settlement of the long running Vioxx pharmaceutical class action. While the applicant and respondents had agreed on the terms of the proposed settlement, the Federal Court considered that the settlement would not be in the interests of group members as a whole, and refused to grant its approval. Partner Belinda Thompson and Senior Associate Kate Austin examine the decision and its implications.

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  • Client Update: Litigation funders and law firms - how close is too close?

    27 May 2013

    With important implications for the expansion of litigation funding in Australia, the Full Court of the Federal Court is being asked to determine whether a litigation funder which has financial connections with a plaintiff law firm would be justified in providing funding for a class action run by that law firm. Partner Duncan Travis, Senior Associate Tim Maxwell and Lawyer Mark Hosking report.

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  • Focus: Courts reinforce trend to interpret arbitration clauses widely

    20 May 2013

    Recent cases in the Federal Court and the Queensland Supreme Court show that courts are continuing to interpret arbitration clauses widely. Partner Nick Rudge and Senior Associate Nicholas Gallina report.

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  • Client Update: Legal professional privilege and foreign lawyers in Australia

    14 May 2013

    Legal professional privilege will attach to communications involving inhouse lawyers who are not admitted in Australia but are admitted to practice elsewhere. Partner Nick Rudge and Senior Associate Nicholas Gallina report.

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  • Focus: Arbitration Round-up

    7 May 2013

    We look at the fifth edition of the Singapore International Arbitration Centre's rules; the willingness of the Singapore High Court to give effect to pathological arbitration clauses; a case that reinforces the broad discretion of arbitral tribunals in deciding procedure and case management in Hong Kong; whether an agreement to negotiate in good faith in a multi-tiered dispute resolution clause is enforceable in different jurisdictions; and a court's refusal to recognise an arbitral award where the underlying agreement was executed under duress. This issue has been edited by Partner Andrea Martignoni, Special Counsel Nicola Nygh and Senior Associate James Morrison.

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  • Client Update: ASIC guidance on litigation funders' obligation to manage conflicts

    26 April 2013

    The Federal Government has recently limited the regulation of litigation funding to an obligation to have adequate arrangements in place to manage conflicts of interest. In the latest chapter in this continuing story, ASIC has released a Regulatory Guide that 'fleshes out' what it considers funders must do to comply with that obligation. Partner Jenny Campbell and Senior Associate Mark Hare report.

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  • Focus: FOI Act applies to Ministerial adviser documents

    19 April 2013

    The Victorian Court of Appeal has held that documents belonging to government Ministerial advisers may, in some circumstances, fall within the definition of 'an official document of a Minister' and, accordingly, be subject to the right of access under freedom of information legislation. Partner Alex Cuthbertson and Lawyer Emma Reilly report on this decision and its implications.

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  • Focus: US Supreme Court reins in scope of Alien Tort Claims Act

    19 April 2013

    In the much-awaited decision of Kiobel v Royal Dutch Petroleum Company, the US Supreme Court has determined that the Alien Tort Claims Act cannot be used to bring claims for alleged violations of customary international law where the relevant conduct occurs outside the US. The court remained silent on the question of whether corporations can be held liable for breaches of customary international law under the statute. Partner Louise Jenkins, Senior Associate Dora Banyasz and Lawyer Freya Dinshaw report. 

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  • Focus: Security of payment - mixed messages

    18 April 2013

    The Queensland Supreme Court has further clarified the requirements for payment claims under the Building and Construction Industry Payments Act, sending mixed messages to the wider construction industry. Partner Ren Niemann and Lawyers Matt Thomas and Goran Gelic report on this decision and its implications.

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  • Focus: Closed classes and class closure

    15 April 2013

    The Victorian Supreme Court has recently clarified the circumstances in which a court will be prepared to make orders requiring class closure, as well as related orders converting a class from 'open' to 'closed'. Partner Belinda Thompson and Senior Associate Kate Austin examine this development and its implications for parties to class actions.

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  • Focus: High Court broadens the reach of proportionate liability defences

    5 April 2013

    In its first decision addressing proportionate liability in detail, the High Court has suggested a relatively broad approach to identifying 'concurrent wrongdoers'. This will be welcomed by professional advisers and their liability insurers. Partner Andrea Martignoni, Senior Associate Andrew Byrne and Lawyer Sally Keenan report. 

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  • Focus: Settling part of a class action

    27 March 2013

    The Victorian Supreme Court has recently confirmed that its approval is required for the settlement of a substantive claim within a class action. The court also held that, in certain circumstances, group members need not be given notice of a proposed settlement, especially where a claim has no real prospects of success. Partner Duncan Travis, Senior Associate Susie Stone and Lawyer Sheree Rubinstein report on the decision and its implications.

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  • Focus: Bid-rigging - a first look at the cartel provisions

    27 March 2013

    In brief: Even where no market in Australia is affected, a recent Federal Court decision highlights that certain conduct may breach the new cartel provisions of Australia's competition and consumer legislation. Partner Michael Schoenberg, Senior Associate Tim Maxwell and Lawyer Angela Gibbs provide an overview of the decision.

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  • Audio: Corporate Governance cases to watch

    6 March 2013

    A number of large-scale corporate governance cases have recently been resolved. Partner Richard Harris speaks to BRR Media about the major cases of 2012, and the ones that will shape 2013

  • Focus: No privilege for tax accountants

    21 February 2013

    A recent UK Supreme Court judgment has confirmed that the common law right to claim legal privilege over legal advice attaches solely to advice provided by legal professionals, and can only be extended to other professionals by legislative enactment. Partner Duncan Travis, Senior Associate Joel Phibbs and Lawyer Sheree Rubinstein report on the judgment and the position in Australia.

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  • Client Update: Regulations clear the way for litigation funding (again)

    6 February 2013

    In recent years, questions relating to the regulation of litigation funding have been the subject of a series of appeal court decisions. Are funding arrangements managed investment schemes? Do funders require an Australian Financial Services Licence? Are funders providers of credit? At various times, each of those questions has been answered in the affirmative. The Federal Government has, however, recently implemented new legislation that reverses that position. Partners Ross Drinnan and Jenny Campbell, and Senior Associate Georgia Steele comment on the latest development in the regulation of litigation funding.

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