Experience

Victorian State Government (Longford gas explosion)

Freehills successfully acted for the Victorian Government and its related state entities following the explosion and fire at Esso’s Longford gas plant in September 1998, including representation at the Longford Royal Commission and related significant class action litigation. The class action, brought on behalf of various groups of users of gas in Victoria against Esso, is the largest in Australian legal history, involving claims between $300 million and $1.3 billion. Justice Gillard held that Esso did not owe a duty of care to avoid pure economic loss to 1.4 million Victorian gas users. The effect was that most of the claimants for the reported losses of up to $1.4 billion failed.

Fostif proceedings (licence fee class action)

Freehills acts for Campbells Cash & Carry and other companies in the Metcash Group in proceedings brought by Fostif Pty Ltd and others. The matter relates to several purported class action proceedings instigated by a group of retailers. The retailers claim to have paid amounts to Campbells Cash & Carry and others referrable to state government licence fees which were subsequently declared invalid by the High Court of Australia. Freehills sought orders that the proceedings no longer continue as a class action on the basis, among others, that the arrangements between group members and the litigation funder standing behind them constitute an abuse of process. The primary judge accepted these arguments. The New South Wales Court of Appeal, however, overturned the decision and ordered that the proceedings continue as a class action. In September 2005, leave was granted for the matter to be heard on appeal by the High Court of Australia. The matter raises important questions as to the role of litigation funders in class action litigation as well as the boundaries of the present mechanism under rules of court for instituting and prosecuting class actions in the Supreme Court of New South Wales (which exist in similar form in each state and territory of Australia).

Sons of Gwalia Ltd (gold reserve shareholder class action)

Freehills is acting for the voluntary administrators of Sons of Gwalia in relation to proceedings in the Federal Court of Australia to determine the question of whether a shareholder who asserts that he or she was induced to purchase shares in a company as a result of misleading and deceptive conduct can prove a loss on the purchase in the company’s deed of company arrangement (and whether the Corporations Act operates to postpone payment of that claim until ordinary unsecured claims are paid in full). A significant shareholder class action is reportedly being considered centring on allegations that Gwalia engaged in misleading conduct by failing to fully disclose its gold hedging commitments. The litigation is reported to be funded by IMF. The matter raises complex issues with respect to the status of shareholder claims in comparison to those of creditors, in the shadow of significant class action proceedings.

Climate change litigation

Freehills advised a number of leading Australian companies in relation to the possibility of climate change litigation in Australia. Such litigation was brought into focus most recently because of steps taken by the Climate Action Network Australia (CANA), who, through its lawyers, Maurice Blackburn Cashman, sent letters to 145 Australian companies warning of the regulatory and litigation risks to which each company is exposed. Litigation is already underway in the United States associated with climate change including an action alleging that two United States regulatory agencies have funded international fossil fuel projects that are causing global warming-related impacts on American citizens and an action against the EPA alleging failure to regulate carbon monoxide emissions. This requires detailed consideration of issues associated with mass tort litigation seeking damages associated with the effects of climate change, including the legislative requirements of class actions, duties of care, jurisdiction, choice of law and causation.

Financial services

Freehills has acted for a number of large financial services groups in relation to issues of major strategic and reputational importance, involving potential class action exposure and regulatory investigations. Those matters have related to issues such as the disclosure of fees and charges, alleged over-charging of fees, and unit pricing errors. Financial products are increasingly at the forefront of regulator attention, given their dissemination to a large number of individual and institutional investors in the context of a highly regulated industry and increased investor vigilance. Managed funds continue to receive close investor and regulator scrutiny and can create significant liability exposure when products do not perform as intended or are affected by systemic errors. APRA and ASIC are increasingly proactive in their scrutiny of financial products and extra resources have been devoted to enforcement activities. Freehills has developed considerable expertise in dealing with complex issues of causation and economic loss arising in the financial services industry and we frequently lead negotiations with regulators in response to investigatory action.

Femcare

Freehills acted on behalf of Femcare, the manufacturer of a well-known female sterilisation device and its insurer St Pauls insurance, in a major representative proceeding in the Federal Court of Australia as well as in numerous individual claims.  The case is responsible for much of what is the current Australian law with respect to class action proceedings.  Freehills was successful in obtaining judgments in favour of our client in all cases, including the complicated representative proceedings.

Telectronics (therapeutic devices)

Freehills represented Teletronics Inc, an international manufacturer and distributor of a medical device, in relation to regulatory action taken by the Food & Drug Administration (USA) and the Therapeutic Goods Administration (Aust) concerning a particular device that was distributed world wide. This also involved product liability insurance issues and third party claims, including class actions.

Caltex (franchisee class action)

Freehills acted for Caltex Australia Petroleum Pty Ltd and for Caltex Australia Ltd (together 'Caltex') in the defence of a class action commenced in January 2004 in the Federal Court in Melbourne by various Caltex franchisees.

The claim related to the co-branding venture between Caltex and Woolworths, under which shoppers at Woolworths stores received discounts on fuel purchased from certain Caltex service stations. The claimants represented franchisees who operated Caltex service stations which were not brought within the co-branding venture. The claimants alleged, among other things, that in entering the venture, Caltex discriminated between franchisees in respect of discounts, allowances, rebates or credits given to franchisees in respect of fuel.

The claim was settled in August 2004, on terms that included Caltex agreeing to allow certain of the represented franchisees to terminate their franchise agreements, and to give those franchisees an ‘exit payment’ at the time of termination.