In recent years, the Australian class action landscape has continued to evolve at a fast pace. Filings are accelerating in a more diverse range of areas, such as privacy, consumer and employment claims. The claims themselves are becoming increasingly large and complex, often leading courts to adopt newer, more innovative case management techniques. And with a mature litigation funding market, funding arrangements are increasing in sophistication, while remaining closely scrutinised by courts and defendants alike.
Consistent with this trend, 2025 saw the Australian courts deliver a number of significant judgments in class actions. Covering a range of legal issues, these judgments could play a pivotal role in shaping the future landscape.
Below, we provide an overview of these decisions and their implications, while also looking ahead to what may be in store in the next 12 months, in the ever-evolving judicial and regulatory environment.
2025: Key decisions and takeaways
- Bogan – In Bogan v Smedley1, the High Court held that a Group Costs Order (GCO) cannot “travel” if the proceeding is transferred from the Supreme Court of Victoria to another jurisdiction. The availability or otherwise of a GCO outside of Victoria is relevant to a transfer application, meaning it will be more difficult to transfer cases away from Victoria once a GCO is in place. Victoria will remain an attractive forum for plaintiffs funded on a “No Win, No Fee” basis, who will no doubt seek GCOs as early as possible.
- Lendlease – The High Court then handed down Lendlease Corporation Ltd v Pallas2, finding that notices to group members foreshadowing soft class closure orders are within power. This decision resolved the divergence in opinion at intermediate appellate level on the issue, providing greater certainty for parties on the collective value of group members’ claims in settlement negotiations. It will therefore promote the earlier resolution of claims via mediation, while encouraging the commencement of class actions on an open (rather than closed) basis.
- CBA – In Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Ltd3, the Full Federal Court dealt yet another blow to shareholder class actions. While it partly overturned the trial judge’s decision, finding that CBA had breached continuous disclosure obligations, it ultimately dismissed the appeal on the basis that causation and loss were not made out. However, it did provide some guidance as to how plaintiffs could prove causation and loss, notwithstanding the well-known difficulties associated with event study evidence. It also clarified its earlier remarks in Worley as to the concept of “awareness” of material information, finding that the concept does not extend to unknown facts that are merely capable of discovery through a process of investigation.
- Blue Sky – In Kain & Ors v R&B Investments Pty Ltd & Ors4, the High Court handed down a landmark decision on appeal from the Blue Sky class action. It confirmed that common fund orders can be made in favour of commercial litigation funders at settlement or judgment, but not in favour of the solicitors acting for the class. Victoria therefore remains the only jurisdiction in Australia where contingency fees are available for plaintiff law firms, pursuant to the GCO regime. The spike in class action filings in Victoria in recent years is likely to continue, and potentially even accelerate, leaving federal lawmakers to consider adopting measures that will minimise forum shopping.
- BHP – In Impiombato v BHP Group Ltd5, the Full Federal Court upheld the default position regarding proposed amendments to the group member definition. Those amendments ordinarily take effect from the date of the amendment, rather than retrospectively from the date the proceeding was commenced. The Court upheld the decision of the primary judge to adopt the default position in respect of the amendments sought, meaning that the claims of the new group members were likely out of time. This decision reinforces the critical importance of the group member definition to the economics of a class action, and the difficulty in seeking to retrospectively expand the definition deep into the life of the proceeding.
Key areas to watch ahead to 2026 and beyond
Looking ahead, there are a number of areas to watch in this space:
- Worley appeal – Class action stakeholders are eagerly awaiting judgment in the (second) appeal to the Full Federal Court in the Worley shareholder class action6. The appeal primarily concerns causation and loss, and it is expected that the court will provide much-needed guidance on those issues. The hearing of the appeal was in February 2025, with the court allowing further submissions from the parties in June 2025, in light of its decision in CBA.
- Victorian surge – While the Federal Court still attracts by far the largest volume of class action filings, there is every reason to think that the Supreme Court of Victoria will continue to gain ground. The decisions in Bogan and Blue Sky reinforce Victoria’s status as an attractive forum for plaintiff law firms.
- Contingency fees – federal legislative intervention? The decisions in Bogan and Blue Sky will also give lawmakers pause to consider allowing contingency fees in Federal Court class actions. In 2019, the Australian Law Reform Commission recommended legislation permitting contingency fee arrangements for solicitors acting for the class, on terms similar to the GCO regime. With the Labor party winning the 2022 federal election, many considered this recommendation would be adopted. However, it remains to be seen whether this will occur, as the federal Government has not yet confirmed its position.
- Cyber and data breach claims – Class action risk is likely to remain heightened for these types of claims. First, as of 10 June 2025, the new statutory tort for serious invasions of privacy came into force, creating a new cause of action for individuals whose personal information has been misused. There is now an extra path for class action plaintiffs to seek damages against organisations targeted in cyber incidents involving large-scale data breaches. Second, regulatory enforcement is a reliable indicator of class action risk, and regulators have recently been active against organisations that experienced major data breaches involving personal information. 2025 alone saw ASIC bring civil penalty proceedings against FIIG Securities and Fortnum Private Wealth, and the OAIC do the same against Optus, in these contexts. The OAIC’s proceedings against Australian Clinical Labs (ACL) was also determined, with ACL being ordered to pay $5.8 million in penalties for a data breach in 2022 that affected over 200,000 individuals.
- ESG claims – Class action risk is likely to remain present for these types of claims as well, also due to regulatory scrutiny and enforcement activity. The past two years have seen ASIC bring civil penalty proceedings for greenwashing practices against Mercer Superannuation, Vanguard Investments Australia, Active Super and, most recently, Fiducian Investment Management Services. In the same period, the ACCC launched lawsuits against Clorox Australia and Edgewell Australia for misleading environmental and sustainability claims. It seems only a matter of time before this activity translates into private enforcement by consumers and shareholders collectively.
- CBA – High Court appeal? The applicants in the failed shareholder class action against CBA have applied for special leave to appeal from the Full Federal Court’s decision. If special leave is granted, it will be the first time the High Court weighs in on the significant complexities associated with proving causation and loss in shareholder claims. This includes, most notably, whether market-based causation is available, or whether proof of individual shareholder reliance is necessary. The implications of such a decision could be pivotal.
Please do not hesitate to contact us if you require assistance with class action risk assessment or defence.
1 [2025] HCA 7.
2 [2025] HCA 19.
3 [2025] FCAFC 63.
4 [2025] HCA 28.
5 [2025] FCAFC 9.
6 The appeal is from the decision in Crowley v Worley Ltd (No 2) [2023] FCA 1613.