Class Actions
A class action is when a group of people have a similar claim against an organisation – for example, against a powerful defendant like a large corporate, product manufacturer or government – and take collective legal action against them.
Class actions provide accountability and access to justice for groups of people who may otherwise not be able to undertake legal action.
Class actions help level the playing field
Some class actions are funded by the claimant group; others are funded by litigation funding, which involves a third-party agreeing to fund the claim in return for a fee if the claim is successful. We have dealt with both.
Without class actions, companies can cause widespread harms or do wrongs that affect people on a large scale (like overcharging bank fees like a data breach or a defective product). These issues can go unremedied because no single person has the incentive or resources to take on a well-resourced entity, and the corporate misbehavior continues and impacts more people.
Examples of class action claims
There are many types of class action claims that can be brought on behalf of a group of class members who have all been harmed in a similar way. Common examples include:
· Consumer protection
· Data breach claims
· Defective products
· Mass tort claims
· Employment
· Environmental
· Medical devices/pharmaceuticals
· Shareholder and investor claims
Funding may be available to cover your costs
Litigation funders, as the name suggests, are third parties who fund class action claims, so you won’t need to. Removing this financial barrier for individuals reduces imbalances and ensures settlements are more likely to reflect the merits of claims than the economic disparities between the parties.
Dalzell Wollerman works with several trusted and highly regarded litigation funders locally and internationally. See our class action FAQs below for more information on litigation funding.
Wondering whether you have a legal case for a class action lawsuit?
If you have questions about how to start a class action in New Zealand or have heard of one that you may be eligible to join, please get in contact with the team for a free, confidential and no obligation discussion.
Common questions about class actions (FAQs)
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A Class Action is a court proceeding where one party brings a claim on behalf of, or for the benefit of, a greater group. These individuals have the same interest in suing one or more defendants.
In New Zealand, the ‘opt-out’ approach has recently been approved by the Court of Appeal. This makes it easy for impacted individuals to be involved in the proceedings as they will only be excluded if they explicitly ‘opt-out'.
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There are many different types of class action cases as they are a helpful tool for representing large numbers of people who have been affected by similar circumstances.
Our law service for class actions extends to manufacturing, Government, environmental or natural disaster claims (such as biosecurity breach, land contamination, remediation arising from mining, quarrying or forestry operations and/or failure of a government or regulatory body to properly regulate), banks and financial services, employment, building and construction sector, insolvency-related claims, and privacy/data breach claims.
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To establish whether you have a case, we would set up a meeting in which we listen to your situation and seek to understand what has occurred and how we might be able to help. It is good to come prepared to this meeting with all the information about the case
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Not always. Where appropriate, we’ll guide you through negotiated settlements of disputes, often using mediation to engage face-to-face in a private and controlled environment. Successful resolution at mediation without the need to go to court is always our preference. However, we have extensive litigation skills and resources required to take matters to court when necessary.
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It can sometimes be expensive and time-consuming to bring any case before the courts. Litigation funding involves a funder with no interest in the litigation covering some or all of the costs of a proceeding, including indemnifying the plaintiffs for adverse costs if the class action is unsuccesful. In exchange, they receive a share of any sum recovered as commission.
Litigation funding greatly minimises the cost and risks involved in pursuing justice. The reduction of these barriers allows representative proceedings to be litigated until their conclusion when they may otherwise be unable to.
Our team will discuss with you your options and whether litigation funding might work for you.
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Class actions can be an appealing option for potential claimants because of their efficiency, as multiple similar claims can be heard concurrently instead of one after the other. This groups together the legal issues of each individual class member, and can streamline the process for both the parties and the Courts.
However, class actions have their own complexities, are multi-stage, and depend much on the particular facts of each case. Class actions tend to take several years to fully resolve, and may be extended if the decision is appealed.
As an example, Strathboss, an early New Zealand class action by around 210 kiwifruit growers against the Crown, was first brought in late 2014. It was heard in the High Court in mid-2017, and the decision of the Court was released just under a year later in 2018. The Crown appealed the decision to the Court of Appeal, which released its judgment in 2020, and was then appealed again. The parties settled in 2021 out of court, so the case was not heard in the Supreme Court.
Dalzell Wollerman class action examples
Harditex
In this case, a class-action claim brought by a group of some 144 homeowners whose homes were clad in ‘Harditex’, a direct-fixed panel cladding system widely used in New Zealand from 1987 to 2004/5, the plaintiffs sued the cladding manufacturer (James Hardie), alleging the Harditex system was not and never was fit for the purpose; it suffered from a number of alleged inherent defects meaning it was incapable of producing a weathertight and durable cladding.
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In 2016, representative orders were granted by Ellis J in the High Court. The Judge also imposed ‘opt-in dates’. James Hardie’s appeal against the making of representative orders was dismissed by the Court of Appeal. In dismissing James Hardie’s appeal, the Court of Appeal upheld the finding of Ellis J that there were three common issues which warranted making a representative order confined to those issues (namely, whether James Hardie owed the owners a duty of care in tort, whether James Hardie had breached that duty, and whether the statements made in James Hardie’s technical literature were misleading and deceptive for the purposes of the Fair Trading Act).
The Court of Appeal was satisfied that the representative order would result in class-wide determinations of those issues, and thus, “better achieve the just, speedy and inexpensive determination of the proceedings than the test case procedure” for which James Hardie contended. The court noted that, in analysing the criteria for representative orders under High Court Rule, r 4.24, the court must approach the evidence liberally and flexibly with respect to the goals of class actions (namely improving access to justice, encouraging legal compliance, and preventing conflicting court decisions).
The decision affirms that the court will apply a liberal and generous approach to the ‘leave’ or authorisation stage reinforcing the role of class actions in New Zealand as a tool for providing access to justice.
After a four month trial in 2020, the trial judge determined that James Hardie as a cladding manufacturer owed a duty of care to the owner for the time being of a house reliant on such cladding for its weatherproof qualities, including a duty to warn consumers of any potential risks – but that, on the evidence, James Hardie did not breach their duty or duty to warn the public. The plaintiffs appealed the decision.
The Court of Appeal for New Zealand dismissed the owners’ appeal. The court took issue with some of the trial judge’s conclusions but affirmed that appellate courts must “be mindful of the advantages enjoyed by the trial Judge”. The court held there was no basis to interfere with the trial judge’s evaluation of the expert evidence and that it had not been shown on the evidence that Harditex was not fit for purpose as alleged.
This decision reinforces the principles underlining the duty of care owed by manufacturers in product liability cases. It also rejects James Hardie’s contention that the appellants’ claims were time-barred, holding the reasonable discoverability test for building claims applied equally to claims of hidden defects created by the manufacturer of a key component of a building. However, the court focuses largely on the specific facts of the case and the regard it owed to the trial judge’s assessment of expert evidence. Therefore, this decision establishes that manufacturers owe a duty of care to consumers, but does not provide wider guidance on breach of that duty, as this will depend on the specific facts of each case. Class actions are open to consumers to seek compensation directly from manufacturers for faulty building (and other) products.
Plane Sense
Plane Sense Wellington Inc, a community group, has engaged Dalzell Wollerman to initiate a High Court judicial review to declare the DMAPS flight path change invalid and to have it set aside. The group believes it has a strong case against Airways, Wellington International Airport Ltd, and the Director of Civil Aviation. The change, which was implemented on December 1, 2022, increased aircraft movements over residential areas without community consultation, raising concerns about public health and safety.
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Since March 2023, Plane Sense has attempted to collaborate with the authorities to revert to the original flight path, but without success. The group highlights that the increased noise has worsened physical and mental health conditions for many residents, including children and the elderly. Despite obtaining documents showing a rushed approval process and lack of community consultation, the authorities have not committed to any changes. Consequently, residents voted overwhelmingly in April 2024 to pursue legal action.
Co-Founder Roxy Steel criticized the unprofessional handling of the flight path change and the lack of accountability from the involved organizations, while Co-Founder Louisa Picker emphasized the significant negative impact on residents' health and quality of life.
Dalzell Wollerman are inviting affected residents to register their interest in a potential Class Action claim relating to the 2022 flight path changes over Wellington’s northern suburbs.
Register your interest here.