Trending Now

High Court confirms use of public examination powers to investigate potential class actions

The High Court has ruled in favour of shareholders in Walton & Anor v ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) & Ors. In a 3:2 decision, the majority permitted former shareholders of Arrium Ltd to examine the insolvent company’s officers under s 596A of the Corporations Act 2001 (‘CA’) for the purpose of potentially bringing a class action against the company’s managers.

The Road Ahead

The High Court (3:2) decision is positive news for shareholder class actions as it confirms that “eligible applicants” can publicly examine corporate officers about a corporation’s affairs, to test the merits of a potential class action against the company. This is even if a liquidator does not intend to investigate or pursue claims against the officers of the company.

The approach adopted by the majority is a welcome step forward for corporate accountability in the midst of many attempts by the legislature to constrict the Australian class action landscape.

Procedural history

The applicants were shareholders in a former mining company, Arrium Ltd (‘Arrium’). The applicants bought shares in Arrium during a capital raising in 2014. Shortly thereafter, Arrium announced an impairment to the value of its business of over $1billion. Arrium was then placed into administration, and then finally liquidation.

Under s 596A CA, the Court is to summon a person for examination about a corporation’s ‘examinable affairs’ if an eligible applicant seeks the order, and the court is satisfied that the person subject to the order was an officer or liquidator of the corporation during the prescribed period.

With authorisation from ASIC, the applicants sought an order from the Supreme Court of New South Wales summoning a former director of Arrium for public examination. The applicants sought the order,  as they believed that they may have claims against the former directors and auditors of Arrium arising out of the capital raising and the company’s published financial results for the same period. The goal of the examination was to investigate whether pursuing these claims as a class action with other shareholders was viable.

The Supreme Court of New South Wales initially granted the order.  However, the Court of Appeal overturned the decision to allow the examination on the basis that it was an abuse of process, as the examination did not benefit Arrium, its creditors, or its contributories.

The issue to be determined by the High Court was whether the applicant’s purpose for seeking the order was an abuse of process. This involved considering whether the purpose of the application was consistent with the purpose of s 596A CA.

Was the Proposed Examination an abuse of process?

The majority (Justices Edelman, Steward and Gageler) allowed the appeal, finding that the application was not an abuse of process. The purpose for the application was held to be within the scope of s 596A CA.

In coming to this conclusion, the court considered section 596A CA to ascertain its purpose, which involved lengthy consideration of the preceding iterations of the statutory scheme for public examinations.

The High Court acknowledged that earlier laws insisted on public examinations being for the benefit of the company or its creditors, or for bringing criminal or regulatory proceedings in connection with the company. However, the High Court concluded that these requirements did not apply to bringing an application under s 596A CA because s 596A CA has no direct analogy with any former provision in the earlier companies’ legislation. Instead, the court held that s 596A has much broader requirements than the former laws on this issue.

This is because:

1.     section 596A CA is drafted differently, and applications under it require less supporting evidence than earlier companies’ legislation and other sections within the same part of the Corporations Act 2001;

2.      section 596A CA was intentionally drafted to have a broad application;

3.     section 596A was enacted in the public interest to facilitate the administration or enforcement of the law concerning a corporation and its officers in public dealings. Therefore, an application under this section will not be an abuse of process if it promotes compliance with the law.

On this basis, the High Court concluded that using a compulsory examination to test the merits of a potential class action for corporate misconduct coincides with the purpose of s 596A CA. The fact that the proposed class action would not benefit all of Arrium’s shareholders did not jeopardise the validity of the application, because s 596A CA is directed to enforcing the law, rather than benefitting the company in administration.

The judgment is available here: Walton v ACN 004 410 833 (formerly Arrium Ltd) (in liq) [2022] HCA 3, 16 February 2022.

About the Authors

Lillian Rizio specialises in managing large scale complex litigation, particularly with claims involving multiple parties. Lillian’s emphasis is on corporate disputes, class actions, professional negligence and insurance, across most Australian jurisdictions.

Lillian also has extensive experience advising clients in relation to right to information matters, in both federal and state jurisdictions

Julia Hegarty is a law clerk in the Dispute Resolution and Litigation team at Piper Alderman in Brisbane. She is currently studying a Bachelor of Commerce/Laws (Hons) at the University of Queensland. Julia has an interest in externally funded litigation and shareholder class actions.

For queries or comments in relation to this article please contact Kat Gieras, Litigation Group Project Coordinator | T: +61 7 3220 7765 | E:  kgieras@piperalderman.com.au

Commercial

View All

Fieldfisher Taps Jackson-Grant as Pricing Chief

By John Freund |

Fieldfisher has recruited litigation-funding specialist Verity Jackson-Grant to the newly created post of Head of Commercial Pricing, underscoring the firm’s intent to capitalize on sophisticated fee and finance structures in the wake of last year’s PACCAR fallout. Jackson-Grant, best known for translating third-party capital into user-friendly products for corporate clients, will sit within the firm’s European finance team and manage a multi-office pricing unit.

An update on LinkedIn confirms her appointment, noting that she will “drive and shape” Fieldfisher’s pricing strategy across the continent. The role’s blueprint calls for rolling out “creative pricing models” that enhance client profitability and embed alternative fee arrangements into disputes workflows.

Jackson-Grant brings a rare blend of funding fluency and law-firm know-how. A former director at TheJudge, she brokered litigation-finance and ATE insurance packages before moving in-house to develop alternative pricing frameworks for major UK and US practices.

Chubb & Marsh Chiefs Turn Heat on Litigation Funders

By John Freund |

The insurance industry’s long-simmering feud with third-party litigation finance boiled over on Monday.

In an article originally posted in the Wall Street Journal and covered in Insurance Business America, Chubb CEO Evan Greenberg and Marsh McLennan counterpart John Doyle deliver a joint broadside against what they dub the “litigation investment industry.” The duo argue that multi-billion-dollar capital inflows from hedge funds and foreign investors are fueling a 52% year-on-year jump in “nuclear verdicts,” pushing the average blockbuster award to US $51 million.

The duo's ire is heightened by Congress’ failure to preserve a 40.8% surtax on funder income that was stripped from President Trump’s “One Big Beautiful Bill” during reconciliation. Without tax parity, they warn, funders can pay 0 % capital-gains rates while plaintiffs shoulder income-tax burdens of up to 37%.

The executives cite data showing 135 verdicts above US $10 million in 2024 and estimate tort costs at US $529 billion—figures they link directly to opaque funding arrangements. Chubb, they reveal, is reviewing counterparties to sever any ties with litigation financiers, while Marsh has already refused to place insurance that facilitates funding.

Funders are already responding to the pair's remarks. William Marra, Director at Certum Group, wrote on LinkedIn: "Funders and their allies need to prepare for the policy debates ahead, because misguided proposals to kill funding may continue." Marra then highlighted proactive education, rapid response, success stories and coalition building as four strategies that funders should consider moving forward.

Burford Capital Clinches US $500 Million Bond Upsize

By John Freund |

Burford Capital has once again reminded the debt markets that litigation finance is anything but niche.

An article in PR Newswire reports that the New York- and London-listed funder upsized its private offering of senior notes from an initial $400 million to $500 million after books closed multiple times oversubscribed. The eight-year paper priced at 7.5 %, Burford’s tightest spread over Treasuries to date, and will refinance $180 million in 6.125 % notes maturing this August while extending the weighted-average life of the balance sheet to 2033.

According to Burford CEO Christopher Bogart: "We're very pleased with the results of this latest debt offering, which added a half-billion dollars in capital, building on our momentum and strengthening our position to achieve our growth targets."

For investors, the transaction offers two signals: first, that the firm’s cash-realisation cycle—driven by landmark wins such as Petersen—continues to convert headline judgments into distributable cash; and second, that fixed-income desks are increasingly comfortable underwriting the risk profile of litigation finance even in a high-rate environment.