The Comcoverteam
WelcometothelatesteditionofComcoverConnect–the year inreview.
Whatabusyyear2016hasbeen.Lookingback,someofthehighlights have included providing specific program andprojectinsurance advice to Fund Members covering the extraordinarybreadth of Commonwealth activities—from transportingradioactive material from France to Australia to coveringvaluable artworks travelling around Australia and overseas.
TheGuidancetosupportentitiesinimplementingtheCommonwealth Risk Management Policy was released.Theguidance includes a range of fact sheets on topics suchasmaintaining an entity’s risk profile and understanding riskappetite andtolerance.
ImplementationofComcoverLegalServicesParcellingArrangementsinJulynowallowsFundMemberstoaccess10legalserviceprovidersforinsurance-relatedlitigationanddisputeresolutionadvice.FundMemberscanbenefitfromsignificantratediscountsandvalue-addedservices,suchassecondments andtraining.
While continuing to provide the opportunity for FundMembersto access Foundation and Senior Executive Serviceofficerpathways for learning, Comcover has focused on buildingthenext two pathways. The Generalist pathway will bereleasedearly in 2017 followed by the Specialist pathwaymid-year.
OnepointofcontactforFundMembers
This year saw Comcover deliver additional resourcesthroughthe Comcover Launchpad—our Fund Member portal.TheLaunchpad now has all applications available via asinglesign-on, including the Comcover Learning Centre,Comcover
Gateway, the Business Intelligence Reporting Tool, andtheannualriskmanagementbenchmarkingsurvey.Improvedaccess to real-time information and analysis helps FundMembers become more selfreliant.
Reporting capabilities have developedsubstantiallythroughout theyear.
TheRiskInsightReportwaslaunchedin2016,givingFundMembersamoreholisticviewoftheirriskprofiles.Forthefirst time, Fund Members can access information aboutclaims, insurance and risk management in a single report.
Comcover has three program reviews in progress as partofits continual improvement process to ensure services andprograms provided to Fund Members remain relevant anduseful.
TheComcoverRiskandInsuranceConferencewassuccessfulwith 165 attendees. It was also an opportunity to recognisewinners from this year’s Awards for Excellence in RiskManagement which showcase risk managementexcellenceacross theCommonwealth.
TheDepartmentofAgricultureandWaterResources’winintheriskinitiativecategoryisdetailedinthisedition(seepage5). Future editions of Comcover Connect will cover some ofthe conference presentations and awardwinners.
This edition highlights a presentation by Catherine Pinfoldfrom Deloitte on risk culture (see page 3) and PetaStevenson,from King & Wood Mallesons; Nicole Wearne, from NortonRoseFulbright;andJodiePotts,fromMorayAgnewLawyers; answer some common questions aboutclassactions and identify their key messages from the conferencediscussion (see page7).
We hope you enjoy this edition of ComcoverConnect.
We are always keen to get feedback. letusknowwhatyoufindvaluable, what topics are important to you, and what youwantto read more about. Your feedback is vital to ensureComcoverConnect remains relevant anduseful.
TheComcoverteamwishesyouandyourfamilyandfriendsasafeandhappyfestiveseason.
The2016ComcoverInsuranceandRiskConferenceandAwardsforExcellenceinRiskManagement.
MsHaltonsaidtheawardsnotonlyrecognisedtheworkofindividualFundMembers,butshowedgoodriskmanagementwasnowpartoftheAustralianpublicservice’sDNA.
‘Risk management is not easy. It takes time, tenacity,askingdifficult questions, engaging with uncertainty, and steering acourse through often uncharted waters,’ shesaid.
‘But we ignore good risk management practices at ourperil,
Governmententitiesthatmanageforeseeablerisks
throughinnovativeprocessesandpolicieswillbein the best position to give taxpayers high quality
servicesandvalueformoney,formerDepartmentofFinance Secretary Jane Haltonsays.
ItwasimportantforpublicserviceentitiesandofficialstorememberdecisionstheytookeverydayimpactedonAustralianindustryandcommunitiesandtoplanaccordingly.Apoorlymanaged policy or program had potential to adverselyimpactonhowpeopledidbusinessandlivedtheirlives.
MsHaltonwasspeakingatthepresentationofthe2016Comcover Awards for Excellence in Risk ManagementduringtheDepartmentofFinance’s22SeptemberInsuranceandRiskManagementConference.
AwardswerepresentedtoComcoverFundMembersthathaddemonstrated best practice risk management processes thatbenefited their own programs and could be shared withothergovernmententities.
TheDepartmentofAgricultureandWaterResourcestooktophonoursintheriskinitiativecategoryforitsexportcertificationreformprogram,andwashighlycommendedintheenterprise-widecategoryforitsoverallcommitmenttoriskmanagementpolicies andframeworks.
Theawardsrecognisedthatthedepartmentwasattheforefront of government efforts to systematically embed riskmanagementintobusinessprocessesandservicedelivery.
TheAustralianTaxOfficereceivedanhonourablementionintherisk initiative category for its whole-of-government businesscontinuityprojectanditscommitmenttoimprovingotherentities’risk capability structures by sharing knowledge andframeworks.
whichiswhyweneedpolicies,processesandcontrolsinplacetoidentifyandmanageasmanyrisksorchallengesaswecan.’She said there were no short cuts to risk cultureexcellence,
particularly in the public sector wherethere was a strongfocusongovernance,performanceandaccountability.Itrequiredrobust but flexible risk managementpractices.
‘Good risk management and a strong risk culture shouldmeanwe,aspolicypractitioners,programimplementersandservicedeliveryagents,delivertheoutcomesthatareintendedand,indoingso,identifywheretheriskslieanddevelopstrategiestoengage with and managethem.’
MsHaltonsaidthequalityofthis year’s entrantsshowedtheAustralian public service had a strongcommitment to qualityrisk managementframeworks.
‘Twenty years ago, Australian governments at all levels andinalljurisdictionsdidnot actively practiceriskmanagement,iftheyevenknewwhatitwasinthosedays.
‘Andjustadecadeago,whileriskmanagementwasslowlybecomingacommonterminthepublicandprivatesectorvernacular,processeswereoftenadhocandincludedinaproject or policy as an afterthought,’ Ms Haltonsaid.
‘Thatischangingrapidly,andtheworkofgovernmententitiesclearlydemonstrateshowfarwehavecomeinarelativelyshorttime.’
Thejudges’decisiontowithholdanenterprise-widewinnerdemonstrated the challenges entities faced in developingandimplementing best risk managementpractices.
‘But[despitetherebeingnowinningentrant]therecipientsaregreatexamplesofstrongriskculturesthatdemonstrateinnovative approaches to implementing policy, programsandprojectsforthebenefitofallAustralians,’MsHaltonsaid.
Shesaidentrantshaddemonstratedthatgoodriskmanagementwasanintegralpartofprogramplanningandprocesses,particularlythroughleadership,cooperationandshared bestpractice.
Entities’ strong approachtoriskmanagementhadledtothesuccessful delivery of key government programs andservicesacross thecountry.
MsHaltonsaidtheawardswereimportantbecausetheygaveentitiesopportunitiestolearnfromtheirpeersandincludewinning processes into their ownframeworks.
‘Sharingwhatwedowelliscritical,andisconsistentwiththetransformationjourneycurrentlybeingundertakenacrosstheAustralianpublicservice,inthatweneedtosharemoreofwhatwedowithoutconstrainingourabilitytoinnovate,’shesaid.
Embeddingeffective
riskmanagement
bringsriskculturefocus
ByCatherinePinfold,Manager,RiskAdvisory,Deloitte
Sincetheglobalfinancialcrisis,financialinstitutionshavehadacontinuedfocusonriskculture.
Nowothersectorsarebeingputunderthespotlight,includinggovernment.Allareincreasinglyfacingregulatorypressureandmediaexposureoverpoordecisionmaking,unconsciousrisk-takingandreputation-damagingincidents—theseeventsareoftenattributabletoapoorriskculture.
Theindependentreportintothefailureofthegovernment-runHomeInsulationProgram,whichledtofourdeathsandhundredsofhousefires,highlightedseveralkeyissues:
•Deficient riskmanagement
•Ineffectivecommunications
•Ambiguity of riskappetite
•Responsibility and accountability foundlacking.
The Commonwealth’s Risk Management Policy takesaprinciple-based approach to improving the waygovernmententities engage with and manage risk. Theoverarchinggoaloftheninepolicyelementsistoembedeffectiveriskmanagement as part of entities’ culture.
Threeelementsinparticularareimportantwhenconsideringorganisationalculture:
Element4:embedsystematicriskmanagementintobusinessprocesses
Thebestpoliciesandprocessesareonlyasgoodastheextent to which people understand and readily follow them.Afocusonriskculturehelpstounderstandwhatmaypreventrisk management requirements being followed.
Element5:developapositiveriskculture
Afocusonriskcultureshouldgiveinsightsonculture-related vulnerabilities (the one per cent or exceptionstoorganisational‘norms’ofbehaviour)thatmayresultinunconsciousrisktaking,detrimentaloutcomesoranundesirable level of risk exposure. Thosevulnerabilities
mayunderminetheeffectivenessoftheriskmanagementapproach.Focusingonthedriversofidentifiedvulnerabilitiesdrivesamorepositiveriskculture.
Element9:reviewandcontinuouslyimprovethemanagement ofrisk
Actingoninsightsfromthebenchmarkingsurveyreinforcesa continuous improvement focus for how entities identifyandeffectively manage the risks to which they areexposed.
What isculture?
There are many definitions of culture. The most common isa
CatherinePinfoldspeaksattheComcoverConference.
catch-all term focusing on behaviour, ‘the way we do thingsaround here, even when no one is looking’. However cultureismore thanthat.
Organisational psychologist Edgar Schein describesculturein a more nuanced, layered way. His view oforganisationalculture identifies three distinct layers.
1.Artefacts:‘whatyoucansee,hearandfeel’
•Behaviours: Day-to-dayactions
•Systems: Tangible frameworks, systems, policesandapproaches
•Symbols:Interpretationofsystemsorobservedbehaviours.
2.Espousedvalues:‘whatpeoplesaytheysupport’
•Purpose: ‘Reason for being’ that guidesdecision-making
•Values: The organisational ‘personality’ thatguidesbehaviours.
3.Corebeliefs:‘unconsciousbeliefs,thoughtsandfeelings’
•How individuals see themselves, their environmentandtheirpurpose
•Theycanbeactivatedindifferentsituations(forexample,moments ofstress).
Managingriskwellreliesonmorethanslavishadherencetoaprescriptiveriskframework;noriskframeworkcanprescribehowtodealwitheveryrisk.Attimesdecisionsneedtobemade,andrisksmanaged,incircumstancesofincompleteinformation,inadequateresourcesandcompetingpriorities.
Itisoftenanentity’sstrengthofriskculturethatdeterminestheextenttowhichriskisappropriatelyidentified,assessed,communicated and managed in thosecircumstances.
Continued on page4
From page3
Riskcultureisasubsetoforganisationalcultureandsubjectto the same levers, but it cannot be measured the same way.Traditional culture or engagement surveys measure the 99per cent—or the ‘averaged norms’ of behaviour. While that isimportant, that focus will often miss specific situationswheredecisions or actions manifest but are ‘averaged out’ withtraditional culture measurement approaches.
Risk culture focuses on the one per cent, the specificsituationswherestaffdeviatefromwhat’sexpected.Theone per cent of situations are those that can get you onanewspaper front page.
99%
‘Whileorgansationalstructurecanbeapowerful
preventitivecontrol...assessingculturethroughthelensesofrisk,conductandcomplianceisaneffectivedetectivecontrolthatsurfacesorganisationalvunerabilitiesanddesignflawsthatresultindetrimentaloutcomes.’
1%
GrantMackinnon,PrincipalRiskCultureSpecialist,Deloitte
Common causes ofweakness
Trying to change culture by focusing on behaviourislike trying to change the weather by focusing onthe
thermometer.Youfirstneedtounderstandtheunderlyingdrivers of behaviour—the mindset and unique momentsoforganisational or personalstress.
In many organisations the efficacy of understanding theriskculture is undermined by the organisation’s culture itself.
Across all industries there are some common causes thatcanbe attributed to severalfunctions.
Strengthening riskculture
OversightTheMinister/SecretarysetandreinforcethetoneSponsorshipandrolemodellingofstrong
risk behaviour starts at the top and must becontinually reinforced through organisationalmechanisms, for example, performancereviews,promotions, recognition andrewards.
DefinePurpose + values =aspiration
Code of conduct = minimum standards+aspiration
Minimum standards of behaviour must existand apply to all employees. Behaviour mustbereinforced by managers and leaders throughreward or consequencemechanisms.
ImplementRisk,HRandauditplaykeyyetdistinctroles.Allthreefunctionsneedtoworktogethertoensure appropriate levers and assurancesexisttodriveastrongriskculture.
UnderstandMultipletechniques/sources(validatedexternally)Several techniques are needed to assessanentity’s risk culture, including data analysisandrisk culture surveys, complemented byface-to-face discussions to gather specific examplesofmisalignment.
InfluenceIntervention-specificitydrivesimpactfulcorrectionClearspecificactionsfocusedontherootcausesofaweakenedriskculturewillhaveagreaterimpactthanjusttrainingandcommunications.
Whilethosethingsareimportant,itisvitaltounderstandwhatisdrivingbehaviourandactivelyworktoremedyit.
Strengthening and changing culture can feel daunting andsomewhat intangible. Developing an effective risk culturestarts with an entity’s most senior leaders, including self-awareness of their effectiveness and the extent to whichtheycurrently influence culture. Robust frameworks appropriateto business complexity need to be established thatengagethe entire organisation and there is an array of techniquesentities can use to conduct ongoing and reliableassessmentsofculture.
ReducingredtapeandsimultaneouslysavingmoneyarejusttwoofthekeybenefitsfromtheDepartmentofAgricultureandWaterResources’exportcertification reformprogram.
Thedesignandimplementationoftheauthorisedofficer(AO)modelaspartofthecertificationreformprogramwonAgriculturetheriskinitiativecategoryinthe2016ComcoverAwards for Excellence in RiskManagement.
The program required close consultation with industry andAustralia’s trading partners; a new authorised officermodel;and new certificationprocedures.
The judges said the benefits to Australia, exportersandtrading partnersincluded:
•Increased inspection timingflexibility
•Improvedresourceallocationandmoreappropriateregulatory intervention to improve performanceandcompliance
•Reduceddepartmentalcostsfrom$30millionto$21millionthroughtransitioningstafftoexternalAOroles
•Reduced government intervention, reducedexport
processing costs, and increased businessoperationalflexibility in plant and product export industries.
DrChrisParker,AssistantSecretary,PlantExportOperations,toldComcoverConnectthetriggerfortheexportcertificationreformprogramwasanindependentreviewofquarantineandbiosecurityarrangements,Onebiosecurity:aworkingpartnership.Itrecommendedfullcostrecoveryofexportcertificationfunctions.
Agricultureconsultedeachplantandplant-basedproductcommodity sector and industry and government workedtogether to implement the new model.
DrParkersaidtheAOmodelenabled‘appropriateregulatoryintervention’andbalancedriskandreturn.Ithad‘hit
the sweet spot’ in achieving benefits for industry andtheAustralianGovernment.
A‘bigstep’wasidentifyingthatinspectionscouldbeconductedbyindustry.Thesharedriskapproachmetarangeofviews,fromindustryparticipantswhothoughtthegovernmentshouldretainfullcontrolto‘otherswhowantedgovernment rightout’.
‘Weneededalevelofassuranceforourselvesandourtradingpartnersthatproductbeingexportedwashighqualityandmetimportingcountryrequirements,’DrParkersaid.
TheAOmodelwasrolledoutoverfouryears,startingwithcountriesknownas‘non-protocol’,meaningthelevelsofcertificationtheyrequiredwerelessonerousthan‘protocol’countries.
Continued on page6
Fromlefttoright:RosannaCarr;ChrisParker;MarionHealy;DarylQuinlivan,Secretary,DepartmentofAgricultureandWaterResources;KarinaKeast;JennyDunn;andJaneHaltonAOPSM,Secretary,DepartmentofFinance;accepttheawardonbehalfoftheDepartmentofAgricultureandWaterResources.
From page5
Dr Parker said the AO model was now a ‘fully matureprogram’ with 1,024 external AOs conducting inspectionsacross allmarkets.
Having external AOs meant greater flexibility in the supplychain so exporters’ costs have reduced. In the past,exportershad to book a government inspector, wait until one was freetocomeonsiteandconducttheinspection,thenawaitexportapproval.
One challenge in operationalising the model was ensuringAO candidates were ‘appropriate’, that their roles anddutieswere very clear, and that the comprehensive audit processensured inspections were always conducted properly.
When conducting export inspection work, external AOsareregarded as Australian Government officials, so they mustsign deeds of obligation, which outline the export servicestandards required of AOs and the services they canperformand provide them with protection from liability.
‘DepartmentofficialsnolongerseeeveryproductleavingAustralia, so instead of having an inspection-based workforce,we now have an audit and verification process,’ Dr Parkersaid.
‘We reduced the number of departmental inspectors, andhave focused on building our audit workforce. The point ofcontrol is now audit and verification and correct selectionofAOcandidates.’
AOsneedtobe‘fitandproper’peopletodothejob.Severalmechanisms are in place to manage AOs’performance.
AO candidates are subject to training andcompetencyassessments.
Onlinetrainingmustbecompletedandthepassmarkis100per cent. Trainers also conduct commodity-specific training.AOappointmentsarereviewedeverytwoyearsandsubjecttoAOs being audited against specific performance standardssetbythedepartment.AOsareauditedevery12months.
Forexample,forcitrusthereisbasicinspectiontrainingforprotocolandnon-protocolcountries,thenspecifictrainingforcoldtreatmenttomitigatefruitfliesandmetalbromidefumigation,whichsomeimportingcountriesrequire.
Since the AO model’s roll out, there had been no ‘marketissues’ with any product, which Dr Parker said was ‘a signthemodel operates as itshould’.
Since the model’s introduction, the number of AOs hasreduced, but many remaining AOs have multiple jobfunctions,for example, being qualified to conduct inspections acrosscommodities available in different seasons. Dr Parker saidAO
competencies were ‘not inconsistent across job functions’.Job functions include export inspections for emptycontainers; woodchips; logs; processed forest products;hay
andstraw;grainandplantproducts;rawbaledcotton;fruitand vegetables; cut flowers and foliage; tissue culturesandcuttings; and plants and nurserystock.
The model has created a niche small business career forAOs.‘Thereisriskmitigationinhavingfull-timeAOs.TheriskiestAOsarethosewhojustdoinspectionseverynowandthen,’DrParkersaid.
MostAOswereemployedbyexportersandsomelargepackhouseshadasmanyas10.
DrParkersaidtradingpartnerstookcomfortfromthefactthephytosanitary certificates required for all exports were stillsigned by the Australian Government because Australia was‘atrusted country with a highly developed biosecuritysystem’.
CertificationmeanttheAustralianGovernmentwasacknowledgingtheproductmettheimportingcountries’requirements.ImportingcountriesalsoconducttheirownauditsofAustralia’sbiosecuritysystems.
DrParkersaidlessonslearntfromimplementingtheexportcertificationreformprogramincludedengagingwithindustryearlyindevelopingthemodel.
‘You also need to be very clear about what your real risk is.Oursissimple—productnotmeetinganimportingcountry’srequirements.
‘We conducted a lot of early work on quantifying the riskandhow to mitigateit.’
AOs’potentialconflictsofinterestwereidentifiedasapossiblerisk,butDr Parker saidthatwas resolved viathedeedsofobligation,whichwasanagreementbetweenthegovernmentandindividualAOs,notbetweenAOsandexporters.
‘That’salsowhywehaveaveryrobustauditsystemandAOscan be subjected to penalties, not just revocation of theirAOauthorisation,’ hesaid.
Agriculture has revoked appointments or required AOs toconduct additional training. The penalty depended on ‘theseverity of the activity, if it’s deliberate circumvention of theprocess, rather than ignorance or a lack of understanding’.
DrParkersaidAgriculturewouldcontinuetoimprovetheauditand verification process, which underpinned the entire model.‘Even though it’s very sound, it can never be robustenough.’
The program was not a ‘set and forget’, which he saidwouldbe a recipe fordisaster.
Performancemonitoringtoolswerekeytooperationalisingthe model at a very highstandard.
Dr Parker said growers had indicated increased exports andsignificantcostreductions.Forexample,onecherrygrowerhadexportedtwo-and-a-halftimesmorecherriesin2015-16than the prior fiscal year and had saved about 75 per cent incosts associated withinspections.
Dr Parker said growers appreciated having greaterautonomyovertheirproducts;increasedflexibilitywithinspections;andreduced redtape.
Agricultureachievedgreaterconsistencynationwideintrainingandinspections;andabetteralignmentofresources,enablingittofocusonauditandverification.
Classactionstrendupwards
AttheComcoverRiskandInsuranceConference,threeofComcover’slegalprovidersparticipatedinapaneldiscussiononclassactions.
There has a been an upward trend in class actions againsttheCommonwealth in recent years and Comcover ConnectaskedPetaStevenson,fromKingWoodMallesons;NicoleWearne,from Norton Rose Fulbright; and Jodie Potts from Moray &Agnew Lawyers to answer some common questionsaboutclassactionsandidentifyakeymessagetohighlightfromtheconferencediscussion.
PetaStevenson,Partner,KingWoodMallesons
Whatdoesittaketoestablishaclassaction?
A class action is a court proceeding taken on behalf of aclassor group of people. It is representative in nature and theclassor group of non-parties represented by a named plaintiff
will be bound by the outcome of the proceeding whetherbysettlement or court judgement.
ItisrelativelyeasytoestablishaclassactioninAustralia.Itjustrequiressevenormorepeoplewhoeachhaveaclaimagainstthesamepersonorpersons;whoseindividualclaimsinvolvesimilarorrelatedfactsandcircumstances;andwhichinvolveasubstantial(non-trivial)commonissueoflaworfact.
Aresomeclaimsmoresuitedtoclassactionsthanothers?
Claims will be more suited to resolution by a classactionrather than individual proceedings if:
•there is a single act, omission or contravention thatcausesloss to multiple parties on a massscale
•causation (proof the act, omission or contraventioncausedthe loss suffered) can be established without needingindividual or uncertainevidence
•the loss is readily quantifiable and can beestablishedwithout the need to determine individualissues.
Keymessage
Engageallstakeholdersearly.Consider(a)whichgovernmententitiesareormaybecomedefendantsandhowtomanagetheirdifferentinterests;(b)whetherotherentitiesmayhave
a broader interest in the proceeding; and (c) who needs tobebriefed on developments in thecase.
Agreeing early on a strategy and the mechanisms fordecisionmaking on a class action can reduce themanagement
time required, save costs and optimise the outcome forthegovernment.
NicoleWearne,Partner,NortonRoseFulbright
Whatfactorsshouldbeconsideredindevelopingalitigationstrategywhendefendingaclassaction?Being a defendant to any proceeding requiresan
understanding of court process and the facts and legalprinciplescentraltotheclaim.Asaclassactiondefendant,the same issues arise but the resources required tomanagethe scale of the litigation are often not anticipated. Earlyconsideration of the defence strategy to be adopted willenablebetterplanningandmanagementofthedemandsoflarge-scale litigation.
The litigation strategy shouldconsider:
•Single or multiple defendants—Representation ofmultipledefendants involved in one legal dispute is oftenbest
Fromleft,PetaStevenson,JodiePottsandNicoleWearneattheComcoverConference.
managed through one legal team. That reducescostsand assists in ensuring, where appropriate, awhole-of-government approach to thelitigation.
•Class size—The number of potential class actionmemberswill impact on the resourcing required and the need toidentify and collect key documents. A larger membershipis likely to involve significant levels of documentation,particularly in seeking to understand the quantum of thelossalleged.
•Litigation funder—A litigation funder’s involvementinfluences many factors, including whether courtsgivesecurityforcostsandwhetheracommonfundisestablished. It also influences settlementnegotiations
as the funder has usually negotiated a commission tobededucted from any agreedsettlement.
•Legal provider relationship—Developing a goodworkingrelationshipwiththeplaintiff’slawyersassistswithworkingthrough protocols around disclosure and quantumanalysis.
•Whole-of-government context—Lawyers anddepartmentalstaff must work closely to ensure broader policy andreputational implications of a potential settlement orjudgement are understood. That aspect is critical todetermining the course the litigation willtake.
•Determinethelinesandmethodsofcommunication—Classaction litigation is fast moving and high profile. Ensureprotocols are in place to escalate sensitive issues arisingfromclassactionlitigationwithotherstakeholderstoenable all involved in managing the litigation to beinformedandprepared.
•Early evidence gathering—Early identification ofkeywitnesses and relevant documents is critical todevelopingthe litigation strategy and allocatingresources.
Keymessage
Class actions require detailed planning and management toobtain the best outcome for all parties. Appointing lawyerswith strong class action experience and a goodunderstandingof government operations will produce the best results.
Collaboration iscritical.
FundMembersworkingtogetherasateamwithComcoverandthe lawyers will ensure all stakeholders are focused on thelitigation strategy. The litigation strategy should be regularlyreviewed to ensure new information is considered, and anychanges accommodated, with stakeholderagreement.
Continued on page8
From page7
JodiePotts,Partner,MorayAgnewLawyers
Howaremostclassactionsresolved?
Once procedural formalities (for example, proper definition of the class andadvertising opt-out notices) are finalised, the court will actively manage thelitigationandusually require (byorderoragreement)thepartiestoattendmediation.Mostclassactionsareresolvedatmediationorsomeotherformof alternative dispute resolution. Class actions rarely proceed to ajudgement.
Whatisrequiredtodisposeofproceedings?
A representative proceeding cannot be settled or discontinued withoutcourt approval. When applying for approval, the parties need topersuadethe court the proposed settlement:
•is fair and reasonable in regard to the claims made on behalf ofgroupmembers who will be bound by thesettlement
•is in the interests of the groupmembers.
Once a settlement has been approved, the court oversees distributionofthesettlementfunds.Theprocessmaybelengthywithnumerouscourtapplications and potentially a managed compensationscheme.
Keymessage
Given a settlement binds group members who are not parties to theproceedings,courtswillnotsimplyrubberstampsettlementsreachedbytheparties.Groupmembersmayobjecttoaproposedsettlementsotheirconcerns are considered by the court. Courts will not approve asettlementif it is considered it will not operate fairly and reasonably.
Eventscalendar2017
TolearnmoreabouthowtoaccessComcover’sservices,call1800651540.
Disclaimer:ComcoverConnectprovidesgeneralinformationforthebenefitofFundMembers.Comcoverdoesnotguarantee,noracceptlegalliabilityarisingfromorconnectedto,theaccuracy,reliability,currencyorcompletenessofanymaterialcontainedinComcoverConnect.FundMembersareaskedtoevaluatetheaccuracy,currency,completenessandrelevanceofthematerialthisnewslettercontainsfortheirpurposes.ComcoverConnectisnotasubstituteforindependentprofessionaladviceandFundMembersshouldobtainappropriateprofessionaladvicerelevanttotheirparticularcircumstances.