Differences between the survival of Federal Court class actions filed in NSW and Victoria

As someone who practised in both Sydney and Melbourne, the differences between the two jurisdictions, or maybe, the supposed difference, was something that would occasionally be surprising. I recall a partner of mine (does any other profession produce people that refer to their bosses as partners?) lamenting how barristers from the Vic Bar walk, talk and speak more slowly than their counterparts in Sydney. Occasionally this was proven (even the part about walking) and is kind of part of the reason I started Litimetrics. Justice Virginia Bell wrote about the difference in her Bar Dinner speech in 2009. On account of this perceived difference, this piece explores what, if anything, data can tell us about the differences. It will be like a law + data version of those SMH and The Age articles about which city is more livable.

This post looks at the survival of class actions (aka representative proceedings) filed in the Federal Court of Australia. We look at proceedings filed since 2008 in the Victoria District and the New South Wales District. We found 65 proceedings in total, with 36 being filed in Victoria and 29 in New South Wales. First, looking at the survival rate of the proceedings, we see that there’s a notable steeper drop-off for Victoria District filings in the initial 1–2 year period after filing. Otherwise, it’s approximately a tie — after the 40 week mark, Victorian-filed proceedings make a comeback with a greater proportion still pending.

The drop-off can be seen when we chart a histogram of the durations of the proceedings. The histogram shows how many proceedings fall into each 10-month-duration group (or bin). As the chart shows, there were a greater number of Victoria-filed class actions (5 of them) that ended in the 0–10 month duration-bin.

There were, of course, only 65 proceedings in the group. Whether 5 of 65 proceedings ending earlier is up for debate. Comparing the group of < 10-month Victoria-filed class actions with their NSW-filed equivalents doesn’t yield any clearly defining features. And although the 5 proceedings does make up approximately 7 per cent of all class actions filed in those districts, it’s also possible that the 5 proceedings were all doomed in their unique way — to paraphrase Tolstoy, “each doomed Victoria-filed class action is doomed in its own way”. The more interesting feature is the shape of the survival chart — it’s linear. The linearity is notable because it differs to shapes of other proceedings. Below, to help illustrate the contrast, is the chart of the survival of patent proceedings in the Federal Court (split between Victoria and NSW-filed proceedings). The shape of the patent-chart is logarithmic — patent proceedings die early and then slowly, while class actions die at the same pace.

Bringing it back to our theme, irrespective of whether class actions are filed in NSW or Victoria, their survival rate is roughly the same. A simple rise/run calculation puts the rate at about -1.25% per month — that is, for each month that passes since filing, 1.25% of pending class actions will have ended. Whether your class action will survive though, as lawyers often (and even Tolstoy might)say, will depend on the circumstances of the class action.