The Fate of Class Action Common Fund Orders: The Policy, Procedural and Constitutional Issues of a Legislative Revival
Dublin Core
Title
The Fate of Class Action Common Fund Orders: The Policy, Procedural and Constitutional Issues of a Legislative Revival
Subject
class actions
common funds
litigation funding
civil procedure
constitutional law
Description
Common Fund Orders’ (CFOs) have had a significant effect on Australian third party-funded class actions by requiring all class members to make a contribution to the third-party litigation funder’s fee in the event of a successful outcome. This altered past practice whereby only class members who had contracted with the litigation funder would be liable for such a contribution. However in a 5:2 decision in BMW Australia Ltd v Brewster in 2019, the High Court cast some doubt on CFOs, determining that neither s 33ZF Federal Court of Australia Act 1976 (Cth) nor s 183 Civil Procedure Act 2005 (NSW) provided a legal basis for making CFOs at the outset of proceedings so as to secure litigation funding support. In late 2020, the Commonwealth Parliamentary Joint Committee (PJC) on Corporations and Financial Services recommended that legislation be enacted to ‘address uncertainty’ in Brewster in a manner that would enable CFOs to be made at settlement or judgment. The authors canvass normative arguments as to the merits of CFOs and compare the alternative practice of making Funding Equalisation Orders (FEOs). They also consider the related issue of courts setting overall funding commissions. Given the possibility of legislative intervention, they also review arguments as to the potential constitutional validity of CFOs, a matter that was raised, but received very limited treatment from the High Court in BMW.
Creator
Waye, Vicki
Duffy, Michael
Source
The University of Queensland Law Journal; Vol. 40 No. 2 (2021): The University of Queensland Law Journal; 215-255
1839-289X
0083-4041
Publisher
The University of Queensland School of Law
Date
2021-06-29
Rights
Copyright (c) 2021 The University of Queensland Law Journal
Relation
Format
application/pdf
Language
eng
Type
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
Identifier
Collection
Citation
Vicki Waye and Michael Duffy, The Fate of Class Action Common Fund Orders: The Policy, Procedural and Constitutional Issues of a Legislative Revival, The University of Queensland School of Law, 2021, accessed November 6, 2024, https://igi.indrastra.com/items/show/2642