BMW Australia Ltd v Brewster

[2019] HCA 45

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

Matter No S152/2019

BMW AUSTRALIA LTD  APPELLANT

AND

OWEN BREWSTER & ANOR  RESPONDENTS

Matter No S154/2019

WESTPAC BANKING CORPORATION & ANOR  APPELLANTS

AND

GREGORY JOHN LENTHALL & ORS  RESPONDENTS

BMW Australia Ltd v Brewster
Westpac Banking Corporation v Lenthall

[2019] HCA 45

Date of Hearing: 13 & 14 August 2019
Date of Judgment: 4 December 2019

S152/2019 & S154/2019

ORDER

Matter No S152/2019

1.Appeal allowed.

2.Set aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 1 March 2019 and 22 March 2019 and, in their place, order that:

(a)the question stated for separate determination be answered: "No"; and

(b)the first respondent pay the applicant's costs of the application for, and the hearing of, the separate question.

3.The first respondent pay the appellant's costs of the appeal to this Court.

Matter No S154/2019

1.Appeal allowed.

2.Set aside orders 3 and 4 made by the Full Court of the Federal Court of Australia on 1 March 2019 and, in their place, order that:

(a)the appeal be allowed;

(b)orders 1 and 2 made by Lee J on 28 September 2018 be set aside and, in their place, the application for a common fund order be dismissed with costs; and

(c)the respondents pay the appellants' costs of the appeal.

3.The respondents pay the appellants' costs of the appeal to this Court.

On appeal from the Supreme Court of New South Wales (S152/2019) and the Federal Court of Australia (S154/2019)

Representation

J K Kirk SC with T O Prince for the appellant in S152/2019 (instructed by Ashurst Australia)

J C Sheahan QC with E Holmes and R Mansted for the first respondent in S152/2019 (instructed by Quinn Emanuel Urquhart & Sullivan)

Submitting appearance for the second respondent in S152/2019

A Leopold SC and S J Free SC with C G Winnett for the appellants in S154/2019 (instructed by Allens)

J T Gleeson SC with W A D Edwards and Z C Heger for the first to fourth respondents in S154/2019 (instructed by Shine Lawyers)

N C Hutley SC with B K Lim and S K Tame for the fifth respondent in S154/2019 (instructed by Roberts & Partners Lawyers)

S B Lloyd SC with D P Hume and K N Pham for the Attorney-General of the Commonwealth, intervening in both matters (instructed by Australian Government Solicitor)

K L Walker QC, Solicitor-General for the State of Victoria, with M A Hosking for the Attorney-General for the State of Victoria, intervening in both matters (instructed by Victorian Government Solicitor)

J A Thomson SC, Solicitor-General for the State of Western Australia, with E J Cavanagh and B J Tomasi for the Attorney-General for the State of Western Australia, intervening in both matters (instructed by State Solicitor's Office (WA))

G A Thompson QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland, intervening in both matters (instructed by Crown Law (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

BMW Australia Ltd v Brewster
Westpac Banking Corporation v Lenthall

Practice and procedure – Representative action – Orders – Where s 33ZF of Federal Court of Australia Act 1976 (Cth) and s 183 of Civil Procedure Act 2005 (NSW) provide that in representative proceeding court may make any order court thinks appropriate or necessary to ensure justice is done in proceeding – Where representative proceedings commenced in Federal Court of Australia and Supreme Court of New South Wales – Where proceedings funded by litigation funders – Where litigation funders entered into litigation funding agreements with small number of group members – Where representative parties in each proceeding applied for common fund order – Whether s 33ZF of Federal Court of Australia Act and s 183 of Civil Procedure Act empower Federal Court of Australia and Supreme Court of New South Wales to make common fund order.

Words and phrases – "access to justice", "appropriate or necessary to ensure that justice is done in the proceeding", "award of damages", "book building", "common fund", "common fund order", "distribution of moneys recovered", "equitable sharing of costs", "fair and reasonable to all group members", "free riding", "funding commission", "funding equalisation order", "interests of justice", "litigation funding", "representative proceeding", "risk", "unfunded group members".

Civil Procedure Act 2005 (NSW), Pt 10, ss 157, 162, 165, 166, 172, 173, 175, 177, 178, 179, 183, 184.
Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33C, 33J, 33M, 33N, 33U, 33V, 33X, 33Z, 33ZA, 33ZB, 33ZF, 33ZJ.
Judiciary Act 1903 (Cth), s 79.

1. KIEFEL CJ, BELL AND KEANE JJ. The principal issue in these appeals is whether, in representative proceedings, s 33ZF of the Federal Court of Australia Act 1976 (Cth) ("the FCA") and s 183 of the Civil Procedure Act 2005 (NSW) ("the CPA") empower the Federal Court of Australia and the Supreme Court of New South Wales respectively to make what is known as a "common fund order" ("CFO"). Such an order is characteristically made at an early stage in representative proceedings and provides for the quantum of a litigation funder's remuneration to be fixed as a proportion of any moneys ultimately recovered in the proceedings, for all group members to bear a proportionate share of that liability, and for that liability to be discharged as a first priority from any moneys so recovered.

2. This issue was resolved in the affirmative against the appellants in these appeals by the courts below, in Matter No S154 of 2019 ("the Westpac appeal") by the Full Court of the Federal Court of Australia, and in Matter No S152 of 2019 by the Court of Appeal of the Supreme Court of New South Wales ("the BMW appeal"). Because the principal issue was resolved in favour of the respondents, two further issues arose for determination by the courts below: the first being whether the sections infringe Ch III of the Constitution and the principle in Kable v Director of Public Prosecutions (NSW)[1] respectively, and the second being whether the sections are contrary to s 51(xxxi) of the Constitution.

   [1](1996) 189 CLR 51.

3. Properly construed, neither s 33ZF of the FCA nor s 183 of the CPA empowers a court to make a CFO. Section 33ZF of the FCA and s 183 of the CPA each provide relevantly that in a representative proceeding, the court may make any order the court thinks appropriate or necessary to ensure that justice is done in the proceeding. While the power conferred by these sections is wide, it does not extend to the making of a CFO. These sections empower the making of orders as to how an action should proceed in order to do justice. They are not concerned with the radically different question as to whether an action can proceed at all. It is not appropriate or necessary to ensure that justice is done in a representative proceeding for a court to promote the prosecution of the proceeding in order to enable it to be heard and determined by that court. The making of an order at the outset of a representative proceeding, in order to assure a potential funder of the litigation of a sufficient level of return upon its investment to secure its support for the proceeding, is beyond the purpose of the legislation.

4. It follows that each appeal must be allowed. As a result, the further issues determined by the courts below and agitated again by the parties in this Court do not arise for determination.

5. There is considerable commonality of issues and arguments in the appeals; the relevant provisions of the FCA and the CPA are in all but identical terms. It is therefore convenient to deal comprehensively with the issues and arguments in the two appeals together, after first summarising separately the circumstances giving rise to each appeal and the reasons for decision of each of the courts below.

   The Westpac appeal

   Background

6. In October 2017, the first to fourth respondents commenced, on behalf of themselves and numerous group members, representative proceedings under Pt IVA of the FCA against Westpac Banking Corporation and Westpac Life Insurance Services Ltd (together, "Westpac")[2]. In the proceedings, the first to fourth respondents allege that they relied on advice from Westpac's financial advisers to purchase insurance policies from Westpac Life. They contend that the financial advisers breached their statutory and fiduciary obligations to them (and group members) by failing to advise them of equivalent or more advantageous insurance policies offered by third‑party insurers[3]. It appears that there may be in excess of 80,000 group members, each with a claim for damages in the range of $2,000 to $15,000[4].

   [2]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 25 [3].

   [3]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 25 [3].

   [4]Lenthall v Westpac Banking Corporation (2018) 363 ALR 698 at 704 [14]-[15].

7. The first to fourth respondents signed a funding agreement with the fifth respondent, JustKapital Litigation Pty Ltd ("JKL"), a litigation funder[5]. Only a small number of group members had entered into a funding agreement with the fifth respondent before the first to fourth respondents applied to the Federal Court of Australia for a CFO[6]. Notice of the application was given to group members[7]. No reasoned objection to the making of a CFO was received from group members[8]. The appellants objected to the making of a CFO.

   [5]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 25 [4].

   [6]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 25 [5].

   [7]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 25 [4].

   [8]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 25 [5].

8. The evidence was that only one litigation funder other than JKL had been approached by the first to fourth respondents, but discussions with that funder did not progress to negotiating terms on which funding might be provided for the litigation[9]. No other funder had shown interest in funding the proceedings[10]. Approximately $1.2 million had already been spent by JKL on legal costs, and the likely total legal costs disclosed in the retainer with JKL were between $6.5 and $9 million[11].

   [9]Lenthall v Westpac Banking Corporation (2018) 363 ALR 698 at 704 [14].

   [10]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 25 [6].

   [11]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 25 [6].

9. Section 33ZF(1) of the FCA (s 183 of the CPA being in all but identical terms) provides:

   "In any proceeding (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding."

10. Subject to an undertaking by JKL to be bound to the funding terms, the primary judge (Lee J) made a CFO pursuant to ss 23 and 33ZF of the FCA[12].

    [12]It was not suggested, either by the Full Court of the Federal Court or in argument in this Court, that s 23 of the FCA amplified the power conferred by s 33ZF of the FCA in any material way. Accordingly, these reasons will focus upon the scope of s 33ZF in its statutory context.

11. The CFO stipulated, among other things, and subject to further order, that any judgment or settlement sum ("resolution sum") will be pooled, and that group members will be required to pay from that pool[13] the lesser of:

    (a) three times the total expenditure on legal costs, disbursements, adverse costs orders and fees of the costs referee paid by JKL; or

    (b) 25 per cent of the net resolution sum;

    and an additional amount for each appeal.

    [13]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 30‑31 [20]-[22].

12. The payments to JKL were prioritised as the first payments to be made from any resolution sum[14].

    [14]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 30 [21], 31 [23].

13. The CFO departed from the order sought by the first to fourth respondents only insofar as his Honour ordered that JKL's commission be calculated by reference to the net rather than gross resolution sum[15]. This was said to incentivise JKL to contain legal costs and to reflect the extent of the risk assumed by the funder[16].

    [15]Lenthall v Westpac Banking Corporation (2018) 363 ALR 698 at 712 [53].

    [16]Lenthall v Westpac Banking Corporation (2018) 363 ALR 698 at 712 [51].

14. Although the CFO set a commission rate for JKL, it was subject to the distribution "not exceeding any such amounts as the Court determines to be fair and reasonable in all the circumstances"[17].

    [17]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 31 [23].

15. The previous undertaking given by JKL removed the right it enjoyed under its funding agreement to withdraw from the funding arrangement upon giving 14 days' notice to group members[18]. JKL thus assumed, subject to further order, an obligation to fund the proceedings to their conclusion.

    [18]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 31 [26]-[27].

16. The appellants sought leave to appeal from the orders of Lee J to the Full Court of the Federal Court.

    The Full Court

17. The Full Court (Allsop CJ, Middleton and Robertson JJ) granted leave to appeal but dismissed the appeal.

18. In the Full Court, Westpac argued that s 33ZF could not be construed as empowering the court to issue a CFO. The Full Court rejected this argument[19], holding that the primary judge was correct to conclude that the question of the power of the court to make a CFO had been resolved in the affirmative by the Full Court of the Federal Court in Money Max Int Pty Ltd v QBE Insurance Group Ltd[20].

    [19]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 28 [11].

    [20](2016) 245 FCR 191.

19. The Full Court reasoned that s 33ZF contains the "widest possible power", and, paraphrasing the language of s 33ZF, held that this power extends to "all procedures appropriate or necessary to deal with the matter on a just basis"[21]. It may be said immediately that this paraphrase is inaccurate in a significant respect. It elides the words of limitation "appropriate or necessary to ensure that justice is done in the proceeding".

    [21]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 44 [86].

20. The Full Court cited the principle of construction that wide statutory powers given to courts should not be read down absent clear indication in the statute's terms or context[22]. The Full Court rejected Westpac's argument that ensuring justice in the proceeding did not extend to encouraging a litigation funder to support the proceedings[23]. The Full Court held that Westpac's submission as to the scope of s 33ZF was[24]:

    "too narrow in restricting the order to the 'metes and bounds' of the proceedings, which we took to mean the pleaded issues for resolution. It is not an order restricted to a particular issue requiring resolution. It is 'justice' that is to be ensured in the proceeding. That is procedural or substantive justice; and the Court is to be satisfied that there is something in the proceeding that should be addressed in order to ensure that justice in the proceeding is done. There is no reason to limit that to the pleaded issues. There is every reason to view as wide enough [sic] to deal, in a fair way, with circumstances that will remove a risk to the prosecution and vindication of the group's rights.

    ... An early order ... can place the group action on a known and stable foundation, and reduce or eliminate the risk of the action not proceeding."

    [22]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 44 [86], citing Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421.

    [23]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 45 [90].

    [24]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 45 [90]‑[91].

21. Once again, the Full Court, by eliding the words of limitation, gave an expanded scope to the section so as to bring within it a concern as to whether a sufficient incentive was presented to a third‑party funder to ensure that the proceedings would be pursued. In addition, Westpac's submission was understood by the Full Court to propose a limit upon the scope of the section by narrowing the phrase "justice is done in the proceeding" to the resolution of the pleaded issues. That was, with respect, to set up a straw man and then proceed to demolish it. As will be explained, the section can apply, on the natural and ordinary meaning of its words, to support any interlocutory procedural order necessary to ensure that the pleaded issues are resolved justly between the parties.

22. The Full Court addressed an argument advanced by Westpac to the effect that s 33ZF should be construed in conformity with the principle of legality so as not to allow interference with the proprietary rights of group members in the causes of action vested in them. It was held that a CFO conforms with, rather than undermines, the principle of legality. The Full Court concluded that a CFO "not so much takes away from, as supports and fructifies, rights of persons that would otherwise be uneconomic to vindicate"[25].

    [25]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 46 [94].

23. Westpac's further argument that the court's general power under s 33ZF is constrained by other provisions of Pt IVA of the FCA was also rejected. It was held that, while other provisions of the Act also empower the court to deal with distribution of moneys (or proceeds), in particular ss 33V and 33Z, it does not follow that a CFO can only be made at the conclusion of a case when s 33V or s 33Z is engaged. The Full Court held that there is nothing in those provisions evincing a statutory intention to deprive courts of the power to deal with distribution of proceeds at an earlier point of time, provisionally, in order that the ends of justice be met[26].

    The BMW appeal

    [26]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 46‑47 [96].

    Background

24. Mr Brewster, the first respondent, commenced representative proceedings in the Supreme Court of New South Wales against BMW Australia Ltd ("BMW") relating to the national recall of BMW vehicles fitted with defective airbags manufactured by Takata Corporation (or a related company)[27]. There are five other representative proceedings pending in the Supreme Court of New South Wales relating to vehicles recalled due to defects in their Takata‑supplied airbags (Honda, Mazda, Nissan, Subaru and Toyota)[28].

    [27]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 172 [1]‑[2].

    [28]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 172 [1].

25. As Mr Brewster alleges that BMW contravened the Trade Practices Act 1974 (Cth) and the Australian Consumer Law[29], the BMW appeal proceeds on the basis that the Supreme Court of New South Wales was exercising its federal jurisdiction.

    [29]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 172 [2].

26. In the BMW matter, the class may comprise over 200,000 members, each with what appears to be a distinctly modest claim for damages[30]. The proceedings are funded by the second respondent, Regency Funding Pty Ltd ("Regency Funding"), a litigation funder. Only a small number of group members have entered into a litigation funding agreement with Regency Funding[31].

    [30]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 172 [2], 173 [4].

    [31]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 172 [3].

27. In August 2018, Mr Brewster applied for a CFO. Regency Funding, the solicitor firm for Mr Brewster, and Mr Brewster each offered to undertake to each other and to the Supreme Court to comply with their obligations under funding terms annexed to the proposed order[32]. Regency Funding agreed to bind itself to maintain the litigation[33]. Upon that undertaking the Supreme Court was asked to order that, subject to further order of that Court pursuant to s 183 of the CPA or its inherent jurisdiction, Mr Brewster and the group members be bound to pay from any resolution sum[34]:

    (a)the legal costs, disbursements and administration expenses expended by Regency Funding;

    (b)remuneration to Regency Funding in the amount of 25 per cent of so much of the resolution sum as remains after payment of the abovementioned expenses (or such other sum as the Supreme Court considers reasonable at the time of the approval of a settlement or judgment); and

    (c)any GST upon these amounts;

    prior to the distribution of the resolution sum to the group members.

    [32]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 176 [21].

    [33]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 176 [22].

    [34]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 173 [7].

1. Mr Scattini, the solicitor for Mr Brewster, filed an affidavit in support of the application in which he gave evidence of his experience that litigation funders:

   "often considered it was uncommercial to fund class action proceedings on an open class basis where large numbers of people had individually suffered relatively modest loss and damage ... due to the prohibitive transaction costs of funding such proceedings, the low expected return to each individual group member, and therefore the corresponding risk that the funder will obtain a very limited return. This meant it was effectively impossible to obtain funding for large consumer class action proceedings, such as the Takata Proceedings."

2. Evidently, the CFO was sought in those proceedings to assuage such a concern on the part of the litigation funder.

3. On the application of BMW, Sackar J removed into the Court of Appeal the separate question "[d]oes the Court have the power to make Order 1 sought in the Notice of Motion filed by the Plaintiff on 14 August 2018 (Common Fund Motion)?"[35]. The Court of Appeal heard the separate question in the BMW matter while sitting concurrently with the Full Court of the Federal Court hearing the Westpac matter[36].

   [35]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 173 [9]‑[10].

   [36]The procedure adopted for the concurrent hearing of the matters is described in Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 24 [2]; BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 174‑175 [13]-[17].

   The proceedings below

4. The Court of Appeal of New South Wales (Meagher, Ward and Leeming JJA) answered the question posed for separate determination in the affirmative, holding that the court has the power to make the CFO sought[37].

   [37]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 196 [117].

5. The Court of Appeal concluded that "there is no occasion to doubt the conclusion or reasoning in Money Max in any respect relevant to the existence of power"[38]. The Court noted that s 183 is worded "in the utmost generality" and ought not be narrowly construed[39].

   [38]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 189 [82].

   [39]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 184 [56]-[57].

6. The Court of Appeal rejected BMW's invocation of the principle of legality, observing that s 183 is located in a legislative regime which envisages an adjustment to the rights of persons with a cause of action because they may be made group members without their consent. Once it is accepted that the property rights of group members have already been interfered with in Pt 10 of the CPA, it would be incongruous to apply the principle of legality to narrow the protections put in place by Parliament to regulate the regime[40].

   [40]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 184‑185 [58]-[62].

7. The Court of Appeal also rejected BMW's attempt to invoke the principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[41]. BMW had argued that the CPA confers only "one power"[42] to deal with the distribution of any resolution sum (contained in ss 173, 177 and 178) so that s 183 must be confined by the restrictions in those provisions. The Court of Appeal observed that ss 173, 177 and 178 relate to proceedings being determined consensually or at the time of judgment. In contrast, there is no temporal limitation in s 183 and nothing to suggest that it does not extend to interlocutory orders made prior to settlement or judgment[43]. Further, even if ss 177 and 178 confer only a "single power" to distribute amounts paid by way of damages, a CFO made on an interlocutory basis does not qualify or preclude the exercise of that power at the conclusion of the proceedings[44].

   [41](1932) 47 CLR 1 at 7.

   [42]Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 589 [59].

   [43]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 186 [66].

   [44]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 186 [67].

8. The Court of Appeal held that the submission advanced by the first respondent to the effect that the power to make a CFO represented the culmination of the "original intent" underlying Pts IVA and 10 "goes too far"[45]. The Court held that, in any event, there was a general presumption that the legislation is "always speaking" in that the application of the provision could vary over time[46].

   [45]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 186 [68].

   [46]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 188 [75]-[77].

   The submissions of the parties

9. In this Court, the appellants submitted that a CFO is an order of an extraordinary nature in that an application for a CFO requires the court to act, in effect, as a remuneration tribunal for litigation funders. It was submitted that an order made to maintain the viability of litigation is not one that ensures that justice is done "in the proceeding" because it does not advance the determination of the parties' legal rights and obligations. It was said that the principle of construction identified in Owners of "Shin Kobe Maru" v Empire Shipping Co Inc[47] cannot be deployed to construe ss 33ZF and 183 more liberally than their text and context permit[48].

   [47](1994) 181 CLR 404.

   [48]Citing PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313.

10. The appellants argued that it is significant that on an application for a CFO, the court is required to fix a rate of return for the litigation funder without the benefit of practical criteria for doing so – the absence of such criteria being a contextual indication that neither s 33ZF nor s 183 was intended to authorise the involvement of the court at the outset of proceedings to promote the prosecution of the proceedings.

11. The appellants sought to invoke the principle in Anthony Hordern and submitted that Pt IVA of the FCA[49] and Pt 10 of the CPA[50] contain provisions that regulate in detail the court's powers in respect of the distribution of proceeds in representative proceedings, and that the limitations in these provisions cannot be circumvented by invoking the general power in s 33ZF or s 183.

    [49]See FCA, ss 33V, 33Z, 33ZA and 33ZJ.

    [50]See CPA, ss 173, 177, 178 and 184.

12. BMW submitted that a CFO made at an early stage in the proceedings has an inherently infirm factual foundation because it cannot be known whether the pleadings will change, whether the matter will settle or go to trial, and, if the latter, how long the trial will take. Accordingly, it is not possible for a court to determine at an early stage what is "appropriate or necessary to ensure that justice is done in the proceeding".

13. The respondents emphasised that ss 33ZF and 183 are framed in the broadest terms. The principle in Shin Kobe Maru means that ss 33ZF and 183 should not be read down in the absence of clear indication in the terms or context of these provisions. It was submitted that the Full Court in the Westpac matter was correct to conclude that Parliament intended that courts would over time develop new procedures in response to the circumstances in which Pt IVA of the FCA or Pt 10 of the CPA was to work; and that task would be unduly inhibited by a narrow construction of s 33ZF or s 183.

14. The respondents submitted that the phrase "to ensure that justice is done in the proceeding" in each section is not limited to deciding the issues in dispute between the parties. A CFO was said to do "justice" in two ways. First, it helps remove a risk to the prosecution and vindication of group members' rights by placing the proceeding on a more stable foundation. Secondly, it promotes justice by ensuring that the benefits and burdens of the litigation are shared equally between group members. It was said in support of this contention that the law of restitution already recognises the right of some persons who intervene to assist others, without legal compulsion, to recover moneys outlaid and, in some cases, to earn reasonable remuneration[51], as in the context of salvage. As to this contention, it may be said immediately that to point to the recognised entitlement to recompense for services actually rendered for the benefit of another does not advance the case for the making of orders in advance of the rendering of any service where the value of the service can only be a matter of surmise.

    [51]Citing Mason, Carter and Tolhurst, Mason and Carter's Restitution Law in Australia, 3rd ed (2016) at 294‑295 [811]; Mitchell, Mitchell and Watterson (eds), Goff & Jones: The Law of Unjust Enrichment, 9th ed (2016) at 550‑551 [18-03]; Edelman and Bant, Unjust Enrichment, 2nd ed (2016) at 316‑319.

15. The respondents argued that the Anthony Hordern principle is inapplicable. While Pt IVA of the FCA and Pt 10 of the CPA contain specific provisions that expressly empower the court to make orders regarding the distribution of any resolution sum, those provisions do not limit s 33ZF or s 183. It was argued that:

    (a)The provisions of the FCA and the CPA relating to distribution of a resolution sum deal with orders made after a determination of liability. They say nothing about orders made on an interlocutory basis.

    (b)The making of a CFO does not undermine those provisions because any payment to the litigation funder remains subject to the approval of the court at the time of judgment or settlement.

    (c)In any event, the provisions of the FCA and the CPA relating to the distribution of any resolution sum are not an exhaustive statement of the court's powers in relation to that subject matter.

    The construction of ss 33ZF and 183

16. The determination of the true construction of s 33ZF of the FCA and s 183 of the CPA requires consideration of the text of these provisions in their context and having regard to the mischief that Pt IVA of the FCA and Pt 10 of the CPA were intended to remedy[52]. The scope of each of ss 33ZF and 183 is "not confined by matters not required by [their] terms or context; however, the terms must be construed and the context considered"[53]. And context must be regarded in its widest sense to include the state of the law prior to the enactment of these sections[54].

    [52]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69].

    [53]Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at 261 [12].

    [54]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456 at 465 [19].

17. There can be little doubt that when Pt IVA of the FCA was enacted, the Parliament could not have been understood to contemplate that s 33ZF might be invoked to support a CFO. That must be so because, at that time, an agreement to maintain legal proceedings by another in return for a piece of the action was unlawful under the laws against champerty in States other than Victoria[55]. But the question here is not about the intention with which these sections were originally enacted; rather, the question is whether, given the breadth and generality of their language, and the absence now of any objection on the ground of champerty, the making of a CFO falls, on a fair construction, within their terms[56].

    [55]Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 at 425‑432 [66]‑[82].

    [56]Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 at 331; R v G [2004] 1 AC 1034 at 1054 [29]; Aubrey v The Queen (2017) 260 CLR 305 at 321‑322 [29].

18. In Johnstone v HIH Ltd[57], Tamberlin J rightly said that the power conferred on the court by s 33ZF is not limited to the actual determination of the matter in question in the proceeding, "but extends to encompass all procedures necessary to bring the matter to a fair hearing on a just basis". Section 33ZF has been invoked to support a wide range of procedural orders such as reinstating group members after they exercised the right to opt out under s 33J[58], requiring discovery from group members[59], regulating multiple class actions[60], and making a "funding equalisation order" ("FEO") to redistribute settlement funds from unfunded group members to all group members[61].

    [57][2004] FCA 190 at [104].

    [58]King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Ltd) [2002] FCA 364 at [6].

    [59]P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd [No 2] [2010] FCA 176 at [15], [16], [23].

    [60]Kirby v Centro Properties Ltd (2008) 253 ALR 65 at 72 [31], 74 [37].

    [61]P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd [No 4] [2010] FCA 1029 at [27]‑[28].

19. The power conferred by s 33ZF is broad, but it is essentially supplementary. And the words of limitation should not be ignored. In McMullin v ICI Australia Operations Pty Ltd, Wilcox J said[62]:

    "In enacting Pt IVA of the [FCA], Parliament was introducing into Australian law an entirely novel procedure. It was impossible to foresee all the issues that might arise in the operation of the Part. In order to avoid the necessity for frequent resort to Parliament for amendments to the legislation, it was obviously desirable to empower the Court to make the orders necessary to resolve unforeseen difficulties; the only limitation being that the Court must think the order appropriate or necessary to ensure 'that justice is done in the proceeding'.

    ... The criterion 'justice is done', involves consideration of the position of all parties. An order preventing unfairness to a particular party may be necessary to ensure justice is done in the proceeding."

    [62](1998) 84 FCR 1 at 4.

20. While it has rightly been acknowledged that the power conferred by each of s 33ZF and s 183 is broad, it is one thing for a court to make an order to ensure that the proceeding is brought fairly and effectively to a just outcome; it is another thing for a court to make an order in favour of a third party with a view to encouraging it to support the pursuit of the proceeding, especially where the merits of the claims in the proceeding are to be decided by that court. Whether an action can proceed at all is a radically different question from how it should proceed in order to achieve a just result.

21. In the resolution of this issue, textual and contextual considerations must be addressed together with considerations of purpose[63]. These considerations all point to the conclusion that ss 33ZF and 183 do not empower the making of a CFO. That conclusion can be reached without reliance upon any implication to narrow the scope of their operation, whether by reference to the principle of legality or otherwise. Nor is it dependent upon acceptance of the appellants' attempt to invoke the approach to construction for which Anthony Hordern stands as authority. Nor is it necessary to accept that the task of ensuring "that justice is done in the proceeding" is confined to the resolution of the substantive issues in dispute between the parties.

    [63]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at 374‑375 [35]‑[39].

    Textual considerations

22. The orders contemplated by s 33ZF and s 183 are orders which may be thought to make certain that justice is done in the proceeding. An order the purpose of which is to ensure that the proceeding is able to go forward is not such an order. As was said by Wigney J in Blairgowrie Trading Ltd v Allco Finance Group Ltd[64]:

    "the only real rationale for making the order at this stage is to ensure the commercial viability of the proceeding from the perspective of the litigation funder. That has nothing to do with ensuring that justice is done in the proceeding."

    [64](2015) 325 ALR 539 at 565 [135].

23. The focus of the power conferred on the court by the text is upon ensuring, that is, making certain by the order, that justice is done in the proceeding as between the parties to it. As a matter of the ordinary and natural meaning of these words, they authorise an order apt to advance the effective determination by the court of the issues between the parties to the proceeding. Whether or not a potential funder of the claimants may be given sufficient financial inducement to support the proceeding is outside the concern to which the text is addressed.

24. The text of each of s 33ZF and s 183 assumes that an issue has arisen in a pending proceeding between the parties to it, and that the proceeding will be advanced towards a just and effective resolution by the order sought from the court. The construction of ss 33ZF and 183 for which the respondents contend departs from this assumption. The making of a CFO does not assist in determining any issue in dispute between the parties to the proceeding; it does not assist in preserving the subject matter of the dispute, or in ensuring the efficacy of any judgment which might ultimately be made as between the parties; it does not assist in the management of the proceeding in order to bring it to a resolution. Nor does it assist in doing justice between group members in relation to the costs of litigation.

25. Court approval of arrangements with a non‑party in order to enable a proceeding to be pursued at all could only be said to be appropriate or necessary to ensure that justice is done between the parties to the proceeding if one were to assume that maintaining litigation, whatever its ultimate merit or lack thereof, is itself doing justice to the parties. That would be to make an assumption about process for its own sake rather than the outcome of the process. Such an assumption cannot be attributed to the legislature having regard to the text of ss 33ZF and 183.

26. The making of a CFO is not apt to ensure that justice is done in the proceeding by regulating how the matter is to proceed; to the contrary, an application for a CFO is centrally concerned to determine whether the proceeding is viable at all as a vehicle for the doing of justice between the parties to the proceeding. That is a question outside the concerns of ss 33ZF and 183. As Wigney J explained in Blairgowrie in a passage that warrants citation at length[65]:

    "The requirement in s 33ZF that the order be 'appropriate or necessary' would ordinarily require, as a first step, the identification of a particular issue or problem in the proceeding that needs to be addressed. There would ordinarily have to be some specific reason or justification for making an order under s 33ZF. An order is unlikely to be either appropriate or necessary unless it is directed at resolving some issue or problem that has arisen or would, but for the order, arise.

    The particular issue or reason for making the order under s 33ZF must also be one that has arisen in, or relates to, 'the proceeding'. The section is not concerned with theoretical issues, or difficulties that may exist beyond the metes and bounds of the particular proceeding. It is not directed, for example, at resolving theoretical or practical problems concerning litigation funding that might occur in representative proceedings generally. Nor is it concerned with issues or problems concerning the rights or interests of third parties, such as litigation funders. Justice 'in the proceeding' would not ordinarily involve any consideration of the commercial interests of a litigation funder unless they gave rise to some issue or problem that has, or is likely to have, some direct impact on the proceeding.

    The criterion 'justice is done' also suggests that the particular issue or problem must somehow relate to the just hearing and determination of the claims, or the enforcement of the rights or subject matter in issue in the proceeding. That may involve a question of procedure, or it might involve a question involving the substantive rights and interests of the parties. A requirement that justice is done also suggests that the proposed order must be fair and equitable. That will ordinarily involve a consideration of the position of all parties".

    [65](2015) 325 ALR 539 at 560 [112]‑[114].

1. It can be seen that the reasons of Wigney J did not seek to confine the scope of s 33ZF to the final determination of the ultimate issues between the parties. Of course, interlocutory orders apt to move the proceeding towards a just conclusion between the parties are within the scope of the sections. But to emphasise, as the respondents do, the interlocutory nature of the CFOs of present concern by pointing to their provisional effect is to highlight that the CFO is directed to whether the litigation funder is given sufficient financial incentive to enable the proceeding to proceed at all. An order directed to that concern is not brought within the scope of s 33ZF by the expedient of structuring it as a provisional or interlocutory order.

2. As to the practical effect of a CFO, BMW and the first to fourth respondents in the Westpac appeal argued that a CFO must be taken as a whole, or as a "package deal". That package includes provisions for meeting and sharing the costs of the representative proceeding. But it remains true to say that a central feature of the package is that the litigation funder assumes the financial risk of the failure of the claims by the representative parties in return for a commission fixed (provisionally at least) at a certain level to be paid by each group member out of the proceeds of the litigation. This last issue may be dealt with by the making of a FEO and will be discussed below.

   Money Max

3. As Wigney J accepted in Blairgowrie[66], the broad power conferred by s 33ZF is not to be read down by making implications or imposing limitations which are not found in the express words of the provision.

   [66](2015) 325 ALR 539 at 558 [98], citing Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 and Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at 260‑261 [11].

4. In Money Max[67], the Full Court of the Federal Court treated the decision of Wigney J in Blairgowrie as distinguishable on the facts of the case. In addition, the Full Court in Money Max addressed the concern by Wigney J as to the "difficulty of setting a funding commission rate at a stage when the reasonableness of that rate could not be known" and suggested that that difficulty might be met by providing in the CFO that the funding commission rate will be as approved by the court, with approval to occur at a time when the "[c]ourt is armed with better information, including information as to the quantum or likely quantum of settlement"[68].

   [67](2016) 245 FCR 191 at 220‑221 [144]‑[145].

   [68](2016) 245 FCR 191 at 221 [146]‑[147].

5. The Full Court in Money Max did not come to grips with the observations made by Wigney J as to the textual limitations upon the power conferred by s 33ZF. Neither the reasons in Money Max, nor the arguments of the respondents in this Court, provide a satisfactory answer to them.

6. The difficulty attending the making of a CFO at the outset of the proceeding goes beyond the practical difficulty identified in Money Max[69]. Contrary to the view of the Full Court in that case, the problems that attend the fixing of the rate of the funder's remuneration at the beginning of the proceeding are not concerned solely with the factual and prudential aspects of the exercise of the discretion conferred by s 33ZF; they also involve the conceptual difficulty of an absence of criteria to guide the exercise of discretion by the court. In addition, there is the incongruity of reading such a power into s 33ZF or s 183 when other provisions of Pt IVA and Pt 10 make specific provision apt to accommodate that task but which operate at the conclusion of the proceeding. This incongruity is discussed in the course of considering the context in which these provisions appear.

   [69](2016) 245 FCR 191 at 221 [146].

   Contextual considerations

7. In Wong v Silkfield Pty Ltd[70], Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ compared the provisions of Pt IVA of the FCA to the pre‑existing procedures pursuant to which representative proceedings could be brought, and their Honours observed that Pt IVA "provides its own more detailed regime". The statutory context, in which each of ss 33ZF and 183 appears, shows that each section is a supplementary source of power. It is not to be supposed that each section does much the same work as other provisions of Pt IVA of the FCA and Pt 10 of the CPA, or that each was intended to meet the exigencies of litigation not adverted to at all by those other provisions.

   [70](1999) 199 CLR 255 at 260 [11].

8. Two aspects of the regimes in which ss 33ZF and 183 appear deserve particular attention: first, the extent to which the legislation contemplates the involvement of the court in deciding whether an action should proceed; and secondly, the extent to which the legislation provides for meeting and sharing the cost of representative proceedings between group members.

   Should a proceeding proceed?

9. As to the first of these considerations, it is to be noted that Pt IVA and Pt 10 make specific provision for the role of the court in determining whether representative proceedings should or should not proceed and for the circumstances in which that intervention by the court may occur.

10. Part IVA of the FCA and Pt 10 of the CPA recognise that group proceedings may not "stack up" on a cost/benefit analysis. In that regard, s 33M(b) of the FCA (which is to the same effect as s 165(b) of the CPA) states that the court may stay a proceeding or direct that it no longer continue under Pt IVA where, on an application by the respondent:

    "the [c]ourt concludes that it is likely that, if judgment were to be given in favour of the representative party, the cost to the respondent of identifying the group members and distributing to them the amounts ordered to be paid to them would be excessive having regard to the likely total of those amounts".

11. In addition, s 33N[71] of the FCA states that the court may, on application by the respondent or of its own motion, order that the proceedings no longer continue under Pt IVA if it is satisfied that it is in the interests of justice to do so because, among other things, "the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members"[72], or "it is otherwise inappropriate that the claims be pursued by means of a representative proceeding"[73].

    [71]See CPA, s 166(1)(c) and (e).

    [72]FCA, s 33N(1)(c).

    [73]FCA, s 33N(1)(d).

12. These provisions are legislative recognition that, at some point, the cost of identifying group members may simply be too high or too difficult compared to the value of the claims. If that is the case, the solution contemplated by the legislation is to halt the representative proceeding, not to make a CFO because the process of book building is proving too expensive or too difficult.

    Meeting and sharing costs

13. An application for a CFO invites the court to order the establishment of a complex relationship between group members and a litigation funder with whom the group members would otherwise have no relationship at all. There is no indication in either the FCA or the CPA of any criteria for determining whether such a relationship should be established, and if so, the terms on which that might occur. Importantly, neither the FCA nor the CPA provides any criteria for the fixing, even provisionally, of a rate of remuneration for the litigation funder that is "appropriate or necessary".

14. The court, in attempting to fix, even provisionally, a rate of remuneration at the outset of the proceeding must necessarily engage in a speculative exercise. In Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd[74], Gummow, Hayne and Crennan JJ observed that "to ask whether the bargain struck between a funder and intended litigant is 'fair' assumes that there is some ascertainable objective standard against which fairness is to be measured", and that this assumption was not well founded. In addition, the circumstance that the CFOs sought in the present cases were provisional is itself an indication both of the speculative nature of the exercise in which the courts are invited to engage, and that the concern driving the application for the order is the concern of the litigation funder to be sufficiently incentivised to assume the financial risks involved in supporting the litigation.

    [74](2006) 229 CLR 386 at 434‑435 [92].

15. The provisions of Pt IVA of the FCA and Pt 10 of the CPA expressly provide for the making of orders distributing any proceeds of a representative proceeding. As will be seen, the occasion for the making of such an order is the conclusion of the proceeding. At that stage, if the group members happen to be indebted to a litigation funder for its support of their claims, the value of the litigation funder's support to the group members will be capable of assessment and due recognition. That stage is the appropriate occasion for orders for meeting and sharing the cost burden of the litigation because the value of the litigation and the extent of the burden will have been rendered certain. In contrast, an application for a CFO at an early stage of a proceeding necessarily involves speculation on the part of the parties and the court in respect of these matters; and attention to matters of concern to the litigation funder which may not be shared by, and may well be contrary to the interests of, group members.

16. It is reasonably to be expected that legislation intended to enlist the court in a task of this kind would make specific provision in that regard. That it has not done so is itself some contextual indication that the power to make such an order is not to be discerned in "gap‑filling"[75] provisions such as s 33ZF or s 183. It has been accepted, in that regard, that s 33ZF cannot be understood as "a vehicle for rewriting" Pt IVA of the FCA[76].

    [75]Ethicon Sarl v Gill (2018) 264 FCR 394 at 399 [17].

    [76]Courtney v Medtel Pty Ltd (2002) 122 FCR 168 at 183 [52]; Blairgowrie Trading Ltd v Allco Finance Group Ltd (2015) 325 ALR 539 at 558 [100].

17. It was submitted on behalf of the first respondent in the BMW appeal that the topics addressed in ss 168, 169, 170 and 177 of the CPA (which are to the same effect as ss 33Q, 33R, 33S and 33Z of the FCA respectively) also fall within the scope of s 183. According to this submission, Pt 10 of the CPA is "redundant where it is convenient". That submission is not helpful in seeking to come to grips with the meaning to be given to the words of limitation "appropriate or necessary to ensure that justice is done in the proceeding". Further, it exalts the role of s 183 (and s 33ZF) above that of a supplementary or gap‑filling provision, to say that it may be relied upon as a source of power to do work beyond that done by the specific provisions which the text and structure of the legislation show it was intended to supplement[77]. The work which the respondents require s 183 (and s 33ZF) to do is beyond the scope of the other provisions of the scheme. As will be seen, those other provisions are engaged upon a different occasion and address materially different circumstances from those that are involved in the making of a CFO. Section 183 (and s 33ZF) cannot be given a more expansive construction and a wider scope of operation than the other provisions of the scheme. To accept this submission would be to use s 183 (and s 33ZF) as a vehicle for rewriting the scheme of the legislation.

    [77]Compare McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 4.

18. As will be seen, the provisions of Pt IVA of the FCA and Pt 10 of the CPA do not involve the court in any predictive exercise, or in a concern as to whether a litigation funder may be sufficiently satisfied with the prospective return on its investment to assume the financial risk of pursuing the litigation. Much less do those provisions or the extrinsic materials reveal a concern that a desire on the part of a litigation funder to avoid the effort and expense of book building is a matter of concern for the court.

19. The provisions of Pt IVA of the FCA and Pt 10 of the CPA envisage the identification of all group members so far as that is possible. That identification facilitates the distribution of any proceeds of the proceedings, whether derived from a settlement or a favourable judgment. Section 33J of the FCA (which is to the same effect as s 162 of the CPA) is in the following terms:

    "Right of group member to opt out

    (1)The Court must fix a date before which a group member may opt out of a representative proceeding.

    (2)A group member may opt out of the representative proceeding by written notice given under the Rules of Court before the date so fixed.

    (3)The Court, on the application of a group member, the representative party or the respondent in the proceeding, may fix another date so as to extend the period during which a group member may opt out of the representative proceeding.

    (4)Except with the leave of the Court, the hearing of a representative proceeding must not commence earlier than the date before which a group member may opt out of the proceeding."

20. Under s 33J of the FCA, the court must fix a date before which a group member may opt out of a representative proceeding. Because that date will usually fall before the outcome of the action is known, the problem of "free riding" by group members who would seek to opt in to the proceeding only after a favourable outcome is achieved is addressed. As this Court has noted, the opt out model adopted by Pt IVA of the FCA and Pt 10 of the CPA is designed so that a representative proceeding may continue even if group members are unaware of it[78]; and group members "are under no obligation to identify themselves"[79]. That said, both legislative schemes do allow identification of all group members (as far as is possible) in order to distribute any proceeds. That this is so is apparent from ss 33V, 33X(3)‑(4), 33Z and 33ZA of the FCA. Reference to the terms of these provisions confirms that the legislative scheme contemplates that the occasion for the making of orders in relation to distribution of the proceeds of the action is its successful completion.

    [78]Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 31‑32 [38]‑[40].

    [79]P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd [No 2] [2010] FCA 176 at [31].

21. Section 33V (which is in like terms to s 173 of the CPA) provides:

    "Settlement and discontinuance – representative proceeding

    (1)A representative proceeding may not be settled or discontinued without the approval of the Court.

    (2)If the Court gives such an approval, it may make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the Court."

22. Sections 33V of the FCA and 173 of the CPA expressly contemplate the making of an order at the conclusion of the proceedings.

23. Section 33X(1) (s 175(1) of the CPA is in materially the same terms) provides that notice must be given to group members of the commencement of proceedings and of their right to opt out before the date fixed under s 33J(1) (s 162(1) of the CPA). Section 33X(3) and (4) (s 175(3) and (4) of the CPA are in materially the same terms) provide:

    "(3)If the Court so orders, notice must be given to group members of the bringing into Court of money in answer to a cause of action on which a claim in the representative proceeding is founded.

    (4)Unless the Court is satisfied that it is just to do so, an application for approval of a settlement under section 33V must not be determined unless notice has been given to group members."

24. The same point may be made in relation to s 33Z of the FCA (which is to the same effect as s 177 of the CPA, save that s 33Z(1)(g) has no equivalent in s 177(1)). Section 33Z provides:

    "Judgment – powers of the Court

    (1)The Court may, in determining a matter in a representative proceeding, do any one or more of the following:

    (a)determine an issue of law;

    (b)determine an issue of fact;

    (c)make a declaration of liability;

    (d)grant any equitable relief;

    (e)make an award of damages for group members, sub-group members or individual group members, being damages consisting of specified amounts or amounts worked out in such manner as the Court specifies;

    (f)award damages in an aggregate amount without specifying amounts awarded in respect of individual group members;

    (g)make such other order as the Court thinks just.

    (2)In making an order for an award of damages, the Court must make provision for the payment or distribution of the money to the group members entitled.

    (3)Subject to section 33V, the Court is not to make an award of damages under paragraph (1)(f) unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment.

    (4)Where the Court has made an order for the award of damages, the Court may give such directions (if any) as it thinks just in relation to:

    (a)the manner in which a group member is to establish his or her entitlement to share in the damages; and

    (b)the manner in which any dispute regarding the entitlement of a group member to share in the damages is to be determined."

25. Similarly, s 33ZA of the FCA (which is in materially identical terms to s 178 of the CPA) provides:

    "Constitution etc of fund

    (1)Without limiting the operation of subsection 33Z(2), in making provision for the distribution of money to group members, the Court may provide for:

    (a)the constitution and administration of a fund consisting of the money to be distributed; and

    (b)either:

    (i)the payment by the respondent of a fixed sum of money into the fund; or

    (ii)the payment by the respondent into the fund of such instalments, on such terms, as the Court directs to meet the claims of group members; and

    (c)entitlements to interest earned on the money in the fund.

    (2)The costs of administering a fund are to be borne by the fund, or by the respondent in the representative proceeding, as the Court directs.

    (3)Where the Court orders the constitution of a fund mentioned in subsection (1), the order must:

    (a)require notice to be given to group members in such manner as is specified in the order; and

    (b)specify the manner in which a group member is to make a claim for payment out of the fund and establish his or her entitlement to the payment; and

    (c)specify a day (which is 6 months or more after the day on which the order is made) on or before which the group members are to make a claim for payment out of the fund; and

    (d)make provision in relation to the day before which the fund is to be distributed to group members who have established an entitlement to be paid out of the fund.

    (4)The Court may allow a group member to make a claim after the day fixed under paragraph (3)(c) if:

    (a)the fund has not already been fully distributed; and

    (b)it is just to do so.

    (5)On application by the respondent in the representative proceeding after the day fixed under paragraph (3)(d), the Court may make such orders as are just for the payment from the fund to the respondent of the money remaining in the fund."

26. Section 33ZJ (which is in relevantly the same terms as s 184 of the CPA) provides:

    "Reimbursement of representative party's costs

    (1)Where the Court has made an award of damages in a representative proceeding, the representative party or a sub-group representative party, or a person who has been such a party, may apply to the Court for an order under this section.

    (2)If, on an application under this section, the Court is satisfied that the costs reasonably incurred in relation to the representative proceeding by the person making the application are likely to exceed the costs recoverable by the person from the respondent, the Court may order that an amount equal to the whole or a part of the excess be paid to that person out of the damages awarded.

    (3)On an application under this section, the Court may also make any other order it thinks just."

1. In relation to s 177(1)(e) of the CPA in particular, which is equivalent to s 33Z(1)(e) cited above, it was argued on behalf of BMW that the reference to an "award of damages" encompassed any recovery of money including for debt and equitable compensation. It was said that the occasion for the exercise of the powers expressly conferred by s 177(1)(e) is the time for the making of final orders for any form of pecuniary relief as between the parties to the proceeding and as between the group members. Against this it was said that s 177(1)(e) does not apply to any funds recovered from the defendant, but only amounts consisting of damages strictly so‑called. Upon this contention was advanced the further argument that because s 177(1)(e) does not make comprehensive provision for the distribution of all moneys recovered from the defendant at the conclusion of the proceeding, there is work for s 183 to do in supplementing s 177(1)(e) so as to comprehend moneys other than damages. And so it was said, if s 183 can have this operation at the conclusion of the proceeding, why should it not be available to support an interlocutory order at the outset of the proceeding?

2. This argument does not carry the respondents very far. Whether or not the powers expressly conferred by s 177(1)(e) are sufficiently comprehensive to authorise the distribution of damages, s 173(2) of the CPA is plainly intended to operate at the conclusion of the proceeding. In addition, s 173(2) readily comprehends sums of money recovered otherwise than by way of damages.

   Considerations of purpose

   Access to justice

3. The objectives of Pt IVA of the FCA were identified by the Australian Law Reform Commission ("the ALRC") prior to its enactment. They were two‑fold: first, to enhance access to justice for claimants by allowing for the collectivisation of claims that might not be economically viable as individual claims; and secondly, to increase the efficiency of the administration of justice by allowing a common binding decision to be made in one proceeding rather than multiple suits[80]. Part IVA of the FCA, and later Pt 10 of the CPA, which emulated Pt IVA, pursued these objectives through the regime for representative proceedings tailored to address these defects in the law. Sections 33ZF and 183 do not empower the courts to rewrite Pt IVA and Pt 10 respectively in order to pursue other objectives in different ways.

   [80]Australian Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46 (1988) at [13], [18]; Australia, House of Representatives, Parliamentary Debates (Hansard), 14 November 1991 at 3174‑3175.

4. The defects in the existing law targeted by the ALRC in order to improve access to justice simply did not include the absence of sufficient incentive for litigation funders to fund litigation. That is significant given that the ALRC was alive to the possibility that a representative proceeding might be funded by third parties[81]. The possibility that a group proceeding might not be brought because a litigation funder could not see the prospect of a sufficient return to support the proceeding cannot be said to be one of the "unforeseen difficulties" referred to by Wilcox J in McMullin[82]. The ALRC's report did not advert to the possibility of enlisting the aid of the court to fix, even provisionally, the terms on which financial support for the bringing of a proceeding might be secured. It would have been a large step in terms of policy to enlist the court charged with responsibility for the determination of the merits of the claims brought in a proceeding, in the making of arrangements to allow the proceeding to be pursued. It is hardly surprising then that the Parliament refrained from taking that course.

   [81]Australian Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46 (1988), ch 8. See esp at [315]‑[318].

   [82](1998) 84 FCR 1 at 4.

5. It may well be that some claims cannot attract funding, either because of a want of interest among group members or because litigation funders' assessments of the prospects of the claims lead them to decline the risk. But there is no suggestion, either in the legislation or in the relevant extrinsic materials, that it was thought to be a defect in the law requiring a remedy that all claims, no matter how dubious their merits or paltry the likely monetary recovery, were not being brought before the courts. Similarly, the possibility that claims are not brought because they do not "stack up" financially for group members or litigation funders is not a reason for concern that the legislation is not operating as it should.

   Common fund orders and funding equalisation orders

6. To the extent that one aspect of the motivation for seeking a CFO is said to be to facilitate the equitable sharing of the costs of a representative proceeding, Pt IVA of the FCA and Pt 10 of the CPA recognise that the representative party ought not (necessarily) bear the entire costs of the proceeding[83]. These provisions allow the courts to prevent the practice of "free riding" by unfunded group members who might seek to take the benefit of the costs and risks assumed by the representative party and funded group members.

   [83]FCA, s 33ZJ(2); CPA, s 184(2).

7. It may be accepted that the concern to prevent "free riding" is relevant to doing justice as between group members who are parties to the proceeding. But the equitable sharing of the expense of the proceeding may be achieved by the making of a FEO that reduces unfunded group members' awards by an amount equivalent to that paid by funded group members to the litigation funder. The cost of litigation is thus borne equitably between all group members. Group members necessarily stand in a relationship to one another as a result of the statutory scheme; the claims in the proceeding are litigated on behalf of all of them, and orders in the proceeding bind all of them[84]. Subject to the creation of sub‑groups and the determination of individual questions[85], the statutory scheme treats them as one group. It is, therefore, just that the costs of the proceeding be spread amongst the members of that group.

   [84]FCA, s 33ZB(b); CPA, s 179(b).

   [85]FCA, s 33Q; CPA, s 168.

8. In contrast, there is no reason why the amount taken from unfunded group members' awards should be directed to the litigation funder, much less that an order to that effect should be made at the outset of the proceeding rather than on the occasion contemplated by s 33ZJ(2) of the FCA and s 184(2) of the CPA. Unfunded group members have no contractual or other relationship with the funder. Nor have they any liability to the funder. The funder has no right to that money under contract or under equitable principles.

9. A CFO is thus not the obvious solution to the problem of "free riding". A CFO is apt to impose an additional cost on the group by requiring more money to be paid to the litigation funder than would otherwise be the case. The equitable spreading of the cost is, in fact, better achieved by the making of a FEO, which takes, as its starting point, the actual cost incurred in funding the litigation. While it must be accepted that the burden of the amounts that funded group members have agreed to pay to the funder under their agreements with the funder must be distributed fairly, a FEO is apt equitably to distribute those amounts whereas a CFO seeks to impose an additional cost by imposing new obligations on the unfunded group members.

10. A FEO is clearly available where a settlement is reached. A settlement must be approved by the court[86], and, in approving a settlement, the court must be satisfied that it is "fair and reasonable to all group members"[87]. A settlement that allows some group members to ride for free would not be fair and reasonable to the other group members.

    [86]FCA, s 33V; CPA, s 173.

    [87]Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at [55] (emphasis in the original).

11. Secondly, where a matter runs to judgment (rather than being settled), a FEO may be made under s 33ZF or s 183. That is because justice would not be done in the proceeding if it resulted in unfunded group members gaining a windfall by avoiding costs which others bore for their benefit. A FEO prevents that outcome by redistributing those costs. It falls squarely within the terms of ss 33ZF and 183. The same cannot be said of a CFO.

    Book building: to build or not to build?

12. The process of book building involves "identification [of group members], contact, awareness creation and enrolment"[88]. Waye and Morabito state that book building is ordinarily done by "using the media and web communications with a view to persuading potential class members to register their interest or to enter into retainer and funding agreements"[89]. The authors cite a number of webpages set up by plaintiff law firms to advertise the class actions that they are running. The use of webpages to advertise class actions has been noted in case law[90]. Whether a litigation funder should not be required to incur expenditure (eg advertising) to seek to build its enterprise is not a concern that any provision of Pt IVA of the FCA or Pt 10 of the CPA invites the court to address.

    [88]Walker, Khouri and Attrill, "Funding Criteria for Class Actions" (2009) 32 University of New South Wales Law Journal 1036 at 1044.

    [89]Waye and Morabito, "Financial arrangements with litigation funders and law firms in Australian class actions", in van Boom (ed), Litigation, Costs, Funding and Behaviour: Implications for the Law (2017) 155 at 178.

    [90]Bonham v Iluka Resources Ltd (2017) 252 FCR 58 at 66‑67 [24]‑[27].

13. The making of a CFO at an early stage of the proceeding may provide some assurance, even if only provisional, to a litigation funder of a particular level of return on its investment and so relieve the litigation funder of the expense and effort of canvassing the level of public interest in the proposed proceeding and making its assessment of the commercial viability of the proceeding in light of the likely balance of risk and reward.

14. The applications for the CFOs proposed in these appeals were prompted, as the Full Court in the Westpac matter appreciated, and as is apparent from the evidence of Mr Scattini in the BMW matter, by a desire to obviate the expense and difficulty involved in building a book. That motivation is understandable, particularly in circumstances where there may be little interest on the part of the potential group members in pursuing the claim. But while access to justice may be expected to be improved in a general way by the availability of litigation funding, it does not follow that the making of a CFO is necessary or appropriate to ensure that justice is done in a particular proceeding in accordance with Pt IVA of the FCA or Pt 10 of the CPA.

15. To the extent that a CFO may allow a litigation funder to avoid the burden of the process of book building by enlisting the court's aid, there is no warrant to supplement the legislative scheme by judicial involvement to ease the commercial anxieties of litigation funders or to relieve them of the need to make their decisions as to whether a class action should be supported based on their own analysis of risk and reward. Until 2016, open class actions were brought and resolved without recourse to CFOs. A suggestion that book building is an exercise in "wasted costs" ignores the reality that group members will have to take action at some stage to obtain the actual payment of any monetary relief to which they have established an entitlement.

    Orders

16. In the Westpac appeal, the appeal to this Court should be allowed. Orders 3 and 4 made by the Full Court of the Federal Court of Australia on 1 March 2019 should be set aside, and in their place it should be ordered that:

    (a)      the appeal be allowed;

    (b)orders 1 and 2 made by Lee J on 28 September 2018 be set aside and, in their place, the application for a common fund order be dismissed with costs; and

    (c)      the respondents must pay the appellants' costs of the appeal.

    The respondents must pay the appellants' costs of the appeal to this Court.

17. In the BMW appeal, the appeal to this Court should be allowed. The orders made by the Court of Appeal of the Supreme Court of New South Wales on 1 March 2019 and 22 March 2019 should be set aside, and in their place it should be ordered that:

    (a)the question stated for separate determination be answered: "No"; and

    (b)the first respondent must pay the applicant's costs of the application for, and hearing of, the separate question.

    The first respondent must pay the appellant's costs of the appeal to this Court.

18. GAGELER J.   Part IVA of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") was enacted at the beginning of the last decade of the twentieth century[91] in the expectation that the representative procedure for which it provides would "enhance access to justice, reduce the costs of proceedings and promote efficiency in the use of court resources"[92]. The Part was developed on the basis of an earlier report of the Australian Law Reform Commission[93].

    [91]Section 3 of the Federal Court of Australia Amendment Act 1991 (Cth).

    [92]Australia, House of Representatives, Parliamentary Debates (Hansard), 14 November 1991 at 3174.

    [93]Australian Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46 (1988).

19. Some years into the operation of Pt IVA of the Federal Court Act, Wilcox J, who had chaired the Division of the Australian Law Reform Commission which produced the report, explained[94]:

    "In enacting Pt IVA ... Parliament was introducing into Australian law an entirely novel procedure. It was impossible to foresee all the issues that might arise in the operation of the Part. In order to avoid the necessity for frequent resort to Parliament for amendments to the legislation, it was obviously desirable to empower the Court to make the orders necessary to resolve unforeseen difficulties; the only limitation being that the Court must think the order appropriate or necessary to ensure 'that justice is done in the proceeding'."

    [94]McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 4.

20. His Honour was referring to the power conferred on the Federal Court by s 33ZF(1) of the Federal Court Act, which provides that "[i]n any proceeding ... conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding". Section 33ZF is located within Div 6 of Pt IVA, headed "Miscellaneous", and bears the heading "General power of Court to make orders". Those two features, Wilcox J noted, "support the conclusion, that would in any event arise from its wording, that s 33ZF(1) was intended to confer on the Court the widest possible power to do whatever is appropriate or necessary in the interests of justice being achieved in a representative proceeding"[95].

    [95]McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 4.

21. The reference in s 33ZF(1) to what the Federal Court "thinks" is peculiarly apposite to indicate legislative endorsement of the notion that the Court's thinking might adapt to changing circumstances and might develop through time with experience[96]. What the Court might think appropriate or necessary in a contemporary setting is not hidebound by what Parliament might have expected that the Court would have thought appropriate or necessary at the time Pt IVA was enacted[97].

    [96]cf Hughes v The Queen (2017) 263 CLR 338 at 377 [110].

    [97]cf Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622.

22. Unforeseen at the time that Pt IVA was enacted and unaddressed in the detail of the representative procedure for which Pt IVA provides was the rise, following the decision of this Court in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd[98], of the phenomenon of third-party litigation funders providing the financial resources needed to conduct representative proceedings in return for sharing in the proceeds. Third-party litigation funders who have entered into contractual funding arrangements with representative parties, and often also with some or all of the individual members of represented groups, have become increasingly common. The Australian Law Reform Commission has recently reported that the number of litigation funders operating in the Australian market has grown steadily since 2006 to approximately 25 active funders in 2018. From 2013 to 2018, the percentage of funded representative proceedings pending grew to 64 per cent, with funded proceedings constituting 78 per cent of all representative proceedings commenced in 2018[99].

    [98](2006) 229 CLR 386.

    [99]Australian Law Reform Commission, Integrity, Fairness and Efficiency – An Inquiry into Class Action Proceedings and Third-Party Litigation Funders, Report No 134 (2018) at 65-66 [2.66].

23. The unfolding story of how the Federal Court has adapted its procedures in response to the rise of litigation funding has been told by Lee J in the Federal Court[100] and need not be retold by me. The story is one of adoption, testing, evaluation and modification of a range of innovative procedures, all occurring within the pre-existing structure of Pt IVA. Parallel processes have been occurring in the Supreme Courts of those States whose Parliaments have in this century made parallel provision for representative proceedings through the enactment of legislation modelled on Pt IVA. Part 10 of the Civil Procedure Act 2005 (NSW) ("the Civil Procedure Act"), which commenced in 2011[101], is an example[102].

    [100]Perera v GetSwift Ltd (2018) 263 FCR 1 at 9-15 [10]-[29].

    [101]Schedule 6.1 [2] read with s 2(2)(b) of the Courts and Crimes Legislation Further Amendment Act 2010 (NSW) and New South Wales, Commencement Proclamation, 2011 No 118, 2 March 2011.

    [102]See also Pt 4A of the Supreme Court Act 1986 (Vic), introduced by s 13 of the Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 (Vic), and Pt 13A of the Civil Proceedings Act 2011 (Qld), introduced by s 10 of the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld).

24. In issue in these appeals from synchronous decisions of the Full Court of the Federal Court[103] and the Court of Appeal of the Supreme Court of New South Wales[104] is the capacity of s 33ZF(1) of the Federal Court Act and its almost identically worded counterpart, s 183 of the Civil Procedure Act, to allow for the making of a "common fund order" ("CFO") of a type first sanctioned by the Full Court of the Federal Court in 2016[105].

    [103]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21.

    [104]BMW Australia Ltd v Brewster (2019) 366 ALR 171.

    [105]Money Max Int Pty Ltd v QBE Insurance Group Ltd (2016) 245 FCR 191 at 209 [78], 225 [168].

25. A CFO of the type in issue is an order made by a court at an early stage of a representative proceeding, in advance of the fixing of a date before which group members must exercise their rights to opt out of the proceeding. The order is made on the application of a representative party, who is in an existing contractual relationship with a third-party litigation funder, and on the giving of an undertaking to the court by the litigation funder to be bound for the duration of the proceeding to funding terms approved by the court. The funding terms require the litigation funder to fund the costs of conducting the representative proceeding, including by paying the costs and disbursements that are charged by the representative party's solicitor, providing any security for costs that might be required in the proceeding and meeting any costs orders that might be ordered against the representative party in the proceeding. By force of the order, the representative party and group members are required to pay to the litigation funder, out of such amount or amounts as may be jointly or severally obtained by them by way of settlement of, or judgment in, the proceeding, such amount or amounts by way of reimbursement for funded costs and by way of funding commission as are identified in the funding terms. The funding commission to be paid to the litigation funder includes a premium for litigation risk. Although interlocutory in the sense that it is able to be varied or revoked by the court during the course of the proceeding, the order is final in the sense that it is framed in terms which would operate absent variation or revocation to compel payment to the litigation funder by the representative party and group members immediately upon an amount or amounts by way of settlement or judgment coming into existence prior to any distribution to them.

1. Remuneration for unrequested intervention has also been recognised for legal work that benefits third parties. In Ex parte Patience; Makinson v The Minister[237], a solicitor claimed a charge against property based upon legal work that resulted in a decision increasing the amount of compensation for land that had been acquired by the Crown. One submission by the solicitor was that the increased amount of compensation could be charged against the land and was exigible against mortgagees of the land. Jordan CJ described the claim as one that had always been held to be "in the nature of a claim to salvage" and "made upon all the property recovered or preserved as the result of the solicitor's exertions and not merely on his client's interest therein".

   [237](1940) 40 SR (NSW) 96 at 107, citing Bulley v Bulley (1878) 8 Ch D 479 at 484-485 (see also at 490-491) and Greer v Young (1883) 24 Ch D 545 at 548.

2. The recognition of an award of a reasonable remuneration in these numerous instances of unrequested intervention has an obvious resonance with the calculation of the remuneration of a litigation funder. The well-recognised example of salvage can be used for a direct comparison although similar reasoning applies to the instances described above where remuneration is permitted for bailees, tenants, trustees, liquidators, and solicitors. Like the recognition by admiralty law of the legitimacy in public policy of salvage actions[238], litigation funding is no longer regarded as contrary to public policy[239] and is part of a scheme that seeks to enhance access to justice in a situation where each litigant's loss is not significant so that individual action is not economically feasible[240]. Like instances of salvage where the maritime salvor engages professional salvors in order to preserve the value of a ship or its cargo[241], the litigation funder engages lawyers to act in order to preserve the value of rights held by the members of the group. Like instances of salvage[242], members of the group might have no contract with the litigation funder. Like instances of salvage, the assessment of the value of the service is not "an exact science"[243] and the value can increase by reference to the potential for financial losses including other lost opportunities[244]. Like instances of salvage, the criteria for the calculation of the award include the value of the rights preserved (the cause of action, the ship, or the cargo), the measure of success, the degree of risk involved, the time taken, and the expenses incurred[245].

   [238]The "Waterloo" (1820) 2 Dods 433 at 435-436 [165 ER 1537 at 1538].

   [239]Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 at 433-436 [88]-[95].

   [240]See Australia, House of Representatives, Parliamentary Debates (Hansard), 14 November 1991 at 3174.

   [241]  The "Rosa Luxemburg" (1934) 49 Ll L Rep 292 at 300.

   [242]  The Liffey (1887) 6 Asp MLC 255 at 256; The Troilus [1950] P 92 at 110.

   [243]Semco Salvage and Marine Pte Ltd v Lancer Navigation Co Ltd [1997] AC 455 at 467.

   [244]Rose, Kennedy & Rose: Law of Salvage, 9th ed (2017) at 619 [16-068]-[16-069].

   [245]Rose, Kennedy & Rose: Law of Salvage, 9th ed (2017) at 596-597 [16-009]. See, eg, Fisher v The "Oceanic Grandeur" (1972) 127 CLR 312 at 342-344.

3. Indeed, in one respect, the justice of ordering remuneration from a common fund to a litigation funder can be stronger than the cases of maritime salvors, bailees, tenants, trustees, liquidators, and solicitors. The order spreads the cost and risk of the litigation proportionately between all group members; otherwise those with contracts with the litigation funder would pay for the benefit and the other group members would receive a windfall. In that respect, the order shares the foundations of the doctrine of contribution, requiring pro rata burden sharing by those under co-ordinate liabilities, a doctrine that is "bottomed and fixed on general principles of justice"[246].

   [246]Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 at 351, citing Dering v Earl of Winchelsea (1787) 1 Cox 318 at 321 [29 ER 1184 at 1185].

4. The analogy between these well-recognised instances where justice recognises remuneration for unrequested intervention and the instance of remuneration of a litigation funder is not defeated by the possibility that a common fund order might depart from the rate of remuneration that was agreed with some group members. For instance, where a maritime salvor had entered an agreement with the owner of the vessel or cargo being salvaged, the remuneration ordered by the court was not confined to the amount in the agreement. The admiralty court would not award a contractually agreed remuneration if it was sufficiently "exorbitant"[247] or "manifestly unfair or unjust"[248]. The same reasoning should apply to common fund orders; although the remuneration agreed with some group members might be strong evidence of a market rate, it is not conclusive of the reasonableness of the agreed rate.

   [247]The "Helen and George" (1858) Swab 368 at 369 [166 ER 1170 at 1171]. Compare Cargo ex Woosung (1876) 1 PD 260 at 269-270; see also at 263-264. See also The Mark Lane (1890) 15 PD 135 at 137.

   [248]The Strathgarry [1895] P 264 at 270. See also Akerblom v Price (1881) 7 QBD 129 at 132-133; The Altair [1897] P 105 at 108; The Port Caledonia and The Anna [1903] P 184 at 189.

5. The power to review terms in costs agreements for unreasonableness provides another analogy with common fund orders that depart from the remuneration that was agreed in a contract between the litigation funder and some group members. A court with inherent jurisdiction can examine the fairness and reasonableness of costs agreements between solicitor and client[249], including reducing the amount if it is "exorbitant"[250]. Although costs agreements between a solicitor and a client were treated by courts with "great jealousy"[251] due to the potential for undue influence, it is hard to see why a power to ensure "that justice is done in the proceeding" should not also permit an assessment of the fairness and reasonableness of remuneration in an agreement that provides access to justice. For the reasons discussed above, where costs are exorbitant or unreasonable the fund equalisation solution could not provide that justice in the proceeding.

   [249]Clare v Joseph [1907] 2 KB 369 at 376, referring to the general law position before the Attorneys' and Solicitors' Act 1870 (UK), s 4. See also Kowalski v Bourne [2017] SASCFC 24 at [26].

   [250]Saunderson v Glass (1742) 2 Atk 296 at 298 [26 ER 581 at 582].

   [251]Clare v Joseph [1907] 2 KB 369 at 376.

6. Despite the long-standing existence of awards that support the justice of a common fund order and the breadth of s 33ZF(1) of the Federal Court Act, the appellants had three submissions why a court could never consider it appropriate or necessary to make a common fund order. First, they pointed to the existence of the torts of maintenance and champerty when s 33ZF(1) was enacted in 1991 to highlight that "litigation funding was not lawful when Pt IVA was enacted"[252]. Secondly, they relied upon the existence of express powers in Pt IVA of the Federal Court Act and the general scheme of Pt IVA in support of an implication limiting the application of s 33ZF(1). Thirdly, they argued that s 33ZF(1) should be limited in its application to common fund orders because of the principle of legality. Each of these submissions can be addressed in turn.

   [252]BMW Australia Ltd v Brewster (2019) 366 ALR 171 at 189 [81].

   Maintenance and champerty

7. As to the submissions about maintenance and champerty, it can be accepted that one body of understanding in 1991 when s 33ZF(1) was enacted was that acts of maintenance or champerty were generally contrary to public policy. In States other than Victoria, where criminal and tortious liabilities for champerty were abolished in 1969[253], Parliament might not have been understood, by those who considered maintenance and champerty to be contrary to public policy, to contemplate that s 33ZF(1) could support a common fund order at the time of its enactment[254] although any such public policy in 1991, which was neither wholly secure nor unconfined[255], was clearly evolving beyond Victoria[256].

   [253]Abolition of Obsolete Offences Act 1969 (Vic), ss 2, 4.

   [254]See Australian Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46 (1988) at 114 [274].

   [255]  Findon v Parker (1843) 11 M & W 675 at 682-683 [152 ER 976 at 979]; Alabaster v Harness [1895] 1 QB 339 at 342-343.

   [256]See, for instance, Statutes Amendment and Repeal (Public Offences) Act 1992 (SA), Schedule, inserting Sch 11, cll 1(3), 3 into the Criminal Law Consolidation Act 1935 (SA), abolishing maintenance, including champerty.

8. As explained in the introduction to these reasons, the short answer to this submission is that whatever the particular application that Parliament might be thought to have intended s 33ZF(1) to have in 1991 does not govern the application of the essential meaning of the provisions decades later when litigation funding is no longer seen as contrary to public policy[257]. It would be contrary to the purposes of a 2010 provision for the essential meaning to be characterised at a low level of generality based upon conceptions of justice in 1991. The concern of the provisions was to enhance access to justice including "to facilitate access to legal remedies and to promote efficiency in the determination of legal rights and in court management"[258]. As the Full Court said in the Westpac appeal, quoting from Wilcox J in McMullin v ICI Australia Operations Pty Ltd[259]:

   "It was impossible to foresee all the issues that might arise in the operation of the Part. In order to avoid the necessity for frequent resort to Parliament for amendments to the legislation, it was obviously desirable to empower the Court to make the orders necessary to resolve unforeseen difficulties; the only limitation being that the Court must think the order appropriate or necessary to ensure 'that justice is done in the proceeding'."

   [257]Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 at 433-436 [88]-[95]; see also at 425-432 [66]-[82].

   [258]Australian Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46 (1988) at 133 [324].

   [259](1998) 84 FCR 1 at 4, cited in Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 44 [85].

   The existence of specific express powers and the scheme of Pt IVA

9. The next submission of the appellants relied upon what was described as the Anthony Hordern principle, derived from the decision of Gavan Duffy CJ and Dixon J in the case of that name[260]. The principle concerns in substance the same general language convention[261], or "ordinary usage"[262] of language, that is sometimes expressed as generalia specialibus non derogant and seeks to resolve inconsistency by preferring the specific provision to the general provision[263]. A general provision will usually be interpreted so that it does not contradict a specific power that imposes "conditions and restrictions which must be observed" in the exercise of the same power[264].

   [260]Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1.

   [261]See Brisbane City Council v Amos (2019) 93 ALJR 977 at 989 [36]; 372 ALR 366 at 378.

   [262]Effort Shipping Co Ltd v Linden Management SA [1998] AC 605 at 627.

   [263]Smith v The Queen (1994) 181 CLR 338 at 348.

   [264]Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7. See also Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 187-188 [84].

10. Two of the specific provisions which the appellants submitted to be inconsistent with a common fund order made under s 33ZF(1) of the Federal Court Act and s 183 of the Civil Procedure Act were, respectively, s 33V(2) and s 173(2). Focusing upon the provision in the Federal Court Act, s 33V(2) empowers the Federal Court, after approving a settlement, to "make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the Court". The basic flaw in the appellants' submission is that the scheme of Pt IVA is replete with broadly expressed powers. The broad power in s 33V(2) is no more exclusive of s 33ZF(1) than it is of s 33ZJ(3), which empowers the court to make any order that it thinks just in relation to reimbursement of the costs of a representative party. Indeed, like s 33ZJ(3), there are no apparent restraints or conditions within s 33V(2) that would prevent a common fund order from being made under that provision. Indeed, neither s 33V(2) nor s 33ZJ(3) is conditioned by a requirement that the justice be "in the proceeding". This might even suggest that these words in s 33ZF(1) should be understood as intended to be descriptive rather than prescriptive.

11. A related submission by the appellants was that a common fund order is inconsistent with the general scheme of Pt IVA of the Federal Court Act and Pt 10 of the Civil Procedure Act respectively. The appellants focused upon the provisions for recovery of damages[265] and for the reimbursement of costs of the representative party[266] and submitted that those provisions left no room for the operation of the general power in s 33ZF(1) of the Federal Court Act and s 183 of the Civil Procedure Act.

    [265]Federal Court Act, s 33Z; Civil Procedure Act, s 177.

    [266]Federal Court Act, s 33ZJ; Civil Procedure Act, s 184.

12. The immediate textual difficulty with this submission is that the provisions in Pt IVA of the Federal Court Act and Pt 10 of the Civil Procedure Act establishing this regime are plainly not intended to be a comprehensive scheme. The powers concerning costs themselves provide for the court to make "any other order it thinks just"[267]. Even more fundamentally, there is an obvious area where s 33ZF(1) must have a large area of operation in order to make the scheme operate effectively. This is in relation to awards other than damages. Section 33Z empowers the court to award damages[268], including in an aggregate amount for group members[269] provided that a reasonably accurate assessment can be made of the total aggregate amount to which group members will be entitled under the judgment[270], with "provision for the payment or distribution of the money to the group members entitled"[271]. But s 33Z makes no provision for awards in representative proceedings of an account and disgorgement of a defendant's profits, orders to pay a debt, or orders for restitution of money, including restitution consequent upon court-ordered rescission.

    [267]Federal Court Act, s 33ZJ(3); Civil Procedure Act, s 184(3).

    [268]Federal Court Act, s 33Z(1)(e).

    [269]Federal Court Act, s 33Z(1)(f).

    [270]Federal Court Act, s 33Z(3).

    [271]Federal Court Act, s 33Z(2).

13. In an attempt to treat the scheme as comprehensive, the appellant in the BMW matter submitted that the reference in the legislation to "damages" meant "any pecuniary claim". This submission attributes to the Parliament a bovine ignorance of fundamental concepts in private law in the expression of s 33Z despite, for example, the clear separation by Parliament in s 33C(2) of "damages" from "equitable relief" and the separation in s 51A(1) of "debt" from "damages". There is an elementary distinction between debt and damages, between a primary right and a secondary right, between a claim of entitlement and a claim based upon a breach, and between claims to compensate losses and claims to recover benefits. There would only be a need to treat Parliament as having ignored such basic distinctions if Parliament were taken to have intended s 33ZF(1) to have very limited operation. Even then, if "damages" were interpreted to include debts, accounts of profits and restitution, the expression still would not extend to orders for rescission of a contract and restitution of payments equivalent to those orders that could be made, outside class actions, under a provision such as the Australian Consumer Law[272].

    [272]Competition and Consumer Act 2010 (Cth), Sch 2, s 237.

14. For these reasons, the words of s 33ZF(1) must extend to a power to make orders concerning distribution of payments arising from disgorgement of profits, restitution, debts due, or rescission of a contract and restitution of payments made under it. In the latter instance, an analogy can be drawn with an order under s 12 of the Contracts Review Act 1980 (NSW), which empowers a court that declares part of a contract to be void to make orders, "as may be just in the circumstances", against persons who are not parties to the contract but who are entitled to share in the benefits of the contract. The orders can be made even if the rights of those persons would be prejudiced and they have not had an opportunity to be heard, provided that the order is not "unjust in all the circumstances".

    The principle of legality

15. The appellants' submission about the principle of legality can be shortly dismissed. The basis of the appellants' argument is that a common fund order impermissibly intrudes on a group member's proprietary rights by rendering the property less valuable by giving the litigation funder a right to the group member's interest in any judgment or settlement. The principle of legality is one of variable force in the attribution of meaning to words based upon past experience. The force of the principle of legality increases the more legislation impairs rights and the more "fundamental" or "important" the rights which are impaired[273]. Even if the principle of legality could be applied to constrict the application of a provision, rather than its essential meaning, the interference with the rights of group members in the reallocation of the fruits of litigation is based upon a court's perception of justice in the proceeding. It is not inconsistent with expectations based upon rationality and reason. Instead, it is consistent with the approach taken in salvage and analogous areas. And, as the Full Court observed in the Westpac appeal, a power to make a common fund order "supports and fructifies ... rights of persons that would otherwise be uneconomic to vindicate"[274]. It enhances the value of the rights of the group members just as the locksmith's services enhance the value of the rights of the owner of the locked treasure chest.

    [273]Mann v Paterson Constructions Pty Ltd [2019] HCA 32 at [159]; Federal Commissioner of Taxation v Tomaras (2018) 93 ALJR 118 at 137 [101]-[102]; 362 ALR 253 at 276-277.

    [274]Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 46 [94].

    A common fund order on an interlocutory basis?

16. The common fund orders made in each appeal were interlocutory. To express the nature of the orders in clear terms, they operate only until settlement, final judgment or other order. The appellants relied upon this interlocutory nature and submitted that even if common fund orders could be made at the conclusion of the proceeding, they could not be made on an interlocutory basis. To do so, the appellants submitted, would not do justice "in the proceeding" because it would not aid in the determination of the parties' legal interests or in the resolution of matters in controversy between the parties.

17. The appellants' submission was effectively that a common fund order could not ever be thought to be appropriate or necessary to do justice in the proceeding if it were made on a pre-emptive basis. The appellants were not suggesting, and could not have suggested, that the orders were not made "in the proceeding" because they were orders against a non-party. As Mason CJ and Deane J, with whom Gaudron J agreed, said in Knight v FP Special Assets Ltd[275], in reasoning concerning orders for payment of a party's costs by a non-party which is equally applicable to payment by a party of a non-party's costs and remuneration, there are:

    "a variety of circumstances in which considerations of justice may, in accordance with general principles relating to awards of costs, support an order for costs against a non-party. Thus, for example, there are several long-established categories of case in which equity recognized that it may be appropriate for such an order to be made."

    [275](1992) 174 CLR 178 at 192 (footnote omitted).

1. The appellants' submission takes too narrow a view of the expression "in the proceeding". Interlocutory orders in a proceeding can be appropriate or necessary to do justice in the proceeding for principled reasons of convenience even if they are not a step in the process of determining the legal interests of the parties and even if they do not finally resolve matters in controversy between the parties. In other words, interlocutory orders can be made on a pre-emptive basis, anticipating a final order, where there are good reasons of convenience to do so.

2. An obvious instance where a pre-emptive order on an interlocutory basis is made for reasons of convenience is an interlocutory injunction, which anticipates final orders and which can either prohibit conduct or require conduct. The stronger the prima facie case of the applicant, and therefore the greater the likelihood of success, the less that will be needed for the balance of convenience to favour the grant of the interlocutory injunction[276].

   [276]Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 154; Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at 261 [67].

3. Factors of convenience can also favour a pre-emptive award of costs. In Chancery, where costs were a general law creation, a pre-emptive costs order could be made where a payment of costs was needed by the plaintiff to fund the proceeding[277]. This power to order payment of some or all of the costs of an action that has not been finally determined is so exceptional that the power has rarely been exercised. However, this does not deny the existence of the power. In Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (In liq) [No 4][278], Finkelstein J made a pre-emptive costs order for reasons which included that the applicant would ultimately have been entitled to those costs irrespective of the result of the action.

   [277]Jones v Coxeter (1742) 2 Atk 400 at 400 [26 ER 642 at 642].

   [278](2008) 169 FCR 497 at 500 [7]. See also Berkett v Cave [2001] 1 NZLR 667 at 670 [12]-[13]; British Columbia (Minister of Forests) v Okanagan Indian Band [2003] 3 SCR 371 at 408 [65], 411-412 [77]-[78]. Compare R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 at 2626 [77]; [2005] 4 All ER 1 at 24.

4. The making of a common fund order on an interlocutory basis has a far less intrusive effect upon persons such as the appellants than a pre-emptive order for costs. The persons subject to the order are not required to make any immediate payment. Indeed, putting to one side the aspects of the common fund orders in these appeals that concern matters other than remuneration, such as confidentiality and dispute resolution obligations, the order imposes no final liability upon the group members and does not require them to do anything. The order must also be revisited at the conclusion of the proceedings. Hence, as an interlocutory order, the common fund order is far less exceptional than a pre-emptive costs order and more akin to a routine Beddoe order[279] in its effect of reducing the risks of proceeding without imposing any further burden on the opposing parties.

   [279]In re Beddoe; Downes v Cottam [1893] 1 Ch 547. See also Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66.

5. An interlocutory order must nevertheless advance the purpose of justice in the proceeding and, with the requirement in s 33ZF(1) that it be thought to be "appropriate or necessary to ensure that justice is done in the proceeding", must be suitable or fitting for that purpose. In Jackson v Sterling Industries Ltd[280], this Court considered an interlocutory order that required the respondent to provide security for the satisfaction of a judgment in order to preserve the assets available for execution after a judgment in favour of the appellant. A majority of this Court held that the order was not "appropriate" because it went further than preserving the assets for potential execution and purported to confer security over them[281]. The order was not "framed so as to come within the limits set by the purpose which it can properly be intended to serve"[282].

   [280](1987) 162 CLR 612.

   [281](1987) 162 CLR 612 at 626-627.

   [282](1987) 162 CLR 612 at 625.

6. The primary judge and the Full Court in the Westpac matter identified two purposes for making a common fund order on an interlocutory basis[283]: (i) greater information for group members to make an informed decision before the date required for opt out; and (ii) avoidance of the risk for litigation funders that upon settlement or judgment in favour of the funded party a court might reduce, even unconsciously, the likelihood (and, I would add, potential magnitude) of adverse costs orders due to the benefit of hindsight. Each of these matters is explained further below. As to the first purpose, the importance of information for a group member arises because, with limited exceptions, a person can be a group member without consent[284]. Prior to the commencement of the hearing[285], the court must give group members notice of the commencement of the proceeding and the right to opt out[286]. But a group member can only opt out of the proceeding by providing written notice before a date that is set by the court[287]. Part IVA places no obligation upon any person to inform group members of any of the proposed terms, or likely terms, of remuneration of the lawyers or litigation funders. If a common fund order could only be made at the conclusion of the proceeding then a group member could be required to make a decision about whether to opt out without knowing anything about the likely remuneration of the litigation funder from any common fund recovered.

   [283]Lenthall v Westpac Banking Corporation (2018) 363 ALR 698 at 707-708 [29]; Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 27-28 [10], relevantly quoting Perera v GetSwift Ltd (2018) 263 FCR 1 at 65-66 [244]-[245].

   [284]Federal Court Act, s 33E.

   [285]Federal Court Act, s 33J(4).

   [286]Federal Court Act, s 33X(1)(a).

   [287]Federal Court Act, s 33J(1), (2).

7. As to the second purpose, the possibility of "hindsight bias"[288] by a court is real. Plainly, the risk at the time of agreement should be assessed by reference to the circumstances prevailing at the time of agreement – not at the conclusion of the proceedings, when the parties have the benefit of full knowledge. By the time that the proceedings have concluded there is no longer any risk of success or failure of the proceedings. The pre-emptive, although provisional, exercise of the power to make a common fund order, once the court is apprised of all the relevant facts other than the success of the proceeding, reduces the possibility of hindsight bias that arises by assessing risk when success is known rather than at the time when the risk is incurred.

   [288]Lenthall v Westpac Banking Corporation (2018) 363 ALR 698 at 707-708 [29]; Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at 27-28 [10], quoting Perera v GetSwift Ltd (2018) 263 FCR 1 at 65-66 [245].

8. In light of the minimal prejudice to the appellants in the making of a common fund order as a prima facie rate of remuneration and the provisional nature of the interlocutory common fund order, which must be revisited at the conclusion of the proceeding, a common fund order made on an interlocutory basis can be seen to fall within the limits of the two purposes which it is properly intended to serve.

   Judicial power

9. The appellants submitted that if s 33ZF(1) of the Federal Court Act and s 183 of the Civil Procedure Act empowered the court to make a common fund order then those provisions would purport to permit the exercise of non-judicial power. Although a State court might exercise non-judicial power in some circumstances where a federal court cannot, it suffices to explain why the appellants' submissions cannot succeed even in relation to s 33ZF(1) of the Federal Court Act.

10. The appellants broadly relied on three reasons. First, they said that a common fund order empowered the creation of new rights rather than the enforcement of existing rights. Secondly, they submitted that a common fund order involved the exercise of a discretion by reference to policy considerations rather than by reference to legal principle. Thirdly, they submitted that an interlocutory common fund order would not affect any right or interest because it would only operate until it was reassessed at final judgment.

11. The first submission misunderstands the distinction between the "adjudication of existing rights and obligations" and "the creation of rights and obligations"[289]. The latter is concerned with an attempted judicial creation of new rights whilst simultaneously concluding that those rights should never have previously existed. By contrast, it is entirely within judicial power for courts to create new rights, in the sense of recognising and giving effect to rights that differ from a previously settled understanding[290]. That is often how the common law develops.

    [289]Ha v New South Wales (1997) 189 CLR 465 at 504; see also at 515. See also Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189.

    [290]Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007 at 1028-1029 [95]-[96]; 372 ALR 555 at 579.

12. As to the second submission, although the calculation of the rate of remuneration for a common fund order will be a difficult exercise and one upon which minds may differ, it must be exercised in accordance with the judicial process, by a process of balancing interests that is quintessentially judicial[291]. Although s 33ZF(1) is open-textured, such enquiries are a common exercise of judicial power. Examples of courts making assessments by reference to broad, open-textured criteria include the adjudication of whether conduct is "unconscionable", the "just and convenient" considerations involved in interlocutory injunctions, and the power of courts to make preventive orders. In any event, the requirements of propriety or necessity, and doing justice in the proceeding, ensure that the exercise of power is judicial.

    [291]Vella v Commissioner of Police (NSW) [2019] HCA 38 at [68].

13. The third submission must also be dismissed. At the very least, a common fund order made on an interlocutory basis for the two purposes described above supports or aids the exercise of judicial power and is therefore a permissible incident in the exercise of a strictly judicial power[292].

    [292]Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151. See also Cominos v Cominos (1972) 127 CLR 588 at 591, 593, 600, 606, 608-609.

    Just terms

14. The final submission of each of the BMW and Westpac appellants, respectively, was that s 183 of the Civil Procedure Act, which they submitted could only operate if picked up by s 79 of the Judiciary Act 1903 (Cth) with a precondition of compliance with s 51(xxxi) of the Constitution[293], and s 33ZF(1) of the Federal Court Act were acquisitions of property on other than just terms.

    [293]Solomons v District Court (NSW) (2002) 211 CLR 119 at 136 [28].

15. It might be doubted whether s 183 of the Civil Procedure Act should be characterised in a manner that would require it either never or always to be picked up by s 79 of the Judiciary Act. It may be that s 183 is neither exclusively a law that is "determinative of the rights and duties of persons" nor exclusively a law that is concerned with "the manner of exercise of jurisdiction"[294], which involves regulating or governing the exercise of power rather than the conferral of power itself. The better view may be that whether s 183 is a section that regulates or governs the exercise of power, such that it would be required to be "picked up" by s 79 of the Judiciary Act, will depend upon the nature of the court orders that it empowers. It is unnecessary to decide this matter because, like a common fund order made under s 33ZF(1) of the Federal Court Act, a common fund order under s 183 of the Civil Procedure Act does not involve an acquisition of property.

    [294]Masson v Parsons (2019) 93 ALJR 848 at 858 [30], see also at 860 [39]; 368 ALR 583 at 593, 596.

16. A court order is unlikely to be characterised as an acquisition of property where a court makes an order for "compensation for a wrong done or damages for an injury inflicted, or as a genuine adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity"[295]. The expression "adjustment of the competing rights, claims or obligations" is a loose description that encapsulates a wide range of orders that are made for principled reasons independently of any purpose of acquiring property. One example is an order that requires a defendant to make restitution of a payment made to them by mistake. That order is plainly not an acquisition of property. Another example is a common fund order that provides for the reasonable remuneration of a service provider from a common fund, ensuring that remuneration is made for a non-gratuitous service and that the cost of the remuneration is spread across all group members whose common fund was obtained as a result of the service.

    [295]Australian Tape ManufacturersAssociation Ltd v The Commonwealth (1993) 176 CLR 480 at 510. See also Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 161.

    Conclusion

17. At times during these appeals, there was a heavy focus in submissions upon arguments of policy. For instance, on the one hand it was submitted that in open class actions a common fund order avoided inefficient and costly "book building" which would ultimately enrich only the lawyers engaged in that process and unnecessarily reduce the fund available to compensate deserving plaintiffs. On the other hand, it was submitted that it would be more "sensible and logical" for potential group members to be identified individually at an early stage and to be personally informed at that stage. These arguments, at heart, concern the extent to which, and manner in which, non-parties should intervene in another's litigation. The answers depend for their practical application on "large questions which vary with changing attitudes to litigation"[296]. There may be doubt whether courts are the best forum for resolution of these questions of policy.

    [296]XYZ v Travelers Insurance Co Ltd [2019] 1 WLR 6075 at 6106 [113].

18. For the reasons given above, the answer to the central issue in these appeals can be resolved by legal principle. It is open for a court acting under s 33ZF(1) of the Federal Court Act or s 183 of the Civil Procedure Act to make a common fund order that will ensure proportionate distribution among all group members of a reasonable remuneration to a litigation funder. The court has power to make the order if it thinks that such an order is "appropriate or necessary to ensure that justice is done in the proceeding", including on an interlocutory basis. That power is supported by reference to long-standing, established approaches to legal principle.

19. The appeals should be dismissed with costs.