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Brewster v BMW Australia Ltd

Brewster v BMW Australia Ltd

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Case Copied 1 March 2019 70 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Brewster v BMW Australia Ltd [2019] NSWCA 35
Hearing dates: 4 and 5 February 2019
Date of orders: 01 March 2019
Decision date: 01 March 2019
Before: Meagher JA; Ward JA; Leeming JA
Decision:
1. Answer the question stated for separate determination as follows: Does 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)?
Answer: “Yes”.
2. Grant leave to the parties and Regency Funding to supply to the Associate of Meagher JA within 14 days (a) agreed short minutes of order, or (b) proposed short minutes of order, and submissions not to exceed five pages in support of such further orders as each seeks, with a view to whether any further orders are made being heard and determined on the papers.
Catchwords:
CONSTITUTIONAL LAW – separation of powers –acquisition of property – whether common fund order contrary to separation of powers – whether common fund order acquisition of property other than on just terms – consideration of additional considerations in challenge to order made by Supreme Court pursuant to State legislation
REPRESENTATIVE PROCEEDINGS – common fund order – whether power to make interlocutory order binding group members and presumptively entitling funder to 25% of any judgment or compromise – power available
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 157, 159, 162, 166, 173, 175–183, Part 10
Commonwealth Constitution, ss 51(xxxi), 96, Chapter III
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law
Community Protection Act 1994 (NSW)
Federal Court of Australia Act 1976 (Cth), ss 22, 33N, 33Z, 33ZF, 37M, Part IVA
Federal Court Rules 1979, Order 6 r 13
Income Tax Assessment Act 1936 (Cth)
Interpretation Act 1987 (NSW), s 31
Judicature Act 1873 (UK), s 24
Judiciary Act 1903 (Cth), ss 78B, 79
Maintenance, Champerty and Barratry Abolition Act 1993 (NSW), ss 3, 4, 6
Supreme Court Act 1970 (NSW), ss 23, 63
Supreme Court Rules 1970, Part 8 r 13
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.21, 28.2, 42.1
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9
Attorney General v 2UE Sydney Pty Ltd [2006] NSWCA 349; (2006) 236 ALR 385
Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18
Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; [1992] HCA 45
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1
Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; [1993] HCA 10
Bank of New South…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCA 35
Decision Date: 01 March 2019

CaseChat Overview and Summary

Brewster, as the plaintiff, brought a representative proceeding against BMW Australia Ltd. The core of the dispute concerned the validity of a "common fund order" sought by the plaintiff, which would bind group members and presumptively entitle a litigation funder to 25% of any judgment or compromise. The matter came before the Court of Appeal of New South Wales, constituted by Meagher, Ward, and Leeming JJA.

The central legal issues before the Court of Appeal were whether the Supreme Court possessed the power to make such a common fund order, and if so, whether the making of such an order was contrary to the constitutional principle of the separation of powers, specifically in relation to the acquisition of property otherwise than on just terms. The Court was asked to consider these constitutional challenges in the context of an order made by the Supreme Court pursuant to State legislation.

The Court of Appeal reasoned that the power to make an interlocutory common fund order, as sought by the plaintiff, was available to the Court. The judges considered the constitutional arguments, including the separation of powers and the acquisition of property provisions, and concluded that the power to make the common fund order was not vitiated by these constitutional principles. The Court determined that the legislative power to authorise such orders was validly exercised.

The Court answered the question posed for separate determination in the affirmative, stating "Yes" to the question of whether it had the power to make the common fund order. Leave was granted to the parties and the litigation funder, Regency Funding, to provide agreed or proposed short minutes of order and supporting submissions to the Associate of Meagher JA within 14 days, with a view to determining any further orders on the papers.

Orders

Orders of the court

1. Answer the question stated for separate determination as follows: Does 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)?

Answer: “Yes”.

2. Grant leave to the parties and Regency Funding to supply to the Associate of Meagher JA within 14 days (a) agreed short minutes of order, or (b) proposed short minutes of order, and submissions not to exceed five pages in support of such further orders as each seeks, with a view to whether any further orders are made being heard and determined on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Brewster v BMW Australia Ltd [2019] NSWCA 35
Hearing dates:	4 and 5 February 2019
Date of orders:	01 March 2019
Decision date:	01 March 2019
Before:	Meagher JA; Ward JA; Leeming JA
Decision:	1. Answer the question stated for separate determination as follows: Does 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)? Answer: “Yes”. 2. Grant leave to the parties and Regency Funding to supply to the Associate of Meagher JA within 14 days (a) agreed short minutes of order, or (b) proposed short minutes of order, and submissions not to exceed five pages in support of such further orders as each seeks, with a view to whether any further orders are made being heard and determined on the papers.
Catchwords:	CONSTITUTIONAL LAW – separation of powers –acquisition of property – whether common fund order contrary to separation of powers – whether common fund order acquisition of property other than on just terms – consideration of additional considerations in challenge to order made by Supreme Court pursuant to State legislation REPRESENTATIVE PROCEEDINGS – common fund order – whether power to make interlocutory order binding group members and presumptively entitling funder to 25% of any judgment or compromise – power available
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 157, 159, 162, 166, 173, 175–183, Part 10 Commonwealth Constitution, ss 51(xxxi), 96, Chapter III Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law Community Protection Act 1994 (NSW) Federal Court of Australia Act 1976 (Cth), ss 22, 33N, 33Z, 33ZF, 37M, Part IVA Federal Court Rules 1979, Order 6 r 13 Income Tax Assessment Act 1936 (Cth) Interpretation Act 1987 (NSW), s 31 Judicature Act 1873 (UK), s 24 Judiciary Act 1903 (Cth), ss 78B, 79 Maintenance, Champerty and Barratry Abolition Act 1993 (NSW), ss 3, 4, 6 Supreme Court Act 1970 (NSW), ss 23, 63 Supreme Court Rules 1970, Part 8 r 13 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 1.21, 28.2, 42.1
Cases Cited:	Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 Attorney General v 2UE Sydney Pty Ltd [2006] NSWCA 349; (2006) 236 ALR 385 Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18 Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; [1992] HCA 45 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; [1993] HCA 10 Bank of New South…