Brewster v BMW Australia Ltd

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.