Brookfield Multiplex Limited (ACN 008 687 063) v International Litigation Funding Partners Pte Ltd (No 2)

[2009] FCAFC 182

FEDERAL COURT OF AUSTRALIA

Brookfield Multiplex Limited (ACN 008 687 063) v International Litigation Funding Partners Pte Ltd (No 2) [2009] FCAFC 182

BROOKFIELD MULTIPLEX LIMITED (ACN 008 687 063) and BROOKFIELD MULTIPLEX FUNDS MANAGEMENT LIMITED (ACN 105 371 917) v INTERNATIONAL LITIGATION FUNDING PARTNERS PTE LTD, 2117980 ONTARIO INC, MAURICE BLACKBURN PTY LIMITED (ACN 105 657 949), P DAWSON NOMINEES PTY LIMITED (ACN 004 743 408) and FREDERICK HENRY HART

VID 374 of 2009

SUNDBERG, DOWSETT AND JACOBSON JJ
22 DECEMBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 374 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BROOKFIELD MULTIPLEX LIMITED (ACN 008 687 063)
First Appellant

BROOKFIELD MULTIPLEX FUNDS MANAGEMENT LIMITED (ACN 105 371 917)
Second Appellant

AND:

INTERNATIONAL LITIGATION FUNDING PARTNERS PTE LTD
First Respondent

2117980 ONTARIO INC
Second Respondent

MAURICE BLACKBURN PTY LIMITED (ACN 105 657 949)
Third Respondent

P DAWSON NOMINEES PTY LIMITED (ACN 004 743 408)
Fourth Respondent

FREDERICK HENRY HART
Fifth Respondent

JUDGES:	SUNDBERG, DOWSETT AND JACOBSON JJ
DATE OF ORDER:	22 DECEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT DECLARES THAT the arrangements between the first, second and third respondents on the one hand, and the fourth and fifth respondents and those persons described as Group Members in the further amended statement of claim on the other hand, which arrangements are as pleaded in paragraphs 13‑15, 20 and 35 of the said further amended statement of claim, constitute a managed investment scheme as defined in paragraph (a) of the definition of that term in section 9 of the Corporations Act 2001 (Cth), save to the extent that they are excluded therefrom by the terms of the Revocation, Declaration and Exemptions granted in writing by the Australian Securities and Investments Commission on 18 November 2009.

THE COURT ORDERS THAT:

1.The orders made by Finkelstein J on 6 May 2009 be set aside.

2.The respondents have leave to read and file the affidavit of Andrew John Watson sworn on 18 November 2009, limited to paragraphs 1 to 5 and 7 thereof.

3.The respondents pay the appellants’ costs of the proceedings below and of the appeal including the costs of the motion the subject of the undated notice referred to in paragraph [10] of the reasons of Justices Sundberg and Dowsett.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 374 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BROOKFIELD MULTIPLEX LIMITED (ACN 008 687 063)
First Appellant

BROOKFIELD MULTIPLEX FUNDS MANAGEMENT LIMITED (ACN 105 371 917)
Second Appellant

AND:

INTERNATIONAL LITIGATION FUNDING PARTNERS PTE LTD
First Respondent

2117980 ONTARIO INC
Second Respondent

MAURICE BLACKBURN PTY LIMITED (ACN 105 657 949)
Third Respondent

P DAWSON NOMINEES PTY LIMITED (ACN 004 743 408)
Fourth Respondent

FREDERICK HENRY HART
Fifth Respondent

JUDGES:	SUNDBERG, DOWSETT AND JACOBSON JJ
DATE:	22 DECEMBER 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

SUNDBERG AND DOWSETT JJ:

BACKGROUND

1. In this matter the Court published its reasons for judgment on 20 October 2009 but did not, at that time, finally dispose of the matter.  The matter arises in connection with two representative actions commenced in this Court.  They are described hereafter as the “Dawson proceedings”, in which the fourth respondent is the applicant, and the “Hart proceedings”, in which the fifth respondent is the applicant.  The proceedings were consolidated by order of Finkelstein J dated 16 December 2008.  The appellants are the respondents in both representative proceedings.  The consolidated proceedings are described hereafter as the “consolidated representative proceedings”.  The fourth and fifth respondents and the persons whom they represent in the Dawson proceedings and the Hart proceedings (or, subsequent to the consolidation, in the consolidated representative proceedings) are described as the “Group Members”. 

2. In the current proceedings the Court was, in effect, asked to determine whether the funding arrangements entered into in connection with the prosecution of the Dawson proceedings and the Hart proceedings (and now, the consolidated representative proceedings), constitute a managed investment scheme within the meaning of that term as defined in s 9 of the Corporations Act 2001 (Cth) (the “Act”) and therefore are required to be registered pursuant to Ch 5C of the Act. We have concluded that those arrangements constitute such a scheme (the “scheme”), whilst Jacobson J has concluded that they do not. At the time of giving its decision and reasons the Court ordered that:

   1.Within seven days of publication of these reasons, [the appellants] file and serve written submissions concerning proposed forms of order;

   2.Within 14 days of such publication, the respondents file and serve their submissions concerning all outstanding matters;

   3.Within 21 days of such publication, [the appellants] file and serve [their] reply to the respondents’ submissions; and

   4.The parties have liberty to apply.

3. Apart from the Court’s desire to have the assistance of the parties in the drafting of appropriate orders, two matters led to the making of those orders.  The first was that the parties had, as they informed the Court, agreed prior to the hearing of the appeal that in the event that it was successful, questions of relief should be referred back to the primary Judge.  We indicated in our reasons that we did not approve of this course, considering that it reflected excessive concern with process and insufficient concern for the need to produce a speedy and effective outcome.  We also indicated that we considered that some form of declaratory relief was necessary in order to record and vindicate the invocation of the Court’s jurisdiction to quell a real dispute between the parties.

4. The second matter arose out of a provision in the Act authorizing the Australian Securities and Investments Commission (“ASIC”) to exempt particular parties from compliance with the terms of Ch 5C or to modify the operation of the chapter. It was thought at least possible that ASIC might intervene in order to alleviate the immediate consequences of the Court’s decision. It has done so.

   THE APPELLANTS’ SUBMISSIONS

5. The appellants have provided submissions dated 27 October 2009 in which they seek the following declarations:

   ·that the scheme comprises a managed investment scheme within the meaning of that expression as defined in s 9 of the Act; and

   ·that in giving effect to the scheme the first, second and third respondents contravened s 601ED(5) of the Act.

6. The appellants also seek injunctive relief:

   ·restraining all respondents from taking any further step in furtherance of the scheme, unless it is registered under the provisions of Pt 5C of the Act or is otherwise exempted from registration; and

   ·restraining the first, second and third respondents, until such registration or exemption, from taking any step to enforce certain rights and obligations arising under the scheme.

7. The appellants also seek:

   ·to be relieved from certain undertakings given by them in the Dawson proceedings pursuant to an agreement to which the appellants and the fourth respondents are parties;

   ·an order that the third respondent provide a copy of these orders to each of the Group Members and “inform the Group Members of their rights under s 601MB of the Corporations Act”; and

   ·an order that the respondents pay their costs of the proceedings on appeal and at first instance.

   THE RESPONDENTS’ SUBMISSIONS

8. The third, fourth and fifth respondents provided submissions dated 6 November 2009, which submissions the first and second respondents have adopted.

9. At para 1.3 of their submissions the respondents submit that:

   Given the determination that the Full Court is to deal with relief, the primary submission of the present respondents is that the Full Court, with respect, ought not to proceed to deal with relief until and unless it has dealt with any applications for leave to adduce further evidence on the question of relief pursuant to O 52 r 36 and heard submissions on that evidence by a further short oral hearing.

10. They have forwarded to the Court an undated notice of motion seeking an oral hearing, leave to adduce further evidence and a direction that O 52 r 36 (dealing with evidence on appeal) not apply to their motion. They also inform the Court that ASIC has granted appropriate exemption and/or modification so that, as we assume, for the moment at least, the scheme need not be registered pursuant to Ch 5C of the Act. We stress, however, that this is an assumption and not a conclusion. The exemptions and/or modifications (the “ASIC orders”) granted by ASIC appear in a document dated 18 November 2009 (the “ASIC instrument”).

11. The respondents submit that declaratory relief will serve no purpose as between the parties, largely because of the ASIC orders.  The respondents submit that the appellants lack standing to seek injunctive relief, and that even if they had standing, the Court should not grant such relief.  We have already concluded that the appellants have such standing.  We do not propose to revisit that question.  The respondents also advance various discretionary matters which, they submit, militate against the grant of injunctive relief.  There are also some technical criticisms of the proposed orders.  The respondents resist the appellants’ application for release from their undertakings.  As to the requirement that Group Members be notified of the Court’s orders, the respondents submit that we should assume that the third respondent will, in any event, discharge its professional obligations and fiduciary duties.  They also submit that the content of any such communication is a matter between the third respondent and the Group Members and has nothing to do with the appellants or the Court.  The respondents then make submissions concerning costs which we will deal with at the end of these reasons. 

    NOTICE OF MOTION

12. The respondents seek to lead further evidence in connection with the question of relief. They also ask that we hear them orally on that question. We invited the parties to make their submissions in writing. We are reluctant to compel or allow the parties to incur the costs of a further hearing. However the request to lead further evidence complicates matters. The proposed evidence is contained in an affidavit of Andrew John Watson sworn on 18 November 2009 (Mr Watson’s affidavit). That affidavit addresses three different issues. The first issue concerns the ASIC orders. The deponent exhibits numerous documents relating to that issue. The second issue is the appellants’ application to be relieved from compliance with their undertakings. The third issue concerns attempts made by Piper Alderman, solicitors, prior to the determination of the appeal, to have ASIC grant appropriate exemption from, or modification of, the application of Ch 5C. ASIC declined to intervene whilst these proceedings were on foot.

    SUBMISSIONS IN REPLY AND ON THE PROPOSED MOTION

13. On 13 November 2009 the appellants filed submissions in reply and submissions on the notice of motion.  Apart from responding to various discretionary matters raised by the respondents, the appellants challenge the extent of operation of the ASIC orders.  They submit that such orders operate only in relation to the Dawson proceedings and not the Hart proceedings.  They also refer to the fact that the second respondent entered into funding arrangements for the Dawson proceedings and purportedly assigned its rights to the first respondent.  The appellants submit that there could be no such assignment unless the Group Members consented to the novation, and that there is no evidence that this has occurred.  They submit that in those circumstances, the second respondent continues to be the funder of the Dawson proceedings.  They then submit that although the second respondent is the funder of the Dawson proceedings, it does not have the benefit of any exemption or modification.  This submission was made prior to the issue of the ASIC instrument.  An earlier version did not refer to the second respondent.  However the second respondent is named as a relevant person in the ASIC instrument made on 18 November 2009.  As a result, this aspect of the appellants’ submissions falls away.  However the question whether the ASIC orders extend to the Hart proceedings remains for consideration.

    A FURTHER HEARING

14. The respondents actually seek two further hearings, one for directions and one for the hearing of the proposed motion.  They propose that on the hearing of the motion the Court would:

    ·receive the evidence contained in Mr Watson’s affidavit and any further evidence from the appellants, and hear any objections to evidence and cross-examination; and

    ·receive further submissions concerning that evidence and as to relief.

15. We again point out that we have previously ordered that submissions as to relief be made in writing.  The parties will only be entitled to make further submissions if further evidence is received.  Thus a further hearing will only be necessary if we consider that Mr Watson’s evidence should be received, and if the appellants wish to cross-examine him or lead evidence on their own behalf.  In our view the matter can be easily resolved without a further hearing. 

16. Much of the affidavit is devoted to exhibiting documents which have either been referred to in the appellants’ submissions or are plainly uncontroversial.  Exhibit AJW-1 is the agreement pursuant to which the appellants gave the undertakings from which they seek relief.  They refer to it in their submissions and can hardly oppose its being received into evidence.  Exhibits AJW-2, AJW-3 and AJW-4 concern ASIC’s intervention and, we are confident, are uncontroversial.  At least one of them was referred to in the appellants’ submissions.  Exhibits AJW-5 and AJW-6 are letters from ASIC concerning the earlier request for intervention made by Piper Alderman.  We are confident that they are uncontroversial.  In any event, although we accept that the fact of an earlier application may have marginal relevance to the exercise of the discretions as to declaratory and injunctive relief and as to costs, we do not consider the issue to be of great significance in this case.  Exhibit AJW-7 is a copy of an order made by Finkelstein J on 16 December 2008.  It goes only to the question of consolidation of the two representative actions.  Again, it cannot be controversial.

17. We consider that we may properly receive and have regard to those documents without hearing the parties on questions concerning their receipt and admissibility.  It is safe to assume that they have already made any likely substantive submissions concerning them.

18. The balance of the affidavit concerns the circumstances in which the agreement (ex AJW-1) was made.  That evidence will only be relevant if we are willing to entertain the appellants’ application to be released from their undertakings.  We will return to that matter.  For present purposes we grant leave to the respondents to read and file paras 1-5 and 7 of Mr Watson’s affidavit.

    THE ASIC INSTRUMENT

19. We have concluded that the appellants’ submission that the ASIC orders do not apply to the second respondent cannot be maintained in light of the terms of the ASIC instrument.  The validity of any purported replacement as funder of the second respondent by the first respondent is therefore of no present relevance.  We turn to the appellants’ submissions that the ASIC instrument does not apply to the Hart proceedings.

20. The ASIC instrument applies to the persons named in Schedule A “in the case referred to in Schedule B”.  The persons named in Sch A are the first, second, fourth and fifth respondents and persons who, we assume, are the “partners” in the legal practice carried on by the third respondent.  Schedule B states:

    Legal Proceedings in the Federal Court of Australia in the matter of P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd & Anor (VID 1380/2006) commenced on 18 December 2006.

21. The appellants submit that the instrument does not apply to the Hart proceedings, presumably because those proceedings are not mentioned by name.  This submission is difficult to maintain in light of the fact that Mr Hart is named in Sch A.  As we have said, the Dawson proceedings and the Hart proceedings were consolidated by order of Finkelstein J made on 16 December 2008.  According to that order, those proceedings are now properly described as “P Dawson Nominees Pty Limited & anor v Brookfield Multiplex Ltd & anor (VID 1380 of 2006)”.  We infer that the appellants rely upon the omission of the abbreviation “anor” in the description of the applicants in those proceedings.  Such an omission is common in the law.  In any event, the reference to the proceedings can only be construed as a reference to the proceedings as presently constituted.  They are presently constituted as consolidated proceedings.  In our view the reference to the proceedings is intended only to identify the arrangements to which the ASIC orders are to apply.  However we should say a little more about that matter.

22. In para 2, ASIC purports to modify or vary the definition in s 9 of the Act of the term “managed investment scheme” as it applies to the persons named in Sch A. Such modification or variation is that “a scheme for participating in, conducting and funding legal proceedings” is to be excluded from the definition. The modification applies only to the persons named in Sch A, and only “in the case referred to in Schedule B”. It is possible to read para 2 and Sch B as meaning that the modification applies only in the identified legal proceedings, and not otherwise. The modification in para 5 may be similarly construed. However that construction of the instrument suggests an impermissible interference in the judicial process. It would, in effect, prevent the Court from taking account of the actual state of affairs because, for the purposes of proceedings in the Court, but not for any other purpose, ASIC has prescribed that it is otherwise. We think it most unlikely that ASIC had that intention. It is more probable that the reference to the proceedings was adopted as a way of describing the arrangements which were to be excluded from the unmodified operation of the Act. In other words, we construe paras 2 and 5 as modifying the Act as it applies to the named persons in connection with their participation in the scheme which we have held to be within the terms of para (a) of the definition of the term “managed investment scheme” in s 9 of the Act.

23. The appellants also submit that the ASIC exemption is temporary and does not validate past infringements of Ch 5C. Those propositions may be true, but we see no relevant consequence flowing from them for present purposes.

    THE UNDERTAKINGS

24. We turn to the appellants’ submission that they should be relieved from their undertakings.  We do not understand the appellants to have given undertakings in the usual sense.  We understand, rather, that they have undertaken certain contractual obligations.  The respondents submit that this issue has not previously been raised in these proceedings.  There is no reference to it in the further amended originating process, in his Honour’s reasons at first instance or in the notice of appeal.  We see no reason for allowing the appellants to raise it at this late stage.

1. In any event, we doubt whether the matter is appropriate for ventilation as part of this appeal.  The agreement deals with the basis upon which the fourth respondent was to provide certain information concerning claimants in the Dawson proceedings and their claims.  The respondent agreed to provide such information to the appellants upon certain conditions as to confidentiality and otherwise as set out in Sch A.  Clause 2.1 provides that:

   The [appellants] [and their solicitors] will not knowingly commence any discussions with any group member in relation to:

   (a)the existence, form, content, quantum or settlement of any claims which are the subject of the proceedings; or

   (b)the involvement of any group member in the proceedings.

2. It is curious that as a condition of receiving information concerning proceedings against them, the appellants should have to agree not to speak to those making the claims upon which the proceedings are based.  Of course the appellants’ solicitors could not speak to the claimants other than through their solicitors.  That is a rule of professional practice.  However the parties may generally converse, if they so wish.  It may be that we do not fully understand the circumstances in which this “undertaking” was required and given, but we feel that we should at least draw attention to its apparent curiosity.  After all, it is not unknown for the parties to resolve a dispute when the lawyers have reached an impasse.

3. The appellants submit (at para 41) that the undertakings were given “(s)ubject to the further orders of the Court or Agreement”, and that the Court may release them from their undertakings.  We doubt very much whether jurisdiction can be so conferred upon the Court There is merit in the respondents’ submission that the appellants are seeking to escape from the terms of an agreement, and that this must be done in accordance with the general law.  If the appellants assert that they are entitled to depart from the agreement, they should take appropriate steps in order to establish such entitlement.  Alternatively, they may be able to apply to the docket Judge in the consolidated representative proceedings for relevant orders pursuant to the rules so that they need not rely on the agreement.  We offer no opinion as to the relevance of the agreement to any application for such orders.  In any event, we do not consider that the issue arises in connection with the appeal.  In those circumstances, it will not be necessary or appropriate to receive Mr Watson’s evidence concerning the circumstances surrounding the making of the agreement.  

   NOTICES TO GROUP MEMBERS

4. As to the proposal that we order the third respondent to give notices to Group Members, there is substance in the respondents’ submission that the Court has no reason to believe that the third respondent will do other than comply with its duty to its clients.  In that regard we assume that the group members have been advised of the appellants’ challenge to the validity of the scheme, the favourable decision reached by Finkelstein J and that they have been, or will be, advised of the outcome of the appeal.  However the third respondent must form its own views as to its duty to its clients.

   SUBSTANTIVE ORDERS

5. Whilst accepting that the matters in issue are of considerable importance to the parties, we suspect that they are overlooking certain fundamental issues.  First, the respondents’ submission that there should be no declaratory relief would mean that the Court had failed to quell the dispute between the parties, or would appear to have so failed.  That dispute justified the appellants in invoking the Court’s jurisdiction.  Difficult issues were raised for decision and have been decided.  The respondents cannot avoid any disadvantage which they perceive in the Court’s granting declaratory relief simply by asserting that they accept the Court’s decision and will abide by it in the future.  The appellants are entitled to formal recognition of their success in an order which is designed to quell the dispute.

6. We assume that the respondents, in entering into the scheme, either made informed decisions concerning the operation of Ch 5C or overlooked the need to do so. As we understand it, the respondents do not deny that each appellant had an interest in determining whether or not the scheme engaged the provisions of Ch 5C. However they now resist declaratory relief on the basis that it will be inutile. It would, we think, be very rare that the Court would go to the trouble of entertaining a matter genuinely in dispute between the parties at first instance and on appeal, without recording the ultimate outcome in a comprehensible way. We also do not consider that ASIC’s intervention should deprive the appellants of formal recognition of their success in the litigation. It will provide a firm basis for their future conduct of the consolidated representative proceedings. In a matter of public interest (as this is), it is also appropriate that members of the public be able to see the result in a comprehensible form. We are minded to grant declaratory relief as to the application of the definition of the term “managed investment scheme” in s 9 of the Act.

7. We are not inclined to declare that any of the first, second and third respondents contravened Ch 5C by operating an unregistered scheme. As we observed in our earlier reasons at [104], there was no real attempt to identify which of the respondents was operating the scheme for the purposes of s 601ED(5) of the Act. It is probable that, amongst them, they were doing so, but it does not necessarily follow that each or any of them was doing so. They may have been acting in concert to produce that result, but we do not understand that proposition to have been expressly advanced. Nor do we understand the appellants to have raised a case based upon any provision of the Act which extends the categories of persons liable for the conduct of others. In those circumstances we should not make a declaration as to relatively serious misconduct. We also doubt whether such a declaration would serve any useful purpose.

8. In seeking injunctive relief, the appellants overlook the significance of ASIC’s intervention.  If the appellants commence proceedings to challenge the validity of the steps taken by ASIC, then they may seek such relief in those proceedings.  For the moment, all infringing conduct is in the past.  At least for as long as the ASIC instrument remains in force, there is no prospect of future contravention.  We decline to grant injunctive relief.

   COSTS

9. We turn to the question of costs.  We do not accept the respondents’ submission that these proceedings were an “unnecessary interlocutory disputation”.  The question raised was important to the appellants, the broader public and, we would think, the Group Members.  It is true that the primary Judge observed that the proceedings had been commenced “with a desire to stop the substantive action in its tracks”, and that no issue was taken concerning that observation on appeal.  However we have difficulty in treating it as a finding of fact.  It is more a matter of opinion.  The respondents imply that the proceedings were vexatious or abusive but have not sought to dispose of them on that basis.  We consider that it was prudent for the appellants to have the matter resolved so as to ensure that the substantial litigation in which they are involved proceeds to ultimate resolution in a way which will be beyond challenge.

10. The respondents also submit that the grant of some form of relief by ASIC was always the likely outcome.  That may be so, but it was for the respondents, not the appellants, to seek such relief.  As we have said, the respondents sought ASIC’s intervention after the hearing at first instance and before the appeal.  ASIC declined to act whilst the litigation was on foot.  That may have been an appropriate response, but it does not change the fact that this litigation was the result of the respondents’ conduct in setting up the scheme.  Costs should follow the event.

    ORDERS

11. In the circumstances there is no point in allowing the respondents to move for the relief sought in the proposed notice of motion, or to rely upon that part of Mr Watson’s affidavit which deals with the circumstances in which the agreement between the appellants and the fourth respondent was made.  However, as we have said, we will permit the respondents to read and file the affidavit to the limited extent set out above.  The Court orders that:

    1.        The orders made by Finkelstein J on 6 May 2009 be set aside.

    2.The respondents have leave to read and file Mr Watson’s affidavit, limited to paragraphs 1 to 5 and 7 thereof.

    3.The respondents pay the appellants’ costs of the proceedings below and on appeal.

    The Court declares that the arrangements between the first, second and third respondents, on the one hand, and the fourth and fifth respondents and those persons described as Group Members in the further amended statement of claim in these proceedings, on the other hand, which arrangements are as pleaded in paragraphs 13-15, 20 and 35 of the said further amended statement of claim, constitute a managed investment scheme as defined in paragraph (a) of the definition of that term in s 9 of the Corporations Act 2001 (Cth), save to the extent that they are excluded therefrom by the terms of the Revocation, Declaration and Exemptions granted in writing by the Australian Securities and Investments Commission on 18 November 2009.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg and Dowsett.

Associate:

Dated:        22 December 2009

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 374 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BROOKFIELD MULTIPLEX LIMITED (ACN 008 687 063)
First Appellant

BROOKFIELD MULTIPLEX FUNDS MANAGEMENT LIMITED (ACN 105 371 917)
Second Appellant

AND:

INTERNATIONAL LITIGATION FUNDING PARTNERS PTE LTD
First Respondent

2117980 ONTARIO INC
Second Respondent

MAURICE BLACKBURN PTY LIMITED (ACN 105 657 949)
Third Respondent

P DAWSON NOMINEES PTY LIMITED (ACN 004 743 408)
Fourth Respondent

FREDERICK HENRY HART
Fifth Respondent

JUDGES:	SUNDBERG, DOWSETT AND JACOBSON JJ
DATE OF ORDER:	22 DECEMBER 2009
WHERE MADE:	MELBOURNE

REASONS FOR DECISION

JACOBSON J:

1. The orders I would have made are that the appeal be dismissed with costs.  I therefore do not consider it to be necessary or appropriate for me to express any view as to the orders proposed to be made by Sundberg and Dowsett JJ.

I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        22 December 2009

Counsel for the Appellants:	TF Bathurst QC, SM Nixon and DFC Thomas
Solicitors for the Appellants:	Mallesons Stephen Jaques
Solicitors for the First and Second Respondents:	Piper Alderman
Counsel for the Third, Fourth and Fifth Respondents:	N Hutley SC and M Lee
Solicitors for the Third Respondent:	Maurice Blackburn
Solicitors for the Fourth and Fifth Respondents:	Harris Legal

Date of last written  submissions:	13 November 2009
Date of Judgment:	22 December 2009