Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd

Campbells Cash and Carry Pty Ltd and Fostif Pty Ltd were the parties involved in this matter before the High Court of Australia. The dispute concerned representative proceedings brought by licensed tobacco retailers seeking to recover licence fees paid between 1 July 1997 and the decision in *Ha v State of New South Wales*, which invalidated the licensing scheme. These proceedings were financed by a litigation funder and were intended to be conducted on behalf of retailers who subsequently "opted-in".

The High Court was required to determine several legal issues. These included whether the provisions for representative proceedings under Part 8, Rule 13 of the *Supreme Court Rules 1970* (NSW) were validly engaged, particularly concerning the requirement that numerous persons have the "same interest" in the proceedings at the time they are commenced, even if no one had yet opted in. The Court also had to consider whether the proceedings should be stayed as an abuse of process or contrary to public policy, given they were financed by a litigation funder who sought out claimants and received a significant portion of the recovered claims. The validity of administering interrogatories to identify other persons with the "same interest" was also in question.

The High Court reasoned that the "same interest" requirement in representative proceedings necessitates a common question of law or fact that is central to the claims of all group members. The Court found that the proceedings were not properly constituted as representative proceedings at their commencement because, at that time, no retailers had "opted-in" to be represented, meaning there were not yet numerous persons with the "same interest" in the proceedings. Furthermore, the Court held that the conduct of the litigation funder, in seeking out claimants and taking a substantial share of their claims, amounted to an abuse of process and was contrary to public policy, notwithstanding the *Maintenance, Champerty and Barratry Abolition Act 1993* (NSW). The Court considered the overriding purpose of the rules of court, which is to facilitate the just resolution of disputes.

In each matter, the High Court allowed the appeal with costs, setting aside the orders of the Court of Appeal of the Supreme Court of New South Wales and dismissing the appeal to that Court with costs.