Impiombato v BHP Billiton Limited

The case of Impiombato v BHP Billiton Limited involved an application for a common fund order in the context of a securities class action brought by Vince Impiombato against BHP Billiton Limited. The applicants sought a common fund order to facilitate the funding of the proceedings by a litigation funder, G&E KTMC Funding LLC. The Federal Court was required to determine whether it was appropriate to make a common fund order, considering various legal principles and the terms of the proposed funding arrangement.

The court considered several legal principles in making its decision, including the general preference for the burden of costs to be shared equally among group members in representative proceedings, the advantage of providing certainty to group members about the maximum costs of participating in the action before opting out, and the need for continued judicial oversight to prevent disproportionate returns to the funder. The court also noted the extensive experience of the funder and the lawyers in conducting securities class actions and the unexceptional nature of the proposed funding terms.

After considering these factors, the court found that a common fund order as sought by the applicant was appropriate and in the interests of justice. The court emphasised that the 18% cap on the funding commission was a maximum and should not be seen as the inevitable reference point for the selection of the actual funding amount. The court also noted that the proposed funding terms provided for continued judicial oversight of the costs and allowed for the actual funding amount to be set by the court at a later stage when more information about the quantum of any settlement or judgment would be available.

The court made a common fund order pursuant to the terms proposed by the applicant, subject to certain conditions, including the provision of an undertaking by the funder, the applicant, and the lawyers to comply with their obligations under the funding terms and the court's order. The court also set out a timetable for the filing and serving of evidence and written submissions in relation to an interlocutory application filed by the respondent seeking to stay the proceedings.

In summary, the court found that it was appropriate to make a common fund order in the present proceeding, considering the proposed funding terms, the extensive experience of the funder and the lawyers, and the legal principles governing representative proceedings. The court's order provides for the funding of the proceedings by a litigation funder, subject to certain conditions and continued judicial oversight.