Mobil Oil Australia Pty Limited v Trendlen Pty Limited

Mobil Oil Australia Pty Limited (Mobil) appealed to the High Court of Australia from orders of the Supreme Court of New South Wales. The proceedings were brought by Trendlen Pty Limited, a petroleum retailer, on behalf of itself and other retailers, seeking to recover licence fees paid to Mobil. The proceedings were financed by a litigation funder.

The High Court was required to determine whether the Supreme Court Rules 1970 (NSW) provisions for representative proceedings were validly engaged, specifically concerning the requirement that numerous persons have the "same interest" in the proceedings. It also had to consider whether the proceedings, financed by a litigation funder who sought out claimants and received a portion of the claim, constituted champerty or maintenance contrary to public policy, and therefore an abuse of process.

The Court reasoned that for representative proceedings to be validly commenced under the Supreme Court Rules, there must be numerous persons who have the same interest in the proceedings at the time of commencement. In this instance, the proceedings were intended to be conducted on behalf of retailers who subsequently "opted-in," but none had done so at the commencement of the action. The Court found that the arrangement with the litigation funder, involving the funder seeking out claimants and receiving a significant share of the claim, amounted to trafficking in litigation and was contrary to public policy, constituting an abuse of process.

The appeal was allowed with costs. The orders of the Supreme Court of New South Wales were set aside, and in their place, it was ordered that the plaintiff's notice of motion be dismissed with costs, the proceedings not be continued as representative proceedings, and the plaintiff pay the defendant's costs of the defendant's notice of motion.