SUPREME COURT OF QUEENSLAND
CITATION:
Murphy Operator & Ors v Gladstone Ports Corporation & Anor (No 4) [2019] QSC 228
PARTIES:
MURPHY OPERATOR PTY LTD (ACN 088 269 596)
(first plaintiff/first applicant)
TOBARI PTY LTD (ACN 010 172 237)
(second plaintiff/second applicant)
SPW VENTURES PTY LTD (ACN 135 830 036)
(third plaintiff/third applicant)v
GLADSTONE PORTS CORPORATION LIMITED
(ACN 131 965 896)
(defendant/first respondent)LCM OPERATIONS PTY LTD
(second respondent)FILE NO:
SC No 7495 of 2017
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Rockhampton
DELIVERED ON:
13 September 2019
DELIVERED AT:
Rockhampton
HEARING DATES:
18 and 19 July 2019
JUDGE:
Crow J
ORDER:
1. The agreement titled “Representative Proceeding Funding Agreement, Representative, The 2017 Gladstone Fisheries Scheme” between LCM Operations Pty Ltd, Murphy Operator Pty Ltd, Tobari Pty Ltd and SPW Ventures Pty Ltd is not, by reason of maintenance, champerty or public policy, unenforceable; and
2. The agreements titled “Representative Proceeding Funding Agreement, Member, The 2017 Gladstone Fisheries Scheme” between LCM Operations Pty Ltd and funded group members are not, by reason of maintenance, champerty or public policy, unenforceable.
CATCHWORDS:
TORTS – LAW OF MAINTENANCE AND CHAMPERTY – CHAMPERTY – where plaintiffs seek declarations that the litigation funding arrangements are not by reason of maintenance, champerty or public policy, unenforceable – where first respondent and plaintiffs argue that the torts of maintenance and champerty no longer exist as part of the common law of Australia – whether maintenance and champerty still exist as part of the common law of Australia
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – REPRESENTATIVE PARTY OR PROCEEDINGS – where plaintiffs seek declarations that the litigation funding agreements are not by reason of maintenance, champerty or public policy, unenforceable – where plaintiffs argue s 103K(2)(b) of the Civil Proceedings Act (Qld) 2011 authorise the litigation funding agreements – whether s 103K(2)(b) of the Civil Proceedings Act (Qld) 2011 authorise the litigation funding agreements
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – ILLEGAL AND VOID CONTRACTS – CONTRACTS CONTRARY TO PUBLIC POLICY – OTHER CONTRACTS – where plaintiffs seek declarations that the litigation funding agreements are not by reason of maintenance, champerty or public policy, unenforceable – where plaintiff argues that there is lawful justification for the litigation funding agreements and therefore are enforceable – where defendant argues that there is no lawful justification therefore the entry into the agreements is a civil wrong and the agreements are unenforceable as contrary to public policy - whether the agreements are lawfully justified and are therefore enforceable
EVIDENCE – ADMISSIBILITY - GENERAL PRINCIPLES – where plaintiffs seek declarations that the litigation funding agreements are not by reason of maintenance, champerty or public policy, unenforceable – where defendant argues that the first respondent exercises impermissible control of the proceedings – where defendant tendered invoices issued by the plaintiffs’ solicitors seeking to demonstrate impermissible control of the proceedings – where first respondent objects to the admissibility of the invoices on the basis…
Keep reading for free
Create a free CaseChat account to read Murphy Operator v Gladstone Ports Corporation (No 4) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] QSC 228
- Decision Date
CaseChat Overview and Summary
The court found that the funding agreements did not involve unlawful conduct or purpose and were not prejudicial to the administration of justice. The agreements were consistent with the public policy outlined in Part 13A of the Civil Proceedings Act 2011 (Qld). The court held that the agreements were not unenforceable by reason of maintenance, champerty, or public policy. Additionally, the court ruled that the invoices tendered by the defendant were inadmissible as evidence of post-contractual conduct. The court concluded that the funding agreements were lawful and enforceable, making the necessary declarations that they were not unenforceable.
Orders
Orders of the court
1. The agreement titled “Representative Proceeding Funding Agreement, Representative, The 2017 Gladstone Fisheries Scheme” between LCM Operations Pty Ltd, Murphy Operator Pty Ltd, Tobari Pty Ltd and SPW Ventures Pty Ltd is not, by reason of maintenance, champerty or public policy, unenforceable; and
2. The agreements titled “Representative Proceeding Funding Agreement, Member, The 2017 Gladstone Fisheries Scheme” between LCM Operations Pty Ltd and funded group members are not, by reason of maintenance, champerty or public policy, unenforceable.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In my view, it is correct to determine whether the contract is legal by having reference to the terms of the contract and in cases of ambiguity, the nature and surrounding circumstances of the contract at the time of formation, and not by reference to subsequent acts of the parties. I conclude that the invoices are inadmissible. In case I have erred in this conclusion, I have considered the invoices.4.2 Consideration of Invoice Bundle The Invoice Bundle Summary shows that Mr Chris Thompson or Mr Michael Garrahy of Law Essentials had communications with the representative plaintiffs on 7, 9 and 27 February 2018, on 16, 17, 23 May 2018, on 4 June 2018, on 25 July 2018, on 6, 13 and 28 September 2018, on 2, 8, 15, 16 and 17 October 2018, on 30 January 2019, on 8, 11, 13, 14, 26 February 2019, 6 and on 26 March 2019. Mr Chris Thompson and Mr Michael Garrahy have had numerous other communications with group members. Mr Maurice Thompson and other personnel from Clyde & Co have had numerous communications with LCM. In addition Clyde & Co has had communications with the representative plaintiffs on 7 February 2018, on 10, 11, 14 May 2018, on 25 and 26 June 2018, on 23 July 2018, on 12, 15 October 2018, on 7, 8, 11, 12, 13, 14, 19, 26, 27 and 28 February 2019, on 1, 5, 6, 7, 8, 15 and 18 March 2019, on 2 April 2019, and on 8, 14, 15, 28, 29 May 2019. The Invoice Bundle Summary shows that in the period between 1 February 2018 and 31 May 2019, Law Essentials had 37 communications with the representative plaintiffs and no communication with LCM. The Invoice Bundle Summary shows that Clyde & Co had approximately 93 communications with the plaintiffs but over 200 communications with LCM. The Invoice Bundle shows that there has been considerable contact between Clyde & Co, Law Essentials and the plaintiffs but more communication or contact between Clyde & Co and LCM. It is submitted on behalf of GPC that the communication in the Invoice Bundle leads to an inferential finding that LCM has practical control over the litigation as there is far more communication between Clyde & Co and LCM than the communication between the plaintiffs and Clyde & Co and Law Essentials. GPC submit that if the litigation funder has no practical control over the conduct of the plaintiffs’ proceedings, and its role is confined to consultation, then it is likely that the Funding Agreements will be valid and enforceable.[33] Whether control is relevant at all, and if it is relevant, whether LCM possess the requisite control over the proceeding will be discussed later in these reasons.[33] Paragraph 6 of GPC’s Written Submissions. The Invoice Bundle does show that there is more contact or communication between Clyde & Co and LCM than there is contact or communication between Clyde & Co and Law Essentials and the plaintiffs. However, I do not conclude that this in itself leads to a conclusion that LCM has control over the proceeding. I consider that the content of the invoices do nothing more than evidence the contractual obligation of Clyde & Co to keep the funder fully informed of the action, and to seek and receive instructions from the funder on minor day to day matters as required in clause 6 and 11 of Retainer Agreements. In my view there is nothing inconsistent in the invoices to suggest that the Funding Agreements referred to above are being conducted other than ordinarily, in accordance with the terms of those agreements.