Murphy Operator v Gladstone Ports Corporation (No 4) - [2019] QSC 228

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 that they are evidence of post-contractual conduct – where issue was left to be decided in judgment - whether the invoices are admissible

Civil Proceedings Act 2011 (Qld) s 103ZA, s 103R, s 103K, 103B, 103D, s 103A, s 103L, s 103I, s 103J, s 103P, s 103R

Legal Profession Act 2007 (Qld) s 324, s 308

Criminal Code Act 1899 (Qld)

Federal Court of Australia Act 1976 (Cth) s 33N

Supreme Court Act 1986 (Vic) Part 4A

Civil Procedure Act 2005 (NSW) s 166(2)

Wrongs Act 1958 (Vic) s 34(2)

Murphy Operator Pty Ltd & Ors v Gladstone Ports Corporation Ltd (No 3) [2019] QSC 118

Falzon v Gladstone Ports Corporation & Anor [2012] QPEC 50

Falzon v Gladstone Ports Corporation [2014] QPEC 37

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Giles v Thompson [1993] 3 All ER 321

Regina (Factortame Ltd and others) v Secretary of State for Transport, Local Government and the Regions (No 8) [2003] QB 381

Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors [2019] QSC 163

REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd (2017) 95 NSWLR 458

Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215

Blatch v Archer (1774) 98 ER 969

Bradlaugh v Newdegate (1883) 11 QBD 1

Fischer v Kamala Naicker (1860) 8 Moo. Ind. App. 170

Findon v Parker (1843) 11 M. & W. 675

Hutley v Hutley (1873) LR 8 QB 112

Stanley v Jones (1831) 131 ER 143

Sprye v Porter (1856) 26 L.J. QB. 64

Knight v FP Special Assets Ltd (1992) 174 CLR 178

Neville v London ‘Express’ Newspaper Limited [1919] AC 368

Wallis v Duke of Portland (1797) 3 Ves Jun. 494

WorkCover Queensland v AMACA Pty Limited [2013] 2 Qd R 276

Magic Menu Systems v AFA Facilitation (1997) 72 FCR 261

Martell v Consett Iron Co Ld [1955] 1 Ch 363

British Cash and Parcel Conveyors Ltd v Lamson Store Service Co Ltd [1908] KB 1006

In re Trepca Mines Ltd (No.2) [1963] 1 Ch 199

Davey v Money [2019] EWHC 997 (Ch)

Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

Clyne v Bar Association (NSW) (1960) 104 CLR 186

Elfic Ltd v Macks [2003] 2 Qd R 125

Roux v Australian Broadcasting Commission [1992] 2 VR 577

Jeffery & Katauskas v SST Consulting (2009) 239 CLR 75

Deloitte Touche v JP Morgan (2007) 158 FCR 417

IMF (Aust) v Meadow Springs (2009) 253 ALR 240

Taylor & Anor v Hobson & Ors [2016] QSC 226

Trendtex Trading Corporation v Credit Suisse [1982] AC 679

PGA v The Queen (2012) 245 CLR 355

Trident General Insurance Co Limited v McNiece Bros Pty Ltd (1988) 165 CLR 107

Burragubba v Queensland (2015) 236 FCR 160

Multiplex Funds v P Dawson Nominees (2007) 164 FCR 275

Brewsterv BMW Australia Ltd [2019] NSWCA 35

Brookfield Multiplex v ILFP (2009) 180 FCR 11

Unruh v Seeberger (2007) 10 HKCFAR 31

Westpac Banking v Lenthall (2019) 366 ALR 136

BMW Australia Ltd v Brewster (2019) 366 ALR 171

COUNSEL:

L W L Armstrong QC and M J May for the applicants

D B O’Sullivan QC and S B Hooper for the first respondent
P J Dunning QC and C Jennings for the second respondent

SOLICITORS:

Clyde & Co for the applicants

King & Wood Mallesons for the first respondent
Piper Alderman for the second respondent

Table of Contents

1. Introduction5

2. Background 6

3. Funding Agreements.8

3.1.Client Engagement Letters10
3.2.Member Agreements.11
3.3.Representative Proceeding Funding Agreement – Representative13
3.4.Retainer Agreements14

4. Factual Issues 15

4.1.Admissibility of the Invoice Bundle16
4.2.Consideration of Invoice Bundle17

5. Maintenance and Champerty19

6. Australian Approach to Maintenance and Champerty 48

7. Part 13A of the Civil Proceedings Act 2011 (Qld)67

8. Common Fund Order80

9. Conclusion80

1. Introduction

On 1 April 2019 the plaintiffs, applied for declarations that funding agreements between the plaintiffs and the second respondent (‘LCM’) and funding agreements between the group members and LCM are “not, by reason of maintenance, champerty or public policy, unenforceable”. Alternatively the plaintiffs sought a common fund order in respect of the funding agreements pursuant to s 103ZA of the Civil Proceedings Act 2011 (Qld) (‘CPA (Qld)’).
The application also sought ancillary orders, they are the subject of the judgment in Murphy Operator Pty Ltd & Ors v Gladstone Ports Corporation Ltd (No 3) [2019] QSC 118. Pursuant to the orders recorded in that judgment, notices have been provided to group members, the Funding Application was duly advertised and all procedural issues have been complied with. These reasons determine the hearing of the Funding Application filed 1 April 2019 and referred to in paragraph 16 of the orders made on 14 May 2019.
At the return date of the Funding Application on 18 July 2019 no group member provided a notice of intention to appear at the hearing. In response to the advertisement one further claimant has joined the group members, taking the total number of group members to 168 group members who join the three named plaintiffs seeking to bring a class action against the first respondent (‘GPC’).
2. Background

GPC, who is responsible for the management of the Port of Gladstone, undertook dredging in Gladstone Harbour to improve the shipping lanes during 2011 and 2012. The spoil created by the dredging was deposited behind a bund wall. The plaintiffs contend that the dredge spoil was known to be acidic after being exposed to air, and that GPC was on notice that the bund wall was unlikely to be effective to contain the spoil. The plaintiffs allege large volumes of spoil escaped the defective bund spread across a wide geographic area and from early September 2011 seriously depleted the quantity and quality of commercial seafood species in waters affected by the spoil. The plaintiffs and group members wish to bring a claim in negligence and public nuisance against GPC, alleging that the plaintiffs and the group members suffered economic loss and damage from the reduction of the catch of seafood products from the affected waters.
Mr Barry Murphy is a director of the first plaintiff. From 1985 the first plaintiff has operated a fleet of trawlers in Queensland waters typically from Fraser Island to north of Yeppoon. During 2011 and 2012 the first plaintiff operated ten vessels focusing on trawling for scallops and prawns. Mr Murphy deposes that one of the most important scallop replenishment zones utilised by his fleet of trawlers was at Bustard Head, commencing approximately 25 kilometres from the entrance to Gladstone Harbour. Mr Murphy deposes from in and about late 2011 skippers of the vessels being operated by the first plaintiff reported catching diseased fish in waters off Gladstone, then from early 2012 the catch from the Bustard Head scallop replenishment area decreased considerably.
Mr Christopher Thompson is a solicitor and director of the law firm Law Essentials of 65 Torquay Road, Pialba, Hervey Bay. Mr Christopher Thompson and his partner at the firm, Mr Michael Garrahy have, for more than 15 years, acted in a range of matters for fishers, fishing businesses, fish wholesalers and fish processors in and around the Gladstone and Hervey Bay area. In 2008 and 2009, Law Essentials acted for the majority of the Gladstone Fishing Industry.
Mr Christopher Thompson deposes, and it is not disputed, that from in and around 2010 many of Law Essentials’ fishing clients, including the plaintiffs in the current proceedings, approached Law Essentials raising concerns about the proposed significant dredging and port reclamation project proposed to be undertaken in Gladstone Harbour by GPC. Mr Christopher Thompson deposes that:[1]
“From or about 2010 Law Essentials was retained by a number of commercial fishing operators based in Gladstone in relation to the compensation scheme established as a part of the Western Basin and Dredging and Disposal Project in Gladstone harbour. At the same time we began to investigate the impacts of that project on our client base, and sought to widen the then proposed compensation scheme as more of our clients were saying that they would be impacted.”
[1] Affidavit of Christopher John Thompson filed 11 June 2019.
Mr Christopher Thompson further deposes that, “[d]ue to the large number of potential claimants and the potential size of the potential claims, on or about 20 December 2011 Law Essentials assisted Shine Lawyers to act on behalf of our fishing clients to seek compensation or damages from GPC.”[2] One of Law Essentials’ clients, Mr Trevor Falzon, lent his name to an application brought in the Planning and Environment Court of Queensland on behalf of the 58 other persons seeking compensation in respect of the dredging. That application was unsuccessful. On 30 August 2012, Searles DCJ ordered the further amended originating application filed 26 April 2012 be struck out with costs and liberty to apply in respect of amendments.[3] A second attempt at pleading by way of a points of claim document was also struck out by Andrews SC DCJ on 11 July 2014.[4]
[2]     Affidavit of Christopher John Thompson filed 11 June 2019.
[3]     See Falzon v Gladstone Ports Corporation & Anor [2012] QPEC 50.
[4]     Falzon v Gladstone Ports Corporation [2014] QPEC 37.
Mr Christopher Thompson deposes that following the failure of the Planning and Environment Court proceedings, he approached his brother, Mr Maurice Thompson, a partner at Clyde & Co, and enquired whether Clyde & Co would be willing to act in a representative proceeding on behalf of Law Essentials’ fishing clients against GPC. Mr Christopher Thompson deposes that over the course of late 2015 and early 2016 he assisted a number of Law Essentials’ fishing clients, including the second and third plaintiffs, to enter into confidential agreements and client agreements with Clyde & Co directly. At the time Queensland did not have a class action regime. On 11 November 2016 the CPA (Qld) was amended to include Part 13A which introduced class actions to Queensland.
Mr Richard Whittingham is a director of the second plaintiff. Mr Simon Whittingham is a director of the third plaintiff and is the son of Mr Richard Whittingham. The second and third plaintiffs jointly conduct businesses under the name of Gladstone Fish Market and Hervey Bay Fisheries. Mr Richard Whittingham on behalf of both the second and third plaintiffs deposes[5] that part of the business operated by the second and third plaintiffs was the operation of the scallop processing vessel ‘MV Processor 1’. The vessel had been owned and operated by the second and third plaintiffs for 25 years prior to the cessation of operations in 2012.
[5] Affidavit of Richard Edward Whittingham filed 11 June 2019.
From in or about 2004 the business of the second and third plaintiffs had sourced seafood around the Gladstone region to process on their vessel, which was situated in the Gladstone Harbour. The venture of the second and third plaintiffs provided full-time employment for up to 80 individuals processing scallops, which included shucking the scallops and treating them in water from the Gladstone Harbour. Mr Richard Whittingham deposes that when large-scale dredging projects began in Gladstone Harbour in or around late 2010 he observed water in the harbour became murky and brown. Mr Whittingham deposes that from April 2011, the business started to receive significant numbers of obviously sick fish. Gladstone Harbour was then compulsorily closed to all fishing activity between 16 September 2011 and 7 October 2011, at which point the second and third plaintiffs ceased trading in seafood product altogether.
Mr Whittingham further deposes[6] that around the time of these events, that is, the closure of the harbour, he spoke to and engaged Mr Christopher Thompson and Mr Michael Garrahy of Law Essentials to act for the second and third plaintiffs in relation to potential and actual losses suffered as a result of the harbour dredging and developmental project. Mr Whittingham deposes, “[i]t has always been my wish that the Second and Third Plaintiffs would pursue the Defendant (GPC) in relation to that loss”.
[6] Affidavit of Richard Edward Whittingham filed 11 June 2019.
Both Mr Barry Murphy and Mr Richard Whittingham depose that prior to executing the funding agreements, which are the subject of the Funding Application, they sought and received advice from Mr Chris Thompson of Law Essentials.[7] Mr Barry Murphy and Mr Richard Whittingham depose that they are aware that the proceedings are likely to be complex, and involve very significant legal costs and expenses such that absent a third party funder such as LCM, they would be unable to bring proceedings against GPC. Mr Barry Murphy and Mr Richard Whittingham, were not cross-examined and accordingly I accept their unopposed evidence.
[7] Affidavit of Barry John Murphy filed 11 June 2019 and Affidavit of Richard Edward Whittingham filed 11 June 2019.
Mr Christopher Thompson verifies[8] that on 7 February 2018, prior to the plaintiffs or any other Law Essentials’ fishing clients entering into any funding agreements, he met with Mr Barry Murphy of the first plaintiff, at his place of business at Hervey Bay and provided advice regarding entry into the funding agreements. Mr Christopher Thompson also met with Mr Simon Whittingham and Mr Richard Whittingham of the second and third plaintiffs at the offices of Law Essentials in Hervey Bay and also provided advice to them regarding entry into the funding agreements.
[8] Affidavit of Christopher John Thompson filed 11 June 2019.
3. Funding Agreements

Maurice Thompson, partner of Clyde & Co, deposes that his firm began investigating the merits of commencing a class action on behalf of the plaintiffs in June 2015 on a strictly no win, no fee basis.[9] In December 2015, Clyde & Co commenced discussions with a litigation funding company to fund the class action. That first company investigated the matter and after approximately one year of protracted negotiations, the first company decided that the claim did not meet its criteria for funding and chose not to proceed.
[9] Affidavit of Maurice Thompson filed 21 July 2017.
On 8 December 2016, upon being notified that the first company did not wish to proceed, Clyde & Co approached two other international funding companies, both of whom conducted due diligence into the claim and both of whom made indicative offers to provide the necessary funding for the entire proceeding. Clyde & Co recommended acceptance of an offer from Harbour Fund III LP (‘Harbour Fund’) to fund the proceeding. On 6 February 2017, Clyde & Co entered into a “Relationship Agreement with Harbour”. From 8 February 2017, Clyde & Co commenced to sign up the plaintiffs, who had entered into a funding agreement with Harbour Fund. Mr Maurice Thompson explains that as the reclamation bund at Fisherman’s Landing, Gladstone Harbour, was completed on or about 21 July 2011, and as the claims sought damages for economic loss, it was necessary to commence proceedings by 21 July 2017 to avoid being statute-barred. Harbour Fund were well aware of the time limitation to commence proceedings, however, on 15 July 2017, Harbour Fund advised Clyde & Co that it would not be continuing to fund the proceedings and purported to terminate the relationship agreement. I infer that from Saturday, 15 July 2017, Harbour Fund provided no further funding to Clyde & Co in respect of the class action.
On 21 July 2017, proceedings were commenced by the filing of a claim and statement of claim in the Supreme Court of Brisbane. On the same day the plaintiffs filed an application for a stay of proceedings supported by the affidavit of Maurice Thompson filed 21 July 2017. A concern of Mr Thompson’s expressed in his affidavit was, that at the time of the filing of the claim and statement of claim, the plaintiffs did not have the support of any litigation funder who would be subject to directions as contemplated by Practice Direction Number 2 of 2017 (‘Representative Proceedings Practice Direction’)[10], which requires close case management from the outset. As the plaintiffs did not have the financial resources to fund the class action in the absence of a litigation funder, the action could not proceed. In his affidavit of 21 July 2017, Mr Maurice Thompson swears that at that date Clyde & Co was in contact with two international litigation funding companies with a view to securing alternative funding to allow the class action to proceed.
[10] Paragraph 8.2 of the Practice Direction requires disclosure of “any agreement” by which a litigation funder is to pay or contribute to the costs of the proceeding.

On 27 July 2017, Mullins J made orders to the effect that no step be taken in the proceeding any earlier than 27 October 2017, the plaintiffs serving the claim and statement of claim on the defendant or as otherwise ordered by the court, and fixing the date for the first case management conference for a date after 27 October 2017. Mr Maurice Thompson deposes that from 27 July 2017, Clyde & Co continued to negotiate with five litigation funding companies including LCM.[11]
[11] Affidavit of Maurice John Thompson filed 23 October 2017.
In his affidavit sworn 7 June 2019, Mr Maurice Thompson swears that on 7 February 2018, he attended at the office of Law Essentials in Hervey Bay to execute the various funding agreements with LCM, and a new client engagement letter with Clyde & Co.[12] Mr Chris Thompson of Law Essentials had a meeting in a separate room with Simon and Richard Whittingham prior to Simon and Richard Whittingham signing the agreements for and on behalf of the second and third plaintiffs.
[12] Affidavit of Maurice John Thompson filed 11 June 2019.
Mr Christopher Thompson left Law Essentials at Hervey Bay and attended upon Mr Barry Murphy of the first defendant at his place of business in Hervey Bay to discuss the funding agreements in person.[13] I conclude that the directors of the first, second and third plaintiffs received independent legal advice from their longstanding solicitor, Mr Christopher Thompson, prior to entering into the funding agreements in respect of the class action. Mr Barry Murphy[14] and Mr Richard Whittingham[15] swear that their companies cannot afford to litigate against GPC absent the funding arrangement provided by LCM. Mr Murphy swears that without the indemnities provided by LCM would have “no option but to immediately withdraw as a plaintiff”.[16] Mr Whittingham similarly swears that the second and third plaintiffs will have “no option but to seek to cease the proceedings”.[17]
[13]    Affidavit of Christopher John Thompson filed 11 June 2019.
[14]    Affidavit of Barry Murphy filed 11 June 2019 (paragraphs 10 and 11).
[15]    Affidavit of Richard Whittingham filed 11 June 2019 (paragraph 9).
[16]    Affidavit of Barry Murphy filed 11 June 2019 (paragraph 11).
[17]    Affidavit of Richard Whittingham filed 11 June 2019 (paragraph 9).
There are four documents which set out the terms of the funding agreements relevant to the class action (‘Funding Agreements’). They are the:
1.      Client Engagement Letters;
2.      Member Agreements;
3.      Representative Agreements; and
4.      Retainer Agreements.
3.1 Client Engagement Letters

Exhibited to the affidavit of Paul Hopwood filed 21 June 2019 is the conditional client engagement letter of the first plaintiff.[18] It is indicative of the client engagement letters entered into by the second and third plaintiffs and the 168 group members. Clause 2.3 requires the client engagement letter to be read in conjunction with the funding agreements. The funding agreements are defined as the member agreement, the representative agreement and the retainer agreement. Clause 3.1 provides that the agreement is a ‘no win, no fee’ and ‘conditional’ costs agreement. The scope of the work of the client agreement is defined in paragraph 5.1 as a retainer “to act on your behalf and to take all reasonable and necessary steps in connection with … [the] Claims and in preparing for, conducting and resolving the Claims and Action.” Clause 7.4 records that the funder will pay 75 per cent of Clyde & Co’s charges for professional fees and 100 per cent of all disbursements, with the remaining 25 per cent of the charges for professional fees (referred to as the ‘deferred fees’) only payable if there is sufficient recovery. Clause 8.3(c) provides for an uplift of 25 per cent of the total charges for professional fees which is permissible pursuant to s 324(1), (4) and (5) of the Legal Profession Act 2007 (Qld).
[18] Exhibit PAH-9.
Clauses 8.6 to 8.12 record the agreements in respect of pre-retainer work, being that necessary work incurred prior to the date of the signing of the client engagement letter on 8 February 2018. Clause 9 of the agreement complies with s 308 of the Legal Profession Act 2007 (Qld) in providing an estimate of the likely action costs, as far as possible, which range between $8.4 million to $10.65 million, with a further possible uplift on fees of $2.1 to $2.662 million. Clause 9.1 provides a claim estimate value of the collective claims in the range of $112 million to $150 million. Clause 10 provides for the client to authorise and direct Clyde & Co to, amongst others things, enter into a retainer agreement with the funder, provide the funder and its agents with confidential updates on the progress of the action and to conduct the action as Clyde & Co consider appropriate “in consultation with the Funder, subject to any terms in the Funding Agreements”.
Importantly, clause 10.1(e) provides that the client authorises and directs Clyde & Co:
“to take and act upon instructions from the Funder, save where, in our reasonable professional opinion, separate instructions are required from You”.
Clause 12 is also an important provision, dealing with the matter of settlement and settlement negotiations. Clause 12 provides:
“12.2       Settlement of the Action may be negotiated by Us acting on instructions from the Representatives … subject to the terms of the Member Agreement (and any relevant legislation governing such settlement).
12.3        Any proposed Group Settlement will be communicated to all Funded Plaintiffs by us, together with an opinion on the proposed Group Settlement from Us or counsel, in order to determine whether a Group Settlement can be reached in accordance with the relevant regime specified in the Member Agreement relevant to settlement of such claims.
12.4        Any disagreements over whether a settlement is fair and reasonable in all the circumstances will be resolved by reference to an opinion from senior counsel in accordance with the process at Part 18 of the Member Agreement.”[19]
[19] My underlining (the reference to relevant legislation being a reference to s 103R of the CPA (Qld) as discussed at [158]).
Clause 13 of the client engagement letter includes an irrevocable instruction from the client to Clyde & Co to disburse the proceeds of any recovery in accordance with clause 58 of the member agreement. Clause 16 of the client engagement letter provides for a security over the claim proceeds in favour of Clyde & Co. Attached to the client engagement letter is a terms of business document. Importantly, the client engagement letter at clause 3.4 also provides that:
“You agree if there is any inconsistency between the terms of this Client Engagement Letter and the Funding Agreements, to the extent of any inconsistency, the terms of the Funding Agreements are to prevail.”
The funding agreements are defined in recital H of the client engagement letter as the member agreement, the representative agreement and the retainer agreement.
3.2 Member Agreements

The three plaintiffs and the 168 group members have entered into a member funding agreement. [20] The full title of the member agreement is the “Representative Proceeding Funding Agreement – Member - The Gladstone Fisheries Scheme”. The member agreement is comprised of the terms sheet and the rules of the scheme. Clause 2 of the terms sheet provides that the terms sheet takes priority over the rules of the scheme (“the Scheme”).
[20] Exhibits PAH-6, PAH-7, PAH-8 to the Affidavit of Paul Hopwood filed 21 June 2019.
Item 5 of the schedule to the terms sheet defines the funder’s interest as the greater of the funder’s share or the recovery premium which is further defined. The funder’s share is defined in item 5.2 of the schedule and provides for a funder’s share of the recovery which slides from 15 per cent up to 40 per cent depending upon the level of action costs incurred by the funder. The funder’s share is 40% of the recovery after the incurring of action costs exceeding $9.5 million. If recovery occurs after the commencement of an appeal then there is an additional 5 per cent paid in respect of the funder’s share. Item 5.4 defines the recovery premium as three times the aggregate of the outstanding fees as at the date of distribution of the recovery in accordance with rule 58.2 of the Scheme.
The Scheme contains 73 clauses referred to as rules. Rule 9 of the scheme provides that the members are bound by judgments or findings on common questions, and any (court approved) settlement. Rule 8 provides that a member has no right to interfere in the prosecution of their claim until common questions are decided. Rule 11 of the scheme records that members are not at financial risk in respect of the Scheme. Rule 12 provides “[n]one of the Scheme, the Lawyers, the Funder or their respective officers, employees or consultants offer any assurance as to any economic benefit to a Member from participating in the Scheme.” Part 4 of the Scheme, rules 13 to 17, sets out the important role of the representatives in the class action. Rule 14 provides that representatives, (who must be members), are chosen by the Lawyers after consultation with the funder, and the member chosen as a representative. Rule 15 of the Scheme details the representatives’ role as, lending their name to the action, instructing lawyers for the purpose of prosecuting the claims, and generally (but subject to rule 10) binding all members to any steps to be taken, or not taken, in prosecuting, abandoning, postponing or settling the claims.
Rule 20 of the Scheme records that in accordance with the retainer agreement, the funder may terminate and require the representative to terminate the retainer agreement and replace the lawyers then acting, conditional upon the incoming lawyers and the representative entering into a further retainer agreement. Part 6 of the Scheme, rules 21 to 23, ensures that the funder is a party to the scheme and is required to pay the action costs and any adverse costs, and meet any order for security for adverse costs. Rules 21.3 provides that the funder “[w]ill direct the steps to be taken, or not taken, in preparing, conducting, abandoning, postponing or resolving the claims”. This includes:
“21.3.1 Discussing the prosecution of the Claims with the Lawyers with no Member present;
21.3.2 Having access and input to documents being prepared by the Lawyers for an Action or to be put in evidence;
21.3.3 Attending and speaking at meetings with the Lawyers and any Defendant or insurer as regards the disposal of the claims.”
Importantly, rule 22 provides as follows:
“Funder’s Risk: The Funder bears the risk of loss of the whole or part of its Outstanding Funding to the extent that the recovery (if any) is insufficient to repay the Outstanding Funding.”
Part 7 deals with exit from the Scheme and allows the ability for a member to opt out in accordance with the applicable law or rules of the court. Rule 25 of the Scheme gives the funder power to expel a member of the Scheme and rule 26 sets out the circumstances in which the funder may terminate the agreement.
Part 11, clause 35 of the Scheme provides as follows:
“35 Management of Actions:
The Funder and the Representative must agree as to the strategy and tactics of prosecuting the Claims in the Action including in respect to:
35.1Any matter related to settlement of the Action, including any decision as to the making or acceptance of an offer of settlement or compromise and whether to put the Claims to mediation before or after an Action is commenced;
35.2The Defendant/s to any action;
35.3The forum for trial of the merits [of] an Action (a Court, arbitration, referral to an expert);
35.4Filing and service of any Action;
35.5Any step proposed to be taken that is likely to have a material effect on the Action, the Recovery, the Action Costs and/or the Adverse Costs;
35.6Whether to proceed as a “test case” on any issues of fact or liability common to all Claims, or on a full trial of all Claims; and
in the absence of agreement between the Funder and the Representative, the provisions of Part 18 shall apply.”
Part 14 of the Scheme provides for ATE (After the Event) insurance and allows the funder to procure ATE insurance for the benefit of, and at a cost to the Scheme. Part 16 deals with resolution of the claims. With respect to offers to settle, rule 53 of the Scheme requires that if there is a dispute between the representatives and the funder as to whether offers ought to be made or accepted, senior counsel’s opinion needs to be obtained and acted upon.
Finally, part 18 of the Scheme sets out a dispute resolution procedure for all disputes other than disputes relating to offers to settle. The procedure requires disputes to be negotiated between the disputants in an attempt to reach a consensus, failing which the dispute is resolved by an independent arbitration.
3.3 Representative Proceeding Funding Agreement – Representative
Exhibited[21] to the Affidavit of Paul Andrew Hopwood filed 21 June 2019 is the “Representative Proceeding Funding Agreement - Representative – The 2017 Gladstone Fishing Scheme” (‘the Representative Agreement’) of the first plaintiff. It mirrors the Representative Agreement of the second and third plaintiffs. Clause 3 sets out the role of the representatives. Specifically, clause 3.2 provides that the representatives “generally, has those rights and obligations of a representative stated in Parts 4 and 11 of the Rules”. Part 4 of the rules of the Scheme is contained in rules 13 to 17 and importantly sets out the representatives’ function “to instruct Lawyers for the purposes of prosecuting the Claims”. However, the key provision contained in part 11 of the rules is rule 35, management of actions, and is set out above in paragraph 34. It records that the representatives are involved in all important decisions relating to the strategy and tactics of prosecuting the claims. This includes any matter relating to settlement, and “[a]ny step proposed to be taken that is likely to have a material effect on the Action, the Recovery, the Action Costs and/or the Adverse Costs”. In short, it is the contractual role of the representatives (the first, second and third plaintiffs) to act diligently and provide instructions in respect of all matters important or likely to materially affect the action.
[21] Exhibit PAH-4 (First Plaintiff) and PAH-5 (Second and Third Plaintiffs) to the Affidavit of Paul Andrew Hopwood filed 21 June 2019.
Clause 5 of the Representative Agreement contains the indemnity with respect to adverse costs.
Clause 6 gives the funder a discretionary power to enter into an ATE insurance policy and agrees that the ATE insurance policy is an action cost.
Clause 7 requires the funder to provide security for costs.
Clause 3.9 of the representative agreement requires the representative to agree to “comply with any direction given by the Funder pursuant to clause 8.3”.
Clause 8.3 provides the funder may direct the representatives to:
“8.3.1Instruct the Lawyers to terminate the retainer of any barrister or other professional retained by the Lawyers in relation to the Action; and/or
8.3.2Instruct the Lawyers to retain a barrister or other professional selected by the Funder.”
Clause 8.5 provides “[t]he parties acknowledge and agree that if there is any inconsistency between the terms of the Retainer Agreement and this Representative Agreement, the terms of this Representative Agreement will prevail”.
3.4 Retainer Agreements
Exhibited[22] to the Affidavit of Paul Andrew Hopwood filed 21 June 2019 is the Representative Proceeding Retainer Agreement (‘Retainer Agreement’) as referred to in clause 8.5 of the Representative Agreements. It also mirrors the Retainer Agreements of the first and second Plaintiffs. Clause 1 of the Retainer Agreement records that “[a]s between the Representatives and the Funder, the terms of the Member Agreement and the Representative Agreement prevail to the extent of any inconsistency with the Retainer.” The Retainer Agreement is a tripartite agreement between Clyde & Co, the representative plaintiffs and LCM which, as a result of clause 1, is subservient to the Member Agreements and the Representative Agreements. Importantly, clause 6 and 7 of the Retainer Agreement provide:
“6.     The Parties acknowledge that while the Funder owes obligations to the Lawyers under this Retainer, the Funder is not a client of the Lawyers under this Retainer or in relation to the Action. The Lawyers owe obligations to the Funder pursuant to this Retainer, but the Lawyers have no obligation to provide legal services to or for the Funder pursuant to its Retainer or in relation to the Action. The Funder does not have control over the Action, but may make day to day decisions in respect of the Action. The Representatives agree that the duties of the Lawyers to the Representatives as the clients of the lawyers are modified to the extent they are inconsistent with this Retainer.
7.     The Representatives may provide instructions to the Lawyers, and the Lawyers will act in accordance with the Representatives’ instructions, to the extent that those instructions are consistent with the obligations of the Lawyers to the Funder under this Retainer.”
[22]    Exhibit PAH-1 (First Plaintiffs) PAH-2 (Second Plaintiffs) and PAH-3 (Third Plaintiff) to the Affidavit of Paul Andrew Hopwood filed 21 June 2019.
Clause 11 requires the lawyers to communicate immediately with the representative and/or the funder in respect of important matters to the litigation.
Clause 13 of the Retainer Agreement is set out as follows:
“13.The Lawyers will not implement any of the following without the agreement of the Funder:
13.1.Any matter related to settlement of the Action, including any decision as to the making or acceptance of an offer of settlement or compromise and whether to put the Claims to mediation before or after an Action is commenced;
13.2.Any change to the Defendant/s to any action;
13.3.Filing and service of any interlocutory application in any action;
13.4.Any step proposed to be taken that is likely to have a material effect on the Action, the Recovery, the Action Costs and/or the Adverse Costs;
13.5.Whether to proceed as a “test case” on any issues of fact or liability common to all Claims, or on a full trial of all Claims; and
13.6.The engagement of barrister/s and/or experts.”
Clause 17 of the Retainer Agreements provides that “[t]he lawyers acknowledge that they owe a duty of care and fiduciary duty to the Representatives and owe a duty of care to the Funder in respect of the Action”.
It may be observed that a prohibition upon Clyde & Co implementing the representative plaintiffs’ instructions in respect of the matter as set out in clauses 13.1 to 13.6 is similar to the powers reposed in the representatives as contained in rule 35 of the Scheme. The prohibition acknowledges the primacy of the representative plaintiffs in providing instructions on all important matters relating to the conduct of the claim, but requires agreement of the funder before doing so. Clause 13 prevents Clyde & Co from acting upon those instructions without the agreement of the funder. However, as discussed above, clause 1 of the Representative Agreements affords primacy to the terms of the Member Agreement, and the Representative Agreements, and part 18 of the Scheme provides for a dispute resolution procedure in respect of any conflict.
The Agreements in the Scheme therefore afford primacy to the representative plaintiffs upon all important aspects of the conduct of the class action but prevents Clyde & Co automatically carrying out those instructions without the agreement of LCM. If there is a disagreement about settlement, it is resolved by senior counsel under rule 53 of the Scheme. If there is any other dispute, including a dispute about instructions, then part 18, (the dispute resolution procedure of the rules of the Scheme) provides for the resolution of the issue. If the parties cannot agree on a particular issue, it is eventually decided by an arbitrator selected independently of the parties and by the President of the Queensland Law Society.
4. Factual issues

On the issue of control the defendant tendered a bundle of invoices issued by Clyde & Co to LCM in respect of the action (‘Invoice Bundle’).[23] The Invoice Bundle contains 987 pages of invoices, some of which are redacted as they contain information subject to legal professional privilege. Accompanying the Invoice Bundle is a 31 page summary of the 987 pages of invoices in the Invoice Bundle (‘Invoice Bundle Summary’).[24]
[23] Exhibit 5.
[24] MFI-A.
4.1 Admissibility of the Invoice Bundle

Senior counsel for LCM objects to the admissibility of the Invoice Bundle.[25] As there was no suggestion of any cross-examination of the witnesses at the hearing, the parties agreed that the usual rule, requiring an immediate determination of the objection[26] did not apply and that the issue of admissibility be decided as a part of this funding application decision. LCM submits that the invoices which are capable of being construed as evidence of post-contractual conduct are not admissible. GPC contends the invoices are admissible because they are relevant to the issue of control, and generally, the declaration sought by paragraph 6 of the Funding Application, that the Representative Agreements and the Member Agreements are not unenforceable by reason of maintenance and champerty, or public policy.
[25] Exhibit 5.
[26] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 640 [135].
It is accepted that evidence of the surrounding circumstances to the funding agreements is relevant to resolve any ambiguity.[27] However, no ambiguity is alleged here.[28]
[27] Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 per Mason J.
[28] There is ongoing debate as to whether ambiguity is required. This issue has recently been considered by Jackson J in Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors [2019] QSC 163.
In the context of unenforceability, in Giles v Thompson[29] the Court of Appeal said:
“The correct approach is not to ask whether, in accordance with contemporary policy, the agreement has in fact caused the corruption of public justice. The court must consider the tendency of the agreement. The question is whether the agreement has the tendency to corrupt public justice. And this question requires the closest attention to the nature and surrounding circumstances of a particular agreement.”
[29] [1993] 3 All ER 321, 333.
The passage from Giles v Thompson was cited with approval by the English Court of Appeal in Factortame.[30] The Court of Appeal concluded that “in any individual case, it is necessary to look at the agreement under attack in order to see whether it tends to conflict with existing public policy that is directed to protecting the due administration of justice with particular regard to the interests of the defendant”. This passage is apposite as Factortame considered the lawfulness of an agreement supporting litigation.
[30] Regina (Factortame Ltd and others) v Secretary of State for Transport, Local Government and the Regions (No 8) [2003] QB 381, 401-403.
In REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd[31] Macfarlane JA (with whom Beazley P and Gleeson JA, agreed) said:
“Under the general law ‘the court will not enforce [a] contract at the suit of a party who has entered into [it] with the object of committing an illegal act’ … Where the contract cannot be [performed] otherwise than illegally, the contract will be treated as unenforceable, irrespective of the parties’ knowledge and intention … However that is not what occurred in the present case because the respondent, upon whom the obligation to pay stamp duty lay, could have chosen to pay the requisite duty in accordance with the Duties Act 1997 (NSW). Thus the contract could have been performed lawfully.”
[31] (2017) 95 NSWLR 458.
In determining the lawfulness of the funding agreements I consider that the approach in Giles and Factortame ought to be followed, namely, the question to be asked is whether the agreement has the tendency to corrupt public justice, and that this question requires the closest attention to the nature and surrounding circumstances of the particular agreement. It is thus necessary to examine the Funding Agreements and any relevant surrounding circumstances at the time of the entry into the agreements.
With the exception of portions of documents 1 and 2 in the Invoice Bundle, being the documents identified as document 1, PLF.018.001.0001 and document 2, PLF.018.001.0039, which make reference to the meetings held on 7 February 2018, the Invoice Bundle deals with post-contractual conduct.
On the issue of post-contractual illegal conduct, in Fitzgerald v FJ Leonhardt Pty Ltd[32] Dawson and Toohey JJ said:
“Thus if the contract were to be affected by illegality it could only be because it was in the fourth category enumerated by Gibbs ACJ in Yango, namely, that although lawful according to its own terms, it might be performed in the manner which the Act prohibited. That category, however, does not stand for the proposition that a contract, which is itself legal, will be unenforceable if something illegal is done in the course of its performance.”
[32] (1997) 189 CLR 215, 219-220.
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.
As set out above, the agreements repose considerable power to conduct proceedings in the hands of the representative plaintiffs but prevent the plaintiffs’ solicitors, Clyde & Co, acting upon those instructions in respect of important matters absent the consent of LCM as funder.
In the present case the most important step which has been taken is the institution of the class action on 21 July 2017. It occurred at a time several months prior to the involvement of LCM and without the assistance of any commercial litigation funder. Of course, the fact that LCM were not involved in the proceeding at its commencement, does not defeat the allegation of practical control, but it does weaken the submission.
The larger amount of communication or contact between Clyde & Co and LCM is consistent with the contractual right of LCM to provide instructions with respect to day to day matters in the conduct of the litigation. The high degree of contact and communication between Clyde & Co, Law Essentials, and the plaintiffs corresponds with the representative plaintiffs’ substantive litigation rights, in particular their rights to direct the management and tactics of the proceeding.
It must be borne in mind that the more complex and complicated the litigation is, the more likely it is for lay plaintiffs to rely upon the advice of their solicitors. By any standard, the current proceedings are complex and complicated such that, it would be expected that there would be a higher degree of reliance by the plaintiffs on the advices of their solicitors in providing general instructions as to the important matters of management and strategy.
The defendant submits that adverse inferences, pursuant to the principle in Blatch v Archer[34] ought to be drawn against the plaintiffs and LCM because of their failure “to call evidence describing who has day to day practical control of the preparation and prosecution of the proceedings, and who has practical control of key decisions about the proceedings, in circumstances where that is a matter peculiarly within their own knowledge and in issue on the pleadings …”[35]. In my view it is neither necessary nor appropriate to draw any adverse inferences in this regard. The Invoice Bundle evidences communication with the representative plaintiffs prior to steps in the proceeding. An example is the filing of the Amended Statement of Claim on 9 May 2018 which was preceded by communication with the plaintiffs on 7 February 2018.
[34] (1774) 98 ER 969.
[35] Paragraph 50 of GPC Written Submissions.
Whilst the evidence discloses that the meetings between Mr Maurice Thompson and the plaintiffs on 7 February 2018 related to the signing of the agreements, this does not suggest that other matters were not discussed on that date. Mr Maurice Thompson, Mr Christopher Thompson Mr Barry Murphy and Mr Simon Whittingham all swore affidavits in this matter and were available for cross-examination. No requests were made to cross-examine Mr Maurice Thompson, Mr Christopher Thompson, Mr Barry Murphy or Mr Simon Whittingham.
The Amendments made on 9 May 2018 add a claim in nuisance, widen the definition of “Affected Waters” and add some further particulars. The amendments were settled by senior counsel, the first Statement of Claim was not settled by senior counsel. Prior to the filing of the Further Amended Statement of Claim on 27 July 2018, the “clients” received correspondence from Mr Maurice Thompson on 23 July 2018. Prior to the provision of Further and Betters Particulars by the plaintiffs on 26 October 2018, meetings were held by Mr Maurice Thompson and Mr Paul Hopwood with the representative plaintiffs. Those meetings also preceded the filing of the Reply on 5 November 2018. The better inference from the Invoice Bundle is that the proceedings have been conducted in accordance with the agreements as analysed above and I have no evidence upon which to conclude that the Funding Agreements have not been adhered to.[36]
5. Maintenance and Champerty
[36] See discussion of Davey v Money [2019] EWHC 997 (Ch) at [117].
The plaintiffs and LCM submit that the ancient torts of maintenance and champerty no longer exist in the common law of Australia, and if they do, the torts ought to be offered “a decent common law burial”.[37] Although the torts of maintenance and champerty have their roots in Grecian and Roman law, it is not necessary, desirable or possible to trace the formation of the law of maintenance and champerty over the last 2,000 years. It is necessary however, to examine the developments of the torts and the public policy behind the torts with reference to more ‘modern’ English authorities.
[37] T2-17/27 – PETER DUNNING QC: “My side ask you to do nothing more today than Boddice J was unexceptionally asked to do in Taylor v Hobson, to deal with the case in the same way. We make the point that it should now be said in terms that the torts are dead. But, in terms of substantive difference, somebody yesterday suggested we were asking to put a sword to it. We’re just asking for the same result in Taylor v Hobson but pointing out the torts are now dead and simply offering them a decent common law burial.”
A useful starting point, is one of the comparatively more ‘modern’ decisions on champerty being the 1883 decision of Lord Coleridge CJ in Bradlaugh v Newdegate.[38] The plaintiff, Mr Bradlaugh, was a newly elected member of the House of Commons who voted in and sat in the House of Commons during a debate after the speaker had been chosen, without having subscribed to the oath. The penalty for such infraction, under s 5 of 29 and 30 Vict. C. 19 was £500. Mr Newdegate was an opposition member of Parliament who ‘indemnified a man of straw’, a Mr Clarke, to sue Mr Bradlaugh in respect of his infringement in failing to take the oath with the intention of having Mr Bradlaugh financially ruined by the imposition of the penalty. Lord Coleridge CJ records in respect of the principal action:[39]
“The House of Lords dismissed Mr. Clarke's action with costs, on the ground that he, according to the words of the Lord Chancellor, ‘has not any right to or interest in’ the penalty he sued for.”
[38] (1883) 11 QBD 1.
[39] Bradlaugh v Newdegate (1883) 11 QBD 1, 4.
As Mr Clarke was a man with no assets and as Mr Clarke had been induced to sue and indemnified by Mr Newdegate, Mr Bradlaugh sued Mr Newdegate for the tort of maintenance. The facts were agreed, as was the measure of damages, namely, the amount expended by Mr Bradlaugh in defence of the claim. Accordingly the jury were discharged.[40] The important question of law to be determined by Lord Coleridge CJ was whether an action for maintenance still existed.[41] Lord Coleridge CJ:
“My judgment is, as I was informed, to be appealed from, and I was therefore inclined to send the respondent, whoever he might be, to the Court of Appeal un-weighted by any reasons of mine. But, as the subject of the action is not common, and the authorities which deal with it are not familiar to everyone, I have thought it best upon the whole to state not only my judgment but the grounds of it.”[42]
[40]    Bradlaugh v Newdegate (1883) 11 QBD 1, 2.
[41]    Bradlaugh v Newdegate (1883) 11 QBD 1, 4.
[42]    Bradlaugh v Newdegate (1883) 11 QBD 1, 2.
Lord Coleridge CJ said:[43]
“Mr. Bradlaugh's admission to the House of Commons, however, is a question in which a large number of persons have persuaded themselves that religion is involved; no one the least acquainted with human affairs but must have seen again and again the strange obliquities of which men, absolutely honourable in all other matters, will be guilty in what they think defence of what they think religion; and suppose Mr. Clarke, the man of straw, is content to become bankrupt and be ruined himself, while he half ruins Mr. Bradlaugh, what redress has Mr. Bradlaugh? He cannot himself sue on a bond to which he is no party, he cannot sue in Mr. Clarke's name nor compel Mr. Clarke to sue, for his benefit, in his own. It is probable, indeed, that by the agency of the Court of Bankruptcy this bond of Mr. Newdegate could be realized as an asset; and there are, I know, authorities which shew that, under certain circumstances, this could be done. But it would be a remedy troublesome and expensive and after all not absolutely certain. How the facts may turn out in the result it is, I think, immaterial to inquire. The first question is, will the action lie?”
[43] Bradlaugh v Newdegate (1883) 11 QBD 1, 5.
Lord Coleridge CJ then referred to the many definitions of maintenance including Blackstone’s definition as “an officious intermeddling in a suit in which no way belongs to one by maintaining or assisting either party with money or otherwise to prosecute or defend it” and Coke’s definition of maintenance that it “signifieth in law a taking in hand, bearing up, or upholding of a quarrel, or side, to the disturbance or hindrance of common right”.[44] Lord Coleridge CJ noted:
“There is, perhaps, the fullest and completest of all to be found in Termes de la Ley, ‘Maintenance is when any man gives or delivers to another that is plaintiff or defendant in any action any sum of money or other thing to maintain his plea, or takes great pains for him when he hath nothing therewith to do; then the party grieved shall have a writ against him called a writ of maintenance’.”[45]
[44] Bradlaugh v Newdegate (1883) 11 QBD 1, 5.
[45] Bradlaugh v Newdegate (1883) 11 QBD 1, 5.
Lord Coleridge CJ then referred to the American jurist, Joseph Story’s definition of maintenance:
“To the same effect is another American authority, Mr. Story. ‘Maintenance is the officious assistance by money or otherwise, proffered by a third person to either party to a suit, in which he himself has no legal interest, to enable them to prosecute or defend it’: Story on Contract, ch. vii. s. 578. Jacob's Law Dictionary is to the same effect as the other authorities I have quoted.”
Lord Coleridge CJ continued:[46]
“I have been thus full in my citation of authorities, because I conceive it to be important to keep in view the original idea conveyed by the word in order to see whether modern authority has qualified or altered it, and to interpret the phraseology of modern decisions by principles which the judges who pronounced those decisions would undoubtedly have recognised. And it seems to me that, unless maintenance is to be struck out of digests and law dictionaries for the future, it is impossible to avoid the conclusion that Mr. Newdegate has been guilty of it. If this is to be done, it must be done by some higher authority. I have not the power, and, if I had, I have not the wish, to abolish an action which may be in some cases the only way of redressing very cruel wrongs.”
[46] Bradlaugh v Newdegate (1883) 11 QBD 1, 6.
Lord Coleridge CJ continued further:[47]
“What is the state of the authorities on this subject? It is not useful to go very far back, because no doubt things were held to be maintenance some centuries ago which would not be held to be maintenance now. It may be that the danger of the oppression of poor men by rich men, through the means of legal proceedings, was great and pressing; so that the judges of those days, wisely according to the facts of those days, took strict views on the subject of maintenance. I do not pretend to the historical knowledge which would enable me to say with certainty whether or not this was so: at least it is very possible.”
[47] Bradlaugh v Newdegate (1883) 11 QBD 1, 7.

Lord Coleridge CJ reflected upon the Privy Council’s decision in Fischer v Kamala Naicker[48] where Sir John Coleridge delivered the opinion of the judicial committee and added to the general statement of maintenance that a requirement that “the acts of the maintainer must be immoral, and that the maintainer must have been actuated by a bad motive”. Lord Coleridge also considered the proposition arising from Findon v Parker[49] and Hutley v Hutley[50] “that if he has, or believes himself to have, a common interest with the plaintiff in the result of the suit, his acts, which would otherwise be maintenance, cease to be so.”
[48] Bradlaugh v Newdegate (1883) 11 QBD 1, 9 citing Fischer v Kamala Naicker (1860) 8 Moo. Ind. App. 170, 187.
[49] (1843) 11 M. & W. 675.
[50] (1873) LR 8 QB 112.
Lord Coleridge CJ reflected upon this and said:[51]
“The words are remarkable ‘it (i.e., maintenance), must be something against good policy and justice, something tending to promote unnecessary litigation, something that in a legal sense is immoral, and to the constitution of which a bad motive in the same sense is necessary’.”
[51] Bradlaugh v Newdegate (1883) 11 QBD 1, 10.
Lord Coleridge CJ explained that condition as follows:
“At least in any view it must mean as much as this, that to do what is illegal is legally immoral, and that a motive which impels to an illegal act is legally a bad motive. In this sense I do not hesitate to call Mr. Newdegate's conduct immoral and his motive bad. The language used is obiter only, for the judgment is in an Indian case, holding that the Sudder Adawlut could not decide a case upon the ground of champerty which the pleadings did not raise, but that, if they could, the champerty or maintenance which would invalidate a contract in India must have the qualities attributed to champerty and maintenance by the English law, that is to say — and then follows the passage which I have quoted. Obiter dictum, however, or not, I entirely accept it, and intend to decide this case in accordance with its language.”
Lord Coleridge CJ continued:[52]
“As a general rule there is no doubt that such common interest, believed on reasonable grounds to exist, will make justifiable that which would otherwise be maintenance. The oldest authorities, authorities which hold a multitude of things to be maintenance which would not be held so now, all lay down this qualification. Brooke, Fitzherbert, Rolle, Hawkins Viner, Comyns, to cite no more, all concur in this. Buller, J., in his celebrated judgment in Master v. Miller strongly insists upon it. But then the instances they give shew the sort of interest which is intended. A master for a servant, or a servant for a master; an heir; a brother; a son-in-law; a brother-in-law; a fellow commoner defending rights of common; a landlord defending his tenant in a suit for tithes; a rich man giving money to a poor man out of charity to maintain a right which he would otherwise lose. But in all these cases the interest spoken of is an actual valuable interest in the result of the suit itself, either present, or contingent, or future, or the interest which consanguinity or affinity to the suitor give to the man who aids him, or the interest arising from the connection of the parties, e.g., as master and servant, or that which charity and compassion give a man in behalf of a poor man who, but for the aid of his rich helper, could not assert his rights, or would be oppressed and overborne in his endeavour to maintain them.”
[52] Bradlaugh v Newdegate (1883) 11 QBD 1, 11.
Lord Coleridge CJ reflected:[53]
“It is true that this action is of the rarest; very few examples of it in any modern books are to be found. As a rule the doctrines and principles applicable to maintenance are discussed and laid down in judgments upon pleas, defences to actions of the more ordinary kinds, in which the defendant has sought to set aside a contract, or to be relieved from an obligation, on the ground that the contract was void or illegal, or the obligation not binding, because founded upon what was, or what savoured of, maintenance. But I think it has been shewn, not only from old abridgments and digests and text-writers, but by a chain of authorities from Lord Loughborough and Lord Eldon down to the present time, that the doctrine of maintenance is a living doctrine, and the action of maintenance is one which, in a fit case, the Courts of this day will support.”
[53] Bradlaugh v Newdegate (1883) 11 QBD 1, 14 citing Stanley v Jones (1831) 131 ER 143 and Sprye v Porter (1856) 26 L.J. QB.
Lord Coleridge CJ points out on page 8, arguments that maintenance were obsolete or exploded (redundant) were not previously accepted by the Court of Common Pleas nor the Queen’s Bench in cases as early as 1831.[54] Bradlaugh v Newdegate and the cases cited therein, evidence the fact that 188 years ago it was argued that the torts of maintenance and champerty were obsolete and were no longer representative of English law.
[54] Sprye v Porter (1856) 7E & B 58; 26 LJ. QB 64 and Stanley v Jones (1831) 131 ER 143.
The justifications for the tort are now subject to jurisprudence which has developed over the last century relating to the laws of abuse of process. As Lord Coleridge CJ reflected at page 5 the purposes of the tort of maintenance and champerty is to recover litigation costs from the party providing the maintenance hiding behind a ‘man of straw’. Even in 1883, as Lord Coleridge CJ noted, there was an alternative method of recovery available through the Courts of Bankruptcy. 136 years later, this remains the case. Nowadays, under the modern law of bankruptcy, it is likely that a declaration of bankruptcy and enforcement of an indemnity against a maintaining party is less troublesome and expensive than a suit for the torts of maintenance or champerty.
Moreover, since the High Court’s decision in Knight v FP Special Assets[55] it is plain that there is a much more certain, inexpensive and efficient means of curing the evil referred to. Nowadays, a party injured by maintenance may directly seek costs from the maintaining party under a third party costs order. In England third party costs orders have been made against a litigation funder[56] and may be ordered against a ‘champertous’ funder on an indemnity basis.[57]
[55]    Knight v FP Special Assets Ltd (1992) 174 CLR 178.
[56]    Arkon v Borchard Lines Ltd [2005] EWCA Civ 655.
[57]    Davey v Money [2019] EWHC 997 (Ch).
To embark upon a separate action for the tort of maintenance or champerty would be as Lord Coleridge CJ said to embark upon “a remedy troublesome and expensive.” [58] Lord Coleridge CJ thought that the law of maintenance had changed through the centuries such that it could not be considered that the class of exceptions is closed.[59] In 1883, it was settled law that a brother, a son-in-law and a brother-in-law could maintain each other in an action. If the law was static it would be unlawful for a sister, daughter-in-law or sister-in-law to provide maintenance to their sibling or sibling-in-law. It is difficult to accept that the prerequisite qualification for acceptance into a lawfully acceptable category of a maintainer must depend upon ‘consanguinity’, ‘affinity’, ‘charity’ or ‘compassion’ as the test measured by statements of English courts over 100 years ago. Bradlaugh v Newdegate, although, often later referred to, is a decision of first instance, and must be read, subject to later authority of the House of Lords.
[58] Bradlaugh v Newdegate (1883) 11 QBD 1, 5.
[59] Bradlaugh v Newdegate (1883) 11 QBD 1, 14.
In the House of Lords decision of Neville v London ‘Express’ Newspaper Limited[60] Lord Finlay LC said:
“The action for maintenance is, in my opinion, one which can be sustained only if special damage has been occasioned to the plaintiff by the maintenance. The maintenance may be punishable as an offence, but to give a right of action the commission of the offence must have caused damage to the plaintiff … But the action for maintenance at common law is not, in my opinion, an action for the invasion of a right; it is an action in respect of an offence which causes damage to the plaintiff … The criminal law prohibits and may punish the act, but in the absence of damage the remedy is not by civil action.”[61] (my underlining)
[60] [1919] AC 368.
[61] Neville v London ‘Express’ Newspaper Limited [1919] AC 368, 379-380.
In this case, the plaintiff Mr Neville was a developer of a new housing estate at Essex. In promoting the land development Mr Neville advertised a competition and offered a prize of £100 for submissions for the most suitable name for the new south coast resort, eventually entitled “New Anzac-on-Sea”. Mr Neville also offered 50 consolations prizes stated to be “splendid freehold building plots worth £50” each, subject to the proviso that the winners each pay 3 guineas for the conveyance of each plot. The defendant newspaper not only published a series of articles alleging the competition was not bona fide and that the consolation prizes were really sales of land at a profit, but went further and offered to fund and take legal proceedings at the newspaper’s expense, on behalf of all prize winners against Mr Neville.
125 persons who were prize winners joined in actions. It was decided that the plaintiffs to those actions were induced to enter into the contracts by the fraudulent misrepresentation of Neville who was ordered to return the monies paid to the defrauded purchasers. Neville brought actions against the defendant newspaper for maintenance and also in libel. In respect of the action for maintenance Lord Finlay LC said:[62]
“in the common law action for damages he is liable only if damage be proved. In the present case there is no damage. The plaintiff, it is true, has had to repay money which he had obtained by fraud and to pay costs in respect of his having resisted payment. It cannot be regarded as damage sufficient to maintain an action that the plaintiff has had to discharge his legal obligations or that he has incurred expenses in endeavouring to evade them. If it were otherwise the consequences would be extraordinary.
…
As there was no damage in the present case, I am of opinion that the action for maintenance must fail and that judgment must therefore be entered for the defendants on this head of claim.”
[62] Neville v London ‘Express’ Newspaper Limited [1919] AC 368, 380.
Lord Shaw of Dunfermline and Lord Phillimore agreed with Lord Finlay LC. Viscount Haldane questioned, whether the tort of maintenance, survived at all. Viscount Haldane pointed out with reference to the statute 1 Edw. III, Stat. 2, c. 14:[63]
“Various statutes have made maintenance a criminal offence and have prescribed penalties for that offence. But it is clear from the authorities that, throughout, the breach of this law has been treated as a civil wrong for which damages were recoverable. The only question is, as I have pointed out, whether actual pecuniary damage arising from the suit having been maintained unjustifiably need be proved.”
[63] Neville v London ‘Express’ Newspaper Limited [1919] AC 368, 390.
Viscount Haldane continued:[64]
“My Lords, I think that the right to protection against maintenance is an absolute one. The statutes say nothing about justification of the suit maintained. The maintenance of any suit is forbidden, and the only excuse which the authorities have recognized is that of a common interest of that defined nature which prevents the act done from coming within the category of maintenance by a stranger. In the present case, if I am right, the excuse does not prevent what was done from being maintenance by a stranger, and it follows from the other conclusions at which I have arrived that Mr. Neville had a right of action against the newspaper company.
But it does not follow that he was entitled to the damages in the shape of costs which the Lord Chief Justice assessed. These were costs in which he was justly condemned for resisting a proper legal claim. The real cause of the expenditure to which he was put was his own improper resistance, and not the mere fact of the actions brought in order to overcome it. He ought to have paid back all the money without compelling resort to proceedings in court. Under these circumstances I think he was entitled to no more than nominal damages for the violation of his right, and that the jury ought to have been directed to this effect. I think that justice will be done if judgment on the claim for maintenance is entered for him for merely nominal damages, unless the jury on a new trial think that exemplary damages should be given. No direction suggesting such damages should be given.”
[64] Neville v London ‘Express’ Newspaper Limited [1919] AC 368, 392-393.
Lord Atkinson said:[65]
“In dealing with the assignment of a bare right to litigate [Lord Abinger in Prosser v Edmonds] says: ‘What is this but the purchase of a mere right to recover ? It is a rule not – not of our law alone, but of that of all countries – that the mere right of purchase shall not give a man a right to legal remedies. The contrary doctrine is nowehere tolerated, and is against good policy. All our cases of maintenance and champerty are founded on the principle that no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce.’ That statement of the law has been many times approved of in modern cases, such as Alabaster v. Harness, British Cash and Parcel Conveyors v. Lamson Store Service Co. If Sir Ernest Pollock be right, Lord Abinger should have qualified his statement of the law by confining it to unsuccessful litigation. As far as I have been able to discover, no learned judge who ever quoted this passage with approval, and they are numerous and distinguished, ever suggested it should be so narrowed. Ancient statutes, eight in number, ranging from the 3 Edw. I. to the 32 Hen. VIII. c. 9, have been cited in argument. The last is possibly the widest in reach and the most instructive. Lord Abinger, in giving judgment in Prosser v. Edmonds, said of it that it was a short and useful statute, consistent with the general policy and principles of courts of law and equity. In the case of Pechell v. Watson, which has been many times approved of, it was, according to the headnote of the case, decided that maintenance is at common law a wrongful act, that the several statutes relating to it are merely declaratory of the common law, and that because of this a declaration in a case for maintenance need not charge that the maintenance was committed contra formam statuti. The object to effect which this statute of Hen. VIII. was passed appears from the preamble in s. 1. It is there stated to be that ‘there is nothing within this realm which conserveth his loving subjects in more quietness, rest, peace and good concord, than the due and just ministration of the laws, and the true and indifferent trials of such titles and issues as have been tried according to the laws of the realm.’ It is then stated that these things are greatly hindered by maintenance, embracery, champerty, subornation of witnesses, sinistre labour, buying titles, and pretended rights of persons not in possession, whereupon great perjury hath ensued, and much unquietness, oppression, vexacious troubles, wrongs, and disinheritances have followed amongst the King's subjects …. to the great hindrance of justice within his realm. Then it is enacted that ‘for the avoiding of all which misdemeanours … all statutes heretofore made concerning maintenance, champerty and embracery, or any of them now standing and being in full strength and force, shall be put in due execution, according to the tenures and effects of the same statutes.’
Sect. 2 deals with the buying or selling of, or bargaining for, any right in land if the seller be not in possession, and by s. 3 it is enacted that no person shall thereafter unlawfully maintain or cause or procure any unlawful maintenance in any action demand or complaint in the King's Courts of Chancery, the Star Chamber, Whitehall, or elsewhere …. upon pain of forfeiture for every such offence of a certain sum named. Some argument has been directed to the use in this statute of the word ‘unlawfully.’ I think from what is laid down in the cases I am about to refer to, the word is used to denote maintenance by persons who are not influenced by those motives of charity, nor are possessed of those interests in the subject-matter of the litigation, which justify their interference. The important consideration in relation to the point I am now dealing with is the entire absence from the statute of any distinction between successful and unsuccessful litigation, the reason apparently being that both kinds tend equally to disturb the ‘quietness, rest, peace, and good concord’ of the King's subjects.
[65] Neville v London ‘Express’ Newspaper Limited [1919] AC 368, 397-399.
Lord Atkinson explained the effect of the latter statute as follows:[66]
“The statute 32 Hen. VIII. c. 9 does not expressly or impliedly take away the right to sue for the tort of maintenance in a common law action on the case, though it turns the tort into a crime and imposes a penalty on the commission of the crime. The case then would seem to fall within the first or, if not, the second of the three classes mentioned by Willes J. in his judgment (Wolverhampton New Waterworks Co. v. Hawkesford), namely, the class (1.) where there was liability existing at common law, and that liability is affirmed by a statute, which gives a special and peculiar form of remedy different from the remedy which existed at common law. There, unless the statute contains words which expressly exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy.”
[66] Neville v London ‘Express’ Newspaper Limited [1919] AC 368, 405.
Lord Atkinson concluded that an action for the tort of maintenance could be brought even when the primary litigation (that which is maintained) is successful.[67] However, he noted that in those circumstances the measure of damages which may be awarded against the maintainer for his support of the successful litigation was limited to nominal damages.
[67] Neville v London ‘Express’ Newspaper Limited [1919] AC 368, 406.
The eight English statutes passed between 1275 and 1540 were analysed in the judgment of Lord Shaw of Dunfermline. Lord Phillimore and Lord Finlay LC expressly agreed with Lord Shaw. As Lord Shaw pointed out, the facts showed that 125 persons fell into Mr Neville’s trap after reading his advertisement and all succeeded in their suit against Mr Neville.[68] The litigants also succeed in having declarations made in their favour, that the plaintiffs were induced to enter into the contracts by Mr Neville’s fraudulent misrepresentations. Those persons achieved their justice with the assistance and financial aid of the London Express Newspaper Limited.
[68] Neville v London ‘Express’ Newspaper Limited [1919] AC 368, 407.
It is necessary to set out, in some length, the compelling reasons of Lord Shaw, in order to properly understand the history and development of maintenance and champerty in English law as it stood in 1919. In this respect Lord Shaw said at page 407 - 420:
“The actions were maintained for the plaintiffs by the respondents against Mr. Neville. The result was that justice was done, injustice was defeated, and by the aid of the maintenance given the law was put in force to achieve right, and right was achieved. In my opinion it is no part of the common law of England to make it possible to construct out of this maintenance either a wrong in itself or a wrong sounding in damages.
The learned judges in the courts below have, however, deferred to the view that this is possible. This has made an independent examination of the statutes and authorities necessary.
By 3 Edw. I. c. 25, passed in the year 1275, it was provided that ‘no officer of the King by themselves, nor by other, shall maintain pleas, suits or matters hanging in the King's courts, for lands, tenements, or other things, for to have part or profit thereof by covenant made between them; and he that doth, shall be punished at the King's pleasure.’
This enactment is plainly directed against a pactum de quota litis, against champerty and nothing else, and that on the part or behalf of the King's officers.
The first real reference to maintenance as such does, however, occur in the statutes of this Parliament. It is in chapter 28, and is as follows: ‘And that no clerk of any justicer, or sheriff, take part in any quarrels of matters depending in the King's court, nor shall work any fraud, whereby common right may be delayed or disturbed; and if any so do, he shall be punished by the pain aforesaid, or more grievously, if the trespass do so require.’
It is true that the maintenance here condemned is maintenance by the King's officers: but it is, in my opinion, not without importance to observe that even with regard to them, and so early as the thirteenth century, the ratio of such legislation and the essential quality of the practice condemned — that quality without which no offence can be constituted — are expressed in this: ‘whereby common right may be delayed or disturbed.’ I think, my Lords, that this quality is vital. It was vital then, and in my opinion it is after six centuries vital still.
By 28 Edw. I. c. 11, passed in the year 1300, it is provided: ‘And further, because the King hath heretofore ordained by statute, that none of his ministers shall take no plea for maintenance, by which statute other officers were not bounden before this time; the King will, that no officer nor any other, for to have part of the thing in plea, shall not take upon him the business that is in suit.’ This was again a statute directed against the pactum de quota litis — against champerty, and does not affect the doctrine of maintenance as such.
By the 33 of Edw. I., passed in the year 1305, an Ordinance was made against conspirators: ‘Conspirators be they that do confeder or bind themselves by oath, covenant, or other alliance, that everyone of them shall aid and bear the other falsely and maliciously to indite, or cause to indite, or falsely to move or maintain pleas.’ Up to this point the essential quality of the contravention is falsehood and malice, that is to say, the malice of the maintainer and the falsehood of the plea. But the ‘conspirators’ also include others, namely, ‘such as retain men in the country with liveries or fees for to maintain their malicious enterprises, and to drown the truth; and this extendeth as well to the takers as to the givers; and stewards and bailiffs of great lords, which by their seignory, office, or power, undertake to bear or maintain quarrels, pleas, or debates, that concern other parties than such as touch the estate of their lords or themselves.’
I think, my Lords, that the error which appears occasionally in the treatment of this subject finds its origin here. The later part of this Ordinance taken by itself would appear to strike — in the case of maintenance by the servants or retainers of great lords — at maintenance by them as such. It appears to me on the contrary that the Ordinance must be read as a whole; and if it be so read it is in line with what has preceded it on the Statute Book; the essential quality of the illegality is set forth, and that quality must be present — namely, that those charged were maintaining ‘their malicious enterprises’ and to drown the truth. Whether this last phrase has escaped certain later authorities or not I do not know, and it is notable that the words themselves only appear in a footnote in the Revised Statutes. But there was no reason for this omission from the main text. For the original of the statute contains quite plainly the vital words ‘et pur verite esteindre.’ The attempt accordingly to divorce the act of maintenance from its quality of ‘drowning the truth,’ or in the language of the earlier Acts something ‘whereby common right may be delayed or disturbed,’ is to turn an act which may be promotive of justice, and a righteous act, into something wrongful and penal, that is to say is to upset the foundations on which the Ordinance is based.
This view is strongly confirmed by the language of the statute 1 Edw. III. c. 14, passed a quarter of a century afterwards — namely, in 1326–7. ‘Because the King,’ says the Act, ‘desireth that common right be administered to all persons, as well poor as rich; he commandeth and defendeth, that none of his counsellors, nor of his house, nor none other of his ministers, nor no great man of the realm, by himself nor by other, by sending of letters, nor otherwise, nor none other in this land, great nor small, shall take upon them to maintain quarrels nor parties in the country, to the let and disturbance of the common law.’ What in short is to be accomplished is the impartial administration to poor and rich alike, and what alone prohibited is maintenance of “quarrels and parties” “to the let and disturbance of the common law.”
Then comes fifty years afterwards — namely, in 1377, chapter 4 of 1 Rich. II. It deals with penalties, and it is prefaced undoubtedly with prohibitive language thus: ‘It is ordained and established, and the King our lord straitly commandeth, that none of his counsellors, officers, or servants, nor any other person within our realm of England, of whatsoever estate or condition they be, shall from henceforth take nor sustain any quarrel by maintenance in the country, nor elsewhere, upon a grievous pain’: the pain upon the King's officers to be ordained by him, other officers to lose their services, other persons to be imprisoned and so on. I have very considerable doubt whether the intendment of this statute was the maintenance of suits of law. Primarily it was directed to promoting the civil peace in the country districts or elsewhere, and preventing the spreading of embroilments destructive of public order. This doubt is not resolved by the inclusion of this Act among the statutes which are confirmed by the 15th of 7 Rich. II. (1383), which bears to be ‘for the grievous complaint that is made of maintainers of quarrels, and champertors.’ This doubt is confirmed, and in my opinion a point of much obscurity and difficulty is set at rest by the statute of Hen. VIII. to which I am about to refer.
The statute was passed in the year 1540, and is the 32 of Hen. VIII. chapter 9. It deals specifically with legal administration and with the various forms in which that may be impeded or distorted to evil ends. In the preamble, or rather in s. 1, this is made clear. The King calls to his remembrance that ‘there is nothing within this realme that conserveth his loving subjects in more quietness rest peace and good concorde than the due and juste ministration of his lawes, and the true and indifferent triall of suche titles and issues as ben to be tried according to the lawes of this realme, which his most roiall Majestie perceyveth to be gretely hindered and lettid by mayntenance embracerie champertie subornation of witnesses sinistre labour buying of titles and pretensed rights of personnes not being in possession, wheruppon greate perjury hathe ensued, and muche unquietnes oppression vexacion troubles wrongis and dishenheritaunce hath followed amongest his most loving subjects, to the greate displeasure of Almighty God the discontentacion of his Majestie and to the greate hinderaunce and lett of justice within this his realme.’
The third section of the Act provides that no person ‘doo herafter unlaufully maineteyn or cause or procure any unlaufull mayntenance in any action demaunde sute or complainte in anny of the Kings Courts’ …. and also that no person ‘doo herafter unlaufully reteigne, for maintenance of any sute or plea, any persone …. or embrace any freholders or jurours, or suborne any witnes …. for to maineteigne any matier or cause, or to the distourbance or hinderaunce of justice, or to the procurement or occasion of any maner of perjury by false verdict, or otherwise in any maner of Court aforesaid.’
My Lords, I have seen occasion to point out that these statutes from the thirteenth century onwards do not condemn maintenance of suits as such, but they do condemn and alone condemn such maintenance of suits as is to the delaying or disturbing, the hindrance or denial of justice, and that accordingly to bring within their range a maintenance which is and may be clearly and demonstrably shown to be promotive of justice and in support of right is an erroneous construction.
This last cited Act supplements and confirms and in my view gives plain Parliamentary sanction to what appears to me to be the more reasonable and sensible and sound view.
What is aimed at is the just and due administration of the laws. The maintenance which has displeased God and made the King and his subjects discontented is the maintenance which is to the great hindrance and let of justice. And it is this sort of thing, and no other maintenance, which is struck at by s. 3; unlawful maintenance, procuring any unlawful maintenance, unlawful retaining for maintenance or getting a false verdict through perjury or similar nefarious means.
I ask myself what is the use of all this language about ‘unlawful’ maintenance if by the common law of England all maintenance was in itself unlawful. The laws are directed against robbery, arson, theft, or murder: how curious would be the language if it were directed against unlawful robbery, unlawful arson, unlawful theft, unlawful murder. If maintenance were unlawful in itself, the law would, one would have thought, have prohibited it simpliciter; and the simple truth as I view it, and as I think the Legislature viewed it, is that that maintenance alone is unlawful which is to the delaying, the interference with, the distortion or the prevention of justice in the courts of the realm.
The attempted answer to this appears to be that when these statutes were enacted or put into force the common law of England had already made exceptions, and that it was only the cases that did not fall within the exceptions that were unlawful. This brings me to examine the institutional writers referred to. Commenting on the 25th of the first Parliament of Westminster — against champerty — Coke in the Second Part of his Institutes, p. 208, observes that Bracton, who wrote before its date, rehearsing the articles enquirable by the justices in Eyre, speaks of the sustaining by a champerter ‘per quod justitia et veritas occultetur.’ He adds: ‘and Fleta agreeth with him, where it is said, per quod justitia et veritas occultetur; it appeareth that the end of champerty and maintenance is to suppresse justice and truth, or at least to work delay, and therefore it is malum in se, and against the common law.’ In a further paragraph he says: ‘An action of maintenance did lie at the common law, and if maintenance in genere was against the common law, a fortiori champerty, for that of all maintenances is the worst.’
Commenting further upon the 28th of this Parliament, against maintenance, it is in my view nowhere to be found that Coke places maintenance on a different foundation or describes it as having any wider scope under the common law than it had simply under this statute where it was described as something ‘whereby common right may be delayed or disturbed.’ Coke puts the matter thus: ‘Maintenance is an unlawfull upholding of the demandant or plaintife, tenant or defendant in a cause
….
This maintenance (as hath been said) is malum in se, and against the common law, and that is notably proved by this Act, for hereby maintenance is branded with this quality that thereby common right is delaied, or disturbed, and consequently against the common law.’
…
So far, in short, as Coke is concerned he appears to give no countenance to the proposition that a maintenance which, say, assists or promotes or procures justice would fall within that ‘unlawful’ maintenance which is struck at. Nor does it support the condemnation of all and every maintenance as ‘unlawful.’ On the contrary Coke appears to treat that maintenance and that alone as unlawful which is branded with the quality of delaying or disturbing common right. And it must in conclusion be added that Coke does not deal with the general question of maintenance at all. His observations are and are alone upon statutes affecting officers of the King or of the Courts, and even with regard to them they are of the guarded character described. So far Coke.
Blackstone says of the offence of maintenance that it is ‘an officious intermeddling in a suit that no way belongs to one.’ …. ‘This,’ he says, ‘is an offence against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression …… A man may however maintain the suit of his near kinsman, servant, or poor neighbour, out of charity and compassion, with impunity.’
Here is, in this last sentence, what in other treatises and text-books is called the list of exceptions, but which upon examination are not exceptions to officious interference, but are defences to it. As Hawkins (I. 456) treats it, it is ‘in what respects some acts of this kind may be justified.’ A man may be as officious as he likes in assisting his sons or other kinsmen, or in helping the poor in their litigations. These litigations may even tend to turning the law into an oppression; but yet he will have a defence for his action if his conduct sprang from kinship, service, charity or compassion. But this defence throws no light upon the question whether an interference which is not officious, and does not pervert the law into an engine of oppression, but on the contrary helps the law to be an instrument of justice — whether such an interference could ever be construed as an offence or fall within the denomination of ‘unlawful.’
The search in Hawkins' Pleas of the Crown would yield a rich reward to those who inquired as to the extraordinary lengths to which in certain ages, and by certain authors, the doctrine of maintenance was carried. As, for instance, this: Maintainers, it is said, include all such as assisted ‘by opening the evidence to the jury; or by giving evidence officiously without being called upon to do it; or by speaking in the cause as one of the counsel with the party; or by retaining an attorney for him; or perhaps by barely going along with him to inquire for a person learned in the law.’ It was as if law courts were a plague-ridden or infected area, to help another into which was an injury and a crime. Needless to say, these things, once claimed as being part of the common law of England, have long since disappeared. They are repugnant to sensible and modern ideas. What remains of the doctrine deserves, in these circumstances, a scrupulous examination; and I am of opinion that the test of maintenance is the test of the quality of the act itself as it bears upon the attainment of justice in the particular case, and that the test either of tort or of offence is primarily whether it contains that quality which is essential both by the statute and the common law of England.
Everything, in short, which Hawkins opines must, in my view, be governed by his major definition. ‘Maintenance,’ he says, ‘is commonly taken in an ill sense, and, in general, seemeth to signify an unlawful taking in hand, or upholding of quarrels or sides, to the disturbance or hinderance of common right.’ And I cannot but think that Hawkins' statement 1, 27, 43, ‘that it is not material, whether the plaintiff …. were non-suited, or recovered in the action,’ must be subject to the same qualification — namely, that it was to the disturbance and hindrance of common right. But upon that topic I content myself with referring to and adopting the judgment of my noble and learned friend, Lord Phillimore.
Finally, Hawkins considers the general point, ‘how far offences of this kind are restrained by the common law.’ And of this he says: ‘It seemeth, that all maintenance is strictly prohibited by the common law, as having a manifest tendency to oppression, by encouraging and assisting persons to persist in suits, which perhaps they would not venture to go on in upon their own bottoms; and therefore it is said, that all offenders of this kind are not only liable to (a) an action of maintenance at the suit of the party grieved, wherein they shall render such damages as shall be answerable to the injury done to the plaintiff, but also that they may be (b) indicted as offenders against public justice.’
This is a civil suit. I am of opinion, my Lords, that in any civil action in respect of maintenance it is necessary to establish these two things — namely, (1.) that the maintenance was unlawful in the sense above described both in statutes and in text-books; that is to say, that it was to the hindrance or disturbance of common right, to the delay or distortion or withholding of justice; and (2.) that the plaintiff in an action of maintenance shall have suffered actual injury by reason thereof, for which injury alone and to the extent of it is the maintenance answerable.
…
If, my Lords, by the Common Law of England maintenance of suits was by itself either an offence against the law or was by itself a tort, then it appears to me to be inconceivable that a style of indictment in this form could have been formed. Presumably it was composed as expressing a statement of the elements relevant and necessary to the action of maintenance. If maintenance was per se unlawful what more was necessary than to libel the fact, and to state that thereby the law per the statute had been broken. This is not the style, and one asks and sees plainly from it wherein the gravamen of the offence or tort consists. What was it that had been done unlawfully, what was it that was in contempt of the Queen? It was that an action of debt had been maintained with these two essential qualities: (1.) ‘to the manifest retardation and disturbance of justice; and (2.) to the serious loss of the foresaid’ plaintiff. This last expression (“grave damnum”) in my humble opinion excludes the idea of merely nominal damages; the damages must be real and actual.
As has been seen, this is the kernel of the whole matter, and these two essentials the common law of England has, in my opinion, never abandoned.
It, therefore, follows that where the action maintained has succeeded, no suit for damages can lie by the party against whom the action was maintained. Justice was not denied: it was done: the cause maintained was won at law: how can a man in a court of law be heard to say that thereby he was wronged? If under the common law of England such a right existed, then in my opinion the books would have shown many such. Rich crops of litigation might have remained to litigants, including fraudulent and dishonest litigants, who had most justly lost their causes, for damages against those who had helped to that end by maintaining, from wholly disinterested motives and with entire success, the cause of just dealing between man and man. And no doubt Parliament would long ago have taken some action in the matter. There is no such rich crop, nor any.
Much reliance was not unnaturally placed upon what, in my opinion, is the only decided case in which the fact of the success of the process maintained was brought forward. It is Wallis v. Duke of Portland. The Duke was said to have agreed with the solicitor for Mr. Tierney to support him with funds for contesting a Mr. Jackson's election for Colchester and declaring that the seat was won by Mr. Tierney. The petition succeeded. Tierney was declared elected: but upon the solicitor presenting his bill to the Duke, the latter refused payment. The solicitor sued, and the point before the Court of Chancery was as to a discovery of documents. In the course of the argument by the Attorney-General, Mansfield, four points at least were taken by way of demurrer which may be shortly put as (1.) nothing calling for answer; (2.) a step in a maintenance suit, therefore to be refused; (3.) against a Standing Order of House of Commons; and (4.) no writing by the Duke. In the Court of Chancery, Lord Loughborough (Lord Chancellor) upheld the second point — namely, maintenance — and opined that maintenance was malum in se. The case went to the House of Lords, and the appeal failed: but there is no record of any pronouncement by their Lordships as to the grounds of judgment. I am humbly of opinion, that this authority — a point of discovery in an action by a solicitor against an alleged client who was a party to an election petition — does not cover an ordinary action for maintenance by an unsuccessful suitor against the maintainer of a successful suitor.
It is notable that the cases cited by Bullen and Leake on this topic are Flight v. Leman and Pechell v. Watson. But in each of these cases the fact was that the plaintiff (maintained) had been nonsuited. The former case was raised in order to recoup the plaintiff for the costs to which he had been put by resisting the suit — which costs he could not recover from his former antagonist. The allegation was that the defendant had ‘unlawfully, maliciously and without probable cause’ stirred up and maintained. In short, it was for recovery of costs against the veritable dominus litis.
So was Flight v. Leman. But there, although the action maintained had also failed, a suit against the maintainer failed on the further and express ground that it did not contain an allegation of want of reasonable or probable cause on the part of the maintainer. Such a case it was held — by Patteson and Coleridge JJ. — was ‘in strict analogy with actions for malicious prosecution or arrest.’
In short, these cases, if they bear on the question of any liability on the part of the maintainer of a good and a successful suit, bear in a negative direction. They form no support whatever for such liability.
Nor, my Lords, does Bradlaugh v. Newdegate. The attempt to make Mr. Bradlaugh liable in penalties for having voted in the House of Commons without having taken the Oath failed, and accordingly the judgment of Lord Coleridge C.J. was pronounced against the maintainer of a suit which had been held by your Lordships' House to be without legal warrant. In these circumstances, the judgment is substantially occupied with two considerations — namely, whether maintenance in any circumstances (for the competency of any suit for maintenance was broadly challenged) can ground an action of damages; and secondly, were the facts of the case such as to enable him to answer the point of casuistry as he did — namely, that ‘to do what is illegal is legally immoral, and that a motive which impels to an illegal act is legally a bad motive’? He reached the conclusion that ‘in this sense’ Mr. Newdegate's conduct was immoral and his motive bad.
It is no part of my judgment in the present case that in no circumstances can an action of damages in respect of maintenance lie. Nor does the second point arise here, for the cause maintained was not illegal but was won: and it would have been interesting to see whether the learned judge would, upon the same reasoning, have felt forced to the conclusion that had the litigation reached a different end and the cause succeeded, the motive of the maintainer would have been held to be good. One may conjecture what would have been his view upon that and upon the actual question for decision in the present case by the warm approval with which he cites the words of Lord Abinger in Findon v. Parker, and the adoption thereof by Blackburn J. in Hutley v. Hutley. These words are well known: ‘The law of maintenance, as I understand it upon the modern constructions, is confined to cases where a man improperly, and for the purpose of stirring up litigation and strife, encourages others either to bring actions, or to make defences which they have no right to make.’ In my opinion that is still the law of England. This is unquestionably not one of those cases. Not only had the plaintiffs a right to bring their actions, but they succeeded therein, and no Court can question this outstanding and vital fact.
The same view was, I think, entertained by Wills J. in Harris v. Brisco, in which he held that the maintainer should ‘have some sort of reasonable ground for his interference’ where he has no legal interest, or ‘some reasonable ground for his belief that he is furthering the cause of justice.’ The Court of Appeal in no way questioned this, but the reversal in the course of which the valuable citation of authorities was made by Fry L.J. was put on the ground that the case was one of charity, and that howsoever unreasonable it might have been the maintenance being done out of charity could not be made a ground of action.
I have nothing to add to the review of the recent case of Oram v. Hutt and to the conclusion thereon of my noble and learned friend Lord Phillimore.
But I submit to your Lordships that light is derivable upon the present question from the views expressed in this House in Metropolitan Bank v. Pooley, and in particular from the opinion of Earl Selborne, upon a point which has been far too little attended to — namely, the broad and conclusive effect of decisions of Courts of law on the merits of the root question — namely, the rights or wrongs of the legal proceeding which was maintained. My Lords, upon the other view a maintainer, — however highminded he be, or however prompted by a sense of justice or a reprobation of deceit, and however successful he be in having justice done and deceit exposed, — such a maintainer is civilly responsible in damages for what he has done and furthermore he is a criminal offender. To my mind it is fairly clear that such a doctrine is as morally reprehensible as it is legally indefensible, and, as I have said, I do not think it ever was the law of England.”[69] (my underlining)
[69] My underlining the “vital words et pur verite esteindre” from French meaning ‘the pure truth extinguished or hidden’.

As the Queensland Parliament specifically adopted the wording of section 166(2) of the CPA (NSW) in section 103K(2) of the CPA (Qld), it may be concluded that that the regime laid down by Part 13A CPA (Qld) permits class action proceedings to be commenced and continued in circumstances where the class is defined by reference to entry as a group member, on the basis of the acceptance by the group member, of a commercial litigation funding arrangement. Naturally, s 103K(2) ought not to be read alone but together with the balance of Part 13A and in particular section 103R which prevents a commercial litigation funder from enforcing the provisions with respect to remuneration in the commercial litigation funding agreement without the express approval of the court. Furthermore, the terms and conditions of the litigation funding agreement are required to be disclosed by the parties to the defendant. The requirement to disclose the provisions of the litigation funding agreement are imposed by clause 8.2 of the Representative Proceedings Practice Direction.
Recently, in Brewsterv BMW Australia Ltd[127], the New South Wales Court of Appeal said:
“Thus, by s 166(2), the Legislature has unambiguously precluded any submission that the default open class policy reflected in Part 10 is incompatible with a class defined by a particular funder. It has also in terms recognised litigation funding in the context of representative proceedings.”
[127] [2019] NSWCA 35 [74].
In Giles v Thompson[128] Steyn LJ (in the Court of Appeal) said “[a]nd there is, of course, no more cogent evidence of a change in public policy than the expression of the will of Parliament”. The proposition that legislation “reflects Parliament’s assessment of the present state of public policy” is well accepted.[129]
[128] [1993] 3 All ER 321, 331.
[129] R (Factortame Ltd) v Secretary of State for Transport [2003] QB 381, 407 [61].
The public policy which is evidenced in Part 13A of the CPA (Qld) and in particular sections 103K to 103R, to paraphrase the reasons of Jacobson J in Multiplex[130], is that Part 13A lays down a regime that permits class action proceedings to be funded by a commercial litigation funder. There is nothing in evidence to suggest that the funding agreements are not what they appear to be, namely, a standard commercial litigation funding agreement. The terms of the agreement as analysed above, are sufficiently similar to the agreements in Multiplex. This may be observed by referring to paragraph 170 to 188 of (the later) decision Brookfield Multiplex v ILFP[131]. Even if the terms were different, that would not be a basis in public policy, to suggest the agreements were unlawful.[132] Paragraphs 86 and 92 of Fostif, do not support the conclusion that “control” or “improper control” is an element of the remnants, if any, of the torts of maintenance and champerty.
[130] Multiplex Funds v P Dawson Nominees (2007) 164 FCR 275, 300 [198].
[131] (2009) 180 FCR 11.
[132] Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386, 434 [92].
If I am wrong in this conclusion, I do not consider that the litigation funding agreements provide any level of unlawful or improper control in LCM.
The agreements do not assign any cause of action to LCM nor assign any existing fruits of any litigation but rather effect a contractual promise, subject to court supervision (s 103R), to share in a potential fund, which may or may not ever come into existence. This might properly be viewed as a partial assignment of future proceeds. Such a partial assignment is not against public policy, it is permitted in class actions by Part 13A.
GPC’s central submission is that Fostif provides no guidance in Queensland as Queensland has not introduced legislation abolishing the torts of maintenance and champerty. GPC support this submission by reliance on the reasons of Gummow, Hayne and Crennan JJ at paragraph 85 in Fostif underlined below. Paragraph 85 however ought not to be read alone and ought to be considered with the entirety of the judgment of Gummow, Hayne and Crennan JJ. In paragraphs 83 to 86 of the judgment their Honours said as follows:
“83 In the present matters, the appellants did not contend that maintenance or champerty provided any defence to the claims made against them. But they did contend that the nature of the funding arrangements made and to be made by Firmstones with retailers warranted the conclusion reached by Einstein J that those arrangements constituted an abuse of process.
84 The appellants sought to encapsulate their submissions on this aspect of the appeals by describing Firmstones’ conduct as ‘trafficking’ in the litigation. Expressed in that way, the appellants’ submission may be understood as conflating two separate propositions: first, that the funding arrangements constituted maintenance or champerty and, secondly, that for the maintainer to institute and continue proceedings, in the name of or on behalf of plaintiffs who were thus maintained, was an abuse of process which could be avoided only by ordering a stay of the proceedings. The second of these propositions, about abuse of process, assumed that maintenance and champerty give rise to public policy questions beyond those that would be relevant when considering the enforceability of the agreement for maintenance of the proceedings as between the parties to the agreement.
85 In jurisdictions where legislation has been enacted to the same effect as the Abolition Act, the premise for the second proposition identified is not valid; there are several reasons to reject it. It is neither necessary nor appropriate to decide what would be the position in those jurisdictions where maintenance and champerty may remain as torts, perhaps even crimes.
86 First, and foremost, s 6 of the Abolition Act preserved any rule of law as to the cases in which a contract is to be treated as contrary to public policy or as otherwise illegal. It preserved no wider rule of law. The Abolition Act abolished the crimes, and the torts, of maintenance and champerty. By abolishing those crimes, and those torts, any wider rule of public policy (wider, that is, than the particular rule or rules of law preserved by s 6) lost whatever narrow and insecure footing remained for such a rule. As Fletcher Moulton LJ had rightly said, nearly a century ago, the law of maintenance and champerty, even then, suffered: ‘from the vice of being based upon definitions of ancient date which were framed to express the law at a time when it was radically different from what it is at the present day.’ Secondly, the asserted rule of public policy would readily yield no rule more certain than the patchwork of exceptions and qualifications that could be observed to exist in the law of maintenance and champerty at the start of the twentieth century. As Fletcher Moulton LJ had also said, it was then ‘far easier to say what is not maintenance than to say what is maintenance’. No certain rule would emerge because neither the content nor the basis of the asserted public policy is identified more closely than by the application of condemnatory expressions like ‘trafficking’ or ‘intermeddling’, with or without the addition of epithets like ‘wanton and officious’.” (my underlining)
In this regard GPC adopted the position which found success in New Zealand as a ‘non-abolition State’ that the reasoning of Fostif does not apply.[133] It is one thing to accept that by paragraph 85 the logic of Gummow, Hayne and Crennan JJ in Fostif is obiter in Queensland, it is another to accept that the reasons are unpersuasive or irrelevant in Queensland. The two conflated propositions referred to in paragraph 84 in Fostif must be examined. The first is controversial, namely that where a commercial funding agreement exists it would ordinarily constitute both maintenance and champerty. The second proposition, namely, that maintenance is an abuse of process which may only be avoided by ordering a stay of proceedings, does not accord, as their Honours reasoned, with powers vested in courts in modern times. More importantly, in attempting to ascertain the public policy questions said to found the torts of maintenance and champerty, and the public policy questions relevant to an abuse of process, their Honours reflected that the asserted public policy considerations underpinning maintenance and champerty are incapable of closer identification, at least in modern times.[134]
[133] See Waterhouse v Contractors Bonding Ltd [2014] 1 NZLR 91 [37] and [38] per Elias CJ, McGrath, William Young and Glazebrook JJ and PricewaterhouseCoopers v Walker (2018) 1 NZLR 735 [57] per Glazebrook, Arnold, O’Regan and Ellen France JJ and by Elias CJ [117].
[134] Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386, 433 [86].
The description of the evil the policy was meant to cure as “trafficking or intermeddling” with or without the epitaphs “like wanton and officious” do not assist at all. Abuse of process has developed its own jurisprudence. As their Honours point out, even if the litigation funder has control of litigation and is expected to reap a significant profit from litigation those elements do not “alone or in combination, warrant condemnation as being contrary to public policy or leading to any abuse of process.”[135] As set out above, and as commented by their Honours, the abolition acts always included the statutory carve out with respect to contracts.[136] As the House of Lords has held,[137] an essential element for the existence of the tort was the statutory declaration of maintenance and champerty as a crime, the tort coming into existence after the commission of the crime and the suffering of special damage.
[135] Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386, 433 [88].
[136] Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386, 433 [86].
[137] See discussion of Neville’s case at [181] above.
If Neville’s case accurately represents the law of maintenance and champerty in England, and as the crimes of maintenance and champerty do not exist in Queensland, then the logical conclusion is the torts of maintenance and champerty no longer exist in Queensland. The difficulty with a willing acceptance of that proposition is that the older English cases and the modern English cases do not easily sit together. Hence the necessity for the vague and unhelpful expressions which were identified in paragraph 86 by the High Court in Fostif. The present application however deals only with a representative proceeding or class action pursuant to Part 13A and for the reasons expressed, a commercial litigation funding arrangement entered into with a commercial litigation funder in respect of a Part 13A proceeding is a lawful arrangement.
I do not accept that the New Zealand authorities provide any useful assistance but rather I take guidance from the High Court in Fostif. Hong Kong, like Queensland, does not have an abolition statute yet its Court of Final Appeal similarly took guidance from Fostif. In Unruh v Seeberger[138], Ribeiro PJ, with (whom Li CJ, Bokhary PJ, Chan PJ and McHugh NPJ said:
94.Clearly, this ‘common interest’ category is not closed. Public policy is likely to regard groups and associations pursuing legitimate objectives as possessing a sufficient common interest in related litigation to warrant their exclusion from the scope of maintenance and champerty. One example is Martell v Consett Iron Co Ltd where it was held that an association formed to protect fisheries and to prevent the pollution of rivers had a sufficient common interest for it lawfully to support an action brought by members who claimed that their fishery was being polluted by effluents from the defendant’s ironworks.
95.A second excluded category involves what might today be referred to as cases involving ‘access to justice’ considerations. In Hong Kong, Article 35 of the Basic Law recognizes access to the courts as a fundamental right. It has never been a defence to an action nor a ground for a stay to show that the plaintiff is being supported by a third person in an arrangement which constitutes maintenance or champerty. Neither does liability for maintenance or champerty depend on the action or the defence being bad in law. It follows that an attack on an arrangement said to constitute maintenance or champerty could well result in a claim which is perfectly good in law being stifled where the plaintiff, deprived of the support of such an arrangement, is unable to pursue it. This is a powerful argument for such cases to be excluded from the ambit of maintenance and champerty. This was recognized by the Privy Council in Ram Coomar Coondoo v Chunder Canto Mookerjee where their Lordships stated:
‘... a fair agreement to supply funds to carry on a suit in consideration of having a share of the property, if recovered, ought not to be regarded as being, per se, opposed to public policy. Indeed, cases may be easily supposed in which it would be in furtherance of right and justice, and necessary to resist oppression, that a suitor who had a just title to property, and no means except the property itself, should be assisted in this manner.’
96.Lord Phillips of Worth Matravers MR in R (Factortame Ltd) v Transport Secretary (No 8) recently placed conditional fees in the same context, stating:
‘Conditional fees are now permitted in order to give effect to another facet of public policy – the desirability of access to justice. Conditional fees are designed to ensure that those who do not have the resources to fund advocacy or litigation services should none the less be able to obtain these in support of claims which appear to have merit.’
97.It is again obvious that this access to justice category is not static. The development of policies and measures to promote such access is likely to enlarge the category and to result in further shrinkage in the scope of maintenance and champerty. Different measures, whether statutory or judicial, may be taken in different jurisdictions. Here in Hong Kong, a litigant who is funded by the Supplementary Legal Aid Scheme is required to make a contribution out of recovered proceeds for the benefit of the Fund. In England and Wales, conditional (but not contingency) legal fee agreements have received statutory support in certain types of cases. This has entailed the development of after the event insurance against adverse costs orders. The development of multi-party litigation or class actions raises questions concerning the conduct of promoters and funders of such litigation.
98.Thirdly, there exists a miscellaneous category of practices accepted as lawful even though, as pointed out by Gummow, Hayne and Crennan JJ in the recent decision of the Australian High Court in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd, such practices do not differ in substance from practices which have traditionally been roundly condemned. Their Honours refer to the sale and assignment by a trustee in bankruptcy of an action commenced in the bankruptcy to a purchaser for value; and the development of the doctrine of subrogation as applied to contracts of insurance as instances.
[138] (2007) 10 HKCFAR 31.

C.5D The current approach to maintenance and champerty
99.The foregoing discussion shows that the thrust of legal development has been (as Fletcher Moulton LJ pointed out) to carve out areas of conduct for exclusion from liability, forming what was referred to in Campbells Cash and Carry as a ‘patchwork of exceptions and qualifications’. But by what criteria is one able to determine that certain conduct does attract liability under those heads? That question translates into one asking: What are the considerations of modern public policy which result in conduct being characterised as maintenance or champerty? In particular, what public policy considerations result in a contract being vitiated on grounds of maintenance or champerty? I would make four points in answer.
100.In the first place, the traditional legal policies underlying maintenance and champerty continue to apply although they must substantially be qualified by other considerations. Thus, the mischief to be discouraged by the law of maintenance is still ‘officious intermeddling’ in litigation, in particular where this results in oppression of the person against whom the action is brought and possibly if it may result in the general encouragement of litigiousness. Thus, the Privy Council in Ram Coomar Coondoo v Chunder Canto Mookerjee, recognized that funding a poor person’s litigation might advance the cause of justice, but their Lordships added that such funding agreements ‘ought to be carefully watched’ because of the risk, among other things, that the arrangement may involve ‘abetting and encouraging unrighteous suits, so as to be contrary to public policy’.”
101.The public policy against champerty has traditionally involved two concerns and continues to do so.
(l) The first is that an agreement to share in the spoils of litigation may encourage the perversion of justice and endanger the integrity of judicial processes. As Lord Denning MR put it in In re Trepca Mines Ltd (No 2): ‘The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses.’
(m) Next, a champertous arrangement may be objectionable in that it involves a stranger to the litigation in ‘trafficking’ or ‘gambling’ in the outcome of the litigation. Thus, in Trendtex Trading Corporation v Credit Suisse, an assignment was struck down as champertous because it “... involved the possibility, and indeed the likelihood, of a profit being made, [by a third party with no genuine commercial interest in the transaction] out of the cause of action … [which] manifestly ‘savours of champerty,’ since it involves trafficking in litigation – a type of transaction which, under English law, is contrary to public policy.” Such activity is obviously unacceptable to the court which sees its role as the administration of justice and not the provision of a market for speculators in litigation.

102.Secondly, the fact that an arrangement may be caught by the broad definitions of maintenance or champerty is not in itself sufficient to found liability. The totality of the facts must be examined asking whether they pose a genuine risk to the integrity of the court’s processes. In R (Factortame Ltd) v Transport Secretary (No 8), Lord Phillips MR stated: ‘... one must today look at the facts of the particular case and consider whether those facts suggest that the agreement in question might tempt the allegedly champertous maintainer for his personal gain to inflame the damages, to suppress evidence, to suborn witnesses or otherwise to undermine the ends of justice.’ It is not enough simply to say that it is the type of agreement which “savours of” champerty.
103.Thirdly, countervailing public policies must be taken into account, especially policies in favour of ensuring access to justice and of recognizing, where appropriate, legitimate common interests of a social or commercial character in a piece of litigation. The traditional public policies against intermeddling in litigation must be weighed against such competing values and if the balance is in favour of the latter, the conduct complained of should not be regarded as contrary to public policy.

With the acknowledgement that Queensland does not have an ‘Abolition Act’ as such but has both the Criminal Code 1899 (Qld) and Part 13A of the Civil Proceedings Act 2011 (Qld), the funding agreement cannot be found to be unlawful. I am of the view that s 103K(2)(b) of the Civil Proceedings Act does not impliedly, and for all purposes, abolish the torts of maintenance and champerty but I do take the view that s 103K(2)(b) together with the balance of Part 13A, authorises commercial litigation funding agreements in respect of “class actions” in Queensland.
8. Common Fund Order

The applicants seek an alternative order with the granting of a common fund order. As the applicants have succeeded on a primary relief it is unnecessary to make a common fund order.
Had I concluded that the agreements were unenforceable then I would have adopted the approach of the Full Court of the Federal Court in Westpac Banking Corporation v Lenthall[139] and the New South Wales Court of Appeal in BMW Australia Ltd v Brewster[140]. I would have considered it appropriate to make a common fund order in terms of the order sought.
[139] (2019) 366 ALR 136.
[140] (2019) 366 ALR 171.
9. Conclusion

The funding agreements which are the subject of the application do not involve unlawful conduct or purpose and are not prejudicial to the administration of justice. To the contrary the funding agreements accord with the public policy of Part 13A of the Civil Proceedings Act 2011 (Qld). In those circumstances I make the following declarations:
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.

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 that they are evidence of post-contractual conduct – where issue was left to be decided in judgment - whether the invoices are admissible Civil Proceedings Act 2011 (Qld) s 103ZA, s 103R, s 103K, 103B, 103D, s 103A, s 103L, s 103I, s 103J, s 103P, s 103R Legal Profession Act 2007 (Qld) s 324, s 308 Criminal Code Act 1899 (Qld) Federal Court of Australia Act 1976 (Cth) s 33N Supreme Court Act 1986 (Vic) Part 4A Civil Procedure Act 2005 (NSW) s 166(2) Wrongs Act 1958 (Vic) s 34(2) Murphy Operator Pty Ltd & Ors v Gladstone Ports Corporation Ltd (No 3) [2019] QSC 118 Falzon v Gladstone Ports Corporation & Anor [2012] QPEC 50 Falzon v Gladstone Ports Corporation [2014] QPEC 37 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Giles v Thompson [1993] 3 All ER 321 Regina (Factortame Ltd and others) v Secretary of State for Transport, Local Government and the Regions (No 8) [2003] QB 381 Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors [2019] QSC 163 REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd (2017) 95 NSWLR 458 Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 Blatch v Archer (1774) 98 ER 969 Bradlaugh v Newdegate (1883) 11 QBD 1 Fischer v Kamala Naicker (1860) 8 Moo. Ind. App. 170 Findon v Parker (1843) 11 M. & W. 675 Hutley v Hutley (1873) LR 8 QB 112 Stanley v Jones (1831) 131 ER 143 Sprye v Porter (1856) 26 L.J. QB. 64 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Neville v London ‘Express’ Newspaper Limited [1919] AC 368 Wallis v Duke of Portland (1797) 3 Ves Jun. 494 WorkCover Queensland v AMACA Pty Limited [2013] 2 Qd R 276 Magic Menu Systems v AFA Facilitation (1997) 72 FCR 261 Martell v Consett Iron Co Ld [1955] 1 Ch 363 British Cash and Parcel Conveyors Ltd v Lamson Store Service Co Ltd [1908] KB 1006 In re Trepca Mines Ltd (No.2) [1963] 1 Ch 199 Davey v Money [2019] EWHC 997 (Ch) Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Clyne v Bar Association (NSW) (1960) 104 CLR 186 Elfic Ltd v Macks [2003] 2 Qd R 125 Roux v Australian Broadcasting Commission [1992] 2 VR 577 Jeffery & Katauskas v SST Consulting (2009) 239 CLR 75 Deloitte Touche v JP Morgan (2007) 158 FCR 417 IMF (Aust) v Meadow Springs (2009) 253 ALR 240 Taylor & Anor v Hobson & Ors [2016] QSC 226 Trendtex Trading Corporation v Credit Suisse [1982] AC 679 PGA v The Queen (2012) 245 CLR 355 Trident General Insurance Co Limited v McNiece Bros Pty Ltd (1988) 165 CLR 107 Burragubba v Queensland (2015) 236 FCR 160 Multiplex Funds v P Dawson Nominees (2007) 164 FCR 275 Brewsterv BMW Australia Ltd [2019] NSWCA 35 Brookfield Multiplex v ILFP (2009) 180 FCR 11 Unruh v Seeberger (2007) 10 HKCFAR 31 Westpac Banking v Lenthall (2019) 366 ALR 136 BMW Australia Ltd v Brewster (2019) 366 ALR 171
COUNSEL:	L W L Armstrong QC and M J May for the applicants D B O’Sullivan QC and S B Hooper for the first respondent P J Dunning QC and C Jennings for the second respondent
SOLICITORS:	Clyde & Co for the applicants King & Wood Mallesons for the first respondent Piper Alderman for the second respondent