BMW Australia Ltd v Brewster [2019] HCA 45

BMW Australia Ltd v Brewster [2019] HCA 45

Neither s 33ZF of the Federal Court of Australia Act 1976 (Cth) nor s 183 of the Civil Procedure Act 2005 (NSW) empowers the Federal Court or Supreme Court of New South Wales to make common fund orders, as such orders do not 'ensure that justice is done in the proceeding' but rather serve to facilitate the viability of representative proceedings through incentivising litigation funders, which is outside the scope and purpose of the legislation.

Parties
Appellant: BMW Australia Ltd; First Respondent: Owen Brewster; Second Respondent: Regency Funding Pty Ltd; Appellant: Westpac Banking Corporation; Appellant: Westpac Life Insurance Services Ltd; First Respondent: Gregory John Lenthall; Fifth Respondent: JustKapital Litigation Pty Ltd; Intervener: Attorney-General of the Commonwealth; Intervener: Attorney-General for the State of Victoria; Intervener: Attorney-General for the State of Western Australia; Intervener: Attorney-General of the State of Queensland
Jurisdiction
Australia
Judgment Date
04 December 2019
Procedural Posture
Appeals / Final Judgment of High Court
Outcome
Appeals allowed; CFOs set aside
Legal Topics
Representative Actions, Litigation Funding, Common Fund Orders, Court Procedural Powers
Civil Procedure Representative Actions Litigation Funding Common Fund Orders Court Procedural Powers

Case Brief

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Parties

BMW Australia Ltd

Appellant

Owen Brewster

First Respondent

Regency Funding Pty Ltd

Second Respondent

Westpac Banking Corporation

Appellant

Westpac Life Insurance Services Ltd

Appellant

Gregory John Lenthall

First Respondent

JustKapital Litigation Pty Ltd

Fifth Respondent

Attorney-General of the Commonwealth

Intervener

Attorney-General for the State of Victoria

Intervener

Attorney-General for the State of Western Australia

Intervener

Attorney-General of the State of Queensland

Intervener

Procedural Posture

Appeals / Final Judgment of High Court

Legal Issues

  1. 1 Does s 33ZF of the Federal Court of Australia Act and s 183 of the Civil Procedure Act empower courts to make common fund orders?
  2. 2 Are common fund orders within the judicial power of the Commonwealth and consistent with the Constitution?
  3. 3 Can courts order remuneration to litigation funders for unfunded group members?

Ratio Decidendi

Neither s 33ZF of the Federal Court of Australia Act 1976 (Cth) nor s 183 of the Civil Procedure Act 2005 (NSW) empowers the Federal Court or Supreme Court of New South Wales to make common fund orders, as such orders do not 'ensure that justice is done in the proceeding' but rather serve to facilitate the viability of representative proceedings through incentivising litigation funders, which is outside the scope and purpose of the legislation.

Court Disposition

Appeals allowed; CFOs set aside

Orders

  • Appeal allowed in BMW Australia Ltd v Brewster. Orders of Court of Appeal of Supreme Court NSW set aside. Question for separate determination answered: 'No'. First respondent to pay applicant's costs for application and hearing of separate question. First respondent to pay appellant's costs of appeal to High Court.
  • Appeal allowed in Westpac Banking Corporation v Lenthall. Orders 3 and 4 of Full Court of Federal Court set aside. Appeal allowed. Orders 1 and 2 of Lee J set aside; application for common fund order dismissed with costs. Respondents to pay appellants' costs of appeal in Federal Court and to High Court.