Bartlett v Commonwealth of Australia [2019] FCA 571

Bartlett v Commonwealth of Australia [2019] FCA 571

Although the Court's preliminary disposition was that a common fund order was appropriate, the detailed affidavit evidence, submissions and proposed terms provided shortly before the hearing made it necessary, in discharge of the Court's protective and supervisory role concerning group members, to obtain limited assistance from an amicus curiae before making the order. Because the applicants chose to withdraw the application if the Court would not make the orders immediately without that assistance, the application for a common fund order was dismissed.

Jurisdiction
Australia
Judgment Date
12 April 2019
Procedural Posture
Representative Proceeding; Application for Common Fund Order / Interlocutory Application
Outcome
Application for a common fund order dismissed; costs reserved.
Legal Topics
['common Fund Order' 'notice to Group Members' 'open Class Proceeding' 'appointment of Amicus Curiae' 'group Member Protection' 'costs Reserved']
['representative Proceedings' 'litigation Funding' 'federal Civil Procedure'] ['common Fund Order' 'notice to Group Members' 'open Class Proceeding' 'appointment of Amicus Curiae' 'group Member Protection' 'costs Reserved']

Case Brief

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Procedural Posture

Representative Proceeding; Application for Common Fund Order / Interlocutory Application

Legal Issues

  1. 1 ['Whether a common fund order should be made in the Katherine proceeding.' 'Whether notice to group members should specify the precise funding terms and likely deductions from any resolution sum.' 'Whether the Court should appoint an amicus curiae to consider the detailed evidence, submissions and proposed order from the perspective of group members before making any common fund order.' 'What order should be made where the applicants withdrew the application rather than proceed with assistance from an amicus curiae.']

Ratio Decidendi

Although the Court's preliminary disposition was that a common fund order was appropriate, the detailed affidavit evidence, submissions and proposed terms provided shortly before the hearing made it necessary, in discharge of the Court's protective and supervisory role concerning group members, to obtain limited assistance from an amicus curiae before making the order. Because the applicants chose to withdraw the application if the Court would not make the orders immediately without that assistance, the application for a common fund order was dismissed.

Court Disposition

Application for a common fund order dismissed; costs reserved.

Orders

  • ['The application for a common fund order be dismissed.' 'The issue of costs is reserved.' 'On or by 16 April 2019, the parties provide an outline of written submissions in respect of costs, of no more than two pages in length, which identify the costs orders for which they contend in relation to the application for...