Deloitte Touche Tohmatsu v JP Morgan Portfolio Services Limited (ACN 064 567 040) [2007] FCAFC 52

Deloitte Touche Tohmatsu v JP Morgan Portfolio Services Limited (ACN 064 567 040) [2007] FCAFC 52

By majority, the Full Court held that the litigation agreement, viewed in its commercial context, did not of itself constitute an abuse of process. The Court found that Westpac, as ultimate owner of the corporate group with a genuine commercial interest, controlled the proceedings lawfully, and there was no corruption of court processes. The mere assignment of benefit and control, without more, is not sufficient to infer abuse. Each case must turn on its own facts, and here there was no evidence of conduct detrimental to the integrity of the court’s process. Thus, the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
16 April 2007
Procedural Posture
Appeal / Full Court Judgment on Appeal From a Single Judge of the Federal Court of Australia
Outcome
appeal dismissed by majority; dissent would have allowed appeal and dismissed proceedings below
Legal Topics
['abuse of Process' 'assignment of Causes of Action' 'litigation Funding' 'standing' 'champerty and Maintenance']
['practice and Procedure' 'contract Law' 'commercial Law'] ['abuse of Process' 'assignment of Causes of Action' 'litigation Funding' 'standing' 'champerty and Maintenance']

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Procedural Posture

Appeal / Full Court Judgment on Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the control of litigation and retention of the entire benefit by a non-party under a litigation agreement constitutes an abuse of process' 'Whether the proceedings were instituted for an illegitimate purpose' 'Whether the litigation agreement resulted in a de facto assignment of a bare cause of action contrary to public policy']

Ratio Decidendi

By majority, the Full Court held that the litigation agreement, viewed in its commercial context, did not of itself constitute an abuse of process. The Court found that Westpac, as ultimate owner of the corporate group with a genuine commercial interest, controlled the proceedings lawfully, and there was no corruption of court processes. The mere assignment of benefit and control, without more, is not sufficient to infer abuse. Each case must turn on its own facts, and here there was no evidence of conduct detrimental to the integrity of the court’s process. Thus, the appeal was dismissed.

Court Disposition

appeal dismissed by majority; dissent would have allowed appeal and dismissed proceedings below

Orders

  • ['The appeal is dismissed.' 'The appellants are to pay the costs of the appeal.']