Since 2016, common fund orders have been made in a number of Australian class actions under a particular statutory provision of the Federal Court of Australia Act (s 33ZF) and its State-based equivalents.
The effect of a common fund order is to require group members to contribute to the litigation funder a percentage of their entitlement under any settlement or judgment, whether or not the group member had entered into a funding agreement with the funder.
However, a recent decision of the High Court of Australia has held that courts cannot rely on this provision to make common fund orders. Consequently, absent any statutory intervention, common fund orders of this kind will no longer feature in the Australian class action landscape.
A briefing paper setting out our observations and insights is now available.
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2020