The burial of maintenance and champerty in QLD or their death Throes.
Has the last dice been rolled by those opposed to the class (representative) action in Queensland?
In a forlorn attempt to argue that by entering into a litigation funding agreement, one is committing a civil wrong and further, funding agreements are unenforceable in Queensland as contrary to public policy in Queensland, Gladstone Ports Corporation Limited opposed declarations sort to the contrary.
The Representative Action regime was given a sound endorsement by the Supreme Court in Rockhampton last month.
11 November 2016 the Civil Proceeding Act in QLD was amended to include part 13(a) which introduced class (representative) actions to QLD.
The first of class actions was filed on ‘insert dated’ by our firm
In the face of the dire predictions of an avalanche of Class Action litigation in Qld since its inception only 7 class have been filed in the Supreme Court of Qld. The warnings of the large Defendant Law firms that outside the United States, Australia is the most likely place where a corporation can find itself on the receiving end of a class is simply nonsense.
Justice Crowe provides a comprehensive history of the ancient torts of maintenance and Champerty in a lengthy decision delivered in the Supreme Court at Rockhampton on the 13.09.2019. Murphy Operator and ors v Gladstone Ports Corporation (4  QSC 228).
In the face of submissions from the plaintiff that the torts of maintenance and Champerty no longer exist in common law of Australia and ought to be offered a decent common law burial, His Honour declined to lower the casket and declined to make that determination on the basis that the introduction of part 13(a) of the Civil Proceedings Act 2011 permits class action proceedings to be funded by a commercial litigation funder.
He rejected any suggested that ‘improper control’ is an element of the remnants of the torts of maintenance and champerty.
The decision has been appealed.
The ability of the Supreme Court to make any orders it considers just for the distribution of money paid under settlement or paid into court is a significant power to ensure the class action litigation is conducted for and in the interest of the group members and not in the interest of a litigation funder.
The power reposed in the Court, pursuant to s103R(2) to be determined what proportion of a settlement fund is paid to the litigation prevails over any constitutive contractual contract with respect to remuneration of the litigation funder. To paraphrase his Honour’s reasons….. The public policy …. Is that it lays down a regime that permits class actions to be funded by a commercial litigation funder.
What then are the consideration of modern public policy which result in conduct being characterised as maintenance and Champerty: –
- The traditional legal policy’s underling maintenance and Champerty content to apply although they must be substantially quailed by other considerations. Officious intermeddling in litigation is the mischief which is targeted and which results an impression of the person in which the action was brought
- The fact that an arrangement made be caught by the broad definitions of maintenance and or Champerty is not in itself sufficient to found liable.
- Countervailing public policies must be taken into account and especially polices in favour of ensuring access to justice.
One can only hope that good sense prevails and the class action in Queensland be finally fully and comprehensively endorsed as a lawful and necessary access to justice for those by the CA.
Let’s move on Queensland.