The defendant sought special leave to appeal to the High Court of Australia from a decision of the Queensland Court of Appeal to argue that a typical class action funding agreement was unenforceable for public policy reasons because it gave the funder an impermissible degree of control over the action together with a right to share in the proceeds. The defendant relied on the public policy underlying the torts of maintenance and champerty and the prohibition on assignment of bare causes of action. The defendant placed reliance on the fact that in Queensland (unlike New South Wales as considered by the High Court in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386) the torts of maintenance and champerty had not been abolished. The High Court (Keane, Edelman and Gleeson JJ) dismissed the application on the basis that the proposed appeal would not enjoy sufficient prospects of success.
Michael May (led by L Armstrong QC) appeared for the first and third respondents, instructed by Clyde & Co.
The judgment is published here.