Litigation fundingAuthors: Dougal Langusch
On 28 October 2011, the High Court granted special leave to appeal in the matter ofInternational Litigation Partners Pte Limited v Chameleon Mining NL (Receivers and Managers Appointed) & Ors. In doing so, the High Court will be directly examining the role of litigation funders in the Australian justice system for the third time in recent years.
The issue in this case is whether a litigation funding agreement constitutes a ‘financial product’ within the meaning of Chapter 7 of the Corporations Act 2001 (Cth), such that the funder is required to hold an Australian financial services licence (AFSL) unless exempted.
At the same time as the Chameleon Mining case has been progressing through the courts, regulatory reform in relation to litigation funding has been underway. On 27 July 2011, the Federal Government released an exposure draft of regulations which provide for litigation funding arrangements and those providing them to be exempted from various provisions of the Corporations Act, including Chapter 7, subject to having adequate arrangements for managing conflicts of interest.
Significant cases, legislation or articles referred to
- International Litigation Partners Pte Limited v Chameleon Mining NL (Receivers and Managers Appointed) & Ors  HCATrans 296  FCA 717
- Campbells Cash and Carry Pty Ltd v Fostif Pty Limited  HCA 41; (2006) 229 ALR 58; (2006) 80 ALJR 1441
- Jeffery & Katauskas Pty Limited v SST Consulting Pty Limited, Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Limited  HCA 43
- Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd  FCAFC 147
- Chameleon Mining NL v Murchison Metals Limited  FCA 1129
- Chameleon Mining NL v International Litigation Partners Pte Limited  NSWSC 972 at 9
- International Litigation Partners Pte Limited v Chameleon Mining NL  NSWCA 50