Your guide to the law and practice of litigation funding in Australia.
Third-party litigation funding is permitted in Australia. However, the environment is increasingly complex with a number of judicial and legislative developments in the year in review effecting the conduct of third-party litigation funding. The developments predominantly relate to third-party litigation funding of representative proceedings, with third-party litigation funding being subjected to a degree of scrutiny not previously seen.
Maintenance and champerty are obsolete as crimes at common law (Clyne v NSW Bar Association (1960) 104 CLR 186, 203) and main- tenance and champerty have been abolished as a crime and as a tort by legislation in New South Wales, South Australia, Victoria and the Australian Capital Territory. In Queensland, Western Australia, Tasmania and the Northern Territory, the torts of maintenance and champerty have not been abolished.
Notwithstanding legislation, it remains the position in all Australian jurisdictions that general principles of contract law, pursuant to which a contract may be treated as contrary to public policy or as otherwise illegal, are not disturbed. This means that a third-party litigation funding agreement could be set aside by an Australian court if it were found to be inconsistent with common law public policy considerations.
The guide covers the law and practice of litigation finance in 18 key jurisdictions and international arbitration and is an invaluable tool for anybody using or considering funding in any of the jurisdictions covered.
You can download the updated chapter covering Australia here.