Published by the Victorian Law Reform Commission The Victorian Law Reform Commission was established under the Victorian Law Reform Commission Act 2000 as a central agency for developing law reform in Victoria. © Victorian Law Reform Commission 2018. This work is protected by the laws of copyright. Except for any uses permitted under the Copyright Act 1968 (Cth) or equivalent overseas legislation, no part of this work may be reproduced, in any matter or in any medium, without the written permission of the publisher. All rights reserved. This publication of the Victorian Law Reform Commission follows the Melbourne University Law Review Association Inc, Australian Guide to Legal Citation (3rd ed, 2010). This report reflects the law as at 16 February 2018. National Library of Australia Cataloguing-in-Publication entry Title: Access to Justice — Litigation Funding and Group Proceedings: Report / Victorian Law Reform Commission. ISBN: 9780994372475 Subjects: Costs (Law)—Victoria Class actions (Civil procedure)—Victoria—Costs Contingency fees—Victoria Justice, Administration of—Victoria—Evaluation. Ordered to be published Victorian Government Printer PP 382, Session 2014 –18 c h a i r The Hon. Philip Cummins AM c o m m i s s i o n e r s Liana Buchanan Helen Fatouros* Bruce Gardner PSM Dr Ian Hardingham QC His Honour David Jones AM*♦ Alison O’Brien* Gemma Varley PSM The Hon. Frank Vincent AO QC* * Commissioners working on this reference ♦ His Honour’s term of appointment to the Commission ended on 28 February 2018 c h i e f e x e c u t i v e o f f i c e r Merrin Mason r e f e r e n c e t e a m Lindy Smith (team leader) Madeleine Roberts (policy and research officer) Michelle Whyte (policy and research officer) c o v e r d e s i g n Letterbox t e x t l ay o u t GH2 design Printed on 100% recycled uncoated paper
ALR 121. 101 Submission 25 (IMF Bentham Ltd). See Bolitho v Banksia Securities Ltd (No 4) [2014] VSC 582 (26 November 2014). 102 [2.140] – [2.208]. 103 This is consistent with ASIC’s expectation that funders consider including in funding agreements an obligation for the lawyer to give priority to the plaintiff’s instructions over those of the funder: Australian Securities and Investments Commission, Regulatory Guide 248—Litigation Schemes and Proof of Debt Schemes: Managing Conflicts of Interest (April 2013) RG 248.59. 32 104 Submission 25 (IMF Bentham Ltd).
Appendix A: Submissions 1 Ashleigh Leake, Josephine Vernon, Bruce Efron 2 Professor Vicki Waye 3 Professor Julie-Anne Tarr 4 Chartered Accountants Australia and New Zealand 5 Andrew J Roman 6 Confidential 7 Litigation Lending 8 Dr Warren Mundy Professor Simone Degeling, Associate Professor Michael Legg, Dr James Metzger 10 Victorian Legal Services Board and Commissioner 11 Litigation Funding Solutions 12 Allens 13 Maurice Blackburn Lawyers 14 Litigation Capital Management Limited (LCM) 15 Phi Finney McDonald 16 National Union of Workers 17 Adley Burstyner 18 Adley Burstyner (supplementary submission) 19 US Chamber Institute for Legal Reform 20 Johnson and Johnson Family of Companies; Smith and Nephew; Stryker; and Zimmer- Biomet (Healthcare companies and businesses) 21 Law Council of Australia 22 Dr Michael Duffy 23 Australian Shareholders’ Association 24 Consumer Action Law Centre 25 IMF Bentham Limited 26 Australian Institute of Company Directors 27 Ashurst 28 Slater and Gordon Lawyers 29 Insurance Council of Australia 30 Supreme Court of Victoria 31 David Kanaley 32 Keith and Mary Stone 33 Victorian Bar 34 Commercial Bar Association of Victoria 35 Professor Vince Morabito 36 Joshua Levenda-Freeman 156
Bibliography 160 Allens Linklaters, 25 Years of Class Actions: Where Are We Up To and Where Are We Headed? <https://> Attorney-General (Vic), ‘Making Civil Justice Fairer for Victorians’ (Media Release, 16 January 2017) Attorney-General’s Department (Cth), A Strategic Framework for Access to Justice in the Federal Civil Justice System (September 2009) Attrill, Wayne, ‘The Regulation of Conflicts of Interest in Australian Litigation Funding’ (2013) 2 Journal of Civil Law Procedure 193 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) Australian Securities and Investments Commission, Litigation Schemes and Proof of Debt Schemes: Managing Conflicts of Interest, Regulatory Guide No 248 (April 2013) Betts, Jason, David Taylor and Christine Tran, ‘Litigation Funding for Class Actions’ in Damian Grave and Helen Mould (eds), 25 Years of Class Actions in Australia: 1992–2017 (Ross Parsons Centre of Commercial, Corporate and Taxation Law, 2017) 205 Butler, Ben, ‘Victims Get Nothing as Litigation Funder, Lawyers Share the Spoils’, The Australian, 22 August 2016 Campbell, Jenny and Jerome Entwisle, ‘The Australian Shareholder Class Action Experience: Are We Approaching a Tipping Point?’ (2017) 36 Civil Justice Quarterly 177 Caruana, Jane and Vince Morabito, ‘Turning the Spotlight on Class Representatives: Empirical Insights from Down Under’ (2012) 30 Windsor Yearbook of Access to Justice 1 Cashman, Peter, Class Action Law and Practice (The Federation Press, 2007) Coffee Jr, John C, Entrepreneurial Litigation: its Rise, Fall, and Future (Harvard University Press, 2015) - ‘The Globalization of Entrepreneurial Litigation: Law, Culture and Incentives’(2017) 165 University of Pennsylvania Law Review 1895 Consumer Affairs Australia and New Zealand, Australian Consumer Law Review, Final Report (2017) Degeling, Simon and Michael Legg, ‘Fiduciary Obligations of Lawyers in Australian Class Actions: Conflicts Between Duties’ (2014) 37 University of New South Wales Law Journal 914 Dolor, Sol, ‘Vic AG Launches Review of Litigation Funder Rules’, Australasian Lawyer (online),