Litigation Funding in Australia

Litigation funding has been argued to be an important development in Australian civil litigation that provides access to justice, allows for the spreading of the risk of complex litigation and can improve the efficiency of litigation by bringing commercial considerations to bear. Since the High Court decision in Campbells Cash and Carry Pty Limited v Fostif Pty Ltd (2006) 229 CLR 386, the Australian litigation funding industry has enjoyed significant growth. However, the operation and proper constraints on litigation funding remains a live issue with concerns that the relatively unregulated nature of the litigation funding market creates the possibility for harm to consumers and the abuse of court processes. This paper reviews the development of litigation funding in Australia and the proposals for its regulation, including the decision in Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd (2009) 180 FCR 11 where the Full Federal Court found that the litigation funding arrangements under consideration constituted a 'managed investment scheme' that was subject to the requirements of the Corporations Act 2001 (Cth).