The Full Federal Court has answered a question vexing the court for the past four years, ruling that class action judges have the power to make common fund orders at settlement that allow litigation funders to reap a percentage commission beyond their contractual entitlement.
The Full Federal Court’s finding that the High Court did not extinguish the power of judges to make common fund orders on approval of class action settlements is the latest milestone in the evolution of Australian class action jurisprudence, experts say.
A judge has declined a union’s bid to throw out an employee class action against McDonald’s after the Full Federal Court confirmed that employee class actions are not precluded by the Fair Work Act.
With bated breath class action litigators and funders have waited for this day, when the Full Federal Court decides the question of power to make common fund orders at settlement. They aren’t the final arbiters, but the judges’ ruling may be no less important for that.