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High Court abolishes power to make common fund orders in class action proceedings

Summary: On 4 December 2019 the High Court delivered judgment on appeals from decisions of the New South Wales Court of Appeal and the Full Court of the Federal Court of Australia.

In doing so, the High Court determined that lower Courts do not have the power to make so–called “common fund orders” (CFO), a type of order which has (until now) been granted in class action proceedings, to rubber stamp litigation funding arrangements.

The decision represents a major departure from the status quo, which could have significant and widespread implications for litigation funding arrangements underpinning class actions (both current and future).

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