Litigation funding—Australia—Q&A guide
Litigation funding—Australia—Q&A guide

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Litigation funding—Australia—Q&A guide
  • 1. Is third-party litigation funding permitted? Is it commonly used?
  • 2. Are there limits on the fees and interest funders can charge?
  • 3. Are there any specific legislative or regulatory provisions applicable to third-party litigation funding?
  • 4. Do specific professional or ethical rules apply to lawyers advising clients in relation to third-party litigation funding?
  • 5. Do any public bodies have any particular interest in or oversight over third-party litigation funding?
  • 6. May third-party funders insist on their choice of counsel?
  • 7. May funders attend or participate in hearings and settlement proceedings?
  • 8. Do funders have veto rights in respect of settlements?
  • 9. In what circumstances may a funder terminate funding?
  • More...

This Practice Note contains a jurisdiction-specific Q&A guide to litigation funding in Australia published as part of the Lexology Getting the Deal Through series by Law Business Research (published: January 2021).

Authors: Piper Alderman—Simon Morris; Martin del Gallego; Gordon Grieve; Greg Whyte

1. Is third-party litigation funding permitted? Is it commonly used?

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 maintenance 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

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