A judgment handed down in the Federal Court this week requiring a litigation funder to provide security of costs is likely to have a significant impact on a number of other employment class action proceedings.

In granting security for costs against the UK litigation funder Augusta Ventures, Justice Michael Lee ruled that whilst section 570 of the Fair Work Act protects parties from the obligation to pay the other side's costs, it did not apply to litigation funders who make commercial profit from funding the litigation.

"Applications under the Fair Work Act are traditionally seen as a 'no cost jurisdiction', where parties must cover their own costs, commonly seen as an important protection of access to justice," said Paul O'Halloran, Colin Biggers & Paisley Employment and Safety Partner.

"In this case, Justice Lee has ruled that non-party funders who are using litigation to their perceived commercial advantage should not be afforded the same cost protections that would apply to an employee."

Justice Lee ordered UK-based Augusta Ventures, the litigation funder in the Chandler Macleod class action to pay more than $3 million in security for costs before proceeding.

This is the first time that security has been awarded directly against a litigation funder in Australia. This decision is likely to have major ramifications for a number of other employment class actions before the courts in Australia.

Michael Russell, head of the class action practice at Colin Biggers & Paisley, welcomed the decision.

"There are currently 10 other employment class actions that have been launched in the past two years alone, an unprecedented number - largely spurred by the historical success and enormous returns in investor class actions such as shareholder claims, and the investment attraction of the no costs jurisdiction of Fair Work claims," he said

"There is no doubt that the no costs jurisdiction has been attractive  to entrepreneurial litigation funders. It will be interesting to see how this decision impacts funding in Australia for potential employment class actions moving forward."

Colin Biggers & Paisley's Class Action defence practice has more than two decades of experience acting in various capacities in leading class action disputes in Australia - including current class action defence roles for Chandler Macleod, Dick Smith, Spotless, Fairview Architecture and RCR Tomlinson. 

For more information please contact Linda Branton on 02 8281 4594 or linda.branton@cbp.com.au.

About Colin Biggers & Paisley

Colin Biggers & Paisley was founded over a century ago. Today we are a legal practice with 69 partners and 480 employees. We are highly regarded for our expertise in construction, insurance, property, government, commercial litigation and dispute resolution, banking and finance, corporate and commercial, employment and safety, planning and environment, restructuring and insolvency, transport and logistics. We act for major corporations, financial institutions, insurance companies, government departments and individuals. We have both the capacity and the expertise to deliver on complex national and multinational projects.

Colin Biggers & Paisley is based in Brisbane, Melbourne and Sydney. Through our growing Middle East Practice and our affiliation with ADVOC Asia, ADVOC International, ADVOC Europe and ADVOC Latin America, we are able to offer access to quality legal advice around the globe.

We launched the Colin Biggers & Paisley Foundation in 2015, with a core focus on promoting and protecting the rights of women and children in Australia and abroad through an innovative mix of pro bono legal services, volunteering and charitable contributions.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2023.

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