Judicial powers

Brewster v BMW Australia Ltd [2019] NSWCA 35

In a class action for faulty airbags in BMWs, a ‘common fund’ order was made that 25% of any proceeds be paid in priority to the litigation funder.  Section 183 said that the court may ‘make any order that the Court thinks appropriate or necessary to ensure that justice is done in the proceedings’7

BMW said the order was beyond power for principle of legality8 and other reasons.  In rejecting all these arguments, the court (at [56-57]) emphasised the principle that judicial powers are not to be read narrowly ‘nor confined by fine distinctions’9.  The ‘common fund’ order made was also consistent with the legislative scheme in question.

This case is from Episode 48 of interpretationNOW!


7 s 183 of the Civil Procedure Act 2005 (NSW).

8 cf Lee [2013] HCA 39 (at [314]), Basten JA in Meagher & Groves (eds) 74 (at 91).

9 Shin Kobe Maru [1994] HCA 54 (at [29]), Hall [2009] NSWCA 64 (at [54]).