Troubles for million dollar claim against Gladstone Port
A CLASS action seeking more than $100 million from Gladstone Ports Corporation could come to a sudden halt - or set a precedent in Queensland law.
The issues in short
- The fishers (plaintiffs) are being funded by a third party company called Litigation Capital Management
- Gladstone Ports Corporation lawyers say this arrangement/contract is not lawful under common law dating back to 1600s
- Justice Graeme Crow, who is presiding over the matter, will decide if that tort law is still valid in Queensland
More than 150 seafood industry members from Queensland and NSW - from Bowen to Sydney - are seeking $100million-$150million from GPC, saying works carried out by the government-owned corporation in the Gladstone area about 2010 negatively impacted the water quality, fish health and fish numbers, which impacted the industry members' businesses.
GPC lawyers have raised concerns in court regarding the enforceability of the funding agreement between the plaintiffs and Litigation Capital Management.
A notice published earlier this year stated GPC believed the arrangement where LCM would receive a share of the compensation constituted "unlawful champerty".
Champerty is a 17th century legal restriction that precludes frivolous litigation, along with maintenance. It stops wealthy people financing others' lawsuits for a share of the lawsuit win.
The Supreme Court in Rockhampton heard an argument yesterday, brought by the plaintiffs, seeking the court's clarification on whether the legal restrictions of champerty and maintenance are any longer relevant in legal proceedings.
Lachlan Armstrong QC, representing the fishers and associated businesses, says those torts were deemed in a NSW court decision as being too old and too broad.
"Champerty and maintenance - to the extent that they have an impact on proceedings today - have no role that is not achieved more directly by other mechanisms available to the court, in particular, third party costs orders," he said.
Mr Armstrong said public policy was one such mechanism.
"The old torts today have no continued reason for existence. And when the reason for the law ceases, the law also ceases," he said.
If the court ruling is that the torts are still relevant, it would mean the litigation funding arrangement between LCM and the plaintiffs was void and the future of the claim would be in jeopardy.
"Without litigation funding, we wouldn't be able to continue with proceedings," Mr Armstrong said.
"This litigation (due to costs and complexity) is beyond the means of any normal human being or corporation."
Mr Armstrong outlined the agreement between the plaintiffs and LCM which would see the funder obtain 40 per cent at, the very highest, of an amount awarded by the court.
He said the litigation would cost up to $9.5million and a further $9.3million for appeals.
Mr Armstrong said LCM had obtained After the Event insurance - a form of legal expense insurance - for its own protection.
Chris Thompson of Law Essential, solicitor for many complainants, says this is a roll-on effect after a class action involving people affected by Brisbane floods had to be held in NSW because Queensland did not have a class action regime, which has since been put in place, but did not address the issues of the old torts.
He said the litigation funding was both crucial to the continued running of the claim and to the ability of the claimants to get due 'access to justice'.
About 20 complainants sat in on yesterday's proceedings, which are expected to finish today at lunchtime.
Mr Thompson said Glenmore Seafoods, Keppel Bay Seafoods and Stanage Bay professional fishers were involved in the class action along with Gladstone Fish Market owner Ted Whittingham and Urangan Fisheries owner Nick Schulz.