Date: Thu, 31 Aug 2006 15:11:38 +1000

From: Neil Foster

Subject: Maintenance and Champerty in the High Court of Australia

Dear Colleagues;

In Campbells Cash and Carry Pty Limited v Fostif Pty Limited; Australian Liquor Marketers Pty Limited v Berney [2006] HCA 41 (30 August 2006) the High Court holds that certain "class actions" for recovery of money "had and received", paid by Constitutional error, can be allowed to proceed. (This is the long-term consequence of the High Court's 1997 (!) decision holding that alcohol, petrol and tobacco taxes levied by the States for many years were invalid as contrary to s 90 of the Constitution.) A point of interest to those who enjoy consideration of archaic torts is the discussion of maintenance and champerty in the judgement of Gummow, Hayne & Crennan JJ [66]-[82], and the question whether, despite the abolition of the tort actions by the NSW Parliament in 1993 there remained any scope for a general doctrine.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

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