Access to Justice—Litigation Funding and Group Proceedings: Report (html)

3. Litigation funding and contingency fees

Introduction

3.1 While it is standard practice for litigation funders to be paid a percentage of the amount recovered if the claim is successful, lawyers are not permitted to charge on this basis. The practice is prohibited nationally, under state and territory legislation.^[1]

3.2 The Commission has been asked to report on whether removing the prohibition on law firms charging contingency fees would mitigate the issues presented by litigation funding (except in personal injury, criminal and family law matters and other areas in which contingency fees would be inappropriate). Three core issues have been identified, as discussed in Chapter 2: case selection, costs and client interests. They encapsulate the limitations of litigation funding as a means of providing access to justice, in the sense of enabling a person to use the legal system to enforce their rights, and ensuring a fair process and outcome.

3.3 There has been debate for many years about whether lawyers should be able to charge contingency fees, and it remains unresolved. It is a national issue—any changes should be introduced across all jurisdictions and be based on far broader considerations than the impact on the practice of litigation funding. However, responding to the terms of reference has provided an opportunity to consider the scope for market forces to improve access to justice, and the safeguards that would need to be put in place to avoid unintended consequences if the ban were lifted. The first part of this chapter sets out the Commission’s consideration of each of the three issues.

3.4 The second part of this chapter puts forward a reform proposal for lawyers to receive a percentage share of the proceeds of a class action, under a common fund order made by the Court and subject to conditions that address concerns about costs and conflict of interest when contingency fees are charged. It would provide a means of reducing the costs and risks to representative plaintiffs in class actions that do not involve a litigation funder, in confined and controlled circumstances, without lifting the general ban on contingency fees.

Whether lifting the ban on contingency fees would mitigate issues with litigation funding practices

3.5 To mitigate issues with litigation funding practices, lifting the ban on lawyers being able to charge contingency fees would need to:

• expand the availability of funding to cases that are uneconomic for litigation funders to support

• reduce costs to plaintiffs

• ensure that client interests are not sidelined in favour of the funder’s financial interests.

3.6 In theory, enabling lawyers to charge contingency fees would foster competition to fund the types of claim that litigation funders currently invest in, and make funding available to claims that do not presently attract funding. Stakeholders acknowledge that there would be greater competition, but disagree about how much, in which part of the market, and with what consequences.

Case selection

3.7 The first issue is whether lifting the ban would broaden the range of meritorious cases that attract funding. Would permitting lawyers to charge contingency fees enable greater access to justice generally by making funding available for small claims, or by broadening the types of claim that are brought as class actions?

3.8 Many submissions advanced the view that lifting the ban would lead to a wider range of cases being funded, although they identified a variety of reasons for this and drew different conclusions about whether or not it would be desirable.

Smaller claims

3.9 It is widely thought that lifting the ban would result in smaller and lower-value claims being funded. This prospect was welcomed by stakeholders who supported the introduction of contingency fees.

• Maurice Blackburn argued in its submission that lifting the ban would increase market competition and put downward pressure on the costs of litigation. Cases that would not be funded by a litigation funder in the current market could proceed largely because they would not need to generate the high returns that litigation funders usually require.^[2]

• Slater and Gordon suggested that law firms would be more willing to bear the risk of prosecuting lower-value claims if exposure to the risk could be spread across a number of differently funded cases, including cases for which contingency fees are charged but also cases that are charged on a ‘no win, no fee’ basis or financed by a litigation funder.^[3]

• Warren Mundy also considered it likely that many small and isolated litigants who are currently overlooked due to the economies of scale inherent in the businesses of litigation funders could proceed if the ban were lifted. He suggested this would especially occur if legal practices were able to specialise and build up a client portfolio that diversified the firm’s risk exposure without needing recourse to the capital required by third-party funders.^[4]

• The Consumer Action Law Centre endorsed the recommendations of the Productivity Commission, which found that lifting the ban would provide access to justice for people who do not qualify for free or low-cost legal assistance services but cannot afford a private lawyer (known as the ‘missing middle’).^[5]

• The Australian Shareholders’ Association said that lifting the ban would allow smaller-scale class actions of merit to be tested.^[6]

3.10 Maurice Blackburn operates a litigation funding business, Claims Funding Australia Pty Ltd, that funds other law firms in general commercial litigation. It routinely sees cases which are uneconomic to fund or would be run more favourably to clients under a contingency fee basis. The following is an example of how contingency fees would enable smaller claims to be pursued:

Consider a case for a small business claiming $2 million with a litigation budget of $250,000. If the small business cannot afford to pay the legal fees (and many could not) then no matter how meritorious the claim, it is unlikely under current legislative restrictions that it will be run: litigation funding is unlikely to be available (and if it is, it will likely see more than half the recovered sum paid in legal fees and commission) and experience suggests a case like this is unlikely to be run on a conditional fee basis. However, the case could be run on a 25% or 30% contingency fee.^[7]

3.11 Not all submissions welcomed the prospect of a greater number of lower-value claims being funded. The US Chamber Institute for Legal Reform warned that lifting the ban would open the Australian legal system to some of the excesses experienced in the United States:

Many small firms will, for the first time, have the opportunity to ‘take a punt’—not just for their normal fee plus an uplift but rather for what some will see as a significant windfall profit. However, as Associate Professor Michael Legg and his colleagues have observed in the context of the class action market, an increase in the overall number of claims is likely to see a reduction in the quality and merit of new claims. In other words, more marginal claims are likely to be accepted and commenced. … even in Australia with the risk of an adverse costs order, there would likely be an increase in unmeritorious claims with the introduction of contingency fees, as there is in the United States, because most cases settle.^[8]

3.12 Comparisons with jurisdictions that have experience with contingency fees are instructive in identifying possible unwanted consequences, even though they are poor predictors of what will happen in Australia in different circumstances and at a different time. The Commission notes the concern that lifting the ban could encourage unmeritorious litigation, as has occurred in the United States, but considers the risk to be manageable. This is in part due to the operation of the costs-shifting rule in Australia, which, by requiring an unsuccessful party to pay adverse costs, acts as a disincentive to commencing unmeritorious litigation.

3.13 The introduction of contingency fees for legal services in Canada, where the costs-shifting rule applies, does not appear to have replicated the experience of the United States. Jasminka Kalajdzik, an Associate Professor at the University of Windsor and a co-leader of a current project by the Law Commission of Ontario on class actions, has conducted research into the factors that determined the selection decisions of members of the class action plaintiff bar in Canada. The results show that the risk of adverse costs acts as a disincentive to lawyers commencing unmeritorious litigation.^[9]

3.14 A different approach has been taken in England and Wales, where lawyers have been permitted to charge contingency fees, or damages-based agreements (DBAs), for litigation and arbitration proceedings since 1 April 2013. The introduction of DBAs was part of a package of reforms to control costs and promote access to justice. Contingency fees may be charged in all areas of litigation, including personal injury claims, subject to different caps. However they may not be charged in the class action procedures introduced in October 2015 for competition law claims.^[10] This exception was intended to reduce the risk that the opt-out nature of class actions would give rise to a ‘litigation culture’.^[11] The DBA regulations do not specify whether lawyers who charge contingency fees are liable for any adverse costs.^[12] There has been limited uptake of DBAs in litigation, possibly due to the nature and complexity of the regulatory controls and the impact of costs-shifting.^[13]

Higher value claims

3.15 Allens predicted that, rather than funding more lower-value claims, lifting the ban would increase competition for the high-value/lower-risk claims that are already well serviced by litigation funders or lawyers charging on a ‘no win, no fee’ basis. This was expected because they would apply the same selection criteria as litigation funders.

3.16 The increased competition could drive down the fee charged for funding those types of claim, but not direct funding to new areas.

the areas of the greatest unmet legal need of which we are aware are clients using homeless persons’ legal clinics, people with mental illnesses, impecunious litigants and remote Aboriginal and Torres Strait Islander communities. The claims relating to these groups typically relate to consumer, government and housing matters which are less likely to result in large awards of damages.

In our view, lifting the prohibition on contingency fees is unlikely to address this unmet legal need. As contingency fees are charged by reference to the value of the claim, lawyers will likely replicate the commercial approach taken by third party litigation funders when selecting which cases to fund. Further, if the areas of unmet legal need identified above are not already assisted by lawyers acting pro bono or charging on a conditional fee basis, it is difficult to see how lawyers charging contingency fees would address this gap.^[14]

3.17 Similarly, IMF Bentham said that there is no evidence to show that lawyers charging contingency fees would fund a greater range of cases than litigation funders, including social justice cases.^[15]

Conclusion

3.18 It is possible that lifting the ban would affect the litigation funding market in all of the ways predicted. Large law firms that can raise the necessary capital could compete with litigation funders to fund high value claims; smaller law firms could pursue a greater number of lower value claims.

3.19 An increase in the availability of funding for lower-value claims would accelerate a trend that is already evident within the litigation funding industry. There is some confidence that litigation funders will fund a more diverse selection of claims, whether or not the ban on contingency fees is lifted. Slater and Gordon said that the present tendency of litigation funders to invest in shareholder and investor class actions is a product of the relative infancy of the class actions regime and acceptance of third-party litigation funding. It submitted that the trend towards diversification of the matters which attract funding will continue.^[16] IMF Bentham also maintained that the market is changing. It said that funders, and particularly some new entrants to the market, are increasingly looking at funding smaller claims.^[17]

3.20 Case selection decisions may also be affected by procedural decisions of the court. According to Phi Finney McDonald, a broader range of cases is likely to be funded in the future because of the rise of the common fund order, which removes the need to sign up class members to funding agreements. If the ban on contingency fees were lifted, common fund orders would offer the advantage of not requiring lawyers to secure retainers from a substantial proportion of class members individually.^[18]

3.21 Although the likely impact that lifting the ban would have on the number of unmeritorious claims needs to be considered, it appears to pose no greater risk than that arising from new litigation funders investing in smaller claims. Both the lawyers and the litigation funders would be making commercial decisions that limit potential losses. However, this is not to say that they would select the same cases. The fact that most

class actions in Victoria, including the largest, have been conducted without the support of a litigation funder, indicates that law firms are prepared to carry commercial risk to support meritorious claims that do not meet the selection criteria that litigation funders normally apply.

Costs

3.22 The second issue is whether lifting the ban would reduce the costs of bringing proceedings. Views differ on whether contingency fees would result in lower costs compared to current billing methods, and whether, if they were lower, the client would receive the same level of protection against the risks and upfront costs of the litigation.

Comparative costs

3.23 Simply removing the need to pay a third-party funder suggests that the costs would be less. The Australian Shareholders’ Association pointed out that lifting the ban could improve the returns to class members because the costs overall would be substantially lower than the combined costs of a third-party funder and lawyer.^[19]

3.24 This view is supported by analysis conducted by Maurice Blackburn. Maurice Blackburn has compared the distribution of the total settlement amount of the 14 funded class actions it has settled since 2006, with the likely outcome if a funder had not been involved and the firm had been able to charge a contingency fee. Whereas 60 per cent of the total settlement amount in these cases was returned to the claimants, 75 per cent would have been returned if a contingency fee of 25 per cent had been charged.^[20]

3.25 The outcome of these cases is similar to results reported by IMF Bentham. The cases funded by IMF Bentham have returned approximately 62 per cent of the settlement value to the claimants, after a share of 38 per cent was paid in legal and funding costs.^[21]

3.26 Maurice Blackburn and IMF Bentham act in larger cases where there are economies of scale. In smaller settlements, the proportion allocated for costs and funding charges is generally higher and the return to the claimants lower.^[22]

3.27 Based on the calculations by Maurice Blackburn, clients would be better off than under existing third-party litigation funding arrangements if the contingency fee is less than 37 per cent. However, a comparison with current costs when a litigation funder is not involved may not be as favourable: contingency fees could be greater than what is presently charged through time-based billing alone.^[23] In these cases, the clients would be worse off than now.

3.28 Current billing methods are likely to be retained if they would result in a higher payment to the law firm than a contingency fee. Lawyers in England and Wales have been able to charge contingency fees since 2013 but there is little evidence they are doing so. It appears that contingency fees are charged only where there is a clear financial advantage for lawyers equal to the risk taken. Otherwise, the clients are charged another way.^[24]

3.29 The extent to which charging a contingency fee would increase or decrease the costs to the client in a particular case, compared to existing cost arrangements, would depend on the terms of the costs agreement. Slater and Gordon noted that the fee could be stepped:

In light of the value placed on flexibility and innovation within the legal services sector, we would not expect that the introduction of a contingency fee regime would automatically lead to a simplistic ‘flat-fee’ approach that may give rise to the risk of ‘windfall fees’. As is common in other existing forms of legal costs agreements, we would expect that in many cases a staged or stepped model to rates would be adopted—for instance, a low rate if a matter resolves prior to trial, a moderate rate if it resolves during trial, and a higher rate if a case is required to be taken to appellate stages.^[25]

Comparative risk

3.30 When comparing contingency fees charged by lawyers and funding fees charged by litigation funders, it is important that they cover the same risks. Currently, lawyers who act on a ‘no win, no fee’ basis bear the risk of not being paid for their legal work, but the client remains liable for all other costs in the event of an unsuccessful outcome. This risk is reflected in the uplift fee that lawyers can charge in addition to the fees for the work performed if the litigation is successful. To match the standard risk coverage that litigation funders provide, law firms charging contingency fees would also need to cover the client for any security for costs order and, if the litigation is unsuccessful, for disbursements and adverse costs.

3.31 This appears to have been provided for in the comparative analysis by Maurice Blackburn, which compared a single deduction for ‘funding charges and legal costs’ with a single contingency fee of 25 per cent.^[26] However, while a large firm such as Maurice Blackburn could match the risk coverage that litigation funders provide, smaller firms would be unable to do so.

3.32 For this reason, IMF Bentham argued that lifting the ban on contingency fees would not reduce costs, adding that too much pressure to do so could cause litigation funders to withdraw from the market:

there are very few law firms that would have the capital and risk appetite to fund class actions, including disbursements and provide adverse costs cover. It is likely that law firms will still look to third party litigation funders to help finance some of the proceedings and/or costs cover. There is also a risk that any changes that put too much downward pressure on funding fees could end up causing less competition in the litigation funding market if funders’ return on investment became too low to absorb the risks they are required to undertake, particularly adverse costs risks.^[27]

3.33 Litigation Capital Management said that the cost of litigation funding is unlikely to be mitigated because funding fees are not determined by the level of competition.

Funding Costs charged by funders are a reflection of the considerable risks and costs involved in financing a third party’s litigation.

Despite there being significant competition in the litigation funding market, the funding fees offered by Australian litigation funders are not greatly varied, and LCM submits that over the life of the litigation funding industry, the economics of funding have driven funders’ pricing to their present rates.… it’s unrealistic to expect that the lawyers’ financial considerations would not drive their contingency fee rates into a similar range to that of litigation funding commissions.

Consequently, LCM submits that it is ‘far from given’ that lifting the ban would mitigate the cost of litigation funding.^[28]

3.34 These observations by litigation funders underscore the fact that the rate charged for a contingency fee, like that charged for litigation funding fee, is a commercial decision. Decisions of this type can assist in achieving public interest goals but may need to be harnessed to them by regulation. Many submissions suggested control measures that could be put in place if the ban were lifted. They are discussed later in this chapter at [3.77]–[3.93].

Conclusion

3.35 Whether lifting the ban on contingency fees would reduce the costs to litigants would depend on the size of the law firm and the size of the claim. A law firm that has access to the considerable amount of capital required could compete with litigation funders to invest in large commercial claims and high value class actions. Even if the contingency fee it charged were no less than the funding fee of its competitors, the cost to the client would be lower because there would be only a single deduction from the settlement amount. In proceedings funded by a litigation funder, the client is charged for legal costs in addition to the funding fee. For Victoria’s class action regime, where litigation funders infrequently participate, the impact of greater competition at this end of the market would be less than in class actions at the federal level.

3.36 The potential impact on smaller claims is unclear. The primary benefit of lifting the ban is that it would provide a funding option that enables pursuit of claims that are not suitable for litigation funding or charging on a ‘no win, no fee’ basis. However, law firms would not confine the claims for which contingency fees are charged to those within this category. It is reasonable to expect contingency fees to be charged for some types of claim that previously would have been pursued, at less cost to the client, on a ‘no win, no fee’ basis.

3.37 For the client, the payment of a contingency fee should provide the same or similar protection from the financial risks and cost burdens of pursuing the claim as is currently provided by litigation funders. Moreover, the overall costs to the client should not increase as a result. These requirements indicate that any introduction of contingency fees for legal services would need to be carefully regulated.

Client interests

3.38 The third issue concerns the risk that the financial interests of the funder will prevail over those of the plaintiff in decisions about the way in which the litigation is conducted and resolved. If lawyers were also permitted to charge a fee that is determined by the financial outcome of the litigation, the risk would shift to them. The question for consideration is whether lawyers charging a contingency fee would manage the risk as effectively as, or better than, litigation funders.

3.39 The comments made in submissions and during consultations put forward arguments about the possible impact of the ban on the independence of lawyers and their ability to manage the conflict between their interests and those of their clients.

The independence of lawyers

3.40 The prohibition on lawyers being able to charge contingency fees arises from the need to avoid perverse incentives. Lawyers have fundamental duties, first to the court and the administration of justice, and, secondly, to their clients. Their ethical and professional obligations pervade all aspects of the legal services they provide. Stakeholders argued that lifting the ban on contingency fees could potentially compromise the independence of lawyers and fundamentally change their relationship with their clients, because the lawyer would have a direct financial interest in the outcome.^[29]

3.41 Several submissions contended that not only would the conflict of interest issues that arise when a litigation funder is involved in litigation shift to lawyers who charge contingency fees, the issues would get worse.^[30] The Victorian Legal Services Board and Commissioner expressed concern that lawyers would be unable to manage the risk:

In the class action context, allowing lawyers to charge contingency fees does not remove the conflict of interest inherent in accessing a separate litigation funder, it only shifts the conflict directly onto the shoulders of the lawyer, a burden that in our view will be too much to bear for some.^[31]

3.42 The Victorian Legal Services Board and Commissioner indicated that some lawyers would be less inclined to act in family law, criminal and personal injury matters, for which contingency fees could not be charged.^[32] Comments from the healthcare sector raised the possibility that lifting of the ban on contingency fees would lead to predatory and harmful advertising, where lawyers deliberately focus on a person’s concern about their health and that of family and friends to generate business.^[33]

3.43 It was further suggested that the change to the power balance between lawyers and clients if the lawyer were also the financier would weaken the client’s ability to negotiate the fee and could lead to an increase in unmeritorious litigation.^[34] The lawyer would have complete control over the litigation due to the asymmetry of information.^[35]

3.44 This unequal balance of power and information was contrasted with the relationship that currently arises between the litigation funder, lawyer and client in funded class actions. Although the tripartite structure itself creates conflicts of interest, it is a means of providing checks and balances, sharing power and ensuring that conflicts of interest are managed.^[36]

3.45 Allens argued that lifting the ban would threaten the balance that the High Court sought to achieve in Campbell’s Cash and Carry Pty Ltd v Fostif Pty Ltd^[37] when it permitted third-party litigation funding because the independent lawyer was a bulwark for the client against the funder’s commercial interests.^[38] Litigation Capital Management said that it is impossible to see how the conflict issues that arise in a tripartite funding arrangement could be mitigated by merging the interests of two of the three parties:^[39]

in practice, the separation between the funder and the lawyers, the funder’s limited ability to take steps without the lawyers’ involvement and the litigant’s approval, and the lawyers’ overriding duty to act in the interest of the litigant, all serve as effective safeguards for that litigant’s interests.

Presently, the lawyers can advise a litigant to take a course that may be contrary to the interests of the funder. However, if the lawyers are the funder, they will be constantly faced with decisions on how and when to disclose specific conflicts to clients, and how and when to advise clients against the lawyers’ own interests. The resulting minefield is unlikely to be entirely transparent and cannot be said to mitigate any issue said to be presented by the practice of litigation funding.^[40]

Ability to manage conflicts of interest

3.46 Supporters of lifting the ban on contingency fees argued that it would not fundamentally change the relationship between lawyers and their clients. Managing conflict of interest issues that arise would be well within the experience and competence of lawyers.

3.47 Charging a contingency fee has elements in common with the existing practice of charging on a ‘no win, no fee’ basis. In both instances lawyers have a financial interest in the outcome of litigation and could be placed in a position of conflict.^[41] The extent to which lawyers already have a significant financial interest in both funded and unfunded litigation was explained in the submission from Simone Degeling, Michael Legg and James Metzger:

Lawyers acting without litigation funding will typically act on a conditional fee basis, giving them a keen interest in the outcome. Indeed, with an uplift fee they have a clear interest in increasing the work they undertake. Where lawyers are paid by a litigation funder, so that they are not exposed to the risk of no recovery if the claim is unsuccessful, this still involves the lawyers investing their time and resources in the class action in the hope that they can carry out the necessary work so as to earn a fee. Moreover, even when the lawyers are being paid on a time basis by a funder, they may receive a success fee, or agree to part of their fee being held back until a successful outcome is achieved.^[42]

3.48 It is possible that lifting the ban would align the interests of lawyers and their clients. Billing for work performed carries an inherent conflict of interest because the lawyers stand to benefit from maximising the number of hours worked. When a contingency fee is charged, there is an incentive to resolve the litigation without inefficiencies and avoidable delays.^[43]

3.49 Finally, Slater and Gordon argued that if lifting the ban were to intensify conflicts of interest, the combination of lawyers’ professional and fiduciary obligations and the existing regulatory regime provides appropriate safeguards against abuse or undesirable outcomes. Widespread problems have not emerged in the management of conflicts of interest when legal costs have been charged on a ‘no win, no fee’ basis. The Victorian Legal Services Board and Commissioner noted that there have been very few complaints about ‘no win, no fee’ arrangements and expressed the view that these arrangements operate well, providing ‘substantial access to justice for many consumers of legal services in a manner that is proportionate and reasonable’.^[44]

Conclusion

3.50 Lifting the ban on contingency fees would not mitigate the conflict of interest issues arising from the practices of litigation funding. It would shift the burden of managing them to lawyers who charge contingency fees. In doing so, it would not relieve litigation funders of their need to manage conflicts of interest; nor would it cause the demise of the tripartite relationship in funded proceedings.

3.51 The Commission is not persuaded that there would be a fundamental change to the lawyer/client relationship if the ban were lifted. Charging contingency fees would be only one option among other billing methods. Among those methods is the ability to charge on a ‘no win, no fee’ basis, which already gives lawyers a financial interest, sometimes very significant, in the outcome of the litigation.

3.52 Concerns about the imbalance of power and information as between the lawyer and client, in the absence of a litigation funder, are valid but also would not be unique to circumstances where contingency fees are charged. The imbalance is the foundation of the lawyer’s fiduciary duty to their client, which flows through the legal and ethical obligations of the legal profession. In contrast, the Commission notes that litigation funders tend to contract out of any fiduciary duty they may have to their clients.

3.53 While lifting the ban might not introduce new conflicts of interest for lawyers, it would intensify the risks. The financial incentives presented by charging contingency fees would be stronger than the prospect of receiving an uplift fee under a ‘no win, no fee’ arrangement if the litigation is successful. The risks borne by the lawyers in the event of an unfavourable outcome would be greater as well.

3.54 The existing rules and guidelines for the legal profession in managing conflicts of interest are comprehensive and more robust than those that apply to litigation funders. Nevertheless, any decision to lift the ban on contingency fees should impose limits, such as on the types of litigation for which contingency fees may be charged.

3.55 Although the professional obligations on lawyers discourage them from being excessively entrepreneurial, it is appropriate that legislation establishes boundaries specifically to protect clients from excessive legal costs or unfair contractual arrangements. This would seek to ensure that the onus is on lawyers not to cross the line, rather than on the client to seek redress when they do.

Response to the terms of reference question

3.56 Removing the prohibition on lawyers charging contingency fees might mitigate issues that arise with litigation funding practices but would not necessarily be a solution to access to justice and costs issues. The pressure of competition could reduce the costs in large commercial claims and class actions, although not many law firms would have access to sufficient capital to carry the risks of financing litigation at this end of the market. Claims that are too small or risky to be a viable investment for a litigation funder, and where the claimant is unable or unwilling to carry the risk of losing (even if reduced by a law firm charging on a ‘no win, no fee’ basis), may be able to be pursued.

3.57 The conflicts of interest that exist when a third party is involved in litigation would not be reduced. Rather, lifting the ban on contingency fees would intensify the risk that the lawyer’s financial interest in the outcome of litigation will prevail over their duty to their client. However, lawyers are experienced in managing conflicts of interest and, compared to litigation funders, are subject to more extensive rules and obligations and stronger accountability mechanisms.

3.58 The likely impact of lifting the ban on lawyers charging contingency fees is uncertain because it would shift the basis on which commercial decisions are made in a changing market. The combination of the ban, the costs-shifting rule and the relatively rare use of ‘after the event’ insurance has facilitated the growth of the litigation funding industry in Australia.^[45] Lifting the ban would affect the other two features of the legal landscape within which lawyers, litigation funders and insurers make commercial decisions.

3.59 While the result could improve access to justice and reduce costs, there is a need to ensure that the community, and the legal system, are protected against the potential downside. For example, the cost of litigation could increase overall if contingency fees became the default billing method; vulnerable people could be drawn into pursuing low-value claims for a minor share of any recovered amount; clients who are charged a contingency fee, on the basis that it transfers the financial risk to the lawyer, could also be charged for ‘after the event’ insurance that in practice transferred some or all of the risk to an insurer.

3.60 Problems such as these may not emerge, but whether they will should not be left in doubt if access to justice may be impeded. Where existing regulation does not provide adequate protection, further regulation should be introduced.

3.61 The Commission considers that the mitigation of issues with litigation funding practices is not, of itself, a sufficient reason to remove the prohibition on lawyers being able to charge contingency fees. The market is still small and litigation funders are likely to keep expanding and changing the services they provide and how they are delivered. Unmet demand for financial assistance in pursuing low-value claims is not the result of litigation funding practices.

3.62 The policy response to the unmet demand needs to be developed in a wider context and have broader goals. Lifting the ban on contingency fees could be part of that comprehensive policy response, as most recently recommended by the Productivity Commission following its wide-ranging review of access to justice arrangements. The regulatory controls introduced in this context would focus on the impact on the community and the justice system generally.

3.63 The need for regulatory controls should not prevent the ban being lifted. As a matter of principle, the Commission considers that lawyers should be able to charge contingency fees because it would provide another funding option for clients who are unable to bring proceedings without financial assistance. In the next section, the Commission recommends that lawyers be able to apply to the court to receive a percentage share of any recovered amount, subject to conditions. Victoria could introduce this reform at its own pace, as it would be confined to class actions under part 4A of the Supreme Court Act 1986 (Vic). It would not remove the ban.

3.64 At the same time, the challenge of how to improve access to justice by permitting lawyers to charge contingency fees, with appropriate regulation, should continue to be pursued nationally. This could be achieved only with the coordinated leadership of law ministers, and an appropriate forum would be the Council of Attorneys-General, which operates under the auspices of the Council of Australian Governments.

3.65 The first task would be to develop an agreed strategy to draft model legislation for the Council’s consideration. This work could be undertaken, for example, jointly by Victoria and New South Wales in view of their shared regulation of the legal profession, or by the Commonwealth in connection with its response to the Productivity Commission’s recommendation on lifting the ban on contingency fees.

Recommendation

7 The Attorney-General should propose to the Council of Attorneys-General that the Council:

(a) agree, in principle, that legal practitioners should be permitted to charge contingency fees subject to exceptions and regulation

(b) agree to a strategy to introduce the reform, including the preparation of draft model legislation that regulates the conditions on which contingency fees may be charged and maintains the current ban in areas where contingency fees would be inappropriate.

The introduction of contingency fees in class actions

3.66 Independently of any decision to remove the prohibition on lawyers charging contingency fees nationally, there is scope to improve access to justice by permitting lawyers to be paid a contingency fee in class actions, subject to certain conditions being met and the supervision of the court.

3.67 Class actions are an appropriate forum for lawyers to absorb the risks of litigation and be rewarded for this, because the representative plaintiff has a disproportionate exposure to the financial risk of an unfavourable outcome, compared to both the value of their own claim and the exposure of other class members. The risk is a significant disincentive to taking on the role and is only partly mitigated when lawyers act on a ‘no win, no fee’ basis.

3.68 In addition, the court has a strong supervisory role in class actions, particularly at the settlement approval stage, which ensures that all class members’ interests are taken into account and includes the power to approve, and in some circumstances modify, contractually determined costs.^[46] The circumstances in which lawyers may be permitted a percentage share of any recovered amount can be controlled and contained.

3.69 A further reason to allow for contingency fees for lawyers in class actions is that it would introduce competition for litigation funders. As discussed above, costs to class members could be reduced by paying a single contingency fee to a law firm rather than a funding fee to a litigation funder plus legal costs. However, this is not a relevant consideration in Victoria because litigation funders tend not to participate in class actions in this jurisdiction.

3.70 Some guidance about the introduction and control of contingency fees in class actions may be found in Canadian experience. When the class action regime in Ontario was established, contingency fees were introduced to overcome the financial risks of losing a class action. Before then, contingency fees were prohibited. The ban on contingency fees in other areas of practice was subsequently lifted, except in family and criminal law matters (where the ban remains). However the distinction between class actions and other litigation continues to be recognised.

3.71 The Law Society of Ontario has been reviewing the operation of contingency fees since February 2016 and has recommended a series of reforms in litigation other than class actions. It chose not to review contingency fees in class actions because of the very different context in which they are charged, notably the judicial review of legal fees and related third-party funding.^[47] A contingency fee cannot be charged in a class action in Ontario without court approval, and it will cover all costs: legal costs, adverse costs risks and disbursements. Increasingly, judges in Canada prefer to determine the fee by reference to a percentage of the common fund.^[48]

3.72 While noting that the terms of reference specify that it would be inappropriate to permit contingency fees to be charged in personal injury matters, and agreeing that the ban should continue for individual personal injury claims, the Commission does not propose that personal injury claims should be excluded from the class actions for which contingency fees may be charged. To do so would prevent this funding option from being made available in meritorious mass tort class actions.

Common fund orders

3.73 The proposed mechanism by which contingency fees would be approved and supervised by the court in class actions in Australia is a common fund order. Common fund orders have been made by the Federal Court to allow litigation funding costs to be shared among all class members, including those who have not entered an agreement with the funder. The percentage amount that the funder receives is subject to approval or variation by the court. Common fund orders are discussed in Chapter 5.

3.74 The Commission proposes that the representative plaintiff be permitted to make an application to the court for a common fund for a ‘litigation services’ fee, whereby a court-approved fee is calculated as a percentage of any recovered amount and liability for payment is shared among all class members if the litigation is successful.^[49] The litigation services for which the fee is payable would include legal costs, disbursements and all costs in connection with indemnifying the representative plaintiff against adverse costs and responding to a security for costs order if necessary.

3.75 Generally, all class members already contribute to the payment of legal costs, whether or not they have entered a costs agreement with the lawyers. When an ‘all in’ settlement is reached (as opposed to when a separate amount for legal costs is negotiated), legal costs, calculated on the basis of the work done in support of the litigation, are deducted from the settlement amount before the class members receive their share.

3.76 The notion that contingency fees should be able to be charged in class actions, with the approval of the court in each case, was raised with the Commission by legal stakeholders and judges. The use of common fund orders for litigation funding costs in Federal Court class actions appears to have enlivened discussion about permitting contingency fees in a similar way.^[50] Michael Legg raised the possibility in 2015:

the adoption of a common fund approach for class actions does not have to coincide with the legalisation of contingency fees more generally. The class action is subject to close judicial management and requires court approval of key steps such as the provision of notices and approval of settlements. Extending that approach to lawyers and/or litigation funders’ fees would (a) facilitate the class action in achieving its original goals of access to justice and efficiency while (b) providing essential oversight of a key

component of the class action regime that impacts the compensation achieved for group members.^[51]

Conditions of approval

3.77 Approval of a common fund for a ‘litigation services’ fee would be subject to conditions that protect the representative plaintiff, and other class members, from excessive costs. In consulting about whether lifting the ban on contingency fees would mitigate issues with litigation funding practices, the Commission asked stakeholders to identify the measures that should be taken, if the ban were lifted, to ensure that the issues were in fact mitigated. There was a general agreement, from both supporters and opponents of lifting the ban, about what should be required. The most commonly suggested measures are summarised below.

Adverse costs and security for costs

3.78 A minimum requirement that lawyers who charge contingency fees should indemnify the representative plaintiff for adverse costs was widely identified. Litigation funders argued that the lawyers should be subject to the same potential liability to pay adverse costs as they are.^[52]

3.79 The US Chamber Institute for Legal Reform suggested a more flexible approach, in which the lawyer would be required either to indemnify the clients against any adverse costs or ensure that the client can meet any adverse costs order.^[53] As the aim of permitting lawyers to charge contingency fees in class actions would be to enable the representative plaintiff to overcome the barrier caused by adverse costs, the Commission considers that it should be mandatory that the lawyer provide this indemnity.

3.80 Maurice Blackburn stated in its submission that it would support, if necessary, a requirement that lawyers charging contingency fees should provide security for costs if ordered by the court.^[54] Security for costs is generally ordered in class actions involving a litigation funder and the Commission considers that lawyers should similarly relieve the representative plaintiff of this risk if they stand to receive a percentage share of the settlement or judgment amount.

3.81 In Chapter 5 the Commission recommends that the Court have an express statutory discretion to make a security for costs order or an order for adverse costs, taking into account, among other things, factors relevant to access to justice and the public interest.

Disbursements

3.82 The Commission considers that the contingency fee should cover the costs of disbursements. These can be significant amounts and including them in the fee would ensure that they are closely monitored and contained. As noted above, in comparing the costs of class actions funded by litigation funders to what the outcome would have been if they had been funded by lawyers on a contingency fee basis, Maurice Blackburn included the costs of disbursements within the contingency fee. This is the practice in Canada when contingency fees are charged.

3.83 If the litigation is successful, the other party is likely to contribute to the representative plaintiff’s costs of the proceedings (calculated on the basis of the work done, as at present). This contribution could be directed to the lawyers.

Court determination of fee

3.84 The role of the court in determining the amount of the contingency fee is crucial in controlling costs and the risks of conflicts of interest. As Simone Degeling, Michael Legg and James Metzger observed, ‘the main issue is not embracing contingency fees but instead the more difficult issue of how to ensure that fees are charged in an appropriate manner that is fair to both lawyer and client’.^[55] The court would need to consider whether a contingency fee is an appropriate billing method in the circumstances, and would have the discretion to refuse to approve an application on this basis.

3.85 As has been the practice with common fund applications in the Federal Court, the applicants would propose a percentage share, but this would be subject to review at a later stage of proceedings, most likely at settlement approval.^[56] Delaying determination of the fee until the size of the class is more certain protects against the lawyers obtaining a windfall profit if the size of the class grows beyond expectations.^[57]

3.86 Some submissions called for a cap on the amount of an award that could be retained by a lawyer, to ensure that a significant proportion of compensation awards are paid to class members. The Consumer Action Law Centre suggested that a cap is necessary because cost disclosure alone would be unlikely to prevent exploitation. Class members may not understand the information they are given, or may accept an unreasonably high percentage fee because they feel that they have no choice.^[58]

3.87 In proposing that the ban on contingency fees be lifted, the Productivity Commission recommended that the percentages should be capped on a sliding scale for retail clients, with no percentage restrictions for sophisticated clients.^[59] It did not recommend what the cap should be. Maurice Blackburn indicated that a cap of 30 to 35 per cent would be appropriate, reflecting its view that the introduction of contingency fees would reduce costs.^[60] Slater and Gordon suggested 35 to 40 per cent, noting that this would position contingency fees in direct competition with litigation funders.^[61]

3.88 The Commission considers that, as the court would determine the amount of the fee, a statutory cap is not necessary. It is preferable for the fee to be based on the features of the particular class action. If a statutory cap were imposed, lawyers would be likely to routinely seek the maximum amount, as they currently do when they act on a ‘no win, no fee’ basis and claim the full 25 per cent uplift. For similar reasons, the Commission does not consider that caps should be imposed on litigation funding fees.

Transparency

3.89 An advantage of charging a contingency fee is that it is simpler for class members to understand how the recovered amount will be apportioned and, as a result, might provide greater certainty about costs.^[62] This does not mean that there would be less need to be transparent about the terms of the contingency fee arrangement, the progress of the proceedings, and the likelihood of costs arising from the settlement distribution scheme. The Commission’s recommendations to improve clarity of communication with class members are discussed in Chapter 4.

3.90 The need for comprehensive disclosure requirements was raised as an important issue in submissions and discussions^[63] and was recognised by the Productivity Commission in its recommendation that the ban on contingency fees be lifted.^[64]

No other fees or costs of the proceeding

3.91 Stakeholders endorsed the recommendation of the Productivity Commission that lawyers not be permitted to charge other fees, in addition to the contingency fee, in connection with the proceedings.^[65] For example, they would be unable to charge an hourly rate for any services they provide in support of the litigation.

3.92 The Commission agrees and also considers that class members should not be charged any costs incurred by the lawyers to mitigate the financial risk of the litigation. For example, class members should not be required to pay for the premium on any ‘after the event’ insurance that the lawyers take out to cover the adverse costs risk.

3.93 However, settlement distribution costs would be payable separately, in accordance with the approved settlement distribution scheme. As there is no risk involved in the distribution process, legal costs incurred during settlement distribution would continue to be charged on the basis of the work completed. Chapter 5 contains recommendations to strengthen the Court’s ability to supervise these costs.

Common fund orders for litigation services in Victoria

3.94 Although regulated under state and territory legislation, the legal profession is progressively being brought under nationally consistent law. Lawyers in Victoria and New South Wales are regulated under the same Legal Profession Uniform Law. Clearly, a decision that would alter the regulation of the profession is not one for Victoria alone.

3.95 The provision concerning contingency fees in Victoria is section 183 of the Legal Profession Uniform Law, set out in full below. It does not directly prohibit lawyers from being paid a contingency fee. Rather, it prevents a law practice from entering a costs agreement under which a contingency fee is payable.

(1) A law practice must not enter into a costs agreement under which the amount payable to the law practice, or any part of that amount, is calculated by reference to the amount of any award or settlement or the value of any property that may be recovered in any proceedings to which the agreement relates.

Civil penalty: 100 penalty units.

(2) Subsection (1) does not apply to the extent that the costs agreement adopts an applicable fixed costs legislative provision.

(3) A contravention of subsection (1) by a law practice is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any principal of the law practice or any legal practitioner associate or foreign lawyer associate involved in the contravention.

3.96 The Commission considers that this provision does not prevent lawyers from being paid a contingency fee in class actions in the Supreme Court, subject to the conditions outlined above. This is because:

• The Court may make such orders as it thinks fit about how settlement money is distributed when approving a settlement.^[66]

• The ability to charge a ‘litigation services’ fee under a common fund order would not be dependent upon, or require class members to enter into, a legal costs agreement specifying a contingency fee. Rather, it would be determined by, and remain under the supervision of, the Court.

• Already in Victorian class actions, the payment of legal costs does not depend upon execution of a legal costs agreement. If an ‘all in’ settlement is reached, class members will generally contribute to legal costs whether or not they have signed a legal costs agreement.

• The legal costs agreement (executed by the representative plaintiff) would continue to provide for legal costs to be billed in accordance with the work performed. It would state that the amount that the lawyers would be paid would be subject to Court approval of an application for a ‘litigation services’ fee.

3.97 The Commission recommends that the Supreme Court Act be amended to provide the Court with the power to make a common fund order for the lawyers who are acting for the plaintiff to be paid a percentage of the recovered amount. Although the Commission does not consider it necessary to do so, the Legal Profession Uniform Law Application Act 2014 (Vic) could also be amended to put beyond doubt that the amendments to the Supreme Court Act are not inconsistent with the operation of the Legal Profession Uniform Law regarding contingency fees.

3.98 The class action regime in Victoria has proved to be an effective means of providing access to justice but appears to be underutilised. On average, only five proceedings have been filed each year.^[67] The Commission considers that permitting lawyers to receive a contingency fee, subject to the conditions discussed above, is a measured and contained means of ensuring that the class action regime in Victoria is meeting the objectives for which it was established.

Recommendation

8 Part 4A of the Supreme Court Act 1986 (Vic) should be amended to provide the Court with the power to order a common fund for a litigation services fee, on application by a representative plaintiff, whereby the fee is calculated as a percentage of any recovered amount and liability for payment is shared by all class members if the litigation is successful.

Approval of a common fund of this type should be subject to the following conditions, set out in legislation or the Supreme Court’s practice note on class actions, as appropriate:

(a) An application for the order would be sought from the Court at the commencement of proceedings.

(b) The percentage allocated for the fee would be indicated when the application is made but approved by the Court at an appropriate time, most likely at settlement approval.

(c) The litigation services for which the fee is charged should include: all services provided by the law firm; provision for security for costs if required; disbursements; and an indemnity for adverse costs.

1. In Victoria, the prohibition is contained in the Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 (Legal Profession Uniform Law) s 183. It prohibits a law practice from entering a legal costs agreement under which a contingency fee is payable.

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2. Submission 13 (Maurice Blackburn Lawyers).

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3. Submission 28 (Slater and Gordon Lawyers).

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4. Submission 8 (Dr Warren Mundy).

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5. Submission 24 (Consumer Action Law Centre).

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6. Submission 23 (Australian Shareholders’ Association).

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7. Submission 13 (Maurice Blackburn Lawyers).

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8. Submission 19 (US Chamber Institute for Legal Reform).

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9. Consultation 5 (Associate Professor Jasminka Kalajdzik). The research will be discussed in a book to be published by UBC Press in 2018: Class Actions in Canada—The Promise and Reality of Access to Justice.

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10. Competition Act 1998 (UK) s 47C(8).

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11. House of Commons Business Innovation and Skills Committee, Draft Consumer Rights Bill (2013) vol 1, 68.

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12. Civil Justice Council, The Damages-Based Agreements Reform Project: Drafting and Policy Issues (2015) 108–112.

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13. Peter Sharp and Morgan Lewis, UK Contingency Fees: A User’s Guide for the In-House Lawyer (January 2015) Financial Worldwide
    
    <http://www.financierworldwide.com>; James Delaney, Sharing the DBA Fee Risk (25 May 2017) <http://www.thelawyer.com>; Law Society of England and Wales, ‘Impact of the Jackson Reforms on Costs and Case Management’ (Paper prepared for Civil Justice Council Conference, 21 March 2014) 4; Civil Justice Council, The Law and Practicalities of ‘Before the Event’ (BTE) Insurance: An Informational Study (November 2017) 14. Proposals to amend the DBA regulations to clarify and extend the use of contingency fees were made in 2015 but have not been introduced: see Civil Justice Council, The Damages-Based Agreements Reform Project: Drafting and Policy Issues
    
    (August 2015).

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14. Submission 12 (Allens).

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15. Submission 25 (IMF Bentham Ltd).

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16. Submission 28 (Slater and Gordon Lawyers).

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17. Submission 25 (IMF Bentham Ltd).

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18. Submission 15 (Phi Finney McDonald).

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19. Submission 23 (Australian Shareholders’ Association).

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20. Submission 13 (Maurice Blackburn Lawyers).

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21. Submission 25 (IMF Bentham Ltd).

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22. Submission 13 (Maurice Blackburn Lawyers).

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23. For example, in Victorian Supreme Court personal injury cases in 2009 and 2010 with recoveries over $1 million dollars, legal fees equated to about 5% of the recovered amount: Submission 9 (Professor Simone Degeling, Associate Professor Michael Legg, Dr James Metzger). The terms of reference exclude personal injury cases from the litigation for which contingency fees could possibly be charged.

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24. John Peysner, ‘Impact of the Jackson Reforms on Costs and Case Management: Some Emerging Themes’ (Paper presented at the Civil Justice Council Conference, 21 March 2014) 6, 10. The reasons for the reluctance to charge contingency fees are unclear and may include confusion about regulation and the impact of costs shifting, and the conservatism of the legal profession. See also: Law Society of England and Wales, ‘Impact of the Jackson Reforms on Costs and Case Management’ (Paper prepared for the Civil Justice Council Conference,
    
    21 March 2014) 4.

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25. Submission 28 (Slater and Gordon Lawyers).

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26. Submission 13 (Maurice Blackburn Lawyers).

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27. Submission 25 (IMF Bentham Ltd).

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28. Submission 14 (LCM).

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29. See, eg, Submissions 11 (Litigation Funding Solutions), 25 (IMF Bentham Ltd), 27 (Ashurst).

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30. Submissions 25 (IMF Bentham Ltd), 20 (Healthcare companies and businesses).

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31. Submission 10 (Victorian Legal Services Board and Commissioner).

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32. Ibid.

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33. Submission 20 (Healthcare companies and businesses).

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34. Submission 27 (Ashurst).

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35. Submission 25 (IMF Bentham Ltd).

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36. Ibid; Submission 27 (Ashurst).

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37. (2006) 229 CLR 386.

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38. Submission 12 (Allens).

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39. Submission 14 (LCM).

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40. Ibid.

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41. Submissions 8 (Dr Warren Mundy), 28 (Slater and Gordon Lawyers).

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42. Submission 9 (Professor Simone Degeling, Associate Professor Michael Legg, Dr James Metzger).

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43. Submissions 8 (Dr Warren Mundy), 24 (Consumer Action Law Centre). Warren Mundy also suggested that resolving litigation more efficiently could reduce the demand on court resources.

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44. Submission 10 (Victorian Legal Services Board and Commissioner).

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45. Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72 (2014) vol 2, 601.

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46. As part of settlement approval, the Court may make such orders as it thinks fit with respect to the distribution of any money, including interest, paid under a settlement or paid into court: Supreme Court Act 1986 (Vic) s 33ZV(2). The Federal Court has indicated that under the equivalent section in the Commonwealth legislation it has the power, for example, to effectively modify ‘any contractual bargain dealing with the funding commission payable out of any settlement proceeds’ in the course of a settlement approval: Blairgowrie Trading Ltd v Allco Finance Group Ltd (rec and mgr apptd) (in liq) (No 3) (2017) 343 ALR 476, 504 (Beach J). See also Earglow Pty Ltd v Newcrest Mining Ltd [2016] FCA 1433 (28 November 2016) [133]–[134], [157] (Murphy J); Mitic v OZ Minerals Ltd (No 2) [2017] FCA 409 (21 April 2017) [26]–[31] (Middleton J).

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47. Law Society of Ontario, Seventh Report of the Advertising & Fee Arrangements Issues Working Group (November 2017) 12.
    
    <http:// www.lsuc.on.ca/advertising-fee-arrangements>.

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48. Consultation 5 (Associate Professor Jasminka Kalajdzic).

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49. In practice, an application would be made for the lawyers to be appointed the funder of the class action, and then orders would be sought that all class members are liable to pay the lawyer’s fee for legal services. The lawyer should not be required to have a costs agreement in place, to allow an open class.

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50. See, eg, Jason Betts, David Taylor and Christine Tran, ‘Litigation Funding for Class Actions’ in Damian Grave and Helen Mould (eds),
    
    25 Years of Class Actions in Australia: 1992–2017 (Ross Parsons Centre of Commercial, Corporate and Taxation Law, 2017) 205, 227.

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51. Michael Legg, ‘Contingency Fees—Antidote or Poison for Australian Civil Justice?’ (2015) 39 Australian Bar Review 244, 273. See also John Emmerig and Michael Legg, ‘Twenty Five Years of Australian Class Actions—Time for Reform’ (2017) 36 Civil Justice Quarterly 164, 172.

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52. Submissions 11 (Litigation Funding Solutions), 25 (IMF Bentham Ltd). Dr Michael Duffy also submitted that lawyers should indemnify clients for adverse costs: Submission 22.

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53. Submission 19 (US Chamber Institute for Legal Reform).

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54. Submission 13 (Maurice Blackburn Lawyers).

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55. Submission 9 (Professor Simone Degeling, Associate Professor Michael Legg, Dr James Metzger).

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56. In Money Max Int Pty Ltd v QBE Insurance Group Ltd (2016) 245 FCR 191, the Federal Court observed that it may not always be necessary or appropriate to decline to set the funding fee until settlement approval; it will depend on the circumstances: 195, 209, 221 (Murphy, Gleeson and Beach JJ).

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57. Submission 27 (Ashurst).

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58. Submission 24 (Consumer Action Law Centre).

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59. Submission 8 (Dr Warren Mundy); Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72 (2014) vol 2, 629; Recommendation 18.1.

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60. Submission 13 (Maurice Blackburn Lawyers).

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61. Submission 28 (Slater and Gordon Lawyers).

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62. Roundtable 5 (consumers and clients).

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63. See, eg, Submissions 8 (Dr Warren Mundy), 23 (Australian Shareholders’ Association).

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64. Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72 (2014) vol 2, 629; Recommendation 18.1.

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65. Submissions 8 (Dr Warren Mundy), 23 (Australian Shareholders’ Association). Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72 (2014) vol 2, 629; Recommendation 18.1.

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66. Supreme Court Act 1986 (Vic) s 33V(2). Outside settlement approval, the Court has the power to make any order it thinks appropriate or necessary to ensure that justice is done in the proceedings: Supreme Court Act 1986 (Vic) s 33ZF.

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67. Data provided by Vince Morabito, 2 June 2017.

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