Common fund orders (CFOs) in class actions: Full Federal Court considers Brewster

In the NSW Court of Appeal's recent judgment in Brewster v BMW Australia Ltd [2020] NSWCA 272, the Court declined to answer a separate question as to whether the Court has power to make a common fund order (CFO) at a proceeding's settlement or judgment stage. However, it gave a clear indication that such a power may exist - in the right circumstances.

The Full Court of the Federal Court has now weighed in to address the same issue by way of a 'reserved question' in the 7-Eleven class action Davaria Pty Limited v 7-Eleven Stores Pty Ltd [2020] FCAFC 183 (per Lee J, Middleton and Moshinsky JJ concurring).

The Full Court has adopted a similar position to the NSW Court of Appeal by refusing to answer the reserved question, primarily due to the absence of a concrete settlement proposal being put before the Court. The Full Court also made express reference to the NSW Court of Appeal's judgment and the fact that comity considerations favoured the Full Court adopting the