Post-Brewster jurisprudence - the future of the common fund doctrine

In December 2019, the High Court of Australia held, in BMW Australia Ltd v Brewster, that the making of common fund orders in the early stages of class action litigation was not authorised by the federal legislative class action regime and its New South Wales equivalent. These orders, which were endorsed by the Full Federal Court in October 2016, had increased both the interest of funders in Australian class actions and the types of class proceedings that they funded. This seminal judicial pronouncement has been reviewed closely by a number of federal trial judges, primarily with a view to answering the crucial practical question of whether Brewster prohibits the making of common fund orders when approving a settlement. The principal aim of this article is to explore this post-Brewster jurisprudence.