Contradictors are commonly appointed to assist the court in determining whether to approve a class action settlement, there being no other party with an interest in, or inclination to, argue against the settlement. What steps can such a contradictor take in the proceeding? That is, are there limits inherent in the contradictor’s role that mean, like an amicus curiae, the contradictor cannot assert a positive case or (in the ordinary case) adduce evidence? These and many other questions are the subject of a recent decision by Dixon J.
The answer given by his Honour is that, by reason of various statutory provisions, most significantly section 33ZF of the Supreme Court Act, a court can clothe the contradictor with such powers and authorities as the court considers necessary so as to render proper assistance to the Court. One consequence of that ruling is that, unlike a more traditional amicus, a class-action contradictor may – if empowered by the Court – take all and any steps open to a party to the proceeding.
With closer invigilation of class action settlements and applications by funders for commission and costs, it may be expected that the role of contradictors will, at least on occasion, expand from merely putting submissions in opposition to the application, or to aspects of the deal, to a more active role in scrutinising the terms of the deal. That scrutiny may include how the terms of settlement came to be reached, how the deal has been communicated to group members and whether the terms of the proposed settlement and the actions taken by those who have acted for the group members are appropriate. In that connection, it can be expected that one area of particular focus for contradictors will be the costs of the plaintiff’s lawyers and the monetary entitlement of the litigation funder.