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The power to make common fund orders in class actions is a question before the High Court a second time, but the justices aren't likely to quell the conflict simmering in the courts below, at least until they have a concrete order before them.
Courts have power to order oral discovery of potential witnesses ahead of trial, according to the judge overseeing two 7-Eleven class actions by franchisees, but the cases against the convenience store giant were not the occasion to exercise the power, he said.
The lead plaintiffs in two class actions against 7-Eleven have appealed a decision rejecting the very first Federal Court application for oral discovery, which would have seen four former employees bound by confidentiality agreements give evidence.
A Federal Court judge overseeing two franchisee class actions against 7-Eleven has heard a landmark application for pre-trial oral discovery that could create another tool for lawyers to source evidence otherwise blocked by confidentiality agreements.
Convenience store chain 7-Eleven has asked the High Court to find courts do not have the power to make common fund orders at settlement or judgment in a class action, one year after the High Court ruled common fund orders could not be made in the early part of a representative proceeding.
The High Court majority's reasoning in the decision nixing common fund orders at an early stage of a class action leads "inexorably and inevitably" to the conclusion that there is no power to make such an order at any time in a proceeding, counsel for 7-Eleven has told an appeals court.
A contradictor appointed in two class actions against 7-Eleven will argue before the Full Federal Court that the court has power both in equity and under the Federal Court of Australia Act to make common fund orders in class actions on settlement or judgment.
The Full Federal Court will weigh in on whether common fund orders can be made at settlement in two class actions against 7-Eleven, with a hearing scheduled for the same day the NSW Court of Appeal will hear arguments on the unresolved issue.
A judge has ordered two class actions brought against 7-Eleven on behalf of franchisees to pay $3 million in security for costs as trial in the cases gets pushed to August next year.