The plaintiffs contended that the third party funding scheme should be considered in context, and that the question should be asked whether, on the whole, the transaction amounts to unlawful maintenance or champerty, or whether it should be viewed as enabling a claim of public importance to proceed and to ensure the constitutional guarantee of access to justice.

The Court held that it was well-settled law that third-party litigation funding agreement in return for a share of the proceeds where the third party had no independent or bona fide interest constituted an abuse of process.

The issue the court permitted this was; ‘Whether third party funding, provided during the course of proceedings (rather than at their outset) to support a plaintiff who is unable to progress a case of immense "public importance" is unlawful by reason of the rules on maintenance and champerty.’ The court held that the fact that the funding was provided during the course of the proceedings was not a relevant factor.

However, Denham CJ did consider that third party funding to support a plaintiff (where none of the exceptions apply) is unlawful by reason of the rules on champerty.

McKechnie J. dissented from the Judgment of Denham C.J and other concurring Justices stating that the court's effective termination of the Persona litigation by reference to maintenance and champerty was 'both highly disturbing and terribly disquieting' and resulted in an outcome that was 'manifestly troublesome troublesome from the perspective of giving effect to the constitutional right of access to courts'.