The High Court has determined whether a Group Costs Order (GCO) made in the Victorian Supreme Court is relevant to an application to transfer proceedings to another jurisdiction (NSW).
s33ZDA of the Supreme Court Act 1986 (Vic) empowers the Victorian Supreme Court to make a GCO in a class action. A GCO is an order that the legal costs payable to the law practice representing the plaintiff and group members be calculated as a percentage of the amount of any award or settlement. NSW laws do not provide for GCOs.
In Bogan v The Estate of Smedley (Deceased) [2025] HCA 7 the court considered three questions: (1) whether the fact that a GCO had been made by the Victorian Court was relevant to the discretion to transfer proceedings to another court under s1337H(2) of the Corporations Act; (2) if the proceedings are transferred to the NSW Supreme Court, whether the GCO would remain in force and be capable of enforcement by the NSW Supreme Court; and (3) whether the proceedings should be transferred to the NSW Supreme Court. It was common ground that the NSW Supreme Court had no power to make a GCO.
The High Court (Gageler CJ, Gordon, Gleeson, Jagot and Beech Jones JJ and Edelman J writing separately) answered these questions: (1) “Yes”; (2) “No”; (3) “No”. Justice Steward answered the Questions (1) and (2) “No” and would have remitted Question 3 to the Victorian Court of Appeal.
Question 2 turned on the construction of s 1337P(2) of the Corporations Act, which requires a transferee court to deal with transferred proceedings “as if… the steps that had been taken for the purposes of the proceeding in the transferor court … or similar steps, had been taken in the transferee court”. The majority held that “the steps” to which s 1337P(2) apply “are limited to those of a nature that could have been taken in the transferee court had the transferred proceeding been originally instituted in the transferee court” and would not operate to give legal force to the GCO if transferred to the NSW Supreme Court: see at [64], [66]; see also at [98]-[99] (Edelman J).
In addressing Questions 1 and 3, the majority rejected a submission that in determining “the interests of justice” for the purpose of s 1337H(2), the transferor court is precluded from considering differences in the texts of State laws picked up and applied by s 79 of the Judiciary Act 1903 (Cth): see at [67] ff. Holding that the “interests of justice” include access to justice (see at [77], [85], [101], [109]), the majority held that, on the agreed facts, the Victorian Court of Appeal was correct to conclude that the GCO “weighed decisively against transfer being in the interests of justice given the considerable risk” that the group proceeding would not be able to continue in the absence of the GCO: [78]; [114]-[115].
Justin Gleeson SC, Sebastian Hartford Davis and Myles Pulsford appeared for the applicants, instructed by Banton Group.