By Aoife Xuereb, Melissa Gladstone-Joyce and Norberto Ayala-Rodriguez
In the first edition of The Pulse, we discussed the Group Costs Order (GCO) made by the Supreme Court of Victoria in April 2022 in the Arrium class action[1]. GCOs are currently only available in the Supreme Court of Victoria.
Interestingly, on 26 February 2021 shortly after the GCO application was filed, the fifth defendant, applied to the Victorian Supreme Court for the proceedings to be transferred from that Court to the Supreme Court of NSW on the basis that the location of the parties and related proceedings on foot in NSW demonstrated a greater nexus with NSW than Victoria (transfer application). The fifth defendant contended that the transfer application should be determined prior to any GCO application. However, the Victorian Supreme Court directed that the transfer application be determined after the GCO application.
On 10 May 2022, the fifth defendant applied to have the transfer application heard by the High Court of Australia. In addition to the procedural question of whether the case will proceed in the Victorian or NSW Supreme Court, the HCA is being asked to consider questions including:
- whether the fact that the Victorian Supreme Court granted a GCO is relevant at all to the transfer application; and
- whether a GCO made in Victoria can “travel” to another jurisdiction and the powers of the new Court to deal with that GCO.
[1] 40% contingency fee awarded in Victoria; the plaintiffs first filed the GCO application on 2 February 2021 and amended the summons on 8 December 2021.
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