Legal Project Management Plan & Checklist
Purpose of this Guide: This fork activates when an overlapping class action is filed in the Supreme Court of Victoria under a Group Costs Order (GCO) pursuant to s 33ZDA of the Supreme Court Act 1986 (Vic), and the defendant applies to transfer the Victorian proceeding to the NSW Supreme Court or under s 1337H(2) of the on the ground that NSW or is the 'more appropriate forum'. Under Bogan v The Estate of Peter John Smedley (Deceased) [2025] HCA 7, the GCO does not travel with the transferred proceeding - the transferee court cannot make or enforce a GCO. The transfer would strip the plaintiffs of their percentage-based contingency fee funding, making the action financially unviable. This guide covers: confirming GCO status and funding dependency, preparing expert evidence on financial viability, drafting the opposing affidavit on the Bogan v Smedley GCO ground, and attending the transfer hearing.
Jurisdiction: Supreme Court of Victoria - Commercial Court (Group Proceedings List). Cross-vesting application under s 1337H Corporations Act 2001 (Cth).
The Process at a Glance: GCO status confirmed. Funding viability without GCO assessed and expert evidence commissioned. Opposing affidavit filed showing action is financially unviable without GCO. Bogan v Smedley (GCO does not travel) argument deployed at transfer hearing. Transfer application resisted and Victorian proceeding maintained.
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This legal matter plan provides a structured workflow for LITIGATION cases, outlining the standard DISPUTE_LITIGATION process. Utilize these tracking templates to manage your legal cases efficiently.
The expert evidence on financial viability without the GCO is ready to be filed in opposition to the s 1337H transfer application.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Bogan v The Estate of Peter John Smedley (Deceased) [2025] HCA 7 (High Court of Australia): Confirmed that a Group Costs Order (GCO) made under s 33ZDA of the Supreme Court Act 1986 (Vic) does not travel with a proceeding transferred out of the Victorian Supreme Court under the cross-vesting regime. The High Court held that the transferee court (whether the Federal Court or the NSW Supreme Court) has no legislative power to make or enforce a GCO because GCOs are creatures of Victorian statute that do not apply in other jurisdictions. This principle is the most powerful weapon for plaintiffs resisting cross-vesting transfers of Victorian class actions: transfer = loss of GCO = financial inviability of the action = denial of access to justice for group members.
Murphy v Lendlease Corporation Ltd [2020] VSC 266 (Supreme Court of Victoria): Confirmed the principles governing the making and variation of GCOs, including the requirements under s 33ZDA(3) that the court must be satisfied the order is appropriate in all the circumstances. The decision confirmed that GCO percentage rates must be proportionate to the actual costs risk borne by the plaintiff firm.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Murphy v Lendlease Corporation Ltd [2020] VSC 266 (Supreme Court of Victoria - Riordan J): One of the earliest decisions applying s 33ZDA GCO provisions. The court confirmed that GCO applications must demonstrate proportionality between the proposed percentage rate and the real costs and risks of the litigation. The decision established that the court will not simply rubber-stamp the proposed percentage - it will independently assess whether the rate is reasonable in all the circumstances. Practitioners should benchmark the proposed rate against settled GCO precedents.
The GCO is in place at the approved percentage rate. Group member advisory letters are being prepared for distribution.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
The transfer application is resisted. If successful: the Victorian proceeding continues with the GCO intact.
Conduct a thorough review of all filed materials to ensure compliance with court requirements, verify service obligations have been met, and prepare for the next procedural milestone.
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Coordinate the collection and review of all financial documentation required for disclosure, including statements, valuations, and supporting schedules as mandated by the rules.
Murphy v Lendlease Corporation Ltd [2020] VSC 266: The court scrutinised the proposed GCO percentage rate carefully, requiring the plaintiff firm to demonstrate that the rate was proportionate to the actual litigation risk. The decision is authority for the proposition that the court will independently assess reasonableness - a proposed rate that appears generous on its face will be reduced. Practitioners should build a detailed cost sensitivity analysis into the initial GCO application rather than waiting for the court to raise the issue.