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 Federal Court under s 1337H(2) of the Corporations Act 2001 (Cth) on the ground that NSW or Federal Court 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.
The transfer application is resisted. If successful: the Victorian proceeding continues with the GCO intact.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
The cross-vesting dispute is resolved. The GCO is either preserved in Victoria or the transfer is accepted and the file is closed.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.