Bhagat v Burns Philip & Company Limited

The applicant, Burns Philip & Company Limited, sought special leave to appeal from a decision of the Full Court of the Supreme Court of Victoria. The dispute concerned the jurisdiction of the court to make orders for costs against represented persons in a representative action. The applicant argued that the Full Court's decision overruled long-established lines of authority in Australia and the United Kingdom regarding costs orders.

The legal issues before the High Court were whether a court's jurisdiction to grant relief, including costs orders, is confined to parties to a proceeding, and whether there is jurisdiction to make costs orders against represented persons in representative actions. The applicant contended that the Full Court's decision departed from established principles that had been relied upon for many years, impacting areas of law concerning the general jurisdiction of courts to order costs against non-parties, including provisions within state legislation and federal statutes.

The applicant's submission was that the Full Court's decision overturned two established lines of authority. The first was that costs orders could only be made for or against parties to a proceeding, with limited exceptions. The second was that there was no jurisdiction to order costs against represented persons in representative actions. The applicant highlighted that in the present case, represented persons had contributed to a litigation fund on the understanding that they would not be liable for costs. The issue arose when some represented persons sought to withdraw, and the validity of consents from other represented persons was challenged on the basis that they were conditional on the court lacking jurisdiction to order costs against them. This raised a fundamental question about whether the action could proceed as a class action.