Bogan v The Estate of Peter John Smedley (Deceased)

The parties to this proceeding were the applicants, acting personally and on behalf of members of a group, and the respondents, comprising former directors of a company and its former auditor. The dispute concerned a class action, or "group proceeding," commenced in the Supreme Court of Victoria, which involved allegations of contraventions of Commonwealth laws. A key element of the proceeding was a Group Costs Order (GCO) obtained by the applicants in the Supreme Court of Victoria. The matter came before the High Court of Australia following the removal of questions reserved by the Court of Appeal of the Supreme Court of Victoria.

The legal issues before the High Court included whether the fact that the Supreme Court of Victoria had made a GCO was relevant to the exercise of discretion under s 1337H(2) of the *Corporations Act 2001* (Cth) to transfer the proceeding to the Supreme Court of New South Wales. Further, the Court was required to determine whether, if the proceeding were transferred, the existing GCO would remain in force and be enforceable by the Supreme Court of New South Wales, and if so, whether that court would have the power to vary or revoke it. Finally, the Court had to decide whether the group proceeding should be transferred to the Supreme Court of New South Wales.

The High Court held that the existence of the GCO was a relevant factor in determining whether a transfer was in the interests of justice. The Court reasoned that the GCO, which is unique to Victoria and designed to promote access to justice, carried a considerable risk that the group proceeding would not be able to continue without it, potentially leading to the abandonment of the plaintiffs' and group members' claims. The Court also determined that if the proceeding were transferred to the Supreme Court of New South Wales, the Victorian GCO would not remain in force and be capable of enforcement by the New South Wales court.

Consequently, the High Court answered the reserved questions. It affirmed that the GCO was relevant to the transfer discretion, that the GCO would not remain in force in New South Wales, and that the question of the New South Wales court's power to vary or revoke the GCO did not arise. Crucially, the High Court ordered that the proceeding should not be transferred to the Supreme Court of New South Wales.