Fox v Westpac Banking Corporation (No 2) - [2023] VSC 95

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

GROUP PROCEEDINGS LIST

S ECI 2020 2946

ALANNAH FOX	Plaintiffs
(and another according to the attached schedule)
v
WESTPAC BANKING CORPORATION (ACN 007 457 141)	Defendants
(and another according to the attached schedule)

S ECI 2020 3365

DANIEL CHRISTIAN O’BRIEN	Plaintiff
v
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)	Defendants
(and another according to the attached schedule)

S ECI 2020 3924

TANIA NATHAN	Plaintiffs
(and another according to the attached schedule)
v
MACQUARIE LEASING PTY LTD (ACN 002 674 982)	Defendants

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JUDGE:	Nichols J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2023
DATE OF JUDGMENT:	3 March 2023
CASE MAY BE CITED AS:	Fox v Westpac Banking Corporation (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 95

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PRACTICE AND PROCEDURE — Group proceedings — Costs — Application for a Group Costs Order — Costs to be calculated as a percentage of the amount of any award or settlement recovered — Judicial discretion in open textured legislation — Where previous Group Costs Order application in two of the proceedings where adjourned and now brought on a “re-enlivened” basis — Where new retainers express a clear contractual intention to enter into a funding agreement with a third-party funder consistent with the terms of each plaintiff’s retainer — Satisfaction of evidentiary burden — Whether “appropriate or necessary to ensure justice is done in the proceeding” — Supreme Court Act 1986 (Vic) s 33ZDA — Applications granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs in each proceeding	Mr D Fahey	Maurice Blackburn
For the Defendants in S ECI 2020 2946	Ms P Neskovcin KC	King & Wood Mallesons
For the Defendants in S ECI 2020 3365	Dr M Rush KC Ms E Brumby	Herbert Smith Freehills
For the Defendant in S ECI 2020 3924	Mr M Borsky KC Mr A Roe	Gilbert + Tobin

TABLE OF CONTENTS

Introduction and background.......................................................................................................... 1

Governing Principles – Group Costs Orders................................................................................ 3

The initial applications in Fox v Westpac and O’Brien v ANZ................................................. 3

Fox and O’Brien – Plaintiffs’ submissions.................................................................................... 8

Fox and O’Brien – consideration of the current contracts for legal fees and funding.......... 9

Nathan – plaintiffs’ submissions and current contracts for legal fees and funding.......... 14

Fox, O’Brien and Nathan - implications of a GCO for group members................................ 15

Analysis – Fox, O’Brien and Nathan............................................................................................. 19

HER HONOUR:

Introduction and background

The plaintiffs in these proceedings each seek a Group Costs Order (GCO) pursuant to s 33ZDA of the Supreme Court Act 1986 (Vic), in the following terms:

1The legal costs payable to the solicitors for the plaintiffs and group members, Maurice Blackburn, be calculated as a percentage of the amount of any award or settlement that may be recovered in the proceeding, and that percentage be 24.5% (subject to further order).
2Liability for payment of the legal costs pursuant to paragraph 1 be shared among the plaintiffs and all group…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSC 95
Decision Date: 3 March 2023

CaseChat Overview and Summary

In the case of Fox v Westpac Banking Corporation (No 2), the dispute involves an application for a Group Costs Order, which is part of a larger group of proceedings. The applicants sought to establish a framework for the calculation of costs as a percentage of any award or settlement recovered in these proceedings. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether it was appropriate and necessary to ensure justice is done in the proceeding to grant an order for costs to be calculated as a percentage of any award or settlement. The applicants argued that such an order was necessary to ensure that justice is done, given the nature and scale of the proceedings, and the contractual obligations between the plaintiffs and their new legal representatives. The court had to consider the discretion provided by the Supreme Court Act 1986 (Vic) s 33ZDA, which allows for such orders to be made where appropriate.

The court held that the applicants had satisfied their evidentiary burden, demonstrating a clear contractual intention to enter into a funding agreement with a third-party funder. The court was satisfied that the proposed order was appropriate or necessary to ensure justice is done in the proceeding. The court found that the order would facilitate the efficient management of the proceedings and the distribution of any recovered amounts, thereby achieving a fair outcome for all parties involved.

The court granted the applications for a Group Costs Order, allowing costs to be calculated as a percentage of the amount of any award or settlement recovered. This decision was made in the context of the existing contractual obligations and the need to ensure justice in the proceedings. The orders provide clarity and a framework for the management of costs in these complex proceedings.

Orders