Fox v Westpac; Crawford v ANZ

The case involves two applications for group costs orders in the Supreme Court of Queensland. Fox and others sought a group costs order against Westpac Banking Corporation, and Crawford and others sought a similar order against Australia and New Zealand Banking Group Limited. Both applications arose out of representative proceedings initiated by the applicants against the banks, alleging breaches of consumer protection laws. The central issue before the court was the application of the statutory provisions governing group costs orders and the principles that should guide the exercise of judicial discretion in such cases.

The court examined the statutory framework under the Supreme Court Act 1986, particularly Part 4A, section 33ZDA, which outlines the circumstances in which a group costs order may be made. The applicants argued that the costs should be apportioned amongst the members of the class to which they belonged, as it was appropriate or necessary to ensure justice was done in the proceeding. The banks, on the other hand, contended that the courts should exercise restraint in making such orders and that the applicants had not satisfied the necessary evidentiary burden. The court had to determine whether the applicants had discharged the onus of proof and whether the making of a group costs order was appropriate or necessary to ensure justice was done in the proceeding.

In reaching its decision, the court considered the principles established by the High Court and other appellate courts in similar cases. It noted that while the statutory language was open-textured, it required the court to consider the appropriateness of making a group costs order on a case-by-case basis. The court found that the applicants had discharged their burden of showing that it was appropriate or necessary to ensure justice was done in the proceeding by making a group costs order. The court also highlighted the importance of proportionality and the need to consider the interests of all parties, including the members of the class. The court concluded that making a group costs order was appropriate and necessary in this case, given the significant public interest in consumer protection and the deterrent effect such orders could have on future breaches.

The court made a group costs order in favour of the applicants against both Westpac and ANZ, directing that the costs be apportioned amongst the class members in accordance with the provisions of the Supreme Court Act. The orders also provided for the establishment of a costs committee to oversee the distribution of costs and ensure compliance with the court’s directions.