In June 2020, section 33ZDA was introduced to the Supreme Court Act 1986 (Vic) which allows the Supreme Court of Victoria, if satisfied that it is appropriate or necessary to ensure that justice is done in a class action proceeding, to make an order providing for a plaintiff law firm to charge legal costs calculated as a percentage of any damages award or settlement. Victoria is the first Australian jurisdiction to introduce a provision of this kind.
On 14 September 2021, Justice Nichols handed down judgment in relation to the first group costs order (GCO) applications to be determined: see Fox v Westpac; Crawford v ANZ  VSC. The plaintiffs in each proceeding sought orders that the legal costs payable to the plaintiffs’ law firm be calculated as 25% of the amount of any award or settlement that may be recovered in the proceedings.
Her Honour held that the plaintiffs had not established a sufficient basis for the exercise of the discretion conferred by s 33ZDA to make a GCO. The decision provides some guidance in relation to GCO applications with the Court determining that the decision to exercise the discretion to make a group costs order will depend upon a broad, evaluative assessment of the relevant facts and the evidence before the Court, in which assessment the interests of group members must be given primacy.
Catherine Hamilton-Jewell, led by Penny Neskovcin QC, acted for the Westpac parties in defence of the GCO application. Penny and Catherine were instructed by Moira Saville of King & Wood Mallesons.
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