Transfer of proceedings
Class action: Group costs orders
In Bogan v The Estate of Peter John Smedley (Deceased) [2025] HCA 7 (12 March 2025), the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria.
A law firm cannot charge a contingency fee for legal on the basis of a percentage of the quantum of outcome of a proceeding. An exception to this is found in the form of a group cost order (GCO), which is permitted in Victoria by order of the court in group proceedings under Part 4A of the Supreme Court Act 1986 (Vic).
The Arrium class action related to loss in relation to the purchase of shares in Arrium, now in liquidation, an ASX listed company based in Sydney.
Two plaintiffs, Mr Bogan and Mr Walton, as representatives for other group members, both based in NSW, commenced proceedings claiming loss or damage against the defendants. The firm representing them, The Banton Group Pty Ltd, is based in Sydney but has an office in Melbourne. The proceedings are being funded by a litigation funder Equite Capital No. 1 Pty Ltd, which has a Singapore-based agent but has a director of the agent in Sydney.
Originally, the proceedings were commenced in NSW but transferred to Victoria, where the plaintiffs sought and were awarded a GCO of 40 per cent of the outcome of proceedings.
The trial judge noted several factors at play:
- “the Arrium class action ‘is complex, difficult and likely to consume time and resources’ and ‘[a] successful outcome for the plaintiffs and group members is attended by risk, not just in terms of establishing liability and proving losses but also in terms of recovery and of any judgment that might be won’ …
- “[i]n the absence of a GCO, there is a considerable risk, indeed a probability, that the Funder … will not continue to fund the proceeding”
- “[a]n alternate funder is not a realistic prospect”
- “[i]f the proceeding is not viably funded, the plaintiffs will be unable to continue with [the Arrium class action] and it is probable that [the Arrium class action] will terminate without adjudication or other resolution on the merits”
- “[j]ustice cannot be done in [the Arrium class action] if the plaintiffs and group members are not able to pursue their claims through [the Arrium class action] and must abandon them” (at [41]).
The fifth defendant, an auditor, applied to transfer the proceedings to NSW under s1337P(2) of the Corporations Act 2001 (Cth). However, the GCO could not operate in NSW.
The High Court held that the fact that a GCO could not be made was relevant in consideration of the transfer of proceedings, pursuant to s1337P(2) of the Corporations Act.
Native title
Appropriation: On just terms
In Commonwealth v Yunupingu [2025] HCA 6, the High Court by majority dismissed an appeal from the Full Court of the Federal Court of Australia.
The proceedings related to a claim for compensation for multiple past acts of appropriation and grant of land stretching back more than 100 years under (and before the commencement of) the Native Title Act 1993 (Cth), for native title rights of the Gumatj Clan or Estate Group of the Yolgnu people (Gumatj Clan), who argued that the appropriation of land was invalid, because it was inconsistent with the native title as it was at common law at the time.
The High Court cited Mabo v Queensland (No 2) (1992) 175 CLR 1, Newcrest Mining (WA) Ltd v Commonwealth [1997] 190 CLR 513 and Teori Tau v Commonwealth (1969) 119 CLR 564.
The High Court held that:
- the Commonwealth’s power to make laws for the government of a territory, conferred by s122 of the Constitution, did not extend to making laws for the acquisition of property otherwise than on just terms, pursuant to s51(xxxi) of the Constitution
- the extinguishment by or under a law of the Commonwealth prior to the commencement of the Native Title Act 1993 (Cth) constituted an acquisition of property within the meaning of s51(xxxi)
- the grant of pastoral lease in 1903 by the Governor of South Australia under the Northern Territory Land Act 1899 (SA) did not extinguish non-exclusive native title rights over minerals on the land.
Constitutional law
Immigration detention: Real prospect of removal
In CZA19 v Commonwealth; DBD24 v Minister for Immigration and Multicultural Affairs [2025] HCA 8, the High Court dismissed two appeals and held that the unlawful detention of two non-citizens was not constitutionally invalid.
The claimants were awaiting the grant of a visa.
The claimants challenged the constitutional validity of their detention and sought declarations in the Federal Court.
Both parties had pending applications in the Administrative Appeals Tribunal (AAT). The AAT made directions to the effect that the claimants had met the criteria that they would be at serious risk of harm should they be returned to their home countries. On this basis, the claimants’ position was that their detention was not constitutionally valid once there was no real prospect of their removal in the foreseeable future, citing the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ).
The High Court found this argument was contrary to the constitutional analysis in the authorities, including Kim v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2455 and leading up to NZYQ, and noted:
“This is because detention to enable visa processing remains constitutionally permissible for so long as that detention is itself ‘reasonably capable of being seen as necessary’ for the legitimate and non‑punitive purpose of visa processing” (at [46]).
