Bogan v The Estate of Peter John Smedley (Deceased)

Courts – State courts invested with federal jurisdiction – Powers – Exercise of powers – Where Supreme Court of Victoria uniquely empowered to make group costs order ("GCO") – Where s 1337H(2) of Corporations Act 2001 (Cth) allows transferor court to transfer proceeding to another court if, having regard to interests of justice, it is more appropriate – Where s 1337P(2) of Corporations Act provides that if proceeding transferred then transferee court must deal with proceeding as if, subject to any order of transferee court, steps that had been taken for purposes of proceeding in transferor court, or similar steps, had been taken in transferee court – Where group proceeding commenced in Supreme Court of Victoria – Where plaintiffs applied for GCO – Where fifth defendant applied for transfer of group proceeding to Supreme Court of New South Wales – Where primary judge ordered transfer application be determined after GCO application – Where GCO made – Where considerable risk that group proceeding would not be able to continue without GCO – Whether fact of Supreme Court of Victoria having made GCO relevant to exercise of discretion under s 1337H(2) of Corporations Act to transfer proceeding – Whether GCO will remain in force and be capable of being enforced by Supreme Court of New South Wales if proceeding transferred to Supreme Court of New South Wales – Whether Supreme Court of New South Wales has power to revoke or vary GCO if it remains in force – Whether group proceeding should be transferred to Supreme Court of New South Wales pursuant to s 1337H of Corporations Act.

Words and phrases – "access to justice", "appropriate forum", "class action", "connecting factors", "contingency fee", "discretion", "federal jurisdiction", "group costs order", "group proceeding", "interests of justice", "jurisdiction", "removal", "similar steps", "statutory fiction", "steps", "stultification", "transfer", "transfer application", "transferee court", "transferor court".

Corporations Act 2001 (Cth) – Pt 9.6A, Div 1.

Judiciary Act 1903 (Cth) – s 79.

Civil Procedure Act 2005 (NSW) – Pt 10.

Legal Profession Uniform Law (NSW) – Pt 4.3, Div 4.

Legal Profession Uniform Law (Vic) – Pt 4.3, Div 4.

Supreme Court Act 1986 (Vic) – s 33ZDA.