Group costs order amended following settlement of proceeding
Settlement occurred earlier than anticipated
Whether primary judge made mistake of fact in determining that return contemplated by law practice and Court was no higher than return commensurate with the 75 th percentile of historical rates
Quick Take
1Amendment of a group costs order under s 33ZDA(3) of the Supreme Court Act 1986 (Vic) is not an occasion for a de novo hearing; the court must identify and evaluate material changes in circumstance that clearly call into question the appropriateness and necessity of the percentage previously ordered, while giving due regard to the original GCO and the risks the law practice assumed on that basis.
2IRR modelling evidence adduced by a law practice in support of a GCO application, presented to assist the court in understanding the law practice's investment drivers and potential outcomes, is properly characterised as conveying the law practice's a priori belief as to rates of return that may be achieved, and the court may rely on that modelling in assessing whether the GCO remains proportionate upon settlement.
3No special suppression rules apply to group proceedings; following settlement and effluxion of appeal periods, there is ordinarily no basis to suppress litigation budgets, actual costs, returns on investment and internal rates of return, and the heightened standard of appellate restraint for inter-partes costs orders does not apply to GCO decisions.
