Bogan v Estate of Smedley [2025] HCA 7
The general prohibition of contingency fees is subject to an exception in Victoria for ‘group costs orders’. It was held that making an order of this kind was relevant to whether the proceedings should be transferred to NSW. The transferee court was required to deal with the proceeding ‘as if’ steps taken in the first court had been taken in that court5.
This was held to create a statutory fiction6, which ‘cannot be taken to have a legal operation beyond that required to achieve the object of its enactment’7. The older setting that fictions are read ‘strictly’ is to be understood in its context. They are now read purposively in the same way as any other provision8.
This principle is from Episode 120 of interpretation NOW!
Footnotes:
5 s 1337P(2) of the Corporations Act 2001 (Cth).
6 [55], Macks [2000] HCA 62 [115], Williams [2019] HCA 4 [101] cited.
7 [57], Makasa [2021] HCA 1 [51], Vunilagi [2023] HCA 24 [71] cited.
8 Ellison [2018] FCAFC 44 [209], Holdsworth [2020] NSWSC 228 [41] cited.