By: Amanda Beattie, Jonathon Ferraro and Madeleine Wright

Byrnes v Origin Energy (No 2) 2026 VSC 97

Another first for the Victorian GCO regime

In a judgment delivered by Justice Waller on 11 March 2026, the Supreme Court of Victoria determined the first application to amend a Group Costs Order (GCO) pursuant to s 33ZDA(1) of the Supreme Court Act 1986 (Vic) (the Act) prior to a settlement being reached in the proceedings.

Waller J cautioned plaintiff law firms that the granting of this application does not establish a precedent for the routine variation of GCOs during the course of proceedings, and warned against applications becoming “a backdoor means by which plaintiffs or their lawyers may re-agitate issues” that had already been properly determined.

Background

In June 2025, the plaintiff in a shareholder class action brought against Origin Energy sought a GCO under s 33ZDA(1) of the Act, proposing legal costs payable to its solicitors, Phi Finney McDonald (PFM) be calculated at 35% of any award or settlement. In August 2025, the Court determined to fix the rate at 30%.

Three months later, in October 2025, the plaintiff applied to vary the initial GCO pursuant to s 33ZDA(3) of the Act. The plaintiff sought orders that the GCO be calculated on a tiered basis: 35% for any award or settlement up to $42.5 million, and 25% for amounts above that threshold.

Prior to determining the application, the Court ordered a contradictor be appointed to file evidence and submissions, and appear at the hearing of the application.

The key issues considered by Waller J in determining the application were:

1. Standing to bring an application for variation
2. The applicable test governing the Court’s discretion to vary a GCO prior to settlement
3. Whether the application should be granted, including whether a tiered GCO structure is permissible in this case

Standing

The Court was satisfied that the plaintiff had standing to bring the variation application because:

1. the language of s 33ZDA(3) of the Act is not restrictive and does not expressly limit the power to amend a GCO to the Court acting on its own motion,
2.  for practical reasons, interested parties should be able to bring applications as they, not the Court, know of the changed circumstances warranting a variation, and
3. the plaintiff has a sufficient interest in the terms of the GCO to bring an application for variation.

Waller J observed that standing to bring an application under s 33ZDA(3) is not confined to plaintiffs and “should be assessed by reference to whether the applicant has a real and legitimate stake in whether the GCO should be amended”. This is given the text and purpose of the provision, as well as the broader supervisory framework of Part 4A of the Act which “supports a construction that enables the Court to receive applications from a range of interested persons”.

The applicable test

The applicable test was determined by his Honour to be:

Whether, having regard to all the circumstances, it is appropriate and necessary to amend the Initial GCO in order to ensure that justice is done in the proceeding.

Waller J accepted that the language of s 33ZDA(3) does not expressly impose a requirement that there be a material change of circumstances or the discovery of new material before the power to amend may be exercised. A broad discretion is conferred on the Court, and the only express limitation is that any GCO “must be one that the Court is satisfied is ‘appropriate or necessary to ensure that justice is done in the proceeding’”. There is no technical threshold for re-opening an earlier order.

While the applicant need not demonstrate that the requirements for re-opening a substantive interlocutory order have been satisfied, there must still be a proper basis for revisiting the Court’s earlier determination. This may involve demonstrating that new facts or developments have emerged, or that the assumptions underlying the previous order have proven incorrect.

The Court was careful to note that applications such as these ought not be treated as an opportunity to re-agitate previously determined matters.

Factors considered by the Court in determining the application

Ultimately, the Court granted the orders sought by the plaintiff to vary the initial GCO. In making its determination, the Court found that:

1. There was no evidence that third-party litigation funding was available on more favourable terms.
2. Refusing the variation would risk prejudice, delay, and loss of expertise in circumstances where there was a possibility PFM may seek to withdraw and the plaintiff may need to retain a different law firm.
3. The proposed tiered GCO rates were comparable or better than third-party funder rates.
4. The tiered structure was permissible under s 33ZDA of the Act and justified by confidential evidence provided by PFM that was noted to reflect a “considered judgment [sic] about the point at which the percentage return to PFM should decrease to ensure proportionality…”.

In a confidential annexure to the decision, the Court determined that the evidence establishes that there were circumstances specific to the matter that warrant the exercise of the discretion. The fact that this information is not publicly known means the decision has less precedential value than it might otherwise.

Takeaways

The Court will use a flexible approach to the determination of applications to vary GCOs, guided by whatever the interests of justice require having regard to the particular circumstances of the case. However, there must be a proper basis for the application.

While Waller J agreed with the contradictor that organising the analysis by reference to particular factors in determining whether the variation is appropriate provides a useful framework for working through the considerations, he warned against using that approach “mechanistically as a checklist”. What is required is an evaluative judgment about the most significant considerations and their bearing on whether it is appropriate and necessary to amend the GCO in order to ensure that justice is done in the proceeding.

Similarly, the Court was clear in its observation that the granting of this particular application does not establish a precedent for the routine variation of GCOs during the course of proceedings, and warned against applications becoming “a backdoor means by which plaintiffs or their lawyers may re-agitate issues” that had already been properly determined.

Stay up to date on Class Action updates

Complete the form below to subscribe to Wotton Kearney’s Class Action updates.