Plaintiff v Defendants

2 This proceeding is a group proceeding or class action under Part 4A of the Supreme Court Act 1986 (Vic) ('the Act'). 5 Boroughs claims on its own behalf and on behalf of members of the group, damages for economic losses it says were suffered as a result of the stage 3 and 4 lockdown restrictions imposed during the second wave of the COVID-19 virus outbreak. 5 Boroughs claims the State is responsible for those losses because of the negligent failure of the State to implement effective infection prevention and control measures at two hotel quarantine sites.

3 This is a big case and it will be expensive. There are approximately 16,000 registered group members and one estimate of the damages claimed is $2.6 billion. Everyone is agreed that the proceeding is novel, complex, difficult and attended with significant risk.[1]

4 The case started in 2020 and has a relatively long procedural history, most of the detail of which does not need recitation in these reasons. The proceeding is set down for a trial commencing 10 March 2026 on an estimate of 12 weeks. At present, it is anticipated there will be 52 lay witnesses and experts spanning eight separate areas. The draft Court Book index contains over 5,000 documents.

5 It is unsurprising that both parties have devoted and are devoting considerable resources to running their cases. Senior counsel for the State submitted, and I accept, that if the matter goes to trial and the trial runs to completion the State's actual costs are likely to be in the order of $40 million. This is plainly enough a very large sum, but when regard is had to the costs expended in other comparable class action litigation and the amounts at stake, certainly within the realm of expectation.

6 One aspect of the procedural history which is of significance in the determination of this application is the making of a group costs order on 23 November 2023 ('the GCO'). Under the GCO the legal costs payable to the solicitors representing the plaintiff and group members, Quinn Emanuel Urquhart and Sullivan LLP ('Quinn Emanuel') are to be calculated as 30% (inclusive of GST) of the amount of any award or settlement that may be recovered in the proceeding. Consistent with the provisions of s 33ZDA(2) of the Act_,_ the GCO provides that Quinn Emanuel is liable to:

(a) pay any costs payable to the State in this proceeding; and

(b) give any security for the costs of the defendants that the court may order to be given.

7 At the time of the making of the GCO, Quinn Emanuel had a litigation collaboration agreement and a financing commitment agreement with Regency V Funding Pty Ltd ('Regency'). Under those arrangements, in return for receiving a share of any amount paid to Quinn Emanuel under the GCO, Regency agreed to:

(a) fund disbursements in the proceeding;

(b) provide funding for, or procure the provision of, any security for costs ordered in the proceeding; and

(c) indemnify the plaintiff against any adverse costs orders.

8 There have been two previous orders for security for costs.

9 On 19 August 2021 Efthim AsJ made orders by consent for the provision of security for costs in a total amount of $600,000 (comprising two separate components, one of $500,000 and another of $100,000). Regency, on behalf of the plaintiff, provided that security.

10 On 2 January 2025 Keogh J made orders by consent which provided that the plaintiff pay a further $3 million as security for the defendants' costs. That security amount was again provided by Regency and was paid into an interest bearing bank account jointly administered by Quinn Emanuel and Herbert Smith Freehills Kramer ('HSFK').

11 The financing arrangements with Regency came to an end in June 2025. In a letter dated 13 August 2025, Quinn Emanuel advised HSFK of the termination of the finance arrangement with Regency and advised that Quinn Emanuel would now cover all costs associated with the proceeding.

12 The State's current application is for security for:

(a) some past costs which were specifically excluded from the ambit of the order made by Keogh J;

(b) costs incurred since 15 November 2024; and

(c) future costs until the end of trial.

(collectively, the 'relevant costs')

13 HSFK has calculated the actual costs the State will incur by utilising actual costs incurred for past work and by estimating future costs. The estimated future costs are calculated using the hourly rates of the various members of the State's legal team (counsel and solicitors) and the estimated hours of work for various categories of work, together with estimates for expert fees and other non-counsel disbursements. The total of that HSFK estimates for the relevant costs is $35,995,554.97. 5 Boroughs does not dispute that number and I accept that having regard to the scale of the litigation it is a reasonable estimate.

14 5 Boroughs say there is no need for further security. It says:

(a) under the GCO Quinn Emanuel is liable to pay any costs awarded to the State;

(b) Quinn Emanuel has demonstrated liquid assets to more than amply meet any such order;

(c) even though it does not have sufficient assets in Australia to meet a costs order in favour of the State such as might be made at the end of trial:

(i) there is every reason to expect that Quinn Emanuel will comply with any costs order made by the Court;

(ii) in the unlikely event enforcement of any order were necessary, this could be done in California and the existing security amount of $3.6 million would more than adequately cover any enforcement costs of the State;

(d) if contrary to its submissions security should be ordered:

(i) the relevant costs assessed on a standard basis would be approximately $17 million; and

(ii) the amount of security Quinn Emanuel should provide should be $8.5 million.

(a) the relevant costs assessed on a standard basis are likely to be approximately $25.9 million;

(b) it has applied a discount of 10% to the estimate of future costs to arrive at the figure of approximately $24.3 million it seeks as security;

(c) Quinn Emanuel does not have sufficient assets in Australia to meet a costs order in favour of the State such as might be made at the conclusion of the trial;

(d) it is not clear what assets Quinn Emanuel in fact has in its own name (as opposed to those in the name of related entities in which it has a beneficial interest) nor where those assets are located; and

(e) even if there are sufficient Quinn Emanuel assets in California, the State should not be left with the prospect of enforcing an order in California.

(a) two affidavits of Mr Ante Golem, a partner at HSFK with carriage of the proceeding, the first dated 21 October 2025 and the second dated 22 January 2026;

(b) two reports from Ms Elizabeth Harris, a costs consultant, one dated 21 October 2025 and a reply report dated 23 January 2026;

(c) an expert report from a forensic accountant, Mr Bruce O'Shea dated 22 January 2026; and

(d) an affidavit from a United States-based partner of HSFK, Mr Scott Balber, dated 22 January 2026 dealing with questions of enforcement of Australian court orders in the United States.

(a) two affidavits of Ms Michelle Fox, a partner of Quinn Emanuel, the first dated 2 December 2025 and the second dated 30 January 2026;

(b) two affidavits of Mr Damian Scattini, the first dated 2 December 2025 and the second dated 30 January 2026; and

(c) an expert report of Ms Catherine Dealehr, a costs consultant, dated 15 January 2026.

18 Pursuant to leave granted after the hearing 5 Boroughs filed two further affidavits of Ms Fox, one dated 19 February 2026 and another dated 23 February 2026. I had granted leave to the State to file evidence and submissions in response to the affidavit of Ms Fox dated 19 February 2026. I was advised that if leave were granted to 5 Boroughs to file the affidavit dated 23 February 2026 this would obviate the need for the State to file any further evidence or submissions.

19 The legal principles relevant to the determination of this application for security are well established.

20 In Stuart v Said[2] the Court of Appeal provided the following summary:

(a) The inherent jurisdiction to order security for costs may be exercised whenever the interests of justice require, in all the circumstances of the case.

(b) The Court has a discretion which is not otherwise fettered or confined by reference to specified categories.

(c) The inquiry when the Court's jurisdiction is invoked involves the single issue of what the interests of justice require and it is not necessary to satisfy any additional precondition to enliven the jurisdiction.

(d) The power is not usually exercised against an impecunious plaintiff unless there is something in addition to the plaintiff's impecuniosity to justify making the order.

(e) There is no requirement that the defendant establish 'exceptional circumstances', or that the case is 'ill pleaded', lacks prospects of success, or is harassing or vexatious. Each of those matters may be relevant in a given case, but they do not constitute conditions to be satisfied before an order can be made.

(f) The absence of a properly pleaded case may likewise be relevant to the exercise of the discretion.[3]

21 In Living Spring Pty Ltd v Kliger Partners ('Living Spring')[4] the Court of Appeal considered the test for an application for security for costs under s 1335(1) of the Corporations Act 2001 (Cth) and said:

The section requires the making of a judgment, a risk assessment: is there a risk that the corporation will be unable to pay? (It adds nothing, in our view, to say that it must be a "real risk".) A risk assessment is, of necessity, imprecise. The section calls for a practical, commonsense approach to the examination of the corporation's financial affairs.

It may be said, with justification, that this is a low threshold. But the test simply reflects the policy of the provision, which is to protect a defendant against the risk of the plaintiff corporation's impecuniosity. The provision equips the court with the means to require that the defendant be secured against that risk.

The power being enlivened, the court must consider whether it should be exercised.[5]

22 In Living Spring the Court said the same principles should apply to a consideration of r 62.02(1)(b) of the then Supreme Court (General Civil Procedure) Rules 2005 (Vic) and in Nathan & Anor v Macquarie Leasing Pty Ltd ('Macquarie Leasing')[6] the Court accepted that there was no error in those principles being applied where security for costs was ordered in the inherent jurisdiction of the Court.

23 One significant factor in the exercise of my discretion is that here the assets which would allow Quinn Emanuel to meet a costs order in favour of the State are located outside of the jurisdiction. In an oft-cited passage from PS Chellaram & Co Ltd v China Ocean Shipping Co ('China Ocean Shipping')[7] Mc Hugh J said:

To make or refuse to make an order for security for costs involves the exercise of a discretionary judgment. That means that the court exercising the discretion must weigh all the circumstances of the case. The weight to be given to any circumstance depends not only upon its own intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed. A circumstance which may have very great weight when only two or three circumstances have to be weighed may be of minor significance when many circumstances have to be weighed. However, for over 200 years, the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction.[8]

24 In a similar vein in Energy Drilling Inc v Petroz NL ('Energy Drilling')[9] Gummow J said:

The purpose of ordering security for costs against an applicant ordinarily resident outside the jurisdiction is to ensure that a successful respondent will have a fund available within the jurisdiction of this Court against which it can enforce the judgment for costs, so that the respondent does not bear the risk as to the certainty of enforcement in the foreign country and as to the time and complexity of the action there which might be necessary to effect enforcement. On the other hand, the mere circumstance that an applicant is resident outside the jurisdiction does not necessarily invite an exercise of discretion in favour of ordering security, the question being how justice will best be served in the particular case.[10]

25 The State particularly emphasised the first sentence in the quote, 5 Boroughs the second.

26 If security is ordered in determining the quantum of security:

(a) The court should adopt a 'broad brush' approach involving 'guesstimates as much as estimates';

(b) The amount fixed must not be 'so low that it fails to provide any real protection to the party seeking security, or so high that it is oppressive to the party required to provide the security';

(c) The amount is not a full indemnity for the defendants' likely party-party costs; and

(d) The amount must be just and reasonable in all the circumstances.[11]

27 The materials before the Court include balance sheets and income statements for the Quinn Emanuel Group for a number of years commencing in 2021. Of most significance for present purposes are the most recent balance sheet and income statement for the calendar year ending on 31 December 2025, but the earlier statements are important because they show a consistency of large positive cash balances and very significant annual profit figures.

28 The 2025 figures show total cash in bank in the order of US $220 million with annual profits for that year of close to US $2 billion. I was not provided with evidence regarding the conversion rate from US dollars to Australian dollars, but based on the Australian dollar being approximately 70 US cents, the cash in bank figure exceeds AU $300 million and the revenue figure exceeds AU $2.8 billion.

29 Quinn Emanuel says that in light of those figures there is no need to order security. It says the law firm is bound by the GCO to pay any costs awarded to the State and that the evidence demonstrates it has the financial capacity to pay any amount which was ordered, and further that it is inconceivable that as a law firm of good standing and reputation it would not pay if so ordered.

(a) that because the balance sheet and income statement are produced on a consolidated basis it is not clear whether the assets and revenue recorded are assets of Quinn Emanuel or assets of related entities; and

(b) Quinn Emanuel does not have sufficient assets in the jurisdiction (for present purposes Australia) to satisfy a costs order made in favour of the State after an unsuccessful trial.

31 It is appropriate to deal first with the question of ownership of the relevant cash assets. In his report Mr O'Shea says that because the balance sheets have been prepared on a consolidated basis it is not possible to determine which assets are owned by Quinn Emanuel and which are owned by related entities. He also says the balance sheets do not allow an identification of where assets are held. I accept that evidence.

32 However, after Mr O'Shea's report had been filed, Ms Michelle Fox, a partner of Quinn Emanuel, gave evidence that following enquiries she had made with Quinn Emanuel's Chief Executive Officer and Chief Financial Officer she had been informed and believed that:

(a) the 'Cash in Bank' assets recorded in the balance sheet represents assets owned by Quinn Emanuel;

(b) those assets are liquid assets that Quinn Emanuel is able to draw upon to satisfy costs orders payable by [Quinn Emanuel], including to defendants in Australia;

(c) the balance sheet and income statement are prepared on a consolidated basis because certain assets and liabilities are linked to or derived from Quinn Emanuel's related entities. However, Quinn Emanuel is the beneficial owner of all assets and responsible for all liabilities listed in the balance sheet; and

(d) Quinn Emanuel's primary bank accounts are held in California.

33 The State submitted that this evidence did not clarify matters, that it was not clear that the amounts in the cash in bank assets were not 'beneficially owned' by Quinn Emanuel, that is that they were not in fact in the name of other entities and that it was not clear what were Quinn Emanuel's 'primary bank accounts'.

34 Assuming for the present that the amounts in the accounts were only beneficially owned by Quinn Emanuel, for the State to establish a risk that its costs would not be paid in such circumstances, it needs to demonstrate a risk that a large international law firm with an established practice in Australia would choose not to meet an obligation to pay costs ordered by the Court for which it was liable even though it had ample assets to which it was beneficially entitled. Even accepting, as I do, that the overwhelming majority of the partners of Quinn Emanuel are not officers of this Court and that the threshold for risk is low, I am not persuaded that proposition should be accepted.

35 In the course of the hearing senior counsel for 5 Boroughs confirmed on instructions that each of the bank accounts listed in the cash at bank portion of the balance sheet was in the name of Quinn Emanuel and not in the name of a related entity. Further, I was advised that those accounts which did not have a geographic descriptor were in California. Two of those accounts have a combined balance of nearly US $700 million.

36 In light of the significance of those matters to what I regard as the appropriate disposition of the State's application, given the significant quantum of costs in this matter and without meaning any disrespect to those who gave those instructions, I requested an affidavit from 5 Boroughs confirming the name in which the cash at bank assets are held and which specifically identified those accounts which are located in California. That affidavit was filed on 19 February 2026 and was clarified by the affidavit of 23 February 2026.

37 The upshot of the further evidence from Ms Fox is as follows:

(a) of the entries listed in the 2025 balance sheet under "Cash in Bank", the following (save for approximately $42,000) are held in California:

• Deposit Account;
• Year-End Investment Account;
• Evergreen Retainer Account;
• Payroll Account;
• ACH Account;
• Other Bank Accounts; and
• Investment/Money Market Accts**.**

(b) All of the above are held solely in the name of Quinn Emanuel and not also in the name of another entity.

(c) All other entries listed in the 2025 balance sheet, including the Sydney Accounts, are held solely in the name of Quinn Emanuel and not also in the name of another entity, except for the London Accounts, France Accounts, and Swiss Accounts.

38 Plainly insofar as the London, France and Swiss accounts are concerned this evidence is inconsistent with the instructions with which Senior Counsel for 5 Boroughs was provided during the hearing. That is unfortunate. The record has now been corrected but it plainly would have been preferable had Senior Counsel's instructions been accurate. Nonetheless, on the substantive issue of whether there are hundreds of millions of dollars in California bank accounts solely in the name of Quinn Emanuel nothing has changed.

39 Given the cash in bank assets which are in the name of Quinn Emanuel, the risk of non-payment of a costs order by Quinn Emanuel rests on the proposition that having been ordered to pay costs and having cash assets directly available to it (albeit in another jurisdiction), that it would choose to defy the Court's order. I am also not persuaded I should accept that proposition.

40 For completeness, I note that the facts in this case are distinguishable from those in Macquarie Leasing. In that case the Court concluded there was a real risk that the readily available assets of the law firm would not be sufficient to meet a costs order. On the basis of the evidence before me, I am satisfied on a forward looking basis that there is no real risk that Quinn Emanuel's readily accessible cash assets will not be sufficient to meet any costs order in favour of the State. In reaching that conclusion I have had regard to the very significant size of the cash at bank balances and the relatively limited exposure which, on the evidence, Quinn Emanuel has to the payment of adverse costs in other cases.

41 I was invited by the State to place some significance on the termination of the financing arrangement with Regency. Ultimately, the State's application is to be determined by reference to the assets available to Quinn Emanuel to meet an order for costs. In the context of this application, the termination of the arrangement with Regency does not alter the fundamentals of that calculus.

42 However, notwithstanding my conclusion regarding the likelihood that Quinn Emanuel will pay any costs ordered without enforcement being necessary, if it did become necessary for the State to enforce against Quinn Emanuel's assets in California I am satisfied this could be done.

43 The State says, relying on Energy Drilling, that it should not bear the risk as to the certainty of enforcement in California nor the risk as to time and complexity of any action to enforce. It is plain that in Energy Drilling, Gummow J was not laying down a rule of invariable application, the second sentence from the passage of the judgment quoted above makes that plain. Nonetheless, it is also plain that I should take into account the uncertainty of enforcement in California and any time, trouble and expense associated with enforcement in considering the question of whether security should be ordered and if so, in what form.

44 The evidence of Mr Balber establishes that in California a 'foreign country judgment' is enforceable if it meets the requirements of Uniform Foreign-Country Money Judgments Recognition Act 2005 ('Californian recognition legislation') which is in the California Code of Civil Procedure.

45 Under the Californian recognition legislation, to be recognised a foreign country judgment must:

(a) grant or deny recovery of a sum of money; and

(b) be final, conclusive and enforceable in the foreign country where it was made.

46 There does not seem to be any doubt that a costs order grants recovery of a sum of money. According to Mr Balber, the question of whether a costs order in this proceeding was final, conclusive and enforceable would be determined as a matter of Australian law. I am satisfied then that both primary matters necessary for recognition in California would be satisfied in relation to a final costs order in these proceedings.

47 Under the California recognition legislation a foreign country judgment must not be recognised if:

(a) it is a judgment for taxes;

(b) it is a fine or other penalty (which according to Mr Balber, in the case of an order of this Court, would also be determined according to Australian law);

(c) the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law;

(d) the foreign court did not have personal jurisdiction over the defendant;

(e) the foreign court did not have jurisdiction over the subject matter;

(f) the defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend;

(g) the judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;

(h) the judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of California or of the United States;

(i) the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court;

(j) in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action;

(k) the judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment;

(l) the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law; or

(m) the judgment conflicts with another final and conclusive judgment.

48 5 Boroughs says there is no realistic prospect that any of the factors in the previous paragraph would apply to an order that Quinn Emanuel pay the costs of the State in this proceeding. I agree.

49 Mr Balber's evidence establishes that recognition in California of a costs order made in these proceedings would not permit enforcement against assets in the names of related entities of Quinn Emanuel and would not permit enforcement against assets in other US states. In light of the evidence regarding the primary bank accounts being in California and in Quinn Emanuel's name, I am satisfied there should be no need for enforcement against assets in the name of Quinn Emanuel's related entities. Nor should there be any need for enforcement in jurisdictions beyond California.

50 Taking into account Mr Balber's evidence, I am satisfied that the level of uncertainty in relation to the enforcement in California of a costs order of this Court at the conclusion of the proceeding is very low. As I have indicated above, in the particular circumstances of this case, I am also satisfied that the risk of a need for enforcement proceedings in California is itself also very low.

51 The State says it should not be put to the time and expense of enforcement in California.

52 In respect of time, it points to two matters arising from the evidence of Mr Balber. First, that it is arguably easier to get a stay of recognition of a foreign judgment in California than it is to get a stay of a costs order in Victoria. Secondly, Mr Balber says that in any event the Californian court system is slow and matters can be substantially delayed.

53 In respect of expense it says it would likely not recover any costs of recognition proceedings in California.

54 I have already indicated I do not regard it as likely that recognition proceedings will be necessary, but I accept the time and expense of any recognition proceedings are two matters I need to weigh in the balance in the exercise of my discretion.

55 Ms Harris was asked to estimate the amount of the relevant costs which would be recoverable if a costs order was made on the standard basis in the State's favour at the conclusion of the litigation. Ms Harris' first report expresses the opinion that the amount which would likely be recoverable is $25,910,264.60. HSFK then apply a further 10% discount to the component of Ms Harris' assessment which relates to future costs. This further discount is $1,610,589.45, thus giving the figure which the State seeks in security of $24,299,675.15.

56 5 Boroughs relies on a report by a cost consultant, Ms Dealehr. Ms Dealehr opined that the State's costs on a standard basis would be more like $17 million.

57 In a reply report Ms Harris said she disagreed with Ms Dealehr's approach and maintained her view that the appropriate amount which would be allowed on taxation on a standard basis would be her original $25.9 million.

58 The reports by the cost experts are quite detailed. Neither expert was cross-examined. Each party made submissions regarding why their experts' view was to be preferred to the view of the expert whose evidence was adduced by the opposing party.

59 Having considered the evidence and adopting the broad brush approach which is necessary in these circumstances, I find that it is more likely that a standard basis assessment will be towards the figure which Ms Dealehr estimates rather than the $25.9 million which Ms Harris has calculated.

60 In reaching this view, I would not accept each and every specific critique which Ms Dealehr makes of Ms Harris' report. Nonetheless, at a broad level I am inclined to accept that assessed costs will be closer to Ms Dealehr's estimate than Ms Harris'.

61 In her report Ms Harris says that in the New South Wales Supreme Court and Federal Courts there is a general acceptance that awards of costs as between parties usually result in a recovery in the order of 65 to 75% on a gross sum assessment. Ms Dealehr by contrast says that in her experience large law firms such as HSFK typically recover between 40 to 60% of their actual professional fees incurred compared to a recovery rate of between 60 and 70% for smaller firms. She gives her reasons for the greater reduction in the assessed costs of large law practices as being attributable to a number of factors:

(a) The involvement of substantially larger numbers of personnel billing for their time;

(b) Substantially higher hourly rates among senior practitioners, junior staff and non-legal operators;

(c) The substantially larger size of the core legal team;

(d) The retention of work internally instead of engaging external counsel, despite senior junior counsel often charging less than their counterparts within the firm; and

(e) Billing practises of large law practices including multiple professionals working on identical tasks, inadequate time recording practices and the common use of generic descriptions in time records.

62 Ms Dealehr opines that in her experience the recovery of barristers' fees on a standard basis typically ranges between 70 to 80% of actual fees incurred where those fees are within the scale maximum rate. In this latter respect Ms Harris agrees.

63 Broadly speaking, I accept Ms Dealehr's evidence regarding the differential between recovery rates for larger firms and smaller firms and her evidence regarding the percentage range for those recoveries. I also accept her evidence regarding the typical range for recovery of barristers' fees. In a proceeding of this scale, with the large scale of the litigation and the large size of the legal team, it is my view that those factors which Ms Dealehr identifies as driving the differential between recovery rates for large practices and small practices will also tend to have the effect of pushing the recovery rates in this proceeding towards the bottom of Ms Dealehr's range.

64 The HSFK estimates for its professional costs to the conclusion of trial are $25.1 million, 40% of this number is approximately $10 million and 50% is approximately $12.5 million. The estimate for disbursements is $10.9 million, 70% of this figure is approximately $7.8 million and 80% is approximately $8.7 million. Utilising those figures provides a range of recoverable costs somewhere in the range of approximately $17.8 to $21.2 million. As I have indicated, my inclination is to think that recoverable costs would likely be closer to the lower end of that range.

65 I have formed the view that Quinn Emanuel has sufficient assets to pay the likely amount of any costs order in favour of the State in these proceedings, that it is likely to pay that amount without the State needing to take steps to enforce any costs order in California but that in the event enforcement were required it could be done. Adapting the words of McHugh J in China Ocean Shipping, I am satisfied that there are other circumstances which overcome the weight of the circumstance that Quinn Emanuel does not have sufficient assets in the jurisdiction to satisfy a costs order made in favour of the State at the conclusion of the trial.

66 Notwithstanding that conclusion, I am not content just to leave the State to the existing amount of security. The $3.6 million security for costs previously provided was provided pursuant to orders of the Court in relation to various categories of costs which are not the subject of this application. That security was not provided for the relevant costs and was not provided in order to permit the State to enforce a costs order in California should that be necessary.

67 I have decided to order an extra amount of security to cover any enforcement costs in California (in what I regard as the unlikely event they should be necessary). I do not have any detailed evidence of the likely costs of recognition of a costs order and enforcement in California. Mr Scattini said they would be significantly less than $3.6 million. The evidence was not challenged but I have no real way of knowing what 'significantly' in this context means. Erring then on the side of caution, I intend to order that Quinn Emanuel provide security in the sum of $3.6 million to be paid into a joint bank account controlled by Quinn Emanuel and HSFK or failing that to be paid into Court.

68 The approach I favour ameliorates the issue of expense associated with any enforcement in California. I accept there will still be delay if enforcement steps are necessary. For the reason I have given, I do not expect that enforcement steps should be necessary.

69 The effect of my orders will be that there will be approximately $7.2 million in security in this jurisdiction together with the amount in Quinn Emanuel's Sydney account, currently approximately $5.8 million. Whilst the funds available in the jurisdiction are substantially less than the quantum of a likely final costs order in these proceedings, they provide a measure of protection to the State which, in the particular circumstances of this case, I am satisfied is sufficient for the reasons I have stated above.

70 Within seven days, the parties should provide consent orders giving effect to these reasons and dealing with the costs of the State's application. In the event that consent cannot be reached they should file their competing proposals together with submissions of no more than three pages in the same time frame.

CAPACITY AS THE FORMER MINISTER FOR HEALTH AND THE FORMER MINISTER FOR THE COORDINATION OF HEALTH AND HUMAN SERVICES: COVID-19)

KYM LEE-ANNE PEAKE (IN HER CAPACITY AS THE FORMER SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES)

SIMON GRANT PHEMISTER (IN HIS CAPACITY AS THE SECRETARY, DEPARTMENT OF JOBS, PRECINCTS AND REGIONS)

[1] 5 Boroughs NY Pty Ltd v State of Victoria (No 5) [2023] VSC 682, [90].

[2] (2021) 65 VR 50.

[3] Ibid 59 [35] (Maxwell P and McLeish JA).

[4] [2008] VSCA 93; (2008) 20 VR 377.

[5] Ibid 382 [15]-[17] (Maxwell P and Buchanan JA) (citations omitted).

[6] [2024] VSC 794.

[7] [1991] HCA 36; (1991) 65 ALJR 642.

[11] Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293, [64]-[65] (Tate and Kyrou JJA).