Bolitho v Banksia Securities Limited (No 12)
[2020] VSC 591
•14 September 2020 (revised from ex tempore reasons delivered on 9 September 2020)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S CI 2012 07185
| LAURENCE JOHN BOLITHO | First Plaintiff |
| AUSTRALIAN FUNDING PARTNERS PTY LIMITED (ACN 167 628 597) | Second Plaintiff |
| v | |
| BANKSIA SECURITIES LIMITED (ACN 004 736 458) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 September 2020 |
DATE OF RULING: | 14 September 2020 (revised from ex tempore reasons delivered on 9 September 2020) |
CASE MAY BE CITED AS: | Bolitho & Anor v Banksia Securities Limited & Ors (No 12) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 591 |
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COURTS AND JUDGES – Stay of execution of interlocutory order pending appeal – Application for recusal of trial judge for apprehended bias – Application dismissed – Application for leave to appeal foreshadowed – No basis from which to assess whether stay justified – Court of Appeal more appropriate forum for application – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 64.02, 64.05, 64.39; Practice Note SC CA 3 (Civil Appeals).
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| Appearances | Counsel | Solicitors |
| For the Applicant/Fifth Defendant | Mr G Kozminsky of counsel | Garland Hawthorn Brahe Lawyers |
| For the First Defendant | Mr J A Redwood and Mr M Grady of counsel | Maddocks |
| As Contradictor | Mr P Jopling QC with Ms J Collins of counsel | Corrs Chambers Westgarth |
HIS HONOUR:
By a summons filed 9 September 2020, the fifth defendant (‘Mr Elliott’) sought a stay of the proceeding, insofar as it related to him. The basis for the application was that he intended to file an application for leave to appeal against the dismissal of his summons dated 26 August 2020, which sought an order that I recuse myself for apprehended bias.[1] Alternatively, Mr Elliott sought that the proceeding, insofar as it related to him, be stayed for 21 days.
[1]Bolitho & Anor v Banksia Securities Limited & Ors (No 11) [2020] VSC 567.
The application was made on the basis of an affidavit of Mr Elliott’s instructing solicitor, Mr John Price, who deposed that he was instructed to attend to the preparation of the appropriate papers seeking leave to appeal and to prosecute the application with expedition.
He also deposed that if the stay was not granted, Mr Elliott would be required to:
(a) comply with the orders made on 7 September 2020 and any further procedural orders that may be made; and
(b) incur costs in the conduct of the investigation more generally, which he estimated were likely to be several hundreds of thousands of dollars.[2]
[2]During the hearing, Mr Elliott’s counsel clarified that this was an estimate of the overall costs in the resolution of the issues in the remitter, rather than the costs that might immediately be incurred.
While it is not in dispute that I have the power to grant a stay, the usual process is governed by r 64.39 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’), which provides that:
Except so far as the Court of Appeal otherwise orders—
(a)an application for leave to appeal or appeal shall not operate as a stay of execution or of proceedings under the decision appealed from; and
(b) no intermediate act or step shall be invalidated.
Paragraph 13.8 of Practice Note ‘SC CA 3 – Civil Appeals’ provides that:
In respect of an application for a stay pending determination of an application for leave to appeal, ordinarily the stay application will not be considered before the application for leave to appeal and any accompanying required documents have been filed and served in accordance with the Rules and this Practice Note.
Mr Elliott did not provide the court with copies of his application for leave to appeal or written case in support of his application, both of which are required to be filed when initiating an appeal.[3] One can deduce from Mr Price’s affidavit that those documents were yet to be prepared.
[3]Supreme Court (General Civil Procedure) 2015 (Vic) r 64.02 (‘Rules’).
One can understand the sense in the requirement stipulated by the Practice Note. The absence of any information about the proposed grounds of appeal, together with the limited evidence about the consequences to Mr Elliott if a stay was not ordered, provided me with no basis to conclude that a stay was justified. As is well settled, the moving party on such an application bears the onus in establishing that contention,[4] which requires more than the mere fact that an appeal has been filed.[5] Generally, a stay will not be ordered unless special or exceptional circumstances are demonstrated,[6] including that the failure to order a stay would render any successful appeal nugatory.[7] This requires a balancing act to be undertaken with the well-established principle that a successful party is entitled to the fruits of a judgment.[8]
[4]Sandri v O'Driscoll [2013] VSCA 281, [40].
[5]Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685, 694.
[6]Uren v Uren [2017] VSCA 300, [50] (citing Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653, 656 (‘Cellante’)).
[7]Neate v Thoroughbred International Marketing Pty Ltd (2012) 34 VR 318, 320 [6] (citing Cellante).
[8]Maher v Commonwealth Bank of Australia [2008] VSCA 122, [27].
I had no basis to conclude that there was any prospect of the applicant obtaining leave to appeal. On this issue, Mr Elliott relied on Basten JA’s decision in Barakat v Goritsas, where his Honour considered that an appeal against a decision concerning the recusal of a trial judge was a matter that went the issue of the proper administration of justice, rather than an ordinary appeal on a matter of practice and procedure.[9] However, it could not follow from that observation that I was in a position to conclude, as was contended by Mr Elliott, that the foreshadowed application for leave to appeal was inherently likely to be granted.
[9][2012] NSWCA 8, [23].
In the circumstances, were I to have acceded to Mr Elliott’s application, I would have been doing nothing more than granting an indulgence, rather than exercising a discretion judicially. A judicially exercised discretion needs to be based on material, as explained by the High Court in Aon Risk Services Australia Ltd v Australian National University.[10]
[10](2009) 239 CLR 175, 215 [103].
For those reasons, I refused the application for a stay. The appropriate course for Mr Elliott to take is to make any application to the Court of Appeal.
I would add that the Court of Appeal does maintain a duty court. If it be the case that the damage that is likely to flow from the future timetabling orders, or otherwise continuing with this proceeding over the next seven to fourteen days, is likely to be irreparable, I see no reason why Mr Elliott cannot urgently apply to the Court of Appeal. If he can establish a basis for it to intervene, that court will provide directions as to what should happen to this proceeding in so far as it concerns him, while it hears and determines the application for leave to appeal.
In any event, it seems to me that if Mr Elliott intends to act in accordance with the instructions that Mr Price deposes to having received, his application will need be brought on as a matter of priority, and not within the normal period of time allowed under the Rules.[11] The proceeding was remitted to the Trial Division by the Court of Appeal in November 2018.[12] The trial of the remitter commenced in July this year and is presently part heard. It has reached the stage where the parties were about to file final submissions, to be followed by a hearing in which the oral submissions addressing those written final submissions would be heard by the court, and the matter would then be reserved for final decision. The proceeding is accordingly at a very late stage of what has been a very long process for many parties. I do not wish to say anything further about that.
[11]Rules r 64.05.
[12]Botsman v Bolitho (2018) 57 VR 68.
It will be a matter for the Court of Appeal, on the basis of proper material, to determine what kind of interim relief it might be prepared to grant that would affect the further conduct of the remitter.
Mr Elliott’s summons filed 9 September 2020 is dismissed.
Given that the proceeding was listed for a directions hearing at the same time that the summons was heard and determined, I will not make any specific order in respect of costs of the application. I will order that the costs of the hearing be reserved.
SCHEDULE OF PARTIES
S CI 2012 07185
BETWEEN:
| LAURENCE JOHN BOLITHO | First Plaintiff |
| AUSTRALIAN FUNDING PARTNERS PTY LIMITED | Second Plaintiff |
| - and - | |
| JOHN ROSS LINDHOLM IN HIS CAPACITY AS SPECIAL PURPOSE RECEIVER OF BANKSIA SECURITIES LIMITED (ACN 004 736 458) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) | First Defendant |
| NORMAN O’BRYAN SC | Second Defendant |
| MICHAEL SYMONS | Third Defendant |
| ANTHONY ZITA AND PORTFOLIO LAW PTY LTD | Fourth Defendant |
| ALEXANDER CHRISTOPHER ELLIOTT | Fifth Defendant |
| PETER TRIMBOS | Sixth Defendant |
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