Legal Research
Cases
Elliott v Lindholm

Elliott v Lindholm

Case [2020] VSCA 260 2 October 2020

Civil Litigation & Procedure

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0092

ALEXANDER CHRISTOPHER ELLIOTT	Applicant
v
JOHN ROSS LINDHOLM in his capacity as special purpose receiver of BANKSIA SECURITIES LIMITED (recs & mgrs apptd) (in liq) & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

---

JUDGES:	McLEISH, FORREST, and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 September 2020
DATE OF JUDGMENT:	2 October 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 260
JUDGMENT APPEALED FROM:	[2020] VSC 567 (John Dixon J)

---

COURTS AND JUDGES — Apprehended bias – Recusal application – Statements by trial judge as to whether overarching obligations breached by practitioner – Practitioner joined on Court’s own motion – Whether correct principle for apprehended bias applied – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, applied – British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, distinguished – Whether basis of joinder gave rise to apprehended bias – Where person’s contravention of overarching obligations at issue but not subject of finding, Court may join person under Supreme Court (General Civil Procedure) Rules 2015 r 9.06 or Civil Procedure Act 2010 s 29(2)(b) – Neither basis could have given rise to apprehended bias – Whether judge’s statements gave rise to apprehended bias – No apprehended bias in context – Leave to appeal refused.

LEGAL PRACTITIONERS — Obligation of candour – Privilege against self-incrimination – Order that practitioner depose to ‘full and frank’ explanation of impugned conduct, unconfined to specific allegations – Whether Court has power to require practitioner to give evidence – Supervisory jurisdiction empowers Court to require practitioner whose conduct is impugned to give evidence – Whether power properly exercised – Order sought prematurely to resolve relationship between obligation of candour and privilege against self-incrimination – Resolution to occur once practitioner gives or refuses to give evidence – NSW Bar Association v Meakes [2006] NSWCA 340, considered – Order improperly resolved relationship by treating candour as overriding privilege against self-incrimination – Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323, applied – Order overly broad – Leave to appeal granted – Appeal allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr C Button QC with	Garland Hawthorn Brahe
Mr G Kozminksy and	Lawyers
Mr A Christophersen
For the First Respondent	Mr R Dick SC with	Maddocks
Mr J Redwood

McLEISH JA

FORREST JA
WEINBERG JA:

This application for leave to appeal arises from ongoing litigation in a group proceeding. The plaintiff to that proceeding, Mr Bolitho, commenced it on his own behalf and on behalf of debenture holders who suffered loss on the collapse of Banksia Securities Ltd (‘Banksia’), a non-bank lender. The proceeding was funded by the second plaintiff, Australian Funding Partners Pty Ltd (‘AFPL’), a litigation funder.

The group proceeding was commenced against a number of parties said to be responsible for allowing Banksia to undertake the acquisition of a competitor which was in a weak financial position. The merger caused the collapse of Banksia.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elliott v Lindholm

Details

AGLC: Alexander Christopher Elliott v John Ross Lindholm in his capacity as special purpose receiver of Banksia Securities Limited (recs & mgrs apptd) (in liq) & Ors (According to the Attached Schedule) [2020] VSCA 260
Case: [2020] VSCA 260
Decision Date: 2 October 2020

CaseChat Overview and Summary

In the case of Elliott v Lindholm, the dispute arose between the parties involved in a legal proceeding, and the matter was heard by the Supreme Court. The central issue in this case was the potential for apprehended bias on the part of the trial judge, as well as the obligations of legal practitioners under overarching obligations and the privilege against self-incrimination. The court was tasked with determining whether the judge's actions or statements had caused the parties to lose confidence in the fairness of the trial, and whether the trial judge had correctly exercised his powers when ordering a practitioner to give evidence.

The primary legal issue before the court was whether the trial judge's statements regarding the potential breach of overarching obligations by a legal practitioner gave rise to an apprehended bias. The court needed to determine the correct principle for applying apprehended bias in this context and whether the basis for the joinder of the practitioner on the court's own motion could have led to such bias. Additionally, the court had to assess whether the judge's statements themselves were sufficient to cause an apprehension of bias. The court also needed to examine whether the trial judge properly exercised his power when ordering the practitioner to give evidence, and whether the order properly resolved the relationship between the obligation of candour and the privilege against self-incrimination.

The court found that there was no apprehended bias in the context of the case, as neither the basis of the joinder of the practitioner nor the judge's statements could have led to such bias. The court held that the principles established in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied, while distinguishing the case of British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283. Furthermore, the court found that the trial judge had not improperly exercised his power when ordering the practitioner to give evidence, but that the order had improperly resolved the relationship between the obligation of candour and the privilege against self-incrimination by treating candour as overriding the privilege. As a result, the order was considered overly broad and the appeal was allowed. Leave to appeal was granted, and leave to appeal was refused in relation to the apprehended bias issue.

Orders