Bolitho v Banksia Securities Limited (No 18)
Supreme Court of Victoria
John Dixon J
11/10/2021
[2021] VSC 666
Legal practitioners — Overarching obligations — Paramount duty to court — Fraudulent scheme to obtain grossly inflated legal costs and litigation funding commission from settlement of group proceeding — Repeated contraventions of duty and obligations — Where conduct corrupted the proper administration of justice — Where solicitor on record played only a post-box role — Where targeted destruction of documents discovered — Civil Procedure Act 2010 (Vic), ss 10, 16–19, 21, 24
Practice and procedure — Paramount duty to court — Whether breach of fiduciary duty to client is a breach of paramount duty to court — Whether solicitor and counsel for lead plaintiff in group proceedings have fiduciary duty to unrepresented group members when negotiating, documenting and seeking court approval of a settlement — Where solicitor on record played only a post-box role — Civil Procedure Act 2010 (Vic), s 16
Practice and procedure — Expert witness — Evidence — Paramount duty to court and overarching obligations of expert witness — Costs lawyer engaged to opine on reasonableness of legal costs — Expert falsely represented compliance with Expert Code of Conduct — Expert not independent and acted as advocate — Failure by expert to make appropriate enquiries, apply specialised knowledge and disclose all facts, matters and assumptions relied on in preparing report — Where contraventions materially contributed to deception of court by other contraveners — Civil Procedure Act 2010 (Vic), ss 10, 16, 21
Legal practitioners — Barristers — Removal from Supreme Court roll on court’s own motion — Where counsel party to fraudulent scheme — Deliberate breach of paramount duty and overarching obligations under Civil Procedure Act 2010 (Vic) — Whether fit and proper persons to remain on the Supreme Court roll – Where defendants concede removal appropriate — Legal Profession Uniform Law (Vic), s 23
Practice and procedure — Death of party — Where contravener of overarching obligations died after joinder to proceeding — Whether jurisdiction to order compensation abated upon defendant’s death — Whether contravention of overarching obligations constitutes a cause of action — Administration and Probate Act 1958 (Vic) — Civil Procedure Act 2010 (Vic), s 29
Practice and procedure — Discovery — Obligations of parties and practitioners to the proper administration of justice — Where targeted destruction of documents discovered — Civil Procedure Act 2010 (Vic), s 16
Practice and procedure — Contraventions of overarching obligations — Compensation — Whether appropriate in the interests of justice to award compensation to group members who suffered loss caused by contraventions — Whether contravening conduct materially contributed to loss — Whether legal costs or other costs or expenses of any person arising from the contravention — Quantification of compensation — Penalty interest — Whether judgment for compensation ought to be limited to the proportionate responsibility of each individual contravener — Civil Procedure Act 2010 (Vic), s 29 — Penalty Interest Rates Act 1983 (Vic) — Wrongs Act 1958 (Vic), pt 4AA
Read the judgment here.