O'Bryan v Lindholm [2024] VSCA 130 (13 June 2024)

Last Updated: 13 June 2024

SUPREME COURT OF VICTORIA COURT OF APPEAL

S EAPCI 2023 0090

NORMAN O’BRYAN	Applicant
v
JOHN ROSS LINDHOLM IN HIS CAPACITY AS SPECIAL PURPOSE RECEIVER OF BANSKIA SECURITIES LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)	Respondent

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JUDGES:	KENNEDY, WALKER and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2024
DATE OF JUDGMENT:	13 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 130
JUDGMENT APPEALED FROM:	[2023] VSC 442 (John Dixon J)

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PRACTICE AND PROCEDURE – Incompetency – Application for application for leave to appeal to be struck out as incompetent – Applicant seeks to set aside ‘findings’ contained in seven paragraphs of judge’s reasons for making non-party costs orders – Whether common law right to appeal – No common law right to appeal – Whether findings constituted ‘determination[s]’ within the meaning of s 17(2) of the Supreme Court Act 1986 – Concept of ‘determination’ in s 17(2) does not extend to findings made – Application for leave to appeal struck out as incompetent.

PRACTICE AND PROCEDURE – Summary dismissal – Application for summary dismissal of application for leave to appeal – Where Settlement Deed entered into – Application for leave to appeal has no prospect of success by reason of Settlement Deed.

Supreme Court Act 1986, s 17(2); Charter of Human Rights and Responsibilities Act 2006, s 32(1).

Lake v Lake [1955] P 336; [1955] 2 All ER 538; Commonwealth v Bank of New South Wales [1949] HCA 47; (1949) 79 CLR 497; City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] VicRp 10; [1994] 1 VR 163; TGIO v Viney [1995] TASSC 20; (1995) 4 Tas R 236; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; Sherman v Roads Corporation [2011] VSCA 149; (2011) 33 VR 119; AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674, applied.

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Counsel
Applicant:			In person
Respondent:			Mr M Grady
Solicitors
Applicant:
Respondent:			Maddocks

KENNEDY JA
WALKER JA
MACAULAY JA:

PART A: INTRODUCTION

1. This application arises out of two group proceedings brought against the debenture trustee of Banksia Securities Ltd (‘Banksia’). Although those proceedings ultimately settled, and this Court approved a settlement sum of $64 million, it remitted for the determination of a trial judge the application by the litigation funder, Australian Funding Partners Ltd (the ‘funder’), for its funding commission and legal costs.^[1]
2. The trial judge subsequently conducted an inquiry under s 29 of the Civil Procedure Act 2010 into the conduct of the applicant, Mr Norman O’Bryan, a former senior counsel, as well as various other persons alleged to be associated with the funder. After a protracted hearing which took place between July 2020 and March 2021, on 11 October 2021, the trial judge delivered reasons of some 647 pages (the ‘Remitter Judgment’).^[2] His Honour made extensive adverse findings against Mr O’Bryan, including that he was one of the ‘masterminds’ of a ‘dishonest and fraudulent scheme’.^[3]
3. The trial judge made orders on the same date (the ‘October 2021 orders’) which relevantly:

(a) dismissed the application by the funder for $12.8 million in funder’s commission and for legal costs of $4.75 million;

(b) ordered the applicant and others to pay the respondent compensation of $11,700.128 together with costs;

(c) ordered that the applicant’s name be removed from the roll of persons admitted to the legal profession; and

(d) adjourned the respondent’s summons which sought costs orders against various non-parties (the ‘Non-Party Costs Summons’) to a date to be fixed. That summons was sought against, inter alia, two entities (Noysue Pty Ltd and Noysy Pty Ltd) alleged to be associated with the applicant (the ‘O’Bryan entities’), as well as various entities associated with Mark Elliott, a former solicitor, who was now deceased (the ‘Elliott entities’).

4. The applicant did not seek leave to appeal the October 2021 orders. On 30 October 2021, the applicant filed a debtor’s petition and was declared bankrupt.
5. The applicant, as well as the O’Bryan entities, later entered into a settlement deed with the respondent dated 27 March 2023 (‘Settlement Deed’).^[4] As found by the trial judge, the salient terms of the Settlement Deed are:

(a) the claims against the applicant and the O’Bryan entities are dismissed;

(b) the applicant and the O’Bryan entities will pay a settlement sum of $1.25 million to the respondent to be distributed to all debenture-holders of Banksia pari passu in accordance with a settlement distribution scheme approved earlier by the trial judge on 22 May 2019; and

(c) the settlement sum was in full and final satisfaction of the applicant’s liability under the Remitter Judgment, and to compromise the respondent’s claims for non-party costs orders against the O’Bryan entities.^[5]

6. On 31 July 2023 the trial judge relevantly made the following orders (the ‘July 2023 orders’):

(a) that the respondent had power to settle all claims against the applicant and the O’Bryan entities on the terms of the Settlement Deed;

(b) that the respondent was justified in causing Banksia to settle its claims made against the applicant and the O’Bryan entities, including its rights to enforce the Remitter Judgment, on the terms set out in the Settlement Deed; and

(c) an order dismissing the respondent’s claims (for non-party costs orders) against the O’Bryan entities.

7. On that same day, the trial judge published reasons for judgment (the ‘Non-Party Costs Reasons’).^[6] Those reasons contained reasons for making the July 2023 orders, as well as reasons for making non-party costs orders in respect of the Elliott entities (which had been made earlier, by consent, on 1 March 2023).
8. The applicant has now filed an application for leave to appeal, which seeks orders that ‘set aside’ certain ‘findings’ made against him in seven paragraphs of the Non-Party Costs Reasons (the ‘relevant paragraphs’). The relevant paragraphs are set out in Appendix 1 to these reasons.
9. The respondent has applied for three alternative orders in respect of the application for leave to appeal:^[7]

(a) that the application for leave to appeal be struck out as incompetent;

(b) summary dismissal on the basis of the Settlement Deed; or

(c) security for his costs.

10. For reasons which follow, the application for leave to appeal will be struck out because it is incompetent. If it had been necessary to determine, we would have also dismissed the application by virtue of the Settlement Deed. It is otherwise unnecessary to determine the application for security for costs.

PART B: BACKGROUND

11. Following the remittal to the trial judge by this Court, his Honour appointed a Contradictor. The Contradictor alleged that the funder was disentitled from recovering any amount (including its claims for costs) by reason of its dishonesty and misconduct, and the dishonesty and misconduct of its agents, which included the applicant. The Contradictor claimed that the funder and its agents breached the paramount duty and overarching obligations under the Civil Procedure Act 2010 and should be ordered to pay compensation for the delay in distribution to debenture-holders of their just entitlements, and to pay the cost of the remitter on an indemnity basis.^[8]
12. After the Contradictor’s opening at trial had concluded, the applicant’s counsel informed the court of the following:

First, [the applicant] will not maintain any further defence of the allegations that have been made against him in this proceeding by the Contradictor in the revised list of issues dated 21 July 2020 and its particulars. In those circumstances, [the applicant] would not be entitled to, and he will not, contend against the court making findings in respect of him in accordance with those allegations.

Secondly, your Honour, [the applicant] consents to the entry of judgment against him (a) for money liability under section 29 of the Civil Procedure Act in such amount as the court determines on the evidence before it and (b) otherwise on the terms as the court sees fit.

Thirdly, your Honour, [the applicant] will not oppose this honourable court removing his name from the Supreme Court roll. He accepts that this should occur.

Fourthly, [the applicant] will not seek payment of any of his unpaid fees in this matter. He abandons any right to such payment.

Your Honour, we are instructed to record that in taking this course [the applicant] seeks to convey and give some measure of effect to his contrition and his very deep regret at his actions and to do what he is now able to do to assist in these proceedings being brought to conclusion.

Consistently with the foregoing, (a) there will be no cross-examination of any witnesses on behalf of [the applicant]; (b) [the applicant’s] affidavits will not be read and he will not be giving evidence; and (c) no submissions will be made on [the applicant’s] behalf in closing.^[9]

13. On 18 August 2020, the respondent filed the Non-Party Costs Summons.
14. On 16 March 2021, the trial judge refused an application by the applicant for leave to reopen his case to tender evidence and make submissions.^[10] The applicant did not seek leave to appeal from that decision.
15. As indicated already, the trial judge delivered the Remitter Judgment on 11 October 2021 and made the October 2021 orders. The applicant did not seek leave to appeal any of the October 2021 orders and was declared bankrupt on 30 October 2021.
16. The respondent’s application for non-party costs orders against the Elliott entities was heard on 15 November 2022.^[11] On 1 March 2023, the trial judge ordered, by consent, that each of the Elliott entities pay the costs of and incidental to the proceeding, including the Contradictor’s costs, on an indemnity basis. The order recorded the following in ‘Other Matters’:

The application against the remaining respondents in the amended summons is yet to be heard. The reasons for all the orders made in respect of the amended summons will be delivered together.

17. The respondent continued to prosecute the application against the O’Bryan entities until, on 27 March 2023, the Settlement Deed was entered into. By amended summons dated 2 June 2023, the respondent then sought an order, inter alia, that he was justified in causing Banksia to settle its claims on behalf of debenture-holders against the applicant and the O’Bryan entities, and that the claims against them be dismissed.
18. The trial judge subsequently made the July 2023 orders and also provided reasons for the making of these orders (the Non-Party Costs Reasons), as well as reasons for making the earlier orders made in respect of the Elliott entities on 1 March 2023.
19. The applicant filed the present application for leave to appeal on 4 September 2023.^[12] Soon after, on 15 September 2023, the applicant and the O’Bryan entities paid the respondent the $1.25 million due under the Settlement Deed.
20. The application for leave to appeal identifies the ‘decision from which the application for leave is made’ as being the decision made by the trial judge dated 31 July 2023. However, in response to question 2: ‘Is the whole of the decision sought to be appealed or appealed?’, the applicant states:

No, only the findings made against the Applicant in the judgment at [2023] VSC 442 at [39], [40], [62], [74], [75], [76] and [93].

21. In response to question 8, the applicant identifies that the orders sought are:

A. The Applicant has leave to appeal.

B. The appeal is allowed.

C. The findings against the Applicant in paragraphs [39], [40], [62], [74], [75], [76] and [93] of the judgment of the Honourable Justice John Dixon delivered on 31 July 2023 ([2023] VSC 442) are set aside.

22. Thus, as he confirmed at the hearing of these applications, the applicant did not seek to set aside any of the July 2023 orders.
23. The respondent challenged the characterisation of the various ‘findings’ as findings of fact. He submitted that they constituted summaries of what was already contained in the Remitter Judgment, direct references to findings in the Remitter Judgment, or a recitation of evidence. However, for the purposes of this application we have assumed that they may be characterised as ‘findings’ as the applicant contends.
24. On 21 September 2023, the respondent filed a notice of objection to competency. The notice was amended on 18 October 2023. The amended notice alleged, inter alia, that the appeal was not competent because it was not an appeal from a ‘judgment, order or ruling of the Court.’ In submissions dated 1 November 2023 the respondent submitted that the source of the right to appeal was s 10 of the Supreme Court Act 1986.
25. However, by email from the Court on 6 May 2024, the parties were put on notice of the decision of this Court in Moorabbin Transit Pty Ltd v Bekhit (‘Moorabbin’).^[13] They were invited to address the issue whether, in the light of that decision, it was s 17(2) of the Supreme Court Act 1986 which conferred any right to appeal, and whether the scope of that right was to be determined by reference to s 17(2), rather than by reference to s 10. Section 17(2) provides that, unless otherwise provided by statute, ‘an appeal lies to the Court of Appeal from any determination’ of a judge of the Trial Division.
26. The respondent subsequently accepted that the source of the right to appeal was s 17(2) and that the scope of that right was to be determined by reference to that provision. He thereby sought and obtained leave^[14] on 10 May 2024 to file a further amended notice of objection to competency which alleges that:

1A. The appeal is incompetent because it is not an appeal from a ‘determination’ of the Trial Division within the meaning of s 17(2) of the Supreme Court Act 1986.

1B. The applicant does not have standing to bring the appeal because:

a) he is not a party to, or bound by, the orders to which the impugned findings relate; and/or

b) he is not aggrieved or prejudicially affected by, or has a sufficient interest in, the orders made by the Court.

4. The Applicant is precluded from maintaining this Application by virtue of the operation of a deed of settlement and release signed by the Applicant and Respondent on 27 March 2023, a copy of which is annexed as Attachment A to this notice.^[15]

PART C: COMPETENCY OF THE APPEAL

(1) Submissions

(a) Respondent’s submissions

27. In written submissions, the respondent contended that the appeal for which leave was sought was incompetent for two reasons.
28. First, he submitted that the application lacks the ‘necessary character of an appeal’. The applicant merely seeks to rewrite the reasons by removing the relevant paragraphs that he finds objectionable, rather than change the result of the proceeding, or set aside or vary any judgment or order made by the court. The respondent submitted that, consistent with a number of longstanding authorities,^[16] this is not a permissible exercise of appellate jurisdiction.
29. Second, the respondent contended that, subject to supervening constitutional considerations arising from s 73 of the Constitution, a right to appeal is exclusively statutory.^[17] The respondent submitted that the relevant paragraphs sought to be challenged did not affect legal rights or dispose of any matter or controversy involving the applicant’s legal rights and liabilities. Rather, those paragraphs essentially repeated findings made in the Remitter Judgment from which there was no appeal and which are not subject to challenge in this application for leave to appeal.
30. In oral submissions the respondent focused on s 17(2) of the Supreme Court Act 1986 as the source of the right to appeal. The respondent submitted that, whatever the precise ambit of the concept of a ‘determination’, it has, at its minimum, a ‘formal operative judicial act’ which disposes of, or deals with, a proceeding or some part of a proceeding, or at the very least, some justiciable controversy. Further, that it conveyed something at the ‘end of the process’, and not at some point along the way. Although it might extend to rulings, grants of leave, and answers to preliminary questions which may not be drawn up in an order, it does not extend to findings of fact or statements of reasoning.
31. The respondent submitted that his construction was consistent with what little authority there was on the meaning of a ‘determination’.^[18]
32. The respondent also supported his construction by reference to the text, context and purpose of s 17(2) and submitted that there would be anomalous or absurd consequences if the concept of a ‘determination’ was to extend to the relevant paragraphs in this case.
33. In terms of text, the respondent cited various dictionary definitions and suggested that the focus of a ‘determination’ was on the end of the outcome and not some anterior part of the process.
34. In terms of context, the respondent submitted that s 17(2) should be read together with s 17(1) which provides that the judge may ‘hear and determine’ all relevant ‘matters’. This connotes the quelling of a justiciable controversy, and must colour the meaning of s 17(2). Further the concept of a ‘matter’ refers to the subject matter of the proceeding, connoting some immediate right, duty, or liability to be established by the determination.
35. The respondent also submitted that s 17(2) should be taken to have been enacted against a background of well understood concepts of the nature and extent of appellate power, which was concerned with whether a result ought to stand.^[19]
36. In terms of the consequences, the respondent highlighted a number of potentially troublesome consequences if the concept of a ‘determination’ under s 17(2) was to extend to the relevant paragraphs. These included that it would be impossible to know whether the result could stand in this case if the ‘findings’ contained in those paragraphs were overturned. This was particularly so given that the trial judge was also exercising a discretion in making costs orders and determining whether or not a settlement was justified. Further, a party might seek belatedly to appeal orders after having findings overturned, undermining finality.
37. The respondent therefore submitted that the appeal the subject of the leave application was incompetent.

(b) Applicant’s submissions

38. In written submissions the applicant contended that there was a ‘common law right to appeal’ against a denial of natural justice in any court. He commenced with the statement by Rich J in Cameron v Cole: ‘if [the principle of natural justice] be not observed, the person who is affected is entitled, ex debito justitiae, to have any determination which affects him set aside’.^[20] He submitted that this statement shows that the common law right which ‘the person who is affected’ has to apply to set aside ‘any determination which affects him’, is ‘quite different’ to a statutory right of appeal.
39. The applicant submitted that the principle in Cameron v Cole had been applied many times,^[21] and that a number of High Court authorities ‘make clear’ that the ‘right to appeal’ from a breach of natural justice is ‘implied into all statutes’ governing Australian courts and quasi-judicial tribunals.
40. The applicant placed particular reliance on British American Tobacco Australia Services Ltd v Cowell (‘British Tobacco’).^[22] In British Tobacco, Mr Wilson (a non-party to the proceeding below whose conduct was ‘much criticised’ by the trial judge) was given leave to be joined as a new party to support an appeal brought by one of the parties. The applicant submitted that it is clear from British Tobacco and the other authorities relied upon, that Mr Wilson ‘would have been given leave to appeal in his own right’ to set aside the findings made against him in the Trial Division.
41. The applicant also referred to the test for joinder articulated by Sifris J in Chickabo Pty Ltd v Zphere Pty Ltd (No 2),^[23] which he submitted would be satisfied in respect of his case.
42. In written submissions, the applicant conceded that rights of appeal are creatures of statute, but did not accept that appeal rights are ‘exclusively statutory’. He submitted that the decisions cited by the respondent were irrelevant because they had nothing to say about appeals based upon a denial of natural justice. Further, that they were based on different statutory contexts from that applicable in Victoria.
43. The applicant cited ss 14A and 10(3) of the Supreme Court Act 1986 and Order 64 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) in support of an expansive reading of the Court’s jurisdiction. In oral submissions he highlighted that s 14A(3) defines an appeal by reference to the Rules so that the definitions contained in Order 64 of the Rules are to be incorporated. This includes the definitions of ‘appeal’ and ‘decision’ contained in r 64.01.^[24] However, even if this was not the case, any findings made in breach of natural justice would be squarely within all of ss 10(3), 14A(3), 17(2) and Order 64.
44. In oral submissions, the applicant contended that the court should treat the objection to competency as a demurrer, such that it is necessary for the court to assume the facts as alleged in the application for leave to appeal. He submitted that the ‘only complaint’ he made in the application for leave to appeal was that there was a breach of natural justice. The ‘fundamental assumption’ which the Court should make, for the purposes of determining whether the appeal is incompetent, is therefore that there was a breach of natural justice.
45. Although in oral argument the applicant appeared to accept that an appeal is a creature of statute, he stated that the principles of natural justice were to be ‘implied into the statute’. He ultimately appeared to agree with the proposition that the Court should take the common law principles and use them to inform the interpretation of the word, ‘determination’, in s 17(2) of the Supreme Court Act 1986. He also accepted that there would be no right of appeal against a serious finding against a person where there was no alleged breach of natural justice.
46. In oral submissions the applicant also:

(a) relied on ss 8(3)^[25] and 24(1)^[26] of the Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’). He highlighted that s 32 provides that, so far as possible, all statutory provisions must be interpreted in a way that is compatible with human rights; and

(b) alleged that natural justice principles are inherent in Chapter III of the Constitution so that this Court must adhere to these principles in its decision‑making.

(2) Consideration

(a) Common law right

47. It was a little unclear from the applicant’s oral submissions to what extent he maintained that there is a ‘common law right’ to appeal.
48. In any event, the short answer to the applicant’s submission is that there is no common law right to appeal. As stated by the High Court in Dwyer v Calco Timbers Pty Ltd:

The issues which arise illustrate the proposition, emphasised in a number of decisions of this Court, that an ‘appeal’ is not a procedure known to the common law, but, rather, always is a creature of statute.^[27]

49. The footnote to this passage records that the authorities for this proposition are collected in Fox v Percy.^[28] Those authorities are longstanding and span the years from 1864 through to 2000.^[29]
50. In such circumstances, the applicant’s reliance on a common law right to appeal must be rejected, and we will instead turn to the applicable statutory framework.
51. Furthermore, insofar as the applicant relied on general cases governing natural justice principles, the applicant appears to have conflated two quite separate matters. The first matter concerns the circumstances in which a court will find that there is an obligation to accord principles of natural justice. The second, quite separate, matter concerns whether a right to appeal might be conferred where natural justice principles might have been breached, or otherwise.
52. The current application is concerned with the latter, and not the former, matter identified above. Thus, even assuming, for the purposes of the objection to competency, that the trial judge breached the principles of natural justice, this does not resolve the issue as to the competency of the appeal. This is because the cases cited do not support the existence of some separate ‘common law right’ to appeal based on a breach of natural justice, or otherwise. Nor — as the applicant himself ultimately acknowledged — did the cases suggest that there might be a right to challenge a finding by way of an appeal.
53. It is appropriate, in that regard, to say something about the authorities on which the applicant relied. The decision in Cameron v Cole, on which he placed considerable weight, concerned a sequestration order made where the debtor was not given notice of the hearing. In those circumstances, Rich J observed that a court which finds that it has been led to determine a matter in which there has been a failure to observe the principles of natural justice has an inherent jurisdiction to set its own decision aside.^[30] Cameron v Cole says nothing about a right of appeal in such circumstances. And the applicant acknowledged that he had not sought to have the trial judge set aside his own findings — that is, he had not followed the process envisaged by Rich J in Cameron v Cole.
54. The second decision on which the applicant placed considerable weight was British Tobacco, which concerned a claim in negligence for damages brought against a tobacco company. The judge found that the defendant had failed to comply with orders for discovery. He struck out the defence and gave judgment for the plaintiff for damages to be assessed, which were then assessed by a jury. The defendant appealed this judgment. During the course of the appeal, Mr Wilson, a solicitor, whose conduct had been criticised by the judge, was given leave to appear and make submissions at the hearing of the appeal. He was described in the appearances as ‘intervening by leave’.
55. There is no basis for the suggestion that Mr Wilson ‘would have been given leave to appeal in his own right’, as the applicant suggested. The issue arose in circumstances where a valid appeal was already on foot. The decision does not support the existence of some separate common law conferral of appellate jurisdiction in favour of Mr Wilson. If anything, the decision supports the view that the only circumstance in which an aggrieved non-party may be heard on an appeal in relation to adverse findings made against them is in the context of an appeal against the judgment or orders. The same point can be made about the applicant’s reliance on cases concerning the joinder of parties. The issue the applicant faces is not whether he might be joined as a party to an existing appeal. The issue is whether he has an independent ‘common law right’ to bring an appeal in the form he seeks.

(b) Statutory framework

56. In his oral submissions, the applicant sought to draw on the common law principles of natural justice in support of a statutory right to appeal. It is necessary, in that context, to consider the statutory framework in some detail.
57. In our opinion the decision of this Court in Moorabbin reveals the appropriate approach as to the source of any right to appeal in the present case. In Moorabbin, the defendant sought to apply for leave to appeal in respect of a ruling made by a County Court judge. Although there was some disagreement as to the scope of that ruling, the defendant alleged that the ruling purported to (wrongly) prevent it from arguing and adducing evidence to the effect that there were separate injuries, which could not be aggregated so as to establish a serious injury.
58. The defendant in Moorabbin submitted that there were two independent sources of jurisdiction for the Court of Appeal to hear the application, being both s 74 of the County Court Act 1958 and s 10(1)(c) of the Supreme Court Act 1986. The defendant also relied on ss 14A and 14B of the Supreme Court Act 1986. The defendant submitted that, by reading ss 10, 14A, 14B, and Order 64 of the Rules, together, it should be understood that an application for leave to appeal was not limited to ‘judgments or orders’, but extended to other decisions.^[31]
59. This Court, in Moorabbin, began by setting out the relevant statutory provisions,^[32] which we will re‑produce, beginning with s 74(1) of the County Court Act 1958 which relevantly provides that:

(1) Subject to this section, any party to a civil proceeding who is dissatisfied with any judgment or order of the court constituted by a judge ... may appeal from the same to the Court of Appeal with leave of the Court of Appeal ...

60. Section 10(1)(a)^[33] and (c) relevantly provide that:

Subject to this Act, the Court of Appeal has jurisdiction to hear and determine—

(a) all appeals from the Trial Division constituted by a Judge of the Court;

...

(c) all appeals from the County Court constituted by a Judge of that Court; ...

61. Section 14A(1) of the Supreme Court Act 1986 further provides:

... any civil appeal to the Court of Appeal requires leave to appeal to be obtained from the Court of Appeal.

62. Section 14A(3) provides:

For the purposes of this section, civil appeal means an appeal from a judgment or order made in exercise of civil jurisdiction, including an appeal by way of rehearing or judicial review, for which this Act, any other Act or the Rules provide an appeal to the Court of Appeal.

63. Section 14B(1) imposes a 28-day limit for applications for leave to appeal under s 14A:

An applicant for leave to appeal under section 14A must file an application for leave to appeal within 28 days from the date of the judgment, order, determination or other decision which is the subject of appeal unless the Rules otherwise provide.

64. This Court rejected the defendant’s arguments. It held that it is important to distinguish between the jurisdiction to hear and determine an appeal, and the right to actually commence an appeal. The Court did not consider that s 10(1)(c) should be read as conferring a right to appeal,^[34] saying this:

The jurisdiction this Court has to hear appeals, by reason of s 10(1)(c) of the Supreme Court Act, is limited by reference to the range of decisions in respect of which a party has a right to appeal. Here, that right is conferred by s 74 of the County Court Act with the consequential restrictions it imposes, namely, that an appeal can only be brought from a ‘judgment or order’ of the County Court.^[35]

65. The Court further rejected the defendant’s submissions based on ss 14A–14D stating:

The regime imposed by ss 14A–14D functions only to govern the manner in which appeals may be brought to the Court of Appeal. It does not, and does not purport to, prescribe the range of decisions from which an appeal can be brought.^[36]

66. The Court hence concluded:

To determine if a party has a right to appeal it is necessary to identify whether the Supreme Court Act, or any other Act, for example, the County Court Act or the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), confers that right to appeal, or whether the Rules provide for a right of appeal. The scope of that right, that is, the range of decisions from which an appeal can be brought, is to be determined by reference to the particular Act which confers the right.^[37]

67. Returning to the applicant’s case, it is of course not concerned with any decision of a County Court judge. It follows that s 74 of the County Court Act 1958 does not apply. Rather, the applicant’s case is concerned with challenging relevant paragraphs from the reasons of a Supreme Court judge. In such circumstances, it is necessary to turn to s 17,which relevantly provides:
    17. Business to be disposed of by Trial Division constituted by a Judge of the Court or by an Associate Judge

(1) The Trial Division constituted by a Judge of the Court may hear and determine all matters, whether civil or criminal, not required by or under this or any other Act or the Rules to be heard and determined by the Court of Appeal.

...

(2) Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge of the Court.

• Note
• See, for example, section 14A which requires leave of the Court of Appeal for civil appeals as defined in that section.

68. Pursuant to s 17(2), then, ‘an appeal lies’ to this Court from any ‘determination’ of a Supreme Court judge. Just as, in Moorabbin, s 74 of the County Court Act 1958 conferred a right to appeal (by providing that a party ‘may appeal’), in this case it is s 17(2) which confers the right to appeal — not s 10(1)(a). The scope of the right is also to be determined by reference to s 17(2). As indicated already, this was the position ultimately adopted by the respondent.
69. In considering the scope of s 17(2), it is necessary to consider the terms of the text and the context in which it appears. Although s 17(2) is contained in the Supreme Court Act 1986, we found the applicant’s references to the other provisions and the Rules to be generally unhelpful. Based on reasoning analogous to that adopted in Moorabbin, the jurisdiction to hear appeals by reason of s 10(1)(a) is limited by reference to the range of decisions in respect of which there is already a right to appeal. The regime imposed by ss 14A–‍14D also functions only to govern the manner in which an appeal may be brought, and does not purport to define the range of decisions from which an appeal can be brought.
70. The critical issue is therefore whether the ‘findings’ contained in the relevant paragraphs constitute ‘determination[s]’ within the meaning of s 17(2) of the Supreme Court Act 1986.

(c) Concept of ‘determination’ in s 17(2)
(i) Judicial consideration

71. There has been some judicial consideration of the meaning of a ‘determination’ within s 17(2) by the High Court in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (‘Roy Morgan’).^[38] The High Court held that the concept of a ‘determination’ in s 17(2) would extend to the primary judge’s refusal of leave to institute proceedings under s 148 of the Victorian Civil and Administrative Tribunal Act 1998. In so doing the plurality stated:

In this context, ‘determination’ must be read in s 17(2) as a word which embraces a wide variety of judicial decisions.^[39] It is not necessary to attempt to chart the limits of that embrace. It is enough to say that it is a word which would be apt to apply to a refusal of leave under s 148 of the VCAT Act, even if that refusal was not embodied in an order of the Court (as it was here).^[40]

72. The Court also observed that, given s 17(2) was a provision which conferred jurisdiction upon a court, it was, on that account alone to be given no narrow construction, but to be construed with all the amplitude that ‘the ordinary meaning of its words admits.’^[41]
73. The decision of City of Camberwell v Camberwell Shopping Centre Pty Ltd (‘Camberwell’)^[42] also considered s 10(2), which was the predecessor to s 17(2).^[43] In that case the trial judge had not pronounced orders, but there was an authenticated ‘judgment’ which stated that ‘the issues of liability raised by the council are not to be resolved in favour of the council and it is appropriate therefore to turn to the issues between the parties as to damages.’ The council sought to appeal this judgment, but the developer challenged the competency of the appeal. In particular, the developer contended that the determination was interlocutory such that leave to appeal must be obtained.
74. By majority (Marks and Gobbo JJ, Fullagar J dissenting), the Court found that the judgment was a final determination. The majority considered that the trial judge had held that the council was liable to pay damages to the developer for breach of contract and that he intended to proceed and assess those damages.^[44] However, beyond identifying that a determination was something different from an order,^[45] the majority focused on whether the judgment was final or interlocutory (ultimately finding it to be final).
75. Fullagar J took a different view as to the effect of the authenticated judgment. He found that the judgment did not order that damages be assessed, nor did it order the defendant to pay those damages.^[46] In this sense he was a dissenting judge. However, he also made the following observations as to the scope of s 10(2):

This is not the place, in a dissenting portion of a judgment, to embark on a detailed examination of s 10 of the Supreme Court Act 1986. All I will do is state my opinion that the ‘determinations’ referred to in sub-s (2) are the same determinations as are referred to in sub-s (1), and my opinion that the latter cover only determinations that are made by some order or declaration which is sufficient in its own terms to resolve a matter. An order that damages be assessed for an identified breach may determine an issue; a statement that submissions are rejected does not.^[47]

76. The above remarks were not the subject of any disagreement by the majority. Rather, as explained already, the majority differed as to the proper characterisation of the ‘judgment’ in that particular case.
77. The parties also made reference to a decision of the Tasmanian Supreme Court, TGIO v Viney.^[48] That case involved an appeal from a finding made by the Workers Compensation Commissioner about when an injury occurred. One of the issues was whether that finding was a ‘determination’ for the purposes of s 63 of the Workers Compensation Act 1988. In concluding that it was not, the judge stated:

The word determination is in common use to confer statutory rights of appeal. Although its meaning falls to be construed in the context of the statutory framework in which it is enacted, there appears to be a common judicial thread that generally, the word refers to an adjudication that resolves or deals with the substance of the issue that is before the tribunal for resolution.^[49]

78. The judge found that the concept of a ‘determination’ did not extend to all findings of fact made in the course of determining the ‘lis’ between the parties.^[50]
79. These authorities, while supporting the proposition that the word ‘determination’ is to be construed broadly, are also consistent with that term having a meaning directed to the resolution of a dispute,^[51] rather than particular factual findings that are made along the way to the resolution.

(ii) Construction of s 17(2)

80. In construing s 17(2) it is necessary to have regard to the text, context and purpose of the provision, ^[52] in the light of the relevant authorities. It can also be relevant to consider the consequences of any construction, where there are competing constructions.^[53]
81. Turning first to the text, a number of the applicant’s submissions can be readily rejected.
82. First was the submission that the principles of natural justice ought somehow be ‘implied into the statute’ in such a way as to confer a right to appeal in the present case. There was much confusion as to precisely the basis on which this was to occur. However, none of the ways suggested were helpful.

(a) First, insofar as it was submitted that the Supreme Court is required by statute to accord natural justice, that may be accepted; but, as already explained, this does not resolve the completely separate issue as to whether the statute has conferred a right to appeal of the kind that the applicant seeks to invoke.

(b) Second, insofar as it was suggested that the concept of a ‘determination’ should be somehow extended in circumstances where a breach of natural justice is alleged — but not otherwise — the submission was devoid of merit. There is nothing in the text of the statute that can justify such an approach. Rather, the concept of a ‘determination’ must necessarily be consistent, regardless of the basis upon which that determination is challenged.

83. For similar reasons, the applicant’s submissions based on the Charter did not advance his position. Although statutory provisions must be interpreted in a way that is compatible with human rights, this is only ‘so far as it is possible to do so’.^[54] The applicant was unable to identify how the language of the statute, interpreted in light of the Charter, could be read so that a finding made in breach of natural justice would somehow be an appellable ‘determination’, when a patently incorrect finding would not.
84. Returning, then, to the statutory language in this case, s 17(2) uses the word, ‘determination’. Self-evidently, then, Parliament has chosen not to use the word, ‘finding’ at all, although it could have readily included reference to such a concept. The focus instead must be restricted to the concept of a ‘determination’.
85. The Macquarie Dictionary includes the following meanings of a ‘determination’:

(a) ‘the act of coming to a decision; the fixing or settling of a purpose’;

(b) ‘a result ascertained; a solution’;

(c) ‘the settlement of a dispute, etc., by authoritative decision’;

(d) ‘the decision arrived at or pronounced’; and

(e) ‘Chiefly Law conclusion or termination.’^[55]

86. The Oxford English Dictionary includes the following meanings:

(a) ‘A bringing to an end; a coming to an end; ending; termination’;

(b) ‘The ending of a controversy or suit by the decision of a judge or arbitrator; judicial or authoritative decision or settlement (of a matter at issue)’; and

(c) ‘The result ascertained by this action; that which has been determined by investigation or calculation; a conclusion, a solution.’^[56]

87. The natural meaning of the word, ‘determination’ therefore focuses on a ‘result’, ‘ending’, or ‘decision’, rather than a step along the way.
88. The context in which s 17(2) appears confirms this ordinary meaning of the word ‘determination’. Thus, s 17(1) provides for the Court to ‘hear and determine’ all ‘matters’. Section 17(2) is then concerned with the conferral of a right to appeal, but only after the ‘determination’ of the judge. In our view the ‘determination’ in sub-s (2) is clearly intended to refer to the same ‘determination’ which is the subject of sub-s (1): ie, determinations made which resolve a ‘matter’.
89. In reading ss 17(1) and (2) together, then, the obvious purpose of s 17(2) is to provide for the crystallisation of a right to appeal after a ‘matter’ has been finalised. The concept of a ‘matter’ in s 17(1) will include a proceeding, or some part of a proceeding. It may also extend to a justiciable controversy requiring the determination of the court, including an interlocutory determination. However, any such controversy would involve a controversy over some right, duty, or liability so as to be appropriate for the determination of the court.^[57] It would not extend to the making of findings of fact preliminary to the making of an operative decision.
90. This construction of s 17(2) is also consistent with the longstanding jurisprudence concerning the nature of an ‘appeal’ as something which is concerned with changing the result (usually the orders) affecting the rights of the parties, rather than correcting the findings made, or reasons given, as a step along the way. For example, in 1949 in Commonwealth v Bank of New South Wales (‘Bank Nationalisation Case’),^[58] the Privy Council said as follows:

[A]n appeal is the formal proceeding by which an unsuccessful party seeks to have the formal Order of a court set aside or varied in his favour by an appellate court. It is only from such an order that an appeal can be brought. In s 74 the appeal is described as an appeal ‘from a decision of the High Court’ and so far no difficulty arises. ‘Decision’ is an apt compendious word to cover ‘judgments, decrees, orders and sentences’, an expression that occurs in s 73. It was used in the comparable context of the Judicial Committee Acts of 1833 and 1843 as a general term to cover ‘determination, sentence, rule or order’ and ‘order, sentence or decree.’ Further, though it is not necessarily a word of art, there is high authority for saying that even without such a context the ‘natural, obvious and prima-facie meaning of the word “decision” is decision of the suit by the Court’ ...^[59]

91. In Lake v Lake,^[60] a lower court had dismissed a petition for a divorce. The wife did not seek to change the result, but rather sought to challenge a finding that she had engaged in adultery. The United Kingdom Court of Appeal found that the right of appeal did not extend to a finding or statement in the reasons given by the court. Evershed MR, in the leading judgment, stated:

From that it seems to me to follow inevitably that we could not now entertain an appeal upon the matter of fact, Aye or No, was the wife guilty of adultery? for the short and simple reason that, even if we came to the conclusion that the commissioner formed a wrong view on the facts, we could not make any alteration in the form of the order under appeal. It would still stand correctly recording the result of the proceedings, exactly as it stands now. I go further. Let it be supposed that Mr Laughton-Scott [counsel for the wife] were free to raise this matter in the court, and that the court came to the conclusion – as sometimes does happen – that the manner of the trial of this issue was not satisfactory – I am not, of course, suggesting we should in this case, because we have not gone into it – the right course for the court to take, presumably, would then be to order a new trial. A new trial of what? That again, as I think, shows the impossibility of our acceding to Mr Laughton-Scott’s request, for I cannot see how we could possibly order the issue of adultery as such to be retried, seeing that a retrial could not possibly lead, in the circumstances, to any effective result whatever.^[61]

92. More recently, in AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘AZC20’), Kiefel CJ, Gageler and Steward JJ said this:

An appeal is against orders, not reasons for judgment.^[62] The respective rights, duties or liabilities of the parties have been determined by the orders that have been made by the court below, including, usually, an order as to costs. There has been an exercise of judicial power; the whole or part of the controversy between the parties has been quelled. Where a final judgment has been rendered, the rights and obligations in controversy, as between those persons, cease to have an independent existence: they ‘merge’ in the final judgment^[63] and no action can be brought upon the extinguished rights and obligations.^[64] However, orders may be set aside on appeal where the primary judge is shown to have erred.^[65] An appellate court is then obliged, unless the matter is remitted for rehearing, to ‘give the judgment which in its opinion ought to have been given in the first instance’.^[66]

On appeal, therefore, the question is not whether the party can establish the claimed legal right, duty or liability, as that question has been determined. The question is not whether the party continues to have the interest necessary to obtain relief, because that question has been overtaken by the grant of relief or by the refusal of relief. The question on appeal and for determination on appeal is whether the orders of the primary judge should be affirmed, varied or reversed — that is, whether the appeal should be allowed and, if so, what orders should be made in the place of the primary judge's orders. But the appellate court’s supervisory function over the exercise of original jurisdiction by the primary judge is not an end in itself. The second element required to form a ‘matter’ still applies — there must be a controversy over some immediate right, duty or liability. Usually, there is a live controversy because the orders of the primary judge continue to have effect in determining the parties’ rights, duties or liabilities, unless set aside on appeal.^[67] In seeking to appeal the orders made at first instance, one or more of the parties are seeking to challenge the continuing effect of the orders on the determination of their respective rights, duties or liabilities.^[68]

93. Although AZC20 was concerned with the jurisdiction of the Federal Court, within the constitutional context, the passage above draws on a wide range of historical common law authorities, including the Bank Nationalisation Case, to explain the well understood concept of an appeal. Parliament may be taken to have been generally aware of such longstanding jurisprudence in enacting the Supreme Court Act in 1986 (including s 10(2), being the predecessor provision to s 17(2)).
94. Critically, then, as the High Court explained, an appeal is not against reasons for judgment. Moreover, there is nothing in the text, or context of s 17, or its predecessor, which would suggest that an appeal right should extend to a right to separately challenge individual findings made in reasons given by a judge.
95. We also agree with the respondent that an examination of potential consequences supports the construction that we have reached. Consistent with the concerns raised in Lake v Lake, it is unclear what consequences would flow if any one of the findings in the relevant paragraphs was to be ‘set aside’.^[69] The ability to attack individual findings would also considerably increase the volume of appeals (and potentially remittals) without clear justification. Such fragmentation undermines principles of finality and should not be adopted absent express and clear words.
96. Having regard, then, to the text, context and purpose, together with the relevant authorities, we consider that a ‘determination’ connotes the finalisation of a matter or other operative decision that affects rights, duties or liabilities. It would not include the making of findings of fact prior to the making of an operative decision of that kind. It is otherwise unnecessary to explore the precise parameters of a ‘determination’. Whatever its precise scope, it does not extend to the findings made in the relevant paragraphs that the applicant seeks to challenge.
97. The appeal in respect of which leave is sought is thus incompetent.

PART D: SUMMARY DISMISSAL

98. It is strictly unnecessary to consider whether the applicant is also precluded from bringing his application by reason of the Settlement Deed. However, in our view he would be so precluded even if, contrary to the above, the application was otherwise competent. Our reasons for this may be shortly stated.
99. The respondent relies on the Settlement Deed as a complete answer to the application for leave to appeal. In particular he relies on cl 5.3 which provides:

5. Releases

...

Release by the O’Bryan Entities

5.3 On and from release of the Settlement Sum to the SPR [Special Purpose Receiver] in accordance with clause 4.2, the O’Bryan Entities^[70] and the O’Bryan Trustee agree to:

5.3.1 release and discharge BSL [Banksia (Special Purpose Receiver Appointed) (In Liquidation)], the SPR, the Former SPR, and their Related Entities from all Claims relating to the subject matter of the Released Matters; and

5.3.2 not commence or maintain any Claim against BSL, the SPR, the Former SPR, and their Related Entities relating to the subject matter released in clause 5.3.1 (with the exception of a claim or action for breach or enforcement of this Deed).

100. Further he relies on cl 7 which provides:
     7. Bar to further proceedings

7.1 This Deed may be pleaded as full and complete defence by a Party to any Claim brought by the other Party relating to the subject matter of the Released Matters, other than in relation to the obligations created under this Deed.

7.2 The production of this Deed in any court constitutes a bar against the issue or continuation of legal proceedings against the Parties in respect of the subject matter of the Released Matters, other than in relation to the obligations created under this Deed.

101. The following defined terms are contained in cl 1:

Claim means any claim, allegation, debt, cause of action, liability, proceeding or demand of any nature however it arises and whether it is present or future, fixed or unascertained, actual or contingent (whether or not the facts, matters or circumstances giving rise to that claim are known to that person or to any other person at the date of this Deed) and whether at law, in equity, under statute or otherwise.

Released Matters means all claims relating or incidental to the:

a) Bolitho Proceeding;

...

c) Remitter;

d) Remitter Judgment;

...

g) Non-party Costs Summons.

102. The respondent’s position is relatively straightforward. He says that the application for leave to appeal constitutes a ‘Claim’ ‘relating to the subject matter of the Released Matters’ for the purposes of both cls 5.3 and 7.1. It follows that the applicant is precluded from maintaining his application by virtue of the operation of the Settlement Deed.
103. By contrast, the applicant, first, relies on the terms of cl 3 which provides:

3. Conditions Precedent

This Deed is subject to and conditional upon each of the following conditions being satisfied:

3.1 within 7 days of the Operative Date, the O’Bryan Entities paying the Settlement Sum to the Hope & Co Trust Account;

3.2 the SPR receiving the approval of the Committee to settle the Claims against the O’Bryan Entities on the terms of this Deed;

3.3 the making of the Settlement Approval Orders; and

3.4 if the Settlement Approval Orders are made:

3.4.1 any appeal period in respect of the Settlement Approval Orders (whether under the rules of the Court, the Court of Appeal, or the High Court) expiring without an appeal being commenced; and/or;

3.4.2 in circumstances where an appeal(s) is commenced, or application for special leave is made, in respect of the Settlement Approval Orders, that appeal(s) being finally determined (including any determination in respect of that appeal(s) by the High Court) or the application for special leave refused, the result of which is that the Settlement Approval Orders are made or confirmed.

104. ‘Settlement Approval Orders’ are further defined to mean (cl 1):

orders made by the Court approving the settlement of the Claims against the O’Bryan Entities on the terms of this Deed.

105. The applicant submits that, because his appeal was lodged within the requisite period, the second part of cl 3.4.1 is not satisfied because an appeal has in fact been commenced. It follows, he says, that the Settlement Deed has not yet come into effect and cannot be pleaded in bar to the application for leave to appeal.
106. Second, he submits that the application for leave to appeal is not a ‘Claim’ against the respondent within the meaning of the Settlement Deed given no claim is actually made against the respondent.
107. The first submission is without merit. Applying the settled principles of construction of contracts,^[71] the reference to an ‘appeal being commenced’ is clearly referable to an appeal the subject of the ‘appeal period’ referred to in the earlier part of cl 3.4.1 — that is, it is a reference to an appeal ‘in respect of the Settlement Approval Orders’. But, as the applicant himself accepted, his application for leave to appeal is not against the ‘Settlement Approval Orders’ (ie the July 2023 orders) at all. The applicant does not seek to set aside, or otherwise amend, those orders. He only seeks to challenge the findings made in the relevant paragraphs in the reasons of the trial judge. The clear commercial purpose of cls 3.3 and 3.4 is to ensure that the Settlement Sum is not payable unless Settlement Approval Orders are made. Given those orders have been made, and are not subject of challenge in the applicant’s proposed appeal, cl 3.4 is inapplicable.
108. It is unnecessary to go further. However, there would appear to be another difficulty with the applicant’s submissions. Thus, the applicant has in fact paid the Settlement Sum to the respondent on 15 September 2023. In doing so he appears to have accepted ‘the satisfaction of the conditions precedent’ pursuant to cl 4.2.^[72] In such circumstances, there is considerable merit in the respondent’s submission that there would be a waiver of any condition precedent even if it would otherwise operate.
109. In relation to the second matter raised by the applicant, it is not to the point that no claim is made against the respondent (in the sense that no relief is sought against the respondent). A ‘Claim’ includes a claim, allegation or proceeding, and would readily cover the application for leave to appeal, to which the respondent is a party. The application also includes claims or allegations ‘relating to the subject matter of the Released Matters’ for the purposes of both cls 5.3.1 and 7.1. By seeking to challenge findings that arise out of the bringing of the Non-Party Costs Summons, the application relates to a ‘claim relating or incidental to’ the Non-Party Costs Summons (being part (g) of the definition of ‘Released Matters’). It also appears to be, at least, related to claims incidental to the Remitter itself (being part (c) of the definition of ‘Released Matters’).
110. The matters raised by the applicant were without merit. In all the circumstances then, even if the application was competent we are of the view that it would be summarily dismissed on the basis that it has no prospect of success.^[73]

PART E: CONCLUSION

111. The application for leave to appeal will be struck out in circumstances where the appeal the subject of the application for leave is incompetent.

---

APPENDIX 1

[39] Ninth, the Remitter uncovered a scheme to fraudulently enrich AFP, Elliott, and the lawyer parties as more particularly described in the Remitter judgment. In a nutshell, at the expense of debenture holders, the defendants sought to achieve and then divide up ill-gotten spoils from the Bolitho litigation and then to thwart the proper administration of justice and retain their illegitimate financial gains. Once they achieved court approval of their settlement scheme through breach of their duties to the proper administration of justice, there was a concerted campaign, over the course of two years and three months, to conceal their misconduct. Their method was the manner of management of the funder, AFP, and each of the defendants to the Remitter had an integral role in that fraudulent scheme, which in substance required abuse of the processes of the court and desecration of the proper administration of justice. In this context, the current application requires assessment of the extent and participation in this scheme of each entity both individually and collectively as there were different roles – enabler, potential beneficiary, material assister etc.

[40] Tenth, Elliott and O’Bryan deliberately chose to use a poorly capitalised funder, AFP, to shield them from exposure to liabilities in the endeavour of prosecuting the class action. AFP was never capable of paying, from its own funds, any adverse costs order in the Banksia Proceeding or meeting any order for compensation. So much was clear from the evidence of Mr Tony Samuel at the trial of the Remitter. In his opinion, as at 30 June 2018, AFP had a current asset deficiency, had generated significant losses, and had significant negative cash flows. AFP’s financial capacity to meet existing liabilities at various other dates between FY14 and FY18 was poor, and it had been required to fund negative cash flows by raising additional equity. Mr Samuel also opined that prior to the commencement of the trial of the Remitter, AFP did not have the capacity to meet an adverse costs order that might be made in the Remitter (then estimated to be in the order of $5 to $7million) and could only do so if it was able to raise more debt or more equity. Mr McGing, an actuary, considered that AFP’s capital at risk was limited to the book value of its net assets from time to time that he notionally assessed as not exceeding $2m.

...

[62] In the Remitter, I concluded that the payments made by Decoland to Noysy were more likely to be payments relating to the settlement of another class action funded by AFP, Camping Warehouse v Downer EDI. I concluded that it had not been established that neither Noysue nor Noysy was paid any sum for the transfer of Noysue’s shares in AFP in pretended compliance with Bolitho No. 4 as O’Bryan contended. In the Remitter, O’Bryan pointed to payments of sums on dates and in amounts that did not correlate with the purported share transfer but appeared to correlate with the receipt of funds from the settlement of that class action.

...

[74] I am satisfied that Elliott directed the affairs of MCM. Importantly, he signed the share transfer form produced in evidence at the Remitter in support of the contention that Noysue had disposed of its interest in AFP consequent on the Bolitho No. 4 ruling. I am also satisfied that Elliott did not cause MCM (or any other Elliott entity on its behalf) to pay Noysue the consideration noted on the transfer form. In substance, MCM remained a bare trustee of the shares.

[75] This transaction was a sham that was part of Elliott’s fraudulent scheme. While MCM was not directly involved in the sense that Elliot and Decoland, for example, were involved, the share transfer transaction was critical.

[76] The misleading share transfer form enabled Elliott and O’Bryan to represent to the legal representatives of other parties that Noysue no longer had any financial interest in AFP such that formal court orders implementing the Bolitho No. 4 ruling were not necessary and none were made. How Elliott, O’Bryan, Symons and AFP deceived the court, and officers of the court, into thinking that O’Bryan and Noysue had disposed of their financial interest in AFP, is described at length in the Remitter Judgment. The crux of this conduct was that it permitted O’Bryan to remain as senior counsel for Mr Bolitho while avoiding the clear directive of the court. MCM assisted both O’Bryan and Elliott to remain conflicted and in control of the proceeding in a position to ensure they (or their entities) benefitted from the proceeding at the expense of the debenture holders. Had the other parties not been persuaded not to press the court for injunctive relief, the opportunity for the Elliott and O’Bryan entities to improperly profit would have been severely constrained.

...

[93] The SPR has acknowledged that the settlement sum seems low (10.7% of compensation awarded, excluding costs), particularly given O’Bryan’s central role in, and culpability in respect of, the fraud. He accepts that the settlement does not result in a substantial financial return to debenture-holders, who may struggle to accept that it is, in his opinion, a fair and reasonable resolution of the judgment and ongoing dispute with those parties. However, he has been guided by an objective comparison of the benefit in getting in those funds now, against the prospects of further financial recovery and the cost and delay involved in further enforcement steps.^[74]

---

^[1] Botsman v Bolitho [2018] VSCA 278; (2018) 57 VR 68, 72–3 [1]–[7] (Tate, Whelan and Niall JJA); [2018] VSCA 278. The funder substantially abandoned its application during the remitter: Bolitho v Banksia Securities Ltd (recs and mgrs apptd) (in liq) (No 18) [2021] VSC 666; (2021) 69 VR 28, 47 [5] (John Dixon J); [2021] VSC 666.

^[2] Bolitho v Banksia Securities Ltd (recs and mgrs apptd) (in liq) (No 18) (2021) 69 VR 28; [2021] VSC 666 (‘Remitter Judgment’).

^[3] Ibid 168 [1694(a)].

^[4] The parties to the Settlement Deed are recorded in sch 1 as ‘Banksia Securities Limited ACN 004 736 458 (Special Purpose Receive[r] Appointed) (In Liquidation)’, ‘John Ross Lindholm’ (the special purpose receiver), ‘Peter Damien McCluskey’ (the former special purpose receiver), ‘Norman John O’Bryan’, ‘Paul Cook in his capacity as trustee of the Bankrupt Estate of Norman John O’Bryan’, ‘Noysue Pty Limited ACN 169 179 044’ and ‘Noysy Pty Limited ACN 061 266 475’.

^[5] Lindholm v Elliott [2023] VSC 442, [86] (John Dixon J).

^[6] Lindholm v Elliott [2023] VSC 442 (‘Non-Party Costs Reasons’).

^[7] Pursuant to an application other than for leave to appeal or cross-appeal dated 1 November 2023.

^[8] Remitter Judgment [2021] VSC 666; (2021) 69 VR 28, 48 [6] (John Dixon J); [2021] VSC 666.

^[9] Ibid 70–1 [1197] (emphasis added).

^[10] Bolitho v Banksia Securities Ltd (No 17) [2021] VSC 132.

^[11] Non-Party Costs Reasons [2023] VSC 442, [6] (John Dixon J).

^[12] It was filed within 42 days of the date of 31 July 2023: Supreme Court (General Civil Procedure) Rules 2015, r 64.05(1)(a).

^[13] (2016) 50 VR 563; [2016] VSCA 70.

^[14] The applicant did not object to leave being given.

^[15] Although para [4] was contained in the further amended notice of objection to competency, the matters contained therein were advanced in support of a summary dismissal claim.

^[16] Citing AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674, 686 [34] (Kiefel CJ, Gordon and Steward JJ); [2023] HCA 26; Driclad Pty Ltd v Commissioner of Taxation (Cth) [1968] HCA 91; (1968) 121 CLR 45, 64 (Barwick CJ and Kitto J); [1968] HCA 91; Harmer v Oracle Corp Australia Pty Ltd [2013] FCAFC 63; (2013) 299 ALR 236, 241–2 (Allsop CJ, Kenny and Perram JJ); [2013] FCAFC 63; Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40; (2023) 297 FCR 438, 472 (Bromberg, Moshinsky and Bromwich JJ); [2023] FCAFC 40; Lake v Lake [1955] P 336; [1955] 2 All ER 538; Ah Toy v Registrar of Companies (NT) [1985] FCA 291; (1985) 10 FCR 280, 286 (Toohey, Morling and Wilcox JJ).

^[17] Citing South Australian Land Mortgage and Agency Co Ltd v The King [1922] HCA 17; (1922) 30 CLR 523, 553 (Isaacs J); [1922] HCA 17.

^[18] He cited Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; [2001] HCA 49; City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] VicRp 10; [1994] 1 VR 163; TGIO v Viney [1995] TASSC 20; (1995) 4 Tas R 236.

^[19] He cited Commonwealth v Bank of New South Wales [1949] HCA 47; (1949) 79 CLR 497, 625 (Lord Porter for the Court); [1950] AC 235; Lake v Lake [1955] P 336, 342–3 (Evershed MR); AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674, 686 [34]–[35] (Kiefel CJ, Gordon and Steward JJ); [2023] HCA 26.

^[20] [1944] HCA 5; (1944) 68 CLR 571, 589; [1944] HCA 5.

^[21] Eg, SDCV v Director-General of Security (2022) 405 ALR 209; [2022] HCA 32; HT v The Queen (2019) 269 CLR 403; [2019] HCA 40; Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2023] HCA 7; John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49; Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40; Clarey v Permanent Trustee Co Ltd [2005] VSCA 128; Victoria v McKenna (1999) 140 IR 256; [1999] VSC 310.

^[22] (2002) 7 VR 524; [2002] VSCA 197.

^[23] [2019] VSC 580, [114].

^[24] ‘Appeal’ is defined as including ‘an application to set aside or vary a decision’: r 64.01(1)(b). ‘Decision’ is in turn defined to include ‘judgment, order, determination, verdict, ruling, finding or declaration’: r 64.01(1).

^[25] Which provides for every person to have equal protection of the law.

^[26] Which provides that a party has the right to have a proceeding decided after a ‘fair’ and ‘public’ hearing.

^[27] (2008) 234 CLR 124, 128 [2] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); [2008] HCA 13.

^[28] (2003) 214 CLR 118, 124 [20] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22.

^[29] Being Attorney-General v Sillem [1864] EngR 352; (1864) 10 HLC 704, 720–721 [1864] EngR 352; [11 ER 1200, 1207–1208]; South Australian Land Mortgage and Agency Co Ltd v The King [1922] HCA 17; (1922) 30 CLR 523, 552–553; CDJ v VAJ (1998) 197 CLR 172, 196-197 [91]–[95], 230 [184]; State Rail Authority (NSW) v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306, 322 [72]; [1999] HCA 3; 160 ALR 588, 609; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226, 245–6 [40]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 179–180 [20]–[22], 187 [44].

^[30] [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J); [1944] HCA 5.

^[31] Moorabbin [2016] VSCA 70; (2016) 50 VR 563, 569 [18], 571 [30] (Tate, Ferguson and McLeish JJA); [2016] VSCA 70.

^[32] These provisions, set out below, are in the same form as that in the current version of the provisions.

^[33] Although the Court in Moorabbin did not set out s 10(1)(a) it is relevant for the current application.

^[34] Moorabbin [2016] VSCA 70; (2016) 50 VR 563, 571–2 [33]–[34] (Tate, Ferguson and McLeish JJA); [2016] VSCA 70.

^[35] Ibid 572 [36].

^[36] Ibid 572 [37].

^[37] Ibid.

^[38] (2001) 207 CLR 72; [2001] HCA 49.

^[39] cf The Commonwealth v Bank of NSW [1949] HCA 47; (1949) 79 CLR 497 at 625; [1950] AC 235 at 294 and Australian Consolidated Press Ltd v Uren [1967] UKPCHCA 2; (1967) 117 CLR 221 at 228; [1969] 1 AC 590 at 630, where the breadth of application of the word ‘decision’ in s 74 of the Constitution is discussed.

^[40] Roy Morgan (2001) 207 CLR 72, 78 [10] (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J agreeing at 87 [40]); [2001] HCA 49 (emphasis added, footnote in original).

^[41] Ibid 78 [11].

^[42] [1994] VicRp 10; [1994] 1 VR 163.

^[43] At the relevant time s 10(2) provided that ‘[u]nless otherwise expressly provided by this or any other Act, an appeal lies to the Full Court from any determination of the Court constituted by a Judge.’

^[44] Camberwell [1994] VicRp 10; [1994] 1 VR 163, 173.

^[45] Ibid 174.

^[46] Ibid 168.

^[47] Ibid 169.

^[48] [1995] TASSC 20; (1995) 4 Tas R 236.

^[49] Ibid 242 (Underwood J). Underwood J then cites National Australia Bank Ltd v Russell [1990] VicRp 82; [1990] VR 929; Harrison v City of Adelaide Development Committee (1975) 50 LGRA 405; Mobitel (International) Pty Ltd v Dun & Bradstreet (Australia) Pty Ltd (1979) 22 SASR 288; Leeming v City of Port Adelaide (1987) 44 SASR 131: ibid 242–3.

^[50] TGIO v Viney [1995] TASSC 20; (1995) 4 Tas R 236, 243 (Underwood J).

^[51] This would include an interlocutory decision, which determines a particular interlocutory dispute.

^[52] Visser v The King (2023) 68 VR 188, 219 [100] (Emerton P, Priest, McLeish, T Forrest and Kennedy JJA); [2023] VSCA 10, citing R v A2 [2019] HCA 35; (2019) 269 CLR 507, 520–2 [32]–[37] (Kiefel CJ and Keane J), 545 [124] (Bell and Gageler JJ); [2019] HCA 35.

^[53] Waters v Diesel Holdings Pty Ltd [2024] VSCA 77, [44] (Walker JA, Ferguson CJ agreeing at [1] and Ginnane AJA agreeing at [85]), citing R v Young (1999) 46 NSWLR 681, 687–8 [15] (Spigelman CJ); [1999] NSWCCA 166; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.

^[54] Charter, s 32(1).

^[55] Macquarie Dictionary (online at 11 June 2024) ‘determination’ (defs 1, 3, 4, 5 and 10).

^[56] Oxford English Dictionary (online at 11 June 2024) ‘determination’ (defs 1.a., 2.a., and 6.b.).

^[57] In this way, there may be similarities with the ‘second element’, as described in the passage in AZC20, at [92] of these reasons, below, although the issue arises in a different context under Ch III of the Constitution.

^[58] [1949] HCA 47; (1949) 79 CLR 497; [1950] AC 235.

^[59] Ibid 625 (Lord Porter for the Court).

^[60] [1955] P 336; [1955] 2 All ER 538.

^[61] Ibid 540–1.

^[62] See The Commonwealth v Bank of New South Wales [1949] HCA 47; (1949) 79 CLR 497 at 624–625; [1950] AC 235 at 294; Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64, 69; Ah Toy v Registrar of Companies [1985] FCA 291; (1985) 10 FCR 280 at 283–285.

^[63] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 at 516 [20], citing Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 106, Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 532 and Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 510.

^[64] Blair [1939] HCA 23; (1939) 62 CLR 464 at 531–532; Clayton v Bant (2020) 272 CLR 1 at 25 [66], see also 25–26 [67].

^[65] Dignan [1931] HCA 34; (1931) 46 CLR 73 at 109, quoting Attorney-General v Sillem [1864] EngR 352; (1864) 10 HLC 704 at 724 [11 ER 1200 at 1209]; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518–519; CDJ v VAJ (1998) 197 CLR 172 at 202 [111]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 180–181 [22]–[23]; Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at 87 [70]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at 686 [43]; [2016] HCA 22; 331 ALR 550 at 558; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 555–556 [30]; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at 148 [55].

^[66] Fox v Percy (2003) 214 CLR 118 at 125 [23], quoting Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561. See also Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 537; Allesch [2000] HCA 40; (2000) 203 CLR 172 at 181 [23]; SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 555 [30].

^[67] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 590; Re Macks; Ex parte Saint (2000) 204 CLR 158 at [20], [216], [328]–[329]; 75 ALJR 203; New South Wales v Kable (2013) 252 CLR 118 at [38], [55]–[56]; 87 ALJR 737.

^[68] AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674, 686 [34]–[35] (Kiefel CJ, Gordon and Steward JJ); [2023] HCA 26 (emphasis added, footnotes in original).

^[69] The applicant conceded that, if the findings he seeks to challenge were set aside, it is ‘remotely conceivable’ that this Court might conclude that the judge’s orders ‘need to be reconsidered’ and thus order that the proceeding be remitted.

^[70] Means the applicant, as well as his trustee and the O’Bryan entities as defined in these reasons (cl 1).

^[71] See, eg, Butler v Kenny [2022] VSCA 102, [27] (Kyrou, McLeish and Walker JJA); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, 116–17 [46]–[51] (French CJ, Nettle and Gordon JJ); [2015] HCA 37.

^[72] Clause 4.2 provides that within 7 days of ‘the satisfaction of the conditions precedent’ in cl 2 (appears to be intended to be cl 3) the Settlement Sum and any interest is to be paid to the Nominated Account.

^[73] Sherman v Roads Corporation [2011] VSCA 149; (2011) 33 VR 119, 121 [4] (Mandie JA, Almond AJA agreeing at 125 [27]); [2011] VSCA 149.

^[74] Non-Party Costs Reasons [2023] VSC 442, [39]–[40], [62], [74]–[76], [93] (John Dixon J) (citations omitted).