First Plaintiff v Defendants

1 The fifth defendant ('Alex Elliott') proposed to call Mr Norman O'Bryan SC ('Mr O'Bryan'), the second defendant, to give evidence in support of his defence. He served a subpoena on Mr O'Bryan.

2 On 27 November 2020, prior to Mr O'Bryan being called to give his evidence, I made orders restricting the issues about which Mr O'Bryan could give evidence on and the manner in which Mr O'Bryan's evidence could be used, pursuant to s 49(3)(e) of the Civil Procedure Act 2010 (Vic) and s 136 of the Evidence Act 2008 (Vic) respectively. My order was:

1. The issues on which Mr Norman O'Bryan may give evidence are limited by excluding all evidence relevant to any issue affecting Mr O'Bryan in the Revised List of Issues that Mr O'Bryan has elected not to contest, in the terms set out in [paragraph 8 of these reasons] ('excluded evidence').
2. Any evidence of Mr O'Bryan that is relevant to any issue affecting him (in his capacity as the second defendant), and is part of the excluded evidence, shall not be admitted.

(a) evidence given by Mr O'Bryan that is relevant to the allegations against the fifth defendant in the Revised List of Issues dated 27 October 2020; and

1. The use to be made of Mr O'Bryan's evidence is limited to the fifth defendant's case and such evidence shall not be used on any issue affecting Mr O'Bryan in the Revised List of Issues that Mr O'Bryan has elected not to contest, in the terms set out in [paragraph 8 of these reasons].

3 Although I gave a general indication of why I was so deciding at the time of pronouncing my order, I stated that I would later publish my reasons, which now follow.

4 In November 2018, the Court of Appeal remitted the approval of the legal fees and litigation funding commission in this group proceeding to the Trial Division.[1] Since remittal, the proceeding has advanced by reference to a list of issues prepared by the parties. The list of issues has been revised on a number of occasions ('RLOI').

5 Prior to the trial, items 9 to 12 of the RLOI dealt with allegations of 'disentitling conduct' made by the Contradictor against the second plaintiff ('AFP') as the litigation funder of the group proceeding, Mr O'Bryan, the third defendant ('Mr Symons') and the fourth defendant ('Mr Zita'). Broadly summarised, those allegations were that AFP, Mr O'Bryan, Mr Symons and Mr Zita contravened their paramount duty to the court and their overarching obligations under the Civil Procedure Act insofar as their conduct concerned:

(a) their conduct following the decision of Ferguson JA (as the Chief Justice then was) in Bolitho v Banksia Securities Limited (No 4);[2]

(b) the fee arrangements between Mr O'Bryan, Mr Symons and Mr Zita (together, the 'Lawyer Parties') and AFP;

(c) the settlement with The Trust Company (Nominees) Ltd in the group proceeding and the information provided to the court on the application to approve that settlement, including:

(i) the provision of misleading information to Mr Peter Trimbos,[3] a costs lawyer engaged to provide expert opinion on the reasonableness of the legal fees charged in in the group proceeding;

(ii) the proposed settlement distribution scheme; and

(iii) resisting the appointment of a contradictor for the settlement approval application;

(d) the appeal of the settlement approval; and

(e) the remitter itself.

6 Prior to the trial, Mr O'Bryan denied the disentitling conduct allegations and filed and served two affidavits in support of his position.

7 On 27 July 2020, the trial of remitter commenced. The Contradictor's case of disentitling conduct was opened over three days and thousands of documents in support of the allegations were tendered, most of which were contemporaneous written communications between the late Mark Elliott (the former managing director of AFP) and the Lawyer Parties.

8 On 3 August 2020, after the Contradictor's opening had concluded, senior counsel for Mr O'Bryan stated the following to the court:

Your Honour, we have received instructions of significance which it is incumbent upon us to inform the court of forthwith.

Your Honour, we are instructed as follows by Mr O'Bryan.

First, Mr O'Bryan 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, Mr O'Bryan 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, Mr O'Bryan consents to the entry of judgment against him (a) for money liability under s 29 of the Civil Procedure Act in such amount as the court determines on the evidence before it; and (b) otherwise on the terms the court sees fit.

Thirdly, your Honour, Mr O'Bryan will not oppose this honourable court removing his name from the Supreme Court roll. He accepts that that should occur.

Fourthly, Mr O'Bryan will not seek payment of any of his unpaid fees in this matter. He abandons any right to such payment.

Your Honour, our instructing solicitors will shortly confirm these matters in writing in a letter to all parties which will be provided to the court.

Your Honour, we are instructed to record that in taking this course Mr O'Bryan 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 witness on behalf of Mr O'Bryan; (b) Mr O'Bryan's affidavits will not be read and he will not be giving evidence; and (c) no submissions will be made on Mr O'Bryan's behalf in closing.

Finally, your Honour, those matters being the case, Mr O'Bryan has no further part to play in the proceeding. As a result, Mr O'Bryan has withdrawn our instructions to appear hereafter for him in the proceeding and [counsel] would therefore ask to be excused from further attendance when the court rises this afternoon.

Those are the remarks and instructions that I wish to convey, if the court pleases.

9 Mr O'Bryan's solicitors, as his counsel foreshadowed, communicated the above position, which I can conveniently describe as Mr O'Bryan's capitulation, to the court and the parties in writing, prior to filing a notice of ceasing to act.

(a) through his senior counsel, Mr Symons capitulated in a substantially similar manner to that of Mr O'Bryan; and

(b) AFP formally withdrew its claim for a funding commission and almost all of its claim for reimbursement of legal fees.

11 Neither Mr O'Bryan nor Mr Symons have since appeared in the proceeding, or sought leave to resile from their respective positions as communicated by their counsel.

12 On 20 August 2020, Alex Elliott was joined to the remitter as the fifth defendant.[4] On 2 November 2020, the Contradictor closed its case against Alex Elliott. The proceeding was then adjourned to 25 November 2020 for Alex Elliott's defence.

13 On 23 November 2020, Alex Elliott suggested to the court topics about which Mr O'Bryan would be questioned. They included:

(a) whether Mark Elliott or Mr Zita were acting as the solicitor in the group proceeding;

(b) the manner in which a solicitor and a litigation funder usually work together in group proceedings;

(c) the roles of Mark Elliott, Alex Elliott and counsel in the group proceeding, including:

(i) the extent to which Alex Elliott was involved, including his participation at meetings; and

(ii) why Alex Elliott had been included in email correspondence with Mark Elliott and the Lawyer Parties;

(d) Mr O'Bryan's knowledge of the 'Banksia expenses spreadsheet'; and

(e) the characterisation of Alex Elliott by Mr Zita as Mark Elliott's 'right hand man'.

14 Alex Elliott also stated that he intended to tender the sworn affidavits that Mr O'Bryan had abandoned.

15 Any evidence adduced from questioning around those broad topics would likely be relevant to allegations in the remitter other than those directly concerning Alex Elliott's defence. Notably, evidence could be adduced - and would be if Mr O'Bryan's affidavits were tendered - that would be inconsistent with Mr O'Bryan not maintaining any further defence of the allegations that have been made against him by the Contradictor. Mr O'Bryan's evidence on those topics in his capacity as a witness could be, and was likely to be, inconsistent with his conduct as a party.

16 I expressed my tentative view that directions may be necessary limiting the issues on which Mr O'Bryan could give evidence, and the use of that evidence on the remitter, such that Mr O'Bryan could only give evidence concerning the conduct of, or representations to or by, Alex Elliott, in the circumstances that are alleged against him in the RLOI, and not evidence about the conduct of Mark Elliott or the Lawyer Parties generally. I invited submissions from the parties as to whether, and if so what, directions ought to be given prior to Mr O'Bryan giving evidence.

17 Alex Elliott opposed the suggested directions, contending that he would effectively be bound by Mr O'Bryan's capitulation, insofar as it prevented Mr O'Bryan - as a witness - from giving evidence that could be relevant to Alex Elliott's defence. Mr O'Bryan's statement that he would no longer contest the allegations in the RLOI was not an admission that those allegations were true. The conduct and roles of the six relevant individuals is a fundamental issue in the remitter. As two of those individuals are now deceased and a further two have capitulated, Alex Elliott submitted it would be unfair and prejudicial to him to limit evidence from Mr O'Bryan, as it would effectively prevent him from properly presenting his defence to the Contradictor's allegations.

18 He contended that Mr O'Bryan's evidence, as the senior counsel who led the legal team for the plaintiff in the group proceeding, would be highly probative on the issue of the role played by him and the roles of each other person involved in the circumstances. Specifically, Mr O'Bryan could give evidence on whether Alex Elliott's involvement was as a solicitor in the manner alleged by the Contradictor. Using the Banksia expenses spreadsheet as an example, Alex Elliott contended that evidence from Mr O'Bryan about his connection with that document may support a submission that his involvement was less than might otherwise appear on its face.

19 Alex Elliott submitted that the appropriate direction was not one governing the topics that Mr O'Bryan's evidence might address, but rather directions that limited the use of Mr O'Bryan's evidence to Alex Elliott's case, pursuant to s 136 of the Evidence Act.

20 Mr Zita did not oppose a direction limiting the use of Mr O'Bryan's evidence, but contended that he ought also be able to cross-examine Mr O'Bryan and rely on that evidence in his defence. As Mr O'Bryan was being called as a witness in the proceeding - prior to findings of fact being made about Mr Zita's conduct - and was capable of giving evidence relevant to Mr Zita's defence, the starting proposition was that he ought to be able to cross-examine him on those matters.[5] Such cross-examination would be limited to discrete topics directly relevant to Mr Zita's defence and were, he submitted, unrelated to the allegations against Mr O'Bryan.

21 The Contradictor and the SPR both asserted that the direction was necessary. Alex Elliott sought to adduce evidence from Mr O'Bryan that was highly generalised and could not be solely relevant to his case. It would not be sufficient to limit the use of that evidence to Alex Elliott's case. If Mr O'Bryan was able to give evidence on any issue in the proceeding, it would give rise to inconsistencies between the use that might be made of his evidence in Alex Elliott's defence compared with the defences of the other defendants. It would be unworkable to determine common issues of fact differently between the parties by relying on evidence that was only admissible for certain parties.

22 Alex Elliott anticipated that Mr O'Bryan might give evidence on issues that were the subject of much documentary evidence tendered in the remitter by the Contradictor against Mr O'Bryan and all other defendants. If Mr O'Bryan was permitted to give evidence on those matters, the Contradictor would need to put documents already in evidence to Mr O'Bryan that were inconsistent with his evidence. In light of the general nature of the topics and the extent of the material tendered to date, there would be an effective re-opening of Mr O'Bryan's defence, causing the need for considerable time and expense for the court and the parties.

23 The submission continued that the proposed direction would not prevent Alex Elliott from adducing evidence from other witnesses, or otherwise making submissions on how the existing evidence in the proceeding ought be interpreted. Neither the SPR nor the Contradictor would submit that inferences adverse to Alex Elliott's case should be drawn under Jones v Dunkel[6] principles from his failure to call either Mr O'Bryan or Mr Symons.

24 For like reasons, the SPR and the Contradictor opposed the direction being given in the form proposed by Mr Zita. It was further contended that the exercise of the court's discretion ought to be informed by the fact that Mr Zita had not sought to call Mr O'Bryan (or Mr Symons) prior to closing his case, and that any evidence from Mr O'Bryan on the topics foreshadowed by Mr Zita would not assist the court, as Mr Zita had already given direct evidence on those matters.

25 The overarching purpose in relation to civil proceedings requires that a court have regard to the considerations in s 9 of the Civil Procedure Act, that relevantly include:

(a) the just determination of the civil proceeding; ...

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(g) dealing with a civil proceeding in a manner proportionate to -

(i) the complexity or importance of the issues in dispute; and

26 Section 49(1) of the Civil Procedure Act provides that a court:

may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.

27 Without limiting that broad power, s 49(3) identifies specific instances where a direction may be given, including:

(e) limiting the issues or matters that may be the subject of examination or cross-examination...

28 Section 136 of the Evidence Act states:

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might -

29 The two limbs of s 136 are repeated in s 135 and, in the case of unfair prejudice, in s 137, and the meaning to be given to those words in all three provisions is the same.[7] The import of the words 'danger' and 'might' in s 136 is that the court must be satisfied that there is a real risk - not just the possibility of a risk - that the particular use of the evidence would be unfairly prejudicial, misleading or confusing.[8]

30 Unfair prejudice will be found where there is a real risk that the evidence may be misused by the trier of fact in some unfair way,[9] or result in procedural unfairness to a party.[10] A common manifestation of procedural unfairness is the inability to cross-examine hearsay evidence.[11] In R v Suteski, Wood CJ at CL said:

I see no reason why the inability of the appellant to cross-examine [the witness] should not have been relevant for s 135 and s 137 of the Evidence Act. However, the bare fact that a defendant cannot cross-examine a witness is not necessarily decisive of the issue which arises in relation to these provisions.

The decisions mentioned clearly depend upon their particular facts, that is, upon the character of the evidence involved and upon the nature or strength of the potential prejudice to the defendant. Each case, in my view, needs to be examined individually by reference to the well understood balancing exercise.[12]

31 Importantly, the manner in which a trial has proceeded and the approach adopted by the parties is relevant to the exercise of discretion. In Daniel v State of Western Australia, R D Nicholson J made the following observation in the context of an application to exclude or limit the use of communications derived from the field notes of an expert witness:

In my view such [unrestricted] admission would have the danger that it might be unfairly prejudicial to one or more of the other parties. I reach that view for the following reasons. Firstly, the trial has been conducted on the basis that evidence going to connection and boundaries was evidence which went to the fundamental issues in the trial. Rulings were made in relation to expert reports allowing the exclusion of portions which address those issues which are without apparent foundation. To admit into evidence for all purposes communications made to the expert anthropologist from persons not called to give evidence would run counter to the basis on which the trial was conducted and the acceptance of that approach by the parties...[13]

32 In their joint report on the Uniform Evidence Law, the Australian, New South Wales and Victorian Law Reform Commissions observed that the inability to assess the reliability or credibility of evidence may also found a basis for its exclusion.[14]

33 Turning to the second limb, evidence will be misleading or confusing, not simply by reference to the common meaning of those words applied in the particular factual context, but also when such evidence may be the subject of undue emphasis by the trier or fact and given greater weight than it deserves. In other words, the evidence is misleading or confusing to the tribunal of fact when assessing the probative value of other evidence adduced at trial. One example of evidence excluded under this category is the transcript of an audio-visual publication that is the subject of a defamation proceeding tried before a jury. As McCallum J said in Nu-Tec v ABC:

[T]here is a significant danger that the availability of a written version of a transient [television broadcast] publication would compromise the already difficult task for the jury of assessing the likely impression of the publication on the viewer who saw it once, in its original form, as an ordinary, reasonable member of the community would see it.[15]

34 Evidence may also be misleading or confusing if it would distort the proper assessment of the true state of the factual substratum, having regard to the whole of the evidence. In Hughes Aircraft Systems International v Airservices Australia (No 3),[16] after finding that the respondent had acted in breach of contract and the Trade Practices Act 1974 (Cth) in awarding a contract subject to a tender process, the court considered a counterfactual in respect of causation and loss. The respondent sought to adduce evidence addressing how it would have awarded the tender had it observed the contract and the law (in other words, hypothetically) and the breaches and contraventions of law not occurred.

(a) members of its board directed at their individual positions on the award of the contract, had the established breaches of contract and law not occurred; and

(b) an employee of the Department of Industry, Technology and Regional Development, who had prepared amended versions of reports that had been relied on by the respondent when determining the award of the contract. The revised versions were prepared on the basis of specified assumptions that, the respondent contended, nullified the tainting effects of the court's findings.

36 The court refused to admit the evidence, as the revised reports (on which the members of the board had relied) represented 'only one part of the "information mosaic" that would have led to a decision'. Although the reports were provided to the board when determining the successful bidder, they had not been prepared for that purpose. Rather, they had been delivered to a 'Tender Evaluation Committee' (TEC), that had evaluated the various bids received and recommended a preferred candidate to the board. The respondent had not sought to adduce evidence from that committee in the same manner as it had for the board.

37 In explaining his rejection of the evidence, Finn J said:

My concern with the revised reports and the use made of them was this. To attempt to recreate the information base on which the board decision could properly have been taken, but to do so only by revising reports prepared for the TEC, was to contrive the basis on which the board members were to be asked to indicate how they would have decided - a basis that was at variance with that envisaged by the RFT contract itself. The board decision was, and was to be expected to be, taken in light of a TEC recommendation based on the considered professional judgments of the TEC's members on the rival bids...

While I am prepared to agree with [the] submission that the revised reports are relevant (I express no view in this as to the totality of their contents), I nonetheless am of the view that, because they represent only one part of the "information mosaic" that would have led to a decision, I ought not to admit them without the TEC's judgment thereon...

The circumstances are unusual, but the case is one in which I consider that s 135 of the Evidence Act should be applied and in particular s 135(b). The use to be made of the reports - as evidenced in the boiler-plate clauses in the witness statements to which I have referred - involves a distortion of the decision-making processes envisaged by the RFT contract. Whatever the effect on the board members, it is evidence that has a significant potential to mislead because its probative value is itself affected by the lack of the very scrutiny to which it would have been exposed if the decision was the real - and not a hypothetical - one.

38 I was satisfied that it was necessary to make a direction that:

(a) pursuant to s 49(3)(e) of the Civil Procedure Act, limited Mr O'Bryan's evidence to evidence that was relevant to the allegations against Alex Elliott in the RLOI, as Mr O'Bryan had not sought and had not been granted leave to resile from his capitulation position in the proceeding. Evidence beyond that limitation would not be relevant to any issue in the proceeding unless it was raised by Alex Elliott's defence; and

(b) pursuant to s 136 of the Evidence Act, limited the use of Mr O'Bryan's evidence for any purpose beyond its legitimate use in Alex Elliott's defence to meet the case alleged against him in the RLOI. Such use beyond that limitation would be inconsistent with the legal consequences for the parties from the capitulation conduct.

39 To allow unrestricted evidence from Mr O'Bryan would be inconsistent with the overarching purpose stipulated by s 7 of the Civil Procedure Act. Further a direction is necessary because there is a danger that any other use of the evidence beyond what is relevant to Alex Elliott's defence might be unfairly prejudicial to other parties and/or may be misleading or confusing.

40 Once the Contradictor's case against him was opened, Mr O'Bryan made his position explicitly clear. Relevantly, Mr O'Bryan:

(a) elected not to maintain any defence of the Contradictor's allegations;

(b) conceded that he would not be entitled to, and would not, contend against the court making findings in respect of him in accordance with those allegations;

(c) consented to the entry of judgment against him on such terms the court saw fit;

(d) expressed contrition and deep regret for his conduct and accepted it was appropriate to remove his name from the Supreme Court roll for his involvement in the group proceeding;

(e) would not read his affidavits as evidence in the remitter and would not give evidence; and

(f) sought the court's leave for his counsel and solicitors to withdraw from the proceeding.

41 It is perfectly clear that Mr O'Bryan understood and intended the consequences of his actions. He specifically dismissed giving evidence in the proceeding, although I would accept that he may not have foreseen being compelled by a subpoena to give evidence in the case of a party later joined to the proceeding.

42 Mr O'Bryan's conduct was, in all respects, a capitulation from the defence he had advanced and maintained in the proceeding since his joinder in November 2019. The case against him stood to be assessed on the uncontradicted evidence tendered in the trial, together, and importantly, with the benefit of Jones v Dunkel inferences adverse to Mr O'Bryan, arising not simply from the fact that he declined to give evidence (thus permitting inferences from proved facts to be more safely drawn), but also from the substance of the concession encompassed in the capitulation statement.

43 The precise use of that statement, particularly Mr O'Bryan's consent to judgment against him on such terms as the court saw fit and his invitation to the court to remove his name from the Supreme Court roll, is a matter to be addressed in final submissions. For present purposes, it is sufficient to note that there may be a significant forensic advantage to the Contradictor and the SPR flowing from the capitulation statement that cannot be properly denied, except through a process that has not been engaged. Those parties can submit that the court can treat Mr O'Bryan's election not to contest allegations and not to adduce evidence, coupled with an acceptance of the consequences of that course of action, as increasing the weight of their proofs or reducing the weight of Mr O'Bryan's proofs as might appear from the documentary record. As Mr O'Bryan's capitulation has left evidence uncontradicted, any inference favourable to another party, for which there was ground in the evidence, might be more confidently drawn when Mr O'Bryan, despite being able to put another complexion on the facts relied on as the ground for that inference, has elected not to contest the allegations made against him, including by giving evidence.

44 Although there was no application, any attempt by Mr O'Bryan to resile from or act inconsistently with his capitulation would, like a party seeking to withdraw an admission, need to be carefully considered on the basis of an application, supported by evidence, that sought to appropriately invoke the exercise of the court's discretion. In the exercise of that discretion, any prejudice to the interests represented by the Contradictor and the SPR that would follow if, at this stage of the trial, Mr O'Bryan was permitted to change his position, would be a factor of some significance.

45 Precisely what evidence Mr O'Bryan may have given on the topics nominated by Alex Elliott was uncertain. There was no affidavit or witness statement as had been provided, following court direction, by other witnesses in the remitter to date. All that Alex Elliott, as the party calling him, had provided was the list of topics, in short bullet-point form, on which he anticipated Mr O'Bryan could give evidence. Alex Elliott stated that because Mr O'Bryan was a subpoenaed witness, he could not demonstrate what the detail of his evidence would be. The generality of the nominated topics meant that if examined by Alex Elliott without constraint, Mr O'Bryan's evidence would traverse circumstances about which he had elected not to give any evidence or explanation in his own defence. However, it emerged during submissions that counsel had conferred with Mr O'Bryan, and I was not persuaded that Alex Elliott's reasons for not providing the substance of the evidence he proposed to adduce were particularly compelling.

46 I reject Alex Elliott's contentions that the effect of the direction would be prejudicial to his defence and that he would be effectively bound by Mr O'Bryan's capitulation. That is not relevant prejudice. All other parties must accept the consequences of Mr O'Bryan's decision, including AFP. Further, that submission mischaracterised the direction as one that is directed to Alex Elliott. Although it arises in the context of evidence sought to be adduced in his case, it is a direction that only concerns Mr O'Bryan and is a consequence of his conduct as a party to the proceeding.

47 My direction will not constrain Alex Elliott from leading evidence from Mr O'Bryan that is relevant to his defence. Although Alex Elliott might have submitted in closing that inferences favourable to his defence can be more readily drawn because his evidence was not contradicted by Mr O'Bryan, he has, by calling Mr O'Bryan, apparently chosen not to do so. Further, I am limiting Mr O'Bryan's evidence to matters relevant to Alex Elliott's defence and directing that the evidence otherwise cannot be used in the proceeding in any way that is inconsistent with Mr O'Bryan's stated position in the proceeding.

48 Alex Elliott is not being prevented from leading evidence from other sources that might otherwise be inconsistent with Mr O'Bryan's capitulation, nor is he being prevented from leading evidence from Mr O'Bryan that is relevant to his defence and inconsistent with his capitulation. However, Mr O'Bryan's evidence should not be used beyond Alex Elliott's case. The consequence of my direction will be that such evidence shall not be used on any issue affecting Mr O'Bryan in the Revised List of Issues that Mr O'Bryan has elected not to contest.

49 The fact that Alex Elliott was joined at a relatively late stage, after Mr O'Bryan's capitulation, is irrelevant. Had he been a party to the remitter prior to trial, the same concerns would have arisen if he sought to call Mr O'Bryan as a witness after the capitulation and would still require the direction to be made. I consider that if the use of Mr O'Bryan's evidence was unconstrained, the Contradictor and the other parties would be compromised in a manner that was unfairly prejudicial.

50 The introduction of an opportunity for unconstrained evidence from Mr O'Bryan, after the parties other than Alex Elliott and the sixth defendant had closed their respective cases, would have the danger of being unfairly prejudicial to those parties - including those who contend for a proportionate judgment on the basis the Mr O'Bryan is a concurrent wrongdoer - because the basis on which they have conducted their cases would no longer stand. There is a real likelihood that Mr O'Bryan could give evidence inconsistent with his current position in the proceeding.

51 When they closed their respective cases, neither AFP's claim (or so much of it as remains) nor the Contradictor's case was based on, or included, any evidence from Mr O'Bryan or any explanation of his participation in the relevant circumstances, notwithstanding that Mr O'Bryan's two affidavits purported to offer some untested explanation that might, in some part, be relevant to those circumstances.

52 Were Mr O'Bryan able to give evidence unrestrained, other parties would need to consider their positions. AFP might seek to reinstate now abandoned claims. The SPR and the Contradictor might seek to extensively cross-examine Mr O'Bryan. The basis for Mr Zita's case, particularly his claim for a proportionate judgment, would shift.

53 Unaided by submissions, it would appear that there would be significant concerns about the just disposition of the proceeding if those that walked away from their defences in July last year were now able to cause significant delay and additional cost to the finalisation of this remitter. I have in earlier rulings referred to the many thousands of group members awaiting the finalisation of this proceeding. Equally, there would be significant concerns about the inefficient use of judicial and administrative resources and the conduct of the business of the court if that course were approved. A fortiori, it should not result as an unintended consequence of Alex Elliott's conduct of his defence.

54 Prejudice lies not so much in the consequences for the assessment and weighting of evidence, for the case is not being heard before a jury. However, as I have suggested, the danger of procedural unfairness to other parties will be substantial and not be capable of amelioration without permitting many allegations to be revisited. That would occasion considerable delay and expense if Mr O'Bryan is permitted to range, in his evidence, beyond Elliott's defence and into conflict with his conduct of his own defence.

55 Further, I must consider the likely consequences arising from any cross-examination of Mr O'Bryan. If the use of his evidence is unconstrained, cross-examination must necessarily be opened up on all issues, including credit. To not permit unrestrained cross-examination will result in unfair prejudice to the Contradictor and other parties. However, alleviating that prejudice by permitting unrestrained cross-examination would result in an undue waste of time and very substantial expense. Prior to Mr O'Bryan's capitulation, the Contradictor estimated that five days would be necessary for Mr O'Bryan's cross-examination, excluding any cross-examination by other parties. The limit on the use of Mr O'Bryan's evidence is likely to substantially shorten the amount of time that he is required to give his evidence.

56 For present purposes I am satisfied that there is a real danger of unfair prejudice through significant procedural unfairness to other parties that must be weighed against any prejudice to Alex Elliott if he is not permitted to call Mr O'Bryan in his defence.

57 Taking all of these various factors into consideration - in what is a novel situation - I have concluded that any prejudice to Alex Elliott substantially, if not totally, dissipates if he is permitted to call Mr O'Bryan in his defence on the basis of the limitation on the scope and use of his evidence that I have proposed.

58 Dealing with the second limb, any unconstrained evidence of Mr O'Bryan as a witness would also have the danger of being misleading or confusing. Though Mr O'Bryan's capitulation conduct does not stand as an admission to each of the allegations made against him in the RLOI, the Contradictor and the other parties are entitled to rely on the fact that Mr O'Bryan has entirely abandoned his defence of those allegations. Absent any successful application by Mr O'Bryan to change that position (and none is foreshadowed), his capitulation stands. Any evidence from Mr O'Bryan that is unrestricted in use would be entirely irreconcilable with, and would distort what can be concluded from, his conduct in the litigation to date.

59 That consequence will, unless substantial and costly procedural measures likely to result in unacceptable delay are implemented, distort the proper assessment of the true state of the factual substratum, having regard to the whole of the evidence. In that sense, permitting evidence to be led beyond the limitations proposed presents a clear danger that the use to be made of such evidence could be misleading and confusing.

60 There may be a further issue that, in the context of these consequences, any generalised evidence of Mr O'Bryan about events in which Alex Elliott was or was not a participant may lack real probative value, because a detailed documentary case was put against him that he has chosen not to answer. This risk - both in the likelihood of eventuating and its extent - appears substantial from perusal of the summary of evidence he is anticipated to give. Ultimately, this assessment must necessarily be made on evidence, rather than on a generalised summary. However, if the circumstances of prejudice, and confusion substantially outweigh the probative value of such general evidence, evidence may be excluded pursuant to s 135 of the Evidence Act. That assessment could only be made and ruled upon during the course of Mr O'Bryan's evidence.

61 This analysis applies equally to Mr Zita's application that Mr O'Bryan's evidence be adduced and used in his case. His submissions properly recognised that while the usual rule is that admissible evidence can be used for any purpose, the court retains a general discretion to deviate from that principle in the appropriate circumstances. For the reasons explained above, such circumstances exist in this case.

62 All that being said, Alex Elliott is entitled to adduce evidence in his defence. I am satisfied that Mr O'Bryan can give evidence on matters concerning conduct of, or representations to or by, Alex Elliott, in the circumstances alleged against Alex Elliott in the RLOI, that would not be inconsistent with his earlier capitulation. It will follow that Alex Elliott must find any evidence of the conduct of AFP, Mark Elliott and/or the Lawyer Parties on which he intends to rely in closing submissions in the evidence that Mr O'Bryan has not contested, and may not adduce any evidence from Mr O'Bryan about such matters.

63 Because of the prospect of overlap between evidence validly relevant to Alex Elliott's defence and evidence that I have excluded, I will limit the use that may be made of Mr O'Bryan's evidence by excluding any evidence that is inconsistent with the allegations made in the remitter concerning Mr O'Bryan when assessed at the time that he capitulated.

64 Although this direction ought to confine the need for cross-examination as to credit, I did not exclude the particular use of evidence that otherwise fell outside the scope of what was permitted, if that use could substantially affect the credibility of Mr O'Bryan.

JOHN ROSS LINDHOLM IN HIS CAPACITY AS SPECIAL PURPOSE RECEIVER OF BANKSIA SECURITIES LIMITED (ACN 004 736 458) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)

KATERINA PEIROS, AS THE REPRESENTATIVE OF THE ESTATE OF PETER TRIMBOS, DECEASED

[1] Botsman v Bolitho [2018] VSCA 278; (2018) 57 VR 68. A background to the remitter generally can be found in Bolitho v Banksia Securities Limited (No 6) [2019] VSC 653 and Bolitho v Banksia Securities Limited (No 8) [2020] VSC 174.

[2] [2014] VSC 582.

[3] Whose estate is named as the sixth defendant, through its personal representative.

[4] Bolitho v Banksia Securities Limited (No 10) [2020] VSC 524.

[5] Prentice v Cummins (No 6) [2003] FCA 1002, [25]-[27].

[6] [1959] HCA 8; (1959) 101 CLR 298.

[7] BD v R (1997) 94 A Crim R 131, 139; Ainsworth v Burden [2005] NSWCA 174, [99] ('Ainsworth').

[8] Dupas v R [2012] VSCA 328; (2012) 40 VR 182, 228 [175]; Ainsworth, [99] (n 7).

[9] Ainsworth, [99] (n 7).

[10] Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35) [2014] VSC 59, [49]-[65]; Leybourne v Permanent Custodians Ltd [2010] NSWCA 78, [82].

[11] Australian Competition and Consumer Commission v Lux Pty Limited [2003] FCA 949, [10]; The Larrakia People v Northern Territory [2003] FCA 1175, [33]-[34].

[12] R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182, 201 [126]-[127] (citations omitted).

[13] (2001) 186 ALR 369, 374 [13].

[14] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law (2005), [16.45]-[16.47].

[15] [2010] NSWSC 711, [12]. See also Griffith v Australian Broadcasting Corporation [2003] NSWSC 483, [14].

[16] [1997] FCA 1537.