Plaintiff v Defendants

2 Mr Norman O'Bryan SC and Mr Mark Elliott have represented Mr Bolitho in the proceeding since its inception in December 2012. With the support of the other defendants, Mr Godfrey has applied for orders restraining Mr Bolitho from continuing to retain Mr O'Bryan and Mr Elliott.

3 At the core of the application is the fact that Mr Elliott (through his superannuation fund and another company controlled by him) and Mr O'Bryan's wife are major shareholders in BSL Litigation Partners Limited (the 'Litigation Funder'), which is the company that is providing litigation funding. In addition, Mr Elliott is the secretary and one of three directors of the Litigation Funder. Under the litigation funding agreement, the Litigation Funder is entitled to be paid up to 30 per cent of any net amount received to resolve the dispute.

4 On this application, Mr Bolitho was not represented by Mr O'Bryan and Mr Elliott but by separate and independent senior and junior counsel and solicitor. So far as I am aware, those lawyers have not acted before for Mr Bolitho in respect of the proceeding.

5 I have reached the conclusion, for the reasons which follow, that the fairminded, reasonably informed member of the public would conclude that the proper administration of justice requires that Mr O'Bryan and Mr Elliott should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

What interests do senior counsel and instructing solicitor have in the proceeding?

6 The proceeding was commenced on 24 December 2012. On that same day, Mr Bolitho and Mr Elliott entered into a deed of indemnity pursuant to which Mr Elliott agreed to indemnify Mr Bolitho against any costs or liabilities arising out of his role as plaintiff, including any adverse costs order. Mr Bolitho also entered into a costs agreement with Mr Elliott. It is a 'no win no fee' arrangement. If there is a successful outcome (either by judgment in favour of Mr Bolitho and the group members or by a Court approved settlement) then Mr Elliott is entitled to be paid legal fees, including a 25 per cent uplift fee, and disbursements. Under the Legal Profession Act 2004 (Vic) ('Legal Profession Act') contingency fees cannot be charged by solicitors,[1] but an uplift fee, not exceeding 25 per cent, is permissible.[2]

7 From an early stage, most of the defendants agitated the need for Mr Bolitho to provide security for their costs. Following this, the Litigation Funder came into the scene and on 13 March 2014, Mr Bolitho entered into a litigation funding agreement with the Litigation Funder.[3] Mr Elliott's superannuation fund and another company controlled by him hold approximately 45 per cent of the shares in the Litigation Funder. Another 45 per cent of the shares are held by a company controlled by Mr O'Bryan's wife.

8 Under the terms of the funding agreement, the Litigation Funder agrees to pay any security for costs of the defendants, any adverse costs order and certain other costs and expenses, including the reasonable legal fees and the reasonable disbursements (including counsel's fees) incurred by Mr Elliott or any other solicitors appointed in his place as agreed between Mr Bolitho and the Litigation Funder. If money is paid to resolve the dispute, the Litigation Funder is entitled to be reimbursed for the amounts that it has expended in the litigation and to be paid a fee up to 30 per cent of the resolution sum. Given the size of the claim, if the plaintiff is successful, the fee payable to the Litigation Funder may be in the tens of millions of dollars. Among other things, the funding agreement also provides that:

(a) Mr Elliott and the Litigation Funder will determine what claims should be pursued;

(b) the Litigation Funder will give daytoday instructions to Mr Elliott and may give binding instructions and make binding decisions on behalf of Mr Bolitho (although he may override any instruction given by the Litigation Funder insofar as it concerns any claim by him where he has given instructions to Mr Elliott);

(c) Mr Bolitho will follow all reasonable legal advice given by Mr Elliott and by counsel retained by him;

(d) Mr Bolitho must not reject any settlement offer;

(e) Mr Bolitho must not terminate the retainer of Mr Elliott or retain any other solicitors in his place;

(f) if Mr Elliott believes that he is in a position of conflict with respect to obligations he owes to the Litigation Funder and Mr Bolitho, he may prefer the instructions of Mr Bolitho and may give advice to Mr Bolitho contrary to the Litigation Funder's interests and may refrain from giving advice to the Litigation Funder;

(g) the Litigation Funder will implement its policy, as amended from time to time, for managing conflicts; and

(h) if Mr Bolitho wants to settle the class action for less than the Litigation Funder considers appropriate, the question is to be referred to counsel for advice on whether the proposed settlement is fair and reasonable in all the circumstances and if counsel is of the opinion that it is then Mr Elliott will be instructed to do all that is necessary to settle the class action provided that Court approval is obtained.

9 On the same day that Mr Bolitho and the Litigation Funder entered into the funding agreement, Mr Elliott sent a notice to Banksia debenture holders which included the following:

After consultation with your representative plaintiff, Mr Laurence Bolitho and his solicitor, Mr Rob Crowe of Riordan Legal, Shepparton, I wrote to all potential and suitably qualified third party litigation funders known to me seeking expressions of interest from them to provide litigation funding for our class action. I was unsuccessful in arranging litigation funding with any of them.

As I have been personally funding the disbursements and Counsels' fees and providing my legal services to the class action on a no win, no fee basis for the past 18 months, I have an obvious interest in the continuation and ultimate success of this case. However, I am unable to continue personally funding the case and, more importantly, to meet any significant security for costs/immediate payment of costs which may be ordered by the Court. Accordingly, I have recently arranged for a group of experienced and financially strong investors to subscribe for $2M of paid up capital in a new public company that has agreed to act as our litigation funder. A company associated with my family is a significant investor and I am one of the three directors of this newly incorporated company....

Mr Laurence Bolitho has, in his capacity as representative plaintiff and following receipt of independent legal advice, recently agreed to appoint [the Litigation Funder] as the class action funder and to enter into a formal Funding Agreement with [the Litigation Funder] on mutually acceptable terms and conditions. A copy of the executed Funding Agreement has been posted on this website for your perusal. The Agreement contemplates that, subject to Court approval, [the Litigation Funder] will be entitled to the recovery of its legal costs and disbursements plus a 30% fee out of the net settlement or judgement proceeds, if the class action is successful. If the class action is unsuccessful then [the Litigation Funder] will not be entitled to recover any money it has expended on the case. I will continue to act on a no win/no fee basis but [the Litigation Funder] will now pay for disbursements (such as Counsels' fees and witness expenses) and will pay any amounts which are ordered by way of security for or payment of costs.

Any Holder who does not wish to participate in this case having regard to this funding arrangement, or who wants to "opt out" of the class action for this or any other reason, may of course do so at any time by notice in writing to me. If, for example, you consider that you would prefer to bring an action yourself against some or all of the defendants to the class action and pay your own costs and retain all of any settlement or judgment proceeds, then you are entitled to do so at any time. In due course I anticipate that the Court will make orders that a formal "opt out" notice be sent to all Holders, advising you of your rights in this regard. Holders are free to opt out at any time before the Court sets a deadline for opt out (which is many months away).

10 Mr Elliott wrote to the Banksia debenture holders again on 6 June 2014. One of the topics covered in his correspondence was the litigation funding agreement. He repeated that Mr Bolitho had executed a funding agreement, that it included a term for a success fee up to 30 per cent and that group members could opt out. Mr Elliott asked each group member to enter into the same funding agreement with the Litigation Funder and said:

I trust that the ... litigation funding arrangements are satisfactory to you and that you understand the need for them to be arranged by me at this time. Because all defendants other than Banksia have announced their intentions to seek very substantial amounts by way of security for past and future costs, I anticipate that we will need to raise more money in the near future to fund the Banksia Class Action through to completion.

In order to raise additional funds on the best possible terms, I need to be able to convince any prospective litigation funders that the represented group members of the Banksia Class Action approve the terms of the litigation funding arrangements....

Enclosed with this letter is an Acknowledgment & Acceptance of Litigation Funding form for completion and execution by the registered holder of your debentures in Banksia to achieve the objectives described above. It is desirable that you obtain your own independent advice on these proposed litigation funding arrangements. If you agree with them, please return the completed and signed form to me in the enclosed reply paid envelope.

11 The letter referred the Banksia debenture holders to the Litigation Funder's Disclosure Statement and Conflicts Management Policy which appear on the Banksia Class Action website.

12 The Conflicts Management Policy throws light on which counsel will give advice about the reasonableness of a settlement if there is a dispute between the Litigation Funder and Mr Bolitho. It states that the most senior counsel retained in the litigation will take on that task. Mr O'Bryan's name is on the current form of statement of claim and there is no evidence that he is not the most senior counsel retained in the litigation.

13 The Litigation Funder's Disclosure Statement sets out a number of the potential conflicts that the lawyers appointed by it may have and how they are to be addressed. The disclosure statement says that the funding agreement:

(a) discloses any pre-existing relationships between the Litigation Funder and the lawyers and the remuneration to be paid to the lawyers;

(b) specifies that the lawyers are to act for the client and not the Litigation Funder; and

(c) provides that any claimant or any representative in a multiparty case can override any instruction given by the Litigation Funder to the lawyers.

14 The defendants observed that neither (a) nor (b) are found in the litigation funding agreement relevant to this proceeding and that (c) contradicts the terms of the funding agreement which only provides that a claimant may override instructions in respect of their own claim but that otherwise the Litigation Funder's instructions will prevail.

15 Mr Elliott has told the defendants that the Litigation Funder has adopted the same retainer agreement as Mr Bolitho executed with him previously.

When will a legal practitioner be restrained from acting?

16 The Court has inherent jurisdiction to make orders to restrain lawyers from acting in particular matters to ensure the due administration of justice and to protect the integrity of the judicial process.[4] It is part of ensuring that justice is not only done but is manifestly and undoubtedly seen to be done.[5] The principles applicable for restraining a legal practitioner from acting are not in dispute. Those principles were conveniently summarised by Brereton J in Kallinicos v Hunt[6] as follows:

(a) The test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a lawyer should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

(b) The jurisdiction is exceptional and is to be exercised with caution.

(c) Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.

(d) The timing of the application may be relevant, in that the cost, inconvenience and impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.[7]

17 The fairminded, reasonably informed member of the public test has been criticised but remains the test to be applied.[8]

18 One of the circumstances in which restraint of the legal practitioner may be warranted is where the practitioner has a financial interest in the litigation (over and above the legal fees that the practitioner will earn from the litigation).[9] So in the decision of Clyne v The New South Wales Bar Association,[10] the High Court observed that it is perfectly proper for solicitors to act although there is no prospect of being paid fees or being reimbursed for disbursements unless there is a judgment against the other party to the proceeding.[11] The High Court observed that this general proposition was subject to two qualifications:

One is that he has considered the case and believes that his client has a reasonable cause of action or defence as the case may be. And the other is that he must not in any case bargain with his client for an interest in the subject-matter of litigation, or (what is in substance the same thing) for remuneration proportionate to the amount which may be recovered by his client in a proceeding.[12]

19 Where it is recovery of fees that is at stake, the risk is not so much that the practitioner's interest will conflict with the client's interest, but rather that the practitioner may not fulfil or may not be seen as fulfilling their obligations to the Court. In this regard, the Court relies upon practitioners to apply an independent and objective mind when conducting a case on behalf of the client.

20 Mr Bolitho referred to two cases as examples of the approach that the Court should adopt. The first is Westpac Banking Corporation v Newey.[13] In that case, a defendant sought to restrain Westpac's solicitors, Allens, from acting in the litigation. In the substantive proceeding, Westpac sought a declaration as to the meaning of a clause in two deeds, essentially whether the reference to 'Westpac' in the deeds was to be construed as a reference to 'Westpac and any of its related bodies corporate'. It also sought rectification of the two deeds. Allens had acted for Westpac when the deeds were drafted. Pembroke J observed that the issue of whether lawyers should be restrained from acting is 'essentially pragmatic and the relief is discretionary.'[14] It was submitted that Allens could be expected to face a claim if Westpac failed in its case. His Honour dealt with that submission by observing that it was a matter of speculation in circumstances where it was not clear what loss Westpac would suffer if it did lose the case and that the prospect that if it lost, Westpac would hold Allens liable for the costs of the proceeding was too hypothetical to warrant serious consideration.[15] His Honour continued:

Even if such an inference were available, the question remains whether, given the nature of the issues and the ambit of the dispute, it should make any difference to the reasonable man's perception of the integrity of the judicial process. I do not think so. It is not unusual for solicitors, for a variety of reasons, to have a financial investment in litigation, knowing that if the case fails, they will not recover their fees and may even be held liable by their client for the successful party's costs. There is no threat to the integrity of the judicial process when this occurs.[16]

The due administration of justice is not necessarily advanced by claims by litigants who espouse the lofty ideal of protecting the integrity of the judicial process, while seeking to obtain a position of advantage in the litigation. In an appropriate case, a party to proceedings... can of course bring such an application as this. But it does not follow that just because a plaintiff seeks an order for rectification as a result of a supposed mistake by its own solicitor, then that solicitor, let alone his firm, cannot continue to act in the proceedings. There will be cases and cases.

The law and lawyers would be held in disrepute if judges acceded too readily and too often to such applications. Before doing so, there must be some realistic sense of impropriety about the circumstances; something that sensibly justifies the conclusion that unless an injunction were granted, the integrity of the judicial process would be impaired. The basis for the second defendant's application existed only in the clouds, at an abstract theoretical level. The facts on which it relied were thin and the speculation on which it depended was unconvincing. On the other hand, the grant of an injunction must be grounded in pragmatism, reflecting the practical commercial reality, paying due regard to established legal principle and acknowledging norms of acceptable behaviour.

I am unwilling to exercise my discretion in this case. I am not satisfied that the circumstances of this case justify the invocation of the exceptional jurisdiction, which is, as is so often stated, to be exercised with caution. The conduct of commercial litigation is frequently riddled with conflicts, of all types and of different degrees of seriousness. Justice is not served by false sensitivities and undue preciousness. There is, in my view, in this case, no real sensible possibility of conflict that could justify restraining Allens from acting for the plaintiff. I dismiss the application with costs.[17]

22 It is worth pointing out, that although Pembroke J spoke about lawyers having a financial interest in proceedings by virtue of their fees and the potential for a costs order to be made against them, earlier in his reasons his Honour had distinguished the case before him from a case in which the solicitors have a direct pecuniary interest in the outcome.[18] I do not interpret his Honour to mean that where solicitors have a financial interest over and above their fees, that that is not a matter about which justifiable concern might be raised.

23 Somewhat in contrast to the Newey decision is the case of Gangemi Pty Ltd v Luppino Pty Ltd.[19] There, the plaintiff sought rectification of contracts because of what was alleged to be an oversight by its solicitors in drafting the contracts. The same solicitors were the solicitors on the record for the plaintiff in the rectification proceeding. Sifris J held that the solicitors had a real and substantial financial interest in the outcome of the litigation because if the plaintiff lost, they would be liable. His Honour said:

They have a serious financial interest and may lack objectivity in relation to the conduct of the case and, in particular, in relation to settlement discussions and prospects. Any compromise of the case would probably, to the extent of the compromise, render the firm liable.

In my opinion a fair minded observer would recognise the difficult position of the plaintiff's solicitors and have reservations about the plaintiff's solicitors' ability to discharge their duties in circumstances where the solicitors face the prospect of substantial loss. Although relevant, the independence of counsel is no protection or panacea for the difficult position in circumstances where the solicitors provide instructions to counsel including the ability to terminate any retainer and brief other counsel or no counsel. It is also of little comfort that the solicitor who allegedly made the mistake would not take any part in the litigation. For so long as the firm remains liable they are in a difficult position arising out of the ever present conflict and cannot be in a position where they remain "unfettered about their own interests".[20]

24 Sifris J concluded that the solicitors should not be permitted to continue acting in the proceeding.

25 The second case to which Mr Bolitho made reference to demonstrate the approach that the Court should take was Commonwealth Bank of Australia v Jackson McDonald.[21] In the principal litigation, Jackson McDonald acted for Westgem Investments Pty Ltd against a number of financiers. Westgem was in liquidation. The financiers argued that Jackson McDonald should be restrained from acting because the firm had received payments totalling approximately $400,000 from Westgem prior to its liquidation and the liquidator had foreshadowed the possibility of a claim that the payments were preferential. The question of Westgem's solvency would be relevant to such a claim. It was also relevant to the claim against the financiers in the principal proceeding.

26 Jackson McDonald advised Westgem and other clients for whom it acted about the potential for conflict and suggested that they obtain independent advice. After receiving such advice, all clients indicated that they unequivocally consented to Jackson McDonald continuing to act. Jackson McDonald also executed a deed poll undertaking not to contest that the payments it received were insolvent transactions in the event that the liquidator brought proceedings seeking repayment.

27 The current statement of claim in the principal proceedings had taken 'years to formulate' and was based 'on a very extensive review of relevant facts and circumstances occurring in relation to a complex commercial development over a number of years.'[22] Jackson McDonald's fees in relation to acting for Westgem and other clients in relation to the claims was likely to be in the millions of dollars and vastly in excess of the amount of any preferential payments.[23]

28 Martin CJ observed that the application was not brought on the basis of restraining the solicitors from breaching a duty owed to their clients, each client having given fully informed consent to Jackson McDonald acting.[24] Rather, the application was put on the basis that it was necessary to restrain a breach of duty owed to the court as officers of the court engaged in the administration of justice.[25]

29 Martin CJ noted that the position adopted by Jackson McDonald's clients was relevant because the observer 'would likely be influenced by the fact that those who have perhaps the most to lose by the alleged conflict to which the financiers point have determined on the basis of independent legal advice that they do not wish Jackson McDonald to cease to act.'[26] The Chief Justice observed:

The previous cases ... contain observations to the effect that complex commercial litigation is inevitably replete with the potential for conflict from a number of sources, particularly, for example, where solicitors had given advice in relation to transactions giving rise to the dispute, or where solicitors had given advice in relation to the outcome of the dispute, or where the solicitors' practical capacity to be paid depends upon the outcome of the dispute. The point of those observations is that if the court determines applications of this kind with an eye keenly attuned to the perception and avoidance of possible conflict, there will be delays, inefficiencies and increased costs which are not justified by any real or appreciable risk to the administration of justice.[27]

30 Martin CJ concluded that there were a number of matters that counted against restraining Jackson McDonald from acting, including the costs that would be thrown away, inevitable delay, that the clients would be deprived of their choice of solicitor and that there was a very limited potential for conflict. Consequently, the only conclusion reasonably to be drawn was that 'any possibility of Jackson McDonald modifying its behaviour in the representation of its clients because of its own interest is entirely fanciful.'[28] The Chief Justice declined to make any restraining order.

31 As well as owing common law duties, legal practitioners are bound by statutory duties to the court.[29] These duties include a paramount duty to the court to further the administration of justice in relation to any civil proceeding.[30] Professional conduct rules[31] are also binding on practitioners.[32] Contravention of those rules may have disciplinary consequences.[33] The applicable Bar rules provide that a barrister must not in any dealings with a client allow the interests of the barrister or a member of the barrister's immediate family to conflict with those of the client.[34] In addition, a barrister must not accept instructions to act for a person in any proceedings or continue to act for a person engaged in such proceedings when the barrister is, or becomes, aware that the person's interest in the proceedings is, or would be, in conflict with the barrister's own interest or the interest of a member of the barrister's immediate family.[35] Further, a barrister must refuse to accept or retain a brief or instructions to appear before a court if the barrister has a material financial interest in the outcome of the case, apart from the prospect of a fee.[36] The Law Institute rules provide that a practitioner must not allow an interest of the practitioner or their associate to conflict with the client's interest.[37] Moreover, the practitioner must not exercise any undue influence over the client with the intention that the client will benefit the practitioner with more than fair remuneration for the legal services provided.[38] Finally, the practitioner must not continue to act where there is a conflict.[39]

32 I would reiterate at this stage that Mr Godfrey's application is to restrain Mr Bolitho from retaining Mr O'Bryan and Mr Elliott rather than seeking to restrain the lawyers themselves. Senior counsel for Mr Bolitho submitted that the Court should approach the application as one in which the Court is exercising its supervisory role in respect of its officers. I agree. The exercise of the Court's inherent jurisdiction is not about restraining litigants from retaining lawyers of their choice.

33 Counsel accepted that if the Court formed the view that there were grounds to restrain Mr O'Bryan and Mr Elliott from continuing to act, then the Court could act to effect a practical outcome. Both Mr O'Bryan and Mr Elliott were aware that the application had been made and of the date of the hearing. Mr Elliott attended the hearing. Neither of them sought to intervene in the proceeding although the orders sought, if made, would affect them. I have proceeded on the basis that if there are grounds to restrain them from acting, then orders should be made against them, not Mr Bolitho. The making of such orders would be subject to giving Mr O'Bryan and Mr Elliott a further opportunity to be heard (should they so wish) or to voluntarily withdraw as the lawyers for Mr Bolitho without the need for the making of formal orders.

The regulatory framework for litigation funding schemes and ASIC's**[40]** views

34 Litigation funding schemes have the following characteristics:

(a) the dominant purpose of the scheme is for each of its general members to seek remedies to which they may be legally entitled;

(b) the possible entitlement of each of the general members of the scheme to remedies arises out of:

(i) the same, similar or related transactions or circumstances that give rise to a common issue of law or fact; or

(ii) different transactions or circumstances, but the claims of the general members can be appropriately dealt with together;

(c) the possible entitlement of each of the general members of the scheme to remedies relates to transactions or circumstances that occurred before or after the first funding agreement (dealing with any issue of interests in the scheme) is finalised;

(d) the steps taken to seek remedies for each of the general members of the scheme include a lawyer providing services in relation to:

(i) making a demand for payment in relation to a claim;

(iii) commencing or undertaking legal proceedings;

(iv) investigating a potential or actual claim;

(vi) administering a deed of settlement or scheme of settlement relating to a claim;

(e) a person (the funder) provides funds or indemnities, or both, under a funding agreement (including an agreement under which no fee is payable to the funder or lawyer if the scheme is not successful in seeking remedies) to enable the general members of the scheme to seek remedies; and

(f) the funder is not a lawyer or legal practice that provides a service for which some or all of the fees or disbursements, or both, are payable only on success.[41]

35 Litigation funders are not required to hold Australian financial services licences.[42] They must, however, have adequate practices for managing any conflict of interest.[43] A failure to comply with that requirement is an offence.[44] The conflict management requirement is satisfied if the practices for dealing with conflicts are documented and cover a number of specific matters, including written procedures for identifying and managing conflicts.[45] The written procedures must include the topic of how to deal with a situation in which there is a pre-existing relationship between any of a funder, a lawyer and a general member of the litigation funding scheme.[46]

36 ASIC's Regulatory Guide 248 "Litigation schemes and proof of debt schemes: Managing conflicts of interest" concerns this regulatory framework. ASIC observes that a group proceeding, such as the present proceeding, is a common form of litigation scheme. It goes on to state that 'A litigation scheme can be structured as fully funded by an external funder, partly funded by lawyers or unfunded (i.e. funded by the members)'. Given that the definition of 'litigation scheme' (which ASIC recites in its guide[47]) excludes lawyers acting on a 'no win no fee' basis,[48] I take ASIC to mean that in its view lawyers may provide funding in a different form. In addition, ASIC notes that funders and lawyers are the most likely to rely upon the litigation scheme statutory exemptions.[49] It observes that lawyers will not always be providing financial services or are likely to be exempt from compliance with the relevant legislative regime without the need to rely upon the statutory exemptions for litigation schemes.[50] ASIC goes on to state:

More generally, lawyers are already subject to obligations to their clients relating to conflicts of interest. For example, lawyers are subject to fiduciary duties to their client, ethical duties to the court, statutory duties under state or territory legal profession Acts, and professional codes of conduct and practice rules.[51]

37 ASIC notes that litigation schemes may give rise to a number of conflict situations, including where there is a pre-existing legal or commercial relationship between the funder, lawyers and/or members. In this regard it notes, 'For example, the lawyers may also own, or be officers of, the funder.'[52]

38 Taking the comments by ASIC as a whole, it seems to me that ASIC accepts that lawyers are subject to ethical duties, both to their clients and to the courts. Subject to that, ASIC's view seems to be that lawyers may take on the dual roles of lawyer and funder, provided that adequate measures are in place to address any conflicts that arise as a result.

39 If I have correctly interpreted ASIC's position, it is not clear to me how its view sits with the regulatory framework. As the defendants submitted (correctly, in my view) if a lawyer is the litigation funder, then that constitutes an unregistered managed investment scheme because of the carve out in the definition of litigation funding scheme set out in [34(f)] above. ASIC did not appear on this application and it is not necessary to come to any concluded view about this issue to determine the matter. In those circumstances, I will say no more about it.

Should Mr Bolitho's solicitor be restrained from acting?

40 Senior counsel for Mr Bolitho was willing to acknowledge that there is a theoretical conflict which could arise on various hypotheses, but he did not think that there is a real and sensible conflict such as to involve the necessity for the Court to exercise its exceptional jurisdiction to intervene. In counsel's view, we all go through life with conflicts around us and it is a question of whether or not those conflicts are a matter of significance and whether they have the effect of making people fail in their duty or there is a real prospect of people failing in their duty.

41 He submitted that the litigation is complex and that it would take some time and would involve additional expense if new solicitors and counsel were to be appointed. In this regard, he noted that of importance under the Civil Procedure Act is the requirement to facilitate the efficient and costeffective resolution of the real issues in dispute.

42 Mr Bolitho submitted that it was important to bear in mind that he has fiduciary duties to the group members. He offered an undertaking that in the event that a settlement offer is made, he will take independent advice concerning that settlement offer irrespective of whether or not it is subsequently the subject of an application for Court approval.[53]

43 Mr Bolitho submitted that by virtue of the fees that they hope to earn, lawyers always have an economic interest in the cases that they take on. Nevertheless, they are able to exercise professional detachment about their immediate financial interests. Whether they are paid on a full fee paying basis or as a result of a conditional fee arrangement, the lawyer's self-interest in earning fees does not lead to the conclusion that they ought to be restrained. Consequently, Mr Bolitho submitted that the task of the Court is not to prevent or avoid the possibility of lawyers having an interest in the proceeding. Rather, the test is whether the proper administration of justice positively requires the lawyers to be restrained. The focus, so he contends, should be on the real need for restraint, rather than on a theoretical need for restraint.

44 Mr Bolitho also suggested that the Court should approach the application with a degree of scepticism, as attacks of this nature may result in the action being stymied.

45 Mr Bolitho has received independent advice about the costs agreement that he entered into, the litigation funding agreement and the interests that those connected with the case have in the Litigation Funder. The defendants were critical of the evidence about these matters and, in particular, that there was no evidence about how fulsome the advice had been and what instructions it was based upon. Therefore, the defendants submitted that the Court could not be confident that Mr Bolitho has sufficient knowledge about the connections between the Litigation Funder, Mr O'Bryan and Mr Elliott and the conflicts that may arise as a result of those connections. Consequently, they contended, any consent Mr Bolitho had given to them to continue acting was somehow tainted. In my view, those submissions lack merit. In this regard, there were relatively detailed written submissions by the parties before this application came on for hearing in which the defendants' criticisms were ventilated. Moreover, Mr Bolitho was represented by senior and junior counsel and an instructing solicitor who, as I have said and so far as I am aware, have had no role in the litigation previously. Taking those matters into account, it seems somewhat artificial to suggest that Mr Bolitho has not received advice about the matters pertinent to this application. I would note that this is in addition to the independent advice said to have been given to Mr Bolitho previously.

46 Both the cases that Mr Bolitho relied upon to demonstrate the approach that the Court should take concern different types of potential conflict to that in issue here. In each of them, the real issue was a conflict or the potential for it with the client's interests. In Commonwealth Bank of Australia v Jackson McDonald,[54] Martin CJ observed that the people most likely to be affected by the potential conflict had not complained and had positively affirmed (after receiving advice) that they wanted the lawyers to continue acting for them. The amount of the financial imperative that the lawyers might have had if the alleged preferential payments were to be clawed back were dwarfed by the amount that they had at stake by way of fees to be earned out of the litigation. In Westpac Banking Corporation v Newey,[55] Pembroke J held that the potential for a financial effect on the solicitors was speculative and hypothetical. As I have already observed, his Honour distinguished the case from one where the solicitors have a direct pecuniary interest in the outcome. Consequently, what is said in both cases must be considered in its context, which is distinguishable from the present case.

47 I accept that it is appropriate to view applications of the type made here with a degree of circumspection. Defendants usually have an obvious self-interest in removing their opponent's lawyers. Nevertheless, if there are good grounds to remove Mr Bolitho's lawyers, then they remain good grounds regardless of the motivation of the moving parties.

48 To recap, the test for whether Mr Elliott should be restrained from acting is that of the fairminded, reasonably informed member of the public (the 'Observer'). It is whether that hypothetical person would come to the conclusion that the proper administration of justice requires that in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice, Mr Elliott should be restrained from acting. Here, the Observer would know that:

(a) on at least one view, the case is an important means by which the claims of Mr Bolitho and the group members may be vindicated;

(b) group members stand to share part of the benefit of a successful class action, but a representative plaintiff faces the risk of an adverse costs order alone;

(c) when the proceeding began in December 2012, Mr Elliott agreed to indemnify Mr Bolitho against any costs or liabilities arising out of his role as plaintiff, including any adverse costs order;

(d) Mr Elliott entered into a 'no win no fee' costs agreement with Mr Bolitho that contains an uplift fee of 25 per cent in the event of a successful outcome;

(e) lawyers may charge an uplift fee up to 25 per cent but are not permitted to charge contingency fees;

(f) Mr Bolitho had independent legal advice about the indemnity and the costs agreement;

(g) from early in the proceeding, most of the defendants sought security for costs;

(h) it seems that no established litigation funder could be found to fund the action, and the Litigation Funder was established;

(i) the Litigation Funder has provided security for costs;

(j) Mr Elliott has a substantial interest of about 45 per cent in the Litigation Funder and is one of its directors;

(k) the wife of senior counsel retained for Mr Bolitho holds a 45 per cent interest in the Litigation Funder;

(l) the litigation funding agreement was entered into by Mr Bolitho with the Litigation Funder on 13 March 2014;

(m) Mr Bolitho received independent legal advice about the funding agreement;

(n) Mr Bolitho knows about Mr Elliott's involvement in the Litigation Funder and the involvement of Mr O'Bryan's wife;

(o) a fee up to 30 per cent of any amount to be paid by the defendants may be charged by the Litigation Funder under the funding agreement;

(p) the claim is for a significant amount in excess of $100 million;

(q) if Mr Bolitho fails in his claim and costs follow the event, those costs will be borne by the Litigation Funder and possibly Mr Elliott in view of the original indemnity that he gave to Mr Bolitho;

(r) although the Litigation Funder has $2 million in paid up capital, Mr Elliott has told the Banksia debenture holders that it is likely that it will need to raise more funds;

(s) as is common with agreements of its type, the terms of the litigation funding agreement place a number of restrictions on Mr Bolitho and repose a great deal of control into the hands of the Litigation Funder;

(t) the litigation funding agreement contemplates that Mr Elliott may be replaced as the solicitor in the proceeding;

(u) there is nothing to suggest that if Mr Elliott is restrained from acting, the proceeding would be stultified for want of a solicitor to prosecute the claim on behalf of Mr Bolitho and the group members.[56] Although the proceeding has been on foot for some time, procedurally it is at a very early stage. Consequently, (and contrary to Mr Bolitho's submission) it would not create too many difficulties for a new practitioner to take over the case from Mr Elliott;[57]

(v) if Mr Elliott were restrained from acting, there would be nothing to prevent the Litigation Funder from continuing to provide funding, and there is no suggestion that the litigation would be stultified for want of a litigation funder;

(w) the Litigation Funder purported to adopt the costs agreement previously entered into between Mr Bolitho and Mr Elliott;

(x) Mr Bolitho has undertaken that he will obtain advice independent of Mr Elliott about settlement offers;

(y) any settlement of the class action would be subject to Court approval,[58] with the Court having power to make any order it thinks appropriate or necessary to ensure that justice is done in the proceeding;[59]

(z) it is important for the proper administration of justice and the judicial process that the Court can rely upon the independence of the lawyers for the parties and that the lawyers will bring a degree of objectivity to the task when advising their clients and presenting the case to the Court;

(aa) the group members are free to reject the litigation funding arrangement if they so choose and may opt out of the proceeding - the opt out notice will be subject to scrutiny by the Court;

(bb) litigation funders are bound by the overarching obligations set out in the Civil Procedure Act;[60]

(cc) ASIC contemplates that lawyers may have an interest in the litigation funder of proceedings in which they are retained; and

(dd) Mr Bolitho wishes to continue to retain Mr Elliott.

49 Taking those matters into account, the Observer would likely conclude on balance that to protect the proper administration of justice, Mr Elliott should be restrained from continuing to act.

50 As I have said, the Observer would know that the legislature has seen fit to place a 25 per cent limit on the uplift fee that may be charged by solicitors acting on a 'no win no fee' basis and has banned contingency fees, such that a solicitor may not charge as a fee a percentage of the amount obtained by the client from the litigation. The distinction between the approach to be adopted where lawyers have an interest in protecting their fees and an interest in the subject matter of the litigation was made clear in Clyne v The New South Wales Bar Association.[61] The High Court, in very clear and direct terms, stated that the former is permissible; the latter is not. Although decided many years ago and in the context of a different style and type of litigation to modern commercial group proceeding litigation, the case is still good authority and is consistent with the continuing legislative prohibition on contingency fees.

51 Here, the Observer is likely to conclude that although the litigation funding agreement success fee would not be payable to Mr Elliott in his capacity as a solicitor, nevertheless it is a contingency fee that would benefit him. The Observer would likely take the view that where the legal practitioner's interest in the funder is sizeable, it would be inimical to the appearance of justice for lawyers to skirt around the prohibition on contingency fees by this means.

52 The position might be different in circumstances where the lawyer's interest was more modest, but here the 45 per cent interest and the quantum of the claim take it beyond something that might be seen as insufficiently significant to give rise to concern. The current factual scenario is also to be contrasted with a case where a person who is a lawyer by profession has an interest in the litigation funder but is not the lawyer for the plaintiff in the case that is being funded.

53 The Observer would also note that in this litigation Mr Elliott wears a number of hats. As such, the likelihood of conflict is greater because of the increased number of roles that he has. He is the solicitor for Mr Bolitho. He is a director and secretary of the Litigation Funder. The Litigation Funder potentially stands to make a substantial gain or loss from the litigation. Whilst the Civil Procedure Act requires parties, litigation funders and the court to deal with litigation efficiently and cost effectively, another key requirement is the just resolution of disputes. Justice requires practitioners to observe their ethical duties and obligations to the court. As noted above, the court relies upon practitioners to apply an independent and objective mind when conducting a case on behalf of the client. There is a risk (which seems to be accepted) that that objectivity might be compromised to some degree where there is a 'no win no fee' arrangement because of the fees which the practitioner may have at stake. However, the Observer would likely conclude that the more that is at stake, the greater the risk that the lawyer will not bring or will not be seen to be bringing to bear the requisite degree of objectivity that the role of lawyer demands. The Observer would form the view that Mr Elliott may be influenced by the substantial financial interest that rests on the outcome of the case. The addition of his financial interest in what the Litigation Funder may gain or lose (dependent upon the outcome of the case) means that the risk that he will be, or will be perceived to be, unable to apply the necessary independence required as an officer of the court is a real risk that cannot be ignored. It is true that that risk is ameliorated to some extent by the undertaking that Mr Bolitho is willing to give and the legislative oversight that the Court has in a group proceeding.[62] Nevertheless, it does not lessen the risk sufficiently to make it a matter of such little significance that it can be ignored. The Observer will know that throughout the course of the proceeding there are likely to be a number of difficult interlocutory applications and, if a settlement cannot be achieved, there will be a trial. How the case is argued and what matters are put to the Court will be important. It is not only in respect of settlement offers that independence is needed. The Observer would be concerned that there is a sufficient risk that Mr Elliott's (indirect) shareholding and position as a director of the Litigation Funder will give the appearance that his role as a solicitor and officer of the court is compromised. That would be detrimental to the integrity of the judicial process. The large interest in the Litigation Funder (and, it follows, in the success fee, or conversely any loss occasioned by funding the proceeding) takes it a step beyond what is the practical reality that lawyers must be allowed to continue acting even though they have an interest in protecting payment of their fees (which can be substantial). If on no other basis, that is justifiable because of the need to ensure that there is access to justice for litigants who would not otherwise be capable of prosecuting good claims.

54 The Observer would also be likely to conclude that the difficulties for Mr Elliott are compounded because in addition to him, senior counsel (through his wife) has a connection with the Litigation Funder. This further tarnishes the appearance of justice, because there is no senior lawyer representing Mr Bolitho in the case before the Court who is independent of the Litigation Funder.

55 These considerations weigh more heavily in the current case than the desire of Mr Bolitho to have Mr Elliott continue as his solicitor and the public interest in not depriving a party of their chosen lawyer. As I have noted, there is no evidence that the litigation would be stultified - the Litigation Funder can remain and there is no evidence that a new solicitor could not be found. There is no access to justice issue. There may be some inconvenience in replacing Mr Elliott, but that is insufficient to counter the other matters outlined above.

56 Consequently, and taking into account that the jurisdiction to restrain is to be exercised with caution and is exceptional, Mr Elliott should not continue to act as solicitor in the proceeding.

Should Mr Bolitho's senior counsel be restrained from acting?

57 The position in relation to senior counsel continuing to act must be considered separately. Bearing this in mind, I will set out what in Mr O'Bryan's case, the Observer would know, although this necessarily involves some repetition of what I have said in relation to Mr Elliott's case. In respect of Mr O'Bryan, the Observer would know that:

(a) on at least one view, the case is an important means by which the claims of Mr Bolitho and the group members may be vindicated;

(b) group members stand to share part of the benefit of a successful class action, but a representative plaintiff faces the risk of an adverse costs order alone;

(c) lawyers are not permitted to charge a contingency fee;

(d) from early in the proceeding, most of the defendants sought security for costs;

(e) it seems that no established litigation funder could be found to fund the action, and the Litigation Funder was established;

(f) the Litigation Funder has provided security for costs;

(g) Mr O'Bryan's wife has a substantial interest of about 45 per cent in the Litigation Funder but is not a director and, consequently, will not be involved in decision making concerning the outcome of the case;

(h) Mr O'Bryan's instructor has a substantial interest of about 45 per cent in the Litigation Funder and is one of its directors;

(i) the litigation funding agreement was entered into by Mr Bolitho with the Litigation Funder on 13 March 2014;

(j) Mr Bolitho received independent legal advice about the funding agreement;

(k) Mr Bolitho knows about the involvement of Mr O'Bryan's wife and Mr Elliott in the Litigation Funder;

(l) a fee up to 30 per cent of any amount to be paid by the defendants may be charged by the Litigation Funder under the funding agreement;

(m) the claim is for a significant amount in excess of $100 million;

(n) if Mr Bolitho fails in his claim and costs follow the event, those costs will be borne by the Litigation Funder;

(o) although the Litigation Funder has $2 million in paid up capital, Mr Elliott has told the Banksia debenture holders that it is likely that it will need to raise more funds;

(p) as is common with agreements of its type, the terms of the funding agreement place a number of restrictions on Mr Bolitho and repose a great deal of control into the hands of the Litigation Funder;

(q) there is nothing to suggest that if Mr O'Bryan is restrained from acting the proceeding would be stultified for want of senior counsel to prosecute the claim on behalf of Mr Bolitho and the group members. Although the proceeding has been on foot for some time, procedurally it is at a very early stage. Consequently, (and contrary to Mr Bolitho's submission) it would not create too many difficulties for a new barrister to take over the case from Mr O'Bryan;[63]

(r) if Mr O'Bryan were restrained from acting, there would be nothing to prevent the Litigation Funder from continuing to provide funding, and there is no suggestion that the litigation would be stultified for want of a litigation funder;

(s) Mr Bolitho has undertaken that he will obtain advice independent of Mr Elliott and Mr O'Bryan about settlement offers;

(t) the funding agreement contemplates that Mr O'Bryan would give advice as to whether a proposed settlement of the action was fair and reasonable if there was a dispute between Mr Bolitho and the Litigation Funder;

(u) counsel for Mr Bolitho has indicated that Mr O'Bryan will not take on that role;

(v) if Mr O'Bryan were to be permitted to continue to represent Mr Bolitho in the proceeding, an undertaking could be sought from him (which given counsel's indication would likely be given) that he would not provide advice about any proposed settlement;

(w) any settlement of the class action would be subject to court approval[64] with the Court having power to make any order it thinks appropriate or necessary to ensure that justice is done in the proceeding;[65]

(x) it is important for the proper administration of justice and the judicial process that the Court can rely upon the independence of counsel and that counsel brings a degree of objectivity to the task when advising their clients and presenting the case to the Court;

(y) the group members are free to reject the litigation funding arrangement if they so choose and may opt out of the proceeding - the opt out notice will be subject to scrutiny by the Court;

(z) litigation funders are bound by the overarching obligations set out in the Civil Procedure Act;[66]

(aa) ASIC contemplates that lawyers may have an interest in the litigation funder of proceedings in which they are retained; and

(bb) Mr Bolitho wishes Mr O'Bryan to continue as senior counsel in the case for him.

58 Senior counsel for Mr Bolitho accepted that the real issue does not turn on the fact that it is Mr O'Bryan's wife rather than he who holds the interest in the Litigation Funder. Rather, counsel contended that there is no appreciable risk of conflict. In this regard, he observed that Mr O'Bryan is a senior member of the Bar and has obviously formed the view, given the professional obligations that he has under the Bar rules, that in accordance with his professional judgement he does not believe that the possibility of conflict is sufficiently appreciable for him to take the step of returning his brief in this matter. He observed that there has been no particular concrete example of why that judgement by Mr O'Bryan has been wrong. The focus is on what is required for the administration of justice and must be grounded in reality and cannot be theoretical.

59 He submitted that on an application under s 33V of the Supreme Court Act for approval of a compromise of the action, if the Court were concerned about the impartiality of counsel's opinion about the merits of settling, it could do a variety of things, including requiring the provision of a further opinion.

60 The Observer would note that the involvement of Mr O'Bryan in the Litigation Funder is less than that of Mr Elliott. He is not an officeholder and it is his wife, rather than a company, that holds shares.

61 Nevertheless, as a matter of common knowledge, the Observer would know that in most families, what is good or bad financially for a wife is good or bad for her husband and vice versa. As Mr Bolitho's counsel recognised, the issue is not one of control of wife over husband, nor is it in any way a question of gender. It would make no difference to the analysis if it was Mr O'Bryan who was the shareholder and his wife the barrister. Rather, the real point is whether there is a real risk to the proper administration of justice if Mr O'Bryan were to continue representing Mr Bolitho because of his family's interest in the Litigation Funder. Bearing in mind that the jurisdiction to restrain counsel is exceptional and is to be exercised with caution, the Observer would nevertheless likely conclude that there is a real risk. Again, the effect is that if the case for Mr Bolitho succeeds or is settled favourably, Mr O'Bryan will indirectly benefit from a contingency fee. I would repeat what I have said in this regard when considering the position of Mr Elliott.

62 I also do not accept counsel's submission that there is a mere hypothetical risk of conflict. As with Mr Elliott, the Observer would form the view that Mr O'Bryan may be influenced by his family's substantial financial interest that rests on the outcome of the case. Again, it is the perception that that interest may be seen to colour his ability to perform his obligations, not necessarily that it would. Mr O'Bryan is not acting on a 'no win no fee' basis, as the evidence discloses that Mr Elliott and now the Litigation Funder are paying counsel's fees. Consequently, in his case, it is only the significant interest that his family has in the Litigation Funder that puts him into a compromised position so that the Observer would view the risk that he will or will be perceived to be unable to apply the necessary independence required as an officer of the court, a real rather than theoretical risk that cannot be overlooked. As with Mr Elliott, whilst that risk is lessened to some extent by the undertaking that Mr Bolitho is willing to give and the legislative oversight that the Court has in a group proceeding,[67] it does not reduce the risk sufficiently to make it a matter of no significance such that it can be ignored. The prospect of Mr O'Bryan's stance that he would not take any part in advising about settlement also does not diminish the risk sufficiently. In this regard, I would repeat what I said in [53] above about interlocutory applications and a trial.

63 I would also repeat the observations that I made in [54] above. Similarly to what I said about Mr Elliott in [55] above, there is no question of access to justice or stultification of the litigation if Mr O'Bryan does not continue to represent Mr Bolitho. Again, there may be some inconvenience to Mr Bolitho, but that is likely to be reduced if junior counsel retained for Mr Bolitho continues to act for him in the proceeding.

64 Consequently, the Observer would come to the conclusion that although Mr Bolitho would like him to act, in all the circumstances there is due cause to prevent Mr O'Bryan from continuing to act as counsel in the proceeding.

65 Before closing, I would note that in reaching the conclusion that I have, I should not be taken to have formed any view about whether either Mr Elliott or Mr O'Bryan have breached or are likely to breach their statutory duties to the Court or any professional conduct rule. It has not been necessary for me to do so, and I would not make such a finding without first hearing from Mr O'Bryan and Mr Elliott.

66 Finally, and for completeness, I would record that since this application was argued, a separate proceeding has been commenced by Banksia's Receivers against most of the defendants in this group proceeding. The two proceedings are to be case managed together. The Receivers do not represent the debenture holders who are the group members in the present proceeding. Consequently, I do not think at present that the analysis above is altered by the commencement of the Receivers' proceeding.

67 The Observer would conclude that if Mr O'Bryan and Mr Elliott continue as counsel and solicitor for Mr Bolitho in the proceeding, then this would affect the proper administration of justice, including the appearance of justice. As I indicated above, the appropriate orders are not ones restraining Mr Bolitho but rather orders directed towards Mr O'Bryan and Mr Elliott. Although they were both aware of the application, the relief was not sought against them and they were not represented at the hearing. Consequently, I will refrain from making any orders for the time being and will direct that a copy of these reasons be provided to them for their consideration.

[1] Legal Profession Act s 3.4.29(1).

[3] Formerly, International Litigation Partners Ltd.

[4] Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446, 452 (Mandie J).

[6] [2005] NSWSC 1181; (2005) 64 NSWLR 561.

[7] Ibid 582-3 [76]. See also Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446, 452 (Mandie J).

[8] Commonwealth Bank of Australia Limited v Jackson McDonald [2014] WASC 301.

[9] Bowen v Stott [2004] WASC 94 [52]-[53]; Eden Energy Ltd v Drivetrain USA Inc [2012] WASC 192; (2012) 90 ACSR 191 [116]; Mitchell v Burrell [2008] NSWSC 72 [20].

[10] [1960] HCA 40; (1960) 104 CLR 186.

[12] Ibid. See also the observations of the Full Court of the Australian Capital Territory Supreme Court in Re Robb (1996) 134 FLR 294, 315-316.

[13] [2013] NSWSC 533.

[19] [2012] VSC 168.

[21] [2014] WASC 301.

[29] Civil Procedure Act 2010 (Vic) s 15 ('Civil Procedure Act').

[30] Ibid s 16.

[31] As to which bodies may make such rules for the purposes of the Legal Profession Act, see s 3.2.9.

[32] Legal Profession Act s 3.2.17(1).

[34] Victorian Bar, Practice Rules - Rules of Conduct and Compulsory Continuing Professional Development Rules (effective 22 September 2009) r 72(a).

[37] Law Institute of Victoria, Professional Conduct and Practice Rules (as at 30 June 2005) r 9.1.1.

[40] Australian Securities and Investments Commission.

[41] Corporations Regulations 2001 (Cth) reg 5C.11.01(1)(b)(vi) ('Corporations Regulations').

[42] Corporations Act 2001 (Cth) s 911A(2)(k) ('Corporations Act'); Corporations Regulations reg 7.6.01(1)(x), (y).

[43] Corporations Act s 911A(5B) (inserted by Corporations Regulations reg 7.6.01AB(1)); Corporations Regulations reg 7.6.01AB(2).

[44] Corporations Regulations reg 7.6.01AB(3).

[47] Australian Securities and Investments Commission, Litigation Schemes and Proof of Debt Schemes: Managing Conflicts of Interest, Regulatory Guide 248 (as at April 2013) RG 248.2.

[48] See above [34(f)].

[49] Australian Securities and Investments Commission, Litigation Schemes and Proof of Debt Schemes: Managing Conflicts of Interest, Regulatory Guide 248 (as at April 2013) RG 248.8.

[53] Supreme Court Act 1986 (Vic) s 33V ('Supreme Court Act').

[54] [2014] WASC 301.

[55] [2013] NSWSC 533.

[56] Mr Bolitho submitted that apart from Mr Elliott, no other solicitors have shown themselves willing to pursue the claims on a 'no win no fee' basis nor any other basis. There is, however, no evidence of that, nor evidence of any attempt to identify a solicitor who might take over the proceeding.

[57] Leave to amend the statement of claim (which was not opposed by any defendant) was only recently granted. No defences have been filed.

[58] Supreme Court Act s 33V.

[59] Ibid s 33ZF.

[60] Section 10(1)(d)(ii).

[61] [1960] HCA 40; (1960) 104 CLR 186. See above [18].

[62] Including approval of any settlement of proceedings and the content of opt out notices.

[63] Leave to amend the statement of claim (which was not opposed by any defendant) was only recently granted. No defences have been filed.

[64] Supreme Court Act s 33V.

[65] Ibid s 33ZF.

[66] Section 10(1)(d)(ii).

[67] Including approval of any settlement of proceedings and the content of opt out notices.