The Victoria Court of Appeal ordered a review, which led to the appointment of a contradictor – Peter Jopling, QC – to investigate whether the costs were justified.
The hearing began on July 27, with Mr Jopling arguing it was Mark Elliott’s practice “to make demands for costs that had no basis in fact and then to come up with bills to support these demands”.
“Mr O’Bryan joined him in as an equal co-venturer and Mr Symons was their willing and active recruit,” he said.
Mr Jopling said Mr Elliott and the lawyers acted dishonestly and without any regard to their duties to the court and their clients.
It led Mr O’Bryan to advise the court he would not defend any of the allegations made by Mr Jopling and would not seek payment of any unpaid fees in the Banksia case. He said he “accepted” he should be taken off the roll of legal practitioners. Mr Symons did the same. AFPL withdrew its claim for $7 million in commission.
Mr Zita is still supporting AFPL’s claims for some of his fees. There has been no suggestion the solicitor doctored any of his bills or knew of the other lawyers’ conduct.
Mr Jopling said Adam Elliott, a lawyer who worked side by side with his father, was a contact point for Mr Zita and had drawn up a spreadsheet for costs in the Banksia case.
Justice Dixon rejected an application by Mr Elliott that he recuse himself on the grounds of apprehended bias and published his reasons on Monday.
The judge also explained why he rejected an application by Mr Elliott that the proceedings against him be stayed for 21 days. He noted that Mr Elliott had complained he faced costs “likely to be several hundreds of thousands of dollars”.
On Tuesday, Justice Dixon made the discovery order and set aside four days from October 19 for the contradictor and Banksia’s receivers to ask questions of Mr Elliott and Mr Trimbos.
Closing submissions are set down for three days from November 25.