Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : LASHANSKY -v- THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2012] WASC 16

Practice and procedure - Appeal against summary judgment for defendant - Summary judgment application out of time - Consideration on leave to bring application out of time - Whether appellant's claim statute-barred - Whether amendment to pleading properly refused - Bias

Limitation Act 2005 (WA)

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 7; (1981) 148 CLR 170

Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] VicRp 98; [1991] 2 VR 636

Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390

Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342

Commonwealth of Australia v Cornwell [2007] HCA 16; (2007) 229 CLR 519

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Energex Ltd v Alstrom Australia Ltd [2005] FCAFC 215; (2005) 225 ALR 504

House v The King [1936] HCA 40; (1936) 55 CLR 499

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Lashansky v Legal Practice Board [2011] WASCA 42

Lashansky v Legal Practice Board of Western Australia [2012] WASC 16

Lashansky v Legal Practice Board of Western Australia [2012] WASCA 77

Metacel Pty Ltd v Ralph Symonds Ltd [1969] 2 NSWR 201

Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427

Munchies Management Pty Ltd v Belperio [1988] FCA 413; (1988) 58 FCR 274

Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204

R v Bow Street Metropolitan Stipendiary Magistrate& Ors; Ex parte Pinochet Ugarte (No 2) [1999] UKHL 1; [2000] 1 AC 119

Re the Will of Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318

Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158

Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

1 PULLIN JA: The appellant asked that I disqualify myself from sitting on the appeal. I refused to disqualify myself with reasons to follow. These are the reasons.

2 It was not clear from his submissions whether the appellant was alleging actual bias or that there was a reasonable apprehension of bias. If he was asserting actual bias in the form of prejudgment, such an allegation has to be judged by the state of mind of the judge in question, and that has to be done, for the most part, on the basis of what the judge has said or done: Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33] (Gummow ACJ, Hayne, Crennan & Bell JJ).

3 As to an allegation that a reasonable apprehension of bias might exist, there are a variety of ways that the impartiality of a court may be compromised. They include having an interest in the proceedings, whether pecuniary or otherwise: see Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 74.

4 The test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11].

5 If an allegation of apprehended bias is made, it is essential that there be an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to the case: Michael Wilson [67]. The applicant must therefore identify the relevant facts and circumstances relied on.

6 This appeal concerns a question about whether the acting master erred in deciding that Mr Lashansky's alleged causes of action formulated against the respondent, namely, the Legal Practice Board of Western Australia (the Board), were statute barred or not. The Board was a statutory body created pursuant to s 4 in pt 1 of the Legal Practitioners Act 1893 (WA). It had various functions, including the control of the admission of legal practitioners (see pt III of the Legal Practitioners Act) and the power to appoint a practitioner to inquire into and report on the practice of another practitioner (see s 58G). The Board was authorised by s 58H, upon receipt of a report under s 58G and where the circumstances so require, to apply to a judge for an order under s 58I. The powers of the judge on such an application included the power to appoint a supervising solicitor.

7 The causes of action asserted by the appellant were for damages for deceit, conspiracy and conversion. The cause of action for damages for deceit against the Board was based on what was alleged to have been said by Mr Peter Jordan in a telephone conversation with the appellant in 1999. The statement of claim alleged that Mr Jordan was an employee of the Board. The conspiracy was alleged to be between Mr Jordan, the second defendant, who the appellant also pleaded was an employee of the Board, and the third defendant, who was a client of the appellant and who lodged a formal complaint against the appellant with the Board. The cause of action in conversion was based on alleged conduct by Mr Jordan and the fourth defendant, who the appellant pleaded was appointed as the supervising solicitor of the appellant's practice. The acting master proceeded by accepting what was asserted by the appellant about the existence of the causes of action and when they accrued. The acting master held that the causes of action were all statute barred. The only questions to be determined in this appeal were:

(a) whether the acting master erred in refusing to adjourn the respondent's application for summary disposal of the actions;

(c) whether the acting master erred by misapplying the decision in Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514; and

(d) whether the acting master erred by refusing leave to amend the statement of claim.

8 All of those questions involved questions of law. They did not involve any consideration of the evidential foundation for any of the asserted causes of action.

9 The appellant's submissions ranged far and wide over matters not at all related to his application, but at least the following could be understood. The appellant asserted that before I was appointed to the bench on 10 September 2001, I was the chairman of the Legal Practitioners Complaints Committee (Complaints Committee). The Complaints Committee was an independent body set up under the Legal Practitioners Act. It was established by s 25(1).

10 The fact that I was the chairman of the Complaints Committee at the time of the accrual of the alleged causes of action against the Board cannot form any basis for an allegation that I had any interest in the outcome of the proceedings or the appeal.

11 That is enough to dispose of that aspect of the appellant's application, but I should briefly mention that the appellant placed reliance on 'Pinochet's case', which was a reference to R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [1999] UKHL 1; [2000] 1 AC 119. In that case, an earlier decision of the House of Lords was set aside because of the involvement of Lord Hoffman, who was at the time of the appeal a director and chairperson of a company closely associated with Amnesty International which had been granted leave to intervene in the proceedings before the court. Those proceedings concerned an application by Pinochet to quash a warrant issued by Spain for his arrest to enable him to be extradited to Spain to face trial on alleged crimes against humanity. The company of which Lord Hoffman was a director and chairperson (Amnesty International Charity Ltd) was involved in the production of reports for Amnesty International urging the punishment of those guilty in Chile for past breaches of human rights (131). Pinochet did not allege that Lord Hoffman was in fact biased. The contention was that there was a real danger or reasonable apprehension or suspicion that Lord Hoffman might have been biased; that is to say, it was alleged that there was an appearance of bias, not actual bias (132) (Lord Browne-Wilkinson). It was held that Lord Hoffman had an interest in the outcome as a result, and that he was then automatically disqualified without any investigation into whether there was a likelihood or suspicion of bias (133) (Lord Browne-Wilkinson), (139) (Lord Goff), (146) (Lord Hutton). Based on this decision, the appellant asserted that I was automatically disqualified.

12 The appellant did not notice that Pinochet does not state the law in Australia. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow & Hayne JJ observed that in Australia the common law has developed along lines somewhat different from the development in England. The plurality said:

In this country, an issue such as that which arose in Pinochet [No 2] would be resolved by asking whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide [33].

13 That test is to be applied to all problems of apprehended bias, whether arising from interest, conduct, association, extraneous information or some other circumstance [33]. Thus, a judge disqualified because of a reasonable apprehension of bias is not ever disqualified 'automatically', but rather because a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case.

14 Mr Lashansky did not assert that I was, in any respect, a party to the conspiracy or involved in any way in the telephone conversation Mr Jordan had with the appellant, or had anything to do with Mr Jordan's and the fourth defendant's alleged seizure of property. I observe again that the action is against the Board and not against the Complaints Committee.

15 No reasonably informed lay observer would conclude that I had an interest in the outcome of the appeal based on the fact I happened to be the chairman of the Complaints Committee up until September 2001, or that I would not bring an impartial and unprejudiced mind to the resolution of the questions which arise in this appeal.

16 The other fact relied upon by Mr Lashansky as giving rise to an apprehension of bias was something said by me in reasons for decision in Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158 [17]. It was very difficult to understand what the appellant's point was in referring to this case. I need do no more than repeat what I said in Lashansky v Legal Practice Board [2011] WASCA 42 when, in that case, the appellant also applied that I recuse myself and relied on this same paragraph. I said:

The first [fact relied on] was a statement I made during the course of my reasons for decision in Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158 [17]. That was not an appeal in which the appellant was a party but he had at some time, been on the record for the plaintiff. The appellant did not appear as counsel on the hearing of that appeal. In my reasons I said:

When the case was conducted at trial before Wheeler J, the appellants were represented by solicitors and experienced senior counsel. When the appeal was instituted on 17 April 2000, the appellants were represented by a solicitor, Mr Robert Lashansky, and he was involved in the preparation of the appeal book index. The appeal books prepared in accordance with that index consisted of 17 volumes. On 27 November 2000, Mr Lashansky was suspended from practice by the Legal Practice Board. Even though Mr Lashansky could then no longer act, he remained on the court record. As a result, the respondent filed a motion for directions, which came on for hearing before Murray J on 24 May 2003. Shortly before that, on 8 May 2003, a document entitled 'Appellants' Outline of Submissions', signed by Mr P Ridout and Mr C Ridout, was sent to the Court. The submissions bore little or no relationship to the grounds of appeal, cross-appeal, or notice of contention [17].

The appellant asserted that after he had been suspended from practice he did not remain on the record and that this error meant that I should disqualify myself in this hearing.

...

I have not checked the Ridout file to ascertain whether the appellant did or did not remain on the record because even if the fact was misstated, no reasonable observer could conclude that there was any apprehension of bias because of what I said in the Ridout case. What was said was said in the course of explaining the procedural background leading to the hearing of the case and which was not related to the substantive issues in the case [3], [6].

17 No reasonable lay observer could conclude that there was any reasonable apprehension of bias arising out of the entirely unrelated matter of Ridout. Whether or not Mr Lashansky remained on the court record in Ridout after he was suspended from practice is entirely irrelevant.

18 Insofar as actual bias was asserted (and it was not clear that it was), the appellant did not point to any statements or conduct on my part indicating that I had prejudged the legal issues which arise in this case. To make the position clear, I should clearly state that when the matter came on for hearing, I had an open mind about the issues raised by the appellant's grounds of appeal.

19 Finally, it is necessary to state that during the course of the appellant's application that I disqualify myself, he applied to call Mr Peter Ridout to give evidence. He wanted him to give evidence about some event which had occurred during the conduct of the Ridout case. It was clear that no relevant evidence could have been given which was relevant to the application that I recuse myself.

20 For those reasons, the application that I disqualify myself and the application to lead evidence were dismissed.

21 I have read the reasons of Newnes JA concerning the appeal. I agree with them and the order proposed.

22 NEWNES JA: This is an appeal against a decision of Acting Master Chapman, who ordered that summary judgment be entered for the respondent against the appellant.

23 The question whether the appellant requires leave to appeal and, if so, whether it should be granted has been referred to the hearing of the appeal.

24 The appellant was formerly a legal practitioner. He was suspended from practice on 27 November 2000 and his name was struck off the roll of legal practitioners on 5 September 2007.

25 The appeal arises out of proceedings brought by the appellant against the respondent in connection with his former legal practice. The writ was issued on 19 May 2010 but was not served until some 11 months later, on 21 April 2011.

26 A statement of claim was filed on 15 June 2011. In it, the appellant alleged, in substance, that:

1. on 16 December 1999, in a telephone conversation between the appellant and an officer of the respondent, Mr Jordan, false representations were made by Mr Jordan which caused the appellant to distribute to clients for whom he had acted in Federal Court proceedings an amount of $241,000 over which he held a lien for outstanding legal fees;
2. the telephone call was made by Mr Jordan as part of a conspiracy between him and other officers of the respondent; and
3. between 13 December 2000 and 28 November 2002, the supervising solicitor who had been appointed to the appellant's former legal practice and an employee of the respondent had, on behalf of the respondent, unlawfully removed property belonging to the appellant from the appellant's premises.

27 The appellant claimed damages, a declaration that the respondent had acted improperly and unconscionably, an account in the sum of $500,000 for legal fees owing to the appellant as at the date of his suspension from practice, and certain mandatory injunctions.

28 On 9 August 2011, the respondent applied for summary judgment pursuant to O 16 of the Rules of the Supreme Court 1971 (WA). Any such application requires leave if made more than 21 days after the defendant entered an appearance: O 16 r 1(1). As the respondent had entered an appearance on 29 April 2011, the application was out of time. The respondent accordingly sought leave to make the application.

29 The application was listed for hearing on 20 October 2011. On 18 October 2011, the appellant appeared in person to apply for an adjournment on the ground that he was not ready to argue it. He said, first, that he had advised the court, by letter from his South African solicitor dated 8 September 2011, that he was unavailable until 14 November 2011, as he was in South Africa following the death of his father on 10 July 2011; secondly, that some affidavits of the respondent had not been served on him and; thirdly, that the computer on which he had prepared the documents in opposition to the application was 'absolutely dead'.

30 Counsel for the respondent told the court that the affidavits referred to by the appellant were affidavits of service and were not relevant to the summary judgment application. In relation to the appellant's assertion that he was not ready to argue the summary judgment application, counsel pointed out that the appellant had previously filed an affidavit and written submissions in opposition to it.

31 The acting master refused the adjournment. In short oral reasons, he noted that the hearing date of the summary judgment application had been fixed on 6 September 2011. No reason had been given by the appellant for his unavailability until 14 November 2011 beyond the fact that at the time the letter of 8 September 2011 was written he was still in South Africa following the death of his father. He noted that the only affidavit on which the respondent said it would rely at the hearing was one the appellant did not dispute had been served on him. The acting master concluded that no grounds had been established for an adjournment.

32 On 19 January 2012, the acting master granted the respondent leave to apply for summary judgment out of time and he entered judgment for the respondent: Lashansky v Legal Practice Board of Western Australia [2012] WASC 16.

33 The acting master found that the delay in making the application for summary judgment was not significant, it had been adequately explained in an affidavit sworn by the respondent's solicitor, and no significant prejudice to the appellant had been established. He therefore granted leave for the application to be made out of time.

34 The acting master identified three causes of action pleaded by the appellant in the action. They were deceit, conspiracy with intent to injure by unlawful means, and conversion. The claims of deceit and conspiracy were based on the alleged telephone conversation between the appellant and Mr Jordan on 16 December 1999. The time at which the funds were allegedly disbursed by the appellant was not pleaded but the acting master inferred that it was on or about 16 December 1999. The claim in conversion was based on the alleged removal of the appellant's property from his premises between 13 December 2000 and 28 November 2002. I note in passing that on the appeal the appellant did not take issue with that analysis of the statement of claim.

35 The acting master found, and ultimately it appears to have been common ground between the parties, that the Limitation Act 1935 (WA) (the Act), rather than the Limitation Act 2005 (WA), applied. The acting master rejected the appellant's contention that under the Act time did not begin to run until 20 May 2004. That contention was based on the appellant's assertion that he first became aware of the claims as a result of an inspection of discovered documents, the relevant matters, he claimed, having been concealed by the respondent until that time. The acting master found there was no basis either in the Act or under the general law for such an argument. Section 27 of the Act, dealing with concealed fraud, applied only to claims in equity to recover land or rent and the equitable doctrine of concealed fraud did not apply, the appellant's claims being claims at law not in equity.

36 In relation to the claim in conversion, the appellant applied in the course of the hearing to amend his claim to allege that the conversion was of the proceeds of the lien, not documents which had been removed from his premises. The acting master refused the application. He found there was nothing before him which might arguably support such a claim. He pointed out that in his oral submissions the appellant had said he did not know whether any funds had been converted or when that might have occurred. The acting master said that, in any event, he would order any such amendment to take effect as at the date the amendment was allowed, with the result that any limitation argument available to the respondent would be preserved.

37 The acting master found that all of the appellant's claims were statute-barred. The respondent therefore had a good defence and there was no serious question to be tried.

38 The grounds of appeal do not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA), which, by r 32(4)(b), are required to be stated succinctly. The appellant's grounds are lengthy, repetitive and confusing. They are not easy to understand. It appears, however, that the appellant's contentions on the appeal are, in substance, that the acting master erred in:

1. failing to grant the appellant's application for an adjournment of the summary judgment application;
2. granting the respondent leave to bring the summary judgment application out of time;
3. refusing the appellant's application to amend his pleadings; and
4. finding that the respondent had a good limitation defence.

39 There is also an allegation of bias on the part of the acting master, which the appellant described as his 'overarching ground of appeal'.

Disposition of the appeal The adjournment application

40 It is very seldom indeed that an appellate court will interfere with a decision to grant or refuse an adjournment. It must be shown not only that the judge erred in the exercise of his or her discretion to refuse or grant the adjournment, but that the decision would cause a substantial injustice to one of the parties: Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390, 395 - 396.

41 There will be an error in the exercise of the discretion where 'the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, [or] if he does not take into account some material consideration', and where on the facts the decision is unreasonable or plainly unjust an appellate court may infer that in some way there has been a failure properly to exercise the discretion: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

42 No error has been identified in this case. Notwithstanding the letter of 8 September 2011 advising of the appellant's unavailability until 14 November 2011, the inescapable fact was that by 18 October 2011 the appellant had returned to the jurisdiction. He did not suggest to the acting master that some other commitment precluded his attendance at the hearing on 20 October 2011 and by all appearances the application for summary judgment was ready for hearing, the appellant having previously filed an affidavit and written submissions in opposition.

43 While the appellant contended on the appeal that he had been denied the opportunity to subpoena and cross-examine witnesses, that was not a matter he put to the acting master, and he has still given no indication what oral evidence he would have sought to adduce or how it was relevant to the resolution of the respondent's application. Moreover, given the nature of the issues on the summary judgment application, there is no reason to believe that an application to adduce oral evidence, had it been made, would have been acceded to and every reason to believe the contrary. Notwithstanding O 16 r 2(2), ordinarily good reason must be shown before viva voce evidence or cross-examination of a deponent on their affidavit will be allowed. That is because summary judgment is intended to be a procedure to enable a prompt and relatively inexpensive judgment to be obtained where the defendant's entitlement to judgment is plain; it is not intended to be a rehearsal for the trial of the action. There is no substance in the appellant's contention.

44 I should add that if the appellant was in fact under some undisclosed difficulty in preparing for the hearing on 20 October 2011, that was cured some three weeks later when, on 15 November 2011, he filed additional materials and submissions which the acting master accepted and took into account.

The application to apply for summary judgment out of time

46 The decision of the acting master to allow the application for summary judgment to be brought out of time involved the exercise of discretion on a matter of practice and procedure. Particular caution is exercised by appellate courts on appeals against such decisions. In Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 7; (1981) 148 CLR 170, the plurality cited with approval the following passage from the judgment of Sir Frederick Jordan in Re the Will of Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318, 323:

... I am of opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges at first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

47 Order 6 r 1(1) provides (relevantly) that any defendant 'may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment'. As mentioned earlier, the defendant filed an appearance on 29 April 2011. The application for summary judgment was not brought until 9 August 2011, some 40 days later.

48 It is clearly desirable that any application for summary judgment be made promptly so as to avoid unnecessary expense being incurred. However, the requirements for leave to make an application for summary judgment out of time will not ordinarily be demanding if on its face the application has some merit. It is not easy to imagine a situation in which a case which is apparently devoid of merit should be allowed to proceed to trial simply because the defendant did not bring the application for summary judgment within the 21 days specified in O 16 r 1(1). Questions of costs, of course, may arise where an application is made very late, but that is another matter.

49 The acting master had before him an affidavit by a solicitor for the respondent explaining the delay. It appears that no substantive steps had been taken in the action following the filing of the respondent's appearance and there was nothing to suggest that the appellant would be prejudiced if the time were extended. In the circumstances, the acting master did not err in granting the extension of time.

The refusal to allow the appellant to amend his pleading

51 As mentioned above, in the course of argument on the summary judgment application, the appellant sought to amend the statement of claim to plead the conversion by the respondent of the fees which had been the subject of the appellant's alleged lien, rather than the documents allegedly removed from his premises. The acting master refused to allow such an amendment.

52 On the appeal, the appellant simply contended, in effect, that he had an indefeasible right to amend his pleading at any time. That is a fundamental error. He had no such right. The appellant required leave to amend his statement of claim. The grant of leave involves the exercise of a discretion. It is therefore necessary for the appellant to show that in refusing to allow the proposed amendment the acting master erred in the exercise of his discretion.

53 There was, in my view, no such error. The acting master refused to allow the amendment because, among other things, there was nothing before him which was capable of supporting a claim of conversion of the proceeds of the lien. The appellant's affidavit in opposition to the summary judgment did not depose to facts which might support such a claim and, as the acting master noted [46], the appellant had said in his oral submissions that he did not know what money had been received by or on behalf of the respondent, when any money had been received, or what had happened to any money that had been received. Despite the fact that the appellant filed further material on 15 November 2011, after the hearing, nothing further relating to the proposed amendment was put before the acting master and no proposed amended pleading was ever proffered.

54 The proposed amendment was not simply a variation or nuance of the pleaded case. It was a separate and distinct case, advanced at the eleventh hour some years after the relevant events and some 17 months after the writ was issued, without any factual basis for it being evident. It was rightly not entertained by the acting master.

56 On the appeal, the appellant simply submitted that the court should not decide limitation issues in interlocutory proceedings except in the clearest of cases, referring to Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533. It is implicit in his submission that he contends this was not such a case. I do not accept that submission.

57 The relevant limitation period under the Limitation Act in respect of each of the pleaded causes of action was six years from the date upon which the cause of action arose: s 38(1). As the torts of deceit (see, for example, Munchies Management Pty Ltd v Belperio [1988] FCA 413; (1988) 58 FCR 274, 281) and conspiracy (see, for example, Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] VicRp 98; [1991] 2 VR 636, 645) are only actionable upon proof of damage, the cause of action is not complete until damage is first suffered by the plaintiff: see Halsbury's Laws of Australia [255 - 170]. The loss alleged by the appellant as a result of the alleged deceit and conspiracy was the loss of the lien which he held over the money in his trust account, the lien being lost when the appellant paid the money to his clients. As mentioned above, the acting master inferred that the funds were paid on or about 16 December 1999. That inference is not challenged.

58 A cause of action in conversion is somewhat different. The essence of conversion is an intentional dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel: Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204, 229; Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342 [124]. A cause of action in conversion accrues once the person in possession of the goods engages in an act which is repugnant to the owner's right to possession: Bunnings Group Ltd v CHEP Australia Ltd [117] - [121]. On the appellant's case, that occurred when the documents were wrongly taken from his premises between 13 December 2000 and 28 November 2002.

59 As the writ was not issued until 19 May 2010, the acting master was correct in finding that each of the claims was clearly statute-barred. The six year limitation period in respect of each cause of action had long since passed.

60 The appellant contended before the acting master that the alleged wrongful conduct had been concealed by the respondent and accordingly time did not run in respect of the claims in deceit and conspiracy until the conduct was discovered by the appellant, that is, until 20 May 2004. That contention was not raised on the appeal. I would simply note for completeness that there is no substance in it. The doctrine of concealed fraud is a special doctrine of courts of equity and is not applicable to pure common law claims, as these were: Metacel Pty Ltd v Ralph Symonds Ltd [1969] 2 NSWR 201, 203; Energex Ltd v Alstrom Australia Ltd [2005] FCAFC 215; (2005) 225 ALR 504 [38]; Commonwealth of Australia v Cornwell [2007] HCA 16; (2007) 229 CLR 519 [9]. Nor, as the acting master found, does s 27 of the Limitation Act have any application. That provision provides, in effect, that the doctrine of concealed fraud applies in respect of a claim in equity to recover any land or rent. There was no such claim in this case.

61 As I understood the appellant's submissions, he asserted both actual and apprehended bias on the part of the acting master. It is not easy to discern the basis for either. In his written submissions, the appellant appeared to contend, in substance, that the bias of the acting master was evident from his refusal to allow the appellant time to subpoena witnesses so as to enable the 'true facts' of the matter to be revealed, and from the findings of the acting master on the application for summary judgment, being findings the appellant considered so misconceived as to permit of no other explanation. More fundamentally, the appellant contended that the acting master was part of what the appellant described as 'the climate of bias' against him that exists in the Supreme Court.

62 There is no substance in this ground. As I have mentioned, the issue of subpoenaing witnesses to give oral evidence at the hearing of the summary judgment application was not raised before the master. I would add that it appears from his written submissions on the appeal that what the appellant had in mind was oral evidence to traverse other aspects of his conflict with the respondent since about 2000, with a view to establishing that he has been badly wronged by the respondent. That reflects a serious misunderstanding as to what was relevant on the summary judgment application.

63 The allegation of a climate of prejudice in the court has been aired previously by the appellant. Thus, in Lashansky v Legal Practice Board of Western Australia [2012] WASCA 77, the appellant had brought an application seeking orders that the Court of Appeal Registrar have no further involvement in that appeal and that it be determined by judges other than current or past members of the Supreme Court of Western Australia. The appellant relied upon actual or apprehended bias on the part of the existing and past members of the court and the Court of Appeal Registrar. The court said:

The appellant's affidavit provides no basis for a finding of actual or apprehended bias. The affidavit is replete with general assertions of bias and conspiracy but is devoid of any evidence that might be capable of making out those allegations. As we have said, the appellant's contention appears to be that it can be inferred from his lack of success in other proceedings before the court that the court has set out to assist the respondent by denying the appellant a fair hearing. The appellant simply ignores entirely the obvious explanation that his lack of success is due to a lack of merit in those earlier proceedings.

64 It is evident that the appellant remains unable to accept that his lack of success in earlier proceedings is attributable to the lack of merit in his claims, preferring instead to attribute it to an inherent bias against him in the court.

65 In the present case, again nothing has been advanced which might be capable of establishing actual bias or a reasonable apprehension of bias on the part of the acting master.

67 In the course of argument on the appeal, the appellant made two oral applications, both of which were refused. We said we would give our reasons later. These are my reasons:

1. Application to call oral evidence on the appeal

68 The appellant sought leave to call one Peter Ridout to give oral evidence on the appeal. The evidence was said to be relevant to a problem the appellant had had relating to the disappearance of some documents in 2000. It was plainly irrelevant to the issues on the appeal and was simply another manifestation of the appellant's determination to canvass his long-standing conflicts with the respondent. It was for that reason I joined in the order refusing leave.

69 The appellant sought leave to tender a copy of the front page of The Australian newspaper of 11 April 2013 containing an article entitled 'Out of Africa comes the healthy way of farming', apparently concerning the development of a particular method of farming. The document was self-evidently irrelevant to the issues on the appeal. It was for that reason I joined in the order refusing leave.

70 Finally, at the outset of the hearing of the appeal the appellant made an application that I disqualify myself from hearing the appeal on the ground, as I understood it, of apprehended bias. He made no submissions in support of that application and the grounds of it were not apparent. I could only assume that he contended such an apprehension arose from the 'climate of bias' referred to above and/or because on previous occasions I have been a member of this court when it has dismissed an application brought by the appellant. Neither, however, provides any arguable basis for a reasonable apprehension of bias and I am not aware of anything else

which might provide a foundation for the application. I accordingly refused to disqualify myself.

71 The appeal is entirely without merit. It is unnecessary to consider whether leave to appeal is necessary. If leave is necessary, I would refuse leave. In any event, I would dismiss the appeal.

72 MURPHY JA: I agree with Newnes JA on the substantive disposition of the appeal.

73 I too was asked to disqualify myself at the commencement of the hearing of the appeal by Mr Lashansky. The basis upon which I was asked to disqualify myself was that I had appeared as counsel in the case of Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158, which is also referred to by Pullin JA in his reasons.

74 Pullin JA has set out, relevantly for present purposes, the legal principles and it is unnecessary to repeat them here.

75 The fact that I had appeared as counsel in a case some 10 years ago involving different parties, different facts and different issues, but which for a period of time Mr Lashansky was on the record as solicitor for the unsuccessful appellants in that matter, could not lead to the appearance of bias in the disposition of this appeal on the application of the correct principles. Accordingly, I dismissed Mr Lashansky's application to disqualify myself from hearing this appeal.