Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17

COURTS AND JUDGES - Apprehended bias - Application for summary judgment - Where preliminary applications made before and during hearing of summary judgment application - Whether judge acted with reasonable apprehension of bias in dealing with application to restrain legal practitioners - Where judge accepted affidavit evidence without cross-examination - Where applicant alleges that judge made pejorative comments - Whether judge decided summary judgment application and preliminary applications other than on merits - Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 applied.

COURTS AND JUDGES - Natural justice - Where applicant filed summons to reopen summary judgment application or for dismissal of summary judgment application as abuse of process - Where judge dismissed summons without adjudication - Where judge refused application to cross-examine legal practitioners of respondent at hearing of summary judgment application - Whether denial of natural justice.

APPEALS - Findings of fact - Whether judge made finding of fact with respect to retention of solicitors' file - Whether judge erred in finding that party gave no notice to opponent of intention to make preliminary applications at hearing of summary judgment application - Whether error inconsequential.

1 The applicant ('Bodycorp') had entered into franchise agreements with approximately 16 franchisee panel beater shops. In 1997, it entered into an agreement with an insurer under which its franchisees would be granted 'Recommended Repairer' status. Bodycorp consulted solicitors with a view to the preparation of appropriate agreements, including the drafting of a restraint of trade clause such that, if any of its franchisees terminated a franchise agreement, the insurer would not trade with that franchisee for six months. Later, a number of franchisees terminated their franchise agreements with Bodycorp. However, the insurer did not revoke the 'Recommended Repairer' status of those franchisees. Bodycorp brought a proceeding against the insurer, alleging that it had contravened the restraint of trade clause. Those proceedings were unsuccessful at trial and on appeal: the Court held that the restraint clause was void and unenforceable.

2 Bodycorp brought a new proceeding in which it contended that the judgment in the first proceeding had been procured by fraud ('the fraud proceeding'). During the fraud proceeding, Bodycorp said that it had attempted to retain senior counsel. Bodycorp has contended that, during that attempt, confidential information about the fraud proceeding was conveyed to him. The fraud proceeding was later dismissed.

3 Thereafter, Bodycorp brought proceedings against its former solicitors, alleging that they were negligent in the drafting and preparation of the agreements with the franchisees and the insurer. The defence that was filed on behalf of the solicitors was signed by the senior counsel that Bodycorp said it had tried to retain in the fraud proceeding. The solicitors applied for summary judgment on various bases, including that the claim against them was statute barred.

4 When the application for summary judgment came on for hearing, Bodycorp applied for an order to restrain the legal practitioners of the solicitors on the basis that information that was confidential to Bodycorp had been supplied to senior counsel and that the Court should conclude that he had shared that information with his instructing solicitors and junior counsel. Senior counsel withdrew, and the summary judgment application was conducted on behalf of the solicitors by junior counsel. During the hearing, Bodycorp made a number of other preliminary applications, including applications to cross-examine various witnesses.

5 The primary judge refused each application and reserved judgment on the summary judgment application. Before judgment was delivered, Bodycorp brought an application to reopen the summary judgment application on various bases, including that, despite his withdrawal, senior counsel had continued to assist the solicitors during the hearing of the summary judgment application. In the end, the primary judge delivered judgment on the summary judgment application, holding that the claim against the solicitors was statute barred. He also dismissed the application to reopen, without adjudication.

6 Bodycorp has now applied for leave to appeal the decision of the primary judge. In doing so, it has contended that the primary judge acted with a reasonable apprehension of bias and that he denied Bodycorp natural justice during the hearing of the summary judgment application and in his dismissal of the application to reopen without adjudication. It has also contended that the summary judgment application should have been dismissed.

7 Bodycorp conducted a business as a franchisor of panel beater shops for motor vehicles. In 1995, it approached a motor vehicle insurer, Australian Associated Motor Insurer ('AAMI'), with a proposal to establish a franchise network under which Bodycorp would forge a strategic alliance with AAMI. By then, AAMI had established a panel of motor vehicle panel beaters which were known as 'Recommended Repairers'. At the time, Bodycorp had 16 franchisee panel beater shops. As part of the proposed venture, Bodycorp sought to achieve 'Recommended Repairer' status for all of its franchisees.

8 On 29 June 1998, Bodycorp and AAMI entered into an agreement ('the AAMI Agreement'). Relevantly, cl 1.3 of the AAMI Agreement contained a restraint of trade clause in the following terms:

AAMI agrees that if any of the AAMI Recommended Repairers listed in schedule 1 cease to be a Bodycorp franchisee ('the former Bodycorp franchisee') at any time within the two year period following the execution of this agreement then:

(a) AAMI will promptly give written notice terminating the AAMI Recommended Repairer Agreement with the former Bodycorp franchisee;

(b) AAMI will take reasonable steps to ensure that the AAMI Recommended Repairer signs are not displayed by the former Bodycorp franchisee within 21 days of the giving of notice under clause 1.3(a);

(c) AAMI will in the ordinary course not request the former Bodycorp franchisee to prepare a quote for the repair of a damaged car for a period six months from the giving of notice under clause 1.3(a);

(d) AAMI will not re-appoint a former Bodycorp franchisee as an AAMI Recommended Repairer for a period six months from the giving of notice under clause 1.3(a); and

(e) AAMI may in its absolute discretion re-appoint the former Bodycorp franchisee as an AAMI Recommended Repairer six months after the giving of notice under clause 1.3(a).

For convenience, we will refer to cl 1.3 as 'the restraint clause'.

9 In the second half of 1998, a number of Bodycorp franchisees terminated their franchise agreements with Bodycorp. However, AAMI did not revoke the 'Recommended Repairer' status of those former franchisees in accordance with the restraint clause.

10 On 10 December 2002, Bodycorp brought a proceeding in the Federal Court against AAMI seeking, among other relief, damages for breach of the restraint clause.

11 On 21 October 2003, AAMI filed a defence. It alleged that the restraint clause was void and unenforceable as an unreasonable restraint of trade against AAMI.

12 On 14 October 2005, the proceeding was transferred to the Supreme Court of Victoria. It ultimately proceeded to trial before Elliott J in May 2013.

13 On 4 September 2013, Elliott J dismissed Bodycorp's claim.[1] In summary, he held that AAMI had breached the restraint clause but that the clause was unenforceable as an unreasonable restraint of trade. On 28 April 2015, the Court of Appeal dismissed an appeal.[2]

14 On 20 May 2016, Bodycorp brought a new proceeding in which it sought to set aside the judgment of Elliott J on the ground of fraud. Earlier in our reasons, we referred to this proceeding as 'the fraud proceeding'.[3]

15 Originally, Bodycorp was represented by P Gerard Nash QC. Mr Nash later withdrew from the fraud proceeding. Antonio Murdaca, a director of Bodycorp, consulted Robert Richter QC. Mr Richter recommended Philip Crutchfield QC as a suitable barrister. In this proceeding, Mr Murdaca has said that, on 30 September 2016, he listened to a phone conversation between Mr Richter and Mr Crutchfield in which matters confidential to Bodycorp were discussed. These events are elaborated further below.

16 On 28 October 2016, Riordan J dismissed the fraud proceeding.[4] On 15 September 2017, the Court of Appeal dismissed an appeal.[5]

17 On 20 July 2016, Bodycorp brought the present proceeding against Holding Redlich contending that, in or about July 1997, Holding Redlich had given negligent advice in relation to the drafting and preparation of the restraint of trade clause, among other matters.

18 Holding Redlich retained Mr Crutchfield. On 17 October 2016, Mr Crutchfield signed the defence that was then delivered on behalf of Holding Redlich.

19 On 5 December 2016, Holding Redlich brought an application for summary judgment in which it contended, among other things, that the claim against it was statute barred. That application was returnable before the primary judge on 10 April 2017.

20 On 5 December 2016, Holding Redlich filed an affidavit of Mr Obst in support of its application for summary judgment.

21 On 2 March 2017, Mr Murdaca swore an affidavit in opposition to the application for summary judgment.

22 On 29 March 2017, Holding Redlich filed a further affidavit of Mr Obst ('the second Obst affidavit'). In that affidavit, Mr Obst deposed to instructions that he had received from the Melbourne managing partner of Holding Redlich, Howard Rapke, as to the fate of Holding Redlich's file. In particular, he deposed, on information provided to him by Mr Rapke, that the file had been destroyed on 30 June 2010 in accordance with Holding Redlich's general document destruction practices.

23 On 29 March 2017, Templeton Fox Rothschild, the solicitors for Bodycorp, wrote to Obst Legal referring to an earlier letter of Holding Redlich, which is also dated 29 March 2017, and which enclosed a copy of the second Obst affidavit. Relevantly, the letter to Obst Legal stated:

We will object to your client relying upon the affidavit ... on the following basis:

1. The affidavit consists of inadmissible hearsay evidence (see 22.18 (3) of the Supreme Court (General Civil Procedure) Rules); and;
2. There is no Court order permitting your client to rely upon an affidavit in reply (Rule 22.20 (1) of the Supreme Court (General Civil Procedure) Rules).

Further, we have been instructed to object to your client relying upon the affidavit that it filed with the summons for summary judgment for the reasons articulated in paragraph a herein.

With reference to Mr. Rapke, we have been instructed to apply for leave to cross-examine Mr. Rapke pursuant to rule 22.21 of the Supreme Court (General Civil Procedure) Rules, if the Court permits your client to rely upon its affidavits.

24 This letter was not included in the material filed in support of the summary judgment application.

A. The first three grounds of appeal: the procedural issues

The application to restrain the legal practitioners of Holding Redlich

25 On Friday, 7 April 2017, Bodycorp issued a summons seeking to restrain Holding Redlich's legal practitioners (including Mr Crutchfield) from continuing to act on behalf of Holding Redlich. The summons sought the following orders:

1. That the Defendant's legal practitioners (including their solicitors and both counsel) be restrained from continuing to act on behalf of the Defendant (with consequential orders as to the sealing of their file and the court record).

26 Bodycorp's summons was returnable on 10 April 2017, the day on which Holding Redlich's summary judgment application was returnable.

27 In support of the application to restrain Holding Redlich's legal practitioners, Mr Murdaca swore an affidavit on 7 April 2017 in which he said that he had listened to the conversation between Mr Richter and Mr Crutchfield in relation to the fraud proceeding. In that affidavit, Mr Murdaca deposed that, in the fraud proceeding, his counsel had withdrawn and that it was necessary to obtain suitable representation. He deposed:

On 30 September 2016, I had a conference with Robert Richter Q.C. He explained that he was a criminal barrister and that he could not act on behalf of the Plaintiff, as it was not within his area of expertise. He recommended Mr. Crutchfield, very highly. He contacted Mr. Crutchfield's clerk. He left a message. Robert Richter Q.C. and Mr. Crutchfield was [sic] a phone conversation between them. Robert Richter Q.C. placed Mr. Crutchfield on speaker phone. He briefly explained the circumstances that occurred on that day. Robert Richter QC said that 'I have highly recommended you. Please accept this brief.' Mr. Crutchfield stated that 'I require information before I can commit to accepting the brief.' Robert Richter Q.C. explained the circumstances of the withdrawal of Mr. Nash Q.C., the advice that Mr. Nash Q.C. provided to the Plaintiff (that included his views on the merits of the case, and the detriments that would need to be confronted by the Plaintiff to defeat the application for summary judgment and the revised advice that Mr. Nash Q.C. provided in relation to the amended statement of claim that he settled and signed) and the dispute that arose between the Plaintiff and Mr. Nash Q.C. in running the matter. Mr. Crutchfield said 'I will look at the case. I will look up the judgments that have been made in relation to Bodycorp and if I am available I will accept the brief.' Robert Richter Q.C. said that 'He needs someone of your expertise to help him.'

Robert Richter Q.C. contacted Mr. Levine [counsel for Bodycorp], to enquire if he would be willing to act as a junior to Mr. Crutchfield. He said 'that would be fine.'

I instructed the Plaintiffs solicitor to deliver a brief to Mr. Crutchfield, but I was subsequently advised that he had accepted another brief and that he was not available to represent the Plaintiff.

On 6 April 2017, Mr. Levine informed me that Mr. Crutchfield had settled the outline of submissions in this matter for the other party.

I contacted Robert Richter Q.C. who stated that 'Get your solicitors to write a letter that he should not be acting in this matter. He will of course say that he was not properly briefed. But you need to put him on notice that he should not be acting.'

I have not disclosed the details of the conversation between Robert Richter Q.C. and Mr. Crutchfield as the information is legally professionally privileged, is confidential, and has the capacity to damage the Plaintiffs case in this proceeding and others.

28 On 10 April 2017, Mr Obst swore a further affidavit in opposition to the application to restrain Holding Redlich's legal practitioners ('the third Obst affidavit'). In paragraph 4 of that affidavit, Mr Obst deposed:

On 17 October 2016 I took part in a conference with Mr Crutchfield QC and Mr Edward Batrouney, who are the counsel retained by my firm for the purposes of this proceeding, when the discussion included the merits of the Defendant's defence and the merits of making the present application for summary judgment based on the expiry of relevant limitations period. At no time during that conference, nor by any other communication before or since has Mr Crutchfield communicated to me any matter which I would suspect was information confidential to the Plaintiff or any fact which may have become known to Mr Crutchfield through any means apart from communications from my office as part of instructions to him or by documents in the public domain such as the numerous court rulings and judgments in other proceedings involving the present Plaintiff.

29 Similarly, on 10 April 2017, Mr Crutchfield swore an affidavit in opposition to the application to restrain Holding Redlich's legal practitioners. In his affidavit, Mr Crutchfield denied that he had a conversation with Mr Richter 'wherein I was told or otherwise knew I was being given confidential information concerning a client of his. I believe I would remember that.' He said that it was his belief that he knew nothing of the 'Bodycorp matters' until he was briefed by Obst Legal. He said that he did not believe that he had any confidential information of Bodycorp in his possession or knowledge. He also deposed that he 'did not have a conversation with Mr Richter QC of the kind asserted by Mr Murdaca in relation to Gerry Nash QC'.

30 In support of its application to restrain Holding Redlich's legal practitioners, Bodycorp relied upon a written outline of submissions dated 9 April 2017.

31 The outline of submissions commenced with the following:

The Plaintiff objects to the affidavit material that is filed on behalf of the Defendant as it is based entirely on hearsay and it ought not be permitted (Rule 22.18 (3) of the Supreme Court Civil Proceeding Rules).

The Plaintiff is also seeking leave to cross examine the principal of the Defendant (Rule 22.21 of the Supreme Court Civil Proceeding Rules).

In a summary judgment application the court is required to accept that the Plaintiff will be able to prove the allegations in the statement of claim particularly when the Defendant has not filed any affidavit material that would place these matters in issue.

32 In its outline, Bodycorp referred to r 101 of the Legal Profession Uniform Conduct (Barristers) Rules 2015.[7] Bodycorp said that Mr Crutchfield was a party to a phone conversation with Mr Richter in which he discussed details of the fraud proceeding. It referred to the affidavit of Mr Murdaca and said that the receipt of confidential information by Mr Crutchfield 'may as a real possibility be material' to Bodycorp's case. Bodycorp said that Mr Crutchfield position was untenable and that he had 'relied upon the fraud proceeding' in preparing his outline of submissions in the summary judgment application. Bodycorp also said that Mr Batrouney's position was also untenable, 'as he is presumed to be privy to the barrister's knowledge'.

33 Bodycorp also referred to r 31 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, which concerns the inadvertent disclosure of 'material known or reasonably suspected to be confidential'. Bodycorp said that '[t]he solicitor is presumed to have been provided with the confidential information (which he has not disputed) that has been provided by the barrister and the Supreme Court has a duty to uphold the law that includes the Uniform Profession Rules by restraining them from further acting'. Bodycorp cited a number of authorities with respect to the restraint of legal practitioners.[8] It concluded:

The Junior Counsel and solicitor should also be restrained, as the submissions were based on the advice of the barrister, who was required to use all of his knowledge to the benefit of [Holding Redlich], and there is a real risk that the confidential information of [Bodycorp] has been provided to them. It would be unconscionable to allow the barrister to divulge the confidences to a junior barrister, and to a solicitor and expose [Bodycorp] to the risk of the misuse of that information.

34 In its outline of written submissions, Holding Redlich did not address the application to restrain its legal practitioners. Paragraphs 11 to 22 of its written outline involved a summary of the earlier decisions referred to above.

35 At the commencement of the hearing of the summary judgment application on 10 April 2017, Holding Redlich was represented by Mr Crutchfield and Mr Batrouney. They were instructed by Obst Legal.

36 The primary judge dealt first with Bodycorp's summons dated 7 April 2017. Mr Batrouney had the conduct of that application on behalf of Holding Redlich.

37 The transcript of that application indicates the following:

(ii) the conversation between Mr Richter and Mr Crutchfield, as deposed to in the Murdaca affidavit;

(i) why, given that Mr Crutchfield's name was on the Holding Redlich defence, the application was not brought sooner;

(ii) whether counsel for Bodycorp himself knew at a much earlier point in time that Mr Crutchfield had been retained by Holding Redlich;

(iii) whether the matter should be stood down so that Mr Richter could swear an affidavit;

(iv) whether the matter should be stood down to give Bodycorp the opportunity to respond to some of the questions raised by the primary judge; and

(v) when Bodycorp's solicitors and its counsel learnt of Mr Crutchfield's involvement.

38 Later in the morning, the matter was adjourned in order to provide counsel for Bodycorp an opportunity to obtain further instructions.

39 After lunch, Bodycorp filed two affidavits: one affirmed by Mr Richter and the other sworn by Niren Raj, Bodycorp's solicitor.

I have read the affidavit of Antonio Murdaca sworn on 7 April 2017. I can confirm that the contents of paragraphs 7, 8 and 11 are to the best of my recollection true and correct.

In or about July 2016, after the decision of His Honour Mr Justice Elliot [sic], I was instructed to engage Mr Gideon Boas and Mr Gerard Nash QC to draft the Statement of Claim filed in this honourable Court.

In the intervening period, I received various correspondence from Obst Legal and all the communication was forwarded to Mr Boas.

In the period July 2016 to the end of January 2017, Mr Boas was the Counsel that was briefed to appear in this matter.

At no time during this period was I or Mr Boas aware of the conversations referred to in the Affidavit of Antonio Murdacca [sic] sworn Friday 7 April 2017.

Mr Boas recused himself from acting in this matter on 15 February 2017, I forwarded to Mr Jeffrey Levine the documentation received from Obst Legal in the intervening period, being the Summons and the Affidavit of Howard Obst sworn 5 December 2016 filed by the Defendant. It did not contain the Defence of the Defendant.

In relation to that documentation there was a Directions Hearing on 17 February 2017, which was vacated by consent of the parties.

On or about 21 March 2017, I confirmed with Mr Jeffrey Levine that he was briefed to appear on the Application by the Defendant of today, 10 April 2017.

On Sunday 9 April 2017, Mr Jeffrey Levine advised that he had read the brief and received the documentation but had not received the Defence.

On Sunday 9 April 2017 at 2.28 pm, I forwarded to Mr Levine a copy of the Defence ...

42 The transcript of the afternoon's proceedings reveals that, at that stage, Mr Crutchfield withdrew from the application.[9]

43 However, counsel for Bodycorp maintained the application to restrain Holding Redlich's legal practitioners. That application was now directed solely at Mr Batrouney and Mr Obst.

44 It is necessary to follow closely what counsel for Bodycorp said at this point because much of what the primary judge said, about which Bodycorp now complains, appears to respond to what counsel had said. It will be recalled that:

(a) Mr Obst had sworn his third affidavit in which he deposed that he had conferred with Mr Crutchfield and Mr Batrouney on 17 October 2016 and '[a]t no time during that conference, nor by any other communication before or since has Mr Crutchfield communicated to me any matter which I would suspect was information confidential to the Plaintiff or any fact which may have become known to Mr Crutchfield through any means ';[10] and

(b) Mr Crutchfield had sworn an affidavit in which he deposed that he had not had a conversation with Mr Richter 'wherein I was told or otherwise knew I was being given confidential information concerning a client of his'. He also deposed that he 'did not have a conversation with Mr Richter QC of the kind asserted by Mr Murdaca in relation to Gerry Nash QC'. Finally, he deposed that he believed that he 'knew nothing of the Bodycorp matters until [he] was briefed by Obst Legal'.

45 Counsel for Bodycorp first referred to the Legal Profession Uniform Conduct (Barristers) Rules 2015 and said that the Court should not countenance any non-compliance with those rules. He added that '[t]he public policy and the need for disclosure between a client and a barrister or a solicitor who is to be retained should be protected. It shouldn't depend on whether or not the barrister decides to render a fee slip or states whether or not he was briefed.'[11] One of the bases that supported legal professional privilege, he said, is the need to protect the administration of justice. He also referred to the third Obst affidavit and said that that affidavit 'seems to be a total waiver of legal professional privilege in relation to his file'.

46 Counsel for Bodycorp said that, notwithstanding what Mr Obst had said in his third affidavit, Mr Obst was 'not in a position to know what those confidential communications were'.[12] Counsel said:

My submission is that we don't know what the content of the conversations were with senior counsel and Mr Obst. He hasn't deposed to that. We don't know what Mr Crutchfield did with the (indistinct). It's my submission that my client shouldn't be put at any risk by (indistinct) any adverse findings or any adverse discussions that occurred between the legal practitioners. It seems to be reasonable inference that in fact there was discussions regarding the fraud proceeding.

We simply don't know the content of those proceedings - of those discussions and in that circumstance, we submit that there is a risk of misuse of the confidential information. As I submitted to you, Your Honour, it's not a case where none of these matters were relevant and knowing what my client's - occurred to my client on the fraud proceeding and the evidence that he will be relying upon or the advice he received in respect of any fresh evidence, would be of assistance to them in this proceeding and it's my submission that my client shouldn't be put at a risk in relation to these proceedings.

47 Counsel for Bodycorp then sought leave to cross-examine Mr Crutchfield. Although Mr Crutchfield had withdrawn from the summary judgment application, counsel for Bodycorp said that he was seeking a broader restraint: 'we're submitting that you need to absolutely tell and restrain Mr Crutchfield, because if he's not restrained then he may simply continue to act after the time.' The primary judge said that he was 'only dealing with the application so far as today's hearing is concerned and [he was] not proceeding to deal with it beyond that'. He refused the application for leave to cross-examine Mr Crutchfield.

48 Counsel for Bodycorp pointed out that, unlike Mr Obst, Mr Batrouney had not sworn an affidavit. Accordingly, so he submitted, the Court did not know whether Mr Crutchfield may have imparted confidential information to him, but should presume that he had done so. Counsel said:

[I]t's my submission that given there is no evidence, that senior counsel would be expected to confer with junior counsel, that junior counsel's chosen not to swear an affidavit in the same terms of the solicitor, that Your Honour should presume that in fact there were confidential discussions made on that basis. Junior counsel should be restrained from acting actually. Actually Mr Obst as well.[13]

49 Counsel for Bodycorp then referred to paragraph 4 of the third Obst affidavit.[14] At first, counsel said that Mr Obst had deposed only to one conversation that he had had with Mr Crutchfield on 17 October 2016. The primary judge said that the substance of the third Obst affidavit had no such temporal limitation: Mr Obst had deposed that '[a]t no time during that conference, nor by any other communication before or since has Mr Crutchfield communicated to me any matter which I would suspect was information confidential to [Bodycorp]'. Counsel for Bodycorp said that the Court was relying upon what Mr Obst said would be his suspicion as to what information was confidential to Bodycorp. Counsel for Bodycorp submitted that 'you shouldn't accept his word for it'.

50 Counsel for Bodycorp sought leave to cross-examine Mr Obst about paragraph 4 of the third Obst affidavit as well as about his conversation with Mr Crutchfield on 17 October 2016. The primary judge refused the application for leave to cross-examine Mr Obst.

51 Counsel for Bodycorp concluded his submissions as follows:

And in relation to what's sworn it's far too wide to be of any use to - he doesn't depose either to these outlines or submissions. And they'll place on those that it's clear that in outline, the submissions are reliant upon Justice Riordan's decision. And that is one of the reasons why it's sought to restrain them on the basis that they're seeking to use that decision for their benefit in this application before Your Honour. So we submit on both cases that Your Honour should restrain the junior counsel and his solicitor.

52 The primary judge ruled against the application to restrain Holding Redlich's legal practitioners. He ruled that there was no basis for restraining Mr Batrouney and Mr Obst from continuing to act for Holding Redlich. He said that he would give reasons for his ruling later.

Substance of the submissions to the primary judge

53 It is necessary at this stage to identify some of the propositions which had been advanced by counsel for Bodycorp:

(a) the Court had no knowledge of the content of the communications between Mr Obst and Mr Crutchfield;

(b) however, it seemed to be 'a reasonable inference' that those discussions involved the disclosure by Mr Crutchfield of matters confidential to Bodycorp that he had learnt during his discussion with Mr Richter;

(d) because Mr Batrouney had not sworn an affidavit, the Court should presume that he had become privy to matters confidential to Bodycorp (either by reason of his conversations with Mr Crutchfield or his conversations with Mr Obst); and

(e) there was a risk of misuse of Bodycorp's confidential information.

54 Next, counsel for Bodycorp objected to the admission of the second Obst affidavit. He pointed out that the information about the destruction of the file on 30 June 2010 had been given on information and belief. He said: 'My client will not be able to pursue the deponent of that affidavit for perjury if that information proves to be incorrect'.

55 The primary judge ruled against the objection to the admission of the second Obst affidavit.

Application to cross-examine principal of Holding Redlich

56 Counsel for Bodycorp then sought leave, pursuant to r 22.21 of the Supreme Court (General Civil Procedure) Rules 2015,[15] to cross-examine Mr Rapke. Although Mr Rapke had not himself sworn an affidavit, he had provided the information upon which Mr Obst had sworn the second Obst affidavit.

57 The primary judge ruled against the application to cross-examine Mr Rapke. He said that he would give his reasons in due course.

58 The primary judge heard submissions on Holding Redlich's summary judgment application. He reserved the matter for judgment.

59 Soon after the hearing of the summary judgment application, Bodycorp gave notice that it wished to reopen the application before the primary judge. The primary judge proposed a hearing on 21 April 2017. However, Bodycorp said that it could not be ready on that day because its counsel was unavailable. In the event, the Court allocated a hearing on 19 May 2017.

60 On 24 April 2017, while the matter was still reserved, Bodycorp issued a further summons seeking the following relief:

1. That the Plaintiff have leave to file, re-open its case and rely upon the affidavits that have been filed in support in the hearing of the Defendant's summons filed on 5 December 2016 for summary judgment that was heard on 10 April 2017.
2. That the Defendant's summons for summary judgment filed on 5 December 2016 be dismissed as an abuse of process, on the basis of the conduct of the Defendant's legal practitioners, and the failure of the Defendant to provide full and frank disclosure of all of its records.
3. That the Defendant's electronic files relating to any matter that they acted on behalf of the Plaintiff be preserved (including any backups) pursuant to Rule 37B.02 of the Supreme Court Rules.
4. That the Plaintiff's authorised representatives be permitted to inspect all of the electronic files of the Defendant (including any backups) to search for any electronic files pertaining to the Plaintiff pursuant to Rule 37B.02 of the Supreme Court Rules.

61 The application to reopen was supported by four affidavits. Only three of those affidavits are relevant to the first proposed ground of appeal:

(a) affidavit of Peter Martin sworn on 12 April 2017;

(b) affidavit of Manny Stamatopoulos sworn 12 April 2017; and

(c) affidavit of Xiaohan (Michelle) Zhang affirmed 12 April 2017.

62 The substance of each affidavit is that, despite his undertaking to withdraw from the case, Mr Crutchfield remained in court on the afternoon of 10 April 2017 and provided assistance to those conducting the case on behalf of Holding Redlich.

63 The primary judge listed all applications for hearing on 27 April 2017. It appears that he also listed the summary judgment application for judgment. He published his reasons on the summary judgment application that day.

64 On 27 April 2017, the primary judge published his reasons for judgment.[16]

65 The primary judge dealt first with the question whether Mr Batrouney and Obst Legal should be restrained from acting. He said:[17]

[8] The first preliminary issue arose from Bodycorp's own summons filed on 10 April 2017 (the day the summary judgment application was due to be heard)[18] by which it sought an order that the Court restrain Holding Redlich's legal practitioners (including their solicitors and both counsel) from continuing to act on its behalf. It was supported by an affidavit of Antonio Murdaca (the sole director of Bodycorp) sworn 7 April 2017 and a further affidavit of Robert Richter QC sworn 10 April 2017.

[9] In substance, it was alleged that on 30 September 2016 Bodycorp approached Mr Richter QC to act on its behalf in another proceeding, Bodycorp Repairers Pty Ltd v Maisano & Ors (S CI 2016 02044). In that case, Bodycorp was seeking to set aside the orders of Elliott J made in the AAMI proceeding on the grounds that they had been obtained by fraud. Bodycorp was in the throes of defending a summary judgment application in that proceeding when its senior counsel at the time was unable to proceed. The matter had been stood down. It was in that context that Mr Richter had been approached to act.

[10] Mr Murdaca deposed that Mr Richter declined to act, the case not being within his area of expertise but Mr Richter recommended Mr Crutchfield instead. Mr Murdaca, whose account was subsequently confirmed by Mr Richter ('to the best of my recollection'), said that Mr Richter had telephoned Mr Crutchfield and spoke to him on speakerphone in Mr Murdaca's presence. Mr Murdaca's account is that Mr Richter-

... explained the circumstances of the withdrawal of [the senior counsel], the advice that [the senior counsel] provided to the plaintiff (that included his views on the merits of the case, and the detriments that would need to be confronted by the plaintiff to defeat the application for summary judgment and the revised advice that [senior counsel] provided in relation to the amended statement of claim that he settled and signed) and the dispute that arose between the plaintiff and [senior counsel] in the running of the matter.

[11] Mr Murdaca said that he was later informed that Mr Crutchfield was not available to represent Bodycorp. In the meantime, Mr Richter had contacted Mr Levine, Bodycorp's present counsel in this proceeding, to inquire if he would be willing to act as junior to Mr Crutchfield and Mr Levine had said 'that would be fine'.

[12] As I have already noted, Mr Crutchfield's name appeared on Holding Redlich's defence to Bodycorp's amended statement of claim, the defence dated 17 days after the alleged conversation between Mr Richter and Mr Crutchfield. It was that fact, in combination with the other facts I have just mentioned, that gave rise to questions as to when Bodycorp first knew that Mr Crutchfield was acting for Holding Redlich and why Bodycorp took no step to apply to have him, and the other lawyers, restrained from acting until the morning of the hearing of the summary judgment application. In my view those questions were never satisfactorily explained by evidence.

[13] Two affidavits were filed in opposition to Bodycorp's application. One was sworn by Mr Crutchfield. He swore his affidavit before the affidavit of Mr Richter was made. Mr Crutchfield did not recall the conversation that Mr Murdaca deposed to and said he believed he knew nothing of any Bodycorp matters until he was briefed by Obst Legal to act on behalf of Holding Redlich in this proceeding. He gave particular reasons why he doubted that the conversation Mr Murdaca described had taken place. He said he did not believe he possessed any confidential information pertaining to Bodycorp whether relevant to the case in which he was now briefed or otherwise.

[14] Mr Obst deposed to having a conference with Mr Crutchfield and Mr Batrouney on 17 October 2016 to discuss the merits of Holding Redlich's defence and making the present application for summary judgment. Mr Obst said that at no time during that conference, nor by any other communication before or since, did Mr Crutchfield communicate anything to him that he suspected was information confidential to the plaintiff or that appeared to derive from any source other than instructions from his own office or documents in the public domain. No separate affidavit was sworn by Mr Batrouney.

[15] Bodycorp advanced two essential grounds for arguing that the two counsel and the solicitors should be precluded from acting on behalf of Holding Redlich in those circumstances. The first placed reliance upon the Legal Profession Law Uniform Legal Practice Rules 2015 applicable to barristers and solicitors. Those Rules enshrine well known ethical rules of conduct in relation to what a barrister or solicitor must do when possessed of confidential information pertaining to another party. The second basis was the common law, in particular principles set out in cases such as Sent and Primelife Corporation Ltd v John Fairfax Publication Pty Ltd and Hills [2002] VSC 429 at [33]. Those authorities establish that whether or not a barrister remembers the details of a conversation which occurred, or is alleged to have occurred, the court will take into account any real and sensible possibility of a revival of recollection.

[16] Upon Mr Richter's affidavit being filed, I was informed that Mr Crutchfield would voluntarily decline to appear for Holding Redlich on the summary judgment application. In those circumstances, I announced that I would only deal with the plaintiff's application for the purposes of hearing the summary judgment application itself and would otherwise adjourn the summons insofar as it may be pressed in relation to the balance of the proceeding.

[17] I ruled that I would not restrain either Mr Batrouney, junior counsel, or Obst Legal, the solicitors, from acting for Holding Redlich for the purposes of the summary judgment application.

[18] Allowing for the possibility that Mr Crutchfield did receive some confidential information in a phone call on or about 30 September 2016, I am nowhere near persuaded that there is any real or sensible possibility of that information having been communicated to either Mr Batrouney or Obst Legal. I have no reason to doubt Mr Crutchfield's evidence (acknowledging he has not been cross-examined) that he has no recollection of the alleged discussion. If he had in fact passed on information, obtained confidentially, during his conference with Mr Obst and Mr Batrouney on 17 October (or at any other time) he would first have had to recall receiving it. I am not prepared to act on the presumption that Mr Crutchfield recalled having received confidential information and, having done so, passed it on to others knowing, as that hypothesis requires, that he was unethically conveying information acquired confidentially from the opposite party. There is little room to presume it may have happened inadvertently.

[19] Making the improbable even less probable, I would also have expected Mr Obst or Mr Batrouney to have recognised that they were hearing information that could only have come from some confidential source. I am sufficiently satisfied that did not occur.

[20] Furthermore, the substance of this application, turns on matters that are entirely 'objective'. It is not dependent upon or likely to be affected by the input of any fact which could only come from the Bodycorp camp. Whether the action is statute barred, or Bodycorp's conduct in bringing the proceeding involves an abuse of process because it has already litigated the issues in question, or the claim as pleaded lacks serious prospects of success, are all matters which are argued out of documents that are common to both parties.

[21] In all the circumstances I am of the firm view that there is no sensible prospect of any prejudice to Bodycorp in Mr Batrouney and Obst Legal acting on the summary judgment application. At this stage, I say no more about the propriety of either Mr Crutchfield, Mr Batrouney or Obst Legal continuing to act for Holding Redlich beyond the application. That comment signals no inclination one way or another.

66 On the question whether the second Obst affidavit should be admitted into evidence, the primary judge said:

[22] The second preliminary issue was the admissibility of two affidavits sworn by Mr Obst in support of the summary judgment application. The objection raised was that the affidavits contained hearsay. Rule 22.18(3) of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules') provides, in relation to an affidavit in support of a summary judgment application, that the affidavit '... may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted'.

[23] In answer to the allegation that it was retained by Bodycorp from in or about July 1997 to advise in respect of certain matters, Holding Redlich admitted that it had been retained, otherwise it did not admit the allegations and said further that its file was destroyed on or about 30 June 2010. Holding Redlich repeated that last allegation in relation to other assertions made in the amended statement of claim about the conduct of the retainer, advice given and documents it had drawn.

[24] When asked what specific parts of the affidavits of Mr Obst were objected to, Bodycorp only pointed to paragraph 6 [of] the affidavit sworn 29 March 2017. In that paragraph Mr Obst deposed that he was informed by Howard Rapke (Melbourne managing partner of Holding Redlich), and believed, that Holding Redlich's file relating to the Bodycorp matter was opened 24 April 1998 and closed 11 July 2002, was given an archive box reference 0.1.4800 and was destroyed on 30 June 2010 in accordance with Holding Redlich's general document destruction practices. A copy of the certificate of destruction was exhibited.

[25] Bodycorp argued that the Court should not permit that hearsay evidence to be admitted on this application because it was of such critical importance it ought to have been sworn by Mr Rapke and he should have been made available for cross-examination. In essence, Bodycorp wanted to suggest that Holding Redlich may not have in fact destroyed its file, may have retained an electronic version of it or may have destroyed it (deliberately) in circumstances where it was aware that Bodycorp was suing AAMI and may at some future stage wish to sue Holding Redlich about the performance of its retainer in 1998-2002.

[26] I rejected the objection made by Bodycorp and allowed the affidavits to be admitted. In my view, the arguments advanced by Bodycorp bordered on the fanciful and did not justify refusing hearsay evidence on the topic of the destruction of the file. It seemed a most improbable scenario that solicitors, apprehending that a client might sue them, would destroy their own file when they could reasonably expect the client to have retained its own records of advices from or documents drawn by those solicitors. That hypothesis appears to imply that solicitors would see greater advantage in not having their file with which to defend themselves than having it. There are no suggestions of sinister or nefarious dealings implying the possibility of a 'cover up': this case involves a straight allegation of negligent drafting and negotiation of agreements.

67 On the question whether the Court should order Mr Rapke to attend for cross-examination, the primary judge said:

[27] The third application was related to the second; it was that the court should, pursuant to r 22.21(1)(a) of the Rules, order the principal of Holding Redlich to attend court and be cross-examined. This application was again directed to having Mr Rapke attend court to be cross-examined on the subject of the destruction of the file or its possible existence in electronic form. In my view it was infected with the same implausibility as the last issue.

[28] In this context, it is important to observe that the application for summary judgment had been filed as long ago as 5 December 2016. For various reasons, accommodating the interests of the court and the parties, it was not until Monday 10 April 2017 that time could be set aside (one day) for the hearing of the application. Bodycorp's three applications that I have just referred to, including standing the matter down to enable it to obtain a further affidavit from Mr Richter, occupied the whole of the morning and into the early part of the afternoon.

[29] Mr Obst's affidavit containing the information provided by Mr Rapke had been sworn and filed on 29 March 2017. His earlier affidavit had been sworn and filed on 5 December 2016. Bodycorp objected to the admission of both Mr Obst's affidavits. No notification was given by Bodycorp that it would object to Mr Obst's affidavits or require Mr Rapke to be called to give evidence until the morning of the hearing. In the same vein, as I alluded to earlier there was no satisfactory evidence explaining why Bodycorp failed to bring its application to restrain Holding Redlich's lawyers from acting in the proceeding until the hearing of the summary judgment application.

[30] There were reasons to suspect that Bodycorp's three applications were motivated to derail or delay the hearing of the summary judgment application and to force it being put off to another day. Acceding to the late application to have Mr Rapke attend and be cross-examined was likely to produce that very result.

[31] Quite apart from the improbability of Bodycorp's theory about Holding Redlich's conduct in destroying the file in 2010, I have taken into account the imperative in the Civil Procedure Act to seek to give effect to the overarching purpose of the Act in the exercise of any powers. In my view, the imperative to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute on this summary application militated against acceding to Bodycorp's application to have Mr Rapke attend court for cross-examination.

Dismissal of application to reopen summary judgment application

68 After delivering judgment, the primary judge turned to the application brought by Bodycorp to reopen the summary judgment application. The relevant part of the transcript reads as follows:

The orders will be that there be judgment for the defendant with costs. I wish to say something further about the matter Mr Levine raised just before I delivered my judgment. Shortly after the Easter vacation following the hearing of the defendant's summons on 11 April 2017 the plaintiff sought the hearing of a further summons to reopen the application. The plaintiff wanted its application to be fixed urgently. When the court proposed a hearing on Friday 21 April the plaintiff responded that it wanted a hearing on or after 15 May, in part because of the unavailability of its counsel and the director of the plaintiff. The court allocated 19 May, and the plaintiff subsequently filed its summons returnable that day.

When the parties were advised of the date for the delivery of the ruling on the summary judgment application the plaintiff sought to have the ruling postponed until after the hearing of its further summons. Having read the proposed orders sought in the plaintiff's further summons and the affidavits in support of it, it was clear that the issues sought to be raised could have no bearing on the decision I have reached or the reasons for reaching it. No point would be served by any postponement. That summons will fall away with the proceeding and there is no need to make any order in respect of it ...

69 Bodycorp has proposed the following grounds of appeal:

Ground 1

1.1 The Trial Judge acted with a reasonable apprehension of bias in relation to the Plaintiff's summons to restrain the Defendant's legal practitioners from continuing to act that was adjourned without being heard.

Particulars

1.2 There was no satisfactory explanation as to when the Plaintiff knew that the Defendant's senior counsel had been acting for the Defendant and why an application to restrain him had not been made earlier (paragraphs 11 and 29).

1.3 The Trial Judge had no reason to doubt the evidence of the Defendant's senior counsel that he had no recollection of his conversation with Robert Richter QC, in which he obtained the Plaintiff's confidential information (paragraph 13).

1.4 There is no basis for finding that the Defendant's senior counsel had acted unethically in passing on the confidential information to the Defendant (paragraph 13).

1.5 The Trial Judge accepted the affidavit evidence of the Defendant's instructing solicitor without cross examination (paragraph 16).

1.6 The Trial Judge was not willing to accept that it was possible that the Defendant's senior counsel passed on the Plaintiff's confidential information to the Defendant's solicitor and to junior counsel (paragraph 18).

1.7 The Trial Judge referred to the submissions of the Plaintiff that the Defendant's legal practitioners including Junior counsel and their solicitor were in possession of confidential information of the Plaintiff as 'making the improbable even less probable' (paragraph 19).

1.8 The submissions of the Plaintiff bordered on the fanciful and it seemed a most improbable scenario (paragraphs 26 and 31 ) and was infected with the same implausibility as the last issue (paragraph 27).

1.9 The Plaintiff did not provide notification that it would object to the Defendant's evidence or that he would require that the Defendant to give evidence until the morning of the hearing (paragraph 29).

1.10 There were reasons to suspect that the Plaintiff's applications were motivated to derail or delay the hearing of the summary judgment application and to force it being put off to another day.

Ground 2

2.1 The Trial Judge did not provide the Plaintiff with natural justice:

Particulars

2.2 The Trial Judge permitted the Defendant's junior counsel and its solicitors to continue to represent the Defendant without permitting the Plaintiff leave to cross examine them.

2.3 The Trial Judge dismissed the Plaintiff's application for leave to adduce further evidence that the Plaintiff had been disadvantaged by the conduct of the Defendant's senior counsel, who sat in the court, and provided assistance in the hearing of the summary judgment application.

2.4 The Trial Judge dismissed the Plaintiff's applications to have the summary judgment dismissed as an abuse of process, without hearing the application.

Ground 3

3.1 The Trial Judge erred in making the following findings:

Particulars

3.2 The Defendant could reasonably have expected the Plaintiff to have retained its own records of advices from or documents drawn by the Defendant (paragraph 26).

3.3 The Plaintiff did not provide notification that it would object to the Defendant's evidence or that he would require that the Defendant to give evidence until the morning of the hearing (paragraph 29).

70 In order to understand the analysis that follows, it is necessary first to say something about Bodycorp's submissions on the first proposed ground of appeal. Bodycorp did not address any of the steps in the test for apprehended bias set out in Ebner v Official Trustee in Bankruptcy[19] or the ensuing cases. Its submissions were, for the most part, difficult to follow. At the outset, the submissions made clear that they related largely to Bodycorp's application to restrain Holding Redlich's legal practitioners from continuing to represent Holding Redlich.[20] However, as will be seen, the submissions also related to the way in which the primary judge dismissed other preliminary applications made by Bodycorp. The submissions were also critical of: (a) the observations of the primary judge as to when Bodycorp gave notice of its various applications; (b) his suggestion that Bodycorp sought to derail the hearing of the summary judgment application; and (c) what Bodycorp labelled as 'pejorative' comments made by the primary judge. Further, the submissions paraphrased aspects of the reasons of the primary judge and seemingly used them in support of a broad-brush contention that the primary judge acted with a reasonable apprehension of bias. The oral submissions made by counsel for Bodycorp did little to clarify these matters.

71 Bodycorp introduced its written submissions as follows:

This is an application for leave to appeal the decision of [the primary judge] that was made on 27 April 2017 in which he granted summary judgment for [Holding Redlich] in a proceeding for summary judgment on the basis that [Bodycorp's] causes of action were statute barred. The Trial Judge misconstrued the law, and misinterpreted the causes of action that was pleaded. He also adjourned the [Bodycorp's] application to restrain [Holding Redlich's] legal practitioners on the basis that [Bodycorp] had provided confidential information to [Holding Redlich's] senior counsel because [Bodycorp] would not be prejudiced as [Holding Redlich's] senior counsel would voluntarily withdraw in the summary judgment application. He held that [Holding Redlich's] junior counsel and solicitor who had not been a party to the conversation in which the confidential information was provided to [Holding Redlich's] senior counsel, should not be restrained in the hearing of the summary judgment application because [Holding Redlich's] solicitor should be believed in his affidavit at face value, that he had no knowledge of the confidential information without cross examination (even though [Bodycorp] had sought leave to cross examine him). He also dismissed [Bodycorp's] application to adduce further evidence to establish that [Bodycorp] had been prejudiced as [Holding Redlich's] senior counsel had been surreptitiously assisting [Holding Redlich] in their case, during the hearing of the application for summary judgment.

72 After extracting its first proposed ground of appeal, Bodycorp contended that the primary judge had erred in making various 'pejorative comments in the context of a summons to restrain the legal practitioners that he adjourned without hearing and determining'. Bodycorp said that the primary judge did so without the benefit of oral submissions and that it had been denied an opportunity to cross-examine Holding Redlich's legal practitioners in order to put its case.

73 Bodycorp said that the primary judge made it clear in his reasons that:

(a) he did not believe Bodycorp's witnesses,[21] despite the evidence of an independent witness, Mr Richter;

(b) Holding Redlich's witnesses would be accepted at face value, even though he refused leave to cross-examine Holding Redlich's witnesses; and

(c) Bodycorp had been motivated by extraneous factors and had failed to conduct the litigation properly (even though there had been no evidence or submissions to that effect).

74 Bodycorp also complained that the primary judge erred in finding that Bodycorp had provided no notice to Holding Redlich that it: (a) objected to Holding Redlich's affidavits; and (b) required Mr Rapke to be available to attend for cross- examination. All these matters led Bodycorp to consider that the primary judge was willing to believe the worst of Bodycorp without any proper basis.

75 Bodycorp said that it could not therefore have any confidence in the capacity of the primary judge to hear the summary judgment application. It said that the application should be granted and the appeal allowed irrespective of the other merits of the appeal. It referred to AJH Lawyers Pty Ltd v Careri.[22]

76 The written submissions of Holding Redlich in response to the first proposed ground of appeal conceive of the ground as if the complaint is not one of apprehended bias, but, rather, as if it concerns the correctness of the dismissal of the application to restrain Holding Redlich's legal practitioners. Having described the application to restrain and the course of events on 10 April 2017 before the primary judge, the submission concludes:

The evidence relied on by Bodycorp does not establish that any information disclosed to Mr Crutchfield on 30 September 2016 had any connection with Holding Redlich's application for summary judgment. Mr Murdaca's affidavit merely establishes that Bodycorp sought to retain Mr Crutchfield in the Fraud Proceeding; and that certain matters relating to that proceeding were discussed. In his submissions below, Counsel for Bodycorp was unable to identify how any information concerning the Fraud Proceeding was relevant to Holding Redlich's summary judgment. Moreover, as his Honour correctly recognised, the substance of Holding Redlich summary judgment application was 'entirely objective'. It turned on the application of the law to known and uncontested facts; and was argued out by reference to documents that were common to both parties.

In those circumstances, there was no danger of confidential information being used on the summary judgment application to Bodycorp's detriment, and no real and sensible possibility that junior counsel and Obst Legal would be placed in a position of conflict by advancing the application.

77 In Ebner, the High Court set out the test for the disqualification of a judge on the ground of bias as follows:

[A] judge is disqualified if 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 is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[23]

78 The High Court said that the application of that test involves two steps:

First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding a case on its merits. The bare assertion that a judge ... has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[24]

79 It is to be observed that the last sentence of the quoted passage suggests that there is an additional third test - namely, the assessment of the reasonableness of the asserted apprehension of bias. Recently, in Isbester v Knox City Council,[25] Gageler J set out the three steps as follows:

Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as a result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.[26]

80 To similar effect is the following three-step analysis expressed by Hayne J in Minister for Immigration and Multicultural Affairs v Jia:[27]

Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.[28]

81 Accordingly, it is incumbent upon the party seeking recusal: first, to identify the conduct said to give rise to the apprehension of bias through pre-judgment; secondly, to articulate the connection between that conduct and the possibility of departure from impartial decision-making with respect to the questions to be decided; and thirdly, to consider of the reasonableness of the apprehension of that departure being caused by that conduct in that way.[29]

82 The apprehension in question is an apprehension that the judge will not decide the case impartially, not merely an apprehension that he or she 'will decide the case adversely to one party'.[30] The test does not call for an inquiry into how the judge will in fact approach the matter; rather, it is a question of 'possibility (real and not remote), not probability'.[31] Where, as in the present case, 'the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge'.[32]

83 One of the unusual features about the present case is that the issue of bias was first raised in the application for leave to appeal. The issue did not arise at any stage during the hearing of the summary judgment application before the primary judge on 10 April 2017. Nevertheless, the authorities on recusal further illuminate the relevant principles. A judge should not 'too readily accept recusal because a party has demanded it'.[33] The High Court has made it plain that judges have a duty to perform their judicial functions and to hear the cases allocated to them:

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.[34]

84 The fair-minded lay observer is attributed with knowledge of all the circumstances of the case.[35] He or she is taken to be reasonable.[36] He or she knows commonplace things and is neither complacent nor unduly sensitive or suspicious.[37] In AJH Lawyers, this Court said:[38]

'[T]he perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer'.[39] The fictional lay observer 'is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge'.[40] Yet the fictional observer is taken to understand the dynamics of modern judicial practice. Modern judges 'are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.'[41] '[T]he expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.'[42]

85 A judge is not precluded from displaying 'irritation or impatience'[43] and is at liberty to express 'measured displeasure'[44] at the manner in which proceedings are conducted. When issues of this kind arise, they must be assessed within their full context.[45] Thus, in Barakat v Goritsas (No 2),[46] Basten JA (with whom Young and Sackville JJA agreed) said:

The fair-minded lay observer must be taken to have heard the whole of the exchanges between counsel and the bench on the relevant days, with some understanding of what was appropriate conduct for both counsel and the court and what was not. The fair-minded lay observer is unlikely to apprehend bias against one party merely because the trial judge describes the behaviour of counsel for that party as disgraceful or tendentious, unless the observer would consider such epithets inapt to the extent of being unreasonable and indicative of an inability to bring an impartial mind to bear on the issues in dispute.[47]

86 When a party makes an application, a judge must normally give the party some reasonable opportunity to make submissions in support of that application.[48] However, a judge need not devote unlimited time to listening to unmeritorious arguments;[49] this is so even if the judge's preliminary view is that the application will be unmeritorious.[50]

87 In a case where one of the proposed grounds of appeal is based on actual or apprehended bias, the Court must deal with that proposed ground first.[51] If an applicant succeeds in establishing actual or apprehended bias, the Court is to set aside the decision below and remit the matter back, even if it is satisfied that the decision below is correct on the merits.[52]

88 At all events, in applying the test set out in Ebner, the first step is to identify the conduct of the primary judge said to give rise to an apprehension of bias. Bodycorp has drawn attention to various aspects of the reasons of the primary judge and the way in which he dealt with the applications made at the hearing on 10 April 2017. It submitted that these matters led the primary judge to decide the application to restrain Holding Redlich's legal practitioners other than on the merits. The matters raised by Bodycorp are reflected in the particulars to its first proposed ground of appeal and need not be repeated here.

89 We have already touched on the unsatisfactory nature of Bodycorp's submissions on the first proposed ground of appeal. We understand those submissions, in so far as they impugn the conduct of the primary judge, to be directed principally at the resolution of the summary judgment application. In other words, it seems to be alleged that, by his conduct (as evident from various aspects of his reasons and the way in which he dealt with the preliminary applications made at the hearing), a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial mind to the resolution of the summary judgment application. However, given the number of preliminary applications that were decided at the hearing, it is necessary also to consider this question with respect to the preliminary applications and whether, by his disposition of any of the preliminary applications, a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial mind to the resolution of any of those applications. Where necessary, this question will be addressed below.

90 The second step in applying the test set out in Ebner is to articulate the connection between the matters raised by Bodycorp and the possibility that there was a departure from impartial decision-making with respect to the questions that the primary judge decided. The connection between the matters raised by Bodycorp and the feared deviation from the course of deciding the case on its merits is not at all clear. Indeed, it appears to us that there is no logical connection. In reaching this conclusion, seven points should be made.

91 First, in relation to particular 1.2 of the first proposed ground of appeal, the primary judge said in his reasons that the evidence before him did not satisfactorily explain when Bodycorp first knew that Mr Crutchfield was acting for Holding Redlich and why Bodycorp took no step to apply to have Mr Crutchfield, and the other legal practitioners, restrained from acting until the morning of the hearing of the summary judgment application.[53] The context of this conclusion must be borne in mind. The conclusion was based on the affidavit material before the primary judge and what appeared to be a dearth of information provided to him by counsel for Bodycorp during the hearing on 10 April 2017. At the hearing, the primary judge gave counsel for Bodycorp an opportunity to explain why the application to restrain Holding Redlich's legal practitioners had not been brought sooner and whether counsel himself knew at a much earlier point in time that Mr Crutchfield had been retained by Holding Redlich. The primary judge also adjourned the matter in order for counsel for Bodycorp to obtain further instructions. Nothing in the conclusion expressed by the primary judge about the satisfactoriness of the evidence with respect to the timing of the application to restrain Holding Redlich's legal practitioners reveals that he had decided either that application or the summary judgment application other than on the merits.

92 Secondly, by particulars 1.3 and 1.4, Bodycorp said that the primary judge 'had no reason to doubt the evidence of [Mr Crutchfield] that he had no recollection of his conversation with Robert Richter QC, in which he obtained [Bodycorp's] confidential information'. Bodycorp also attributed to the primary judge the view that '[t]here is no basis for finding that [Holding Redlich's] senior counsel had acted unethically in passing on the confidential information to [Holding Redlich]'. In each case, Bodycorp referred to [13] of the reasons. We take that to be a reference to [18] of the reasons. In our opinion, there is nothing in the point. Acknowledging that there had been no cross-examination, it was open to the primary judge not to doubt the evidence of Mr Crutchfield that he did not recall having received confidential information in the phone call of 30 September 2016. That being so, the primary judge was not prepared to find that Mr Crutchfield had passed on such information to others. This approach is founded on the evidence and conforms to logic. It is difficult to see how, if at all, it could have led the primary judge to decide any of the applications before him other than on the merits.

93 Thirdly, by particular 1.5, Bodycorp takes issue with the fact that the primary judge admitted into evidence the affidavits of Mr Obst without cross-examination. It will be recalled that counsel for Bodycorp sought leave to cross-examine Mr Obst about paragraph 4 of the third Obst affidavit as well as about his conversation with Mr Crutchfield on 17 October 2016. In paragraph 4 of the third Obst affidavit, Mr Obst deposed, among other things, that '[a]t no time during that conference, nor by any other communication before or since has Mr Crutchfield communicated to me any matter which I would suspect was information confidential to [Bodycorp]'. In so far as the complaint is directed to the refusal of the primary judge to permit Bodycorp to cross-examine Mr Obst, the answer is simple. The primary judge had a discretion whether to permit or refuse cross-examination. This Court will only interfere with the exercise of that discretion if the primary judge acted on an erroneous principle of law, mistook the facts, allowed extraneous or irrelevant matters to guide or affect them, or failed to take into account some material consideration.[54] In the present case, it was open to the primary judge to deny the application for leave to cross-examine Mr Obst. Although it is unnecessary for us to do so, we would add that it was perfectly proper for the primary judge to refuse that application. Paragraph 4 of the third Obst affidavit is uncontentious. It coheres with the evidence of Mr Crutchfield that he (Mr Crutchfield) knew nothing of the 'Bodycorp matters' until he was briefed by Obst Legal. There is nothing to suggest that, at any point in time, Mr Crutchfield had conveyed to Mr Obst information that was confidential to Bodycorp. The qualifying words in the third Obst affidavit 'I would suspect', which precede 'was information confidential to [Bodycorp]', do not cast any doubt on the evidence, bearing in mind that the deponent is an experienced solicitor.

94 Fourthly, by particular 1.6, Bodycorp said that the primary judge was not willing to accept that it was possible that Mr Crutchfield had passed on Bodycorp's confidential information to Mr Obst and Mr Batrouney. It referred to [18]. This complaint resembles particular 1.4, save that it specifies the destination of the alleged transmission of confidential information. Our comments with respect to particulars 1.3 and 1.4 apply with equal force here.[55]

95 Fifthly, by particulars 1.7 and 1.8, Bodycorp attacks the primary judge's description of its submissions in various places in his reasons. In summary:

(a) having concluded that he was not prepared to presume that Mr Crutchfield recalled having received confidential information or that he conveyed that information to others,[56] the primary judge continued: 'Making the improbable even less probable, I would also have expected Mr Obst or Mr Batrouney to have recognised that they were hearing information that could only have come from some confidential source. I am sufficiently satisfied that did not occur';[57]

(b) the primary judge said that the arguments advanced by Bodycorp with respect to hearsay evidence contained in the affidavits or Mr Obst 'bordered on the fanciful' and that '[i]t seemed a most improbable scenario that solicitors, apprehending that a client might sue them, would destroy their own file when they could reasonably expect the client to have retained its own records of advices from or documents drawn by those solicitors';[58] and

(c) the primary judge described the application to have Mr Rapke attend court to be cross-examined as 'infected with the same implausibility' as the issue with respect to the admissibility of the affidavits of Mr Obst.[59]

There is little utility in considering the impugned parts of the reasons in a vacuum, abstracted from the events that had unfolded before the primary judge during the course of the hearing on 10 April 2017. It must be recalled that, during the hearing, counsel for Bodycorp: (a) impugned the veracity of the evidence of Mr Crutchfield and Mr Obst; (b) insinuated that there had been a breach of the Legal Profession Uniform Conduct (Barristers) Rules 2015 and the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015; and (c) invited the Court to presume that, because Mr Batrouney had not sworn an affidavit, he was privy to confidential information of Bodycorp and had chosen to disguise it from the Court. The forcefulness of the primary judge's reasons must be viewed in the light of the serious allegations made by Bodycorp and the way in which it conducted the hearing before the primary judge. At all events, it is plain from the reasons, particularly when read in the light of the earlier discourse between the primary judge and counsel for Bodycorp, that the primary judge had duly considered the arguments advanced by Bodycorp in support of the various applications made during the hearing. In each case, he explained clearly why he thought that those submissions were unpersuasive. He dealt with those submissions in a way that discloses no appealable error. Even if the complaint is one of phrasing, the words used in the reasons do not carry any pejorative connotation. It is inconceivable that a fair-minded lay observer might think that, in adopting the approach that he did, the primary judge might not have brought an impartial and unprejudiced mind to the questions in dispute.

96 Sixthly, Bodycorp has drawn attention to the observation of the primary judge that Bodycorp did not give notice that it would object to affidavits of Mr Obst, or that it would require Mr Rapke to be called to give evidence, until the morning of the hearing.[60] In the event, Bodycorp had given notice of these matters to Holding Redlich by its letter dated 29 March 2017, some two weeks before the hearing of the summary judgment application. However, that letter was not included in the material filed in support of the summary judgment application; thus, the primary judge would have been unaware of it. More importantly, in overruling the objection to admissibility and refusing leave to cross-examine Mr Rapke, the primary judge did not rely upon what he considered to be the failure of Bodycorp to give notice of the above matters. As he put it in his reasons:

I have taken into account the imperative in the Civil Procedure Act to seek to give effect to the overarching purpose of the Act in the exercise of any powers. In my view, the imperative to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute on this summary application militated against acceding to Bodycorp's application to have Mr Rapke attend court for cross-examination.[61]

Thus, while it may be said that the primary judge, through no fault of his own, erred in finding that Bodycorp had not given notice of the above matters, the passage above makes plain that the error was of no consequence; in no way could it be said that it led the primary judge to decide any of the applications before him other than on the merits.

97 Seventhly, and in addition to the sixth point, it is also arguable that the observation of the primary judge that '[t]here were reasons to suspect that Bodycorp's three applications were motivated to derail or delay the hearing of the summary judgment application and to force it being put off to another day'[62] was based upon the misconception that Bodycorp had failed to give notice to Holding Redlich of the various matters that were, in fact, set out in its letter dated 29 March 2017.[63] But, as explained above, that error was of no consequence; the primary judge decided the issue based on 'the imperative to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute' under the Civil Procedure Act 2010. Still, there is no logical connection between this matter and the feared deviation from the course of deciding the case on its merits.

98 The third and final step in applying the test set out in Ebner is to consider the reasonableness of the asserted apprehension of bias. In our opinion, the asserted apprehension of bias is unreasonable. None of the matters relied upon by Bodycorp tells in favour of finding that the primary judge did not bring an impartial mind to the resolution of any of the preliminary applications or the summary judgment application.

99 We would refuse leave to appeal on the first proposed ground.

100 In its second proposed ground of appeal, Bodycorp contended that the primary judge denied it natural justice. In particular, Bodycorp complained that: (a) the primary judge permitted Mr Batrouney and Mr Obst to continue to represent Holding Redlich without allowing Bodycorp to cross-examine them; (b) the primary judge dismissed the application to reopen the summary judgment application despite evidence that Bodycorp had been disadvantaged by Mr Crutchfield's continued presence in court; and (c) the primary judge dismissed Bodycorp's application to have the summary judgment application dismissed as an abuse of process 'without hearing that application'.

101 Bodycorp contended that it was denied the opportunity to present its case in support of the new applications made by summons. It said that it had unsuccessfully sought to have judgment on the summary judgment application deferred to enable the new applications to be heard and determined. It complained that it was not permitted to provide any submissions or evidence in support of those applications, which were dismissed without adjudication on the merits.

102 Bodycorp also contended that it should have been permitted to argue that it had been prejudiced by Mr Crutchfield's continued presence in court. It said that the primary judge had proceeded on the basis that, because Mr Crutchfield voluntarily withdrew from appearing, Bodycorp would not be prejudiced by the dismissal of the new applications.

103 Finally, Bodycorp contended that it should have been permitted to make submissions to the effect that the primary judge should have restrained Holding Redlich's junior counsel and solicitor from representing Holding Redlich at the hearing of the summary judgment application. It said that it should have been granted leave to cross-examine Mr Obst. Bodycorp also submitted that it was denied natural justice because the third Obst affidavit was accepted at face value and one of Bodycorp's submissions was described as '[m]aking the improbable even less probable'.[64]

104 We take the first submission to imply that, by refusing Bodycorp permission to cross-examine Mr Batrouney and Mr Obst, the primary judge had denied it natural justice. However, it must be appreciated that that refusal took place after the primary judge heard submissions made by counsel for Bodycorp on this issue. Accordingly, in so far as Bodycorp contends that it was denied natural justice by the primary judge's refusal to permit it to cross-examine Mr Batrouney and Mr Obst, that submission must be rejected. We would also add that it was open to the primary judge to refuse to permit cross-examination. He did so after Mr Crutchfield had informed the Court that he would cease to appear for Holding Redlich in the summary judgment application. And, as mentioned above, the evidence of Mr Obst was uncontentious and uncontradicted. In view of the material that was before the primary judge, there was no basis for suspecting that either Mr Batrouney or Mr Obst had been privy to information that was confidential to Bodycorp. Plainly, the primary judge was entitled to reach the conclusion that he did.

105 The next issue, and perhaps the issue of most substance in the second proposed ground of appeal, is the dismissal of Bodycorp's summons, which included an application to reopen the summary judgment application and an application to have the summary judgment application dismissed as an abuse of process. It will be recalled that, after publishing reasons for judgment on the summary judgment application, the primary judge dismissed Bodycorp's summons. Having read the proposed orders sought in Bodycorp's summons and the affidavits in support of it, he concluded:

It was clear that the issues sought to be raised could have no bearing on the decision I have reached or the reasons for reaching it. No point would be served by any postponement. That summons will fall away with the proceeding and there is no need to make any order in respect of it.

106 It is true that the primary judge dismissed the summons without hearing any submissions. In some (but not all) cases, denying a party a reasonable opportunity to make submissions in support of an application may well amount to a denial of natural justice.[65] Broadly speaking, a court is extremely solicitous about the interests of persons who have not been given an opportunity to be heard either at all or in respect of particular questions before judicial orders of a substantive kind are made against them.[66] However, an entitlement to make submissions will always be qualified by a requirement that those submissions are relevant to the issue at hand.[67] Refusing a party permission to advance irrelevant submissions is no more a denial of natural justice than refusing a party permission to adduce irrelevant evidence.[68] The assessment is one of 'practical injustice'.[69] In order to determine whether there has been any unfairness, it is necessary first to consider the extent to which the alleged unfairness may have had an impact on the outcome of the proceedings and, where that possibility arises, whether the extent of the impact can be assessed on appeal.[70] In other words, would further information possibly have made any difference to the outcome?[71]

107 The authorities make clear that a decision to grant or refuse an application to reopen is a discretionary one,[72] and, like most discretions, can only be disturbed on appeal if there has been a failure to exercise the discretion properly in the sense identified in House. In the present case, we are not persuaded that the primary judge denied Bodycorp natural justice by his dismissal of the summons without hearing submissions. The primary judge indicated that he had read the orders proposed in the summons and the four affidavits filed in support of the summons. He concluded that the issues sought to be raised could have no bearing on the decision or the reasons for the decision on the summary judgment application. In our opinion, having regard to the content of the summons and the supporting affidavits, it was open to the primary judge to reach that conclusion. It must be understood that the issues raised in the summons, and particularly the issue whether Mr Crutchfield had continued to assist Holding Redlich during the course of the summary judgment application after announcing his withdrawal, are of practically no relevance to the summary judgment application, which, as will be seen below, ultimately concerned a question of law relating to the Limitation of Actions Act 1958. On that footing, we see no error in the primary judge's approach. What is more, Bodycorp has failed to identify how the confidential information allegedly received by Mr Crutchfield, which related to the fraud proceeding before Riordan J,[73] was relevant to the proceedings before the primary judge.

108 We consider the above points to hold true with respect to the application to have the summary judgment application dismissed as an abuse of process. It might also be observed that, on the face of the material, Bodycorp had had ample opportunity to bring such an application at an earlier point in time. Where, as in the present case, an application is brought belatedly without a valid explanation, an issue which a judge must consider is fairness to both parties. It is not simply a matter of according fairness and the right to be heard to one party alone.[74]

109 The second proposed ground was arguable and Bodycorp should be granted leave to appeal on that ground. The appeal, however, must be dismissed.

110 In its third proposed ground of appeal, Bodycorp contended that the primary judge erred in making what it says are two 'findings'.

111 First, Bodycorp contended that the primary judge erred in making a finding that Holding Redlich 'could reasonably have expected [Bodycorp] to have retained its own records of advices from or documents drawn by [Holding Redlich]'.[75] However, the primary judge did not make any such finding. Examination of [25]-[26] of the reasons indicates the full context of what he decided. Holding Redlich had relied upon the second Obst affidavit. In that affidavit, Mr Obst deposed that he had been informed by Mr Rapke that Holding Redlich had destroyed its Bodycorp file on 30 June 2010 in accordance with its 'general document destruction practices'. Given that the retainer had been in or about July 1997, it seems hardly surprising that, by 2016, the file had been destroyed.

112 During oral submissions, counsel for Bodycorp: (a) objected to the admission of the second Obst affidavit; and (b) sought leave to cross-examine Mr Rapke on the issue whether the file had been destroyed. In support of those applications, counsel for Bodycorp said that:

(a) his client 'will not be able to pursue the deponent of that affidavit for perjury if the information proves to be incorrect';

(b) his client wished to challenge 'the veracity' of the statement that the files were destroyed on 30 June 2010;

(c) Holding Redlich must have known that there was a possibility that there could be court proceedings about the retainer; and

(d) Holding Redlich must have known about the other proceedings.

Counsel for Bodycorp said that he wished to cross-examine Mr Rapke 'in relation to document and retention policies and their reason for destroying the files ... on 30 June 2010'.

113 As is plain, it was being submitted to the primary judge that, despite what was contained in the second Obst affidavit, Holding Redlich either had not destroyed its files (the reference to perjury) or, if it had, it had done so to subvert the administration of justice (it had destroyed its own file deliberately to frustrate proceedings that might be brought against it which, given the existence of other proceedings it had reason to anticipate).

114 The primary judge considered this submission in [25]-[26] of the reasons. He described the contentions that had been made as having 'bordered on the fanciful'. He said that it 'seemed a most improbable scenario that solicitors, apprehending that a client might sue them, would destroy their own file when they could reasonably expect the client to have retained its own records of advices from or documents drawn by those solicitors'.[76]

115 In our opinion, the primary judge did not err in 'making a finding' that Holding Redlich could reasonably have expected [Bodycorp] to have retained its own records of advices from or documents drawn by [Holding Redlich]'. Rather, he was explaining why he considered the submission of Bodycorp that Holding Redlich might have destroyed its file to subvert possible legal proceedings against it as 'bordering on the fanciful': the judge had rejected as improbable the hypothesis being advanced by counsel for Bodycorp by asking rhetorically what would be achieved by a solicitor destroying its file when it can reasonably be anticipated that the client would itself have retained records of the advices that it received.[77]

116 Bodycorp also contended that the primary judge erred in making a finding that it was not until the morning of the hearing that Bodycorp gave notice of its objection to the use of the Obst affidavits.

117 At the hearing of the present application, the parties agreed that notice had been given a week or so earlier. By letter dated 29 March 2017, Bodycorp's solicitors notified Obst Legal that it would object to the second affidavit filed by Mr Obst and that it would seek leave to cross-examine Mr Rapke. That letter is extracted at [23] above.

118 However, that letter was not placed in evidence before the primary judge. Nor did Bodycorp refer to the letter in its written outline of submissions filed on the morning of 10 April 2017, when it gave notice that it would object to hearsay evidence and seek to examine Mr Rapke.[78] There is some difficulty with characterising the primary judge's statement as erroneous, given that he was not seized of the letter in the first place. However, as explained above, in the light of the basis upon which he decided the application to have Mr Rapke attend for cross-examination, any error was of no consequence and did not vitiate the primary judge's decision.

119 We would refuse leave to appeal on the third proposed ground.

1. The fourth and fifth proposed grounds of appeal: disposition of the summary judgment application

120 Before the primary judge, Holding Redlich advanced its summary judgment application on three grounds. The ground upon which it succeeded was that Bodycorp's claims are statute barred by reason of s 5 of the Limitation of Actions Act. Holding Redlich contended that Bodycorp's cause of action had accrued by no later than 29 June 2000. The AAMI Agreement was signed on 29 June 1998 and the restraint clause was operative for a period of two years. Holding Redlich argued that, by 29 June 2000, the franchisees had left Bodycorp's franchise network and AAMI had not complied with the restraint clause. Bodycorp had been aware that AAMI contended that the restraint clause was void and unenforceable since at least 21 October 2003 when AAMI filed a defence in the proceeding which Bodycorp had brought against it.

121 Bodycorp relied upon Wardley Australia Ltd v Western Australia[79] and argued that its loss and damage was not suffered until Elliott J held, in his judgment in 2013, that the restraint clause was unenforceable. Bodycorp argued that, until that time, its loss remained contingent only.

122 The primary judge granted the summary judgment application on the basis that Holding Redlich's limitation defence must succeed. He found that Bodycorp suffered loss and damage when AAMI ignored the restraint clause, thereby damaging Bodycorp's business. This occurred between June 1998 and June 2000.

Outline of submissions on the fourth and fifth proposed grounds of appeal

123 The submissions made on behalf of Bodycorp in relation to the fourth proposed ground of appeal were substantially a repetition of the submissions made to the primary judge in relation to the operation of the limitation period. Particular reliance was placed upon the High Court's decision in Wardley, the High Court's decision in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd,[80] and other authorities concerning what might be characterised as claims where the loss sought to be recovered was, or was said to be, subject to contingencies, particularly a decision of the Full Court of this Court in 1985 in Van Win Pty Ltd v Eleventh Mirontron Pty Ltd.[81]

124 In relation to the fifth proposed ground, the primary judge had relied upon this Court's statement of the applicable principles in relation to applications for summary judgment set out in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[82] Before us, Bodycorp referred to and relied upon this Court's decision in D'Aquino v Trovatello.[83] It was submitted that the primary judge had not acted with the caution required by the authorities, most recently in D'Aquino, when deciding a summary judgment application on a limitation point.

125 In relation to the fourth proposed ground, Holding Redlich contended that the primary judge's conclusion was correct for the reasons which he gave. Holding Redlich also relied upon the decision in Wardley, the High Court decision in Murphy v Overton Investments Pty Ltd[84] and a decision of the New South Wales Court of Appeal in Winnote Pty Ltd (in liq) v Page.[85]

126 In relation to the fifth proposed ground, Holding Redlich submitted that, whilst caution must be exercised before summarily determining a limitation point, summary determination is appropriate where there are no relevant issues of fact which require resolution and where there is nothing to suggest that any further evidence could materially affect the date upon which the cause of action accrued. Holding Redlich also relied upon this Court's decision in D'Aquino.

Legal principles with respect to the fifth proposed ground of appeal

127 The general principles which apply in relation to an application for summary determination under s 63 of the Civil Procedure Act are those set out in Lysaght. The primary judge accurately summarised them as follows:

(a) the test for summary judgment is whether the respondent to the application has a 'real' as opposed to a 'fanciful' chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' put forward in General Steel Industries Inc v Commissioner for Railways (NSW);[86]

(c) it should be understood, however, that the test is, to some degree, a more liberal test than the 'hopeless' or 'bound to fail' test put forward in General Steel; and

(d) the power of summary dismissal is to be exercised with caution unless it is clear that there is no real question to be tried (that is, a question which realistically might result in the respondent to an application for summary judgment succeeding in the proceeding).[87]

128 In Wardley, Mason CJ, Dawson, Gaudron and McHugh JJ emphasised that it was undesirable for limitation questions to be decided in interlocutory proceedings 'except in the clearest of cases'.[88] They observed that, generally speaking, insufficient is known of the damage sustained and of the circumstances in which it was sustained to justify a confident resolution of the issue on a summary application.[89]

129 In D'Aquino, McLeish JA, with whom Warren CJ and Ashley JA agreed, addressed these observations in Wardley in the context of s 63 of the Civil Procedure Act and what this Court had said in Lysaght. McLeish JA said:

As the judgments in Lysaght make clear, these observations were made in the context of a different and less liberal test than that for which s 63 provides. Moreover, the High Court has more recently deprecated the paraphrasing of statutory formulations defining powers of summary dismissal in an endeavour to provide an explanation of their operation or a definition of their content. It may therefore be that the admonition of the Court in Wardley regarding the determination of limitation questions only 'in the clearest of cases' may not be applicable, in terms, to decisions under s 63. However, in my opinion it remains the case that, in interlocutory proceedings, insufficient is often known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify coming to the conclusion that the claims of the plaintiff have no real prospect of success by reason of limitation of actions defences.[90]

130 In the end, there was little difference between the parties on the applicable approach. Holding Redlich accepted that a summary determination of the limitation defence could appropriately be made only where there was no relevant issue of fact which required resolution, and nothing to suggest that there is any prospect further evidence could materially alter the analysis.

Fourth proposed ground of appeal - Legal principles with respect to the limitation defence

131 A cause of action in negligence accrues when the plaintiff first suffers damage caused by the defendant's breach of duty.[91] In Australia, there is no overriding qualification to this requirement based upon when the claimant discovers the damage, or could with reasonable diligence have discovered the damage.[92]

132 Before turning to the particular limitation issues raised here, it is necessary to refer to an important matter dealt with by Gaudron J in Hawkins v Clayton. In the context of considering the existence of a duty of care to avoid pure economic loss, Gaudron J said that it would almost always be necessary to identify the interest of the claimant which is said to have been infringed.[93] She then went on to say, in the context of considering when damage is sustained:

Economic loss ... imports loss sustained by a juristic entity in relation to the assets or liabilities of that entity. The various and complex economic relationships which are a feature of present day economic organization suggest that loss may manifest itself in various forms, and it is for this reason that there may be occasions when it is necessary to identify precisely the interest which has been infringed.[94]

133 The claim here is for pure economic loss. The particular limitation issue raised concerns the position where the economic damage is, or is said to be, suffered upon the occurrence of a contingency. An identical limitation issue can arise in both negligence claims and in claims for misleading and deceptive conduct, although the respective periods of limitation are different. Authorities on both causes of action are relevant.

134 The seminal Australian authority on the issue is the High Court decision in Wardley.

135 In brief summary, the facts in Wardley were as follows.

136 On 26 October 1987, the State of Western Australia provided an indemnity to a bank covering any net loss which the bank might suffer as a result of providing a particular facility to a customer. The State alleged that it entered into the indemnity relying upon statements made by Wardley Australia Limited which were misleading and deceptive.

137 The customer repaid the relevant advance on 17 October 1988, but the repayment was later recovered from the bank as a preference. Between November 1988 and May 1989, the bank claimed under the indemnity. The State initially disputed liability. The matter was eventually settled. The State made a payment on 30 May 1989 of $33 million to the provisional liquidators of the customer and received a payment on 8 December 1989 of $10.5 million from the bank. The loss which the State sought to recover from Wardley was the sum of $22.5 million, being the difference between those two sums.

138 The relevant claim was introduced by an amendment to an existing statement of claim on 14 January 1991.[95] The cause of action introduced by the amendment was outside the time limit prescribed by s 82(2) of the Trade Practices Act 1974 (Cth) unless it accrued after 14 January 1988. Wardley contended that the claim was statute barred because the cause of action accrued as soon as the obligation constituted by the indemnity was undertaken, being on 26 October 1987.

139 A judge in the Federal Court struck out the amendment on the basis that it pleaded a cause of action which had accrued outside the time limit prescribed by s 82(2) of the Trade Practices Act. The Full Court of the Federal Court allowed an appeal by the State. Wardley appealed to the High Court.

140 In a joint judgment, Mason CJ, Dawson, Gaudron and McHugh JJ described the obligation undertaken in the indemnity as 'contingent and executory'.[96] They said that there was no actual or present liability when the indemnity was executed, no matter how great the likelihood of it being called upon.[97] They referred to what Gaudron J had said in Hawkins v Clayton in relation to identification of the precise interest infringed, and said that the indemnity in this case might have been detrimental, but that that could not be ascertained until relevant events had 'unfolded'.[98]

141 The plurality referred to English authorities in which it had been held that, where a plaintiff is induced by negligent misrepresentation to enter into a contract which yields property or contractual rights of lesser value than those it ought to have received, the plaintiff first suffers financial loss on entry into the contract, notwithstanding that the full extent of the loss may be incapable of ascertainment until some later time.[99] The English cases referred to were: Melton v Walker & Stanger;[100] Baker v Ollard & Bentley;[101] D W Moore & Co Ltd v Ferrier;[102] Islander Trucking Ltd (in liq) v Hogg Robinson & Gardner Mountain (Marine) Ltd[103] and Bell v Peter Browne & Co.[104] The plurality did not accept that the English authorities stood for any such unqualified proposition, but they held that, to the extent that they did, they did not agree. The plurality said:

In our opinion, in such a case, the plaintiff sustains no actual damage until the contingency is fulfilled and the loss becomes actual; until that happens the loss is prospective and may never be incurred.[105]

142 The plurality were fortified in their conclusion by the fact that they considered it to be unjust and unreasonable to expect a plaintiff to commence proceedings before events have transpired whereby it has become clear that there is a loss.[106]

143 It was unnecessary for the plurality to identify the precise time when the cause of action accrued because all of the potentially relevant accrual dates after execution of the indemnity were within the three-year period.

144 Brennan J said that, in a situation where the question of whether loss or damage is actually suffered depends upon a transaction involving both potential benefit and detriment, it cannot be said that a loss has been suffered until events occur which mean that an 'adverse balance' has been struck.[107] Each case requires analysis of the particular circumstances.[108] Brennan J recognised that a loss could be suffered upon entry into an agreement if loss was inevitable regardless of extrinsic circumstances, but that otherwise, if loss depends on extrinsic circumstances, the loss will not be suffered until those circumstances have transpired. Such a case requires an analysis of the particular circumstances.[109] As to the particular case, Brennan J concluded that the State did not suffer any relevant loss until its liability to the bank 'crystallised'. He said that that was either when the bank demanded payment or when the agreement was reached imposing on the State liability to pay the $33 million.[110]

145 Deane J observed that the authorities do not give a simple answer to the question of when loss is incurred in relation to a contingent liability.[111] He said that each case required an analysis of the particular facts, and the answer may vary according to the facts of the particular case.[112] On the facts before him, Deane J considered that the loss arose as a result of a combination of circumstances occurring after the indemnity had been entered into.[113] He recognised that there could be circumstances where a loss might be suffered immediately upon undertaking a contingent liability.[114]

146 Toohey J asked rhetorically: what was the situation on 26 October 1987? He answered saying that, on that day, the bank could make no claim. He outlined the circumstances which had led to the bank's capacity to make a claim, including the facts that: (a) remedies against the customer had been exhausted; (b) the customer had gone into liquidation; (c) the preferential payment had been recovered; and (d) there had then been a dispute and a settlement.[115] He observed that it was a mistake to become 'too enmeshed' in decisions concerning other fact situations.[116]

a first step must be to look at what is alleged in the statement of claim: what does the plaintiff plead as misleading or deceptive conduct and as reliance on that conduct; and what loss or damage does the plaintiff allege it suffered by reason of that conduct?[117]

148 Toohey J referred to the fact that the loss that the State claimed was $22.5 million. He said that that loss 'was not and could not' have been incurred at the time when the indemnity was given.[118]

149 Toohey J said that the English approach to the contrary should not be followed.[119]

The High Court decisions in Murphy, HTW Valuers and Cornwell

150 The relevant issue came before the High Court again in Murphy, and the Court considered a related issue shortly thereafter in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd[120] and Commonwealth of Australia v Cornwell.[121]

151 In Murphy, the plaintiffs had entered into a lease, as tenants, relying upon a statement which was alleged to be misleading and deceptive in relation to outgoings. The statement had been an estimate of the outgoings payable by the tenants. The statement was misleading and deceptive because, while it accurately reflected the outgoings which were then being charged by the landlord, it concealed the fact that the landlord could, under the terms of the lease, charge considerably more. The plaintiffs had entered into the lease relying upon the misleading and deceptive statements. An issue arose as to whether they had issued proceedings within the three years prescribed.

152 The High Court held, following Wardley, that loss was not suffered when the lease was entered into because the adverse risk embodied in the lease (being the landlord changing its policy and charging for outgoings in accordance with the terms of the lease rather than prior practice) might never have eventuated. The Court held that it was only from the time when the landlord in fact decided to depart from its prior policy and commence charging for outgoings as provided for by the lease that the adverse risk eventuated and the loss and damage was sustained.[122]

153 HTW Valuers concerned a claim by an applicant who had bought a shopping centre relying upon what was said to have been misleading advice as to the effect of a competing shopping centre which was under construction nearby. The issue in that case was how the loss was to be calculated.

154 The High Court held that the loss was suffered upon acquisition of the shopping centre because the market value of what was acquired was less than the price paid. The Court explained that this case was not like Wardley where a contracting party had been exposed to a risk of loss which depended on various contingencies. Further, it was held to be unlike Murphy where the loss had not been inevitable and might never have come to pass.[123]

155 In Cornwell, the respondent, Mr Cornwell, retired on 31 December 1994 and was paid superannuation based on combined membership of two Commonwealth superannuation funds (the 1976 Fund and the 1990 Fund).

156 In 1999, Mr Cornwell commenced proceedings against the Commonwealth alleging that it was vicariously liable for negligent advice given to him by his superior in 1965 to the effect that Mr Cornwell was not entitled to join a Commonwealth superannuation fund established in 1922 (the 1922 Fund). In fact, Mr Cornwell had been eligible to join the 1922 Fund from 8 May 1965 if certain steps had been taken, which would have been taken if correct advice had been given. Mr Cornwell claimed that he had relied upon the negligent advice and, as a result, had received a lesser retirement benefit in 1994 than he would have received had he joined the 1922 Fund.

157 At first instance, and on appeal to the Court of Appeal of the Australian Capital Territory, it was held that the negligence claim was not statute barred under s 11 of the Limitation Act 1985 (ACT), which prescribed a six-year limitation period. The primary issue before the High Court was whether that conclusion was correct.

158 The Commonwealth argued that Mr Cornwell's cause of action accrued either in July 1976 when, as a result of legislative changes, the 1976 Fund was introduced and it became impossible for Mr Cornwell to join the 1922 Fund, or in March 1987 when he first joined the 1976 Fund.

159 The High Court dismissed the appeal. Callinan J dissented.

160 Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ adopted the observations of Gaudron J in Hawkins v Clayton about the importance of identifying the 'economic interest' said to be infringed.[124] The majority found that Mr Cornwell's economic interest was an 'entitlement' conferred by legislation to a retirement benefit.[125]

161 The majority rejected the Commonwealth's arguments as to the limitation period and accepted the submission of Mr Cornwell that the loss had not been suffered until his retirement. In reaching that conclusion, the majority relied upon a detailed analysis of the legislative schemes of the relevant funds which prescribed the entitlements to benefits.[126] Until his retirement, the various entitlements were, in the majority's view, 'prospective and contingent upon the falling in at a future time of the statutory criteria'.[127]

162 The majority observed that Mr Cornwell had 'correctly' emphasised that his case was 'not a "transaction case" where property was sold or acquired at a disadvantageous price, or the opportunity was lost of the lucrative exploitation of contractual rights or of some other commercial opportunity.'[128]

163 Winnote is a decision of the New South Wales Court of Appeal upon which Holding Redlich particularly relied. As a consequence of negligence by solicitors in 1988, the plaintiff had acquired an ordinary lease of a property upon which it proposed to conduct a mining business. It should have sought and acquired a mining licence. In 1992, when seeking to sell the mining business, the error was discovered. In 1993, a mining licence was granted to another person and the plaintiff's interest became, or was revealed to be, worthless.

164 Mason P, with whom Tobias JA agreed, held that the claim was statute barred because what had been acquired in 1988 was 'damaged goods'. It was an agreement giving rights which were significantly less valuable than those which would have been obtained absent the negligence. Further, they held that loss had been suffered also by way of costs in relation to the lease and amounts paid under it from 1988 onwards.[129]

165 Basten JA disagreed with Mason P and Tobias JA on the limitation issue. He considered that their analysis represented the English approach which is not the law in Australia.[130] He said that a mining licence could have been obtained at any time up until 1993. In his opinion, it was arguable that there was no loss by reason of the solicitors' negligence as a result of the failure to obtain that mining licence until it became impossible to obtain it.[131] As to the expenditure incurred from 1988 onwards, Basten JA said that that expenditure would have been incurred had the plaintiff obtained a mining licence and that, accordingly, no financial loss was suffered at that time.[132]

166 In Van Win, an authority upon which Bodycorp particularly relied, the situation was as follows. The proprietor of a building sued the responsible municipal council claiming damages for negligence in issuing a building permit. The council in turn issued a third party notice against an engineer alleging failure to exercise skill and diligence in certifying to the council that the proposed building was structurally adequate. The damage claimed by the council was 'all and any damages recovered' by the proprietor against it, plus its costs.

167 Kaye J, with whom Gray and Phillips JJ agreed, said:

The damage pleaded and particularized by the [council] is financial loss, which it will incur by its liability to satisfy any judgment for damages recovered against it by [the proprietor] and the costs of defending the counterclaim. Thus the damage alleged being in futuro, the pleading does not disclose any material injury suffered or harm occasioned to [the council's] interests. At its highest, the claim made by the [council] is for inchoate damage which might subsequently be suffered by it. Consequently, damage being the gist of an action in tort to recover damages, the [council's] cause of action against [the engineer] has not yet arisen.[133]

168 The decision in Van Win was followed by O'Loughlin J in the Federal Court in St George Bank Ltd v MJK Pty Ltd[134] in relation to a pleaded claim in relevantly the same terms. It was distinguished by the New South Wales Court of Appeal in Wardman v Hatfield.[135] The decision in Wardman warrants specific attention.

169 Wardman concerned a claim arising out of alleged negligence by solicitors in advising a party to a partnership dispute. There were two doctors in partnership. They fell out and the partnership was dissolved. The two doctors had each guaranteed obligations under a lease. Acting on the advice of the solicitors, the outgoing partner executed a deed which gave him an indemnity in relation to the guaranteed obligations. The remaining partner defaulted on the lease in 1991. The landlord took proceedings and eventually obtained judgment against both guarantors in 1996. By then, the remaining partner was insolvent and the indemnity under the deed was valueless. The outgoing partner commenced proceedings against his solicitors in 2002.

170 The solicitors argued that time began to run either on entry into the deed (1986); or on the landlord's first demand (1989); or on the landlord's second demand and the tenant's clear default (1991); or on the institution of proceedings by the landlord (1991). The plaintiff argued that the cause of action accrued when the landlord obtained judgment against him in 1999.

171 The New South Wales Court of Appeal observed that the key authority was Wardley. They distinguished the decision in Van Win and St George. Tobias JA, with whom Meagher JA and Foster AJA agreed, held that this case was different to Van Win and St George because here the claimant's liability as a guarantor undoubtedly 'crystallised' on the tenant's default in 1991, and the guarantor sustained actual loss then, even if that loss was incapable of quantification until later.[136]

172 Einstein J in the Supreme Court of New South Wales also distinguished Van Win and St George in Tranquility Pools & Spas Pty Ltd v Huntsman Chemical Co Australia Pty Ltd.[137] The claim in that case concerned a defective product supplied to the claimant which had then used that defective product in building pools for its customers. The relevant issue was whether the claimant could recover for loss allegedly sustained in relation to potential claims by customers who had not at that stage taken proceedings. Einstein J held that there was a critical difference between the case before him and Van Win and St George, that difference being that in those cases the claims in issue were controversial, whereas in this case the claimant had accepted liability to all its customers.[138] Einstein J held that a cause of action had accrued and that the liability had 'crystallised' notwithstanding that the extent of the liability was yet to be determined.[139]

173 Issa v Issa[140] is a decision of White J in the Supreme Court of New South Wales upon which Bodycorp relied. Issa concerned a negligence claim against solicitors in relation to a deed of settlement of earlier proceedings. The particular provision of the deed which was relevant provided for a payment to be made to a named party at the direction of another party. The solicitors argued that loss had been suffered, and the cause of action accrued, as soon as the deed was executed. Relying upon Wardley, and also Van Win, White J held that it was arguable that (a) no loss was suffered until (a) the direction was given; (b) the party entitled to the payment made a claim; and (c) the client was 'found liable' to meet the claim.[141]

174 The New South Wales Court of Appeal has considered the issue very recently in Dougall v Melville.[142] The plaintiff in that case had had a workers' compensation claim. The claim was settled in May 2007 on the advice of solicitors and a barrister. The terms of settlement which were entered into affected any future claims in relation to a knee injury. In November 2007, the plaintiff had surgery on his knee and was thereafter unable to work. In 2011, the plaintiff sought advice from different solicitors and brought a second workers' compensation claim. That claim was settled in July 2014, allegedly on unfavourable terms due to the terms of the first settlement. In September 2014, the plaintiff issued proceedings against his initial lawyers alleging negligence in relation to the first settlement. The lawyers unsuccessfully sought summary dismissal of the claim from a judge in the District Court on the basis that it was statute barred. The lawyers appealed to the Court of Appeal.

175 The lawyers argued that the cause of action accrued either when the first settlement deed was executed or, at the very latest, at the time of the plaintiff's surgery in 2007. The plaintiff argued that no loss had been sustained until all of the various 'statutory contingencies' upon which the second workers' compensation claim was based had been satisfied.

176 McColl JA, with whom Payne JA and Davies J agreed, held that the cause of action had accrued in 2007 and that the claim was accordingly statute barred. She referred to the need to identify the interest infringed and the nature of the infringement, as described by Gaudron J in Hawkins v Clayton.[143] She rejected the suggestion that loss was suffered when the first settlement was entered into.[144] She held, however, that the cause of action accrued once the impact of the first settlement and the loss of the ability to recover for the knee injury became known or apparent. This was when the plaintiff underwent the knee operation and when, on his pleaded case, he became totally incapacitated.[145]

177 The High Court decision in Hunt & Hunt was relied upon by Bodycorp. It did not concern limitation periods. Rather, it concerned issues of contribution in relation to concurrent wrongdoers under the Civil Liability Act 2002 (NSW). In that context, however, the High Court was required to analyse the nature and character of the loss or damage.

178 In Hunt & Hunt, a financier had lent money on a loan which had been procured by fraudsters. The financiers' solicitors had been negligent in failing to include in a mortgage securing the loan a covenant to pay. In the particular circumstances, this had meant that the financiers had been unable to recover the money lent. The issue was whether the solicitors were concurrent wrongdoers with the fraudsters. The High Court was divided. French CJ, Hayne and Kiefel JJ found that they were. Bell and Gageler JJ found that they were not. The difference turned on the determination of whether the 'damage' suffered as a result of the fraudsters on the one hand, and the solicitors' negligence on the other, was the same.

179 French CJ, Hayne and Kiefel JJ held that the damage was the same because the loss and damage was the inability to recover the money which had been advanced.[146] They adopted the analysis of Gaudron J in Hawkins v Clayton concerning the need to identify the economic interest infringed.[147] They also considered Wardley to be applicable, finding that no loss was suffered upon execution of the mortgage and that loss was suffered only when recovery could be said to have become impossible.[148]

180 Bell and Gageler JJ characterised the relevant issue as being the determination of how it was that the financier was 'worse off'.[149] They concluded that the harm suffered by the financier was the absence of protection and the lack of security.[150] The fraudsters did not cause the lack of security, and accordingly the loss suffered as a result of the negligence of the solicitors was different to that suffered as a result of the conduct of the fraudsters.[151]

181 It seems to us that the High Court has set out the principles which are applicable here and that the other authorities relied upon should properly be seen as particular applications of those principles. The principles are:

1. The cause of action accrues when damage is first suffered, regardless of whether the damage is then discovered or discoverable: Hawkins v Clayton.
2. Where a detriment is suffered as a result of entering into an agreement:

(a) loss and damage may be suffered immediately in some circumstances, such as where an asset is acquired at a price above its true value: HTW Valuers;

(b) however, if the detriment is exposure to a loss which will only be suffered if events transpire in a particular way, loss and damage will not be suffered until those events do so occur: Wardley, Murphy.

1. In determining when loss and damage is suffered it is necessary to:

(a) analyse the facts of the particular case: Wardley;

(b) identify the economic interest of the claimant which allegedly has been infringed: Hawkins v Clayton, Wardley; and

(c) have regard to the pleaded loss and damage claimed: Wardley.

182 The first step in an analysis of the application of these principles to Bodycorp's claim is an analysis of the pleaded claim, particularly its loss and damage claim, and an identification of the precise interest infringed by the alleged negligent act or omission.

183 It is necessary to begin by analysing the loss and damage claim originally made by Bodycorp against AAMI. Bodycorp alleged against AAMI that: (a) it had failed to revoke the 'Recommended Repairer' status of franchisees who had left the Bodycorp franchise network; (b) it had not required them to remove their 'Recommended Repairer' signs; and (c) it had continued to recognise them as 'Recommended Repairers' and to request them to prepare quotes for the repair of damaged cars. It was alleged that, as a result, Bodycorp had suffered loss and damage. The loss and damage allegedly suffered was the following:

Had the AAMI agreement been performed such that the recommended repairer agreement with each former franchisee was terminated promptly following the termination of the franchise agreement, Bodycorp would have been able to enter into a new franchise agreement with a new franchisee to service the area serviced by the former franchisee. Bodycorp's losses resulting from its inability to do so are commensurate with its losses resulting from the wrongful termination of the respective franchise agreements, as particularised in Schedule C.

As to the Berwick franchise, the loss is estimated at $370,020.[152]

184 The reference to Schedule C was a reference to the loss and damage claimed as a consequence of alleged intentional inducement to breach of contract which, it was alleged, had resulted in specified franchisees leaving the Bodycorp franchise network. It was alleged that Bodycorp thereby lost management fees and certain other benefits. Schedule C set out the specified franchisees and the loss suffered in relation to each one.

185 When Bodycorp issued proceedings against Holding Redlich in July 2016, the loss and damage which it claimed as a consequence of Holding Redlich's alleged negligence was exactly the same.[153]

186 By an amended statement of claim dated 12 September 2016, the loss and damage claimed as a result of Holding Redlich's negligence was significantly altered. The loss and damage then claimed was, relevantly, as follows:

(a) But for the defendant's negligence, the plaintiff would have sued AAMI to enforce its agreement with AAMI and would have recovered damages equal to the loss and damage it suffered by reason of AAMI's breaches of the AAMI Agreement ... [reference is made to other paragraphs of the amended statement of claim and to a schedule]

(b) Instead, by reason of the defendant's negligence, the plaintiff's proceedings against AAMI were unsuccessful ... [reference is made to other paragraphs] As a consequence:

(i) In the proceedings, the Honourable Justice Elliott ordered that the plaintiff pay the costs of, inter alia, AAMI, including any reserved costs, which costs were subsequently taxed and paid by the plaintiff in the Court pursuant to Court Orders in the sum of $350,000.00.

(ii) In the proceedings, the plaintiff incurred solicitor and own client costs exceeding $4 million. But for the defendant's negligence, the plaintiff would have succeeded in the proceedings, and as costs follow the event, the plaintiff estimates that it would have been able to recover not less than 70% of those costs from AAMI.

(c) But for the defendant's negligence, the plaintiff would have sued each of the franchisees ... [reference is made to other paragraphs] to enforce the renegotiated franchise agreements and would have recovered damages equal to the loss and damage it suffered by reason of those breaches of the renegotiated franchise agreements. That loss and damage is estimated as the sum equal to a further six months' commission in respect of each franchisee ... [A table of the franchisees and the amounts claimed is set out]

(d) The plaintiff also claims the legal fees which it paid to the defendant in respect of its negligent and wholly worthless advice, in a sum not less than $198,000.

(e) Further particulars will be provided prior to trial.

187 The loss and damage referred to in sub-para (a) was the same loss and damage as had been claimed against AAMI, although now characterised as a loss of the ability to recover damages from AAMI rather than the loss of the franchisee fee income. The franchisees referred to in sub-para (c) are the same franchisees which were the subject of the claim as originally formulated, with one addition (Tottenham).

The primary judge's analysis of the interest infringed and Bodycorp's criticism of that analysis

188 The primary judge reviewed Bodycorp's business model. He said part of that model was to impose trading restraints which would give Bodycorp a six-month 'window of opportunity' should a franchisee leave the network. During this 'window', the trade restraints would operate so as to ensure that a new franchisee would not have to compete with another repairer which was an AAMI recommended repairer.[154] Upon the assumption that valid restraints 'could' have been drafted, the primary judge then asked what was the interest of Bodycorp that was infringed by the failure to do so. He said:

In my view, the answer to that question is clear. Bodycorp's interest was its interest in preserving the income-stream from franchises in its various territories. The imposition of a legally enforceable restraint of trade clause was designed to enable Bodycorp to protect its business operation and value. With an enforceable restraint it could do that by preventing AAMI, by injunction if necessary, from giving recommended repairer status to ex-franchisees for six months after the franchise terminated. The moment AAMI offered repair work to ex-franchisees within that six month period, and Bodycorp was powerless to prevent it, Bodycorp sustained loss to its business.

From 1998 onwards AAMI acted as if the restraint of trade clause was unenforceable. There is no evidence that Bodycorp ever sought to restrain AAMI by injunction. Had it done so in 1998, or soon thereafter, it might have discovered then that the clause was unenforceable. But 'discovery' is not the issue here. At law, the clause was unenforceable in 1998 as it was so held in 2013. In focus here is the question of when Bodycorp's right, intended to be protected by the legal services provided by Holding Redlich, had been infringed. In my view it was infringed when AAMI ignored the restraint, Bodycorp was legally powerless to enforce it and its business suffered accordingly. That occurred between June 1998 and June 2000.[155]

189 Accordingly, the primary judge concluded that Bodycorp suffered loss and damage, and its cause of action accrued, by the end of June 2000 at the latest.[156] Thus, as its proceeding was not instituted until 2016, Bodycorp was outside the six-year limitation period.

190 Bodycorp submits that the primary judge's analysis is incorrect. It submits that the interest infringed was the 'inability to recover damages for the breach of the AAMI agreement'. In that respect, it submits that the situation is the same as in Hunt & Hunt where the financier suffered loss upon its inability to recover the amounts lent. Bodycorp contends that the primary judge mischaracterised the interest of Bodycorp which was infringed and wrongly treated the interest which was infringed by AAMI and that infringed by Holding Redlich as being identical. Bodycorp contends that it did not suffer loss and damage until it failed in the proceeding against AAMI, or that was at least arguably so as had been the case in Issa. Bodycorp said that it could not have sued Holding Redlich before a Court determination of the restraint's unenforceability because its loss was then 'in futuro', as in Van Win.

Analysis of the fourth and fifth proposed grounds of appeal

191 This is not a case where evidence at trial has the potential to affect the analysis. The issue is when did Bodycorp first suffer loss and damage. This requires an analysis of the particular interest allegedly infringed by the negligence, assuming Bodycorp establishes the facts that it alleges. The dates of the relevant events are clear and will not change.

192 Bodycorp's purpose in seeking the trade restraint was to create a position where it would have at least six months in which to replace an outgoing franchisee without that new franchisee having to compete with another AAMI 'Recommended Repairer' during that time.[157] In our opinion, the primary judge's analysis of the economic interest of Bodycorp which was infringed by the alleged negligence was correct. The interest was to preserve its income-stream from franchisees. That interest was infringed, and damage was suffered by Bodycorp, when franchisees left in 1998 and AAMI did not comply with the restraint clause between 1998 and 2000.

193 To characterise Bodycorp's interest in obtaining the trade restraint as being the acquisition of a capacity to sue AAMI, and to recover damages should it contravene the restraint clause, is artificial and contrived, in our view. That was not Bodycorp's economic interest which was infringed.

194 Bodycorp has an arguable case that its cause of action did not accrue when it entered into the AAMI agreement with the restraint clause later found to have been unreasonable and unenforceable. But, when the franchisees began leaving, the circumstance to which the restraint clause was designed to respond occurred. When AAMI refused to comply with the restraint clause, and then asserted that it was unreasonable and unenforceable, Bodycorp's relevant interest was infringed, and Bodycorp suffered loss and damage. The contingencies which would turn potential detriment into actual loss had occurred.

195 We are mindful of the admonition by Toohey J in Wardley not to become 'enmeshed' in the facts of other cases. In deference, however, to the submissions made by both Bodycorp and Holding Redlich which sought to find analogies in the other cases, it seems to us that Bodycorp's position once the franchisees began leaving, and once AAMI refused to comply with the restraint clause, was relevantly analogous to:

• the position in Wardley when the bank demanded payment and the State reached a settlement requiring it to pay;
• the position in Wardman when the remaining tenant defaulted and the landlord demanded payment from the guarantors;
• the position in Murphy when the landlord changed its policy on outgoings; and
• the position in Dougall when the plaintiff had the knee operation and became permanently disabled.

196 Bodycorp's inability to recover damages from AAMI is not, in our view, analogous to the inability of the plaintiff in Hunt & Hunt to recover the loan. The negligently prepared contract in Hunt & Hunt was directed at recovery of the loan. The restraint clause in the AAMI Agreement was directed at requiring AAMI to take specified actions, which it failed to take between 1998 and 2000.

197 The decision of the Full Court of this Court in Van Win has been distinguished often and is probably best understood by reference to the particular way in which the claim in that case was pleaded. It was expressly pleaded as a claim for damages 'in futuro'. At all events, we are bound to apply the principles which have been set out by the High Court in the decisions to which we have referred.

Conclusion on the fourth and fifth proposed grounds of appeal

198 The fourth proposed ground was arguable, and Bodycorp should be granted leave to appeal on that ground. For the reasons given, however, the appeal must be dismissed.

199 The primary judge applied the correct principles on the summary judgment application, and leave to appeal should be refused on the fifth proposed ground.

Applications for the matter to be heard by interstate judges and for recusal

200 Before concluding it is necessary to address two issue which arose at the outset of the hearing about the composition of the Court.

201 The first issue concerns an application, which counsel for Bodycorp said that he was instructed to make at the outset of the hearing of the present application for leave to appeal, that steps be taken so that the application for leave to appeal be heard and determined by judges from interstate and not by any judges of appeal in this Court. The basis of the application was that the current President of the Court of Appeal, when at the Bar, had acted for and advised Bodycorp during the period 2002-2005. The submission made was that if the limitation argument succeeded in circumstances where it was determined, or it was open to be determined, that Bodycorp should have sued Holding Redlich prior to the time when the President ceased advising and acting for Bodycorp in 2005 'that would give rise to further investigations or even an allegation that perhaps Mr Maxwell QC was negligent in advising my client'.[158]

202 When it was put to counsel for Bodycorp that any such issue of negligence by Bodycorp's legal advisors between 2002 and 2005 could not arise in the course of the application before us, counsel submitted that, if Bodycorp fails because the primary judge's conclusion on the limitation point is upheld, 'the consequences would be that my client would consider his rights'.[159]

203 The Court determined not to accede to the application. The asserted relevance of the President's involvement in the affairs of Bodycorp was vague and insubstantial. The determination of the application before us did not involve the consideration of any aspect of the President's advice or other conduct. The application was without merit.

204 The second issue concerns an application for recusal that was made after each of the members of this Court disclosed a personal association with Mr Crutchfield. Each member of the Court refused to recuse himself for reasons given orally and which appear in the transcript.[160]

205 In the result, we would grant leave to appeal on the second and fourth proposed grounds of appeal. However, the appeals must be dismissed. We would refuse leave to appeal on each of the other proposed grounds.

[1] Bodycorp Repairers Pty Ltd v Maisano (No 8) [2013] VSC 472.

[2] Bodycorp Repairers Pty Ltd v AAMI [2015] VSCA 73. The High Court refused special leave: see Bodycorp Repairers Pty Ltd v AAMI [2016] HCASL 24.

[4] Bodycorp Repairers Pty Ltd v Maisano (No 11) [2016] VSC 645.

[5] Bodycorp Repairers Pty Ltd v Maisano [2017] VSCA 252.

[6] It will be noticed that the summons makes no reference to the substance of the matters mentioned in the letter dated 29 March 2017.

[7] Rule 101 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 relevantly provides: 'A barrister must refuse to accept or retain a brief or instructions to appear before a court if: (a) the barrister has information which is confidential to any other person in the case other than the prospective client, and: (i) the information may, as a real possibility, be material to the prospective client's case, and (ii) the person entitled to the confidentiality has not consented to the barrister using the information as the barrister thinks fit in the case ... (d) the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case ... (f) the barrister has reasonable grounds to believe that the barrister's own personal or professional conduct may be attacked in the case ... (m) the barrister has already discussed in any detail (even on an informal basis) with another party with an adverse interest in the matter the facts out of which the matter arises ...'

[8] Bodycorp cited Sent v John Fairfax Publication Pty Ltd [2002] VSC 429; Kitson v Michael [2016] FCCA 3308; and Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152.

[9] Bodycorp submissions in support of the present application for leave to appeal include the following: '[The primary judge] held that [Holding Redlich's] junior counsel and solicitor who had not been a party to the conversation in which the confidential information was provided to [Holding Redlich's] senior counsel, should not be restrained in the hearing of the summary judgment application because [Holding Redlich's] solicitor should be believed in his affidavit at face value, that he had no knowledge of the confidential information without cross examination (even though the [Bodycorp] had sought leave to cross examine him) (emphasis added).' Notwithstanding the submission, the primary judge did not find that there was a conversation 'in which confidential information was provided to [Holding Redlich's] senior counsel'. As Holding Redlich's senior counsel had withdrawn, no such finding was necessary.

[10] It will be noticed that Mr Murdaca had deposed that he heard Mr Richter and Mr Crutchfield discussing the fraud proceeding. As at 30 September 2016, that was the only proceeding in respect of which there was an application for summary judgment. The present application for summary judgment was made on 5 December 2016.

[11] Counsel referred to Kitson v Michael [2016] FCCA 3308.

[12] Presumably this is a reference to what was being contended were the confidential communications between Mr Richter and Mr Crutchfield.

[13] The logic of this argument needs to be appreciated. Counsel is contending that, because junior counsel for Holding Redlich has chosen not to swear an affidavit, the Court should presume that he is privy to confidential information of Bodycorp and has chosen to disguise it from the Court.

[14] See [28] above.

[15] Rule 22.21 provides: Cross-examination on affidavit (1) The Court may order any party or the maker of any affidavit - (a) to attend and be examined and cross-examined; or (b) to produce any documents, or copies of or extracts from those documents. (2) Where a party is a corporation, the Court may make an order under paragraph (1) in respect of any director, manager, secretary or other similar officer of the corporation or any person purporting to act in any such capacity.

[16] [2017] VSC 215 ('Reasons').

[17] The italicised text in the extracted passages of the reasons represents those parts of the reasons which have been identified in the proposed grounds of appeal as giving rise to an apprehension of bias. The only exception is Reasons [12], to which Bodycorp did not explicitly refer, but which it mistakenly described as Reasons [11].

[18] Apparently Bodycorp tried, unsuccessfully, to file the summons on the previous business day.

[19] [2000] HCA 63; (2000) 205 CLR 337 ('Ebner').

[20] When the first proposed ground of appeal is examined, it seems to relate solely to the application which was heard and determined on 10 April 2017. Reasons were published on 27 April 2017.

[21] Presumably this is a reference to Mr Murdaca, whose affidavit constituted the evidence upon which Bodycorp in support of its application to restrain Holding Redlich's legal practitioners.

[22] [2011] VSCA 425; (2011) 34 VR 236, 256 [76] ('AJH Lawyers').

[23] Ebner [2000] HCA 63; (2000) 205 CLR 337, 344-5 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (citations omitted). See also Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, 437 [31] (Gummow ACJ, Hayne, Crennan and Bell JJ) ('Michael Wilson), citing Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 ('Livesey'); Johnson v Johnson (2000) 201 CLR 488 ('Johnson'); Smits v Roach (2006) 227 CLR 423; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 ('Concrete'); British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283.

[24] Ebner [2000] HCA 63; (2000) 205 CLR 337, 345 [8]. The logical connection is one between the conduct of the judge and the feared prejudgment of the question that the judge is required to decide. See AJH Lawyers [2011] VSCA 425; (2011) 34 VR 236, 242 [20] (Warren CJ, Hansen JA and Almond AJA), citing Concrete [2006] HCA 55; (2006) 229 CLR 577, 609-10 [110]-[111] (Kirby and Crennan JJ).

[25] [2015] HCA 20; (2015) 255 CLR 135.

[26] Ibid 155-6 [59] (citations omitted).

[27] (2001) 205 CLR 507.

[29] Michael Wilson [2011] HCA 48; (2011) 244 CLR 427, 445 [63]. See also Barakat v Goritsas (No 2) [2012] NSWCA 36 [12] (Basten JA).

[30] AJH Lawyers [2011] VSCA 425; (2011) 34 VR 236, 242 [21], quoting Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J) ('JRL').

[31] Ebner [2000] HCA 63; (2000) 205 CLR 337, 345 [7].

[32] AJH Lawyers [2011] VSCA 425; (2011) 34 VR 236, 242 [20], quoting Ebner [2000] HCA 63; (2000) 205 CLR 337, 345 [7].

[33] AJH Lawyers [2011] VSCA 425; (2011) 34 VR 236, 242 [19], quoting Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51, 60 [34] (Kirby J) ('Antoun').

[34] Ebner [2000] HCA 63; (2000) 205 CLR 337, 348 [19].

[35] Livesey [1983] HCA 17; (1983) 151 CLR 288, 293-4 (Mason, Murphy, Brennan, Deane and Dawson JJ); JRL [1986] HCA 39; (1986) 161 CLR 342, 355 (Mason J), 359 (Wilson J), 368 (Brennan J), 371-2 (Dawson J); Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87-8 (Mason and Brennan JJ), 95 (Deane J).

[36] Johnson (2000) 201 CLR 488, 493 [12] (Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ).

[38] AJH Lawyers [2011] VSCA 425; (2011) 34 VR 236, 243 [23].

[39] Concrete [2006] HCA 55; (2006) 229 CLR 577, 635 [177] (Callinan J).

[40] Johnson (2000) 201 CLR 488, 493 [13].

[42] Concrete [2006] HCA 55; (2006) 229 CLR 577, 610 [112] (Kirby and Crennan JJ).

[43] Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125, 134, citing Singh v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, Lockhart J, 18 October 1996); Jia v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 78, 104-5.

[44] Michael v State of Western Australia [2007] WASCA 100 [64], quoting Galea v Galea (1990) 19 NSWLR 263, 283 (Meagher JA).

[45] Barakat v Goritsas (No 2) [2012] NSWCA 36 [13].

[46] [2012] NSWCA 36.

[48] AJH Lawyers [2011] VSCA 425; (2011) 34 VR 236, 243 [25], citing Antoun [2006] HCA 2; (2006) 224 ALR 51, 52 [2], 57 [21]-[23] (Gleeson CJ), 58-9 [28], 59 [30], 63 [48] (Kirby J), 64 [53], 65 [56] (Hayne J), 77 [83], 77-8 [86]-[87] (Callinan J).

[49] Antoun [2006] HCA 2; (2006) 224 ALR 51, 57 [22] (Gleeson CJ).

[50] Ibid 52 [2], 57 [21]-[23] (Gleeson CJ), 58-9 [28], 59 [30], 63 [48] (Kirby J), 64 [53], 65 [56] (Hayne J), 77 [83], 77-8 [86]-[87] (Callinan J).

[51] AJH Lawyers [2011] VSCA 425; (2011) 34 VR 236, 241 [18].

[52] Ibid, citing Concrete [2006] HCA 55; (2006) 229 CLR 577, 581 [2] (Gummow ACJ), 611 [117] (Kirby and Crennan JJ); Antoun [2006] HCA 2; (2006) 224 ALR 51, 52 [2]-[3] (Gleeson CJ).

[54] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ) ('House').

[55] See [92] above.

[63] Indeed, the primary judge added: 'Acceding to the late application to have Mr Rapke attend and be cross-examined was likely to produce that very result.'

[65] See generally Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J); Barton v Estate Agents Licensing Authority [1998] 1 VR 164; R v Windridge; ex parte Pacific Coal Pty Ltd [1992] 2 Qd R 180, 191 (Thomas J, with whom Demack and Mackenzie JJ agreed).

[66] International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319, 381 [146] (Heydon J).

[67] Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304, 314-5 (Weinberg J). This case concerned the judicial review of an executive decision. The rules of natural justice embody principles developed at common law to ensure the fairness of the decision-making process of courts and administrators, among other decision-makers, alike.

[68] Ibid 314, citing Kuczynski v The Queen (1994) 72 A Crim R 568, 576 (Franklyn J), 591 (Owen J).

[69] See Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [37]-[38] (Gleeson CJ). See also Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151 [101] (McColl JA, with whom Beazley ACJ and Macfarlan JA agreed).

[70] Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 [29] (Basten JA, with whom Giles JA and Young CJ in Eq relevantly agreed).

[71] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane and Dawson JJ).

[72] Urban Transport Authority NSW v Nweiser (1992) 28 NSWLR 471, 474-5 (Clarke JA, with whom Mahoney and Meagher JJA agreed).

[73] See [14]-[16] above.

[74] Cf Planet Build (NSW) Pty Ltd v Lassgol Pty Ltd [2001] NSWCA 40 [24] (Priestley JA, with whom Meagher JA agreed).

[75] In its proposed grounds of appeal, Bodycorp has referred to Reasons [26].

[77] In Reasons [26], the primary judge gives other reasons for rejecting the hypothesis of the destruction of documents to frustrate the administration of justice.

[78] See [30] above.

[79] [1992] HCA 55; (1992) 175 CLR 514 ('Wardley').

[80] [2013] HCA 10; (2013) 247 CLR 613 ('Hunt & Hunt').

[81] [1986] VicRp 49; [1986] VR 484 ('Van Win').

[82] [2013] VSCA 158; (2013) 42 VR 27 ('Lysaght').

[83] [2015] VSCA 78; (2015) 47 VR 31 ('D'Aquino').

[84] [2004] HCA 3; (2004) 216 CLR 388 ('Murphy').

[85] [2006] NSWCA 287; (2006) 68 NSWLR 531 ('Winnote').

[86] [1964] HCA 69; (1964) 112 CLR 125 ('General Steel').

[87] Reasons [32], setting out Lysaght [2013] VSCA 158; (2013) 42 VR 27, 40 [35].

[88] Wardley [1992] HCA 55; (1992) 175 CLR 514, 533.

[90] D'Aquino [2015] VSCA 78; (2015) 47 VR 31, 42 [49] (citations omitted).

[91] Hawkins v Clayton (1988) 164 CLR 539, 561 (Brennan J), 587-8 (Deane J with whom Mason CJ and Wilson J relevantly agreed), 599 (Gaudron J).

[92] As Deane J explained in Wardley [1992] HCA 55; (1992) 175 CLR 514, 540, this was implicitly or explicitly accepted in all of the judgments in Hawkins v Clayton (1988) 164 CLR 539, 561-2 (Brennan J), 599-602 (Gaudron J), 587-8 (Deane J).

[93] Hawkins v Clayton (1988) 164 CLR 539, 601.

[95] The claim did not 'relate back' to the issue date.

[96] Wardley [1992] HCA 55; (1992) 175 CLR 514, 524.

[102] [1988] 1 All ER 400.

[103] [1990] 1 All ER 826.

[104] [1990] 2 QB 495.

[105] Wardley [1992] HCA 55; (1992) 175 CLR 514, 532.

[120] [2004] HCA 54; (2004) 217 CLR 640 ('HTW Valuers').

[121] (2007) 229 CLR 519 ('Cornwell')

[122] Murphy [2004] HCA 3; (2004) 216 CLR 388, 410 [55].

[123] HTW Valuers [2004] HCA 54; (2004) 217 CLR 640, 654-5 [28]-[30].

[124] Cornwell (2007) 229 CLR 519, 525 [16].

[128] Ibid 531 [38] (citations omitted).

[129] Winnote [2006] NSWCA 287; (2006) 68 NSWLR 531, 542 [60]-[61].

[133] Van Win [1986] VicRp 49; [1986] VR 484, 489-90.

[134] [1999] FCA 1752 ('St George').

[135] [2003] NSWCA 283 ('Wardman').

[137] [2011] NSWSC 75.

[140] [2015] NSWSC 112 ('Issa').

[142] [2017] NSWCA 309 ('Dougall').

[146] Hunt & Hunt [2013] HCA 10; (2013) 247 CLR 613, 623-4 [9].

[152] Amended Statement of Claim, 18 September 2003 [35] and Schedule E.

[153] Statement of Claim, 20 July 2016 [37] and Schedule B.

[157] There may also have been a collateral advantage to Bodycorp in that loss of 'Recommended Repairer' status might be seen as a reason not to leave the franchise in the first place.

[158] Transcript of Proceedings (20 October 2017) 6.3-6.6