Burge v Commonwealth Bank of Australia

The Relevant Principles (Summary Dismissal) 93 Section 31A provides as follows: 31A Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 94 In Spencer v Commonwealth of Australia (2010) 241 CLR 118, the High Court considered the meaning and effect of s 31A. The following principles may be gleaned from that decision: (a) Section 31A authorises summary disposition on a variety of bases (at 131 [22] per French CJ and Gummow J). At [22], their Honours also said: … It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories. (b) The power to order summary dismissal pursuant to s 31A is different from the power to strike out defective pleadings pursuant to O 11 r 16 of the Federal Court Rules (now r 16.21 FCR) (at 131 [23] per French CJ and Gummow J); (c) The power to terminate proceedings summarily should be exercised with caution (at 131-132 [24] per French CJ and Gummow J). At 131-132 [24], their Honours also said: The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130 per Barwick CJ) or on the basis that the action is frivolous or vexatious or an abuse of process (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J). The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said ((1983) 154 CLR 87 at 99. See also Webster v Lampard (1993) 177 CLR 598 at 602-603 per Mason CJ, Deane and Dawson JJ): "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried." More recently, in Batistatos v Roads and Traffic Authority (NSW) ((2006) 226 CLR 256 at 275 [46]) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde ((2000) 201 CLR 552 at 575-576 [57]) which included the following: "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ), but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A (In A v Essex County Council [2010] 3 WLR 509, the criterion of "real prospect of success" was variously equated to whether the plaintiff "could succeed at a trial", whether there was a "triable issue" and whether there was the "least doubt": at [44] per Lord Clarke of Stone-cum-Ebony JSC; at 541 [119] per Baroness Hale of Richmond JSC; at 544 [133] per Lord Brown of Eaton-under-Heywood JSC; at 552 [163] per Lord Kerr of Tonaghmore JSC). That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions. (d) There must be a high degree of certainty that the applicant/plaintiff cannot succeed if the proceeding is allowed to go to trial in the ordinary way (Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 275 [46] per Gleeson CJ, Gummow, Hayne and Crennan JJ). (e) At 132 [25]-[26], French CJ and Gummow J also said: Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant (see above at [21]). The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact. (f) Section 31A requires that there be "no reasonable prospect of success". This is a different concept from the concept of "no real prospect of success" (per Hayne, Crennan, Kiefel and Bell JJ at 138-139 [50]-[51]); (g) The statutory admonition is that a proceeding may be found to have no reasonable prospect of successful prosecution even if it is not hopeless or bound to fail (per Hayne, Crennan, Kiefel and Bell JJ at 139 [52]). At 139 [52]-[53], their Honours went on to say: … it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail. In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners ((1949) 78 CLR 62) and General Steel Industries Inc v Commissioner for Railways (NSW) ((1964) 112 CLR 125). (h) Section 31A requires a different inquiry to be undertaken from that undertaken under earlier different regimes (per Hayne, Crennan, Kiefel and Bell JJ at 140 [56]); (i) The expression "no reasonable prospect" should be understood in the manner explained by Hayne, Crennan, Kiefel and Bell JJ in Spencer as follows (at 141 [58]-[60]): How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes (Weiss v The Queen (2005) 224 CLR 300 at 312-318 [31]-[47]), as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. 95 I intend to apply the above principles to the determination of the present application. 96 Rule 26.01 FCR is in the following terms: 26.01 Summary judgment (1) A party may apply to the Court for an order that judgment be given against another party because: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or (b) the proceeding is frivolous or vexatious; or (c) no reasonable cause of action is disclosed; or (d) the proceeding is an abuse of the process of the Court; or (e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding. (2) The application must be accompanied by an affidavit stating: (a) the grounds of the application; and (b) the facts and circumstances relied on to support those grounds. (3) The application and the accompanying affidavit must be served on the party against whom the order is sought at least 14 days before the hearing of the application. (4) If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order. (5) If an order is made under subrule (1) giving judgment for the applicant against the respondent for the whole or part of the applicant's claim, a respondent who has a cross‑claim against the applicant or some other party may: (a) continue to prosecute the cross-claim against the applicant or other party; and (b) apply to the Court for an order staying execution on or enforcement of the judgment until the respondent's cross-claim is determined. Note: See also section 31A of the Act. 97 Here, both the CBA and FOS rely upon subrules (a)-(d) of r 26.01(1).

The Parties' Arguments 98 Senior Counsel for the CBA submitted that the 22 June 2015 Orders and the 20 April 2016 judgment in the Supreme Court of Tasmania are valid and binding until set aside on appeal or varied or stayed in accordance with recognised principles (New South Wales v Kable (2013) 252 CLR 118 at 132-134 [28]-[36]; and at 140-141 [54]-[57]). 99 He then submitted that whatever basis the applicant had to resist the orders for possession of the Abbott Street property and the Elphin Road property was merged in the 22 June 2015 Orders. For the same reason, any and all rights which the applicant had to seek to set aside either or both the credit contracts and to claim damages or compensation in respect of the CBA's conduct in relation to her at the time when each of the loans was made merged in the 7 March Deed and the 20 April 2016 judgment. 100 Counsel for FOS submitted that decisions of FOS are not susceptible to judicial review (see Mickovski v Financial Ombudsman Service Ltd (2012) 36 VR 456 (Mickovski) at 466-467 [32]-[33]). He argued that the power of FOS over its members is derived solely from contract and that it does not exercise any public functions. FOS does not exercise a public duty or a function involving a public element when its jurisdiction is consensually invoked by the parties to a complaint. FOS is not the Commonwealth nor is it an officer of the Commonwealth. It is a public company limited by guarantee. 101 It was then put on behalf of FOS that, because the only relief sought by the applicant against FOS is a writ of mandamus (par 9 of the Originating Application), the applicant's case against FOS is bound to fail and should be summarily dismissed. 102 It was also contended on behalf of FOS that, in the circumstances of the present case, on 19 September 2014 (at the latest), the applicant accepted the Final Determination and subsequently took the benefit of it. 103 FOS argued that the Final Determination constituted a new charter of rights and obligations as between the applicant and the CBA and that there has been a merger of the applicant's extant rights in the 22 June 2015 Orders and the 20 April 2016 judgment. 104 According to FOS, the matters referred to in [102] and [103] above provide additional reasons for summarily dismissing the applicant's claim against FOS. 105 The applicant's Written Submission filed in opposition to the summary dismissal applications (Outline dated 9 December 2016) was very brief. In that Outline, it was submitted on behalf of the applicant that she had an arguable case for relief which should be permitted to go to trial. It was submitted that claims along the lines of her claims that the two loan products made available to her were not suitable were not only arguable but had succeeded in other cases. 106 Counsel for the applicant made oral submissions in which he endeavoured to meet the contentions of the CBA and FOS with more detailed arguments than he had made in his written Outline. 107 Counsel for the applicant made the following oral submissions: (a) Upon the true construction of the 7 March Deed, the applicant did not release the damages or compensation claims which she now makes in this Court. In addition, the Deed did not constitute an accord and satisfaction but was only a conditional accord. For the 20 April 2016 judgment to be truly a consent judgment, the applicant had to take the further step after 7 March 2016 of providing her consent and she never did so. Also, there was an implied term in the 7 March Deed requiring the CBA to co-operate with the applicant to assist her to secure refinancing which term was breached. One of the consequences of that breach is that the CBA is prevented from relying upon the 7 March Deed. (b) All the applicant has to show in order to defeat the summary dismissal applications is more than a fanciful prospect of success in respect of her claims. She can do so. (c) Ultimately, the outcome of the applicant's case depends upon the testimony of the applicant and that of the CBA's witnesses, in respect of which there is likely to be a contest. The applicant alleges that she was misled, and deliberately so, as to the suitability for her purposes of the loan products made available to her. (d) There are likely to be contested questions of fact in respect of the applicant's case that the CBA breached its duties as mortgagee in possession in respect of the Abbott Street property and the Elphin Road property. (e) There will be contested questions of fact in relation to the applicant's contention that the CBA was guilty of unconscionable conduct towards her when it assessed her as capable of repaying her debts to the CBA without resorting to the forced sale of her properties. (f) The CBA misled FOS by telling it that the first loan was a refinancing when it was not.

Decision 108 The starting point of my consideration of the present applications is the Final Determination which was delivered on 13 August 2014 and subsequently corrected on 30 September 2014. 109 By the applicant's complaint to FOS, FOS was required to adjudicate upon the applicant's allegations of maladministration made against the CBA and the propriety of its conduct as mortgagee in possession of the Reuben Court property. At the heart of the applicant's maladministration allegations was the assertion that the CBA had engaged in asset lending and had not made a proper assessment of the applicant's capacity to service the loans by paying appropriate regard to the true income of the applicant and Mr Foggo. It was because the CBA should not have been satisfied that the applicant and Mr Foggo could service the loans that it would have been misleading for the CBA to have represented to the applicant (as she claims it did) that either loan was suitable for the applicant's purposes. 110 FOS performed the function which the parties asked it to perform. Its Determination resulted in a very favourable outcome for the applicant. 111 The facts which I have set out at [35]-[38] above justify a conclusion that the applicant accepted the Final Determination fully appreciating the consequences of doing so. The problem may be analysed as follows: (a) The applicant entered the FOS process voluntarily and submitted her grievances with the CBA to adjudication by FOS upon the terms contained in the FOS Terms of Reference operative at the time. In this way, she made a tripartite contract with FOS and the CBA, the terms of which are found in those Terms of Reference; (b) The CBA was a participating financial institution in the FOS process in accordance with those Terms of Reference; (c) FOS delivered its Final Determination thus triggering a requirement on the part of the applicant either to accept or to reject its Determination. If the applicant accepted the Final Determination, both the applicant and the CBA would be bound by it; (d) The applicant signified her acceptance of the Final Determination by sending to FOS an unqualified acceptance on 19 September 2014. She may have accepted it earlier (on 12 September 2014) when she sent her acceptance with the words "under duress" added next to her signature but I need not resolve that question. The device or stratagem of leaving the words "under duress" on the Acceptance but masking those words before scanning and sending her signed Acceptance Form to FOS could not and did not have the effect of rendering the applicant's acceptance inoperative or of no effect. She had been told on 16 September 2014 that she could do only one of two things: Either accept the Final Determination or reject it. It was made clear to the applicant that she could not have it both ways by seeking to argue that her acceptance was not binding because it had been signed under duress while at the very same time seeking to take the benefit of the debt reduction and interest concessions provided to her under the Final Determination. Understandably, she chose to accept the Final Determination and did so when she sent the signed Acceptance Form to FOS on 19 September 2014. The fact that this was outside the 30 day period specified in cl 8.7(b) of the FOS Terms of Reference (as to which, see [119] below) is immaterial. In the circumstances, both FOS and the CBA waived the 30 day requirement and regarded the applicant's acceptance of the Final Determination as valid and effective. 112 Sections 912A(1)(g) and 912A(2)(b) of the Corporations Act require a financial services licensee to be a member of an external dispute resolution scheme approved by ASIC which covers complaints made against the licensee by retail clients in connection with the provision of those financial services under that licensee's licence. 113 FOS operated such a scheme approved by ASIC. Its relevant Terms of Reference were tendered in evidence before me by the applicant. 114 Clause 1.1 of the Terms of Reference identified the purpose of the scheme as follows: The Service is conducted by FOS and has been established as an independent forum to resolve Disputes between Applicants and Financial Services Providers. The Service is free of charge for the Applicants. The costs of the Service are met by the Financial Services Providers. 115 The term "Dispute" was defined in the Terms of Reference to mean an expression of dissatisfaction with a Financial Services Provider (see cl 20.1). The types of Dispute which FOS might hear were set out in cl 4.2. They relevantly concerned Disputes that arose from or relate to "the provision of a Financial Service by the Financial Services Provider to the Applicant". 116 Clause 8.1 of the Terms of Reference provided that FOS was not bound by any legal rule of evidence. Clause 8.2 set out how FOS would decide a Dispute and provided as follows: Subject to paragraph 8.1, when deciding a Dispute and whether a remedy should be provided in accordance with paragraph 9, FOS will do what in its opinion is fair in all the circumstances, having regard to each of the following: a) legal principles; b) applicable industry codes or guidance as to practice; c) good industry practice; and d) previous relevant decisions of FOS or a Predecessor Scheme (although FOS will not be bound by these). 117 Clause 8.5 provided for a process of deciding a dispute by Recommendation (which Recommendation a Financial Services Provider can either choose to accept or reject). Clause 8.6, however, provided as follows: Notwithstanding paragraph 8.5, FOS may proceed to a Determination by either an Ombudsman or by a FOS Panel (as FOS decides is appropriate) without a Recommendation first being made. This expedited process will be followed if FOS considers that this would be appropriate in the circumstances. If so, FOS must advise the parties of this intended course of action and must not make the Determination without first giving the parties a reasonable opportunity to make submissions and provide information about the matters in dispute. 118 When a FOS applicant complains to FOS, he or she enters into a tripartite contract with FOS and the relevant financial services provider, the terms of which are set out in the FOS Terms of Reference. 119 Clauses 8.7 and 8.8 of the FOS Terms of Reference provided: 8.7 Recommendations and determinations a) Each Recommendation and Determination: (i) must be in writing; (ii) may either reach: (A) a conclusion about the merits of the Dispute; or (B) the view that, given the procedures adopted by FOS, it would not be appropriate for FOS to reach any conclusion as to the merits of the Dispute: (iii) must set out reasons for any conclusion about the merits of a Dispute or view of the kind referred to in paragraph 8.7a)(ii)(B); (iv) must specify any remedy, determined in accordance with paragraph 9, that FOS considers fair and appropriate; and (v) must be provided to all parties to the Dispute. b) A Determination is a final decision and is binding upon the Financial Services Provider if the Applicant accepts the Determination within 30 days of receiving the Determination. 8.8 Applicant acceptance of a Recommendation or Determination In order to accept a Recommendation or a Determination, the Applicant must provide the Financial Services Provider (if the Financial Services Provider so requests) with a binding release of the Financial Services Provider from liability in respect of the matters resolved by the Recommendation or determination. The release must be for the full value of the claim the subject of the Dispute, even if this amount exceeds the amount of the remedy decided upon by FOS. The release shall be effective from the date on which the Financial Services Provider fulfils all of its obligations under the Recommendation or Determination. 120 Clause 8.9 provided that, if an applicant does not accept a Determination, the applicant is not bound by the Determination and may bring an action in the courts or take any other available action against the Financial Services Provider. In effect, if an applicant to FOS does not accept the FOS Determination, he or she will be free to pursue all rights available to him or her including all avenues of redress previously available to him or her prior to entering the FOS process. 121 The choice which confronts every applicant to FOS when FOS delivers its Determination is between accepting the Determination and replacing all of his or her rights previously available in relation to the subject matter of the Determination with the new rights and entitlements laid down in the Determination, on the one hand, and rejecting the Determination, on the other hand, thereby preserving all of those prior rights. 122 Clause 8.8 of the Terms of Reference required a FOS applicant to provide a binding release in respect of the matters resolved by the Final Determination if the Financial Services Provider so requested. The CBA did not request such a release in the present case. In the present case, the applicant signed the Acceptance Form and sent it to FOS. That was all that she was required to do in order to signify her acceptance of the Final Determination. The text set out on that form included the following: The Financial Ombudsman Service has issued a Determination dated 13 August 2014 in response to the Dispute. I accept the terms of the Determination in full and final settlement of all matters between myself and Commonwealth Bank of Australia arising out of the Dispute. 123 The word "Dispute" when used in the Acceptance Form is given content by reference to the dispute notified to FOS by the applicant (as to which, see [20], [21] and [24] above). 124 The CBA then performed all of its obligations as required under the Final Determination and the applicant accepted all of the benefits provided to her by that Determination. 125 Clause 8.7(b) of the FOS Terms of Reference provided that the Final Determination is "… a final decision and binding upon …" the Financial Services Provider if the FOS applicant accepts it within 30 days of receiving the Determination. 126 In Mickovski, at 468 [40], the Court noted that the use of the word "final" in relation to a determination made by a contractually authorised dispute resolution panel very often meant that the decision made by such a body resolving a particular dispute was not subject to appeal or review. 127 At 468 [41], the Court continued: As was stated by Isaacs and Rich JJ in Commonwealth v Limerick Steamship Co Ltd [1924) 35 CLR 69 at 88-9], the word "final" in relation to a determination derives its meaning of being "the last" from the context in which it appears. Hence, where the context is one of further examination or review by a superior court, the word imports the meaning that there is to be no appeal. Accordingly, where a statute provides that a decision is "final", it is ordinarily taken to preclude a right of appeal except in cases where the tribunal has acted without jurisdiction or otherwise such that its decision is a nullity [South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363 at 370 (PC); Hockey v Yelland (1984) 157 CLR 124 at 130 per Gibbs CJ]. Similarly, where parties agree that a determination is to be "final", they are taken to have agreed that the determination will not be subject to review unless affected by fraud or dishonesty or lack of good faith or (by analogy with jurisdictional error) unless it is otherwise apparent that the determination has not been carried out in accordance with the agreement [Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 336 per McHugh JA; Holt v Cox (1997) 23 ACSR 590 at 597 per Mason P; AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173 at [51]-[52]]. 128 In my view, upon the true construction of the FOS Terms of Reference, a FOS Determination which is accepted by the relevant FOS applicant is both final and binding upon both the FOS applicant and the Financial Services Provider. For the reasons submitted by Counsel for FOS and explained by the Victorian Court of Appeal in Mickovski at 466-467 [32]-[33], such a Determination is not susceptible to judicial review. That conclusion is sufficient to dispose of the applicant's case against FOS. It follows that the submissions made by Counsel for FOS which I have summarised at [100] and [101] above are correct and I accept them. 129 Here, the applicant chose to accept the Final Determination and thereby became bound by it as a matter of contract. Alternatively, after accepting the Final Determination, in the circumstances of this case, the applicant was prevented by an estoppel by convention from arguing that she had rights against the CBA which were different from the rights set out in the Final Determination insofar as the subject matter of that Determination was concerned. 130 In light of subsequent events, which include the making of the 22 June 2015 Orders, the entry into the 7 March Deed and the formal entry of the 20 April 2016 judgment, even if mandamus were available against FOS, the grant of such relief would be futile because all of the applicant's alleged rights have now merged in or been destroyed by those Orders, that Deed and that judgment. To the extent that there has not been a merger or destruction of those rights, the applicant is prevented by the principles explained by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 from now litigating claims which she could have, and should have, raised in the Supreme Court of Tasmania. 131 I now turn to deal with the CBA's and FOS's arguments that the judgments and orders of the Supreme Court of Tasmania have the effect of preventing the applicant from litigating any of the claims which show now seeks to advance in this Court. 132 The 22 June 2015 Orders determined the rights of the CBA to possession of both the Abbott Street property and the Elphin Road property. Chief Justice Blow, in his judgment in Burge No 3, decided that no appeal from those orders can now be brought. Accordingly, those orders remain in full force and effect and bind both the applicant and the CBA (see Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 285 and 295; and Indrisie v General Credits (1984) 5 FCR 582). 133 The 7 March Deed also creates an "insurmountable hurdle" for the applicant (to use the words of Gordon J in the High Court at p 33 ll 1537-1538 of the Transcript of the hearing in that Court held on 15 September 2016). 134 The 7 March Deed was entered into in circumstances where: (a) The Final Determination had been accepted by the applicant; (b) The CBA had taken possession of the Abbott Street property and sold it as mortgagee in possession; (c) On 10 February 2016, the applicant had failed to secure an injunction preventing the CBA from taking possession of the Elphin Road property; (d) The CBA had taken possession of the Elphin Road property and was taking steps to sell it also; and (e) The CBA was pressing in proceeding SC 532 of 2015 for a determination of a preliminary point which would have had the effect of terminating the applicant's claims for damages against the CBA. 135 The 7 March Deed is described as a "Deed of Settlement and Release". In the second paragraph, there is recorded the accepted fact that the parties have agreed "… to fully and finally settle all disputes between them on the terms of settlement …" set out in the Deed. The subject matter of that settlement is described as the applicant's "alleged liabilities to the [CBA] and "the CBA's alleged liabilities to [the applicant]". 136 Insofar as the latter phrase is concerned, the CBA's alleged liabilities to the applicant were adumbrated in her Amended Statement of Claim filed on 30 July 2015 in proceeding SC 532 of 2015 and also found in the claims which she had made in Court on 10 February 2016. 137 Upon the true construction of the 7 March Deed, the parties' obligations were: (a) The applicant immediately consented to a direction or order that judgment against her in proceeding SC 532 of 2015 and to an order for costs against her quantified at $50,000 if her remaining debt to the CBA was paid in accordance with cl 2 of the Deed but otherwise to be taxed if the cl 2 payment was not paid by the specified date (cl 1). (b) The applicant promised to pay to the CBA by 18 April 2016 the sum of $452,469.71 (which sum included the $50,000 for costs referred in in cl 1) less the net proceeds of sale of the Abbott Street property (cl 2). The cl 2 sum was a compromise figure. (c) In the event that the applicant did not pay the cl 2 amount by 18 April 2016, the provisions of cl 3 became operative. (d) The CBA promised not to take any steps before 18 April 2016 to have the judgment provided for in cl 1 formally entered (cl 4). (e) The applicant provided the release set out in cl 5. That release was to be immediately operative. It covered all of the claims now made in this Court in the Originating Application filed in this proceeding (cl 5). Although the words in the introductory part of cl 5 are general, the subject matter of the release is sufficiently specific to avoid the problems that sometimes are caused by very broad general releases, as to which see Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112. (f) Clauses 6, 7 and 8 addressed matters which were ancillary to the principal obligations under the Deed provided for in cll 1 to 5. 138 There is nothing conditional or executory about the release provided for in cl 5 of the 7 March Deed. The applicant provided that release as the price for securing a compromise of the amount of her debt payable to the CBA and as the price for being given more time to repay that debt (a period of 42 days from 7 March 2016). It constitutes an accord and satisfaction. As a consequence of its execution, whatever claims the applicant still had against the CBA were destroyed and replaced with the rights and entitlements which the 7 March Deed gave to her. 139 I do not think that any implied term of co-operation in the 7 March Deed (as explained by Mason J (as his Honour then was) in the High Court in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607) extended to obliging the CBA to co-operate with the applicant in her efforts to refinance her debt to the CBA. Refinancing is not mentioned in the 7 March Deed at all. In any event, even if the alleged implied term was a term of the 7 March Deed, there is no admissible or probative evidence in any of the applicant's affidavits or otherwise before the Court which could be regarded as evidence that the CBA breached that implied term. Notwithstanding that the applicant purported to deal with her attempts to refinance in the period following execution of the 7 March Deed, she did not address the relevant period (7 March 2016 to 18 April 2016) and did no more than make unsupported assertions of interference by the CBA in her efforts to refinance in respect of the period after 18 April 2016. 140 Nor do I think that the 7 March Deed contemplated or required that judgment could not be entered in accordance with cl 1 unless and until some further consent to the entry of such judgment was provided by the applicant to the CBA post-execution of the Deed. The 7 March Deed was intended to record, once and for all, the final settlement of all disputes between the applicant and the CBA concerning the two loan transactions in question. 141 The entry of judgment by consent in favour of the CBA against the applicant in proceeding SC 532 of 2015 gave effect to cl 1 of the 7 March Deed and was clearly contemplated by the parties to that Deed. Upon the entry of that judgment, such rights as the applicant still had to bring and maintain the claims which she had made in proceeding SC 532 of 2015 were merged in that judgment. 142 In my view, by the 7 March Deed, the applicant released the CBA from all of the claims which she now seeks to make in this proceeding. 143 The applicant suggests that she can avoid the consequences of having executed the 7 March Deed by asserting that she executed that Deed under duress or under economic duress. That claim, such as it is, has been determined against her by the judgment of Chief Justice Blow in Burge No 3. 144 I should add that, even if this last proposition is not correct, I would regard the applicant's case that she executed the 7 March Deed under duress as a case which she has no reasonable prospect of successfully prosecuting. 145 In Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, McHugh JA (as his Honour then was), with whom Samuels and Mahoney JJA agreed, said at 45D-F: Duress: Upon these facts I think that Yeldham J was correct in holding that Crescendo had not made out a case of economic duress. The rationale of the doctrine of economic duress is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate: Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 at 384 per Lord Diplock. As his Lordship pointed out, the consequence is that the "consent is treated in law as revocable unless approbated either expressly or by implication after the illegitimate pressure has ceased to operate on his mind" (at 384). In the same case Lord Scarman declared (at 400) that the authorities show that there are two elements in the realm of duress: (a) pressure amounting to compulsion of the will of the victim and (b) the illegitimacy of the pressure exerted. "There must be pressure", said Lord Scarman "the practical effect of which is compulsion or the absence of choice". The reference in Universe Tankships Inc of Monrovia v International Transport Workers Federation and other cases to compulsion "of the will" of the victim is unfortunate. They appear to have overlooked that in Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653, a case concerned with duress as a defence to a criminal proceeding, the House of Lords rejected the notion that duress is concerned with overbearing the will of the accused. The Law Lords were unanimous in coming to the conclusion, perhaps best expressed (at 695) in the speech of Lord Simon of Glaisdale "that duress is not inconsistent with act and will, the will being deflected, not destroyed". Indeed, if the true basis of duress is that the will is overborne, a contract entered into under duress should be void. Yet the accepted doctrine is that the contract is merely voidable. 146 At 46A-B, his Honour continued: The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress. 147 In Ford Motor Company of Australia Ltd v Arrowcrest Group Pty Ltd (2003) 134 FCR 522, Lander J (with whom Hill and Jacobson JJ agreed) at 543 [151] said: However, in case this matter has to be reconsidered, it would be appropriate to consider the other element of the claim where a party is relying upon a claim of economic duress. The party must not only establish that the pressure induced the party to enter into the contract but also that the pressure was not legitimate. An unlawful threat would be illegitimate. So also would pressure that amounted to unconscionable conduct: Crescendo Management Pty Ltd v Westpac Banking Corporation at 45-46. 148 Thus, if the applicant's challenge to the 7 March Deed is to be successful, she would have to persuade the Court at a trial that the pressure which was applied to her was illegitimate within the meaning of the above authorities. Taking her case at its highest (as to which see the facts which I have summarised at [64] and [65] above), the "threats" or "pressure" applied to the applicant by Senior Counsel for the CBA did not go further than what was legitimate in all of the circumstances of the case. Taking the applicant's evidence at its highest, in my view, she has no reasonable prospect of successfully prosecuting a challenge to the 7 March Deed based upon duress or economic duress. 149 The consent judgment of 20 April 2016 destroyed the claims which the applicant had made in proceeding SC 532 of 2015. If, contrary to the views which I have expressed, the claims now being advanced in this proceeding extend beyond those which were actually advanced in proceeding SC 532 of 2015, I am of the opinion that those claims which are now being advanced which were not specifically made in proceeding SC 532 of 2015 are nonetheless also destroyed by the consent judgment of 20 April 2016. That is because the factual matrix underpinning the claims presently being advanced is substantially the same as the factual matrix which underpinned the claims advanced in proceeding SC 532 of 2015 with the consequence that the only real (arguable) difference between what was pleaded in that proceeding and what is now raised in this proceeding is that, in this proceeding, new ways of looking at the facts and additional causes of action are relied upon. In my judgment, it is not open to the applicant to refashion the same essential complaints in that way when they were all disposed by the 20 April 2016 consent judgment. The Court must look at the substance of the matter. 150 In Port of Melbourne Authority v Anshun Pty Ltd at 598, Gibbs CJ, Mason and Aickin JJ approved the statement of Sir James Wigram VC in Henderson v Henderson (1843) 67 ER 313 at 319 where his Lordship said: where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. 151 All of the causes of action now relied upon were available in March 2016 and also in July 2015 when the applicant filed her Amended Statement of Claim in proceeding SC 532 of 2015. If those causes of action remained viable after the Final Determination by FOS had been made, they all properly belonged to the subject of proceeding SC 532 of 2015. The applicant should have brought forward those causes of action then and cannot do so now. 152 The 22 June 2015 Orders declared the CBA's entitlement to take possession of the Elphin Road property. It took possession of that property on 26 February 2016. It did so lawfully. CBA did not, therefore, commit a trespass when it took possession of that property and is not liable to the applicant for damages for trespass. 153 The CBA removed the applicant's personal property from the Elphin Road property in order to enable that property to be sold. It then placed most of that property into storage. The CBA was entitled to take these steps under its mortgage over the Elphin Road property. At all relevant times, the CBA was willing to transfer to the applicant control of her personal property provided she paid the storage charges. At no time did the CBA act in a way which could be construed as depriving the applicant of possession of her personal property or depriving her of the ownership of that property. The applicant has no reasonable prospect of successfully pursuing the CBA for damages for trespass to or conversion of her property.

Recusal 154 At the commencement of the hearings before me on 19 December 2016, Counsel for the applicant said the following (at Transcript p 2 ll 41-47): Your Honour, we have a preliminary application that your Honour recuse yourself today, on this ground, that at paragraph 61 and following of the earlier judgment, your Honour made observations both as to the merits of the case as to the credit of the applicant and as to critical issues relating to delay which indicate that, within the meaning of the High Court's decision in Laurie's case and in the authorities to which it refers, there's a possibility, from our point of view, that your Honour is - or may have a fixed view. If the court pleases. 155 Counsel for the applicant did not elaborate the basis upon which his client sought that I recuse myself from hearing the matters which were before the Court on 19 December 2016. 156 As I mentioned at [10] above, I refused that application. 157 At [61] in Burge No 1, I said: As the above chronology plainly indicates, the applicant should be taken to have been well aware at all times since about late 2015 that the CBA was taking steps to place itself in a position where it could sell the Elphin Road property. No doubt that is why she made the application which she made on 28 January 2016 and no doubt that is why she sought more time to bring her loan arrangements into order as reflected in the Deed of 7 March 2016. 158 Paragraph 61 in that judgment was in that part of the judgment where I addressed the balance of convenience and justice in respect of the applicant's application for an interlocutory injunction restraining the sale of the Elphin Road property. In particular, [61] was one of a series of paragraphs in which I addressed the question of delay on the part of the applicant in bringing her application for injunctive relief and her failure adequately to explain that delay. In that part of my judgment in Burge No 1, I did not comment at all on what Counsel has described as "the merits of the case". Further, at no stage did I make any credit findings in respect of the applicant in Burge No 1. 159 However, at [55], I also said: It seems to me that when one considers the history of the matter and the way in which the applicant has formulated the serious question to be tried, she has very weak prospects indeed of successfully having the mortgage over the Elphin Road property set aside or declared void. 160 The observation which I made at [55] followed upon the analysis which I had undertaken at [47]-[54]. 161 A judge should not sit to hear a case if, in all the circumstances, a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question which he or she is required to decide (Johnson v Johnson (2000) 201 CLR 488 at 492-493 [11]-[12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294 per Mason, Murphy, Brennan, Deane and Dawson JJ; and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6]-[8] per Gleeson CJ, McHugh, Gummow and Hayne JJ). 162 The test for apprehension of bias involves a consideration of possibilities, not probabilities, although the possibilities must be real and not remote (Ebner at 345 [7]; Cadbury Schweppes Pty Ltd v Darrel-Lea Chocolate Shops Pty Ltd (No 2) (2009) 174 FCR 175 at 199 [71] per Greenwood J and at 211-212 [121] per Besanko J). 163 The application of the test requires two things. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits (Ebner at 345 [8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 445 [63] per Gummow ACJ, Hayne, Crennan and Bell JJ; Cadbury Schweppes Pty Ltd v Darrel-Lea Chocolate Shops Pty Ltd (No 2) 199 [71] per Greenwood J and at 211-212 [121] per Besanko J). 164 The reasonable or fair-minded observer is not taken to have a knowledge of the law nor should there be attributed to her or him an awareness of the judicial process that ordinary experience suggests not to be the case (Vakauta v Kelly (1989) 167 CLR 568 at 585 per Toohey J). The reasonable hypothetical observer understands that a judge is professional but is not presumed to reject the possibility of pre-judgment. Were it otherwise, apprehension of bias would never arise in the case of the professional judge (British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at 333 [144] per Heydon, Kiefel and Bell JJ). 165 The lay observer is not informed by a detailed knowledge of the law nor is he or she invested with "undue knowledge and sophistication" or "highly specialised knowledge" (Johnson v Johnson at 502-503 [42] and 506 [49] per Kirby J; and Cadbury Schweppes Pty Ltd v Darrel-Lea Chocolate Shops Pty Ltd (No 2) at 200-201 [74] per Greenwood J). Nevertheless, the fictitious bystander is not "wholly uninformed and uninstructed about the law in general or the issues to be decided" (Johnson v Johnson at 508-509 [53] per Kirby J). The hypothetical observer is assumed to know the issues to be decided and the circumstances in which they came to be decided. 166 Exceptions to the apprehension of bias rule include necessity, waiver and special circumstances (British American Tobacco Australia Services Ltd v Laurie at 333 [146]). 167 The pre-judgment principle is one basis upon which a reasonable apprehension of bias may be found to exist. If a fair-minded person reasonably apprehends or suspects that the Tribunal has pre-judged the case, that observer cannot have confidence in the decision (Re Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263). This notion is based upon the fundamental principle that justice must be seen to be done as well as be done. 168 The relevant test is whether a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of pre-judgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view (Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [25] per Kenny, Tracey and Middleton JJ). Reasonable apprehension of bias by reason of pre-judgment must be firmly established (Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J). A conclusion of reasonable apprehension of bias is not to be drawn lightly (Vakauta v Kelly at 584-585). 169 The applicant submitted that one instance in which a fair-minded observer might entertain a reasonable apprehension of bias by reason of pre-judgment is if the judge hearing the matter has previously expressed clear views about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact (Livesey v New South Wales Bar Association at 300). 170 There is nothing in [61] and the succeeding paragraphs in Burge No 1 which might lead a reasonable observer to conclude that I might not bring to my decision in respect of the summary dismissal applications made by the CBA and FOS an impartial mind. Nor, in my view, was there anything in [55] which might have that effect. In addition, the only aspect of the claims made by the applicant in the present proceeding which was considered by me in Burge No 1 was whether the applicant had a prima facie case to have the Elphin Road mortgage set aside. I did not consider any of the other claims made by the applicant in this proceeding. 171 In this Court, the applicant was represented by the same Counsel at all times from 21 September 2016 to 19 December 2016. The matter which was specified as the basis for the applicant's recusal application is contained in the ex tempore Reasons for Judgment which I delivered on 22 September 2016. The applicant must be taken to have been well aware of the views which I had expressed in that judgment at all times from 22 September 2016 to 19 December 2016. Yet, no application that I recuse myself from any hearings in the matter was made until the morning of 19 December 2016, immediately before the commencement of the hearing of the summary dismissal applications. The applicant should have made her recusal application soon after 22 September 2016. She did not do so. Instead, she sat by and allowed me to continue to case manage this proceeding and to fix the hearing of the first and third respondents' summary dismissal applications before me on 19 December 2016. By that conduct, she waived any right which she had to object to my hearing those applications. In any event, had I acceded to the applicant's recusal application, the summary dismissal applications would have had to have been adjourned and reallocated to another judge, resulting in a significant delay in the disposition of this matter. 172 The applicant should have made her recusal application soon after 22 September 2016 and long before 19 December 2016. The CBA and FOS were entitled to have their applications dealt with promptly. Even if I had thought that there was any substance in the applicant's application that I recuse myself, I would not have acceded to that application because, in my judgment, by the time that that application was made, it was necessary that I hear the summary dismissal applications given that the only alternative was to adjourn those applications and reallocate them to another judge.

Conclusions 173 I am satisfied that the applicant has no reasonable prospect of successfully prosecuting any of the claims which she makes in this proceeding and that it should be summarily dismissed pursuant to s 31A(2) of the FCA Act. A second source of power to dismiss the proceeding on the same ground is r 26.01(1)(a) FCR. 174 In addition, the repeated attempts by the applicant to litigate or relitigate matters which have already been resolved either by agreement or by orders of the Supreme Court of Tasmania or by judgment in that Court constitutes an abuse of process. This proceeding should also be dismissed on that ground (as to which, see r 26.01(1)(d) FCR). 175 Accordingly, I propose to summarily dismiss the whole of this proceeding as against both the CBA and FOS. 176 The applicant should pay the costs of both of those parties. 177 There will be orders accordingly. I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.