Plaintiff v Defendants

1 The plaintiff in this proceeding, Bodycorp Repairers Pty Ltd ('Bodycorp'), seeks an order setting aside the judgment of Elliott J given on 4 September 2013 in proceeding S CI 2005 09071 ('the original proceeding') and related relief.

2 By summons filed 23 August 2016, the second and eighth defendants (together 'the Oakley Thompson defendants') seek summary dismissal of the claims made against them in the present proceeding pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015, s 63 of the Civil Procedure Act 2010 and/or the Court's inherent jurisdiction. Alternatively, they seek an order that Bodycorp's amended statement of claim dated 9 August 2016 be struck out pursuant to r 23.02 of the Rules.

3 By summons filed the same date, the fourth and fifth defendants (together 'the AAMI defendants') seek summary dismissal of the claims made against them.

4 By a summons filed the same date, the sixth and seventh defendants sought similar relief. However, Bodycorp discontinued the proceeding against those defendants by a notice of discontinuance filed 16 September 2016.

5 By summons filed the same date, the third defendant also sought similar relief but the proceeding against that defendant was discontinued on the oral application of Bodycorp on 29 September 2016. By summons filed 5 October 2016, Bodycorp has sought, among other things, leave to re-join the third defendant. On 6 October 2016, this summons was adjourned by Hargrave J to a date to be fixed.

6 The events, which are the subject of the original proceeding, date back to about the mid 1990s. Bodycorp originally filed an application and a statement of claim in the Federal Court of Australia on 10 December 2002. The proceeding 'proceeded at a leisurely pace'[1] and was transferred to the Supreme Court of Victoria on 14 October 2005.[2]

7 The original proceeding then underwent a protracted interlocutory history before the trial proceeded before Elliott J over 15 days in May 2013.

8 At the trial of the original proceeding, Bodycorp contended as follows:

(a) The first defendant in this proceeding, Anunziato Enzo Maisano, breached a franchise agreement with Bodycorp by terminating the agreement and had also induced other franchisees to breach their franchise agreements with Bodycorp.[3]

(b) The fourth defendant in this proceeding, AAMI, and its employee, the fifth defendant, Barry Martin, similarly induced other franchisees to breach their franchise agreements with Bodycorp; and AAMI also breached a written agreement between the parties and further owed Bodycorp the sum of $1,445,335 for work and labour done.[4]

(c) The sixth defendant in this proceeding, Allstate Insurance (a subsidiary of AAMI), breached an alleged agreement with Bodycorp by ceasing to provide work to Bodycorp's franchisees.[5]

(d) The proprietors of the Melton franchise (including the seventh defendant in this proceeding, Scott Munro) similarly induced other franchisees to breach their franchise agreements with Bodycorp, but this claim was abandoned on the first day of trial.[6]

9 The second defendant in this proceeding, Oakley Thompson & Co Pty Ltd ('Oakley Thompson') acted as the solicitors for Maisano in the original proceeding and the eighth defendant, Jeremy Broadbent, is an employee of Oakley Thompson, who assisted in the conduct of the matter on behalf of Maisano.

10 The third defendant in this proceeding, Peter Cawthorn QC, was senior counsel for the AAMI defendants and Allstate Insurance in the original proceeding.

11 On 4 September 2013, Elliott J dismissed Bodycorp's claims against all defendants in the original proceeding for reasons that I will refer to below.

12 Bodycorp's appeal against the dismissal of the claims in the original proceeding by Elliott J was heard by the Court of Appeal on 22 April 2015. On 28 April 2015, the appeal was dismissed.[7]

13 On 20 May 2016, Bodycorp filed the writ in the present proceeding principally seeking an order standing aside the judgment of Elliott J given on 4 September 2013.

14 The applications for summary dismissal originally came on for hearing before me on 29 September 2016. An application was made on behalf of Bodycorp that I recuse myself from hearing those applications. I refused the recusal application for the reasons given ex tempore.[8] Senior counsel for Bodycorp then applied for an order to discontinue Bodycorp's claim against the third defendant, which was unopposed. The order for discontinuance was made and counsel for the third defendant was excused from further attendance. I then commenced to hear the applications for summary dismissal. The affidavit material established that a number of the documents, which Bodycorp had pleaded were not available to it during the trial, had in fact been discovered and in some cases referred to in the Trial Reasons of Elliott J. Senior counsel for Bodycorp conceded that 'from the affidavits filed that some of the matters listed in [Bodycorp's] statement of claim don't stand up'.[9] Accordingly, I offered counsel for Bodycorp an opportunity to identify the relevant matters on which Bodycorp would be relying as being fresh facts.

15 After the luncheon adjournment on that day, I was informed by senior counsel for Bodycorp that Bodycorp had withdrawn instructions from him and junior counsel. On the application of the solicitor for Bodycorp, I adjourned the hearing of the application to 7 October 2016.

16 AAMI is a motor vehicle insurer and, by 1995, it established a panel of motor vehicle panel beaters which were known as 'Recommended Repairers'. Recommended Repairers would usually get the opportunity to quote for AAMI.

17 In mid 1995, Bodycorp proposed to AAMI that it would establish a franchise system under which Bodycorp, which had 16 existing franchisee panel shops, would forge a strategic alliance with AAMI. As part of the proposed venture, all of Bodycorp's franchisees would become Recommended Repairers. In the course of discussions between Bodycorp and AAMI, some of the Bodycorp franchisees, who previously were not Recommended Repairers, were placed on AAMI's panel of Recommended Repairers. AAMI entered into a standard form agreement with each of its Recommended Repairers, including the Bodycorp franchisees.

18 By an agreement executed on 29 June 1998 ('the AAMI agreement'), Bodycorp and AAMI recorded the terms of their agreement. The recitals to the terms of the agreement included:

1. By a letter dated 10 November 1997 Bodycorp alleged that in about 1995 AAMI and Bodycorp entered an agreement that authorised or alternatively AAMI represented that Bodycorp was authorised, to appoint repairers as AAMI Recommended Repairers.
2. AAMI denies that it entered any agreement or alternatively made the representation to Bodycorp to the effect alleged.

Clause 1.3 of the agreement also required AAMI to terminate a former Bodycorp franchisee's Recommended Repairer status, on ceasing to be a Bodycorp franchisee. This clause would subsequently be found by Elliott J to be unenforceable as an unreasonable restraint of trade.[10]

19 Bodycorp alleged that, in mid 1998, Maisano and AAMI and its employee, Martin, made statements inducing Bodycorp franchisees to terminate their franchise agreements with Bodycorp in breach of contract. On 8 July 1998, Maisano terminated his franchise agreement for his Moorabbin repair business. Elliott J would find that Maisano was entitled to do so because of Bodycorp's threatened establishment of competing businesses within the territory of his franchise agreement.[11]

20 Elliott J found that by July 1998 'the relationship between Bodycorp and AAMI was less than satisfactory' and that there 'were also allegations made by Bodycorp which gave rise to an inquiry being conducted by AAMI'.[12]

21 In fact, Bodycorp alleges[13] that, by a letter dated 29 July 1998 to the solicitors for Bodycorp, the solicitors for AAMI (Freehill Hollingdale & Page) stated that during meetings with a number of current and former Bodycorp franchisees, serious allegations had been made about the conduct of certain Bodycorp executives; and that Freehill Hollingdale & Page had been asked to investigate these allegations.

22 Relevantly for the purpose of this application, by a letter dated 10 August 1998 to the solicitors for Maisano (Oakley Thompson), Freehill Hollingdale & Page enclosed a draft statutory declaration for completion by Maisano and stated as follows:

We refer to our recent meeting with [Maisano].

We confirm we are retained to advise AAMI in respect of anticipated litigation with BodyCorp.

We enclose a draft statutory declaration for completion by [Maisano].

Please let us have any comments you have so that the statutory declaration can be finalised. AAMI will not disclose the draft or final statutory declaration to any person unless ordered by a court to do so or unless [Maisano] agrees to the disclosure.

We are endeavouring to have these and other statutory declarations completed urgently.

Please let us have your comments as soon as possible.

23 Maisano signed the statutory declaration on 1 September 1998. Paragraphs 17 to 19 of the statutory declaration, which appear to indicate the nature of the matter being investigated by AAMI, stated:

I have heard Tony Murdaca on several occasions in 1996, 1997 and 1998 refer to Robert Belleville of AAMI as 'Uncle Bob' and Don Casboult (also of AAMI) as 'Uncle Don'. Usually the reference to AAMI executives is made in the context of a franchisee requesting Mr Murdaca to fix a problem or a potential dispute between AAMI and the relevant franchisee. Mr Murdaca's typical response is 'I'll make a phone call to Uncle Bob and get that fixed'. The usual context in which the request for Mr Murdaca's assistance arises is if a franchisee is having a dispute with an AAMI assessor.

Mr Murdaca has said on a number of occasions that he has drinks and meals with Don Casboult. I have heard him say words to the effect 'Uncle Don is in the bag' implying to me that Don Casboult is the recipient of payments from Bodycorp so that Bodycorp is capable of controlling him or ensuring his consent to Bodycorp requests.

I am unable to recall many specific instances when these references were made. I do recall them being made on a number of occasions. One specific instance I recall was at a Bodycorp franchisees' meeting in either January or February 1998. I made a complaint that I was losing too many jobs because of my association with Bodycorp. Mr Murdaca said in words to the effect 'leave it with me, I'll have a look at it and I'll get on to Uncle Bob'. This was typical of Mr Murdaca's approach. He and Mr Rogers often implied that they had contacts with senior management at AAMI and had a form of control or power over AAMI to cause it to behave in a manner favourable towards Bodycorp.

24 On 26 August 1998, Martin recorded a file note of a conversation with the proprietor of the Berwick franchise, which Elliott J referred to in the Trial Reasons as follows:

A file note of that discussion records that Morrish advised Martin that Munro and Maisano had met with senior representatives of AAMI the previous week. Morrish stated that he had been told that, as a result of that meeting, AAMI was encouraging Bodycorp franchisees to sue AAMI as this might help AAMI to get out of the agreement AAMI had signed with Bodycorp on 29 June 1998 (ie the AAMI Agreement). He also told Martin that AAMI had asked for signed affidavits to be provided by the Bodycorp franchisees.[14]

25 The letter from Freehill Hollingdale & Page to Oakley Thompson dated 10 August 1998, together with the draft statutory declaration, were inadvertently made available during an inspection conducted by Bodycorp's solicitors at Oakley Thompson's offices on or about 20 June 2012.[15] Bodycorp's solicitors photographed the document and called for Oakley Thompson to produce a copy. Production was refused on the basis that the document was privileged and had been discovered in error.[16]

26 A subpoena was subsequently served on Ken Adams, the partner at Freehill Hollingdale & Page acting on behalf of AAMI, to produce documents including the signed statutory declaration. Adams produced the subpoenaed documents to the Court but objected to inspection on the ground of privilege.

27 On 9 May 2013, Daly AsJ upheld the claim of privilege with respect to the documents produced by Adams and rejected Bodycorp's submission that the privilege had been lost, pursuant to s 125 Evidence Act 2008, by reason of misconduct.

28 On 21 May 2013, during the course of the trial of the original proceeding, Maisano was cross-examined by counsel for Bodycorp about his attendance at an AAMI board meeting and the fact that the franchisees were 'interviewed individually by different people'. He was asked by counsel for Bodycorp:

Mr Kaye [an AAMI employee] asked you to assist AAMI, and that's what your statutory declaration was about, in order for you to be involved in bringing proceedings against AAMI so as to invalidate the [Moorabbin franchise agreement] that I showed you a few minutes ago.[17]

Objection was taken to that question on the ground that it was too vague, but Maisano said that he gave the statutory declaration to solicitors at Freehill Hollingdale & Page.[18] Objection was taken to further questions with respect to the statutory declaration. Counsel for Bodycorp said that he did not intend to cross-examine about the statutory declaration; but no privilege had been claimed with respect to the letter from Freehill Hollingdale & Page dated 10 August 1998 which enclosed the draft statutory declaration. He said, 'Your Honour saw me excise [the statutory declaration] from the letter'.[19]

29 There was a brief reference to this issue in the Trial Reasons where Elliott J stated:

It is clear that by July 1998 the relationship between Bodycorp and AAMI was less than satisfactory. In late July 1998, solicitors for Bodycorp threatened to commence court proceedings against AAMI. There were also allegations made by Bodycorp which gave rise to an inquiry being conducted by AAMI. (It is not necessary to descend to the details of these matters, save to observe that matters were in the hands of lawyers for both parties.) [20]

30 On 17 November 2014, Maisano swore an affidavit in the proceeding before the Court of Appeal. With respect to the statutory declaration, he deposed as follows:

1. On 17 July of 1998 I received a letter from AAMI signed by Mr. Don Casboult State Manager advising that my recommended repairer status was to be terminated within 14 days because I left BodyCorp Repairers. Once I received the letter I contacted Don Casboult by telephone and we had a discussion. As it appeared that there was no reconciliation in sight I told him that I would sue AAMI. He then said that this was appropriate and that is exactly what I should do as my case would then be heard by more senior AAMI management.
2. Concerned I then rang Barry Martin and told him of my discussion with Don Casboult. Barry replied if that is what Don told you to do you should then do it because it would lead to an investigation. I then asked him about my work and he told me I would continue to do work whilst the investigation was on foot.
3. I then contacted my lawyers Mr. Tim Davies of Oakley Thompson he arranged a meeting with Ken Adams the AAMI lawyer in relation to the termination of my sign and we threatened legal action against AAMI. I was subsequently given a draft Statutory Declaration that had been prepared by AAMI's lawyers and was awaiting to sign it.
4. I was advised by Philip Oswald to instigate proceedings against AAMI via my solicitor but I didn't actually have to sue AAMI.
5. After this meeting my work continued and my sign was never removed. I did however have to sign the Statutory Declaration prepared by AAMI's solicitors in order to retain my work. On 29 July 2008 I received a facsimile from Oakley Thompson attaching a letter from Freehill Holding & Page solicitors confirming that AAMI had withdrawn the termination of my sign. The Facsimile page reads as follows 'I guess we will have to wait and see what happens next with AAMI it is probably time to think about suing BodyCorp'. Now produced and shown to me and marked Exhibit 'MM-1' is a true copy of the facsimile and letter dated 29 July 1998 to my affidavit. Now produced and shown to me and marked Exhibit 'MM-2' is a true copy of the facsimile from Oakley Thompson dated 11.8.98 attaching a letter dated 10 August 1998 from Freehill, Hollingdale & Page attaching the Statutory Declaration.
6. The Statutory Declaration that was signed on 1/9/98 which was prepared by Ken Adams at Freehills Solicitors states in clause 14 that BodyCorp repaid $19,000 to me of the $25,000. I want to correct that clause the money was paid to me by Mr. Gino Francese and that $6,000 was deducted for rent arrears owed to Mr. Francese. The comments about AAMI offices in the Statutory Declaration which I was hesitant to comment about when asked by Ken Adams he told me that I just have to corroborate with it as other BodyCorp franchisees have made similar comments in particular the statutory declaration made by Steve Morrish so I went along with it even though I did not hear those comments from anybody at BodyCorp or Tony Murdaca.

The affidavit purports to exhibit a facsimile transmission from Oakley Thompson attaching a letter from Freehill Hollingdale & Page dated 10 August 1998 and a 'draft statutory declaration'.[21]

31 On 20 November 2014, during an application for adjournment on the first day of the hearing of the appeal, Anthony Murdaca, who, as director, had been given leave to appear on behalf of Bodycorp, sought to rely upon the affidavit of Maisano sworn 17 November 2014. The Court read the material but returned it to him.[22]

32 On 5 October 2016, Maisano swore a further affidavit in the current application and, with respect to the statutory declaration, said as follows:

I recall, all of the Bodycorp franchisees that were in the head office of AAMI in St. Kilda Rd that day were told they needed to sign stat decs that would start the investigation. In return they told us to go back to work and work as usual. If need be, I can contact the repairers who came to me referred by Barry Martin, who can verify what transpired. I know that everyone who subsequently signed the stat dec kept their sign.

33 It is common ground that, as a result of the inquiry, AAMI was satisfied that no wrongdoing was established against Bodycorp.

34 In summary, Elliott J made the following critical findings with respect to each of the claims made by Bodycorp.

35 With respect to the claims based on Maisano's termination of his franchise agreement with Bodycorp, Elliott J found that Maisano was entitled to terminate his franchise agreement[23] because Bodycorp had insisted that it could establish another franchisee within the territory of Maisano's franchise agreement.[24]

36 With respect to the claim against Maisano for inducing breach of contract, Elliott J found as follows:

(a) As to three of the four franchise agreements with Bodycorp, which had allegedly been wrongly terminated at the inducement of Maisano, there was no evidence of when the three year term of each of the franchise agreements expired.[25] Accordingly, there was no evidence that the alleged statements had been made during the terms of the franchise agreements.

(b) With respect to the fourth franchisee, being the Clayton franchisee, the evidence relied upon by Bodycorp was that Maisano had made the following statements to the proprietor of the Tottenham franchise, Rocco Crea:

- Why did he want to pay 8% of his turnover to Bodycorp?

- He should try and contact Martin 'in the sense that ... maybe you can go out on your own'?

- Basically the franchisee 'should break away and be my own personal panel shop'.[26]

It was contended that the Court should infer it was likely that the same statements would have been made to the proprietor of the Clayton franchise.

(c) Elliott J found these conversations were 'entirely consistent with Maisano suggesting arrangements might be made [by the franchisees] with AAMI at the expiration of the franchise agreement with Bodycorp' and his Honour was not prepared to infer that the statements were made for the purpose of inducing Crea to breach his contract.[27]

(d) There was no direct evidence of statements made to the proprietors of the Clayton franchise;[28] and Elliott J did 'not find the evidence of Crea as being probative of establishing an inference that the conduct alleged against Maisano in relation to Bodycorp Clayton actually occurred'.[29]

37 With respect to the claim against AAMI and its employee, Martin, for inducing breach of contract, Elliott J found as follows:

(a) Martin had made statements to the proprietor of the Heidelberg and Airport West franchise, to the following effect:

- You don't really need to be in Bodycorp.[30]

(b) Martin had made statements to the proprietor of the Glenroy franchise to the following effect:

- 'A lot of the guys who had bought franchises at the time were leaving the group'.

- He would not lose his AAMI sign if he decided to leave Bodycorp and he would save the 8% fee payable to Bodycorp.[31]

(c) Martin had made statements to the proprietor of the Highpoint franchise to the following effect:

- The Highpoint costings and job ratio were pretty low due to him being with Bodycorp.

- If he were to leave Bodycorp his 'stats would go up'.[32]

(d) Martin had made statements to the proprietor of the Preston franchise to the effect that if he left Bodycorp, he would maintain his status with AAMI.[33]

In making the above findings, Elliott J rejected Martin's evidence that he did make the above representations to the abovementioned former franchisees.[34]

38 Elliott J found that, although AAMI breached cl 1.3 of the AAMI agreement with Bodycorp by allowing former franchisees of Bodycorp to continue as 'Recommended Repairers',[35] the restraint under cl 1.3 of the agreement was unenforceable as an unreasonable restraints of trade.[36]

39 Elliott J rejected Bodycorp's claim for work and labour done, which he said had 'very little, if any, substance'.[37] His Honour found that Bodycorp had not established the quantum of the work performed, in respect of which Bodycorp relied solely on certain records of AAMI ('the quoting analyses').[38] In particular, his Honour was not satisfied that the 'repair cost $' in the fourth column on the quoting analyses prepared by AAMI represented the repair costs of work actually done[39] for the following reasons:

(a) On their face, the quoting analyses were concerned with the quoting performance of repairers and nothing indicated that the purpose of the fourth column was to be understood differently to the three columns that preceded it.[40]

(b) His Honour rejected the evidence of Bodycorp's director, Murdaca, and Michael Andrus, an employee of AAMI, as being entirely speculative as they were not responsible for the preparation of the quoting analyses.[41] Although counsel for Bodycorp accepted that the Court would need evidence beyond the quoting analyses, no such document was produced;[42] and Bodycorp failed to produce any reconciliation between payments and invoices issued for work.[43] Martin's evidence was that he was the author of many of the quoting analyses; and the amounts in the column 'repair cost $' had nothing to do with the payments actually made to franchisees.[44] He was not challenged about his assertion that there were many reasons why work, for which a quote was prepared, was not ultimately completed.[45]

(c) Maisano gave unchallenged evidence that quotes did not equate to work completed in various circumstances, including the customer deciding to sell the car or hand it down to their children.[46]

(d) Bodycorp failed to put proper business records before the Court to establish whether or not it had been paid for the invoices rendered.[47]

40 Bodycorp appealed from the decision of Elliott J on the following grounds:

1. The judge erred by concluding that cls 1.2 and 1.3 of the AAMI agreement were unenforceable as an unreasonable restraint of trade.
2. The judge erred in concluding that the tort of inducement to breach contractual relations was not established against AAMI and Martin.
3. The judge erred by failing to conclude that the breach of the AAMI agreement by AAMI, and the inducement by AAMI and Martin, sounded in damages.

41 The Court expressly rejected grounds 1 and 2 and said, with respect to ground 3, that, after rejecting grounds 1 and 2, there was no basis upon which the trial judge was obliged to assess or award damages.[48]

42 In particular, with respect to the appeal against the dismissal of the claim against AAMI based on inducing breach of contractual relations, the Court agreed with the conclusion of Elliott J, stating:

Martin's statements to the relevant franchisees did not support an affirmative finding that Martin (and by extension AAMI) induced any breach of contract between Bodycorp and any of Bodycorp's franchisees.[49]

43 In the amended statement of claim in this proceeding, Bodycorp relied upon the following conduct in support of its claim that the decision of Elliott J should be set aside.

(a) Martin's evidence, that the figures in the fourth column of the quoting analyses merely represented the costs quoted in the month and did not represent work actually performed, was false and was known by Oakley Thompson to be false because Maisano told Broadbent immediately upon Martin giving that evidence.[50] Further, this information would have been available to AAMI and its legal advisors.[51]

(b) Martin's denial of the evidence of inducement given by Crea, Mrs Lantieri of the Heidelberg and Airport West franchise, Mr Cianchio of the Glenroy franchise, Mr Corso, a former franchisee, Mr Mellor, a former franchisee, was false[52] to the knowledge of Oakley Thompson and AAMI.[53]

(c) Non-disclosure of the content of the statutory declaration 'caused the evidence given in the course of the trial to be misleading inasmuch as the content of those documents indicates that Martin and AAMI wished to terminate the relationship between AAMI and Bodycorp'.[54]

(d) Maisano was told by Broadbent and Cawthorn that he should give evidence that he had not spoken to any Bodycorp franchisees after he ceased to be a franchisee in July 1998.[55]

44 Bodycorp further alleged that since judgment it had 'obtained copies of certain documents which were not available to it during the trial'.[56] The following documents were particularised but not relied upon in this application because of the facts referred to in brackets below each entry:

(a) An affidavit of Maisano sworn 17 November 2014.

[This affidavit post-dated the decision of Elliott J in the original proceeding.]

[This affidavit post-dated the decision of Elliott J in the original proceeding.]

(c) A memorandum dated 8 September 1997 from Martin to the State Manager, AAMI.

[The document was in evidence at the trial before Elliott J and was referred to in the Trial Reasons at [255].]

(d) A memorandum dated 1 October 1997 from Martin to John Stringer.

[The memorandum was in the Court Book of the original proceeding and was referred to in the Appeal Book Index.]

[The document was in evidence and referred to in the Trial Reasons at [293].]

(f) A facsimile transmission from Tim Davies, a solicitor at Oakley Thompson to Maisano dated 29 July 1998.

[This document was alleged to be subject to legal professional privilege.]

(g) Hand written file notes of Broadbent made in relation to the preparation of the case and the evidence to be given at trial of the original proceeding.

[These notes were alleged to be the privileged notes taken by the solicitor for the first defendant.]

(h) Notes by Maisano shown to Broadbent during the trial of the original proceeding.

[These were alleged to be privileged notes made by the first defendant.]

(i) The transcript of Supreme Court proceeding S CI 2014 05814.

[These were transcripts of an ongoing costs dispute between Oakley Thompson and Maisano which post-dated the decision of Elliott J in the original proceeding.[57]]

45 Counsel for Bodycorp conceded that it would be necessary for Bodycorp to file an amended statement of claim to incorporate the matters relied upon in its opposition to the application by the defendants for summary dismissal of its claims. Accordingly, for the purposes of defending the application for summary dismissal, Bodycorp was not confined to the matters it had originally pleaded. In fact, Bodycorp did not rely on the unavailability of any of the documents referred to in paragraph [44] above; but it did contend that some of the documents that it obtained after the date of the decision of Elliott J in the original proceeding supported its contention that the evidence before Elliott J had been false in material respects to the knowledge of the Oakley Thompson defendants; and the AAMI defendants.

46 At the hearing before me on 7 and 10 October 2016, Bodycorp relied on the following grounds to set aside the decision of Elliott J in the original proceeding:

(a) The withholding of the Maisano statutory declaration.

(i) having no conversations with franchisees after terminating his franchise agreement; and

(ii) receiving a letter from AAMI dated 14 August 1998.

(c) The false evidence of Martin about the quoting analyses.

(d) The false denials of Martin about making representations to franchisees.

I turn now to consider the relevant principles relating to setting aside a judgment for fraud and applications for summary judgment before considering each of the above grounds in turn.

Principles relating to setting aside a judgment for fraud

47 The relevant principles to be applied on applications to set aside judgment on the ground of fraud were set out by Kirby P in Wentworth v Rogers (No 5).[58] These principles have been adopted by the Victorian Court of Appeal in Karam v Palmone Shoes Pty Ltd.[59] The following statement of Kirby P identifies the elements of the cause of action, relevant procedural rules and guidelines:

First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires.

Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for

setting aside the judgment. ...

Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief. The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts.

Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on

the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment. The other requirements must be fulfilled. ...

Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment.

Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment. [60]

48 I summarise the essential elements of the cause of action as follows:

(a) Fresh facts: It must be shown that there are facts ('the fresh facts') which were:

(i) not considered by the original trial court; and

(ii) not known to the applicant until after the conclusion of the trial.

(b) Responsibility: It must be established that it was the fraud of the party, who was successful at the original trial ('the successful party'), that was responsible for the fresh facts not being known by the applicant or considered by the court, such that it would be inequitable for the successful party to retain the benefit of the judgment.

(c) Causation: It must be established that the fresh facts are so material (by themselves or in combination with other facts) that, if proven, the applicant's case will succeed.

49 Further, the above passage from Kirby P identified the following procedural rules and guidelines which apply, consistently with the public interest in the finality of litigation, when the Court is asked to take the 'drastic step' of setting aside a judgment:

(a) As the action is based in fraud, precise particulars of the allegations of fraud are required.

(b) The burden of proving each of the elements of the cause of action is on the applicant and each element must be established by strict proof.[61] With respect to each of the elements:

(i) If the applicant has evidence of the fraud at the time of the trial, it cannot refrain from raising its objection at that time and thereby keep the complaint in reserve.

(ii) Proof of responsibility for the fraud should be established by admissible and extrinsic evidence. The perpetrator of the fraud must be the successful party and 'it is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment.'[62] Further, mere suspicion of fraud is insufficient.

(iii) Proof of perjury is not sufficient to attract the exceptional relief of the setting aside of a judgment. Each of the elements of the cause of action must be established and in particular it must be proven that, absent the perjured evidence, it is reasonably probable that the applicant will succeed.

50 Although the matter is not without doubt, it appears that even if the elements of the cause of action are established, the Court reserves a residual discretion to decline to set aside the judgment despite it having been obtained by fraud.[63]

51 Counsel for Bodycorp submitted that the decision of the Queensland Court of Appeal in Johns v Cosgrove[64] diverged from the principles set out by Kirby P in Wentworth v Rogers (No 5)[65] in that 'some of the conditions [set out in Wentworth v Rogers (No 5)] are discretionary matters that will be taken into account, once a deliberate fraud has been proven.'[66] This submission was based on the following statement by Thomas JA in Johns v Cosgrove:

The authorities suggest, however, that it will be a rare case where a party who was shown to have been privy to fraud which has misled the court in proceedings resulting in a judgment in that party's favour will be permitted to retain the benefit of the judgment.[67]

52 In my opinion, before it can be said that 'a party [has been] shown to have been privy to fraud which has mislead the court ... resulting in a judgment in that party's favour' all of the elements referred to in paragraph [48] will have been established. I do not accept that any of the three elements of the cause of action are discretionary. Accordingly, I do not consider that the decision in Johns v Cosgrove diverges from the principles established in Wentworth v Rogers (No 5).

53 However, as this is an application for summary dismissal, if I was satisfied that there was a real prospect that Bodycorp could establish the elements of the cause of action, the exercise of the residual discretion would not be appropriate.

54 The applications for summary dismissal by the Oakley Thompson defendants and the AAMI defendants are made pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 and/or s 63 of the Civil Procedure Act 2010. Rule 23.01(1) provides:

(1) Where a proceeding generally or any claim in a proceeding -

(a) is scandalous, frivolous or vexatious; or

(b) is an abuse of the process of the Court -

the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

55 Sections 62 and 63(1) of the Civil Procedure Act 2010 provide:

1. A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.

63(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires,

has no real prospect of success.

56 The incorporation of the power to apply for summary dismissal of a proceeding under ss 62 and 63 of the Civil Procedure Act 2010 resulted in the repeal of r 23.03 of the Supreme Court (General Civil Procedure) Rules 2015[68] and the amendment of r 22 to include rules for the making of an application under s 62 of the Civil Procedure Act 2010.

57 Although an application to stay or dismiss a proceeding may still be made under r 23.01 or under the Court's inherent jurisdiction 'to stop the abuse of its process when it is employed for groundless claims',[69] the most appropriate basis of an application for summary dismissal on the ground of no real prospect of success is pursuant to s 62 of the Civil Procedure Act 2010. Certainly, it is now clear that a claim that ought to be dismissed as an abuse of process on the ground that it was hopeless, untenable, bound to fail or could not possibly succeed, will now be dismissed under s 63.[70]

58 The proper approach to an application under s 62 was explained in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd as follows:

(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment 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' essayed in General Steel;

(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 essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[71]

59 If the Court finds that the proceeding has no real prospect of success, it has a broad residual discretion, to be exercised consistently with the overarching purposes of the Civil Procedure Act 2010,[72] to nonetheless refuse the application because:

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.[73]

60 I will now examine the grounds upon which Bodycorp relies in support of its contention that there is a real prospect of setting aside the judgment in the original proceeding.

The withholding of the Maisano statutory declaration

Plaintiff's submissions regarding the statutory declaration

61 On behalf of Bodycorp, it was submitted that in paragraphs 17 to 19 of the statutory declaration, Maisano declared that he heard certain statements.[74] However, in his 17 November 2014 affidavit, he says that in fact he did not hear such statements.[75] When asked how this was relevant to the decision of Elliott J, counsel for Bodycorp said that it demonstrated 'a course of conduct in which AAMI did a number of actions to really induce the franchisees to leave, and one of these actions - this was part of the course of conduct which is getting [the franchisees] to sign the statutory declaration'.[76] Counsel submitted that the obtaining of the statutory declarations from franchisees 'was part of the inducing process, you get them signed up and you convince them that my client is no good, that they're better off without my client, that my client's essentially a crook and that they're better off leaving them[77]... Basically what they're doing is destroying the professional reputation of my client and basically inducing the franchisees to leave as part of their process of getting them to leave my client.'[78]

62 Counsel for Bodycorp conceded that the course of conduct with respect to the statutory declaration was not pleaded but submitted as follows:

There are two answers to that, Your Honour: firstly, my client wasn't aware of the statutory declarations or all of these matters. Secondly, it still would have been admissible evidence to prove the relevant intention. It wouldn't have been held to be inadmissible, it would have been stated, it might be stated by His Honour Justice Elliott, he might have amended the statement of claim or allowed further particulars, or he might have said that that's sufficient for me to be satisfied that the case as pleaded was sufficient.[79]

Counsel for Bodycorp submitted that the evidence of the statutory declarations 'was relevant and admissible and if it had been admitted it would have shown the intention of Mr Martin and would have resulted in his Honour Justice Elliott making a different finding. We say as a result of all of that His Honour would have taken a different view of what was occurring.'[80]

63 I reject Bodycorp's submission that the failure to disclose the contents of the statutory declaration (by which I include the circumstances surrounding the execution of it) entitles Bodycorp to set aside the decision of Elliott J and have a retrial of Bodycorp's claim against AAMI and others that it induced the franchisees to breach their respective franchise agreements for the following reasons:

(a) The contents of the statutory declaration are not fresh. Bodycorp's legal advisers were in possession of at least the draft of Maisano's statutory declaration prior to the trial. The Court did find that the statutory declaration was privileged but the fact that a court may not permit the use of a document at the trial does not constitute its contents as 'fresh facts' for the purposes of this action.[81]

(b) Although Bodycorp was restrained by the order of Daly AsJ from referring to the contents of the statutory declaration, it was not explained how Bodycorp's reliance on privilege over the statutory declaration could constitute a fraud for the purposes of this cause of action.

(c) An allegation that AAMI had induced a breach of contract by undermining the relationship between the franchisees and Bodycorp was not pleaded. The relevance of the inquiry by AAMI was doubtful at best. The issue was adverted to at the trial; but the trial judge, in my opinion correctly, made only an incidental reference to it.[82]

(d) There is no real prospect that the admission of the statutory declaration into evidence could have resulted or could result in Bodycorp succeeding on its inducing breach of contract claim for the following reasons:

(i) Bodycorp's submission that the contents of the statutory declaration and the inquiry carried out by AAMI would have been relevant in establishing Martin's intention to induce the franchisees to breach their franchise agreements is at best tenuous. There was no evidence that AAMI's inquiry was other than a legitimate investigation into allegations and that the result of the investigation was to exonerate the Bodycorp directors of any wrongdoing.

(ii) Whether or not the statutory declaration would have influenced the trial judge to find an intention on behalf of AAMI and/or Martin to induce a breach of contract, does not deal with the fact that Bodycorp's claim failed critically on the basis that the established conduct of Martin, despite his denials, did not amount to an inducement to the franchisees to breach their contractual obligations.

(iii) There was no evidence referred to by the trial judge, nor any evidence adduced on this application, that AAMI's conduct in carrying out the investigation induced any franchisee to breach their contractual obligations.

False evidence of Maisano about having no conversations with franchisees after terminating his franchise agreement

64 Under cross-examination by counsel for Bodycorp in the trial of the original proceeding, Maisano gave evidence that 'Once I terminated Bodycorp, I hadn't spoken to anybody else. No one came and visited me. So the answer is: I never spoken to any other franchisee after that'.[83]

65 In his affidavit of 17 November 2014, Maisano deposed to the circumstances which presumably led to him giving that evidence as follows:

Prior to me taking the stand Mr. Cawthorn was having a discussion with Mr. Broadbent in my presence. Mr Cawthorn, said Barry Martin would be saying that he did not induce any BodyCorp repairers to leave and I was then instructed to do the same. I was told by Cawthon that if I was asked in the witness stand if I had any contact with any franchisees after I left BodyCorp that I should say No. My reply was I can't say that because I did in fact meet with ex and other BodyCorp repairers and that I had in fact had meetings with them. Broadbents [sic] reply to that was if you say that you will go down for inducing other franchisees and that is the claim against you do you understand this. He also advised that I could go down for a Million dollars worth of damages. Cawthorn backed it up by saying your evidence Mr Maison must corroborate with Martins [sic] evidence that you did not induce franchisees to leave BodyCorp. So simply say you didn't have any meetings with BodyCorp repairers. I was worried as Cawthorn and Broadbent were telling me to tell untruths to the court. I wanted to get out of there.

66 In an affidavit sworn 5 October 2016, Maisano further stated, with respect to his contact with franchisees after his termination, as follows:

Having had the opportunity of reading Mr Martin's file notes, where he made me look like the instigator, its [sic] untrue, his file notes are false and full of lies. It was Barry Martin who was referring repairers to come to me and they came to me, he was telling them to do as I did and leave Bodycorp. I told these repairers I left for my own personal reasons and I would still support the sublet repairers but I told them to contact Don Casbolt and I knew that if they made out they were going to sue AAMI, but not actually really sue them, they would be able to leave the Bodycorp franchise and keep their work. This was supported by Barry Martin, where he was telling repairers they would keep their sign once an investigation started.

67 Bodycorp also relied upon an affidavit sworn by its director, Murdaca, on 4 August 2016 in respect of a related proceeding against Oakley Thompson (S APCI 2016 0064) in which he deposed to a conversation with Maisano on 23 July 2016 in which he alleges that Maisano said:

The Bastards knew that I was meeting the franchisees after I left. How can they make me say I did not have the meetings when they knew that I did? Cawthorne [sic] sad [sic] if you stated that you did meet these franchisees you will go down for a million dollars in damages. Cawthorne [sic] said you received the letter dated 14 August 1998. I said it does not have my name upon it Broadbent said don't worry we will find the letter with your name on it, we will find it. I said it is not addressed to me. Broadbent said we will find that letter. I felt terrible in that witness box, when your counsel said I was not on the mailing list. The judge had a go at me. Cawthorne [sic] and Broadbent would not look at me. I was like a stuffed turkey, those dogs, put me in that position. I lied in that witness box. I was only saying what they wanted me to say.

68 For the purposes of considering this application, I have assumed that the evidence of Maisano in his affidavit of 17 November 2014 and 5 October 2016 is correct. On this assumption, under cross-examination at the trial of the original proceeding, Maisano falsely swore that he did not have contact with franchisees after the termination of his franchise agreement on 8 July 1998.[84] However, in the affidavits he does not say that he had any role in the inducing of the franchisees to breach their respective contractual obligations. He deposes that he told them that:

(a) he left for his 'own personal reasons' and 'to contact Don Casboult' at AAMI; and

(b) he knew that they would keep their work if they left the Bodycorp franchise.

He further says, without identifying how he became so aware, that Martin was telling the franchisees that they would keep their sign 'once an investigated started'.

69 In my opinion, this fresh evidence could not cause a different result. The fresh evidence could no more constitute an inducement to breach contractual obligations than the statements that Elliott J accepted were made to franchisees.[85]

False evidence of Maisano about receiving a letter from AAMI dated 14 August 1998

70 On cross-examination by counsel for the AAMI defendants, Maisano swore that he got the letter of 14 August 1998 from AAMI.[86]

71 In his affidavit of 17 November 2014, Maisano gave the following evidence about the receipt of the letter dated 14 August 1998:

Prior to me taking the witness stand Mr. Cawthorn handed a number of documents to Mr. Broadbent in my presence, including a letter dated 14 August 1998, from AAMI addressed to Mr. Lou Lantieri. Cawthorn asked me if I recall receiving that letter. I told Broadbent that the letter was not addressed to me and I couldn't verify it. Then Mr. Cawthorn said I know it is not addressed to you but you must have received it. I then said to Mr. Broadbent in front of Mr Cawthorn did AAMI say that I have received it Mr. Broadbent said our instructions are that you did. Based on the representation by Mr. Cawthorn and Mr. Broadbent I testified that I had received a similar letter. During Cross examination Mr Goldblatt challenged that I had not receive the letter and he referred to a list of recipients to that letter. I was not on the list of recipients. After Cross examination at a break I informed Mr. Broadbent that I was not on the list and did not remember receiving the letter but testified that I did due to being told that I had received it and he told me not to worry about it.[87]

72 Maisano was cross-examined about the above paragraph in his affidavit of 17 November 2014 in the trial of Oakley Thompson & Co Pty Ltd v Maisano (No 2).[88] Counsel for Oakley Thompson put it to Maisano that he had lied at the trial when he said that he had received a letter from AAMI dated 14 August 1998. He denied that he lied, and said:

I received that letter from Mr Broadbent and I asked him: 'Did I receive this letter? Is it part of my file?'. He said: 'Yes, it is' and I gave that evidence. I couldn't recall when I asked my solicitor.

73 Although Bodycorp relied on the material referred to in [71] above as evidence that Maisano had lied, counsel for Bodycorp made no submission about the significance of this evidence or how it could possibly have influenced the decision of Elliott J.

74 The effect of Maisano's evidence appears to be that he gave evidence based on a belief that he had received the letter; but later doubted that he did receive the letter. To the extent that the answer he gave about receiving the letter from AAMI dated 14 August 1998 was false, I note that no reference was made to this letter in the Trial Reasons. I do not consider that the issue of whether he received the letter could have influenced the decision of Elliott J.

75 As noted in [39] above, Elliott J was not satisfied that the 'repair cost $' in the fourth column on the quoting analyses prepared by AAMI (which were the documents relied upon by Bodycorp[89]) represented the repair costs of work actually done. His Honour accepted the unchallenged evidence of Martin and Maisano in this respect.[90]

76 Bodycorp contended that evidence of Maisano contained in his affidavit sworn 17 November 2014 established that Martin gave false evidence about the lack of correlation between figures in the fourth column of the quoting analyses and the actual work done.

77 Bodycorp relied on paragraph 26 of that affidavit, in which Maisano deposed as follows:

I also brought to the attention of Mr. Broadbent when Barry Martin was in the witness stand giving evidence that some of his evidence was untrue and that if I get asked the same questions I would have to answer differently. I had made notes during the trial and showed Mr. Broadbent specifically on 2 occasions during Mr Martin's testimony. As I was on the BodyCorp committee some of the shops that were said in court did not have a AAMI recommended repairer sign did in fact have a AAMI recommended repairer sign ie Bayswater and Blackburn as they were under my jurisdiction and I met with them on a monthly basis. I also explained to Mr. Broadbent about the quoting sheet statistics that they were not representative of a full months [sic] work and were not representative of any supplementary figures. Also any job that wasn't repaired during that month or didn't arrive on the booking date we were given further opportunities to secure additional work. Mr. Broadbent told me not to worry about it as we would not be cross examining Mr Martin or anyone else from AAMI. I had taken into court my statistics showing the difference in the stat and Mr. Broadbent told me to put them away and not mention them.

78 On 5 October 2016, Maisano swore a further affidavit with respect to his allegation of Martin giving 'untrue' evidence, in which he deposed:

In relation to the 2013 trial before Justice Elliot, I recall when Mr Barry Martin gave his evidence before his Honour in relation to the AAMI monthly repairer statistics. The evidence he gave was untrue and at the time I explained this to my solicitor Mr Jeremy Broadbent. As per my hand-written notes at the time I told him that if I had to answer the same questions before his Honour, I would be giving my version as what Mr Martin was saying was false and misleading as far as the monthly stat sheets are representative of income.

Mr Broadbent then left from the seat sitting next to me at the back of the court and approached the bench where Mr Cawthorn and Mr Dilallo were sitting. After some brief moments he then came back to where I was seated and told me that I should not worry as I would not be asked the same questions.

In relation to me ever seeing any Bodycorp repairers after I left, I was told by Mr Broadbent, and Mr Cawthorn and Mr Dilello that if I was asked by Counsel for the Plaintiff I was to say I say no. I followed their instructions under duress as stated in my previous affidavit.

(a) The statement that 'some of [Martin's] evidence was untrue' should be taken as being a reference to Martin's evidence about the quoting analyses because he refers to that later in the same paragraph.

(b) The explanation about the 'quoting sheet statistics', ie. the quoting analyses, not being representative of a full month's work or of any supplementary figures was inconsistent with the evidence of Martin.

(c) Accordingly, the Court could be satisfied that this paragraph established that Martin was lying when he gave his evidence about the figures in the fourth column of the quoting analyses not being representative of work performed.

80 I reject Bodycorp's contention for the following reasons:

(a) There is no evidence of fraud or perjury. The deponent does not say that Martin was lying with respect to 'some of his evidence'. He states that the evidence was untrue. A witness may genuinely disagree with the evidence of another witness, but that is not tantamount to an allegation of lying or, in this case, perjury.

(b) There is no real prospect that the evidence of Maisano about the quoting analyses could have resulted or could result in Bodycorp succeeding on its work and labour done claim for the following reasons:

(i) I do not consider that the deponent's explanation, that the 'quoting sheet statistics' were not representative of a full month's work or of any supplementary figures, was inconsistent with the relevant evidence of Martin with respect to the quoting analyses. Martin's evidence was in substance, and the Court found, that the quoting analyses did not 'represent repair costs of work actually done'.[91]

(ii) To the extent that he told Broadbent that Martin's evidence was untrue he said that, if asked, he would have to answer differently. Maisano's evidence with respect to the quoting analyses was found by Elliott J to have corroborated the evidence of Martin.[92]

(iii) There is no evidence of facts that could be established on a retrial, which could satisfy a court that the quoting analyses would provide a proper basis for establishing Bodycorp's claim for work and labour done. At the trial, counsel for Bodycorp conceded that the 'events of the kind referred to by Martin [which resulted in quoting analyses not equating to work done] did occur'.[93]

Martin's false denials of representations to franchisees

81 At the trial of the original proceeding, Martin 'flatly denied' that he made the allegations as alleged by the former franchisees,[94] referred to in paragraph [37] above.

82 Under cross-examination by counsel for Bodycorp at the trial, Maisano said that Martin did not say anything to induce him to terminate his franchise agreement with Bodycorp; 'he told me that I should seek legal advice'.[95] He said that the reason he terminated his franchise agreement was that there was a new franchisee located in his area as stated in the letter from his solicitor which was written on his instructions.

83 Bodycorp submitted that paragraph 9 of the affidavit of Maisano sworn 17 November 2014 established that Martin had given false denials about representations to Maisano. In paragraph 9, Maisano deposed as follows:

I spoke to Barry Martin about it. I told him I was upset at BodyCorp and AAMI because of what had happened at Malvern and now there is a new shop in Cheltenham. I asked him if I left BodyCorp what would happen to my sign. He didn't think it would be a problem for me to leave. Furthermore he advised that it would be financially better for me as I wouldn't have to pay the 8% commission to BodyCorp. He also told me that the Melton Franchise had also left BodyCorp Sunbury and·so did the Abbotsford shop. It was with head office to be determined. Based on what Barry Martin told me I wrote to BodyCorp giving them notice that I was terminating the Franchise agreement with them.

84 It may be accepted that the evidence contained in paragraph 9 of the affidavit is inconsistent with Martin's denials at the trial of making such representations to franchisees. However, I do not consider that the admission of this evidence could make it reasonably probable that Bodycorp's case would succeed for the following reasons:

(a) Bodycorp's case that AAMI induced a breach of the Moorabbin franchise agreement with Maisano could not succeed because Elliott J found that Maisano was entitled to terminate. Accordingly, Maisano did not breach his franchise agreement with Bodycorp.

(b) Elliott J found, and the Court of Appeal agreed, that a statement by Martin simply to the effect that, if a franchisee left Bodycorp, AAMI would not interfere with its signage rights; and it would not have to pay the 8% commission to Bodycorp, did not constitute an inducement to breach the franchise agreement. I do not consider that the statements deposed to in paragraph 9 of the affidavit of 17 November 2014 could constitute an inducement for Maisano to breach the Moorabbin franchise agreement with Bodycorp.

(c) To the extent that such evidence would have impacted on the credit of Martin and influenced Elliott J's findings with respect to Martin's dealings with other franchisees, I consider that such effect would have been negligible at its highest. Elliott J accepted the evidence of other franchisees that similar representations were made to them and rejected Martin's denials of the making of such representations.[96] Bodycorp's counsel was unable to explain how this evidence would have advanced the case beyond the findings of Elliott J.

85 The above analysis considers the prospects of Bodycorp's claim to set aside the judgment in the original proceeding succeeding. For reasons expressed, I do not consider that any of the grounds have any real prospect of success. Further, I do not consider that the grounds in combination have any greater prospect of success.

86 In my opinion, in considering whether to exercise the Court's residual discretion under s 64 of the Civil Procedure Act 2010,[97] I have taken into account the overarching purposes set out in that Act and in particular the following additional matters that support the summary dismissal of this claim:

(a) Bodycorp's claim principally relies on the recollections of a single witness.

(b) The principal events relied upon are conversations that took place approximately 18 years ago.

(c) The original claim, which Bodycorp seeks to re-agitate, was filed over 14 years ago; and judgment was given in the original proceeding over 3 years ago.

I propose to dismiss Bodycorp's claims against the second, fourth, fifth and eighth defendants.

[1] Bodycorp Repairers Pty Ltd v Maisano [2007] VSC 373 [1] (Mandie J).

[2] Bodycorp Repairers Pty Ltd v Maisano [2005] FCA 1465 (Sundberg J).

[3] Bodycorp Repairers Pty Ltd v Maisano (No 8) [2013] VSC 472 [37]-[42] (Elliott J) ('Trial Reasons').

[7] Bodycorp Repairers Pty Ltd v Australian Associated Motor Insurers Ltd [2015] VSCA 73 (Warren CJ, Beach JA and Ginnane AJA).

[8] Bodycorp Repairers Pty Ltd v Maisno (No 10) [2016] VSC 599.

[9] Transcript of Proceedings, Bodycorp Repairers Pty Ltd v Maisno (Supreme Court of Victoria, S CI 2016 02044, Riordan J, 29 September 2016) 27 lines 18-20. See [44] below.

[13] Amended Statement of Claim filed 9 August 2016 [40].

[15] Transcript of Proceedings, Bodycorp Repairers Pty Ltd v Maisano (Supreme Court of Victoria, S CI 2005 09071, Elliott J, 21 May 2013) 1349 lines 11-19.

[21] The exhibited statutory declaration does not appear to have been the 'draft' attached to the facsimile transmission because it is a copy of the version executed on 1 September 1998.

[22] See Bodycorp Repairers Pty Ltd v Australian Associated Motor Insurers Ltd [2015] VSCA 59 [25] (Beach JA).

[34] Ibid [298]. However, his honour did not appear to accept the evidence of Crea, the proprietor of the Tottenham franchise, that Martin had said to him, 'more or less' that Crea should break away from the Bodycorp Group; see [237]-[238], [253].

1. [38] The particulars of Bodycorp's claim disclosed that the claim was sought to be made out based on the invoices of Bodycorp until an amendment was allowed on day 13 of the trial. Ibid [52]-[54], [305].

[48] Bodycorp Repairers Pty Ltd v Australian Associated Motor Insurers Ltd [2015] VSCA 73 [62] (Warren CJ, Beach JA and Ginnane AJA).

[50] Amended Statement of Claim filed 9 August 2016 [18]-[20].

[57] Oakley Thompson & Co Pty Ltd v Maisano [2015] VSC 209; Oakley Thompson & Co Pty Ltd v Maisano (No 2) [2015] VSC 210; Oakley Thompson & Co Pty Ltd v Maisano (No 3) [2015] VSC 350.

[58] (1986) 6 NSWLR 534.

[59] [2014] VSCA 148 [39] (Nettle JA), Whelan JA [47] and Almond AJA [56] agreeing.

[60] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 538-539 (citations omitted).

[61] As the action is based on fraud the principles of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 would be applicable. See also Evidence Act 2008 s 140(2).

[62] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 539.

[63] Johns v Cosgrove [2002] 1 Qd R 57, 92 [94] (Thomas JA) with whom de Jersey CJ at 65 [1] and McMurdo P at 65 [2] agreed; McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529, 533 (Barwick CJ) with whom Kitto J agreed cf Taylor J at 535 and Menzies J at 541; Hip Foong Hong v H. Neotia & Co [1918] UKPC 65; [1918] AC 888, 894 (Lord Buckmaster).

[64] [2002] 1 Qd R 57.

[65] (1986) 6 NSWLR 534.

[66] Plaintiff's Supplementary Written Submissions dated 7 October 2016 [7]. Counsel for Bodycorp did not identify which of the conditions set out in Wentworth v Rogers (No 5) were discretionary.

[67] [2002] 1 Qd R 57, 92-93 [95] (emphasis added).

1. [68] Rule 23.03 provided that 'On application by a defendant who has filed an appearance the Court at any time may give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits'. This rule was a successor of Order XIV(A) of the Rules of the Supreme Court of Victoria (which was in force from its introduction on 20 December 1900 until replaced by the Supreme Court (General Civil Procedure) Rules 1986). Order XIV(A) was described by Dixon J in Dey v Victorian Railways Commissioner (1949) 78 CLR 62, 90-91 as 'an order peculiar to Victoria ... [which] should be reserved for exercise as to actions that are absolutely hopeless'. In Bayne v Riggall [1908] HCA 39; (1908) 6 CLR 382, 398, O'Connor J said that the rule was 'little more than a formal expression of the inherent power to deal with its own process which the Superior Courts have always exercised'.

[69] Dey v Victorian Railways Commissioner (1949) 78 CLR 62, 91 (Dixon J).

[70] Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222; (2011) 35 VR 1, 8-9 [18] (Dixon J).

[71] [2013] VSCA 158; (2013) 42 VR 27, 40 [35] (Warren CJ and Nettle JA).

[73] Civil Procedure Act 2010 s 64; Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222; (2011) 35 VR 1, 8-9 [18] (Dixon J).

[76] Transcript of Proceedings, Bodycorp Repairers Pty Ltd v Maisno (Supreme Court of Victoria, S CI 2016 02044, Riordan J, 7 October 2016) 26 lines 26-31, 27 line 1.

[78] Ibid 41 lines 29-31, 41 line 1. Also see 119 lines 6-14.

[80] Transcript of Proceedings, Bodycorp Repairers Pty Ltd v Maisno (Supreme Court of Victoria, S CI 2016 02044, Riordan J, 10 October 2016) 158 lines 13-17.

[81] See Wentworth v Rogers (No 5) (Unreported, Supreme Court of New South Wales Court of Appeal, Kirby P, Hope and Samuels JJA, 3 October 1986) 17. Note that the relevant reference only appears in the unreported version of Wentworth v Rogers (No 5), not the NSWLR report.

[82] Trial Reasons [278] as extracted at [29] above.

[83] Transcript of Proceedings, Bodycorp Repairers Pty Ltd v Maisano (Supreme Court of Victoria, S CI 2005 09071, Elliott J, 20 May 2013) 1254 lines 30-31, 1255 line 1.

[86] Transcript of Proceedings, Bodycorp Repairers Pty Ltd v Maisano (Supreme Court of Victoria, S CI 2005 09071, Elliott J, 20 May 2013) 1261 line 28.

[87] Bodycorp also relied upon an affidavit sworn by its director, Murdaca, on 4 August 2016 in which he deposed to a conversation with Maisano on 23 July 2016. See [67] above.

[88] [2015] VSC 210.

[95] Transcript of Proceedings, Bodycorp Repairers Pty Ltd v Maisano (Supreme Court of Victoria, S CI 2005 09071, Elliott J, 20 May 2013) 1253 lines 29-30.