Williams & Anor v Toyota Motor Corporation Australia Limited (ACN 009 686 097); Toyota Motor Corporation Australia Limited (ACN 009 686 097) v Williams & Anor

[2024] HCATrans 22

[2024] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S157 of 2023

B e t w e e n -

KENNETH JOHN WILLIAMS

First Appellant

DIRECT CLAIM SERVICES QLD PTY LTD (ACN 167 519 968)

Second Appellant

and

TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED (ACN 009 686 097)

Respondent

Office of the Registry
  Sydney  No S155 of 2023

B e t w e e n -

TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED (ACN 009 686 097)

Appellant

and

KENNETH JOHN WILLIAMS

First Respondent

DIRECT CLAIM SERVICES QLD PTY LTD (ACN 167 519 968)

Second Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 APRIL 2024, AT 10.00 AM

(Continued from 10/4/24)

Copyright in the High Court of Australia

____________________

MR WALKER:   May it please the Court.  Your Honours, we have been apprised by our learned friends of some material they want to hand up to the Court in reply apropos that topic which concerns, as we understand it, the difference between us about paragraph 123 of the Full Court.  Could we simply, in anticipation, draw to your

attention – in the Toyota bundle of further materials, starting at page 32 – that portion of submissions below in which we had assembled and put to the Full Court the propositions which in large part found acceptance in the Full Court concerning the availability of the 2020 field fix from May 2020.  It extends, as I say, over three pages – pages 32 to 35; I do not need to take your Honours to anything in particular there.

GORDON J:   Could you just tell me what the proposition is that I am to seek to get from that material, Mr Walker? 

MR WALKER:   The proposition is that from May 2020, the field fix was available.

GORDON J:   Thank you.

MR WALKER:   I really do not want to go back to talk about the questions that may or may not, depending upon any success for us in this appeal, how that might be available to be looked at in a remitter.  I have already said what I want to say about that.

Your Honours, could I then turn to complete what we were saying concerning the proper use that we say needs to be made of the availability of the field fix as it affected the statutory measure of damages.  I have several times referred to Kizbeau 184 CLR 281 – I do not want to dwell on it in detail, but to remind your Honours in particular of the express acceptance at pages 294 and 295 in the citation from the compensation case Bwllfa & Merthyr Dare Steam Collieries v Pontypridd, with which your Honours are of course familiar.

That was cited, not so much notwithstanding it was a different kind of case, but largely because it had been a different kind of case.  Their Honours were calling it in aid as a matter which coherently operated against a number of different kinds of cases, hence the first sentence of that first full paragraph in the middle of 294:

A similar approach to that taken in damages cases has been taken in valuation cases.

An observation which is not an observation of intellectual confusion in the Court, let alone one that was being corrected by this judgment, but rather, what is implicitly advanced as a persuasive element of coherence across different kinds of cases in which the issue of value at an anterior date to the trial arises in the course of either measuring damages or, in that case, measuring compensation.

The discussion continues for the next two pages, including page 296, which starts its first full paragraph “In all of these cases” is, in our submission, a clear demonstration that there is virtue, not error, to be gained from the fact that, across different kinds of cases, when that issue arises for the measurement of what I am calling “monetary relief”, the proper approach is, when one is looking, in particular, for so‑called “true value”, to take into account those matters which, coming to light after the date in question, cast a correct light on that true value which, in nearly all of these cases of damages, of course, had been unknown.  That is, had in fact been affected without a plaintiff knowing by things such as a misrepresentation or a defect.

That is, plainly enough, leant, in our submission – if it needed it – the added authority of the approach taken in HTW Valuers v Astonland 217 CLR 640, and there, in particular, a similar approach concerning what we would submit is the robust merit to be obtained from seeing this approach followed in a number of different kinds of claims or cases, is in the passage starting at 658, in paragraph 38 and following. In paragraph 39, you will see, in particular, the reference to “many fields of law”.

I do not wish to dwell on any other aspect of HTW which, in our submission, strongly supports the argument that we have put in principle.  We draw to attention, of course, that in paragraph 40 there is one of the better known descriptions of the contrasting categories of matter that can, or cannot, be taken into account.

GAGELER CJ:   Mr Walker, are we now talking about true value, rather than market value?

MR WALKER:   We are talking about a value which is what the market would pay if it knew of that which was not known in fact at the time.  That is market value – like Spencer’s Case, it is a market value method, you hypothesise participants in a market, but instead of examining historically what the market then actually did ascribe as value – we can see that as retail price, here – you factor in the defect not known at the time of the acquisition.

So, I do not know that I have answered your Honour’s question one way or the other, but it is always a market value approach that we contend for, but it is a market that has to be hypothesised, because it did not ever exist at that time, to be aware of that for which the whole valuation exercise is being done, namely, to measure the remedy by way of compensation for, in this case, the statutory wrong, being the breach of the section 54 guarantee of acceptable quality.

GAGELER CJ:   So, a market price will always take into account expectations, which are generally probabilistic.  What you are saying, I think, is that we find the subsequent facts up to the date of trial on the balance of probabilities, and then they are taken in this hypothesised market to be true as at the date of the sale.

MR WALKER:   That is right, for the purpose of then the market value where an expert gets in the box and says a market informed of this problem with the gearbox or the steering wheel or whatever will not pay the retail price, will pay something less than that, and I estimate the discrepancy as follows.  So, it is a market value approach because it looks to the hypothesised and estimated behaviour of participants in the market, but it takes into account, in order to achieve what some of the cases call the true value, that which requires to be corrected in order to produce a measure of compensation for the wrong.  It is all for that purpose.

JAGOT J:   That would be supported by 54(4), which goods are taken to be of acceptable quality if the consumer knows or is told of the actual reason that ‑ ‑ ‑

MR WALKER:   Exactly.  So, in a case where you have a claim, it is because you did not know, because it was occult, and we do not have to worry about fraudulent vendors.  This is just a guarantee, it does not involve the vendor’s, or the manufacturer’s for that matter, state of mind.

GORDON J:   So, that hypothetical is then a hypothetical which is to identify the true value; the price that would have been paid by a hypothetical purchaser who knew of the defects with all of the relevant subsequent events taken into account, including the state of the repair?

MR WALKER:   That is right.

BEECH-JONES J:   And, Mr Walker, that includes not just the availability to fix but how long and how hard it is to get there?

MR WALKER:   All of that will be able to be taken into account by the experts, and then finally by what I will call the judicial valuer.  There has to be something in the nature of a broad brush.

GAGELER CJ:   Mr Walker, none of the experts adopted this approach, I think.

MR WALKER:   With respect, that is not really so.  I do not want to canvass what I provided the detail of yesterday, but the experts were directed to and did give evidence concerning the impact in the market of the, alternatively, “availability” – in the sense of, tried to explain – or implementation of the fix; yes, they did.

GORDON J:   No one was asked the question, were they, though:  would someone have paid a different price at the date of supply – the hypothetical purchaser – for a vehicle which has the known defects and the fix is going to be available in a month, versus has the defect but the fix is available in four years; is there a difference in value?

MR WALKER:   That is correct, and I should have answered the Chief Justice, yes.  That aspect, namely ‑ ‑ ‑

GORDON J:   I do not seek to correct you, Mr Walker.

MR WALKER:   ‑ ‑ ‑ the differential effect of what the true fact reveals upon those who purchased close in time to the fix – and some did – and those who purchased a long time away from the fix – and some did, such as Mr Williams – that seems in the Full Court to – for the reasons I put yesterday, we think that is encompassed in the nature of the remitter.  It is not clear to demonstration, but we think.  Your Honours appreciate that, in our submission, the findings of fact concerning the effect in the market of the availability we treat in our primary argument as going across the board.

There are no findings of fact below either so as to support the claim for damages or to provide an answer to the claim for damages, which, in the jargon, has been done in a so‑called aggregate way.  That is, across the board for the whole group.  There is no evidence which provides for what I might call a graded effect of the availability or the implementation by reference to date.

JAGOT J:   That is well within a judicial valuer’s capacity from the basis of the evidence that exists.

MR WALKER:   That is right. 

STEWARD J:   Can I ask you just to clarify that.  The damage arising from delay in the fix, do you say that is a 1(a) head of damage or a 1(b)?

MR WALKER:   It follows from everything I have put, yesterday in particular, that insofar as that delay produces effects of inconvenience, and it will not – as we know, for some people, they experienced nothing; they were fortunate.  The material which I have just drawn to attention, that book of further materials, drew the Full Court’s attention to the fact that some people did not have the fix because they had not experienced any shortcomings, et cetera.  So, when one comes to paragraph (b), it is necessarily and individuated inquiry.  It is paragraph (b) that you will see, of its very nature, differences between those who were inconvenienced by 17 returns to the dealer as opposed to those who were never inconvenienced, they just had their ordinary service intervals.

BEECH-JONES J:   But is there not a hypothetical degree of, or inconvenience, that the market would attribute in assessing value at time of supply under (a), and then there is the subjective level of “inconvenience” that the individual purchaser might experience under (b), and then you have to avoid double.

MR WALKER:   Yes, is the answer to all of that.  Yes. 

STEWARD J:   I asked that question because, looking back on Mr Gleeson’s submissions, it is said to be common ground, when the fix is in all value will be restored. 

MR WALKER:   That much is common, but we go further, of course. 

STEWARD J:   I know you do, but it means that whatever loss of value may presently exist, save for those who refuse to get their car repaired, loss is temporary. 

MR WALKER:   That is right. 

STEWARD J:   And that is why I say, what head of damage might then be actioned or might be in (b) alone. 

MR WALKER:   Quite so, and may we say, positing a class of those who refuse, your Honours know that there has not been an argument about mitigation, but we say that our primary – I might call it the more ambitious version of our argument – is that whether they get it or not the availability has the effect that, we say, the findings support.  So, it does not matter that they did not get it.

It is to be recalled that in relation to these vehicles – and this then is a bridge to the last point I want to make concerning the Williams appeal ground 2 – it is to be recalled that these are vehicles which when it came to expert views of their performance in terms of retaining value in the market where, of course, rival goods are other brands of car, that, notwithstanding the defect, these cars held their value more successfully than competitor offerings.  Your Honours will have seen that in paragraph 230 of the Full Court with respect to Mr Stockton’s evidence.

We are very much in the area where these are vehicles that have, in every sense of the word, continued utility over and above the salvage value.  That is not an attempt by us to canvass the seriousness of the defect in accordance with the findings against us, but, rather, to observe that the Full Court was correct – and this is my final point – to observe, given their Warren v Coombes mandate, error in the trial judge in his wielding of the broad brush – that everyone has to wield – by using as a point of departure the opinion evidence of Mr Cuthbert who provided figures which the trial judge discounted for a number of reasons I do not have to canvass but, nonetheless, took as being a useful guide for the judge as judicial valuer.

What the Full Court identified, and which is the subject of our friends’ ground 2, is their Honours’ determination that there had been insufficient regard paid by the trial judge to the effect of using salvage value as one of the so‑called bookends, and the evidence, which the Full Court reviewed in detail in the passages I am about to note, that Mr Cuthbert employed a method of asking whether there would be people who would pay over the salvage value and, if so, by how much, in the hope of a fix.

Can I remind your Honours, “salvage value” means what, in ordinary parlance, might be regarded as “scrap”, not in the sense of melting it down but in the sense of disassembling the vehicle, presumably so that everything except these unfortunate filters could then be put into lawful commerce by way of cannibalising it and spare parts.  Now, that produces a figure which, understandably, Mr Cuthbert – and I think it is common ground between the parties – regarded as, logically, surely the bottom end of any possibly conceivable effect on value.  That is, if the vehicle was entirely useless for what a vehicle is bought for, it is still able to be turned to a financially valuable account on what I will call a break‑up model.  That is what “salvage” is.

But your Honours will appreciate that that description is a world away from what the Full Court correctly, with respect, observed that the evidence and the findings with respect to that evidence by the trial judge showed about the continued utility of the motor vehicles.  People were driving them – that is where the smoke came from.  And it is, in our submission, not a viable argument in this Court to detect error in the Full Court’s substitution, as they are bound to, under Warren v Coombes – of their view that seventeen and a half per cent was too large a discount.

There was an identification of the use of salvage value and a build‑up approach as being the probable source of most, if not all, of the broad‑brush synthesis by which the trial judge came up with seventeen and a half per cent – but over and above that – and their Honours in the Full Court were correct so to do – their Honours said, we think seventeen and a half per cent, bearing in mind the continued utility being greater than, rendering salvage value a sensible point of comparison, we think 10 per cent is better.  That is in this area of evaluative assessment.  That is, in our submission, well within – indeed, it is the role of an appellate court faced with that kind of difference between the parties.

No error of approach is shown – that is, it is perfectly proper for a Full Court to consider for itself whether seventeen and a half per cent was appropriate. They decided it was not, and they did so by reference to material which, in our submission, is all of which factually well‑founded. Could I, in that regard, just take, as the most straightforward way of developing the point, the material that your Honours have already seen and then looking it is dealt with in the Full Court. This passage in the Full Court’s judgment is at 296 FCR 553, paragraph 166 and following for a number of pages, which I will identify. It is in the book of authorities, starting at its page 300.

To remind your Honours, the Cuthbert report which is referred to throughout this passage is that which you will find in the Williams book of further materials in this Court, 216 – I do not need to take you to that there – and, in particular, what is being discussed by their Honours in the Full Court in this passage will be found in these paragraphs 113 to 125.  We have tried to summarise the approach that you will see in that evidence in our written submissions, paragraph 53.  In particular, if one looks at the Full Court paragraphs 166 to 183, there is, in our submission, a careful – certainly, not erroneous – consideration by their Honours of the relevant aspects of Mr Cuthbert’s evidence.

Could I, in the course of that – all of which we commend to your Honours as displaying no error whatever –draw to your attention, just by way of emphasis, in paragraph 174, the second‑last sentence – apropos the trial judge’s findings:

Notably, there was no finding to the effect that the defect was so serious that without repair the vehicles were only able to be used for salvage.

That is an aspect of the argument we have put, and we put below, namely, that to start with salvage as a position from which one builds up is, obviously, apt to mislead.  Because this is not arithmetic, or mechanical, it does not matter whether or not minds may differ about what were the sources of the judge choosing seventeen and a half per cent instead of 14 per cent, instead of 10 per cent, et cetera.

What matters is, their Honours, considering all the matters for themselves, decided salvage value does have the difficulties – it may have produced the figure seventeen and a half per cent, and in any event, we think seventeen and a half per cent is too much, bearing in mind the considerations they gave to the continued utility of the motor vehicles and the fact that not all the motor vehicles were exhibiting the drawbacks in use, et cetera, et cetera.

GAGELER CJ:   Mr Walker, you mentioned earlier Warren v Coombes, what is the applicable standard of appellate review?

MR WALKER:   Correctness.

GAGELER CJ:   For damages?

MR WALKER:   Yes.  So, familiarly, it is not House v The King, but there is the need, nonetheless, to show error in an evaluative assessment, whether it be general damages or an estimate of future prospects in a case where the damages have to be assessed once and for all or, in this case, hypothesising an effect in a market that actually never existed.

So, it is the correctness standard which, in our submission, will be supplied – pursuant to Warren v Coombes – by the Full Court asking itself, would we have done that?  The answer that they came up with, no, we would not do that – we would do 10 per cent.  Now, 10 per cent, like seventeen and a half per cent, speaks a broad brush and none the worse for that in this area, obviously.  So, the standing of review is that the Full Court was required to substitute its own judgment.  That is the identification of error.

BEECH-JONES J:   Did the assessment of the benefit of the trial judge having heard Mr Cuthbert play any part in this?

MR WALKER:   None at all.  Could I remind your Honours, in the second passage in the reasons in the Full Court, where their Honours returned to this matter – you find in paragraph 303, page 578 of the report, bundle page 325 – their Honours were explaining that:

the Court does not have sufficient material before it to determine what allowance should be made for the fact that the 2020 field fix became available.

That is in their explanation, with emphasis, that their 10 per cent was before taking that into account.  They then went on to say:

At the hearing of the appeal, the parties indicated that, if the Court found error in the primary judge’s determination of the 17.5% figure, it would be open to this Court to re‑assess that figure.

So, there was nothing in the nature of – if I can call it this – an Abalos point being taken at all by the position of the parties during the appeal.  With respect, when one looks at the way in which all the parties, and the trial judge, and the Full Court approached this aspect of Mr Cuthbert’s evidence, it has nothing to do with the impression the judge forms from being in the presence of a witness as he or she gives evidence.  It has to do with reasoning.

The conclusions of the Full Court include the important finding at paragraph 200 in the Full Court, report 559, bundle 306:

The state of the evidence supported a submission to the effect that Mr Cuthbert’s opinion appeared to have been formed on the basis of a view that overstated the seriousness of the defect.

That is a more than adequate grounding for the Full Court to say that seventeen and a half per cent is therefore erroneous in the appellate sense, and paragraph 303 shows that the parties were content for them to substitute their own view.  That does not mean that there cannot be an argument that the Full Court itself was wrong in fixing on 10 per cent, but that issue is not before this Court.  The thing that is before this Court, pursuant to special leave, is whether they erred in changing from seventeen and a half per cent.  In our submission, there is no ground to identify error in the approach they took to identifying why they said seventeen and a half per cent was wrong and that their own view of 10 per cent should be substituted.

Now, there were other matters, not simply the salvage value matter, I do not need to dwell on them, but your Honours, I think, have already seen them – paragraphs 205 to 207 in the Full Court’s reasons.  The process by which the substitution of 10 per cent for seventeen and a half per cent is explained by their Honours, follows from 303 onwards through to 316, in our submission, an entirely orthodox approach in an appeal by way of rehearing for a court to make the finding which not only the parties in that case said they could, but also which was required by their appellate task.

Recalling, in particular, that the 10 per cent integer is before taking into account the 2020 fix, in our submission, the issues between the parties on the other aspect of the two appeals – namely, whether or not the availability of the fix meant that there was no loss at all – will not affect the correctness of the Full Court’s approach to 10 per cent.

May it please the Court.

GAGELER CJ:   Mr Walker, before you sit down, do you have anything to say about the orders in your appeal?  Mr Gleeson has proposed some amendments to them.  You could take that on notice and ‑ ‑ ‑

MR WALKER:   May I flag this.  In the course of argument yesterday, I had to recognise, as I think our submissions did, to a degree, that the terms of the remitter order themselves is difficult to work through, with the various contingencies that might fall out in this Court, and that, in particular, is an area – if I may have the opportunity to revisit that, perhaps by some discussion with my friend, I would appreciate that.

GAGELER CJ:   Yes, perhaps even later today, we can hear from you on that.

MR WALKER:   I am obliged to your Honour.

GAGELER CJ:   Yes, Mr Gleeson.

MR GLEESON:   Your Honours, I propose to reply in this order:  firstly, the Toyota appeal; then our ground 1; and then our ground 2.  In respect to Toyota, could I attempt, in my humble way, to summarise the argument you now have, as it is fully developed.

Proposition one from Toyota, is when assessing damages under subsection 272(1)(a), it is the value of the goods at the time of supply that governs.  We agree.  Proposition two is that, for every member of the current group who have not resold and not received a fix, there was a reduction in value on supply resulting from the breach, of some amount, which Toyota says is 10 per cent and we say is 17.5 per cent.  So, we both agree there was a reduction in value on supply.  We differ on the figure.

The third proposition, in answer to your Honour Justice Beech-Jones, is that if a notional consumer in the current group had sued to judgment at any time after supply and before May 2020, they would have attained those reduction in value damages under (a), and they would have been entitled to any individuated consequential loss under (b), provided they were not double counting.

GAGELER CJ:   And provided the trial occurred after 20 May, when these circumstances were known.

MR GLEESON:   Provided it occurred before 20 May and reached judgment, Toyota accepts they would have got 10 per cent, each of them, plus anything they could prove individually under (b).  And we agree with that proposition, save for the figure.  Where we differ is on their proposition 4, that once the field fix becomes “available” in 2020, by which they mean, primarily, technically available at no cost, there is then a complete avoidance of the reduction value under (a) and, to use an accounting analogy, one restates the reduction in value on supply.  Instead of its 10 per cent, it is now zero.  And that is true for the whole group, irrespective of when the fix is practically available to them.

The result of that, on Mr Walker’s primary case, is the order for remittal is set aside.  His alternative case, orally, is that if “availability” means practical availability, there needs to be a remitter to determine which lucky people get the 10 per cent reduction in value and which get nothing, the difference being their individual position at the time of not just trial but, he says, judgment.

Now, his reasons for that view include these propositions I wish to address.  The first is that an avoided loss is no loss at all under 272(1)(a).  And we think that seeks to pick up the third of McGregor’s traditional rules on avoidance.  We have given your Honours – I apologise for the form of it – a printout from the 21st edition but these three rules have of course been in McGregor for a long time.  We think Mr Walker is trying to map himself onto the third rule in paragraph 9‑006 that if steps have been taken:

before or after the wrong –

including by a third party:

that avoid the loss –

in fact:

then this reduces the recoverable loss.

He cannot be relying on the first rule, that this was a reasonably avoidable loss, because the primary judge’s findings around paragraph 500 rejected the mitigation defence and that was not appealed against.

EDELMAN J:   It is a little odd to speak of mitigation in the context of specific performance.  So, why would one speak of mitigation in the context of a money equivalent of specific performance?

MR GLEESON:   We agree.  We say it is wrong in principle when looking at 272(1)(a) or what it is doing, which is monetising specific performance.  It is just the wrong inquiry.  That is our short answer to what is his primary argument. 

BEECH-JONES J:   So, Mr Gleeson, one other way of looking at that difference between you is whether the words “damages for” in 272(1)(a), is that a reference to money in respect of a reduction, or loss arising?  I think one of Mr Walker’s limbs is to say, if you have a fix, you might have had a reduction in value, but you have no loss arising from the reduction in value.

MR GLEESON:   That is the second difference between us, and addressing that, we say “damages” is used in the simpler sense of an unliquidated sum of money which the Court affixes to measure the creature which is in paragraph (a), which is the reduction in value on supply, and there is no intermediate inquiry into whether the value differential has caused loss or damage to, necessarily, a person, because then one is moving away from the goods under (a) to an affected person’s loss or damage under (b), and your Honours will have observed that (b) does use the words “loss or damage”, whereas (a) does not.

GORDON J:   It is another way of saying that the chapeau to both is like an umbrella under which both comprise elements of the analysis.

GLEESON J:   Yes.  Then under the chapeau ‑ ‑ ‑

GORDON J:   You have ‑ ‑ ‑

MR GLEESON:   Different things.

GORDON J:   Yes, you have a valuation exercise giving rise to a sum and then you have loss or damage in the more traditional sense of consequential loss.

MR GLEESON:   Yes.  So, when you do value, in a valuation sense once you measure the correct value, that is the damages.

GORDON J:   Giving rise to the compensation for the breach of the guarantee?

MR GLEESON:   Yes, your Honour, that is the difference, whereas (b) in terms tells you that you are now looking at the person, not the goods, and you are looking at loss or damage suffered by them – so, that is causation – within the limits of reasonable foreseeability.

GLEESON J:   But in any event, can you not conceptualise this as damages for the loss of benefit of the guarantee?

MR GLEESON:   Yes, but the loss of the benefit of the guarantee measured as, I would have walked out with a car that was not deficient – that is the sum of money – but not any further inquiry.  That is the second main difference between us in principle.  The third proposition he relies upon is that, although they are not before the Court, the people who have re‑sold, he says, may have crystallised a loss which they can recover under (a), but people who have not resold are left exposed to this possibility of having their reduction in value eviscerated by a later event.  We would suggest that distinction is not reflected in the provision.

BEECH‑JONES J:   You mean people who resold for less, in knowledge of the defect?

MR GLEESON:   Yes.  So, the one group of people, he says, can get the money under (a).  If you resell at less before the fix has emerged, you can say that reduction in value which occurred on supply has, for me, had a further deleterious consequence, therefore you get money.  It is really, perhaps, an aspect of the “loss or damage” point.  He is treating them as people who have proved the intermediate step of loss or damage, whereas the person who has simply suffered that loss walking out of the showroom, he says, they are always at risk of having their claim defeated by the later fix.

GLEESON J:   But, Mr Gleeson, even if you sell the car for a very large sum of money, you have lost the benefit of the guarantee throughout the period that you have had the car.

MR GLEESON:   You have lost the benefit of the guarantee, and if you have, for whatever reason, sold it for a large sum of money, that is extraneous to the interest that is being protected.  That is what his Honour correctly dealt with in the mobile phone example put by Toyota, at paragraphs 304 to 305 of the judgment, which his Honour correctly rejected at 322.

BEECH‑JONES J:   So, on your case, with people who got the resale of what the price paid, because neither the purchaser or the seller were aware of the defect, the person who sold the car and got their money back would still get compensated for the loss in value, and you say that is just a consequence of the interest protected by 1(a).

MR GLEESON:   Yes.  I do accept that because the manufacturer provision defines the affected persons as not just the consumer, but the privy, there is an issue – which is not before the Court – of can the purchaser assert the remedy, and the answer is they probably can, but principles of double recovery will make sure you do not compensate for the reduction in value more than once.

GLEESON J:   This is the point that Mr Finch makes in his outline.

MR GLEESON:   Yes, and that is just answered by saying we are compensating for the performance interest which was diminished on the original supply, but we are recognising the person in the real world who might have to claim could be a privy.  There is one reduction in value, you ascertain who gets it, the manufacturer can never required to pay that same reduction in value more than once.

EDELMAN J:   What is the textual basis for that reasoning?

MR GLEESON:   It would work this way:  the entitlement is given to each affected person.  So, each could say, I assert the claim, but it would be principles of double recovery which would provide the answer.

EDELMAN J:   So, the affected person is effectively a standing rule for recovery of an amount of damages?

MR GLEESON:   Yes, I think the textual basis is in the definition of an affected person.

EDELMAN J:   But the definition of an affected person extends to those who purchase from the consumer, what you are calling their privies.

MR GLEESON:   Yes.

EDELMAN J:   What I am just asking is what the textual basis is for restricting the recovery to only one payment from the manufacturer to either the consumer or the privy.

MR GLEESON:   Well, I am suggesting, although you do not have to decide it here, it is one payment for the reduction in value; (b) which is about consequential loss, it is the person – there could be more than one.  What we submit is the textual basis is really just the concept of privies in “affected person”; why have they defined that group of people to recognise, in a practical consumer statute, that the person who needs to assert the claim could be someone in the group, and in a practical way it has done that.  Of course, with the supplier remedy it is simply the consumer.  At section 259 there is no broader group of privies, and that is to recognise, we think, that the manufacturer’s responsibility for the guarantee needs to extend practically to the privies.

STEWARD J:   Mr Gleeson, do you accept that there may be an element of double recovery for a member of the class who receives an award of damages as a result of this action and who then has their car fixed for free?

MR GLEESON:   No, no.

STEWARD J:   Why not?

MR GLEESON:   Because they have suffered the loss in the performance interest on supply.  They could have got specific performance and equity.  They are getting money to make them good for that differential.  What then happens, your Honour ‑ ‑ ‑ 

STEWARD J:   Then they are getting their car repaired and you have agreed the value is restored.

MR GLEESON:   Well, two points, your Honour.

STEWARD J:   Sure.

MR GLEESON:   I have agreed – and I do not retreat from this – that, provided we are looking at either practical availability or, more correctly, application ‑ ‑ ‑ 

STEWARD J:   From the moment it is actually fixed.

MR GLEESON:   ‑ ‑ ‑ that what the experts agreed was prospectively going forward value is in the same position as if there had not been the breach of the guarantee.  That is what I have agreed with.  So, in terms of our curves, you have jumped back up to where you would have been.  That is what I have agreed with.  That is what the Full Court found in paragraph 123, that we criticised for other reasons, but Mr Walker steered away from.  The Full Court’s finding is it is a restoration on an ongoing, forward‑looking basis so he has to find error in that paragraph and say, no, it is a restoration ex ante, so I have got that issue.

The other answer to your Honour’s question, which is the fourth difference between us that I was coming to, is section 271(6).  If the person has exercised the election under 271(6), and we agree there is an election, and if they have got the repair within a reasonable time, then that is the answer, they cannot get both; reduction in value damages are turned off by that section.  But the deliberate choice ‑ ‑ ‑ 

STEWARD J:   What if they have already got the damages?

MR GLEESON:   Sorry?

STEWARD J:   What if they have already recovered their damages in this action?

MR GLEESON:   They keep them, because what – this is my submission, that what 271 ‑ ‑ ‑ 

STEWARD J:   Is that a windfall?

MR GLEESON:   No, no windfall at all.  What it is saying is, prima facie, you get the reduction in supply damages on supply.  It is then saying there is one situation in which your entitlement can be turned off, and that is subsection (6), and if (6) is not activated you can claim your money, which is the consequence or the proxy for your actual performance.

The reason that must be right, your Honour, is:  consider the case where the consumer does exercise the election under (6) and the manufacturer fails to remedy – that is remedy in fact within reasonable time, on Mr Walker’s argument – Toyota, outside a reasonable time and having not honoured the guarantee, can say, I have now offered you a fix the day before trial or judgment and your reduction in value has gone from 10 or seventeen and a half per cent to nil.

In other words, having done outside a reasonable time, after the consumer has elected it, Toyota can say it does not matter – and your Honour Justice Jagot raised questions on this topic yesterday – because on his argument, the reduction in value has gone from a figure to nil.  Now, that shows that it is 271(6) plus the correct view of 272(1)(a) that solves many of the problems in the case.

BEECH‑JONES J:   So, you are saying that 271(6) reinforces that it is what you have been referring to as:  it is the performance interest that is protected by (1)(a).

MR GLEESON:   Yes.  Your Honours, the fifth difference is Mr Walker says you do not have to worry about the fact that his argument will give no damages under (a) to the people who have suffered what has been described as the years of misery because they can fall under (b).  There is a couple of answers to that.  The first is that, although misery is a neat way to describe what we are talking about, we are not simply talking about loss of amenity.  What we are talking about is a vehicle under (a) which has a reduced value because of the failure to comply with a guarantee manifesting in a series of consequences.

I think it might have been slightly trivialised yesterday that as the white smoke blows out the car and, if you have your windows down, blows into the family and makes you feel sick, that that should be viewed only as a form of loss to the person, to the particular person which (b) is about.  We would submit, no, a car that leaves the showroom with that strong propensity to interfere with normal driving behaviour, as a good, has less value, irrespective of the extent to which the person may suffer the claims that are compensable under (b).

EDELMAN J:   Except to the extent to which that propensity is being taken into account under (a), it cannot be recovered under (b).  It is only beyond that – the extent to which you have recovered from that propensity.

MR GLEESON:   And that is the effect of subsection (3).  We fully accept that, but what Mr Walker’s argument leads to is, because his repair offered the day before judgment has turned off (a), you now can no longer look at the goods as deficient goods, and no longer look at the comparison between what you paid for and what you actually got at the time.  You can only look at the extent to which you suffered an individual loss under (b).

We have given your Honours what we think is a common example, in our reply submissions at paragraph 14, of the case where the parent buys the car and allows it to be used by the child.  The child will not be an affected person.  None of the experience of the defective car can be recovered on Mr Walker’s argument under (b) because they are not affected person, and it cannot be recovered under (a) because the fix has been offered.

Your Honours, I think the final main difference between us is this:  that it arises from some questions this morning.  Your Honour the Chief Justice asked is the true logic of Mr Walker’s argument that every fact known at trial is then to be taken into account as a certainty known to the parties at the time of the hypothetical bargain on supply, and his answer was, I think, yes.  One difference between us is we say, no.  If one takes into account everything at trial, one does so for a more restrictive purpose, which is to ascertain what the parties hypothetically could have bargained over at the time of supply, and things that at the time of supply could only have been known as possibilities do not get converted into certainties in the hypothetical bargain.  We do not think any expert has supported the approach Mr Walker has argued for this morning, and there is no finding supporting it from either court below. 

GORDON J:   You do not take issue, though, with Mr Walker’s thought he was qualified.  That is, it is subsequent events which cast correct light on the true value.

MR GLEESON:   It is the question how he seeks to use them to cast light on the true value.  What he seems to be seeking to do is to say you attribute to the hypothetical bargain in 2016 the perfect knowledge which the parties had after May 2020, and you then ask what price would they have struck knowing that perfect knowledge?  The difference between is, we would say, even if you take into account everything known up to trial, you are trying to hypothesise the bargain that could actually have been reached if parties could have had the degree of knowledge, including of matters which were mere possibilities and not certainties, at the date of the hypothetical bargain. 

That is the way Justice Lee, we submit, has set up the question in paragraphs 1 to 3, and we submit there is no error in saying that this is the type of knowledge which the parties in the hypothetical bargain could have had, including knowledge of a substantial likelihood of the problems, but also – see the last sentence in paragraph 2 – an appreciation if there were issues, the cost of fixing them would not be his responsibility.  So, in other words, some looking forward as to the possibilities at the date of supply.

I rush to say that that is a difference between us in principle, but it will not alter the result in this case on the facts.  So, can I deal with this issue at two levels.  First, let us assume Mr Walker is correct.  He indicated to your Honour Justice Beech‑Jones that, for logical consistency, you do not just attribute the fix.  So, you do not just attribute knowledge in 2016 that a fix will emerge four years down the track, you attribute knowledge of every other fact which has become known by the date of trial.  If that be the approach, we would submit, based on the evidence and the findings you have, these would be the facts that you would attribute to the hypothetical bargain.

This picks up, perhaps, your Honour Justice Edelman’s question about an intermediate position yesterday.  The facts would be, firstly, there is no known repair available today, therefore, it is not a case of a simple swap in, swap out on a routine service, cf. Dwyer.  Next, today, the manufacturer does not know the root cause of the problem.  Next, the manufacturer is going to have much difficulty in finding the root cause and in finding an effective fix, and will take years – not months or weeks – to do so, and “today” – thank you, Ms Bathurst, for that help – means the hypothetical bargain being struck at whichever date in the period we are speaking of.  These are the facts you attribute because you have perfect knowledge from the trial.

The next one is that, in the course of trial and error, fixes will be found which, when applied, do not work and make the problem worse.  In the present case, that is the first fix and the second fix.  Next, throughout this period, the vehicle is likely to – and in many cases will – exhibit the troubling defect consequences in normal driving conditions, even while Toyota is still looking for a fix.  Next, even when the fix becomes technically available in May 2020, it will not be offered to the whole group immediately.  Your Honours, that is apparent from paragraph 500(2) of Justice Lee, that the letter ‑ ‑ ‑ 

EDELMAN J:   Sorry, which paragraph?

MR GLEESON:   Paragraph 500(2), that in August 2020, four months after the technical discovery of the fix, the letter was sent only to some group members – namely, those who owned pre‑2018 models – extending the warranties in a qualified fashion that, if required, they will organise a replacement at no cost – not that they definitely will.  It is, not even four months later, offered to everyone.  The reason for that is Toyota was, of course, saying that the second fix – the 2018 fix – was effective, even though at trial it is found not to be.

Next, there will be, in any event, substantial delays likely in when the fix will be made practically available to each person in the group.  Mr Williams’ experience at primary judge 151 is an example of that.  The extra evidence we have handed up answers Justice Gordon’s question from yesterday on what was the underlying evidence to support our submissions that it was likely to take years before the full fix would be rolled out.

The materials your Honours now have, which is called the Williams parties additional bundle of materials, is that supporting evidence.  The high point is page 32, which is where Mr Stockton calculated that, on the current rate of the rollout, which is about one or two thousand a month, it was going to take 93 months to make it practically available to everyone.  So, you would attribute, in the hypothetical bargain, the knowledge that it may take years before you receive it.

STEWARD J:   Was this evidence accepted and made a finding of fact by Justice Lee?

MR GLEESON:   This was the evidence that only arose after the Full Court’s letter.

STEWARD J:   I see.

MR GLEESON:   I am sorry, it was before Justice Lee.  Its relevance for this purpose became critical after the Full Court’s letter, when we said you cannot apply the simple formula because some people are going to take up to seven years to get a fix.  So, that would be the complete suite of facts you would attribute to the parties at each stage.

GORDON J:   Assume that you did attribute each of those facts at each stage.  It is a problem, I think, in the sense that it results in a global assessment rather than an individual assessment with the result.  Whereas, if one took those nine facts, as I wrote them down, and applied them, one would get a different result in terms of value under (a) depending upon the individual group member’s position.

MR GLEESON:   It is theoretically possible what your Honour says is correct, but with an element of practically and pragmatism as to how this trial was run.

GORDON J:   That is a separate question.  What I am asking is a question of principle first.

MR GLEESON:   As a question of principle, because we are dealing with mass‑manufactured goods, we are not dealing with a bespoke individual Porsche 911 that particular people like.  The defect is a defect across that entire range of goods.  If there is a repair, it will be across the entire range of goods.

It is possible, because of that commonality in the goods, at least under (a) – we are not talking about experience under (b) – it is possible to say, looking at all those matters as a set of matters, certainly, for Mr Williams walking out in 2016, seventeen and a half per cent seems a little on the low side even for the hypothetical bargain.  But because the state of knowledge of those matters I have been to on the findings in this case did not change over the four years – they did not change over the four years – on this case, you can comfortably get the same answer on the hypothetical bargain throughout the period.

BEECH-JONES J:   Is there not a variation about time of sale on that approach?  Because the early fix – and I think Justice Steward asked this the other day – for someone who bought in, say, the middle of 2019, the problems that you pointed out with the early fixes do not arise.  So, it is not subjective to the purchaser, but the variation would be, effectively, a sliding scale from the time of purchase, would it not?

MR GLEESON:   For a person who buys in 2019, a number of the facts I have just been to are now facts in existence at the date of supply so, depending on where you buy in the four years, they shift from being matters known after the event to actually matters known immediately prior to supply.

EDELMAN J:   No, but you are much closer to the fix.

MR GLEESON:   You may be closer to the fix, but the person who buys in 2019 is still in the position, on the evidence in this case, there is no greater knowledge as to whether the fix is likely to come.

GORDON J:   I do not think that is right.  I think that is the premise which we are challenging.  So, for example, if you have a 2019 buyer and the evidence at trial is a fix is going to be available to that person within four years, their value is very different from someone who bought it in 2016 and who got the fix immediately.

MR GLEESON:   Well, your Honour ‑ ‑ ‑

GORDON J:   This is a valuation exercise.

MR GLEESON:   Well, I have said that theoretically might be right, but I have also urged that it is appropriate in this consumer protection context to have a degree of practicality and pragmatism about the process.

GLEESON J:   Mr Gleeson, what you are describing now is not your preferred approach.

MR GLEESON:   No, this is the alternative approach.  But I am saying, in the worst case against us, yes, you might grapple with this question, but in a practical sense in this trial, Mr Walker’s predecessors did not attempt through the experts to suggest that that produced a relevant difference.

I will recall for your Honours, if I might, that the only expert they put up was Mr O’Mara.  Mr O’Mara – you will see this at paragraphs 350 through to 351, this is their only expert on these questions.  He started from a position in writing that it was impossible to quantify a reduction in value, even if Mr Williams’ vehicle – and he was a Toyota man, because he was trying to argue it was not even a serious defect.  Then you see in 351 he “retreated” from this position and he said:

he could not draw any conclusions –

about the matter and “he had not engaged” in the relevant analysis, and by the end his position at 351 was:

he assumed the Core Defect does result in a reduction of value, albeit one –

that he could not place any figure on.  So, within this trial you have Mr Cuthbert, who you can see back at 348 to 349 was taking into account a range of possibilities, and in particular at 349 he was valuing the vehicle on supply using information today, and he was not altering his assessment in that context.  You had Mr O’Mara, no value relied at the end of his argument.

EDELMAN J:   Mr Gleeson, do you accept what Mr Walker said, that the expert evidence does not address a case that is put on this alternative basis that you are now putting as an alternative, maybe other than to the extent that the heat map might suggest that one could go up to, say, 40 per cent where there has been three or more years after purchase.

MR GLEESON:   The heat map addresses it in that incidental fashion, and it confirms that matter.  But Mr Cuthbert has addressed it to a certain extent in the paragraph I took you to, which is 348(3) and 349.  But, what was not done – and this was really in Toyota’s camp – what was not done was for Toyota to say to the experts, in a full‑blooded way, I want you to assume every fact known at trial – of the nine points I have made, or some variation on them – and what, in the light of that, do you say was the value of each vehicle on supply, having regard to how close it was to the fix.

So, my answer to your Honour Justice Gordon’s question is, yes, one can see in valuation sense – that is a potential way of thinking, but in this trial that was not the approach taken by Toyota because their theory was, look at the later date, do not look at the date of supply, and, in any event, Mr O’Mara – life is tough, these vehicles are as good as you can expect for $50,000 to $80,000.  That is our alternative approach.  As to our primary approach ‑ ‑ ‑

GORDON J:   Sorry, can I ask one more question, just to complete, so I understand it.  So, if we take what you described as this “practical and pragmatic” approach, then on that alternative case, one is having a debate about 10 per cent versus 17.5 per cent.

MR GLEESON:   Yes.  Of course, more precisely, was there an irrelevant appellable error in 17.5 percent?

GORDON J:   Sorry – I put that in those terms, but, in other words, the practical and pragmatic approach is that, although the principle might be looked at in a different way, one has to deal with that issue, as a resolution of that issue.

MR GLEESON:   Yes.  So, the steps would be, first of all, we have to defeat the proposition that the later fix turns off the (1)(a) remedy altogether.  We have to establish that.

GORDON J:   Sorry, I am just dealing with this alternative case, now.

MR GLEESON:   Yes, yes, on the alternative case, yes, I agree, your Honour.  Can I just come to what is our primary case and give your Honours two references?  Firstly, we have handed the Court Spencer’s Case 5 CLR 418, Justice Isaacs at page 441 in the classic passage where his Honour says, in the resumption context, in looking at the hypothetical bargain:

We must further suppose both to be perfectly acquainted with the land, and conizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity . . . surrounding features, the then present demand for land –

So, we have a focus on the circumstances at the date of the valuation:

and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property.

That reference to likelihoods, we submit, conveys with it the reasonable expectations which could be formed at the date of the valuation.  Let me give two examples.  Firstly, let us assume the land is subject to a no‑build order because of contamination.  Secondly, let us assume that the land is subject to a restrictive zoning – only two storeys.  If they are the circumstances known at the date of the hypothetical bargain, then one can take into account the likelihood or the possibility that they might be relaxed, but one would not feed into the bargain as a certainty something which is known only at the trial – namely, that the order has been lifted or the zoning has been changed.  The second reference, your Honours, is in HTW Valuers, which is in tab 9.

BEECH‑JONES J:   Could I just ask, the words “perfectly acquainted” – if it turns out, unbeknownst to everyone, it is affected by asbestos, and then a year later there was a magical cure for asbestos, what does the seller and the purchaser, who was perfectly acquainted with the land – do they take into account that there is now, effectively, a way of eliminating, at almost no cost, asbestos contamination, or not?

MR GLEESON:   Our submission would be they – one has to look to the likelihoods.  One is not conducting a full hindsight analysis, one is using later events only to the extent they bear up the likelihoods that could have been taken into account at the time.  In HTW Valuers 217 CLR 640, which is tab 9, at 661, the end of paragraph 44, there is this statement:

In carrying out valuations, he had to take account of risks so far as the market perceived them to be present realities at the date at which value was to be fixed.  The task of valuation is to be conducted without hindsight – that is, without knowledge of events which have no happened by the date at which the value is to be ascribed, though they have happened by the date on which the valuation takes place.  The task is different from the task of assessing loss –

which is:

conducted with hindsight.

So, we would submit this is hypothetical valuation at a date of supply, and this is the correct approach to do it, therefore you can take into account the possibility of a fix at some unknown future point.  You do not build into the hypothetical bargain the certainty of a fix.

Your Honours, I notice the time.  I am meant to sit down.  I was wanting to say about 10 minutes on ground 2, which is very important to us, of course.

GAGELER CJ:   Yes.  We will take the morning adjournment – no, I think it is better that you complete your 10 minutes.  Then there will be a question of the orders.  We do not necessarily want to hear you on that, it would be better if we have an agreed document that sets out the alternatives, but you can tell us how you would deal with that when we come back after the morning adjournment.  You take your 10 minutes now.

MR GLEESON:   Yes, if your Honours please.  So, if the Toyota appeal is defeated, the next step, logically, is our ground 1, which is whether we are correct that the remitter is not necessary to do the a x ^b/_c calculation, in particular, the ^b/_c.  We have put our submissions that the Full Court was in error to put forward that formula.  There has been no defence of the formula by Mr Walker, at least no alternative position.  So, we would ask the Court, based on everything we have submitted, to allow our ground 1.  That brings us to ground 2.  Firstly, there is a difference between the parties in terms of the standard.  It is an evaluative assessment by the primary judge in which the significance to be attributed to Mr Cuthbert in the light of his evidence was an advantage which Justice Lee had, and that should have been taken into account by the Full Court.

Next, the primary argument advanced this morning was that Justice Lee was in error in treating Mr Cuthbert, in particular, his salvage value benchmark, as of very significant weight in Justice Lee’s seventeen and a half per cent.  That is a wrong assessment of what Justice Lee did because, firstly, he looked at a body of material and gave very significant weight to the primary findings of fact about the nature of the defect consequences.  Secondly, he looked at all of the experts with circumspection, including Mr Cuthbert, and came up with a figure significantly below Mr Cuthbert.

Thirdly, in any event, Mr Cuthbert did not make the error of simply building up from salvage value that the Full Court imputed to him and, derivatively, to Justice Lee.  You were referred this morning to the Full Court commencing at paragraph 166.  Could I draw attention to three paragraphs in what follows – and you have the primary evidence of Mr Cuthbert.  The three key paragraphs are 172, 181 and then 186.

At 172 – and you have seen the primary evidence – Mr Cuthbert said when he was applying a discount to market value – so, he is not building up from salvage, he is discounting down from market value of a new vehicle, which had a defect – he would take into account six factors.  In those six factors, you will see that salvage value is merely one of them and it sets a lower bookend.  So, to suggest he is building salvage value as the foundation and then trying to find an increment above it just does not reflect the method which Mr Cuthbert said he applies generally.

Then at 181, when Mr Cuthbert says, this is my opinion, he says these are the matters I take into account and, again, salvage value is but one of those matters, it is paragraph (c), and it is not the foundation from which a figure is built up.  Importantly, paragraph (a):

the seriousness of the [defect and defect consequences] –

is the starting point of his approach.  Now, if one comes then to the third paragraph, which is 186:

Mr Cuthbert may not have evaluated for himself the required reduction in value having regard to the factors he described, but rather posited a buyer considering the amount on top of salvage value that the buyer would pay on the basis that –

there would be some purchasers who would pay more than salvage hoping they could find someone to fix it.  Paragraph 186 is apparently the Full Court’s reading of Mr Cuthbert, that Mr Cuthbert did not carry out the method which he has told the Court he did carry out, and instead, he has allowed salvage value to drive his inquiry.

Your Honours, the short submission, in reply to Mr Walker, is he has not demonstrated, on the evidence of Mr Cuthbert, where Mr Cuthbert departed from his method and did the thing which is in paragraph 186, and he has nowhere demonstrated where Justice Lee was treating salvage value as the primary or driving feature of his valuation.  And so, when your Honours, under the appropriate standard of review that the Court below should have adopted, including the caution in interfering with Justice Lee’s assessment, determine whether this Full Court has erred, in the end, the critical paragraphs of the primary judgment that we say reveal no appellable error are, firstly, the way the problem was set up in paragraphs 1 to 3; secondly, the observations in paragraph 170 about what knowledge would be imbued to the consumer; thirdly, at 198, the essential reasons why this vehicle was different to the Dwyer vehicle.

Next, at 274, that is a correct identification of the hypothetical bargain; and likewise, at 276, his Honour is asking the correct question. 

At 299(1), his Honour has addressed our contention that subsequent information which bears on the assessment of the value at supply can be taken into account, and he has accepted that correctly at 300.

Paragraph 328 explains exactly how his Honour’s approach fits with HTW Valuers and Potts v Miller.  At 331, his Honour is addressing the correct question.  At 348 and 349, his Honour has looked at the Cuthbert’s evidence taking into account material today, and, critically, after reviewing all of the evidence, including the heat map, those key paragraphs between 391 and 394.  And what you have not really heard today from Mr Walker is a real explanation for why 391 to 394, as a result of the entirety of what went before it, why that does have an appellable error.  So, your Honours, for those reasons, we would submit the seventeen and a half per cent would stand, should have stood, and therefore will stand in this Court.

May it please the Court.

GAGELER CJ:   Subject only to receiving a communication from the parties as to the form of the appropriate orders, the Court will reserve its decision in these two appeals.  The form of that communication is preferably a document provided by the end of the day.  If there is seen to be a need to mention the matter, that can occur during the course of the afternoon.

MR GLEESON:   I might just shortly – can I mention this, your Honour – there is one question Mr Walker’s alternative case on a limited remitter.  We can deal with that by agreement.  The other difference between us in the orders we handed up was in the unlikely event, we would submit, we lose the Toyota appeal.  The difference between us is we agree, then the costs in this Court follow, but in the court below, what happened in the Full Court was each paid their own costs, because there was substantial success for each side on a whole range of issues.  We would be arguing the costs order in the Full Court remains as it is – each pay their own – and the costs order at first instance will be remitted to the primary judge.  That is the area we might have a real dispute.

GAGELER CJ:   Very well.  The Court will take the morning adjournment.

AT 11.24 AM THE MATTER WAS ADJOURNED