Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd (No 3)
[2022] VSC 283
•31 May 2022
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2017 00289
BUSINESS SERVICE BROKERS PTY LTD (ACN 069 049 994) Plaintiff v OPTUS MOBILE PTY LTD
(ACN 054 365 696)
(and others according to the Schedule)Defendants ---
JUDGE:
Connock J
WHERE HELD:
Melbourne
DATE OF HEARING:
8 and 9 March 2022; 15 March 2022 (further written submissions)
DATE OF JUDGMENT:
31 May 2022
CASE MAY BE CITED AS:
Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd (No 3)
MEDIUM NEUTRAL CITATION:
[2022] VSC 283
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PRACTICE AND PROCEDURE — Pleadings — Application to file a further amended statement of claim — Application for amendment under r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Amendment application general principles — Embarrassing allegations — Strike out application — Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 — Ample opportunity — Leave to amend granted in part — Multiple previous pleadings and draft pleadings — Civil Procedure Act 2010 (Vic) ss 7, 8 and 9 — Delay — Explanation for delay — Claimed prejudice — Overarching purpose — Whether proper basis for claims established — Limitation of actions — Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.
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APPEARANCES:
Counsel Solicitors For the Plaintiff Ms G Schoff QC with
Mr M TehanDanaher Moulten For the Defendants Mr D Collins QC with Mr D McAloon Clayton Utz TABLE OF CONTENTS
Introduction and Summary............................................................................................................. 1
Affidavits and submissions............................................................................................................. 9
Part A: Principles and observations – Amendment applications.......................................... 10
Part B: Strike out, stay and summary judgment principles................................................... 15
Part C: Case management, Aon, CP Act, claimed prejudice and related matters............... 16
Part C.1:Optus Entities' position and submissions.............................................................. 16
Part C.2:TeleChoice's position and submissions.................................................................. 19
Part C.3:Consideration – case management, Aon, CP Act considerations, claimed prejudice and related matters................................................................................................................... 21
Part D: Paragraphs 9–36 – Revised Telstra Revenue Claims.................................................. 21
Part D.1:The paragraphs in question..................................................................................... 21
Part D.2:Optus Entities’ position and submissions – Revised Telstra Revenue Claims 28
Part D.2.1:No real prospect of success.......................................................................... 28
Part D.2.2:Revenue Representation is embarrassing and related matters.............. 30
Part D.2.3:The terms of the Intended Telstra Appointment are not sufficiently identified.................................................................................................................................. 32
Part D.2.4:The calculations in Annexure A are embarrassing.................................. 34
Part D.2.5:Numerous facts are not properly pleaded................................................ 35
Part D.2.6:Prejudice to Optus arising from timing and content of amendments... 36
Part D.3:TeleChoice’s position and submissions – Revised Telstra Revenue Claims.... 36
Part D.3.1:No real prospect of success.......................................................................... 36
Part D.3.2:Revenue Representation as alleged is embarrassing and related matters 38
Part D.3.3:The terms of the Intended Telstra Appointment are not sufficiently identified.................................................................................................................................. 39
Part D.3.4:The calculations in Annexure A are embarrassing.................................. 40
Part D.3.5:Numerous material facts are not properly pleaded................................. 41
Part D.3.6:Prejudice to Optus arising from timing and content of amendments... 41
Part D.3.7:Other submissions regarding the Revised Telstra Revenue Claims...... 42
Part D.4:Consideration and Disposition – Revised Telstra Revenue Claims (Paragraphs 9–36).............................................................................................................................................. 42
Part D.4.1:Consideration and disposition – Misleading Revenue Representation Claim.................................................................................................................................. 44
Limitation of actions issues................................................................................ 46
Revenue Representation claims based on the ‘Telstra Rates’ and related matters................................................................................................................ 47
New claims and allegations based on the ‘Actual Telstra Rates’ and related matters................................................................................................................ 57
Increased sales and revenue allegations and claims based on Telstra’s market share and related matters.............................................................................. 66
Some other matters raised.................................................................................. 72
Part D.4.2:Consideration and disposition – Breach of Contract Claim – Paragraphs 29–31.................................................................................................................................. 78
Part D.4.3:Consideration and disposition – Collateral Contract Claim – Paragraphs 32–34.................................................................................................................................. 86
Part D.4.4: Consideration and disposition – Estoppel Claim – Paragraphs 35–36... 88
Part E: Paragraphs 60C–60H & 68 – Post Termination Fraud Claw Back Claims............... 92
Part E.1:Optus Entities’ position and submissions – Post Termination Fraud Claw Backs 95
Part E.2:TeleChoice’s position and submissions – Post Termination Fraud Claw Backs 97
Part E.3:Consideration and disposition – PTF Claw Back Claims.................................... 98
Part F: Paragraphs 111 & Annexure B – Alleged loss arising from ‘Post-Notice Conduct’ 105
Part F.1:Optus Entities’ position and submissions – Paragraph 111 and Annexure B. 105
Part F.2:TeleChoice’s position and submissions – Paragraph 111 and Annexure B..... 107
Part F.3:Consideration and disposition – Paragraph 111 and Annexure B................... 108
Part G: Paragraphs 117–120I – Inducing breach of contract claim...................................... 117
Part G.1:Optus Entities’ position and submissions – Inducing Breach Claim.............. 117
Part G.2:TeleChoice’s position and submissions – Inducing Breach Claim.................. 119
Part G.3:Consideration and disposition – Inducing Breach Claim................................. 120
Part H: Paragraphs 150A–150M – Underpaid Commission Claims.................................... 124
Part H.1:Optus Entities’ position and submissions – Underpaid Commission Claims 124
Part H.2:TeleChoice’s position and submissions – Underpaid Commission Claims... 126
Part H.3:Consideration and disposition – Underpaid Commission Claims.................. 128
Conclusion and proposed orders................................................................................................ 148
ATTACHMENT 1 ......................................................................................................................... 152
Procedural Chronology........................................................................................................... 152
ATTACHMENT 2.......................................................................................................................... 164
July 2007 Forecast..................................................................................................................... 164
ATTACHMENT 3.......................................................................................................................... 165
Joint Agreed Line Item Explanation of the Commission Document................................ 165
SCHEDULE..................................................................................................................................... 167
HIS HONOUR:
Introduction and summary
1 The plaintiff (TeleChoice or plaintiff) seeks leave pursuant to r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) to file and serve a proposed fourth further amended statement of claim (Fourth FASOC) and the defendants (Optus Entities or defendants) oppose leave being granted to the plaintiff to make a number of the proposed amendments. These reasons deal with those issues.
2 To date there have been about 14 or 15 draft or filed different versions of the statements of claim since the proceeding was commenced. The first version was a draft statement of claim sent with a letter of demand in 2013 shortly after the end of the Final Dealer Appointment, although the proceeding was not commenced until about four and a half years later in December 2017. The Fourth FASOC is now 152 pages in length, comprising a body of 74 pages, plus nine annexures spanning 78 pages, many of which have multiple parts and further explanatory notes. Speaking generally, the Fourth FASOC presents as a lengthy, dense and complex document that in various parts is not easy to read and comprehend. This explains in part the length and complexity of aspects of these reasons.
3 The plaintiff’s pleading has had a long history and this amendment application follows on from a strike out / stay / summary judgment application brought by the Optus Entities (2021 Application) in respect of various aspects of the plaintiff’s third further amended statement of claim (Third FASOC). On 3 August 2021 orders were made striking out various parts of the Third FASOC (Strike Out Orders), but allowing the plaintiff a further opportunity to reformulate aspects of its claims and seek leave to amend.[1] In Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd[2] (Strike Out Reasons) I recorded my reasons for making the Strike Out Orders. These reasons assume a knowledge of, and should be read in the context of, the Strike Out Reasons.
[1]Costs orders on the 2021 Application were made on 3 and 8 September 2021. The reasons for the costs orders were set out in Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd (No 2) [2021] VSC 547.
[2][2021] VSC 310.
4 As is apparent from the Strike Out Reasons, and was recognised by the parties on this application, it was determined in part that certain paragraphs ought not to be struck out, stayed, or dismissed at that point in time because TeleChoice was to be given a further opportunity to seek to reformulate and properly articulate certain claims. These paragraphs primarily related to what were defined as the Telstra Revenue Claims.
5 As a result I considered that the final determination of whether or not to strike out one or more of the Telstra Revenue Claims ought not occur prior to the proposed reformulation of the same, as has now occurred in the Fourth FASOC. It was for this reason that the parties agreed that the orders on the 2021 Application should include an order adjourning the further hearing of the Optus Entities’ 2021 Application, as they did. At the conclusion of the hearing of this application the Optus Entities submitted that if leave to amend the Telstra Revenue Claims was not granted, then the substantive paragraphs that would remain relating to these claims should be struck out and that no further opportunity ought to be given to the plaintiff to seek to re-plead them.
6 Before proceeding further it is convenient largely to restate some of the introductory observations made in the Strike Out Reasons regarding the previous business relationship between the parties that forms the backdrop for the dispute the subject of this proceeding.
7 TeleChoice operated a national business providing mobile and internet services to individuals and businesses from retail outlets exclusively for products and services offered by the Optus Entities under the business name ‘TeleChoice’. The majority of TeleChoice outlets were operated by TeleChoice franchisees.
8 Optus first appointed TeleChoice as an ‘Optus Premium Dealer’ in 2001 and the appointment was renewed from 1 April 2005 for a period of three years. It was further renewed from 1 April 2008 for a period of five years pursuant to what was alleged by the plaintiff in its Third FASOC to be the 2008 Master Dealer Agreement, the 2008 Master Dealer Agreement, the First Side Letter, and the Second Side Letter[3] (Final Dealer Appointment). That allegation remains in the Fourth FASOC and for present purposes is not relevantly controversial.
[3]It is also alleged to have been partly oral. Third FASOC [19A].
9 In the lead up to the Final Dealer Appointment TeleChoice had been communicating with Telstra about the possibility of switching from Optus to become a Telstra dealer for Telstra’s mobile and internet services from April 2008. This became known to the Optus Entities and discussions and other negotiations occurred between representatives of TeleChoice and the Optus Entities, ultimately resulting in TeleChoice remaining an Optus dealer for a further five years, which TeleChoice says was pursuant to the alleged Final Dealer Appointment. What is alleged in the Fourth FASOC to be the ‘Intended Telstra Appointment’ was not further pursued by TeleChoice.
10 The Final Dealer Appointment had a five-year term, and on 28 September 2012 the Optus Entities gave notice to TeleChoice terminating the 2008 Master Dealer Agreement and the 2008 Master Dealer Agreement with effect from the end of March 2013. The business relationship between TeleChoice and the Optus Entities ceased from that time.
11 In this proceeding the plaintiff seeks to pursue substantial damages claims against the Optus Entities relating to the Final Dealer Appointment and alleged events leading up to it, including alleged communications between TeleChoice and the Optus Entities regarding the Intended Telstra Appointment, and Optus matching the amounts and benefits that TeleChoice alleges it would have received if it had pursued the Intended Telstra Appointment rather than the Final Dealer Appointment. The damages currently claimed by the plaintiff in the proposed Fourth FASOC are now alleged to exceed $180 million, which is a substantial increase when compared to the amounts claimed in the Third FASOC (and earlier versions of TeleChoice’s pleading). The Optus Entities deny that they are liable to the plaintiff as alleged or at all.
12 As I observed in the Strike Out Reasons, the proceeding has had a lengthy and somewhat complex procedural history, as is apparent from the updated procedural chronology compiled by the parties, which comprises Attachment 1 to these reasons (Procedural Chronology).[4] The history of the proceeding, the alleged delay by the plaintiff, and the claimed related prejudice to the Optus Entities are some of the many matters raised by the Optus Entities in support of their opposition to the grant of leave to amend.
[4]A similar procedural chronology was annexed to the Strike Out Reasons, which has been updated to include procedural steps and events since that time.
13 After the Strike Out Orders were made the plaintiff prepared a further proposed draft of the claim and, as I directed, solicitors and counsel engaged and conferred with a view to reducing the issues between them. This process included written comments being made by the Optus Entities, the plaintiff responding, and further drafts and observations being exchanged. Ultimately this resulted in the plaintiff’s application for leave to file and serve the Fourth FASOC, the final form of which was provided to the court shortly before 1pm on the second day of the hearing of the application.[5]
[5]And which became Exhibit P1 on the application. It was in the same form as an earlier draft exhibited to Ms Seifen’s 23 September 2021 affidavit except for further revisions to paragraphs 15(e), 120I and its Annexure B.
14 In broad terms, the amendments sought to be made are said by the plaintiff to address deficiencies addressed in the context of the 2021 Application, including matters raised in the Strike Out Reasons, and to seek to introduce a new claim that was not part of the Third FASOC, being a claim for alleged underpayment of ‘airtime’ commission over the five-year period of the Final Dealer Appointment. The plaintiff estimates the underpayment of airtime commission to be in the sum of $12,639,484.[6]
[6]An earlier application in respect of a claim of this character had been foreshadowed by a draft summons addressed during the 2021 Application but was not pursued at that time. See Strike Out Reasons at [10].
15 In their written submissions, the Optus Entities identified the amendments they opposed and broadly summarised their position in a table as follows.[7] The table was followed by lengthy written submissions elaborating on these issues, which were further elaborated upon in oral submissions.
[7]The third column of the table has not been reproduced as it contains only the references to the relevant paragraphs of the defendants’ written submission.
Paragraphs of PFFASOC Basis of Optus’ opposition to leave 9–36 (“Intended Telstra Appointment” claims) Claims have no prospect of success. The form of the pleading is deficient and embarrassing in multiple respects. Such is the timing and form of the proposed amendments that, if leave was to be given, Optus would suffer unfair prejudice. 60C–60H, 68 (Clawback Claims) The pleading is embarrassing, lacks any real prospect of success and is an abuse of process (where it lacks a proper basis). 111 & Annexure B (Alleged loss arising from “Post-Notice Conduct”) Aspects of the pleading are unintelligible and fail to adequately put Optus on notice as to the case to be met. 117–120I (Inducing breach of contract claim) The pleading is embarrassing and such is the absence of particulars that no proper basis is evident. 150A–150M (“Wrongful Payments” breach claim) The pleaded claim is in a defective form, has no prospects of success and lacks a proper basis. Further, the timing of the proposed amendments gives rise to case management considerations that, if leave was given, would unfairly prejudice Optus.
16 As the parties did in their written and oral submissions, it is convenient to address the issues before me by reference to the five sections of the Fourth FASOC identified in the above table, which I do in Parts D to H of these reasons below.
17 In the balance of these reasons references to paragraph numbers relate to paragraphs of the Fourth FASOC unless otherwise stated.
18 For the reasons that follow:
(a) TeleChoice should be given leave to amend its misleading and deceptive conduct claim insofar as it is based upon or relates to what are now defined in paragraph 10 as the Telstra Rates.
(b) TeleChoice should not be granted leave to amend its misleading and deceptive conduct claim insofar as it is based upon or relates to what are defined in paragraph 16(b) as the Actual Telstra Rates.
(c) TeleChoice should not be granted leave to amend its misleading and deceptive conduct claim insofar as it seeks to introduce alleged Telstra market share related increased sales volumes referred to in paragraph 16(c) and Part C of Annexure A.
(d) TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC so as to re-introduce a misleading and deceptive conduct claim based on the so-called Actual Telstra Rates referred to in paragraph 16(b) or the alleged Telstra market share related increased sales volumes referred to in paragraph 16(c) and Part C of Annexure A.
(e) TeleChoice should be granted leave to amend its Breach of Contract Claim[8] based on the alleged Revenue Term insofar as that claim is based or relates to the Telstra Rates. The grant of leave will be conditional upon the inclusion of clear and concise particularised allegations of material fact regarding the written, oral or implied terms of the Final Dealer Appointment that address when it is alleged that the Optus Entities were required to pay the amount the subject of the alleged Revenue Term — provided, of course, that the relevant parties and practitioners are satisfied that there is a proper basis for such allegations. Leave to amend should not be granted to include a breach of contract claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.
[8]As so defined later in these reasons.
(f) TeleChoice should be granted leave to amend its Collateral Contract Claim[9] insofar as that claim is based on the Telstra Rates. The grant of leave will also be conditional in the way described in the preceding paragraph regarding the Breach of Contract Claim. Leave to amend should not be granted to include a collateral contract claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.
[9]As so defined later in these reasons.
(g) TeleChoice should be granted leave to amend its Estoppel Claim[10] based upon the alleged Revenue Representation[11] insofar as that claim is based on the Telstra Rates. The grant of leave will be conditional upon the inclusion of clear and concise particularised allegations of material fact addressing what it is alleged the Optus Entities are estopped from doing and addressing what TeleChoice alleges the Optus Entities were required to do, and when, to fulfil the Revenue Representation. Leave to amend should not be granted to include an estoppel claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.
[10]As so defined later in these reasons.
[11]As so defined later in these reasons.
(h) TeleChoice should be granted leave to amend its claim to include the ‘Post Termination Fraud Claw Backs’ claims (PTF Claw Back Claims) referred to in paragraphs 60C to 60H, although this leave will not extend to the inclusion of the allegations in paragraphs 60E and 60G.
(i) TeleChoice should be granted conditional leave to amend paragraph 111 in part only, namely:
(i) by making the proposed adjustment to the language of the pleaded material fact in paragraph 111 by striking through part of the existing language regarding the suffering of loss and replacing it with an allegation of material fact that: ‘Further, TeleChoice suffered loss and damage as a result of the Post-Notice Conduct’;
(ii) by including only Parts B and D of Annexure B (which address ‘Revenue which would have been derived under the Final Dealer Appointment without the Post-Notice Conduct’ calculated at the Telstra Rates (Part B) and at the rates actually paid by the Optus Entities (Part D);[12]
[12]Including relevant explanatory notes and footnotes in Annexure B.
(iii) by supplementing the calculations in Part D of Annexure B so as to more fully and clearly articulate and set out:
(A) the calculations for arriving at the alleged revenue of $47,797,671 for the final year of the Final Dealer Appointment and the increased revenue of $9,196,294 referred to in paragraphs 22 and 23 of Part D;
(B) the calculations for arriving at a loss figure of $5,166,205 from an alleged increased revenue figure of $9,196,294; and
(iv) by supplementing the calculations in Part B of Annexure B so as to more fully and clearly articulate and set out:
(A) the calculations for arriving at the revenue figures of $72,121,335 for the final year of the (Optus) Final Dealer Appointment and the claimed increased revenue figure of $14,694,542, referred to in paragraphs 11 and 12 of Part B of Annexure B;
(B) the amount of the loss said to be attributable to the Post-Notice Conduct (as opposed to ‘total loss and damage’), and how that has been calculated; and
(C) if the amount of the loss attributable to the Post-Notice Conduct is said to be less than the claimed increased revenue of $14,694,542 referred to in paragraph 11 of Part B of Annexure B, the amount of that loss, its calculations, and how it is derived from the alleged increased revenue amount.
(j) TeleChoice should not be granted leave to amend to include Parts A or C of Annexure B as particulars of the loss and damage claimed in paragraph 111 of the Fourth FASOC.
(k) TeleChoice should not be granted leave to amend its claim so as to include the inducing breach of contract claim set out in paragraphs 117 to 120I of the Fourth FASOC. Further, TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.
(l) TeleChoice should not be granted leave to amend its claim to include the Underpaid Commission Claims[13] set out in paragraphs 150A to 150M of the Fourth FASOC. Further, TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC to include claims of this kind.
[13]As so defined later in these reasons.
Affidavits and submissions
19 As it was for the 2021 Application, the material relied upon by the parties was again voluminous, including an application book and additional materials totalling more than 2,500 pages in length. TeleChoice relied upon the affidavits of its Chief Operating Officer, Liliane Seifen, sworn 18 September 2020, 13 November 2020, 9 March 2021, and 23 September 2021. It also relied on aspects of the affidavits of the Optus Entities’ commission analyst, Mr Wong, sworn 6 November 2020.
20 The Optus Entities relied on affidavits of their solicitors, namely, the affidavits of: Paul James sworn 28 February 2019 and 29 October 2021; Jonathon McRostie sworn 19 March 2021; and Jarrad Mathie sworn 5 March 2021. They also referred to the 6 November 2020 affidavit of Mr Wong and aspects of the witness statements filed by TeleChoice to date, including the witness statements of Ms Seifen and Mr Abdou. Neither the plaintiff nor the Optus Entities sought to cross-examine any of the deponents and there were no objections to evidence.
21 Each of the parties filed written submissions, which were supplemented orally over two hearing days. A further joint written submission regarding the meaning and operation of a spreadsheet[14] exhibited to one of Ms Seifen’s affidavits was filed subsequent to the hearing, on 15 March 2022. This related to the Underpaid Commission Claims in paragraphs 150A to 150M of the Fourth FASOC.
[14]Defined later in these reasons as the Commission Document.
Part A: Principles and observations – Amendment applications
22 There was no dispute between the parties regarding the well-rehearsed principles applicable to applications for leave to amend pleadings. Each of the parties made reference to the summary of these principles set out in Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd (No 2) (Pentridge Village),[15] which is convenient to extract in almost identical terms, which I do in the paragraphs that follow.
[15][2020] VSC 284.
23 Rule 36.01(1) provides that:
(1) For the purpose of—
(a) determining the real question in controversy between the parties to any proceeding; or
(b) correcting any defect or error in any proceeding; or
(c) avoiding multiplicity of proceedings—
the Court may, at any stage order that any document[16] in the proceeding be amended or that any party have leave to amend any document in the proceeding.
[16]The inclusive definition of ‘document’ in rule 36.01(2) includes a pleading.
24 The general principles relating to the grant or refusal of leave to amend pleadings are well known. They were succinctly referred to by Elliott J in Cargill Australia Limited v Viterra Malt Pty Ltd (No 18)[17] as follows:[18]
The principles relating to the granting or refusal of leave to amend pleadings are well established.[19] Rule 36.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) empowers the court to grant leave to any party to amend any document for the purpose of “determining the real question in controversy between the parties to any proceeding”. Leave may be granted at any stage of the proceeding.
In deciding whether to grant leave to a party to amend its pleadings, the court must consider whether the proposed amendments facilitate the identification of the real issues in dispute and the just resolution of the proceeding.[20]
The power to grant leave to a party to amend its pleading to raise an arguable issue is a discretionary power. There is no right or entitlement for a party to amend its pleading subject to the payment of costs referable to the amendment.[21] The nature and importance of the proposed amendments must be considered.[22] This factor must be weighed against case management considerations such as cost, delay and the potential for unfair prejudice to other parties to the proceeding, the court and other litigants that might arise if the proposed amendments are allowed.[23]
Further, in exercising the power to grant leave, the court may give any direction or impose any term or condition it thinks fit.[24]
[17][2018] VSC 772.
[18]At [31]–[34], footnotes included as in original.
[19]The relevant principles have been set out previously in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 10) [2018] VSC 439, [16]–[18]. They are repeated here for convenience.
[20]AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 204–205 [69] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also ABL Nominees Pty Ltd v Mackenzie (No 2) [2014] VSCA 529, [17] (Derham AsJ).
[21]AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 212 [96], 213 [98]–[99], 217 [111].
[22]Ibid, 214 [102].
[23]Ibid, 213 [98]–[99], 214–215 [102], 217 [111]; Civil Procedure Act 2010 (Vic), s 7.
[24]Supreme Court Rules, r 1.14(1)(b).
25 A helpful summary was also set out in ABL Nominees Pty Ltd v MacKenzie (No 2):[25]
[25][2014] VSC 529 [17]–[22], footnotes included as in original (Derham AsJ).
The power to amend in r 36.01 (1) of the Supreme Court (General Civil Procedure) Rules 2005 (Rules) authorises the court to order that a party have leave to amend any pleading for the purpose of determining the real question in controversy between the parties to any proceeding, correcting any defect or error or avoiding multiplicity of proceedings.
It is common ground that an amendment which is futile because it is obviously bad in law will not be allowed: Commonwealth v Verwayen.[26] Similarly, if a proposed pleading would be liable to be struck out if it had been contained in an original pleading, either because the pleading is bad in law or is defective as a pleading, then leave to file the proposed pleading will not be allowed: Horton v Jones (No.2);[27] Gimson v Victorian WorkCover Authority.[28] The court, on this type of application, will not engage in an examination of the merits of the case foreshadowed by the proposed amendment, but where that amendment introduces a patently hopeless issue for determination then its inclusion will be futile and that will be a significant, and probably decisive, matter in the exercise of the court’s discretion.[29]
[26](1990) 170 CLR 394, 456.
[27](1939) 39 SR NSW 305, 310.
[28](1995) 1 VR 209, 215.
[29]Matthews v SPI Electricity Pty Ltd (Ruling No 6) [2012] VSC 70, [33].
As J Forrest J observed in Matthews v SPI Electricity Pty Ltd (Ruling No 6),[30] having regard to the terms of the Civil Procedure Act 2010 (CPA), the test is best expressed in the words of s 63 of that Act: if the amendment has no real prospect of success at trial then that would be a highly relevant factor in the exercise of the discretion to refuse the application.[31]
[30][2012] VSC 70, [34].
[31]As to the test, see Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 [29] per Warren CJ and Nettle JA (Neave JA agreeing).
In Namberry Craft Pty Ltd v Watson,[32] Vickery J summarised the relevant factors to be considered, as a result of the decision in AON Risk Services Australia v Australian National University,[33] as follows:
[32][2011] VSC 136.
[33](2009) 239 CLR 175.
[T]here are to be limits placed upon re-pleading. The High Court in AON Risk Services Australia referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading. The High Court made reference to the following factors:
(a) Whether there will be substantial delay caused by the amendment;
(b) The extent of wasted costs that will be incurred;
(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;
(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;
(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.[34]
This list of factors is not exhaustive. It is made against the background of the earlier decision of the High Court in Queensland v JL Holdings Pty Ltd,[35] and the authorities that preceded it, including the famous case of Cropper v Smith,[36] where the liberal approach to the amendment of pleadings finds its lead in the dissenting judgment of Bowen LJ.
On the other hand, pleadings are not an end in themselves. They are a means of ensuring that real issues of controversy are raised for determination in a way that is procedurally fair, both to a plaintiff and a defendant. This allows claims and defences to be clearly articulated, granting parties an opportunity to present their case properly prepared, on clear notice of allegations and defences raised in the proceedings. On this basis, the authorities clearly establish that, absent extraordinary circumstances, leave to amend will be granted.[37]
[34]Ibid [38]. Equuscorp Pty Ltd and Sintoff Pty Ltd v Acehand Pty Ltd & Ors [2010] VSC 89, [19].
[35](1997) 189 CLR 146.
[36](1884) 26 Ch D 700.
[37]ACN 074 971 109 v The National Mutual Life Association of Australasia Ltd [2010] VSC 186, [28].
26 In Ultra Thoroughbred Racing Pty Ltd t/as Baree Stud v Those Certain Underwriters at Lloyd’s (Ultra Thoroughbred),[38] J Forrest J observed that, following the High Court’s decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon), courts must consider: the wider public interest and the efficient use of limited court resources when deciding whether to grant applications to amend pleadings; that parties will not be permitted to raise any arguable case in any stage of proceedings subject only to payment of costs; and that amendments that produce delay impact on the entire court system and affect parties desirous of utilising that particular court system. As his Honour noted, in Aon, the High Court said as follows:[39]
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases…
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to the parties having a sufficient opportunity to identify the issues they seek to agitate.
In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[38][2011] VSC 370.
[39]Ibid, [7], citing Aon (2009) 239 CLR 175, 217, [111]–[113].
27 In Northern Health v Kuipers (Northern Health),[40] Kyrou and McLeish JJA referred to the above extract, the reasons of J Forrest J in Ultra Thoroughbred, and echoed the observations of the High Court regarding the just resolution of proceedings being a paramount consideration:[41]
It has been said by this Court that Aon may have ‘reinvigorated the procedural paradigm’ insofar as time, costs and limited judicial resources are relevant considerations in the determination of whether to allow certain interlocutory processes.[42] However, as J Forrest J observed in Ultra, ‘the primary question still remains: what do the interests of justice dictate?’; Aon reminds courts that ‘the prism through which these interests are viewed is wider than just that of the moving party’.[43]
[40][2015] VSCA 172, footnotes included as in the original. See also the recent references to Aon and Northern Health by the Court of Appeal in Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [25]–[26] (Beach, Kaye JJA and Croucher AJA) (Billington).
[41]Ibid, [33].
[42]Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16, [42].
[43]Ultra Thoroughbred [2011] VSC 370, [9].
28 The court must have regard to the relevant provisions of the Civil Procedure Act 2010 (Vic) (CP Act) when addressing case management matters, including applications for leave to amend. This was emphasised by Kyrou and McLeish JJA in Northern Health, where the CP Act was described as ‘… pivotal to the resolution of disputes about case management issues in civil proceedings to which the Act applies …’, and it was stressed that ‘… it is important that … trial judges engage with the Act’s provisions in balancing the competing interests of the parties and those of the administration of justice more generally.’[44]
[44]Northern Health [2015] VSCA 172, [22]. Considerations of this kind were further referred to in Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 [36]–[48] (Kyrou, Ferguson and McLeish JJA), and more recently reinforced in Billington at [25] (Beach, Kaye JJA and Croucher AJA).
29 Their Honours were also swift to recognise that procedural rulings must often be made promptly with succinct reasons, noting that engaging with the provisions of the CP Act ‘… does not mean that trial judges must set out each applicable provision of the Act and state reasons in relation to it … [but that] it must be apparent from the reasons for the ruling — either expressly or inferentially — that the judge took into account the applicable provisions.’[45]
[45]Northern Health [2015] VSCA 172, [22].
30 On a different topic, it has been concluded in various cases that no further opportunity ought to be given to a plaintiff to reformulate the claims in question. Often such observations are founded on the observations of the High Court in Aon earlier referred to. The observations of Sifris J in MacFadyen & Ellis v Bank of Queensland (No 2)[46] (MacFadyen) and Gleeson CJ[47] in Sialepis v Ironaid Pty Ltd (Sialepis)[48] are two examples. In MacFadyen, Sifris J said as follows regarding the circumstances in that case:
46. The right to seek relief from a Court is not an absolute right. It carries with it a responsibility, now directly enshrined in legislation, namely the Civil Procedure Act 2010 (Vic) (‘CPA’). The Plaintiffs have not discharged this responsibility. Given this history, the Court cannot be confident that the Plaintiffs will ever be able to articulate their claim. They should not be permitted to continue. To permit the Plaintiffs to have yet ‘another go’ would not be in the interests of justice and would not be consistent with the overarching purpose set out in s 7 of the CPA which requires ‘the just, efficient, timely and cost effective resolution of the real issues in dispute’.
[46][2014] VSC 653, [46].
[47]With whom Cole JA and Handley J agreed.
[48][1997] NSWCA 286.
31 In Sialepis the Court concluded that the plaintiff had ‘far more than ample opportunity to formulate a viable claim … if one existed’ and on the facts of that case Gleeson CJ concluded that the difficulty which the lawyers had experienced in ‘… framing a plausible statement of her cause of action against the respondents is a good indication, on the facts known to them, or they can realistically expect to prove, that there is no cause of action’.[49] However, and as Gleeson CJ in Sialepis also observed, it is important to ensure that where a party has a substantial viable claim ‘… it is not defeated by mere drafting imperfections.’[50]
[49]At 8, Handley J and Cole JA agreeing.
[50]At 2, (Gleeson CJ).
Part B: Strike out, stay and summary judgment principles
32 There was no relevant disagreement between the parties on the 2021 Application or before me on this application regarding the principles applicable to strike out, stay or summary judgment applications. I set out and addressed these at some length in the Strike Out Reasons,[51] to which I refer but will not again set them out here. As will be seen, given the conclusions reached on this application there is limited engagement with these principles in these reasons.
[51][2021] VSC 310. See: [16]–[22] regarding strike out applications under r 23.02 of the Rules; [23]–[28] regarding stay applications under r 23.10 of the Rules; and [29]–[34] regarding summary judgment applications under s 64 of the CP Act and Order 22 of the Rules.
Part C: Case management, Aon, CP Act, claimed prejudice and related matters
33 Before addressing the particular aspects and features of the Fourth FASOC to which objection was taken, in their written submissions the Optus Entities made a number of submissions, somewhat collectively, regarding delay, case management, Aon, the CP Act, claimed prejudice and related matters.[52] These matters were also briefly addressed during oral submissions. TeleChoice responded in a similar way in its written and oral submissions. Although it is not necessary to recite all of their detail, it is convenient at this point to outline the primary submissions made by the parties in this context before turning to the particular parts of the Fourth FASOC that were in issue.
[52]Which were also addressed in part in other sections of their written submissions.
Part C.1: Optus Entities’ position and submissions
34 The Optus Entities submitted that the Fourth FASOC sought to advance new factual allegations which would cause prejudice given the historical nature of the subject matter of the allegations, the form of the pleading, and the history of the pleading and the proceeding. Although it was said that some of this prejudice may have been ameliorated if TeleChoice had acted promptly and addressed deficiencies in the various iterations of its pleading some time ago, it was submitted that TeleChoice had failed to do so, whether in a timely manner or at all.
35 The Optus Entities drew attention to the procedural history as reflected in the evidence, the Procedural Chronology, and an annexure to their written submission regarding the many revisions of the claims and the preparation of evidence. They also relied upon the nature and extent of the communications between the parties regarding the various revisions of the claim; the claimed failure to respond meaningfully to observations regarding deficiencies in the pleadings; case management considerations; the need for further discovery and challenges with the same; a contention that TeleChoice had not been forthright about the effect of the proposed amendments on the extent of further discovery and had not sufficiently engaged on the topic; future cost and expense; claimed difficulties with witness access and memory; the time cost and expense already spent in connection with witnesses to date; the further work that would be required; and some other related matters.
36 The Optus Entities submitted that there was already at least a significant risk that, as a result of TeleChoice’s failure to address obvious and material deficiencies in its claim and otherwise act promptly to minimise delay, they would be prejudiced in the conduct of their defence. Primary matters referred to were:
(a) TeleChoice’s claim arising out of events that occurred between 2006 and 2013, and the ‘obvious consequence’ that witnesses’ recollection of events would be poor or even non-existent, with the ‘attendant prejudice increasing daily’.
(b) Witness recollection difficulties being compounded by the absence of a number of contemporaneous documents following on from parties being unable to locate electronic mailboxes for a number of people who have been identified by the parties as having been likely to have held relevant material.
(c) The Optus Entities having currently identified 36 potential witnesses, 27 of whom are no longer employed by the Optus Entities and in some cases are employed by market competitors, with at least two of these external witnesses said now to be residing overseas.
(d) Access to external witnesses being limited and subject to their willingness to co-operate, and some witnesses only being available with extended notice or for short periods.
(e) The difficulty in organising contact with external witnesses in some instances and a reluctance of some witnesses to assist.
(f) The amount of time and cost that has already been spent and incurred in connection with witnesses. Mr James’ evidence (in part) was that the Optus Entities had already completed a substantial amount of work on their witness statements with an estimated 1840 hours having been spent, which equated to approximately $772,000 in costs and disbursements on tasks including identifying and making enquiries with or about at least 36 potential witnesses, and conducting at least 48 witness conferences.
(g) The inability currently to give witnesses any certainty or assurances as to when they might be required again or what the extent of their further involvement may be.
(h) Mr James’ belief that there is a real risk of the delay in the progress of the proceeding having a deleterious impact on witness engagement generally. In this context an example was given of a former Optus employee who is a potential witness who is now refusing to provide assistance at all, and another who was initially willing to assist but has now become unresponsive.
(i) The risk that as time goes on more witnesses and other employees with relevant technical knowledge, including for example knowledge of the operation of the now decommissioned Optus commission systems, will leave the Optus Entities.
37 In this context it was submitted that the matters raised are not new concerns and that they had been raised previously, with an example being Mr James’ affidavit of 28 February 2019. It was further submitted in general terms that TeleChoice had had ample opportunity to consider and address the deficiencies in their claims and that no further opportunity ought be afforded to them if the Optus Entities were successful in opposing the grant of leave.
38 With respect to the Revised Telstra Revenue Claims, the Optus Entities further submitted that they had identified five potentially relevant witnesses to the claims and that to date about 435 hours (equating to about $193,000) had been spent in connection with evidence of these witnesses, and that these witnesses had spent considerable amounts of their own time reviewing documents, statements and attending conferences. It was further submitted that because the amendments will require re-engagement with at least some potential witnesses, risks of the kind earlier referred will arise for the Optus Entities.[53]
[53]In part these were referred to in paragraphs 69 to 73 of the Optus Entities’ written submissions.
39 In the context of the Revised Telstra Revenue Claims it was also contended that the process of identifying other potential lay and expert witnesses cannot sensibly be commenced or advanced until the claims are properly articulated which means that further delay and attendant prejudice will continue to accumulate. The Optus Entities also submitted that they may face insurmountable obstacles preparing evidence regarding the ‘Telstra Rates’ given that Telstra and Optus are primary competitors.
Part C.2: TeleChoice’s position and submissions
40 When addressing the context of this application TeleChoice observed that it had prepared various versions of its revised pleading since the delivery of the Strike Out Reasons as part of its engagement with the Optus Entities. Before addressing the Optus Entities’ objections to particular parts of the pleading, TeleChoice made a number of general submissions in response to the Optus Entities’ submissions regarding the claimed prejudice, delay, and nature of the amendments. In substance the points raised were to the following effect.
41 First, that many of the claimed ‘numerous new factual allegations’ were not new at all and had been present in previous iterations of the pleading — ‘albeit that their expression or detail has been improved or refined’.
42 Second, the fact that a pleaded fact was new was not of itself a reason to refuse an amendment and it was necessary for the Optus Entities to articulate why any introduction of a new fact at this point would occasion prejudice of a kind that would justify refusing an amendment.
43 Third, that many of the matters complained of by the Optus Entities were just the ordinary incidents or consequences of large scale litigation, including witness recollection issues and access to, or engagement with, witnesses. These aspects, so it was said, pre-existed TeleChoice’s application for leave to amend. In this context it was further submitted that: the amendments will not materially extend the period to trial; it was not established that witness recollection will materially worsen by further time passing; aspects of Mr James’ evidence regarding difficulties were non-specific as to timing and lack of co-operation; the claimed risk of disengagement with witnesses ‘was not to the point’; given the Optus Entities’ ‘pens down’ approach it was difficult to see how timing changes would likely have the effect claimed by Mr James; and that if a witness is unavailable it can be the subject of evidence at trial.
44 Fourth, the defendants had not identified or established by evidence that they will suffer unfair prejudice by the amendments being made at this time and not earlier.
45 Fifth, any claimed prejudice needs to be weighed against the substantial prejudice that would be caused to TeleChoice if it is summarily shut out from pursuing its claims at trial.
46 Sixth, the history of the proceeding does not demonstrate that the amendments should be refused by reason of the delay of TeleChoice. To the extent that there has been relevant delay it was submitted that there had been ‘multiple causes and factors at play’. These were said to include: Optus’s delay between the commencement of the proceeding and when the Optus Entities first articulated concerns in mid-2020, with the 2021 Application not being filed until mid-2021; the time taken with exchanges between the parties about complaints, revisions, and versions of proposed pleadings; and the time taken in connection with the 2021 Application and in connection with the current application.
47 Seventh, the primary reason for the revisions being made now and not earlier is that TeleChoice and its counsel have been engaged in refining and improving the pleading, including seeking to address inadequacies raised in the Strike Out Reasons. Further, the new wrongful payments claim was said to be based on information that was not in TeleChoice’s possession until late 2020 when Mr Wong filed his affidavit.
48 Eighth, if the amendments are allowed it will not occasion much additional discovery or evidence and should not cause any significant delay in getting the matter to trial. In this context TeleChoice prepared a table of the additional discovery and evidence that it submitted would likely be involved.
Part C.3: Consideration – case management, Aon, CP Act considerations, claimed prejudice and related matters
49 The parties’ submissions and evidence regarding the claimed prejudice and delay are relevant matters to take into account in considering whether to grant leave to TeleChoice to amend its pleading. However, they do not fall to be considered in isolation or separate to other relevant considerations. As will be seen, the claimed prejudice and related matters are considered, addressed and weighed in the balance in the ‘Consideration and Disposition’ sections of these reasons below when dealing with each of the relevant parts of the pleading in issue.[54]
[54]See Parts D to H below.
Part D: Paragraphs 9–36 – Revised Telstra Revenue Claims
Part D.1: The paragraphs in question
50 The claims in paragraphs 9 to 36 of the Fourth FASOC relate to what are said to be four separate but reformulated[55] Telstra revenue claims (collectively, Revised Telstra Revenue Claims). Each claim is associated with the contention that if TeleChoice entered into the Final Dealer Appointment the revenue that would be earned by TeleChoice under the Final Dealer Appointment ‘would be the same as the revenue:
[55]That is, formulated differently in various respects to the way that they were pleaded in the Third Amended FASOC the subject of the Strike Out Reasons.
(a) that would be earned by TeleChoice under the Intended Telstra Appointment for the same number of sales as it would make under the further dealer appointment;
(b) further or alternatively, that would be earned by TeleChoice under the Intended Telstra Appointment for the same number of sales as it would make under the further dealer appointment based on the Telstra Rates (Revenue Representation)’.[56]
[56]See paragraph 12 of the Fourth FASOC. The ‘further dealer appointment’ is a reference to what became the Final Dealer Appointment between TeleChoice and the Optus Entities. As noted earlier, any references to paragraph numbers in these reasons are references to paragraphs in the Fourth FASOC unless otherwise indicated.
51 The Revised Telstra Revenue Claims are preceded by paragraphs 7 to 11 headed ‘BACKGROUND’. These parts of the pleading are said to be important in various ways to the allegations that follow, including the Revised Telstra Revenue Claims. In this part of the pleading:
(a) TeleChoice retains its allegations regarding its previous appointments as an Optus dealer, with the ‘First Dealer Appointment’ being addressed in paragraph 7 and the ‘Second Dealer Appointment’ being addressed in paragraph 8.
(b) Paragraph 9, which is not new, introduces the ‘Intended Telstra Appointment’. It is alleged that from about June 2006 until July 2007, and prior to the end of the Second Dealer appointment, TeleChoice negotiated with Telstra the terms of an agreement pursuant to which Telstra would appoint TeleChoice as a Telstra dealer for a five-year term commencing in April 2008 (Intended Telstra Appointment). The particulars to paragraph 9 have been revised so as to refer to the draft agreements provided by Telstra to TeleChoice as being provided ‘as part of the negotiations’. The draft agreements are defined as the ‘Draft Telstra Heads of Agreement’ and the ‘Draft Telstra Agreement’ (collectively, Draft Telstra Agreements).
(c) Paragraph 10 is new and introduces what are described as the ‘Telstra Rates’. In part it is alleged that, on the basis of the negotiations in paragraph 9, and ‘Telstra’s usual practice of remunerating its dealers’, TeleChoice ‘expected’ that if it entered into the Intended Telstra Appointment it would earn revenue on the basis referred to in the 12 sub-paragraphs of paragraph 10, which are collectively described as the ‘Telstra Rates’. This is a term that is then used throughout other parts of the pleading, including but not limited to, allegations regarding loss and damage. The allegations in paragraph 10 are supported by a further 11 sub-paragraphs of particulars.
(d) TeleChoice introduces the ‘July 2007 Forecast’ in paragraph (i) of the particulars to paragraph 10, which is alleged to be an analysis of the revenue that TeleChoice expected to make under the Intended Telstra Appointment at the Telstra Rates when compared to the revenue that it then considered it would make under a further Optus appointment. This document was said by both parties to be significant, and for ease of reference it is reproduced as Attachment 2 to these reasons. It was a document provided by TeleChoice to the Optus Entities in 2007 and largely reflects what are described in the Fourth FASOC as the Telstra Rates.
(e) Paragraphs (ii)–(xi) of the particulars to paragraph 10 are said to provide particulars of where each of the Telstra Rates referred to in paragraphs (a)–(l) of paragraph 10 ‘arises from’.
(f) TeleChoice retains its allegation in paragraph 11 that in about early July 2007 TeleChoice informed the Optus Entities that it intended to enter into the Intended Telstra Appointment and would no longer be an Optus dealer. The particulars refer to a conversation in which it is alleged that TeleChoice’s Mr Abdou said words to the effect that TeleChoice would be leaving Optus because they ‘had done a deal with Telstra’ and that ‘The deal is done but we haven’t signed yet. We’re signing in a couple of days.’ It is also alleged that Mr O’Sullivan for the Optus Entities asked Mr Abdou to travel to Sydney to discuss things before any agreement was signed with Telstra, which Mr Abdou agreed to do.
52 The allegations referred to above are in part said to be the backdrop to the discussions leading to TeleChoice remaining as an Optus dealer and not becoming a Telstra dealer. They are immediately followed in the Fourth FASOC by the pleading of each of the four Revised Telstra Revenue Claims. It is necessary to outline these claims which, as can be seen from the FASOC Annexure, are of the character described below.
53 The first claim (paragraphs 9–21[57]) (Misleading Revenue Representation Claim) is a misleading and deceptive conduct claim based on the alleged (reformulated) Revenue Representations in the form extracted earlier above. Although defined in the singular, the pleading alleges two representations as referred to.
[57]Although the heading for these claims appears after paragraph 11, it is apparent from the terms of the Fourth FASOC that, among others, paragraphs 9, 10, and 11 contain part of the relevant allegations.
54 It is alleged in substance that the Revenue Representation was a continuing representation; that TeleChoice relied on the Revenue Representation by deciding to remain an Optus dealer and by not entering into the Intended Telstra Appointment; that the Revenue Representation was misleading and deceptive or likely to mislead or deceive because the revenue earned by TeleChoice was not the same as the revenue referred to in paragraphs (a) and (b) of the Revenue Representation;[58] that if the Revenue Representation had not been made TeleChoice could and would have entered into an agreement with Telstra for five years on substantially the same terms as the draft agreements referred to; that TeleChoice would have earned revenue at the ‘Telstra Rates’ adjusted to take account of the actual weighted average of the standard incentives paid by Telstra to its dealers for the relevant period (Actual Telstra Rates); that TeleChoice would have achieved the number of sales as a Telstra dealer as set out in Part C of Annexure A to the Fourth FASOC; and that TeleChoice suffered loss and damage by the Optus Entities’ misleading or deceptive conduct.
[58]Insofar as the Revenue Representation was a representation as to a future matter, TeleChoice alleged that the Optus Entities lacked reasonable grounds to make a representation and relied upon the relevant deeming provisions of the Trade Practices Act 1972 (Cth) (TPA) up to 31 December 2010 and s 4 of the Australian Consumer Law set out in schedule two of the Competition And Consumer Act 2010 (Cth) (ACL) from 1 January 2011.
55 The particulars of the Revenue Representation in paragraph 12 include references to: statements said to have been made by the Optus Entities’ Mr O’Sullivan at a meeting on 5 July 2007; a letter from the Optus Entities of 10 July 2007; a Telstra revenue forecast prepared by TeleChoice in July 2007 and provided to Optus at that time (being the July 2007 Forecast); a financial summary document dated 21 August 2007 prepared by Optus and provided to TeleChoice by the Optus Entities on 22 August 2007 (Optus Financial Summary); alleged silence by the Optus Entities in response to TeleChoice’s letter of 12 July 2007 in which it was stated that TeleChoice understood that Optus would match the current Telstra offer, with the assumption being that revenue would be the same under both deals for the same number of sales; and the conduct of the Optus Entities in adopting the July 2007 Forecast as the basis for the Optus Financial Summary after Optus representatives had reviewed the terms of the Intended Telstra Appointment and verified the basis for the calculation of revenue that was forecast to be earned under the Intended Telstra Appointment and contained in the July 2007 Forecast.
56 The loss and damage suffered by TeleChoice is alleged to comprise ‘the loss of its opportunity to enter into the Intended Telstra Appointment on the basis alleged’, and thereby derive the revenue and achieve the profit referred to in paragraph 17 and Annexure A to the Fourth FASOC. It is to be observed that the total damages now claimed under this claim are calculated in a new and different way by reference to what have been defined as the Actual Telstra Rates and the increased volume of business TeleChoice alleges it would have achieved given the alleged higher market share that Telstra had. As a result, there has been a substantial increase in the damages claimed from just over $100 million in the Third FASOC, to in excess of $180 million, as referred to in paragraphs 17 and 21 and Part C of Annexure A to the Fourth FASOC. In short, the quantum of the claim now sought to be made under the misleading and deceptive conduct claim has increased substantially.
57 The second of the Revised Telstra Revenue claims is described as a breach of contract claim in respect of what is defined as the Revenue Term (see paragraphs 29–31) (Breach of Contract Claim). At the heart of this claim is the allegation in paragraph 29 that it was a ‘partly oral, partly in writing and a partly to be inferred or implied term of the Final Dealer Appointment that:
the Optus Entities agreed to pay to TeleChoice during the term of the final dealer appointment the same revenue for the same number of sales as TeleChoice would have earned:
(v) under the Intended Telstra Appointment;
(vi) further or alternatively, under the Intended Telstra Appointment based on the Telstra Rates (Revenue Term).’
58 The particulars of the Revenue Term are said to be the same particulars as are relied upon in support of the Revenue Representation in paragraph 12. Although the Final Dealer Appointment had previously been alleged to be in writing, revisions to the particulars in paragraph 15 now allege that it was also partly oral and partly implied or inferred.
59 The Optus Entities are alleged in paragraph 30 to have breached the Revenue Term because they ‘failed to pay to TeleChoice for the same number of sales as it achieved during the Final Dealer Appointment the same revenue as TeleChoice would have earned:
(vii) if it had entered into the Intended Telstra Appointment;
(viii) alternatively, under the Intended Telstra Appointment based on the Telstra Rates.’
60 The loss and damage alleged is again said to comprise the difference between the profit that TeleChoice earned under the Final Dealer Appointment and the profit that it would have earned for the same number of sales under the Intended Telstra Appointment at the Actual Telstra Rates, alternatively under the Intended Telstra Appointment at the Telstra Rates. TeleChoice ‘presently estimates that loss as approximately $74,170,368, alternatively $64,341,316.’ TeleChoice refers to the particulars to paragraph 17 which in turn state, among other things, that the basis for the estimate is set out in Part A of Annexure A to the Fourth FASOC (for the Actual Telstra Rates) and Part B of Annexure A (for the Telstra Rates). It also states that further particulars may be provided after discovery and the exchange of expert reports. It may be noted that this is a different loss calculation to the loss claimed under the misleading conduct claim because it is based on the Revenue Term being a term of the Final Dealer Appointment and TeleChoice operating as an Optus dealer and not on the counterfactual of TeleChoice being a Telstra dealer under the Intended Telstra Appointment.
61 The third of the revised Telstra Revenue Claims is a breach of collateral contract claim (see paragraphs 32–36) (Collateral Contract Claim) that essentially mirrors the Breach of Contract Claim but alleges, further or alternatively, the existence of a collateral contract to the effect of the alleged Revenue Term. Again, the particulars relied upon are those relied upon in support of the Revenue Representation allegation in paragraph 12. The alleged loss is the same as that claimed under the Breach of Contract Claim and the same particulars are relied upon.
62 The fourth of the revised Telstra Revenue Claims is a claim described as ‘equitable estoppel arising from the revenue representation’(see paragraphs 35 and 36) (Estoppel Claim). This claim alleges that reliance upon the Revenue Representation caused TeleChoice to assume that the revenue it would earn under the Final Dealer Appointment would be the same as the revenue referred to in the Revenue Representation. It is alleged that: Optus induced TeleChoice to adopt the assumption; that TeleChoice acted to its detriment in reliance on the assumption; Optus knew and intended that TeleChoice would so act; it would be unconscionable for Optus to fail to fulfil the Revenue Representation; and that TeleChoice would suffer detriment if the Revenue Representation is not fulfilled. The particulars in support of these allegations simply refer to the particulars under paragraphs 12 to 21 of the Fourth FASOC, which are the paragraphs which plead the misleading and deceptive conduct claim.
63 The pleading does not state, by way of material fact or otherwise, what it is alleged that the Optus Entities are estopped from doing. This was raised with senior counsel for TeleChoice during the hearing and some time was allowed for it to be reflected upon. At the conclusion of day two of the hearing senior counsel for TeleChoice informed the court that although it was not stated in the pleading, TeleChoice contends that the Optus Entities are estopped from failing to fulfil the Revenue Representation, which it was said would pick up the language of paragraph 35(e) of the pleading.
64 It is then alleged in paragraph 36 that ‘TeleChoice is entitled to equitable relief, namely equitable compensation’ in an amount representing the difference in profit between the revenue earned under the Final Dealer Appointment and the profit it would have earned for the same number of sales under the Intended Telstra Appointment at the Actual Telstra Rates, alternatively under the Intended Telstra Appointment based on the Telstra Rates. Put another way, it claims the same loss calculated as lost profit as it claims under the Breach of Contract Claim and the Collateral Contract Claim, calculated in the same way and relying upon the same particulars.
65 The submissions of the parties regarding the Revised Telstra Revenue Claims and paragraphs 9–36, and my consideration of the same, are addressed in Parts D.2 to D.4 below.[59]
[59]To the extent that the previous formulation of the claims were dealt with in the Strike Out Reasons, this occurred primarily in paragraphs 36–75 in respect of the stay/summary judgment applications) and paragraphs 76–93.
Part D.2: Optus Entities’ position and submissions – Revised Telstra Revenue Claims
66 In their written submissions the Optus Entities dealt with the Revised Telstra Revenue Claims somewhat collectively, indicating that they were opposed to the revisions for various reasons, namely: they have no real prospect of success; the Revenue Representation allegation is embarrassing; the terms of the Intended Telstra Appointment are not sufficiently identified; the calculations in Annexure A to the Fourth FASOC are embarrassing; numerous facts are not properly pleaded; and the existence of prejudice in the conduct of their defence arising from the timing and content of the amendments. These submissions were supplemented orally in various ways.
Part D.2.1: No real prospect of success
67 It was submitted that the Misleading Revenue Representation Claim had no real prospect of success because it had been clarified that the claim was for the alleged loss of an opportunity to enter into the Intended Telstra Appointment and, that being so, it was clear that TeleChoice’s claim is statute barred by operation of s 82(2) and/or s 87(1CA) of the Trade Practices Act 1974 (Cth) (TPA). It was noted that this was currently pleaded in the Optus Entities’ further amended defence.[60] Whilst it was acknowledged that the application of limitation of actions legislation to the facts of a particular case is generally a matter for determination at trial, it was submitted that the ’clarity of the position in this instance justifies departure from the general approach’. In the context of this loss of opportunity claim, reliance was also placed on the observations of Nettle J in Environmental Systems Pty Lt v Peerless Holdings Pty Ltd (Environmental Systems).[61]
[60]At [155(B)(iv)].
[61][2008] VR 358, [109].
68 It was submitted that the Breach of Contract Claim lacked any realistic prospect of success and is fundamentally flawed because of the following:
(a) The Final Dealer Appointment is alleged in paragraph 15 to have been wholly in writing and constituted by the documents there referred to, which do not include the Revenue Term.
(b) The Revenue Term does not satisfy the BP Refinery (Westernport) Pty Ltd v Shire of Hastings (BP Refinery)[62] requirements for an implied term because it contradicts express terms of the documents alleged to constitute the Final Dealer Appointment, including clauses 11.2 of the 2008 Master Dealer Agreement (relating to commission being paid in accordance with relevant schedules) and the entire agreement clauses in clause 15.1 of the Master Agreement and clause 38.1 of the 2008 Master Dealer Agreement.
[62](1977) 180 CLR 266.
(c) Insofar as the Revenue Term is alleged to have been a parole oral term or a collateral contract, it was submitted that this cannot be so because it is inconsistent with the terms of the Final Dealer Appointment. In this context reference was made to Gates v City Mutual Life Assurance Society Ltd (Gates).[63]
[63](1986) 160 CLR 1, 11 (Mason, Wilson and Dawson JJ), which in turn referred to, among others, Hoyts Pty Ltd v Spencer Ltd (1919) CLR 133, 139 and 147–8.
(d) In the same way that the particulars to paragraph 12 were not capable of supporting the Revenue Representation they were similarly unable to support the allegation regarding the existence of the Revenue Term or alleged collateral contract.
(e) The pleading does not allege when it was that Optus was obliged to pay TeleChoice or how the amount Optus was required to pay was to be calculated and the allegations are therefore at least embarrassing and meaningless. This, so it was submitted, also makes it impossible to address the issue of when time starts to run for the purpose of determining when the claim became time barred.
Part D.2.2: Revenue Representation is embarrassing and related matters
69 With respect to the Revenue Representation it was submitted that as formulated the allegation was unclear and embarrassing. The primary matters referred to in this context were as follows:
(a) In effect two representations are pleaded with the first apparently not incorporating any reference to the Telstra Rates, though this was said to be unclear. Further, the intended distinction between the alternative representations in paragraph 12 was said not to be ‘immediately apparent’.
(b) The particulars to paragraph 12 were not capable of supporting the allegations of material fact if and to the extent the Revenue Representation is said to go beyond the July 2007 Forecast. In part this was said to be established by the documents relied upon by TeleChoice, including, for example, the July 2007 Forecast, the 10 July 2007 letter from Optus regarding what it was prepared to do, and the Optus Financial Summary prepared by Optus. Reference was also made to there being no silence in response to the 12 July 2007 letter from TeleChoice because it was followed by the Optus Financial Summary, adoption by Optus of the July 2007 Forecast, and ultimately the agreement reflected in the Final Dealer Appointment with the Optus Entities.
(c) Whilst the particulars in paragraph 10 seek to explain the basis of the July 2007 Forecast, it was said that they do not support a representation allegation about something different. It was said further that the rates referred to in paragraphs 10 and 11A were not the rates of Telstra but an expectation of revenue as recorded in the July 2007 Forecast based on the assumptions made by Ms Seifen.
(d) The means by which the Telstra Rates are alleged to be incorporated into the Revenue Representation in sub-paragraph 12(b) were said to be unclear. It was submitted that the inclusion of the reference to the Telstra Rates in sub-paragraph 12(b) render it unintelligible because the basis upon which the Telstra Rates are said to be incorporated into the Revenue Representation is not disclosed.
(e) The rates referred to in many of the sub-paragraphs of paragraph 10 (which deals with the Telstra Rates) were said not to be referred to in the draft Telstra contracts and not to have been disclosed. Therefore, so it was said, TeleChoice had not identified the source of the obligation that would have been imposed upon Telstra to pay revenue based on such rates. A significant item in this context (and more generally) was said to be the MRO (Mobile Repayment Option) (MRO) rate of $160 per activation and digital advance. On this topic it was also submitted that this MRO claim had been abandoned previously, as it was said was apparent from previous requests for information and a review of earlier iterations of the pleading — and in particular the version dated 13 August 2018 when compared to the version dated 25 November 2019.[64] Emphasis was also placed on the letter of 3 November 2020 from the Optus Entities’ solicitors in this context.
[64]Including the absence of the allegations in paragraphs 110 to 121 of the 13 August 2018 pleading.
(f) The basis for the calculation of each of the items of revenue in the July 2007 Forecast was said not to be sufficiently particularised and this was said to have occurred in a context where there was a fresh allegation in paragraph (iii)(b) of the particulars to paragraph 12 that representatives of Optus ‘including’ Mr Shiner and Mr Martinelli had reviewed the terms of the Intended Telstra Appointment and verified the basis for the calculation of revenue forecast to be earned by TeleChoice under the Intended Telstra Appointment and contained in the July 2007 Forecast.
(g) To the extent the Revenue Representation in paragraph 12(a) does not incorporate the Telstra Rates, it was submitted the rates must be drawn from some other source but that this is not identified or identified by reference to the terms of the proposed Telstra contracts. A material example was said to be the MRO amounts, which are a substantial amount and said to be not part of the Telstra contracts, but that no other entitlement to receive such amounts under the Intended Telstra Appointment had been identified, including in the witness statement of Ms Seifen filed to date.
(h) The confusion regarding the relevant Telstra Rates was said to be compounded by the reference for the first time to the ‘Actual Telstra Rates’ in paragraph 16(b) and the alternative counterfactual positions in paragraph 17 for each of the Revenue Representations. Further, it was said that how or why the Actual Telstra Rates calculated at some time after the conclusion of the Final Dealer Appointment are said to be incorporated in a Revenue Representation made in mid-2007 is not disclosed.
(i) The temporal relationship between various allegations and particulars was said to be vague and unsatisfactory where a number of the events said to be relevant to the making of the representation appeared to have occurred after the Revenue Representation is said to have been made, and after TeleChoice is said to have taken steps in reliance upon it. It was submitted that the lack of clarity about timing means Optus is left to guess at how critical aspects of the alleged representation — that is, how the Telstra Rates are said to be part of the Revenue Representation — are said to have been made.
(a) TeleChoice should be given leave to amend its Misleading Revenue Representation Claim insofar as it is based upon or relates to what are now defined in paragraph 10 as the Telstra Rates.
(b) TeleChoice should not be granted leave to amend its Misleading Revenue Representation Claim insofar as it is based upon or relates to what are defined in paragraph 16(b) as the Actual Telstra Rates.
(c) TeleChoice should not be granted leave to amend its Misleading Revenue Representation Claim insofar as it seeks to introduce alleged Telstra market share related increased sales volumes referred to in paragraph 16(c) and Part C of Annexure A.
(d) TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC so as to re-introduce a misleading and deceptive conduct claim based on the so-called Actual Telstra Rates referred to in paragraph 16(b) or the alleged Telstra market share related increased sales volumes referred to in paragraph 16(c) and Part C of Annexure A.
(e) TeleChoice should be granted leave to amend its Breach of Contract Claim based on the alleged Revenue Term insofar as that claim is based or relates to the Telstra Rates. The grant of leave will be conditional upon the inclusion of clear and concise particularised allegations of material fact regarding the written, oral or implied terms of the Final Dealer Appointment that address when it is alleged that the Optus Entities were required to pay the amount the subject of the alleged Revenue Term — provided, of course, that the relevant parties and practitioners are satisfied that there is a proper basis for such allegations. Leave to amend should not be granted to include a breach of contract claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.
(f) TeleChoice should be granted leave to amend its Collateral Contract Claim insofar as that claim is based on the Telstra Rates. The grant of leave will also be conditional in the way described in the preceding paragraph regarding the Breach of Contract Claim. Leave to amend should not be granted to include a collateral contract claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.
(g) TeleChoice should be granted leave to amend its Estoppel Claim based upon the alleged Revenue Representation insofar as that claim is based on the Telstra Rates. The grant of leave will be conditional upon the inclusion of clear and concise particularised allegations of material fact addressing what it is alleged the Optus Entities are estopped from doing and addressing what TeleChoice alleges the Optus Entities were required to do, and when, to fulfil the Revenue Representation. Leave to amend should not be granted to include an estoppel claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.
(h) TeleChoice should be granted leave to amend its claim to include the PTF Claw Back Claims referred to in paragraphs 60C to 60H, although this leave will not extend to the inclusion of the allegations in paragraphs 60E and 60G.
(i) TeleChoice should be granted conditional leave to amend paragraph 111 in part only, namely:
(vi) by making the proposed adjustment to the language of the pleaded material fact in paragraph 111 by striking through part of the existing language regarding the suffering of loss and replacing it with an allegation of material fact that: ‘Further, TeleChoice suffered loss and damage as a result of the Post-Notice Conduct’;
(vii) by including only Parts B and D of Annexure B (which address ‘Revenue which would have been derived under the Final Dealer Appointment without the Post-Notice Conduct’ calculated at the Telstra Rates (Part B) and at the rates actually paid by the Optus Entities (Part D);[155]
[155]Including relevant explanatory notes and footnotes in Annexure B.
(viii) by supplementing the calculations in Part D of Annexure B so as to more fully and clearly articulate and set out:
(A) the calculations for arriving at the alleged revenue of $47,797,671 for the final year of the Final Dealer Appointment and the increased revenue of $9,196,294 referred to in paragraphs 22 and 23 of Part D;
(B) the calculations for arriving at a loss figure of $5,166,205 from an alleged increased revenue figure of $9,196,294; and
(ix) by supplementing the calculations in Part B of Annexure B so as to more fully and clearly articulate and set out:
(A) the calculations for arriving at the revenue figures of $72,121,335 for the final year of the (Optus) Final Dealer Appointment and the claimed increased revenue figure of $14,694,542, referred to in paragraphs 11 and 12 of Part B of Annexure B;
(B) the amount of the loss said to be attributable to the Post-Notice Conduct (as opposed to ‘total loss and damage’), and how that has been calculated; and
(C) if the amount of the loss attributable to the Post-Notice Conduct is said to be less than the claimed increased revenue of $14,694,542 referred to in paragraph 11 of Part B of Annexure B, the amount of that loss, its calculations, and how it is derived from the alleged increased revenue amount.
(j) TeleChoice should not be granted leave to amend to include Parts A or C of Annexure B as particulars of the loss and damage claimed in paragraph 111 of the Fourth FASOC.
(k) TeleChoice should not be granted leave to amend its claim so as to include the Inducing Breach Claim set out in paragraphs 117 to 120I of the Fourth FASOC. Further, TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.
(l) TeleChoice should not be granted leave to amend its claim to include the Underpaid Commission Claims set out in paragraphs 150A to 150M of the Fourth FASOC. Further, TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC to include claims of this kind.
403 The parties should confer expeditiously with a view to producing agreed orders to give effect to these reasons and further timetabling directions to advance the proceeding to trial. These orders will include orders making provision for the filing and service of a fourth further amended statement of claim in a form that is consistent with these reasons and finally disposing of the 2021 Application.[156]
[156]Together with any necessary consequential adjustments.
404 I will hear further from the parties regarding the precise terms of the proposed orders, next steps, and the question of costs.
ATTACHMENT 1
Procedural Chronology
Date Description 17 July 2013 Letter from Plaintiff to Defendants demanding $100 million and enclosing a draft Statement of Claim 15 December 2017 Originating Process and Statement of Claim filed by the Plaintiff 22 February 2018 Defendants raise possible application for security for costs (exhibit PJJ-3 to affidavit of Paul James dated 14 June 2018) 23 February 2018 Orders of Justice Elliott, including:
1. The defendants provide written notice to the plaintiff of any alleged deficiencies in and / or requests for further and better particulars of the statement of claim dated 15 December 2017 by 4:00 pm on 2 March 2018.
2. The plaintiff file and serve any amended statement of claim on or before 4:00 pm on 28 March 2018.
2 March 2018 List of deficiencies in the Statement of Claim served on the Plaintiff
(Application Book, pp.172 – 178)29 March 2018 Amended Statement of Claim filed 15 May 2018 Defence to the Amended Statement of Claim filed 29 May 2018 Reply to the Defence filed 14 June 2018 Summons issued by Defendants seeking security for costs 15 June 2018 Orders of his Honour Justice Elliott listing hearing of Summons for 3 August 2018 3 August 2018 Hearing of the Summons seeking security for costs before his Honour Justice Elliott. 3 August 2018 Orders of his Honour Justice Elliott, including:
1. Pursuant to r 62.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the plaintiff provide security for the defendants' costs in the amount of $791,730.63 ("the Security").
2. …
3. If the plaintiff fails to comply with paragraph 1 and 2 of these orders by 4:00pm on 31 August 2018, the proceeding be stayed.
4. The plaintiff file and serve a further amended statement of claim, to insert a prayer for relief, by 4:00 pm on 10 August 2018.
5. As soon as practicable, the parties, including counsel if necessary, confer to agree upon a protocol and any appropriate orders for discovery.
6. The parties jointly report to the court, by email to the associates of the Honourable Justice Elliott, on the result of the conferral referred to in paragraph 5 of these orders, including any agreed protocol and proposed orders, together with (if applicable) a short statement of any matter upon which the parties have not been able to agree, by 4:00 pm on 29 August 2018.
10 August 2018 Further Amended Statement of Claim filed 27 August 2018 Plaintiff seeks Defendants' consent to extend date for provision of security to 1 October 2018. Letter from Plaintiff's solicitor includes:
"We will notify once security has been finalised, and we request that your clients take no further steps in the proceeding until that time."
(Application Book, p.943)30 August 2018 Counsel for the Plaintiff sends an agreed communication to the Court stating, amongst other things:
"The plaintiff has informed the defendants that:
a. it has been unable at this stage to arrange security and that it will not be able to do so by the deadline in Order 3 of Justice Elliott's Orders of 3 August; and
b. the plaintiff has not taken any steps in relation to Orders 5 and 6 of those Orders.
In the circumstances, by operation of Order 3 of Justice Elliott's Orders of 3 August, the matter will be stayed.
Once the plaintiff has security in place, it proposes to apply to the Court for the stay to be lifted and seek a new timetable for discovery and further steps in the proceedings. The defendants reserve their position in this regard."
(Application Book, p.669)1 March 2019 Summons issued by Defendants seeking dismissal of proceedings pursuant to rule 62.04 13 March 2019 Notice of change of solicitor for the Plaintiff 20 March 2019 Orders of his Honour Justice Croft, including:
1. The Defendants' application for the dismissal of the proceedings be adjourned until 5 June 2019.
14 June 2019 Orders of his Honour Justice Croft, including:
1. Order 1 of the Orders of the Honourable Justice Elliott dated 3 August 2018 (Orders) be varied so as to read:
"Pursuant to r 62.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the plaintiff to provide security for the defendants' costs in the amount of $791,730.63, payable in the following tranches:
a. $250,000 on or before 5pm, 14 June 2019;
b. $180,000 on or before 5pm, 17 July 2019;
c. $180,000 on or before 5pm, 16 August 2019;
d. $181,730.62 on or before 5pm 16 September 2019."
…4. The plaintiff is to provide any proposed Second Further Amended Statement of Claim and file and serve any application seeking leave to file any proposed Second Further Amended Statement of Claim by 5pm on 16 September 2019.
14 June 2019 Certificate of receipt $250,000 16 July 2019 Certificate of receipt $180,000 16 August 2019 Certificate of receipt $180,000 13 September 2019 Notice of change of solicitor for the Plaintiff 16 September 2019 Certificate of receipt $181,730.62 17 September 2019 Summons issued by Plaintiff seeking to file and serve a amend theSecond Further Amended Statement of Claim17 October 2019 Defendants write to Plaintiff noting numerous deficiencies in the Proposed Second Further Amended Statement of Claim and enclosing document titled "Defendants' written notice of the deficiencies in the plaintiff's Statement of Claim" provided to the then solicitors for the Plaintiff on 2 March 2018
(Application Book, pp.191 – 199)30 October 2019 Plaintiff writes to the Defendants responding to Defendants' lists of deficiencies and attaching:
· an "updated proposed second further amended statement of claim"; and
· a document setting out the basis of the estimated loss of $100,724,095 referred to in paragraph 19 of that claim
(Application Book, pp.200 – 204 (proposed SFASOC omitted from Application Book)
22 November 2019 Orders of his Honour Justice Connock, including:
1. The plaintiff has leave to file and serve, by 4:00pm on 29 November 2019, a second further amended statement of claim in the form referred to in the letter from Danaher Legal to Clayton Utz dated 20 November 2019 (being the exhibit marked as 'SY-7' to the affidavit of Simon Young sworn on 20 November 2019), save for paragraphs 55 to 57, which are to be excised.
2. By 4:00pm on 5 February 2020 the defendants file and serve a defence to the second further amended statement of claim.
3. By 4:00pm on 19 February 2020 the plaintiff file and serve any reply to the defence to the second further amended statement of claim.
25 November 2020 Second Further Amended Statement of Claim filed 5 February 2020 Defence filed 19 February 2020 Reply filed 21 February 2020 Orders of his Honour Justice Connock, including:
1. By 4:00pm on 6 March 2020, the parties confer and agree upon a protocol and any appropriate orders for discovery.
2. By 4:00pm on 18 March 2020, the parties jointly inform the Court by email to the associates of the Honourable Justice Connock of the result of the conferral referred to in paragraph 1 of these orders, including any agreed protocol and proposed orders, together with (if applicable) a short statement of any matter upon which the parties are not able to agree.
19 February to 19 June 2020 Correspondence exchanged between the parties in relation to discovery (including, but not limited to, correspondence referred to below) 4 March 2020 Conference between the parties on discovery in relation to plaintiff's commission-based claims 1 April 2020 Amended Defence filed 8 May 2020 Defendants write to Plaintiff requesting a copy of the documents that form the basis of the Plaintiff's commission-based claims
(Application Book, p.246)13 May 2020 Defendants write to Plaintiff seeking, among other things, a response to the letter dated 8 May 2020
(Application Book, p.248)19 May 2020 Defendants write to Plaintiff seeking, among other things:
1. confirmation of the basis upon which the particulars to paragraph [19] of the SFASOC was prepared; and
2. a copy of 'Sheet B'.
22 May 2020 Defendants email Plaintiff seeking a response to the letter dated 8 May 2020
22 May 2020 Defendants write to Plaintiff in relation to 'clawback' claims, and issue Notice to Produce seeking emails referred to in paragraph 60 of SFASOC
(Application Book, pp.260 – 262)25 May 2020 Plaintiff responds to letter dated 8 May 2020. The documents requested by Defendants are not attached
(Application Book, pp.263 – 264)27 May 2020 Conference between the parties on discovery in relation to plaintiff's commission-based claims 10 June 2020 Defendants write to Plaintiff seeking production under Notice to Produce dated 22 May 2020, requesting a response to letter dated 22 May 2020, and seeking clarification as to scope of claim in paragraph 60 of SFASOC 12 June 2020 Plaintiff writes to Defendants enclosing production in response to Notice to Produce dated 22 May 2020, and foreshadowing response in relation to scope of claim in paragraph 58 of SFASOC
(Application Book, p.311 and JPM-18(i))17 June 2020 Defendants write to Plaintiff enclosing data extracted from the Defendants' commission system for the customers referred to in the particulars to paragraphs 49 and 52 of the SFASOC. (Application Book, pp.149 – 150 and JPM-18(ii)) 18 June 2020 Defendants write to Plaintiff seeking response in relation to scope of claim in paragraph 59 of SFASOC 19 June 2020 Defendants write to Plaintiff setting out position in relation to commission and clawback claims, and foreshadowing filing of Summons
(Application Book, pp.152 – 160)23 June 2020 Plaintiff writes to Defendants enclosing tables setting out the clawbacks referred to in paragraphs 58 to 60 of the SFASOC
(Application Book, p.312 and JPM-18(iii))24 June 2020 Plaintiff writes to the Defendants in response to the letter dated 19 June 2020
(Application Book, pp.269 – 270)26 June 2020 Orders of his Honour Justice Connock, including:
1. By 4:00pm on 3 July 2020, the defendants provide a substantive response to the plaintiff's solicitors' letter dated 24 June 2020.
2. By 4:00pm on 17 July 2020, the plaintiff provide a substantive response to the defendants' solicitors' letter dated 19 June 2020.
3. …
4. By 4:00pm on 31 July 2020, the defendants file and serve any application by summons seeking to strike out any part of the plaintiff's second further amended statement of claim, together with any further affidavit material and written submissions in support of that application.
2 July 2020 Defendants write to Plaintiff setting out substantive response to letter dated 24 June 2020
(Application Book, p.276)13 July 2020 Defendants write to Plaintiff and enclose, among other things, data extracted from the Defendants' commission system for the customers referred to in the particulars to paragraph 137 of the SFASOC.
(Application Book, p.280 and JPM-18(iv))17 July 2020 Plaintiff writes to Defendants setting out substantive response to letter dated 2 July 2020
(Application Book, pp.281 – 288)18 July 2020 Defendants write to Plaintiff requesting a copy of the "Movement Reports" referred to in the letter dated 17 July 2020
(Application Book, p.289)19 July 2020 Plaintiff provides "Movement Reports" to Defendants
(Application Book, p.291 and JPM-18(v))22 July 2020 Defendants write to Plaintiff requesting:
· all additional documents and information relied upon to prepare the particulars to paragraphs 49 and 52 of the SFASOC;
· all documents and information relied upon to prepare Annexure B of the letter dated 17 July 2020; and
· a 'Movement Report' for customer 'LO'.
(Application Book, p.296)
24 July 2020 Plaintiff writes to Defendants, enclosing material requested in letter dated 22 July 2020
(Application Book, pp.297 – 298 and JPM-18(vi))27 July 2020 Defendants write to Plaintiff requesting all documents and information relied upon to prepare the particulars to paragraph 137 of the SFASOC.
(Application Book, p.299)29 July 2020 Plaintiff provides material requested by Defendants on 27 July 2020
(Application Book, p.303 and JPM-18(vii))31 July 2020 Defendants file Summons, First Affidavit of Leong Chi Wong, Affidavit of Jonathon McRostie and Outline of Submissions 6 August 2020 Defendants file Amended Summons pursuant to order of his Honour Justice Connock dated 6 August 2020. 11 August 2020 Plaintiff files and serves Outline of Submissions and First Affidavit of Liliane Seifen 20 August 2020 Plaintiff sends an email to chambers of his Honour Justice Connock attaching a summary of its claims. 21 August 2020 Directions hearing before his Honour Justice Connock. 25 August 2020 Defendants file and serve Further Amended Summons 26 August 2020 Defendants write to Plaintiff regarding its submission at the directions hearing on 21 August 2020 concerning the reconciliation of payment of commission. that "if these payments could be properly reconciled and proved then we could just move on and we could focus not on what Optus accepts are internal dealer code changes but the final dealer code changes which both parties accept had an effect on the payment of commission to TeleChoice." Defendants request confirmation of what Plaintiff requires to be reconciled. 2 September 2020 Plaintiff writes to Defendants in response to email of 26 August 2020.
(Application Book, pp.1256 – 1258)4 September 2020 Defendants serve Second Affidavit of Leong Chi Wong and revised Outline of Submissions in support of the Further Amended Summons (pursuant to orders dated 21 August 2020). These documents filed and sealed copies served on 8 September 2020 14 September 2020 Defendants write to Plaintiff in response to letter dated 2 September 2020 regarding 'reconciliation' of commissions payments
(Application Book, pp.1259 – 1261)18 September 2020 Plaintiff serves Consolidated Outline of Submissions and Second Affidavit of Liliane Seifen 22 September 2020 Defendants write to Plaintiff requesting copies of the instructions provided to Mr Denis Tarasov referred to in the Second Affidavit of Liliane Seifen 25 September 2020 Plaintiff writes to Defendants stating that documents referred to in Second Affidavit of Liliane Seifen are privileged and would not be produced. 5 October 2020 Defendants write to Plaintiff regarding particulars to paragraph 19 of SFASOC and the calculation of loss arising from the 'Revenue Representation' claim, and requests (among other things) a copy of a document described as "Sheet B"
(Application Book, p.375)8 October 2020 Defendants write to Plaintiff repeating request for production of documents referred to in the Second Affidavit of Liliane Seifen and foreshadowing a notice to produce in the event that production was not otherwise made 9 October 2020 Defendants file and serve List of Documents (Tranche 1) 13 October 2020 Defendants write to Plaintiff requesting a response to letter dated 5 October 2020 (regarding the calculation of loss arising from the 'Revenue Representation' claim). 15 October 2020 Plaintiff writes to Defendants maintaining position that documents referred to in Second Affidavit of Liliane Seifen are privileged, and stating that that privilege has not been waived 15 October 2020 Plaintiff writes to Defendants enclosing "Sheet B"
(Application Book, pp.378 – 379)19 October 2020 Defendants issue notice to produce documents referred to in Second Affidavit of Liliane Seifen
(Copy sent to chambers of his Honour Justice Connock on 23 November 2020)19 October 2020 Defendants write to Plaintiff requesting copies of the "Optus generated reports" referred to in Plaintiff's letter of 15 October 2020.
(Application Book, pp.381 – 382)22 October 2020 Plaintiff files and serves List of Documents (Tranche 1) 27 October 2020 Defendants write to Plaintiff requesting "Optus generated reports".
(Application Book, p.381)30 October 2020 Email from chambers of his Honour Justice Connock notifying the parties that the Defendants' application by summons would be listed for hearing on 18 November 2020, and that the Defendants and Plaintiff should file and serve any additional material by 5 November and 12 November respectively. 3 November 2020 Defendants write to Plaintiff seeking further and better particulars of the calculation of loss in "Sheet B"
(Application Book, pp.383 – 386)6 November 2020 Defendants file and serve Third Affidavit of Leong Chi Wong 10 November 2020 Email from chambers of his Honour Justice Connock notifying the parties that the hearing of the Defendants summons would be adjourned to 23 November 2020. Orders to that effect made on 13 November 2020. 13 November 2020 Plaintiff files and serves Third Affidavit of Liliane Seifen 17 November 2020 Defendants file Further Amended Defence. Document served on the Plaintiff on 18 November 2020.
(Application Book, p.96)18 November 2020 Defendants write to Plaintiff requesting a response to the Defendants' letter of 3 November 2020 (requesting further and better particulars to "Sheet B") 18 November 2020 Plaintiff files and serves submissions on its objection to the notice to produce dated 19 October 2020 and a supporting Affidavit of Liliane Seifen
(These documents not included in the Application Book)19 November 2020 Defendants file and serve Outline of Submissions on Notice to Produce dated 19 October 2020 19 November 2020 Plaintiff notifies Defendants that it "is considering cross examining Mr Leong Chi (Peter) Wong" at the hearing on 23 November 2020 20 November 2020 Plaintiff writes to Defendants confirming that it will make an application for leave to cross examine Mr Wong at the hearing on 23 November 2020. 23 November 2020 Hearing of Defendants' summons (part heard). Orders made at conclusion of the hearing. 30 November 2020 Defendants file and serve their 'List of Deficiencies in SFASOC', pursuant to paragraph 4 of orders dated 23 November 2020.
(sent to the chambers of his Honour Justice Connock by email dated 4 February 2020)10 December 2020 Plaintiff serves the first iteration of its Proposed Third Further Amended Statement of Claim, pursuant to paragraph 5 of orders dated 23 November 2020.
(sent to the chambers of his Honour Justice Connock by email dated 4 February 2020)21 December 2020 Defendants write to Plaintiff objecting to inclusion of paragraphs [150A] to [150L] in the first iteration of the Proposed Third Further Amended Statement of Claim 21 December 2020 Defendants write to Plaintiff requesting documents referred to in the particulars to paragraph 12 of the first iteration of the Proposed Third Further Amended Statement of Claim.
(Application Book, p.391)22 December 2020 Defendants serve document setting out their grounds of opposition to the first iteration of the Plaintiff's Proposed Third Further Amended Statement of Claim.
(sent to the chambers of Connock J by way of email dated 4 February 2020)23 December 2020 Plaintiff files and serves four Witness Statements and three Outlines of Evidence 23 December 2020 Defendants file and serve List of Documents (Tranche 2) 24 December 2020 Plaintiff files and serves List of Documents (Tranche 2) 27 January 2021 Defendants write to Plaintiff stating that no response had been received to letter dated 21 December 2020 and requesting that the "July 2007 Forecast" be provided without further delay
(Application Book, p.392)2 February 2021 Defendants write to Plaintiff again requesting copy of "July 2007 Forecast"
(Application Book, p.388)2 February 2021 Plaintiff writes to Defendants attaching "July 2007 Forecast"
(Application Book, pp.388, 393)4 February 2021 Parties send email to chambers of his Honour Justice Connock regarding their compliance with paragraphs 4 to 6 of the orders made on 23 November 2020 9 February 2021 Defendants write to Plaintiff referring to comments made by his Honour Justice Connock at the hearing on 23 November 2020, and inviting it to produce the documents responsive to the Notice to Produce dated 19 October 2020 10 February 2021 Plaintiff produces documents (in redacted form) responsive to Notice to Produce dated 19 October 2020. 11 February 2021 Defendants write to Plaintiff request further production be made of the documents responsive to the Notice to Produce dated 19 October 2020. 12 February 2021 Directions hearing before his Honour Justice Connock. Orders made at conclusion of hearing. 19 February 2021 Plaintiff writes to Defendants attaching documents responsive to the Notice to Produce dated 19 October 2020. The documents previously produced on 10 February 2021 are re-produced again in redacted form 22 February 2021 Plaintiff serves second iteration of its Proposed Third Further Amended Statement of Claim, pursuant to paragraph 1 of the orders made on 12 February.
Plaintiff also serves a document setting out its responses to the Defendants' grounds of opposition (served on the Plaintiff by the Defendants on 22 December 2020)23 February 2021 Defendants write to Plaintiff seeking confirmation of the documents described as the "Draft Heads of Agreement dated 1 October 2006", and the "Draft Telstra Dealership Agreement"
(Application Book, p.396)24 February 2021 Defendants write to Plaintiff seeking clarification on the documents produced by the Plaintiff on 19 February 2021 pursuant to the Notice to Produce dated 19 October 2020 24 February 2021 Plaintiff writes to Defendants confirming documents described as the "Draft Heads of Agreement dated 1 October 2006", and the "Draft Telstra Dealership Agreement"
(Application Book, pp.395, 397 – 592)1 March 2021 Defendants file 'fresh' summons pursuant to paragraph 5 of orders dated 12 February 2021. 1 March 2021 Plaintiff writes to Defendants stating that "our client does not maintain its claim with respect to the application by Optus of dealer code 39425. Accordingly, example (d) in the particulars subjoined to paragraph 49 of the proposed third further amended statement of claim should be deleted (with the deletion shown as a double strikethrough)." 1 March 2021 Plaintiff writes to Defendants in response to letter dated 24 February 2021 regarding documents produced in response to the Notice to Produce dated 19 October 2020 2 March 2021 Plaintiff writes to Defendants referring to comments in 'responses' document attached to 22 February 2021 email (see above) and seeking clarification regarding Defendants' objections to allegations relating to dealer codes 00017, 00067, 00087 and 14121 4 March 2021 Defendants write to Plaintiff responding to 2 March 2021 email stating that the Plaintiff "has not provided any material that supports its allegations in respect of a number of the dealer codes currently referred to in the particulars to paragraph 49, including dealer codes 00017, 00067, 00087 and 14121. There is no factual basis stated for the reference in the TFASOC to those dealer codes." 5 March 2021 Plaintiff serves Outline of Submissions and Affidavit of Liliane Seifen, in support of its application for leave to amend to include paragraphs [150A] to [150L] of the PTFASOC. Those documents filed on 9 March 2021 5 March 2021 Defendants file and serve Outline of submissions, Fourth Affidavit of Leong Chi Wong (dated 3 March 2021) and Affidavit of Jarrad Mathie 15 March 2021 Defendants write to Plaintiff referring to paragraph 21 of Plaintiff's submissions dated 9 March 2021 (in support of its application for leave to amend) and requesting a description of the discovery it considers would be required in respect of paragraphs 150A to 150L 19 March 2021 Defendants file and serve Outline of Submissions and Affidavit of Jonathon McRostie, in opposition to Plaintiff's application for leave to amend 19 March 2021 Plaintiff files and serves Outline of Submissions and Fourth Affidavit of Liliane Seifen, in opposition to Defendants' summons 23 March 2021 Directions hearing before Connock J. Orders made fixing hearing of Defendants' summons and Plaintiff's application to amend its third further amended statement of claim for 27 April 2021 26 March 2021 Plaintiff serves Proposed Fourth Further Amended Statement of Claim 26 March 2021 Defendants file and serve consolidated Outline of Submissions in support of their summons 26 March 2021 Plaintiff files and serves Consolidated Outline of Submissions and Fifth Affidavit of Liliane Seifen 6 April 2021 Defendants write to Plaintiff seeking confirmation of Plaintiff's position in respect of sub-paragraph (d) of the particulars to paragraph [49] of the Third Further Amended Statement of Claim 8 April 2021 Plaintiff writes to Defendants clarifying its position in respect of sub-paragraph (d) of the particulars to paragraph [49] of the Third Further Amended Statement of Claim (Plaintiff informed chambers of his Honour Justice Connock of this position by way of email dated 9 April 2021) 27-28 April 2021 Hearing of Defendants' summons 28 April 2021
Plaintiff serves draft summons seeking leave to file and serve a Fourth Further Amended Statement of Claim “substantially in the form of the Proposed Fourth Further Amended Statement of Claim provided to the defendants and the Court on 26 March 2021 (PFASOC), save that paragraphs 9 and 12 of the PFASOC are replaced by the form of those paragraphs (including paragraph 9A) provided to the defendants and the Court on 28 April 2021.” 6 May 2021 Orders of the Court dated 28 April 2021. 7 May 2021 Defendants provide to the Court by email a copy of:
1. procedural chronology;
2. table of pleadings iterations; and
3. collated bundle of documents referred to in the table of pleadings iterations.
31 May 2021 Judgment of his Honour Justice Connock in Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd & Ors [2021] VSC 310. 9 June 2021 Plaintiff writes to Defendants in respect of appropriate orders to be made to give effect to the reasons for judgment of Justice Connock delivered on 31 May 2021, the costs of the Defendants’ application, the next steps to be taken in respect of discovery to be made by Optus relating to TeleChoice’s Dealer Code Claims, and the next steps to be taken in respect of further amendments to the Statement of Claim. 24 June 2021 Defendants write to Plaintiff in reply to letter of 9 June 2021. 1 July 2021 Defendants write to Plaintiff in relation to the issue of costs, particulars to paragraph [49], and draft proposed Fourth Further Amended Statement of Claim (PFFASOC) 5 July 2021 Defendants write to Plaintiff requesting response to Defendants’ letters of 24 June 2021 and 1 July 2001. 5 July 2021 Plaintiff writes to Defendants providing amended schedule of particulars to paragraph 49. 23 July 2021 Defendants write to Plaintiff asking for confirmation that draft PFFASOC will be provided that day, and if not, when it is expected that will occur. 26 July 2021 Plaintiff writes to Defendants and advises there have been delays in finalising the PFFASOC and expects that the Plaintiff will be in a position to provide the PFFASOC on or before 12 August 2021. 26 July 2021 Defendants write to Plaintiff stating it is not apparent why additional time is required to provide the PFFASOC and indicating that the Defendants were prepared to agree an extension of time for provision of the draft PFFASOC to 30 July 2021. 27 July 2021 Plaintiff writes to Defendants in response to email of 26 July 2021 and advises that the Plaintiff is extremely keen to avoid another dispute arising about the form of its pleading, and to that end, it has been very carefully reviewing his Honour’s Reasons, and the source material underlying its various claims, to ensure that the Defendants and the Court are placed in the best possible position to comprehend, and respond to, the claims against them. 28 July 2021 Defendants write to Plaintiff in response to the email from the Plaintiff dated 27 July 2021, regarding Plaintiff's delay to provide the draft PFFASOC and seeking the Plaintiff's agreement to consent orders that it provide the draft PFFASOC by 12 August 2021. 30 July 2021 Plaintiff writes to Associates to his Honour Justice Connock providing proposed consent orders. 3 August 2021 Orders of his Honour Justice Connock including:
…4. By 4:00pm on 12 August 2021, the plaintiff provide further and better particulars of paragraph 53A(b).
…7. By 4:00pm on 9 August 2021, the parties file and serve written outlines of submissions limited to 6 pages and any affidavit material on which they intend to rely in relation to the costs of and incidental to the defendant’s application made by way of summons dated 31 July 2020 (as subsequently amended) and 1 March 2021.
8. By 4:00pm on 13 August 2021, the parties file and serve by way of reply any written outline of submissions limited to 3 pages and any affidavit material on which they intend to rely.
…9. By 4:00pm on 12 August 2021, the plaintiff serve on the defendants a draft proposed fourth further amended statement of claim.
10. By 4:00pm on 26 August 2021, the defendants serve on the plaintiff a document setting out any objections to the form of the proposed fourth further amended statement of claim, and the basis for those objections, or if there are no objections, notify the plaintiff of that fact and provide a copy of that correspondence to the Court.
11. By 4:00pm on 9 September 2021, the plaintiff file and serve any summons seeking leave to amend the TFASOC, an outline of written submissions in support of that summons, and any affidavit material in support of the summons upon which it intends to rely.
12. By 4:00pm on 7 October 2021, the defendants file and serve an outline of written submissions as well as any affidavit material upon which they intend to rely in opposing the plaintiff's summons.
…14. The proceeding is listed for further directions at 10:00am on 3 September 2021 before Justice Connock.9 August 2021 Defendants file and serve Submissions on Costs. 9 August 2021 Plaintiff files and serves Submissions on Costs and Affidavit of Simon Young. 13 August 2021 Defendants file and serve Reply Submissions on Costs. 13 August 2021 Plaintiff serves PFFASOC. 23 August 2021 Associates to his Honour Justice Connock write to Plaintiff requesting Plaintiff's Reply Submissions on Costs. 23 August 2021 Plaintiff writes to Associates confirming Reply Submissions on costs to be provided on 24 August 2021. 24 August 2021 Plaintiff files and serves Reply Submissions on Costs. 26 August 2021 Defendants serve List of Objections to PFFASOC. 27 August 2021 Plaintiff writes to Associates to his Honour Justice Connock seeking orders by consent for directions hearing listed for 3 September 2021 to be vacated and relisted on a date after 7 October 2021. 27 August 2021 Associates to his Honour Justice Connock write to Plaintiff confirming the Court would retain the directions hearing listed for 3 September 2021 and will deliver costs judgement on the date. 3 September 2021 Orders of Justice Connock on costs of the Defendants’ summonses dated 31 July 2020 and 1 March 2021. 8 September 2021 Further Orders of Justice Connock on costs of the Defendants’ summonses dated 31 July 2020 and 1 March 2021. 13 September 2021 Defendants write to Plaintiff seeking updated draft of Plaintiff’s proposed pleading in response to the List of Objections. 13 September 2021 Plaintiff writes to Defendants and advises that the next draft of the Plaintiff’s proposed pleading is well advanced and expects to provide it to the Defendants on 14 September 2021. 15 September 2021 Plaintiff serves amended PFFASOC with amendments in mark-up, and table setting out the Plaintiff’s responses to the Defendants’ List of Objections dated 26 August 2021. 16 September 2021 Plaintiff serves further amended PFFASOC, with minor changes to the annexures to the PFFASOC. 20 September 2021 Defendants write to Plaintiff and advise that save for one exception, the draft PFFASOC does not adequately address the Defendants' objections. 22 September 2021 Conferral between senior counsel for Plaintiff and Defendants in relation to the PFFASOC. 22 September 2021
23 September 2021 Plaintiff files and serves Summons, Affidavit of Liliane Seifen and Submissions in support of application for leave to file PFFASOC. 28 September 2021 Plaintiff writes to Associates to his Honour Justice Connock seeking a return date for its application for leave to file and serve PFFASOC. 5 October 2021 Defendants write to Plaintiff seeking discovery in relation to the claims based on the ‘Intended Telstra Appointment’ (Further Discovery). 13 October 2021 Plaintiff writes to Defendants in reply and states that Further Discovery will be made if leave is granted to file the PFFASOC. 15 October 2021 Defendants write to Plaintiff requesting the Further Discovery be made by 5:00pm on 20 October 2021. 19 October 2021 Defendants seek extension of time to file material in response to the Plaintiff’s summons to 29 October 2021 (from 22 October 2021). 20 October 2021 Associates to his Honour Justice Connock write to Defendants granting extension of time to 29 October 2021. 29 October 2021 Plaintiff writes to Defendants in reply to letters of 5 and 15 October 2021 stating that Further Discovery would be premature and that Further Discovery would be made if leave is granted to file the PFFASOC. 29 October 2021 Defendants file and serve affidavit of Paul John James dated 29 October 2021 and Outline of Submissions. 17 November 2021 Plaintiff writes to Associates to his Honour Justice Connock providing proposed procedural consent orders. 17 November 2021 Associates to his Honour Justice Connock write to Plaintiff confirming adjournment of directions hearing to 11 February 2022. 19 November 2021 Orders of his Honour Justice Connock including:
1. By 4:00pm on 10 December 2021, the plaintiff file and serve any further written submissions and affidavit material in reply which it intends to rely on in relation to its application seeking leave to amend the third further amended statement of claim made by summons dated 23 September 2021 (Plaintiff’s Application).
2. By 4.00pm on 17 December 2021, the plaintiff serve on the defendants and file for the use of the judge a copy of an application book in relation to the Plaintiff's Application. The plaintiff must also provide the judge and the defendants with the application book in electronic form.
3. …
4. By 4.00pm on 22 December 2021, the parties are to each file for the use of the judge, and serve on the other party, a list of authorities and the authorities in electronic form, which should each be in PDF and in text-searchable format, with the passages relied upon highlighted in text and the relevant paragraph numbers noted on the front page of each.
5. The directions hearing listed for 19 November 2021 is adjourned to 10:00am on 11 February 2022 before Justice Connock…
10 December 2021 Plaintiff writes to Defendants seeking consent to extension of time to file its further written submissions and affidavit material in reply to 15 December 2021 10 December 2021 Defendants write to Plaintiff confirming consent to extension of time sought. 10 December 2021 Plaintiff writes to Associates to his Honour Justice Connock requesting extension of time to file its further written submissions and affidavit material in reply to 15 December 2021 (from 10 December 2021). 10 December 2021 Associates to his Honour Justice Connock write to Plaintiff granting extension of time to file its further written submissions and affidavit material in reply to 15 December 2021 (from 10 December 2021). 15 December 2021 Plaintiff files and serves Consolidated Submissions in support of its application for leave to file the PFFASOC. 17 December 2021 Plaintiff files and serves Application Book. 22 December 2021 Associates to his Honour Justice Connock write to parties proposing hearing on 8 March 2022, requesting an updated procedural chronology by 1.00 pm on 4 February 2022 and confirming no further materials to be filed in relation to application without leave. 22 December 2021 Defendants file and serve the Defendants’ List of Authorities and Bundle of Authorities. 22 December 2021 Plaintiff files and serves the Plaintiff’s List of Authorities and Bundle of Authorities. 23 December 2021 Plaintiff files and serves amended Plaintiff’s Bundle of Authorities. ATTACHMENT 2
July 2007 Forecast [157]
[157]Reproduced as in original, including any typographical errors.
ATTACHMENT 3
Joint Agreed Line Item Explanation of the Commission Document
EXPLANATION OF THE LINE ITEMS IN
THE COMMISSION ANALYSIS (EXHIBIT LS-18 AT AB 1357)1
A.Line 2 (Commissionable Revenue)
1Line 2 is the amount of revenue received by Optus on which airtime commission was payable. The values in line 2 were calculated as follows:
(a)for the months April 2008 to September 2008, the figures were contained in the monthly payment summaries provided by Optus to TeleChoice; and
(b)for the months after September 2008 – when the commissionable revenue figure ceased to be include in the monthly payment summaries – the figures were derived by taking the actual airtime commission paid to TeleChoice, and dividing that figure by .09 (to reflect the fact that TeleChoice received a 9% airtime commission).2
B.Line 3 (Airtime Commission Paid)
2Line 3 is the amount of airtime commission paid by Optus to TeleChoice. The values in line 3 were taken directly from the monthly payment summaries provided by Optus to TeleChoice.
C.Line 4 (Airtime per SIO)
3Line 4 is the amount of airtime commission paid by Optus to TeleChoice, per Service in Operation. The values in line 4 were taken directly from the monthly payment summaries provided by Optus to TeleChoice from April 2008 to September 2008, but not thereafter.
D.Line 5 (Commissionable ARPU per SIO)
4Line 5 is the amount of revenue on which airtime commission was payable by Optus to TeleChoice, on a per user basis. Each of those figures were taken directly from the monthly payment summaries provided by Optus to TeleChoice from April 2008 to October 2008, but not thereafter.
E.Line 22 (Opening SIO base (reconstructed))
5Line 22 is TeleChoice’s calculation of the TeleChoice SIO base at the beginning of a month (that is, it is the same figure as the “Closing SIO base (reconstructed)” from the previous month (contained in line 28). The figure in line 22 represents TeleChoice’s calculation of its customer base at the start of each month.
6The basis for the calculation of the Closing SIO base (reconstructed) is set out below in respect of line 28.
F.Line 28 (Closing SIO base (reconstructed))
7Line 28 is TeleChoice’s calculation of its SIO (i.e. customer) base at the end of a month.
8The figure has been calculated by taking the month’s reconstructed opening SIO base (line 22), adding activations and gained services (lines 23 and 26), and deducting deactivations, cancellations and lost services (lines 24, 25 and 27).3
G.Line 29 (Airtime per SIO)
9Line 29 is TeleChoice’s calculation of the airtime commission it received per customer for the months April 2008 to September 2008 calculated by taking the airtime commission paid by Optus (line 3) and dividing it by the reconstructed opening SIO base (line 22).
10For the month of October2008 the figure in Line 29 is a figure calculated by taking an average of the values for the previous six months. For the months from November 2008 the figures in Line 29 are the average of the figures in Line 29 for the previous 6 months, including figures for months from October 2008 calculated as described.
H.Line 30 (Commissionable ARPU per SIO)
11Line 30 is TeleChoice’s calculation of the amount of airtime on which commission would be payable, on a per user basis, based on calculation of the average airtime commission per SIO in Line 29. The figure has been calculated by dividing the figure in line 29 by 0.09 (to reflect the fact that TeleChoice received a 9% airtime commission).
Dated: 15 March 2022
___________________________________
1The parties note that Ms Seifen’s 18 September 2020 affidavit also contains an explanation of some elements of the Commission Analysis (see paragraph 23 at AB 946-948).
2This explanation is inconsistent with the explanation in [20] of Ms Seifen’s 18 September 2020 affidavit (which refers to the information in lines 1 to 12 being taken “directly from” the monthly payment summaries). TeleChoice advises the Court that the above explanation is the correct explanation of the source of the figures in line 2 for the period after September 2008. In other words, the actual airtime commission paid figure (line 3) was taken directly from the monthly payment summaries, but the division by 0.09 to derive the commissionable revenue figure in line 2 was – for the months after September 2008 – a calculation performed as part of the Commission Analysis.
3The activations and deactivations figures are contained in lines 23 and 24, and are a cumulation of certain figures which were contained in the monthly payment summaries (see Ms Seifen’s 18 September 2020 affidavit at [23(j)] and [23(l)]). The gained services, cancellations and lost services are contained in lines 25, 26 and 27, and were contained in the monthly payment summaries from April to September 2008, and thereafter were calculated by reference to the Cancellation Reports and Movement Reports provided by Optus to TeleChoice each month.
SCHEDULE
S ECI 2017 00289
BUSINESS SERVICE BROKERS PTY LTD
(ACN 069 049 994)Plaintiff -and- OPTUS MOBILE PTY LTD
(ACN 054 365 696)First Defendant OPTUS INTERNET PTY LTD
(ACN 083 164 532)Second Defendant OPTUS NETWORKS PTY LTD
(ACN 008 570 330)Third Defendant OPTUS VISION PTY LTD
(ACN 066 518 821)Fourth Defendant
13