ConnectEast Pty Ltd v CityLink Melbourne Limited (No 2)

ConnectEast Pty Ltd sought restitution from CityLink Melbourne Limited in relation to roaming fees paid under a contract for the use of the City Link toll road. The claim was predicated on the assertion that the fees paid exceeded the statutory cap on such fees. The dispute was resolved in the Supreme Court of Victoria. The central issue before the court was whether the roaming fee charged under the contract exceeded the net incremental marginal cost of providing the roaming service, as required by the Melbourne City Link Act 1995. This involved interpreting the statutory provisions and assessing the methodology employed by CityLink to determine the net incremental marginal cost.

The court examined the evidence presented by ConnectEast to determine whether the fees charged were excessive. Given that certain crucial evidence was in CityLink's possession, the court applied principles from the Evidence Act 2008 (Vic) and relevant case law to assess the weight of ConnectEast's evidence. The court found that the burden of proof did not shift to CityLink, and it relied on the principle from Blatch v Archer and Gerard Cassegrain & Co Pty Limited v Cassegrain that the plaintiff must establish their case based on the evidence they can produce. The court also considered expert evidence to determine the reliability of the estimates provided by both parties. Drawing from precedents such as Sun Insurance Office v Clark and Australia and New Zealand Banking Group Ltd v Federal Commission of Taxation, the court concluded that ConnectEast's expert estimates were more reliable.

The court found that the statutory cap on roaming fees was not exceeded, as the fees charged were consistent with the net incremental marginal cost of providing the roaming service. The court further held that ConnectEast's claim was statute-barred under the Limitation of Actions Act 1958 (Vic), as the mistake was discoverable through reasonable diligence. Consequently, the court dismissed ConnectEast's claim for restitution.