ConnectEast Pty Ltd v CityLink Melbourne Limited (No 4)
[2025] VSC 586
•17 September 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2020 04353
| CONNECTEAST PTY LTD (ACN 101 213 263) | Plaintiff |
| v | |
| CITYLINK MELBOURNE LIMITED (ACN 070 810 678) | Defendant |
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JUDGE: | Stynes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 June 2025 |
DATE OF JUDGMENT: | 17 September 2025 |
CASE MAY BE CITED AS: | ConnectEast Pty Ltd v CityLink Melbourne Limited (No 4) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 586 |
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RESTITUTION – Claim for monies had and received – Whether roaming fees withheld under contract exceeded statutory cap.
TOLL ROADS – Interoperability – Roaming fees – Link roaming service – Net incremental marginal cost – Whether roaming fee withheld under contract exceeded net incremental marginal cost of providing Link roaming service – Melbourne City Link Act 1995, ss 93AA, 93AB.
INVALIDITY – Statutory interpretation – Inconsistency – Void to the extent of the inconsistency – Whether agreement providing for the imposition of roaming fees is void – Melbourne City Link Act 1995, s 93AB(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Philip Solomon KC with Catherine Dermody | Gilbert + Tobin |
| For the Defendant | Stuart Lawrance SC with Christopher Tran and Jess Moir | Arnold Bloch Leibler |
Contents
A.. Introduction
B.. Issue 1: What is the effect of s 93AB(2) of the MCL Act on the Roaming Agreements?
B.1Section 93AB(2) of the MCL Act
B.2 Relevant provisions of the Roaming Agreements
B.3 Submissions
B.3.1 CML’s Submissions
B.3.2 ConnectEast’s Submissions
B.4 Consideration
C.. Issue 2: Has CML made a claim in the proceeding by way of counterclaim for the purposes of s 30 of the Limitation of Actions Act 1958 (Vic)?
D.. Conclusion
HER HONOUR:
A Introduction
This case concerns the interoperability arrangements between the parties and, more specifically, alleged overpayments by the plaintiff (‘ConnectEast’) to the defendant (‘CML’) under agreements providing for that interoperability.
This application concerns alleged overpayments by CML to ConnectEast under those same agreements.
Section 93AB(1) of the Melbourne City Link Act 1995 (Vic) (‘MCL Act’) relevantly provides that the fee or charge that may be imposed by CML on ConnectEast under a Link roaming agreement for provision of a Link roaming service (ie, those arrangements which provide for interoperability between the toll road operators) “must not exceed the amount that represents the net incremental marginal cost [ie, the ‘NIMC’] to [CML] of providing that Link roaming service”.
On 11 January 2008, CML and ConnectEast entered into agreements which provide for interoperability between them, namely the Tag Roaming Agreement and the Video Roaming Agreement (together, ‘Roaming Agreements’). The Roaming Agreements provide, amongst other things, that when CML’s account holders travel on EastLink, CML will collect the applicable tolls and fees from their account holders, then pay those tolls and fees to ConnectEast, less an amount referred to under the Roaming Agreements as the ‘Discount Amount’. The Discount Amount is also referred to by the parties as the “roaming fee”, as it represents a fee paid for the provision of the service of collecting the applicable tolls and paying those tolls to the operator of the toll road travelled on. The Roaming Agreements provide for the same procedure and Discount Amount when ConnectEast’s account holders travel on a toll road operated by CML.
The quantum of the Discount Amount is a fixed sum per trip and is set out in cl 8.6 of the Tag Roaming Agreement and cl 9.6 of the Video Roaming Agreement (‘Discount Amount Clauses’).
On 7 February 2025, I delivered my reasons for judgment in ConnectEast Pty Ltd v CityLink Melbourne Limited (No 2) (‘Reasons’).[1] The Reasons provide more detailed descriptions of the parties, interoperability, and the Roaming Agreements. Relevantly, I found that the roaming fee paid by ConnectEast to CML in each of the sample years (ending 30 June 2015, 30 June 2017, 30 June 2019 and 30 June 2020) exceeded the legislative cap imposed by s 93AB of the MCL Act.
[1]ConnectEast Pty Ltd v CityLink Melbourne Limited (No 2) [2024] VSC 788 (‘Reasons’).
I found that the difference between the sum of the roaming fee paid and the amount representing the NIMC was:[2]
(a)$7,610,133 in the financial year ending 30 June 2015;
(b)$8,909,146 in the financial year ending 30 June 2017;
(c)$10,042,160 in the financial year ending 30 June 2019; and
(d)$9,561,348 in the financial year ending 30 June 2020,
(‘Sample Years Enrichment Amount’).
[2]Reasons, [615] (Stynes J).
On 14 February 2025, I made orders giving effect to the Reasons (’14 February 2025 Order’) including orders that:
1. There be a declaration that the roaming fee paid by the Plaintiff to the Defendant exceeded the legislative cap imposed by s 93AB(1) of the Melbourne CityLink Act 1995 (Vic) (‘MCL Act’) in each of the years ending 30 June 2015, 30 June 2017, 30 June 2019 and 30 June 2020 (the Relevant Years).
2. The Defendant pay $36,122,787 to the Plaintiff (being the difference between the sum of the roaming fee paid and the amount representing the net incremental marginal cost in the Relevant Years).
…
5. Pursuant to s 93AB(2) of the MCL Act, a declaration that, in each of the Relevant Years, each of clause 8.6 of the Tag Roaming Agreement and clause 9.6 of the Video Roaming Agreement is void to the extent the Discount Amount exceeded the legislative cap imposed by s 93AB(1) of the MCL Act. (Declaration).
…
On 5 March 2025, I made orders dealing with the further conduct of the proceeding (‘5 March 2025 Order’), including:
3. By 4:00pm on Thursday, 3 April 2025, the Defendant file and serve:
(a)any application by summons for orders consequent on paragraph 5 of the Order made on 14 February 2025;
(b)accompanying points of claim; and
(c)any submissions and evidence in support of the application, including, but not limited to, the extent to which the remainder of the Tag Roaming Agreement and the Video Roaming Agreement is void, if at all, and the quantum of any amounts due and payable by the Plaintiff to the Defendant by reason of the invalidity of part or all of those agreements.
Now before me is CML’s application, made by summons filed 7 April 2025, seeking, amongst other things:
(a)a declaration that each of the Roaming Agreements was void in its entirety during each of the Relevant Years;
(b)in the alternative, that the Discount Amount in each Roaming Agreement was void to the extent that it exceeded the legislative cap;
(c)an order that ConnectEast pay to CML a sum comprising:
(i)The total amount retained by ConnectEast under the Roaming Agreements in the Relevant Years (the ‘Retained Amount’).
(ii)In the alternative the amount retained by ConnectEast that was in excess of the NIMC to CML in each of the Relevant Years (the ‘Aggregate Excess’).
For the purpose of this application the amounts retained by ConnectEast in each of the Relevant Years were agreed between the parties and the parties proceeded on the basis that the exact figures were to be kept confidential. In any event, it is unnecessary to reveal them for the purpose of these reasons.
By its points of claim CML pleads, in summary:
(a)By force of s 93AB(2) of the MCL Act and consequent on the Declaration, the Discount Amount is void in each of the Relevant Years.
(b)By reason of the Discount Amount being void in each of the Relevant Years, there was no consideration for the reciprocal roaming services provided, and each of the Roaming Agreements was void in its entirety for the duration of each of the Relevant Years.
(c)By reason of the Roaming Agreements being void in their entirety during each of the Relevant Years, ConnectEast had no legal entitlement to retain any purported Discount Amount during any of those years.
(d)The Retained Amount comprises money had and received to which ConnectEast has no title and/or legal entitlement to retain.
(e)In the alternative, by force of s 93AB(2) of the MCL Act and consequent on the Declaration, the Discount Amount is void in each of the Relevant Years, only to the extent that it exceeded the legislative cap imposed by s 93AB(1), such that a reciprocal Discount Amount equal to the amount that represents the NIMC was to be withheld as consideration for the roaming service that each operator provided to the other operator. Therefore ConnectEast had no legal entitlement to retain the Aggregate Excess.
CML’s cause of action is a claim in money had and received in restitution in respect of the Discount Amounts withheld by ConnectEast under the Roaming Agreements or alternatively, in restitution in respect of the Discount Amounts withheld to the extent they exceed the amount that represents the NIMC in each of the Relevant Years (as determined by the Court and set out in the Reasons). This cause of action accrued each time the ConnectEast retained the relevant Discount Amount. These matters are not in dispute.
By its points of defence ConnectEast pleads in summary:
(a)The effect of s 93AB(2) of the MCL on the Roaming Agreements is that the fee imposed by CML on ConnectEast under the Roaming Agreements (CML’s Discount Amount) is void to the extent it exceeds the amount that represents the NIMC to CML of providing the Link roaming service (CML’s NIMC).
(b)Further, insofar as any claim is made in respect of any part of the Retained Amount or the Aggregate Excess that was retained by ConnectEast on or before 7 April 2019:
(i)The alleged causes of action accrued on the date of retention of the relevant amount.
(ii)Six years have elapsed since such retention.
(iii)Those claims are (and each of them is) statute barred by operation of s 5(1)(a) of the Limitation of Actions Act 1958 (Vic).
Having regard to the points of claim and defence, and the written and oral submissions of counsel, the following issues arise for determination in this application:
(a)Issue 1: What is the effect of s 93AB(2) of the MCL Act on the Roaming Agreements?
(b)Issue 2: Is the claim made by CML in respect of any part of the Retained Amount or the Aggregate Excess that was retained by ConnectEast a claim in the proceeding by way of counterclaim for the purposes of s 30 of the Limitation of Actions Act 1958 (Vic) such that the claim is deemed to have been commenced on the same date as ConnectEast’s action, being 23 November 2020?
B Issue 1: What is the effect of s 93AB(2) of the MCL Act on the Roaming Agreements?
B.1 Section 93AB(2) of the MCL Act
Section 93AB of the MCL Act provides:
Roaming fees
(1)For the duration of the concession period (within the meaning of the Agreement) or the concession period (within the meaning of the EastLink Agreement) whichever expires first, the fee or charge that may be imposed by [CML] on [ConnectEast] under a Link roaming agreement for the provision of a Link roaming service must not exceed the amount that represents the net incremental marginal cost to [CML] of providing that Link roaming service.
(2)Any agreement or arrangement existing on or after the commencement day that is inconsistent with subsection (1) is void to the extent of the inconsistency.
B.2 Relevant provisions of the Roaming Agreements
The relevant provisions of the Tag Roaming Agreement are cll 2(a), 8.1 and 8.6.
The Tag Roaming Agreement is drafted by reference to a ‘Home Operator’ and a ‘Foreign Operator’. In simple terms, the Home Operator is the party who issues the tag. The Foreign Operator is the party who operates the toll road upon which the trip takes place. Where a clause refers to an ‘Operator’, it means both parties to the agreement.
Clause 2(a) provides:
SUPPLY OF SERVICES
(a)In consideration for reimbursement by the Home Operator in accordance with clause 8, the Foreign Operator agrees to allow a Motorist to use an External Tag to satisfy the Toll (and any Fees) in respect of a Trip on the Foreign Operator’s Toll Road.
Clause 8.1 provides the payment regime between Operators. It requires each Operator (in its capacity as the Foreign Operator) to give a ‘Daily Notice’ to the other operator (in its capacity as Home Operator) showing the trips the Home Operator’s customers took on the Foreign Operator’s road during the preceding period and the tolls and any fees for those trips and the ‘Daily Payment Amount’ (being the aggregate of the tolls and fees, less the Discount Amount). The Home Operator is then required to make payment of the Daily Payment Amount to the Foreign Operator.
Clause 8.6 provides that, subject to a price review, the Discount Amount is 18 cents per trip (excluding GST), and is to be indexed.
The application proceeded on the basis that the Video Roaming Agreement has equivalent provisions such that any finding in relation to cl 8.6 of the Tag Roaming Agreement can be applied equally to cl 9.6 of the Video Roaming Agreement.
B.3 Submissions
B.3.1 CML’s Submissions
CML submits, in summary, that:
(a)Section 93AB(2) requires identification of the inconsistency in the agreement, not the outcome. This was not disputed by ConnectEast.
(b)The task of identifying the extent of the inconsistency should be undertaken in a common sense way, having regard to the fact that one purpose of the exercise is to identify parts of the agreement that will remain after the avoidance and in a way that doesn’t create, by the exercise of avoidance, an agreement of a different type to the agreement that the parties created.
(c)The “extent” of the inconsistency encompasses all that is inseparable from it in the agreement, that is, logically or structurally inseparable from it.
(d)Identification of the extent of the inconsistency should, to the extent possible, be done in a way that does not produce an agreement of a type that the parties, objectively, did not intend to make. The resulting agreement should still have some operation and one that, to the extent possible, doesn’t depart radically from the intention of the parties who made it.
(e)The whole of cll 8.6 and 9.6 should be rendered void for the reasons addressed in submissions including, in summary:
(i)Each Roaming Agreement provides for a single (reciprocal) Discount Amount.
(ii)ConnectEast and CML are both Home Operator and Foreign Operator for the purposes of the Roaming Agreements.
(iii)The Roaming Agreements have been structured as a single regime that applies to Home Operators and Foreign Operators. The parties could have chosen to structure the agreement as Operator A agreeing to provide a service to Operator B and vice versa, but they did not.
(iv)In this single regime, the Discount Amount is the agreed consideration for the provision of the roaming service by a Home Operator to a Foreign Operator. The Discount Amount can change as a result of a price review, but the outcome of such a price review can only be a single Discount Amount. It cannot be different discount amounts applying to the two parties. It is a single inseparable Discount Amount. That is, the Discount Amount payable by CML is inseparable in the Roaming Agreements from that payable by ConnectEast. That feature is fundamental to the structure of the Roaming Agreements and agreed at a time the parties were aware of the legislative cap imposed by s 93AB(1).
(v)The Court should not alter the reciprocal Discount Amount, because that would involve re-writing the parties’ bargain.
(vi)There is not some part of the Discount Amount Clauses that provides for a charge that is consistent with the legislative cap, so the only way of avoiding part of the agreement for the purpose of s 93AB(2) is to avoid the whole of those clauses.
(vii)Because the payment of consideration for the roaming service lies at the heart of each Roaming Agreement, it follows from the invalidity of those clauses that each Roaming Agreement is void in its entirety, during any period in which the Discount Amount exceeded the NIMC.
CML advanced the alternative position that, if the Roaming Agreements are not void in their entirety, any reduction in the Discount Amount should apply to both Operators, owing to the reciprocal nature of the Roaming Agreements.
CML submits that the proper construction of the MCL Act is to be determined having regard to its text, statutory context and purpose. To that, CML says:
(a)Section 93AB(2) of the MCL Act provides for each Roaming Agreement to be void to the extent of the inconsistency, not for the agreements to be modified to side-step, or avoid, such inconsistency. Therefore, on its terms, s 93AB(2) does not provide for adjustment of the Discount Amount, nor does it provide for the Roaming Agreements to be re-written to differentiate between the respective rights of ConnectEast and CML to payment of consideration. Significantly, s 93AB(2) of the MCL Act does not operate in respect of a clause or provision of a contract but rather it voids any “agreement or arrangement” to the extent of the inconsistency with the s 93AB(1) of the MCL Act.
(b)It is important to note that the MCL Act does not require ConnectEast or CML to provide any roaming services to each other. Interoperable arrangements are dependent on road operators entering into roaming agreements. The statutory context underscores the point that questions of invalidity must be resolved by applying s 93AB(2) to the terms of the actual commercial agreements that the parties entered into.
(c)CML submits that the purpose of the MCL Act was to impose a “one way” statutory cap, because it was concerned not to allow CML to effectively pass some of its own costs on to ConnectEast.[3] However, the fact that the cap applies only to CML is not determinative of the question of what it means for each of the Roaming Agreements to be void to the extent of the inconsistency. In this case the parties were aware that a statutory cap applied only to CML, but the parties opted for a single Discount Amount. Having done so, that drafting choice must necessarily inform the extent to which the Roaming Agreements are void.
[3]Transcript of Proceedings, ConnectEast Pty Ltd v CityLink Melbourne Limited (Supreme Court of Victoria, Stynes J, 18 June 2025) 23 (S Lawrance SC) (‘Transcript’).
B.3.2 ConnectEast’s Submissions
ConnectEast submits, in summary, that:
(a)the question before the Court is about the construction and application of a statutory provision, it is not a question of common law severance;
(b)a central feature of the provision is the qualification, “to the extent of”;[4]
(c)the provision does not prohibit the making of contracts;
(d)differential application of legislation to parties is commonly seen;[5] and
(e)the question for the Court is what should happen when a provision speaks to one party only.[6]
[4]Melbourne City Link Act 1995 (Vic), s 93AB(2) (‘MCL Act’).
[5]Australian Competition and Consumer Commission v Baxter Healthcare (2007) 232 CLR 1, 28 [44] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) (‘Baxter Healthcare’).
[6]Transcript 60.
B.4 Consideration
I am to determine the effect of s 93AB(2) on the Roaming Agreements.
CML’s primary position is that s 93AB(2) operates to render the Discount Amount Clauses void. If so, then ConnectEast has no legal entitlement to the monies it has withheld.
ConnectEast says it operates to render void the Roaming Agreements to the extent that the fee imposed by CML exceeds the NIMC to CML and no more.
It is common ground that determining the effect of s 93AB(2) on the Roaming Agreements is a matter of statutory construction and is not undertaken by reference to common law notions of severance. Relevant legal principles may be summarised as follows:
(a)The question of whether a contract prohibited by statute is void is a question of statutory construction.[7]
(b)Many statutes produce the consequence that making or performing a contract is illegal for one party but not for the other. When that occurs, the result is not necessarily general unenforceability of the contract.[8]
(c)Whether or not a statute that contains a unilateral prohibition on entry into a contract has the effect of vitiating that contract depends upon the mischief which the statute is designed to prevent, its language, scope and purpose, the consequences for the innocent party, and any other relevant considerations. Ultimately, the question is one of statutory construction.[9]
[7]Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, 423 (Mason J); SST Consulting Services Pty Ltd v Rieson (2006) 225 CLR 516, 532 [49], 533 [52] (Gleeson CJ, Gummow, Hayne, Heydon, and Crennan JJ); Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101, 107 [11] (Gummow A-CJ, Kirby, Hayne, Crennan and Kiefel JJ) (‘Master Education’); Gnych v Polish Club Ltd (2015) 255 CLR 414, 425 [36]-[39] (French CJ, Kiefel, Keane and Nettle JJ) (‘Gnych’).
[8]Baxter Healthcare, 37 [70] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); Master Education, 109 [16] (Gummow A-CJ, Kirby, Hayne, Crennan and Kiefel JJ).
[9]Baxter Healthcare, 29 [46] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); Gnych, 426-7 [45] (French CJ, Kiefel, Keane and Nettle JJ).
The legal principles applicable to statutory construction are also well known and not in dispute. Relevantly, and in summary:
(a)The process of statutory construction starts with the actual text of the statute. The text, however, is to be considered in light of the context and purpose of the statute or particular provision.[10]
(b)Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[11]
(c)The context includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[12]
(d)Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials.[13]
[10]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (‘Alcan’).
[11]Alcan, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[12]Alcan, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 389-90 [24]-[25] (French CJ and Hayne J) (‘Certain Lloyd’s Underwriters’).
[13]Certain Lloyd’s Underwriters, 389-90 [24]-[25] (French CJ and Hayne J).
The conditions for engagement of s 93AB(2) are:
(a)an existing agreement or arrangement; and
(b)that the agreement or arrangement is inconsistent with s 93AB(1).
Section 93AB(2) then provides for the effect of an inconsistency being that the agreement is “void to the extent of the inconsistency”. I understand “void” in this context to mean of no legal effect for any purpose.[14]
[14]National Acceptance Corporation Pty Ltd v Benson (1988) 12 NSWLR 213, 214 (Kirby P).
In relation to the first condition for engagement, the Roaming Agreements are agreements that fall within its terms. That is not in dispute.
In relation to the second condition for engagement, it is common ground that the Roaming Agreements are inconsistent with s 93AB(1). More specifically, and as set out in the Reasons, the fee imposed by CML on ConnectEast under the Roaming Agreements for the provision of the Link roaming service exceeded the NIMC to CML of providing that service.
On a plain reading of s 93AB(2), “to the extent of” are words directed to limiting the scope of its operation. So in terms, the effect of s 93AB(2) is that the Roaming Agreements are void to the extent the roaming fee imposed (or Discount Amount withheld) by CML exceeds the amount that represents the NIMC to CML of providing that link roaming service.
I am required to consider the text of s 93AB(2) in light of the context and purpose of the MCL Act and, in particular, s 93AB.
As I set out in the Reasons:
(a)There is no statutory obligation imposed on toll road operators to provide interoperability. Interoperability is implemented pursuant to roaming agreements between toll road operators. However, statutory obligations are imposed on CML in relation to interoperability with respect to ConnectEast under the MCL Act.
(b)The MCL Act is an extensive statute, the main purposes of which are:
(i)to ratify the agreement for the Melbourne City Link Project;
(ii)to give the Link corporation (defined to be CML) certain powers in relation to certain roads; and
(iii)to empower the fixing, charging and collection of tolls in relation to the use of vehicles on toll zones.
(c)In 2007, the Road Legislation Amendment Act 2007 (Vic) (‘Amendment Act’) introduced Division 5 into Part 4 of the MCL Act. The division came into effect on 1 January 2009.
(d)One of the express purposes of the Amendment Act was to amend the MCL Act to limit the roaming fee that may be charged by CML for providing a roaming service in relation to the use of EastLink.
(e)It was common ground that:
(i)The purpose of Division 5 of Part 4 of the MCL Act, specifically s 93AB is to facilitate interoperability between ConnectEast and CML, by ensuring that CML is able to recover its additional costs of providing the Link roaming service, but limiting the roaming fee that may be charged by CML by imposing a statutory cap. In the second reading speech for the Amendment Bill, the Minister explained:
This amendment reflects the commercial reality that the interoperable arrangements will only be effective once EastLink and CityLink enter into an agreement regarding interoperability. A standard provision in an interoperable arrangement, often called a roaming agreement, is for the payment of a fee called the roaming fee. This fee is not payable by the customers of toll roads but is paid by one toll road operator to another. It represents reimbursement primarily for the cost and effort involved in collecting tolls from its own customers on behalf of another toll road operator.
In order to ensure that CityLink is reimbursed for the fair cost of upgrading its systems to provide for interoperability, the Melbourne City Link Act 1995 will be amended to provide that the roaming fee recoverable by CityLink from EastLink (for the use of EastLink by CityLink account customers) must not exceed the net incremental marginal cost of providing that service. The bill assists in the determination of the roaming fee by enabling the Secretary of the Department of Infrastructure to publish guidelines in the Government Gazette to facilitate the calculation of the net incremental marginal cost. If guidelines are not published, the concessionaires for EastLink and CityLink may simply agree on a roaming fee that does not exceed the net incremental marginal cost.[15]
(ii)The mischief to be addressed by the statutory cap imposed by s 93AB(1) was identified in the Explanatory Memorandum for the Road Legislation Amendment Bill 2007 as follows:
Once an interoperability agreement, usually called a “roaming agreement”, is entered into between the tollway operators of EastLink and CityLink, those operators will not be able to directly bill the customers of the other operator for the use of their own toll road. Instead, they recover tolls and fees from the other operator who in turn charges those tolls and fees to their own customers. A fee, usually called the “roaming fee”, is charged by each tollway operator to the other for the service of collecting toll revenue from its customers and remitting that revenue to the other operator.
Initially the “roaming fee” will have a disproportionate impact on the operator of EastLink, as CityLink has been in operation for many years and will have a significant customer base when EastLink commences operation. …The State is committed to ensuring that the roaming fee will permit the operator of CityLink to recover its additional costs in providing the interoperable roaming service to its customers but without allowing City Link to effectively pass some of its CityLink costs on to the operator of EastLink.[16]
[15]Victoria, Parliamentary Debates, Legislative Council, 19 April 2007, 918 (Jon Lenders, Minister for Education).
[16]Explanatory Memorandum, Road Legislation Amendment Bill 2007 (Vic) 6.
In short, the purpose of s 93AB of the MCL Act is to facilitate interoperability by permitting CML to recover its additional costs in providing the roaming service but without allowing it to pass on some of its other costs to EastLink by imposing a cap calculated by reference to the NIMC to CML.
The provisions of the Roaming Agreements that are inconsistent with s 93AB(1) are the Discount Amount Clauses.
CML’s primary position is that the effect of s 93AB(2) is that those provisions in their entirety are void. I disagree.
Section 93AB(2) does not in terms require avoidance of the provisions in their entirety. It is directed to the inconsistency between the relevant provisions and s 93AB(1) which is, in turn, directed only to CML and the roaming fee imposed by it on ConnectEast. Neither the text nor purpose of the MCL Act supports the proposition that s 93AB(2) operates to render void any agreement or part of it concerning the roaming fee imposed by ConnectEast on CML.
In my view the effect of s 93AB(2) is to render void the Roaming Agreements to the extent they are inconsistent with s 93AB(1) and only to that extent. The Roaming Agreements are otherwise unaffected. To put it another way, as ConnectEast did – the Roaming Agreements continue precisely in their form and substance save that CML is not permitted by them to withhold moneys other than in accord with s 93AB(1).[17]
[17]Transcript 76.
That construction is consistent with the text, and is coherent with the scheme of the MCL Act and its identified purposes. It does no more than invalidate the part of the Roaming Agreements that is necessary to safeguard those purposes. The Roaming Agreements otherwise remain workable and of the same type entered into by the parties.
The defendant submits that there are three features of the Roaming Agreements which are critical when determining the extent to which they are void:
(a)the reciprocal nature of the Discount Amount;
(b)the reciprocal nature of the roaming service; and
(c)the single Discount Amount that is central to the bargain struck between the parties.
I am not persuaded that these alleged features have any material bearing on my determination. First, there was no plea of reciprocity. Second, there was insufficient evidence to support a finding of the kind sought by CML – namely, that there is no scope for a differentiated Discount Amount. In fact, none of the evidence relied on by CML in this application addresses what CML terms the reciprocal nature of the Discount Amount.
I note that CML’s alternative position depends for its success on the alleged reciprocal nature of the Discount Amount. I reject it for the same reasons.
For these reasons, CML’s claim in restitution must fail.
C Issue 2: Has CML made a claim in the proceeding by way of counterclaim for the purposes of s 30 of the Limitation of Actions Act 1958 (Vic)?
ConnectEast submits, in summary, that:
(a)s 5(1)(a) of the Limitation of Actions Act 1958 (Vic) limits CML’s action to six years from the date on which the cause of action accrued;
(b)if CML succeeds in Issue 1 to establish a failure of consideration, then the consideration failed on each occasion that ConnectEast retained the relevant Discount Amount;
(c)CML’s claim is not a counterclaim; and
(d)consequently, CML’s claim is statute barred in the period prior to 7 April 2019.
CML accepted that its claim is an action founded upon simple contract within the meaning of that expression in s 5(1)(a) of the Limitation of Actions Act 1958 (Vic).[18] However, CML submitted that its claim is a counterclaim and is deemed to have commenced on the same date as the primary claim in the proceeding.
[18]Transcript 27.
Having determined that CML’s claim in restitution must fail, it is unnecessary for me to determine this issue.
D Conclusion
I propose to order that CML’s application be dismissed.
I will hear from the parties in relation to the appropriate form of order.
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