World Touring Melbourne v Australian Grand Prix Corporation

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2022 01114

WORLD TOURING MELBOURNE LIMITED (UK CRN 1217 3527)	Plaintiff
V
AUSTRALIAN GRAND PRIX CORPORATION (ABN 86 947 927 465)	Defendant

---

JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	27‑30 May, 3‑6, 9‑13 June 2024
DATE OF JUDGMENT:	30 August 2024
CASE MAY BE CITED AS:	World Touring Melbourne v Australian Grand Prix Corporation
MEDIUM NEUTRAL CITATION:	[2024] VSC 521

---

MISLEADING OR DECEPTIVE CONDUCT — Agreement between event organiser and statutory corporation responsible for administration of Australian Grand Prix — Agreement to allow Robbie Williams concert associated with 2020 Australian Grand Prix to proceed — Whether defendant contravened s 18(1) of the ACL in representing that concert must be cancelled in line with government advice — Alleged misleading or deceptive conduct to be viewed in context of all relevant surrounding facts and circumstances operative at time of representation — Representation to be examined from perspective of reasonable person in position of party claiming to have been misled or deceived — Whether plaintiff relied on representations made by the defendant — Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 — Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 — Ireland v WG Riverview Pty Ltd (2019) 101 NSLWR 658 — Australian Grands Prix Act 1994 — Competition and Consumer Act 2010 (Cth) Sch 2, s 18.

CONTRACT — Breach of contract — Whether defendant breached contractual obligations in representing that concert must be cancelled in line with government advice — Principles of contractual interpretation — Commercial purpose of agreement — How a reasonable businessperson would understand actual contractual terms — Primary inquiry not what would reasonable businessperson consider to be the most appropriate commercial terms — Whether defendant breached express or implied duties of cooperation and good faith — Causation and remoteness — Whether existence of force majeure event prevented, hindered or delayed performance — Whether loss and damage caused by plaintiff’s failure to obtain adequate event‑cancellation insurance — Whether loss claimed too remote — Whether construction of contract precludes recovery of loss arising from cancellation — Lebeaupin v Crispin [1920] 2 KB 714 — Secured Income Real Estate (Aust) Ltd v Martin Investments Pty Ltd (1979) 144 CLR 596 — Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 — SAS (Vic) Pty Ltd v Urban Ecological Systems Ltd [2021] VSCA 335.

DAMAGES — Whether breach of contract causative of loss claimed — Assessment of quantum of damages — Damages for loss of opportunity — Sellars discount — Whether commercial opportunity of some value was lost — Assessment of prospects of success of such opportunity — Sellars v Adelaide Petroleum NL (1994) 120 ALR 16 — Siegwerk Australia Pty Ltd (in liq) v Nuplex Industries (Aust) Pty Ltd (2016) 334 ALR 443 — Competition and Consumer Act 2010 (Cth) Sch 2, ss 236, 237.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N. De Young KC with Mr B. Gibson and Mr C. Fitzgerald	Gadens Lawyers
For the Defendant	Mr G.D. Dalton KC with Ms J.D. Watson	Arnold Bloch Leibler

HIS HONOUR:

Introduction and overview

This proceeding concerns a concert that was scheduled to take place on Saturday, 14 March 2020 at Lakeside Stadium, Albert Part, Victoria, featuring the international artist, Robbie Williams (‘concert’).

The plaintiff, World Touring Melbourne Ltd (‘WTM’), together with TEG Dainty Pty Ltd (‘TEG Dainty’), were the promotors and organisers of the concert. They had contracted with the defendant, the Australian Grand Prix Corporation (‘AGPC’), for the right to stage the concert and to use and occupy the Lakeside Stadium for that purpose.

The concert was promoted by AGPC and WTM in association with the 2020 Australian Grand Prix (‘the Grand Prix’). The parties, AGPC and WTM, entered into a Live Music Co‑Operation Agreement dated 9 January 2020 (‘LMCA’) which:

(a)contained a recital provision which stated that ‘AGPC and WTM wish to establish a framework to govern their respective rights and obligations for the staging of World Tour[1] in relation to the Australian Grand Prix … on the terms set out in this Agreement’;[2]
(b)defined the Word Tour Melbourne event as ‘the World Tour in relation to the Australian Grand Prix to be held on the applicable dates during the Australian Grand Prix Period as agreed between the parties. Each World Tour Melbourne shall take place during the Australian Grand Prix Period and always in the Declared Area over two nights, or such other period as agreed between the parties’;[3] and
(c)recorded, in clause 2.1,[4] WTM’s appointment as AGPC’s exclusive ‘Live Music Partner’ to stage the World Tour Melbourne, and which restricted AGPC from engaging in certain activities with any third party in relation to or in connection with the promotion, staging and production of a live music event in connection with the Australian Grand Prix.

The concert was originally scheduled to take place on 14 March 2020 alongside the Grand Prix and within the declared area of the Albert Park race track and surrounds.[5] A visual depiction of Lakeside Stadium within the declared area and the race track is shown by the 2020 Circuit Map[6] set out below. The stadium is in black highlight on the left‑hand side of the declared area.

[1]World Tour was defined in the contract at CB1238 as follows: ‘World Tour means a large scale, multi‑artist, music event featuring a line‑up of international and local A‑list Talent, aligned to the ‘World Tour’ event and broadcast platform.’

[2]CB1236.

[3]CB1238.

[4]CB1239.

[5]Witness Statement of Thomas Mottram [31] CB475.

[6]Witness Statement of Thomas Mottram [7] CB471.

Although the concert was to take place alongside the Grand Prix, it was, nevertheless, a separate event and was separately ticketed from the Grand Prix. It was organised separately from the Grand Prix by WTM and TEG Dainty. These entities arranged the musicians, construction of the stage, seating, food and beverages, merchandise, and security and attended to other associated requirements. Initial arrangements were for a charity concert on the evening of Friday 13 March 2020 at which the international artist Miley Cyrus was to perform. However, on 10 March 2020, advice was received that Ms Cyrus’ team had chosen not to travel to Australia out of concern as a result of the then spreading COVID‑19 infections worldwide.

This proceeding arises from the cancellation of the concert in the afternoon of Friday, 13 March 2020, the day before it was scheduled to occur. At that point, WTM contends that the concert was ‘ready to go’.[7] WTM had incurred approximately $4.2 million in costs in relation to the concert, and approximately $2.4 million of tickets had been sold, with more expected to be sold before the commencement of the concert the following night.
[7]Plaintiff’s Outline of Closing Submissions, [4].

WTM submits that the Court should find in its favour in this proceeding and, in so doing, highlights various matters which are helpfully set out as an introductory overview. The critical issue on liability, as contended by WTM, is whether AGPC failed to accurately pass on to WTM and TEG Dainty the information that it had received on 13 March 2020 from Victoria’s Chief Health Officer, Dr Brett Sutton (later AO) (referred to as ‘the Chief Health Officer’, ‘CHO’, or ‘Dr Sutton’).

WTM’s case on liability is, it submits, clearly established on the evidence. There is a written record of the relevant communications on 13 March 2020 as follows:

(1)the transcript of a telephone call between Dr Sutton and AGPC’s representatives at approximately 8:00am (‘8:00am call’);
(2)an email from Dr Sutton at 8:40am forwarded to AGPC (‘8:40am email’);
(3)the transcript of a telephone call between the then Chief Executive Officer of AGPC, Mr Andrew Westacott, and other representatives of AGPC, WTM and TEG Dainty at approximately 2:08pm (‘2:08pm call’);
(4)a text message exchange between a representative of AGPC and Dr Sutton at approximately 2:50pm (‘2:50pm texts’); and
(5)an email from AGPC to WTM at approximately 4:25pm (‘4:25pm email’).

In the 2:08pm call, it is put by WTM that Mr Westacott, on behalf of AGPC, represented to WTM that the Grand Prix and the concert were cancelled because of a directive from the Chief Health Officer.[8] WTM says that, in addition to Mr Westacott conceding the true basis of the concert cancellation, he also conceded that his statement was inaccurate because there was never any directive from Dr Sutton.[9] It is common ground that Dr Sutton did not, as of 13 March 2020, have any power to give a binding directive, as the declaration of a state of emergency in Victoria was not made until Monday 16 March 2020. Additionally, it is said that, in any event, Dr Sutton gave no directive to AGPC on 13 March 2020 that the concert be cancelled.
[8]T446/22‑25; T447/15‑17 (XXN of Mr Westacott).
[9]T447/18‑25 (XXN of Mr Westacott).

WTM contends that by this conduct of Mr Westacott, AGPC engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law (‘ACL’), and says that AGPC represented to WTM, in trade or commerce, that the Grand Prix and the concert had been cancelled because the Chief Health Officer had determined (directed) that both events could not proceed, which was not the case for the concert. For the same reason, it is said that AGPC breached its contractual obligations to WTM with respect to the concert.[10]
[10]Amended Statement of Claim, [11(c)], particular (C) (CB53). Other breaches are relied on.

AGPC advanced various defences which, WTM submits, each depend on the same erroneous premise: that during the 8:00am call, Dr Sutton advised AGPC to the effect that ‘there could be no crowds within the declared area of the Grand Prix and that covered the concert’.[11] As to the primary position advanced by the AGPC defence, WTM says that the evidence does not come close to establishing that proposition.
[11]T78/9‑11 (Defendant’s Opening Submissions). See also Amended Defence to the Amended Statement of Claim, [10E(aa)] (CB69) and [11I] (CB77); and Defendant’s Outline of Opening Submissions, [38].

Additionally, AGPC sought to establish that, on the evidence, WTM and TEG Dainty had made a decision to cancel the concert early in the day of 13 March 2020 and well in advance of communications which, WTM says, are critical to the claimed misrepresentations in breach of s 18 of the ACL. WTM contends that the evidence clearly establishes that it was, at all relevant times, seeking to hold the concert and, indeed, only stopped selling tickets at approximately 3:00pm on 13 March 2020.

It is AGPC’s case, and the evidence of its witnesses, that the 8:40am email confirmed Dr Sutton’s advice on the 8:00am call.[12] In that email, Dr Sutton provided recommendations ‘on the Grand Prix race’. There was no reference to the declared area or the concert. Indeed, it is said by WTM, that it was not until after the 2:08pm call that AGPC sought advice from Dr Sutton about the concert, and that this would not have occurred if Dr Sutton had already provided the advice of the kind alleged by AGPC. More specifically, in the 2:50pm texts, AGPC asked Dr Sutton the leading question: ‘is it your opinion that the concert be cancelled in line with the Grand Prix cancellation’. Dr Sutton did not say ‘yes’. Rather, he said while he would support such a decision, it was ‘ultimately a matter for the organisers’: who were WTM and TEG Dainty. It was also observed that if, in fact, Dr Sutton had addressed the question whether the concert could proceed earlier on 13 March, he would not have contemplated the decision as to whether or not the concert could proceed being left in the hands of the organisers and would, one would expect, have said something along the lines of: ‘As I advised earlier, the concert, with the Grand Prix race itself, cannot proceed’. In any event, AGPC did not pass on Dr Sutton’s advice flowing from the 2:50pm texts to WTM but, rather, waited until the 4:25pm email to communicate with WTM. In that email, as WTM says, AGPC continued to say that the Chief Health Officer’s advice was to the effect that the concert ‘must be cancelled’, which advice ‘must be followed’. Again, WTM contends that by the 4:25pm email, AGPC engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18 of the ACL.[13]
[12]Defendant’s Outline of Opening Submissions, [40].
[13]Amended Statement of Claim, [11D]‑[11E] (CB56‑7).

As to causation, WTM says that its case is straightforward, logical, rational and has been thoroughly supported by the evidence. In particular, it says that had AGPC not engaged in the impugned conduct, and had WTM and TEG Dainty known the true position about Dr Sutton’s advice concerning the concert, they would have decided to go ahead and stage the concert. There was, at that time, no law against that occurring and indeed, the evidence indicates that a number of other mass gatherings occurred in Australia that weekend, including a concert at the Sidney Myer Music Bowl in Melbourne. Moreover, WTM says that such a decision to go ahead with the concert would have been consistent with:

(1)the advice given by Dr Sutton on the concert (as contained in the 2:50pm texts);
(2)the joint announcement of the Commonwealth, State and Territory Governments and the Australia Health Protection Principal Committee (‘AHPPC’) at approximately 3:00pm on 13 March 2020 which advised against non‑essential mass gatherings but not before 16 March 2020 (‘3:00pm AHPPC announcement’); and
(3)the fact that various other non‑essential mass gatherings occurred around Australia that weekend, including National Rugby League games and the New Order Concert at the Sidney Myer Music Bowl in Melbourne on the same night.

Thus it is said that, on the evidence, and contrary to AGPC’s case, it is clear that Dr Sutton did not advise AGPC on 13 March 2020 that there could be no crowds within the declared area of the Grand Prix. Consequently, it is put that once this is understood, AGPC’s various defences fall away. More particularly, Mr Westacott conceded in cross‑examination, in the counterfactual where Dr Sutton had not provided advice to the effect alleged by AGPC, and in light of the 3:00pm AHPPC announcement, that AGPC would not have taken steps to prevent the concert from occurring and would not have closed the gates to the declared area to prevent patrons from attending.[14]
[14]T463/8‑21 (XXN of Mr Westacott).

Consequently, WTM contends that it lost a commercially valuable opportunity to run the concert which would have allowed it to retain approximately $2.4 million in ticket revenue that it refunded, and earn further revenue from further ticket sales, sponsorship, film and TV broadcasting rights, merchandise, and food and beverage sales. WTM’s expert, Ms Liesl Malcolm, estimated WTM’s loss and damage at approximately $8.5 million, before any discounts in accordance with Sellars v Adelaide Petroleum NL.[15] After such discounts, WTM submits that it should be awarded damages in the sum of approximately $6.5 million, plus interest and costs.
[15](1994) 179 CLR 332; and see below [249].

Background
The parties

WTM is part of the Apollo World Touring Group of entities (‘AWT Group’). The AWT Group conducts business in the entertainment industry, including in event promotion. The AWT Group was co‑founded by Ms Rebecca Artmonsky and Mr Paul Morrison, who are current directors of WTM. In 2020, the AWT Group was producing a global multi‑city concert series called the ‘World Tour’. The concert series was focussed on A‑list performances, international DJs and local artists. The live music event the subject of this proceeding formed part of the first in the World Tour series of events. TEG Dainty was WTM’s local co‑promoter. The President and CEO is Paul Dainty AO, who gave evidence in this proceeding on subpoena.

AGPC is a statutory corporation established under s 7 of the Victorian Australia Grands Prix Act 1994 (‘AGP Act’). At all relevant times, Mr Paul Little was the AGPC Chairman and Mr Westacott its Chief Executive Officer, the latter appointed under s 19 of the AGP Act. The Minister responsible for administering the AGP Act, and for directing and controlling AGPC, was the Hon Martin Pakula (see s 9).

Curial matters

WTM commenced this proceeding in April 2022. Its claim, as initially pleaded, was framed solely as a breach of contract claim. However, in July 2022, AGPC disclosed, for the first time, the 8:40am email and the 2:50pm texts. As a result of this disclosure, on 28 October 2022, WTM amended its claim to plead contraventions of s 18 of the ACL. In November 2022, after the majority of WTM’s lay evidence had been filed and served, AGPC disclosed, for the first time, recordings of the 8:00am call and the 2:08pm call. No explanation has been given as to why these recordings were not disclosed at an earlier time.

The parties have agreed to a list of issues to be determined in this proceeding. Issues 1‑5 concern liability under s 18 of the ACL; issues 6‑11 concern liability for breach of contract; issues 12‑13 concern AGPC’s force majeure defence; and issue 14 concerns WTM’s claimed loss and damage. Each of these issues is addressed in the reasons which follow, prefaced with detailed consideration of the issues and evidence raised and heard at trial.

Witnesses
The plaintiff’s witnesses

WTM submits that the Court should accept the evidence of the witnesses which it called on the basis, in general terms, that their evidence was logical, reliable, consistent, corroborated by contemporaneous documents, and credible. AGPC, on the other hand, submits that an entirely different view should be taken with respect to the WTM witnesses, particularly having regard to their knowledge and the significance which they placed on the statements of the Victorian Premier made on the morning of 13 March 2020.[16] In considering those criticisms, it is helpful to first consider the matters put by WTM with respect to their witnesses.
[16]See Defendant’s Outline of Closing Submissions (12 June 2024), [89]–[95].

WTM’s first witness was Ms Artmonsky. Ms Artmonsky is one of two directors of WTM (the other being Mr Morrison). Ms Artmonsky holds a Master’s degree in Economics from the University of Cambridge. She travelled from the United Kingdom for the purpose of giving her evidence in person. Her evidence‑in‑chief comprised three statements.[17] Ms Artmonsky was in Melbourne during the week commencing 9 March 2020 and participated in the critical conversations the subject of WTM’s claim. As one of two decision‑makers of WTM, Ms Artmonsky’s evidence was of particular importance to what decisions had been made, and what decisions were yet to be made, by WTM on 13 March 2020. She also gave evidence concerning certain heads of revenue which WTM expected to derive had the concert proceeded. Ms Artmonsky was cross‑examined for the majority of the second day of trial (28 May 2024). She was an articulate and impressive witness. Ms Artmonsky made appropriate concessions in cross‑examination and gave answers which are said to be consistent with her witness statements and the contemporaneous documentary evidence.[18]
[17]Dated 19 September 2022 (CB183‑198), 15 December 2022 (CB210‑213) and 14 September 2023 (CB331‑333). NB: the parties have separately provided the Court with versions of the witness statements relied on in this proceeding showing any passages which were amended, not read or ruled inadmissible. Court book references are used in this outline for convenience.
[18]By way of example: Ms Artmonsky made her first witness statement prior to the disclosure of the recording of the 2:08pm call. She gave evidence of her recollection of the contents of that call in her statement dated 16 September 2022, at [156] (CB178). The thrust of her recollection of that conversation was consistent with what was said (including that Mr Westacott said that both the Australian Grand Prix and WTM event were cancelled, and that someone asked for what had been said to put in writing). Ms Artmonsky also gave evidence that no decision to cancel the Robbie Williams concert had been made prior to that call by WTM and TEG Dainty (which was consistent with contemporaneous records).

Mr Richard Beck, WTM’s former Director of Global Touring, was the second witness. Mr Beck travelled to Australia from Europe and gave his evidence in person on 29 May 2024. Mr Beck’s evidence‑in‑chief comprised three witness statements.[19] Mr Beck was involved in negotiations with artists in the lead up to the 2020 World Tour Melbourne and in promoting the Robbie Williams concert before it was cancelled. In Mr Beck’s words: ‘I sell tickets. And I deal with artists. For my sins’.[20] Mr Beck’s evidence was relevant to the ticketing arrangements, expected crowd attendance, and expected ticket sales for the concert. He had a recollection of key events, corroborated by contemporaneous documents. Mr Beck’s evidence was subject of some attack in cross‑examination; but this attack was primarily directed to his memory of particular. It cannot be reasonably expected that he would recall individual documents of that nature some four years later without them having been put to him. As Mr Beck appropriately acknowledged, those statements ‘came from my memory two years ago when I did it’.[21] WTM submits that he was a witness of truth whose evidence should be accepted.
[19]Dated 16 September 2022 (CB150‑182), 14 December 2022 (CB199‑209) and 23 March 2023 (CB266‑278).
[20]T269/1‑2 (XXN of Mr Beck).
[21]T272/9‑11 (XXN of Mr Beck).

Mr Morrison, the second director of WTM, was WTM’s third witness. Mr Morrison gave his evidence by audio‑visual link on 29 May 2024. His evidence‑in‑chief comprised a single statement.[22] Mr Morrison was, WTM says, a forthright and honest witness.[23] Under cross‑examination, he was clear in his evidence. His evidence gave clear and direct insight into the decision‑making of WTM in relation to the concert on 13 March 2020. In response to suggestions that WTM had already decided to cancel the concert, Mr Morrison said among other things: ‘Ah, you know, my … venue was within the circuit, and my artist … is the boss, you know, … in a concert scenario … the talent is king. I mean [there are] two things in our game, one is a venue and one is an artist, so that’s the only parts … I would care about. And again, as I say, the rest is noise’.[24] In response to it being put that WTM ‘had already decided that the concert was going to be cancelled’ at the time of a call with Mr Fletcher (the then General Manager of AGPC) at around 1:15pm on 13 March 2020, Mr Morrison said ‘I don’t know a polite way to say nonsense’.[25] That sentiment was shared by WTM’s witnesses generally, as addressed further in these reasons.
[22]Dated 20 December 2022 (CB234‑262).
[23]Plaintiff’s Outline of Closing Submissions, [37].
[24]T296/5‑12 (XXN of Mr Morrison).
[25]T302/10‑13 (XXN of Mr Morrison).

WTM’s fourth witness was Mr Craig Fletcher, current Commissioner of the Australian Motor Racing Commission of Motorsport Australia and previously the General Manager – Motorsport, Entertainment and Industry of AGPC. Mr Fletcher gave evidence in person on 30 May 2024. His evidence‑in‑chief comprised a statement dated 30 May 2024 prepared during the trial after AGPC agreed not to rely on confidentiality concerns that had previously been raised in relation to Mr Fletcher speaking to WTM’s lawyers.[26] Mr Fletcher was the primary contact at AGPC for WTM in relation to the concert. He participated in key conversations on 13 March 2020, including the teleconferences that took place at around 1:15pm and at 2:08pm. Mr Fletcher was also responsible for sending the 4:25pm email although, as he explained, he was not responsible for drafting it.[27] Mr Fletcher’s evidence was unique in that he was the General Manager of AGPC, giving evidence on subpoena. At the time of the events in question, he was responsible for, among other things, ‘planning, delivery and contracting of offtrack entertainment connected to the Formula 1 Australian Grand Prix event … including the … [2020 World Tour Melbourne] in cooperation with WTM and TEG Dainty’.[28] Mr Fletcher was the subject of very limited cross‑examination. He was, WTM says, a witness of truth and gave a clear recollection of events, to the extent he could now remember them. He considered the concert to be a ‘separately ticketed event’.[29] His evidence was that the concert could have proceeded and that, prior to the decision to cancel the concert, no one had said anything to him that caused him ‘to believe that TEG Dainty or WTM wanted to cancel the concert, or did not want to proceed with their concert if they were allowed to do so’.[30] Mr Fletcher gave unchallenged evidence that ‘it would have been easier operationally for the concert to proceed with the 2020 Australian Grand Prix being cancelled’.[31] WTM submits that he was a witness of credit and his evidence should be accepted.
[26]The statement is at CB5534‑5552.
[27]See Witness Statement of Craig Fletcher dated 30 May 2024, [47] CB5548.
[28]Witness Statement of Craig Fletcher dated 30 May 2024, [6(b)]; CB5536.
[29]Witness Statement of Craig Fletcher dated 30 May 2024, [56]; CB5551.
[30]Witness Statement of Craig Fletcher dated 30 May 2024, [40]; CB5546. See also [57]‑[60]; CB5551‑5552. See also T321/5‑25 (XXN of Mr Fletcher).
[31]Witness Statement of Craig Fletcher dated 30 May 2024, [60]; CB5552.

Mr Tom Grayson, a former consultant to WTM, was its fifth witness. He gave his evidence in the evening of 30 May 2024 from the United Kingdom. His evidence‑in‑chief comprised a statement dated 16 September 2022,[32] and primarily concerned insurance arrangements in place by the time the concert was cancelled. Mr Grayson was, WTM says, an articulate and reliable witness with a clear recollection of events. He appropriately limited himself to areas within his own expertise, knowledge and authority.[33] Consistently with other witnesses called by WTM, Mr Grayson gave a clear picture of the ‘mixed messages’[34] WTM was receiving on 13 March 2020, the lack of information it received from AGPC, and the appropriate contingency planning WTM took as a result of events taking place at the time.[35] He adamantly rejected that any decision had been made by WTM to cancel the concert before the call with Mr Westacott at 2:08pm.[36]
[32]CB134‑149.
[33]See e.g. T361/20‑26 (XXN of Mr Grayson).
[34]See e.g. T357/16‑25 (XXN of Mr Grayson).
[35]See e.g. TT368/19‑31 and 369/1‑3 (XXN of Mr Grayson).
[36]T369/4‑31 (XXN of Mr Grayson).

Mr Michael Loney was WTM’s sixth witness. He gave evidence on 30 May 2024 by audio‑visual link from Dubai. Mr Loney is Robbie Williams’ global manager. Mr Loney’s evidence‑in‑chief comprised his statement dated 10 October 2023.[37]
[37]CB337‑339.

Following an objection to the evidence of his opinion that: ‘As Robbie Williams’ manager, it was (and is) my belief that he would have performed on 14th May 2020 had the concert not been cancelled’,[38] WTM was granted leave to adduce viva voce evidence from Mr Loney to explain the basis of his opinion. Mr Loney said as follows:[39]

I’ve been working with Robbie Williams for 22 years, and in that time he’s cancelled one concert in those 22 years at short notice, which was when he had food poisoning in Denmark in 2011. He’s incredibly conscientious, very professional and I believe our actions, which was we had the opportunity to not come to Melbourne, and ‑ and we said ‑ but I discussed it with Robbie and he said let’s go down, we’ve sold tickets, until we’re told we can’t do a show, we’ll do a show. Ah, two days before the concert we were ‑ we did … we did have a discussion before we came to Melbourne, um, I think I ‑ I actually think I said that, where we said we’ll – we’ll do a show if we’re allowed to do a show. Um, and when we arrived in Melbourne, we had a press conference two days before the show, in order to sweep up some last minute tickets, we did some promo in the ‑ in the paddock I believe you call it, where we ‑ where we went and met the drivers, and there were media ‑ it was a media scrum everywhere … then the day before, ah, the concert, I mean unprecedented is a word that’s been overused with the, um, with COVID, but we were in unprecedented times, and ‑ and I had many discussions with him where, you know, we said “Are you still happy to do it if we’re allowed to”, he said, “Yeah, if we’re allowed to we do it”. So I absolutely it was my belief, and is my belief, that if we were told the concert’s gonna go ahead, we would’ve performed.

Mr Loney was not cross‑examined. There is, WTM contends, no reason to doubt the truthfulness of his account, or the reliability of his recollection of conversations with Mr Williams during the lead up to and on 13 March 2020. WTM submits that evidence should be accepted.

[38]CB339, [14].

[39]TT372‑374 (XIC of Mr Loney).

Mr James Gow (Chief Financial Officer of WTM) and Mr Henrick (‘Macky’) Drese (General Manager, Live of Apollo World Touring AG) were, respectively, the seventh and eighth witnesses called by WTM. Messrs Gow and Drese’s statements[40] and underlying documents were tendered by consent without cross‑examination. Mr Gow’s evidence was directed to establishing the costs incurred to run the concert on 14 March 2020, and was necessary to form the underlying basis for the opinions of the independent experts. Mr Drese’s evidence went, inter alia, to arrangements in place for hospitality sales and VIP arrangements at the concert. Absent any challenge, it is submitted that their evidence should be accepted.
[40]Statement of Mr Drese dated 26 March 2023 (CB279‑288); statement of Mr Gow dated 28 March 2023 (CB289‑308).

Ms Samantha Smith (former General Manager, Apollo World Touring) was the ninth witness called by WTM. Ms Smith’s evidence‑in‑chief comprised her statement dated 30 March 2023.[41] She was cross‑examined, particularly in relation to her knowledge of whether a decision had already been made by WTM to cancel the concert prior to the 2:08pm call. As did other witnesses, she confirmed that no such decision had been made prior to that call. Ms Smith was also questioned about her knowledge of arrangements in place for WTM to derive revenue from the concert, including in relation to anticipated revenue for TV and film content.
[41]CB309‑330.

WTM’s final witness was Mr Paul Dainty AO, who gave evidence under subpoena on 11 June 2024.[42] Mr Dainty was and remains the President and CEO of TEG Dainty, WTM’s co‑promoter. He has extensive experience in the industry and was well‑regarded by the other witnesses for that fact. Similarly to Messrs Fletcher and Loney, Mr Dainty is not in WTM’s ‘camp’. He was, WTM submits, a reliable and credible witness.
[42]Mr Dainty gave evidence on that date following an unnecessary pre‑trial interlocutory skirmish instigated by AGPC about whether he should be permitted to attend to give evidence remotely. No issues arose during the course of trial for those witnesses who did give evidence remotely.

Mr Dainty’s evidence‑in‑chief comprised his statement dated 21 May 2024.[43] He gave important evidence including that: (1) he wanted the concert to proceed and believed it could before speaking to Mr Westacott at 2:08pm on 13 March 2020; (2) he had ‘no doubt the concert would have gone ahead’ had the decision been left to TEG Dainty and WTM;[44] (3) he was aware of another concert taking place that same evening at Sidney Myer Music Bowl of a similar magnitude to the Robbie Williams concert;[45] and (4) he believed that at least 2,000 to 3,000 additional tickets would have been sold to the Robbie Williams concert ‘based on [his] 40+ years of experience in promoting concerts’.[46] Mr Dainty was cross‑examined about the decision‑making of TEG Dainty and WTM on 13 March 2020. Consistently with other WTM witness evidence, Mr Dainty adamantly rejected the suggestion that a decision had been made to cancel the concert prior to the phone call with Mr Fletcher at 1:15pm or prior to the 2:08pm call on 13 March 2020. His evidence was, WTM submits, simple, and believable and he was a reliable, clear and credible witness. It is said that there is no reason to doubt his evidence of what occurred so it should be accepted in its entirety.
[43]CB5392‑5403. An outline of expected evidence had previously been filed. The statement was obtained following the Court’s order that a statement be filed.
[44]See Mr Dainty’s statement dated 21 May 2024, [23] (CB5396).
[45]Mr Dainty’s statement dated 21 May 2024, [25] (CB5396).
[46]Mr Dainty’s statement dated 21 May 2024, [34] (CB5397).

As submitted by WTM, Mr Dainty’s view on likely future ticket sales is in the nature of opinion. It is, nevertheless, one which I accept the Court should take into account when assessing the likelihood of further ticket sales prior to the concert commencing. This is a matter addressed in the reasons which follow with respect to quantum.

As indicated previously, AGPC made both general and particular criticisms of the plaintiff’s witnesses, in the following terms:[47]
[47]Defendant’s Outline of Closing Submissions (12 June 2024), [89]–[95].

89.The Plaintiff’s witnesses were highly evasive in recognising both their knowledge of and emphasis placed on the Premier’s statements made that morning. Ms Artmonsky said she could not recall whether she saw the Premier’s announcement[48] and could not say whether she watched it live on TV, or had been relayed the contents of the Premier’s statement from David Butorac.[49] Mr Beck said that he could recall the Premier’s statement being on TV “in the background”.[50] Mr Grayson says that the Premier’s announcement was on the TV on the wall in the Crown hotel room with the volume low, so it was hard to recall in any detail what was being said.[51] Those witnesses also refused to accept that they knew on the morning of 13 March 2020 that the reason that the Premier said that the Grand Prix event would be cancelled or run patron‑free was because of the risk of transmission of corona‑virus.[52]
[48]T155.27‑28 (XXN of Ms Artmonsky).
[49]T156.3‑7 (XXN of Ms Artmonsky).
[50]T255.4‑5 (XXN of Mr Beck).
[51]T351.1‑2 (XXN of Mr Grayson).
[52]T351.17‑28 (XXN of Mr Grayson); T411.9‑16 (XXN of Mr Smith).
90.These statements of purported recollection years after the fact should be rejected. As Ms Smith conceded in cross‑examination, any adviser responsibly advising WTM would have sought to find out the content of the press release by the Premier.[53] Mr Dainty likewise acknowledged in cross‑examination that the Premier’s announcement was relevant to how WTM and TEG Dainty were placed in relation to the concert.[54]
[53]T410.14 (XXN of Mr Smith).
[54]T570.20‑27 (XXN of Mr Dainty).
91.The statements of WTM’s other witnesses to the contrary are inconsistent with the documentary record, which show that at the same time of the Premier’s announcement and in the minutes which immediately followed between 9:08 am and 9:33 am on 13 March 2020:
(a)Mr Beck sent a WhatsApp message in a thread including Ms Artmonsky and Mr Morrison stating “Premier talking now … Premier says no fans at race if event goes ahead”;[55]
[55]CB3433.
(b)Ms Artmonsky sent a WhatsApp message to Mr Beck, Mr Morrison and Mr Gow stating “Seen announcement re no crowds”;[56]
[56]CB3521.
(c)Ms Artmonsky sent a WhatsApp message to Mr Morrison stating “All being cancelled … Getting on zoom with Robbie team and Tom Grayson now. Want to join?”;[57]
[57]CB3481.
(d)Ms Artmonsky sent a WhatsApp message to Danielle Norris of AGPC stating “Saw it on tv. Not ideal!”;[58]
[58]CB3449.
(e)Mr Beck sent an email to Edwina Tarrant in response to an earlier email from Ms Tarrant asking whether the World Tour concert was going ahead. Mr Beck stated “It’s not happening, but we need to be official on this”;[59]
(f)[Ms] Artmonsky sent a WhatsApp message to Mr Morrison and others stating “Dealing with 5 different parties under 5 different agreements and 5 different insurance arrangements … f1, agpc, Robbie, dainty and us”. That was followed by a further message saying “Everyone trying to claim its nothing to do with covid19!”.[60]

92.The documentary record shows that the Plaintiff was immediately aware of what the Premier was saying, placed significant emphasis on his statements, and were aware that the cancellation on public health grounds was because of the risk of transmission of corona‑virus. There is no documentary record which shows the Plaintiff’s witnesses questioning why the Grand Prix was cancelled or whether the Premier’s announcement did not apply to concert. That is because it was clear that it did.
93.Based on the Premier’s statements, Mr Beck said “It’s not happening”,[61] Ms Artmonsky made immediate inquiries of relevant parties’ insurance arrangements and immediate plans were made to speak with Robbie Williams’ representatives with the Plaintiff’s internal counsel, Mr Grayson. All of these tends to the inescapable inference that the Plaintiff knew precisely what the Premier’s announcement meant for the concert to occur at the Grand Prix — that it was cancelled. The weight of the Premier’s announcements was described best by Mr Morrison in his WhatsApp communication to Mr Fletcher at 9:10 am “Victorian Premier has just announced no fans … That sounds quite official … And live across all networks”.[62]
94.Any reasonable person in the position of the Plaintiff viewing the above events would have understood the obvious — that the announcement by the Premier that there will be no fans at the Grand Prix on public health grounds, the closure of the gates to the Declared Area by the statutory corporation responsible for that area, AGPC, and a press conference by the governing bodies at an empty Albert Park track meant the necessary and unavoidable cancellation of the World Tour concert scheduled to occur within the Declared Area of the Grand Prix the next day.
95.The additional factor which confronted WTM was that it had not obtained insurance for cancellation of the concert because of a corona‑virus pandemic, as required under cl 14.2(b) of the LMCA.[63] It was therefore imperative that the Plaintiff have the concert cancelled for it before WTM was required to do so itself.

[59]CB3522.

[60]CB3524.

[61]CB3522.

[62]CB874.

[63]CB1246‑1247.

The first, general, criticism made of these witnesses raises the important issues in respect of human memory of events which are, critically, on a day now over four years ago. In this respect, AGPC made reference to relevant authority in the context of a submission that a conclusion must be drawn from the evidence that WTM had decided early in the day on 13 March 2020 — at least prior to 1:15pm or the 2:08pm call — that it would not stage the concert, a matter to which reference has been made previously and which is addressed in detail in the reasons which follow. In this context, it is submitted that:[64]
[64]Defendant’s Outline of Closing Submissions (12 June 2024), [85] and [86].

85.The conclusion that WTM had decided that it would not stage World Tour Melbourne 2020 emerges clearly from the contemporaneous documentary records of WTM which are in evidence. Those contemporaneous documents provide the best evidence of what occurred on the day. As McClelland [CJ in Eq] said in Watson v Foxman:[65]
… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self‑interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously construed.

86.For this reason, the evidentiary value of contemporaneous documentary records has been consistently recognised, including by Jagot J in Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5),[66] where her Honour accepted that “in cases involving disputed facts from years ago contemporaneous or near contemporaneous documents, where available, are invaluable and often more revealing of the true position than flawed attempts at recollection by those with an interest in the outcome of the litigation”.

[65](1995) 49 NSWLR 315, 319.

[66][2012] FCA 1200, [1247].

In my view, the AGPC submissions do not support the proposition that WTM’s witnesses were highly evasive, generally or with respect to the Victorian Premier’s statement made on 13 March 2020. Rather, in my view, the matters raised by way of criticism do not support the proposition as, on the basis of the matters put by WTM in relation to the evidence of their witnesses, I agree with its submissions that their evidence should be accepted by the Court. Moreover, in my view, there is nothing in the matters cited by AGPC which indicate statements by WTM’s witnesses contrary to or inconsistent with the documentary record. With respect to the inferences sought to be drawn and assertions made by AGPC by way of criticism of the WTM witnesses, I am inclined to think that these suffer from the very problems highlighted in the authorities with respect to reliance on human memory to which AGPC referred. This is particularly true, in my view, of its submissions with respect to the veracity of the evidence of the WTM witnesses as not being supported by the documentary record of the various telephone conversations and meetings from, and including, the 8:00am call through to the 4:25pm email on 13 March 2020. For these reasons, I reject the AGPC criticisms and submissions with respect to the evidence of the WTM witnesses.

The defendant’s witnesses

AGPC had initially intended to call three witnesses in support of its defence: Mr Andrew Westacott, Mr Tom Mottram (General Manager – Operations of AGPC) and Ms Danielle Norris (former Senior Legal Counsel of AGPC). AGPC decided to not call Ms Norris. Messrs Westacott and Mottram gave their evidence on 6 June 2024. Mr Westacott’s evidence‑in‑chief comprised three statements (two filed after commencement of trial).[67] Mr Mottram relied on a single statement.[68]
[67]See the first statement of Mr Westacott dated 26 June 2023 (CB340‑469); his supplementary statement dated 26 May 2024 (CB5532‑5533) and his further supplementary statement dated 4 June 2023 (CB5553‑5554).
[68]See the statement of Mr Mottram dated 26 June 2023 (CB470‑585).

In the course of cross‑examination, Mr Westacott made some appropriate concessions. Importantly, he conceded that AGPC had never received a ‘directive’ from Dr Sutton that the concert was cancelled, and that it was not accurate to say otherwise to WTM and TEG Dainty as he did during the 2:08pm call.[69] He also conceded that, in the counterfactual, AGPC would have followed Dr Sutton’s advice as to the concert and AGPC would not have prevented WTM and TEG Dainty running the concert (etc.).[70] However, there were parts of Mr Westacott’s evidence which, WTM submits, should not be accepted. Despite the 8:42am email, the 2:50pm texts and the 3:00pm AHPPC announcement, he sought to maintain that Dr Sutton’s recommendation in the 8:00am call extended to the concert.[71] He maintained that there was no ambiguity about the application of Dr Sutton’s recommendation to the concert.[72] Mr Westacott’s evidence in that regard was, WTM submits, also plainly inconsistent with his own text message to the Minister sent shortly after the 2:08pm call, in which he said that: ‘We have just pulled the pin. Based on CHO advice that it was cancellation or no crowd for GP ‑ neither of which is plausible for a concert. also avoids ambiguity with decision made on the GP’.[73] In any event, Mr Westacott conceded that there was no directive made by the Chief Health Officer. In addition, he conceded that his statement at 2:08pm was inaccurate. It does not matter what Mr Westacott thought or now thinks about what Dr Sutton meant in the 8:00am call: it is enough that he, on behalf of AGPC, made a statement of fact in the 2:08pm call that was objectively incorrect.
[69]See T439/6‑7, T445/26‑27 and T447/15‑25 (XXN of Mr Westacott on 6 June 2024).
[70]See T461/17‑31, T462/1‑31, T463/1‑31 and T464/1‑8 (6 June 2024, XXN of Mr Westacott).
[71]See e.g. T452/1‑8 (XXN of Mr Westacott).
[72]T452/19‑27.
[73]CB3440.

Mr Mottram gave evidence following Mr Westacott. Before adopting his witness statement as his evidence, Mr Mottram recanted from two detailed paragraphs of his witness statement concerning the teleconference at 8:00am on 13 March 2020.[74] In those paragraphs, Mr Mottram had previously said that towards the end of the 8:00am call with Dr Sutton, he mentioned the word ‘concert’ to which Mr Westacott responded ‘separate’.[75] Mr Mottram’s prior statement had included that he ‘raised the issue of the concert with Andrew because [he] thought it might be useful to have the CHO expressly confirm that his recommendation extended to the concert’ and because he thought ‘it would be good to have absolute clarity and transparency that the CHO’s recommendation extended to the concert’.[76]
[74]Mr Mottram’s statement dated 26 June 2023, [71]‑[72]; and CB481‑482.
[75]CB481‑482.
[76]CB481‑482.

As WTM observes, the obvious inference to be drawn from this evidence is that Mr Mottram and, by extension, AGPC had doubts that Dr Sutton’s recommendation applied to the concert. In his oral evidence, Mr Mottram withdrew those paragraphs on the basis he did not recognise if it was him, or someone else, on the recording who said the word ‘concert’ in the 8:00am call.[77] Mr Mottram made that recording — and it had been in his possession — since 2020. Mr Mottram was unable to say who from AGPC said the word ‘concert’. Mr Mottram’s preparedness to make a statement acknowledging that he had raised the concert and setting out, in some detail, his reasons for doing so, only then to recant from this evidence is, as WTM contends, not satisfactory. In my view, a reasonable inference to be drawn is that he sought to recant this evidence because it was not helpful to AGPC’s case.
[77]See T475/25‑28 and T476/1‑5 (6 June 2024, XXN of Mr Mottram).

Each of Messrs Westacott and Mottram were questioned about Dr Sutton’s 2:50pm text. The evidence that they understood Dr Sutton’s reference to the ‘organisers’ to be a reference to AGPC as organisers of the Grand Prix should be rejected.[78] The Grand Prix had been cancelled long before that text message. As discussed further in these reasons in the context of the events of 13 March 2020, it was obvious on the face of that text message exchange that the question directed to Dr Sutton related to the concert. The idea that Dr Sutton’s reference to ‘organisers’ meant, or even included, AGPC is, in my view, simply, not credible. Unlike Mr Mottram, Mr Westacott was at least prepared to soften his position to an extent, explaining he could not ‘say what the Chief Health Officer was intending’;[79] having earlier accepted that ‘the organisers of [the] concert were [WTM] and TEG Dainty’.[80]
[78]T451/3‑7 (XXN of Mr Westacott). See also T499/11‑30 (XXN of Mr Mottram).
[79]T451/25‑26 (XXN of Mr Westacott).
[80]T437/1‑2 (XXN of Mr Westacott).

The experts

Two independent experts gave evidence concerning the loss and damage claimed by WTM: Ms Liesl Malcolm of Pitcher Partners (for WTM) and Ms Dawna Wright of FTI Consulting (for AGPC). Each expert produced a report and both attended to give evidence jointly on 6 May 2024.[81] The experts agreed as to the proper methodology for calculating loss. The differences between them primarily rest on assumptions they relied upon: as discussed in the context of their evidence which is considered in the reasons which follow with respect to quantum.
[81]Ms Malcolm’s report (with attachments) is at CB633‑715. Ms Wright’s report (with annexures) is at CB717‑811.

Jones v Dunkel

The principles in respect of when a Jones v Dunkel inference will be drawn are settled; though it has been said that the ‘rule in Jones v Dunkel is one of the most invoked but least understood rules in litigation’.[82] The rule merely reflects common‑sense.[83] The unexplained failure by a party to call a witness may, in appropriate circumstances, support an inference that the uncalled evidence would not have assisted the party’s case.[84] Further, the failure to call a witness may also permit the court to draw with greater confidence any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[85] Critically, the rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. A Jones v Dunkel inference can only make evidence that has been given more or less probable; it cannot, itself, supply a gap in the evidence.[86] Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led.[87]
[82]As the Full Court of the Federal Court observed in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53, [78]‑[79], cited with approval in Paul’s Retail Pty Ltd v Sporte Leisure Pty Ltd (2012) 202 FCR 286, [88] (Jacobson, Yates & Katzmann JJ); and see Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2012] VSC 239, [344]‑[349].
[83]Ibid.
[84]Jones v Dunkel (1959) 101 CLR 298, 308 (Kitto J), 312 (Menzies J) and 320–321 (Windeyer J).
[85]Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 384–385 [63] (Heydon, Crennan and Bell JJ).
[86]See, eg, Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135, [72]; RBC Investor Services Australia Nominees Pty Limited v Brickworks Limited [2017] FCA 756, [101] and [359].
[87]ASIC v Hellicar (2012) 247 CLR 345, 412 [165] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

The plaintiff

Two witnesses were not called by WTM who had prepared statements in this proceeding. They were Mr Christopher Murray and Mr Charles Hunting. Mr Murray was a consultant to WTM at the time of the events the subject of the present dispute. Mr Hunting was a director of a third party, AgBioEn Pty Ltd, which was the counterparty to a global sponsorship agreement (‘AgBioEn’). WTM contends that no Jones v Dunkel inference ought to be drawn in relation to either of these individuals.

In this context, WTM submits that Messrs Murray and Hunting are not and have never been in WTM’s employ. Moreover, Mr Hunting was outside the jurisdiction at the time of the hearing and could not be compelled to give evidence. Neither Mr Murray nor Mr Hunting was a decision‑maker for WTM at the time of events in this proceeding. Further, it is submitted, and most importantly, by the time it was proposed each of those witnesses be called to give evidence in the trial:

(1)Ms Artmonsky and Mr Morrison had given evidence‑in‑chief about the existence of the oral agreement reached with Mr Hunting;[88]
(2)Ms Artmonsky was subjected to limited cross‑examination about her recollection of the agreement and payments made by AgBioEn following cancellation of the concert.[89] Relevantly for present purposes, she was not challenged on her evidence that an agreement had been reached with AgBioEn to sponsor the concert;
(3)Mr Morrison was not cross‑examined on this matter at all;
(4)it was not put to either Ms Artmonsky or Mr Morrison that no such agreement existed or was reached;
(5)in those circumstances, and having not put the truthfulness of their accounts into issue in accordance with the rule in Browne v Dunn,[90] it is said that AGPC cannot complain that it did not have the opportunity to test Mr Hunting’s recollection of those same events; and
(6)Mr Murray’s evidence would have been mere duplication of evidence already given by WTM’s other witnesses. Mr Murray was not an employee or officer of WTM or a decision‑maker whose evidence could either help or harm WTM.

[88]Supplementary witness statement of Ms Artmonsky dated 15 December 2022, [8]‑[12] (CB212‑213); witness statement of Mr Morrison dated 20 December 2022, [64] (CB254‑255).

[89]T203/6‑19 and TT204‑208 (up to line 23) (XXN of Ms Artmonsky).

[90](1893) 6 R 67.

Finally, and with respect to Mr Hunting, AGPC foreshadowed on 11 June 2024, following the close of the parties’ cases, that it ‘would not object’ to Mr Hunting’s statement being tendered by consent. WTM had not relied upon the statement. AGPC’s position had not been foreshadowed and, in any event, took place at a time when WTM had already closed its case.

For these reasons and matters relied upon by WTM, on a proper understanding of the rule in Jones v Dunkel, I am of the view that no issue arises with respect to the case of WTM on this basis.

The defendant

In opening, WTM observed that two key witnesses were not being called by AGPC to give evidence: namely, Mr Little (former Chair of AGPC) and the Hon Martin Pakula (current Chair of AGPC and the former Minister for Tourism, Sport and Major Events; and the Minister responsible for AGPC under provisions of the AGP Act).[91] AGPC also confirmed that it would not be calling Ms Norris (former Senior Legal Counsel of AGPC) to give evidence. Other witnesses from AGPC’s camp, including Ms Hill (former General Manager – Operations) and Mr Lane (former Division Manager – Corporate Affairs and Communications) were not called. The former Premier, The Hon Daniel Andrews (later AC), and the former Chief Health Officer, Dr Sutton were not called.
[91]TT 10/2‑17 and 76/20‑29.

Mr Little, Minister Pakula, Ms Norris and Ms Hill were witnesses in the AGPC camp and, on this basis, WTM submits that an inference should be drawn that their evidence would not have assisted AGPC’s case.[92]
[92]Mr Little and Ms Hill participated in the 8:00am call. Ms Hill was a recipient of the 8:42am email, and directed Mr Mottram later on 13 March 2020 to send a text message to Dr Sutton seeking clarification as to whether his recommendation extended to the concert. Minister Pakula was in relatively frequent communication with Mr Westacott throughout 13 March 2020 and, glaringly, there was no suggestion in Mr Westacott’s statement that the Minister would have required the concert to be cancelled had he known the true position. Mr Fletcher’s recollection was that Ms Norris may have been one of the people who had been involved in drafting the (misleading) 4:25pm email to WTM and TEG Dainty.

With respect to Dr Sutton, the Chief Health Officer, if AGPC wished to establish that he advised AGPC that ‘there could be no crowds within the declared area of the Grand Prix and that covered the concert’,[93] contrary to the terms of his 8:42am email, the 2:52pm text and the 3:00pm AHPPC announcement, it was incumbent on AGPC to call him as a witness. Likewise, it is said, as to the former Premier, if AGPC wished to have the Court find that it was ‘impossible’ for the concert to proceed following his statements at a press conference at approximately 9:00am on 13 March 2020, it was incumbent on AGPC to call him as a witness.
[93]T78/9‑11. See also Amended Defence to the Amended Statement of Claim, [10E(aa)] (CB69‑70) and Defendant’s Outline of Opening Submissions, [38].

Concluding with respect to these possible witnesses, WTM submits that their absence as a witness should give the Court greater confidence to reject AGPC’s case with respect to the issues to which its submissions in this respect are directed. In light of the reasons which follow and the contents and findings with respect to key facts and documents, it is not necessary to further address any Jones v Dunkel issues with respect to these witnesses.

Key facts and documents

The events in question in this proceeding arose in March 2020, at around the time when Formula 1 activity was to commence at the 2020 Australian Grand Prix. It will be recalled that during this time the world was becoming aware that, what had been described generally as the ‘novel Coronavirus’, was seen to be emerging as a global health threat. As we are all aware, this virus, COVID‑19, produced a severe global pandemic over a number of years, the worst since the Spanish Flu pandemic in the early part of the 20^th century. Events of and preceding March 2020 must, however, be viewed from the perspective of those times, rather than with the now benefit of hindsight as to the seriousness of the COVID‑19 threat; particularly during 2020 when vaccines were not available to prevent community spread, both generally and especially as a result of mass gatherings.

Another consideration, or caution, in the consideration of events in early 2020 is that this is now over four years ago, a matter which immediately raises issues as to the fallibility of human memory. As the authorities to which reference has been made indicate,[94] the evidentiary value of contemporaneous documentary records has been recognised consistently. This is also a consideration of importance in the present context.
[94]See above [34].

Finally, it should be observed that the documentary evidence which has been tendered and considered in this proceeding is to a large extent a collection of emails, text messages and transcripts of telephone conversations or meetings. This documentary evidence, valuable and significant as it may be, is not in the nature of or the product of carefully considered contractual drafting and, as such, may well be regarded as inconsistent and in some conflict in particular instances. Nevertheless, this documentary evidence lies in the environment of commercial dealings. The High Court has, in numerous authorities, indicated that the proper approach to construction of commercial agreements is that in applying the usual rules of construction the courts should, where possible, construe their provisions in order to give business efficacy to the contractual arrangements.[95] Clearly it is not for the courts to substitute their views as to appropriate commercial objectives or decision making on the part of the parties. However, it would, in my view, be contrary to the authorities and approach of courts not to have regard to an underlying commercial purpose or purposes in viewing documentary evidence which may contain ambiguities and inconsistencies.
[95]Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, 607‑608 (Mason J).

The 2020 Australian Grand Prix

As has been observed, AGPC is a statutory corporation established under the AGP Act.[96] Its purpose includes ‘to facilitate the holding of an annual Formula One Grand Prix at Albert Park’.[97] Under s 3 of the Act:
[96]See above [17].
[97]AGP Act, s 1(b).

Formula One event means a motor car race—
(a) that takes place in Australia; and
(b) that—
(i) is approved by the Fédération Internationale de l’Automobile; or
(ii) is entered in the International Calendar of the Fédération Internationale de l’Automobile; or
(iii) counts towards the Formula One World Championship—

and includes any race, event or activity promoted by the Corporation in association with that race …

Under s 27 of the AGP Act the Minister administering the Crown Land (Reserves) Act 1978 and the Minister administering the AGP Act, acting jointly, by notice published in the Government Gazette, may declare:

(a) an area, being part or all of the Albert Park specified in the notice together with such other land (if any) surrounded by Albert Park and specified in the notice, the ‘declared area’ in respect of a year specified in the notice; and

(b) that a period (not exceeding seven days) specified in the notice is the ‘race period’ in respect of a year specified in the notice.

In accordance with the statutory powers, on 12 December 2019, the Ministers declared that for the year commencing 6 December 2019 and ending 4 December 2020:

(a) all of the area of Albert Park together with the land surrounded by Albert Park was the ‘declared area’; and

(b) the period commencing at 12:01pm on Tuesday, 10 March 2020 and ending at 11:59pm on Monday, 16 March 2020 was the ‘race period’.[98]

[98]Amended Statement of Claim [4]; Defence to Amended Statement of Claim [4].

The ‘declared area’ was approximately 176,000 square metres, or the equivalent of 28 MCGs.[99] Lakeside Stadium forms a separate part of that area, as indicated in the plan of the area set out previously.[100]
[99]Witness Statement of Mr Mottram dated 26 June 2023, [6] (CB471). See also T492/8‑9.
[100]See above [3].

The functions of the AGPC are outlined in ss 20 and 21, respectively, of the AGP Act. The latter includes numerous statutory powers for the purpose of performing its functions, including the power to control admission to the declared area during the race period and to do all other things necessary or convenient to be done for, or in connection with, or as incidental to, the performance of its functions. Section 30 requires the AGPC to manage and control the declared area in respect of a year for the race period in respect of that year.

Under s 9 of the AGP Act, AGPC is subject to the direction and control of the Minister in the performance of its functions and in the exercise of its powers. At the relevant time, the then Minister for Tourism, Sport, and Major Events, the Hon Martin Pakula, had statutory responsibility for administrating the AGP Act. The Government Department responsible for administering the AGP Act was the Department of Jobs, Precincts and Regions (now known as the Department of Jobs, Skills, Industry and Regions). The Secretary of that Department at the relevant time was Mr Simon Phemister. Mr Westacott was, as noted previously, then Chief Executive Officer of AGPC, and Mr Little was then Chairman of AGPC. They had a direct line of communication with Minister Pakula and Mr Phemister. Mr Westacott’s evidence was that his usual practice was to communicate by text or by phone call with those individuals.[101]
[101]Witness Statement of Andrew Westacott [26] CB345.

The 2020 World Tour Melbourne

In 2020, Apollo and WTM, in conjunction with Westbrook Inc., were producing a multi‑city concert series branded ‘World Tour’. World Tour was intended to be a global, multi‑genre, eco‑conscious concert series featuring A‑list performers, international DJs and local artists.

The idea of holding a World Tour event alongside the Grand Prix had its inception in conversations between Mr Morrison and the former CEO of AGPC, Mr Drew Ward going back to 2009.[102] The 2020 World Tour Melbourne was to be the first live music event in the World Tour series produced on a global scale. It was the product of lengthy negotiations between representatives of WTM, Apollo and AGPC, resulting in a multi‑year deal for WTM to produce concerts in connection to the Australian Grand Prix.[103] WTM’s concerts were to be separately ticketed from the Grand Prix. Initially, the 2020 World Tour Melbourne was to comprise of two concerts: one on 13 March 2020 headlined by Miley Cyrus, and the concert on 14 March 2020 headlined by Robbie Williams.[104] Those concerts were to take place in Lakeside Stadium. Unlike under AGPC’s previous model, WTM’s music event was self‑funded and separately ticketed to the Grand Prix.[105] Moreover, WTM was solely responsible for the construction of the concert facilities within Lakeside Stadium.
[102]Witness Statement of Mr Morrison dated 20 December 2022, [11]‑[14] (CB236‑237).
[103]See, e.g. the first witness statement of Mr Beck dated 16 September 2022, [7] (CB151).
[104]Noting that it was separately ticketed to the Grand Prix, Mr Mottram distinguished WTM’s concert to other ‘ancillary events’ that ran alongside the Grand Prix: T496/5‑13 (XXN of Mr Mottram).
[105]Recognised by Mr Westacott in his first witness statement dated 26 June 2023, [32] (CB346‑347).

The three primary contracts

On 9 January 2020, WTM, AGPC and TEG Dainty entered into various agreements which are relevant to this dispute. The first is the LMCA;[106] secondly, the Stadium Use Agreement between TEG Dainty and AGPC (‘SUA’);[107] and, thirdly, the Co‑Promotion Agreement between WTM and TEG Dainty (‘CPA’).[108]
[106]CB1234‑1259.
[107]CB1260‑1293.
[108]CB1294‑1338.

LMCA

The LMCA is the primary contract that governed the relationship between WTM and AGPC and, as recorded at paragraph (B) of the ‘Background’ being the recitals to that agreement, established a framework to govern WTM and AGPC’s respective rights and obligations for the staging of the World Tour in relation to the Australian Grand Prix.[109] WTM submits that the parties recognised, by the LMCA, that there was a distinction between the Australian Grand Prix and the World Tour Melbourne events.[110]
[109]See above [3].
[110]The LMCA did not, for instance, define an ‘Event’ as including both the World Tour Melbourne and Australian Grand Prix. In addition to defining the World Tour Melbourne, cl 3 explicitly referred to ‘AGPC Events’ and preserved AGPC’s right to conduct its own activities or arrangements in respect of non‑ticketed live music acts or performances at the Circuit. The LMCA also explicitly recognised that the two events were separately ticketed: see e.g. item 4 of the Schedule. ‘Other Event Organisers’ was defined in cl 1.1 to include inter alia ‘Formula One Marketing Limited, Formula One World Championship Limited [etc.]’.

AGPC, however, emphasises the close association or connection between the Australian Grand Prix and the World Tour Melbourne events.[111] It does so in support of its position that cancellation of the Grand Prix meant that it followed, having regard to this position, that the concert was, clearly, also cancelled. These matters are addressed further in the reasons which follow.
[111]Defendant’s Outline of Closings Submissions (12 June 2024), [29]‑[34].

‘Australian Grand Prix’ was defined in cl 1.1 to mean ‘a Formula 1 Australian Grand Prix event (as defined in the [AGP Act]) during the Term’. ‘World Tour’ means ‘a large scale, multi‑artist, music event featuring a line‑up of international and local A‑list Talent, aligned to the “World Tour” event and broadcast platform’. The ‘World Tour Melbourne’ was relevantly defined to mean: ‘the World Tour in relation to the Australian Grand Prix to be held on the applicable dates during the Australian Grand Prix Period as agreed between the parties’. ‘Declared Area’ was defined as ‘the declared area comprising all or part of Albert Park, including the Albert Park Grand Prix Circuit, as declared by the Minister each year in accordance with the [AGP Act]’. Under cl 2.1, and subject to cl 3, ‘AGPC … agreed to appoint WTM on an exclusive basis, as its “Live Music Partner” to stage World Tour Melbourne in accordance with’ the LMCA. WTM contends that this clause conferred a right on it to stage its event. AGPC denies this.

Under cl 2.4 of the LMCA, ‘WTM’s right to stage World Tour Melbourne’ would be suspended ‘should AGPC receive’:

…an unequivocal Ministerial Direction requiring AGPC to suspend the Australian Grand Prix and all associated events including those operated by Other Event Organisers and including World Tour Melbourne, such suspension requirement to be communicated immediately to WTM on receipt and to remain in force only for the period of suspension required by the Ministerial Direction.

There is, however, no issue in this case that any direction for the purposes of cl 2.4 was in fact made, or that one would have been made in the counterfactual.

Clause 4 of the LMCA set out WTM’s ‘Responsibilities’ (listed in Sch 1 to the LMCA). Those Responsibilities included inter alia talent procurement, stage design, promotion/advertising (etc.). In performing and delivering its Responsibilities, WTM was able at its sole discretion to ‘use a local partner of its choice’: cl 4.2(a). The local partner appointed by WTM was TEG Dainty. WTM’s primary obligations under the LMCA were otherwise set out in cls 4.3 to 4.7.

AGPC’s express obligations were set out under cl 5. Relevant obligations included:

(1)An express obligation to ‘cooperate in good faith with WTM in all matters relating to the World Tour Melbourne and/or the Responsibilities’: cl 5.1(a).
(2)Obligations to ‘provide to WTM in a timely manner all documents, information, items and materials in any form … required under Schedule 1 or otherwise reasonably required by WTM in connection with the World Tour Melbourne and/or the Responsibilities and ensure that they are accurate and complete in all material respects’: cl 5.1(b).
(3)An obligation to ‘provide and/or procure a Venue that is fit for purpose during the Term’: cl 5.1(d).

WTM contends that AGPC was also subject to an implied duty to do all things reasonably necessary to enable WTM to enjoy the full benefit of the LMCA and not to hinder or prevent the fulfilment of the purpose of express promises made in it to WTM (referred to as the ‘implied duty’). AGPC admits it was subject to the implied duty, but disputes what that duty required of it or that it was breached.

SUA

The SUA was a licence agreement between AGPC and TEG Dainty under which AGPC conferred a right on TEG Dainty to ‘occupy and use’ Lakeside Stadium at Albert Park ‘for the purpose of [TEG Dainty] co‑promoting with WTM the Live Shows in connection with the Event’ (Recitals, item D. See also cl 4.1).[112] As described in the LMCA, its purpose was to ‘gover[n] the staging of the relevant World Tour Melbourne …’: LMCA, cl 1.1). As with the LMCA, the parties to the SUA recognised that the ‘Live Shows’ to be held by WTM and TEG Dainty were connected to, but distinct from, the ‘Event’ (defined to mean the ‘Formula 1 Australian Grand Prix event’ in cl 1.1 of the SUA).
[112]AGPC was not the registered proprietor of the land on which the venue stands. It was granted its own licence to use Lakeside Stadium by the State Sports Centre Trust on 27 August 2019: see CB98.

CPA

The CPA was the agreement entered into between WTM and TEG Dainty under which WTM engaged TEG Dainty to co‑promote its ‘Event’. ‘Event’ in the CPA was defined to mean ‘a large scale, multi artist, music event featuring a line‑up of international and local A‑List Talent, aligned to the “World Tour” event and broadcast platform and to be held on the applicable Event Dates’: cl 1.1. It similarly distinguished between WTM’s ‘Event’ and the ‘Formula 1 Grand Prix’ (see, e.g. cls 7.2(h) and 11.2). The CPA contained a detailed division of responsibilities between WTM and TEG Dainty, and a framework for the division of costs and revenue derived in relation to WTM’s event.

Coronavirus risk

AGPC was aware, based on media and government press releases in January and February 2020, of the growing issue of COVID‑19.[113] Mr Westacott gave evidence as to AGPC’s monitoring of coronavirus throughout early 2020, up to 13 March 2020, and its development of plans and risk measures to provide guidance and instruction for AGPC personnel as to the preparation, planning and response to the COVID‑19 pandemic.[114] This included AGPC’s development of a ‘COVID‑19 Preparedness and Response Plan’,[115] which was stated to be for reference ‘in the planning and delivery of the event and to provide a framework for preparation and response to the escalating spread of Covid‑19 disease, including a suspected or confirmed case of Covid‑19 affecting the event’.[116]
[113]Witness Statement of Andrew Westacott [37] CB347.
[114]Witness Statement of Andrew Westacott [37]‑[86].
[115]CB371.
[116]CB373.

AGPC liaised with the Victorian Department of Health and Human Services (‘DHHS’) as to what precautions should be taken at the 2020 Australian Grand Prix event to deliver it safely.[117] On 26 February 2020, AGPC issued a Final Statement on Coronavirus stating that AGPC would ‘continue to closely monitor the situation in the lead‑up to the Grand Prix’ and ‘take guidance from subject matter experts, including Victorian and National Chief Health Officers’.[118]
[117]Witness Statement of Andrew Westacott [39] CB348.
[118]Witness Statement of Andrew Westacott [39] CB348.

Events leading to 13 March 2020

The events leading up to the week of 9 March 2020 are largely not in dispute.[119] By 9 March 2020, WTM (through TEG Dainty) had engaged A‑List talent and support acts to perform at the 2020 World Tour Melbourne. WTM was marketing and selling tickets, and taking necessary steps to ensure the concerts were ready to proceed. Robbie Williams was to headline the concert scheduled to take place on 14 March 2020, supported by other artists.[120] At the same time, AGPC, Formula 1 and the Federation Internationale de l’Automobile (‘FIA’), were conducting final preparations for the Australian Grand Prix.[121]
[119]Plaintiff’s Outline of Closing Submissions (12 June 2024), [106]‑[125]; and Defendant’s Outline of Closing Submissions (12 June 2024), [38].
[120]A running sheet of that concert is at CB5194‑5195.
[121]The 2020 Australian Grand Prix timetable on 14 March 2020 is at CB369.

On 9 March 2020, TEG Dainty provided AGPC with a Non‑Appearance Insurance: Confirmation of Cover. The policy excluded inter alia any loss directly or indirectly arising out of, contributed to by, or resulting from Coronavirus.[122] Mr Grayson gave unchallenged evidence at trial that policies at the time ‘would not cover cancellation due to coronavirus (as such coverage was not available)’ and that the insurance market had ‘started to require a specific coronavirus exclusion’ from as early as 9 January 2020 the day when the LMCA was executed.[123]
[122]CB3068.
[123]See Mr Grayson’s witness statement dated 16 September 2022 [29] (CB140) and [36] (CB142).

On 10 March 2020, WTM issued a flier for concertgoers for the Robbie Williams concert on 14 March setting out important information about the event. Concertgoers were reminded that the ‘World Tour Melbourne is a separately ticketed event’.[124] Additionally, a map was attached to the flyer depicting the entry points to the WTM event. That same day, Miley Cyrus’ agent notified WTM and TEG Dainty that Ms Cyrus would not be travelling to Australia to perform on 13 March 2020. Ms Cyrus later tweeted: ‘[d]ue to recommendations of local, state, federal and international government authorities including the Centre for Disease Control’ in the United States she would not be travelling to Australia.[125] After that time, WTM, TEG Dainty and AGPC proceeded on the basis that the 2020 World Tour Melbourne would only comprise the Robbie Williams concert on 14 March 2020.[126]
[124]CB3108.
[125]CB3158.
[126]The AGPC does not take issue with this.

The parties were, however, optimistic everything would proceed as planned bearing in mind that on 8 March 2020 the women’s T20 World Cup Final was held at the MCG with an audience of more than 80,000 people.[127] As AGPC repeatedly announced to the public and to WTM, it was ‘all systems go’.[128]
[127]Mr Westacott’s statement dated 26 June 2023, [49] (CB349).
[128]See, e.g. CB427, 866 2801‑2802, 2820, 2855, 2928 and 3631.

Also on Tuesday 10 March 2020, meetings occurred between AGPC and Formula 1 representatives about how various events during the Grand Prix might be adjusted to reduce the risk of the transmission of COVID‑19 to drivers and also Formula 1 teams, including, for example, driver autograph sessions being changed to Q&A sessions.[129]
[129]Witness Statement of Andrew Westacott [55] CB350.

On Wednesday 11 March 2020, then Prime Minister, the Hon Scott Morrison MP, announced that Australia would close its borders to persons travelling from Italy from 6:00pm that night based on the large outbreaks of coronavirus in Italy at that time. This was an issue for the event because there were still Ferrari personnel due to arrive in Melbourne after 6:00pm. Mr Westacott and Mr James Rosengarten liaised with representatives of Australian Border Force about flexibility in relation to those persons in transit.[130] Mr Westacott was also aware that Formula 1 team personnel were presenting to the Albert Park Medical Centre and were meeting the criteria for COVID‑19 testing.[131] Ms Amy Hill emailed the DHHS to see if test results could be expedited. During the night of 11 March 2020, COVID‑19 was declared a global pandemic by the World Health Organisation (‘WHO’).[132] The WHO statement recognised that ‘[a]ll countries must strike a fine balance between protecting health, minimising economic and social disruption, and respecting human rights’. It said nothing about large or mass public gatherings. As Mr Westacott accepted in cross‑examination, the WHO declaration ‘did not change anything operationally for the [AGPC] with respect to the Grand Prix’.[133] In the evening of 11 March 2020, there was an opening party for the Grand Prix called ‘Glamour on the Grid’, with 550 people attending at a facility at the Formula 1 paddock at Albert Park.[134]
[130]Witness Statement of Andrew Westacott [60] CB351.
[131]Witness Statement of Andrew Westacott [64] CB352.
[132]See CB5617‑5620.
[133]T434/6‑9 (XXN of Mr Westacott).
[134]Mr Westacott’s first statement dated 26 June 2023, [63] (CB351). As for a description of the F1 Paddock, see Mr Westacott’s first statement dated 26 June 2023, [12] (CB342).

Also on Wednesday 11 March 2020, Robbie Williams arrived in Melbourne with his manager, Mr Loney. Mr Williams’ musicians, dancers and support crew also arrived that day and on 12 March 2020.[135] By that time, many of WTM’s key representatives had also flown to Melbourne.
[135]Witness statement of Mr Loney dated 10 October 2023, [7] (CB338).

On Thursday 12 March 2020, the gates to the declared area were opened at 9:15am. At 10:05am, Mr Westacott had a telephone conversation with Minister Pakula, who asked AGPC to begin working through potential evacuation scenarios. The Minister said to Mr Westacott words to the effect that he was concerned about the increasing risk of transmission of COVID‑19 in the community and the risk of the spread of COVID‑19 at the event.[136] In any event, around 45,000 spectators attended the track that day.[137] All parties proceeded on the basis that the Grand Prix, and the concert, would be continuing.
[136]Witness Statement of Andrew Westacott [73] CB353.
[137]CB353, [72].

On or around 11 or 12 March 2020, Ms Artmonsky, Mr Morrison and Mr Dainty met with Mr Charles Hunting, director of AgBioEn. In circumstances where Ms Cyrus had cancelled her concert, those parties discussed the possibility of AgBioEn providing sponsorship for the Robbie Williams concert on 14 March. WTM says that they reached an oral agreement that AgBioEn would pay USD 2.5 million to sponsor the Robbie Williams concert — an issue that is addressed further in the reasons which follow. AGPC contests the proposition that there was such an agreement. In any event, by 12 March, ‘the stage at Lakeside Stadium had been built and the grass protection had been completed’ for the 2020 World Tour Melbourne.[138] Over 13,000 tickets had been sold, and the concert was, WTM contends, being heavily marketed.
[138]Witness Statement of Craig Fletcher dated 30 May 2024, [31] (CB5543).

Further, while not determinative, I accept the force of AGPC’s contentions that the fact Apollo/ WTM had balked at paying the ‘punishment charge’ of $150,000 suggests that WTM did not anticipate generating TV and film content revenue in the amounts claimed, otherwise they would have simply paid the fee asked by Formula 1.[705]
[705]Defendant’s Outline of Closing Submissions (12 June 2024), [355].

Taking these factors in their totality, I consider the degree of possibility that the revenue from the TV and film content would not have been realised means that a Sellars discount of 75% is appropriate, bringing the total loss of revenue awarded under this head of loss to $60,300 (rounded up).

Event Licence Fee and Production Fee

Under the but‑for scenario, the Event Licence Fee (consisting of the base licence fee and the per‑ticket sold licence fee) and the Production Fee form the correlative revenue of the equivalent costs in the but‑for Net Profit analysis. As such, the parties’ submissions with respect to the Event Licence Fee and the Production Fee are the same for both heads of loss. My findings with respect to the value of the Event Licence Fee in the Net Profit analysis, as well as the Production Fee, equally apply to this head of loss.

Accordingly, notwithstanding WTM’s submissions that the loss of revenue for the Event Licence Fee was $203,000 in the but‑for scenario, I find it is $173,000. The Production Fee is $188,000. I do not consider it necessary to apply any further Sellars discount to these figures.

WTM Sponsorship

Under cl 15.1.4 of the CPA, ‘WTM sponsorship’ is defined as the remaining 25% of local sponsorship revenue which is not counted towards revenue in the Net Profit calculation.

WTM initially claimed approximately $19,000 in WTM Sponsorship revenue, this being the remaining 25% of the $75,000 local sponsorship that Ms Malcolm was instructed to assume would have been obtained.[706] WTM no longer presses this claim and, accordingly, it has been removed from the table above.

Merchandise

[706]Expert Report of Liesl Malcolm dated 13 April 2023, [6.3.5]; CB648‑649.

WTM claims a loss of $128,000 (rounded up and pre‑Sellars discount[707]) in lost opportunity to derive merchandise revenue as a result of the cancellation of the concert and $56,000 in merchandise related expenses.
[707]WTM claims $74,000 after the application of a Sellars discount: Plaintiff’s Outline of Closing Submissions (5 July 2024), [332].

The expenses claimed reflect the expenses claimed in the actual scenario and I accept these expenses were also incurred for the purposes of the but‑for scenario.

WTM contends that it entered into an agreement with Omniverse Holdings to sell merchandise at the Robbie Williams concert, with profits to be split 50/50 between WTM and Omniverse Holdings.[708] Further, merchandise had been designed, ordered and freighted by the time the concert was cancelled.[709] WTM submits it therefore would have derived revenue from merchandise sales had the concert not been cancelled.[710]
[708]Witness Statement of Samantha Smith dated 30 March 2023, [40]‑[44]; CB316‑317; Product and Marketing Proposal dated 1 February 2020, cl 10; CB1544.
[709]By around 9 March 2020, the merchandise including t‑shirts, hats, jackets, bags and hoodies, had been freighted to Melbourne and stored in warehouses: Witness Statement of Samantha Smith dated 30 March 2023, [51]; CB319.
[710]Plaintiff’s Outline of Closing Submissions (5 July 2024), [318].

WTM explains that Ms Malcolm’s calculations were based on the 50/50 profit split and a document called ‘World Tour Financial Model: World Tour Product Pro‑Forma – Melbourne’ (the ‘Financial Model’) prepared by Omniverse Holdings that contemplated a $10 spend per head on merchandise.[711] Assuming the concert was sold out and the $10 spend per head, Ms Malcolm calculated WTM lost $141,895 in merchandise revenue.[712] WTM concedes that figure should be reduced to reflect the GST that would have been payable,[713] reducing the claim to $128,000.
[711]CB1520.
[712]Expert Report of Liesl Malcolm dated 13 April 2023, [6.3.4]; CB648.
[713]Plaintiff’s Outline of Closing Submissions (5 July 2024), [319]; CB1544.

WTM further accepts that while it is appropriate to apply a Sellars discount to this figure, a discount of only 10% is appropriate in light of the ‘strong’ evidence as to the merchandise arrangements in place, including the types and quantity of merchandise items that had been shipped to Australia. WTM also separately accepts that the spend per head should be multiplied against the number of ticket sales, not the maximum capacity of the stadium.[714]
[714]Plaintiff’s Outline of Closing Submissions (5 July 2024), [332].

In contrast, AGPC submits that no amount should be awarded as loss of revenue from merchandise sales[715] on the basis that there is no reliable evidence with respect to what is a reasonable spend per head in merchandise sales. AGPC make this submission arguing that the $10 spend per head figure included in the Financial Model was qualified by a note that that figure ‘[a]ssumes rights to artist name/likeness on product, and limited artist product’,[716] and that, pursuant to cl 16 of their contract, WTM was prohibited from using Robbie Williams’ likeness on merchandise in the absence of a separate agreement,[717] and, finally, that was no evidence adduced of any such agreement.
[715]Defendant’s Outline of Closing Submissions (12 June 2024), [368].
[716]CB1520.
[717]CB1173.

As with many of the other heads of loss, AGPC contends where a plaintiff’s loss is not capable of precise calculation, but the plaintiff could have, and did not, lead evidence to permit a considered evaluation of the loss (even if such evaluation would require estimation), the Court is not permitted to simply guess at the damages to be awarded.[718] And that, where damages are uncertain for lack of evidence, difficulties of assessment are in general resolved against the party who could or should have provided the evidence.[719]
[718]Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354, [84] (Campbell JA); Winning Appliances Pty Ltd v Dean Appliances Pty Ltd (1995) 32 IPR 65, 68 (Moore J).
[719]Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371 , [54] and [66] (Hodgson JA).

Further, AGPC submits that Ms Malcolm’s calculation, which assumed full capacity at the stadium, is incorrect and contends the revenue should be calculated on the basis of a crowd no more than about 12,500.[720]
[720]Defendant’s Outline of Closing Submissions (12 June 2024), [368].

Consistently with my findings with regards to TV and film content revenue and food and beverage revenue, I am unwilling to accept AGPC’s submission that WTM failed to adduce any reliable evidence with respect to this head of loss. As with those heads of loss, here WTM adduced evidence which provided the supplier’s projected spend per head. While the projection has limitations, it is not the case that I have been provided with no basis from which to undertake a reasoning process to make an estimation of loss. As Hayne J observed in Placer (Granny Smith), my role is to do the best I can on the evidence before me to make a judicial estimation of loss.

I do not consider, as AGPC invites me to find, that this requires me to find that the absence of evidence of a separate agreement by Robbie Williams for the use of his likeness on the merchandise means I cannot make an estimation.

Additionally, in any case, my understanding of the evidence[721] is that at least some of the merchandise that would have been sold at the concert would have branded as World Tour specific merchandise and not included Robbie Williams’ likeness and thus would not have required an agreement from Robbie Williams.
[721]Witness Statement of Samantha Smith dated 30 March 2023, [39](b); CB316; CB1521.

In the circumstances, I am satisfied on the balance of probabilities that there was a commercially valuable opportunity available to WTM to sell merchandise which was lost through the cancellation of the concert. I am also satisfied that it is appropriate to calculate the loss on the basis of a $10 spend per head.

I also agree that the spend per head should be multiplied against the ticket sales and not the maximum crowd capacity. For the reasons submitted by WTM, I also accept that a Sellars discount of 10% is appropriate, and that the total should be adjusted to remove GST.

The base calculation is therefore $10 spend per head x 13,821 tickets less GST x 50% commission totalling $62,823 (rounded). Reduced by the 10% Sellars discount, the total merchandise revenue loss is $56,540 (rounded).

Additional expenses

In her report, Ms Malcolm attributed a further $323,000 in ‘additional expenses’ that would have been incurred by WTM had the concert had proceeded. She calculated this amount based on the budget available to her and her assessment of the appropriate apportionment of these additional expenses between the Friday and Saturday concerts. Consistent with her approach to the expenses in fact incurred, she apportioned approximately 58% of the expenses to the Robbie Williams concert.[722]
[722]Expert Report of Liesl Malcolm dated 13 April 2023, [7.3.2]; CB650.

By adopting Ms Malcolm’s overall figure of $4,248,000 in costs sunk by way of the concert being cancelled, WTM presses the claim for $323,000 in additional expenses. However, no submissions were made directly on this expense.[723] AGPC’s closing submissions note that WTM makes the claim for additional expenses but otherwise does not make any submissions.[724] Ms Wright found, based on the information available to her, she was unable to form an opinion on the accuracy or reasonableness of Ms Malcolm’s treatment of the additional expenses.[725] In the absence of any dispute between the parties, I accept that WTM would have incurred a further $323,000 in additional expenses had the concert proceeded.

Calculation of profit/loss under Other Revenue and Expenses

[723]Plaintiff’s Outline of Closing Submissions (5 July 2024), [258].

[724]Defendant’s Outline of Closing Submissions (12 June 2024), [284].

[725]Expert report of Dawna Wright dated 27 June 2023, Annexure F, [1.5.3]; CB810.

WTM’s loss with respect to other revenue and expenses is therefore $1,874,000. The breakdown of this calculation is follows (rounded and including the relevant Sellars discounts):

Other Revenue / Expenses
$’000	But‑for scenario	Actual scenario	Difference
Revenue
Global sponsorship	$2,020	‑	$2,020
TV and Film content	$60	‑	$60
Event Licence Fee	$173	$113	$60
Production Fee	$188	$188	‑
Merchandise	$57	‑	$57
WTM Sponsorship Fee	(not pressed)	(not pressed)	‑
Total Revenue:	$2,498	$300	$2,197
Expenses
TV and Film content	($563)	($563)	‑
Merchandise	($56)	($56)	‑
Global Sponsorship	($11)	($11)	‑
Additional Expenditure	($323)	‑	($323)
Total Expenses:	($952)	($629)	($323)

Global Sellars discount

WTM says that there is little or no real risk that the concert would not have proceeded had the concert not been cancelled. However, out of an abundance of caution, WTM submits a small global Sellars discount could be applied to the total profit in the but‑for scenario to reflect the risk the concert would not have proceeded in any event and other generalised risks. WTM contends a discount of no more than 5% would be appropriate.[726] AGPC did not make any submissions directed towards any global Sellars discount.
[726]Plaintiff’s Outline of Closing Submissions (5 July 2024), [336].

In light of AGPC’s lack of submissions on this point, and my findings in relation to Sellars discount in relation to the individual heads of loss, I do not consider it necessary to apply any global discount.

Damages

Based on my findings above, I award damages to WTM in the amount of $2,840,000.

Following the methodology agreed by the experts, this is the difference in the overall loss that WTM suffered through the cancellation of the concert ($4,248,000) and the lesser amount of loss that I found WTM would had suffered had the concert proceeded ($1,408,000).

The breakdown each head of loss is as follows (final figures rounded up):

Head of loss
*$’000s	But‑for	Actual	Difference
50% Net Profit	($2,623)	($3,381)	$759
90% VIP Hospitality	($331)	($537)	$206
Other Revenue	$2,498	$300	$2,197
Other Expenses	($952)	($629)	($323)
Total	($1,408)	($4,248)	$2,840

In this regard, I note that due to my findings in relation to each head of loss, and in particular global sponsorship and TV and film revenue, I found the Robbie Williams concert would have run at a loss even in the but‑for scenario. The only head of loss which WTM would have made a profit under the but‑for scenario was ‘Other Revenue’ which comprised the global sponsorship revenue.

WTM seeks to be heard separately on orders as to interest and costs.

Change in the Plaintiff’s Case and Conduct of the Proceeding

AGPC seeks to rely upon 95 communications (which are referred to in Annexure A of its written closing submissions), 72 of which were not addressed in the Plaintiff’s witness statements.[727] It contends that these communications form a contemporaneous part of the documentary record that is critical to an assessment of WTM’s knowledge and decision making leading up to the cancellation of the concert. It says that the documents ‘show clearly the inner workings of an organisation aware of and dealing with the inevitable cancellation of the concert because of the COVID‑19 pandemic’.[728] Finally, AGPC takes issue with the Plaintiff’s discovery of these documents, alleging amongst other things, that it was unduly slow and non‑compliant with Court orders and overarching obligations in the providing discovery.[729]
[727]Defendant’s Outline of Closing Submissions (12 June 2024), [225], Annexure A.
[728]Defendant’s Outline of Closing Submissions (12 June 2024), [226].
[729]Defendant’s Outline of Closing Submissions (12 June 2024), [228]–[229].

These communications, in my view, are not helpful; either generally or with respect to AGPC’s case. Aside from providing brief summaries as to their contents,[730] AGPC has not advanced any submissions as to the relevance of the documents cited in this table, or provided any indication in the table as to their application or relevance to the case of either party. Nor has WTM raised any objection in support of the non‑production or reference to these documents in the course of the trial; so, as possibly, to provide some basis for the preparation of such a table. AGPC’s reliance on these documents seems to be directed to and to cover the same matters with respect to its submissions as to statements such as Mr Beck’s that ‘it’s not happening’; being a reference to the concert. As indicated previously, in my view, these and similar materials and such evidence indicates nothing more than great uncertainty on the part of WTM and TEG Dainty as to whether the concert would be permitted to proceed.[731]
[730]Defendant’s Outline of Closing Submissions (12 June 2024) [224]–[231].
[731]See above [160].

In this context, it is important to note the overarching obligation applicable to litigants under the Civil Procedure Act 2010 to use reasonable endeavours to narrow the issues in dispute,[732] and to ensure that legal and other costs incurred in connection with the civil proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute.[733] The following observations of the Court of Appeal in Yara Australia Pty Ltd v Oswal about the scope of s 24 of the Civil Procedure Act are helpful:[734]

Overly voluminous application material strains the administrative resources of the Court and the time of judges themselves. Where a large volume of material is provided to a court that is unnecessary and excessive, there will be a prima facie case that the overriding obligation has been breached.

It is difficult to see how the production and apparent reliance on the contents of Annexure A sit well with the requirements of the Civil Procedure Act.

[732]Civil Procedure Act 2010, s 23.

[733]Civil Procedure Act 2010, s 24.

[734]41 VR 302 [40] (Redlich and Priest JJA and Macaulay AJA).

Moreover, AGPC takes issue with the Plaintiff’s conduct of the proceeding by pointing to changes in the way the case was pleaded. It says that the Plaintiff has sought to embrace or deny the written record as necessary to suit its changing case.[735] First, AGPC points to the email correspondence from Ms Artmonsky to Mr Westacott on 26 April 2020, the critical aspect of which it submits is the following statement: ‘In fact, we were told by AGPC on a call at 1:15pm on Friday 13th March that our event could go ahead as the government position was only advisory but this was subsequently reversed in the call which you joined shortly thereafter’.[736] It also points to a letter sent by WTM’s solicitors to AGPC on 17 August 2020, alleging that AGPC represented without reasonable basis that the Grand Prix and the 2020 World Tour Melbourne concert would proceed, and thereby engaged in misleading and deceptive conduct.[737] It says that WTM’s prior position, expressed in the two instances of correspondence, is inconsistent with its current position, expressed in the Amended Statement of Claim dated 28 October 2022. In the Amended Statement of Claim, WTM contends that during a call at around 1:30pm, AGPC misled WTM by representing that both the Grand Prix and the 2020 World Tour Melbourne had been cancelled because the CHO had determined that both events could not proceed and that, but for this conduct, WTM would have proceeded with the concert.[738] AGPC argues that WTM’s witnesses have changed their position for the purpose of establishing the necessary causative element of WTM’s claim by seeking to evidence an intention to proceed with the concert.[739]
[735]Defendant’s Outline of Closing Submissions (12 June 2024) [230].
[736]Defendant’s Outline of Closing Submissions (12 June 2024) [230](a), citing CB4014. See above [110].
[737]Defendant’s Outline of Closing Submissions (12 June 2024) [230], citing CB5650 [26](g).
[738]Defendant’s Outline of Closing Submissions (12 June 2024) [231]; Amended Statement of Claim [11](f)(B).
[739]Defendant’s Outline of Closing Submissions (12 June 2024) [231].

I do not accept this submission. As I have indicated previously,[740] the email communication between Ms Artmonsky and Mr Westacott on 26 April 2020 merely evidences the concern of WTM, and also TEG Dainty, at the lack of clear and definitive response by AGPC to the question whether or not the concert could proceed. As to the letter sent through WTM’s solicitors, the document was drafted and sent before the commencement of this proceeding, and was likely informed by a less comprehensive understanding of the events on 13 March 2020. As is often the case in the preliminary stages of commercial litigation, WTM’s solicitors were likely to have been working with relatively sparse information concerning the ambiguous events in the 1:15pm call when drafting the 17 August 2020 letter, less than six months after the cancellation. With the passage of time, and evolution of the dispute, WTM’s legal team is likely to have reached a better understanding of the 1:15pm call following more extensive discovery and further engagement with WTM’s witnesses. This may explain the change in position expressed in the Amended Statement of Claim filed by WTM more than two years later.
[740]See above [110].

Disposition

The parties agreed that the issues arising to be determined in this proceeding are those listed in the consolidated List of Issues under paragraph 16 of the orders made by Connock J on 17 July 2023. This list is now set out together with findings with respect to each issue on the basis of the preceding reasons.

Question

Court Findings

During the oral conversation that took place between AGPC and WTM on 13 March 2020 from around 2:08pm, did AGPC represent, as alleged by WTM, that both the 2020 Grand Prix and the 2020 World Tour Melbourne had been cancelled because the Chief Health Officer of Victoria had determined that both events could not proceed (First Representation)? (ASOC, [11A]; Defence to Amended Statement of Claim filed 16 November 2022 (DASOC), [11A])

Yes: see [150]‑[151].

If the answer to question 1 is ‘yes’, was the First Representation misleading or deceptive or likely to mislead or deceive? (ASOC, [11B] and [11H]; DASOC, [11B] and [11H])

Yes: see [114]‑[115] and [152]‑[155].

If the answer to each of questions 1 and 2 is ‘yes’, did WTM rely on the First Representation in the ways alleged? (ASOC [11C] and/or [11G], DASOC, [11C] and [11G])

Yes: see [109] and [164]‑[165].

Was the representation made in the email from AGPC to WTM sent at 4:25pm on 13 March 2020 (Second Representation) misleading or deceptive or likely to mislead or deceive? (ASOC, [11D]‑[11E] and [11H]; DASOC, [11D]‑[11E] and [11H])

Yes: see [166]‑[169].

If the answer to question 4 is ‘yes’, did WTM rely on the Second Representation in the ways alleged? (ASOC [11G], DASOC [11G])

Yes: see [126]‑[127] and [172]‑[175].

Did cl 2.1 of the LMCA oblige AGPC to allow WTM to stage the 2020 World Tour Melbourne event? If so, did AGPC breach that obligation by reason of the matters alleged in particulars (B) to (I) of paragraph 11 of the ASOC? (ASOC, [6(j)] and [11(e)]; DASOC, [6(b)(ii)] and [11(e)])?

Yes, cl 2.1 of the LMCA conferred a right on WTM to stage the event and a corresponding obligation on AGPC to allow it to do so: see [179]‑[185]. Yes, by reason of the matters alleged in particulars (B) to (I) of paragraph 11 of the ASOC, AGPC breached that obligation: see [190].

Did AGPC breach an implied duty to do all things reasonably necessary to enable WTM to enjoy the full benefit of the LMCA and to not hinder or prevent the fulfilment of the purpose of the express promises made in the LMCA by reason of the matters alleged in particulars (B) to (I) of paragraph 11 of the ASOC? (ASOC, [11(b)]; DASOC, [11(b)])?

Yes: see [190].

Did cl 5.1(a) of the LMCA oblige AGPC to co‑operate in good faith with WTM to enable WTM to hold the 2020 World Tour Melbourne event? If so, did AGPC breach that obligation by reason of the matters alleged in particulars (B) to (I) of paragraph 11 of the ASOC? (ASOC, [6(n)(i)] and [11(a)]; DASOC, [11(a)])?

There is insufficient evidence to find lack of good faith on the part of AGPC or Mr Westacott such as to found a breach of cl 5.1(a): see [194].

Did cl 5.1(b) of the LMCA oblige AGPC to:

Yes: see [198].

provide WTM with a copy of the Recommendation, the Request and/or the Response from the Chief Health Officer prior to making the First Representation to WTM and/or cancelling the 2020 World Tour Melbourne event; and/or

provide WTM with an accurate account of the Recommendation or the Response of the Chief Health Officer prior to making the First Representation to WTM and/or cancelling the 2020 World Tour Melbourne event,

in the manner alleged? (ASOC, [6(n)(iii)] and [11(e)] and [(G)] and [(H)] of the particulars thereto; DASOC, [11(e)])

If the answer to either of questions 9(a) or (b) is ‘yes’, did AGPC breach that obligation?

Yes: see [198].

Did AGPC breach an obligation under cl 5.1(d) of the LMCA requiring it to provide a venue that was fit for purpose during the Term by reason of the matters alleged in particulars (B) to (I) of paragraph 11 of the ASOC? (ASOC, [6(n)(iv)] and [11(f)]; DASOC, [11(f)])?

Yes: see [199]‑[201].

Did any of the matters alleged in paragraphs 10D, 10E(aa), 10E(a), 10E(b), 10E(c)(i), 10E(d) and 10E(h) of the DASOC constitute a force majeure event (within the meaning of cl 19.1(b) or 19.1(e) of the LMCA) which prevented, hindered or delayed its performance of that obligation? (DASOC, [11(e)(iii)]; Amended Reply filed 13 April 2023 (AR), [11(a)])

No: see [209]‑[217].

If the answer to question 12 is ‘yes’, did the email sent from Craig Fletcher of AGPC to WTM at 4:25pm on 13 March 2020 satisfy the requirements of cl 19.4 of the LMCA (DASOC, [11(e)(iv)] and [11(f)(iv)]; AR, [11])?

No: see [216].

If AGPC did breach the LMCA and/or contravene s 18 of the ACL as alleged by WTM:

Did WTM suffer loss and damage as a result of that breach(es) or contravention(s)?

Yes: see [231]‑[239].

If so, what was the quantum of loss and damage suffered?

$2,840,000: see [547]‑[551].

Was the loss and damage suffered by WTM caused (in whole or in part) by a failure to effect and maintain event cancellation insurance in accordance with cl 14.2 of the LMCA?

No: see [225]‑[227].

Was the loss and damage suffered by WTM (in whole or in part) too remote and not within the contemplation of the parties?

No: see [230].

---

Question	Court Findings
During the oral conversation that took place between AGPC and WTM on 13 March 2020 from around 2:08pm, did AGPC represent, as alleged by WTM, that both the 2020 Grand Prix and the 2020 World Tour Melbourne had been cancelled because the Chief Health Officer of Victoria had determined that both events could not proceed (First Representation)? (ASOC, [11A]; Defence to Amended Statement of Claim filed 16 November 2022 (DASOC), [11A])	Yes: see [150]‑[151].
If the answer to question 1 is ‘yes’, was the First Representation misleading or deceptive or likely to mislead or deceive? (ASOC, [11B] and [11H]; DASOC, [11B] and [11H])	Yes: see [114]‑[115] and [152]‑[155].
If the answer to each of questions 1 and 2 is ‘yes’, did WTM rely on the First Representation in the ways alleged? (ASOC [11C] and/or [11G], DASOC, [11C] and [11G])	Yes: see [109] and [164]‑[165].
Was the representation made in the email from AGPC to WTM sent at 4:25pm on 13 March 2020 (Second Representation) misleading or deceptive or likely to mislead or deceive? (ASOC, [11D]‑[11E] and [11H]; DASOC, [11D]‑[11E] and [11H])	Yes: see [166]‑[169].
If the answer to question 4 is ‘yes’, did WTM rely on the Second Representation in the ways alleged? (ASOC [11G], DASOC [11G])	Yes: see [126]‑[127] and [172]‑[175].
Did cl 2.1 of the LMCA oblige AGPC to allow WTM to stage the 2020 World Tour Melbourne event? If so, did AGPC breach that obligation by reason of the matters alleged in particulars (B) to (I) of paragraph 11 of the ASOC? (ASOC, [6(j)] and [11(e)]; DASOC, [6(b)(ii)] and [11(e)])?	Yes, cl 2.1 of the LMCA conferred a right on WTM to stage the event and a corresponding obligation on AGPC to allow it to do so: see [179]‑[185]. Yes, by reason of the matters alleged in particulars (B) to (I) of paragraph 11 of the ASOC, AGPC breached that obligation: see [190].
Did AGPC breach an implied duty to do all things reasonably necessary to enable WTM to enjoy the full benefit of the LMCA and to not hinder or prevent the fulfilment of the purpose of the express promises made in the LMCA by reason of the matters alleged in particulars (B) to (I) of paragraph 11 of the ASOC? (ASOC, [11(b)]; DASOC, [11(b)])?	Yes: see [190].
Did cl 5.1(a) of the LMCA oblige AGPC to co‑operate in good faith with WTM to enable WTM to hold the 2020 World Tour Melbourne event? If so, did AGPC breach that obligation by reason of the matters alleged in particulars (B) to (I) of paragraph 11 of the ASOC? (ASOC, [6(n)(i)] and [11(a)]; DASOC, [11(a)])?	There is insufficient evidence to find lack of good faith on the part of AGPC or Mr Westacott such as to found a breach of cl 5.1(a): see [194].
Did cl 5.1(b) of the LMCA oblige AGPC to:	Yes: see [198].
provide WTM with a copy of the Recommendation, the Request and/or the Response from the Chief Health Officer prior to making the First Representation to WTM and/or cancelling the 2020 World Tour Melbourne event; and/or
provide WTM with an accurate account of the Recommendation or the Response of the Chief Health Officer prior to making the First Representation to WTM and/or cancelling the 2020 World Tour Melbourne event,
in the manner alleged? (ASOC, [6(n)(iii)] and [11(e)] and [(G)] and [(H)] of the particulars thereto; DASOC, [11(e)])
If the answer to either of questions 9(a) or (b) is ‘yes’, did AGPC breach that obligation?	Yes: see [198].
Did AGPC breach an obligation under cl 5.1(d) of the LMCA requiring it to provide a venue that was fit for purpose during the Term by reason of the matters alleged in particulars (B) to (I) of paragraph 11 of the ASOC? (ASOC, [6(n)(iv)] and [11(f)]; DASOC, [11(f)])?	Yes: see [199]‑[201].
Did any of the matters alleged in paragraphs 10D, 10E(aa), 10E(a), 10E(b), 10E(c)(i), 10E(d) and 10E(h) of the DASOC constitute a force majeure event (within the meaning of cl 19.1(b) or 19.1(e) of the LMCA) which prevented, hindered or delayed its performance of that obligation? (DASOC, [11(e)(iii)]; Amended Reply filed 13 April 2023 (AR), [11(a)])	No: see [209]‑[217].
If the answer to question 12 is ‘yes’, did the email sent from Craig Fletcher of AGPC to WTM at 4:25pm on 13 March 2020 satisfy the requirements of cl 19.4 of the LMCA (DASOC, [11(e)(iv)] and [11(f)(iv)]; AR, [11])?	No: see [216].
If AGPC did breach the LMCA and/or contravene s 18 of the ACL as alleged by WTM:
Did WTM suffer loss and damage as a result of that breach(es) or contravention(s)?	Yes: see [231]‑[239].
If so, what was the quantum of loss and damage suffered?	$2,840,000: see [547]‑[551].
Was the loss and damage suffered by WTM caused (in whole or in part) by a failure to effect and maintain event cancellation insurance in accordance with cl 14.2 of the LMCA?	No: see [225]‑[227].
Was the loss and damage suffered by WTM (in whole or in part) too remote and not within the contemplation of the parties?	No: see [230].

[2024] VSC 521

30 August 2024