The applicant's proposed orders take the view that "nothing is impossible" and have scheduled the above matters to be undertaken in the two months before the trial commences. The respondents' proposed orders allow for the applicant's motion to amend (as outlined above) and an index of the discovered documents relied on by the applicant to be exchanged, and the respondents' evidence "save as to quantum" being filed by 5 September 2025, and evidence as to quantum by 22 September 2025, each with a time frame for reply. The expert conclaves and a mediation are to take place in October, on the respondents' case, and the timetable ends on 7 November 2025, with a schedule of unresolved objections and a case management hearing. The respondents' orders do not take into account the preparation of a trial or court book, or of the provision of submissions, and these would need to be factored in.
The applicant seeks that the hearing dates be maintained, and that if there is an issue with the respondents' ability to put on its expert evidence (in particular, in reply to the recently completed and served expert evidence) then the hearing could commence in September, and be adjourned to the next available dates before me for the experts to give joint evidence, and for submissions. I indicated that the next possible available dates before me were in December 2025, and then some time in April or May 2025, to which I add, there may be a week in early February 2026. The respondents seek that the matter be adjourned, and would be willing to meet a bifurcated hearing.
The respondents pointed to the continual breaches of the orders for the filing of evidence and the limited time, just over two months before the hearing date. They noted that while the applicant's expert has had months to prepare its very extensive report, the respondents would, on the applicant's proposed orders, need to file their lay evidence by 11 July 2025 and their expert evidence by 12 September 2025. The applicant conceded that perhaps an extra week for evidence may be able to be provided in its proposed timetable.
In response, the applicant pointed to the extraordinarily protracted process of discovery by the respondents, and submitted that the respondents had compounded the amount of litigation that the applicant had had to deal with to create a self-fulfilling prophecy of an inability to meet the trial dates, citing Luck v The Chief Executive Officer of Centrelink[2015] FCAFC 75 (Collier, Griffiths, and Mortimer JJ). The applicant described the interlocutory application before the Registrar and then the Review of Registrar's Decision on discovery as "unmeritorious", and pointed to aspects of one of the affidavits in support of the application for vacation of the hearing date by one of the respondents' solicitors as being replete with conscious choices not to provide all of the information which this Court would need to determine whether to vacate the trial date, such as the number of lay witnesses, whether work had commenced on the respondents' lay evidence before now, and what the names of those witnesses were.
The applicant describes the timing of the estimates for the provision of the respondents' lay evidence (12 weeks) and the expert evidence, somewhat longer, to be conveniently close to the hearing with no explanation of what had been done in the meantime. The applicant notes that, while there had been delays in providing its evidence, the respondents could and should have been working on reply evidence to the four lay affidavits served on 30 April 2025, and to the IT expert's report which was served in May 2025. It submits that there is no explanation as to why this did not happen. And, it says, if the delay was so egregious and the time so short, the application to vacate the trial should have been brought well before the end of June.
The respondents submit that the applicant has failed to comply with any of the orders, except for the provision of four affidavits by lay "non-quantum" witnesses by 30 April 2025, in accordance with my orders of 17 April 2025. The defaults as to the expert evidence, it is submitted, have not been explained. As noted above, Mr Ross' evidence was only served last week, and the orders for its service have been in default since the orders of Yates J of 5 February 2024 required it to be served by 28 June 2024. On that view, it is nearly a year late.
The meat of the respondents' case is that they cannot be ready for the hearing in September.
I have referred to the applicant's analysis of what it calls "an extraordinarily protracted discovery process". Discovery has involved 19 tranches and the repeated need for the applicant to approach the Court to compel the respondents to give what they say is proper discovery, and a delay in the bringing of an application to vacate the trial date (the applicant saying it should have been brought on or around 17 August when the respondents were aware that it would have difficulties providing the evidence in response to Mr Ross' report in time for the trial). Mr Williams, solicitor for the applicant, sets out in his affidavit a timetable of what he says are discovery failures which more than explain the lateness of Mr Ross' evidence. He notes that "over half (sic) of all the Respondents' discovery (75,800 of 16,442 documents) were produced after [8 November 2024]. Documents were still being produced by the Respondents from February to May 2025".
Mr Williams says that "the Applicant has consistently maintained in the proceedings that discovery had to be completed before it filed its evidence and each timetable for evidence provided for this to occur". That is not exactly the case, given that the 26 September 2024 orders provide for further evidence by the applicant four weeks after discovery had been completed as noted above, and the 17 April 2025 order does not make any provision for further discovery prior to lodgement of evidence.
It is true, as contended for by the applicant, that discovery has been protracted. It is also true that it has now served a significant expert forensic accountant's report in two tranches (the first being 76 pages with seven appendices, the second being 112 pages with eight appendices), the second tranche being served just last week.
I note that the trial date was set down, on a timetable, with the applicant's evidence being completed in chief by mid-December last year.
[2]
I turn now to the authorities cited to me by each of the parties. Each side referred me to Aon RiskServices Australia Ltd v Australian National University(2009) 239 CLR 175; [2009] HCA 27[; the respondents noting the focus of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [93] on the need for a timely and cost-effective resolution of a dispute, and the applicant on the factors (at [30] (French J) and [103]-[114] (plurality)) to be taken into account in considering vacation of a hearing:
[3]
(a) whether there is a satisfactory explanation for the adjournment sought;
(b) the party's choices to date in the litigation (and the consequences of those choices); and
(c) the detriment to other parties and to other litigants in the Court.
[4]
The respondents refers me to Cement AustraliaPty Ltd v Australian Competition and Consumer Commission(2010) 187 FCR 261; [2010] FCAFC 101 (Keane CJ, Gilmour and Logan JJ) and Birla Mt Gordon Pty Ltd v Miccon Hire Pty Ltd[2013] QCA 363 (Morrison JA, with Holmes JA and Boddice J agreeing) to underscore that "the paramount purpose [of case management orders] must still be a just resolution of the controversy between the parties" (at [86]). The applicant relies on a statement of the Full Court in Jarrett v Westpac Banking Corporation[1999] FCA 425 (Heerey, Carr and Mansfield JJ) at [6], as follows:
[5]
The vacating of a trial date which has been fixed, by consent of the parties, well in advance, is a serious step. Parties and their witnesses, solicitors and counsel and the Court itself make important commitments based on the assumption that the trial date will be honoured. And, as practical experience of litigation shows, the approach of a fixed trial date is a powerful incentive to realistic negotiations and possible settlement, all of which is in the public interest.
[6]
A consideration of all of these authorities leads me to conclude that the decision as to a vacation of a trial date must accommodate not only the parties but the Court and the needs of the administration of justice.
[7]
The outcome of Aon Risk was that the sought amendment and consequent vacation was rejected; that happened during the course of a trial. The fact that there are two months to go before this trial is not determinative either way. As noted by the Full Court in Cement Australia, "Aon Risk is not a one size fits all case" (at [51]). The weight to be given to the various factors listed in Aon Risk may vary depending on the facts in the individual case.
Here, there are issues on both sides. The applicant has been dilatory and offers no other explanation by pointing to discovery not being completed; but clearly this is not the whole story. The respondents say that the lateness of evidence means it cannot meet the trial date, but they have not, it seems, been as forthcoming with discovery as they could have been, and nor have they said that they have commenced work on the response to the lay evidence.
I do not, however, agree with the applicant, on the evidence before me, that the faults of the respondents have been deliberate or have been aimed at a delay of the hearing. That submission is based on inferences from the fairly robust way in which these proceedings have been conducted and from the submissions and evidence as to the perceived lacunae in the affidavits of the solicitors for the respondents explaining the delay. I do not agree that there is no explanation, although it could have been more thoroughly detailed. The fierce debate on the Review of Registrar's Decision issue was finely balanced, and I cannot agree with the applicant that it was an unmeritorious application; a party has a right to seek to review a decision, and that decision was certainly not an obvious or an easy one for me. There is simply not any direct evidence of bad faith which would compel me to take the view that the respondents were not acting in accordance with their professional obligations, as set out in s 37M of the Federal Court of Australia Act 1976 (Cth).
My main concern is that these proceedings be determined as soon as possible, but with each party having the opportunity to bring their best case properly prepared. It is not consistent with the objections of section 37M, in particular, the "just resolution of ... proceedings before the Court" in sub-s (2)(a), which requires that the respondents have the time it needs to reply to the expert evidence of Mr Ross. It is inconceivable that a proper response to a weighty forensic accountant's report could take only two or three weeks. The applicant says that the forensic accountant retained by the respondents should be able to do that, and their reasons for not being able to provide a report before September do not stand up to scrutiny; I disagree. That argument may have more force had there been only one missed deadline, but there have been many, and it was reasonably foreseeable that an expert retained to answer a report due in mid- or late- 2024 may have other commitments in the coming two months.
The trial date was, it should be recalled, set down with the timetable that the applicant's evidence, including expert reports, be complete (subject to any supplementation by reference to discovered documents) by 13 December 2024. That has not occurred until last week. It is not to the point to say that some of the extensions to the timetable were agreed to; often the timetables were agreed after the fact of the extension and with an air of inevitability as to the need for an extension of time. In the circumstances, the interests of justice require that the hearing on 1 September 2025 be vacated.
I will stand the matter over to a case management hearing on 4 July 2025, or a date reasonably close to that, which is convenient to counsel. The parties should concentrate their respective minds on the steps which need to be timetabled (noting that, apart from the respondents' position that the applicant should seek leave to amend and the applicant's resistance to that course, the parties are generally on the same page), the question of whether liability can be separated from quantum, or lay evidence from expert, and the timeframes which would allow, it is to be hoped for at least part of the hearing to be commenced in 2025.
In the meantime, my Associate will correspond with the parties as to possible dates, and the Court will make orders for what is hoped to be a final timetable on the next case management hearing, unless those orders can be agreed and the orders can be made by consent in Chambers.
My preliminary view is that the applicant should pay the respondents costs of the interlocutory application, as agreed or taxed, with any application for a different cost order to that order to be foreshadowed at the next case management hearing.
I will reserve the question of any costs thrown away in relation to the vacated hearing.
[8]
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.
Parties
Applicant/Plaintiff:
BCI Media Group Pty Ltd
Respondent/Defendant:
CoreLogic Australia Pty Ltd
Legislation Cited (2)
Court of Australia Act 1976
Court Rules 2011
Cases Cited (3)
In these reasons, I refer to my reasons for judgment given on 12 June 2025, dismissing an application filed by the respondents by way of interlocutory application for a review of a decision of a Registrar (BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd(Review of Registrar's Decision)[2025] FCA 616). I will use the defined terms in that judgment in these reasons, and I refer to my summary of the proceedings in [7], [8] and [9] of the Review of Registrar's Decision for the background to this matter now before the Court.
The dispute between the parties commenced in 2020 with a contested preliminary discovery application, and these proceedings were then commenced in 2021. Justice Yates gave two decisions relating to the pleadings in 2022 and 2023 (BCI Media Pty Ltd v CoreLogic Australia Pty Ltd[2022] FCA 1128 and BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (No 2)[2023] FCA 664). Once the pleadings were finalised with the Amended Statement of Claim (ASOC), being filed on 29 February 2024, (the Defence predating the ASOC and bearing a filing date of 22 December 2023), his Honour then made orders on 5 February 2024 that discovery be given in particular categories, noting that any disputes as to discovery should be listed before him. His Honour also ordered that the applicant file and serve its evidence-in-chief by way of affidavit, and any expert report(s) upon which it intended to rely, by 28 June 2024. The orders made consequential timetabling orders for the respondents, and for the applicant in reply, to file their evidence. The applicant did not comply with those orders. There is no explanation before me as to why it did not, other than the contentious issue of discovery (as to which more, later).
The matter was allocated to my docket, and it was listed for a case management hearing on 26 September 2024. The timetabling orders of 5 February 2024 were vacated, and I made orders that the applicant file its lay evidence-in-chief by 8 November 2024, with the lay evidence timetable to finalise with lay evidence in reply by 29 March 2025. I ordered that: