Business Travel Media Pty Ltd v M Media Group Pty Ltd

1. By 5pm on 5 May 2023, the applicant file an amended statement of claim.
2. The matter be stood over for a case management hearing at 9:30am on 17 May 2023.
3. The applicant pay the respondents' costs thrown away by reason of the amendment of the statement of claim. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Delivered ex tempore, revised from the transcript)

LEE J: 1 Before the Court is an originating application by which Business Travel Media Pty Ltd (BTM) seeks relief against GroupM Communications Pty Ltd (GroupM) and M Media Group Pty Ltd (M Media) (respondents). 2 By way of background, BTM operates a travel information website, and contracts with advertising and media companies to promote products and services on its website for a fee. The respondents are part of an "affiliate network" of companies involved in various communications, advertising and other media-related activities. 3 For reasons which will become apparent, the metes and bounds of BTM's case are far from clear. As far as I can see, it is alleged the parties had an arrangement whereby the respondents would provide promotional material for American Express products and services to BTM, which BTM would publish on its website. The controversy concerns whether BTM was entitled to receive so-called "cross-conversion fees" from the respondents for successful "click throughs" from BTM's website to another page where the visitor was able to sign up for American Express products and services. 4 This afternoon, I conducted the second case management hearing in this matter. Regrettably, little progress has been made since the first case management hearing. 5 At the first case management hearing, I raised a number of issues in relation to the nature of the relief sought by BTM in its concise statement. Despite there being what appears to be a conceptually straightforward contract case, BTM not only claimed damages for breach of contract, but also sought relief arising from an allegation of unjust enrichment and statutory compensation for misleading and deceptive conduct pursuant to the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)) (ACL). I expressed to the parties that the connexion between the misleading and deceptive conduct claim and the contract claim, and the utility of the misleading and deceptive conduct case more generally, was entirely unclear. Even less pellucid was the unorthodox unjust enrichment claim, which seemed to be a furphy. 6 I required BTM to file a statement of claim prior to the second case management hearing, which identified its case with precision. The orders made also contemplated, consistently with the overarching purpose of civil litigation in this Court, that the Court would ready the matter for hearing by dealing with all outstanding interlocutory matters today, including security for costs, standard discovery and the provision of evidence. 7 Unfortunately, I was unable to deal with those matters this afternoon, as the statement of claim filed by BTM suffers from many of the same defects as the concise statement. In brief, BTM seeks a smorgasbord of relief for breach of contract, misleading and deceptive conduct and unconscionable conduct within the meaning of s 21 of the ACL. 8 Before explaining the nature of those defects, it is well to reiterate two points. 9 First, the paramount consideration in considering a pleading of a claim is that the process is a mechanism for providing the opposing party with procedural fairness; the respondents must know the nature of the case they are required to meet. A fair trial involving allegations of contravention of law requires the party making those allegations "to identify the case which it seeks to make and to do that clearly and distinctly": Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 (at 502 [25] per French CJ, Gummow, Hayne and Kiefel JJ). 10 The second matter is to repeat a point I have made countless times elsewhere, and which I emphasised to the parties on both occasions: Pt VB of the Federal Court of Australia Act 1976 (Cth) does not contain empty rhetoric. There is a statutory duty on practitioners to assist their clients in facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (see s 37N(2)), including ensuring cases are pleaded with care and causes of action are not thrown into the mix that are unnecessary. Why include a discrete, peripheral claim if there is no universe where that peripheral claim would be successful even if the primary and simpler claim is unsuccessful? 11 It is, of course, not the Court's place to make a party's case for them. But four short points may be made as to the shortcomings of BTM's statement of claim, a number of which were identified by the respondents in a letter to BTM's solicitors on 13 March 2023. 12 First, BTM does not explain the interrelationship between the distinct causes of action pleaded. The breach of contract, misleading and deceptive conduct and unconscionable conduct cases are pursued in tandem rather than in the alternative. I cannot see how BTM would have a claim for statutory compensation if it is successful in its contract claim. As far as I can see, there is a suggestion that the parties entered into a contract in 2015, after which there were various dealings which may have had contractual effect. It is also suggested that certain representations were made by the respondents, forming the basis upon which the parties entered into subsequent contractual arrangements. Alternatively, the representations constituted conduct alleged to have contravened the ACL, upon which BTM relied to its detriment. As I remarked on both occasions, this is either a contract case, or it is not: the statement of claim should be amended to reflect as much. 13 Secondly, the statement of claim makes no direct reference to the agreement BTM apparently sues upon. Obviously enough, this is a gaping hole in BTM's contract claim. It is said (at [16]) that "[i]n or around May 2015, BTM and M Media agreed through a series of email communications that BTM would provide services to M Media for AMEX", but no detail is provided and no particulars are given. The phrase "[p]ursuant to the parties' agreement" is deployed at numerous points (see, for example, [19], [23]) without further elaboration. Presently, the document or documents containing the agreement are not described such that the respondents can identify them and formulate a defence. 14 Thirdly, the loss and damage said to have been occasioned by the alleged misleading and deceptive conduct is unclear. BTM is required to plead all material facts (including any counterfactual) upon which it relies to establish the causal link between the asserted loss or damage and misleading or deceptive conduct: Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151 (at 190 [72] per Gageler and Edelman JJ). At present, the statement of claim (at [56]-[73]) does little more than repeat the language of the ACL. 15 Fourthly, at the risk of repetition, BTM's newly added unconscionable conduct claim appears to me to be surplusage. The conduct said to be contrary to conscience is not explained, nor is the loss allegedly caused by it (see, in particular, [74] and [80]). 16 For these reasons, I will make orders directing BTM to file an amended statement of claim. Additionally, I will make an order that BTM pay the respondents' costs thrown away by reason of the amendment to the statement of claim. The order made today is an indulgence given to BTM, to ensure the case it proposes to advance is made coherently, and in a way which provides procedural fairness to the respondents. If the next iteration of the statement of claim suffers from the same flaws, then a question may well arise as to whether it would be appropriate to allow BTM a further opportunity to re-plead. 17 Finally, there is an outstanding issue as to security for costs. I have already made orders providing for a first tranche of security for the respondents' costs in the amount of $10,000. The parties agree that the provision of a further amount of security is appropriate. I will be in a much better position to judge what amount should be paid when I have a firmer view as to the precise case being advanced by BTM, and the likely issues in dispute. I will say, in my preliminary view, security in the order of almost a quarter of a million dollars as sought by the respondents seems excessive given the nature of the allegations made (to the extent I presently understand them). I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.