Dig It Landscapes Pty Ltd (in liq) v Bupa Aged Care Australia Pty Ltd

JACKSON J: 1 In this proceeding, the applicant, Dig It Landscapes Pty Ltd (Dig It), makes claims against the respondent, Bupa Aged Care Australia Pty Ltd (Bupa), in respect of causes of action in misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law (Competition and Consumer Act 2010 (Cth) Schedule 2) and breach of contract. The dispute relates to a project to build a residential aged care facility in the Australian Capital Territory where the applicant was engaged as a subcontractor by the builder to perform landscaping and, eventually, civil works on the project. 2 Dig It is now in liquidation, as is the builder, Denham Constructions Pty Ltd (Denham) and related company, Denham Constructions Project Company 940 Pty Ltd (PC 940), which was the entity that contracted with Dig It. Dig It claims that it has not been paid for work it did in respect of the project to a value of approximately $550,000. In broad terms, the misleading conduct claim is to the effect that during the course of the project, at a meeting held on 27 March 2015, Bupa made representations that led Dig It to believe that Bupa would pay it, or ensure that it would be paid, for work that it was yet to do, and that on the faith of those representations Dig It proceeded to do the work, for which it has not been paid. 3 The particular matters said to have been conveyed by the alleged misleading or deceptive conduct of Bupa are as follows (the alleged representations - para 47 of the applicant's opening outline of written submissions, footnotes omitted): (a) the respondent would no longer rely upon statutory declarations from the Builder confirming [sic] that it would rely upon funds transfers and recipient created tax invoices to confirm that subcontractors had in fact been paid; (b) if the Builder defaulted on providing recipient created tax invoices to subcontractors within four days of receipt of funds from the respondent that it would, or was able to, make payment to subcontractors directly; and (c) the respondent would, or was able to, where necessary, have recourse to the Builder's security under the head contract together with a further security sum of $750,000 provided by the Builder to pay the subcontractors. 4 Some of these alleged representations refer to contractual arrangements that Bupa and Denham had in place after they entered into a deed dated 23 March 2015 modifying relevant rights and obligations about payment of subcontractors, which the parties at trial have called the Payment Deed. 5 Bupa denies that the alleged representations were made. It is elementary to note that if, contrary to that denial, the court finds that Bupa did convey the alleged representations by its conduct, the question will then arise whether they were misleading or deceptive or likely to mislead or deceive. Only then will s 18 of the Australian Consumer Law have been contravened. 6 In opening submissions, a dispute emerged about Dig It's pleading as to this element of the cause of action. It arose because Dig It's current pleading, which is an amended statement of claim (ASOC) filed 18 February 2021, does not expressly say why the alleged representations were misleading or deceptive. Putting it another way, the pleading does not expressly identify any material facts which, if established, would mean that the representations were misleading or deceptive or likely to mislead or deceive. The paragraph most directly relevant to the issue, ASOC para 29, simply says that the representations: … c. were misleading or deceptive or likely to mislead or deceive Dig It; and d. were therefore misleading or deceptive within the meaning of section 18 Australian Consumer Law and thereby contravened Chapter 2 of the Australian Consumer Law. There are no particulars of these allegations, and the amended statement of claim does not say why the representations were misleading or deceptive or what facts render them so. 7 In the course of oral submissions on the first day of trial, it emerged that Dig It intended to present a case to the effect that the alleged representations were misleading and deceptive when they were made because Bupa had no reasonable grounds for making them at that time (although, as I will shortly explain, Dig It submits that its intention to advance that case became apparent slightly earlier than the first day of trial). Dig It wishes to rely in that regard on s 4 of the Australian Consumer Law, which concerns misleading representations with respect to future matters. 8 Neither the case that there was no reasonable basis for the representations, nor Dig It's reliance on s 4, are stated in the ASOC. But by minute of orders and minute of further amended statement of claim submitted this morning, Dig It has applied to amend para 29(c) of the ASOC so that it would say that the alleged representations: … c. were misleading or deceptive or likely to mislead or deceive Dig It and were made without a reasonable basis such that section 4 of the Australian Consumer Law applies to them 9 Queen's Counsel for Dig It, Mr Matthews, submitted that this would merely be a clarification of what was already inherent in the case set out in the ASOC. His primary submission was that the allegations in the proposed amendment did not need to be stated expressly in his client's pleading. He submitted that it was tolerably clear from what was pleaded that the alleged representations were as to future matters. He submitted that Bupa was on notice that this was 'a reasonable grounds case', because of certain paragraphs of the affidavit of Mr Timothy Tait sworn 7 September 2020, the sole witness to be called on behalf of Bupa, who was at the relevant time Head of Property Development at Bupa. That is said to be because Mr Tait deposes to matters concerning Bupa's return of three performance bonds given by CGU Insurance Limited to Bupa as security for Denham's performance under the construction contract. Mr Matthews further submitted that it was not necessary to plead s 4 of the Australian Consumer Law, as it is merely an evidentiary provision that reverses the onus of proof. He also submitted that there was no further evidence that Bupa could have led anyway, had it been on notice sooner that Dig It's case was that there were no reasonable grounds for making the alleged representations. 10 As I have mentioned, Dig It further submits that Bupa has been on notice of that case, and of Dig It's intended reliance on s 4 of the Australian Consumer Law, at least from the time that Bupa filed its written outline of opening submissions. That is because those submissions refer to the nature of the case that Dig It now appears to be advancing in response to Dig It's outline of opening submissions. Mr Matthews also relied on the reference, in the list of authorities filed by the parties, to a case of Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 which, he says, should have drawn the respondent's attention to the nature of the allegation that was going to be made. 11 I do not accept the above submissions. Dig It's case as to why the alleged representations were misleading or deceptive is not at all clear from the ASOC. It is still not clear after opening submissions and would not be clear if the proposed amendment were allowed. Dig It was required to notify Bupa of its reliance on s 4 of the Australian Consumer Law. In fact, it did not do so until its oral opening submissions. That, and the broader lack of clarity as to why the alleged representations are said to be misleading or deceptive, have denied Bupa the opportunity to gather and potentially adduce relevant evidence in its defence. It would be procedurally unfair to Bupa to permit Dig It's case to proceed on the basis that Bupa did not have reasonable grounds to make the alleged representations. I will now explain why I have reached these conclusions. 12 First, in respect of two of the alleged representations, it is not clear that they are as to future matters. I have already set the alleged representations out. The second and third of them are framed in the pleading as being representations about 'the effect' of the Payment Deed: see para 18(b)(ii) and (iii) of the ASOC. The ordinary meaning of this is that they were representations about what the deed permitted or required the parties to do. That is a matter of present fact or law. They are both representations that Bupa 'would, or was able to' make payment to subcontractors directly or have recourse to securities (emphasis added). To say that the effect of the Payment Deed is that Bupa would do something suggests that it was required to do it by the Payment Deed, and when that is taken together with the italicised words, that is, 'was able to', it conveys no more than that, under the deed, Bupa had the power to pay the subcontractors directly. 13 Even if other interpretations of these pleas are open, they are at least ambiguous. While it is necessary to bear in mind the robust approach to the interpretation of pleadings that is mandated by contemporary case management principles (see Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 at [4]-[8]) I do not consider that these pleas put Bupa fairly on notice that two of the alleged representations were representations with respect to future matters. 14 For completeness, I note that the first of the alleged representations I have outlined is pleaded in a further subparagraph of the ASOC, para 18(b)(xvii), which alleges that Bupa represented that it would no longer rely on statutory declarations as to payment of subcontractors, but would rely on recipient created tax invoices and fund transfers. I accept it is clear that this is alleged to be a representation with respect to future matters. It is about what Bupa would do in future. 15 But even if I were disposed to find that all of the alleged representations had been clearly pleaded as representations with respect to future matters, that would not be enough. It would still be necessary for Dig It to say why the alleged representations were misleading or deceptive at the time they were made. It does not follow from their (assumed) character as representations in respect of future matters that Dig It must be alleging that there were no reasonable grounds for making them. There is an infinite variety of ways in which conduct can be misleading or deceptive, and it should not be taken that there are closed categories. 16 There are at least two well recognised ways in which representations to future matters can be misleading or deceptive. They emerge from the following passage from Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88: The non-fulfilment of a promise when the time for performance arrives does not of itself establish that the promisor did not intend to perform it when it was made or that the promisor's intention lacked any, or any adequate, foundation. Similarly, that a prediction proves inaccurate does not of itself establish that the maker of the prediction did not believe that it would eventuate or that the belief lacked any, or any adequate, foundation. Likewise, the incorrectness of an opinion (assuming that can be established) does not of itself establish that the opinion was not held by the person who expressed it or that it lacked any, or any adequate, foundation. 17 Here, Dig It claims that the alleged representations were promissory in nature. So they could have been misleading because Bupa had no intention to fulfil them, or they could have been misleading because Bupa had no reasonable grounds to think that they could or would be fulfilled. Bupa was entitled to know whether either or both of these were alleged (or, conceivably, whether the misleading nature of the alleged representations was put on some other basis). Dig It's pleading is deficient because it does not say why the alleged representations were misleading, leaving Bupa without prior notice of the case to be put against it in that regard. Even in relation to the first alleged representation, concerning the evidence of payment of subcontractors on which Bupa would rely in future, there is no hint in the ASOC of an allegation that there were no reasonable grounds for making the representation, nor can the basis upon which that is now asserted be discerned from the pleading. That is, why it was not reasonable for Bupa to say that it would in future rely on different evidence about payment is entirely unclear. 18 So with one qualification, I do not accept that the ASOC puts Bupa fairly on notice of the case now sought to be made against it that it had no reasonable grounds to make the alleged representations. The qualification is that the ASOC does allege (at para 18(b)(xvi)(9)) that by not correcting (unspecified) untrue representations or impressions, Bupa misled or deceived the subcontractors about the operation or effect of the Payment Deed. While the ASOC does not say why the alleged misrepresentations misstated the effect of the Payment Deed, it was open to Bupa to seek particulars of that, and it did not. It cannot now assert that it has suffered any prejudice as a result. The argument is a legal one about the effect of the Payment Deed. I will permit Dig It to advance a case based on any alleged inconsistency between the alleged representation and the terms and proper construction of the Payment Deed. 19 As I have said, Dig It seeks to rely on s 4 of the Australian Consumer Law to help to establish its (unpleaded) case that there were no reasonable grounds for the alleged representations. It was required to put Bupa on notice of that too. Section 4 provides as follows: Misleading representations with respect to future matters (1) If: (a) a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and (b) the person does not have reasonable grounds for making the representation; the representation is taken, for the purposes of this Schedule, to be misleading. (2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by: (a) a party to the proceeding; or (b) any other person; the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary. (3) To avoid doubt, subsection (2) does not: (a) have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or (b) have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation. (4) Subsection (1) does not limit by implication the meaning of a reference in this Schedule to: (a) a misleading representation; or (b) a representation that is misleading in a material particular; or (c) conduct that is misleading or is likely or liable to mislead; and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation. 20 In relation to the obligation to plead reliance on this provision, Dig It relied on the following passage from the judgment of Sheppard and Neaves JJ in Cummings v Lewis (1993) 41 FCR 559 at 567-568 concerning antecedent provisions: The discussion into which we have entered has saved us the need to express a view in relation to the question whether s 41 of the Fair Trading Act (or s 51A of the Trade Practices Act) needs to be specifically pleaded or raised in order for it to be relied upon. In Western Australia v Bond Corporation Holdings Ltd [(1990) 99 ALR 125;] [1991] ATPR [41-081] French J said (at [ALR 129; ATPR] 52,279) that a party invoking s 51A should make it clear that it is doing so. In that way a respondent will know that, if the representation was made, it will have the burden of showing and must plead, that it had reasonable grounds for making it. His Honour said that the duty of an applicant to make it clear that s 51A was invoked was discharged if it pleaded that the respondent did not have reasonable grounds for making the representation and that it was thereby misleading or deceptive. We would wish to leave open, until the question more directly arises, the correctness of these views. Our provisional view is that s 51A of the Trade Practices Act and its counterparts such as s 41 of the Fair Trading Act, are evidentiary provisions, not directed at what a party must plead. The rules of the court in relation to pleading require the pleading to contain, and only contain, a statement in a summary form of the material facts on which a party relies: see O 11, r 2. The cause of action which is relied upon is a cause of action for breach of s 52 (or s 42). Sections such as s 51A are designed to facilitate proof. They affect the onus of proof but they are not part of the law which provides for the cause of action for which sections such as s 52 provide. We think there is a real question whether there is any requirement that there needs to be specific reference to the section in a pleading or the adoption of words which it uses. However, the matter does not in our opinion arise for consideration here and we express no concluded view about it. 21 These views were expressed tentatively, leaving the question open. Since then, the question has been closed, and in a manner inconsistent with these tentative views. A Full Court ruled on the question in O'Neill v Medical Benefits Fund of Australia Ltd [2002] FCAFC 188; (2002) 122 FCR 455 as follows (at [15]-[16]), by quoting with evident approval Drummond J's summary of the state of the authorities in Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 819: There is some diversity of view within the Federal Court about whether, and the way in which, a party seeking to derive the benefit of s 51A must inform the opposing parties that the section will be relied on. One view is the tentative view of Sheppard and Neaves JJ in Cummings v Lewis (1993) 41 FCR 559 at 567-568 in the passage quoted by counsel for Mr O'Neill set out at [12] above. The matter has been considered in several judgments since and the authorities are conveniently set out by Drummond J in Australian Competition & Consumer Commission v IMB Group Pty Ltd [1999] FCA 819 [at [19]-[21]]. His Honour said: In my opinion, even if it be the position that an applicant is not required by O 11 r 2 to plead reliance on s 51A, as was suggested in Cummings v Lewis, that does not free it of the obligation to indicate, by way of particulars given in accordance with O 12 r 1, its intention to rely on that provision. Notwithstanding what was said in Cummings v Lewis, a number of judges of this Court have been of the opinion that where a party wishes to rely upon s 51A, it must give a clear indication of that to its opponent. See [Western Australia v] Bond Corporation [Holdings Ltd (1990) 99 ALR 125; [1991] ATPR 41-081] per French J, Phoenix Court v Melbourne Central Pty Ltd (unreported, 22 October 1997) per Goldberg J and Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-633 per Foster J. I agree with this approach. The next question is whether the Commission in pars 20 and 35 of its consolidated pleading sufficiently alerted the respondents of its intention to rely upon this section. While I agree with French J, in the Bond Corporation case, that a party who invokes s 51A should make it clear to the other party that it is doing so, I respectfully disagree that the duty of the applicant to make clear that it invokes s 51A is discharged 'if it pleads that the respondent did not have reasonable grounds for making the representation and that it was thereby misleading or deceptive'. In my opinion, while an experienced lawyer might read more into it, that in terms does nothing more than invoke sub-section (1) of the section, which is declaratory of the common law and which, if alone relied on, leaves the burden of proof of the absence of reasonable grounds on the applicant who alleges it. See Ting v Blanche [(1993) 118 ALR 543] at 552 and Phipson on Evidence, 14th ed, par 4-05, particularly at note 28. It is true, as Goldberg J observed in Phoenix Court, that, by force of O 11 r 5, a party need not plead a fact if the burden of disproving the fact lies on the other party. But, as a matter of construction, s 51A cannot, in my opinion, be read as establishing that the only way of showing a predictive representation is not misleading is for the representor to prove that it had reasonable grounds for the prediction: a representee can, if it chooses, accept the full burden of proving the absence of reasonable grounds for such a representation. It will, in my opinion, do that if it pleads no more than that representation as to a future matter was made without reasonable grounds and was therefore misleading. It is s 51A(2) which must be invoked if an applicant wishes to reverse the burden of proof. However, I agree with French J that this can be sufficiently done by an express reference to reliance upon s 51A. As his Honour observes, this approach is probably logically more consistent with the structure of the section. We are prepared to accept that in a case such as the present MBF was entitled to know, as a matter of procedural fairness, that s 51A was relied on either expressly or by clear implication. It is unnecessary to address the question of whether it needed to be pleaded in this case particularly having regard to the comparative informality created by the legislative scheme governing the Federal Magistrates Court including its Rules. 22 So while it may not have been necessary to plead reliance on s 4 of the Australian Consumer Law as such, Bupa was entitled to be put on notice of that reliance in some way. In SPAR Licensing Pty Ltd v MIS QLD Pty Ltd [2014] FCAFC 50 at [76]-[77], Foster J came to an even stronger conclusion, partly in reliance on O'Neill: In this Court, there is authority for the proposition that a party who wishes to rely upon s 51A ought specifically plead that it intends to rely upon that provision or ought at least to notify the counter-party that it intends to rely upon that provision (see O'Neill v Medical Benefits Fund of Australia Ltd (2002) 122 FCR 455[; [2002] FCAFC 188] at 461-463 [15]-[21]). Only in that way can the counter-party be placed on fair notice that it is required to adduce '… evidence to the contrary …' (see s 51A(2)) if it is to avoid the deeming effect of s 51A(2). In my view, a party who wishes to rely upon s 51A (or its equivalent in the Australian Consumer Law) should specifically plead its intention to do so in the first pleading where it is appropriate to do so. Although not bearing any ultimate onus of proof on the issue of reasonable grounds, the counter-party ought then be required to plead that it had reasonable grounds for making the relevant statement and to specify with particularity the nature of those grounds and, by way of particulars, the substance of the evidence it intends to adduce to establish those grounds. 23 However, Dig It relied on a paragraph in O'Neill (at [17]) which immediately follows those I have quoted: The statement of claim does not, in terms, refer to s 51A nor does it clearly raise by implication that the section would be relied upon. However it is tolerably clear that pars 9(a) and (b) and the latter part of (c) concern, either in part or in whole, representations as to future matters. What the pleading does not contain is any allegation that MBF did not have reasonable grounds for making the representations. However that allegation was made in par 18 of the contentions of fact and law handed up by counsel for Mr O'Neill at the commencement of the hearing. Not only were the relevant elements of s 51A(1) identified (having regard to the case Mr O'Neill sought to put) but reference was made to Cummings v Lewis. It was accepted by counsel for Mr O'Neill in the appeal that the page in which Sheppard and Neaves JJ expressed their provisional conclusion was misdescribed. It was not page 295 of the Australian Law Reports but rather 294. However, in our view, when the contentions were provided a point was reached in the proceedings where counsel for Mr O'Neill was comparatively clearly raising the elements in s 51A which would bring into play s 51A(2). Moreover the reference to Cummings v Lewis ought reasonably have been taken by counsel for MBF as indicating that Mr O'Neill intended to gain the advantage of s 51A notwithstanding that the section had not been referred to in the statement of claim. 24 As this passage reveals, O'Neill had similarities to the present case, because there was no plea of a lack of reasonable grounds for the representations, and the applicant's reliance on s 51A of the Trade Practices Act 1974 (Cth) did not become evident until the start of the trial, or at least shortly before it. The Full Court found that this was adequate notice of the case, but its reasons for doing so reveal an important point of distinction (at [18]): Counsel for MBF in this appeal did not suggest that counsel for his client at the hearing then raised any objection. Rather he drew attention to the exchange in the transcript set out at [11] above where counsel for MBF noted that s 51A had not been pleaded. However counsel for Mr O'Neill made plain in the extract of the transcript of the proceedings before the Federal Magistrate set out in [12] above, that s 51A was relied on and it was unnecessary to have pleaded it. Again, counsel for MBF in this appeal did not suggest that this latter submission led to a complaint from counsel then appearing for MBF that it had been taken by surprise or would have run its case differently had it been aware that s 51A would be relied on. Indeed, as pointed out in this appeal, the approach adopted by MBF before the Federal Magistrate was to deny that the allegations had been made at all. That was the evidentiary case it ran. In our opinion, Mr O'Neill relied on s 51A and MBF was not denied the opportunity to conduct its case on the footing that Mr O'Neill did so. 25 Here, in contrast, counsel for Bupa has raised an objection. He claimed, in effect, that his client has been taken by surprise and has been denied the opportunity to conduct its case on the footing that s 4 of the Australian Consumer Law is relied on. 26 I consider that this complaint is well-founded. If it had been made clear to Bupa that the alleged representations were as to future matters and that Dig It relied on s 4 and lack of reasonable grounds, it would have had a proper opportunity to seek to adduce evidence that: it did have reasonable grounds to think that it could rely upon fund transfers and recipient created tax invoices to confirm that subcontractors had in fact been paid; that it could have made payment to subcontractors directly; and that it could have had recourse to the CGU performance bonds. 27 Those are, of course, the things Bupa is said to have represented that it would do or was able to do. They are all self-evidently matters that concern Bupa's affairs and its capacity to make certain things happen. As counsel for Bupa submitted, had his client been on notice of the case, it would have made inquiries about those matters, including searches for relevant documents. It would be procedurally unfair to Bupa to be required to meet the case now put without giving it those opportunities. 28 As I have outlined, Mr Matthews submitted, nevertheless, that Bupa had been on notice of the case from the time of Dig It's written opening submissions, or at least from the time of Bupa's written opening. However, while Dig It's written opening states expressly for the first time in the case that the respondent relies on a representation as to future matters, namely the alleged representations I have set out, there is still no reference to s 4 of the Australian Consumer Law and reliance on it. The relevant passage from Bupa's opening submissions acknowledges in reply that it is now being said that there were representations as to future matters, but does not evidence an understanding of the basis on which Dig It asserts that those representations were misleading or deceptive at the time that they were made. While there is a brief reference to s 4 and a lack of pleading of reliance on it by Dig It, the primary point of this passage from the submissions is to say that there is no basis pleaded as to why the alleged representations were misleading or deceptive. 29 I therefore do not accept that Bupa had advance notice before the opening of the trial of the nature of the case that was to be put against it in that regard. Even if I did accept that, providing notice of that case a few business days before the start of a trial (Dig It's opening was filed on 20 January 2022 and Bupa's on 25 January 2022) would not, in my view, have given adequate opportunity to Bupa to make the necessary inquiries and seek to adduce that evidence. Counsel for Bupa indicated that he had taken instructions overnight after the first day of the trial as to what evidence might be available, and had been unable to obtain clear instructions within that short time, for reasons which include that the events in question occurred some seven years ago and relevant personnel of Bupa had left. While this came from the bar table, it was not objected to, and, in the circumstances of urgency with which this application has been dealt, I will take it into account. But, in any event, as I have said it is self-evidently likely to be within Bupa's power to adduce evidence as to whether or not it had reasonable grounds to think, in March 2015, that it would be able to fulfil the alleged representations (assuming, for the moment, that those representations were, in fact, made). 30 The unfairness in this regard goes beyond Dig It's reliance on s 4 of the Australian Consumer Law. There is no real evidence as to Bupa's financial position and capabilities beyond what can be inferred from its position as an aged care provider which was constructing a 144 room facility in Canberra, but a witness called by Dig It, Mr Mann, referred to it as a 'billion-dollar company'. So even with the proposed amendment it would remain unclear to the Court, and, presumably, to Bupa, why it is said that Bupa had no reasonable grounds for thinking it could do the things it is alleged to have said it would do. 31 I do not accept that Mr Tait's affidavit shows that Bupa understood the case that was being made against it was that it did not have reasonable grounds to make the alleged representations. The passage relied upon (paras 37-43 of the affidavit) goes to events in September 2015 through to July 2016 which resulted in Bupa's decision to return the CGU securities to Denham. It does not go to Mr Tait's state of mind on 27 March 2015 when the alleged representations are said to have been made, or to any matters of fact capable of providing reasonable grounds for that state of mind at that time. I accept the submission of counsel for Bupa that the better inference is that Mr Tait refers to these subsequent events because the ASOC alleged that Bupa breached its alleged contractual obligations to Dig It by, among other things, releasing the CGU performance bonds. The evidence goes to what Bupa did in that regard and why. It is unlikely that the evidence about securities would have been confined to these later events if Bupa had understood Dig It to be advancing a case they had no reasonable grounds to make the alleged representations in March 2015. 32 For those reasons, I consider it would be procedurally unfair to Bupa to permit Dig It to advance a case at trial that Bupa did not have reasonable grounds to make the alleged representations at the time they were made, including a case that relies on s 4 of the Australian Consumer Law in that regard. I say that subject to the qualification I have already expressed, which is that Dig It can advance a case based on inconsistency with the terms of the Payment Deed. 33 It necessarily follows that the discretion as to whether to permit the amendment should be exercised so as to refuse it. A further reason for refusing it is that even if it were allowed, the reason why it is pleaded that the representations were made without a reasonable basis, beyond reliance on s 4 of the Australian Consumer Law, would remain obscure. 34 To that should be added the further discretionary reason that the proposed amendment comes very late, and to permit it would be contrary to well-known case management principles including those laid down in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [102]-[103], and inconsistent with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth). The evidence in this matter was completed in September 2020. Dig It filed the ASOC on 18 February 2021. The matter has been set down for hearing since 21 April 2021 with the current hearing dates having been set since 28 July 2021. Dig It has had ample opportunity to give Bupa notice of why it is said that the alleged representations were misleading or deceptive, and it counts against the exercise of the discretion in its favour that it is now seeking to do so during the trial and only after the problem was highlighted in exchanges between the bar and bench. 35 For those reasons, leave to amend para 29(c) of the ASOC to add the words set out above is refused. Dig It also sought leave to delete a different, contractual claim in the ASOC. That was not opposed and leave will be granted on the usual terms as to costs thrown away. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.

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