Plaintiff v Defendants

Principles and Observations - Strike out, stay, and summary judgment applications 6

Pleadings and r 23.02 strike out applications - principles and observations 6

Stay of proceedings under r 23.01 - principles and observations 12

Part A: Paragraphs 12, 16, 19, 29, 30, 31, 32, 33, 34 and 36 of the Third FASOC - Stay/dismissal application under r 23.01, alternatively, summary judgment application under r 22.16 and ss 62 and 63 of the CPA 20

Part A.1 - The paragraphs the subject of the challenge 20

A.4.2 Further observations regarding the pleading of the Telstra Revenue Claims 26

A.4.3 Disposition of the r 23.01 and summary judgment applications 32

Part B: Paragraphs 12, 16, 19, 29, 30, 31, 32, 33, 34 and 36 of the Third FASOC - Strike out application under r 23.02 of the Rules 36

Part B.1 - The paragraphs the subject of the challenge 36

Part C: Paragraph 46 - Request for further particulars of each reference to 'dealer' in the 2008 Master Agreement and 2008 Master Dealer Agreement relied upon by the plaintiff 44

Part D: Paragraph 49 - Stay application under r 23.01, alternatively, summary judgment application under r 22.16 of the Rules and ss 62 and 63 of the CPA 45

Part E: Paragraph 49 - Strike out application under r 23.02 of the Rules 46

Part F: Paragraphs 53A(b) and (c) of the Third FASOC - Strike out application under r 23.02 of the Rules 58

Part G: Paragraphs 58, 59, 60, 61, 65 and 66 of the Third FASOC - Strike out application under r 23.02 of the Rules 62

Part G.2 - Consideration - not necessary to determine 66

Part H: Paragraphs 120-124 of the Third FASOC - Strike out application under r 23.02 of the Rules 68

Part I: Alleged delay by the defendants in bringing the application 77

Part I.1 - Plaintiff's submissions 77

Part I.2 - Defendants' submissions 78

Part I.3 - Consideration 79

1 These reasons address an application by the defendants (defendants or Optus Entities) for orders staying or dismissing, alternatively giving summary judgment in respect of, or alternatively striking out, various claims made by the plaintiff (TeleChoice or plaintiff) against the defendants in this proceeding.

2 TeleChoice operated a national business providing mobile and internet services to individuals and businesses from retail outlets exclusively for products and services offered by the defendants under the business name 'TeleChoice'. The majority of TeleChoice outlets were operated by TeleChoice franchisees.

3 Optus first appointed TeleChoice as an 'Optus Premium Dealer' in 2001 and the appointment was renewed from 1 April 2005 for a period of three years. It was further renewed from 1 April 2008 for a period of five years pursuant to what has been alleged by the plaintiff in its third further amended statement of claim (Third FASOC) to be the 2008 Master Agreement, the 2008 Master Dealer Agreement, the First Side Letter, and the Second Side Letter[1] (Final Dealer Appointment).

4 In the lead up to the Final Dealer Appointment TeleChoice had been communicating with Telstra about the possibility of switching from Optus to become a Telstra dealer for Telstra's mobile and internet services from April 2008. This became known to the Optus Entities and discussions and other negotiations occurred between representatives of TeleChoice and the Optus Entities, ultimately resulting in TeleChoice remaining an Optus dealer for a further five years which TeleChoice says was pursuant to the alleged Final Dealer Appointment. What is alleged in the Third FASOC to be the 'Intended Telstra Appointment' was not further pursued by TeleChoice.

5 On 28 September 2012 the Optus Entities gave notice to TeleChoice terminating the 2008 Master Agreement and the 2008 Master Dealer Agreement with effect from March 2013 and the business relationship between them ceased from that time.

6 In this proceeding the plaintiff seeks to pursue substantial damages claims against the Optus Entities relating to the Final Dealer Appointment and alleged events leading up to it, including alleged communications between TeleChoice and the Optus Entities regarding the Intended Telstra Appointment, and Optus matching the amounts and benefits that TeleChoice alleges it would have received if it had pursued the Intended Telstra Appointment rather than the Final Dealer Appointment. The damages currently claimed by the plaintiff in the Third FASOC are alleged to exceed $100 million. The Optus Entities deny that they are liable to the plaintiff, as alleged or at all.

7 To date the proceeding has had a lengthy and somewhat complex procedural history, as is in part apparent from the chronology compiled by the parties, reproduced as Attachment 1 to these reasons (Procedural Chronology). The latest chapter in this procedural history is the application the subject of these reasons

8 By their summons filed on 1 March 2021 the defendants challenge various aspects of the plaintiff's claim, with the orders sought including stay orders, summary judgment on some claims, and orders striking out various parts of the Third FASOC. The relief sought was set out in a table in the defendants' written submissions as follows.

• An order pursuant to r 23.01, alternatively r 22.16 and s 62 of the Civil Procedure Act 2010 (Vic) that the claims made in these paragraphs be stayed on the basis that they are frivolous and an abuse of process or, alternatively, judgment be entered for the defendants dismissing the claims comprised in those paragraphs.
• Further and alternatively, an order pursuant to r 23.02 that these paragraphs and their particulars be struck out on the basis that they may prejudice, embarrass or delay the fair trial of the proceeding.

An order that the plaintiff provide further and better particulars of the references in the 2008 Master Agreement and the 2008 Master Dealer Agreement referred to in this paragraph.

• An order pursuant to r 23.01, alternatively r 22.16 and s 62 of the Civil Procedure Act 2010 (Vic) that, to the extent that paragraph 49 makes claims referable to dealer codes 00017, 00067, 00087, 14121, 39425, TM300, TM360 and 40434, those claims be stayed on the basis that they are frivolous and an abuse of process or, alternatively, judgment be entered for the defendants dismissing the claims comprised in that paragraph
• Further and alternatively, an order pursuant to r 23.02 that the particulars to paragraph 49 (other than the particulars at subparagraphs (b), (c) and (e), but including the words "Examples of Dealer Code Policy Breach Conduct include") be struck out on the basis that they may prejudice, embarrass or delay the fair trial of the proceeding.

An order pursuant to r 23.02 that these paragraphs and their particulars be struck out on the basis that they may prejudice, embarrass or delay the fair trial of the proceeding.

9 Each part of the application in the above table is addressed below in Parts A to I of the section of these reasons headed 'Defendants' Applications'.

10 There was also an opposed application before the court by the plaintiff for leave to amend the Third FASOC so as to include a further substantial damages claim for what in substance was described as an additional alleged underpayment of commissions claim in respect of commissions and other amounts said to have been not paid by the defendants during the term of the Final Dealer Appointment. Ultimately that leave application was not pursued at the hearing. This occurred because on the second day of the hearing the plaintiff informed the court that it proposes to pursue a broader application for leave to amend which has not yet been finalised, filed or served.[2] The court was informed that this broader application will now include but not be limited to the additional underpayment claim.

11 The defendants' application has succeeded in large part. For the reasons that follow:

(a) The defendants' application for orders staying, dismissing, or giving summary judgment in respect of, the claims the subject of paragraphs 12, 16, 19, 29, 30, 31, 32, 33, 34 and 36 of the Third FASOC should be refused.

(b) The defendants' alternative application to strike out the claims the subject of paragraphs 12, 16, 19, 29, 30, 31, 32, 33, 34 and 36 should largely succeed. At this point the particulars to paragraph 16, including 'Annexure A' and 'Sheet B' (referred to below), and to paragraphs 19, 30, 31, 33, 34 and 36, should be struck out. TeleChoice should have the opportunity to seek to reformulate its allegations regarding the alleged Telstra revenue and loss.

(c) It is not necessary to require that further particulars of paragraph 46 be provided and no order to that effect will be made.

(d) Given the concessions properly made by TeleChoice:

(i) Paragraph (d) of the particulars to paragraph 49 should be struck out.

(ii) The claims relating to dealer codes 00037, 00057, 00077, 00097, 39425, 00017, 00067, 00087, and 14121 in the particulars to paragraph 49 should be struck out.

(iii) No order is now sought, or should be made in any event, staying, dismissing, or giving judgment in respect of the remaining claims in the particulars to paragraph 49 regarding dealer codes TM300, TM350, TM360, TM900, 40434 and 40831 (Remaining Changed Codes).[3]

(iv) The claims in the particulars to paragraph 49 relating to the Remaining Changed Codes should not be struck out at this point.

(v) TeleChoice should be directed to provide a schedule of proper particulars of the customers the subject of the Remaining Changed Codes that a claim is being made in respect of and that it is currently able to identify, including such of the 203 additional customers (referred to later in these reasons) in respect of whom a claim is sought to be made.

(vi) Following the completion of such discovery or related processes as are agreed or directed, TeleChoice should be directed to provide an updated schedule of further particulars to paragraph 49 giving proper particulars of any additional customers in respect of whom a claim is made regarding the Remaining Changed Codes.

(vii) The reference to expert reports in the particulars to paragraph 49 should be struck out.

(e) Paragraphs 53A(b) and (c) should not be struck out. TeleChoice should be directed to provide further and better particulars of paragraph 53A(b) in the manner referred to in these reasons.

(f) Given the concessions properly made by TeleChoice, paragraphs 56, 57, 58, 59, 60, 61, 65 (in part), 66 and 67 should be struck out. This is without prejudice to TeleChoice's right to seek leave to further amend the Third FASOC so as to include properly pleaded claims of the character referred to in these paragraphs.

(g) Paragraphs 117 to 124 should be struck out. This is without prejudice to TeleChoice's right to seek leave to further amend the Third FASOC so as to include properly pleaded claims of the character referred to in these paragraphs.

(h) Any consequential amendments to the Third FASOC (including the prayer for relief) should be made to take into account the issues addressed and conclusions reached in these reasons.

12 The material relied upon by the parties was extensive, including many affidavits, nearly 2,000 pages of documents, plus voluminous lengthy sets of Excel spreadsheets said to relate to a range of different matters. The defendants relied on affidavits of their solicitors Mr James,[4] Mr McRostie,[5] Mr Mathie[6] and affidavits of the defendants' commission analyst, Mr Wong.[7] The plaintiff relied on several affidavits of its Chief Operating Officer, Ms Seifen.[8] Neither party sought to cross-examine any of the deponents.

13 Each of the parties filed written submissions, which were supplemented orally over a two-day hearing.

Principles and Observations - Strike out, stay, and summary judgment applications

14 There was no dispute between the parties regarding well-known principles and observations addressed in earlier cases regarding the function of pleadings, and stay, summary judgment, and strike out applications under rr 21.03, 22.16[9] and 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules). It is convenient to collect together and address relevant principles and observations regarding these matters before turning to each aspect of the defendants' application.

15 Given the varying applications it was and remained necessary to recognise that affidavit material is admissible in connection with the applications under s 62 of the Civil Procedure Act 2010 (Vic) (CPA) and rr 22.16 and 23.01 of the Rules, but is not admissible in relation to the strike out applications under r 23.02 of the Rules.[10]

Pleadings and r 23.02 strike out applications - principles and observations

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading -

(a) does not disclose a cause of action or defence;

(b) is scandalous, frivolous or vexatious;

(c) may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court -

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

17 Relevantly, paragraph (c) confers upon the Court a power to order that the whole or part of a pleading be struck out (or amended) if it may prejudice, embarrass or delay the fair trial of the proceeding. The Full Court in Meckiff v Simpson said of a predecessor to r 23.02(c):[11]

As is shown by numerous authorities on this Rule, which takes its place in an order dealing with pleadings generally, matter in a pleading will be struck out under this Rule only where there is some defect in the pleading attacked, eg where the pleading is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him. The Rule is one to ensure compliance with the rules of pleading and nothing else.

18 In Wheelahan v City of Casey (No 12) ('Wheelahan'), John Dixon J referred to the principles to be applied as follows:[12]

(a) Order 13 of the Rules set out the relevant requirements of a sufficient pleading while r 23.02 provides the grounds on which the sufficiency of a pleading may be impugned;

(b) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;[13]

(c) the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence).[14] The expression 'material facts' is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;[15]

(d) as a corollary, the pleading must be presented in an intelligible form - it must not be vague or ambiguous or inconsistent.[16] Thus a pleading is 'embarrassing' within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;

(e) the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;[17]

(f) pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 (Vic);[18]

(g) a pleading which contains unnecessary or irrelevant allegations may be embarrassing - for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;[19]

(h) it is not sufficient to simply plead a conclusion from unstated facts.[20] In this instance, the pleading is embarrassing;

(i) every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));

(j) the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or the conversation must not be pleaded unless the words are themselves material (r 13.03);[21]

(k) particulars are not intended to fill gaps in a deficient pleading. Rather, they are intended to meet a separate requirement - namely, to fill in the picture of the plaintiff's cause of action (or defendant's defence) with information sufficiently detailed to put the other party on guard as to the case that must be met.[22] An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried;[23]

(l) a pleading should not be so prolix that the opposite party is unable to ascertain with precision the cause of action and the material facts that are alleged against it;[24]

(m) extensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible;[25]

(n) in an application under r 23.02, the court will only look at the pleading itself and the documents referred to in the pleading;[26]

(o) the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown;[27] and

(p) if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.[28]

19 In Babcock & Brown DIF III Global Co-Investment Fund, LP v Babcock & Brown International Pty Ltd (No 2) ('Babcock & Brown (No 2)'),[29] Hargrave J referred to aspects of the principles set out in Wheelahan and added the following observation:

To this summary, I would add that the Court should consider the pleading under a challenge as a whole and adopt a partial case management approach to pleading objections, rather than accepting technical objections when the true nature of the case to be met is clear from reading the pleading as a whole and there is no embarrassment to filing a responsive pleading. Such an approach accords with the discretionary nature of the power to strike out and with the overarching purpose under the Civil Procedure Act. However, in cases alleging dishonesty or fraud, precise pleadings with full particulars are required.

20 The principles set out in Wheelahan and Babcock & Brown (No 2) were recently endorsed by the Court of Appeal in Uber Australia Pty Ltd v Andrianakis,[30] and Hargrave J's approach in Babcock & Brown (No 2) was also reinforced:[31]

[H]is Honour noted that, in considering pleading objections on the ground that the pleading is embarrassing, the Court should stand back and consider the pleading as a whole and in that light ask: does the case alleged give clear notice of the case to be met at trial?[32]

This modern approach to applications to strike out pleadings on the ground that they are embarrassing is reflected in this Court's decision in CA Ballan,[33] where the Court stated that, while important, pleadings are primarily used 'to help the parties define the real issues in dispute', while bearing in mind that pleadings are 'procedural tools only'.[34]

21 In CA & CA Ballan,[35] the Court of Appeal said as follows regarding strike out applications in the post-CPA era:

1. Pleadings are important. Primarily, they are used to help the parties define the real issues in dispute. But it is prudent to bear in mind that they are procedural tools only.
2. On a strike out application, it is usually assumed that the matters pleaded can be established.
3. The Agents relied upon cases such as General Steel Industries Inc v Commissioner for Railways (NSW) ('General Steel') as authority for the proposition that there is a high threshold to be overcome if a pleading is to be struck out. In that case, Barwick CJ observed that a plaintiff should not be denied the right to prosecute a claim unless it was clearly demonstrated that there was no cause of action. The Chief Justice referred to various expressions that had been used to describe the test for disposing of a proceeding summarily - phrases such as: 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them (the pleadings) to stand would involve useless expense.'
4. Care should be exercised in applying such terms now. The case of General Steel and like authorities pre-date the Civil Procedure Act. That legislation introduced a test of 'no real prospect of success' for when summary judgment may be given. A pleading that would not survive a summary judgment application will be struck out, for to allow it to go forward would be futile. According to Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd: a prospect which is not 'real' is 'fanciful'; although the 'no real prospect of success' test in s 63(1) of the Civil Procedure Act is more liberal than the common law test of 'hopeless' or 'bound to fail', there may not be much difference between them in practice; and, properly understood, a real question to be tried is one which realistically might result in the Agents to an application for summary judgment succeeding in the proceeding. The correct test to apply in the present case is whether the amendments raise a claim that has no real prospect of success, in the sense of being fanciful.
5. It is still the case, however, that the effect of striking out a statement of claim if no right to re-plead is granted brings the proceeding to a peremptory end. In this regard, the older authorities provide some salutary warnings. As Dixon J said in Dey v Victorian Railways Commissioners:

A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

1. In the same case, Latham CJ took what might be viewed as a slightly more robust approach. His Honour said:

If, as a result of argument, the court reaches a clear decision which could not be altered by any evidence which could be adduced at the trial, then it is proper in the interests of both parties to dismiss the action instead of allowing the parties to incur completely useless expense.

1. Picking up on his Honour's reference to evidence, the effect that it may have at trial cannot be underestimated. Experience tells that evidence at trial can shape the case in ways that have not been anticipated despite the best efforts of litigants and their legal advisers. As Whelan JA observed in Mutton v Baker:

Even if it is said that an issue is purely a question of law, the court should not strike out a claim on this basis if it is conceivable that some factual matter could emerge at trial which might alter the analysis.

1. In General Steel Barwick CJ referred to the passage from Dixon J's judgment in Dey that we have set out above. The Chief Justice then stated:

Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.[36]

22 As is apparent from the observations of Dixon J in Rowe v Ausnet Electricity Services (No 5),[37] the following observation of Gleeson CJ in Goldsmith v Sandilands[38] regarding one of the duties of the court in this context warrants extraction:[39]

1. It sometimes happens, in the course of litigation, that counsel will start a hare. The response of the opposing counsel may be to pursue it. One of the duties of a trial judge is to control the proceedings, to exclude irrelevancy, and to maintain proper limits upon the extent to which the parties and their lawyers will be permitted to raise and investigate matters that are of only marginal significance.

2. The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial"[1]. The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive. The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding[2]. The general rule that relevant evidence will be received is qualified by other rules based upon considerations of justice, or practicality. One such qualification limits investigation of collateral matters.

Stay of proceedings under r 23.01 - principles and observations

Where a proceeding generally or any claim in a proceeding -

(a) is scandalous, frivolous or vexatious; or

(b) is an abuse of process of the Court -

the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

Pursuant to r 23.04(1), evidence on an application under r 23.01 shall be admissible for any party by affidavit or, if the Court thinks fit, orally.

24 It has been said, in relation to a predecessor of r 23.01(1), that any distinction between whether a proceeding or claim is 'scandalous, frivolous or vexatious' or 'an abuse of process of the Court' is now 'largely irrelevant'.[40] In Karlsson v Griffith University, Wright J explained the overlapping nature of these concepts, in relation to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), as follows:[41]

"Frivolous" in this context includes proceedings that a plaintiff has no reasonable prospects of successfully prosecuting or that are untenable, groundless or faulty: Spencer [(2010) [2010] HCA 28; 241 CLR 118] at [59]. Proceedings which are foredoomed to fail, and "frivolous" in that sense, include proceedings where no reasonable cause of action is disclosed.

"Vexatious", in this and similar contexts, refers to proceedings that are productive of serious and unjustified trouble or harassment: Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 at [25] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

Further, frivolous or vexatious proceedings can also be instances of proceedings that are an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ); [1993] HCA 77 .

In Ridgeway v the R (1995) 184 CLR 19; [1995] HCA 66 at [32], Gaudron J explained at 74-5:

The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are 'frivolous, vexatious or oppressive'. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'. (footnotes omitted)

25 This Court also has an inherent power to stay a proceeding, or any part of a proceeding, that is an abuse of process. The onus of satisfying the court that there is an abuse of process is a heavy one and rests on the party alleging it.[42]

26 In Michael Wilson & Partners Ltd v Nicholls, Gummow ACJ, Hayne, Crennan and Bell JJ stated:[43]

As the majority pointed out in Batistatos v Roads and Traffıc Authority (NSW),[44] "[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories". In Ridgeway v The Queen, Gaudron J noted[45] that the concept extended to proceedings "instituted for an improper purpose", and to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging"[46] or "productive of serious and unjustified trouble and harassment" (74). In Rogers v The Queen, McHugh J concluded[47] that, although the categories of abuse of process are not closed, many cases of abuse can be identified as falling into one of three categories: "(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.

27 In Kermani v Westpac Banking Corporation, Robson AJA (Neave and Harper JJA agreeing) outlined the principles relating to stay applications on the grounds of abuse of process.[48] Those principles relevantly included the following:[49]

(1) The court possesses an inherent jurisdiction to stay its proceedings as an abuse of process if the proceedings are unjustifiably oppressive and vexatious or manifestly unfair or otherwise bring the administration of justice into disrepute among right-thinking people: Walton v Gardiner;[50] Rogers v R[51] and PNJ v R;[52] Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd.[53]

(2) The jurisdiction should only be exercised in exceptional cases or sparingly with the utmost caution: Jago v District Court (NSW).[54]

(3) The jurisdiction to stay for abuse of process is not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the court affording the affected party a fair hearing: Walton v Gardiner;[55] Rogers v R.[56]

(4) The circumstances in which abuse of process may arise are extremely varied and the courts have refrained from limiting the circumstances to fixed categories: Hunter v Chief Constable of the West Midlands Police;[57] Rogers v R;[58] Batistatos v Roads and Traffic Authority (NSW).[59]

(5) In considering whether to grant a stay as an abuse of process, the court should undertake a weighing process involving a subjective balancing of a variety factors and considerations: Walton v Gardiner.[60]

...

28 The factors and considerations to be weighed and balanced include the requirements of fairness to the parties, the public interest and the need to maintain public confidence in the administration of justice.[61]

29 Sections 61 and 62 of the CPA permit a plaintiff or defendant in a civil proceeding to apply for summary judgment on the ground that a claim or defence, or part of a claim or defence, has no real prospect of success. Section 63 of the CPA provides that, subject to s 64 of the CPA, a court may give summary judgment in a civil proceeding if it is satisfied that a claim, defence or counterclaim, or part of a claim, defence or counterclaim, has no real prospect of success.

30 Section 64 of the CPA provides that:

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because-

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

31 Section 65 of the CPA provides that the summary judgment provisions of the CPA are in addition to and do not derogate from any powers a court has under rules of court in relation to the summary disposal of any civil proceeding. The ability to stay or dismiss a proceeding is also a feature of the court's inherent jurisdiction to prevent the abuse of its processes.[62]

32 Part 2 of ord 22 (rr 22.03-22.15) sets out the procedure for applications by a plaintiff and pt 3 of ord 22 (rr 22.16-22.23) sets out the procedure for applications by a defendant.

33 As observed in Silver Chef Rentals Pty Ltd v Makong Australia Pty Ltd,[63] the principles applicable to the grant of summary judgment are well established. It is convenient to draw upon the following helpful summary of Sloss J in that case:[64]

1. In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[65] the Court of Appeal stated the relevant test to be applied in determining an application for summary judgment made under ss 61 and 63, as follows:[66]

(a) the test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail test" essayed in [General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125];

(c) it should be understood, however, that the test is to some degree a more liberal test than the "hopeless" or "bound to fail" test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

1. Section 7(1) of the CPA sets out its overarching purpose, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9 of the CPA requires the Court to have regard to these purposes in making any order or giving any direction in a civil proceeding.
2. Where a plaintiff in a civil proceeding seeks to bring an application for summary judgment under s 61 of the CPA, it must be made in accordance with Order 22 of the Rules.[67]

1. The requirements set out in rr 22.04 and 22.05 were considered by the Court of Appeal in Hausman v Abigroup Contractors Pty Ltd.[68] In relation to an affidavit in support of an application for summary judgment, the Court of Appeal stated that what 'must be verified are the facts necessary to establish a good cause of action'.[69] Once the plaintiff has established the elements of its cause of action, there is 'something akin' to a shifting of the evidential burden to the defendant.[70]
2. With regard to the equivalent of what is now r 22.05, the Court of Appeal stated as follows:[71]

[62] ... Assuming the plaintiff's application is properly made, there will be judgment for the plaintiff unless the defendant shows cause against the application to the satisfaction of the court. The Rule provides that the defendant can show such cause 'by affidavit or otherwise'.

[63] The defendant must satisfy the Court that, in respect of the claim to which the application for judgment relates, a question ought to be tried, or there ought for some other reason to be a trial of that claim. The Court, if so satisfied, will give the defendant leave to defend and the proceeding will continue to trial in the ordinary way. The Court will normally require an affidavit by, or on behalf of, the defendant before it will be satisfied that the defendant is entitled to leave to defend. The standard of diligence required of the defendant in preparing a case in opposition to the application, especially if under pressure of time, is perhaps not as high as that required in preparing for trial.

[64] Nonetheless, the defendant is required to use reasonable diligence to put before the Court, albeit in a summary form, all the evidence relied on in the defence. In that regard, it would generally be regarded as an injustice to the plaintiff to introduce for the first time, on appeal, evidence which was readily available for the hearing of the application, but was not produced. An affidavit filed by the defendant may contain a statement of fact based on information and belief.

[65] The authorities suggest that an affidavit in opposition to an application for summary judgment must provide sufficient particulars to enable the defence case to be properly understood. A bald denial that the defendant is indebted to the plaintiff will not suffice. The affidavit should, so far as practicable, deal specifically with the plaintiff's claim and the facts set out in the supporting affidavit to establish that claim. It should state clearly and concisely what the defence is, and identify the facts relied upon in support of that defence.

1. Those principles from Hausman extracted above remain good law since the advent of the CPA.[72]

34 The observations of the High Court regarding summary judgment under ss 62 and 63 of the CPA in Trkulja v Google LLC[73] are also worth extracting:

1. At relevant times, r 8.09 provided in substance that a defendant could apply before entering an appearance, whether conditional or unconditional, to set aside a writ or its service.
2. Section 63 of the Civil Procedure Act 2010 (Vic) provides in substance that a court may give summary judgment in favour of a defendant on the defendant's application, if satisfied that the plaintiff's claim or part of that claim "has no real prospect of success".
3. In Agar v Hyde[74], this Court essayed the test for determination of an application to set aside service of a proceeding out of Australia, pursuant to Pt 10 r 6A of the Supreme Court Rules 1970 (NSW), on the ground that the claims made in the proceeding had insufficient prospects of success to warrant putting an overseas defendant to the time, expense and trouble of defending them. The plurality concluded that the test should be the same as the test for summary judgment propounded in Dey v Victorian Railways Commissioners[75] and General Steel Industries Inc v Commissioner for Railways (NSW)[76]: a party should not be denied the opportunity of placing his or her case before the court in the ordinary way, with the advantage of the usual interlocutory processes, unless there is a high degree of certainty about what would be the ultimate outcome of the proceeding if allowed to go to trial in the ordinary way.
4. Subsequently, in Spencer v The Commonwealth[77], this Court considered whether the test for summary judgment prescribed by s 31A of the Federal Court of Australia Act 1976 (Cth), namely, that the court is satisfied that the other party has "no reasonable prospect of successfully prosecuting the proceeding or ... part of [it]", differs from the test espoused in Dey and General Steel. All members of the Court except Heydon J emphasised that the power to dismiss an action summarily should not be exercised lightly[78] but Hayne, Crennan, Kiefel and Bell JJ added that the evident legislative purpose revealed by the text of s 31A would be defeated if its application were read as confined to cases of a kind falling within the test in Dey and General Steel[79].
5. In Victoria, the test for summary judgment is prescribed by s 62 of the Civil Procedure Act: whether the plaintiff's claim has "no real prospect of success". Consistently with Spencer, the view taken in Victoria is that the power to dismiss an action summarily is not lightly to be exercised but that, like the test applicable to s 31A of the Federal Court of Australia Act, the "no real prospect of success" test is to some degree more liberal than Dey and General Steel. It permits of the possibility of cases in which, although the plaintiff's case is not "hopeless" or "bound to fail", it does not have a real prospect of succeeding[80].

35 It is convenient to deal with the defendants' applications in the manner they were referred to by the defendants in the table set out in their written submission that is reproduced earlier in these reasons, which is also how they were addressed in written and oral submissions by the parties. For ease of reference, relevant paragraphs of the Third FASOC and its Annexure A are reproduced as Attachment 2 to these reasons.

Part A**: Paragraphs 12, 16, 19, 29, 30, 31, 32, 33, 34 and 36 of the Third FASOC - Stay/dismissal application under r 23.01, alternatively, summary judgment application under r 22.16 and ss 62 and 63 of the CPA**

Part A.1 - The paragraphs the subject of the challenge

36 As is apparent from Attachment 2 to these reasons, the pleaded claims in the above paragraphs relate to alleged: misleading and deceptive conduct, breaches of contract, breaches of a collateral contract, and an alleged 'equitable estoppel'.

37 Each of these claims is said by the defendants to be founded upon the premise that in 2006 and 2007 TeleChoice had negotiated with Telstra 'the terms of an agreement pursuant to which TeleChoice would be appointed a Telstra dealer for a five-year term commencing on about 15 April 2008 (Intended Telstra Appointment)'.[81] The defendants emphasised that the particulars of the allegation refer to only two draft incomplete and annotated documents, defined as the 'Draft Telstra Heads of Agreement' and the 'Draft Telstra Agreement' (collectively, Telstra Documents), and that, despite detailed and repeated requests for additional particulars of any other terms relied upon, no attempt has been made by TeleChoice to rely on any other source for the terms of the Intended Telstra Appointment.

38 In varying ways each of the claims in these paragraphs seeks damages or equitable compensation in an amount equal to what TeleChoice alleges is the amount of revenue that it would have earned had it taken up the Intended Telstra Appointment rather than proceeded with the Final Dealer Appointment. Briefly:

(a) The misleading conduct claim (paragraphs 12-19A) is based on an alleged representation by the Optus Entities in 2007 that if TeleChoice entered into a further dealer appointment with the Optus Entities the revenue earned by TeleChoice under that further dealer appointment would be the same as the revenue that would have been earned by TeleChoice under the Intended Telstra Appointment. This is defined as the 'Revenue Representation'. The particulars of this alleged representation include references to a forecast of revenue prepared by TeleChoice and provided to the Optus Entities in about July 2007 (July 2007 Forecast) and a financial summary subsequently prepared by Optus and provided to TeleChoice on 22 August 2007.

(b) The breach of contract claim (paragraphs 29-31) is based upon an alleged 'oral and express and implied' term '... that the Optus Entities agreed to pay to TeleChoice during the term of the Final Dealer Appointment the same revenue as TeleChoice would have earned under the Intended Telstra Appointment ...'.

(c) The breach of collateral contract claim (paragraphs 32-34) is based upon an alleged collateral contract that, in consideration for TeleChoice entering into a further dealer appointment with the Optus Entities, they would pay to TeleChoice during the further dealer appointment the same revenue as TeleChoice would have earned under the Intended Telstra Appointment.

(d) The equitable estoppel claim (paragraphs 35-36) is based upon the alleged reliance on the Revenue Representation and the alleged assumption by TeleChoice, said to be induced by the Optus Entities, that the revenue it would earn under the Final Dealer Appointment would be the same as the revenue TeleChoice would have earned under the Intended Telstra Appointment.

(e) In paragraph 16 of the Third FASOC it is alleged that during the Final Dealer Appointment TeleChoice earned $258,464,733 in revenue from Optus and that had '... TeleChoice entered into the Intended Telstra Appointment, it estimates that it would have earned approximately $100,400,674 more in revenue than it did under the Final Dealer Appointment'. The particulars state that the 'basis for TeleChoice's estimate ...' is set out in Annexure A to the pleading, which in turn states that the 'figures underlying' the revenue estimate of $358,865,407 are set out in a spreadsheet entitled 'Sheet B' (Sheet B) and forming part of Annexure A to the Third FASOC. As previously mentioned, Annexure A to the Third FASOC has been reproduced as part of Attachment 2 to these reasons. Sheet B is reproduced as Attachment 3.

(f) In the particulars of the alleged Telstra revenue in TeleChoice's Annexure A, TeleChoice also states that '... where a revenue category is the equivalent between Telstra and Optus (for example in respect of 'activations'), TeleChoice has assumed that it would have achieved the same quantity of the relevant category under the Intended Telstra Appointment as it did under the Final Dealer Appointment, and has then applied the relevant amount which would have been payable under the Intended Telstra Appointment to that quantity (using the same amount payable per connection as was contained in the July 2007 Forecast)'.[82]

39 The defendants submitted that the claims the subject of the paragraphs referred to above should be stayed or dismissed, alternatively, that summary judgment should be given in favour of the defendants for each of them. Senior counsel for the defendants confirmed that the stay/dismissal contention and the alternative summary judgment contention were each based upon the submission that the claims have no real prospect of success, it being also submitted that they were without a proper basis and 'hopeless'. In this context, and in substance, it was submitted that:

(a) Each of the claims is founded upon an allegation that had TeleChoice been appointed on the terms of the Intended Telstra Appointment as recorded in the Telstra Documents, TeleChoice '... would have earned ascertainable revenue in excess of that which it earned under the Final Dealer Appointment'.

(b) TeleChoice relies on only the Telstra Documents which make clear that: (i) many terms, including those regarding remuneration, had not been agreed or specified; and (ii) some terms regarding remuneration '... are expressed so that the remuneration would be less than provided under the terms of the Final Dealer Appointment'.[83]

(c) How the Alleged Telstra Revenue is derived from the Telstra Documents is not explained and no attempt has been made to identify the relevant terms of the Telstra Documents pursuant to which the calculations have been performed. The defendants are unable to discern how the estimated revenue has been calculated and this remains so despite repeated and detailed requests for particulars in answer to which no further particulars have been provided.

(d) The Telstra Documents do not include finalised terms that would enable the remuneration that would have been received under the Intended Telstra Appointment to be calculated.

(e) In any event, the Telstra Documents do not provide a basis for an allegation that greater remuneration would have been received than was received under the Final Dealer Appointment.

(f) The revenue items listed in Sheet B do not correspond with an entitlement to revenue at a rate or rates that can be identified in the Telstra Documents.

(g) The amount of the alleged Telstra revenue appears in part to be based on activation/connection numbers in TeleChoice's July 2007 Forecast, which does not form part of the Telstra Documents.

(h) Because paragraphs 19, 30, 31, 33, 34 and 36 all rely upon the particulars to paragraph 16, and are therefore similarly affected, they have no real prospect of success.

40 At a general level TeleChoice asserted that all of the defendants' complaints the subject of the summons were baseless and should be dismissed. It contended that the Third FASOC put the defendants on notice of the case it has to meet, sufficiently defines the issues for determination, and that any claimed embarrassment on the part of the defendants was not substantial or real. Emphasis was also placed on the alleged delay in bringing the applications (which is addressed in Part I below). As will become apparent later in these reasons, TeleChoice's position was refined in some respects during the two-day hearing, which included concessions responsibly made by senior counsel for TeleChoice.

41 With respect to this stay/dismissal/summary judgment aspect of the defendants' application, TeleChoice submitted that issues regarding the extent to which the terms of the Intended Telstra Agreement were finalised or not agreed, and whether or not the terms provided for non-identical or less remuneration than under the terms of the Final Dealer Appointment, were 'quintessential matters for trial'. These were said to be all matters for evidence and cross-examination in connection with the question of whether there was '... a sufficiently concluded agreement (if one is even required for the purposes of TeleChoice's claim given the nature of the claim) ...'. It was further submitted that it was to be kept in mind that the Intended Telstra Appointment was just that - intended - and that no written contracts with Telstra were executed or alleged to have been.

42 TeleChoice contended that in July and August 2007 it and the Optus Entities '... went on ... to operate from a shared understanding about the basis on which revenue would be earned by TeleChoice under the Intended Telstra Appointment'. This was said to be reflected by TeleChoice providing the July 2007 Forecast and the Optus Entities responding with the Financial Summary, which it was submitted demonstrated how the Final Dealer Appointment could match the revenue figures in the July 2007 Forecast.

43 TeleChoice submitted that the position being unclear was not an issue raised at the time the discussions occurred in July and August 2007, and it said further that any lack of clarity or uncertainty does not give rise to a basis 'to meet the high bar of summary dismissal.'

44 With respect to the criticisms of the particulars in TeleChoice's Annexure A (including Sheet B), TeleChoice submitted that the explanation in Annexure A[84] was sufficient for the defendants to comprehend the case that they have to meet. It was said that the quantum will ultimately be the subject of expert evidence and that the 'estimate' in Annexure A is sufficient because it identifies the source of the relevant Optus and Telstra figures and the method by which they have been calculated. TeleChoice contended that, 'critically', the estimate was based upon the shared mutual understanding about the revenue that would be earned by it under the Intended Telstra Appointment, referring also to Ms Seifen's affidavit evidence regarding the preparation of the July 2007 Forecast.

45 TeleChoice's position remained that the paragraphs in question contained sufficient detail to establish that TeleChoice has a proper basis to make its claim and that the defendants have sufficient notice of the case that they are required to meet.

46 I do not accept the defendants' submission that, at this point, one or more of the claims referred to in the paragraphs identified above (Telstra Revenue Claims) have been demonstrated or established to be 'hopeless',[85] or to have no real prospect of success, and should therefore be permanently stayed or dismissed pursuant to r 23.01, or that summary judgment should be given in respect of them.

47 Further, even if there had been force in the defendants' contention that one or more of the Telstra Revenue Claims had been demonstrated to have no real prospect of success, in the exercise of my discretion I would not at this point have stayed or dismissed such claims pursuant to r 23.01 of the Rules or given summary judgment in relation to them.

48 This is not to deny the force of most of the observations made by the defendants regarding the inadequate, confusing, and unclear manner in which allegations regarding the Telstra revenue that it is alleged would have been earned, and related issues of loss and damage, have been pleaded. In their current form, the particulars to paragraph 16, including those in paragraphs 2 and 5 of Annexure A to the Third FASOC and Sheet B, and to paragraphs 19, 30, 31, 33, 34 and 36, do not provide sufficient notice of the claim that is to be met and they are embarrassing, and materially so. As indicated in Part B below when addressing the defendants' alternative r 23.02 strike out application, the appropriate course is to strike out the particulars referred to and provide TeleChoice with a further opportunity to properly articulate its claim.

49 I elaborate below regarding my conclusions in relation to the defendants' r 23.01 and summary judgment application. In so doing I remain mindful of the principles and observations relevant to such applications referred to earlier, including the caution required before terminating claims summarily,[86] and the High Court's recent observations regarding summary dismissal of a claim being a power not lightly to be exercised.[87] Given the circumstances and the somewhat complex nature of the relevant Telstra revenue and loss related aspects of the Telstra Revenue Claims, such caution resonates appropriately in this case.

A.4.2 Further observations regarding the pleading of the Telstra Revenue Claims

50 Before turning to the particular Telstra revenue and loss issues primarily relied upon by the defendants in this part of its application, it is necessary to make some further observations regarding the structure and content of these parts of the pleading so as to facilitate proper consideration of the defendants' contentions, but in a context that has proper regard to the pleading as a whole. These observations are also materially relevant to the defendants' (alternative) r 23.02 strike out application addressed in Part B below.

51 The defendants considered the 'Revenue Representation' in paragraph 12 to be the 'foundation' for the various claims comprising the Telstra Revenue Claims, also drawing attention to the manner in which the Intended Telstra Appointment is pleaded in paragraph 9, and its role in relation to the Revenue Representation. It is therefore convenient to look to the Revenue Representation misleading and deceptive conduct claim paragraphs first, which are reproduced as part of Attachment 2 (paragraphs 12-19A[88]). A review of these paragraphs reveals, among other things that:

(a) The terms of the alleged Revenue Representation are clear enough, it being in substance an alleged representation that if TeleChoice entered into the further dealer appointment with the Optus Entities,[89] the revenue earned by TeleChoice would be the same as the revenue that would have been earned by Telstra under the Intended Telstra Appointment - which, in turn, is alleged and defined in paragraph 9.

(b) The timing of the Revenue Representation is pleaded and the particulars to paragraph 12 address how it is said to be oral, in writing and to be implied or inferred.

(c) It is alleged to have been a continuing representation and, insofar as it relates to future matters it is made clear that TeleChoice relies on the deeming provisions in s 51A of the Trade Practices Act 1974 (Cth) until 31 December 2010 and s 4 of the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) after that date.

(d) TeleChoice pleads that it relied on the Revenue Representation and, ceased 'negotiations' with Telstra, did not enter into the Intended Telstra Appointment, and entered into the Final Dealer Appointment instead.

(e) The Revenue Representation is alleged to be misleading and deceptive or likely to mislead and deceive because the revenue earned under the Final Dealer Appointment was not the same as the revenue that would have been earned under the Intended Telstra Appointment, and given the absence of reasonable grounds, it is said to be deemed to be misleading insofar as it relates to a future matter.

(f) The suffering of loss and damage 'by' the alleged contravening conduct is pleaded as a material fact in paragraph 19 and the particulars of the loss refer back to paragraph 16 (referred to above), the particulars to which state that the basis for the 'estimate' of loss is set out in Annexure A to the Third FASOC (reproduced as part of Attachment 2).

(g) As previously mentioned, the 'figures underlying' the estimate of Telstra revenue that would have been earned are said to be set out in the spreadsheet described as Sheet B. Paragraphs 3, 3A and 4 of Annexure A provide further particulars of the sources of the Optus figures in Sheet B. Paragraphs 5 (a) to (c) contain particulars of how the Telstra revenue figures in paragraph 2 of Annexure A and Sheet B are 'derived'. The particulars to paragraph 16 also state that further particulars may be provided after discovery and the exchange of expert reports.

52 Putting to one side for the moment the pleaded allegations regarding alleged Telstra revenue, loss and quantum in paragraph 16 and its particulars (which are deficient), when the pleading is considered as a whole and the approach to pleading assessment spoken of by Hargrave J in Babcock & Brown (No 2)[90] and endorsed by the Court of Appeal in Uber Australia[91] is taken, although the pleading could be improved, it is evident that the substance of the nature of the misleading and deceptive conduct claim being made is otherwise sufficiently clear.

53 Again putting to one side for the moment the deficient pleaded allegations regarding Telstra revenue, loss and quantum, a review of the pleading of the balance of each of the Telstra Revenue Claims reveals that the result is substantially the same. This is apparent from the relevant paragraphs, which are reproduced in Attachment 2. Although the pleading of these claims could also be improved, each of the breach of contract claim (paragraphs 29-31), the collateral contract claim (paragraphs 32-34), and the estoppel claim (paragraphs 35 and 36), is otherwise[92] sufficiently clearly pleaded to put the defendants on notice of the substance of the claim that is to be met.

54 To make the above observations about the Telstra Revenue Claims in their current form is to say nothing about the ultimate merits or otherwise of such claims, or whether it is sound for TeleChoice to pursue one or more of them. Subject to addressing the application currently before me, that is a matter for others to consider.

55 I turn to the pleaded allegations relating to Telstra revenue, loss and quantum, and in particular, paragraph 16 and its particulars. It is to be noted in this context that, on the claims as currently pleaded, the Telstra revenue that it is said would have been earned by TeleChoice, and its quantum, is not only relevant to TeleChoice's alleged loss and damage. It is also central to: the allegation that the Revenue Representation was misleading and deceptive or likely to mislead and deceive; the allegations of breach of contract, alternatively breach of collateral contract; and the alleged equitable obligation to 'fulfil' the Revenue Representation. These matters further underscore the importance of the parties - and the court - being able sufficiently to understand the case that is to be met by the defendants.

56 It is apparent from the defendants' submissions that it is the alleged Telstra revenue and related loss allegations that lay at the heart of the defendants' r 23.01 stay/dismissal application and their (alternative) summary judgment application.[93] The defendants' focus really starts with the allegation regarding the Intended Telstra Appointment in paragraph 9 of the Third FASOC (reproduced in Attachment 2), to which I refer. Central to that focus is the observation that Telstra Documents referred to in the particulars to paragraph 9 are the only particulars of the Intended Telstra Appointment and therefore, it is said, as pleaded, comprise its four walls. It was said that the claimed Telstra revenue that it is alleged would have been earned is not (and cannot be) tied back to the terms of these incomplete and draft Telstra Documents - and even if it could in part, it would not result in greater revenue having been earned in connection with various matters given the operation of some of the terms in question.

57 This is said to be supported by, among other things, TeleChoice's failure (despite detailed requests) to identify the particular terms of the Telstra Documents relied upon[94] to calculate the particular revenue amounts, or to state how it is calculated by reference to such terms. The defendants also point to Annexure A to the Third FASOC, and in particular paragraphs 2 and 5 thereof, and Sheet B (comprising Attachment 3 to these reasons). In further support of their position it is said that it is apparent from Annexure A and Sheet B that the alleged Telstra revenue that would have been earned that is referred to in paragraph 16 of the Third FASOC is in fact based in various ways upon TeleChoice's own 2007 forecast document (the July 2007 Forecast), and not the Telstra Documents. This, so it is said, further demonstrates that the revenue claim based on the Telstra Documents said to comprise the four walls of the Intended Telstra Appointment has not been and cannot be substantiated by reference to the terms of the Telstra Documents.[95] That being so, it is said that the Telstra Revenue Claims can be seen to be 'hopeless', or without any real prospect of success, and should therefore be stayed or dismissed under r 23.01, or the subject of summary judgment orders.

58 As a starting point and for completeness, to the extent that it was contended that TeleChoice has alleged that the negotiations with Telstra had concluded, I consider this to involve too narrow a reading of that which is in substance pleaded against the defendants in connection with the Intended Telstra Appointment.[96] Standing back and adopting the approach of Hargrave J and the Court of Appeal earlier referred to, and looked at in substance, the allegation in paragraph 9 in its current form is really to the effect that TeleChoice had negotiated itself into a position where Telstra was willing to appoint TeleChoice as a dealer for five years from April 2008 and that, although the negotiation of all of the terms had not concluded or been finalised, the negotiations regarding the terms were advanced and had reached the stage as reflected in the draft Telstra Documents referred to in the particulars to paragraph 9. So much is apparent when the allegation in paragraph 9 is read in the context of the particulars relied upon.[97] The Telstra Documents are each expressly referred to as drafts and, as their terms demonstrate, are not finalised or complete. As TeleChoice submitted, what was being addressed in paragraph 9, was an intended appointment that did not proceed, not a concluded agreement or negotiation.

59 That this is so is supported by other relevant parts of paragraph 9, including: the draft Telstra Documents comprising a 'Heads of Agreement' and a more detailed agreement; the reference to the appointment being forward looking and 'intended'; the employment of a definition associated with Intended Telstra 'Appointment' (as opposed to agreement); the express reference to the Telstra Documents being draft documents; TeleChoice's and its adviser's knowledge (which was apparent, but can be inferred in any event) that the documents relied upon were incomplete and not finalised; and the handwritten annotations and blanks in the draft Telstra Documents.

60 That negotiations were alleged to be ongoing and the terms not finalised or concluded is also supported by other features of the pleading. This includes the central allegation in paragraph 18 that, relying on the Revenue Representation, TeleChoice 'ceased negotiations' with Telstra. This is consistent with the negotiations not having been finalised, as is reflected in the draft and incomplete Telstra Documents. It is also consistent with the opening words of paragraph 9 regarding TeleChoice having negotiated terms with Telstra 'From in or around June 2006 until July 2007 ...', when considered with the allegation in paragraph 18 that it was in mid July 2007 that 'negotiations ceased with Telstra' and that TeleChoice's Mr Abdou informed a Telstra representative by telephone that it proposed to remain an Optus dealer.

61 To so conclude is not to ignore aspects of the drafting that are less precise or clear than they might have been,[98] or aspects that might be seen to sit in some tension with each other.[99] But the pleading is a procedural tool that is a means to an end and is not to be construed as though it were a statute. Standing back and adopting the approach earlier referred to, it is in my view sufficiently apparent that, as currently drafted, the pleaded position regarding the Intended Telstra Appointment is as described above.

A.4.3 Disposition of the r 23.01 and summary judgment applications

62 In the context of the above, I return to the defendants' central contention that the court can be satisfied that the Telstra Revenue Claims should be stayed or dismissed as having no real prospect of success because the alleged Telstra Revenue amounts have not been and cannot be tied back to terms in the (draft and incomplete) Telstra Documents[100] that are said to comprise the four walls of the Intended Telstra Appointment.

63 As earlier stated, I do not accept that it has been established at this point that one or more of the Telstra Revenue Claims has no real prospect of success so as to provide a potential basis for such claims to be stayed or dismissed in a summary way should the court, in the exercise of its discretion, be minded to do so.

64 First, as the inadequate and embarrassing particulars to paragraph 16 reveal, and the exchanges with senior counsel for TeleChoice at the hearing reinforced, it is not yet clear how TeleChoice puts its case in relation to the Telstra revenue that it says it would have derived, or how it puts its related allegations of loss and damage given that they all refer back to the particulars to paragraph 16. This was further underscored by TeleChoice's desire to revisit the position following the delivery of these reasons, although the position would be no different even if that was not so.

65 TeleChoice should be given the opportunity to seek to clarify these matters on the pleading by way of (at least) proper particulars or such other pleading steps as is considered appropriate. In my view this is consistent with the overarching purpose and courts' and the parties' obligations under the CPA - although I accept that this could have occurred earlier. Further, allowing this opportunity will not impose any material prejudice on the defendants, but rather serve to clarify that which they have in the past been seeking to clarify through correspondence. With respect to costs thrown away, it is also the case that TeleChoice has to date paid into court material sums by way of security for costs, as is reflected in the Procedural Chronology. It follows that I do not accept the submission that TeleChoice should be refused this further opportunity.

66 Until these Telstra revenue related matters are properly clarified on the pleadings the court is not in a position to fully understand how the Telstra Revenue Claims are intended to be put. It follows that it is also not in a position to be satisfied on the current material that one or more of the Telstra Revenue Claims has no real prospect of success. This alone is sufficient to dispose of the defendants' r 23.01 and summary judgment applications.

67 Secondly, as things stand, parts of paragraph 5 of Annexure A expressly refer to certain substantial revenue categories and amounts claimed as having been derived from 'the same per connection figures and methodology as contained in the Intended Telstra Appointment and July 2007 Forecast'. Although pleading in this way in Annexure A is inadequate in numerous material respects, notwithstanding the submissions of the defendants, the court cannot be satisfied or determine on the evidence[101] in a summary way at this point that there is no real prospect of success of TeleChoice establishing that one or more revenue categories and amounts (or part thereof) do reflect 'per connection figures' and methodology as contained in the Intended Telstra Appointment.

68 Thirdly, to the extent that the defendants' submissions invited the court to draw inferences as to what likely numbers of activations or other transactions might have been achievable by TeleChoice at any given period if it had become a Telstra dealer, it is not open on the evidence to draw such inferences. Any attempt to do so at this juncture on only the material before the court would be unsound and involve impermissible speculation.

69 Fourthly, it is and was apparent that the Telstra Revenue issues (and related issues of loss and quantum) relied upon by the defendants involve a myriad of issues of disputed fact in relation to a past hypothetical, and involve calculations and other factual considerations over an extended period. All of these are relevant to the determination of the alleged Telstra Revenue and, consequently, loss and quantum. A review of paragraphs 2 and 5 of Annexure A and Sheet B in their current form well illustrate as much. Although it was asserted that many if not most of the revenue categories and amounts are not addressed in the Telstra Documents, it is not possible for the court to be satisfied in a summary way on the evidence that this is so, or that it has been demonstrated that any revenue that would have been earned by TeleChoice would have been less than that earned through the Optus Final Dealer Appointment.

70 Fifthly, it is also apparent from the Telstra Revenue Claims, the submissions, the evidence, and the defences filed to date in this proceeding, that if the claims can be properly articulated and have a proper basis they will each involve many issues of contested fact. By way of example, for the misleading conduct claim it appears these will include factual contests in relation to: the making of the alleged representation; alleged reliance; whether it was misleading or deceptive or likely to mislead or deceive; the existence or otherwise of reasonable grounds; what revenue would have been earned with Telstra; whether loss and damage was suffered; causation; and the quantum of loss and damage. For the contract and collateral contract claims it appears that the disputes will include the existence, nature and extent of any contract and its terms, Telstra revenue that would have been earned, the question of breach, causation, and the existence and quantum of any damage. The estoppel claim is similarly burdened with contested factual matters, including a number which overlap with the misleading conduct claim. These matters, and those referred to above, illustrate that if TeleChoice's claim is capable of being properly and clearly articulated, on the face of the material there appear to be questions that ought to be tried regarding the alleged Revenue Representation and related claims if they are to be pursued.

71 As I have said, I am not satisfied on the evidence before me that, as things stand, it has been established by the defendants that one or more of the Telstra Revenue Claims has no real prospect of success. In the circumstances of this case it was also appropriate to proceed cautiously,[102] recognising as I do, that summary termination is not a power lightly to be exercised.

72 Even if I had considered there to be greater force in the defendants' substantive contentions made in support of the application for a stay, dismissal, or summary judgment, in the exercise of my discretion I would have refused to make either a stay or dismissal order, or give summary judgment in favour of the defendants. TeleChoice is to be provided with an opportunity better to articulate its claim in relation to the alleged Telstra revenue, loss and quantum. It has also indicated that it wishes to provide additional particulars of allegations relating to the revenue and loss allegations, and that it is proposing to seek to make additional amendments to the Third FASOC, the detail of which is not yet known.

73 Further, assuming they have a proper basis and can be properly articulated, the claims in question appear on their face to be material and the revenue and loss allegations forming part of the Telstra Revenue Claims seem likely to remain technically and factually complex. As things stand, and taking into account the matters raised above, they do not readily lend themselves to summary determination, as a review of the documents and evidence referred to by the parties plainly demonstrated.

74 Given the above, the yet to be seen proposed particulars and revisions, the nature and complexity of the Telstra Revenue Claims, and the ongoing existence of other claims in the proceeding, and as I have said, even if I had been of the view that it had been established that there was no real prospect of success, in the exercise of my discretion no stay or dismissal order would have been made, or summary judgment given at this time. To do so would not be in the interests of justice and, as things stand, if the claim can be sufficiently articulated the dispute is of such a nature that it appears that only a full hearing on the merits is appropriate.[103] Adopting this course is also consistent with the overarching purpose of the CPA and the court's obligations in relation to it.

75 The defendants' application for a stay, dismissal, or summary judgment in respect of, one or more of the Telstra Revenue Claims will be dismissed. I turn now to the alternative r 23.02 strike out application relating to the Telstra Revenue Claims.

Part B**: Paragraphs 12, 16, 19, 29, 30, 31, 32, 33, 34 and 36 of the Third FASOC - Strike out application under r 23.02 of the Rules**

Part B.1 - The paragraphs the subject of the challenge

76 The paragraphs and claims in question are those referred to in Part A above, and I refer to the observations made in Part A.1 and Part A.4. As senior counsel for the defendants confirmed during the hearing, the substance of all of the challenges made to the pleading under r 23.02[104] of the Rules is that the relevant parts are embarrassing because they do not sufficiently identify the case that the defendants have to meet.[105] The application under r 23.02 of the Rules in the context of the above paragraphs was said to be a 'fallback position' to their stay, alternatively summary judgment, applications addressed in Part A above.

77 Given the submissions made in connection with the stay/summary judgment application there was considerable overlap with many matters raised in this context. It was also submitted that the documents referred to in the Third FASOC could be considered on the r 23.02 application, which was the approach taken by all parties and was not a matter of controversy between them.[106]

78 The defendants referred to the matters raised in connection with their stay and summary judgment applications[107] and submitted further that the paragraphs are unintelligible and ambiguous, with the result being that it is not possible to ascertain what is alleged against them because it is not possible to determine the revenue that TeleChoice 'would have earned' under the Intended Telstra Appointment. Again there was emphasis on the revenue allegations in paragraph 16 of the Third FASOC and its Annexure A (including Sheet B). These matters were also said to infect the allegations in paragraphs 19, 30, 31, 33, 34 and 36 of the pleading because they are claims for equitable compensation or damages and rely on the particulars to paragraph 16. It was submitted that they are embarrassing and should be struck out.

79 The Revenue Representation was also said to be in ambiguous and unintelligible terms. This, so it was contended, was because it is premised on the assumption that the Intended Telstra Appointment provided the details of the remuneration that TeleChoice would have received from Telstra but no attempt had been made to identify the terms of the Telstra Documents said to give rise to the remuneration entitlements and, further, many of the terms were incomplete or not agreed.

80 It was submitted that the 'ambiguity and unintelligibility' of the Revenue Representation was compounded by inconsistencies between the documents referred to in the particulars to paragraph 12, with emphasis being placed on a reference in the letter of 12 July 2007 from TeleChoice to Optus that 'TeleChoice understands that Optus will match the current Telstra offer. The assumption being that revenue will be the same under both deals for the same number of sales.' This reference was said to be inconsistent with the July 2007 Forecast (also referred to in the particulars to paragraph 12) because the Telstra revenue forecast in the July 2007 Forecast was based on only 75% of the activations forecast to be achieved under the Final Dealer Appointment with Optus. The claimed inconsistency was said to be significant because a 25% difference in activation numbers could result in a difference in TeleChoice's claimed loss in the order of $25 million.

81 TeleChoice's written and oral submissions on this aspect of the application were relatively brief. Apart from repeating the submissions made in connection with the stay/summary judgment application, in its written submissions it was submitted only that the defendants' contentions regarding the inconsistency between the documents referred to in the particulars were matters more properly to be raised at trial and did not establish that the paragraphs in question or other aspects of the pleading were embarrassing or otherwise satisfied the requirements of r 23.02 of the Rules. TeleChoice maintained that paragraph 16 gave sufficient notice of the claims required to be met and how they were put.

82 I refer to the observations in Parts A.1 and A.4 above regarding the pleading of the Telstra Revenue Claims and the documents referred to in the relevant paragraphs. Those observations are materially relevant to this part of the application, although it is not necessary to repeat them.

83 It is clear that the manner in which the Telstra revenue allegations have been pleaded and addressed in paragraph 16 of the Third FASOC, paragraphs 2 and 5 of Annexure A, and Sheet B is inadequate and, consequently, the allegations are embarrassing, and plainly so. This is because they are unclear, confusing, arguably sit in tension with other allegations, and they do not give sufficient notice of the claim that is required to be met. It is also important to recall that the allegations regarding Telstra revenue are relevant not only to loss and damage but are central to other substantive allegations as mentioned earlier, further underscoring the importance of properly articulating how this part of the Telstra Revenue Claims is put.

84 That the allegations are inadequate and embarrassing should be apparent from that which is discussed in Part A.4 above, particularly when viewed with the pleading of the Telstra Revenue Claims, Annexure A, and Sheet B (reproduced in Attachments 2 and 3 to these reasons). The appropriate course is to strike out the particulars to paragraph 16 in their entirety, including Annexure A and Sheet B, and to paragraphs 19, 30, 31, 33, 34 and 36, but to provide TeleChoice with a further opportunity properly to articulate this aspect of its claim in a manner that clearly reveals the case that is required to be met. I appreciate that this includes the revenue said to have been earned through the Optus Final Dealer Appointment which is not subject to the same attack. However, because the particulars, Annexure A and Sheet B are interconnected and deal with both Telstra and Optus alleged revenue, the preferable and most efficient case management approach is for TeleChoice to start again so as to minimise the prospect of further confusion or past deficiencies infecting proposed revisions.

85 For completeness I add further that, TeleChoice's loose references in submissions to an alleged 'shared understanding' with the defendants regarding Telstra revenue do not assist it. As the defendants submitted, the focus here is properly the claims as pleaded. There are no pleaded claims based on this alleged shared understanding. If it is proposed to seek leave to introduce any claims said to be based on such an understanding, and there is a proper basis for doing so, it will be necessary for TeleChoice to identify the relevant cause/s of action and properly plead such claims with full particulars in their proposed amended statement of claim for consideration by the defendants and the court.

86 Given the form of the current pleading it appears that this will require careful and substantive reconsideration of each of the claims made, as well as substantive consideration of the legal bases upon which loss and damage (or equitable compensation) is claimed in relation to each. From the form of the pleading as it is, it appears that the proper legal characterisation of the damages or loss to be claimed in relation to each alleged cause of action has not been sufficiently addressed, and that insufficient attention has been given to the different character of the claims for misleading conduct compared to the breach of contract claims, including the different counterfactual scenarios that may or may not be involved. It also appears that further consideration will need to be given to the different analysis required between alleged Telstra revenue (in connection with, for example, the alleged falsity of the representation and breach of contract and collateral contract allegations), and calculation of alleged loss for each cause of action that is proposed to be relied upon. For example, as things stand, it is not apparent why or how the alleged Telstra revenue[108] is said to be a measure of loss under each claim, including the misleading conduct claim. It is also not clear from the pleading whether one or more of the claims is intended to be pleaded as a loss of opportunity claim.[109] If so, it is not readily apparent. Given the issues, the nature of the claim, and the time that has passed, if the Telstra revenue and loss related allegations are to be reformulated, this ought to occur at solicitor and senior and junior counsel level, with each being satisfied that there is a proper basis for any proposed reformulation.

87 Having regard to the observations earlier made regarding other aspects of the pleading of the Telstra Revenue Claims, and that which is to be addressed regarding the Telstra Revenue and loss related issues, it is not appropriate at this point to strike out other paragraphs of the Third FASOC that plead the Telstra Revenue Claims. I also do not accept that the same deficiencies infect the allegation regarding the making of the Revenue Representation. It is in my view sufficiently clear what is alleged to have been represented, as I have earlier said. Even if it is assumed that there are tensions in some of the documents relied upon by TeleChoice in connection with the alleged Revenue Representation, what is alleged to have been the representation is sufficiently clear from the material facts pleaded in paragraph 12. If the claim can be properly articulated and is to be pursued, any such tensions will fall to be considered with the other evidence at trial, including that which is said to have been conveyed orally. Whether the making of the Revenue Representation can be established, or if made, be shown to have been misleading, is a different matter which is not for determination now.

88 Given that which has been addressed in part A.4 and is referred to above, it is sufficient and convenient to refer briefly to some of the deficiencies with paragraph 16. It will be recalled that paragraph 16 alleges that the revenue earned under the Final Dealer Appointment was not the same as that which would have been earned under the Intended Telstra Appointment. The particulars refer to it being estimated that an additional $100,400,674 revenue would have been earned, with the 'basis for TeleChoice's estimate being set out in Annexure A'. Annexure A has been earlier described, as has its interaction with Sheet B. The particulars to paragraph 16 also state that further particulars may be provided after discovery and the exchange of expert reports.

89 Features of the allegations in paragraph 16 of the Third FASOC, paragraphs 2 and 5 of Annexure A, and Sheet B (and therefore paragraphs 19, 30, 31, 33, 34 and 36) that make them embarrassing and unclear, include the following, noting also that the amount of Telstra revenue that it is said would have been earned is alleged to exceed $358 million over a five-year period:

(i) What all the different revenue categories in Sheet B for each year are, or what they mean.

(ii) How, and by what method, in relation to each revenue category for any given year, the relevant amount referred to in Sheet B has been arrived at.

(b) Although it is alleged that the Telstra revenue amount would have been earned under the Intended Telstra Appointment:

(i) The allegations do not identify for any revenue category in any year what term or terms of the Telstra Documents are said to support such revenue and on what basis.

(ii) Whether terms other than those referred to in the Telstra Documents are relied upon, and if so: the source of those terms; what they are; or the basis on which such terms support the revenue for each category.

(c) With respect to paragraph 5 of Annexure A and Sheet B:

(i) The revenue categories that are said to be 'equivalent between Telstra and Optus' are not identified.

(ii) It is not apparent under which (if any) terms of the Telstra Documents, or other terms, it is alleged the revenue in each category is said to be payable and on what basis.

(iii) It is not apparent which revenue category is alleged to have been 'included in the Intended Telstra Appointment but not in the Final Dealer Appointment'.

(iv) In respect of each of the revenue categories captured by the broad language of paragraph 5(b), it is not apparent which (if any) terms of the Telstra Documents, or other terms, are relied upon, how each is said to apply, or what the 'methodolog[ies]' referred to are.

(d) Aspects of the figures in Sheet B are said, in a general way, to be derived in part from TeleChoice's July 2007 Forecast but:

(i) The July 2007 Forecast is not said to form any part of the Intended Telstra Appointment or to have been agreed with Telstra.

(ii) The basis and method for the calculations referred to in the July 2007 Forecast is not disclosed.

(iii) It is not apparent how it is alleged that the July 2007 Forecast is alleged to be relevantly linked to revenue obligations or entitlements under the Intended Telstra Appointment.

(e) There appears to be an unexplained, vague and unclear conflation between the 'Intended Telstra Appointment' and the July 2007 Forecast in connection with alleged Telstra Revenue.

(f) There are some tensions between the July 2007 Forecast and Sheet B. For example, the July 2007 Forecast records new and other activations under the Telstra column for each 12 months at 75% of those for Optus, but Sheet B records new activations as being the same as between Optus and Telstra. There also appears to be some tension between TeleChoice's letter of 10 July 2007 and the July 2007 Forecast.

90 Although the examples referred to above are sufficient to demonstrate that the particulars to paragraph 16, including Annexure A and Sheet B are materially deficient and should be struck out as being embarrassing, the list is not intended to be exhaustive. The fact that reference is made to the possibility that further particulars may be provided after discovery or expert reports does not aid TeleChoice's position. At this point the defendants are entitled to be clearly informed of the way the case is put, accepting of course that the pleading is not the repository of evidence. Further, it is TeleChoice that had the negotiations with Telstra and it is not a case where asymmetry of information adversely impacts TeleChoice's position. If anything, it is the defendants who are affected in this way.

91 In short, it is not at all apparent from these parts of the pleading the basis upon which it is said that the revenue amounts asserted would have been earned or how they are calculated or referable to the Intended Telstra Appointment. This leaves both the defendants and the court in a position where they do not understand how material aspects of the Telstra Revenue Claims are put. It also raises a question as to whether TeleChoice has yet sought properly to grapple with this aspect of its claim or the claimed loss and damage. It is again to be emphasised in this context that, given the manner in which the Telstra Revenue Claims have been framed to date, these issues do not just relate to loss and damage or its quantum. They are central to, among other things, TeleChoice's allegations regarding the Revenue Representation being misleading and the issue of breach in the contract and collateral contract claims.

92 The extent of the challenges with the existing pleaded Telstra revenue, loss and quantum framework suggests that fresh thinking and a clean slate approach is required, including in relation to the true characterisation of the loss sought to be claimed in respect of each cause of action. That said, how matters are to be approached from here is ultimately a matter for TeleChoice and its counsel and solicitors, but it should be borne in mind that the approach adopted to date has been plainly ineffective to give sufficient notice of the basis of the Telstra Revenue Claims that is required to be met. The issues involved raise matters of substance for considered reflection in advance of any proposed reformulation.

93 Subject to addressing the precise terms of the orders with the parties, I propose to order that the particulars to paragraph 16, including Annexure A and Sheet B, and to paragraphs 19, 30, 31, 33, 34 and 36, be struck out. At this stage the balance of the paragraphs relating to the Telstra Revenue Claims will not be struck out. The striking out order will be without prejudice to TeleChoice's right to seek to file revised proper particulars, or to seek to further reformulate its Telstra Revenue Claims. Any such steps will remain to be addressed on their merits if and when they occur.

Part C****: Paragraph 46 - Request for further particulars of each reference to 'dealer' in the 2008 Master Agreement and 2008 Master Dealer Agreement relied upon by the plaintiff

94 This part of the defendants' application was in my view a minor matter that ought not to have taken up the time, cost, and effort that it has between the parties to date. The implied term alleged in paragraph 46 is sufficiently clear, as is apparent from its terms.[110] As pleaded it also appears that the reference to the term 'dealer' is a reference to that term wherever it appears in the 2008 Master Agreement and 2008 Master Dealer Agreement. This was confirmed in TeleChoice's written submission and senior counsel for TeleChoice also confirmed during oral submissions that this was the position, and that the references to 'dealer' in paragraph 46 were not intended to be and were not more specific than that.[111]

95 No order is needed or will be made on this part of the application. The position is understood by the parties and they are proceeding on the basis that was pleaded and confirmed during the hearing by senior counsel for TeleChoice.

Part D****: Paragraph 49 - Stay application under r 23.01, alternatively, summary judgment application under r 22.16 of the Rules and ss 62 and 63 of the CPA

96 Paragraph 49 of the Third FASOC is reproduced as part of Attachment 2 to these reasons. It contains allegations of breach of contract which are said to involve Optus Mobile Pty Ltd carrying out digital advances and changing dealer codes other than in accordance with the alleged 'Dealer Code Policy' referred to in paragraph 49. These changes, so it is alleged, had the effect of causing airtime commissions to cease to be paid to TeleChoice and to be paid to the party associated with the newly assigned dealer code.

97 There was extensive evidence around this process, including from Mr Wong in his various affidavits. That evidence included essentially unchallenged evidence from Mr Wong that the changes to what were described as certain 'internal dealer codes' were an internal processing matter that did not have any effect on the payment of airtime commissions to TeleChoice.

98 Ultimately this part of the application seeking a stay or summary judgment in relation to aspects of the claims in paragraph 49 was not pursued. In substance, this was because TeleChoice accepted that where Optus had assigned certain specified 'internal dealer codes' to mobile service numbers (MSN) the evidence of Mr Wong[112] showed that 'airtime commission' did not cease to be paid to TeleChoice, as had first been alleged. Consequently, TeleChoice's position, which was a responsible and proper position for it to take on the evidence, was that it no longer presses the claims in the particulars to paragraph 49 insofar as they relate to dealer code changes to dealer codes 00037, 00057, 00077, 00097, 39425, 00017, 00067, 00087, and 14121.[113]

99 The defendants' stay/summary judgment application was not pressed in relation to the remaining three 'examples' of customers with changed dealer codes referred to in paragraphs (b), (c), and (e) of the particulars to paragraph 49. This was unsurprising given the limits of Mr Wong's evidence, in which he did not depose to 'TM' prefix dealer codes having the same (non) effect on commissions paid in the way that he did regarding the internal dealer codes that he addressed. As is apparent from Attachment 2 to these reasons, the changed dealer codes referred to for the customers in paragraphs (b), (c) and (e) were dealer codes TM350, TM900, and 40831. Other dealer codes relied upon by TeleChoice (discussed in Part E below) are dealer codes TM300, TM360 and 40434.[114]

100 Given that the claim TeleChoice referred to in paragraph 49 is now not to be pressed in respect of the customers and the dealer codes referred to in paragraph 98 above, it is appropriate that those parts of the particulars that refer to them be struck out.[115]

101 As is apparent from Part E below, this does not end the controversy regarding paragraph 49 of the Third FASOC.

Part E**: Paragraph 49 - Strike out application under r 23.02 of the Rules**

Part E.1 - Remaining paragraph 49 controversy

102 The remaining controversy regarding paragraph 49 is whether the particulars to paragraph 49 ought to be partially struck out so as to be confined only to the particular instances of identified customer dealer code changes in respect of which it is alleged that airtime commission ceased to be paid, together with any additional specifically identifiable customers that TeleChoice can currently identify and give notice of by way of further particulars.

103 The defendants' position was that the particulars to paragraph 49 should be so confined and that the more general references to dealer codes not linked to particular specified and identified MSNs or customers should be struck out. TeleChoice's position was that the particular pleaded MSN/customer instances were examples, and that the more general references to dealer codes without references to particular specified MSNs/customers were sufficient, permissible, and allowed the defendants to understand the case they have to meet, with further particulars to be provided after discovery.

104 To understand the different positions it is necessary to refer to the penultimate paragraph of the particulars to paragraph 49, which is reproduced as part of Attachment 2 to these reasons. As can be seen, in substance, the allegation by TeleChoice in that part of the particulars is that each of the dealer codes TM300, TM350, TM360, TM900, 40434 and 40831 (defined as Remaining Changed Codes in the introduction) is a code for either Optus or a telemarketing agent engaged by it, and that 'TeleChoice claims in respect of all TeleChoice customers who were the subject of a Digital Advance where the dealer code was changed to one of those identified ... with the effect that Optus ceased to pay commission to TeleChoice.' It is then stated that further particulars will be provided after discovery, subpoenas have been issued and complied with, and the exchange of expert reports.

105 The defendants criticised the pleading of this aspect of the claim by the use of limited 'examples' and the device of further particulars being provided after discovery, subpoenas and expert reports. It was submitted that the claim is largely open ended and that in the absence of the pleading of particular instances in the manner that has occurred in paragraphs (b)-(e) of the particulars to paragraph 49, including with dates and MSNs, the defendants cannot understand what is being alleged against them or properly respond to a claim of such breadth and such imprecise scope.

106 It was further submitted that insight into the potential breadth of the inquiry was apparent from the (since deleted) reference in the second FASOC (Second FASOC) to TeleChoice having procured '767,147 post paid GSM service connections on the Optus Mobile Network' during the five years of the Final Dealer Appointment. It was said that although the number (767,147) has been deleted, the breadth of the task remains largely the same.

107 It was submitted that the pleading was analogous to that which was struck out in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors (Adelaide Brighton Cement).[116] This was said to be because, as in that case, the particulars do not provide a reasonable basis for an allegation of the breadth made and that they were not reasonably capable of sustaining an inference of widespread breaches throughout the period of the Final Dealer Appointment. Emphasis was also placed on the Court's observation in that case that:

'It follows, in my view, that the pleading of widespread breaches is no more than an attempt to trawl for a case of breaches throughout the relevant period. Consistently with the objects of the Uniform Civil Rules, I do not think that the Court should lightly permit a party without a proper basis for believing in widespread breaches to make an allegation to this effect with a view to generating a significant discovery obligation that might reveal some basis for a case. It follows in my view that the case as presently pleaded ... is not reasonably sustainable. It should be struck out as either an abuse of process or on the basis that the pleading does not disclose a cause of action.'[117]

108 The defendants submitted that this feature of the Third FASOC was a form of fishing for a cause of action to support a vague claim of uncertain breadth and content that should not be permitted, drawing attention in this context to the decision in Andrews v Australia and New Zealand Banking Group Ltd.[118]

109 When making these submissions senior counsel for the defendants emphasised that they did not object to a further schedule of particular instances of MSNs/customers being added if they could be identified by TeleChoice, referring further to Ms Seifen's evidence[119] about there being 203 TM transfer code examples that had been identified from a random sample of MSNs.

110 In this context reference was made to the substantial time, cost and efficiency burden that would be imposed given the time that has passed since the 2008-2013 period, the number of activations over the period, the legacy changes in computer systems that are no longer operable, and the very small number of people that have access to, and can operate, the legacy computer systems. Reference was made to the evidence of Mr Wong and Mr James regarding these systems and personnel challenges. Senior counsel was not able to say what number or approximate number of MSNs/customers might fall within the 'TM' code basket but submitted that the computer systems would have to be gone through to check them all.

111 It was further submitted that the starting point was that the plaintiff has to have a basis for the specific alleged breaches and it cannot be pleaded in a manner equivalent to alleging: 'if it occurred there is a breach and loss was suffered'.

112 TeleChoice pointed out that it alleges in paragraph 44 of the Third FASOC that the Digital Code Policy required that where a digital advance for an Optus post-paid mobile service was carried out by the Optus Entities directly in respect of a customer then on a TeleChoice dealer code, the dealer code would remain unchanged and that TeleChoice would continue to be paid call commission in respect of that customer. It emphasised that in paragraph 49 it is alleged that during the term of the Final Dealer Appointment Optus Mobile Pty Ltd (by itself and through agents including telemarketing agents engaged on Optus Mobile's behalf) carried out digital advances in respect of customers on a TeleChoice dealer code and caused the code to be changed other than in compliance with the Dealer Code Policy. The 'example' specific MSN/customer changes are referred to in the particulars in the manner referred to above, as is the broader allegation regarding each of the six Remaining Changed Codes.

113 TeleChoice submitted that the use of examples is not reflective of fishing but is a by-product of the fact that, as stated in the particulars to paragraph 49, TeleChoice has not had access to Optus' computer systems since 31 March 2013, when the Final Dealer Appointment ended. TeleChoice also stated that further particulars can be given at this point of a further 203 particular instances where customers on an eligible rate plan were changed by Optus to a 'TM' prefix dealer code and commission was lost. It was further submitted that the evidence about the 203 instances, including the 10 examples given in Ms Seifen's affidavits, was sufficient to dispel any suggestion that TeleChoice's claim involves fishing, or is without a basis. It was submitted that the fact that Mr Wong in his evidence did not state that code changes to the Remaining Changed Codes did not result in a loss of commission to TeleChoice, reinforces TeleChoice's position, and that there is an established basis for the claim.

114 It was submitted by TeleChoice that the claim is not confined to the particular examples given, as it was said is evident from the use of examples and the terms of paragraph 49. It was said that it is alleged that Optus was using telemarketers to contact TeleChoice customers and that there is a proper basis to infer that where it did so it used the letters 'TM' to identify them. It was said that the pleading should be understood, as it is expressed to be, to be a claim in respect of every change of a dealer code to one of the Remaining Changed Codes over the period of the Final Dealer Appointment. Reference was again made to the further particulars that can be provided, as was said to be evident from Ms Seifen's evidence regarding '... the randomly selected MSNs ...'[120] and TeleChoice's end point that '... there is a proper basis to plead that this was happening with telemarketers ...'.

115 With respect to discovery and the challenges referred to by the defendants in this context, senior counsel for TeleChoice accepted that there was evidence that addressing the issues through the defendants' legacy systems and limited retained staff was an onerous task, but indicated that it might be less onerous than suggested because the task is likely narrower when limited to only the codes in question. It was also submitted that the discovery-related issues and challenges, and how they might be dealt with, was not a matter before the court on this application and that they had a limited role to play in connection with the defendants' strike out application in any event.

116 I do not accept that at this point an order should be made striking out pursuant to r 23.02 of the Rules those parts of the particulars to paragraph 49 that refer to the Remaining Changed Codes on the basis that they are embarrassing or that they may prejudice or delay the fair proceeding of the trial. Although the claims might be seen to be some distance from being perfectly pleaded, when one stands back, considers the pleading as a whole, and asks whether it gives sufficient clear notice of this aspect of the case to be met at trial,[121] it is evident that it does.

117 As mentioned, in paragraph 49 it is alleged that, in breach of specified alleged terms of the Final Dealer Appointment, 'Digital Advances'[122] were carried out by Optus Mobile and through agents engaged on its behalf '... in respect of customers on a TeleChoice dealer code and caused the dealer code to be changed other than in compliance with the Dealer Code Policy.' The Dealer Code Policy and the relevant terms alleged to have been breached are addressed earlier in the pleading and were not the subject of a relevant pleading controversy in this context.

118 Some particular 'examples' of such changes are referred to in the particulars to paragraph 49. It is also stated that TeleChoice has not had access to Optus computer systems since 31 March 2013 and that this has hindered its position. It is then made plain that 'TeleChoice claims in respect of all TeleChoice customers who were the subject of a Digital Advance where the dealer code was changed to one of those identified above with the effect that Optus ceased to pay commission to TeleChoice.' In the light of the matters not now pressed, the dealer codes 'identified above' are the Remaining Changed Codes. It is also squarely stated that further particulars are to be provided after, among other things, discovery.

119 It is sufficiently clear that TeleChoice is alleging that changes of TeleChoice customer dealer codes to one or more of the Remaining Changed Codes was in breach of specified terms of the Final Dealer Appointment and had the effect of commission that would otherwise have been paid to TeleChoice not being paid to it. This is reinforced and underscored in paragraph 53A, which (among other things) alleges as material facts that if the relevant breaches 'in paragraphs 49, 52 and 53' of the Third FASOC had not occurred then TeleChoice would have continued to receive call commission in respect of TeleChoice customers who would have remained on a TeleChoice dealer code until they ceased to be an Optus customer or were transferred to a non TeleChoice code in a manner permitted under the Final Dealer Appointment.

120 Loss and damage is pleaded in paragraph 54 and is relevantly alleged to include the amount of call commission that would have been paid had the change not occurred. TeleChoice also states that it does not have access to the Optus Entities' computer systems and is presently unable to quantify the amounts until after discovery and, so it says, the exchange of expert reports.'

121 On the face of the pleading, and whether or not one takes into account the documents referred to in it, the substance of the case that is being asked to be met is sufficiently clear, relating as it does to the six identified Remaining Changed Codes.

122 TeleChoice did not and does not dispute that further particulars of each of the customers the subject of a dealer code change to the Remaining Changed Codes are required to be provided, as the terms of the paragraph in question expressly recognise and contemplate. It proposes to do so following discovery regarding this aspect of the claim.

123 I do not accept that this part of TeleChoice's claim can fairly be described as impermissible fishing for a cause of action in the way submitted by the defendants. It is apparent from the pleading alone that, based on the information that it has, it alleges that a course of conduct was engaged in that saw Optus Mobile and telemarketing agents carry out digital advances that saw dealer code changes from TeleChoice dealer codes to the six Remaining Dealer Codes, each of which code it specifies and is also known to the defendants. The court was informed by senior counsel that TeleChoice is in a position to provide further particulars of an additional 203 instances based on its random selection testing from an exercise carried out in about November 2012 when TeleChoice had access to Optus computer systems, but further particulars beyond these particular instances require discovery in relation to this aspect of the claims to occur first.

124 That it appears that there will or may be material challenges with discovery in this context does not in the present circumstances aid the defendants' strike out application. Such matters will need to be addressed as part of case management, with the parties and the court being conscious of the relevant obligations imposed by the CPA. What may transpire in that context is not yet known and speculation on the point is of limited, if any, utility. Ultimately the approach to discovery will be agreed and/or directed, following which TeleChoice will be required to provide the further particulars that it anticipates providing in relation to further particular instances of the Remaining Changed Dealer codes that it makes a claim in respect of. The nature and extent of those particulars remains to be seen and will be influenced by the output of the discovery exercise, including any limits agreed or placed upon it. The adequacy or otherwise of any further particulars yet to be provided is not now a matter capable of consideration or assessment.

125 I do not consider that the defendants' position in this context is materially assisted by the decision in Adelaide Brighton Cement.[123] It is sufficient to observe that the facts there in question were quite different to those under consideration, which is not to ignore that in the present case it appears that the discovery challenges may be greater than they were in that case. However, that is not relevantly to the point, as a review of the careful reasons in Adelaide Brighton Cement reveal. When his Honour was referring to 'mere' or 'impermissible' fishing reference was made to courts not allowing:

'...a party without a tittle of evidence to make a broad allegation with the hope that by ransacking the other party's documents through the discovery process which the allegation generates, they will find a case. On the other hand, a party does not need to know, and indeed often will not know, every detail of the claim they wish to pursue. They must have a reasonable basis for making their claim, but this basis may rely upon inferences that can properly be drawn from the limited information available to them prior to discovery. They may then plead a case basis upon inference, the precise ambit of which will fall to be articulated with more precision once discovery has taken place...'

The former is often described as 'mere' fishing or impermissible fishing. To stay with the fishing analogy, the former involves a situation where the party is in reality speculating as to the existence and location of the fish it hopes to catch, and is in effect utilising the court's processes to trawl for those fish. The latter involves a situation where the party has a sound basis for inferring the existence of the fish it wishes to catch, but cannot be precise about the detail of the fish it expects to catch. It involves a more focussed use of the court's processes.[124]

126 When regard is had to the pleading as a whole and the claim addressed in paragraphs 49 to 54, it is in my view readily apparent that it cannot fairly be described as 'merely' or 'impermissibly' fishing in nature so as to warrant that it be struck out on the basis that it does not disclose a cause of action, is embarrassing, that it may prejudice or delay the fair trial, or on any other basis. Although it has taken TeleChoice some time to arrive at this point, the nature of the claim made is sufficiently clear as I have mentioned. It has as its focus a limited number of six Remaining Changed Codes that are dealer codes generated by the defendant, not TeleChoice. To adopt and apply the fishing analogy employed by Justice Doyle in Adelaide Brighton Cement, TeleChoice knows of the existence of the fish, being customers changed to each of the Remaining Changed Codes, and can be precise about a number of customers changed to them - seemingly now including an additional 203 customers. However, at this point, and pending discovery, it cannot be precise about the detail of the others that it expects to catch. In the circumstances this involves a sufficiently focussed use of the court's processes, recognising also that there is an apparent asymmetry of information favouring the defendants given that the dealer code changes were carried out by one or more of them and were recorded on their systems, which TeleChoice no longer had access to after the end of the Final Dealer Appointment.

127 Having regard to the above, I do not accept the submission that the claim is open ended, that the defendants cannot understand what is alleged against them, or that they cannot respond to the case against them. As things stand the claim relates only to the identified instances, which the court was informed will be supplemented by particulars of the additional 203 customers. If further customers are to be included beyond these after processes are agreed or directed in relation to discovery, then they will need to be the subject of proper identification and particulars. For completeness, I add that I do not see the reference to expert reports in the particulars as aiding TeleChoice and it should be struck out.

128 I also do not accept the submission to the effect that the claims as pleaded amount to an allegation to the effect of: 'if a dealer code change occurred then there will be a claim'. It is positively pleaded, and properly accepted,[125] that relevant dealer code changes did occur. It is just that on the information currently available, TeleChoice cannot identify all of them until the completion of discovery.

129 It is plain from the pleading that the claim is made in relation to all of the customers that were changed by Optus Mobile or an agent or telemarketer from a TeleChoice dealer code to one of the Remaining Changed Codes. That this may, as the defendants suggest, likely involve a very large number of customers, does not relevantly aid their strike-out contention. It also remains to be seen. That there will or may be challenges with how best to address discovery or related processes regarding legacy computer systems and related matters does not add material force to the issue under consideration, which is not to fail to recognise or underestimate the challenges that may be involved. But this is a different matter and how this is to be dealt with and what follows from it remains to be addressed.

130 To the extent that it was submitted during oral submissions on this part of the strike out application that making the claim in this way constituted some form of abuse of process and should be stayed or struck out on that ground[126] given the matters I have referred to above, I do not accept that submission. It is permissible to take into account the affidavit evidence when considering such a contention, which further tells against any abuse of process, whether on the basis of having no reasonable prospect of success or otherwise. It is sufficient briefly to mention two matters regarding this evidence.

131 First, Ms Seifen's evidence addressed the random selections that were done from November 2012 that were said to have shown 203 examples of dealer code changes to the Remaining Changed Codes. These were the customers it was said additional particulars will be given of. Ten of these were detailed in the affidavit by way of illustration, with the other examples expressly not being set out 'in the interests of space'. This evidence supports expressly the existence of a basis for the allegations regarding dealer codes changes to the Remaining Changed Codes by telemarketers, with the prefix 'TM' also supporting by inference that allegation.

132 Secondly, whilst Mr Wong was the deponent for the defendants who dealt extensively with the dealer code changes in his evidence, including by explaining how and why 'internal dealer code' changes did not give rise to a loss of commission, he did not make the same claim in relation to the Remaining Changed Codes. On the contrary, he expressly confirmed that dealer codes TM360 and 40434 were not 'internal dealer codes'. As to the balance of the Remaining Changed Codes, he said nothing, it appearing that he had not addressed these codes.

133 In these circumstances, and on the limited evidence before the court for the purposes of the applications, Ms Seifen's and Mr Wong's evidence supports, in part expressly and in part by inference, the existence of a permissible basis for alleging that changes to the Remaining Changed Codes resulted in commissions no longer being paid to the previous TeleChoice Code. Whilst ultimately this will be a matter of fact for final determination at trial by reference to the evidence and the particular customers ultimately relied upon, when the pleading and the evidence currently before the court is considered, together with the other matters referred to above, it is in my view plain that there is no sound basis for concluding that the claim regarding the Remaining Changed Dealer is an abuse of process.

(a) Paragraph (d) of the particulars to paragraph 49 should be struck out.

(b) The references to dealer codes other than the Remaining Changed Codes in the penultimate paragraph of the particulars to paragraph 49 should be struck out.

(c) The reference to expert reports in the particulars to paragraph 49 should be struck out.

(d) An order should be made directing TeleChoice to provide a schedule of further particulars to paragraph 49 setting out particulars of the 203 additional customers referred to by Ms Seifen in respect of whom TeleChoice proposes to pursue a claim.

(e) The parties should confer to address and agree appropriate processes for the discovery or production of documents or other information regarding customer dealer code changes from a TeleChoice dealer code to a Remaining Changed Code.[127]

(f) Following completion of the processes to be agreed or directed as referred to in sub-paragraph (e), TeleChoice should provide a proposed updated schedule of particulars to paragraph 49, including the particulars of any additional customers in respect of whom it proposes to pursue claims.

(g) The adequacy or otherwise of any further particulars to be provided by TeleChoice in the future is not a matter that can or should be considered at this point.

Part F**: Paragraphs 53A(b) and (c) of the Third FASOC - Strike out application under r 23.02 of the Rules**

135 In paragraph 53A TeleChoice alleges that if the defendants' breaches of contract by dealer code changes (paragraph 49) and customer diversions (paragraphs 52 and 53) had not occurred, TeleChoice would have:

(a) continued to receive call commission for the relevant customers;

(b) in all likelihood recontracted those TeleChoice customers after the 'prohibition' period had expired and would have derived activation commission and management fees in respect of the customers;

(c) by reason of the 'foregoing sub-paragraphs' ((a) and (b)), had the resulting activations from the 'recontracting' of customers count towards TeleChoice's targets to achieve its 2011/12 and 2012/13 Outcome Payments[128] under the Final Dealer Appointment.

136 The defendants contended that the allegations in paragraphs 53A(b) and (c) are embarrassing and ought to be struck out. They submitted that no particulars are provided of any component of the allegations and that they amount simply to pleading a conclusion from unstated facts, which is said not to be sufficient and to have been the subject of requests for particulars in November 2020. They also criticised the expression 'by reason of the foregoing sub-paragraphs' in sub-paragraph 53A(c).

137 During oral submissions it became apparent that the defendants' primary concern was that there is a positive plea in relation to a large and unspecified number of customers that TeleChoice would have taken positive steps to recontract, but it is not pleaded what step or steps would have been taken to recontract the customers and therefore the defendants do not know what case they have to meet in this regard.

138 It was said further that if TeleChoice's position is no more than that the customers might have come back into the TeleChoice store and chosen to recontract with it, then that would be one thing. However, if (as submitted was pleaded) TeleChoice's case is that one or more positive steps could and would have been taken by TeleChoice to procure the recontracting of these customers, then the defendants need and are entitled to know what the alleged steps are so that they can be considered and addressed as appropriate.

139 TeleChoice submitted that paragraph 53A pleads the counterfactual position to address a previous complaint that TeleChoice had failed adequately to plead causation for the loss claimed in paragraph 54.

140 TeleChoice contended that the criticisms of paragraph 53A(b) were the 'nub' of the complaint and that this paragraph contained an allegation that was 'self-evidently' based on TeleChoice's business model, which was to recontract customers and thereby derive commission. TeleChoice submitted that the defendants were clearly on notice of the case they were required to meet and that the allegation does not require further particulars.

141 During oral submissions senior counsel for TeleChoice stated that TeleChoice understood the complaint better from the defendants' oral submissions and that 'if the customers hadn't been diverted by what we say is a breach of the agreement, in all likelihood they would have come back to their local TeleChoice store and recontracted with us when [they] needed a new contract'.[129] In answer to a question from the Bench, senior counsel confirmed that TeleChoice was not seeking to put forward a positive steps case but that it could be inferred that if the customer had not been moved as alleged they would have sought to have been rolled over on to a new contract.

142 Later in oral submissions it was put on behalf of TeleChoice that '... in order for them to be recontracted, they might walk into a TeleChoice store or we might take other steps to approach them, knowing the prohibition period has come to an end. But that would be in the ordinary course of TeleChoice's business ...'. Reference was also subsequently made to TeleChoice's 'usual business practices' in relation to recontracting TeleChoice customers. This led to a further submission that it can be inferred from the pleading that the recontracting allegation is based on TeleChoice's 'usual business practices'.

143 It was further submitted that if TeleChoice forms the view that it wants to lead positive evidence about steps it would have taken then 'it would be appropriate certainly' for further particulars to be provided but that as presently instructed counsel for TeleChoice was not in a position to assist the court further on the issue.

144 The defendants' complaint had paragraph 53A(b) of the Third FASOC at its heart, with the complaint regarding paragraph 53A(c) being founded upon its reference to 'the foregoing sub-paragraphs'. Because paragraph 53A(b) was said to be embarrassing it followed, so it was submitted, that paragraph 53A(c) is infected with the deficiency, because it is, at least in part, based on paragraph 53A(b).

145 Upon initial review this aspect of the application presented as a matter of limited significance which might best be left to be addressed (or not, as the case may be) by the evidence. This appeared to remain the preferable course when it was confirmed by senior counsel during the hearing that TeleChoice did not seek to put forward a positive steps case. However, as the submissions referred to above reveal, TeleChoice's position appeared to shift and change during the hearing, ultimately resulting in it becoming apparent that TeleChoice itself appeared not yet to have determined the full basis upon which the allegation in paragraph 53A(b) is made. That this is so at this stage in the procedural chronology of this matter is not satisfactory, particularly given previous requests for particulars and the raising of the issue in the submissions filed and served well in advance of the hearing.

146 To assert, as TeleChoice did in its written submission, that it is 'self-evidently based on TeleChoice's business model, which was to recontract customers and thereby derive commission', also did not advance the position or substantially address the request made or alleged deficiency identified. This contention also sat in tension with TeleChoice's initial submission during the hearing that it was not advancing a positive steps case.

147 By the conclusion of the hearing the position remained that TeleChoice was not at that time able to articulate any clear basis upon which the allegation is made, with reference being made only to the vague concept and expression of its 'usual business practices'.

148 Having regard to the terms of the pleading, TeleChoice's unclear position on the point, and the absence of a clear and meaningful response to the previous request for particulars, I accept that in the absence of proper particulars paragraph 53A(b), and therefore (at least in part) paragraph 53A(c), are embarrassing. This is because they do not sufficiently identify that part of the case that the defendants are required to meet.

149 However, I do not accept that the appropriate course is to strike out the offending paragraphs and, in the exercise of my discretion, I decline to do so. As the history and the submissions revealed, it is particulars that are required and the appropriate course is to require that proper particulars of the allegation in paragraph 53A(b) be provided. These will include particulars of any passive or positive steps it alleges that it would have taken and, if so called 'business practices' are to be relied upon, proper particulars of the same. Noting the stage in the proceeding this should not result in the provision of vague, general or non-focused particulars.

150 I will address the precise terms of the orders with the parties.

Part G**: Paragraphs 58, 59, 60, 61, 65 and 66 of the Third FASOC - Strike out application under r 23.02 of the Rules**

Part G.1 - Paragraphs 58, 59, 60, 61, 65 and 66

151 Paragraphs 55 to 68 of the Third FASOC relate to what are described as claims for 'Alleged Non-Compliance Claw Backs' and 'Alleged Fraud Claw Backs'. As is apparent from Attachment 2, it is alleged in paragraph 55 that it was an express term of the 2008 Master Dealer Agreement (Clause 11.4) that:

(i) TeleChoice does not comply with the procedures set out in the dealer bulletins for proposed activations; or

(ii) Optus Mobile has reason to believe that any activations were made in circumstances involving fraud of which TeleChoice knew or ought to have known,

Optus Mobile:

(b) is not obliged to pay commission to TeleChoice for those activations;

(c) may require TeleChoice to pay to Optus Mobile the amount of any bad debt incurred by Optus Mobile; and

(d) may require TeleChoice to pay to Optus Mobile, in respect of activated mobile telephones, the amount of any hardware subsidy.

152 In paragraph 58 TeleChoice alleges that during the term of the Final Dealer Appointment the Optus Entities:

(a) 'clawed back' payments that have been made to TeleChoice on the basis that TeleChoice had not complied with the procedures set out in dealer bulletins for proposed activations (Alleged Non-Compliance Claw Backs); and

(b) clawed back payments from TeleChoice and deducted amounts of bad debts allegedly incurred by Optus Mobile, or hardware subsidies previously paid, where it said it had reason to believe that the activations were made in circumstances involving fraud of which TeleChoice knew or ought to have known (Alleged Fraud Claw Backs).

153 The particulars of the Alleged Non-Compliance Claw Backs and Alleged Fraud Claw Backs were said to be listed in spreadsheets comprising Annexures B and C to the Third FASOC, from which it can be seen they are high in number, comprising in the order of 1,660 Alleged Non-Compliance Claw Backs and 590 Alleged Fraud Claw Backs.

154 Examples of emails referred to in the pleading in respect of the claw backs were referred to by each of the parties and from which it was apparent that at the time the claw backs were made notice was given to TeleChoice by Optus of, among other things: the claw back type (ie non-compliance or fraud); the dealer code and name; the rate and plan; the MSN; the claw back amount; how it was detected; how the activation was said to be non-compliant; and the claw back reason/s. As is apparent from the example emails (and the particulars to paragraph 59) one or more of a range of reasons could be and were provided in connection with claw backs when made by Optus.

155 In paragraph 59 it is alleged that each of the approximately 1,660 Alleged Non-Compliance Claw Backs were made in circumstances where any alleged non-compliance was without a proper basis or was trivial. Generalised, inclusive and collective particulars are given, but the pleading does not identify in respect of each or any of the approximately 1,660 cases:

(a) which is alleged to be without a proper basis, which is said to be trivial, and which are said to be both;

(b) the alleged factual basis as to why any given non-compliance claw back is without a proper basis, or whether one or more of the reasons given for each claw back by Optus Mobile at the time of the claw back is challenged at a factual level or otherwise;

(c) the alleged factual basis as to why any given non-compliance claw back is said to be trivial, or whether one or more of the reasons given for each claw back by Optus Mobile at the time of the claw back is said to be so;

(d) which Alleged Non-Compliance Claw Backs regarding bad debts were claw backs where Optus Mobile will have not written off the alleged bad debts;

(e) which Alleged Non-Compliance Claw Backs regarding bad debts involved circumstances where Optus Mobile was subsequently paid all or part of the alleged bad debts and Optus Mobile did not account to TeleChoice for the same.

156 In paragraph 60 it is alleged that each of the approximately 590 Alleged Fraud Claw Backs were made in circumstances where Optus Mobile did not have or assert any proper basis to believe that either:

(a) the relevant activation was made in circumstances involving fraud; or

(b) TeleChoice knew or ought to have known that the relevant activation was made in circumstances involving fraud.

157 The particulars to paragraph 60 state in a generalised and collective way that the emails, sent by the Optus Entities to TeleChoice notifying TeleChoice of the alleged fraud claw backs did not assert any act or omission on the part of TeleChoice or a customer which constituted fraud, nor do they reveal any investigations conducted by Optus to demonstrate any alleged fraud or the basis for the Optus Entities to believe that TeleChoice knew or ought to have known that the relevant activation had been made in circumstances involving fraud.

158 In paragraph 61 it is then pleaded, further or alternatively, that in each instance of an Alleged Fraud Claw Back, if the relevant activation was made in circumstances involving fraud (which is denied), TeleChoice did not know and could not have known, at the time of procuring the customer activation, of the fraud.

159 The pleading does not identify in respect of each or any of the approximately 590 Alleged Fraud Claw Back cases:

(a) which is alleged to have been made in circumstances where Optus Mobile did not have or assert a proper basis to believe:

(i) the activation was made in circumstances involving fraud;

(ii) the activation was made in circumstances where TeleChoice knew or ought to have known that the activation was made in circumstances involving fraud; or

(iii) the activation was made in circumstances involving both (i) and (ii).

(b) the alleged factual basis as to why any given Alleged Fraud Claw Back is without a proper basis of belief, or whether one or more of the reasons given at the time for particular claw backs is challenged at a factual level or otherwise - and if so on what basis.

160 In paragraph 65 it is alleged that Clause 11.4 is unenforceable as a penalty 'or' that it should be read down to the extent that it would allow 'trivial' claw backs '... and the sum would be out of all proportion to the interests of the Optus Entities which it is the purpose of the clause to protect.' In paragraph 66 it is alleged that 'to the extent' any of the Alleged Non-Compliance Claw Backs were trivial and did not give rise to loss or detriment to Optus Entities or their interests, such sums were penalties. As is apparent from the above, which claw backs are said to fall within this class (and why) are not identified.

161 The loss and damage claimed in respect of the claw back claims is said to be the amount clawed back in respect of each of the Alleged Non-Compliance Claw Backs and each of the Alleged Fraud Claw Backs.

162 In TeleChoice's written and oral submissions TeleChoice contended that a further basis for the fraud and non-compliance claw back claims arises from the inference which can be drawn about their timing, being in the months following notice being given to TeleChoice that the Final Dealer Appointment was not to be extended beyond its terms. In substance it was asserted that an inference can be drawn that the claw backs during this period were made for an ulterior improper purpose of reducing the Optus Entities' exposure to TeleChoice, where they were 'seeking to claw back as much as they could from TeleChoice'.

Part G.2 - Consideration - not necessary to determine

163 Although these claims and paragraphs were the subject of written and oral submissions, and consideration of the relevant parts of the Third FASOC, its Annexures B and C, and the emails referred to in the Third FASOC, as things transpired at the hearing, it is not now necessary formally to determine the application insofar as it relates to these paragraphs. This is because senior counsel for TeleChoice conceded during the hearing that the claims as pleaded were deficient in various respects and needed to be revisited. Consequently it was accepted that paragraphs 56, 57, 58, 59, 60, 61, 65,[130] 66 and 67 should be struck out. This concession was made on the basis that it would be without prejudice to TeleChoice's right to make a further application to amend its claim in relation to claw back claims, recognising of course that any such application would fall to be determined on its merits if and when it is made.

164 The concession made and course adopted on behalf of TeleChoice in this regard was a proper and responsible course for senior counsel to take. The claims as pleaded were large in number and, at least, manifestly embarrassing in many respects. As pleaded the claims were, among other things, rolled up, vague, and pleaded in generalised and unsatisfactory ways such that neither the parties nor the court could properly ascertain what was being alleged in respect of any of the particular instances of Alleged Non-Compliance Claw Backs and Alleged Fraud Claw Backs. I refer in this regard to the observations made regarding the relevant paragraphs in Part G.1 above, which notwithstanding the concession ultimately made, I considered desirable to address given the likely prospect of leave being sought to further amend the claim to include claw back claims.

165 Had it been necessary to determine this part of the application, the paragraphs complained of would have been struck out, albeit with the plaintiff retaining the right to make a further application to amend its claim should it be so advised. If such an application is now to be made, those advising the plaintiff will no doubt remain conscious of the substantive functions of pleadings, and the principles and observations earlier referred to, as well as the nature and extent of the deficiencies of the pleading of these claims in their current form.

166 Insofar as it was contended by TeleChoice that, as pleaded, the paragraphs in question advance a claim that some or all of the Alleged Non-Compliance Claw Backs or Alleged Fraud Claw Backs were made for an ulterior improper purpose of reducing the Optus Entities' exposure to TeleChoice because they were improperly 'seeking to claw back as much as they could from TeleChoice', I do not accept that submission. Such a claim raises serious allegations requiring proper and careful pleading of the material facts and particulars that support it.[131] It is clear on the face of the Third FASOC that, as currently pleaded, such a claim or case was not and is not advanced against the defendants in the paragraphs in question (or elsewhere in the Third FASOC).[132]

167 I propose to make an order striking out paragraphs 56, 57, 58, 59, 60, 61, 65 (in part), 66 and 67 of the Third FASOC. The precise terms of the order will be addressed with the parties.

Part H**: Paragraphs 120-124 of the Third FASOC - Strike out application under r 23.02 of the Rules**

168 Paragraphs 117 to 124 are preceded by the heading 'Inducing Breach of Contract by TeleChoice Franchisees'. As is apparent from Attachment 2, in substance TeleChoice in these paragraphs seeks to advance claims against the Optus Entities for inducing breaches of various 'Franchise Agreements[133] by communicating with 'then franchisees of TeleChoice, their directors, associated entities, relatives and guarantors', in an attempt to procure that those parties enter into agreements with them and/or M8 Telecom to sell or otherwise promote Optus products and services, either through the operation of retail stores known as 'Optus Local Stores' or by means of a 'small and medium business channel partner' dealer code (Solicitation Conduct).

169 The 'Franchise Agreements' and the 'Franchise Agreement Terms' are alleged in a general and non-specific way in paragraphs 117 and 118 and knowledge of the same on the part of the Optus Entities is alleged in paragraph 119. The course of conduct defined as the 'Solicitation Conduct' is referred to in paragraph 120. The particulars to this paragraph refer to the franchisees, directors and guarantors as including 12 identified people, although it is not specified whether such persons are franchisees, directors or guarantors, which particular Franchise Agreements are intended to be referred to, who is party to them, or who has guaranteed the performance of them. Reference is also made to the witness statements and outlines of evidence of three of the named persons, and it is said that further particulars will be provided after discovery and subpoenas have been issued and complied with.

170 In paragraph 121 it is alleged that the Solicitation Conduct 'induced then franchisees of TeleChoice and the guarantors to breach the Franchise Agreement Terms and, thereby, to breach the Franchise Agreements'. In seven separate sub-paragraphs in the particulars to paragraph 121 reference is made to the named individuals in paragraph 120 breaching the Franchise Agreement Terms by failing to disclose discussions with Optus and M8 Telecom and/or by opening and operating particular 'Optus Local' stores.[134] These particulars do not identify the particular Franchise Agreements in question, the parties to them, or which of the named parties is said to be a franchisee, director or guarantor. Paragraph 121 also refers to further particulars being provided after discovery and subpoenas having been issued and complied with.

171 In paragraph 123 TeleChoice also alleges that by engaging in the Solicitation Conduct the Optus Entities breached the General Good Faith Term in the Final Dealer Appointment.

172 The loss and damage alleged to have been suffered is referred to in paragraphs 122 and 124 in general terms and is said to comprise the costs of maintaining stores that the relevant franchisees had abandoned, including rental expenses, as well as lost commissions that would have otherwise been made from connections that relevant franchisees would have made pursuant to their contracts with TeleChoice.

173 The defendants contended that the paragraphs containing the inducing breach of contract claims are a series of assertions that are not accompanied by meaningful particulars and, properly analysed, constitute no more than conclusions drawn from unstated facts. They submit that, as pleaded, the paragraphs are embarrassing and do not allow them to understand the case that is to be met. The primary matters to which attention was drawn were as follows:

(a) The failure to identify the particular Franchise Agreements concerned.

(b) The failure to identify the parties to each of the Franchise Agreements.

(c) The failure to identify whether the breaches are said to be by a guarantor or a party, or which Franchise Term of which Franchise Agreement is said to have been breached.[135]

(d) The failure of the particulars to identify the acts or omissions said to constitute the Solicitation Conduct.

(e) The inadequacy of making reference to limited witness statements and outlines of evidence, which were said to be uninformative regarding the case that is to be met.

(f) The absence of a causal connection that can be identified between the alleged breaches (which, it was emphasised, are limited to a failure to disclose) and the loss claimed.

(g) The uncertainty being compounded by the reference to additional particulars that are said to be provided at some later time.

174 It was further submitted that if claims of the kind in question are to be pursued by TeleChoice they would have to be completely re-pleaded by way of an application to amend, and in their current form must be struck out. It was contended that each of the claimed inducements of breach would 'effectively be a case within a case', and that the defendants are entitled to understand the case against them, which as pleaded, they do not.

175 TeleChoice rejected all of the defendants' criticisms about this aspect of the pleading and senior counsel for TeleChoice submitted that the claim 'couldn't be any clearer, really'.

176 TeleChoice submitted that the franchise terms were clear, were the same in relation to all franchisees, and have been set out in paragraph 118. The pleading of knowledge in paragraph 119 was referred to and it was also submitted that the Solicitation Conduct was clearly identified in paragraph 120.

177 As to the witness statements and outlines referred to in paragraph 120, TeleChoice rejected the contention that they were uninformative and contended that they clearly set out the conduct, which meets the description of the Solicitation Conduct pleaded in paragraph 120. These documents were submitted to have 'set out chapter and verse' what the claim is.

178 With respect to the particular terms of the Franchise Agreements relied upon it was submitted that the conduct relied on as breaching the Franchise Agreements amounted to breaches of all three of the Franchise Terms pleaded in paragraph 118 and that these had been clearly identified.

179 TeleChoice at least implicitly acknowledged that the particular Franchise Agreements were not expressly identified on the face of the pleading, nor who was a party to them. However, it was submitted that there was no difficulty identifying the parties and the Franchise Agreements, and that they were identified in the witness statements referred to in the particulars to paragraph 120.

180 As to loss and damage it was confirmed that the particulars to paragraph 122 were also relied upon in relation to paragraph 124 and that this was proposed to be the subject of expert evidence.

181 Apart from some paragraph number changes and some small revisions made in the second further amended statement of claim , the inducing breach of contract claims are in substantially the same form as they were in the original statement of claim and the amended statement of claim.[136] It appears that prior to the filing and service of the Third FASOC, none of the earlier versions of the statement of claim were drawn or settled by counsel.

182 When considering this aspect of the pleading it is instructive to recall the essential elements of the tort of inducing breach of contract, which were succinctly summarised by the Full Court of the Federal Court in Daebo Shipping Company Ltd v The Ship Go Star as follows:[137]

1. The tort of inducing a breach of contract consists of the following elements:

(1) there must be a contract between the plaintiff (or applicant) and a third party;

(2) the defendant (or respondent) must know that such a contract exists;

(3) the defendant must know that if the third party does, or fails to do, a particular act, that conduct of the third party would be a breach of the contract;

(4) the defendant must intend to induce or procure the third party to breach the contract by doing or failing to do that particular act;

(5) the breach must cause loss or damage to the plaintiff.

1. The gravamen of the tort is the defendant's intention to induce or procure the breach in the knowledge that such a breach will interfere with the plaintiff's contractual rights: Allstate Life Insurance Company v Australia & New Zealand Banking Group Ltd [1995] FCA 1368; (1995) 58 FCR 26 at 43A-C per Lindgren J with whom Lockhart and Tamberlin JJ agreed; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at [159]-[171] per Sheller, Stein and Giles JJA; LED Technologies Pty Ltd v Roadvision Pty Ltd [2012] FCAFC 3; (2012) 199 FCR 204 at [40]- [54] per Besanko J with whom Mansfield and Flick JJ agreed. As Lindgren J explained, the defendant must have "a fairly good idea" that the contract benefits another person in the relevant respect. He said that knowledge of the contract may be sufficient for the purpose of grounding the necessary intention to interfere with contractual rights, even though the defendant does not know the precise term that will be breached. Reckless indifference or wilful blindness can amount to knowledge for this purpose: Allstate at 43C-44F; Fightvision at [171]; LED at [54].

183 There is force in the substance of the submissions made by the defendants regarding the deficient manner in which the inducing breach of contract (and related breach of contract) claims are pleaded in paragraphs 117 to 124 of the Third FASOC. The majority of these deficiencies are substantive not technical. As currently pleaded, the claims are embarrassing in many material respects, and, by failing to plead the relevant intent on the part of the defendants, they also fail to disclose a cause of action insofar as the claims are for inducing breach of contract. It follows that I do not accept TeleChoice's submission that the claims 'could not be any clearer'. They could be and should be if it is proposed that one or more claims of this character are to be pursued.

184 The result is that the claims in their current form should be struck out, with TeleChoice having the right to seek to re-plead should they wish to do so. I elaborate below.

185 As was submitted by the defendants and is apparent from the terms of paragraphs 117-124 of the Third FASOC (reproduced as part of Attachment 2), there are many deficiencies with the claims as pleaded. It is sufficient to observe that the deficiencies include those referred to below.

186 The paragraphs fail to plead or identify each of the Franchise Agreements in question, the parties to them, or whether they remained in place after the end of the Final Dealer Appointment - noting in this regard that it is alleged in paragraph 117 that they were entered into or continued 'during the term of the Final Dealer Appointment', which ceased at the end of March 2013.

187 TeleChoice does not plead or identify whether the breaches of the Franchise Agreements are alleged to have been committed by a party, a guarantor, or some other person or entity.[138] This is compounded by the vague and unsatisfactory manner in which named individuals in the particulars to paragraph 121 are alleged to have acted 'in breach of the Franchise Agreement Terms' by non-disclosure of alleged discussions with Optus or M8 Telecom in circumstances where it is not alleged that the individuals concerned were parties to one or more of the Franchise Agreements.

188 To the extent TeleChoice wishes to allege that the defendants induced a breach of the Franchise Agreement by a 'guarantor', the pleading does not identify who is alleged to be a guarantor or the term or terms relating to the (unspecified) guarantees said to have been breached, or the terms creating a primary obligation on the part of a guarantor to perform the obligations referred to in, for example, paragraphs 118 (a) and (b) of the Third FASOC.[139]

189 The Solicitation Conduct allegation is broad, inclusive and generalised in nature in circumstances where any particulars provided to date do not identify, for example: the acts or omissions on the part of the defendants said to comprise the relevant conduct; who was said to have acted; when, and in relation to whom, the defendants are alleged to have so acted; or the substance of what was alleged to have been said in each case. It is to be observed here that the recent inclusion in the particulars of the sentence that 'TeleChoice refers to the witness statements and outlines of evidence' of four named individuals does not materially aid or address the position, noting also the somewhat generalised content in parts of these documents and that they do not appear to relate to a number of the allegations in the particulars to paragraph 121 in any event. In this case the reference to witness statements and outlines serves to compound the lack of clarity when regard is had to their content - recognising also that particulars are intended to, and do, serve a different function to the evidence in any event.

190 The material challenges with the pleading are further compounded by the failure to plead at least one essential element of an inducing breach of contract claim, namely that the relevant defendant intended to induce or procure a breach of the particular Franchise Agreement in question. The pleading and proving of intent is essential, but is not addressed in the pleading in relation to any of these alleged claims , whether in an impermissibly rolled up way or otherwise. If it is proposed that such claims are to be pursued this would need to be considered and addressed in relation to each proposed inducing breach of contract claim that is proposed to be made. Self-evidently, this is not a technical point or a matter of form but requires full and careful consideration to ensure that there is a proper basis in each case for the making of such allegations if they are to be made - and ensuring that in each case the pleading of such a material fact is supported by adequate particulars.

191 I add that I do not accept the submission made on behalf of TeleChoice during the hearing that the pleading of the necessary and relevant intent can be inferred, or is established by, the pleading of an implicit purpose in paragraph 120 to attempt to procure those parties to enter into agreements with Optus, M8 Telecom or otherwise promote Optus products. It is not alleged there or elsewhere in relation to each or any of the relevant (but unidentified) Franchise Agreements that one or more of the defendants intended to bring about a breach of the relevant Franchise Agreement. This matter of intent is, of itself, a material omission justifying the striking out of the relevant paragraphs even if all other matters were put to one side, which they should not be.

192 It is also apparent that the allegations of knowledge do not include allegations - impermissibly rolled up or otherwise - of knowledge of the defendants in each case that the relevant acts relied upon would be a breach of each of the particular Franchise Agreements in question.

193 At a general level it appears that what the drafters have sought to do is frame a somewhat non-specific collection of alleged inducing breach of contract claims in an impermissibly rolled up and collective manner whilst simultaneously not giving the defendants sufficiently clear notice of the claims that are to be met, and failing to address at least one essential element of each inducing breach of contract claim. The court itself is in a similar insufficiently informed position about the claims sought to be pursued and adjudicated upon.

194 As appeared to be at least implicitly (but properly) accepted by senior counsel for TeleChoice, the deficiencies in the pleading of the Solicitation Conduct adversely impact on the breach of contract claim in paragraph 123 of the Third FASOC because it is based upon the alleged engagement in that conduct.[140] The existence of this breach of contract claim also further underscores the importance of properly exposing and articulating the acts and omissions or other matters relied upon if it is proposed to pursue such a claim in any further proposed pleading.

195 It is also the case that, as pleaded, TeleChoice's causation allegation for the inducing breach of conduct claims and the breach of contract claim (in paragraphs 117 to 124) is not sufficiently articulated so as to allow the defendants or the court to understand how this part of the claims is put. It appears from the particulars to the inducement paragraph (paragraph 121) that the allegations of breach of the Franchise Agreements are said to be a failure by various named people to disclose to TeleChoice discussions with Optus or 'M8 Telecom' about the possibility of supporting Optus products, at or about the time of the end of the Final Dealer Appointment. However, as the defendants submitted, the Third FASOC does not articulate how such non-disclosure in any given case is alleged to have caused loss at all, or of the kind referred to in paragraph 122 of the Third FASOC. It is possible that such alleged causation is based upon an as yet unidentified counterfactual for each of the Franchise Agreements said to have been breached, but the defendants and the court are left to speculate about this - and noting again that the position must be considered and addressed in relation to each of the Franchise Agreements and parties concerned.

196 There is also force in the observation of senior counsel for the defendants that each inducing breach of contract claim is, in effect, a 'case within a case'. Fairness requires that any such claims are sufficiently pleaded from a substantive point of view so as to give adequate notice of the case that is required to be met, which also well serves the overarching purpose in s 7 of the CPA.

197 Whether examined closely or standing back in a pragmatic way it is clear that the claims as pleaded in their current form are deficient, and manifestly so. It will not be lost on the parties that if such claims are sought to be re-pleaded, then those framing the claims will be conscious of the matters raised above and that they are, in effect, seeking to plead a separate and stand-alone cause of action against the relevant defendant/s in respect of individual and separate Franchise Agreements and the parties to them. Whilst some efficient drafting measures will no doubt be properly considered, this does not detract from the requirement of ensuring that any such claims are adequately pleaded, including in a way that provides sufficient clear notice to the defendants and the court of the claim or claims that are required to be met.

198 In their current form the claims pleaded in paragraphs 117 to 124 of the Third FASOC are materially deficient and should be struck out, and I propose to make orders to that effect. This will be without prejudice to TeleChoice's right to seek further to amend their claim so as to plead claims of the character referred to should it be so advised.

Part I: Alleged delay by the defendants in bringing the application

199 As mentioned at the commencement of Part A.3 above, TeleChoice raised allegations of delay by the defendants as being relevant to the exercise of the court's discretion. This has been considered in the context of each of the claims referred to above, but it is convenient to capture and address the issue collectively in these reasons, which is also the way the issue was addressed by the parties.

200 Before addressing the defendants' complaints in its written and oral submissions, TeleChoice drew attention to what it described as the defendants' delay in bringing the application, which it submitted was a matter that ought 'weigh heavily on the exercise of the court's discretion'. It submitted that a number of the paragraphs the subject of the application had been in existence in earlier versions of the claims and amended claims in the same or substantially similar form. These submissions were supported by a comparison table in the written submissions, to which I have had regard[141] but need not be set out here.

201 Whilst it was acknowledged by TeleChoice that some of the delay was attributable to the stay of the proceeding pending the provision of security for costs, it was said that this did not account for it all, it being noted also that the issue of delay had been raised by the court at a directions hearing on 26 June 2020. TeleChoice submitted that the defendants had not sought to explain the delay nor justify it in it submissions.

202 That said, TeleChoice stated (understandably) that it did not submit that delay of itself would be a sufficient basis to refuse the application, but that it was a matter to be taken into account in conjunction with the particular submissions raised in response to each of the complaints, and that these matters collectively (including delay) weigh strongly against exercising any discretion in favour of Optus.

203 The Optus Entities did not agree, and they characterised the delay submission as 'surprising' given the history of the proceeding.[142]

204 They submitted that in the period to 22 November 2019 the making of the application was not a viable course given the stay of the proceedings until 16 September 2019, objections raised in correspondence in October and November 2019, TeleChoice's abandonment of certain claims for non-payment of commissions, and a foreshadowed preliminary discovery application by TeleChoice.

205 It was further submitted that, despite no preliminary discovery application being made, in the period following December 2019, the extended discovery conferral process, and the defendants' request for documents from TeleChoice that it relied on in preparing the claims in paragraphs 43, 49, 50, 53 and 137 to 139 of its then pleading, served to expose the absence of a proper basis for parts of those claims. It was said that data was then provided to TeleChoice on 17 June 2020 to demonstrate to it that the internal dealer code change claims were unsustainable. By what was said to be the defendants' solicitors' detailed letter of 19 June 2020 the first application was foreshadowed, which was then made in accordance with directions made on 20 June 2020. That was said to have been pursued but then not ultimately determined after a day's hearing because of further foreshadowed changes and the course and procedure adopted by the court to seek to further narrow the issues, ultimately resulting in the application the subject of these reasons being made. It was submitted that throughout this process, including by requests for particulars and by way of the provision of a list of deficiencies and responses, the issues the subject of the application now before the court were consistently raised.

206 The defendants also disputed that the Intended Telstra Appointment claim was always present, submitting that although analogues to paragraphs 9 and 12 of the Third FASOC can be identified in earlier iterations, the claim was, as a matter of substance, introduced by the Second FASOC on 25 November 2019, stating also that there were no paragraphs that were analogues to paragraphs 16, 19, 29, 30, 31, 32, 33, 34 and 36 of the Third FASOC prior to the existence of the Second FASOC.

207 Ultimately it was submitted that no question of delay on the part of the defendants arises and that it is only after TeleChoice has been allowed every opportunity to establish a basis for the Intended Telstra Appointment claim, and properly plead the same, that the defendants sought the relief they now do.

208 Although not expressed quite in this way, it was evident that the substance of TeleChoice's submissions regarding alleged delay were directed at the exercise of the court's residual discretion under rr 23.01 and 23.02 of the Rules and s 64 of the CPA. It was expressly recognised by TeleChoice that delay 'by itself' would not in the circumstances of this case be a sufficient basis to refuse relief of the kind sought by the defendants, which was a proper position to take.

209 Having regard to the affidavit evidence and the Procedural Chronology (Attachment 1), including the documents referred to in the Procedural Chronology that were in evidence, I do not accept that the defendants have acted in a tardy manner in relation to the bringing of the application in the way submitted by TeleChoice. A review of the procedural history of the proceeding demonstrates that various deficiencies with the statement of claim and later iterations of it have been raised throughout the course of the proceeding, including from as early as 2018 before the proceeding was stayed for an extended period as a result of the plaintiff failing to provide security for costs.

210 The security for costs (and stay) order was made by Elliott J on 3 August 2018 and varied by orders of Croft J nearly a year later on 14 June 2019. TeleChoice appointed new solicitors in March 2019. Security for costs was provided between mid June and mid September 2019. The first substantive step after the stay was the filing of the plaintiff's summons on 17 September 2019 seeking leave to file and serve a proposed second further amended statement of claim. There is no basis for legitimate criticism of the defendants for not further agitating pleading or other deficiencies between at least August 2018 and September 2019.

211 Shortly after the proposed second further amended statement of claim was served by TeleChoice on the defendants in September 2019, notice was given of various deficiencies, which then resulted in a further proposed pleading and further revisions again, ultimately seeing the Second FASOC being filed on 25 November 2019. A lengthy conferral process associated with the discovery task followed, which all parties accept was not without challenge and complexity. It was during parts of, and in connection with this process, that further concerns were raised regarding pleaded claims and their basis. So much was apparent from the evidence, and is reflected in the Procedural Chronology during the period from early May 2020.

212 This phase involved extensive correspondence passing between the parties' solicitors on various matters, including the exchange of data and other material relating to the internal dealer code claims and expressing concerns regarding the claw back claims. The plaintiff's solicitors letter of 17 June 2020 is an example of this correspondence.

213 By June 2020 it was more than apparent to TeleChoice that the defendants considered the Second FASOC to be defective, with the parties further communicating to see if issues could be narrowed or resolved. This was occurring in circumstances where the parties and the court were facing challenges associated with the COVID-19 pandemic and that which it entailed, and where the court was encouraging the parties to work hard to seek to resolve or narrow the issues.

214 Orders were also made for the filing of a summons by the defendants if issues could not be resolved and this occurred on 31 July 2020, following which further attempts were made to address matters, ultimately leading to a further amended summons being filed on 25 August 2020. A timetable was made for filing of submissions and further evidence by the parties and the hearing of the application commenced on 23 November 2020. After a day of hearing it became apparent that the plaintiff was going to seek to further review and amend its claim and the defendants were to revisit their list of alleged deficiencies. Consequently, the merits of the application were not ultimately determined and a further regime was put in place to allow for further proposed pleadings to be served and responded to. The first step was providing a further list of deficiencies with the Second FASOC for the plaintiff to consider in advance of providing its proposed third further amended statement of claim. This occurred by way of a detailed list from the defendants.

215 The first iteration of the Third FASOC was then provided to the defendants on 10 December 2020 as contemplated by the substance of the court ordered regime. On 22 December 2020 the defendants served a document setting out their grounds of opposition, as was also required by the court ordered regime. Again, the document was detailed.

216 Ultimately this resulted in the Third FASOC being served pursuant to the ordered regime, which occurred on 22 February 2021. For pragmatic and efficiency based case management reasons, orders were made by agreement on 12 February 2021 allowing the Third FASOC to be filed and served in its current form, but without prejudice to the defendants' right to file a strike out/stay/summary judgment application, which was foreshadowed at the time and was filed on 1 March 2021 and is the subject of these reasons. Between then and the hearing of the application each party filed further evidence and written submissions.

217 The parties have proceeded on the basis that the current pleading relied upon by the plaintiff is the Third FASOC, which is why leave was given for it to be filed and served in the way referred to.[143] Shortly before the hearing the plaintiff served a proposed Fourth FASOC, but no application in relation to this document has been made and it is now proposed to pursue an application to further amend in a revised form, the detail of which will be influenced by the outcome of the defendants' application as reflected in these reasons.

218 Although it is fair to say that the parties' progress of this proceeding has not been swift, a review of the material earlier referred to reveals that this has been due to a variety of circumstances, none of which should in my view 'weigh heavily' for or against either party in the context of the hearing and determination of the current applications. Having regard to the parties' and the court's obligations under the CPA, and the complexities associated with this proceeding, the most significant matters relevant to the exercise of my discretion in the present circumstances are the substantive merits or otherwise of each of the issues raised, but with the overlay of the CPA obligations never removed. It is clear in my view that in this case having the substantive merits of the application as the primary consideration best serves the parties' and the court's obligations under the CPA and best facilitates the just, efficient, timely and cost effective resolution of the real issues in dispute.

219 It is also to be remembered, as senior counsel for the defendants submitted, that TeleChoice has benefited from the passage of time and the further opportunities that it has provided TeleChoice to seek better to formulate the claims that it wishes to pursue. These opportunities arose in part from the court directed regime aimed at seeking to narrow or resolve outstanding issues so as to enable the proceeding to progress more swiftly.

220 I add for completeness that, having had the opportunity to more closely review the various iterations of the statements of claim referred to in the Procedural Chronology and the table in TeleChoice's written submission, I do not consider that the overlap between all the claims in each revision is as substantial as TeleChoice submits, nor do I accept that it is as limited as the defendants contend. The true position is that it is somewhere in between. But whether or not that is so, or one or other of the parties is assumed to be correct, is not material when, as it should be, the evolution of the various iterations is viewed as part only of the circumstances comprising the somewhat challenged procedural history of this proceeding.

221 For present purposes the end point is that I do not accept that such delay as has occurred should weigh heavily against either party in the determination of the issues on this application, or the exercise of my discretion. In all of the circumstances I consider it to be essentially a neutral factor in the analysis of the various matters referred to in these reasons. Further and in any event, even if there had been delay of the character submitted by the plaintiff, in the circumstances of this case no different result would have followed in respect of any of the matters earlier addressed.

222 I have also already said that I do not accept that TeleChoice should be precluded from seeking to reformulate those parts of the Third FASOC to be struck out, which I consider best serves the overarching purpose of the CPA.

223 The defendants' application has been successful in large part. In summary:

(a) The defendants' application for orders staying, dismissing, or giving summary judgment in respect of, the claims the subject of paragraphs 12, 16, 19, 29, 30, 31, 32, 33, 34 and 36 of the Third FASOC should be refused.

(b) The defendants' alternative application to strike out the claims the subject of paragraphs 12, 16, 19, 29, 30, 31, 32, 33, 34 and 36 largely succeeds. At this point the particulars to paragraph 16, including 'Annexure A' and 'Sheet B', and to paragraphs 19, 30, 31, 33, 34 and 36, should be struck out.

(c) It is not necessary to require further particulars of paragraph 46 to be provided and no order to that effect will be made.

(d) Given the concessions properly made by TeleChoice:

(i) Paragraph (d) of the particulars to paragraph 49 should be struck out.

(ii) The claims relating to dealer codes 00037, 00057, 00077, 00097, 39425, 00017, 00067, 00087 and 14121 in the particulars to paragraph 49 should be struck out.

(iii) No order is now sought, or should be made in any event, staying or giving judgment in respect of the remaining claims in the particulars to paragraph 49 regarding the Remaining Changed Codes, being dealer codes TM300, TM350, TM360, TM900, 40434 and 40831.[144]

(iv) The claims in the particulars to paragraph 49 relating to the Remaining Changed Codes should not be struck out at this point.

(v) TeleChoice should be directed to provide a schedule of proper particulars of the customers the subject of the Remaining Changed Codes that a claim is being made in respect of and that it is currently able to identify, including such of the 203 additional customers earlier referred to in respect of whom a claim is sought to be made.

(vi) Following the completion of such discovery or related processes as are agreed or directed, TeleChoice should be directed to provide an updated schedule of further particulars to paragraph 49 giving proper particulars of any additional customers in respect of whom a claim is made regarding the Remaining Changed Codes.

(vii) The reference to expert reports in the particulars to paragraph 49 should be struck out.

(e) Paragraphs 53A(b) and (c) should not be struck out. TeleChoice should be directed to provide further and better particulars of paragraph 53A(b) in the manner referred to in these reasons.

(f) Given the concessions properly made by TeleChoice, paragraphs 56, 57, 58, 59, 60, 61, 65 (in part), 66 and 67 should be struck out. This is without prejudice to TeleChoice's right to seek leave to further amend the Third FASOC so as to include properly pleaded claims of the character referred to in these paragraphs.

(g) Paragraphs 117 to 124 should be struck out. This is without prejudice to TeleChoice's right to seek leave to further amend the Third FASOC so as to include properly pleaded claims of the character referred to in these paragraphs.

(h) Any consequential amendments to the Third FASOC (including the prayer for relief) should be made to take into account the issues addressed and conclusions reached in these reasons.

224 The parties should seek to agree a form of orders to give effect to these reasons for consideration by the court, and any areas of disagreement should be identified.

225 If after meaningful conferral the parties cannot reach agreement regarding the question of costs, I will hear from the parties in relation to that issue. The proposed orders should also address next steps in the proceeding.

Letter from Plaintiff to Defendants demanding $100 million and enclosing a draft Statement of Claim

Originating Process and Statement of Claim filed by the Plaintiff

Defendants raise possible application for security for costs (exhibit PJJ-3 to affidavit of Paul James dated 14 June 2018)

1. The defendants provide written notice to the plaintiff of any alleged deficiencies in and / or requests for further and better particulars of the statement of claim dated 15 December 2017 by 4:00 pm on 2 March 2018.
2. The plaintiff file and serve any amended statement of claim on or before 4:00 pm on 28 March 2018.

List of deficiencies in the Statement of Claim served on the Plaintiff

Summons issued by Defendants seeking security for costs

Orders of his Honour Justice Elliott listing hearing of Summons for 3 August 2018

Hearing of the Summons seeking security for costs before of his Honour Justice Elliott.

1. Pursuant to r 62.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the plaintiff provide security for the defendants' costs in the amount of $791,730.63 ("the Security").
2. ...
3. If the plaintiff fails to comply with paragraph 1 and 2 of these orders by 4:00pm on 31 August 2018, the proceeding be stayed.
4. The plaintiff file and serve a further amended statement of claim, to insert a prayer for relief, by 4:00 pm on 10 August 2018.
5. As soon as practicable, the parties, including counsel if necessary, confer to agree upon a protocol and any appropriate orders for discovery.
6. The parties jointly report to the court, by email to the associates of the Honourable Justice Elliott, on the result of the conferral referred to in paragraph 5 of these orders, including any agreed protocol and proposed orders, together with (if applicable) a short statement of any matter upon which the parties have not been able to agree, by 4:00 pm on 29 August 2018.

Plaintiff seeks Defendants' consent to extend date for provision of security to 1 October 2018. Letter from Plaintiff's solicitor includes:

"We will notify once security has been finalised, and we request that your clients take no further steps in the proceeding until that time."

Counsel for the Plaintiff sends an agreed communication to the Court stating, amongst other things:

a. it has been unable at this stage to arrange security and that it will not be able to do so by the deadline in Order 3 of Justice Elliott's Orders of 3 August; and

b. the plaintiff has not taken any steps in relation to Orders 5 and 6 of those Orders.

In the circumstances, by operation of Order 3 of Justice Elliott's Orders of 3 August, the matter will be stayed.

Once the plaintiff has security in place, it proposes to apply to the Court for the stay to be lifted and seek a new timetable for discovery and further steps in the proceedings. The defendants reserve their position in this regard."

Summons issued by Defendants seeking dismissal of proceedings pursuant to rule 62.04

1. The Defendants' application for the dismissal of the proceedings be adjourned until 5 June 2019.

1. Order 1 of the Orders of the Honourable Justice Elliott dated 3 August 2018 (Orders) be varied so as to read:

"Pursuant to r 62.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the plaintiff to provide security for the defendants' costs in the amount of $791,730.63, payable in the following tranches:

d. $181,730.62 on or before 5pm 16 September 2019."

1. The plaintiff is to provide any proposed Second Further Amended Statement of Claim and file and serve any application seeking leave to file any proposed Second Further Amended Statement of Claim by 5pm on 16 September 2019.

Summons issued by Plaintiff seeking to file and serve a amend the Second Further Amended Statement of Claim

Defendants write to Plaintiff noting numerous deficiencies in the Proposed Second Further Amended Statement of Claim and enclosing document titled "Defendants" written notice of the deficiencies in the plaintiff's Statement of Claim" provided to the then solicitors for the Plaintiff on 2 March 2018

Plaintiff writes to the Defendants responding to Defendants' lists of deficiencies and attaching:

• an "updated proposed second further amended statement of claim"; and
• a document setting out the basis of the estimated loss of $100,724,095 referred to in paragraph 19 of that claim

(Application Book, pp.200 - 204 (proposed SFASOC omitted from Application Book)

1. The plaintiff has leave to file and serve, by 4:00pm on 29 November 2019, a second further amended statement of claim in the form referred to in the letter from Danaher Legal to Clayton Utz dated 20 November 2019 (being the exhibit marked as 'SY-7' to the affidavit of Simon Young sworn on 20 November 2019), save for paragraphs 55 to 57, which are to be excised.
2. By 4:00pm on 5 February 2020 the defendants file and serve a defence to the second further amended statement of claim.
3. By 4:00pm on 19 February 2020 the plaintiff file and serve any reply to the defence to the second further amended statement of claim.

1. By 4:00pm on 6 March 2020, the parties confer and agree upon a protocol and any appropriate orders for discovery.
2. By 4:00pm on 18 March 2020, the parties jointly inform the Court by email to the associates of the Honourable Justice Connock of the result of the conferral referred to in paragraph 1 of these orders, including any agreed protocol and proposed orders, together with (if applicable) a short statement of any matter upon which the parties are not able to agree.

Correspondence exchanged between the parties in relation to discovery (including, but not limited to, correspondence referred to below)

Conference between the parties on discovery in relation to plaintiff's commission-based claims

Defendants write to Plaintiff requesting a copy of the documents that form the basis of the Plaintiff's commission-based claims

Defendants write to Plaintiff seeking, among other things, a response to the letter dated 8 May 2020

Defendants write to Plaintiff seeking, among other things:

1. confirmation of the basis upon which the particulars to paragraph [19] of the SFASOC was prepared; and
2. a copy of 'Sheet B'.

Defendants email Plaintiff seeking a response to the letter dated 8 May 2020

Defendants write to Plaintiff in relation to 'clawback' claims, and issue Notice to Produce seeking emails referred to in paragraph 60 of SFASOC

Plaintiff responds to letter dated 8 May 2020. The documents requested by Defendants are not attached

Conference between the parties on discovery in relation to plaintiff's commission-based claims

Defendants write to Plaintiffs seeking production under Notice to Produce dated 22 May 2020, requesting a response to letter dated 22 May 2020, and seeking clarification as to scope of claim in paragraph 60 of SFASOC

Plaintiffs write to Defendants enclosing production in response to Notice to Produce dated 22 May 2020, and foreshadowing response in relation to scope of claim in paragraph 58 of SFASOC

Defendants write to Plaintiff enclosing data extracted from the Defendants' commission system for the customers referred to in the particulars to paragraphs 49 and 52 of the SFASOC. (Application Book, pp.149 - 150 and JPM-18(ii))

Defendants write to Plaintiffs seeking response in relation to scope of claim in paragraph 59 of SFASOC

Defendants write to Plaintiff's setting out position in relation to commission and clawback claims, and foreshadowing filing of Summons

Plaintiff writes to Defendants enclosing tables setting out the clawbacks referred to in paragraphs 58 to 60 of the SFASOC

Plaintiff writes to the Defendants in response to the letter dated 19 June 2020

1. By 4:00pm on 3 July 2020, the defendants provide a substantive response to the plaintiff's solicitors' letter dated 24 June 2020.
2. By 4:00pm on 17 July 2020, the plaintiff provide a substantive response to the defendants' solicitors' letter dated 19 June 2020.
3. ...
4. By 4:00pm on 31 July 2020, the defendants file and serve any application by summons seeking to strike out any part of the plaintiff's second further amended statement of claim, together with any further affidavit material and written submissions in support of that application.

Defendants write to Plaintiff setting out substantive response to letter dated 24 June 2020

Defendants write to Plaintiff and enclose, among other things, data extracted from the Defendants' commission system for the customers referred to in the particulars to paragraph 137 of the SFASOC.

Plaintiff writes to Defendants setting out substantive response to letter dated 2 July 2020

Defendants write to Plaintiff requesting a copy of the "Movement Reports" referred to in the letter dated 17 July 2020

Plaintiff provides "Movement Reports" to Defendants

• all additional documents and information relied upon to prepare the particulars to paragraphs 49 and 52 of the SFASOC;
• all documents and information relied upon to prepare Annexure B of the letter dated 17 July 2020; and
• a 'Movement Report' for customer 'LO'.

Plaintiff writes to Defendants, enclosing material requested in letter dated 22 July 2020

Defendants write to Plaintiff requesting all documents and information relied upon to prepare the particulars to paragraph 137 of the SFASOC.

Plaintiff provides material requested by Defendants on 27 July 2020

Defendants file Summons, First Affidavit of Leong Chi Wong, Affidavit of Jonathon McRostie and Outline of Submissions

Defendants file Amended Summons pursuant to order of his Honour Justice Connock dated 6 August 2020.

Plaintiff files and serves Outline of Submissions and First Affidavit of Liliane Seifen

Plaintiff sends an email to chambers of his Honour Justice Connock attaching a summary of its claims.

Directions hearing before his Honour Justice Connock.

Defendants write to Plaintiff regarding its submission at the directions hearing on 21 August 2020 concerning the reconciliation of payment of commission, as stated by the Plaintiff's senior counsel that "if these payments could be properly reconciled and proved then we could just move on and we could focus not on what Optus accepts are internal dealer code changes but the final dealer code changes which both parties accept had an effect on the payment of commission to TeleChoice." Defendants request confirmation of what Plaintiff requires to be reconciled.

Plaintiff writes to Defendants in response to email of 26 August 2020.

Defendants serve Second Affidavit of Leong Chi Wong and revised Outline of Submissions in support of the Further Amended Summons (pursuant to orders dated 21 August 2020). These documents filed and sealed copies served on 8 September 2020

Defendants write to Plaintiff in response to letter dated 2 September 2020 regarding 'reconciliation' of commissions payments

Plaintiff serves Consolidated Outline of Submissions and Second Affidavit of Liliane Seifen

Defendants write to Plaintiff requesting copies of the instructions provided to Mr Denis Tarasov referred to in the Second Affidavit of Liliane Seifen

Plaintiff writes to Defendants stating that documents referred to in Second Affidavit of Liliane Seifen are privileged and would not be produced.

Defendants write to Plaintiff regarding particulars to paragraph 19 of SFASOC and the calculation of loss arising from the 'Revenue Representation' claim, and requests (among other things) a copy of a document described as "Sheet B"

Defendants write to Plaintiff repeating request for production of documents referred to in the Second Affidavit of Liliane Seifen and foreshadowing a notice to produce in the event that production was not otherwise made

Defendants file and serve List of Documents (Tranche 1)

Defendants write to Plaintiff requesting a response to letter dated 5 October 2020 (regarding the calculation of loss arising from the 'Revenue Representation' claim).

Plaintiff writes to Defendants maintaining position that documents referred to in Second Affidavit of Liliane Seifen are privileged, and stating that that privilege has not been waived

Defendants issue notice to produce documents referred to in Second Affidavit of Liliane Seifen

(Copy sent to chambers of his Honour Justice Connock on 23 November 2020)

Defendants write to Plaintiff requesting copies of the "Optus generated reports" referred to in Plaintiff's letter of 15 October 2020.

Plaintiff files and serves List of Documents (Tranche 1)

Defendants write to Plaintiff requesting "Optus generated reports".

Email from chambers of his Honour Justice Connock notifying the parties that the Defendants' application by summons would be listed for hearing on 18 November 2020, and that the Defendants and Plaintiff should file and serve any additional material by 5 November and 12 November respectively.

Defendants write to Plaintiff seeking further and better particulars of the calculation of loss in "Sheet B"

Defendants file and serve Third Affidavit of Leong Chi Wong

Email from chambers of his Honour Justice Connock notifying the parties that the hearing of the Defendants summons would be adjourned to 23 November 2020. Orders to that effect made on 13 November 2020.

Plaintiff files and serves Third Affidavit of Liliane Seifen

Defendants file Further Amended Defence. Document served on the Plaintiff on 18 November 2020.

Defendants write to Plaintiff requesting a response to the Defendants' letter of 3 November 2020 (requesting further and better particulars to "Sheet B")

Plaintiff files and serves submissions on its objection to the notice to produce dated 19 October 2020 and a supporting Affidavit of Liliane Seifen

(These documents not included in the Application Book)

Defendants file and serve Outline of Submissions on Notice to Produce dated 19 October 2020

Plaintiff notifies Defendants that it "is considering cross examining Mr Leong Chi (Peter) Wong" at the hearing on 23 November 2020

Plaintiff writes to Defendants confirming that it will make an application for leave to cross examine Mr Wong at the hearing on 23 November 2020.

Hearing of Defendants' summons (part heard). Orders made at conclusion of the hearing.

Defendants file and serve their 'List of Deficiencies in SFASOC', pursuant to paragraph 4 of orders dated 23 November 2020.

(sent to the chambers of his Honour Justice Connock by email dated 4 February 2020)

Plaintiff serves the first iteration of its Proposed Third Further Amended Statement of Claim, pursuant to paragraph 5 of orders dated 23 November 2020.

(sent to the chambers of his Honour Justice Connock by email dated 4 February 2020)

Defendants write to Plaintiff objecting to inclusion of paragraphs [150A] to [150L] in the first iteration of the Proposed Third Further Amended Statement of Claim

Defendants write to Plaintiff requesting documents referred to in the particulars to paragraph 12 of the first iteration of the Proposed Third Further Amended Statement of Claim.

Defendants serve document setting out their grounds of opposition to the first iteration of the Plaintiff's Proposed Third Further Amended Statement of Claim.

(sent to the chambers of Connock J by way of email dated 4 February 2020)

Plaintiff files and serves four Witness Statements and three Outlines of Evidence

Defendants file and serve List of Documents (Tranche 2)

Plaintiff files and serves List of Documents (Tranche 2)

Defendants write to Plaintiff stating that no response had been received to letter dated 21 December 2020 and requesting that the "July 2007 Forecast" be provided without further delay

Defendants write to Plaintiff again requesting copy of "July 2007 Forecast"

Plaintiff writes to Defendants attaching "July 2007 Forecast"

Parties send email to chambers of his Honour Justice Connock regarding their compliance with paragraphs 4 to 6 of the orders made on 23 November 2020

Defendants write to Plaintiff referring to comments made by his Honour Justice Connock at the hearing on 23 November 2020, and inviting it to produce the documents responsive to the Notice to Produce dated 19 October 2020

Plaintiff produces documents (in redacted form) responsive to Notice to Produce dated 19 October 2020.

Defendants write to Plaintiff request further production be made of the documents responsive to the Notice to Produce dated 19 October 2020.

Directions hearing before his Honour Justice Connock. Orders made at conclusion of hearing.

Plaintiff writes to Defendants attaching documents responsive to the Notice to Produce dated 19 October 2020. The documents previously produced on 10 February 2021 are re-produced again in redacted form

Plaintiff serves second iteration of its Proposed Third Further Amended Statement of Claim, pursuant to paragraph 1 of the orders made on 12 February.

Plaintiff also serves a document setting out its responses to the Defendants' grounds of opposition (served on the Plaintiff by the Defendants on 22 December 2020)

Defendants write to Plaintiff seeking confirmation of the documents described as the "Draft Heads of Agreement dated 1 October 2006", and the "Draft Telstra Dealership Agreement"

Defendants write to Plaintiff seeking clarification on the documents produced by the Plaintiff on 19 February 2021 pursuant to the Notice to Produce dated 19 October 2020

Plaintiff writes to Defendants confirming documents described as the "Draft Heads of Agreement dated 1 October 2006", and the "Draft Telstra Dealership Agreement"

Defendants file 'fresh' summons pursuant to paragraph 5 of orders dated 12 February 2021.

Plaintiff writes to Defendants stating that "our client does not maintain its claim with respect to the application by Optus of dealer code 39425. Accordingly, example (d) in the particulars subjoined to paragraph 49 of the proposed third further amended statement of claim should be deleted (with the deletion shown as a double strikethrough)."

Plaintiff writes to Defendants in response to letter dated 24 February 2021 regarding documents produced in response to the Notice to Produce dated 19 October 2020

Plaintiff writes to Defendant referring to comments in 'responses' document attached to 22 February 2021 email (see above) and seeking clarification regarding Defendants' objections to allegations relating to dealer codes 00017, 00067, 00087 and 14121

Defendants write to Plaintiff responding to 2 March 2021 email stating that the Plaintiff "has not provided any material that supports its allegations in respect of a number of the dealer codes currently referred to in the particulars to paragraph 49, including dealer codes 00017, 00067, 00087 and 14121. There is no factual basis stated for the reference in the TFASOC to those dealer codes."

Plaintiff serves Outline of Submissions and Affidavit of Liliane Seifen, in support of its application for leave to amend to include paragraphs [150A] to [150L] of the PTFASOC. Those documents filed on 9 March 2021

Defendants file and serve Outline of submissions, Fourth Affidavit of Leong Chi Wong (dated 3 March 2021) and Affidavit of Jarrad Mathie

Defendants write to Plaintiff referring to paragraph 21 of Plaintiff's submissions dated 9 March 2021 (in support of its application for leave to amend) and requesting a description of the discovery it considers would be required in respect of paragraphs 150A to 150L

Defendants file and serve Outline of Submissions and Affidavit of Jonathon McRostie, in opposition to Plaintiff's application for leave to amend

Plaintiff files and serves Outline of Submissions and Fourth Affidavit of Liliane Seifen, in opposition to Defendants' summons

Directions hearing before Connock J. Orders made fixing hearing of Defendants' summons and Plaintiff's application to amend its third further amended statement of claim for 27 April 2021

Plaintiff serves Proposed Fourth Further Amended Statement of Claim

Defendants file and serve consolidated Outline of Submissions in support of their summons

Plaintiff files and serves Consolidated Outline of Submissions and Fifth Affidavit of Liliane Seifen

Defendants write to Plaintiff seeking confirmation of Plaintiff's position in respect of sub-paragraph (d) of the particulars to paragraph [49] of the Third Further Amended Statement of Claim

Plaintiff writes to Defendants clarifying its position in respect of sub-paragraph (d) of the particulars to paragraph [49] of the Third Further Amended Statement of Claim (Plaintiff informed chambers of his Honour Justice Connock of this position by way of email dated 9 April 2021)

Plaintiff serves draft summons seeking leave to file and serve a Fourth Further Amended Statement of Claim "substantially in the form of the Proposed Fourth Further Amended Statement of Claim provided to the defendants and the Court on 26 March 2021 (PFASOC), save that paragraphs 9 and 12 of the PFASOC are replaced by the form of those paragraphs (including paragraph 9A) provided to the defendants and the Court on 28 April 2021."

OPTUS MOBILE PTY LTD (ACN 054 365 696) (and others according to schedule 1)

SECOND THIRD FURTHER AMENDED STATEMENT OF CLAIM

Filed pursuant to the Orders of His Honour Justice Connock on 22 November 2019 dated 23 November 2020

Date of Document: 25 November 201922 February 2021 Solicitors Code: 104265

Filed on behalf of: The Plaintiff Telephone: 1300 363 314

Danaher Legal Moulton Email: simon@danaherlegal.com.au

Level 7, 333 Collins St simon@danahermoulton.com.au

EQUITABLE ESTOPPEL ARISING FROM THE REVENUE REPRESENTATION 12

Breaches Arising from Disassociation of Customers 23

BREACHES IN RELATION TO WRONGFUL DEDUCTION OF COMMISSION 33

UNLAWFUL CONDUCT ARISING FROM THE SETTLEMENT AGREEMENT 40

UNLAWFUL POST-NOTICE CONDUCT AND FURTHER BREACHES OF SETTLEMENT AGREEMENT 46

INDUCING BREACH OF CONTRACT BY TELECHOICE FRANCHISEES 50

BREACH OF THE BUSINESS CHANNEL PARTNER AGREEMENT 53

BREACH IN RESPECT OF NON-PAYMENT FOR UNSOLD PRODUCTS 63

1. The plaintiff (TeleChoice) is and at all material times:

(b) traded, and continues to trade, under the business name "TeleChoice"; and

(c) was engaged in the business of providing mobile phone and internet options to individual and business customers as a retail dealer exclusively for products and services offered by the first to fourth defendants.

1. The first defendant (Optus Mobile) is and was at all material times incorporated and capable of being sued.
2. The second defendant (Optus Internet) is and was at all material times incorporated and capable of being sued.
3. The third defendant (Optus Networks) is and was at all material times incorporated and capable of being sued.
4. The fourth defendant (Optus Vision) is and was at all material times incorporated and capable of being sued.
5. The first to fourth defendants provide and operate telecommunications, mobile and internet services throughout Australia and are hereafter referred to as "the Optus Entities".

1. In or around June 2001, TeleChoice and the Optus Entities entered into a Master Agreement and Master Dealer Agreement, pursuant to which TeleChoice was appointed an Optus premium dealer (First Dealer Appointment).

Copies of the 2001 Master Agreement and 2001 Master Dealer Agreement are in the possession of the solicitors for TeleChoice and are available for inspection on request.

1. On or around 1 April 2005, TeleChoice and the Optus Entities agreed to renew the Master Agreement and Master Dealer Agreement for a further three year term commencing 1 April 2005 (Second Dealer Appointment).

Copies of the 2005 Master Agreement and 2005 Master Dealer Agreement are in the possession of the solicitors for TeleChoice and are available for inspection on request.

1. From in or around June 2006 until July 2007 and prior to the end of the term of the Second Dealer Appointment, TeleChoice negotiated with Telstra Corporation Limited (Telstra) the terms of an agreement pursuant to which TeleChoice would be appointed a Telstra dealer for a five year term commencing on or around 15 April 2008 (Intended Telstra Appointment).

Copies of the draft Heads of Agreement dated 1 October 2006 (Draft Telstra Heads of Agreement) and the Draft Telstra Dealership Agreement (Draft Telstra Agreement) are in the possession of the solicitors for TeleChoice and are available for inspection on request.

1. 122. Part of The Intended Telstra Appointment was to include terms by which the TeleChoice business would be purchased by Telstra at the conclusion of, or during the term, of the Intended Telstra Appointment at a purchase price of up to $100 million (Telstra Purchase Term).

The Telstra Purchase Term was discussed during meetings and conversations between TeleChoice and Telstra in about early July 2007. The people present at, and party to, those meetings and discussions included Mr Ehab Abdou and Mr Paul Reeves, Directors of TeleChoice, and Mr John Roland and Mr John Boniciolli of Telstra. The Telstra Purchase Term was referred to in clause 1.6 of the Draft Telstra Heads of Agreement and clause 17 of the Draft Telstra Agreement.

1. In or about early July 2007, TeleChoice informed the Optus Entities that TeleChoice intended to enter into the Intended Telstra Appointment and would no longer be an Optus dealer.

During a telephone call between Mr Abdou and Mr Paul O'Sullivan, then Chief Executive Officer of Optus, Mr Abdou told Mr O'Sullivan words to the effect that TeleChoice would be leaving Optus at the end of March 2008 because TeleChoice had done a deal with Telstra. Mr O'Sullivan asked Mr Abdou if TeleChoice had signed an agreement with Telstra yet, to which Mr Abdou replied words to the effect of "The deal is done but we haven't signed yet. We're signing in a couple of days". Mr O'Sullivan asked Mr Abdou to travel to Sydney to discuss with Mr O'Sullivan before TeleChoice signed an agreement with Telstra. Mr Abdou agreed to do that.

1. In or about early July 2007, the Optus Entities represented to TeleChoice that if TeleChoice entered into a further dealer appointment with the Optus Entities at the end of the Second Dealer Appointment (Final Dealer Appointment) the revenue earned by TeleChoice under the Final Dealer Appointment further dealer appointment would be the same as the revenue that would be earned by TeleChoice under the Intended Telstra Appointment (Revenue Representation).

The Revenue Representation was made orally and in writing, and was also to be implied or inferred.

To the extent that it was made orally, the Revenue Representation was made on or about 5 July 2007 during a meeting between Paul O'Sullivan and Anthony Shiner of Optus and Mr Abdou and Mr Reeves of TeleChoice (July 2007 Meeting), at which words to the following effect were said:

(i) Mr O'Sullivan asked what TeleChoice required in order to abandon the Intended Telstra Appointment and remain an Optus dealer;

(ii) Mr O'Sullivan said that Optus would match the terms of Telstra's offer "dollar for dollar";

(iii) Mr O'Sullivan asked for a copy of the proposed terms with Telstra so that Optus could include the commercial terms in a new dealership agreement to be put in place between TeleChoice and the Optus Entities; and

(iv) Mr O'Sullivan said that Mr Shiner would be responsible for having the terms of the new dealership agreement drafted to achieve the "dollar for dollar" outcome for TeleChoice.

To the extent that it was in writing, the Revenue Representation was made in:

(i) the letter dated 10 July 2007 addressed from the Optus Entities to TeleChoice, which letter addressed the representations made at the July 2007 Meeting and responded to TeleChoice's analysis of the revenue it expected to make under the Intended Telstra Appointment when compared to the revenue it would make under a further Optus appointment, which TeleChoice provided to Optus, or which Optus saw, in about June July 2007 (July 2007 Forecast); and

(ii) the document entitled "TeleChoice Contract Financial Summary" dated 21 August 2007 provided to TeleChoice by email from Steve Martinelli of Optus to Mr Abdou and Ms Liliane Seifen, Chief Operating Officer of TeleChoice, on 22 August 2007 (The Financial Summary).

The Revenue Representation was also to be implied or inferred from the Optus Entities' silence in response to the letter dated 12 July 2007 from TeleChoice to the Optus Entities which stated: "TeleChoice understands that Optus will match the current Telstra offer. The assumption being that revenue will be the same under both deals for the same number of sales."

The fact that Optus saw the July 2007 forecast is to be inferred from the fact that Optus' subsequent correspondence, including the Financial Summary, adopted the figures from the July 2007 forecast.

1. Further or alternatively, the Revenue Representation was a continuing representation that continued at least up until the parties entered into the Final Dealer Appointment, (as defined in paragraph 19A below).
2. The Revenue Representation was made in trade or commerce within the meaning of section 52 of the Trade Practices Act 1974 (Cth) (TPA).
3. Insofar as the Revenue Representation was a representation as to a future matter, the Optus Entities lacked reasonable grounds to make the representation and TeleChoice relies on section 51A of the TPA (up to 31 December 2010) and section 4 of the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL) (from 1 January 2011).
4. Contrary to the Revenue Representation, the revenue earned by TeleChoice under the Final Dealer Appointment (as defined in paragraph 19A below) was not the same as the revenue that would have been earned by TeleChoice under the Intended Telstra Appointment.

During the term of the Final Dealer Appointment (as defined in paragraph 19A below), TeleChoice earned $258,464,733 in revenue from Optus.

Had TeleChoice entered into the Intended Telstra Appointment, it estimates that it would have earned approximately $100,400,674 more in revenue than it did under the Final Dealer Appointment.

The basis for TeleChoice's estimate is set out in Annexure A to this Third Further Amended Statement of Claim.

Further particulars may be provided after discovery and the exchange of expert reports.

1. By making the Revenue Representation, the Optus Entities engaged in conduct that was misleading and deceptive, or likely to mislead or deceive, in contravention of section 52 of the TPA.
2. In reliance on the Revenue Representation, TeleChoice:

(b) did not enter into the Intended Telstra Appointment; and

(c) entered into the Final Dealer Appointment (as defined in paragraph 19A below) with the Optus Entities.

By telephone call in about mid July 2007, Mr Abdou of TeleChoice told Mr John Boniciolli of Telstra that TeleChoice had decided to remain an Optus dealer and that the decision was because Optus had agreed to match the Intended Telstra Appointment "dollar for dollar".

In and around March and April 2008, TeleChoice entered into the Final Dealer Appointment with the Optus Entities by executing the following documents:

(ii) the Master Dealer Agreement dated 1 April 2008;

(iii) a letter intended to be dated 19 March 2008 but incorrectly dated 19 March 2007 (First Side Letter).

(iv) a letter dated 30 April 2008 (Second Side Letter).

(collectively, the Final Dealer Appointment)

1. TeleChoice has suffered loss and damage by the Optus Entities' misleading or deceptive conduct being the Revenue Representation.

But for the representation, TeleChoice would have entered into, and earned revenue from, the Intended Telstra Appointment. During the term of the Final Dealer Appointment, TeleChoice procured approximately 767,147 post-paid GSM Service connections on the Optus Mobile network (Total GSM Services) and approximately 80% of those Total GSM Services were as part of mobile handset plans procured by TeleChoice. Using the same assumptions about the revenue that TeleChoice would have earned under the Intended Telstra Appointment as those adopted by Optus in the Financial Summary, TeleChoice estimates that it would have earned approximately $100,724,095.00 more in revenue under the Intended Telstra Appointment than it earned under the Final Dealer Appointment. Further particulars may be provided after discovery and the exchange of expert reports.

TeleChoice refers to and repeats the particulars to paragraph 16 above.

19A. In and around March 2008, TeleChoice entered into an agreement pursuant to which TeleChoice was reappointed an Optus premium dealer (the Final Dealer Appointment).

The Final Dealer Appointment was partly in writing and partly oral.

(i) the Master Agreement dated 1 April 2008 (2008 Master Agreement);

(ii) the Master Dealer Agreement dated 1 April 2008 (2008 Master Dealer Agreement);

(iii) a letter intended to be dated 19 March 2008 but incorrectly dated 19 March 2007 (First Side Letter); and

(iv) a letter dated 30 April 2008 (Second Side Letter)

Insofar as it was oral, it was contained in the Revenue Representation alleged in paragraph 12 above.

1. 123. In and around July 2007, TeleChoice informed the Optus Entities of the Telstra Purchase Term.

Words to the effect alleged were said by Mr Abdou and Mr Reeves to Mr O'Sullivan and Mr Shiner during the July 2007 Meeting.

1. 124. Prior to the entry into the Final Dealer Appointment, and during the term of the Final Dealer Appointment, the Optus Entities represented to TeleChoice that they would match the Telstra Purchase Term and purchase the TeleChoice business at a future date (Purchase Representation).

During the July 2007 Meeting, Mr O'Sullivan said words to the effect that his team would work on different options to achieve an exit strategy with Optus that would match the Telstra term. He said that this work would be finalised during the term of the new dealer agreement.

An email from Mr O'Sullivan to Mr Abdou dated 18 May 2011 stated:

"Mike [Smith] and Mark [Brunton] to visit you within a month to provide an update on our retail strategy review - to reflect on what it means for Telechoice, and work with you on alternative models for the retail business; and

"Coming out of that session we will start a discussion with you on a way forward to help you think about spending more time (whilst "still young") doing other things''.

At a presentation on 10 June 2011, Mike Smith and Mark Brunton of the Optus Entities told Mr Abdou and Mr Reeves of TeleChoice that the Optus Entities would purchase the TeleChoice business (2011 Presentation). The Presentation, entitled 'Long Term Strategic Potential' listed three exit strategies (numbered 3, 4 and 5 in the Presentation) for TeleChoice which included the total or partial acquisition by the Optus Entities of the TeleChoice business.

During the 2011 Presentation, Mr Smith said words to the effect that the TeleChoice business was worth "between 60 million and $100 million but let's call it $80 million" and that the terms on which the Optus Entities would purchase the TeleChoice business would be finalised with TeleChoice after the parties had agreed on the terms for a new dealership agreement to replace the Final Dealer Appointment on and from 1 April 2013.

1. The Purchase Representation was made in trade or commerce within the meaning of section 52 of the TPA and section 18 of the ACL.
2. Insofar as the Purchase Representation was a representation as to a future matter, the Optus Entities lacked reasonable grounds to make the representation and TeleChoice relies on section 51A of the TPA (up to 31 December 2010) and section 4 of the ACL (from 1 January 2011).
3. Further, or alternatively, the Purchase Representation was a continuing representation that continued until on or around 28 September 2012.

The Purchase Representation continued until on or around 28 September 2012, at which time the Optus Entities informed TeleChoice that they did not intend to enter into a new dealer appointment with TeleChoice upon the conclusion of the Final Dealer Appointment.

1. Contrary to the Purchase Representation, the Optus Entities did not purchase, or offer to purchase, the TeleChoice business from TeleChoice.

On or around 28 September 2012, the Optus Entities informed TeleChoice that they did not intend to enter into a new dealer appointment with TeleChoice upon the conclusion of the Final Dealer Appointment on 31 March 2013 and the Optus Entities did not then, or at any time, make an offer to purchase the TeleChoice business.

1. By making the Purchase Representation, the Optus Entities engaged in conduct that was misleading and deceptive, or likely to mislead or deceive, in contravention of section 52 of the TPA and section 18 of the ACL.
2. In reliance on the Purchase Representation, TeleChoice:

(b) did not enter into the Intended Telstra Appointment;

(c) entered into the Final Dealer Appointment with the Optus Entities ;

(d) made necessary investments into the TeleChoice business to grow the TeleChoice business for the mutual benefit of TeleChoice and the Optus Entities beyond the term of the Final Dealer Appointment, to the knowledge of the Optus Entities;

(e) entered into long term leases which extended beyond the term of the Final Dealer Appointment;

(f) did not pursue or explore other potential purchasers or options to dispose of the TeleChoice business, such as listing on the Australian stock exchange.

TeleChoice refers to and repeats the particulars to paragraph 18.

In the period from 10 June 2011 to 28 September 2012, TeleChoice opened five (5) new stores to sell the Optus Entities' products and services and undertook the re-fit or refurbishment of a further 22 stores to sell Optus Mobile products and services. TeleChoice also entered into long term leases in respect of the new stores with the terms of those leases extending well beyond the term of the Final Dealer Appointment.

1. TeleChoice has suffered loss or damage by the Optus Entities' misleading or deceptive conduct being the Purchase Representation.

1. In addition to the written terms There was a term of the Final Dealer Appointment set out in the Master Agreement, the Master Dealer Agreement, the First Side Letter and the Second Side Letter, the terms of the Final Dealer Appointment included an express term by which that the Optus Entities agreed to pay to TeleChoice during the term of the Final Dealer Appointment the same revenue as TeleChoice would have earned under the Intended Telstra Appointment (Revenue Term).

The Revenue Term was oral and express and implied, and TeleChoice refers to and repeats the particulars to paragraph 12.

1. By failing to pay to TeleChoice revenue that was the same as what TeleChoice would have earned under the Intended Telstra Appointment, the Optus Entities breached the Revenue Term.

TeleChoice refers to and repeats the particulars to paragraph 16 above.

1. As a result of the Optus Entities' breach of the Revenue Term, TeleChoice has suffered loss and damage.

TeleChoice refers to and repeats the particulars under paragraph 19 to paragraph 16 above.

1. Further or alternatively, in or around July 2007, the parties agreed that in consideration for TeleChoice entering into the Final Dealer Appointment with Optus a further dealer appointment with the Optus Entities at the end of the Second Dealer Appointment:

(a) Optus would pay to TeleChoice revenue under the Final Dealer Appointment further dealer appointment which would be the same as the revenue that TeleChoice would have earned under the Intended Telstra Appointment;

(b) Optus would match the Telstra Purchase Term and purchase the TeleChoice business at a future date.

TeleChoice refers to and relies on the particulars to paragraphs 12 to 21.

The Collateral Contract was partly in writing and partly oral.

(a) the letters dated 10 July 2007 and 12 July 2007 referred to in the particulars to paragraph 12 above; and

Insofar as it was oral, it was contained in the discussions at the July 2007 Meeting referred to in the particulars to paragraphs 12, 20 and 21 above.

(a) Optus failed to pay to TeleChoice the same revenue as the revenue that TeleChoice would have earned under the Intended Telstra Appointment; and

(b) Optus did not purchase the TeleChoice business.

TeleChoice refers to and relies on the particulars to paragraphs 19 and 25.

1. By reason of Optus's breach of the Collateral Contract, TeleChoice has suffered loss and damage.

TeleChoice estimates that it would have earned approximately $100,724,095.00 more in revenue under the Intended Telstra Appointment than it earned under the Final Dealer Appointment. Further particulars may be provided after discovery and the exchange of expert reports.

TeleChoice refers to and repeats the particulars to paragraph 16 above.

EQUITABLE ESTOPPEL ARISING FROM THE REVENUE REPRESENTATION

1. Further or alternatively, the Revenue Representation gives rise to an equitable estoppel arising from the following facts:

(a) in reliance on the Revenue Representation, TeleChoice assumed that the revenue it would earn under the Final Dealer Appointment would be the same as the revenue that it would have earned under the Intended Telstra Appointment;

(b) Optus induced TeleChoice to adopt the assumption;

(c) TeleChoice acted to its detriment in reliance on the assumption;

(d) Optus knew, and intended, that TeleChoice would so act;

(e) it would be unconscionable for Optus to fail to fulfil the Revenue Representation; and

(f) TeleChoice will suffer detriment if the Revenue Representation is not fulfilled by Optus.

TeleChoice refers to and relies on the particulars under paragraphs 12 to 19 above.

TeleChoice is entitled to equitable compensation in the amount particularised under paragraph 16 above.

[NOTE: Paragraphs 37 to 45 omitted from this extract.]

1. It was an implied term of the Final Dealer Appointment that Optus Mobile (whether by itself or through an agent engaged on Optus Mobile's behalf) must not cause a customer activated by TeleChoice on a TeleChoice dealer code become disassociated from a TeleChoice dealer code whilst such customer remains on an eligible rate plan with the effect that commission was no longer paid to TeleChoice, except where such disassociation arises as a result of the customer being recontracted by a dealer or Premium Dealer (as those two terms were referred to in the 2008 Master Agreement and the 2008 Master Dealer Agreement) pursuant to an express contractual right (Dealer Code Maintenance Term).

The Dealer Code Maintenance Term is to be implied from the following:

(a) the fact that Optus Mobile was obliged to allocate a dealer code to TeleChoice for each location from which it conducted its business (see clause 4(d) of the 2008 Master Dealer Agreement);

(b) the fact that TeleChoice was obliged to identify all activations of customers by its unique TeleChoice dealer codes (see 2008 Master Dealer Agreement, schedule 2 clause 1.3 (b));

(c) the fact that Optus Mobile was obliged to pay call commission to TeleChoice until the earlier of (a) such time as the customer was no longer connected to an eligible rate plan or (b) such time as the customer was no longer associated with the TeleChoice dealer code, or (c) the date on which the 2008 Master Dealer Agreement is terminated (see schedule 2, clause 4.5 of the 2008 Master Dealer Agreement);

(d) the fact that Optus Mobile's systems calculated TeleChoice's commission entitlement by reference to the TeleChoice dealer codes;

(e) the fact that Optus at all relevant times controlled the allocation of dealer codes;

(f) the fact that Optus at all relevant times controlled the computer systems by which dealer codes could be changed;

(g) the fact that Optus Mobile was obliged to provide monthly reports to TeleChoice which set out TeleChoice's commission entitlement (see clause 11 of the 2008 Master Dealer Agreement);

(h) the fact that TeleChoice could not independently verify the accuracy of the monthly reports provided by Optus Mobile which set out TeleChoice's commission entitlement because Optus failed to report TeleChoice's entitlement to call commission on a service-by-service basis;

(i) the fact that TeleChoice's commission for procuring an Optus Mobile customer comprised two components, namely activation commission and call commission;

(j) the fact that absent such term, Optus Mobile could unilaterally deprive TeleChoice of, amongst other things, a large part of TeleChoice's remuneration for procuring an Optus Mobile customer by disassociating a customer from the TeleChoice dealer code and, consequently, cease to pay call commission in respect of such customer despite the fact that such customer was procured by TeleChoice;

(k) the fact that TeleChoice was, and its related bodies corporate were, prohibited from directly or indirectly engaging in the connection of customers to any network operated by a competitor of Optus (2008 Master Agreement, clause 6.2);

(l) the fact that Optus was not prevented by anything in the 2008 Master Agreement or 2008 Master Dealer Agreement from competing with TeleChoice by appointing other dealers and that Optus intends to appoint other 'Optus Premium Dealers' (2008 Master Agreement, clause 6.5; 2008 Master Dealer Agreement, clause 3.1);

(m) the fact that the only contractual right to cancel a dealer code was contained in the 2008 Master Dealer Agreement, at:

(i) clause 16(b) of the 2008 Master Dealer Agreement, which provided that where TeleChoice ceased to carry on business at any location, Optus Mobile would immediately cancel the dealer code for that location but would continue to pay call commission which would be paid in respect of the cancelled dealer code until the termination or expiration of the 2008 Master Dealer Agreement in respect of customers whose activations to a GSM Service were facilitated by TeleChoice from that location; and

(ii) clause 25.3 of the 2008 Master Dealer Agreement, which provided that on termination of the 2008 Master Dealer Agreement, Optus Mobile was obliged to immediately cancel the dealer code(s) allocated to TeleChoice for the locations; and

(iii) so as to give business efficacy to the 2008 Master Dealer Agreement.

1. As a matter of construction of the Final Dealer Appointment or, alternatively, as implied by law, the Optus Entities agreed to:

(a) exercise their contractual powers and discretions reasonably and in good faith; and

(b) not engage in actions that would deprive TeleChoice of the benefit of the Final Dealer Appointment.

1. Further or alternatively it was an implied term of the Final Dealer Appointment that the Optus Entities agreed to act in good faith in associating and disassociating customers activated by TeleChoice with dealer codes (Dealer Code Good Faith Term).

The Dealer Code Good Faith Term is to be implied. It is implied in fact from the matters alleged in the particulars to paragraph 46. Further, or alternatively, it is implied at law.

1. In breach of the Dealer Code Maintenance Term, Dealer Code Good Faith Term and General Good Faith Term, during the term of the Final Dealer Appointment, Optus Mobile (by itself and through agents engaged on Optus Mobile's behalf including a telemarketing agent known as 'OCIS') carried out Digital Advances (as defined in the 2008 Master Dealer Agreement) in respect of customers on a TeleChoice dealer code and caused the dealer code to be changed other than in compliance with the Dealer Code Policy (Dealer Code Policy Breach Conduct).

(a) On or about 7 February 2009, TeleChoice activated a customer (Customer LO) on the Optus Mobile network on a 24 month eligible rate plan with mobile number #######352 using TeleChoice dealer code 63166. On or about 20 December 2012, Optus changed the dealer code to 00077, which was not a TeleChoice dealer code;

Examples of Dealer Code Policy Breach Conduct include:

(b) On or about 7 June 2009, TeleChoice activated a customer (Customer YM) on the Optus Mobile network on a 24 month eligible rate plan with mobile number #######786 using TeleChoice dealer code 63014. On or about 15 October 2010 10 July 2012, a telemarketing agent acting on behalf of Optus carried out a digital advance with the consequence that Optus changed the dealer code to TM350, disassociated the customer from TeleChoice and thereafter ceased to pay commission to TeleChoice with respect to Customer YM which was not a TeleChoice dealer code;

(c) On or about 18 October 2010, TeleChoice activated a customer (Customer GJ) on the Optus Mobile network on a 24 month eligible rate plan with mobile number #######639 using TeleChoice dealer code 63122. On or about 4 July 2012, a telemarketing agent acting on behalf of Optus carried out a digital advance for Customer GJ and with the consequence that Optus changed the dealer code to TM900, disassociated the customer from TeleChoice and thereafter ceased to pay commission to TeleChoice with respect to Customer GJ which was not a TeleChoice dealer code;

(d) On or about 15 January 2010, TeleChoice activated a customer (Customer ST) on the Optus Mobile network on a 24 month eligible rate plan with mobile number #######860 using TeleChoice dealer code 63028. On or about 18 April 2011, Optus carried out a digital advance for Customer ST, with the consequence that Optus and changed the dealer code to 39425, disassociated the customer from TeleChoice and thereafter ceased to pay commission to TeleChoice with respect to Customer ST which was not a TeleChoice dealer code; and

(e) On or about 17 November 2010, TeleChoice activated a customer (Customer JA) on the Optus Mobile network on a 24 month eligible rate plan with mobile number #######005 using TeleChoice dealer code 63538. On or about 21 September 2012, Optus carried out a digital advance for Customer JA with the consequence that Optus and changed the dealer code to 40831, disassociated the customer from TeleChoice and thereafter ceased to pay commission to TeleChoice with respect to Customer JA which was not a TeleChoice dealer code.

In the period from 1 April 2008 until 31 March 2013, TeleChoice procured approximately 767,147 post-paid GSM Service connections on the Optus Mobile network. TeleChoice has not had access to Optus' computer systems since 31 March 2013 which has hindered TeleChoice's investigations. So far as TeleChoice is able to determine, dealer codes used by Optus to engage in the Dealer Code Policy Breach Conduct included 00017 (Optus Direct Channel), 00037, 00057, 00067 (Optus Teledirect Synergy), 00077, 00087 (Optus Web Internal), 00097, TM300 (OCIS Oceania- Box Hill), TM350 (OCIS Inbound), TM360 , TM900 (OCIS Oceania- Fiji), 39425, 14121(Optus Head Office), 40434 and 40831(Carrier Telecoms). None of those dealer codes was a TeleChoice dealer code. Each of those dealer codes identified either Optus or a telemarketing agent engaged by it. TeleChoice claims in respect of all TeleChoice customers who were the subject of a Digital Advance where the dealer code was changed to one of those identified above with the effect that Optus ceased to pay commission to TeleChoice.

Further particulars will be provided after discovery and subpoenas have been issued and complied with and the exchange of expert reports.

[NOTE: Paragraphs 50 to 53 omitted from this extract.]

53A. Had the Optus Entities not breached the Dealer Code Maintenance Term, Dealer Code Good Faith Term and General Good Faith Term by their conduct pleaded in paragraphs 49, 52 and 53, TeleChoice would have:

(a) continued to receive call commission in respect of TeleChoice customers in respect of whom call commission would otherwise have remained payable (being customers who would have remained on a TeleChoice Dealer Code until they were associated with a non-TeleChoice Dealer Code (in a manner not in breach of the Final Dealer Appointment) or were no longer Optus customers);

(b) in all likelihood recontracted those TeleChoice customers after the prohibition period had expired and thereby would have derived activation commission and management fees in respect of those customers; and

(c) further, by reason of the foregoing sub-paragraphs, the resulting activations would have counted towards TeleChoice's targets to achieve its 2011/12 and 2012/13 Outcome Payments (as referred in paragraphs 88 to 91 below).

[NOTE: Paragraph 54 omitted from this extract.]

BREACHES ARISING FROM THE CLAUSE 11.4 CLAWBACKS

1. It was an express term of the Master Dealer Agreement that:

(i) TeleChoice does not comply with the procedures set out in the dealer bulletins for proposed activations; or

(ii) Optus Mobile has reason to believe that any activations were made in circumstances involving fraud of which TeleChoice knew or ought to have known,

(b) is not obliged to pay commission to TeleChoice for those activations;

(c) may require TeleChoice to pay to Optus Mobile the amount of any bad debt incurred by Optus Mobile; and

(d) may require TeleChoice to pay to Optus Mobile, in respect of activated mobile telephones, the amount of any hardware subsidy,

1. As pleaded at paragraph 47, it was a term of the Final Dealer Appointment that the Optus Entities would exercise any discretions, including the discretion in Clause 11.4, reasonably and in good faith and, not engage in actions that would deprive TeleChoice of the benefit of the Final Dealer Appointment (General Good Faith Term).
2. Further and alternatively, it was a term of the Final Dealer Appointment that the Optus Entities (including Optus Mobile) would act in good faith in assessing whether there had been a failure by TeleChoice to comply with any alleged procedures for activations set out in dealer bulletins so as to give rise to an entitlement to claw back payments from TeleChoice in reliance on Clause 11.4 (Compliance Good Faith Term).

The Compliance Good Faith Term was to be implied at law.

1. During the term of the Final Dealer Appointment, in purported reliance on Clause 11.4 of the 2008 Master Dealer Agreement, the Optus Entities:

(a) clawed back payments that had been made to TeleChoice on the basis that TeleChoice had not complied with the procedures set out in purported dealer bulletins for proposed activations (Alleged Non-Compliance Claw Backs); and

(b) clawed back payments from TeleChoice, and deducted amounts of bad debt allegedly incurred by Optus Mobile, or hardware subsidies had previously paid by Optus Mobile, where it had reason to believe that activations were made in circumstances involving fraud of which TeleChoice knew or ought to have known (Alleged Fraud Claw Backs).

During the term of the Final Dealer Appointment, Optus Mobile clawed back or otherwise deducted on account of Alleged Non-Compliance Claw Backs and Alleged Fraud Claw Backs, more than $1.7 million of monies $1,350,839.39 paid or payable to TeleChoice.

(i) the Optus Entities had allegedly investigated a customer account and concluded that the customer had committed 'fraud', in addition to TeleChoice being alleged by Optus to not have complied with procedures set out in purported dealer bulletins for that customer's activation; and

(ii) the Optus Entities alleged that subsequent to the activation being procured by TeleChoice, the customer failed to pay a bill to Optus on account of that activation, in addition to TeleChoice being alleged by the Optus Entities to not have complied with procedures set out in purported dealer bulletins for that customer's activation.

Further particulars will be provided after discovery and subpoenas have been issued and complied with.

The Alleged Non-Compliance Claw Backs which TeleChoice alleges were wrongfully made are contained in a table annexed to this Statement of Claim as Annexure B.

The Alleged Fraud Claw Backs which TeleChoice alleges were wrongfully made are contained in a table annexed to this Statement of Claim as Annexure C.

1. The Alleged Non-Compliance Claw Backs were made in circumstances where any alleged non-compliance was without proper basis or trivial.

The Alleged Non-Compliance Claw Backs included where:

(i) a customer's identification documents were alleged by the Optus Entities to not have been uploaded by TeleChoice to the Optus portal, or not uploaded by TeleChoice to the Optus portal by the time stipulated by the Optus Entities (iScan Process);

(ii) the Optus Entities alleged that fewer than 100 points of identification documents were provided by TeleChoice to Optus in respect of a customer (Identification Process);

(iii) the Optus Entities alleged that TeleChoice did not take or otherwise retain copies of payment cards in a manner that was 'PCI compliant' (PCI Process); and

(iv) Optus described the alleged conduct of TeleChoice in respect of procuring the customer activation as:

(v) the Alleged Non-Compliance Claw Backs that were made in respect of alleged bad debts were made in circumstances where Optus Mobile had not, in fact, written off the alleged bad debts, and/or where Optus Mobile was subsequently paid all or part of the alleged bad debts by the customers concerned and did not account to TeleChoice for the corresponding amount previously clawed back from TeleChoice.

1. The Alleged Fraud Claw Backs were made in circumstances where Optus Mobile did not have or assert any proper basis to believe that either:

(a) the relevant Activation was made in circumstances involving fraud; or

(b) TeleChoice knew or ought to have known that the relevant Activation was made in circumstances involving fraud.

The emails sent by the Optus Entities to TeleChoice notifying TeleChoice of the Alleged Fraud Claw Backs did not assert any act or omission on the part of TeleChoice or a customer which constituted fraud, nor did they reveal any investigations conducted by Optus to demonstrate any alleged fraud or basis for the Optus Entities' belief that TeleChoice knew or ought to have known that the relevant Activation had been made in circumstances involving fraud.

Further, the bulk of the Alleged Fraud Claw Backs were notified by Optus to TeleChoice after the Notice of Termination on 28 September 2012.

Further particulars may be provided after discovery.

1. Further or alternatively, in each instance of an Alleged Fraud Claw Back, if the relevant Activation was made in circumstances involving fraud (which is denied), TeleChoice did not know and could not have known, at the time of procuring the customer activation, of the fraud.
2. 51. Further or alternatively, Optus Mobile clawed back payments from TeleChoice the Alleged Non-Compliance Claw Backs that were made in respect of alleged bad debts were made in circumstances where:

(a) Optus Mobile had not, in fact, written off the alleged bad debts, and/or

(b) where Optus Mobile was subsequently paid all or part of the alleged bad debts by the customers concerned and did not account to TeleChoice for the corresponding amount previously clawed back from TeleChoice by Optus Mobile.

By correspondence in about early 2013, TeleChoice sought confirmation from the Optus Entities (including through its lawyers Minter Ellison) that amounts it sought to claw back from payments to TeleChoice alleged to be on account of 'bad debts' had in fact been written off by Optus as bad debts. The Optus Entities failed to provide any such confirmation. A copy of that correspondence is in the possession of TeleChoice's solicitors and may be inspected by appointment.

Further particulars may be provided after discovery and subpoenas have been issued and complied with and the exchange of expert reports.

1. 52. Further or alternatively, it was a term of the MDA Master Dealer Agreement that Optus Mobile must provide TeleChoice with such training as the Optus Entities considered appropriate to enable TeleChoice to comply with any dealer bulletins provided by the Optus Entities which set out procedures for activations (Master Dealer Agreement, clauses 4(f) and 17.1).
2. 53. During the term of the Final Premium Dealer Appointment, Optus Mobile did not provide training to TeleChoice to enable it to comply with any dealer bulletins provided by the Optus Entities which set out procedures for activations.

During the term of the Final Dealer Appointment no training was provided by Optus to TeleChoice directed to compliance with any dealer bulletins provided by the Optus Entities which set out procedures for activations.

1. Further or alternatively, Clause 11.4 is unenforceable as a penalty or should be read down, to the extent that it would otherwise entitle the Optus Entities to claw back or otherwise claim payments from TeleChoice in circumstances where the alleged non-compliance with procedures set out in the dealer bulletins for proposed activations was trivial and the sum would be out of all proportion to the interests of the Optus Entities which it is the purpose of the clause to protect.

The failure to comply with procedures by TeleChoice did not necessarily result in any loss to the Optus Entities or cause any detriment to their legitimate financial or business interests. Instances of Alleged Non-Compliance Claw Backs which did not result in any loss or detriment include where TeleChoice had allegedly not complied with the iScan Process, Identification Process or PCI Process or where the customer continued to be an Optus customer despite the alleged non-compliance.

Further particulars will be provided after discovery.

1. To the extent that any of the Alleged Non-Compliance Claw Backs were made in circumstances where the alleged non-compliance was trivial and did not give rise to any loss or detriment to the Optus Entities or their legitimate interests, such sums were penalties and would be out of all proportion to the interests of Optus which it is the purpose of the clause to protect.
2. Further or alternatively, in making the Alleged Non-Compliance Claw Backs and the Alleged Fraud Claw Backs in the circumstances alleged above, the Optus Entities breached the General Good Faith Term and the Non-Compliance Good Faith Term.
3. As a result of the Optus Entities' breaches of contract in respect of the Alleged Non-Compliance Claw Backs and Alleged Fraud Claw Backs, TeleChoice has suffered loss or damage.

TeleChoice's loss and damage is the amount clawed back by Optus in respect of the Alleged Non-Compliance Claw Backs and Alleged Fraud Claw Backs.

Further particulars to be provided after discovery and exchange of expert reports.

[NOTE: Paragraphs 69 to 116 omitted from this extract.]

INDUCING BREACH OF CONTRACT BY TELECHOICE FRANCHISEES

1. During the term of the Final Dealer Appointment, TeleChoice entered into or continued franchise agreements with its franchisees (the Franchise Agreements).

The Franchise Agreements are in writing. A copy of each of the Franchise Agreements is in the possession of solicitors for TeleChoice and may be inspected by appointment.

1. There were terms of the Franchise Agreements, amongst others, to the following effect:

(a) that the franchisee must act in good faith towards TeleChoice;

(b) that the franchisee must disclose to TeleChoice any information of which the franchisee is aware of which may assist TeleChoice to enhance or improve its business, or which is likely to prejudice TeleChoice's business; and

(c) that the franchisee, its directors, associated entities, relatives and guarantors are restrained from engaging in a competing business during the term of the Franchise Agreement, and for a period after the end of the Franchise Agreement,

1. At all material times, the Optus Entities were aware of the Franchise Agreements and the Franchise Agreement Terms.

Pursuant to clause 5.2(f) of the 2008 Master Dealer Agreement, TeleChoice was required to obtain Optus' written approval to appoint any franchisee in respect of the business.

Pursuant to clause 4.3(a) of the 2008 Master Agreement, TeleChoice was required to enter into a written contract appointing a franchisee as an Optus Premium Dealer on terms which were approved by Optus in writing.

Similar clauses were contained in the 2001 and 2005 Master Dealer Agreements.

Throughout the terms of the First Dealer Appointment, Second Dealer Appointment and Final Dealer Appointment, Optus approved the appointment of TeleChoice franchisees. In the premises, it is to be inferred that Optus knew of the Franchise Agreements and the Franchise Agreement Terms.

1. From about early 2013, the Optus Entities engaged in a course of conduct (by themselves and through their agent M8 Telecom) whereby they spoke to then franchisees of TeleChoice, their directors, associated entities, relatives and guarantors in an attempt to procure that those parties enter into agreements with Optus and/or M8 Telecom to sell or otherwise promote Optus products and services, either through the operation of retail stores known as 'Optus Local Stores' or by means of a 'small and medium business channel partner' dealer code (Solicitation Conduct).

The TeleChoice franchisees, directors and guarantors included Gaurav Bhatia, Sonja Bhatia, Puneet Patel, Charlie Assad, Mona Assad, Priscilla Boumelhem, Danis Lal, Anita Lal, Robin Durham, Karl Hockey, Jon Balmer and Emad Captan.

TeleChoice refers to the witness statements and outlines of evidence of Priscilla Boumelhem, Charlie Assad and Gaurav Bhatia.

Further particulars will be provided after discovery and subpoenas have been issued and complied with.

1. The Solicitation Conduct induced then franchisees of TeleChoice and their guarantors to breach the Franchise Agreement Terms and thereby, to breach the Franchise Agreements.

These franchisees were among TeleChoice's highest performing franchisees.

In breach of the Franchise Agreement Terms, Gaurav Bhatia and Sonja Bhatia failed to disclose to TeleChoice their discussions with Optus and M8 Telecom in respect of a small and medium business dealer code to connect customers to Optus services and a store known as 'Optus Local Altona Gate' which they opened and operated.

In breach of the Franchise Agreement Terms, Puneet Patel failed to disclose to TeleChoice his discussions with Optus and M8 Telecom and opened a store known as 'Optus Local Stanhope Gardens' and 'Richmond Marketplace'.

In breach of the Franchise Agreement Terms, Charlie Assad, Mona Assad and Priscilla Boumelhem failed to disclose to TeleChoice their discussions with Optus and M8 Telecom in respect of a small and medium business dealer code to connect customers to Optus services and a store known as 'Optus Local Burwood' which they opened and operated.

In breach of the Franchise Agreement Terms, Danis Lal and Anita Lal failed to disclose to TeleChoice their discussions with Optus and M8 Telecom in respect of a store known as 'Optus Local Baulkham Hills'.

In breach of the Franchise Agreement Terms, Robin Durham failed to disclose to TeleChoice his discussions with Optus and M8 Telecom in respect of stores known as 'Optus Local East Village' and 'Optus Local Zetland'.

In breach of the Franchise Agreement Terms, Karl Hockey and Jon Balmer failed to disclose to TeleChoice their discussions with Optus and M8 Telecom in respect of a small and medium business dealer code to connect customers to Optus services.

In breach of the Franchise Agreement Terms, Emad Captan failed to disclose to TeleChoice his discussions with Optus and M8 Telecom in respect of a store known as 'Optus Local Stud Park'.

Further particulars will be provided after discovery and subpoenas have been issued and complied with.

1. The Solicitation Conduct constituted an inducement by the Optus Entities to the franchisees to breach their Franchise Agreement Terms causing TeleChoice loss and damage.

TeleChoice incurred the costs of maintaining stores that the relevant franchisees had abandoned, including rental expenses, as well as lost commissions that would have otherwise been made from connections that relevant franchisees would have made pursuant to their contracts with TeleChoice.

1. Further or alternatively, by engaging in the Solicitation Conduct the Optus Entities breached the General Good Faith Term in the Final Dealer Appointment.
2. TeleChoice has suffered loss or damage by reason of the Optus Entities' Solicitation Conduct.

[NOTE: Paragraphs 125 to 155 omitted from this extract.]

1. During the term of the Final Dealer Appointment, TeleChoice derived revenue of approximately $258,141,311 $258,464,733 from Optus. The figures underlying that amount, subject to two adjustments identified in paragraphs 4(b) and 4(c) below, are set out in a spreadsheet entitled "Sheet B" which was provided by TeleChoice's solicitors to Optus's solicitors on 15 October 2020, and which is attached hereto and marked "Sheet B".

1. Had TeleChoice entered into the Intended Telstra Appointment, it estimates that it would have derived revenue of approximately $358,865,407 from Telstra. The figures underlying that estimate are set out in the spreadsheet entitled "Sheet B." which was provided by TeleChoice's solicitors to Optus's solicitors on 15 October 2020.

1. The Optus figures referred to in paragraph 1 of these particulars are derived from:

1. the Payment Summaries provided to TeleChoice by Optus on a monthly basis during the term of the Final Dealer Appointment; and

1. the amounts paid to TeleChoice by Optus in respect of marketing fees, conference fees and annual branding funds.

3A. The sources of the Optus figures in Sheet B are:

1. in respect of the line item "New Activations", the total of the "count" and "amount" figures for the following line items in the Payment Summaries provided by Optus for the relevant year:

1. in respect of the line item "Deactivation", the total of the "count" and "amount" figures for the line items in the Payment Summaries provided by Optus for the relevant year:

1. in respect of the line item "Digital Advance", the total of the "count" and "amount" figures for the following line items in the Payment Summaries provided by Optus for the relevant year:

1. in respect of the line item "Other Activation", the total of the "count" and "amount" figures for the following line items in the Payment Summaries provided by Optus for the relevant year:

1. in respect of the line item "Airtime", the total of the "count" and "amount" figures for the following line items in the Payment Summaries provided by Optus for the relevant year:

1. in respect of the line item "Value Added Services", the total of the "count" and "amount" figures for the following line items in the Payment Summaries provided by Optus for the relevant year:

1. in respect of the line item "Handset subsidy / stock rebate", the total of the "count" and "amount" figures for the following line items in the Payment Summaries provided by Optus for the relevant year:

1. in respect of the line item "Adjustments", the total of the "count" and "amount" figures for the following line items in the Payment Summaries provided by Optus for the relevant year:

1. in respect of the line item "Bonus", the total of the "count" and "amount" figures for the line item "Bonus" in the Payment Summaries provided by Optus for the relevant year;

1. in respect of the line item "Wireless/Data Products", the total of the "count" and "amount" figures for the following line items in the Payment Summaries provided by Optus for the relevant year:

1. in respect of the line item "Fixed Products", the total of the "count" and "amount" figures for the following line items in the Payment Summaries provided by Optus for the relevant year:

1. in respect of the line item "Service Fee", the total of the "count" and "amount" figures for the line item "Service Fee" in the Payment Summaries provided by Optus for the relevant year;

1. in respect of the line item "Co-op", the total of the "count" and "amount" figures for the line item "Co-Op" in the Payment Summaries provided by Optus for the relevant year;

1. in respect of the line item "Clawback", the total of the "count" and "amount" figures for the following line items in the Payment Summaries provided by Optus for the relevant year:

• in respect of the line item "Deferred Payment Commission", the total of the "count" and "amount" figures for the line item "Deferred Payment Comms" in the Payment Summaries provided by Optus for the relevant year;

1. in respect of the line item "Management Fee", the total of the "count" and "amount" figures for the line item "Management Fee" in the Payment Summaries provided by Optus for the relevant year;

1. in respect of the line item "Marketing Contribution", the total of the "count" and "amount" figures for the line item "Marketing Contribution (ex GST)" in the Payment Summaries provided by Optus for the relevant year;

1. in respect of the line item "Outcome Payment", the total of the "count" and "amount" figures for the line item "Outcome Payment" in the Payment Summaries provided by Optus for the relevant year;

1. in respect of the line item "Marketing Contribution", the total of the "count" and "amount" figures for the line item "Marketing Contribution (ex GST)" in the Payment Summaries provided by Optus for the relevant year;

1. in respect of the line item "Conference", the total of the "count" and "amount" figures are calculated pursuant to clause 5.3 of the MA;

1. in respect of the line item "Branding", the amounts that were payable annually by Optus to TeleChoice pursuant to clause 3.1 of the MDA.

1. Further, the Optus figures referred to in paragraph 1 of these particulars:

1. include the amount of $2,025,218 (excluding GST) which was deducted by Optus from its final commission payment to TeleChoice, and which is the subject of paragraphs 70 to 75 of this Third Further Amended Statement of Claim; and

1. adopt the figures in Sheet B, but add the amount of $883,422 (excluding GST), which represents the amount of $441,711 (excluding GST) which had been inadvertently deducted, instead of added, to the figures in Sheet B. That amount of $441,711 (excluding GST) was paid by Optus to TeleChoice as referred to in the letter dated 6 February 2015 from Optus to TeleChoice; and

1. adopt the figures in Sheet B, but deduct the amount of $500,000 (excluding GST) for the annual branding fund for the 2012/13 year, which was never paid by Optus (and which is the subject of paragraphs 76 to 82 of this Third Further Amended Statement of Claim), which was inadvertently added to Sheet B as having been received.

1. The Telstra figures referred to in paragraph 2 of these particulars are derived as follows:

1. where a revenue category is the equivalent between Telstra and Optus (for example, in respect of "activations"), TeleChoice has assumed that it would have achieved the same quantity of the relevant category under the Intended Telstra Appointment as it did under the Final Dealer Appointment, and has then applied the relevant amount which would have been payable under the Intended Telstra Appointment to that quantity (using the same amount per connection as was contained in the July 2007 Forecast); and

1. where a revenue category was included in the Intended Telstra Appointment but not in the Final Dealer Appointment (for example, in respect of Mobile Repayment Option), TeleChoice has adopted the same per connection figures and methodology as contained in the Intended Telstra Appointment and July 2007 Forecast.

1. in respect of the Mobile Repayment Option category, an 80% factoring was applied to the total net activations (ie "New Activations" plus "Digital Advances" minus "Deactivations") under the Final Dealer Appointment to reflect TeleChoice's achievement throughout the Final Dealer Appointment of 8 out of 10 connections being done with a handset.

[1] It is also alleged to have been partly oral. Third FASOC [19A].

[2] Which is not to ignore the draft summons that was provided to the court and the defendants shortly before court commenced on the second day of the hearing on 28 April 2021.

[3] Subject to confirming that these codes have been correctly transcribed.

[5] Sworn 31 July 2020 and 19 March 2021.

[7] Sworn 31 July, 4 September and 6 November 2020, and 3 March 2021.

[8] Sworn 11 August, 18 September, and 13 November 2020, and 9, 19 and 26 March 2021.

[10] It was common ground that regard could be had to documents referred to in the pleading when considering an application under r 23.02 of the Rules.

[11] [1968] VicRp 7; [1968] VR 62, 70 (Winneke CJ, Adams and Gowans JJ).

[12] [2013] VSC 316, [25] (footnotes included).

[13] The function of defining issues for trial is required from an early stage. Otherwise, discovery and other interlocutory process are likely to be misdirected: Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd & Ors [1996] FCA 1758; (1996) ATPR 41-522 per Burchett J at 42,679.

[14] A reasonable cause of action or defence is one with a real chance of success, assuming the correctness of the allegations of fact in the challenged pleading.

[15] Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568, [13], citing Bruce v Oldhams Press Ltd [1936] 1 KB 697, 712-713_._

[16] In Environinvest Ltd v Pescott [2011] VSC 325 ('Environinvest'), the pleading was struck out because it was confusing, often circular, sometimes inconsistent and contained no coherent narrative.

[17] SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd (No 2) [2011] VSC 492, [8] ('SMEC').

[19] Ibid [28]-[31]. In SMEC, Vickery J remarked (at [5]) that good pleading calls for 'judgment and courage to shed what is unnecessary'.

[20] Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228; (1985) 7 FCR 109, 114.

[21] In Gunns Ltd v Marr [ 2005] VSC 251 ('Gunns'), Bongiorno J remarked (at [52]) that the paragraphs in the pleading 'contain quotations from newspapers, websites and correspondence which are inappropriate in form'.

[22] Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 286 (Mason CJ and Gaudron J).

[23] Clarke v Great Southern Finance Pty Ltd [2010] VSC 473, [9] ('Clarke').

[24] Knorr v CSIRO (No 2) [2012] VSC 268.

[25] In Gunns, Bongiorno J noted (at [20]) that the particulars to the amended statement of claim under attack incorporated allegations of approximately 40 other paragraphs, requiring the defendants to navigate through a labyrinth of allegations. His Honour refused leave to file the amended statement of claim in the proposed form.

[26] Rule 23.04 and Day v William Hill (Park Lane) Ltd [1949] 1 KB 632.

[27] Clarke [2010] VSC 473, [11].

[28] Davy v Garrett [1878] UKLawRpCh 8; (1878) 7 Ch D 473.

[29] [2017] VSC 556, [15].

[30] [2020] VSCA 186, [35]-[37], [50]-[52] (Niall, Hargrave and Emerton JJA).

[32] Babcock & Brown (No 2) [2017] VSC 556, [17].

[33] [2017] VSCA 11; (2017) 55 VR 62.

[35] At CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd [2017] VSCA 11, [21]-[28] (Redlich, Tate and Ferguson JJA).

[37] [2015] VSC 8, [11].

[38] [2002] HCA 31, [1]-[2].

[39] And is statutorily reinforced by the court's obligations under the CPA.

[40] Knight v Bell [2000] VSCA 48, [12] (Ormiston JA).

[41] [2020] NSWSC 365, [87]-[90].

[42] Ascot Vale Self Storage Pty Ltd (in liq) v Nom de Plume Pty Ltd [2019] VSC 794, [97]; Treasury Wines Estates Ltd v Melbourne City Investments Pty Ltd [2014] VSCA 351; (2014) 45 VR 585, 599 [62] (Kyrou JA).

[43] (2011) 244 CLR 427, 452 [89]. Abuse of process in a different context was also recently addressed by Nettle J in Re Golding [2020] HCA 38, [11].

[44] [2006] HCA 27; (2006) 226 CLR 256, 265 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

[45] (1995) 184 CLR 19, 74-5.

[46] Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, 502.

[47] [1994] HCA 42; (1994) 181 CLR 251, 286.

[48] [2012] VSCA 42; (2012) 36 VR 130, 153-155 [97].

[51] [1994] HCA 42; (1994) 181 CLR 251.

[52] (2009) 252 ALR 612; 83 ALJR 384.

[53] [2009] HCA 43; (2009) 239 CLR 75.

[54] [1989] HCA 46; (1989) 168 CLR 23, 76 (Gaudron J).

[56] [1994] HCA 42; (1994) 181 CLR 251.

[57] [1981] UKHL 13; [1982] AC 529.

[58] [1994] HCA 42; (1994) 181 CLR 251.

[59] [2006] HCA 27; (2006) 226 CLR 256.

[60] (1993) 177 CLR 378, 398 (Mason CJ and Deane and Dawson JJ).

[61] Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr; Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Tim Barr Pty Ltd & Ors [2005] NSWCA 240, [62] (Ipp JA, Hodgson JA and Campbell AJA agreeing); Ascot Vale Self Storage Pty Ltd (in Liq) v Nom de Plume Pty Ltd [2019] VSC 794, [95] (Riordan J).

[62] Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 92 (Isaacs J). See also the discussion of r 23.01 of the Rules above.

[63] [2019] VSC 703, [49]-[60].

[64] Which was drawn in part from a summary in Padella Pty Ltd v Elliott [2018] VSC 301, [19]-[28] (Matthews JR).

[65] (2013) 42 VR 27; (2013) VSCA 158.

[66] Ibid, at 40 [35] (per Warren CJ and Nettle JA, Neave JA agreeing in part (at 42 [40]-[42])).

[67] Rule 22.03 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

[68] (2009) 29 VR 213; [2009] VSCA 288 (Hausman).

[70] See footnote 13 in the reasons of the Court of Appeal in Hausman, where it was stated:

'Whether there is in fact such a burden upon a plaintiff, once the prerequisites for summary judgment have been satisfied, is a difficult question. Rule [22.05] requires a defendant, who is the subject of an application, in proper form, for summary judgment, to "show cause" why such judgment should not be granted. It may be that this imposes upon a defendant an evidential burden, or something akin thereto'.

[71] Hausman, at 225-226 [62]-[65] (citations omitted).

[72] Innovateq Australia Pty Ltd v Barnes [2016] VSC 618, [11] (Ierodiaconou AsJ), referring to Capital One Securities Pty Ltd v Soda Kids Holdings Pty Ltd [2012] VSC 163 and to Portbury Development Pty Ltd v Ottedin Investments Pty Ltd [2012] VSC 490.

[73] [2018] HCA 25, (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). See also Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17, [127]-[130] (Whelan and Santamaria JJA and T Forrest AJA).

[74] (2000) 201 CLR 552 at 575-576 [56]-[60] per Gaudron, McHugh, Gummow and Hayne JJ; [2000] HCA 41.

[75] (1949) 78 CLR 62 at 90-91 per Dixon J; [1949] HCA 1.

[76] [1964] HCA 69; (1964) 112 CLR 125 at 130 per Barwick CJ; [1964] HCA 69.

[77] (2010) 241 CLR 118; [2010] HCA 28.

[78] [2010] HCA 28; (2010) 241 CLR 118 at 131 [24] per French CJ and Gummow J, 141 [60] per Hayne, Crennan, Kiefel and Bell JJ.

[79] [2010] HCA 28; (2010) 241 CLR 118 at 140 [56], 141 [60].

[80] Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 at 39 [29] per Warren CJ and Nettle JA (Neave JA agreeing at 40 [36]); Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17 at [127]-[129].

[82] Annexure A to the Third FASOC [5a.]

[83] Examples were referred to in paragraphs 11(a)-(d) of the defendants' written submissions and also addressed during the hearing.

[84] Reproduced as part of Attachment 2 and Attachment 3 to these reasons.

[85] As was contended by senior counsel for the defendants during oral submissions - but recognising that such language does not reflect the applicable test, as is evident from the principles and observations in relation to r 23.01 and ss 62-64 of the CPA earlier set out.

[86] As, for example, was reinforced by the Court of Appeal Lysaght Building Solutions (2013) 42 VR 27; [2013] VSCA 158 [53].

[87] Trkulja v Google LLC [2018] HCA 25 [20]-[23].

[88] Noting also the terms of paragraph 9 in relation to the Intended Telstra Appointment.

[89] Which is alleged to be the Final Dealer Appointment. See, for example, paragraphs 18 and 19A of the Third FASOC.

[90] [2017] VSC 556 [15].

[91] [2020] VSCA 186 [53]-[54] (Niall, Hargrave and Emerton JJA).

[92] That is, putting to one side the allegations in paragraph 16 regarding the alleged Telstra revenue, loss and quantum.

[93] As they are for the alternative r 23.02 strike out application addressed in Part B below.

[95] I refer also to the substance of the defendants' other submissions as earlier referred to.

[96] Although I accept that there is room for improvement and greater precision in the manner in which it has been pleaded.

[97] And the absence of any substantive responses to requests for terms otherwise relied upon.

[98] For example, that part of paragraph 9 which refers to TeleChoice having '... negotiated with [Telstra] the terms of an agreement ...'.

[99] For example, the particulars to paragraph 11 regarding that which Mr Abdou is alleged to have said.

[100] And the contention that, to the extent they can, they do not demonstrate that greater revenue would have been earned.

[102] Whilst remaining true to the relevant principles and tests as earlier addressed.

[103] See s 64 of the CPA in relation to these factors and summary judgment. Whether or not the position changes following the provision of further particulars, or TeleChoice seeking to further amend the Third FASOC, remains to be seen.

[104] In these and the other paragraphs of the Third FASOC referred to in the summary table set out earlier, and which are addressed later in these reasons.

[105] See, for example, transcript 27 April 2021, 51:27-52:4.

[106] See also Wheelahan [2013] VSC 316 [25(n)], (Dixon J).

[108] Noting that as currently pleaded no loss of profit claim appears to be made notwithstanding that the counterfactual for at least the misleading conduct claim appears to be the past hypothetical of TeleChoice being a Telstra dealer.

[109] See, for example, Sellars v Adelaide Petroleum NL (1992) 179 CLR 332; Talacko v Talacko [2017] HCA 15. Noting also that senior counsel appeared to suggest that this was not so.

[110] See paragraph 46 in Attachment 2 to these reasons.

[111] Transcript 27 April 2021, 114:11-27.

[112] Who TeleChoice did not seek to cross-examine.

[113] TeleChoice had previously indicated that it did not press claims for some other dealer code changes, but that is not relevant for present purposes.

[114] Dealer codes TM350, TM900, and 40831 were also referred to generally, in addition to the particular instances in paragraphs (b), (c), and (e) of the particulars to paragraph 49.

[115] Whether a formal order is ultimately necessary may be affected by TeleChoice's further foreshadowed amendment application. It is also proposed to confirm with the parties that the dealer code numbers have been correctly transcribed before final orders are made.

[116] [2020] SASC 161, [143].

[118] [2011] FCA 388 [50].

[119] Being her affidavit sworn and filed on 19 March 2021 (but erroneously dated 19 March 2020).

[120] Which the evidence showed was from steps carried out from about late November 2012 when there was access to Optus computer systems, which it is alleged in paragraph 49 (and elsewhere) TeleChoice has not had access to since 31 March 2013.

[121] See Uber Australia Pty Ltd & Anor v Andrianakis [2020] VSCA 186; (2020) 61 VR 580, [50]-[57] (Niall, Hargrave and Emerton JJA).

[122] There was no relevant controversy as to the meaning of this term.

[123] [2020] SASC 161 [143] (Doyle J).

[124] [2020] SASC 161 [26]-[28] (Doyle J).

[125] Although it would make no difference if that were not so.

[126] Whether pursuant to the court's inherent jurisdiction or r 23.01 of the Rules.

[127] Adjudication on some aspects may be required if agreement cannot be reached.

[128] As referred to in paragraphs 88 to 91 of the Third FASOC.

[129] Transcript 28 April 2021, 136:5-9.

[130] In part - being those words after the word 'penalty' in the first line.

[131] Noting also the ethical and other obligations imposed upon practitioners when proposing to advance such claims.

[132] Which is not to ignore the somewhat obscure reference in the penultimate line of the particulars to paragraph 60 to the bulk of the Alleged Fraud Claw Backs being notified to TeleChoice after notice of termination was given on 28 September 2012.

[133] Which is the defined term in the Third FASOC defining TeleChoice's 'franchise agreements with its franchisees'.

[134] See paragraph 121 in Attachment 2 to these reasons.

[135] Given the terms of paragraph 118 the defendants retreated somewhat from the contention that the Franchise Terms relied upon were not identified.

[136] Which is not to overlook the amendments to the particulars to paragraphs 119 and 120 that appear in the Third FASOC, which is recorded as having been drawn or settled by TeleChoice's senior and junior counsel.

[137] (2012) 207 FCR 220; [2012] FCAFC 156, [88]-[89] (Keane CJ, Rares and Besanko JJ). See also Gordon Bruce Donaldson v Natural Springs Australia Ltd and Ors [2015] FCA 498, [206] (Beach J).

[138] Noting also the broad allegation in paragraph 120 regarding the Optus Entities speaking to 'then franchises ..., their directors, associated entities, relatives and guarantors'. If it is to be alleged that the breaches were by non-parties, that of itself appears to face fundamental challenges.

[139] If that is what is intended to be alleged.

[140] For the avoidance of doubt, the absence of an allegation of intent is not relevant to this breach of contract claim, noting that it is expressed to be based on and confined to the alleged (insufficiently pleaded) Solicitation Conduct and not the making good of the inducing breach of contract claims.

[141] As well as the various iterations of the pleading referred to in that table and also the Procedural Chronology (Attachment 1).

[142] Which is in part reflected in the Procedural Chronology comprising Attachment 1 to these reasons.

[143] Although it was served on 22 February 2021 it appears from a review of the court file that the plaintiff's solicitors may have overlooked its filing, which will need to be attended to.

[144] Subject to confirming that these codes have been correctly transcribed.