Plaintiff v Defendants

Part A: Principles and observations - Amendment applications 10

Part B: Strike out, stay and summary judgment principles 15

Part C: Case management, Aon, CP Act, claimed prejudice and related matters 16

Part C.1: Optus Entities' position and submissions 16

Part C.3: Consideration - case management, Aon, CP Act considerations, claimed prejudice and related matters 21

Part D: Paragraphs 9-36 - Revised Telstra Revenue Claims 21

Part D.2: Optus Entities' position and submissions - Revised Telstra Revenue Claims 28

Part D.2.2: Revenue Representation is embarrassing and related matters 30

Part D.2.3: The terms of the Intended Telstra Appointment are not sufficiently identified 32

Part D.2.4: The calculations in Annexure A are embarrassing 34

Part D.2.5: Numerous facts are not properly pleaded 35

Part D.2.6: Prejudice to Optus arising from timing and content of amendments 36

Part D.3: TeleChoice's position and submissions - Revised Telstra Revenue Claims 36

Part D.3.2: Revenue Representation as alleged is embarrassing and related matters 38

Part D.3.3: The terms of the Intended Telstra Appointment are not sufficiently identified 39

Part D.3.4: The calculations in Annexure A are embarrassing 40

Part D.3.5: Numerous material facts are not properly pleaded 41

Part D.3.6: Prejudice to Optus arising from timing and content of amendments 41

Part D.3.7: Other submissions regarding the Revised Telstra Revenue Claims 42

Part D.4: Consideration and Disposition - Revised Telstra Revenue Claims (Paragraphs 9-36) 42

Part D.4.1: Consideration and disposition - Misleading Revenue Representation Claim 44

Revenue Representation claims based on the 'Telstra Rates' and related matters 47

New claims and allegations based on the 'Actual Telstra Rates' and related matters 57

Increased sales and revenue allegations and claims based on Telstra's market share and related matters 66

Part D.4.2: Consideration and disposition - Breach of Contract Claim - Paragraphs 29-31 78

Part D.4.3: Consideration and disposition - Collateral Contract Claim - Paragraphs 32-34 86

Part D.4.4: Consideration and disposition - Estoppel Claim - Paragraphs 35-36 88

Part E: Paragraphs 60C-60H & 68 - Post Termination Fraud Claw Back Claims 92

Part E.1: Optus Entities' position and submissions - Post Termination Fraud Claw Backs 95

Part E.2: TeleChoice's position and submissions - Post Termination Fraud Claw Backs 97

Part E.3: Consideration and disposition - PTF Claw Back Claims 98

Part F: Paragraphs 111 & Annexure B - Alleged loss arising from 'Post-Notice Conduct' 105

Part F.1: Optus Entities' position and submissions - Paragraph 111 and Annexure B 105

Part F.2: TeleChoice's position and submissions - Paragraph 111 and Annexure B 107

Part F.3: Consideration and disposition - Paragraph 111 and Annexure B 108

Part G: Paragraphs 117-120I - Inducing breach of contract claim 117

Part G.1: Optus Entities' position and submissions - Inducing Breach Claim 117

Part G.2: TeleChoice's position and submissions - Inducing Breach Claim 119

Part G.3: Consideration and disposition - Inducing Breach Claim 120

Part H: Paragraphs 150A-150M - Underpaid Commission Claims 124

Part H.1: Optus Entities' position and submissions - Underpaid Commission Claims 124

Part H.2: TeleChoice's position and submissions - Underpaid Commission Claims 126

Part H.3: Consideration and disposition - Underpaid Commission Claims 128

Joint Agreed Line Item Explanation of the Commission Document 165

1 The plaintiff (TeleChoice or plaintiff) seeks leave pursuant to r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) to file and serve a proposed fourth further amended statement of claim (Fourth FASOC) and the defendants (Optus Entities or defendants) oppose leave being granted to the plaintiff to make a number of the proposed amendments. These reasons deal with those issues.

2 To date there have been about 14 or 15 draft or filed different versions of the statements of claim since the proceeding was commenced. The first version was a draft statement of claim sent with a letter of demand in 2013 shortly after the end of the Final Dealer Appointment, although the proceeding was not commenced until about four and a half years later in December 2017. The Fourth FASOC is now 152 pages in length, comprising a body of 74 pages, plus nine annexures spanning 78 pages, many of which have multiple parts and further explanatory notes. Speaking generally, the Fourth FASOC presents as a lengthy, dense and complex document that in various parts is not easy to read and comprehend. This explains in part the length and complexity of aspects of these reasons.

3 The plaintiff's pleading has had a long history and this amendment application follows on from a strike out / stay / summary judgment application brought by the Optus Entities (2021 Application) in respect of various aspects of the plaintiff's third further amended statement of claim (Third FASOC). On 3 August 2021 orders were made striking out various parts of the Third FASOC (Strike Out Orders), but allowing the plaintiff a further opportunity to reformulate aspects of its claims and seek leave to amend.[1] In Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd[2] (Strike Out Reasons) I recorded my reasons for making the Strike Out Orders. These reasons assume a knowledge of, and should be read in the context of, the Strike Out Reasons.

4 As is apparent from the Strike Out Reasons, and was recognised by the parties on this application, it was determined in part that certain paragraphs ought not to be struck out, stayed, or dismissed at that point in time because TeleChoice was to be given a further opportunity to seek to reformulate and properly articulate certain claims. These paragraphs primarily related to what were defined as the Telstra Revenue Claims.

5 As a result I considered that the final determination of whether or not to strike out one or more of the Telstra Revenue Claims ought not occur prior to the proposed reformulation of the same, as has now occurred in the Fourth FASOC. It was for this reason that the parties agreed that the orders on the 2021 Application should include an order adjourning the further hearing of the Optus Entities' 2021 Application, as they did. At the conclusion of the hearing of this application the Optus Entities submitted that if leave to amend the Telstra Revenue Claims was not granted, then the substantive paragraphs that would remain relating to these claims should be struck out and that no further opportunity ought to be given to the plaintiff to seek to re-plead them.

6 Before proceeding further it is convenient largely to restate some of the introductory observations made in the Strike Out Reasons regarding the previous business relationship between the parties that forms the backdrop for the dispute the subject of this proceeding.

7 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 Optus Entities under the business name 'TeleChoice'. The majority of TeleChoice outlets were operated by TeleChoice franchisees.

8 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 was alleged by the plaintiff in its Third FASOC to be the 2008 Master Dealer Agreement, the 2008 Master Dealer Agreement, the First Side Letter, and the Second Side Letter[3] (Final Dealer Appointment). That allegation remains in the Fourth FASOC and for present purposes is not relevantly controversial.

9 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 Fourth FASOC to be the 'Intended Telstra Appointment' was not further pursued by TeleChoice.

10 The Final Dealer Appointment had a five-year term, and on 28 September 2012 the Optus Entities gave notice to TeleChoice terminating the 2008 Master Dealer Agreement and the 2008 Master Dealer Agreement with effect from the end of March 2013. The business relationship between TeleChoice and the Optus Entities ceased from that time.

11 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 proposed Fourth FASOC are now alleged to exceed $180 million, which is a substantial increase when compared to the amounts claimed in the Third FASOC (and earlier versions of TeleChoice's pleading). The Optus Entities deny that they are liable to the plaintiff as alleged or at all.

12 As I observed in the Strike Out Reasons, the proceeding has had a lengthy and somewhat complex procedural history, as is apparent from the updated procedural chronology compiled by the parties, which comprises Attachment 1 to these reasons (Procedural Chronology).[4] The history of the proceeding, the alleged delay by the plaintiff, and the claimed related prejudice to the Optus Entities are some of the many matters raised by the Optus Entities in support of their opposition to the grant of leave to amend.

13 After the Strike Out Orders were made the plaintiff prepared a further proposed draft of the claim and, as I directed, solicitors and counsel engaged and conferred with a view to reducing the issues between them. This process included written comments being made by the Optus Entities, the plaintiff responding, and further drafts and observations being exchanged. Ultimately this resulted in the plaintiff's application for leave to file and serve the Fourth FASOC, the final form of which was provided to the court shortly before 1pm on the second day of the hearing of the application.[5]

14 In broad terms, the amendments sought to be made are said by the plaintiff to address deficiencies addressed in the context of the 2021 Application, including matters raised in the Strike Out Reasons, and to seek to introduce a new claim that was not part of the Third FASOC, being a claim for alleged underpayment of 'airtime' commission over the five-year period of the Final Dealer Appointment. The plaintiff estimates the underpayment of airtime commission to be in the sum of $12,639,484.[6]

15 In their written submissions, the Optus Entities identified the amendments they opposed and broadly summarised their position in a table as follows.[7] The table was followed by lengthy written submissions elaborating on these issues, which were further elaborated upon in oral submissions.

The form of the pleading is deficient and embarrassing in multiple respects.

Such is the timing and form of the proposed amendments that, if leave was to be given, Optus would suffer unfair prejudice.

The pleading is embarrassing, lacks any real prospect of success and is an abuse of process (where it lacks a proper basis).

111 & Annexure B (Alleged loss arising from "Post-Notice Conduct")

Aspects of the pleading are unintelligible and fail to adequately put Optus on notice as to the case to be met.

The pleading is embarrassing and such is the absence of particulars that no proper basis is evident.

The pleaded claim is in a defective form, has no prospects of success and lacks a proper basis. Further, the timing of the proposed amendments gives rise to case management considerations that, if leave was given, would unfairly prejudice Optus.

16 As the parties did in their written and oral submissions, it is convenient to address the issues before me by reference to the five sections of the Fourth FASOC identified in the above table, which I do in Parts D to H of these reasons below.

17 In the balance of these reasons references to paragraph numbers relate to paragraphs of the Fourth FASOC unless otherwise stated.

(a) TeleChoice should be given leave to amend its misleading and deceptive conduct claim insofar as it is based upon or relates to what are now defined in paragraph 10 as the Telstra Rates.

(b) TeleChoice should not be granted leave to amend its misleading and deceptive conduct claim insofar as it is based upon or relates to what are defined in paragraph 16(b) as the Actual Telstra Rates.

(c) TeleChoice should not be granted leave to amend its misleading and deceptive conduct claim insofar as it seeks to introduce alleged Telstra market share related increased sales volumes referred to in paragraph 16(c) and Part C of Annexure A.

(d) TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC so as to re-introduce a misleading and deceptive conduct claim based on the so-called Actual Telstra Rates referred to in paragraph 16(b) or the alleged Telstra market share related increased sales volumes referred to in paragraph 16(c) and Part C of Annexure A.

(e) TeleChoice should be granted leave to amend its Breach of Contract Claim[8] based on the alleged Revenue Term insofar as that claim is based or relates to the Telstra Rates. The grant of leave will be conditional upon the inclusion of clear and concise particularised allegations of material fact regarding the written, oral or implied terms of the Final Dealer Appointment that address when it is alleged that the Optus Entities were required to pay the amount the subject of the alleged Revenue Term - provided, of course, that the relevant parties and practitioners are satisfied that there is a proper basis for such allegations. Leave to amend should not be granted to include a breach of contract claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

(f) TeleChoice should be granted leave to amend its Collateral Contract Claim[9] insofar as that claim is based on the Telstra Rates. The grant of leave will also be conditional in the way described in the preceding paragraph regarding the Breach of Contract Claim. Leave to amend should not be granted to include a collateral contract claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

(g) TeleChoice should be granted leave to amend its Estoppel Claim[10] based upon the alleged Revenue Representation[11] insofar as that claim is based on the Telstra Rates. The grant of leave will be conditional upon the inclusion of clear and concise particularised allegations of material fact addressing what it is alleged the Optus Entities are estopped from doing and addressing what TeleChoice alleges the Optus Entities were required to do, and when, to fulfil the Revenue Representation. Leave to amend should not be granted to include an estoppel claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

(h) TeleChoice should be granted leave to amend its claim to include the 'Post Termination Fraud Claw Backs' claims (PTF Claw Back Claims) referred to in paragraphs 60C to 60H, although this leave will not extend to the inclusion of the allegations in paragraphs 60E and 60G.

(i) TeleChoice should be granted conditional leave to amend paragraph 111 in part only, namely:

(i) by making the proposed adjustment to the language of the pleaded material fact in paragraph 111 by striking through part of the existing language regarding the suffering of loss and replacing it with an allegation of material fact that: 'Further, TeleChoice suffered loss and damage as a result of the Post-Notice Conduct';

(ii) by including only Parts B and D of Annexure B (which address 'Revenue which would have been derived under the Final Dealer Appointment without the Post-Notice Conduct' calculated at the Telstra Rates (Part B) and at the rates actually paid by the Optus Entities (Part D);[12]

(iii) by supplementing the calculations in Part D of Annexure B so as to more fully and clearly articulate and set out:

(A) the calculations for arriving at the alleged revenue of $47,797,671 for the final year of the Final Dealer Appointment and the increased revenue of $9,196,294 referred to in paragraphs 22 and 23 of Part D;

(B) the calculations for arriving at a loss figure of $5,166,205 from an alleged increased revenue figure of $9,196,294; and

(iv) by supplementing the calculations in Part B of Annexure B so as to more fully and clearly articulate and set out:

(A) the calculations for arriving at the revenue figures of $72,121,335 for the final year of the (Optus) Final Dealer Appointment and the claimed increased revenue figure of $14,694,542, referred to in paragraphs 11 and 12 of Part B of Annexure B;

(B) the amount of the loss said to be attributable to the Post-Notice Conduct (as opposed to 'total loss and damage'), and how that has been calculated; and

(C) if the amount of the loss attributable to the Post-Notice Conduct is said to be less than the claimed increased revenue of $14,694,542 referred to in paragraph 11 of Part B of Annexure B, the amount of that loss, its calculations, and how it is derived from the alleged increased revenue amount.

(j) TeleChoice should not be granted leave to amend to include Parts A or C of Annexure B as particulars of the loss and damage claimed in paragraph 111 of the Fourth FASOC.

(k) TeleChoice should not be granted leave to amend its claim so as to include the inducing breach of contract claim set out in paragraphs 117 to 120I of the Fourth FASOC. Further, TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

(l) TeleChoice should not be granted leave to amend its claim to include the Underpaid Commission Claims[13] set out in paragraphs 150A to 150M of the Fourth FASOC. Further, TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC to include claims of this kind.

19 As it was for the 2021 Application, the material relied upon by the parties was again voluminous, including an application book and additional materials totalling more than 2,500 pages in length. TeleChoice relied upon the affidavits of its Chief Operating Officer, Liliane Seifen, sworn 18 September 2020, 13 November 2020, 9 March 2021, and 23 September 2021. It also relied on aspects of the affidavits of the Optus Entities' commission analyst, Mr Wong, sworn 6 November 2020.

20 The Optus Entities relied on affidavits of their solicitors, namely, the affidavits of: Paul James sworn 28 February 2019 and 29 October 2021; Jonathon McRostie sworn 19 March 2021; and Jarrad Mathie sworn 5 March 2021. They also referred to the 6 November 2020 affidavit of Mr Wong and aspects of the witness statements filed by TeleChoice to date, including the witness statements of Ms Seifen and Mr Abdou. Neither the plaintiff nor the Optus Entities sought to cross-examine any of the deponents and there were no objections to evidence.

21 Each of the parties filed written submissions, which were supplemented orally over two hearing days. A further joint written submission regarding the meaning and operation of a spreadsheet[14] exhibited to one of Ms Seifen's affidavits was filed subsequent to the hearing, on 15 March 2022. This related to the Underpaid Commission Claims in paragraphs 150A to 150M of the Fourth FASOC.

Part A: Principles and observations - Amendment applications

22 There was no dispute between the parties regarding the well-rehearsed principles applicable to applications for leave to amend pleadings. Each of the parties made reference to the summary of these principles set out in Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd (No 2) (Pentridge Village),[15] which is convenient to extract in almost identical terms, which I do in the paragraphs that follow.

23 Rule 36.01(1) provides that:

(1) For the purpose of -

(a) determining the real question in controversy between the parties to any proceeding; or

(b) correcting any defect or error in any proceeding; or

(c) avoiding multiplicity of proceedings -

the Court may, at any stage order that any document[16] in the proceeding be amended or that any party have leave to amend any document in the proceeding.

24 The general principles relating to the grant or refusal of leave to amend pleadings are well known. They were succinctly referred to by Elliott J in Cargill Australia Limited v Viterra Malt Pty Ltd (No 18)[17] as follows:[18]

The principles relating to the granting or refusal of leave to amend pleadings are well established.[19] Rule 36.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) empowers the court to grant leave to any party to amend any document for the purpose of "determining the real question in controversy between the parties to any proceeding". Leave may be granted at any stage of the proceeding.

In deciding whether to grant leave to a party to amend its pleadings, the court must consider whether the proposed amendments facilitate the identification of the real issues in dispute and the just resolution of the proceeding.[20]

The power to grant leave to a party to amend its pleading to raise an arguable issue is a discretionary power. There is no right or entitlement for a party to amend its pleading subject to the payment of costs referable to the amendment.[21] The nature and importance of the proposed amendments must be considered.[22] This factor must be weighed against case management considerations such as cost, delay and the potential for unfair prejudice to other parties to the proceeding, the court and other litigants that might arise if the proposed amendments are allowed.[23]

Further, in exercising the power to grant leave, the court may give any direction or impose any term or condition it thinks fit.[24]

25 A helpful summary was also set out in ABL Nominees Pty Ltd v MacKenzie (No 2):[25]

The power to amend in r 36.01 (1) of the Supreme Court (General Civil Procedure) Rules 2005 (Rules) authorises the court to order that a party have leave to amend any pleading for the purpose of determining the real question in controversy between the parties to any proceeding, correcting any defect or error or avoiding multiplicity of proceedings.

It is common ground that an amendment which is futile because it is obviously bad in law will not be allowed: Commonwealth v Verwayen.[26] Similarly, if a proposed pleading would be liable to be struck out if it had been contained in an original pleading, either because the pleading is bad in law or is defective as a pleading, then leave to file the proposed pleading will not be allowed: Horton v Jones (No.2);[27] Gimson v Victorian WorkCover Authority.[28] The court, on this type of application, will not engage in an examination of the merits of the case foreshadowed by the proposed amendment, but where that amendment introduces a patently hopeless issue for determination then its inclusion will be futile and that will be a significant, and probably decisive, matter in the exercise of the court's discretion.[29]

As J Forrest J observed in Matthews v SPI Electricity Pty Ltd (Ruling No 6),[30] having regard to the terms of the Civil Procedure Act 2010 (CPA), the test is best expressed in the words of s 63 of that Act: if the amendment has no real prospect of success at trial then that would be a highly relevant factor in the exercise of the discretion to refuse the application.[31]

In Namberry Craft Pty Ltd v Watson,[32] Vickery J summarised the relevant factors to be considered, as a result of the decision in AON Risk Services Australia v Australian National University,[33] as follows:

[T]here are to be limits placed upon re-pleading. The High Court in AON Risk Services Australia referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading. The High Court made reference to the following factors:

(a) Whether there will be substantial delay caused by the amendment;

(b) The extent of wasted costs that will be incurred;

(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;

(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;

(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.[34]

This list of factors is not exhaustive. It is made against the background of the earlier decision of the High Court in Queensland v JL Holdings Pty Ltd,[35] and the authorities that preceded it, including the famous case of Cropper v Smith,[36] where the liberal approach to the amendment of pleadings finds its lead in the dissenting judgment of Bowen LJ.

On the other hand, pleadings are not an end in themselves. They are a means of ensuring that real issues of controversy are raised for determination in a way that is procedurally fair, both to a plaintiff and a defendant. This allows claims and defences to be clearly articulated, granting parties an opportunity to present their case properly prepared, on clear notice of allegations and defences raised in the proceedings. On this basis, the authorities clearly establish that, absent extraordinary circumstances, leave to amend will be granted.[37]

26 In Ultra Thoroughbred Racing Pty Ltd t/as Baree Stud v Those Certain Underwriters at Lloyd's (Ultra Thoroughbred),[38] J Forrest J observed that, following the High Court's decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon), courts must consider: the wider public interest and the efficient use of limited court resources when deciding whether to grant applications to amend pleadings; that parties will not be permitted to raise any arguable case in any stage of proceedings subject only to payment of costs; and that amendments that produce delay impact on the entire court system and affect parties desirous of utilising that particular court system. As his Honour noted, in Aon, the High Court said as follows:[39]

An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases...

A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to the parties having a sufficient opportunity to identify the issues they seek to agitate.

In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

27 In Northern Health v Kuipers (Northern Health),[40] Kyrou and McLeish JJA referred to the above extract, the reasons of J Forrest J in Ultra Thoroughbred, and echoed the observations of the High Court regarding the just resolution of proceedings being a paramount consideration:[41]

It has been said by this Court that Aon may have 'reinvigorated the procedural paradigm' insofar as time, costs and limited judicial resources are relevant considerations in the determination of whether to allow certain interlocutory processes.[42] However, as J Forrest J observed in Ultra, 'the primary question still remains: what do the interests of justice dictate?'; Aon reminds courts that 'the prism through which these interests are viewed is wider than just that of the moving party'.[43]

28 The court must have regard to the relevant provisions of the Civil Procedure Act 2010 (Vic) (CP Act) when addressing case management matters, including applications for leave to amend. This was emphasised by Kyrou and McLeish JJA in Northern Health, where the CP Act was described as '... pivotal to the resolution of disputes about case management issues in civil proceedings to which the Act applies ...', and it was stressed that '... it is important that ... trial judges engage with the Act's provisions in balancing the competing interests of the parties and those of the administration of justice more generally.'[44]

29 Their Honours were also swift to recognise that procedural rulings must often be made promptly with succinct reasons, noting that engaging with the provisions of the CP Act '... does not mean that trial judges must set out each applicable provision of the Act and state reasons in relation to it ... [but that] it must be apparent from the reasons for the ruling - either expressly or inferentially - that the judge took into account the applicable provisions.'[45]

30 On a different topic, it has been concluded in various cases that no further opportunity ought to be given to a plaintiff to reformulate the claims in question. Often such observations are founded on the observations of the High Court in Aon earlier referred to. The observations of Sifris J in MacFadyen & Ellis v Bank of Queensland (No 2)[46] (MacFadyen) and Gleeson CJ[47] in Sialepis v Ironaid Pty Ltd (Sialepis)[48] are two examples. In MacFadyen, Sifris J said as follows regarding the circumstances in that case:

46. The right to seek relief from a Court is not an absolute right. It carries with it a responsibility, now directly enshrined in legislation, namely the Civil Procedure Act 2010 (Vic) ('CPA'). The Plaintiffs have not discharged this responsibility. Given this history, the Court cannot be confident that the Plaintiffs will ever be able to articulate their claim. They should not be permitted to continue. To permit the Plaintiffs to have yet 'another go' would not be in the interests of justice and would not be consistent with the overarching purpose set out in s 7 of the CPA which requires 'the just, efficient, timely and cost effective resolution of the real issues in dispute'.

31 In Sialepis the Court concluded that the plaintiff had 'far more than ample opportunity to formulate a viable claim ... if one existed' and on the facts of that case Gleeson CJ concluded that the difficulty which the lawyers had experienced in '... framing a plausible statement of her cause of action against the respondents is a good indication, on the facts known to them, or they can realistically expect to prove, that there is no cause of action'.[49] However, and as Gleeson CJ in Sialepis also observed, it is important to ensure that where a party has a substantial viable claim '... it is not defeated by mere drafting imperfections.'[50]

Part B: Strike out, stay and summary judgment principles

32 There was no relevant disagreement between the parties on the 2021 Application or before me on this application regarding the principles applicable to strike out, stay or summary judgment applications. I set out and addressed these at some length in the Strike Out Reasons,[51] to which I refer but will not again set them out here. As will be seen, given the conclusions reached on this application there is limited engagement with these principles in these reasons.

Part C: Case management, Aon, CP Act, claimed prejudice and related matters

33 Before addressing the particular aspects and features of the Fourth FASOC to which objection was taken, in their written submissions the Optus Entities made a number of submissions, somewhat collectively, regarding delay, case management, Aon, the CP Act, claimed prejudice and related matters.[52] These matters were also briefly addressed during oral submissions. TeleChoice responded in a similar way in its written and oral submissions. Although it is not necessary to recite all of their detail, it is convenient at this point to outline the primary submissions made by the parties in this context before turning to the particular parts of the Fourth FASOC that were in issue.

Part C.1: Optus Entities' position and submissions

34 The Optus Entities submitted that the Fourth FASOC sought to advance new factual allegations which would cause prejudice given the historical nature of the subject matter of the allegations, the form of the pleading, and the history of the pleading and the proceeding. Although it was said that some of this prejudice may have been ameliorated if TeleChoice had acted promptly and addressed deficiencies in the various iterations of its pleading some time ago, it was submitted that TeleChoice had failed to do so, whether in a timely manner or at all.

35 The Optus Entities drew attention to the procedural history as reflected in the evidence, the Procedural Chronology, and an annexure to their written submission regarding the many revisions of the claims and the preparation of evidence. They also relied upon the nature and extent of the communications between the parties regarding the various revisions of the claim; the claimed failure to respond meaningfully to observations regarding deficiencies in the pleadings; case management considerations; the need for further discovery and challenges with the same; a contention that TeleChoice had not been forthright about the effect of the proposed amendments on the extent of further discovery and had not sufficiently engaged on the topic; future cost and expense; claimed difficulties with witness access and memory; the time cost and expense already spent in connection with witnesses to date; the further work that would be required; and some other related matters.

36 The Optus Entities submitted that there was already at least a significant risk that, as a result of TeleChoice's failure to address obvious and material deficiencies in its claim and otherwise act promptly to minimise delay, they would be prejudiced in the conduct of their defence. Primary matters referred to were:

(a) TeleChoice's claim arising out of events that occurred between 2006 and 2013, and the 'obvious consequence' that witnesses' recollection of events would be poor or even non-existent, with the 'attendant prejudice increasing daily'.

(b) Witness recollection difficulties being compounded by the absence of a number of contemporaneous documents following on from parties being unable to locate electronic mailboxes for a number of people who have been identified by the parties as having been likely to have held relevant material.

(c) The Optus Entities having currently identified 36 potential witnesses, 27 of whom are no longer employed by the Optus Entities and in some cases are employed by market competitors, with at least two of these external witnesses said now to be residing overseas.

(d) Access to external witnesses being limited and subject to their willingness to co-operate, and some witnesses only being available with extended notice or for short periods.

(e) The difficulty in organising contact with external witnesses in some instances and a reluctance of some witnesses to assist.

(f) The amount of time and cost that has already been spent and incurred in connection with witnesses. Mr James' evidence (in part) was that the Optus Entities had already completed a substantial amount of work on their witness statements with an estimated 1840 hours having been spent, which equated to approximately $772,000 in costs and disbursements on tasks including identifying and making enquiries with or about at least 36 potential witnesses, and conducting at least 48 witness conferences.

(g) The inability currently to give witnesses any certainty or assurances as to when they might be required again or what the extent of their further involvement may be.

(h) Mr James' belief that there is a real risk of the delay in the progress of the proceeding having a deleterious impact on witness engagement generally. In this context an example was given of a former Optus employee who is a potential witness who is now refusing to provide assistance at all, and another who was initially willing to assist but has now become unresponsive.

(i) The risk that as time goes on more witnesses and other employees with relevant technical knowledge, including for example knowledge of the operation of the now decommissioned Optus commission systems, will leave the Optus Entities.

37 In this context it was submitted that the matters raised are not new concerns and that they had been raised previously, with an example being Mr James' affidavit of 28 February 2019. It was further submitted in general terms that TeleChoice had had ample opportunity to consider and address the deficiencies in their claims and that no further opportunity ought be afforded to them if the Optus Entities were successful in opposing the grant of leave.

38 With respect to the Revised Telstra Revenue Claims, the Optus Entities further submitted that they had identified five potentially relevant witnesses to the claims and that to date about 435 hours (equating to about $193,000) had been spent in connection with evidence of these witnesses, and that these witnesses had spent considerable amounts of their own time reviewing documents, statements and attending conferences. It was further submitted that because the amendments will require re-engagement with at least some potential witnesses, risks of the kind earlier referred will arise for the Optus Entities.[53]

39 In the context of the Revised Telstra Revenue Claims it was also contended that the process of identifying other potential lay and expert witnesses cannot sensibly be commenced or advanced until the claims are properly articulated which means that further delay and attendant prejudice will continue to accumulate. The Optus Entities also submitted that they may face insurmountable obstacles preparing evidence regarding the 'Telstra Rates' given that Telstra and Optus are primary competitors.

Part C.2: TeleChoice's position and submissions

40 When addressing the context of this application TeleChoice observed that it had prepared various versions of its revised pleading since the delivery of the Strike Out Reasons as part of its engagement with the Optus Entities. Before addressing the Optus Entities' objections to particular parts of the pleading, TeleChoice made a number of general submissions in response to the Optus Entities' submissions regarding the claimed prejudice, delay, and nature of the amendments. In substance the points raised were to the following effect.

41 First, that many of the claimed 'numerous new factual allegations' were not new at all and had been present in previous iterations of the pleading - 'albeit that their expression or detail has been improved or refined'.

42 Second, the fact that a pleaded fact was new was not of itself a reason to refuse an amendment and it was necessary for the Optus Entities to articulate why any introduction of a new fact at this point would occasion prejudice of a kind that would justify refusing an amendment.

43 Third, that many of the matters complained of by the Optus Entities were just the ordinary incidents or consequences of large scale litigation, including witness recollection issues and access to, or engagement with, witnesses. These aspects, so it was said, pre-existed TeleChoice's application for leave to amend. In this context it was further submitted that: the amendments will not materially extend the period to trial; it was not established that witness recollection will materially worsen by further time passing; aspects of Mr James' evidence regarding difficulties were non-specific as to timing and lack of co-operation; the claimed risk of disengagement with witnesses 'was not to the point'; given the Optus Entities' 'pens down' approach it was difficult to see how timing changes would likely have the effect claimed by Mr James; and that if a witness is unavailable it can be the subject of evidence at trial.

44 Fourth, the defendants had not identified or established by evidence that they will suffer unfair prejudice by the amendments being made at this time and not earlier.

45 Fifth, any claimed prejudice needs to be weighed against the substantial prejudice that would be caused to TeleChoice if it is summarily shut out from pursuing its claims at trial.

46 Sixth, the history of the proceeding does not demonstrate that the amendments should be refused by reason of the delay of TeleChoice. To the extent that there has been relevant delay it was submitted that there had been 'multiple causes and factors at play'. These were said to include: Optus's delay between the commencement of the proceeding and when the Optus Entities first articulated concerns in mid-2020, with the 2021 Application not being filed until mid-2021; the time taken with exchanges between the parties about complaints, revisions, and versions of proposed pleadings; and the time taken in connection with the 2021 Application and in connection with the current application.

47 Seventh, the primary reason for the revisions being made now and not earlier is that TeleChoice and its counsel have been engaged in refining and improving the pleading, including seeking to address inadequacies raised in the Strike Out Reasons. Further, the new wrongful payments claim was said to be based on information that was not in TeleChoice's possession until late 2020 when Mr Wong filed his affidavit.

48 Eighth, if the amendments are allowed it will not occasion much additional discovery or evidence and should not cause any significant delay in getting the matter to trial. In this context TeleChoice prepared a table of the additional discovery and evidence that it submitted would likely be involved.

Part C.3: Consideration - case management, Aon, CP Act considerations, claimed prejudice and related matters

49 The parties' submissions and evidence regarding the claimed prejudice and delay are relevant matters to take into account in considering whether to grant leave to TeleChoice to amend its pleading. However, they do not fall to be considered in isolation or separate to other relevant considerations. As will be seen, the claimed prejudice and related matters are considered, addressed and weighed in the balance in the 'Consideration and Disposition' sections of these reasons below when dealing with each of the relevant parts of the pleading in issue.[54]

Part D: Paragraphs 9-36 - Revised Telstra Revenue Claims

50 The claims in paragraphs 9 to 36 of the Fourth FASOC relate to what are said to be four separate but reformulated[55] Telstra revenue claims (collectively, Revised Telstra Revenue Claims). Each claim is associated with the contention that if TeleChoice entered into the Final Dealer Appointment the revenue that would be earned by TeleChoice under the Final Dealer Appointment 'would be the same as the revenue:

(a) that would be earned by TeleChoice under the Intended Telstra Appointment for the same number of sales as it would make under the further dealer appointment;

(b) further or alternatively, that would be earned by TeleChoice under the Intended Telstra Appointment for the same number of sales as it would make under the further dealer appointment based on the Telstra Rates (Revenue Representation)'.[56]

51 The Revised Telstra Revenue Claims are preceded by paragraphs 7 to 11 headed 'BACKGROUND'. These parts of the pleading are said to be important in various ways to the allegations that follow, including the Revised Telstra Revenue Claims. In this part of the pleading:

(a) TeleChoice retains its allegations regarding its previous appointments as an Optus dealer, with the 'First Dealer Appointment' being addressed in paragraph 7 and the 'Second Dealer Appointment' being addressed in paragraph 8.

(b) Paragraph 9, which is not new, introduces the 'Intended Telstra Appointment'. It is alleged that from about June 2006 until July 2007, and prior to the end of the Second Dealer appointment, TeleChoice negotiated with Telstra the terms of an agreement pursuant to which Telstra would appoint TeleChoice as a Telstra dealer for a five-year term commencing in April 2008 (Intended Telstra Appointment). The particulars to paragraph 9 have been revised so as to refer to the draft agreements provided by Telstra to TeleChoice as being provided 'as part of the negotiations'. The draft agreements are defined as the 'Draft Telstra Heads of Agreement' and the 'Draft Telstra Agreement' (collectively, Draft Telstra Agreements).

(c) Paragraph 10 is new and introduces what are described as the 'Telstra Rates'. In part it is alleged that, on the basis of the negotiations in paragraph 9, and 'Telstra's usual practice of remunerating its dealers', TeleChoice 'expected' that if it entered into the Intended Telstra Appointment it would earn revenue on the basis referred to in the 12 sub-paragraphs of paragraph 10, which are collectively described as the 'Telstra Rates'. This is a term that is then used throughout other parts of the pleading, including but not limited to, allegations regarding loss and damage. The allegations in paragraph 10 are supported by a further 11 sub-paragraphs of particulars.

(d) TeleChoice introduces the 'July 2007 Forecast' in paragraph (i) of the particulars to paragraph 10, which is alleged to be an analysis of the revenue that TeleChoice expected to make under the Intended Telstra Appointment at the Telstra Rates when compared to the revenue that it then considered it would make under a further Optus appointment. This document was said by both parties to be significant, and for ease of reference it is reproduced as Attachment 2 to these reasons. It was a document provided by TeleChoice to the Optus Entities in 2007 and largely reflects what are described in the Fourth FASOC as the Telstra Rates.

(e) Paragraphs (ii)-(xi) of the particulars to paragraph 10 are said to provide particulars of where each of the Telstra Rates referred to in paragraphs (a)-(l) of paragraph 10 'arises from'.

(f) TeleChoice retains its allegation in paragraph 11 that in about early July 2007 TeleChoice informed the Optus Entities that it intended to enter into the Intended Telstra Appointment and would no longer be an Optus dealer. The particulars refer to a conversation in which it is alleged that TeleChoice's Mr Abdou said words to the effect that TeleChoice would be leaving Optus because they 'had done a deal with Telstra' and that 'The deal is done but we haven't signed yet. We're signing in a couple of days.' It is also alleged that Mr O'Sullivan for the Optus Entities asked Mr Abdou to travel to Sydney to discuss things before any agreement was signed with Telstra, which Mr Abdou agreed to do.

52 The allegations referred to above are in part said to be the backdrop to the discussions leading to TeleChoice remaining as an Optus dealer and not becoming a Telstra dealer. They are immediately followed in the Fourth FASOC by the pleading of each of the four Revised Telstra Revenue Claims. It is necessary to outline these claims which, as can be seen from the FASOC Annexure, are of the character described below.

53 The first claim (paragraphs 9-21[57]) (Misleading Revenue Representation Claim) is a misleading and deceptive conduct claim based on the alleged (reformulated) Revenue Representations in the form extracted earlier above. Although defined in the singular, the pleading alleges two representations as referred to.

54 It is alleged in substance that the Revenue Representation was a continuing representation; that TeleChoice relied on the Revenue Representation by deciding to remain an Optus dealer and by not entering into the Intended Telstra Appointment; that the Revenue Representation was misleading and deceptive or likely to mislead or deceive because the revenue earned by TeleChoice was not the same as the revenue referred to in paragraphs (a) and (b) of the Revenue Representation;[58] that if the Revenue Representation had not been made TeleChoice could and would have entered into an agreement with Telstra for five years on substantially the same terms as the draft agreements referred to; that TeleChoice would have earned revenue at the 'Telstra Rates' adjusted to take account of the actual weighted average of the standard incentives paid by Telstra to its dealers for the relevant period (Actual Telstra Rates); that TeleChoice would have achieved the number of sales as a Telstra dealer as set out in Part C of Annexure A to the Fourth FASOC; and that TeleChoice suffered loss and damage by the Optus Entities' misleading or deceptive conduct.

55 The particulars of the Revenue Representation in paragraph 12 include references to: statements said to have been made by the Optus Entities' Mr O'Sullivan at a meeting on 5 July 2007; a letter from the Optus Entities of 10 July 2007; a Telstra revenue forecast prepared by TeleChoice in July 2007 and provided to Optus at that time (being the July 2007 Forecast); a financial summary document dated 21 August 2007 prepared by Optus and provided to TeleChoice by the Optus Entities on 22 August 2007 (Optus Financial Summary); alleged silence by the Optus Entities in response to TeleChoice's letter of 12 July 2007 in which it was stated that TeleChoice understood that Optus would match the current Telstra offer, with the assumption being that revenue would be the same under both deals for the same number of sales; and the conduct of the Optus Entities in adopting the July 2007 Forecast as the basis for the Optus Financial Summary after Optus representatives had reviewed the terms of the Intended Telstra Appointment and verified the basis for the calculation of revenue that was forecast to be earned under the Intended Telstra Appointment and contained in the July 2007 Forecast.

56 The loss and damage suffered by TeleChoice is alleged to comprise 'the loss of its opportunity to enter into the Intended Telstra Appointment on the basis alleged', and thereby derive the revenue and achieve the profit referred to in paragraph 17 and Annexure A to the Fourth FASOC. It is to be observed that the total damages now claimed under this claim are calculated in a new and different way by reference to what have been defined as the Actual Telstra Rates and the increased volume of business TeleChoice alleges it would have achieved given the alleged higher market share that Telstra had. As a result, there has been a substantial increase in the damages claimed from just over $100 million in the Third FASOC, to in excess of $180 million, as referred to in paragraphs 17 and 21 and Part C of Annexure A to the Fourth FASOC. In short, the quantum of the claim now sought to be made under the misleading and deceptive conduct claim has increased substantially.

57 The second of the Revised Telstra Revenue claims is described as a breach of contract claim in respect of what is defined as the Revenue Term (see paragraphs 29-31) (Breach of Contract Claim). At the heart of this claim is the allegation in paragraph 29 that it was a 'partly oral, partly in writing and a partly to be inferred or implied term of the Final Dealer Appointment that:

the Optus Entities agreed to pay to TeleChoice during the term of the final dealer appointment the same revenue for the same number of sales as TeleChoice would have earned:

(i) under the Intended Telstra Appointment;

(ii) further or alternatively, under the Intended Telstra Appointment based on the Telstra Rates (Revenue Term).'

58 The particulars of the Revenue Term are said to be the same particulars as are relied upon in support of the Revenue Representation in paragraph 12. Although the Final Dealer Appointment had previously been alleged to be in writing, revisions to the particulars in paragraph 15 now allege that it was also partly oral and partly implied or inferred.

59 The Optus Entities are alleged in paragraph 30 to have breached the Revenue Term because they 'failed to pay to TeleChoice for the same number of sales as it achieved during the Final Dealer Appointment the same revenue as TeleChoice would have earned:

(i) if it had entered into the Intended Telstra Appointment;

(ii) alternatively, under the Intended Telstra Appointment based on the Telstra Rates.'

60 The loss and damage alleged is again said to comprise the difference between the profit that TeleChoice earned under the Final Dealer Appointment and the profit that it would have earned for the same number of sales under the Intended Telstra Appointment at the Actual Telstra Rates, alternatively under the Intended Telstra Appointment at the Telstra Rates. TeleChoice 'presently estimates that loss as approximately $74,170,368, alternatively $64,341,316.' TeleChoice refers to the particulars to paragraph 17 which in turn state, among other things, that the basis for the estimate is set out in Part A of Annexure A to the Fourth FASOC (for the Actual Telstra Rates) and Part B of Annexure A (for the Telstra Rates). It also states that further particulars may be provided after discovery and the exchange of expert reports. It may be noted that this is a different loss calculation to the loss claimed under the misleading conduct claim because it is based on the Revenue Term being a term of the Final Dealer Appointment and TeleChoice operating as an Optus dealer and not on the counterfactual of TeleChoice being a Telstra dealer under the Intended Telstra Appointment.

61 The third of the revised Telstra Revenue Claims is a breach of collateral contract claim (see paragraphs 32-36) (Collateral Contract Claim) that essentially mirrors the Breach of Contract Claim but alleges, further or alternatively, the existence of a collateral contract to the effect of the alleged Revenue Term. Again, the particulars relied upon are those relied upon in support of the Revenue Representation allegation in paragraph 12. The alleged loss is the same as that claimed under the Breach of Contract Claim and the same particulars are relied upon.

62 The fourth of the revised Telstra Revenue Claims is a claim described as 'equitable estoppel arising from the revenue representation'(see paragraphs 35 and 36) (Estoppel Claim). This claim alleges that reliance upon the Revenue Representation caused TeleChoice to assume that the revenue it would earn under the Final Dealer Appointment would be the same as the revenue referred to in the Revenue Representation. It is alleged that: Optus induced TeleChoice to adopt the assumption; that TeleChoice acted to its detriment in reliance on the assumption; Optus knew and intended that TeleChoice would so act; it would be unconscionable for Optus to fail to fulfil the Revenue Representation; and that TeleChoice would suffer detriment if the Revenue Representation is not fulfilled. The particulars in support of these allegations simply refer to the particulars under paragraphs 12 to 21 of the Fourth FASOC, which are the paragraphs which plead the misleading and deceptive conduct claim.

63 The pleading does not state, by way of material fact or otherwise, what it is alleged that the Optus Entities are estopped from doing. This was raised with senior counsel for TeleChoice during the hearing and some time was allowed for it to be reflected upon. At the conclusion of day two of the hearing senior counsel for TeleChoice informed the court that although it was not stated in the pleading, TeleChoice contends that the Optus Entities are estopped from failing to fulfil the Revenue Representation, which it was said would pick up the language of paragraph 35(e) of the pleading.

64 It is then alleged in paragraph 36 that 'TeleChoice is entitled to equitable relief, namely equitable compensation' in an amount representing the difference in profit between the revenue earned under the Final Dealer Appointment and the profit it would have earned for the same number of sales under the Intended Telstra Appointment at the Actual Telstra Rates, alternatively under the Intended Telstra Appointment based on the Telstra Rates. Put another way, it claims the same loss calculated as lost profit as it claims under the Breach of Contract Claim and the Collateral Contract Claim, calculated in the same way and relying upon the same particulars.

65 The submissions of the parties regarding the Revised Telstra Revenue Claims and paragraphs 9-36, and my consideration of the same, are addressed in Parts D.2 to D.4 below.[59]

Part D.2: Optus Entities' position and submissions - Revised Telstra Revenue Claims

66 In their written submissions the Optus Entities dealt with the Revised Telstra Revenue Claims somewhat collectively, indicating that they were opposed to the revisions for various reasons, namely: they have no real prospect of success; the Revenue Representation allegation is embarrassing; the terms of the Intended Telstra Appointment are not sufficiently identified; the calculations in Annexure A to the Fourth FASOC are embarrassing; numerous facts are not properly pleaded; and the existence of prejudice in the conduct of their defence arising from the timing and content of the amendments. These submissions were supplemented orally in various ways.

67 It was submitted that the Misleading Revenue Representation Claim had no real prospect of success because it had been clarified that the claim was for the alleged loss of an opportunity to enter into the Intended Telstra Appointment and, that being so, it was clear that TeleChoice's claim is statute barred by operation of s 82(2) and/or s 87(1CA) of the Trade Practices Act 1974 (Cth) (TPA). It was noted that this was currently pleaded in the Optus Entities' further amended defence.[60] Whilst it was acknowledged that the application of limitation of actions legislation to the facts of a particular case is generally a matter for determination at trial, it was submitted that the 'clarity of the position in this instance justifies departure from the general approach'. In the context of this loss of opportunity claim, reliance was also placed on the observations of Nettle J in Environmental Systems Pty Lt v Peerless Holdings Pty Ltd (Environmental Systems).[61]

68 It was submitted that the Breach of Contract Claim lacked any realistic prospect of success and is fundamentally flawed because of the following:

(a) The Final Dealer Appointment is alleged in paragraph 15 to have been wholly in writing and constituted by the documents there referred to, which do not include the Revenue Term.

(b) The Revenue Term does not satisfy the BP Refinery (Westernport) Pty Ltd v Shire of Hastings (BP Refinery)[62] requirements for an implied term because it contradicts express terms of the documents alleged to constitute the Final Dealer Appointment, including clauses 11.2 of the 2008 Master Dealer Agreement (relating to commission being paid in accordance with relevant schedules) and the entire agreement clauses in clause 15.1 of the Master Agreement and clause 38.1 of the 2008 Master Dealer Agreement.

(c) Insofar as the Revenue Term is alleged to have been a parole oral term or a collateral contract, it was submitted that this cannot be so because it is inconsistent with the terms of the Final Dealer Appointment. In this context reference was made to Gates v City Mutual Life Assurance Society Ltd (Gates).[63]

(d) In the same way that the particulars to paragraph 12 were not capable of supporting the Revenue Representation they were similarly unable to support the allegation regarding the existence of the Revenue Term or alleged collateral contract.

(e) The pleading does not allege when it was that Optus was obliged to pay TeleChoice or how the amount Optus was required to pay was to be calculated and the allegations are therefore at least embarrassing and meaningless. This, so it was submitted, also makes it impossible to address the issue of when time starts to run for the purpose of determining when the claim became time barred.

Part D.2.2: Revenue Representation is embarrassing and related matters

69 With respect to the Revenue Representation it was submitted that as formulated the allegation was unclear and embarrassing. The primary matters referred to in this context were as follows:

(a) In effect two representations are pleaded with the first apparently not incorporating any reference to the Telstra Rates, though this was said to be unclear. Further, the intended distinction between the alternative representations in paragraph 12 was said not to be 'immediately apparent'.

(b) The particulars to paragraph 12 were not capable of supporting the allegations of material fact if and to the extent the Revenue Representation is said to go beyond the July 2007 Forecast. In part this was said to be established by the documents relied upon by TeleChoice, including, for example, the July 2007 Forecast, the 10 July 2007 letter from Optus regarding what it was prepared to do, and the Optus Financial Summary prepared by Optus. Reference was also made to there being no silence in response to the 12 July 2007 letter from TeleChoice because it was followed by the Optus Financial Summary, adoption by Optus of the July 2007 Forecast, and ultimately the agreement reflected in the Final Dealer Appointment with the Optus Entities.

(c) Whilst the particulars in paragraph 10 seek to explain the basis of the July 2007 Forecast, it was said that they do not support a representation allegation about something different. It was said further that the rates referred to in paragraphs 10 and 11A were not the rates of Telstra but an expectation of revenue as recorded in the July 2007 Forecast based on the assumptions made by Ms Seifen.

(d) The means by which the Telstra Rates are alleged to be incorporated into the Revenue Representation in sub-paragraph 12(b) were said to be unclear. It was submitted that the inclusion of the reference to the Telstra Rates in sub-paragraph 12(b) render it unintelligible because the basis upon which the Telstra Rates are said to be incorporated into the Revenue Representation is not disclosed.

(e) The rates referred to in many of the sub-paragraphs of paragraph 10 (which deals with the Telstra Rates) were said not to be referred to in the draft Telstra contracts and not to have been disclosed. Therefore, so it was said, TeleChoice had not identified the source of the obligation that would have been imposed upon Telstra to pay revenue based on such rates. A significant item in this context (and more generally) was said to be the MRO (Mobile Repayment Option) (MRO) rate of $160 per activation and digital advance. On this topic it was also submitted that this MRO claim had been abandoned previously, as it was said was apparent from previous requests for information and a review of earlier iterations of the pleading - and in particular the version dated 13 August 2018 when compared to the version dated 25 November 2019.[64] Emphasis was also placed on the letter of 3 November 2020 from the Optus Entities' solicitors in this context.

(f) The basis for the calculation of each of the items of revenue in the July 2007 Forecast was said not to be sufficiently particularised and this was said to have occurred in a context where there was a fresh allegation in paragraph (iii)(b) of the particulars to paragraph 12 that representatives of Optus 'including' Mr Shiner and Mr Martinelli had reviewed the terms of the Intended Telstra Appointment and verified the basis for the calculation of revenue forecast to be earned by TeleChoice under the Intended Telstra Appointment and contained in the July 2007 Forecast.

(g) To the extent the Revenue Representation in paragraph 12(a) does not incorporate the Telstra Rates, it was submitted the rates must be drawn from some other source but that this is not identified or identified by reference to the terms of the proposed Telstra contracts. A material example was said to be the MRO amounts, which are a substantial amount and said to be not part of the Telstra contracts, but that no other entitlement to receive such amounts under the Intended Telstra Appointment had been identified, including in the witness statement of Ms Seifen filed to date.

(h) The confusion regarding the relevant Telstra Rates was said to be compounded by the reference for the first time to the 'Actual Telstra Rates' in paragraph 16(b) and the alternative counterfactual positions in paragraph 17 for each of the Revenue Representations. Further, it was said that how or why the Actual Telstra Rates calculated at some time after the conclusion of the Final Dealer Appointment are said to be incorporated in a Revenue Representation made in mid-2007 is not disclosed.

(i) The temporal relationship between various allegations and particulars was said to be vague and unsatisfactory where a number of the events said to be relevant to the making of the representation appeared to have occurred after the Revenue Representation is said to have been made, and after TeleChoice is said to have taken steps in reliance upon it. It was submitted that the lack of clarity about timing means Optus is left to guess at how critical aspects of the alleged representation - that is, how the Telstra Rates are said to be part of the Revenue Representation - are said to have been made.

Part D.2.3: The terms of the Intended Telstra Appointment are not sufficiently identified

70 The Optus Entities submitted that the terms of the Intended Telstra Appointment are not sufficiently identified, which it was said does not relate only to allegations of loss and damage but also to the allegations that the Revenue Representation was false or misleading or likely to mislead, and the allegations of breach of the Revenue Term and alleged collateral contract. A similar point had been raised in the Strike Out Reasons, which I remain conscious of.

71 It was submitted that it is not at all apparent from the Fourth FASOC the basis on which it is said that the amounts claimed would have been earned or how they are referrable to the Intended Telstra Appointment. This was said to be a material deficiency because the pleaded counterfactual includes entitlements to revenue 'based on unidentified and unparticularised terms of the Potential Telstra Appointment, based on undisclosed calculations'. The MRO was again emphasised as a material example given the amounts involved, the claimed earlier abandonment of the claim, and the claimed absence of an identified basis upon which it is said that TeleChoice would have received such a payment. Reference was also made to the vague meaning of MRO and the absence of details of the alleged Telstra 'existing commercial practices' of paying such MRO amounts.

72 Similar deficiencies were said to exist in relation to other items in paragraph 10, namely: 'other activations' and 'value added services'.

73 Various terms in the draft Telstra agreements were said to be substantially incomplete and it was submitted that it is not possible to understand how the terms would have operated under the Intended Telstra Appointment, including for example clauses 2.2, 3.8, 6, and 1.1(e).

74 To the extent the Telstra Rates are alleged in paragraph 10 to be from sources other than the draft Telstra agreements it was submitted that no explanation is offered for how those rates are alleged to be incorporated into the Intended Telstra Appointment. It was submitted that the court's previous observation that there appeared to be an unexplained, vague and unclear conflation in the Third FASOC between the Intended Telstra Appointment and the July 2007 Forecast in connection with the alleged Telstra revenue, applied equally to the reformulation of the claims.

Part D.2.4: The calculations in Annexure A are embarrassing

75 The Optus Entities contended that the calculations in Annexure A to the Fourth FASOC are unclear and embarrassing. This Annexure sets out calculations of TeleChoice's estimate of the revenue it alleged would have been earned under the Intended Telstra Appointment had Optus not made the Revenue Representation. It has a four-page explanatory section followed by four parts, being Parts A, B, C and D. The explanatory section seeks to explain what each of Parts A-D of Annexure A relate to.

76 Briefly, and in substance, the primary submissions made about this part of the pleading were to the following effect:

(a) The Annexure refers to 'estimates' and it is unclear whether this is intended to reflect the claim being made or an interim position.

(b) The Annexure retains many of the features of the prevision iteration of the pleading which the court concluded were unclear.

(c) The relationship between the revenue items in Parts A to C of Annexure A and the terms of the Intended Telstra Appointment is unclear and unstated.

(d) The explanation of the revenue items in Part A of Annexure A is embarrassing because: the relevance of matters relating to the agreement between Optus and TeleChoice to a counterfactual assessment of a deal between TeleChoice and Telstra is unclear. Further, it is said that no explanation is offered in Part A of the Annexure for the 'MRO' and 'transition payments' revenue items.

(e) The source of the calculations of some of the figures in Parts A, B and C headed 'Volume' is not disclosed. Reference was again made to the revenue item 'MRO' in this context. Other examples were said to be revenue items 'Co-op' and 'Handset subsidy / Stock rebate'.

(f) Having regard to the matters referred to, it was submitted to be 'entirely unclear' how revenue in respect of the various items has been calculated in the Annexure. In addition to it being unclear what certain revenue items mean, it was said to be impossible to understand how the revenue items in Parts A, B and C relate to the revenue items in Part D of Annexure A.

(g) The references to expenses and costs in Part C of Annexure A were said to be vague and general and that no attempt had been made to identify what TeleChoice's costs were under the Final Dealer Appointment or what they would have been under the Intended Telstra Appointment. Consequently, so it was said, it is impossible for the Optus Entities to understand the premise that underpins TeleChoice's entire calculation in Part C of Annexure A, namely that its costs under the Intended Telstra Appointment would have been the same as those in fact incurred under the (Optus) Final Dealer Appointment, but increased proportionately to account for the increased sales - which was said was not pleaded in any event.

Part D.2.5: Numerous facts are not properly pleaded

77 The Optus Entities further submitted that numerous material facts were not pleaded or properly pleaded, with primary matters raised being:

(a) various matters referred to in the particulars to paragraph 10, which it was said should have been pleaded as material facts;[65]

(b) the allegations in paragraph 16(b) regarding the Actual Telstra Rates;

(c) the 'unpleaded conclusion drawn from unstated facts' in paragraphs 1 to 3 of Part C of Annexure A regarding the number of sales that TeleChoice would have achieved based on broadly stated alleged market share dates; and

(d) allegations regarding TeleChoice's expenses estimates which should have been pleaded (and as material facts), and further generalised vague references to increased expenses where it was said no meaningful attempt was made to identify the expenses. It was said that this and the absence of an attempt to identify costs under the Final Telstra Agreement makes it impossible for Optus to understand the entire calculations in Part C of Annexure A.

78 The many matters raised in Part D.2 above were said to involve considerable (although not complete) overlap across each of the Revised Telstra Revenue Claims.

Part D.2.6: Prejudice to Optus arising from timing and content of amendments

79 The Optus Entities submitted that they would be prejudiced by the timing and content of the amendments if leave was granted and the substance of the primary submissions on this topic were as referred to in Part C of these reasons above.

Part D.3: TeleChoice's position and submissions - Revised Telstra Revenue Claims

80 Like the Optus Entities, TeleChoice dealt with the Revised Telstra Revenue Claims somewhat collectively and in a structure said to be responsive to the Optus Entities' written submission. After outlining the amendments made in the various paragraphs of the Fourth FASOC, in substance, TeleChoice made the following submissions, which were also supplemented orally.

Part D.3.1: No real prospect of success

81 As to any of the Revised Telstra Revenue Claims being statute barred and therefore having no real prospect of success, TeleChoice submitted that, consistent with the High Court's decision in Wardley Australia Ltd v Western Australia (Wardley),[66] the limitation issue is one that should be left to trial and that it was not 'ripe for determination' now. In this context TeleChoice contended that its loss could not be ascertained until the end of the Final Dealer Appointment because it required a comparison between what was earned under the Final Dealer Appointment and what would have been earned under the Intended Telstra Appointment. This, so it was said, could not be ascertained until the end of the Final Dealer Appointment in April 2013 at the earliest.

82 TeleChoice further submitted that, in any event, even if a loss arose earlier, questions of discrete loss occurring at different times also arise, emphasising further that even though the prospect of loss may be inherent in a transaction, it is not until the loss has been necessarily and irretrievably sustained that the cause of action accrues.[67] Given that the Optus Entities had already pleaded a limitations defence in their defences to earlier versions of the claims it was further submitted that the amendments do not provide a basis for determining the limitation issue summarily at this point.

83 With respect to the contention that the Final Dealer Appointment had been alleged to have been wholly in writing and therefore could not and did not incorporate the Revenue Representation as a term of it, TeleChoice acknowledged that there had been a tension in the drafting but observed that it was addressed by the adjustment to the particulars to paragraph 15 so as to allege that it was partly oral and partly to be implied or inferred. This, so it was said, made clear that the Revenue Representation was incorporated as a contractual term of the Final Dealer Appointment.

84 In response to the contention that there was no real prospect of the Revenue Term being implied, TeleChoice submitted that it is premature to consider whether that is so, noting also that a term to the same effect is pleaded on a 'non-implied basis' as a collateral contract and as a basis for the Estoppel Claim. It was further observed that the implied term issue can only be considered in the context of the evidence, which should occur at trial and not on this application.

85 It was further submitted that the Revenue Term was not inconsistent with the terms of the Final Dealer Appointment because clause 11.2 is not a term about revenue. It was also said that the Optus Entities' reliance on an entire agreement clause was misplaced because it is well established that an entire agreement clause does not operate to prevent the implication of terms.[68]

86 TeleChoice submitted that the Optus Entities' contention that the Collateral Contract Claim had no real prospect of success must fail for the same or similar reasons.

87 As to the Revenue Term not addressing when the obligation to pay arose and how it was to be calculated, TeleChoice relied on its submissions regarding the limitation issue, seemingly adopting its submission that what was earned under the Final Dealer Appointment and whether it was less than that which would have been earned under the Intended Telstra Appointment could only be established at the end of the Final Dealer Appointment in April 2013. Consequently, so it was said, the loss was not ascertained and the cause of action did not accrue until the end of the Final Dealer Appointment at the earliest. The time at which the obligation to pay is alleged to have arisen was the topic of an extended exchange with senior counsel for TeleChoice during the hearing, which is referred to when addressing the Breach of Contract claim in Part D.4 of these reasons.

Part D.3.2: Revenue Representation as alleged is embarrassing and related matters

88 TeleChoice disputed that the particulars of the Revenue Representation in paragraph 12 made the allegation embarrassing, submitting that they were sufficient and identified the matters relied upon as the basis for the representation. It submitted that, at its heart, the Optus Entities' complaint was one about evidence, which was a matter for trial, noting further that the Optus Entities would get to see the evidence of TeleChoice before trial in any event. Reference was also made to the basis for the calculations in the July 2007 Forecast being referred to in the witness statement of Ms Seifen.

89 TeleChoice submitted that any issues regarding the making of the Revenue Representation and the timing of the communications, or other evidential matters, were matters for closing submission at trial. The making of the Revenue Representation and the allegations of reliance were said to be factual matters for trial. It was also observed that the Revenue Representation is alleged to have been a continuing representation. It was further submitted that '... each of the representation and the reliance spanned a period of time, and the representation therefore did not post-date the acts of reliance.'

90 During oral submissions TeleChoice emphasised that the analysis of the documents and oral evidence regarding the making of the Revenue Representation involved issues of fact that could only be addressed at trial. Attention was drawn to aspects of the documents referred to in the particulars to paragraph 12 said to support the making of the Revenue Representation, with some emphasis placed upon the written communication of 12 July 2007 from TeleChoice to Optus. It was further submitted that it was not only open to conclude that the Revenue Representation could be supported by the particulars to paragraph 12, but that the court could be comfortably satisfied on the point.

91 As to the claimed lack of clarity of the Revenue Representation in paragraph 12(b), TeleChoice submitted that this contention was misplaced because the Actual Telstra Rates are not 'incorporated into the 12(b) representation, but rather the 12(a) representation'. It was further submitted that the relevance of the Actual Telstra Rates is sufficiently evident because it is only by reference to such rates that it can be determined 'whether or not the 12(a) representation was met.' Senior counsel for TeleChoice confirmed that the representation in paragraph 12(a) was not in terms necessarily tied to the rates derived from the July 2007 Forecast, also submitting that this was supported by the terms of the letter of 12 July 2007.

Part D.3.3: The terms of the Intended Telstra Appointment are not sufficiently identified

92 As to the terms of the Intended Telstra Appointment, TeleChoice contended that the terms are sufficiently clear from that which is pleaded and that the particulars are adequate. It submitted that the Fourth FASOC, including by Annexure A, identifies the rates which would have been achieved under an appointment with Telstra and provides various volume calculations at those rates. It stated that TeleChoice's case is that the revenue which it would have earned under an agreement with Telstra was partially based on the standard incentives which Telstra paid to dealers, as referred to in paragraph 16(b). The rates, so it was said, will be the subject of evidence '... likely to be obtained by subpoena to Telstra ...'.

93 The fact that the paragraph 16(a) counterfactual refers to the Intended Telstra Appointment as being on 'substantially the same terms' as the Draft Telstra Agreements was said to be '... designed simply to reflect that the contracts documenting the Intended Telstra Appointment had not been signed'. TeleChoice submitted that the material terms of the agreement that it would have entered into with Telstra are made clear in paragraph 10. 'Otherwise', so it submitted, Optus's complaints were matters that could be addressed by limited further evidence.

94 TeleChoice further submitted that issues regarding incomplete terms of the Draft Telstra Agreements referred to in paragraphs 50 and 51 of Optus's written submission could be dealt with by 'limited further evidence' as referred to in the Annexure to TeleChoice's written submission.

95 With respect to the Optus Entities' contention that the basis on which it was said that there would be an entitlement to the MRO under the Intended Telstra Appointment was not identified, it was submitted that the position was sufficiently clear and that it was wrong to suggest that any such claim had been abandoned. In substance it was submitted that insofar as the claim based on the Telstra Rates was relied on, the MRO was one of the calculation items in the July 2007 Forecast and referred to in the documents used by both Optus and Telstra at the time - observing also that it was given a value by the Optus Entities in the Optus Financial Summary. In this context it was said that the MRO had always formed part of the claim. Reliance was also placed on the particulars to paragraph 10 and the submission that the existence of the commercial practices of Telstra would form part of the evidence, with related emphasis also placed on the fact that the existence of MRO payment practice was consistent with the MRO rate being included in the July 2007 Forecast.

Part D.3.4: The calculations in Annexure A are embarrassing

96 TeleChoice submitted that the contention that the calculations in Annexure A were embarrassing was without force and that Annexure A contains sufficient explanations of the basis of the revenue items claimed. It submitted that the case to be met is clear, and noted that some of the figures are the Optus Entities' own figures, and where they are not, explanations have been given by TeleChoice.

97 It was further said that the calculations in Annexure A will be the subject of expert evidence and some further lay evidence, which the Optus Entities will receive, and it was submitted that the pleading gives sufficient notice of the case to be met pending provision of the expert evidence that TeleChoice will provide. TeleChoice submitted that the complaints made by the Optus Entities about Annexure A were essentially requests for evidence.

98 TeleChoice also submitted that the particulars to paragraph 17 make clear that the figures in Annexure A are 'estimates' of the earnings it would have made under the Intended Telstra Appointment. It was submitted that the Optus Entities' submissions about Annexure A have an air of unreality about them given that the loss assessment involves consideration of a counterfactual scenario where a precise figure cannot be given because in the real world the agreement with Telstra was not entered into. It was submitted that the Optus Entities' submission regarding the need for such precision was inconsistent with authority which, so it submitted, recognises that in many circumstances an estimate of loss is necessary. In this context reference was made to the observations of Brooking J in JLW (Vic) Pty Ltd v Tsiloglou (JLW).[69]

Part D.3.5: Numerous material facts are not properly pleaded

99 With respect to complaints made by the Optus Entities in Part D.5 of their written submission[70] regarding various material facts not being sufficiently pleaded, TeleChoice made the short submission that the facts and matters alleged are sufficiently pleaded and particularised. They also submitted that requests for further information regarding, for example, the basis of calculations and the market share data were, in effect, requests for evidence, also observing that further evidence will be received by the Optus Entities in due course.

Part D.3.6: Prejudice to Optus arising from timing and content of amendments

100 TeleChoice referred to its general submissions regarding prejudice and submitted further that the existence of material prejudice had not been established and, to the extent there was any prejudice, it should not prevent the amendments being made. It was also said that being required to re-engage with witnesses was inevitable even if the amendments were not to be made. It was further said that the evidence did not establish that the Optus Entities had reached finalised positions with relevant witnesses. As to the issue of confidentiality between Telstra and Optus regarding any commercially sensitive material, it was submitted that this could be readily addressed by appropriate orders or management - noting further that, given the time that has passed since 2013, the issue of commercial sensitivity was likely to be limited in any event.

Part D.3.7: Other submissions regarding the Revised Telstra Revenue Claims

101 TeleChoice's submissions regarding the Estoppel Claim were limited, largely relying on the observations made about the other matters earlier referred to. As earlier mentioned, when it was raised by the court that the pleading did not allege what the Optus Entities were estopped from doing, senior counsel reflected on that matter and later stated that TeleChoice contended that the Optus Entities were estopped from failing to fulfil the Revenue Representation. It was also submitted that, at least on this application, it was neither necessary nor appropriate to address the existence or otherwise of any inconsistency or tension on the substantive promissory estoppel issues addressed by Handley JA in Saleh v Romanous[71] and the Victorian Court of Appeal in FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd.[72]

Part D.4: Consideration and Disposition - Revised Telstra Revenue Claims (Paragraphs 9-36)

102 Although the parties dealt with the Revised Telstra Revenue Claims largely in a collective manner, it is necessary to address each of the four claims separately, which is not to ignore the existence of the extensive overlapping allegations and considerations.

103 Taking into account the evidence, the history of the pleading and the proceeding, the submissions, the principles earlier referred to, and the court and the parties' obligations under the CP Act, and as I stated in the Introduction and summary above, I have concluded that:

(a) TeleChoice should be given leave to amend its Misleading Revenue Representation Claim insofar as it is based upon or relates to what are defined in paragraph 10 as the Telstra Rates.

(b) TeleChoice should not be granted leave to amend its Misleading Revenue Representation Claim insofar as it is based upon or relates to what are defined in paragraph 16(b) as the Actual Telstra Rates.

(c) TeleChoice should not be granted leave to amend its Misleading Revenue Representation Claim insofar as it seeks to introduce alleged Telstra market share related increased sales and revenue allegations and claims referred to in paragraph 16(c) and Part C of Annexure A.

(d) TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC to include a misleading and deceptive conduct claim based on the so-called Actual Telstra Rates or alleged Telstra market share related increased sales and revenue allegations and claims referred to in paragraph 16(c) and Part C of Annexure A.

(e) TeleChoice should be granted leave to amend its Breach of Contract Claim based on the alleged Revenue Term insofar as that claim is based on or relates to the Telstra Rates. The grant of leave will be conditional upon the inclusion of clear and concise particularised allegations of material fact regarding the written, oral or implied terms of the Final Dealer Appointment that address when it is alleged that the Optus Entities were required to pay the amount the subject of the alleged Revenue Term - provided, of course, that the relevant advisers are satisfied that there is a proper basis for such allegations. Leave to amend should not be granted to include a breach of contract claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

(f) TeleChoice should be granted leave to amend its Collateral Contract Claim insofar as that claim is based on the Telstra Rates. The grant of leave will also be conditional in the way described in the preceding paragraph. Leave to amend should not be granted to include a collateral contract claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

(g) TeleChoice should be granted leave to amend its Estoppel Claim based upon the alleged Revenue Representation insofar as that claim is based on the Telstra Rates. The grant of leave will be conditional upon the inclusion of clear and concise particularised allegations of material fact addressing what it is alleged the Optus Entities are estopped from doing and addressing what TeleChoice alleges the Optus Entities were required to do, and when, to fulfil the Revenue Representation. Leave to amend should not be granted to include an estoppel claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

104 Each of the Misleading Revenue Representation Claim, Breach of Contract Claim, Collateral Contract Claim, and Estoppel Claim are addressed further in turn below. As will be seen, as a result of the extensive overlapping considerations, the Breach of Contract Claim, the Collateral Contract Claim and the Estoppel Claim can be dealt with more crisply than the Misleading Revenue Representation Claim.

Part D.4.1: Consideration and disposition - Misleading Revenue Representation Claim

105 The limited grant of leave to amend the Misleading Revenue Representation Claim insofar as it is based on or relates to the Telstra Rates will facilitate the identification and determination of the real issues between the parties regarding the misleading conduct claim and thereby facilitate the just resolution of the Misleading Revenue Representation Claim. I elaborate below as to why I have concluded that such leave ought to be granted and in so doing address the various matters raised by the parties. As a starting point, I make the following brief observations regarding the long and challenged history of the pleading and the proceeding, which are also relevant to the other three Revised Telstra Revenue Claims.

106 The subject matter of the dispute relates to events between 2007 and 2013 which, to state the obvious, is quite some years ago. A letter of demand was sent to the defendants in July 2013 after the end of the Final Dealer Appointment demanding in the order of $100 million and enclosing a draft statement of claim. It was not until more than four years later, on 15 December 2017, that the writ and original statement of claim was filed. The Procedural Chronology and the affidavit evidence records many of the steps since that time, including the stage currently reached in the proceeding, to which I refer but shall not recite here. It is also informed by the many timetabling orders and extension orders made in this proceeding to date, not all of which are referred to in the Procedural Chronology.

107 As noted in the introduction above, to date there have been at least 14 or 15 draft or filed statements of claim provided to the Optus Entities since July 2013 - with 13 or 14 of them having been provided since the proceeding was commenced (including the original statement of claim as filed) (Previous Iterations). As the evidence revealed and was common ground, there have been many lengthy and extended exchanges between the parties since 2018 regarding claimed shortcomings in the Previous Iterations, which ultimately led to the 2021 Application, the Strike Out Reasons and the Strike Out Orders.

108 As I observed in the Strike Out Reasons, although the claims as originally made sought damages in the order of $100 million the original pleading and its two revisions in 2018 were not recorded as having been settled by counsel and were, at the risk of understatement, not well drafted. These were inherited by senior and junior counsel at some point in 2019 and those members of counsel are recorded as having settled or drafted the proposed second further amended claim of 17 September 2019 and an updated version on 30 October 2019. The as filed version of 25 November 2019 did not record the pleading as having been settled by those or other senior or junior counsel.

109 It appears that the senior and junior counsel who appeared for TeleChoice on this application and the 2021 Application inherited the pleading filed on 25 November 2019. They are recorded as settling or drafting the proposed third further amended statement of claim of 10 December 2020 and the many iterations since that time.[73] The Strike Out Reasons were handed down on 31 May 2021. The first proposed Fourth FASOC was provided to the defendants on 13 August 2021, with three further versions being provided in the exchanges between the parties since that time.

110 It is apparent that over an extended period TeleChoice has had ample opportunity, including with the assistance of two sets of senior and junior counsel, to properly formulate and articulate its claims.

111 With the procedural and pleading history and the above in mind, I make the following comments and observations regarding the proposed amendments and the particular matters raised by the parties about the proposed Misleading Revenue Representation Claim. I deal first with the Optus Entities' opposition to the grant of leave insofar as it relates to the claims based on the Telstra Rates; second, with the refusal of leave to amend insofar as the claim is based on or relates to the Actual Telstra Rates; and third, the refusal of leave to amend insofar as the claim is based on or relates to the Telstra market share related increased sales and revenue allegations and claims.

112 Contrary to the Optus Entities' submissions I do not accept that it is appropriate on this application to seek to determine the question of whether or not the misleading and deceptive conduct claim based on the Telstra Rates[74] is statute barred. Consistent with the observations of the High Court in Wardley,[75] which have been echoed in many cases since,[76] it is generally undesirable to be seeking to determine limitation questions in interlocutory applications in advance of the hearing of the action except in the clearest of cases.

113 Given the many contested factual matters to be determined in this case including, for example, the making of the alleged Revenue Representation, reliance, loss and damage, the timing contentions raised by the parties, and noting the date when the proceeding was commenced, this is not a claim that is in the category of the 'clearest of cases', or a case where there are no relevant issues of fact which require resolution.[77] The Optus Entities have alleged in their defences filed to date that the claim is statute barred and it seems plain that this will remain a contested issue between the parties for determination at trial if the proceeding is not resolved beforehand. The limitation issue should be determined in the light of all the evidence and full and complete submissions regarding the same, including, for example, submissions regarding what factual finding it is alleged should be made and their interaction with the observations of Nettle J in Environmental Systems[78] (referred to by the Optus Entities) regarding loss of opportunity claims. As counsel for TeleChoice put it, the limitation issue is not ripe for determination at this point and its existence does not provide a sound basis for refusing leave to amend. Further, the Optus Entities will not be relevantly prejudiced by adopting this principled approach.

Revenue Representation claims based on the 'Telstra Rates' and related matters

114 As I have said, and noting that leave to amend is not to be granted in respect of the Misleading Revenue Representation Claim insofar as it is based on the alleged Actual Telstra Rates, I do not accept that the pleading of the Revenue Representation is unclear or embarrassing in a way that adversely impacts on being sufficiently satisfied that it is appropriate to grant leave to amend of the kind I have concluded ought to be granted. Although not perfect, the allegations and words used regarding the making of the alternate forms of the Revenue Representation are clear enough for pleading purposes and capable of being sufficiently understood. Whilst from a drafting perspective it appears that they could perhaps be more clearly expressed, and it may be that the alternate forms of representation are not ultimately necessary to be pressed given the conclusions I have referred to at the commencement of this part of the reasons above, that is a different point. It is also to be borne in mind that it is a matter for TeleChoice and its solicitors and counsel, acting responsibly, to formulate and articulate the representation/s alleged to have been conveyed by the relevant alleged conduct. For completeness I observe that from a drafting perspective the singular defined term 'Revenue Representation' for the representations in both paragraph 12(a) and paragraph 12(b) appears not to be ideal, but that is a relatively minor drafting matter.

115 Although the Misleading Revenue Representation Claim has been reformulated, it may be noted that a misleading conduct claim based on an alleged representation relating to the matching of Telstra revenue has been one of the claims sought to be raised in the proceeding from at least September 2019 when it was included in a proposed second further amended statement of claim. Whilst then and subsequently it was defectively pleaded, it has been apparent for an extended period that the matching revenue misrepresentation claim sought to be made in the past had in substantial part been formulated by reference to the rates referred to in the July 2007 Forecast, as a review of some of the Previous Iterations and the Third FASOC reveals. In substance it is the rates referred to in the July 2007 Forecast that are now defined as the Telstra Rates in paragraph 10. It was common ground that the July 2007 Forecast was shared with the Optus Entities at the time in 2007 and used by them in connection with, among other things, their preparation of the Optus Financial Summary.[79]

116 It is apparent that in the current revision of the pleading the Misleading Revenue Representation Claim based on what are defined as the Telstra Rates[80] now adequately enough addresses the link with the July 2007 Forecast, which was a shortcoming of the Third FASOC that I referred to in the Strike Out Reasons. It is also now made plain that this misleading conduct claim based on the Telstra Rates is a loss of opportunity claim, with the relevant opportunity foregone being the alleged opportunity to pursue the Intended Telstra Appointment. This was another matter raised in the Strike Out Reasons.

117 Although aspects of the pleading of the Misleading Revenue Representation Claim based on the Telstra Rates might be open to some criticism, and the relevant allegations are not perfectly pleaded, considered as a whole they are clear enough. I do not accept that they are unclear or embarrassing in a way that warrants the refusal of the grant of leave to amend. I elaborate further on these and other matters below. It is to be remembered that, although important, pleadings are a means to an end and 'procedural tools' of the kind described by the Victorian Court of Appeal, as I have earlier referred to.[81]

118 A review of paragraph 12, when read together with paragraphs 7 to 11A which precede it, make the Revenue Representation allegation in paragraph 12 clear enough. The Telstra rates that TeleChoice expected it would earn are set out in paragraph 10 and collectively defined as the 'Telstra Rates'. The particulars to the paragraph then deal with each of the rates referred to and set out what it is alleged that each rate arises from. These rates were referred to in the July 2007 Forecast prepared by Ms Seifen, which was provided to the Optus Entities at the time and which the evidence suggested was used by the Optus Entities at the time to prepare the Optus Financial Summary. So much was properly recognised by the Optus Entities, although it would make no difference if that were not so.

119 The Revenue Representation is said to be partly oral, partly written, and partly to be implied or inferred. The particulars to paragraph 12 articulate sufficiently the basis on which this is alleged, and I note that the alleged matters relied upon include: a statement for the Optus Entities by Mr O'Sullivan that Optus would match the terms of Telstra's offer 'dollar for dollar'; the alleged conduct of Optus in adopting the revenue forecasts set out in the July 2007 Forecast; the Optus Entities' letter of 10 July 2007; the alleged (but contested) silence on the part of the Optus Entities in response to TeleChoice's letter of 12 July 2007;[82] and the Optus Financial Summary that used the rates from the July 2007 Forecast and is alleged to have been provided to TeleChoice in late August 2007. The evidence to which I have had regard includes these documents.

120 To the extent that it was submitted that the particulars relied upon are not capable of supporting the making of the Revenue Representation I do not accept that submission. This will be a contested matter of fact to be considered in the context of all of the relevant evidence and is not a matter that can or should be determined on this application. Whilst I accept that there are arguments open to the Optus Entities as to why it can be contended that the matters relied upon do not give rise to a representation to the effect of the Revenue Representation, there are alternative arguments open to TeleChoice given the matters relied upon by it. Whilst it is possible that the Optus Entities may ultimately turn out to be correct that the entry into the Final Dealer Appointment and its terms, and the communications which preceded it, are matters that present material challenges to TeleChoice in making good its Misleading Revenue Representation Claim, whether or not that is so can and should only be addressed and assessed by reference to all of the relevant evidence and submissions at trial.

121 Further, whilst it is the case that, as pleaded, there appear to be some arguable questions and tensions that may arise regarding aspects of the timing of the facts and events relied upon in support of the making of the representation (see paragraph 12) and reliance upon the same (see paragraph 15), these are not matters that can or should be assessed and determined on this application. They are also not matters that taken alone, or together with any other circumstances, would warrant the refusal of leave to amend in respect of the Telstra Rates claim under consideration. In this case these temporal issues cannot be properly considered or assessed in isolation based on the pleading or only the evidence introduced on this interlocutory application. They can only be properly considered in the light of all the relevant evidence, including cross-examination, and the facts as ultimately found. It is relevant in this context to remember that in paragraph 13 it is alleged that the Revenue Representation was a continuing representation, and that the alleged acts of reliance include not seeking to re-enliven the discussion with Telstra after July 2007, and the entry into the Final Dealer Appointment - which it is alleged did not occur until about March 2008. This conclusion is in part consistent with TeleChoice's submission that the making of the representation and the acts of reliance span a period of time and consistent with TeleChoice's contention that it cannot at this point be concluded that the claimed acts of reliance precede the making of the Revenue Representation, which are matters for consideration and determination at trial.

122 Given the way that the case is now put I do not accept that there is relevant remaining force in the submission that the way that TeleChoice says the Telstra Rates are 'incorporated' into the Revenue Representation regarding the Telstra Rates is not sufficiently clear. It is clear enough for pleading purposes what it is said was represented, and that it is said in paragraph 12(b) to be a representation in respect of the rates reflected through the July 2007 Forecast (which, among other documents, was provided to and used by the Optus Entities when addressing the issue at the time). I do not accept that the reference to the Telstra Rates in paragraph 12(b) render it 'unintelligible'. As for paragraph 12(a), it is a similar representation but expressed more broadly. The words used are capable of being understood, as I referred to in the Strike Out Reasons.

123 Having regard to the terms of the Fourth FASOC, I also do not accept that there remains relevant force in the submission that TeleChoice has not sufficiently identified for pleading purposes the claimed source of the obligation or entitlement for each of the relevant Telstra Rates said to be applicable. Although not perfect, in my view this is sufficiently identified for pleading purposes in paragraph 10. In that paragraph TeleChoice addresses the separate rates in paragraphs 10(a) to (l) (ie, the Telstra Rates) and then gives particulars for each of the rates referred to. Whether or not, as a matter of fact and/or law, the matters relied upon will be found to have imposed upon Telstra an obligation to pay such an amount to TeleChoice or have given rise to an entitlement or opportunity for TeleChoice to receive them, are matters for trial. Whilst it is accepted that one or more of these matters may be hotly contested, for present purposes these are not issues or matters that can or should be addressed and determined at this point.

124 That said, to the extent that the Optus Entities remain of the view that any material source-related matters are not sufficiently identified, I will permit further limited, focussed, and substantive requests for particulars to be made. However, such requests (if any) should not stray into interrogation or requests for evidence and, if made, should only be made in a manner consistent with the obligations imposed upon the parties and practitioners under the CP Act. I also note that we are here dealing with a pleading, with further evidence to be filed. It is also proposed that any further expert and lay evidence will first be filed and served by TeleChoice before the Optus Entities are required to respond. This should minimise, if not eradicate, any appreciable risk of the Optus Entities not knowing how the case is put regarding these source-related matters. Whether the allegations can be made out will remain a matter for trial.

125 Whilst I accept that the MRO revenue item is significant in amount, I do not accept that TeleChoice has not sought to address in the Fourth FASOC the basis on which it alleges that it would have received such revenue as part of the Telstra Rates. TeleChoice sets out in paragraph (iv) (a) and (b) of the particulars to paragraph 10 the basis upon which it contends that it would have been able to secure such revenue had it become a Telstra dealer, namely the alleged Telstra commercial practice of offering its dealers a 'Mobile Repayment Option'.[83] It is also alleged at that time the average MRO amount paid per relevant activation and digital advance was $160. The reference to this rate is not new. This rate was referred to in the July 2007 Forecast provided to Optus shortly after it was prepared in 2007 and it is referred to in the Optus Financial Summary prepared by the Optus Entities in mid-2007 (and other documents). Whether or not it will be established on the evidence at trial that TeleChoice would have received such revenue, and what if anything follows from it, will be a matter for assessment in the light of the relevant evidence and submissions at trial. That the Optus Entities say that they did not have an MRO revenue payment for their dealers at the time is a different matter - and not relevantly to the point for present purposes.[84]

126 To the extent that it was maintained that TeleChoice previously abandoned any claim in respect of MRO revenue and/or loss and damage relating to it, and that this was apparent from a comparison of (among other things) paragraphs 110 to 121 of the 13 August 2018 further amended statement of claim with the deletions of those allegations in the second further amended statement of claim of 25 November 2019,[85] I do not accept that this was established on a prima facie basis or otherwise on the evidence before me on this application. That said, and although I elaborate further below, it is appropriate that I refrain from determining this contention on a final basis at this time as the abandonment contention will be a contested issue between the parties if pressed by the Optus Entities by way of defence.

127 Neither the terms of the pleading nor the communications regarding the MRO and the pleading changes referred to by the Optus Entities established on this application an abandonment of the kind asserted.[86] It is also the case that in the particulars to paragraph 19 of the 25 November 2019 pleading, which contained the allegation regarding the Revenue Representation, reference is made to the Optus Financial Summary and the assumptions and rates referred to in it. As the evidence showed, one of the rates referred to in the Optus Financial Summary on the Telstra side of the Telstra/TeleChoice proposed deal was an MRO unit rate of $160. This does not support a contention of abandonment of the kind alleged but speaks against it. It may also be observed from correspondence between the parties subsequent to 25 November 2019 that the Optus Entities continued to see the MRO revenue as an issue that was being agitated by TeleChoice.[87] It was also apparent from the Third FASOC (and earlier drafts of it) that the MRO revenue continued to form part of TeleChoice's misleading conduct claim - albeit at that time not sufficiently pleaded or articulated, as was observed in the Strike Out Reasons.

128 I add for completeness that in reaching the conclusions referred to above and below regarding the Misleading Revenue Representation Claim I have kept in mind that, as I observed in the Strike Out Reasons, the allegations regarding the revenue that would have been earned under the Intended Telstra Appointment do not relate only to the issue of quantum of loss and damage in the loss of opportunity context. Given the content of the alleged Revenue Representation, the counterfactual revenue allegations in paragraph 16, the allegations of falsity or misleading conduct in paragraph 17 (because the revenue earned is alleged not to have been the same as that which it is alleged would have been earned under the Intended Telstra Appointment), the revenue allegations go to the issue of liability as well as loss and damage and the quantum of the same. As observed in the Strike Out Reasons, this is relevant to note given that different considerations and standards of proof are involved. For example, the alleged revenue counterfactual and alleged falsity misleading nature of the Revenue Representation will fall to be established on the balance of probabilities, and any quantum issues for loss of opportunity being assessed in an evaluative way by reference to possibilities and probabilities in connection with the alleged past hypothetical in the manner discussed in Sellars and related cases.[88]

129 Of course the above observations regarding the Revenue Representation say nothing regarding the ultimate merits or otherwise of the contention that the Optus Entities represented that the revenue to be earned under the Final Dealer Appointment would be the same as that to be earned under the Intended Telstra Appointment applying the Telstra Rates, or one or more of them, including the MRO rate. Whilst a number of the matters exposed by the parties (including, for example, the documents exchanged between them in mid-2007 and the terms of the Final Dealer Appointment) suggest that it is possible that the Misleading Revenue Representation Claim based on the Telstra Rates may face a number of challenges, these are matters of some factual and related complexity for consideration and assessment at and following trial when the allegations can be fully considered in the light of all relevant evidence and submissions. They are not matters capable of assessment at this point.

130 It will be apparent that I do not accept the submission that the court's previous observation regarding what appeared to be an unexplained and unclear conflation between the July 2007 Forecast and the alleged Telstra revenue in the Third FASOC applies equally to the Misleading Revenue Representation Claim in the Fourth FASOC. The claim now has the structure earlier referred to in these reasons, which is also apparent from its terms in any event. The July 2007 Forecast is now squarely introduced into the pleading and addressed in various paragraphs, including paragraphs 10, 11A, and 12, noting also that the particulars to paragraph 12 are relied on in respect of other aspects of the Revised Telstra Revenue Claims. A review of the Optus Financial Summary document that is referred to in the pleading (together with the July 2007 Forecast) further reveals the connection, which is no longer unexplained. The evidence also demonstrated that the Optus Entities were dealing with the July 2007 Forecast at the time in 2007, as was acknowledged during the hearing and was evident from at least the Optus Financial Summary in any event.

131 Insofar as it was maintained that considerations of the kind addressed in Aon and related case management, CP Act and prejudice risk issues militate strongly against the grant of leave to amend the Misleading Revenue Representation Claim relating to the Telstra Rates,[89] I do not accept that submission. The revisions made seek better to articulate, in a manner that is adequate enough, a misleading conduct claim largely based around the rates referred to in the July 2007 Forecast. Although defectively pleaded in the past, a review of Past Iterations, including the Third FASOC, reveals that such a claim has been sought to be agitated for a considerable period of time. It is also apparent that many of the rates in question were being addressed between the parties at the time. Further, the July 2007 Forecast and the rates referred to in it have been referred to in witness statements filed to date by TeleChoice. Subject to further order, I also propose to make timetabling orders at the appropriate time for the filing of further lay and expert evidence by TeleChoice prior to the Optus Entities having to respond in kind. That is not to overlook the evidence of Mr James of the cost incurred to date, or the inevitability of further time, delay and expense being involved. However, these are matters that I have weighed in the balance, again noting the correlation between the Telstra Rates and the July 2007 Forecast that the parties were dealing with at the time.

132 Although there appeared to me to be at times a tendency on the part of the Optus Entities to overstate some of the difficulties faced in connection with the Telstra Rates claim, even if the challenges of the kind addressed by the Optus Entities are assumed to be of the character and extent raised in this Telstra Rates context, the position does not in my view change insofar as the claim is based on the Telstra Rates - and accepting that the evidence shows that material expense has been incurred to date and that further time, expense and delay will be incurred. These are matters to be weighed in the balance when applying the principles earlier referred to and in the exercise of my discretion. Whilst there may be many contested issues and the claims may face a number of difficulties, these cannot be resolved now. It will also be apparent that, on the material before, me I am satisfied that it has been established that there is a proper basis for bringing the misleading conduct claim based on the Telstra Rates as now formulated. Further, I cannot on the evidence before me be satisfied that the claim has no real prospect of success given the many and varied complex factual and other matters to be determined. Given that these issues will remain for trial, I do not propose to elaborate further on these matters.

133 The upshot is that leave will be granted to TeleChoice to amend the Misleading Revenue Representation Claim insofar as it is based on or relates to the Telstra Rates.

134 I move now to the Misleading Revenue Representation Claim insofar as it is based on the new allegations regarding the Actual Telstra Rates.

New claims and allegations based on the 'Actual Telstra Rates' and related matters

135 As I have said, insofar as the reformulated Misleading Revenue Representation Claim is now sought to be based on the so-called 'Actual Telstra Rates' referred to in paragraph 16(b), I accept that leave to amend ought not to be granted. To the extent that it is capable of being properly understood by the court, this substantial new claim has not been established on the material before the court on this application to have a proper basis and appears to have numerous other material shortcomings and issues, including but not limited to, being unclear, embarrassing, and not putting the Optus Entities and the court on sufficient notice of the claim that is sought to be pursued. Case management and related considerations also militate against granting leave to amend. This can be distinguished from the claims based on the Telstra Rates which have been raised in different ways in a number of the Previous Iterations[90] and which the evidence showed were the subject of communications between the parties at the time. I make the following additional observations regarding my conclusion that leave to amend ought not to be granted in respect of the Misleading Revenue Representation Claim insofar as it is based on the Actual Telstra Rates.

136 First, I accept that the claim based on the Actual Telstra Rates is new. A review of the Previous Iterations establishes as much, as does consideration of the Third FASOC that was the subject of the Strike Out Reasons. Although defectively pleaded in the past, the previous misleading conduct (and related) claims have been based around what are now referred to as the Telstra Rates (although not then defined in that way), being those the subject of communications between the parties at the time in 2007 and referred to in, among other things, the July 2007 Forecast.

137 Second, and at the risk of repetition, it is again to be remembered that these allegations do not relate only to the issue of loss and damage. Among other things it is alleged that, on the pleaded counterfactual in paragraph 16(b), the Revenue Representation was misleading and deceptive or likely to mislead and deceive because the revenue earned under the Final Dealer Appointment was not the same as that which it is said would have been earned under the Intended Telstra Appointment 'at the Actual Telstra Rates'.[91] In substance, and although not expressly stated in this way in the pleading, it can be seen that the Revenue Representation in paragraph 12(a) is at least implicitly alleged to convey a representation of the kind alleged 'based on the Actual Telstra Rates'. So much was also supported by aspects of what was said by TeleChoice in paragraph 48 in its written submission and in oral submissions. But even if this characterisation of the representation is not accurate it makes no difference given the counterfactual allegation in paragraph 16(b) and the falsity or misleading conduct allegations in paragraph 17.

138 Third, and as the Optus Entities submitted, this new claim, if permitted, materially increases for the first time in the long history of the events and the proceeding, the alleged revenue in the counterfactual in paragraph 16 (and the consequent damages claimed for loss of profits under the Misleading Revenue Representation Claim) when compared to the revenue alleged and damages previously claimed (and now refined) based on the Telstra Rates. Although not easy to follow, it is apparent from paragraph 17 and the various parts of Annexure A that the increase in the claim for the Actual Telstra Rates when compared to the $64,341,316 claim based on the Telstra Rates:

(a) is in the order of $9.83 million (ignoring interest) if the claimed additional alleged Telstra increased market share related sales and revenue are put to one side; and

(b) is in the order of $115.88 million if the (newly introduced) additional alleged Telstra increased market share related sales and revenue are taken into account.

Looked at broadly in this way, and again as best as can be understood, this results in a claimed loss based on the Actual Telstra Rates of $74,170,368 under scenario (a) and $180,224,964.99 under scenario (b).[92] It may also be observed that the amount claimed under scenario (b) differs markedly from the $100 million referred to in the Procedural Chronology as having been sought in the letter of demand in July 2013, and the similar amount claimed in the Previous Iterations, including the Third FASOC.

139 This substantial increase in alleged loss is said to be based on an increased level of sales and therefore revenue. Relevantly, Parts A and C of Annexure A to the Fourth FASOC are not easy to follow and are at least unclear in various respects, whether considered alone, with the other content of the Fourth FASOC and the Annexure, or in any combination. That said, and as best I can tell, the total revenue that it is said would have been earned when the Telstra increased market share percentages are applied to the volume of sales made under the (Optus) Final Dealer Appointment has increased dramatically, and is said to be $456,021,600.[93] It will be recalled that the amount of revenue that it is said was earned under the (Optus) Final Dealer Appointment is $258,524,735. It may also be noted that for the four-year period the subject of the July 2007 Forecast[94] the forecast recorded the total forecast revenue under the (Optus) Final Dealer Appointment as $163,675,746 and $192,154,939 under the then proposed Telstra scenario. This was recorded in the said forecast as a total deficit (over four not five years) of $25,479,193, giving what was said to be a 'yearly [revenue] deficit' (under the Optus scenario when compared to the Telstra scenario) of $7,119,798.

140 For completeness I add that the revenue it is claimed would have been earned under the Intended Telstra Appointment applying the Telstra Rates is said to be $322,866.051.

141 It is readily apparent that these new extrapolated Telstra market share sales/revenue allegations have a dramatic impact on the claims previously made. This was a point which the Optus Entities submitted, correctly, was important to keep in mind when considering whether it had been established that there was a proper basis for the allegations and, if so, whether leave to amend ought to be granted in the circumstances in any event. It was also emphasised, again correctly in my view, that these new increased revenue allegations were not only relevant to quantum but, significantly, central to liability in the context of the alleged counterfactual and alleged falsity or misleading nature of the Revenue Representation. I again refer to paragraphs 16 and 17 and my earlier remarks on this topic.

142 Fourth, given the nature of the application and its timing it is for TeleChoice to satisfy the court that there is a proper basis for these allegations and this claim (and the other amendments) sought to be introduced and that, having regard to the principles earlier referred to, the discretion to grant leave to amend ought be exercised in its favour. These principles include those earlier referred to regarding case management, delay and related considerations.

143 Fifth, in my view there is force in various aspects of the Optus Entities' submissions regarding the unclear, opaque and embarrassing nature of the newly introduced Actual Telstra Rates allegations. It is sufficient to mention briefly the following.

144 The role and function of pleadings was addressed in part in the Strike Out Reasons and need not be repeated. It is important for both the parties and the court sufficiently to understand what is being alleged. Upon first reading the allegations regarding the Actual Telstra Rates, which are first introduced in paragraph 16(b) of the Fourth FASOC and Annexure A, I found them difficult to follow, unclear, vague and embarrassing. Several further attempts did not improve the position. In part, and at first, this was influenced by the terms of the Revenue Representation as pleaded, which expressly made reference to the Telstra Rates in paragraph 12(b) but no reference to the Actual Telstra Rates in paragraph 12(a) or elsewhere in that paragraph. However, the absence of clarity and embarrassing nature of the allegations remained on further reviews even when putting this aspect to one side.

145 As the Optus Entities submitted, the absence of clarity and embarrassing nature of the allegations was compounded by the particulars to paragraph 16(b) rather than alleviated by them. Putting to one side the fact that it appears that a number of matters raised in the particulars to paragraph 16(b) are matters of material fact, the particulars contain vague and general statements that give no insight as to the true basis for the allegations, provide no real insight as to the source of the prospect of receiving, or alleged right to receive, the amounts referred to. Further there are also open-ended references to 'some' of the standard incentives being based on unidentified 'plans purchased by Telstra's customers', which is made more unclear by the vague references to the Actual Telstra Rates being said to be calculated on some form of unspecified and unclear weighted average basis.

146 Reading Parts A to D of Annexure A together with paragraph 16(b) and its particulars does not assist the position, noting as I do that, when read together, alone, or in any combination, the basis upon which it is alleged that one or more of the Actual Telstra Rates would or might have applied to TeleChoice cannot be ascertained - even if it were to be assumed that the combination of the allegations regarding the Actual Telstra Rates were otherwise sufficiently intelligible or capable of being sufficiently understood by the parties or the court, which they are not. Although TeleChoice submitted to the contrary, it will be apparent that I do not accept those submissions. As pleaded, at this stage in the proceeding it is not possible to sufficiently understand the allegations regarding the Actual Telstra Rates.

147 Further, even though it would not have been sufficient from a pleading perspective, the basis upon which the Actual Telstra Rates are said to have applied or been derived was not addressed in any material way by the materials and evidence on this application, including the affidavit material of Ms Seifen, and notwithstanding the substantive nature of the change to the claims sought to be made, the procedural history, the stage of proceeding, the extremely lengthy period of time that TeleChoice has had to formulate its claim since July 2013, and the extended period of time TeleChoice has had since the handing down of the Strike Out Reasons.

148 It appears likely - or at least possible - that this may have occurred because TeleChoice is not yet in a position to properly articulate its claim based on the Actual Telstra Rates because it has not obtained relevant information and documents from Telstra or elsewhere. That this so appeared was supported in part by the express reference in the Annexure to TeleChoice's submissions (and in other submissions) of the need to obtain discovery in the future by way of 'Subpoenaed material from Telstra' to address 'TeleChoice's counterfactual' in paragraph 16 of the Fourth FASOC. That is, the Actual Telstra Rates counterfactual. The existence of this stated need suggests that such material has not yet been obtained and that it has been necessary for TeleChoice to speculate regarding its claim based on the Actual Telstra Rates, and that it is not yet in a position properly to articulate the same. If that is so, it further militates against the grant of leave to amend. But even if it is put to one side, the position remains that the claims made regarding the Actual Telstra Rates are vague, embarrassing and unclear and for this reason alone leave to amend ought not to be granted in respect of them.

149 The upshot is that the allegations made regarding the Actual Telstra Rates are vague, unclear and embarrassing. This is reason enough of itself not to grant leave to amend in respect of the new claims based upon the same in the Fourth FASOC.

150 Sixth, having regard to the above, and noting the very limited nature (and relative absence) of evidence to demonstrate that the Actual Telstra Rates allegations and claim have a proper basis, it is also the case that I am not satisfied that it has been established on the material before the court on this application that there is a proper basis for making the allegations and claims based on the Actual Telstra Rates. In this context I refer particularly to the matters raised regarding the embarrassing and unclear nature of the allegations and the dearth of evidence on the topic. In reaching this conclusion I have taken into account that the Fourth FASOC has been drafted by senior and junior counsel and put forward by solicitors. Whilst that may be relevant, it is not sufficient in the present circumstances and at this stage in the proceeding to satisfy the court on this application that a proper basis for the amendments regarding the Actual Telstra Rates has been demonstrated. This is another factor which of itself is a sufficient reason for refusing to grant leave to amend in respect of the claims based on the Actual Telstra Rates.

151 Seventh, having regard to the principles outlined in Aon and related cases referred to earlier above, in my view considerations relating to case management, and the CP Act, also favour the refusal of leave to amend at this point in the proceeding insofar as the amendments seek to introduce claims based on the Actual Telstra Rates. Given the conclusions reached above regarding the allegations being embarrassing and it not having been established that they have a proper basis, this topic need only be briefly elaborated on.

152 Even if I had been satisfied that it was established that the claims based on the Actual Telstra Rates had a proper basis and were sufficiently clear and not embarrassing, given the stage of the proceeding; the procedural history; the time that has passed; the delays that have occurred to date; the additional work, time, expense and further delay that would necessarily be involved in dealing with the Actual Telstra Rate allegations; and the court's and the parties' respective obligations under the CP Act, it would in the circumstances of this case be appropriate to refuse leave to amend in respect of these Actual Telstra Rate claims in any event. The grant of leave to amend in this regard would not well serve the overarching purpose under the CP Act or the court's duty under ss 8 and 9 of the CP Act.

153 Although TeleChoice sought to downplay the impact of the amendments based on the Actual Telstra Rates, I did not find these submissions persuasive. It is in my view apparent that the belated inclusion of any claims based upon the so-called Actual Telstra Rates would involve considerable further material delay, time, expense and potential prejudice, which in the circumstances ought not to be permitted - noting also the absence of any satisfactory explanation for the extended delay in seeking to advance such a claim.

154 It can be reasonably inferred that the task of seeking to obtain relevant documents from Telstra is likely to be involved and take material time - even if ultimately it was not to be contested, which it may be inferred seems unlikely at best. The forensic exercise in then assessing the material, TeleChoice seeking further to revise its claim based on the material, and the Optus Entities needing to undertake a related exercise on the other side of the coin can be seen to be likely to involve considerable further material time and cost. This is supported in a general way by the history of the proceeding to date and the time and cost that has been referred to by Mr James in his evidence. If history is any guide, it is at least possible, if not likely, that there may be further contests about further revisions of the claims based on the Actual Telstra Rates. That would involve further time, effort, delay and expense. Even if that did not occur, it is likely that TeleChoice would need to prepare somewhat involved and detailed evidence regarding the Actual Telstra Rates, possibly including expert evidence. This may include the need to subpoena documents from other parties, including Telstra. This would then need to be considered by the Optus Entities, and addressed, likely including by seeking to identify and speak to lay or expert witnesses in the field. Given the personnel changes and related matters referred to by Mr James over the years that have passed, the risk of prejudice in connection with these new allegations is also relevant in this context. The lay evidence regarding such matters relates to events of many years past and also the activities of a third party, namely Telstra. These factors do, I accept, give rise to the risk of prejudice to the Optus Entities in seeking to adequately address them given the passage of time. The need for additional expert forensic accounting evidence would also need to be considered and likely prepared on both sides. Other steps would likely be necessary.

155 Having regard to the subject matter and the history of the proceeding, and notwithstanding TeleChoice's submissions to the contrary, it is in my view apparent that a very significant exercise would need to be undertaken by the parties at this advanced stage in the proceeding. To allow amendments of the kind contemplated to further delay the progress of this matter towards trial would not be consistent with the court's or the parties' respective obligations under the CP Act or the overarching purpose. I also observe that there has been no adequate explanation put forward as to why, when the first statement of claim was prepared in 2013, it was not until late 2021 that this claim has been introduced, albeit inadequately. Noting the other matters raised, the CP Act and case management issues are further reasons sufficient of themselves not to allow the amendments relating to the Actual Telstra Rates to be made.

156 I add that I do not consider there to be any material force in TeleChoice's submission that the sorts of issues raised above should be accepted as inevitable incidents of litigation, or its submission that it is assisted because the matter has not yet been fixed for trial. As to the first point, the challenges referred to arise by reason of TeleChoice's attempt to belatedly introduce new claims based on the Actual Telstra Rates at the stage and in the manner that it has endeavoured to. As to the second point, a review of the many orders made by various judges to date, and the Procedural Chronology, reveals that progress has been delayed for a range of reasons but that orders have been made in the past for the filing of evidence. As things stand, the dates by which TeleChoice's lay witness statements were to be filed and served have long since passed, having been extended on occasion in the past. TeleChoice filed four witness statements and three outlines of evidence in late December 2020. The postponement of the time for the filing of evidence by the Optus Entities initially occurred over the objections of TeleChoice, although that was inevitable once the Strike Out Reasons were handed down, as was ultimately accepted. However, whatever be the reasons for aspects of delay in the past, it can fairly be said that in 2021 and since much of the delay in advancing this matter towards trial is related to the defective manner in which TeleChoice has sought to put its case, its inability to properly articulate some of its claims, the successful 2021 Application, the time taken to finalise the Fourth FASOC, and its amendment application the subject of these reasons. Absent these matters it is at least very likely that the proceeding would have advanced through the evidentiary stages and been set down for trial by now. Further, allowing such allegations to be refined and proceeded with would delay unacceptably the advance of the proceeding.

157 Finally, and having regard to the matters raised above and the principles earlier referred to, I have concluded that TeleChoice ought not to be provided with a further opportunity to re-cast the Fourth FASOC to include revised claims based on the so-called Actual Telstra Rates. Given the circumstances of this case, I also echo the observations of Sifris J in MacFadyen and Gleeson CJ in Sialepis. The following observations of Sifris J in MacFadyen resonate in the present context:

46. The right to seek relief from a Court is not an absolute right. It carries with it a responsibility, now directly enshrined in legislation, namely the Civil Procedure Act 2010 (Vic) ('CPA'). The Plaintiffs have not discharged this responsibility. Given this history, the Court cannot be confident that the Plaintiffs will ever be able to articulate their claim. They should not be permitted to continue. To permit the Plaintiffs to have yet 'another go' would not be in the interests of justice and would not be consistent with the overarching purpose set out in s 7 of the CPA which requires 'the just, efficient, timely and cost effective resolution of the real issues in dispute'.

158 TeleChoice has had more than an ample opportunity properly to formulate its claims in this proceeding and insofar as it now seeks to properly articulate a claim based on the Actual Telstra Rates it has failed to do so. The issues arising are not ones of drafting infelicities and it has not been established on the material before me on this application that there is a proper basis for seeking to advance a claim of the kind referred to even if it could be drafted in a way that was not embarrassing and unclear. As I have said, case management and CP Act considerations also firmly militate against the granting of leave to amend in respect of the Actual Telstra Rate allegations.

159 I turn now to the new allegations and claims based on the alleged increased TeleChoice sales and revenue that TeleChoice says it would have received under the Intended Telstra Appointment because of Telstra's alleged increased market share when compared to that of Optus.

Increased sales and revenue allegations and claims based on Telstra's market share and related matters

160 As best as I can tell the claims and allegations sought to be introduced in Annexure A (in part through paragraphs 16 and 17) that are based on the alleged increased sales and revenue linked to the alleged increased market share held by Telstra (when compared to Optus) are made only in respect of claims based on the Actual Telstra Rates. Consequently, it follows from my decision not to grant leave to amend to include the Actual Telstra Rates allegations that leave will not be given to amend the Fourth FASOC so as to include increased sales revenue claims and allegations based upon the Actual Telstra Rates. Similarly, for the reasons parallel to those stated above, TeleChoice will not be provided with a further opportunity to re-craft the Fourth FASOC to include such claims or allegations based on Telstra market share allegations - noting also that such claims would have additional dimensions associated with the factual, causal and other allegations connected with such a claim, even assuming it was properly pleaded. This would compound (adversely) the case management, CP Act and prejudice related issues and risks earlier referred to when addressing the Actual Telstra Rate Allegations.

161 That said, there are additional reasons why leave to amend to include the increased sales and revenue allegations and claims would not be granted at this point in any event, and why no further opportunity should be given to TeleChoice to allow it to seek to introduce such market share based increased sales and revenue claims. This is because: TeleChoice has not established on the material before the court on this application that there is a proper basis for the allegations that TeleChoice's sales and revenue would have increased in the manner it is alleged by TeleChoice follows from Telstra's alleged increased market share; the claims and allegations are deficiently pleaded, unclear and embarrassing in various respects; and considerations regarding case management, and the CP Act, also militate against the grant of leave to amend to include these new allegations and claims at this time. These considerations - and those relating to the Actual Telstra Rates allegations - also lead me to conclude that TeleChoice should not be provided with yet a further opportunity to attempt to re-craft the Fourth FASOC so as to properly formulate and include increased sales and revenue allegations and claims of this kind.

162 Because TeleChoice's new increased revenue claim based upon Telstra's alleged higher market share is also founded upon the Actual Telstra Rates and therefore inextricably linked to these allegations, it is not strictly necessary to elaborate further on these additional points given that leave to amend is not to be granted in respect of the Actual Telstra Rates allegations and claims. However, I elaborate on some aspects briefly below because even if the Actual Telstra Rates allegations did not suffer from the issues that I have identified,[95] I would not have granted TeleChoice leave to amend its pleading to introduce such increased sales and revenue allegations and claims in any event.

163 It is to be noted that the market share based increased sales and revenue allegations and claim are new, substantive and material. To the extent that it was contended otherwise I do not accept that submission. A review of the Previous Iterations, including the Third FASOC, confirms that the allegations and the claims are new. The Optus Entities are also correct that the allegations do not relate only to the assessment of the quantum of loss in the evaluative way addressed in Sellars and related cases. The alleged achievement of such sales and increased revenue are pleaded as part of the counterfactual in connection with liability and the basis upon which it is said by TeleChoice that the Revenue Representation was misleading. Again I refer to the allegations in paragraphs 16 and 17, as well as Parts A, B, and the first two pages of Part C of Annexure A.[96]

164 On this application, in which TeleChoice belatedly seeks leave to introduce these new allegations and claims, it is necessary for TeleChoice to satisfy the court that there is a proper basis for the proposed amendments and that, having regard to the applicable principles earlier referred to, the court ought to exercise its discretion to grant TeleChoice leave to amend to include such allegations. As the Optus Entities observed, this point is underscored in the present circumstances given the major impact on the claims previously made, the procedural history, and the current stage of the proceeding. As earlier mentioned, through the allegations in question TeleChoice seeks to introduce a counterfactual that results in the loss of profits claim increasing dramatically to in excess of $180 million.

165 In order to establish that there is a proper basis for the allegations and the claims in question, one might have expected it to be sufficiently apparent from the allegations pleaded and the material and evidence in support of the application why it is said that there is a proper basis for alleging that the existence of an increased Telstra market share would or might arguably translate into dramatically increased sales and revenue for TeleChoice from the moment it was to become a Telstra dealer in 2008 (and for each of the years thereafter). Perhaps all the more so given that the pleaded counterfactual in question contemplated TeleChoice starting as a Telstra dealer afresh for the first time, having not been a Telstra dealer in the past but having been an Optus dealer since 2001. A basis for the allegations cannot be inferred from the material and it does not present itself as a logical or self-evident consequence.

166 The issue is essentially not touched on in the evidence or in the proposed pleading or particulars and I am not satisfied that it has been established on the material before the court on this application that TeleChoice has a proper basis for making the increased sales and revenue allegations and claims. It follows that I cannot be satisfied that there is a proper basis for the consequent loss of profit claim, even putting to one side the somewhat unclear and opaque aspects of TeleChoice's related costing allegations referred to in Part C of Annexure A in respect of the increased sales and revenue claims. In the circumstances, the grant of leave would also not well serve the overarching purpose under the CP Act.

167 I add that I do not accept the submission that this is a matter only for evidence at trial. TeleChoice is seeking to introduce a substantial new claim following considerable delay, after many years have passed since the time of the relevant events, at what is an advanced stage in the procedural chronology, and in circumstances where there is no adequate explanation for not seeking to bring the claim earlier. In any event, it is necessary for TeleChoice to support its application with sufficient material for the court to be satisfied on this application that there is a proper basis for (at least) the key allegations and the central claims sought to be introduced by the proposed amendments. In the present context it has not done so. This is a sufficient reason of itself not to grant leave to introduce these allegations and claims at this time.

168 It may also be observed that aspects of the materials before the court point in the other direction. That is, against the existence of a proper basis for the allegations. It is sufficient to mention the following. The July 2007 Forecast that was prepared by TeleChoice in 2007 at the time it was contemplating becoming a Telstra dealer recorded projected Telstra sales volumes that were materially less than the projected sales volumes if TeleChoice remained an Optus dealer. So much is apparent from a review of the July 2007 Forecast and a comparison of the forecast Optus scenario over the period of the forecast when compared to the forecast Telstra scenario over the same period. Given that TeleChoice was proposing to become a Telstra dealer for the first time and needing to build its business, this does not present itself as being surprising or illogical on its face. The evidence also revealed that these lower Telstra volumes were used by TeleChoice and the Optus Entities at the time, which is supported by the content of the Optus Financial Summary prepared in 2007.

169 Further, the following extract of the proposed evidence of Ms Seifen set out in paragraph 8 of her witness statement filed on 23 December 2020 also appears to work against the existence of a proper basis for the allegations. Relevantly, Ms Seifen states as follows:[97]

In the June 2007 Forecast, I used the figures which TeleChoice had achieved under Optus, including an average of commission per connection which had been achieved for the first nine months of the 2006-07 contract year. I took a conservative approach to customer numbers which would be achievable under the Intended Telstra Appointment. In the 'Telstra' section of the June 2007 Forecast, I used customer numbers for 'new activations', 'other activations' and 'digital advance' which were only 75% of the customer numbers which TeleChoice was achieving for Optus at the time (even though Telstra had a larger customer base and a much bigger market share). I did that because I did not want to be overly optimistic about how TeleChoice would perform under any Telstra agreement, as TeleChoice had never previously been a Telstra dealer.

170 In the circumstances, not only is there insufficient material before the court on this application upon which the court can be satisfied that the new sales and revenue allegations and claims based on Telstra's market share have a proper basis, the material referred to above points in the opposite direction - or at least raises material questions regarding the existence of a proper basis for making such allegations and claims. The result is that it has not been established on the material before me that there is a proper basis for the increased sales and revenue allegations and claims now sought to be introduced. This remains the position even if the evidence that appears to point in the opposite direction is put to one side.

171 It is also the case that the manner in which these new allegations and claims have been pleaded reveal a number of shortcomings as submitted by the Optus Entities, although the conclusions reached above mean that it is not strictly necessary to address the same. That said, and briefly, the shortcomings include: the inadequate pleading of material facts in support of the counterfactual and the claims insofar as they relate to the alleged increased market share resulting in consequent and proportionate increased sales and revenue over the sales volumes and revenue amounts achieved under the Optus Final Dealer Appointment; the absence of pleaded material facts regarding market share;[98] confusing, unclear and difficult to follow allegations in Part C of Annexure A regarding the TeleChoice costs said to be associated with any increased sales; and the absence of any evidentiary or other material to support, for the purposes of this amendment application, the existence of a proper basis for contending that the TeleChoice cost base under the counterfactual in question here can be equated to a proportionately increased cost base of the kind TeleChoice refers to in Part C of Annexure A, even if it had been articulated in a manner that was sufficiently digestible and capable of being understood.[99]

172 As I have said, considerations regarding case management and the parties' and the court's obligations under the CP Act also militate against the grant of leave to amend to include these new allegations and claims at this point. It is sufficient to refer to the observations made in relation to the Actual Telstra Rates allegations and claims above and to note that the additional allegations regarding Telstra market share and increased sales and revenue consequent upon the same necessarily involve additional dimensions that the parties would need to consider and address in advance of trial and during its course. This can only compound the case management, cost, expense, delay and related issues to which I have referred in the context of the Actual Telstra Rates. Granting leave to amend in the circumstances described above and at this point in the proceeding would not well serve the overarching purpose and would sit in tension with the court's duty under ss 8 and 9 of the CP Act. These case management, CP Act, and related considerations present a further reason why leave to amend should not be granted.

173 Lastly, and as was the case for the allegations and claims regarding the Actual Telstra Rates, I have concluded that TeleChoice ought not to be provided with a further opportunity to re-cast the Fourth FASOC to include revised claims based on a claimed increase in sales and revenue linked to Telstra's alleged market share. TeleChoice has had more than ample opportunity to formulate its claims and the observations made in this context above regarding the Actual Telstra Rates claims and allegations resonate with equal force to the market share related sales and revenue claims and allegations. To allow TeleChoice to have a further opportunity to re-cast its claim in this way would not in my view be consistent with the overarching purpose in the CP Act or with the court's duty under ss 8 and 9 of that act. Again, the observations of Sifris J in MacFadyen resonate here.

174 For completeness I make the following additional observations regarding a number of other matters raised regarding the Misleading Revenue Representation Claim.

175 To the extent that it was contended that, in relation to the misleading conduct claim based on the Telstra Rates, the terms of the Intended Telstra Appointment are not sufficiently identified, I do not accept that submission. The identification is clear enough for pleading purposes and is expressly pleaded and addressed in paragraphs 9 and 10. I refer to my earlier observations regarding paragraph 10 above and the following.

176 The Telstra Rates were the subject of engagement between the parties in 2007 and the particulars to paragraph 10 address where TeleChoice says each of the rates making up the Telstra Rates 'arises from' (on TeleChoice's case). Although aspects of the language may not be as elegant or precise as they might have been, viewed fairly and as a matter of substance, TeleChoice in those paragraphs sufficiently identifies for pleading purposes the basis upon which it says the relevant rates would apply. In some instances that identification is by reference to parts of the Draft Telstra Agreements and in others it is by reference to alleged Telstra practices or some other matters. This position can be contrasted to the allegations in the Third FASOC, but again noting that on the evidence before me the Optus Entities were provided with these 'Telstra Rates' in 2007 through the July 2007 Forecast and used them in connection with the Optus Financial Summary.

177 The substance of the short point in this context is that TeleChoice sufficiently identifies in paragraph 10, among other things, the claims and parts of the Draft Telstra Agreements that it relies upon in support of its allegation that it was entitled or would have had the opportunity to receive revenue in respect of the particular line items referred to.

178 As I have said earlier, it is of course a different question as to whether the allegations will be made good by TeleChoice at trial, or whether, on the facts as ultimately found, TeleChoice could and would have earned revenue at the Telstra Rates as it alleges. But matters such as these cannot and should not be addressed and determined on the current application. They will involve what appear to be somewhat complex considerations regarding, among other things, the terms of and schedules to the complex Draft Telstra Agreements and some limited evidence regarding Telstra's practices in relation to aspects of the Telstra Rates. These issues are ultimately matters for consideration and determination at trial in the light of all of the relevant evidence and related submissions.[100]

179 With respect to Annexure A to the Fourth FASOC, and the Optus Entities' contentions regarding the same, I refer to the earlier remarks I have made regarding Annexure A and make the following further observations.

180 Given that leave to amend is not to be granted in respect the Misleading Revenue Representation Claim insofar as it is based on the so-called Actual Telstra Rates, or the allegations and claims based on the alleged Telstra market share related increased sales and revenue amounts, many of the matters raised by the Optus Entities regarding claimed embarrassing features of Annexure A need not be addressed at this point. These matters include the issues raised about the Actual Telstra Rates, the increased sales and revenue volumes, and the increased costs said to be referable to the increased sales and revenue. It is clear that revisions will need to be made to the Fourth FASOC to reflect and take account of the conclusions that I have reached on the Misleading Revenue Representation Claim, which, as I have said, will also be addressed with the parties. Plainly that will require appropriate revisions and deletions regarding the Actual Telstra Rates allegations and claims and the alleged increased sales and revenue allegations and claims, which will need to be considered and addressed by TeleChoice.

181 However, putting to one side for the moment how these revisions are to be formulated and pleaded, it is clear enough how it is that TeleChoice puts its case regarding the Misleading Revenue Representation Claim based on the Telstra Rates, what it says was the relevant difference in revenue, and what it says was the consequent loss of profit. So much is apparent from paragraph 17 and its particulars, and Parts A and D of Annexure A. The Telstra revenue figure is said to be $322,866,051, the Optus revenue figure is said to be $258,524,735, and the lost profit is said to be the difference between the two of $64,341,316.

182 Whilst revisions will need to be made to the alleged loss and damage in paragraph 21 and its particulars (and elsewhere as needed) so as to confine the loss to the claim based on the Telstra Rates, the required revisions seem straightforward enough given the terms of paragraph 17, Parts A and D of Annexure A, and the fact that the amounts referred to are also alleged to be the loss and damage claimed in the other Revised Telstra Revenue Claims based on the Telstra Rates. See, for example, the relevant parts of paragraph 31 of the Breach of Contract Claim and paragraphs 34 and 36 in respect of the Collateral Contract Claim and Equitable Estoppel Claim respectively.[101]

183 It may also be observed that insofar as Part B of Annexure A applies the Telstra Rates to the same number of sales as alleged to have been made under the Final Dealer Appointment, when read together with paragraphs 17 and the explanatory notes to Annexure A, Part B is not in my view materially unclear or embarrassing. It is sufficient for pleading purposes. The same can be said of Part D of Annexure A, which details the revenue earned under the Final Dealer Appointment. As is stated in the particulars to paragraph 17 (and the explanatory notes to Annexure A), it is the alleged difference between these two amounts that is said to establish that the Revenue Representation was misleading and deceptive or likely to mislead and deceive - or to have been made without reasonable grounds.

184 With the above in mind I make the following additional comments regarding the matters raised by the Optus Entities about Annexure A.

185 First, given the reformulation of the claims in the Fourth FASOC there is in my view now nothing of substance in the Optus Entities' emphasis on the use of the word 'estimates' by TeleChoice in connection with the relevant parts of Annexure A insofar as they relate to the claim based on the Telstra Rates. TeleChoice puts its claim based on the Telstra Rates in the manner in which it is pleaded. The inclusion of the word 'estimates' does not change that. It is also to be remembered that the issue being addressed is a past hypothetical, not something that in fact occurred.

186 Second, I do not accept that Annexure A is open to the same criticisms that were made of the different aspects of the Third FASOC and what was known as 'Sheet B'. When Parts B and D of Annexure A are read carefully, in context, and as a whole, starting with the relevant parts of the paragraphs of the Fourth FASOC which refer to them, as well as the earlier pleaded paragraphs, they are understandable enough for pleading purposes. Whilst the content is not without complexity and is not immediately easy to follow and digest, that is a different point.

187 Third, to the extent that it was contended that references to the 'Explanation of revenue categories' were misplaced in Annexure A, because they relate to the position under the (Optus) Final Dealer Appointment and should be removed, I do not accept that they need to be removed. Although the subject matter has complexities, it can be seen that these explanations seek to explain how TeleChoice has 'derived' each of the revenue categories referred to in the various 'line items'. These remain relevant given the claims based on the Telstra Rates will proceed. It is also clear that they are linked to the line items in, for example, Parts B and D of Annexure A. These line items, on TeleChoice's case, are said to reflect, among other things, amounts that would have been received under the Intended Telstra Appointment - and are also consistent in many ways with the Telstra scenario in the July 2007 Forecast. Whilst there may be a contest between the parties as to whether revenue would or could have been received by TeleChoice under the Intended Telstra Appointment in respect of one or more of these line items, these matters cannot and should not be determined now. It appears that their determination will involve a number of contested issues which can and should only be determined in the light of the relevant evidence and submissions at trial.

188 Fourth, it is to be kept in mind that, subject to further order, it is proposed that the Optus Entities will have the opportunity to see any further evidence to be filed by TeleChoice in advance of trial and in advance of the Optus Entities filing their evidence.

189 Fifth, subject to the Fourth FASOC being finalised, and as mentioned, I will permit the Optus Entities to make limited focussed requests for particulars on matters of substance if it appears that they remain necessary and outstanding. Again this liberty does not contemplate formal or informal interrogatories or requests for evidence, and it will require appropriate restraint and a cognisance of the parties' respective obligations under the CP Act.

190 Sixth, it is sufficiently clear for pleading purposes that TeleChoice presses its Misleading Revenue Representation Claim based on the Telstra Rates on the basis that its costs under the Intended Telstra Agreement would have been the same for the same number of sales as they were under the Final Dealer Appointment. Whether or not that proposition is made good on the evidence at trial, and what may or may not follow from it, are matters for trial and consideration in the light of all relevant evidence and submissions. As to the increased costs referred to in Part C of Annexure A, these only relate to the claim based on alleged Telstra market share related increased sales and revenue allegations and claims and leave is not being granted in respect of these claims so it is not necessary to further address the topic.[102]

191 Insofar as complaints were made about the form of the pleading including the claimed absence of material facts in connection with the Actual Telstra Rates allegation and claims and the market share related increased sales and revenue allegations, I refer to my earlier observations on these topics. Given the conclusions reached it is not necessary to say anything further regarding these matters. Insofar as allegations of these kinds were made regarding the Telstra Rates addressed in paragraph 10 and the particulars thereto, in my view aspects of the concerns raised appeared to me to be overstated to some extent. I refer in this regard to my earlier observations regarding the allegation based upon the Telstra Rates, including those regarding paragraph 10. As I have said, subject to further order, I will also permit limited focussed requests for further particulars to be made should it be necessary, and again noting that the orders I propose at this stage to make for the filing of further evidence will see TeleChoice's evidence filed and served before it is necessary to respond to the same. I also propose to take the same approach to the filing and service of written outlines of opening submissions. This will further alleviate any risk of the Optus Entities not being sufficiently informed of the case to be met at trial.

192 I move now to the other Revised Telstra Revenue Claims, commencing with the Breach of Contract Claim. Given the extended discussion of Misleading Revenue Representation Claim above and the extensive overlapping considerations, these matters can be dealt with more swiftly.

Part D.4.2: Consideration and disposition - Breach of Contract Claim - Paragraphs 29-31

193 The Breach of Contract Claim is summarised in Part D.1 above, and I outlined the Optus Entities' position and submissions in relation to the Revised Telstra Revenue Claims in Part D.2, to which I refer but shall not repeat.

194 As stated at the commencement of Part D of the reasons (above), I have concluded that TeleChoice should be granted conditional leave to amend the Breach of Contract Claim based on the alleged Revenue Term insofar as that claim is based on or related to the Telstra Rates. Leave to amend will not be granted to include a breach of contract claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

195 Central to the Breach of Contract Claim, is the allegation in paragraph 29 that there was a (partly oral, partly written and partly to be implied or inferred) term of the Final Dealer Appointment to the same substantive effect as the Revenue Representation, being the Revenue Term (as defined). It is alleged that the Revenue Term was breached because the Optus Entities failed to pay to TeleChoice for the same number of sales as it achieved during the term of the Final Dealer Appointment the same revenue as TeleChoice would have earned had it entered into the Intended Telstra Appointment (based on the Actual Telstra Rates), alternatively under the Intended Telstra Appointment based on the Telstra Rates.

196 In its current form the Fourth FASOC does not contain any allegation of material fact as to when it is said the Optus Entities' obligation to pay arose or was triggered, or how the Optus Entities were to ascertain at the relevant time the amount required to be paid under the Revenue Term. This was the subject of an extended exchange with senior counsel for TeleChoice during the hearing, to which I refer later below.

197 The alleged loss is said to be the difference between the profit earned under the Final Dealer Appointment and the profit it would have earned for the same number of sales under the Intended Telstra Appointment (at the Actual Telstra Rates), alternatively under the Intended Telstra Appointment based on the Telstra Rates. TeleChoice presently estimates that loss to be $74,170,368 based on the Actual Telstra Rates, alternatively $64,341,316 based on the Telstra Rates. TeleChoice relies upon and repeats the particulars to paragraph 17 (relating to the Misleading Revenue Representation Claim). Relevantly, insofar as the claim is based upon the Actual Telstra Rates reference is made to Part A of Annexure A and insofar as it is based upon the Telstra Rates reference is made to Part B of Annexure A.

198 It is apparent from the terms of the Fourth FASOC that the factual overlap between the Misleading Revenue Representation Claim allegations and the Breach of Contract Claim allegations is extensive (albeit not quite complete). With respect to the substantive matters raised by the Optus Entities in opposition to the grant of leave to amend the Breach of Contract Claim, I address these below.

199 There is no longer any force in the submission that paragraph 29 is inconsistent with paragraph 15 because the Final Dealer Appointment is alleged in paragraph 15 to have been in writing only and the Revenue Term in paragraph 29 is said to have been partly oral, partly written and partly to be implied or inferred. Although the observation was sound when made by the Optus Entities in their written submission, this was acknowledged by TeleChoice and addressed by adjusting the particulars to paragraph 15 in the final version of the Fourth FASOC so as to clarify that the Final Dealer Appointment is also alleged to have been partly oral, partly in writing and partly to be implied or inferred.

200 To the extent it was contended that there was no real prospect of success because the Breach of Contract Claim was statute barred and therefore leave to amend ought to be refused, I do not accept that submission. Given that the Revenue Term is alleged to have arisen from the same communications and conduct and be in the same terms as the Revenue Representation, the observations I have made on this topic in the context of the Misleading Revenue Representation Claim largely apply with equal force.[103] As was the case for the Misleading Revenue Representation Claim, there are many contested factual and other matters to be determined in respect of the Breach of Contract Claim. Any limitation issues arising in response to the Breach of Contract Claim should also be determined in the light of all the evidence and full and complete submissions regarding the same. The existence of any limitation issues at this point does not provide a sound basis for refusing leave to amend. I am also cognisant that, at least by the time of the end of the hearing, TeleChoice's position was that the Optus Entities' obligation to pay an amount to TeleChoice pursuant to the Revenue Term did not arise until some time after the end of the Final Dealer Appointment. This is discussed in more detail later in this part of the reasons.

201 I do not accept the Optus Entities' submissions that the particulars to paragraph 12 are not capable of supporting the allegation of material fact that there was a term of the agreement to the effect of the Revenue Term. The particulars relied upon for the Revenue Term in paragraph 29 are the particulars to paragraph 12 that are relied upon in support of the Revenue Representation. It will be recalled that this issue was addressed in the context of the Misleading Revenue Representation Claim, where I also did not accept a submission to the same effect in that context. It is sufficient to refer to that reasoning without repeating it because it applies with equal force in the context of the Breach of Contract Claim.

202 In the context of the Revenue Term, I do not accept the Optus Entities' submission that on the material before the court it can or should be determined upon this application that the requirements for an implied or oral term are incapable of being satisfied because such a term would contradict the express terms of the written documents said to form part of the Final Dealer Appointment, including but not limited to clause 11.2 of the 2008 Master Dealer Agreement, and the entire agreement clauses. The documents referred to are detailed and complex contracts in various respects and their subject matter, telecommunications, is also burdened by complexity and technical matters. So much is apparent from the terms of the Fourth FASOC, the line items referred to in Annexure A, the documents said to form part of the Final Dealer Appointment, and the July 2007 Forecast. Their terms and operation will need to be considered in the light of the relevant evidence and final submissions regarding their meaning and operation, including the evidence regarding the alleged partly implied and partly oral terms.

203 Whether or not the requirements for an implied or oral term can be satisfied in the circumstances can only properly be considered in the light of the evidence and submissions at trial and cannot be determined on this application. Although it is apparent that a number of contested issues on the topics will arise and that, on the material before the court, it appears possible that TeleChoice will face a number of challenges with the claims, these cannot and should not be assessed on this application. And even if material challenges for TeleChoice in this context do exist, it is not the case that the matters raised in this context enable me to conclude at this point on the material before the court that there is no realistic prospect of TeleChoice establishing the existence of an implied oral term to the effect of the Revenue Term. Whilst one anticipates that there will be little if any differences between the parties regarding the principles to apply in this context, it is the proper application of such principles to the facts as found on the relevant evidence, and the meaning and operation of the relevant provisions of the documents in that context, that will likely be the main areas of engagement. These are all matters for determination at trial. For completeness, I note that it does not inexorably follow from the existence of an entire agreement clause in a document that there can be no oral or implied term in an agreement alleged to be partly written, partly oral and partly to be implied.

204 The Optus Entities alleged that the Revenue Representation was embarrassing and raised related matters regarding the Misleading Revenue Representation Claim based on the Telstra Rates, which I addressed at some length above. They also relied on those matters in connection with the Breach of Contract Claim (as well as the Collateral Contract Claim and the Estoppel Claim). That position was understandable given the almost complete overlap of the relevant allegations and how the Breach of Contract Claim and other Revised Telstra Revenue Claims have been framed. However, the matters raised do not and should not stand in the way of the grant of conditional leave to amend the Breach of Contract Claim insofar as it is based on or relates to the Telstra Rates. I refer in this regard to my observations and reasoning set out above when dealing with the Misleading Revenue Representation Claim in Part D.4.1 above, which apply equally in this context.

205 Insofar as resistance to the Breach of Contract Claim was based upon contentions regarding the Actual Telstra Rates and concerns regarding related allegations in Annexure A, these issues have been addressed earlier in the context of the Misleading Revenue Representation Claim, to which I refer. In any event, leave to amend is not to be granted in relation to the Breach of Contract Claim insofar as it relies upon the Actual Telstra Rates (or the related parts of Annexure A). I add that I am cognisant that the allegations regarding the Actual Telstra Rates in the contractual context are not allegations of a counterfactual involving entry into the Intended Telstra Appointment in the same way or allegations regarding the falsity or misleading nature of the alleged Revenue Representation. However, that distinction does not result in a different outcome regarding leave to amend the Breach of Contract Claim so as to include allegations and a claim based on the Actual Telstra Rates. It is to be noted in this context that the Actual Telstra Rates allegations also relate to liability in the breach of contract context because the achievement of increased revenue based on the Actual Telstra Rates (but limited to the same number of sales as under the Final Dealer Appointment) is the counterfactual upon which the allegation of breach of contract is sought to be founded insofar as it relates to the Actual Telstra Rates.

206 It is not necessary to address in this context the new allegations regarding claimed increased sales and revenue based on Telstra's market share. This is because that counterfactual related to the Misleading Revenue Representation Claim, being a counterfactual where TeleChoice would in fact have been a Telstra dealer under the Intended Telstra Dealer Appointment. In contrast, the contract claim involves a counterfactual where the Revenue Term was a term of the Optus Final Dealer Appointment and TeleChoice remained as such for the term of the Final Dealer Appointment. TeleChoice's breach of contract claim and counterfactual is expressly limited to 'the same number of sales as it achieved during the term of the Final Dealer Appointment'. However, even if it had not been so limited, for the reasons earlier addressed, leave would not have been granted in this context to include allegations and claims regarding increased sales and revenue based upon Telstra's alleged greater market share.

207 I accept that, as pleaded in the Fourth FASOC, the Breach of Contract Claim remains embarrassing because it does not allege when it was that the Optus Entities were required or obliged to pay TeleChoice, or identify the basis or source of that requirement or obligation under the Final Dealer Appointment. I raised this with senior counsel for TeleChoice on the second day of the hearing and asked what TeleChoice contended the contract term is regarding when and how the amount is to be paid, and asked where that was to be found in the pleading. It was frankly but properly acknowledged that this was not addressed in the pleading. Thereafter an extended exchange occurred with senior counsel for TeleChoice, which underscored the force of the Optus Entities' submission that the claim based upon a breach of the Revenue Term is embarrassing. It was apparent at the time of my exchanges with senior counsel that TeleChoice appeared at least equivocal or unsure of its position, which a review of the seven pages of transcript of that exchange confirms.

208 That said, and although not pleaded, by the end of that exchange senior counsel for TeleChoice confirmed to the court that TeleChoice's position is that it contends that the obligation to pay did not arise until some time after the end of the five-year term of the Final Dealer Appointment, being a period of time after the end of it that was sufficient to allow for an assessment to be undertaken by TeleChoice and a demand for payment to be made by TeleChoice to the Optus Entities. Because no particular time was referred to I asked if it was TeleChoice's position that the time for payment is said to be a reasonable time after the end of the term of the Final Dealer Appointment. Senior counsel for TeleChoice confirmed that this is TeleChoice's position. In response to a further query, senior counsel also confirmed that it was (now) proposed that if leave to amend were to be granted the pleading could include further allegations regarding the payment obligation if the court required it.

209 Whilst leave will be granted to amend the Breach of Contract Claim insofar as it is based on the Telstra Rates, such leave will be conditional upon the inclusion of clear and concise particularised allegations of material fact regarding the written, oral, or implied terms of the Final Dealer Appointment that address when it is alleged that the Optus Entities were required to pay the amount the subject of the alleged Revenue Term. Whilst I assume from the in-court exchange referred to above that the allegations of material fact will allege, in substance, that it was a term of the Final Dealer Appointment that the Optus Entities were required to pay the amount owing under the Revenue Term within a reasonable time after an assessment of the amount owing had been made by TeleChoice and that amount had been demanded by TeleChoice from the Optus Entities, that remains to be seen. If that is so, it may result in the need to consider whether further allegations need to be made regarding, for example, the assessment and demand.

210 It is of course also the case that if such allegations are to be made in a revised Fourth FASOC (supported by proper particulars) TeleChoice and its advisers will need to ensure they are satisfied that there is a proper basis for making such allegations. If they are not so satisfied it appears that the Breach of Contract Claim will remain in its current form. In that event the result would be that the Breach of Contract Claim as pleaded would be, at least, embarrassing by reason of a failure to articulate when the Optus Entities were required to pay any amount said to be owing under the Revenue Term. In my view, the absence of such allegations means that, as pleaded, the claim would also fail adequately to disclose a breach of contract cause of action, although the position would not change even if that were not so. The upshot is that if these matters cannot be satisfactorily addressed then leave to amend the Breach of Contract Claim ought to be refused.

211 If leave to amend the Breach of Contract Claim was refused in the circumstance described above because it remained embarrassing or failed to disclose a cause of action then paragraphs 29 to 31 of the Third FASOC would also be struck out on that basis. Further, in that circumstance TeleChoice ought not to be afforded a further opportunity to seek to re-craft the Fourth FASOC to include a breach of contract claim of that kind. TeleChoice has had more than ample opportunity to seek to formulate the Breach of Contract Claim and I refer in this regard to the history of the proceeding, the Previous Iterations, and the observations made in the context of the Misleading Revenue Representation Claim, which I shall not repeat. To allow TeleChoice a further opportunity to seek to articulate a breach of contract claim at this stage in the circumstances I have described would not well serve the overarching purpose under the CP Act or be consistent with the court's duty under ss 8 and 9 of that Act. I again refer to the observations of Justice Sifris in McFadyen, which would then resonate with similar force.

212 Finally, for the same reasons as are addressed in the context of the Misleading Revenue Representation Claim insofar as it is based on the Telstra Rates, I do not accept the Optus Entities' submission that considerations of the kind addressed in Aon, or related case management, CP Act, or prejudice risk, issues and considerations militate sufficiently strongly against the grant of conditional leave to amend the Breach of Contract Claim insofar as it relates to the Telstra Rates. These are matters to be weighed in the balance, which I have done, and I refer to without repeating the observations I made in this regard in Part D.4.1 above regarding the Misleading Revenue Representation Claim based on the Telstra Rates which apply similarly here.

Part D.4.3: Consideration and disposition - Collateral Contract Claim - Paragraphs 32-34

214 The third of the Revised Telstra Revenue Claims is the Collateral Contract Claim pleaded in paragraphs 32 to 34 of the Fourth FASOC. This claim is outlined in Part D.1 above. Except for the fact that it is a claim based upon an alleged collateral contract, this claim essentially mirrors the Breach of Contract Claim and is relevantly the same.[104] The primary term of the collateral contract pleaded in paragraph 32 (Collateral Contract Term) is essentially identical to the alleged Revenue Term and the loss and damage claimed is the same, with TeleChoice again relying upon the particulars to paragraph 12 and 17 of the Fourth FASOC in connection with this claim.

215 As noted, I have concluded that TeleChoice should be granted leave to amend the Collateral Contract Claim but only insofar as that claim is based on the Telstra Rates. Leave to amend will not be granted insofar as the claim is based upon the Actual Telstra Rates. The grant of leave to amend will be conditional upon the inclusion of clear and concise particularised allegations of material fact regarding the written, oral or implied term of the alleged collateral contract that addresses when it is alleged that the Optus Entities were required to pay the amount the subject of the Collateral Contract Term.

216 Subject to the additional matters referred to below,[105] given the almost complete overlap of allegations with the Breach of Contract Claim my reasons for granting conditional limited leave to amend of the kind mentioned are essentially the same as the reasons I have set out above in Part D.4.2 in connection with the Breach of Contract Claim, to which I refer but will not repeat.

217 Noting my earlier observations regarding the nature and complexity of the documents said to form part of the (partly written, partly oral and partly implied) Final Dealer Appointment, and the importance of the consideration of the evidence and the proper construction and operation of the relevant documents in that context, I do not accept that on the material before the court it can or should be determined on this application that the alleged partly written and party oral Collateral Contract Term is incapable of being established because, so it is said, it is inconsistent with clause 11.2 of the 2008 Master Dealer Agreement, other clauses, and the entire agreement clauses. Noting the technical subject matter of the documents, and my earlier observations regarding the same, their terms and operation will need to be considered in the light of the relevant evidence and submissions, including the evidence regarding the alleged partly written and partly oral collateral contract. Whilst there will be a number of contested issues (and it may be that TeleChoice faces a number of challenges in making good its Collateral Contract Claim), these cannot and should not be assessed on this application.

218 It is also the case that on the material before the court on this application I am not able to conclude that there is no realistic prospect of TeleChoice establishing the existence of a collateral contract, even though it does appear that there may be a number of hurdles for TeleChoice to overcome in order to do so. These matters can and should only be addressed in light of the evidence and submissions at trial.

219 The above observations do not seek to trespass upon the well-established principles regarding the existence or otherwise of a collateral contract that were referred to by the Optus Entities. Again, it seems unlikely that there will ultimately be any material dispute between the parties regarding these principles, which is consistent with the position taken on this application. However, it is the application of these principles to the facts in question, including the proper construction and operation of the documents said to comprise part of the Final Dealer Appointment, that presents as the true area of dispute between the parties in this context. These are ultimately matters for trial, noting further the extensive overlap with the Misleading Revenue Representation Claim and Breach of Contract Claim and that leave to amend is to be granted in respect of these claims any way. It may also be observed that any additional time to be taken in advance of the trial and at trial in dealing with the Breach of Contract Claim and the Collateral Contract Claim will be limited given that the Misleading Revenue Representation Claim (insofar as it relates to the Telstra Rates) is to proceed in any event.

220 That said, I accept that, as pleaded in the Fourth FASOC, the Collateral Contract Claim remains embarrassing because it does not allege when it was that the Optus Entities were obliged to pay TeleChoice, or identify the basis or source of that timing obligation under the alleged collateral contract. I refer in this regard to my earlier remarks regarding the exchange during the hearing with senior counsel for TeleChoice on the topic.

221 Consequently, the grant of leave to amend the Collateral Contract Claim insofar as it is based on the Telstra Rates will be conditional upon the inclusion of clear particularised allegations of material fact regarding the written, oral or implied terms of the collateral contract that address when it was alleged that the Optus Entities were required to pay the amount the subject of the Collateral Contract Term - assuming of course that TeleChoice and its advisers are able to satisfy themselves that there is a proper basis for making such allegations.

222 If TeleChoice and its advisers are not able to be satisfied that there is a proper basis for including such additional allegations, then the position will be the same as it is with the Breach of Contract Claim in that circumstance. That is, leave to amend will not be granted. Further, for parallel reasons to those referred to in connection with the Breach of Contract Claim, in that circumstance the Collateral Contract Claim will remain (at least) embarrassing and paragraphs 32 to 34 of the Third FASOC should be struck out. For the reasons earlier stated in the context of the Breach of Contract Claim, in those circumstances TeleChoice ought not to be afforded a further opportunity to seek to re-craft the Fourth FASOC to include a collateral contract claim at this stage of the proceeding.

223 I turn now to the last of the revised Telstra Revenue Claims, the Estoppel Claim.

Part D.4.4: Consideration and disposition - Estoppel Claim - Paragraphs 35-36

224 The last of the Revised Telstra Revenue Claims is the Estoppel Claim pleaded in paragraphs 35 and 36 of the Fourth FASOC, which is also introduced in Part D.1 above. The Estoppel Claim is based upon the alleged Revenue Representation and, as the parties acknowledged, the overlap with the allegations made in respect of the Misleading Revenue Representation Claim in relation to the Revenue Representation, and the amounts claimed in the Breach of Contract Claim is very extensive.

225 In support of the Estoppel Claim TeleChoice relies upon the Revenue Representation (paragraph 12 and its particulars) and its allegations that:

(a) it assumed that the revenue it would have received under the Final Dealer Appointment would be the same as the revenue that it would have earned:

(i) for the same number of sales as it achieved during the term of the Final Dealer Appointment if it had entered into the Intended Telstra Appointment;

(ii) further or alternatively, under the Intended Telstra Appointment for the same number of sales based on the Telstra Rates.

226 TeleChoice alleges: that the Optus Entities induced it to adopt the assumption; that it acted to its detriment in reliance on the assumption; that the Optus Entities knew and intended that TeleChoice would so act; that it would be unconscionable for the Optus Entities to fail to fulfil the Revenue Representation; and that TeleChoice will suffer detriment if the Revenue Representation is not fulfilled by the Optus Entities.

227 In paragraph 36 TeleChoice alleges that it is entitled to equitable compensation in an amount that is equal to the amount claimed in respect of the Breach of Contract Claim, again relying upon the particulars to paragraph 17. That is, the amount of $74,170,368 based on the Actual Telstra Rates, alternatively $64,341,316 based on the Telstra Rates.

228 As noted, I have concluded that TeleChoice should be granted leave to amend the Estoppel Claim insofar as that claim is based on the Telstra Rates. Leave will not be granted insofar as the claim is based on the Actual Telstra Rates. The grant of leave will be conditional upon the inclusion of:

(a) a clear and concise allegation of material fact regarding what it is alleged that the Optus Entities are estopped from doing; and

(b) clear and concise particularised allegations of material fact regarding what it is alleged that the Optus Entities were required to do, and when, in order to 'fulfil the Revenue Representation'.

This again assumes that TeleChoice and its advisers have first satisfied themselves that there is a proper basis for making such additional allegations.

229 Subject to the matters referred to below, given the extensive overlap of considerations with the Misleading Revenue Representation Claim and the amounts claimed under the Breach of Contract Claim , it is sufficient to refer to the observations I have made earlier regarding these two claims in Parts D.4.1 and D.4.2 above to reveal my reasons for the above conclusions regarding the limited grant of conditional leave to amend. Few additional submissions were directed towards the Estoppel Claim in the present context and it is necessary to mention only the following matters.

230 As to matters of principle, senior counsel for the Optus Entities drew my attention to what was said to be some inconsistency and tension on substantive promissory estoppel issues as addressed by Handley JA in Saleh v Romanous,[106] when considered against observations of the Victorian Court of Appeal in FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd.[107] Both parties responsibly acknowledged that this was not something that could or should be addressed on this application and that it will need to be the subject of argument in due course should the issues remain relevant. I agree, noting also that if it becomes necessary to address these matters at trial it should also occur in the light of the relevant evidence and not in the abstract.

231 The Optus Entities submitted that the Estoppel Claim must fail because, in substance, it seeks by way of an estoppel to enforce obligations that are inconsistent with the written terms of the Final Dealer Appointment. This raised questions similar to those raised in the context of the Revenue Term being alleged to be partly implied and the Collateral Contract Term being partly oral. That is, whether such terms are inconsistent with other terms of the Final Dealer Appointment. As I have said earlier, these are not matters that can or should be decided upon this application and the terms and proper operation of the Final Dealer Appointment will need to be determined and considered in the light of the relevant evidence and submissions in order for these issues properly to be assessed - which is a matter for another day.

232 On a different topic, I raised with senior counsel for TeleChoice my observation that the Fourth FASOC did not appear to plead what it is alleged that the Optus Entities are estopped from doing, which was a point also embraced by the Optus Entities. I allowed some time for TeleChoice's counsel to reflect on this matter and in the closing moments of the second day of the hearing senior counsel for TeleChoice informed the court that it is alleged that TeleChoice 'would be estopped from failing to fulfil the Revenue Representation'. If the Estoppel Claim is to be pressed TeleChoice will need to include an allegation of material fact to this effect.

233 Given that the Revenue Representation is in this claim said to be something that ought to have been fulfilled by the Optus Entities, the question arises as to what TeleChoice alleges it is that the Optus Entities were required to do, and when, in order to fulfil the Revenue Representation. This is not currently addressed and makes the pleading of the Estoppel Claim embarrassing. In effect, it is a variation on the theme of TeleChoice being required to address the payment obligation in the context of the Breach of Contract Claim and the Collateral Contract Claim. Like those two claims, if the issue is not addressed in the context of the Estoppel Claim it will continue to be embarrassing in its current form. That is because the pleading in its current form does not sufficiently articulate what would have been required of the Optus Entities, and when, to fulfil the Revenue Representation.

234 As I have said, leave to amend the Estoppel Claim insofar as it is based upon the Telstra Rates will be made conditional upon these matters being addressed in the Fourth FASOC - again assuming that TeleChoice and its advisers are satisfied that there is a proper basis for making such allegations. If they are not so satisfied then, as pleaded, the Estoppel Claim will remain embarrassing and leave to amend ought not to be granted. Further, for the reasons referred to in connection with the other Revised Telstra Revenue Claims, no further opportunity should be afforded to TeleChoice to re-craft the Fourth FASOC to include such an Estoppel Claim and paragraphs 34 to 36 of the Third FASOC should be struck out.

235 Finally on this topic, I note that if the Estoppel Claim is to proceed it will likely involve limited additional tasks, time, delay or expense in advance of, or at trial, given the extensive overlap with, among other things, the Misleading Revenue Representation Claim insofar as it relates to the Telstra Rates.

Part E: Paragraphs 60C-60H & 68 - Post Termination Fraud Claw Back Claims

236 Paragraphs 55 to 68 of the Fourth FASOC relate to what are described as claims for 'Alleged Non-Compliance Claw Backs' and 'Alleged Fraud Claw Backs'. 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.

237 In paragraph 58 TeleChoice alleges that during the term of the Final Dealer Appointment 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 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).

238 Paragraphs 60 to 60B contain a new damages claim for breach of contract founded upon a contention that, upon its proper construction, clause 11.4 (referred to above) did not entitle Optus to carry out any of the claw backs listed in Annexure D to the Fourth FASOC because none of the circumstances specified in each of Schedules 4, 5, or 6 of the 2008 Master Dealer Agreement applied to these claw backs. The Optus Entities do not oppose the grant of leave to amend the claim to agitate in this way what is said by the parties to be a contract construction issue, which on its face presents as a relatively confined point. So much is apparent from paragraphs 55 to 60B of the Fourth FASOC.

239 The allegations and claims in paragraphs 60C to 60H are in a different category. These paragraphs seek to introduce new allegations and claims in respect of what are defined as 'Post Termination Fraud Claw Backs', being Alleged Fraud Claw Backs said to have been carried out by the Optus Entities after the Notice of Termination Date of 28 September 2012 (Notice of Termination Date). The particulars of the alleged Post Termination Fraud Claw Backs were said to be listed in a spreadsheet comprising Annexure F to the Fourth FASOC, which lists 264 separate alleged Post Termination Fraud Claw Backs over the period October 2012 to February 2013.

240 Examples of emails relating to claw backs were referred to and it was apparent from the evidence and common ground that, at the time claw backs were made, notice was given to TeleChoice by Optus by email of an intention to make a claw back in respect of each claw back. The notices given by email provided a variety of information for each intended claw back including: 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 or fraudulent; and the claw back reason/s, in two separate reasons columns. As is apparent from the example emails (and Annexures D and E to the Fourth FASOC) one or more of a range of reasons could be and was provided in connection with intended claw backs when notice of intention to claw back was given by Optus.

241 In paragraph 60E it is alleged that at some time between the Notice of Termination Date and 25 October 2012 the Optus Entities decided to work to reduce the amount being paid to TeleChoice from $2.5 million per month to $1.0 million per month. This decision is alleged to have been referred to in an internal Optus email of 25 October 2012, the content of which was addressed during oral submissions.

242 In paragraph 60G factual allegations are made regarding the number of Alleged Fraud Claw Backs made prior to termination and post the termination of the Final Dealer Appointment. It is alleged that prior to termination they were made at a rate of about 6.09 per month with an average monthly rate of $12,118.99, and that after termination they were made at a rate of 44 per month with an average monthly value of $87,138.96. It is alleged that in the 54-month period prior to the Notice of Termination Date, 329 Fraud Claw Backs were made totalling $654,425.72, and that in the six-month post-termination notice period, 264 Post Termination Fraud Claw Backs were made, totalling $522,833.77.

243 In paragraph 60F it is alleged that in respect of each of the 264 Post Termination Fraud Claw Backs Optus did not have reason to believe that the activations were made in circumstances involving fraud, of which TeleChoice knew or ought to have known. The particulars do not address any of the particular circumstances or reasons for any of the 264 individual claw backs in question. Rather, it is alleged that, contrary to past Optus practice, there was no investigation, no notification of suspicion given to TeleChoice, and no police referrals in respect of the conduct said to give rise to these fraud claw backs. 'Accordingly', so it is said, it can be inferred that the Optus Entities did not have reason to believe that the activations were made in circumstances involving fraud, of which TeleChoice knew or ought to have known.

244 In paragraph 60H it is alleged that the Post Termination Fraud Claw Backs were made in breach of the 'General Good Faith Term', and in paragraph 68 it is alleged that TeleChoice suffered loss and damage as a result of the breaches of contract by Optus making the Post Termination Fraud Claw Backs. The loss and damage is 'estimated' as $449,699.83 in the particulars to paragraph 68, which is alleged to be the difference between six months of the average monthly amounts clawed back for Alleged Fraud Claw Backs for the period prior to termination and the total amount clawed back for the Post Termination Fraud Claw Backs (for the period after the Notice of Termination Date).

Part E.1: Optus Entities' position and submissions - Post Termination Fraud Claw Backs

245 The Optus Entities submitted that although the claims in paragraphs 60C to 60H and paragraph 68 (defined earlier as the PTF Claw Back Claims) are in respect of a smaller number of fraud claw backs than the fraud claw back claims that were struck out from the Third FASOC, the claims are in substance the same as that which were previously struck out and suffer the same shortcomings. It was submitted that the allegations are embarrassing, made without a proper basis and therefore an abuse of process, and that the claims lack a real prospect of success. The primary matters and submissions raised by the Optus Entities in this context were as follows:

(a) If it is now to be alleged that the claw backs were effected for an ulterior improper or dishonest purpose of reducing financial exposure to TeleChoice, that is a serious allegation of fraud that is required to be fully pleaded and particularised, which has not occurred. Further, such an allegation of fraud and dishonesty is not supported by the document relied on in the pleading, being the internal Optus email of 25 October 2012.

(b) If an allegation of the kind referred to in (a) is not being made then the allegations in paragraphs 60E and 60G go nowhere.

(c) The allegations in paragraphs 60E and the particulars to paragraph 60H allege facts that are not in any way material to the claims and are therefore frivolous and irrelevant.

(d) Deficiencies of the kind identified in the Strike Out Reasons regarding the struck out fraud claw back claims remain, including the failure to plead necessary material facts or particulars in respect of each Post Termination Fraud Claw Back claim. Further, the observations in the Strike Out Reasons remain apposite.

(e) Insofar as the claims are said to be based on a failure of the Optus Entities to carry out an investigative process for each of the claw backs, the claims are embarrassing and have no real prospect of success because they are 'devoid of logic.'

(f) The effect of allowing the claim to be made would be to require the Optus Entities to prove each of the matters referred to in the emails sent at the time in respect of each of the 264 claw backs, at least eight years after they occurred. Case management, CP Act and prejudice considerations support the refusal of leave to amend and not allowing a further opportunity to pursue such a claim.

(g) The loss and damage claimed is not the value of the claw backs but an 'estimate' derived from an inappropriate and inapplicable comparison of average 'before and after termination' figures as referred to in paragraph 68. It is said that not only is this flawed but is also at least implicitly inconsistent with the allegation in paragraph 60F, which purports to be in respect of all the Post Termination Fraud Claw Backs.

(h) Annexure F omits relevant information provided by the Optus Entities at the time regarding the reason for each claw back, namely the 'how non-compliant' and 'decision' columns of the notice of intention to claw back emails. It was said that the information in the 'how non-compliant' column forms the basis for the decision, which is recorded as either 'fraud' or 'not fraud'.

Part E.2: TeleChoice's position and submissions - Post Termination Fraud Claw Backs

246 TeleChoice disputed that the allegations regarding the PTF Claw Back Claims are embarrassing or that they lack a proper basis. It submitted that the claims had been refined in the light of the observations in the Strike Out Reasons and that this has resulted in a focussed pleading which the Optus Entities can understand and respond to.

247 TeleChoice submitted that paragraphs 60D and 60F are not embarrassing and make clear that all of the claw backs referred to in paragraph 60D and referred to in Annexure F were wrongly made. It submitted that because of the allegation that the Optus Entities failed to carry out what was contended was their usual investigative and engagement process it can be inferred that Optus did not have a reason to believe that the activations were made in circumstances involving fraud, of which TeleChoice knew or ought to have known.

248 TeleChoice denied that pleading the claim in the way that it has is devoid of logic and submitted that such a contention does not provide a sound basis for concluding that the claim is without a proper basis or that it has no real prospect of success. It follows, so it was said, that it is not and cannot be an abuse of process because it cannot be concluded that the claim is without a proper basis.

249 As to the contention that paragraphs 60E and 60G are not relevant material facts, it was submitted that the allegations are relied upon in connection with the breach of good faith and duty of co-operation claims in paragraph 60H. TeleChoice observed that Optus should be on notice of these allegations and should respond to them, thereby revealing the issues between the parties.

250 During oral submissions senior counsel for TeleChoice contended that the PTF Claw Back Claims were different to the previous fraud claw back claims. This was said to be so because of the new allegations about the Optus Entities not following an investigative and engagement process as had occurred in the past, and therefore, so it was said, the Optus Entities could not have had the necessary reason to believe as required by clause 11.4 of the 2008 Master Dealer Agreement.

251 Upon enquiry from the court senior counsel also expressly made clear that it was not being alleged by TeleChoice that the Post Termination Fraud Claw Backs were made dishonestly or for an improper purpose, including in order to reduce financial exposure to TeleChoice. It was acknowledged that TeleChoice did not have a basis for making such a claim and, at least implicitly if not expressly, it was accepted that the terms of the email of 25 October 2012 referred to in paragraph 60E did not provide such a basis. On the evidence before me this was an appropriate position for TeleChoice's senior counsel to take.

Part E.3: Consideration and disposition - PTF Claw Back Claims

252 There was no issue between the parties regarding the grant of leave to introduce the claims relating to non-compliance claw backs and alleged fraud claw backs that are said to turn only upon the proper construction of clause 11.4 of the 2008 Master Dealer Agreement. These claims appear in paragraphs 60 to 60B of the Fourth FASOC and no more need be said about them.

253 As to the contentious issue regarding the PTF Claw Back Claims, I have concluded that leave to amend should be granted to TeleChoice to permit it to include these claims in the Fourth FASOC, although this leave will not extend to the inclusion of the allegations in paragraphs 60E and 60G.[108]

254 Given the nature and content of the allegations in paragraphs 60E and 60G, and in the context of the allegations in paragraph 60F and 60H, the Optus Entities were correct to submit that it was not clear whether or not TeleChoice was seeking to bring a claim in which it was alleging that the Optus Entities made the PTF Claw Backs for an improper, fraudulent or dishonest purpose of reducing their financial exposure to TeleChoice. That issue has fallen away because senior counsel for TeleChoice, upon enquiry, responsibly informed the court and the Optus Entities during the hearing in plain terms that no such allegations or claims were made. Although the allegations in their current form in the Fourth FASOC would have been materially deficient had it been TeleChoice's intention to make such allegations or claims, no more need be said about why that is so given that such allegations and claims are not sought to be made.

255 That being so, I accept the Optus Entities' submission that it is difficult to see why the allegations in paragraphs 60E and 60G (referred to above) can be said to be relevant material facts to the PTF Claw Back Claims addressed in paragraphs 60D and 60F - or the good faith breach allegation in paragraph 60H. The inclusion of these allegations makes the claims sought to be made less clear and is apt to confuse or give rise to uncertainty, as in fact occurred in connection with the improper purpose issue raised by the Optus Entities and the court. Consequently, leave will not be granted to include the allegations in paragraphs 60E and 60G.[109]

256 I do not accept the Optus Entities' submission that the PTF Claw Back Claims as now pleaded are in substance the same as the 'Alleged Fraud Claw Back' claims made in the Third FASOC and dealt with in Part G of the Strike Out Reasons.[110] As a comparison of the pleadings reveals: the PTF Claw Back Claims are now only a little more than half the number of fraud related claims previously made; they relate only to the post-termination period; and the allegations made and the basis upon which the claims are put are more clearly and narrowly articulated. The PTF Claw Back Claims are understandable and clear enough. The Alleged Fraud Claw Back claims (and Non-Compliance Claw Back claims) in the Third FASOC were not, as was conceded by TeleChoice during the hearing of the 2021 Application.

257 Further, the factual basis upon which it is alleged by TeleChoice that the Optus Entities '... did not have reason to believe that the activations were made in circumstances involving fraud of which TeleChoice knew or ought to have known ...'[111] is now also sufficiently stated for pleading purposes in the particulars to paragraph 60F. Whilst it might be concluded that the central matters raised in the particulars should really be pleaded as material facts, in the current circumstances this is not a matter of great moment in the context of the application before the court.

258 I also do not accept the Optus Entities' submissions that the court can be satisfied that the PTF Claw Back Claims do not have a proper basis. It appears not to be in dispute that the PTF Claw Backs were made and that the 2008 Master Dealer Agreement contained a term to the effect of clause 11.4. The evidence before me on this application supported that position, although final determination will occur following the trial. It is apparent that the relevant pre-condition to the engagement of clause 11.4 is Optus Mobile having '... reason to believe that the activations were made in circumstances involving fraud of which TeleChoice knew or ought to have known ...'. TeleChoice alleges that 'On all previous occasions prior to the Notice of Termination' the Optus Entities followed an investigation and engagement process with TeleChoice prior to making a fraud claw back. It alleges that this did not occur in respect of any of the PTF Claw Backs and that it may therefore be inferred that the Optus Entities did not have the requisite reason to believe that the activations were made in circumstances involving fraud of which TeleChoice knew or ought to have known. Whether that is established to be so or not will involve the determination of questions of fact, including the assessment of what inferences might or might not be drawn from various facts and circumstances as found. Whilst that assessment and determination cannot and should not be undertaken now, it can in my view be seen that such a contention is at least arguable and provides a proper basis for the allegations.

259 It is also to be noted that there was material put forward before the court in support of the position that the investigative and engagement position that the Optus Entities had taken prior to termination was different to that which they took after termination. For example, this is referred to in Ms Seifen's affidavit of 11 August 2020 and her filed witness statement of 23 December 2020. Ms Seifen's evidence also referred to the complaints that were made at the time (in 2012 and 2013) regarding fraud and non-compliance claw backs, the circumstances in which they were made at that time, and the correspondence between the parties and with the Optus Entities' then solicitors, MinterEllison.

260 The existence of the email 'notices of intent' to claw back sent to TeleChoice at the time by the Optus Entities does not relevantly change the position. Before me there appeared to be no dispute about the existence of these notices, or the information contained in them, which was also consistent with statements of Ms Seifen in her affidavit material and her filed witness statement. The claimed difference in investigative and engagement approach prior to the Notice of Termination Date and after the Notice of Termination Date is alleged to have occurred in the context of the existence of these notices of intent to claw back and such notices having been sent at the relevant time. The example notice of intent to claw back annexed to the Optus Entities' written submission as a typical example revealed that the notice of intent to claw back was the result of a 'remote audit/review' carried out using the 'online scanning portal'. This is said to be different to the investigation and engagement referred to by Ms Seifen. Further, insofar as Annexure F does not contain all of the information that was in the notices of intent to claw back, this does not change the position.[112]

261 To the extent that it was contended that the existence of the email notices and the reasons referred to in them establishes the existence of relevant investigations or engagement - or speaks against the absence of investigation or engagement - these are matters of fact that cannot or should not be determined on this application. Further, on the material before me, including the affidavit evidence and filed witness statement of Ms Seifen, it is apparent that, in the context of fraud claw backs, the claimed usual investigation and engagement process alleged not to have been undertaken by the Optus Entities is a process additional to the steps undertaken by them in order to send the notices of intent to claw back in the first place. I again also refer to the review referred to in the notices of intent being 'remote' and through the online scanning portal.

262 To the extent that the Optus Entities contended that the manner in which the loss and damage has been framed means that there can be no proper basis for the claim, I do not accept that submission. The fact that the pleaded loss claimed carries implicitly within it some provision for the likelihood that some of the PTF Claw Backs may be made good or established by the Optus Entities to be sound, and that it does so by reference to average monthly amounts over a period prior to termination, does not establish that the claims are without a proper basis or provide another sound reason for not granting leave to amend in respect of the claims in question.

263 The upshot is that I do not accept the Optus Entities' submissions that it can be seen that the PTF Claw Back Claims as now formulated have been shown to be without a proper basis. I accept TeleChoice's position that, upon the material before the court on this application, it has been established that there is a proper basis for the claims. Whether these claims will ultimately be made out at trial is a different matter for another day, and a matter about which no more should be said at this point.

264 It will likely be apparent from the above that I do not accept that, in the manner now framed, the PTF Claw Back Claims are embarrassing or not sufficiently clear for pleading purposes. In my view they are. As now framed, TeleChoice's case in respect of these claims is conceptually quite narrow. It simply alleges that the relevant investigation and engagement with TeleChoice did not occur in relation to any of the PTF Claw Backs and therefore it can be inferred that the necessary reason to believe that the activations involved fraud and that TeleChoice had the required knowledge of it could not have been held by the Optus Entities. Whether the absence of investigation and engagement can be established in relation to one or more of the PTF Claw Back Claims, and if so, what if anything might then be inferred from it, are questions of fact to be determined at trial in the light of all the relevant evidence and submissions at that time. They cannot and should not be assessed or further addressed at this point on the current application before the court.

265 Perhaps the most significant question that arises in the current context is whether considerations regarding case management, Aon, claimed risk of prejudice, and CP Act considerations, weigh in the balance[113] in a manner that warrants the refusal of leave to amend to include the PTF Claw Back Claims in the Fourth FASOC notwithstanding that they have been shown to have a proper basis. Although these are matters proper to take into account in the exercise of my discretion, it will be apparent that I have concluded that these considerations do not operate so as to stand in the way of the grant of leave to TeleChoice to amend the Fourth FASOC to include the PTF Claw Back Claims. I make the following additional observations on this topic.

266 In reaching this conclusion the material to which I have had regard includes the evidence of Mr James in his most recent affidavit, and also that which was referred to in his affidavit dated 28 February 2019 (filed 1 March 2019). I also accept that although there are a lower number of claims than in the Third FASOC, the 264 remaining PTF Claw Backs (rather than 590 Alleged Fraud Claw Back Claims in the Third FASOC) are still substantial in number. It is to be remembered, however, as the evidence showed, TeleChoice complained about post-termination fraud and other claw backs in late 2012 and early 2013 shortly after they were made and that these claw backs were the subject of correspondence between the parties, and the Optus Entities' solicitors at that time - albeit not in as confined a form as is now the case. Claw back concerns were also the subject of the letter of demand sent to the Optus Entities in July 2013 and the draft statement of claim enclosed with it - albeit drafted more broadly. Claw back claims have also been made and included in each of the Previous Iterations since that time, even though defectively pleaded.

267 It is evident that the Optus Entities have known for an extended period, from shortly after the Post Termination Fraud Claw Backs were made by the Optus Entities, that they were the subject of dispute between the parties. It is also the case that one of the main issues is the nature and extent of the reason to believe and belief held by Optus at the time, which is knowledge that is peculiar to the Optus Entities. In these circumstances, the claimed prejudice and case management related considerations weigh less heavily than they might otherwise - remembering also that the previous fraud claw back claims were struck out because they were bad in form, which has now been sufficiently addressed.

268 It may also be observed that Mr James' evidence regarding this particular topic spoke of the 'possibility' of staff who 'hold requisite knowledge of the data relevant to Clawback of commission claims...' being no longer employed by the Optus Entities or possibly leaving that employment. We do not know if that has occurred or, if so, when that occurred. Mr James also spoke only of the 'possibility' of adversely impacting '... the ease or availability of obtaining potentially very detailed and complex instructions regarding the Clawback of commissions claims'. Further, no real insight was given as to the nature and extent of the work that had been undertaken (or not) to date on the topic of claw backs. I note also the statements of Ms Seifen that the person mainly responsible for claw backs at TeleChoice at the time was a Mr Wallis and that he is now an Optus employee who is not willing to engage on the topic with TeleChoice.[114]

269 The fact that the records that the Optus Entities keep of the reasons for clawing back commissions are said by Mr James to be only 'maintained by the Optus Entities in summary form' does not in my view relevantly assist them in the present context. The Optus Entities have known that there was a dispute about claw back claims since shortly after the notices of intent to claw back were given to TeleChoice in late 2012 and early 2013. If it be the case that the Optus Entities are at risk of prejudice by their own record-keeping practices it does not relevantly assist them in the current context. That is not to say that the matter is irrelevant. I have taken it into account, as can be seen. Further, even if it could be seen as a neutral factor or a factor in favour of the Optus Entities, when weighed in the balance it would make no difference to the result.

270 The end result is that I do not accept that considerations relating to case management, the risk of prejudice, Aon, or CP Act considerations favour the refusal of the grant of leave to amend in the circumstances. The grant of leave to TeleChoice to include the PTF Claw Back Claims will facilitate the identification and just determination between the parties of the real issues in dispute - as is also the case in respect of the other amendments that I have stated in these reasons that leave will be granted to make. In reaching these conclusions - and the other conclusions addressed in these reasons - I have taken into account and sought to give effect to the overarching purpose in s 7 of the CP Act as required by s 8 of that Act and I have had regard to the matters referred to in s 9 of the CP Act.

Part F: Paragraphs 111 & Annexure B - Alleged loss arising from 'Post-Notice Conduct'

271 Unconscionable conduct, breach of contract, and breach of a settlement agreement claims are made in paragraphs 109 to 116 of the Fourth FASOC. The amendments sought to be made by TeleChoice are to paragraph 111 which alleges that TeleChoice suffered loss and damage by the alleged 'Post-Notice Conduct'. The particulars to paragraph 111 refer to a seven-page 'Annexure B' to the Fourth FASOC.

272 Annexure B has explanatory notes and four parts to it, Parts A, B, C and D. Part A is said to record revenue that would have been derived under the Final Dealer Appointment without the Post-Notice Conduct, at the Actual Telstra Rates. Part B is the same, but said to be 'at the Telstra Rates'. Part C is said to be revenue that would have been derived under the Intended Telstra Appointment without the Post-Notice Conduct at the Actual Telstra Rates. Part D is said to be revenue which would have been derived under the Final Dealer Appointment without the Post-Notice Conduct.

Part F.1: Optus Entities' position and submissions - Paragraph 111 and Annexure B

273 The Optus Entities pointed out that paragraph 111 was not the subject of the 2021 Application and that the amendments sought to be made are new and seek to calculate the loss and damage said to have resulted from the 'Post-Notice Conduct' on 'an entirely new basis', as is said to be reflected in Annexure B. They submit that various aspects of Annexure B are unintelligible and embarrassing and therefore fail to give sufficient notice of the case the Optus Entities have to meet.

274 What were described as 'fundamental issues' were raised in the defendants' written submission. First, the claimed absence of guidance as to which of the amounts in the four parts of Annexure B is said to be the loss and damage referable to the Post-Notice Conduct claim.

275 Second, the inclusion of calculations said to relate to the Intended Telstra Appointment (at the Actual Telstra Rates and the Telstra Rates) in circumstances where the loss and damage claimed is pleaded in a claim relating to the Final Dealer Appointment with Optus, not the counterfactual of entering into the Intended Telstra Appointment with Telstra. It was submitted that these calculations cannot engage with the loss claimed or otherwise be relevant.

276 Third, insofar as Annexure B refers to the Telstra Rates and the Actual Telstra Rates, it was said that such references bring with them a 'myriad of deficiencies' of the kind identified in connection with Revised Telstra Revenue Claims in paragraphs 9 to 36, and the potential prejudice in the form of an inability to obtain evidence. One matter on which further emphasis was placed was the absence of facts or particulars regarding TeleChoice's operating costs in any of the postulated scenarios.

277 The Optus Entities also submitted that the calculations were flawed because they were based on a 2012/2013 12-month period when the period in question in this part of the claim was from only October 2012 to the time of termination at the end of March 2013.

278 It was submitted further that the calculations in Parts A, B, C and D of Annexure B were unintelligible and embarrassing. It was said that, contrary to TeleChoice's submissions, the figures as pleaded do not put Optus on notice of the case it is to meet. It was submitted that it is 'impossible to discern' how the figures in Annexure B have been calculated because the descriptions of the various calculations in Annexure B are vague and confusing. The result was said to be an impossibility in understanding how the calculations relate to the conduct alleged in paragraph 109 that is said to give rise to the alleged loss and damage.

(a) The inability to calculate the activation numbers or establish where they can be found or how they can be calculated, with the claimed result being the non-disclosure of the figure corresponding to the defined term 'Extra Connections' and an inability otherwise to calculate the same.

(b) The non-disclosure of the figure corresponding to the defined term 'Revenue Per Connection' and an inability otherwise to calculate the same.

(c) The calculations in Annexure B being referred to as 'estimates' and therefore it not being clear whether or not they reflect the case that TeleChoice proposes to pursue at trial.

280 The position was recalibrated somewhat in exchanges with the court during oral submissions, with the submission being put that Parts A to C of Annexure B 'should go', but that Part D could stay, although it was said to be flawed because it was based on a 12-month period. It was further emphasised that any calculations associated with the counterfactual under the Intended Telstra Appointment cannot be particulars of the loss claimed in paragraph 111, which loss relates to the Final Dealer Appointment term and not a counterfactual involving the Intended Telstra Appointment. It was said that the inclusion of such matters lacks logic and is irrelevant.

Part F.2: TeleChoice's position and submissions - Paragraph 111 and Annexure B

281 TeleChoice submitted that the figures in Parts A, B, and C of Annexure B are included because they provide particulars of 'the further loss as a result of the Revenue Representation', calculated on the assumption that the Post-Termination Notice Conduct is found to have occurred and decreased the volume of Optus customers that TeleChoice would otherwise have achieved in the final year of the Final Dealer Appointment.

282 TeleChoice submitted further that the soundness or otherwise of the manner in which the loss had been calculated in Part D of Annexure B was a matter for trial and was not a pleading point. In this context it was contended that the use of annual figures over the period of the Final Dealer Appointment as a basis or methodology of calculation of lost sales for a part of the final year of the five-year term did not mean that a claim was being made for loss of volume prior to the contravening conduct.

283 TeleChoice accepted that it should provide the annual number of activations from which certain other figures have been derived, which was addressed in footnote 1 to Part A of Annexure B in the version of the Fourth FASOC handed to the court during the second day of the hearing. Otherwise TeleChoice contended that the matters referred to in various aspects of the Optus Entities' written submissions were requests for evidence, which would be forthcoming in due course, but that they did not provide a basis for refusing leave to amend.

Part F.3: Consideration and disposition - Paragraph 111 and Annexure B

284 The proposed amendments in question relate to claimed loss said to flow from alleged 'Post-Notice Conduct'[115] engaged in by the Optus Entities after the decision to terminate TeleChoice became public on 30 October 2012 through an Optus media release. The revised allegations of loss are new and do not arise out of the 2021 Application or Strike Out Reasons.

285 I have concluded that TeleChoice should be granted conditional[116] leave to amend paragraph 111 in part only, namely:

(a) by making the adjustment to the language of the pleaded material fact in paragraph 111 by striking through part of the existing language regarding the suffering of loss and replacing it with an allegation of material fact that: 'Further, TeleChoice suffered loss and damage as a result of the Post-Notice Conduct';

(b) by including only Parts B and D of Annexure B (which address respectively 'Revenue which would have been derived under the Final Dealer Appointment without the Post-Notice Conduct' calculated at the Telstra Rates (Part B) and at the rates actually paid by the Optus Entities (Part D));[117]

(c) by supplementing the calculations in Part D of Annexure B so as to more fully and clearly articulate and set out:

(i) the calculations for arriving at the alleged revenue of $47,797,671 for the final year of the Final Dealer Appointment and the increased revenue of $9,196,294 referred to in paragraphs 22 and 23 of Part D; and

(ii) the calculations for arriving at a loss figure of $5,166,205 from an alleged increased revenue figure of $9,196,294; and

(d) by supplementing the calculations in Part B of Annexure B so as to more fully and clearly articulate and set out:

(i) the calculations for arriving at the revenue figures of $72,121,335 for the final year of the (Optus) Final Dealer Appointment and the claimed increased revenue figure of $14,694,542, referred to in paragraphs 11 and 12 of Part B of Annexure B;

(ii) the amount of the loss said to be attributable to the Post-Notice Conduct (as opposed to 'total loss and damage'), and how that has been calculated; and

(iii) if the amount of the loss attributable to the Post-Notice Conduct is said to be less than the claimed increased revenue of $14,694,542 referred to in paragraph 11 of Part B of Annexure B, the amount of that loss, its calculations, and how it is derived from the alleged increased revenue amount.

286 Leave to amend will not be granted to include Parts A or C of Annexure B as particulars of the loss and damage claimed in paragraph 111 of the Fourth FASOC.

287 It is to be remembered that paragraph 111 is addressing claimed loss said to flow from alleged 'Post-Notice Conduct' (referred to in paragraph 109) engaged in by the Optus Entities in connection with the performance of the Final Dealer Appointment and following the alleged public announcement of the impending end of TeleChoice's term as an Optus dealer. It is alleged in paragraph 110 that this conduct caused TeleChoice to fail to meet what was in effect a sales target for 'activations' and thereby not receive the Outcome Payment for 2012/2013 in the sum of approximately $3.5 million'. In the proposed revisions to paragraph 111 it is alleged that the Post-Notice Conduct caused further loss and damage, which is said to be the loss and damage set out in Annexure B to the Fourth FASOC.

288 Part D of Annexure B is headed and said to address 'Revenue which would have been derived under the Final Dealer Appointment without the Post-Notice Conduct'. In substance, this Part of Annexure B sets out, among other things, what additional revenue from sales it is alleged would have been earned over the final year of the (Optus) Final Dealer Appointment if the Optus Entities had not engaged in the 'Post-Notice Conduct' and the additional loss said to flow.[118] With the inclusion of explanatory note 4 to Annexure B, the footnote that appears as footnote 1 on Part A of Annexure B, and the additional calculations and details that I have referred to above, I consider that Part D will be capable of being sufficiently understood for pleading purposes, which in the end appeared essentially to be accepted by senior counsel for the Optus Entities in any event.[119]

289 In part D TeleChoice states that if the Post-Notice Conduct had not occurred it would have increased revenue from the Optus Entities as a result of increased activations (sales) that TeleChoice would have made (in the final months of) the last year of the Final Dealer Appointment. This is said to give rise to the additional alleged loss and damage of $5,166,205. How that is arrived at is referred to in paragraphs 21 to 24 of Part D, various parts of which are sufficiently clear.

290 However, whilst how the alleged increased revenue is calculated is explained in some words, they are not supported by the calculations showing how the $47,797,671 and the $9,196,294 revenue amounts are arrived at. These calculations should be included in a sufficiently clear manner. Further, although it is alleged that the increased revenue would have been $9,196,294, it is not sufficiently clear on the face of Part D how this is said to result in the lower loss and damage figure of $5,166,205 - noting that it is alleged that TeleChoice's costs would have remained the same even with the increased activations.[120] This should be made clear and the calculations should also be set out in a sufficiently clear manner.

291 I add that I have observed that the revenue figures for the first four years of the Final Dealer Appointment set out in paragraph 21 of Part D of Annexure B are said to have been 'as set out in Part D of Annexure A'. However, the revenue figures in Part D of Annexure A for each of the years are different and higher in each year. Whilst rough arithmetic and deductive reasoning on my part appears to suggest that the revenue figures in Part D of Annexure B reflect the same as those in Part D of Annexure A but after the deduction of the line item 'Other payments (Conference, Branding ...)' in each year, that is not clear. Further, whilst it also appears that this approach may have been taken with the total revenue figure of $263,690,940 in paragraph 24 of Part D of Annexure B, it appears this has not occurred with the 'revenue actually derived' figure of $258,524,735 in paragraph 25.

292 These are matters that I have had to seek to work through from the complex and challenging Annexures and their constituent parts, and they may or may not in fact be the basis for the (lower) calculations of revenue in Part D of Annexure B for the first four years of the Final Dealer Appointment when compared to the total amounts for each of those years referred to in Part D of Annexure A. This further underscores the need for TeleChoice to better articulate, and set out the calculations for, the revenue and loss figures referred to in Part D of Annexure B so that they can be sufficiently understood. Similar or analogous considerations apply in relation to Part B of Annexure B, as I touch on later below.

293 Although the Optus Entities raised a contention about the TeleChoice calculations in Part D of Annexure B being flawed because of the use average activation (sales) figures derived from a 12‑month (annual) period over the previous four years,[121] whether that is or is not so is not something that can or should be assessed or determined on this application. It will be a matter for assessment in the light of the expert and other relevant evidence regarding methodology and related matters at trial - noting also that TeleChoice stated that it was not using annual figures and transposing them over the shorter five-month Post-Notice Conduct period in any event. Rather, so it was said, TeleChoice submitted that it is using average annual activations (sales) over the preceding four-year period as part of the process to derive the claimed lost activations (sales) for the shorter five-month Post-Notice Period in question and not for a 12-month period.

294 I accept the Optus Entities' submission that TeleChoice's use, in Part C of Annexure B of a counterfactual based on the Intended Telstra Appointment at the Actual Telstra Rates, is misconceived insofar as it purports to reflect loss and damage based on the Post-Notice Conduct in connection with the Final Dealer Appointment. It is apparent from paragraphs 109 to 116 that the claims there made, and the loss and damage claimed, is based on the Optus Final Dealer Appointment existing and running its course until its end over the five-year period. That is part of the essential platform or foundation for the claims based upon the Post-Notice Conduct under the Optus Final Dealer Appointment. So much was effectively common ground in any event. I accept the Optus Entities' submission that a counterfactual involving a past hypothetical transaction of the Intended Telstra Appointment (whether based on the Telstra Rates, the Actual Telstra Rates or otherwise) does not and cannot form part of or engage with the assessment of loss and damage claimed based on a factual premise of the Optus Final Dealer Appointment being entered into and continuing.

295 It follows that it has not been established that there is a proper basis for such allegations in Part C of Annexure B or the loss and damage claim that they embody, insofar as they relate to the claims in paragraphs 109 to 116. On this basis alone leave to amend by including Part C of Annexure B based on the Intended Telstra Appointment at the Actual Telstra Rates must be refused. It can also be concluded that such a claim for loss and damage of this kind based on the allegations in paragraphs 109 to 116 has no real prospect of success. It also renders the allegations unclear, confusing and embarrassing as it cannot be explained how or why such alleged loss from a different past hypothetical transaction could conceivably form part of the loss in question. This is another reason why leave to amend to include these allegations ought to be refused.

296 For completeness I add that the allegations are also based on allegations and claims regarding the Actual Telstra Rates, which for the reasons earlier identified in connection with the Revised Telstra Revenue Claims, would not be permitted to be included in the Fourth FASOC in any event.

297 Whilst TeleChoice sought to explain that in some way the loss was linked to the Misleading Revenue Representation Claim, what was being contended was not easy to discern given that the particulars in Annexure B are said in the particulars to paragraph 111 to be the loss and damage flowing from the Post-Notice Conduct under the Final Dealer Appointment. This loss allegation has as an essential foundation the entry into the Final Dealer Appointment with the Optus Entities and its continuation over the five‑year term and not a counterfactual involving the entry into the Intended Telstra Appointment or a loss of that opportunity.[122]

298 It may also be noted that the loss and damage said to have been suffered in connection with the Misleading Revenue Representation Claim is pleaded earlier in the Fourth FASOC to be that addressed in Parts A to C of Annexure A - which I have addressed at length earlier in these reasons.[123]

299 For completeness, and as noted by the Optus Entities, I also observe that the Misleading Revenue Representation Claim based on the pleaded counterfactual of entry into the Intended Telstra Agreement does not involve a counterfactual regarding what occurred or would have occurred under the Final Dealer Appointment if the Post-Notice Conduct had not been engaged in. Rather, and speaking generally, as pleaded, the Misleading Revenue Representation Claim looks to a comparison between the position that TeleChoice is in under the (Optus) Final Dealer Appointment when compared to that which it says it would have been in under the Intended Telstra Appointment - which is different to a hypothetical counterfactual position under the Final Dealer Appointment.

300 Consequently it is not at all clear on the face of the pleading, or from the submissions made, how it would be said that the allegations involving a counterfactual of not engaging in the Post-Notice Conduct under the Intended Telstra Appointment could be said to be germane to a comparison of the position that TeleChoice is in when compared to the position that it would have been in under the Intended Telstra Appointment counterfactual. Such an exercise would be to compare a position that TeleChoice is not in under a counterfactual involving the absence of the Post-Notice Conduct with the counterfactual of the Intended Telstra Appointment. Not only does such a contention appear to be misconceived as was submitted by the Optus Entities, but it is also inconsistent with the way that TeleChoice pleads and puts its loss and damage claim based on the Intended Telstra Appointment counterfactual.

301 As I understood it, Parts A and B of Annexure B were also submitted by the Optus Entities to be conceptually misconceived because they impermissibly apply the so-called Actual Telstra Rates, alternatively Telstra Rates, from the Intended Telstra Appointment to the Optus Final Dealer Appointment. However, insofar as this submission was made I do not accept it. This is because the Revised Telstra Revenue Claims include allegations that there was a term of the Final Dealer Appointment to the effect of the Revenue Term. Consequently, by this breach of contract claim (and the related Collateral Contract Claim) it is alleged that the Actual Telstra Rates, alternatively the Telstra Rates, applied as part of the Final Dealer Appointment.

302 That said, because Part A of Annexure B is based upon the Actual Telstra Rates and leave to amend is not be granted to TeleChoice to include claims and allegations based on the Actual Telstra Rates, it follows that leave to include the allegations and claims in Part A of Annexure B will also be refused. I refer in this regard to the earlier reasons given in connection with the Revised Telstra Revenue Claims insofar as they are based on or relate to the Actual Telstra Rates, which apply equally here.

303 That brings me to Part B of Annexure B, which is said to deal with the revenue that would have been derived under the Final Dealer Appointment without the Post-Notice Conduct calculated at the Telstra Rates.

304 Consistent with the grant of leave to amend to include the Breach of Contract Claim (and Collateral Contract Claim) based upon the Telstra Rates, it is evident why it is said by TeleChoice that the extra activations (and consequent sales revenue) it is alleged would have been achieved if the Post-Notice Conduct had not been engaged is sought to be calculated by reference to the Telstra Rates. In this regard I refer to my earlier observations regarding the reasons for granting leave to amend to raise such allegations and claims based on the Telstra Rates in connection with the Breach of Contract Claim. Consequently, I propose to grant leave to TeleChoice to include proper particulars of loss of this character, although not in the form of Part B of Annexure B as it is currently drafted. This is because, like Part D of Annexure B,[124] the calculations in Part B need to be supplemented so as to more fully and clearly articulate and set out:

(a) the calculations for arriving at the revenue figures of $72,121,335 for the final year of the Optus Final Dealer Appointment and the claimed increased revenue figure of $14,694,542, referred to in paragraphs 11 and 12 of Part B of Annexure B;

(b) the amount of the loss said to be attributable to the Post-Notice Conduct (as opposed to 'total loss and damage'), and how that has been calculated; and

(c) if the amount of the loss attributable to the Post-Notice Conduct is said to be less than the claimed increased revenue of $14,694,542 referred to in paragraph 11 of Part B of Annexure B, the amount of that loss, its calculations, and how it is derived from the alleged increased revenue amount.

305 For completeness, I also observe that there appears to be an inconsistency in the method or manner in which the calculations have been carried out in Part B of Annexure B (at the Telstra Rates) when compared to Part D (at the rates paid by the Optus Entities). This is because in Part D it appears that the loss claimed is less than the revenue increase, but in Part B it seems that the loss is said to be equal to the claimed revenue increase. I say 'appears' because, unlike in Part D, TeleChoice does not in Part B identify the loss attributable to the Post-Notice Conduct but, rather, includes a 'total' loss based on the Telstra Rates of $79,035,858. This cannot be the loss suffered by the Post-Notice Conduct if the total revenue said to have been lost by that conduct is the materially lower amount $14,694,542.

306 Again it has been necessary for me to use arithmetic and deduction to seek to understand TeleChoice's position, which is less than satisfactory at this point in the proceeding. That said, it appears at least likely that the claimed loss from the Post-Notice Conduct is $14,694,542. This is supported by the fact that when this amount is subtracted from the total loss figure of $79,035,858, the loss reduces to $64,341,316 - which is the loss claimed based on the Telstra Rates in the Breach of Contract Claim when the Post-Notice Conduct is not taken into account. See, for example, the particulars to paragraph 17 as referred to in the particulars to paragraph 30(b) regarding the loss said to flow from the Breach of Contract Claim (with the position being the same with the Collateral Contract Claim).

307 These matters underscore the need for the calculations in Part B of Annexure B to be supplemented so as to better articulate and set out the relevant amounts and calculations, which TeleChoice will be granted leave to do in the final form of the Fourth FASOC.

308 The end point is that TeleChoice will not be granted leave to include the allegations in Parts A and C of Annexure B as particulars of the loss alleged in paragraph 111 of the Fourth FASOC. Otherwise, conditional leave to amend paragraphs 111 and its particulars of the kind referred to earlier in this part of the reasons will be granted to TeleChoice.

Part G: Paragraphs 117-120I - Inducing breach of contract claim

309 Paragraphs 117 to 120I are preceded by the heading 'Inducing Breach of Contract by TeleChoice Franchisees'. In substance and broadly, TeleChoice in these paragraphs seeks to advance a claim against the Optus Entities for inducing breach of an alleged restraint clause in TeleChoice's 'Franchise Agreement'[125] by a franchisee and its guarantors, which is alleged to have resulted in two children of one of the franchisee's directors becoming Optus dealers and securing customers who it is alleged would otherwise have renewed or rolled over their agreements with TeleChoice (Inducing Breach Claim).

310 The suffering of loss and damage is alleged in paragraph 120I. The particulars to that paragraph describe the loss as comprising the loss of revenue which TeleChoice would have received in respect of customers who were previously TeleChoice customers and who would have otherwise recontracted with TeleChoice but who recontracted with Optus through the Optus dealership operated (by the children referred to) at North Strathfield or Burwood. No details of the claimed lost customers or alleged loss and damage is given.

Part G.1: Optus Entities' position and submissions - Inducing Breach Claim

311 The Optus Entities submitted that this was an 'entirely speculative claim' and, adopting the fishing analogy used in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors (Adelaide Brighton Cement),[126] submitted that TeleChoice was using the claim as a vehicle to trawl for fish without any basis to allege that any fish exist. In this context emphasis was placed on the fact that TeleChoice do not allege or give particulars of a single instance of a customer who was a previous TeleChoice customer who would have otherwise re-contracted with TeleChoice absent the alleged conduct. Consequently, it was submitted that the claim can be seen to be without a proper basis and no more than a fishing expedition.

312 This position was said to be supported by TeleChoice's submission that 'some further targeted discovery was likely to be required' because, so it was said, it revealed that TeleChoice needed discovery to establish whether it has a basis for a claim. This demonstrated that it was pre-action discovery that TeleChoice wanted and needed and it was submitted that any asymmetry of information does not provide a basis for making a claim that a party does not have a basis for making. Reference was made to the procedures that can be utilised by a party seeking to establish whether it has a basis for a claim and it was noted that TeleChoice has not done so.

313 It was further submitted that any such discovery would not assist or be of utility because it would not be possible to determine from old data about Optus customers (if capable of identification) whether they would have re-contracted with TeleChoice, or done so as a consequence of what was said to be the unidentified causal relationship between the alleged breach and alleged loss, or for some other unidentified reason.

314 The Optus Entities relied upon the prejudice and delay earlier referred to, also pointing to: the nature of the 'onerous' discovery task; the time that has elapsed; the fact that the key person said to have been involved was a Mr Brown of M8 Telecom; the absence of any relationship with Mr Brown; and the inability to confirm whether Mr Brown would assist or whether he or M8 Telecom holds any documents relevant to the events, which occurred more than eight years ago. It was submitted that the Optus Entities may have to defend the claim without the assistance of the sole person alleged to have taken steps as an Optus agent, without reference to critical contemporaneous documents, and in a context where witness recollection is likely to be an issue given the passage of time.

Part G.2: TeleChoice's position and submissions - Inducing Breach Claim

315 TeleChoice submitted that it had substantially amended and improved the Inducing Breach Claim in the light of the observations made in the Strike Out Reasons, resulting in what was contended to be a clear and sufficient pleading of a more narrow claim.

316 TeleChoice denied that it had failed to plead a causal link between the conduct and the loss, which it said was 'pleaded clearly'. This was said to be that Mr Charlie Assad's breaches led to customers who were previously his (and therefore TeleChoice's) re-contracting at his children's stores and thereby depriving TeleChoice of revenue. It was submitted that any request for further explanation of this was a request for evidence.

317 As to the contentions regarding the claim being speculative and a fishing expedition, TeleChoice submitted that the claim as pleaded reflects the fact that the Optus Entities are the parties in possession of the details of the customers who were associated with the dealer code/s of the stores operated by Mr Charlie Assad and who subsequently became associated with the dealer code/s of (Optus related) stores operated by Ms Boumelhelm and Mr Tony Assad. It was submitted that the fact that further discovery is likely to be necessary does not mean that TeleChoice lacks a basis for its allegations regarding the loss of customers or its loss and damage claim. Senior counsel for TeleChoice submitted in oral submissions that the loss and damage alleged in paragraph 120I could also be inferred.

318 It was further submitted that any inability to procure the co-operation of Mr Brown as a witness does not provide a reason to refuse leave to amend. It was said that versions of these claims were in earlier iterations of the statements of claim and that it was unclear whether Optus has ever secured Mr Brown's co-operation. It was contended that there is no basis to conclude that any difficulty Optus is now having has been caused by the amendments under consideration.

Part G.3: Consideration and disposition - Inducing Breach Claim

319 TeleChoice should not be granted leave to include the Inducing Breach Claim allegations in the Fourth FASOC. Further, TeleChoice should not have a further opportunity to seek to re-craft the Fourth FASOC to include such a claim. My reasons for so concluding can be relatively shortly stated, which I do after briefly touching upon the history of the allegations in the following two paragraphs.

320 Inducing breach of contract allegations are not new, having been included in Previous Iterations from at least 17 September 2019, and first appearing in a filed pleading in paragraphs 117 to 124 of the second further amended statement of claim filed on 25 November 2019 (and thereafter). These claims were the subject of strong attack in the 2021 Application. In the Strike Out Reasons I addressed the essential elements of an inducing breach of contract claim by reference to, among others, the decision in Daebo Shipping Company Ltd v The Ship Go Star,[127] to which I refer but will not set out again.

321 For the reasons set out in paragraphs 168 to 198 of the Strike Out Reasons I found the inducing breach of contract allegations and claims in the Third FASOC to be substantively deficient and manifestly so, also concluding that the allegations failed to disclose a cause of action. The result was that the relevant allegations and claims were struck out without prejudice to TeleChoice's right to seek leave to amend the Third FASOC to include such a claim should it wish to. TeleChoice seeks to avail itself of this opportunity by seeking leave to include the Inducing Breach Claim and allegations set out in paragraphs 117 to 120I of the Fourth FASOC.

322 As the Optus Entities submitted (and is apparent from the terms of the Fourth FASOC and TeleChoice's submissions), at the heart or core of TeleChoice's Inducing Breach Claim is the central allegation that TeleChoice suffered loss and damage which is said to comprise the loss of revenue which TeleChoice would have received in respect of customers who were previously TeleChoice customers, and who would have otherwise re-contracted with TeleChoice, but who re-contracted with Optus through dealerships located at George Street, North Strathfield or at the Burwood Optus local store.[128] However, TeleChoice has not, in any of the Previous Iterations to date, the Fourth FASOC, or the materials and evidence in support of this application,[129] identified a single customer who it is said so acted or would have so acted. All that is said is that particulars will be given after discovery.

323 This is not a minor matter. As observed in the Strike Out Reasons, the suffering of loss and damage is also an element of the inducing breach of contract claim. In my view there is substantive force in the Optus Entities' submission that as things stand TeleChoice's Inducing Breach Claim and allegations that are founded upon such asserted loss and damage are speculative in nature and are being used to fish for a claim. I also accept that the fishing analogy referred to in Adelaide Brighton Cement[130] is similarly (although not entirely) apposite in the present circumstances and history and stage of the proceeding. Having regard to the circumstances, the overarching purpose and the court's obligations under ss 8 and 9 of the CP Act, and to (largely) employ the words of Doyle J in Adelaide Brighton Cement, I also '... do not think that the court should lightly permit a party without a [demonstrated] 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 ...'.[131]

324 To the extent that TeleChoice pressed its oral submission that the loss and damage in paragraph 120I could be inferred, I do not accept that submission, noting also that it is not the basis of the allegation of loss and damage referred to in that paragraph. Even if it had been, it would have been embarrassing, and the position would still be that TeleChoice has not established on the material before the court on this application that there is a proper basis for the loss and damage claim as reflected in paragraph 120I of the Fourth FASOC.

325 The Optus Entities were also correct to observe that the Rules make express provision in Order 32 for the process of preliminary discovery, including from a non-party or party to a proceeding. There was no evidence to suggest, nor submissions made, that TeleChoice had sought to avail itself of this or any other procedures to establish whether in fact TeleChoice has lost revenue that it would have received in respect of customers who were previously TeleChoice customers, and who would have otherwise re-contracted with TeleChoice, but who re-contracted with Optus.

326 Having regard to the material and submissions before the court on this application, I accept the Optus Entities' submission that TeleChoice has not established that it has a proper basis for alleging that it suffered loss and damage as alleged. The result is that TeleChoice has not established that there is a proper basis for the Inducing Breach Claim. Of itself, this is sufficient reason for refusing to grant leave to TeleChoice to include the Inducing Breach Claim and allegations in paragraphs 117 to 120I of the Fourth FASOC.

327 For completeness, I add that I accept the Optus Entities' submissions that if the claims were to proceed they would likely involve a substantial discovery task given, among other things, the breadth of the allegations and the time that has elapsed. I also accept that, given the nearly 10 years that have passed, and the fact that the key persons involved appear mainly to comprise non-Optus personnel, there is a real risk of prejudice for the Optus Entities if the inducing breach of contract allegations and claims were to proceed at this time in circumstances where, to date, TeleChoice has not made known to the Optus Entities the identity of any customers who it is said would have continued as a customer of TeleChoice but who re-contracted with Optus.

328 Further, even if I was satisfied that a proper basis for the inducing breach of contract claims had been established, case management, CP Act, and Aon related considerations, when considered together with the risk of prejudice to the Optus Entities, would have resulted in the refusal of leave to amend to include the inducing breach of contract allegations and claims at this time in any event. To allow the claims to proceed at this point in circumstances where, notwithstanding the many years that have passed, the claim currently does not identify any customers said to have been lost, would not well serve the overarching purpose or the court's obligations under ss 8 and 9 of the CP Act.

329 In substance this is because to allow the claim to proceed at this advanced point in the procedural history of the proceeding would require the parties to embark upon many further steps that would involve further material delay, time and expense - as well as the risk of prejudice to which I have referred. It was apparent from the evidence, and may be inferred in any event, that such steps would likely include: discovery by the Optus Entities in relation to Optus dealerships in question; discovery by TeleChoice regarding relevant customers if any were identified; consideration of the likely pursuit of discovery or subpoenas from non-parties, including for example Mr Brown, M8 Telecom, the Optus dealerships, and possibly any individual customers concerned (if identified); exploring with the Optus dealerships in question the circumstances in which any identified customer came to be a customer of the Optus dealer; potentially exploring with any identified customer the circumstances in which they ceased to be a customer of TeleChoice and became a customer or Optus; exploration and analysis of issues associated with loss and damage in respect of any identified customer; and so on.

330 I also note that the circumstances are different to those involved with the PTF Claw Back Claims. Among other things, this is because a proper basis for those allegations was established and the Optus Entities have been aware of the challenges to the PTF Claw Backs effectively from the time that they were made by the Optus Entities, and the relevant transactions and customers are also identified.

331 As I have said, to allow the Inducing Breach Claim to proceed in the circumstances would not well serve the overarching purpose of achieving the just, efficient timely and cost-effective resolution of the real issues in dispute. Further, and having regard to the matters raised above and the procedural and pleading history, the observations of Sifris J in MacFadyen[132] again resonate and I have concluded that TeleChoice should not be granted a further opportunity to seek to re-craft the Fourth FASOC to include the inducing breach of contract claims and allegations. That being so, to the extent that this would leave any isolated or overhanging allegations from the Third FASOC regarding inducing breach of contract allegations and claims, they should be struck out if they are not already captured by the Strike Out Orders made following the 2021 Application.

332 TeleChoice will not be granted leave to include the Inducing Breach Claims and allegations in the Fourth FASOC.

333 I move now to the last of the contentious amendments, being the allegations relating to what was described by TeleChoice as the Wrongful Payments Claim.

Part H: Paragraphs 150A-150M - Underpaid Commission Claims

334 Paragraphs 150A to 150M seek to introduce a breach of contract claim for underpaid monthly 'airtime commission' over the five-year term of the (Optus) Final Dealer Appointment (Underpaid Commission Claims). The loss and damage is said to be the difference between the amount which ought to have been paid to TeleChoice by the Optus Entities and the amount that was actually paid. In the particulars to paragraph 150M, TeleChoice presently estimates this loss to be $12,639,484. This amount is said to be derived from Annexure H to the Fourth FASOC (referred to in paragraphs 150L and 150J), which in turn was said to be derived from a 'commission analysis' document exhibited to Ms Seifen's 13 November 2020 affidavit (Commission Document).[133]

Part H.1: Optus Entities' position and submissions - Underpaid Commission Claims

335 The Optus Entities submitted that the claims the subject of these allegations are based on no more than suspicion or speculation, lack a proper basis, have no prospect of success, and are defective in form. It was further submitted that to allow the claims to proceed at this point would prejudice the Optus Entities in their defence given case management considerations and the extent and nature of the tasks that would be involved in reviewing all relevant airtime commission payments over a five-year period - and in circumstances where the relevant commission systems have been de-commissioned.

336 The Optus Entities also submitted that the claims are clearly statute barred to the extent that breaches are alleged to have occurred prior to December 2011, noting that the proceeding was commenced on 17 December 2017 and that Annexure H and the Commission Document show that the underpayment claims relate to the period April 2008 to March 2013.

(a) The calculations in the Commission Document do not and are not capable of establishing that commission was underpaid and amount to nothing more than a hypothetical inapposite calculation based on a constructed or artificial 'rolling average' of airtime commission for about a six-month period from the commencement of the Final Dealer Appointment to September 2008 only.

(b) Calculating the claim over the five-year period by reference to an artificially constructed average airtime commission derived from the first six months was misconceived and underscored that the claim was both speculative and without a proper basis.

(c) The evidence of Mr Wong relied upon by TeleChoice regarding some limited errors in payment summaries about customer count did not provide a basis or any evidentiary support for the existence of a proper basis for claims of the kind sought to be made. Further, Mr Wong's evidence did not support the existence of an error in Optus's commission systems more broadly, and did not affect the accuracy of the commissions paid. Reference was also made to his evidence that the identified customer count errors in a manually compiled part of the report did not cover the period after October 2008, which was what nearly all of TeleChoice's claims relate to.

(d) Ms Seifen's explanation about the reasons for the delay and timing of the claim does not withstand scrutiny. Further, it was submitted that TeleChoice had been notified of, and was aware of, the errors in payment summaries prior to the receipt of Mr Wong's third affidavit. This was said to be supported by, among other things, Ms Seifen raising the errors in her affidavit, Mr Wong's third affidavit being in response to Ms Seifen raising the issue, and information sent to dealers by the Optus Entities at the time.

(e) Given the five-year period over which the claims are sought to be made, the discovery and related tasks will be enormous and effectively require an audit of all the relevant payments over that period for all airtime commission and discovery of a large amount of historical documents. This task, so it was submitted, may not be possible and is even more significant given that: the relevant systems have been de-commissioned in the way explained by Mr James, only two current Optus employees have any relevant expertise, and no operations manuals or guidelines exist. It was submitted that case management, CP Act, Aon and risk of prejudice considerations are plainly engaged and militate strongly against the grant of leave to amend.

Part H.2: TeleChoice's position and submissions - Underpaid Commission Claims

338 TeleChoice submitted that the Underpaid Commission Claims are straightforward. It said that Optus miscalculated the amounts it was contractually obliged to pay TeleChoice and that it is seeking leave to bring on a breach of contract claim for the underpayments of airtime commission over the term of the Final Dealer Appointment.

339 TeleChoice stated that it had undertaken a simple calculation that multiplied its service count for each month by $5.82, which it submitted is the average air time per customer paid to TeleChoice during the approximately six-month period from the start of the Final Dealer Appointment when Optus reported that average figure to TeleChoice. It submitted that by 'using that simple calculation and applying it to the service count, the amount of commission which could have been expected to be paid by Optus to TeleChoice during the terms of the Final Dealer Appointment is approximately $128 million [when] [i]n fact, Optus only paid commissions during that period of approximately $115 million.' That calculation was said to be derived through the Commission Document, with the outcomes said to be as reflected in Annexure H to the Fourth FASOC.

340 TeleChoice submitted that it sues Optus for the 'gap' of approximately $12.6 million, being the amount that Optus should have paid under the Final Dealer Appointment but did not.

341 As to timing it was submitted that the claims were first conceived and formulated as a result of an affidavit of Mr Wong dated 6 November 2020 in which it was revealed that the Optus Entities' payment summary documents provided monthly were manually created not automatically generated, and that the payment summaries contained errors, including errors which relate to the amount of commission recorded in the payment summaries.

342 In response to the opposition of the Optus Entities, in substance TeleChoice submitted as follows:

(a) TeleChoice's claim is that Optus breached clause 11.2 of the 2008 Master Dealer Agreement and that, 'having not had access to Optus commission systems, [it] has calculated an approximate figure ... which it should have been paid but is materially different to the amount it was paid'. Notwithstanding the terms of paragraphs 150A to 150M of the Fourth FASOC, it was submitted that it is not contended that Annexure H contains the precise figure that should have been paid and that the Optus Entities' objection as to the form of the claim should fall away on that basis.

(b) TeleChoice denied that the claims lack a proper basis. It submitted further that, despite an awareness of the application to introduce this claim, the Optus Entities had not sought to put on evidence of a reconciliation or audit of the commission figures paid over the five years so as to enable the court to conclude that the claim had no reasonable prospect of success or lacked a proper basis.

(c) The newsletters referred to by the Optus Entities notifying of the problems with 'customer count' reporting that were issued to all dealers many years ago did not provide a sound basis for concluding that TeleChoice was on notice of the error identified in Mr Wong's affidavit - submitting also that the newsletters were silent as to the airtime issue.

(d) Given the above, there is a proper basis for the wrongful payment claims and the assertion to the contrary ought not to be accepted.

(e) Case management, CP Act and Aon considerations were not relevantly engaged. Although it was said that the systems have been de-commissioned, lack operation manuals and that there are only two people who can assist, TeleChoice submitted that the evidence does not establish that the systems cannot be re-commissioned - or give any insight as to whether any attempts to do so have been made.

Part H.3: Consideration and disposition - Underpaid Commission Claims

343 I have concluded that TeleChoice should not be granted leave to include these new Underpaid Commission Claims in respect of alleged underpaid airtime commission set out in paragraphs 150A to 150M of the Fourth FASOC. This is because on the material before the court on this application: TeleChoice has not established that there is a proper basis for these claims; the Underpaid Commission Claims are bad in form; case management, risk of prejudice, CP Act, and Aon considerations militate against the grant of leave to amend; and insofar as the claims relate to monthly airtime commission payments required to be paid prior to 15 December 2011 they have no real prospect of success because they are statute barred in any event. These matters are addressed further below after first further outlining the relevant allegations in paragraphs 150A to 150M.

344 In paragraph 150A it is alleged, among other things, that within 31 days after the end of each month the Optus Entities were required to provide TeleChoice with reports setting out various matters and, pursuant to clause 11.2 of the 2008 Master Dealer Agreement, at the same time pay TeleChoice commission calculated in accordance with the provisions of the 'relevant Schedules or as notified by Optus from time to time'.

345 It is alleged in paragraphs 150B and 150C that during the term of the Final Dealer Appointment the Optus Entities provided monthly payment summaries to TeleChoice and paid commission to TeleChoice in the amounts set out in the payment summaries.

346 In paragraph 150D it is alleged that in the affidavit of Mr Wong dated 6 November 2020 the Optus Entities acknowledged that the payment summaries were manually created not automatically generated from the commission systems and 'contain errors'. The particulars refer to paragraphs 18 to 28 of Mr Wong's affidavit.

in the premises, TeleChoice has reason to believe that the amounts it was paid as recorded in the payment summaries did not reflect the amounts which it was entitled to be paid as calculated by the Optus commissions systems.[134]

348 It is alleged in paragraph 150G that the Optus Entities provided TeleChoice with 'generic reports' setting out, relevantly, the number of services gained and lost and from which it was possible to determine TeleChoice's service count for the relevant month. In paragraph 150H it is alleged that during the term of the Final Dealer Appointment TeleChoice's service count changed each month in the manner reflected in Annexure G to the Fourth FASOC, which is defined as 'the Correct Service Count'.

349 In paragraph 150I it is alleged that during the five-year term of the Final Dealer Appointment Optus paid average airtime commission per customer at the amounts particularised in the column entitled 'Average Airtime Commission' in Annexure H to the Fourth FASOC. Annexure H does not have a column with that heading in either Part A or Part B of that Annexure. It appears that the reference is intended to be a reference to the column headed 'Airtime commission paid' in Part B of Annexure H.

During the term of the Final Dealer Appointment the airtime commission which ought to have been paid by the Optus Entities to TeleChoice in respect of the Correct Service Count was approximately $128,143,151.

351 The particulars to paragraph 150J state that the figure is calculated on the basis set out in Annexure H. A review of Annexure H reveals that there is an entry for each month from April 2008 until March 2013, being the entire five-year period of the Final Dealer Appointment. A dollar amount is stated for each month and is recorded in the column headed 'Airtime total'. That is, there is a line item of total airtime commission that it is said should have been paid by the Optus Entities to TeleChoice for each month. The total of the airtime commission that it is said should have been paid is recorded in Part A of Annexure H as $128,143,151 (compared to the $115,503,666 that it is alleged was paid as is recorded in Part B of Annexure H).

352 In Part A of Annexure H the explanatory notes record the following explanation of the calculation of the amounts recorded for each month in the column headed 'ARPU' in Part A of Annexure H. Those notes were in the following terms:

Explanation of calculation of ARPU

1. Between April and September 2008, Optus reported to TeleChoice the amount of airtime commission paid. The ARPU figures for these months are the reported airtime commission divided by the corrected service count.

2. For the months after September 2008, the ARPU figures are the rolling average of the ARPU figures for the preceding six months.

353 In paragraph 150K it is alleged that, 'in fact, during the term of the Final Dealer Appointment the Optus Entities paid airtime commission to TeleChoice of approximately $115,503,666. These payments are recorded in Part B of Annexure H in a table that has a line item for each of the months for the five-year period of the Final Dealer Appointment from April 2008 until March 2013 - and in which the amount of airtime commission paid for each month is recorded. The total airtime commission of $115,503,666 paid over the five years is recorded at the bottom of that table in Part B of Annexure H.

354 In paragraph 150L it is alleged that 'in the premises, by their failure to pay the amount alleged in paragraph 150J above, [being $128,143,151] the Optus Entities breached the Final Dealer Appointment'. The particulars record that the failure to pay the amount alleged 'constituted a breach of clause 11.2 of the 2008 Master Dealer Agreement'.

355 Finally, TeleChoice alleges in paragraph 150M that it has suffered loss and damage by reason of the Optus Entities' breach. The particulars to that paragraph are in the following terms:

TeleChoice's loss and damage is the difference between the amount which ought to have been paid in respect of the Correct Service Count, and the amount that was actually paid by Optus. TeleChoice presently estimates that difference to be $12,639,484.

Further particulars may be provided following discovery.

356 As a review of Parts A and B of Annexure H reveal, TeleChoice contends that the airtime commission paid in every month of the five-year period to TeleChoice by the Optus Entities was incorrect. It is apparent from Annexure H that in many months it is said to have been less than that which should have been paid and in the others it is said that the commission is more than it should have been paid. This results in the alleged shortfall of $12,639,484 to which I have referred (Claimed Underpayment Amount).

357 I return now to my reasons for concluding that leave to amend the Fourth FASOC to include the Underpaid Commission Claims should be refused.

358 I accept the Optus Entities' submissions that the Underpaid Commission Claims are speculative and that it has not been established that they have a proper basis. This is sufficient reason of itself to refuse the grant of leave to amend the Fourth FASOC to include these claims. In reaching this conclusion I have had regard to the evidence before the court including, in particular, the affidavit evidence of Ms Seifen regarding payment summaries, commission payments, the Commission Document and related matters, and the affidavit evidence of Mr Wong on these and related matters.[135] I have also had regard to the written and extended oral submissions regarding the Commission Document, including the helpful joint 'Explanation of the Line Items' document (Line Item Explanation) provided to the court subsequent to the hearing on 15 March 2022, which for ease of reference has been reproduced as Attachment 3 to these reasons.[136]

359 Whilst aspects of the Commission Document, the payment summaries, and the evidence and submissions relating to them involved some complexity and have required some extended attention, that does not relieve or diminish in any way the responsibility of the court to be satisfied that TeleChoice has established that it has a proper basis for the Underpaid Commission Claims that it now seeks to bring at this stage of the proceeding. As I have said, having considered the evidence and the submissions I am not persuaded that TeleChoice has established on the material before the court that there is a proper basis for the Underpaid Commission Claims and I accept that the Underpaid Commission Claims and allegations are speculative in nature.

360 The evidence showed, and it was common ground, that the claim for the Underpayment Amount rests upon and is derived from the calculations in the Commission Document. I accept the Optus Entities' submission that the Commission Document reveals that the claims are speculative and that it does not establish a proper basis for contending that the commission amounts paid in each of the 60 months of the five-year term of the Final Dealer Appointment were incorrectly calculated as alleged in paragraphs 150A to 150M, Annexure H or the Commission Document. I elaborate below after first touching upon some matters about the Commission Document

361 As was apparent from the evidence and the Line Item Explanation:

(a) the amount of commission said by TeleChoice to have been payable by the Optus Entities in each of the 60 months has been calculated by multiplying a reconstructed opening customer count number for each month (also referred to as service in operation or SIO)[137] by a (reconstructed) calculation of the average amount of airtime commission payable per SIO (ie, customer) for that month (referred to in the Commission Document as 'Airtime per SIO').[138]

(b) The amount of airtime commission per SIO said to be payable in each month of the five-year period has been calculated (in line 29 of the Commission Document) as follows:

(i) for the months of April 2008 to September 2008, by taking the total amount of airtime commission paid by the Optus Entities for each of those months (shown in line 3 of the Commission Document) and, for each month, dividing that amount by TeleChoice's reconstructed opening customer count (SIO) base (shown in line 22 of the Commission Document); and

(ii) for each of the 54 remaining months (October 2008 to March 2013 inclusive), by taking what was described as a rolling average of the airtime commission per SIO as recorded in line 29 for the previous six months as shown in that line. For example, for the month November 2008, the airtime commission amount per SIO figure in line 29 is the average of the commission amount per SIO figures for the previous six months, namely May to October 2008. For the month of December 2008 the airtime commission amount per SIO in line 29 is the average of the monthly commission amounts per SIO for the months of June to November 2008.[139]

362 As can be seen from line 29 of the Commission Document, this 'rolling average' approach essentially results in the monthly airtime commission amount per SIO in line 29 varying little in each of the 54 months from October 2008 to March 2013, and essentially becoming a constant (or close to it) from about March 2009. That the calculations were carried out in this way in the Commission Document was not controversial, as was confirmed by the Line Item Explanation Document.

363 The evidence of Mr Wong, who was the Optus Entities' person responsible for the management of the commission payment systems from 2010, addressed (among other things) the Optus commission systems, how commission was generated automatically, and how it could not be calculated by reference to what was described by the Optus Entities as a hypothetical inapposite calculation based on an artificial so-called 'rolling average' of monthly airtime commission per SIO derived from a reconstructed amount for the first six months of the Final Dealer Appointment.

364 Mr Wong's evidence was also to the effect that any 'customer count' account (or other) issues or errors in the payment summaries for April 2008 to September 2008 addressed by Ms Seifen and Mr Wong in their evidence did not mean that there were errors in the calculation of the automated commission systems or in the commission paid, and that none of the matters identified affected the total of the airtime commission payments payable and paid to TeleChoice for those months. But, as I have said, even if Mr Wong's evidence is put to one side, the conclusion reached regarding the absence of a proper basis and the claims being speculative does not change.

365 Importantly, it was (understandably) ultimately not contended by TeleChoice at the hearing that the manner in which the commission was or was required to be calculated by the Optus Entities under the terms of the Final Dealer Appointment or by the Optus commission systems was by reference to the methodology, calculations or approach as had been adopted in the Commission Document. The evidence also revealed, and it appeared to be common ground, that the Optus commission systems automatically calculated airtime commission payable per month at a rate of 9% of commissionable airtime.[140] That said, my conclusion that leave should not be granted does not change even if it was not common ground, or the systems did not calculate commission automatically.

366 It is also to be remembered in this context that the allegations regarding the alleged incorrect calculation of commission do not relate only to the establishment or quantum of the alleged loss and damage claimed.[141] It is in substance a central and primary allegation of the Underpaid Commission Claims that the Optus Entities breached the terms of the Final Dealer Appointment by miscalculating and not paying the correct commission payable in each month, with the basis for that allegation said to be revealed by the calculations and approach as reflected in the Commission Document (and the surrounding evidence). See, for example, paragraph 150L of the Fourth FASOC.

367 I accept the Optus Entities' submissions that the Underpaid Commission Claims as framed in paragraphs 150A to 150M and Annexure H have been shown to be based upon the Commission Document and that the calculations and approach reflected in that document reveal that it is a hypothetical reconstruction based upon commission calculation assumptions (and methodology) of TeleChoice that has not even arguably been shown to be the basis upon which commission was required to be calculated under any of the terms of the Final Dealer Appointment. A key feature or assumption of this methodology and resulting calculations is the rolling average airtime per SIO that I have earlier referred to and which was explained in the Line Item Explanation. It was not contended that commission was required by the terms of the Final Dealer Appointment to be calculated or paid in this way, or even that it was permissible to do so. Further, no allegations by way of material fact or otherwise have been pleaded that reveal how, or the basis upon which, the terms of the Final Dealer Appointment or the 'relevant Schedules' or Optus notifications would or might require or permit airtime commission to be calculated in this way.

368 The above conclusions are comfortably reached having regard only to the evidence of Ms Seifen (including the terms of the Commission Document, paragraphs 150A to 150M, Annexure H, and the Line Item Explanation) and the submissions of TeleChoice. Whilst the position is reinforced by the evidence of Mr Wong regarding the payment summaries and the (earlier version of) the Commission Document, it is not necessary to have resort to this evidence to arrive at these conclusions.

369 Viewed fairly and as a whole, what in substance TeleChoice's evidence and pleading demonstrated is that there is a real concern or suspicion on the part of Ms Seifen for TeleChoice that, because of the customer count issues (and related issues) in the payment summaries for the first six months of the five-year term of the Final Dealer Appointment that she referred to in her evidence, the Optus Entities did not or may not have correctly calculated the commission payable to TeleChoice each month. However, that is different to having a proper basis for alleging that, in fact, the Optus Entities miscalculated the commission payable every month in the way that has been alleged by reference to the Commission Document - again noting that it was not ultimately contended by TeleChoice that airtime commission payable to TeleChoice under the Final Dealer Appointment was required to be calculated by the method and approach adopted in the Commission Document and transposed into the Underpaid Commission Claims and allegations.[142] The Commission Document and Ms Seifen's evidence in relation to it (and related matters) do not establish the existence of a proper basis for the Underpaid Commission Claims as framed in paragraphs 150A to 150M of the Fourth FASOC. Whilst the hypothetical methodology and assumptions adopted in the Commission Document, and the calculations that flow from their application, can be seen to be the basis of TeleChoice's stated belief or concern that commission calculations were not or may not have been correctly calculated, that is not the same as the material establishing a proper basis for the Underpaid Commission Claims as framed in the Fourth FASOC.

370 The matters I have referred to above result in me being satisfied that on the material before the court TeleChoice has not established a proper basis for the Underpaid Commission Claims, and that as pleaded the claims are speculative in nature. There are additional matters that sit comfortably with and support these conclusions, although the result does not change if they are put to one side. Briefly, they are as follows:

371 First, the material fact alleged in paragraph 150E is consistent with the claims being speculative. It will be recalled that it is there alleged that 'in the premises' TeleChoice has 'reason to believe'[143] that the amounts it was paid as recorded in the payment summaries did not reflect the amounts which it was entitled to be paid as calculated by the Optus commission systems. In the circumstances described above, this does not present as merely a matter of language.

372 Second, although it is alleged that the Optus Entities' failure to pay the Claimed Underpayment Amount (which is calculated by reference to the Commission Document) breached the Final Dealer Appointment, it was effectively acknowledged in paragraph 92 of TeleChoice's written submission (and during the hearing) that it is not the airtime commission per SIO calculations in the Commission Document (or its related methodology for calculating the same by reference to a rolling average figure) that is to be, or can be, relied upon in making these claims - which again underscores the issue. Further the use of the word 'approximately' in the pleading and its reference in submissions does not assist TeleChoice in this context. The speculative nature of the claims is further underscored by TeleChoice's reference in its submissions to it not having had access to 'Optus commission systems' and the reference in paragraph 150M of the pleading to what it 'presently estimates' the position is and that particulars are to be provided after discovery.

373 Third, having regard to the above, and looked at in substance, it is in my view apparent that what TeleChoice is really seeking to do is to obtain access to the Optus Entities' commission systems and documents so as to review the entire five-year period to establish what, if any claims, it considers there is a proper basis to pursue in relation to the calculation of commission over the five-year period of the Final Dealer Appointment. In effect, to gather the sort of information that might be sought to be obtained on an application for preliminary or non-party discovery. This underscores the speculative nature of the Underpaid Commission Claims at this point, noting also that it was not suggested that any attempt had been made during the many past years to utilise other avenues such as preliminary discovery to explore the position further. Plainly enough, the discovery process in the proceeding is not an appropriate substitute process that can be used for that purpose.

374 I add that I am not finding that TeleChoice's expressed concern about the Optus Entities' commission systems, or its alleged 'reason to believe' that they may not have been accurate, are not genuinely held positions. This was not a matter agitated before me. Further, Ms Seifen expressly referred to such concerns in her affidavit material and in paragraph 58 of her witness statement Ms Seifen also states that from at least about June 2013 she '... remained concerned about the fact that Optus' [commission] systems may contain mistakes ...'. However, the existence or expression of such concern and belief is not sufficient to establish a proper basis for the pleaded Underpaid Commission Claims and allegations now sought to be made.

375 I do not consider there to be any material force in TeleChoice's submission that its position regarding the establishment of a proper basis for the Underpaid Commission Claims is supported because the Optus Entities did not on this application put on any evidence of a reconciliation or audit of the monthly commission amounts paid over the five-year term of the Final Dealer Appointment. It is self-evident that undertaking such a task would be time consuming, difficult and expensive, as the evidence also showed. Further, the Optus Entities relied upon shorter form evidence from Mr Wong to the effect that none of the errors and issues in the manually created payment summaries over the first six months affected the commission payments. In any event, even weighing this submission in the balance and assuming a more limited exercise would have been possible, it does not detract from the essential reasoning above for concluding that, as framed, the Underpaid Commission Claims are speculative and have not been shown to have a proper basis.

376 As I have said, I accept the Optus Entities' submissions that, on the material before me on this application, the Underpaid Commission Claims present as speculative and that TeleChoice has not established that it has a proper basis for the claims as framed. This is sufficient reason of itself to refuse leave to amend to include them in the Fourth FASOC. As a result, it is not strictly necessary to address the other matters raised, but given the submissions made by the parties, it is convenient that I state briefly below my conclusions regarding the form of the pleading, case management and prejudice related considerations, and the contention that any claims in respect of monthly commission payable before 15 December 2011 have no real prospect of success because they are statute barred.

377 I accept the Optus Entities' submission that, as currently framed, the Underpaid Commission Claims are bad in form and that this is another reason why leave to amend to include the claims as pleaded should be refused. It is sufficient to mention the following matters.

378 Although it is alleged in paragraph 150A that the Optus Entities are required to pay monthly commission '... in accordance with the provisions of the relevant Schedules or as notified by Optus from time to time ...',[144] no attempt is made by way of material facts or particulars to identify the term or terms of one or more of the 'relevant Schedules' (or any Optus notification if that is being relied upon), or other basis, that it is said gave rise to the obligation to pay commission in the manner calculated and addressed in paragraphs 150A to 150M, Annexure H or the Commission Document.[145] As a result, in their current form the Underpaid Commission Claims are embarrassing because they do not identify or give sufficient notice of the basis upon which it is said that not calculating or paying commission in the manner addressed in the said documents is or can be a breach of the Final Dealer Appointment. The result is that, as framed, the Underpaid Commission Claims do not give the Optus Entities or the court sufficient notice of the claim that is required to be met in this regard.

379 Although this defect or feature might in part be explained by TeleChoice not in the end submitting that airtime commission was in fact required by the terms of the Final Dealer Appointment to be calculated in the manner addressed in Annexure H and the Commission Document, this does not assist TeleChoice's position in this context but underscores the difficulty. It also sits in some tension with the allegations made in paragraph 150L that 'in the premises', by their failure to pay the amount alleged in paragraph 150J above, the Optus Entities breached the Final Dealer Appointment.

380 Next, neither paragraphs 150A to 150M nor Annexure H give sufficient insight into the calculation of the amount of $128,143,151 in Part A of Annexure A, being the sum of the airtime commission totals in the fourth column headed 'Airtime total'. For example, note 1 in Part A of Annexure H states that the 'ARPU' figures for each month[146] (which appear in the third column of Part A of Annexure H) are the reported airtime commission divided by the corrected service count. However, it is readily apparent from simple arithmetic that dividing the airtime total in the third column of Part A of Annexure A for any month by the alleged corrected service count in the second column (for the same month) does not yield any of the figures in the ARPU column, or anything like them. In addition, the references to the 'reported airtime commission' figures are opaque at best. The Optus Entities are alleged in the pleading to have been the party who reported airtime commission figures, but a review of Part B of Annexure H regarding the airtime commission figures actually reported and paid by the Optus Entities are different to the airtime commission figures in the fourth column of Part A of Annexure H that are said to have been 'reported'. The upshot is that this aspect of the calculations is embarrassing and does not give sufficient notice of the claim to be met because as framed they are not capable of being sufficiently understood, noting also that there appears to be tension between the allegations given the reported figures in Part B of Annexure H.

381 A further example of a defect in form results from note 2 of the explanation of the ARPU calculation column in Part A of Annexure H. The reference to the ARPU figures after September 2008 being 'the rolling average' of the ARPU figures for the preceding six months is illusory, which in part is as a result of not articulating in the pleading the basis upon which it is said that commission is to be calculated by reference to such a 'rolling average' (whatever be the meaning of 'rolling average'). I note further that although the monthly ARPU figures in Part A of Annexure H look to correspond with the monthly figures in line 30 of the Commission Document that was in evidence, paragraph 11 of the Line Item Explanation Document, which explains how the ARPU figures were arrived at, says something different to what appears in note 2 to Annexure H. That is, it says that the figures in line 30 (and transposed into Annexure H) were calculated by dividing the figure in line 29 of the Commission Document by 0.09 to reflect the 9% airtime commission. Again, the result is that the particulars and allegations are confusing and embarrassing because it is not sufficiently possible to understand the calculations or their basis. The stage at which these claims are sought to be introduced is also not to be forgotten in this context.

382 A fourth example of the proposed pleading being defective in form is the generalised allegation of material fact regarding TeleChoice's alleged 'reason to believe' that the amounts recorded in the payment summaries did not reflect the amounts to which it was entitled. I refer in this regard to the comments made above on this topic when addressing the proper basis issue, including my observation that this is not a mere matter of language.

383 A final example of defective form is the reference in paragraph 150I to the '... column entitled "Average Airtime Commission in Annexure H"'. There is no column in Annexure H with that title.[147]

384 As I have said, I accept the submission that, as framed, the Underpaid Commission Claims are bad in form and embarrassing. This is a further reason, whether taken alone or in combination with the other matters raised in this part of the reasons, for not granting leave to TeleChoice to include the Underpaid Commission Claims in the Fourth FASOC.

385 Considerations relating to case management, Aon, risk of prejudice, and the CP Act also militate against the grant of leave to amend. This is so even if it were to be assumed that, as Ms Seifen suggested in part of her evidence, TeleChoice did not consider or realise until after receipt of Mr Wong's 6 November 2020 affidavit that there might be commission issues of the kind now sought to be raised. Again, given the other matters referred to above it is not strictly necessary to address these matters, although I will do so briefly.

386 It is beyond dispute that the Underpaid Commission Claims are sought to be introduced many years after the monthly commission payments were due to be paid, the Final Dealer Appointment ended, and the proceeding was commenced. It is also apparent from the allegations, the evidence, and the terms of Annexure H, that at this belated stage in the procedural history of the pleading and the proceeding, TeleChoice is now seeking to challenge the calculation of the commission for each and every one of the 60 months of the five-year term of the Final Dealer Appointment. Having regard to the evidence of Mr James and Mr Wong, I accept that, if the claims were to proceed, the tasks associated with discovery and seeking to assess and address these new and belatedly raised issues, the decommissioned commission systems, and related matters would be substantial, time consuming, expensive, carry real risk of prejudice, and further delay materially the progress of this matter towards trial.

387 I refer also to the complexity of the inter-related decommissioned commission systems of the Optus Entities, the limited expertise remaining at Optus in relation to these systems, and the extra time that it may be inferred is likely will be required to undertake commission system review work and related tasks over the entire period of the claims. I accept that these challenges carry with them a real, although not inevitable, risk of prejudice to the Optus Entities in the effective carrying out of these tasks given the effluxion of time, the decommissioning of the various systems referred to by Mr James, the limited expertise remaining at Optus, and the absence of operations manuals or guidelines. I add that the evidence of Mr Wong that largely dealt with the dealer code issue addressed in other parts of the Fourth FASOC in connection with the legacy and other commission systems in that context gives further insight to the complexities associated with the multi-layered and partly decommissioned commission systems. That said, the result remains the same even if this dealer code related evidence is put to one side.

388 When the case management and prejudice related matters are also considered in the context of the need for TeleChoice itself to explore, understand, and seek to formulate a claim (if there is a proper basis for it) after it has had access to appropriate documents, materials and systems if that be possible, it can readily be inferred that the likely further delay, cost, expense, and risk of prejudice is real and not imagined. It is to be remembered that the airtime commission payment events in question occurred in a time period that commenced over 14 years ago and ended a little more than nine years ago.

389 Having regard to the matters referred to and the form of the claims as framed, I do not consider that it would serve well the overarching purpose to allow these new claims to go forward at this stage of the proceeding, or be consistent with the exercise of the court's duties under ss 8 and 9 of the CP Act. These are further matters which, of themselves or taken together with the other matters raised above regarding proper basis and defective form, warrant not granting TeleChoice leave to introduce the Underpaid Commission Claims at this time.

390 I should add that I accept TeleChoice's observation that there was some greater scope for some additional details from Mr James or Mr Wong in their evidence regarding the likely steps, delay, expenses and risk of prejudice involved in relation to the commission systems and claims sought to be made. However, in all of the circumstances, such evidence as there was on the topics is in my view sufficient to allow me comfortably to reach the conclusions that I have reached in connection with case management, Aon, the CP Act, and risk of prejudice considerations.

391 In concluding on this topic I note for completeness that, although I have proceeded on the assumption that TeleChoice did not consider or realise until after 6 November 2020 that there might be commission issues of the kind now sought to be raised, there was at least some tension in the evidence of Ms Seifen regarding these matters. For example, Ms Seifen's evidence revealed that in 2008 and 2009 she had had communications and discussions with the Optus Entities regarding the non-reporting of customer counts and the anomalies in the data. Further, in paragraph 58 of her witness statement Ms Seifen stated that from about June 2013 she remained concerned about the fact that the Optus commission systems may contain mistakes. In addition, in her affidavit of 18 September 2020, Ms Seifen addressed the payment summaries and the earlier version of the Commission Document. In paragraph 39 of that affidavit Ms Seifen deposed that as a result of the matters she referred to, '... TeleChoice was concerned about the accuracy and reliability of Optus's commission systems'. This concern expressed on 18 September 2020 self-evidently preceded the filing and service of the affidavit of Mr Wong of 6 November 2020. That said, given the conclusions I have reached above, it is neither necessary nor desirable to seek at this point to resolve any tensions in the evidence regarding these matters of timing.

392 I turn now to the last topic to be addressed, namely, the Optus Entities' submission that insofar as the Underpaid Commission Claims related to monthly airtime commission payments that were required to be paid prior to 15 December 2011, they are statute barred by reason of the operation of s 5(1)(a) of the Limitation of Actions Act 1958 (Vic) (Limitation Act).

393 The proceeding was commenced on 15 December 2017, which was many years after the end of the Final Dealer Appointment. There is force in the Optus Entities' contention that the airtime commission claims relating to alleged breaches of commission payment obligations in respect of monthly airtime commission payments required to be paid during the period April 2008 to 14 December 2011 have no real prospect of success because they would be statute barred by reason of the operation of s 5(1)(a) of the Limitation Act.

394 Section 5(1)(a) of the Limitation Act provides for a six-year limitation period for actions founded on a 'simple contract', with the six-year period commencing from the date on which the cause of action accrued.[148] It was not suggested that the 2008 Master Dealer Agreement[149] was anything other than a simple contract, which was unsurprising given the terms of the agreement and its execution clause. It is well accepted that a cause of action for breach of contract accrues at the time of the breach. It is also well accepted that, where there are separate and distinct payment obligations under a contract and the required times for payment are different, generally speaking the new cause of action in respect of each payment will accrue at the time each distinct payment obligation is breached.[150] That is the case here with the monthly payment obligations under the Final Dealer Appointment, and it was not contended otherwise by the parties.

395 That being so, any breach of contract claims for monthly airtime commission payments that were required to be paid by the Optus Entities to TeleChoice pursuant to clause 11.2 of the 2008 Master Dealer Agreement (or otherwise) prior to 15 December 2011 involve breach of contract causes of action that accrued monthly at the time of each payment obligation breach. In each case the causes of action for these monthly breaches of contractual payment obligations accrued more than six years before the proceeding was commenced. It was also plain that the limitation point is a defence proposed to be taken and pleaded by the Optus Entities if leave to include the Underpaid Commission Claims in the Fourth FASOC were to be granted.

396 If the pleaded Underpaid Commission Claims were permitted to proceed, such a defence would succeed in respect of the class of claims that I have identified, namely, all claims in respect of monthly airtime commission payments that were required to be paid prior to 15 December 2011. This result would apply to all commission payments required to be paid in each of the months from April 2008 to November 2011. Had it been necessary to determine, I would have sought further submissions from the parties in relation to the airtime commission payment for the month of December 2011, and when that cause of action is said to have accrued. However, given the other conclusions I have reached in this section of the reasons above it is not necessary to do so.

397 Having regard to the observations made earlier in these reasons in different contexts regarding the decisions in Wardley and related cases, it will be apparent that I consider the pleaded Underpaid Commission Claims to be in the category of the 'clearest of cases' in the limitation of actions context, and that it is not necessary to determine any controversial factual matters in order to reach a firm and comfortable view on the limitation issue at this point. It was not expressly submitted otherwise by either party, although it would have made no difference if it had been. It was also common ground that monthly payments were due and required to be paid within the 31-day period referred to in clause 11.2 of the 2008 Master Dealer Agreement.[151]

398 I add two further matters for completeness. First, it was not suggested or contended by TeleChoice that there was any basis for extending the limitation period, and there was no submission that s 27 (or any other section) of the Limitation Act was or could be engaged so as to postpone the commencement of the running of time for limitation of actions purposes. On the material before me this was an understandable position for counsel for TeleChoice to take, noting also that limited attention in TeleChoice's submissions was directed to the limitation issues in the particular context of the Underpaid Commission Claims in any event.[152]

399 Second, it was understandably not suggested or contended by the Optus Entities that any breach of contract claims relating to monthly airtime commission payments required to be made on or after 15 December 2011 were statute barred. I infer this was because the proceeding was commenced on 15 December 2017 and counsel for the Optus Entities were taking into account the abrogation of the rule in Weldon v Neal,[153] although this was not specifically addressed. As to the abrogation of that rule, and relevant principles and observations regarding the same, I refer generally to the observations I made on the topic in Pentridge Village.[154] It is not necessary to say anything more on this point for present purposes.

400 Given the above, even if I had considered that it was appropriate to grant TeleChoice leave to amend to include the Underpaid Commission Claims in the Fourth FASOC, such leave would not have extended to monthly airtime commission claims for payments that were required to be paid prior to 15 December 2011. This is because they would have no real prospect of success by reason of the operation of s 5(1)(a) of the Limitation Act, which it is clear the Optus Entities would rely upon if the claims proceeded.

401 TeleChoice will not be granted leave to include the Underpaid Commission Claims in the Fourth FASOC. Further, they have had more than ample opportunity to seek to formulate such claims, which to date they have been unable to do. No further opportunity should be afforded to them to re-craft the Fourth FASOC so as to include such claims. I reach this position having regard to the matters raised above, the history of the pleading and proceeding, and taking into account the overarching purpose and my duties under ss 8 and 9 of the CP Act. To permit a further opportunity to include such claims at this belated stage in the procedural history would materially impact on the advancement of this matter towards trial and would not facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

402 For the reasons stated above I have reached the conclusions set out in the Introduction and Summary above. For ease of reference, these conclusions are repeated below.

(a) TeleChoice should be given leave to amend its Misleading Revenue Representation Claim insofar as it is based upon or relates to what are now defined in paragraph 10 as the Telstra Rates.

(b) TeleChoice should not be granted leave to amend its Misleading Revenue Representation Claim insofar as it is based upon or relates to what are defined in paragraph 16(b) as the Actual Telstra Rates.

(c) TeleChoice should not be granted leave to amend its Misleading Revenue Representation Claim insofar as it seeks to introduce alleged Telstra market share related increased sales volumes referred to in paragraph 16(c) and Part C of Annexure A.

(d) TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC so as to re-introduce a misleading and deceptive conduct claim based on the so-called Actual Telstra Rates referred to in paragraph 16(b) or the alleged Telstra market share related increased sales volumes referred to in paragraph 16(c) and Part C of Annexure A.

(e) TeleChoice should be granted leave to amend its Breach of Contract Claim based on the alleged Revenue Term insofar as that claim is based or relates to the Telstra Rates. The grant of leave will be conditional upon the inclusion of clear and concise particularised allegations of material fact regarding the written, oral or implied terms of the Final Dealer Appointment that address when it is alleged that the Optus Entities were required to pay the amount the subject of the alleged Revenue Term - provided, of course, that the relevant parties and practitioners are satisfied that there is a proper basis for such allegations. Leave to amend should not be granted to include a breach of contract claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

(f) TeleChoice should be granted leave to amend its Collateral Contract Claim insofar as that claim is based on the Telstra Rates. The grant of leave will also be conditional in the way described in the preceding paragraph regarding the Breach of Contract Claim. Leave to amend should not be granted to include a collateral contract claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

(g) TeleChoice should be granted leave to amend its Estoppel Claim based upon the alleged Revenue Representation insofar as that claim is based on the Telstra Rates. The grant of leave will be conditional upon the inclusion of clear and concise particularised allegations of material fact addressing what it is alleged the Optus Entities are estopped from doing and addressing what TeleChoice alleges the Optus Entities were required to do, and when, to fulfil the Revenue Representation. Leave to amend should not be granted to include an estoppel claim based on the Actual Telstra Rates and TeleChoice should not have a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

(h) TeleChoice should be granted leave to amend its claim to include the PTF Claw Back Claims referred to in paragraphs 60C to 60H, although this leave will not extend to the inclusion of the allegations in paragraphs 60E and 60G.

(i) TeleChoice should be granted conditional leave to amend paragraph 111 in part only, namely:

(i) by making the proposed adjustment to the language of the pleaded material fact in paragraph 111 by striking through part of the existing language regarding the suffering of loss and replacing it with an allegation of material fact that: 'Further, TeleChoice suffered loss and damage as a result of the Post-Notice Conduct';

(ii) by including only Parts B and D of Annexure B (which address 'Revenue which would have been derived under the Final Dealer Appointment without the Post-Notice Conduct' calculated at the Telstra Rates (Part B) and at the rates actually paid by the Optus Entities (Part D);[155]

(iii) by supplementing the calculations in Part D of Annexure B so as to more fully and clearly articulate and set out:

(A) the calculations for arriving at the alleged revenue of $47,797,671 for the final year of the Final Dealer Appointment and the increased revenue of $9,196,294 referred to in paragraphs 22 and 23 of Part D;

(B) the calculations for arriving at a loss figure of $5,166,205 from an alleged increased revenue figure of $9,196,294; and

(iv) by supplementing the calculations in Part B of Annexure B so as to more fully and clearly articulate and set out:

(A) the calculations for arriving at the revenue figures of $72,121,335 for the final year of the (Optus) Final Dealer Appointment and the claimed increased revenue figure of $14,694,542, referred to in paragraphs 11 and 12 of Part B of Annexure B;

(B) the amount of the loss said to be attributable to the Post-Notice Conduct (as opposed to 'total loss and damage'), and how that has been calculated; and

(C) if the amount of the loss attributable to the Post-Notice Conduct is said to be less than the claimed increased revenue of $14,694,542 referred to in paragraph 11 of Part B of Annexure B, the amount of that loss, its calculations, and how it is derived from the alleged increased revenue amount.

(j) TeleChoice should not be granted leave to amend to include Parts A or C of Annexure B as particulars of the loss and damage claimed in paragraph 111 of the Fourth FASOC.

(k) TeleChoice should not be granted leave to amend its claim so as to include the Inducing Breach Claim set out in paragraphs 117 to 120I of the Fourth FASOC. Further, TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC to include a claim of this kind.

(l) TeleChoice should not be granted leave to amend its claim to include the Underpaid Commission Claims set out in paragraphs 150A to 150M of the Fourth FASOC. Further, TeleChoice should not be given a further opportunity to re-craft the Fourth FASOC to include claims of this kind.

403 The parties should confer expeditiously with a view to producing agreed orders to give effect to these reasons and further timetabling directions to advance the proceeding to trial. These orders will include orders making provision for the filing and service of a fourth further amended statement of claim in a form that is consistent with these reasons and finally disposing of the 2021 Application.[156]

404 I will hear further from the parties regarding the precise terms of the proposed orders, next steps, and the question of costs.

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 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").

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."

4. 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

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 Plaintiff 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

Plaintiff writes 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 Plaintiff seeking response in relation to scope of claim in paragraph 59 of SFASOC

Defendants write to Plaintiff 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.

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. 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 Defendants 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."

Defendants provide to the Court by email a copy of:

3. collated bundle of documents referred to in the table of pleadings iterations.

Judgment of his Honour Justice Connock in Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd & Ors [2021] VSC 310.

Plaintiff writes to Defendants in respect of appropriate orders to be made to give effect to the reasons for judgment of Justice Connock delivered on 31 May 2021, the costs of the Defendants' application, the next steps to be taken in respect of discovery to be made by Optus relating to TeleChoice's Dealer Code Claims, and the next steps to be taken in respect of further amendments to the Statement of Claim.

Defendants write to Plaintiff in reply to letter of 9 June 2021.

Defendants write to Plaintiff in relation to the issue of costs, particulars to paragraph [49], and draft proposed Fourth Further Amended Statement of Claim (PFFASOC)

Defendants write to Plaintiff requesting response to Defendants' letters of 24 June 2021 and 1 July 2001.

Plaintiff writes to Defendants providing amended schedule of particulars to paragraph 49.

Defendants write to Plaintiff asking for confirmation that draft PFFASOC will be provided that day, and if not, when it is expected that will occur.

Plaintiff writes to Defendants and advises there have been delays in finalising the PFFASOC and expects that the Plaintiff will be in a position to provide the PFFASOC on or before 12 August 2021.

Defendants write to Plaintiff stating it is not apparent why additional time is required to provide the PFFASOC and indicating that the Defendants were prepared to agree an extension of time for provision of the draft PFFASOC to 30 July 2021.

Plaintiff writes to Defendants in response to email of 26 July 2021 and advises that the Plaintiff is extremely keen to avoid another dispute arising about the form of its pleading, and to that end, it has been very carefully reviewing his Honour's Reasons, and the source material underlying its various claims, to ensure that the Defendants and the Court are placed in the best possible position to comprehend, and respond to, the claims against them.

Defendants write to Plaintiff in response to the email from the Plaintiff dated 27 July 2021, regarding Plaintiff's delay to provide the draft PFFASOC and seeking the Plaintiff's agreement to consent orders that it provide the draft PFFASOC by 12 August 2021.

Plaintiff writes to Associates to his Honour Justice Connock providing proposed consent orders.

...4. By 4:00pm on 12 August 2021, the plaintiff provide further and better particulars of paragraph 53A(b).

...7. By 4:00pm on 9 August 2021, the parties file and serve written outlines of submissions limited to 6 pages and any affidavit material on which they intend to rely in relation to the costs of and incidental to the defendant's application made by way of summons dated 31 July 2020 (as subsequently amended) and 1 March 2021.

8. By 4:00pm on 13 August 2021, the parties file and serve by way of reply any written outline of submissions limited to 3 pages and any affidavit material on which they intend to rely.

...9. By 4:00pm on 12 August 2021, the plaintiff serve on the defendants a draft proposed fourth further amended statement of claim.

10. By 4:00pm on 26 August 2021, the defendants serve on the plaintiff a document setting out any objections to the form of the proposed fourth further amended statement of claim, and the basis for those objections, or if there are no objections, notify the plaintiff of that fact and provide a copy of that correspondence to the Court.

11. By 4:00pm on 9 September 2021, the plaintiff file and serve any summons seeking leave to amend the TFASOC, an outline of written submissions in support of that summons, and any affidavit material in support of the summons upon which it intends to rely.

12. By 4:00pm on 7 October 2021, the defendants file and serve an outline of written submissions as well as any affidavit material upon which they intend to rely in opposing the plaintiff's summons.

...14. The proceeding is listed for further directions at 10:00am on 3 September 2021 before Justice Connock.

Plaintiff files and serves Submissions on Costs and Affidavit of Simon Young.

Defendants file and serve Reply Submissions on Costs.

Associates to his Honour Justice Connock write to Plaintiff requesting Plaintiff's Reply Submissions on Costs.

Plaintiff writes to Associates confirming Reply Submissions on costs to be provided on 24 August 2021.

Plaintiff files and serves Reply Submissions on Costs.

Plaintiff writes to Associates to his Honour Justice Connock seeking orders by consent for directions hearing listed for 3 September 2021 to be vacated and relisted on a date after 7 October 2021.

Associates to his Honour Justice Connock write to Plaintiff confirming the Court would retain the directions hearing listed for 3 September 2021 and will deliver costs judgement on the date.

Orders of Justice Connock on costs of the Defendants' summonses dated 31 July 2020 and 1 March 2021.

Further Orders of Justice Connock on costs of the Defendants' summonses dated 31 July 2020 and 1 March 2021.

Defendants write to Plaintiff seeking updated draft of Plaintiff's proposed pleading in response to the List of Objections.

Plaintiff writes to Defendants and advises that the next draft of the Plaintiff's proposed pleading is well advanced and expects to provide it to the Defendants on 14 September 2021.

Plaintiff serves amended PFFASOC with amendments in mark-up, and table setting out the Plaintiff's responses to the Defendants' List of Objections dated 26 August 2021.

Plaintiff serves further amended PFFASOC, with minor changes to the annexures to the PFFASOC.

Defendants write to Plaintiff and advise that save for one exception, the draft PFFASOC does not adequately address the Defendants' objections.

Conferral between senior counsel for Plaintiff and Defendants in relation to the PFFASOC.

Defendants write to Plaintiff following conferral between senior counsel stating that it appears that there is unlikely to be any material change to the parties' respective positions regarding the PFFASOC and the Defendants' objections to that document

Plaintiff files and serves Summons, Affidavit of Liliane Seifen and Submissions in support of application for leave to file PFFASOC.

Plaintiff writes to Associates to his Honour Justice Connock seeking a return date for its application for leave to file and serve PFFASOC.

Defendants write to Plaintiff seeking discovery in relation to the claims based on the 'Intended Telstra Appointment' (Further Discovery).

Plaintiff writes to Defendants in reply and states that Further Discovery will be made if leave is granted to file the PFFASOC.

Defendants write to Plaintiff requesting the Further Discovery be made by 5:00pm on 20 October 2021.

Defendants seek extension of time to file material in response to the Plaintiff's summons to 29 October 2021 (from 22 October 2021).

Associates to his Honour Justice Connock write to Defendants granting extension of time to 29 October 2021.

Plaintiff writes to Defendants in reply to letters of 5 and 15 October 2021 stating that Further Discovery would be premature and that Further Discovery would be made if leave is granted to file the PFFASOC.

Defendants file and serve affidavit of Paul John James dated 29 October 2021 and Outline of Submissions.

Plaintiff writes to Associates to his Honour Justice Connock providing proposed procedural consent orders.

Associates to his Honour Justice Connock write to Plaintiff confirming adjournment of directions hearing to 11 February 2022.

1. By 4:00pm on 10 December 2021, the plaintiff file and serve any further written submissions and affidavit material in reply which it intends to rely on in relation to its application seeking leave to amend the third further amended statement of claim made by summons dated 23 September 2021 (Plaintiff's Application).

2. By 4.00pm on 17 December 2021, the plaintiff serve on the defendants and file for the use of the judge a copy of an application book in relation to the Plaintiff's Application. The plaintiff must also provide the judge and the defendants with the application book in electronic form.

4. By 4.00pm on 22 December 2021, the parties are to each file for the use of the judge, and serve on the other party, a list of authorities and the authorities in electronic form, which should each be in PDF and in text-searchable format, with the passages relied upon highlighted in text and the relevant paragraph numbers noted on the front page of each.

5. The directions hearing listed for 19 November 2021 is adjourned to 10:00am on 11 February 2022 before Justice Connock...

Plaintiff writes to Defendants seeking consent to extension of time to file its further written submissions and affidavit material in reply to 15 December 2021

Defendants write to Plaintiff confirming consent to extension of time sought.

Plaintiff writes to Associates to his Honour Justice Connock requesting extension of time to file its further written submissions and affidavit material in reply to 15 December 2021 (from 10 December 2021).

Associates to his Honour Justice Connock write to Plaintiff granting extension of time to file its further written submissions and affidavit material in reply to 15 December 2021 (from 10 December 2021).

Plaintiff files and serves Consolidated Submissions in support of its application for leave to file the PFFASOC.

Associates to his Honour Justice Connock write to parties proposing hearing on 8 March 2022, requesting an updated procedural chronology by 1.00 pm on 4 February 2022 and confirming no further materials to be filed in relation to application without leave.

Defendants file and serve the Defendants' List of Authorities and Bundle of Authorities.

Plaintiff files and serves the Plaintiff's List of Authorities and Bundle of Authorities.

Plaintiff files and serves amended Plaintiff's Bundle of Authorities.

Joint Agreed Line Item Explanation of the Commission Document

**THE COMMISSION ANALYSIS (EXHIBIT LS-18 AT AB 1357)**1

1 Line 2 is the amount of revenue received by Optus on which airtime commission was payable. The values in line 2 were calculated as follows:

(a) for the months April 2008 to September 2008, the figures were contained in the monthly payment summaries provided by Optus to TeleChoice; and

(b) for the months after September 2008 - when the commissionable revenue figure ceased to be include in the monthly payment summaries - the figures were derived by taking the actual airtime commission paid to TeleChoice, and dividing that figure by .09 (to reflect the fact that TeleChoice received a 9% airtime commission).2

2 Line 3 is the amount of airtime commission paid by Optus to TeleChoice. The values in line 3 were taken directly from the monthly payment summaries provided by Optus to TeleChoice.

3 Line 4 is the amount of airtime commission paid by Optus to TeleChoice, per Service in Operation. The values in line 4 were taken directly from the monthly payment summaries provided by Optus to TeleChoice from April 2008 to September 2008, but not thereafter.

4 Line 5 is the amount of revenue on which airtime commission was payable by Optus to TeleChoice, on a per user basis. Each of those figures were taken directly from the monthly payment summaries provided by Optus to TeleChoice from April 2008 to October 2008, but not thereafter.

5 Line 22 is TeleChoice's calculation of the TeleChoice SIO base at the beginning of a month (that is, it is the same figure as the "Closing SIO base (reconstructed)" from the previous month (contained in line 28). The figure in line 22 represents TeleChoice's calculation of its customer base at the start of each month.

6 The basis for the calculation of the Closing SIO base (reconstructed) is set out below in respect of line 28.

7 Line 28 is TeleChoice's calculation of its SIO (i.e. customer) base at the end of a month.

8 The figure has been calculated by taking the month's reconstructed opening SIO base (line 22), adding activations and gained services (lines 23 and 26), and deducting deactivations, cancellations and lost services (lines 24, 25 and 27).3

9 Line 29 is TeleChoice's calculation of the airtime commission it received per customer for the months April 2008 to September 2008 calculated by taking the airtime commission paid by Optus (line 3) and dividing it by the reconstructed opening SIO base (line 22).

10 For the month of October2008 the figure in Line 29 is a figure calculated by taking an average of the values for the previous six months. For the months from November 2008 the figures in Line 29 are the average of the figures in Line 29 for the previous 6 months, including figures for months from October 2008 calculated as described.

11 Line 30 is TeleChoice's calculation of the amount of airtime on which commission would be payable, on a per user basis, based on calculation of the average airtime commission per SIO in Line 29. The figure has been calculated by dividing the figure in line 29 by 0.09 (to reflect the fact that TeleChoice received a 9% airtime commission).

___________________________________

1 The parties note that Ms Seifen's 18 September 2020 affidavit also contains an explanation of some elements of the Commission Analysis (see paragraph 23 at AB 946-948).

2 This explanation is inconsistent with the explanation in [20] of Ms Seifen's 18 September 2020 affidavit (which refers to the information in lines 1 to 12 being taken "directly from" the monthly payment summaries). TeleChoice advises the Court that the above explanation is the correct explanation of the source of the figures in line 2 for the period after September 2008. In other words, the actual airtime commission paid figure (line 3) was taken directly from the monthly payment summaries, but the division by 0.09 to derive the commissionable revenue figure in line 2 was - for the months after September 2008 - a calculation performed as part of the Commission Analysis.

3 The activations and deactivations figures are contained in lines 23 and 24, and are a cumulation of certain figures which were contained in the monthly payment summaries (see Ms Seifen's 18 September 2020 affidavit at [23(j)] and [23(l)]). The gained services, cancellations and lost services are contained in lines 25, 26 and 27, and were contained in the monthly payment summaries from April to September 2008, and thereafter were calculated by reference to the Cancellation Reports and Movement Reports provided by Optus to TeleChoice each month.

[1] Costs orders on the 2021 Application were made on 3 and 8 September 2021. The reasons for the costs orders were set out in Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd (No 2) [2021] VSC 547.

[2] [2021] VSC 310.

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

[4] A similar procedural chronology was annexed to the Strike Out Reasons, which has been updated to include procedural steps and events since that time.

[5] And which became Exhibit P1 on the application. It was in the same form as an earlier draft exhibited to Ms Seifen's 23 September 2021 affidavit except for further revisions to paragraphs 15(e), 120I and its Annexure B.

[6] An earlier application in respect of a claim of this character had been foreshadowed by a draft summons addressed during the 2021 Application but was not pursued at that time. See Strike Out Reasons at [10].

[7] The third column of the table has not been reproduced as it contains only the references to the relevant paragraphs of the defendants' written submission.

[8] As so defined later in these reasons.

[9] As so defined later in these reasons.

[10] As so defined later in these reasons.

[11] As so defined later in these reasons.

[12] Including relevant explanatory notes and footnotes in Annexure B.

[13] As so defined later in these reasons.

[14] Defined later in these reasons as the Commission Document.

[15] [2020] VSC 284.

[16] The inclusive definition of 'document' in rule 36.01(2) includes a pleading.

[17] [2018] VSC 772.

[18] At [31]-[34], footnotes included as in original.

[19] The relevant principles have been set out previously in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 10) [2018] VSC 439, [16]-[18]. They are repeated here for convenience.

[20] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 204-205 [69] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also ABL Nominees Pty Ltd v Mackenzie (No 2) [2014] VSCA 529, [17] (Derham AsJ).

[21] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 212 [96], 213 [98]-[99], 217 [111].

[23] Ibid, 213 [98]-[99], 214-215 [102], 217 [111]; Civil Procedure Act 2010 (Vic), s 7.

[24] Supreme Court Rules, r 1.14(1)(b).

[25] [2014] VSC 529 [17]-[22], footnotes included as in original (Derham AsJ).

[27] [1939] NSWStRp 35; (1939) 39 SR NSW 305, 310.

[28] [1995] VicRp 14; (1995) 1 VR 209, 215.

[29] Matthews v SPI Electricity Pty Ltd (Ruling No 6) [2012] VSC 70, [33].

[30] [2012] VSC 70, [34].

[31] As to the test, see Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 [29] per Warren CJ and Nettle JA (Neave JA agreeing).

[32] [2011] VSC 136.

[34] Ibid [38]. Equuscorp Pty Ltd and Sintoff Pty Ltd v Acehand Pty Ltd & Ors [2010] VSC 89, [19].

[35] [1997] HCA 1; (1997) 189 CLR 146.

[36] [1884] UKLawRpCh 91; (1884) 26 Ch D 700.

[37] ACN 074 971 109 v The National Mutual Life Association of Australasia Ltd [2010] VSC 186, [28].

[38] [2011] VSC 370.

[39] Ibid, [7], citing Aon (2009) 239 CLR 175, 217, [111]-[113].

[40] [2015] VSCA 172, footnotes included as in the original. See also the recent references to Aon and Northern Health by the Court of Appeal in Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [25]-[26] (Beach, Kaye JJA and Croucher AJA) (Billington).

[42] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16, [42].

[43] Ultra Thoroughbred [2011] VSC 370, [9].

[44] Northern Health [2015] VSCA 172, [22]. Considerations of this kind were further referred to in Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 [36]-[48] (Kyrou, Ferguson and McLeish JJA), and more recently reinforced in Billington at [25] (Beach, Kaye JJA and Croucher AJA).

[45] Northern Health [2015] VSCA 172, [22].

[46] [2014] VSC 653, [46].

[47] With whom Cole JA and Handley J agreed.

[48] [1997] NSWCA 286.

[49] At 8, Handley J and Cole JA agreeing.

[51] [2021] VSC 310. See: [16]-[22] regarding strike out applications under r 23.02 of the Rules; [23]-[28] regarding stay applications under r 23.10 of the Rules; and [29]-[34] regarding summary judgment applications under s 64 of the CP Act and Order 22 of the Rules.

[52] Which were also addressed in part in other sections of their written submissions.

[53] In part these were referred to in paragraphs 69 to 73 of the Optus Entities' written submissions.

[55] That is, formulated differently in various respects to the way that they were pleaded in the Third Amended FASOC the subject of the Strike Out Reasons.

[56] See paragraph 12 of the Fourth FASOC. The 'further dealer appointment' is a reference to what became the Final Dealer Appointment between TeleChoice and the Optus Entities. As noted earlier, any references to paragraph numbers in these reasons are references to paragraphs in the Fourth FASOC unless otherwise indicated.

[57] Although the heading for these claims appears after paragraph 11, it is apparent from the terms of the Fourth FASOC that, among others, paragraphs 9, 10, and 11 contain part of the relevant allegations.

[58] Insofar as the Revenue Representation was a representation as to a future matter, TeleChoice alleged that the Optus Entities lacked reasonable grounds to make a representation and relied upon the relevant deeming provisions of the Trade Practices Act 1972 (Cth) (TPA) up to 31 December 2010 and s 4 of the Australian Consumer Law set out in schedule two of the Competition And Consumer Act 2010 (Cth) (ACL) from 1 January 2011.

[59] To the extent that the previous formulation of the claims were dealt with in the Strike Out Reasons, this occurred primarily in paragraphs 36-75 in respect of the stay/summary judgment applications) and paragraphs 76-93.

[63] (1986) 160 CLR 1, 11 (Mason, Wilson and Dawson JJ), which in turn referred to, among others, Hoyts Pty Ltd v Spencer Ltd (1919) CLR 133, 139 and 147-8.

[64] Including the absence of the allegations in paragraphs 110 to 121 of the 13 August 2018 pleading.

[65] Particulars (ii)(c) and (iv) were referred to as examples.

[66] [1992] HCA 55; (1992) 175 CLR 514.

[67] Relying in part on Gates (1986) 160 CLR 1, 11 in the context of the misleading and deceptive conduct claim.

[68] Relying on Hart v McDonald [1910] HCA 13; (1910) 10 CLR 417 and Etna v Arif [1999] VSCA 99.

[69] [1994] VicRp 16; [1994] 1 VR 237 at 241-242.

[71] [2010] NSWCA 274; [2010] 79 NSWLR 453, [54]-[76].

[72] [2019] VSCA 236, [251]-[268].

[73] It appears that there have been about seven of these iterations, including the 'final' version of the Fourth FASOC handed up on the second day of the hearing (and provided to the Optus Entities shortly before that).

[74] Or any of the other Revised Telstra Revenue Claims.

[75] [1992] HCA 55; (1992) 175 CLR 514, 533.

[76] See, for example, Bodycorp Repairers Pty Ltd (ACN 068 589 408) v Holding Redlich [2018] VSCA 17 (Bodycorp) and D'Aquino v Trovatello [2015] VSCA 78; (2015) 47 VR 31 (D'Aquino).

[77] See Bodycorp [2018] VSCA 17, [127]-[130] Whelan, Santamaria JJA, T Forrest AJA.

[79] The same cannot be said of what are described as the Actual Telstra Rates, which are discussed later below.

[80] As opposed to the somewhat opaque and confusing defined term 'Actual Telstra Rates' first introduced in paragraph 16(b).

[81] That said, this conclusion does not preclude the making of further limited, substantive, focussed, and reasonable requests for necessary particulars in a manner that does not over-reach and is consistent with the parties' respective obligations under the CP Act.

[82] In which it is alleged that TeleChoice stated, among other things, 'TeleChoice understand 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.'

[83] TeleChoice also refers to its reliance on 'Telstra's usual practices of remunerating its dealers' in connection with the Telstra Rates in the chapeau to paragraph 10.

[84] Accepting, as I do, that it did not appear to be controversial at the hearing of this application that the Optus Entities did not in July 2007 make MRO revenue payments or something equivalent to its dealers.

[85] And also informed by the correspondence that passed between the parties at the time.

[86] See, for example, the pleading dated 13 August 2018 and the pleading of 25 November 2019.

[87] This correspondence included but was not limited to the Optus Entities' solicitor's letter of 3 November 2020 that was referred to during the hearing.

[88] [1994] HCA 4; (1994) 179 CLR 332, 353 (Mason CJ, Dawson, Toohey and Gaudron JJ). Assuming also that the other requirements addressed in Sellars and related cases are satisfied. See also, for example, the discussion in Masters Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88; (2017) 372 ALR 440, 548 [411] (Santamaria, Ferguson and Kaye JJA).

[89] As opposed to that based on the Actual Telstra Rates.

[90] Including the Third FASOC addressed in the Strike Out Reasons.

[92] See, for example, paragraph 17 and Part C of Annexure A to the Fourth FASOC.

[93] This is the total of the 'Total Revenue (ex GST)' columns on the second page of Part C of Annexure A, being page 82 of the Fourth FASOC.

[94] To March 2012 (noting that the Final Dealer Appointment was for a further year).

[95] Or if the market share related increased sales revenue allegations and claims were based on different and permissibly pleaded rates.

[96] Noting also that it is the remaining pages of Part C of Annexure A that address claimed loss in respect of alleged loss of profits (not revenue).

[97] TeleChoice's position in this context is also not advanced by the statements Mr Abdou makes in paragraph 48 (or elsewhere) of his witness statement of 23 December 2020 - or by the content of the filed witness statements of Mr Reeves and Mr Guclu.

[98] These observations do not overlook the reference to the same in parts of Annexure A.

[99] In making this observation I am also cognisant that the allegations in Part C of Annexure A largely relate to the alleged loss of profit and its quantum.

[100] With respect to the basis upon which TeleChoice claims MRO revenue would have been earned, I refer to my earlier observations regarding the MRO revenue that is alleged would have been earned as part of the claim based on the Telstra Rates.

[101] Which are addressed later in this section of the reasons below.

[102] Noting also my comments on Part C of Annexure A earlier in these reasons.

[103] Although, of course, accepting there are some differences given the different elements of the claims and sources of the limitation periods applicable.

[104] One difference is that in the particulars to paragraph 32 it is alleged to have been partly in writing and partly oral whereas the Revenue Term is alleged to have been partly in writing, partly oral and partly to be inferred or implied.

[105] And putting to one side any earlier observations regarding implied terms.

[106] [2010] NSWCA 274; [2010] 79 NSWLR 453.

[107] [2019] VSCA 236.

[108] Which will require consequential adjustments where these paragraphs are referred to. See, for example, the particulars to paragraph 60H.

[109] Whether or not evidence relating to these allegations is or may be relevant and admissible is a different question for another day should it arise.

[112] That said, it may be of assistance to include this column in the final version of the relevant annexure to the Fourth FASOC for completeness.

[113] Alone or in any combination with other matters.

[114] Although the result would not change even if that was not, or is no longer, the case.

[115] As defined in paragraph 109 of the Fourth FASOC - and claims addressed in paragraphs 109-115 earlier referred to.

[116] See the conditions in sub-paragraphs (c) and (d) below.

[117] Including relevant explanatory notes and footnotes in Annexure B.

[118] At the rates paid by the Optus Entities under the Final Dealer Appointment.

[119] At Transcript 192:28, senior counsel for the Optus Entities when addressing Parts A to D of Annexure B stated (responsibly) '... So, Parts A to C should go, in our submission. Should not be allowed. Part D could remain, but it's obviously flawed. That's the way they wish to put their case. I suppose they can attempt to do it that way ...'. However, the result would be no different if this observation of senior counsel is put to one side.

[120] As referred to in footnote 8 to Part D of Annexure B.

[121] In paragraph 23 of Part D of Annexure B.

[122] It is also to be recalled in this context that the very conduct in question is said not to have occurred until after the media release was published by the Optus Entities on 30 October 2012, when only five months of the Final Dealer Appointment remained.

[123] Noting also that leave is not to be granted in respect of allegations and claims based on the Actual Telstra Rates or the increased sales and revenue allegations derived from Telstra's increased market share.

[124] In respect of the particular figures included in Part D.

[125] Which is the defined term in the Third FASOC defining TeleChoice's 'franchise agreements with its franchisees'.

[126] [2020] SASC 161, [143] (Doyle J). Also referred to in the Strike Out Reasons.

[127] (2012) 207 FCR 220; [2012] FCAFC 156, [88]-[89] and the cases there cited. See also Gordon Bruce Donaldson v Natural Springs Australia Ltd and Ors [2015] FCA 498, [206] (Beach J). See the Strike Out Reasons at [182].

[128] See paragraph 120I of the Fourth FASOC.

[129] Including the witness statements filed to date.

[130] [2020] SASC 161, [143] (Doyle J).

[131] Adelaide Brighton Cement, ibid.

[132] [2014] VSC 653, [46].

[133] Being Exhibit 'LS18', which was a revised version of a similar document comprising Exhibit 'LS12' to Ms Seifen's affidavit of 18 September 2020.

[135] Although the result would not change even if the evidence of Mr Wong is put to one side.

[136] Which of course needs to be considered together with the content of the Commission Document and the evidence of Ms Seifen and Mr Wong, which I have done. As I have said, the Commission Document was Exhibit 'LS 18' to Ms Seifen's affidavit of 13 November 2020. The Commission Document superseded an earlier version comprising Exhibit 'LS 12' to Ms Seifen's affidavit of 18 September 2020.

[137] See line 22 of the Commission Document. For completeness I add that I have proceeded on the assumption that there is a proper basis for making the revised customer count allegations.

[138] See line 29 of the Commission Document.

[139] And so on for the balance of the five-year term, as is reflected in line 29 of the Commission Document.

[140] Putting to one side the contentions and claims regarding the Revised Telstra Revenue Claims.

[141] Noting also that although the Underpaid Commission Claims appear to be debt claims, it is not clear whether the claims are intended to be framed by reference to debt claims as well as loss and damage, or just the latter. For present purposes it is not necessary to further explore this issue.

[142] I add for completeness that in reaching the conclusions that I have regarding the Underpaid Commission Claims, I have assumed in TeleChoice's favour that there is a proper basis for contending that there were customer count and other issues or errors in the payment summaries sent by the Optus Entities to TeleChoice for the months of April to September 2008, and the anomaly in line 5 of the Commission Document for October 2008 referred to by Ms Seifen in her affidavits. I note also that customer count totals were not provided in payment summaries after that time, although total commission paid each month was, together with additional information in payment summaries and information in what were described as 'Generic Reports' from which customer count details could be derived.

[144] Noting also that reference is here made to clause 11.2 of the 2008 Master Dealer Agreement.

[145] This does not ignore the reference to clause 11.2 of the 2008 Master Dealer Agreement, but this does not address the issue, noting also the detailed terms of the various schedules.

[146] ARPU was said by the parties to mean average commissionable revenue per user.

[147] Although I infer that this is more of a drafting infelicity than a substantive issue.

[148] See, for example, the discussion in Law of Limitations, 2016, GE Dal Pont, [5.11]-[5.32] and the cases there cited.

[149] Or any other aspect of the Final Dealer Appointment.

[151] The position with the Revised Telstra Revenue Claims is different, as addressed in Part D of these reasons.

[152] Although it was not suggested that s 27(c) of the Limitation Act could or might be engaged, it may also be noted that this section is not directed to the postponement of the running of time due to the 'consequences of a mistake' by a party about the running of time or awareness of a cause of action. See, for example, the discussion in Law of Limitations, 2016, GE Dal Pont, [16.1]-[16.15] and the cases there cited. See also Renshaw v New South Wales Lotteries Corporation Pty Ltd [2018] NSWSC 1954 (Walton J), [155]-[156], [202]-[203].

[153] [1887] UKLawRpKQB 161; (1887) 19 QBD 394.

[154] [2020] VSC 284.

[155] Including relevant explanatory notes and footnotes in Annexure B.

[156] Together with any necessary consequential adjustments.

[157] Reproduced as in original, including any typographical errors.