FEDERAL COURT OF AUSTRALIA

Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd (No 2) [2017] FCA 788

ORDERS

THE COURT ORDERS THAT:

1.    The application filed 26 October 2016 for leave to file a proposed further amended statement of claim is dismissed.

2.    The applicant is to pay the costs of the first and second respondents of and thrown away on the application for leave to further amend, to be agreed or taxed.

3.    The parties are directed to confer with a view to agreeing on draft minutes of order which otherwise give effect to these reasons.

4.    If there is agreement, the parties shall on or before 4pm on 19 July 2017 file draft minutes of order which they consider should be made.

5.    In the absence of agreement or complete agreement, each party shall on or before 4pm on 24 July 2017 file and serve minutes of order that the parties contend should be made, together with short submissions on those matters which remain not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    On 1 August 2016, orders were made striking out the amended statement of claim (ASC) save for certain pleadings raising a discrete and separate claim: Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744 (Australian Parking (No 1)).

2    By an interlocutory application filed on 26 October 2016, the applicant, Australian Parking and Revenue Control Pty Ltd (Australian Parking), seeks leave pursuant to r 16.53 of the Federal Court Rules 2011 (Cth) (Rules) to file a proposed further amended statement of claim (FASC). Australian Parking accepts that it should pay the costs of the application thrown away irrespective of the outcome of the application to amend.

3    The first respondent, Reino International Pty Ltd (Reino), opposes leave to amend on the grounds that the proposed pleadings are evasive, ambiguous, likely to cause prejudice, embarrassment or delay in the proceeding, and fail to disclose any reasonable cause of action. In so submitting, Reino submits that many of the defects in the earlier pleading which was struck out are repeated in the current pleading.

4    The second respondent, Parking and Traffic Consultants Pty Ltd (PT Consultants) consents to the filing of the draft further amended statement of claim.

5    For the reasons that follow, the application to file the FASC is refused with costs. However, I consider that a strictly limited opportunity ought to be afforded to Australian Parking to replead, if it so decides: see at [37] below.

2.    BACKGROUND

6    The relevant background to these proceedings was set out in Australian Parking (No 1) as follows:

The parties

4. Australian Parking and Reino are competitors who supply unattended pay-by-credit-card parking-fee collection machines and associated hardware and software (pay parking machines) to government agencies for use in parking bays and lots to Government and other public agencies who own or control land made available for fee-based public parking (Parking Agencies).

5. PT Consultants provide consulting services to Parking Agencies, including advising and assisting them with:

(1) the preparation of request for tender documentation for the provision of pay parking machines;

(2) the preparation of specifications as to the functionality of pay parking machines to be put to tender;

(3) the assessment of tenders received by Parking Agencies in response to issued requests for tender;

(4) the process of selecting successful tenderers; and

(5) otherwise advising with respect to the procurement, installation, commissioning and deployment of pay parking machines.

The request for tender and application for preliminary discovery

6. On 23 September 2013, the RFT Agencies [being defined in the FASC as the Australian Capital Territory Government and the Commonwealth Government] issued a request for tender for the installation of pay parking machines on certain lands under their control. Australian Parking and Reino, among others, lodged tenders in response to the request for tender. Reino was selected as the successful tenderer by the RFT Agencies and was awarded the contracts for the supply, installation, commissioning and maintenance of the pay parking machines.

7. On 18 September 2014, Australian Parking commenced proceedings in this Court as a prospective applicant under FCR r 7.23 seeking preliminary discovery of various documents from Reino, including the tender response submitted by Reino to the RFT Agencies (NSD 942/2014). Australian Parking subsequently withdrew that application and on 12 December 2014, the Court made orders dismissing the proceedings and providing that the costs of the proceedings be in the cause in any substantive proceedings commenced by the prospective applicant against the prospective defendant provided that the proceedings were commenced by 31 January 2015.

7    The case for Australian Parking as pleaded in the then ASC was summarised in Australian Parking (No 1) as follows:

The present proceedings

8. These proceedings were instituted on 30 January 2015. At the heart of its case, Australian Parking alleges that either in failing to advise the RFT Agencies about the MasterCard requirements for contactless credit card or PayPass functionality, or in advising the RFT Agencies about those requirements, PT Consultants made misleading and deceptive representations as a result of which Reino was the successful tenderer and Australian Parking suffered loss of a chance. Australian Parking also contends that Reino engaged in misleading and deceptive conduct in failing to advise the RFT Agencies that its pay parking machines were not compliant with the requirements in the request for tender, being the MasterCard requirements for contactless credit card or PayPass functionality, or in representations allegedly made to the RFT Agencies as to the substance of the MasterCard requirements or the capacity of its pay parking machines to comply with those requirements.

9. It does not appear to be in issue that the pay parking machines have in fact been installed by Reino for the ACT and NCA [National Capital Authority], and are operating. Neither of the RFT Agencies are parties to these proceedings or have sought to be joined.

8    Thus, at the time of Australian Parking (No. 1), the ASOC alleged three categories of misleading and deceptive conduct:

(1)    the making of an implied misrepresentation to the Australian Capital Territory and the Commonwealth (the RFT Agencies);

(2)    the giving of alleged misleading and deceptive advice to the RFT agencies; and

(3)    the making of express misrepresentations to those agencies.

9    In Australian Parking (No. 1), the Court made orders on 1 July 2016 striking out the entirety of the claim against PT Consultants and the bulk of the claim against Reino on the ground that the pleadings were ambiguous, likely to cause prejudice or embarrassment, and fail to disclose any reasonable cause of action. The end result was that the ASC was struck out save for the discrete claim against Reino for misleading and deceptive representations on Reino’s website. Australian Parking was, however, afforded the opportunity to replead its case, if so advised.

10    Reino has yet to file any defence due to the ongoing pleading dispute.

3.    THE APPLICATION FOR LEAVE TO FILE THE AMENDED STATEMENT OF CLAIM

11    The proposed FASC initially advanced three alternative and independent cases against Reino:

(1)    The Reino RFT Claim (FASC at paragraphs 15-38): The Reino RFT claim has two alternative “limbs”:

(a)    by its conduct in submitting a tender in response to the RFT, Reino represented that its tender complied with the requirements of the RFT at the date of tender submission in October 2013 (the Compliance Representation);

or, in the alternative

(b)    Reino represented that it had reasonable grounds for believing its tender would comply with the requirements of the RFT by 31 March 2014 (for the ACT) and 20 May 2014 (for the National Capital Authority (NCA)), being the dates by which the parking ticket machines were to be installed for the ACT and the NCA respectively (the Alternative Compliance Representation).

(2)    The Alternative Reino Claim (FASC at paragraphs 39-54): Australian Parking alleges that Reino engaged in misleading and deceptive conduct by submitting a tender in response to the RFT without disclosing to the RFT Agencies that Mastercard required of its customers (i.e. banks and other financial institutions) that any parking ticket machines to be installed must:

(a)    be EMV certified (the EMV Requirement); and

(b)    support and accept Paypass cards using Paypass (i.e. contactless) functionality from either 1 January 2013 in the case of new or replacement terminals or from 1 April 2014 in the case of all existing merchants (the Paypass requirement).

(3)    The Reino Website Claim (FASC at paragraphs 76-77): Australian Parking separately alleged Reino had made misleading and deceptive representations on its website which were not struck out in Australian Parking (No 1).

12    The Reino Website claims remain in the proposed FASC and are not in issue in the present application. Furthermore, in reply at the hearing the applicant abandoned the Alternative Reino claim, and was content for orders to be made striking out paragraphs 39-54 of the FASC, conceding that at least some of the criticisms by Reino “are good”. Nor did the applicant press the phrase “being the profits that it would have earned as the successful tender party” at the end of paragraph 38 of the FASC. These concessions significantly reduced the issues ultimately in dispute, although they did so only after the pleadings had been addressed at some length in writing and orally by Reino.

4.    EVIDENCE

13    The applicant relied upon the affidavit of Michael Mazzone sworn on 26 October 2016 to which the proposed further amended statement of claim was annexed.

14    The respondent did not rely upon any affidavit evidence but tendered:

(1)    a letter from K&L Gates to Diamond Conway dated 27 October 2016 (Exhibit R1) in setting out the respondent’s concerns with the proposed further amended statement of claim;

(2)    Addendum 7 to the request for tender (RFT) issued by the ACT (Exhibit R2); and

(3)    an extract from “Attachment 5 of Schedule 2 – Response to Evaluation Criterion 1 – Technical Specification – ACT Works” prepared by PTC for the ACT and dated September 2013 (Exhibit R3).

5.    RELEVANT PRINCIPLES

15    This is the third iteration of Australian Parking’s statement of claim. The first statement of claim was filed on 30 January 2015. The ASC the subject of the strike out application in Australian Parking (No 1)) was filed without the leave of the Court on 25 February 2015 in accordance with r 16.51(1) of the Rules. Accordingly, as Australian Parking has already amended the pleading once without leave of the Court, leave is required to amend the pleading pursuant to r 16.53 of the Rules. That rule confers a broad discretion on the Court: Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; (2009) 176 FCR 66 (Research in Motion) at [22]. The onus lies upon Australian Parking, as the party seeking to amend, to satisfy the Court that grounds exist for exercising the discretion in its favour.

16    The principles governing the exercise of discretion to grant leave to amend were not in issue. As Reino submits, leave will generally be refused to file an amended pleading where the amendment would be futile because it would not disclose any reasonable cause of action: Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 at 36. Leave will also generally be refused where the pleading is such that it seeks to raise a case which is misconceived in point of law, is embarrassing, or is otherwise liable to be struck out: Research in Motion at [23]. The relevant principles in this regard are summarised in my reasons in Australian Parking (No. 1) at [19]. In applying these principles, the function of pleadings must be borne squarely in mind, namely, to state with sufficient clarity the case that must be met so as to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against it and incidentally to define the issues for decision: Australian Parking (No. 1) at [19(1)]. Furthermore, in line with the seriousness of such an allegation, a party who pleads misrepresentation, as here, must state in the pleading with particularity particulars of the facts on which the party relies: Australian Parking (No. 1) at [19(6)].

6.    THE REINO RFT CLAIM

6.1    The pleading

17    At the heart of the Reino RFT Claim is paragraph 17 of the FASC that the RFT Agencies required the successful tenderer to install parking ticket machines to meet certain requirements. Specifically, paragraph 17 alleges that:

It was a requirement of the RFT Agencies that the parking ticket machines to be supplied by the successful tenderer would carry out the online processing of credit card transactions meeting, inter alia, the following minimum requirements:

a.    the parking ticket machines would be able to process Visa and MasterCard cards;

b.    the card acceptance devices (including software) supplied to carry out credit card processing by the parking ticket machines are EMV Level 1 and Level 2 compliant;

c.    the tendered solution must be upgradable to include contactless payment;

d.    the clearance of credit cards must be performed using a certified EMV solution, namely that the end to end process must be tested and certified for EMV compliance with all transactions being processed through an EMV compliant gateway onto any applicable financial institution, with testing to be carried out by a recognised authority and to include VISA ADVT MasterCard M-TIP certification processes.

Particulars

In the Case of the NCA. the requirements were described in Attachment 1 of schedule 4 to the RFT- clause 2.5, specifications CC3, CC5, CC6. CCB, CC12

In the case of the ACT the requirements were described in Attachment 2 of Schedule 4 to the RFT- clause 2.6 specifications CC3. CC5, CC6, CCB. CC12

18    It is further alleged in the FASC that:

(1)    the RFT Agencies also required that:

(a)    the parking ticket machines would be supplied, installed, commissioned and operational by 31 March 2014 (ACT) and 20 May 2014 (NCA) (FASC at paragraph 18);

(b)    all tenderers would submit tenders complying with all requirements of the RFT for the ACT and in the case of the NCA subject to any exceptions noted in its response to the RFT (attachment 10, schedule 2, RFT) (FASC at paragraph 19);

(c)    tenderers must not make false or misleading statements in their tenders (paragraph 6.2.2, RFT) (FASC at paragraph 20);

(d)    the RFT Agencies would not accept any nonconforming tender submission (FASC at paragraph 21); and

(2)    lodgement of a tender constituted an offer by the tenderer on the terms and conditions set out in draft contracts attached to the RFT save in the case of the NCA to exceptions noted in its response to the RFT (paragraph 9.10.1 of the RFT) (FASC at at paragraph 22).

19    Australian Parking then alleges that certain representations should be implied on the following basis:

24. In the premises, by the act of submitting a tender in response to the RFT, Reino impliedly represented to the RFT Agencies in trade or commerce that its tender complied with all requirements of the RFT (Compliance Representation).

25. Further, or in the alternative to the Compliance Representation, by the act of submitting a tender in response to the RFT, Reino impliedly represented to the RFT Agencies in trade or commerce that it would be able to comply with all of the requirements of the RFT by 31 March 2014 in the case of the ACT and 20 May 2014 in the case of the NCA (Alternative Compliance Representation).

20    However Australian Parking alleges that:

26.    At the date that it submitted its tender (and at all material times):

a.    Reino parking ticket machines process credit card transactions exclusively by mag stripe and did not process credit card transactions by EMV; and

b.    Reino was unable to upgrade any parking ticket machines it supplied to the RFT Agencies to process contactless payments as it did not have the certification for the end to end processing of contactless credit card transactions using an EMV certified solution.

(the Reino Constraints)

21    As a consequence, Australian Parking alleges that the compliance representation was misleading or deceptive contrary to s 18(1) of the Australian Consumer Law (ACL) in schedule 2 to the Competition and Consumer Act 2010 (Cth) because it was false or Reino did not have any reasonable grounds for making the representation, and the Reino tender was a non-conforming tender (FASC at paragraphs 27-29).

22    As to loss and damage, Australian Parking alleges at paragraph 31 that the RFT Agencies’ acceptance of the Reino tender as conformant “was induced by the Compliance Representation and/or the Alternative Compliance Representation and would otherwise have been excluded from consideration by the RFT Agencies as a non-conforming tender.”: cf Australian Parking (No. 1) at [61]. Australian Parking further alleges that it was one of two unsuccessful shortlisted tenderers and that:

37. In the premises, if Reino had been excluded from consideration by the RFT Agencies, the RFT Agencies would have chosen the successful tenderer from the two shortlisted tenderers (including [Australian Parking]).

38. By reason of the matters at paragraphs 29 to 37 above, [Australian Parking] was denied the chance opportunity of being selected as the preferred tender party by the RFT Agencies in preference only to the other unsuccessful shortlisted tender party (excluding Reino) and has therefore suffered loss and damage.

23    The quantification of that loss or damage as “profits that it would have earned as the successful tenderer party” in paragraph 38 was not pressed by Australian Parking in reply at the hearing of application to amend.

6.2    Should leave be granted to file the FASC?

24    Leave to file the FASC should be refused for the following reasons.

25    First, a major difficulty with the FASC as initially proposed and the ASC in Australian Parking (No. 1) was the pleading that Reino engaged in misleading and deceptive conduct by failing to disclose the alleged requirements of a third party (MasterCard) for the new machines to accept contactless payments on instalment, notwithstanding that the RFT stated that the requirement was for the machines to be capable of upgrade after installation to accept contactless payments, as I found Australian Parking (No. 1) at [33]. That claim had also created internal inconsistencies and ambiguities in the pleading. As earlier explained, that claim was abandoned by Australian Parking at the hearing of the present application and, as a result, Australian Parking did not press its application to amend the ASC to include paragraphs 39 to 54 of the FASC inclusive. However, with the abandonment of that claim, the pleadings at paragraphs 5-14 of the FASC no longer have any apparent relevance as they do not appear to plead facts material to the Reino RFT Claim or the Website Claim. Certainly, if they have a continuing relevance, that is not apparent from the pleading itself. Leave should therefore be refused to amend to include paragraphs 5-14.

26    Secondly, there is a failure to plead the connection between the Reino Constraints pleaded at paragraphs 26(a) and (b) of the FASC, which are said to render false or misleading the implied representation of compliance, and the RFT requirements pleaded at paragraphs 17(a)-(d). Sensibly read, the allegation at paragraph 26(b) that Reino was unable to upgrade its parking ticket machines because it did not have EMV certification, did not comply (at the least) with the requirement identified at paragraph 17(c) that the tendered solution must be upgradeable to include contactless payments. However, it is not clear whether this is the only requirement in paragraph 17 with which Reino did not comply by reason of the allegation at paragraph 26(b). Nor is it clear with which of the four requirements identified at paragraph 17 of the FASC, the alleged constraint at paragraph 26(a) of the FASC did not comply. As an aspect of this, the relationship alleged between the EMV requirements and contactless is not apparent from the pleading. In this regard, senior counsel for Australian Parking contended from the Bar table that:

(1)    for a credit card to be EMV compliant, it was necessary for the card to have a chip (explaining that a chip can be activated by insertion into the base of a pay machine or used in a contactless way); and

(2)    for a credit card to be contactless, it is necessary for the card to have a chip so that “contactless is a subset of EMV”.

27    However, none of those facts are presently pleaded. The relationship between contactless and EMV remains unclear from the pleading, contributing to the difficulties in understanding how the alleged Reino Constraints led to a failure to comply with the RFT requirements at paragraph 17 of the FASC. In short, as counsel for Reino submitted:

… it’s not clear and it certainly not stated in the pleading, which is the critical thing, which conditions in the RFT… paragraph 26(b) engages with. We shouldn’t be left, your Honour, looking at this pleading, going back and saying, well, is it (d)? But ... Mr Newlinds said on the transcript that doesn’t deal with contactless. There is no clear case as to even which requirements of the tender resulted in the representation being false. There is just an assertion in 26 and 27 [of the FASC] that because of two circumstances that aren’t particularised that a representation was false, and in relation to (a), we don’t, with respect, understand whether the words EMV pick up contactless or not.

So those matters, your Honour, I accept could be corrected. I accept that. A further pleading could be put forward and we could look at it and form a view about whether it does maybe finally make it to a case that gets over the line, but I do respectfully submit that we don’t understand the case on the mishmash of the pleading plus the written plus the oral submissions and the only way it can really sensibly go forward is a pleading which pleads the material facts relied upon to establish falsity of the representation, firstly, and secondly, at the very least, tell us which RFT tender requirements some paragraphs 26(a) and (b) engage and that should be done in the pleading itself. It shouldn’t be done on the transcript in the course of a hearing of the present kind.

28    In this regard, as Jagot J held Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 516 at [23], a vague and ambiguous pleading “cannot be cured by oral submissions instructing the reader about how the paragraph should be read. It needs to be clear from the face of the pleading.” While Reino properly accepted that “there’s a spectrum here”, i.e. that in some circumstances clarification may suffice, I agree with counsel for Reino that there were material differences between what was said in submissions by Australian Parking and the pleadings which “squarely cross the line”.

29    The connection between the alleged Reino Constraints, on the one hand, and the failure to comply with the RFT requirements, on the other hand, is fundamental to the Reino RFT claim. That connection forms the basis of the pleadings at paragraphs 27-28 that the Compliance Representation was false and therefore misleading or deceptive, or that the Alternative Compliance Representation was misleading because Reino lacked reasonable grounds for making the representation. As such, among other objections, the pleadings are embarrassing in that they fail to state with sufficient clarity, the case against Reino, and leave Reino to attempt to piece together what is referred to. It follows that leave should be refused to amend the ASC to include paragraphs 15 to 38 of the proposed FASC.

30    While, in light of the conclusion that I have reached, it is unnecessary to consider the further objections to the application for leave to further amend, I note the following further difficulties with the pleadings.

31    First, Australian Parking initially submitted at the hearing that the pleading at paragraph 17(c) of the FASC that the tendered solution must be upgradable to include contactless payments meant that it had to be upgradable by Reino because part of the evidence will be that the parking machines are “sealed proprietary boxes, so third parties actually can’t open them up and fiddle with them, so it can only be Reino.” Accordingly, Australian Parking submitted that there was no disconnect between the pleading that the Alternative Compliance Representation was that “it [i.e. Reino] would be able to comply with all of the requirements of the RFT”, on the one hand, and the pleading at paragraph 17(c) of the FASC, on the other hand. Such matters were rather, in Australian Parking’s submission, ultimately matters for evidence to determine whether anyone other than Reino could upgrade the machines. In my view, should Australian Parking decide to attempt to replead, this point should be clarified in the pleading.

32    Secondly, Reino submits that the proposed pleading if allowed, would be liable to be struck out in any event on the basis that:

Where the tenders were required to make express representations about the extent of their compliance in the tender response, there is no basis in law to plead that the act of submitting the tender response carried an implied representation of compliance with each and every tender requirement. The very purpose of requiring tenderers to submit a response was to obtain a written statement identifying the extent of their compliance with the requirements of the RFT, including any exceptions where they did not comply. No implied representation of the kind pleaded is capable of arising at law, in the circumstances.

33    In other words, as counsel for Reino submitted at the hearing, there is a contradiction between paragraphs 24 and 22 of the FASC. Thus the allegation at paragraph 24 that the Compliance Representation is implied by reason of the act of submitting a tender - of “putting it in the box” – is undermined by the pleading at paragraph 22 that a tender response could note points of non-compliance. In this regard it is apparent that, while the pleading at paragraph 22 of the FASC refers only to there being a capacity for a tenderer to note exceptions to compliance in its response to the NCA RFT, the ACT RFT also made provision for a tenderer to identify exceptions to compliance, as Reino pointed out.

34    In response, Australian Parking submitted that the existence of a statement in the RFT requiring a tenderer to set out any exceptions to compliance in its tender does not render unarguable the implied Compliance Representation in circumstances where Australian Parking also pleaded at paragraph 30 that the tender by Reino was among those “accepted by the RFT agencies as being fully conformant with the requirements of the RFT”. However, that is not what is currently pleaded in the proposed FASC which identifies the sole basis for the implied representation as the act of submitting the tender. As it currently stands, therefore, I do not consider that the pleading raises an arguable case. I also note that to the extent (if any) that the proposed pleading speculated that Reino had not identified any relevant exceptions to compliance, it would have been objectionable also on this ground: see Australian Parking (No. 1) at [48] and [73].

35    Finally, Reino submits that paragraphs 30 to 38 inclusive of the FASC fail to plead the material facts relied upon to establish causation and damages. In particular, Reino submits that:

In a rolled up way, FASC [38] asserts, on the one hand, that [Australian Parking] has “thereby suffered loss and damage, being the profits that it would have earned as the successful tenderer party”. However, damages for loss of a chance (as pleaded in the first half of FASC [38] are assessed having regard to the value of the chance itself, not the value that would have been realised if the chance had eventuated (as pleaded in the second half of ASC [38]). The allegation that [Australian Parking’s] loss is the “profit” it would have obtained as the “successful” party is thus a materially different allegation to what is pleaded in the first half of FASC [38]. Further, in any case, the material facts relied upon to establish that [Australian Parking] “would have” won the tender are not pleaded. For example there is no pleading that [Australian Parking] itself complied with all of the requirements of the RFT in its tender response. Further, the pleading rises no higher than the allegation in FASC [36] that [Australian Parking] was “one of… two unsuccessful shortlisted tenderers”. There is no pleading of any material facts to establish why it is alleged that [Australian Parking] would have succeeded over the other unsuccessful tenderers. Further, as with the previous struck out pleading, there are no particulars of the asserted loss or damage.

36    However, as earlier mentioned, Australian Parking abandoned in reply the pleading that the loss and damage was “the profits that it would have earned as the successful tenderer party”. As such, Australian Parking’s case was put purely in terms of the loss of a chance, being an allegedly increased chance that its tender would have been accepted in circumstances where the shortlist would have been reduced from three to two if the RFT Agencies had not been induced to accept the Reino tender as conformant by reason of the alleged misrepresentations and Reino had therefore been excluded from consideration. As a consequence, the understandable criticisms identified by Reino of the pleadings as initially proposed with respect to loss and damage have largely been met, and the FASC now pleads causation: cf Australian Parking (No. 1) at [61]. The criticism that remains is that “no particulars” have been given of the asserted loss or damage. However, I would not have refused leave to amend by reason of a lack of particulars.

6.3    Should Australian Parking be afforded a further opportunity to replead its case?

37    Reino submits that it would be futile and productive of wasted time and cost to afford Australian Parking a further attempt to seek to overcome the deficiencies in its case and therefore no further opportunity should be afforded to Australian Parking to replead a case alleging an implied misrepresentation. I accept that there is considerable force in the submission that Australian Parking have already had ample opportunity properly to plead its case. However, even Reino accepted in submissions that at least some of the deficiencies in the proposed pleading might possibly be met. In all of the circumstances, I consider on balance that Australian Parking should be permitted a further opportunity to plead its case. However, I also accept Reino’s alternative submission that a narrow, confined opportunity to re-plead the Reino RFT claim only ought to be afforded to Australian Parking, with a strict timetable that must be complied with. No opportunity ought to be extended to re-plead those claims which were abandoned at the hearing of this application; nor any opportunity to raise any new claims.

7.    CONCLUSION

38    For the reasons given above, the application for leave to amend in terms of the proposed further amended statement of claim annexed to the affidavit of Michael Mazzone sworn on 26 October 2016 is dismissed with costs.

39    Reino also sought an order that its costs with respect to those allegations of misleading and deceptive conduct that were abandoned by Australian Parking be agreed or taxed forthwith. I consider that it is in the interests of justice for such an order be made subject to one caveat. The caveat is that, subject to affording the parties the opportunity to make short written submissions on the issue if it is not agreed, I do not consider that that order should be confined to those claims which were abandoned. To so confine it would seem to introduce an unnecessary degree of complexity to the assessment of costs in circumstances where the application has been wholly dismissed.

Associate:

Dated:    13 July 2017