FEDERAL COURT OF AUSTRALIA
Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd (No 3) [2017] FCA 1273
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application filed on 25 August 2017 for leave to file a proposed further amended statement of claim as against the first respondent is allowed subject to the following matters:
(a) the pleading at paragraph 11 of the further amended statement of claim is amended to reflect the concession by the applicant referred to at [22] of the reasons accompanying these orders (the reasons);
(b) the typographical error at paragraph 16 of the further amended statement of claim in referring to paragraph 1 is corrected;
(c) the grammatical error at paragraph 9 of the further amended statement of claim is corrected and particulars are given as indicated at [29] of the reasons; and
(d) particulars are given as indicated at [32] of the reasons.
2. The application filed on 25 August 2017 is otherwise dismissed.
3. The originating application as against the second respondent is dismissed.
4. The applicant is to pay the costs of the second respondent of and thrown away on the application for leave to further amend, to be agreed or taxed.
5. There be liberty to apply.
THE COURT NOTES THAT:
6. The parties are to confer with a view to agreeing orders which otherwise give effect to these reasons of the Court, including relevant timetabling orders to give effect to these orders and, in the case of the applicant and the first respondent, for the further progress of the matter.
7. In the event that the costs otherwise of the proceeding vis a vis the applicant and the second respondent are not agreed, the applicant and the second respondent are to confer with a view to agreeing a timetable for the filing of short submissions as to those costs.
8. In the event that the costs of and thrown away by the application vis a vis the applicant and the first respondent are not agreed, the applicant and first respondent are to confer with a view to agreeing a timetable for the filing of short submissions as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 By an amended application filed on 25 August 2017, 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) (FCR) to file a proposed further amended statement of claim (FASC). The draft FASC is Annexure H to the affidavit of Michael Mazzone, solicitor for the applicant, sworn on 25 August 2017 in support of the application for leave to amend (the Mazzone affidavit).
2 The first and second respondents, Reino International Pty Limited T/A Duncan Solutions (Reino) and Parking and Traffic Consultants Pty Ltd (PTC) respectively, oppose leave to amend.
3 For the reasons that follow, I consider that leave to amend should be granted to the applicant to the extent of the pleadings in the draft FASC against Reino subject to the matters set out at [54] below. However, I do not consider that leave to amend should be granted to further amend the FASC to plead the proposed claim against PTC for the reason that the claim to that extent has no reasonable prospects of success, seeks to raise a case that is embarrassing, and is otherwise liable to be struck out. It follows that the proceeding against PTC should be dismissed.
2.1 Background to the proceeding
4 The background to this proceeding was set out in Australian Parking (No 1) as follows:
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 [Request for Tender] 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.
2.2 Institution of the proceedings and earlier versions of the statement of claim
5 This proceeding was instituted on 30 January 2015 following withdrawal of the application for preliminary discovery. On 1 July 2016, orders were made striking out the amended statement of claim save for certain pleadings raising a discrete and separate claim against Reino for misleading and deceptive representations on Reino’s website (the Reino Website claim): Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744 (Australian Parking (No 1)). The Reino Website claim remains in the proposed FASC and is not the subject of any application to amend.
6 Leave was later refused to the applicant to file a further amended statement of claim in the terms then proposed in Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd (No 2) [2017] FCA 788 (Australian Parking (No. 2)). However, Australian Parking was afforded “a narrow, confined opportunity” to re-plead its case, but not so as to re-plead claims abandoned at the hearing of the second application or to raise any new claims: Australian Parking (No. 2) at [37].
7 The applicant relied upon the Mazzone affidavit to which the proposed FASC was annexed.
8 The second respondent relied upon the affidavit of Roland George Everingham, solicitor, sworn on 12 September 2017. That affidavit annexed certain documents, namely:
(1) Bulletin No. 1 dated 14 March 2011 entitled “MasterCard Introduces Business Roadmap” (the Bulletin);
(2) “Attachment 2 of Schedule 4 – ACT Specifications” dated September 2013; and
(3) “Addendum 7 to Request for Tender No. 22293.110 Supply, Installation and Maintenance of Pay Parking Ticket Machines” dated 16 October 2013 published by the ACT government (Addendum 7).
9 All of the documents annexed to Mr Everingham’s affidavit are pleaded in the FASC, including Addendum 7 despite some initial confusion, and are referred to the second respondent’s submissions. In addition, PTC tendered an email dated 25 October 2016 from its solicitors to the applicant’s solicitors in relation to the first application for leave to amend considered in Australian Parking (No. 2) (Exhibit R2-1). In that letter, PTC advised that it consented to the filing of the previous iteration of the proposed FASC but that it would be seeking an order for further and better particulars.
10 Rule 16.53 of the Federal Court Rules confers a broad discretion on the Court: Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; (2009) 176 FCR 66 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.
11 The principles governing the exercise of discretion to grant leave to amend were not in issue and were considered in Australian Parking (No. 2) at [15]-[16]. Relevantly, first the central function of pleadings must be borne squarely in mind in applying these principles, namely, to state with sufficient clarity the case to be met so as to ensure as a matter of procedural fairness that a party has the opportunity of meeting the case against it: see also Australian Parking (No. 1) at [19](1). Secondly, leave will generally be refused where the amendment would be futile, such as where it fails to disclose a reasonable cause of action or is otherwise liable to be struck out: see also SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [48] (Gleeson J).
5. OVERVIEW OF THE DRAFT FURTHER AMENDED STATEMENT OF CLAIM
12 The draft FASC pleads separate cases against each of the respondents. It is helpful to set out a brief overview of the pleadings.
13 First, Australian Parking seeks to amend the FASC to plead an implied misrepresentation claim (at draft FASC [5]-[34]) based upon representations impliedly made by Reino to the Request for Tender (RFT) agencies that:
(1) Reino’s tender complied with all of the RFT requirements (the Compliance Representation) (draft FASC at [17]); or alternatively
(2) Reino “would be able to comply” with those requirements by 31 March 2014 for the Australian Capital Territory (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) (draft FASC at [18]).
14 The proposed pleading as to the RFT requirements with which it is alleged Reino did not, or could not, comply are as follows:
7. 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 card;
b. The card acceptance devices (including software) supplied to carry out credit card processing by the parking ticket machines are EMV Level I 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 and Mastercard M-TIP certification processes.
…
8. By reason of the tender requirement in paragraph 7.b and 7.d above, it was a requirement of the RFT Agencies that the parking ticket machines to be supplied by the successful tenderer would be able to carry out the online processing of credit card transactions using a chip or microprocessor embedded on the card in accordance with the EMV standards formulated by the EMV Co (“EMV Requirement”).
9. By reason of the tender requirements in paragraph 7 point see above it was a requirement of the RFT that the parking ticket machines to be supplied by the successful tenderer would be able to upgrade the parking ticket machines it supplied to the RFT Agencies to carry out the online processing of credit card transactions using contactless technology in accordance with the EMV standards formulated by EMV Co (“Upgrade to Contactless Requirement”)
15 Further, Australian Parking proposes to plead that:
11. It was a requirement of the RFT agencies that all tenderers submit tenders that complied with all requirements of the RFT in the case of the supply of parking machines to the ACT and in the case of at the NCA that the tenders complied with all requirements of the RFT subject to any exceptions noted in its response to the tender.
16 It is alleged that the Reino tender did not comply with the RFT requirements because:
(1) at the date of the tender, Reino parking ticket machines processed credit card transactions exclusively by mag stripe and did not process credit card transactions by EMV (the EMV constraint) (draft FASC at [19]-[20]);
(2) Reino was unable to upgrade any parking ticket machines it supplied to the RFT agencies to process contactless payments as Reino did not have certification for the end to end processing of contactless credit card transactions using an EMV certified solution (the Upgrade Constraint) (draft FASC at [21]-[22]).
17 As a consequence, Australian Parking alleges that the Compliance representation and/or the Alternative Compliance Representation were misleading or deceptive or likely to mislead or deceive contrary to s 18(1) of the Australian Consumer Law (ACL) in Schedule 2 to the Competition and Consumer Act 2010 (Cth): draft FASC at [23] and [24].
18 Secondly, Australian Parking claims that PTC, which was engaged by the RFT agencies with respect to the tender process, failed to disclose to the RFT agencies certain requirements imposed by Mastercard on banks and other financial institutions (Mastercard’s customers) with respect to EMV and contactless functionality, being requirements that Mastercard’s customers in turn were required to ensure were met by merchants from whom they acquire transactions: draft FASC at [35]-[66]. The transactions acquired are defined as sales by a merchant from a cardholder using a Mastercard, with the RFT agencies alleged to be Parking Lot Merchants: draft FASC at [45]. By reason of its failure to disclose the Mastercard requirements to the RFT agencies, PTC is said to have impliedly represented to the RFT agencies that it was possible for them to have parking meters which did not meet those requirements (the Contact Possible Representation): draft FASC at [54]-[55]. The PTC representations are also said to be misleading and deceptive in contravention of s 18 of the ACL.
19 As a result of the alleged contraventions of s 18 of the ACL by Reino and/or PTC, Australian Parking alleges that it suffered loss or damage being the loss of an opportunity to be selected as the successful tenderer in preference to the other unsuccessful shortlisted tender party excluding Reino: draft FASC at [34] and [66].
20 Reino opposes the grant of leave to re-plead the claims made against it on the ground that the draft FASC fails to disclose any reasonable cause of action and remains liable to be struck out for essentially three reasons:
(a) the re-pleading of the Compliance Representation remains irreconcilable with other paragraphs of the pleading and introduces new deficiencies (the same may be said of the Alternative Compliance Representation re-pleading);
(b) Australian Parking has not clarified in the pleading whether its case is that the RFT required the tendered offering to be upgradable by Reino, as distinct from a third party; and
(c) the relationship between contactless and EMV remains unclear from the pleading.
6.2 Reino’s first objection to re-pleading of the Compliance Representation
21 Reino submits first that the pleading at [17] of the draft FASC that it impliedly made the Compliance Representation (and the Alternative Compliance Representation) “by submitting a tender in response to the RFT” is, on its face, inconsistent with the pleading at [11] and [14] that the tenderer had the ability to note exceptions to compliance in its tender response, at least in the case of the NCA. In those circumstances, Reino submitted that no more could logically be inferred from the submission and acceptance of a tender than that the tender complied with the requirement to be compliant subject to stated exceptions, as opposed to an inference that the tender fully complied with all RFT technical specifications. As such, Reino submits that the pleadings continue to suffer from the same vice as that identified in Australian Parking (No. 2) with respect to the earlier draft FASC. Relevantly I held in Australian Parking (No. 2) at [34] that the then draft FASC did not raise an arguable case in pleading that the act of tender alone founded the implied representation that the tender was fully compliant in circumstances where Australian Parking also pleaded that provision was made for a tenderer to set out exceptions to compliance.
22 I note in this regard that Australian Parking accepted at the hearing that the Court in Australian Parking (No. 2) was correct to find that both the RFT for the ACT and for the NCA made allowance for tenderers to identify exceptions to compliance in their tenders, despite pleading at [11] of the draft FASC that this was provided for only in the case of the NCA RFT. It follows that if, as I have decided, leave should be granted to Australian Parking to amend its pleading to include the Compliance Representation and Alternative Compliance Representation claims, it should be on condition that the FASC is amended to reflect this concession.
23 Subject to that condition, in my view the pleading does now raise an arguable case. Unlike the earlier proposed pleading considered in Australian Parking (No. 2), the applicant no longer relies upon the act of submitting the tender as “the sole basis for the implied representation” (Australian Parking (No. 2) at [34]). While the current proposed pleading is somewhat convoluted, nonetheless as Reino appeared to accept in oral argument it is sufficiently clear that the applicant relies upon the act of submitting the tender in circumstances where it is also alleged that the RFT Agencies had expressly stated that they would not accept any non-conforming tender submission and in fact accepted the tender: draft FASC at [13], [16] and [17].
24 In this regard, I note that Reino accepted for the purposes of argument that a common sense approach should be applied to the construction of the RFT, and accordingly that the statement pleaded at [13] and attributed to the RFT agencies that only compliant tenders would be accepted may mean that only tenders which did not depart in a respect regarded by them as material would be accepted. In line with this, Reino accepted in arguendo that the purpose of requiring a tenderer to identify exceptions to compliance would likely be to allow the RFT Agencies to determine whether any departures from compliance with the RFT were material and therefore that the tender should be rejected. However Reino argued that that is not how Australian Parking has in fact proposed to re-plead its case. The proposed pleadings, in Reino’s submission, are that full compliance was required with no exceptions to the technical specifications.
25 I do not agree. The pleading, while not a model of clarity, must still be read in a common sense manner and having regard to what might seriously be in issue. In this regard, Reino did not demur in oral argument from the proposition that, while other departures from RTF specifications might not be regarded as material, the EMV and contactless functionality requirements were material. Further these are the only requirements which Australian Parking ultimately pleads were not met by Reino’s tender and on which it relies to found its claim against Reino. That being so, the case which Australian Parking now wishes to run is sufficiently plain to give fair notice of its case, namely, that it can be inferred from the act of submitting the tender and from acceptance of the tender in circumstances where the RFT Agencies have said that non-compliant tenders will not be accepted, that the tender complied with the EMV and contactless functionality requirements. So understood, the use of the phrase “fully compliant” should not be treated as fatal to the pleaded claims, albeit that it is unhelpful and apt to some degree to distract from the matters that Australian Parking ultimately seeks to raise. It follows that the vice identified in Australian Parking (No. 2) is no longer present.
26 Nor does the applicant’s pleaded case still suffer on its face from being speculative as to whether or not Reino’s tender complied with the EMV and Upgrade to Contactless requirements pleaded at [9] and [10]: cf Australian Parking (No. 2) at [34]. Rather, the inference pleaded at [16] of the draft FASC that Reino did not disclose to the NCA any exceptions to compliance with the RFT requirements in its tender is expressly based upon the statement by the RFT Agencies that they would not accept any non-conforming tender submission and upon the submission and acceptance by the RFT Agencies of the Reino tender in that context.
6.3 Reino’s second objection: alleged failure to clarify whether the RFT required the tendered offering to be upgradeable by Reino
27 Reino’s second objection to the grant of leave to amend relates to [9] of the draft FASC (quoted at [14] above). Specifically Reino contends that Australian Parking has failed to clarify whether it alleges that it was a requirement of the RFT that the parking ticket machines be upgradeable by the successful tenderer, as opposed to third parties. This issue also arose in Australian Parking (No. 2) where I held with respect to then [17] of the draft FASC that:
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 re-plead, this point should be clarified in the pleading. (emphasis in the original)
28 It is apparent that there is a grammatical error in paragraph [9] of the current draft FASC (as Australian Parking accepted in oral argument). Despite that, it is still sufficiently plain from the pleading that Australian Parking intended to clarify the issue by alleging that the RFT requirement was that the successful tenderer would be able to upgrade the machines which it supplied, as Australian Parking submitted. That being so, the question of whether or not this was in fact a requirement of the RTF is a matter of construction to be considered at the trial, as Australian Parking also submitted.
29 As Reino also pointed out, Australian Parking submitted on the previous application for leave to amend that it would rely in support of this aspect of its claims, upon evidence that the parking ticket machines are sealed proprietary boxes which cannot be upgraded by third parties (see the passage quoted from Australian Parking (No. 2) at [27] above). If Australian Parking intends to rely upon this feature of the parking ticket machines in support of its construction of the RTF, then it is only fair that Reino is given notice of this. In these circumstances, I consider that leave should be granted to amend the pleading in terms of [9] of the draft FASC subject to Australian Parking correcting the grammatical error in that paragraph and giving particulars of the basis on which it alleges that the RFT should be construed so as to impose this requirement.
6.4 Reino’s third objection: the relationship between contactless and EMV remains unclear
30 Finally, I held in Australian Parking (No. 2) that:
26. … 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.
31 Reino alleges that, as in the case of the previous draft FASC, the relationship between contactless and EMV continues to be unclear in the current draft FASC. In particular, Reino submits that:
(a) FASC [7(c)] pleads that it was a requirement of the tender that the tendered solution “must be upgradeable to include contactless payments”, without reference to any EMV requirements.
(b) FASC [9] then pleads that “by reason of” the requirement pleaded at FASC [7(c)], the upgrade must enable the use of “contactless technology in accordance with the EMV standards formulated by EMV Co”. However, there is no pleading of what the alleged “EMV standards formulated by EMV Co” for contactless technology are, or what features or functionality “contactless in accordance with” those standards is alleged to have required.
32 In my view, however, the issues raised by Reino in paragraph (b) above can adequately be dealt by the provision of particulars as to the alleged “EMV standards formulated by EMV Co” for contactless technology, and the features or functionality that “contactless in accordance with” those standards is said to have required.
33 As to the issue raised by Reino at paragraph (a) above, Australian Parking submitted that it had sufficiently addressed the concerns about the previous pleading expressed in Australian Parking (No. 2) at [27] and that the pleading should therefore be allowed. I agree. Consistently with the pleading at draft FASC [7](c), Australian Parking submitted that its case was that the RFT itself required that the tendered solution must be upgradeable to include contactless payments. In this regard, the particular to draft FASC [7] referred relevantly to the requirements described in cl 2.5, specification CC12, Attachment 1 of schedule 4 to the NCA RFT and to cl 2.6, specification CC12, Attachment 2 of Schedule 4 to the ACT RFT. Specification CC12 in each case provided that:
The tendered solution must be upgradeable to include contactless payments. Tenderers should submit a cost to upgrade each device to include a contactless reader within the EMV environment. The [NCA/ACT] will not incur additional costs to replace or retrofit existing hardware or software modules to accommodate the contactless reader system. Additional contactless readers must be compatible with the tendered EMV credit card solution.
(emphasis added).
34 That being so, Australian Parking submitted that the question of whether specification CC12 means (as pleaded at [9]) “upgradeable to use contactless technology in accordance with the EMV standards as formulated by EMV Co” would turn upon the proper construction of the RFT.
35 This case is sufficiently exposed by the pleading. The material facts have been pleaded and relevant particulars given. As such, I do not consider that the pleading at FASC [7](c) is vague, embarrassing or would otherwise be liable to be struck out. It gives Reino in my view sufficient notice of this aspect of the applicant’s case.
7.1 The pleaded case against PTC
36 It is helpful first to summarise the key elements of the case proposed to be pleaded against PTC.
37 As PTC submits, the first element of the case against it is pleaded at [35]-[39], [44] and [45] of the draft FASC which seeks to erect a contractual foundation for the allegation that the RFT Agencies were bound by certain obligations said to have been "required" by Mastercard. Specifically, Australian Parking seeks to plead that:
(1) Mastercard's customers are banks and other financial institutions (Customers) (draft FASC at [36]);
(2) The Customers have entered into licence agreements with Mastercard and are thereby bound by the terms and standards promulgated by Mastercard from time to time (Standards) (at [36]);
(3) The Standards include operating rules, regulations, policies, and procedures including manuals, guides and bulletins as amended from time to time (at [36]);
(4) This framework is described in the Mastercard Rules published from time to time (at [37] and particulars to [36]);
(5) The Mastercard Rules provide that Customers when acting as an "Acquirer":
(a) must enter into written agreements with the "merchants" from whom they acquire transactions; and
(b) are responsible for ensuring that each merchant complies with the Standards (at [38]);
(6) “By reason of the above”, each Customer was "required to ensure" that each Parking Lot Merchant from whom it acquired transactions was able to support and accept Mastercard Paypass cards using Paypass functionality using EMV certified CAT devices by the dates in the Bulletin (at [41] and [44]); and
(7) the RFT Agencies are "Parking Lot Merchants" (at [45]).
38 As PTC submits, the draft FASC does not allege that the RFT Agencies were Customers. Nor does it allege that the RFT Agencies were otherwise bound by any direct contractual relationship with Mastercard or that any other direct obligation, requirement or responsibility arose as between Mastercard and the RFT Agencies.
39 Secondly, at [40]-[45] of the draft FASC the applicant alleges that the RFT Agencies were nonetheless required to comply with certain obligations imposed by the Bulletin. Specifically, the draft FASC alleges that:
(1) by reason of the matters at [35]-[39] of the draft FASC, all Australian Customers were:
(a) bound by the Mastercard Bulletin; and
(b) required to ensure that their merchants were bound by the Bulletin (draft FASC at [40]-[41]);
(2) the Bulletin provided that:
(a) all POT (point of interaction) devices, including CAT (cardholder activated terminals) devices be EMV certified, and process EMV cards by 1 April 2013 (the EMV Requirement) (at [42]); and
(b) Parking Lot Merchants must support and accept Paypass cards using Paypass functionality effect from 1 January 2013 (in the case of new merchants and replacement terminals) and from 1 April 2014 (in the case of all existing merchants (the Paypass Requirement) (at [43]);
(3) the Customers were required to ensure that the merchants complied with the EMV Requirement and the Paypass Requirement: at [44]-[45].
40 Thirdly, at FASC [46]-[50], the draft pleading addresses the nature of PTC’s engagement by the RFT Agencies and the duties allegedly owed by PTC to the RFT Agencies.
41 Fourthly, at [51]-[59] of the draft FASC, the applicant pleads with respect to PTC’s alleged conduct that:
(1) PTC was aware of the requirements specified in the RFT (draft FASC at [51] referring to the requirements set out at [7]);
(2) PTC knew or ought to have known of Mastercard's EMV and Paypass requirements (at [52]);
(3) the RFT Agencies had a reasonable expectation that PTC would disclose the EMV and Paypass requirements (at [53]);
(4) PTC failed to disclose the EMV and Paypass requirements before the issue of the RFT or selection of Reino as the successful tenderer (at [54]);
(5) PTC’s failure to disclose these requirements was misleading and deceptive because "by implication" it represented to the RFT Agencies that "it was possible for the RFT Agencies to have parking meters which processed Mastercard without processing by Paypass after 31 March 2014 [ACT]...and 20 May 2014 [NCA]" (the Contact Possible Representation) (at [55]);
(6) PTC's failure was not inadvertent (at [56]);
(7) PTC's conduct was misleading or deceptive in contravention of the ACL because the "RFT Agencies were required to support and accept Mastercard Paypass cards using Paypass functionality using EMV certified CAT devices at the time of installation" (at [57]-[58]);
(8) by reason of the Contact Possible Representation, the RFT Agencies did not require compliance with the Paypass Requirement as a requirement in the RFT (at [59]); and
(9) at the time of submitting its tender and all material times, Reino parking ticket machines were unable to process payments using Paypass technology (at [60]);
42 Finally, the applicant alleges that certain consequences flowed from the alleged breaches of the ACL by PTC resulting in a loss of opportunity by the applicant: FASC at [60]-[66].
43 PTC alleges that the pleaded case is deficient and discloses no reasonable cause of action for a number of reasons. For the reasons set out below, I agree.
7.2 No reasonable cause of action is disclosed
44 First, the pleading at [54] that PTC failed to disclose the EMV requirement is inconsistent with the pleading in the draft FASC at [8] that, by reason of the tender requirements at [7](b) and (d), it was a requirement of the RFT Agencies that the successful tenderer be able to meet the EMV Requirement. In other words, it cannot be the case both that: the RFT Agencies required compliance with the requirement, on the one hand; and that PTC failed to disclose the requirement to the RFT Agencies, on the other hand. Further, in line with the draft FASC at [8], the specifications contained in the RFT at CC5, CC6 and CC8 referred to in the particulars to [7] expressly required card acceptance devices to be EMV compliant. As such, as PTC contends, there is no factual foundation for the allegations that PTC failed to disclose the EMV requirement or that the RFT Agencies were unaware of the requirement.
45 Secondly, the case as to the alleged failure to disclose the Paypass requirement is similarly without merit. Australian Parking allege at [54] of the draft FASC that PTC failed to disclose the PayPass requirement at any time before Reino’s selection as the successful tenderer, that is, that the Bulletin required all merchants including Parking Lot Merchants to support and accept Paypass functionality by certain dates. However, no mention is made of Addendum 7 to the RFT in the particulars of the tender requirements provided at FASC [7]. That Addendum was issued on 16 October 2013 before Reino lodged its tender on 23 October 2013 (as pleaded at draft FASC [15]). Senior Counsel for Australian Parking accepted at the hearing that it was not in dispute that Addendum 7 was published as a formal addendum to the RFT. The Addendum contained what were described as “Formal Responses” to questions posed by prospective tenderers to clarify the tender requirements. Question and Answer 11 were as follows:
Q11 | Would you consider installing contactless readers from day 1 if already certified and able to accept the MyWay contactless payment solution – subject to minor development/integration works being finalised? |
A11 | Contactless card readers are an optional item in the Territory and NCA Specifications at Attachments 1 and 2 of the Schedule 4 of the RFT. The Territory and NCA may choose to install contactless card readers on some or all of its parking ticket machines at any point during the contract period. Industry should note that contactless readers will be mandated as part of increasing EMV compliance standards from April 2014. |
(emphasis added)
46 The RFT and Addendum 7 therefore not only required that the tenderers install parking machines that were upgradable to contactless functionality, but specifically informed tenderers that contactless readers would be mandated from April 2014. As such, PTC rightly submits that, when regard is had to the contractual documents pleaded and particularised by Australian Parking, it is apparent that there is no factual foundation for the proposed pleadings at [54] and [55] of the draft FASC that PTC failed to disclose to the RFT Agencies either the EMV or Paypass requirements before Reino’s selection as the successful tenderer.
47 Australian Parking submitted that the question of whether there is a factual foundation for the proposed pleadings should be left to trial. However, in determining whether a statement of claim should be struck out on the ground that it discloses no reasonable cause of action, regard may be had to undisputed facts such as Addendum 7. As Spender J held in Ryman v Seymour [1997] FCA 124:
The question of whether the statement of claim is frivolous or vexatious as disclosing no real cause of action is not answered simply by looking at the terms of the statement of claim in a factual vacuum. If, notwithstanding what appears in the pleading, the uncontradicted facts are contrary to those which are pleaded, justice dictates that reality, or substance, should triumph over form.
48 It follows, as PTC submits, that the proposed claim against PTC fails to disclose a reasonable cause of action and has no reasonable prospect of success, given the centrality of paragraphs [54] to [55] of the draft FASC to the case which Australian Parking wishes to bring against PTC.
7.3 Failure to disclose the basis on which the EMV and Paypass requirements apply to the RFT Agencies
49 While it is unnecessary to consider other difficulties with the proposed pleadings against PTC, I note that there were multiple problems with those pleadings in any event. In light of the conclusion I have reached, it is sufficient to point to the absence of pleadings addressing the basis on which the EMV and Paypass requirements are said to be imposed upon the RFT Agencies.
50 In this regard, as PTC submits, the draft FASC has not addressed the finding in Australian Parking (No. 1) at [41] that Australian Parking’s pleading failed to disclose a foundational basis for the assertion that the Bulletin imposed any requirements upon merchants. Thus, while the draft FASC alleges that the EMV and Paypass requirements are imposed upon Customers (i.e. banks/financial institutions) to ensure that the merchant complied with the alleged requirements, no basis in law or fact has been pleaded to establish any requirement or obligation imposed by Mastercard upon the RFT Agencies. The basis on which a connection is sought to be drawn between merchants and Mastercard is at best indirect, namely, by reason of the obligation upon Customers for ensuring that merchants comply with the standards and are bound by the Bulletin. Those factual assertions, as PTC submits, place the responsibility for performing the obligations upon Customers and not merchants. Moreover, regardless of PTC’s expertise in the field, the draft FASC simply asserts that the RFT Agencies were Parking Lot Merchants, but does not plead the material facts on the basis of which Australian Parking says that they are properly so characterised (see at [37] above). Yet establishing that the RFT Agencies are bound by the EMV and Paypass requirements is critical to the claim that PTC should disclosed those requirements and, in failing to do so, impliedly represented that they were met: see above at [41].
51 As PTC submits, it follows that the draft FASC fails to disclose the basis of a fundamental aspect of the case pleaded against PTC. Indeed, to the extent that the pleading attempts to identify any such case, it is plain that no direct contractual relationship between Mastercard and the RFT Agencies is alleged.
8. SHOULD AUSTRALIAN PARKING BE GIVEN A FURTHER OPPORTUNITY TO RE-PLEAD
52 As against PTC, I do not consider that Australian Parking should be given a further opportunity to attempt to re-plead its case. In this regard, I have had regard to the fact that Australian Parking has had ample opportunity to plead its cases, bearing in mind that this is Australian Parking’s fourth iteration of its pleading and that it has the benefit of two detailed judgments which identify similar difficulties with earlier versions of the statement of claim. I have also taken into account the nature of the difficulties with the proposed claim against PTC and in particular, that Australian Parking has failed to demonstrate a reasonable cause of action against PTC when regard is had to the undisputed documents.
53 The position is different as against Reino insofar as I have indicated that leave should be granted to Australian Parking to file and serve the draft FASC subject to certain matters being clarified in line with concessions made by Australian Parking at the hearing and the provision of particulars on certain matters.
54 For these reasons, the application for leave to file the draft FASC is allowed insofar as it relates to paragraphs [1] to [34], subject to the following:
(1) the pleading at [11] of the draft FASC is amended to reflect the concession by Australian Parking referred to at [22] above;
(2) the typographical error at [16] of the draft FASC in referring to paragraph [1], and admitted to be incorrect, is corrected;
(3) the grammatical error at [9] of the draft FASC is corrected and particulars are given as indicated at [29] of these reasons; and
(4) particulars are given as indicated at [32] of these reasons.
55 However, paragraphs [35]-[59] which contain the claims sought to be made against PTC should be struck out and no further opportunity given to Australian Parking to re-plead against PTC. As such, the claim against PTC must be dismissed.
56 Finally, Australian Parking properly accepted that it would be liable to pay costs if it was unsuccessful in its application to amend and therefore is liable for PTC’s costs of and thrown away on the interlocutory application. It is also my preliminary view that Australian Parking should pay Reino’s costs of and thrown away on the application for leave to further amend. However, Australian Parking asked for an opportunity to be heard on the issue of costs should it succeed, as it has against Reino. Further, PTC would also seem to be entitled to its costs of the proceeding although no submissions were directed to this issue. In the circumstances, therefore, I will allow the parties the opportunity to be heard on the question of costs if agreement cannot be reached, save with respect to the interlocutory application against PTC.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
