Federal Court of Australia

BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (Application to Vacate Hearing) [2025] FCA 733

ORDERS

THE COURT ORDERS THAT:

1. The hearing listed on 1 September 2025 to 25 September 2025 be vacated.

2. The matter be listed for case management hearing at 2:30pm on 7 July 2025.

3. Costs thrown away by reason of the vacation of the hearing be reserved.

4. The question of costs of the interlocutory application dated 23 June 2025 be stood over to the case management hearing at 2:30pm on 7 July 2025.

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

REASONS FOR JUDGMENT

Revised from Transcript

NEEDHAM J:

1 In these reasons, I refer to my reasons for judgment given on 12 June 2025, dismissing an application filed by the respondents by way of interlocutory application for a review of a decision of a Registrar (BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (Review of Registrar’s Decision) [2025] FCA 616). I will use the defined terms in that judgment in these reasons, and I refer to my summary of the proceedings in [7], [8] and [9] of the Review of Registrar’s Decision for the background to this matter now before the Court.

2 The dispute between the parties commenced in 2020 with a contested preliminary discovery application, and these proceedings were then commenced in 2021.  Justice Yates gave two decisions relating to the pleadings in 2022 and 2023 (BCI Media Pty Ltd v CoreLogic Australia Pty Ltd [2022] FCA 1128 and BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (No 2) [2023] FCA 664). Once the pleadings were finalised with the Amended Statement of Claim (ASOC), being filed on 29 February 2024, (the Defence predating the ASOC and bearing a filing date of 22 December 2023), his Honour then made orders on 5 February 2024 that discovery be given in particular categories, noting that any disputes as to discovery should be listed before him.  His Honour also ordered that the applicant file and serve its evidence-in-chief by way of affidavit, and any expert report(s) upon which it intended to rely, by 28 June 2024. The orders made consequential timetabling orders for the respondents, and for the applicant in reply, to file their evidence. The applicant did not comply with those orders. There is no explanation before me as to why it did not, other than the contentious issue of discovery (as to which more, later).

3 The matter was allocated to my docket, and it was listed for a case management hearing on 26 September 2024. The timetabling orders of 5 February 2024 were vacated, and I made orders that the applicant file its lay evidence-in-chief by 8 November 2024, with the lay evidence timetable to finalise with lay evidence in reply by 29 March 2025. I ordered that:

The applicant may, no later than 4 weeks from the date that the respondents complete their discovery, file any supplementary lay affidavit evidence that it considers necessary as a result of the production of those documents.

4 I then set the matter down for hearing on 1 September 2025 for 16 days (being four weeks, Monday to Thursday). I referred the matter for mediation (noting that no mediation has been conducted to date), and made orders for expert conferral, and listed the matter for a further case management hearing before me on 17 April 2025.

5 The 26 September 2024 orders timetabled the applicant’s expert evidence in chief to be filed and served by 13 December 2024. The applicant did not comply with those orders.

6 The Registrar handled some of the ongoing issues of discovery between the parties. The respondents filed an interlocutory application, which was listed before me on 19 November 2024, and then listed for hearing on 16 December 2024.  On that date, the application was referred back to Registrar Farrell, who then gave a determination which became the subject of the Review of Registrar’s Decision.

7 The subject matter of the Review of Registrar’s Decision was whether the applicant was of necessity pleading an inferential case, and whether it should provide particulars of the matters on which the applicant was relying in order to prove that inferential case.

8 On the basis of the arguments on that occasion, and particularly on the insistence of the applicant as set out in [45] of that decision that it expressly disavowed that it was pleading an inferential case, I declined to make the orders sought by the respondents.

9 Prior to that decision, on 17 April 2025, I had made orders that the time for the applicant to file its evidence in chief on “non-quantum” be extended to 30 April 2025, and its evidence on quantum in chief by 30 May 2025. The respondents were to file all of their lay evidence by 4 July 2025.

10 The applicant did file four affidavits in chief on liability by 30 April 2025 and its report of its IT expert, Mr McKemmish, on 15 May 2025. It served its first report from Mr Ross, the forensic accountant, on 30 May 2025 and the second tranche of Mr Ross’ evidence on 26 June 2025, as set out in further detail below.

11 On 13 June 2025, I made orders (13 June orders) at a case management hearing including directions as to amendment of particulars, further discovery, the filing of the applicant’s evidence on quantum by 5pm on 20 June 2025, and a timetable as to a further interlocutory application to be filed by the respondents for orders, inter alia, that the trial be vacated or varied. The matter is listed for 16 days of hearing commencing on 1 September 2025, two months from today.

12 Since 13 June 2025, the following has occurred in this matter:

(a) The respondents notified my chambers that the applicant had not complied with order 1 of the 13 June orders requiring service of the Amended Confidential Annexures by 13 June 2025.  The Further Amended Confidential Annexure B was served on 16 June 2025 at 4.14pm. This was notified to me by email of Friday, 20 June, at 5.24pm. By an email sent to my chambers at 5.41pm that day, the applicant noted that the Confidential Annexure B was served at the request of the respondents, and it only removed some of the entries relied upon, and was provided by way of clarification.

(b) The applicant did not serve further and better particulars of the ASOC by 5pm on 20 June 2025, which was order 7 of the 13 June orders. The applicant noted that it had been served by email of 20 June 25 at 5.41pm;

(c) The applicant did not comply with order 9 of the 13 June orders, requiring service of the balance of its evidence on quantum by 5pm on 20 June and sought, by email to my chambers at 4.57pm on Friday, 20 June 2025, an extension of the time to file to Wednesday, 25 June 2025. That extension was granted on Monday, 23 June 2025. The respondents did not consent to that extension;

(d) On 25 June 2025, at 10.57pm, the respondents notified my chambers that the expert report had not been served in accordance with the extension to the 13 June orders;

(e) That same evening, at 11.09 pm, the applicant sent an email “confirm[ing] that Mr Ross’ second report has been served”;

(f) The next day, 26 June 2025, at 9.10 am, the applicant, by email to my chambers, clarified that the report had been served, but the bulky appendices and exhibits to the report were not served until that morning.

(g) On 24 June 2025, the respondents had filed their Interlocutory Application seeking that the hearing commencing on 1 September 2025 be adjourned, as well as further orders for discovery (some of which documents had been provided by the applicant by the time the matter came on for hearing); and

(h) Each party filed affidavits and submissions in relation to the Interlocutory Application.

Possible further interlocutory applications

13 The respondents have foreshadowed other interlocutory applications arising out of the provision of particulars by the applicant. The particulars of paragraphs 43(v) and (vi), which the respondents said, in the Review of Registrar's Decision, were (in their previous iteration) necessarily inferential, have been reworked by the applicant to provide as additional particulars to paragraph 43(v)(ii):-

It is to be concluded that customers and prospective customers of BCI Media Group, as known to BCI Media Group listed in Confidential Annexures A, B and C (as amended) were induced to believe that the information in Cordell Connect was more comprehensive and accurate than the information in LeadManager based on the following matters known to BCI Media Group:

(A)     the matters pleaded in paragraphs 43 to 43(iv) and 50, and the particulars thereto…

14 This is, the respondents say, a change of heart from the position during the argument before me on the review of Registrar’s decision, given that the applicant had “steadfastly rejected the view that the way to proof lies in proving an inference [and] it is on notice as to how it needs to prove its case”. The respondents say that the use of the words “It is to be concluded that…” is a pleading of an inference alio nomine and should be disallowed. The respondents also take the view that the broad sweep of particulars provided was not envisaged by order 7 of the 13 June orders (despite the apparent breadth of that order).

15 The applicant resists both of these conclusions and casts doubt on the way in which the respondents characterised the particulars, and on their motivations for doing so. The respondents take the view that the applicant should seek leave to amend the statement of claim; the applicant resists that path. It may be that the respondents will seek to strike out parts of the claim and/or particulars.  That is yet to be determined.

16 No interlocutory applications have, as yet (as far as I am aware) been filed in relation to these issues as the parties are awaiting the delivery of this judgment. The prospect of further interlocutory disputes about the way in which the applicant puts its case is a matter I should take into account in the question of whether to vacate the hearing, unless I take the view urged upon me by the applicant that these questions are ephemeral and latched on to by the respondents in order to obtain a perceived forensic advantage of the hearing date being vacated.

Vacation of the hearing date

17 As matters now stand, the applicant has filed all of its evidence, which includes lay and expert evidence on liability in quantum, such evidence having been completed on 26 June 2025.

18 In this interlocutory application, each of the parties has put on evidence setting out the faults in the preparation of the other, which have led to this situation. They have each provided me with proposed orders for timetabling of matters up to the hearing, which includes:

(a) Filing of the respondents’ evidence (lay and expert);

(b) The applicant’s evidence in reply;

(c) A mediation before a private mediator;

(d) The conferral process between each of the parties’ experts, as set out in the Court’s Expert Evidence Practice Note (GPN-EXPT) (Part 7) and the production of a conference report. I note that the expert evidence from each side involves, or will involve, two experts in different fields; and

(e) Trial preparation, such as trial books, objections to evidence, and written opening outlines of submissions.

19 The applicant’s proposed orders take the view that “nothing is impossible” and have scheduled the above matters to be undertaken in the two months before the trial commences. The respondents’ proposed orders allow for the applicant’s motion to amend (as outlined above) and an index of the discovered documents relied on by the applicant to be exchanged, and the respondents’ evidence “save as to quantum” being filed by 5 September 2025, and evidence as to quantum by 22 September 2025, each with a time frame for reply. The expert conclaves and a mediation are to take place in October, on the respondents’ case, and the timetable ends on 7 November 2025, with a schedule of unresolved objections and a case management hearing. The respondents’ orders do not take into account the preparation of a trial or court book, or of the provision of submissions, and these would need to be factored in.

20 The applicant seeks that the hearing dates be maintained, and that if there is an issue with the respondents’ ability to put on its expert evidence (in particular, in reply to the recently completed and served expert evidence) then the hearing could commence in September, and be adjourned to the next available dates before me for the experts to give joint evidence, and for submissions. I indicated that the next possible available dates before me were in December 2025, and then some time in April or May 2025, to which I add, there may be a week in early February 2026. The respondents seek that the matter be adjourned, and would be willing to meet a bifurcated hearing.

21 The respondents pointed to the continual breaches of the orders for the filing of evidence and the limited time, just over two months before the hearing date. They noted that while the applicant’s expert has had months to prepare its very extensive report, the respondents would, on the applicant’s proposed orders, need to file their lay evidence by 11 July 2025 and their expert evidence by 12 September 2025. The applicant conceded that perhaps an extra week for evidence may be able to be provided in its proposed timetable.

22 In response, the applicant pointed to the extraordinarily protracted process of discovery by the respondents, and submitted that the respondents had compounded the amount of litigation that the applicant had had to deal with to create a self-fulfilling prophecy of an inability to meet the trial dates, citing Luck v The Chief Executive Officer of Centrelink [2015] FCAFC 75 (Collier, Griffiths, and Mortimer JJ). The applicant described the interlocutory application before the Registrar and then the Review of Registrar’s Decision on discovery as “unmeritorious”, and pointed to aspects of one of the affidavits in support of the application for vacation of the hearing date by one of the respondents’ solicitors as being replete with conscious choices not to provide all of the information which this Court would need to determine whether to vacate the trial date, such as the number of lay witnesses, whether work had commenced on the respondents’ lay evidence before now, and what the names of those witnesses were.

23 The applicant describes the timing of the estimates for the provision of the respondents’ lay evidence (12 weeks) and the expert evidence, somewhat longer, to be conveniently close to the hearing with no explanation of what had been done in the meantime. The applicant notes that, while there had been delays in providing its evidence, the respondents could and should have been working on reply evidence to the four lay affidavits served on 30 April 2025, and to the IT expert’s report which was served in May 2025. It submits that there is no explanation as to why this did not happen. And, it says, if the delay was so egregious and the time so short, the application to vacate the trial should have been brought well before the end of June.

24 The respondents submit that the applicant has failed to comply with any of the orders, except for the provision of four affidavits by lay “non-quantum” witnesses by 30 April 2025, in accordance with my orders of 17 April 2025. The defaults as to the expert evidence, it is submitted, have not been explained. As noted above, Mr Ross’ evidence was only served last week, and the orders for its service have been in default since the orders of Yates J of 5 February 2024 required it to be served by 28 June 2024. On that view, it is nearly a year late.

25 The meat of the respondents’ case is that they cannot be ready for the hearing in September.

26 I have referred to the applicant’s analysis of what it calls “an extraordinarily protracted discovery process”.  Discovery has involved 19 tranches and the repeated need for the applicant to approach the Court to compel the respondents to give what they say is proper discovery, and a delay in the bringing of an application to vacate the trial date (the applicant saying it should have been brought on or around 17 August when the respondents were aware that it would have difficulties providing the evidence in response to Mr Ross’ report in time for the trial). Mr Williams, solicitor for the applicant, sets out in his affidavit a timetable of what he says are discovery failures which more than explain the lateness of Mr Ross’ evidence. He notes that “over half (sic) of all the Respondents’ discovery (75,800 of 16,442 documents) were produced after [8 November 2024]. Documents were still being produced by the Respondents from February to May 2025”.

27 Mr Williams says that “the Applicant has consistently maintained in the proceedings that discovery had to be completed before it filed its evidence and each timetable for evidence provided for this to occur”. That is not exactly the case, given that the 26 September 2024 orders provide for further evidence by the applicant four weeks after discovery had been completed as noted above, and the 17 April 2025 order does not make any provision for further discovery prior to lodgement of evidence.

28 It is true, as contended for by the applicant, that discovery has been protracted. It is also true that it has now served a significant expert forensic accountant’s report in two tranches (the first being 76 pages with seven appendices, the second being 112 pages with eight appendices), the second tranche being served just last week.

29 I note that the trial date was set down, on a timetable, with the applicant’s evidence being completed in chief by mid-December last year.

Authorities

30 I turn now to the authorities cited to me by each of the parties. Each side referred me to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27[; the respondents noting the focus of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [93] on the need for a timely and cost-effective resolution of a dispute, and the applicant on the factors (at [30] (French J) and [103]-[114] (plurality)) to be taken into account in considering vacation of a hearing:

(a) whether there is a satisfactory explanation for the adjournment sought;

(b) the party’s choices to date in the litigation (and the consequences of those choices); and

(c) the detriment to other parties and to other litigants in the Court.

31 The respondents refers me to Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101 (Keane CJ, Gilmour and Logan JJ) and Birla Mt Gordon Pty Ltd v Miccon Hire Pty Ltd [2013] QCA 363 (Morrison JA, with Holmes JA and Boddice J agreeing) to underscore that “the paramount purpose [of case management orders] must still be a just resolution of the controversy between the parties” (at [86]). The applicant relies on a statement of the Full Court in Jarrett v Westpac Banking Corporation [1999] FCA 425 (Heerey, Carr and Mansfield JJ) at [6], as follows:

The vacating of a trial date which has been fixed, by consent of the parties, well in advance, is a serious step. Parties and their witnesses, solicitors and counsel and the Court itself make important commitments based on the assumption that the trial date will be honoured. And, as practical experience of litigation shows, the approach of a fixed trial date is a powerful incentive to realistic negotiations and possible settlement, all of which is in the public interest.

32 A consideration of all of these authorities leads me to conclude that the decision as to a vacation of a trial date must accommodate not only the parties but the Court and the needs of the administration of justice.

Consideration

33 The outcome of Aon Risk was that the sought amendment and consequent vacation was rejected; that happened during the course of a trial. The fact that there are two months to go before this trial is not determinative either way.  As noted by the Full Court in Cement Australia, “Aon Risk is not a one size fits all case” (at [51]). The weight to be given to the various factors listed in Aon Risk may vary depending on the facts in the individual case.

34 Here, there are issues on both sides. The applicant has been dilatory and offers no other explanation by pointing to discovery not being completed; but clearly this is not the whole story. The respondents say that the lateness of evidence means it cannot meet the trial date, but they have not, it seems, been as forthcoming with discovery as they could have been, and nor have they said that they have commenced work on the response to the lay evidence.

35 I do not, however, agree with the applicant, on the evidence before me, that the faults of the respondents have been deliberate or have been aimed at a delay of the hearing. That submission is based on inferences from the fairly robust way in which these proceedings have been conducted and from the submissions and evidence as to the perceived lacunae in the affidavits of the solicitors for the respondents explaining the delay. I do not agree that there is no explanation, although it could have been more thoroughly detailed. The fierce debate on the Review of Registrar’s Decision issue was finely balanced, and I cannot agree with the applicant that it was an unmeritorious application; a party has a right to seek to review a decision, and that decision was certainly not an obvious or an easy one for me. There is simply not any direct evidence of bad faith which would compel me to take the view that the respondents were not acting in accordance with their professional obligations, as set out in s 37M of the Federal Court of Australia Act 1976 (Cth).

36 My main concern is that these proceedings be determined as soon as possible, but with each party having the opportunity to bring their best case properly prepared. It is not consistent with the objections of section 37M, in particular, the “just resolution of … proceedings before the Court” in sub-s (2)(a), which requires that the respondents have the time it needs to reply to the expert evidence of Mr Ross. It is inconceivable that a proper response to a weighty forensic accountant’s report could take only two or three weeks. The applicant says that the forensic accountant retained by the respondents should be able to do that, and their reasons for not being able to provide a report before September do not stand up to scrutiny; I disagree. That argument may have more force had there been only one missed deadline, but there have been many, and it was reasonably foreseeable that an expert retained to answer a report due in mid- or late- 2024 may have other commitments in the coming two months.

37 The trial date was, it should be recalled, set down with the timetable that the applicant’s evidence, including expert reports, be complete (subject to any supplementation by reference to discovered documents) by 13 December 2024. That has not occurred until last week. It is not to the point to say that some of the extensions to the timetable were agreed to; often the timetables were agreed after the fact of the extension and with an air of inevitability as to the need for an extension of time. In the circumstances, the interests of justice require that the hearing on 1 September 2025 be vacated.

38 I will stand the matter over to a case management hearing on 4 July 2025, or a date reasonably close to that, which is convenient to counsel. The parties should concentrate their respective minds on the steps which need to be timetabled (noting that, apart from the respondents’ position that the applicant should seek leave to amend and the applicant’s resistance to that course, the parties are generally on the same page), the question of whether liability can be separated from quantum, or lay evidence from expert, and the timeframes which would allow, it is to be hoped for at least part of the hearing to be commenced in 2025.

39 In the meantime, my Associate will correspond with the parties as to possible dates, and the Court will make orders for what is hoped to be a final timetable on the next case management hearing, unless those orders can be agreed and the orders can be made by consent in Chambers.

40 My preliminary view is that the applicant should pay the respondents costs of the interlocutory application, as agreed or taxed, with any application for a different cost order to that order to be foreshadowed at the next case management hearing.

41 I will reserve the question of any costs thrown away in relation to the vacated hearing.

Associate:

Dated:    2 July 2025

SCHEDULE OF PARTIES