Federal Court of Australia

BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (Amendment and Strikeout) [2025] FCA 1030

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the Applicant pursuant to r 16.53 of the Federal Court Rules 2011 (Cth) to amend the Amended Statement of Claim by serving a Further Amended Statement of Claim on the respondents substantially in the form proposed with the following amendments:

(a)    omitting the amendments to paragraphs 55A, 82A, 99A, 128B, 135 in so far as they relate to “loss of value (being … reduction in value of [the applicant’s] business)” (Loss of Value case);

(b)    omitting the particulars to all paragraphs of the pleading; and

(c)    re-pleading paragraphs 43 to 43(vii) to include as pleaded material the matters sought to be particularised in:

(i)    43(v) particular (ii);

(ii)    43(vi) particular (iv); and

(iii)    43(vii) particulars (i) and (iii);

including the sub-paragraphs to each of those paragraphs,

by 12 September 2025.

2.    Leave be granted to the applicant to file “Applicant’s Consolidated Particulars to the Further Amended Statement of Claim”, substantially in the form proposed, omitting the following proposed particulars:

(a)    43(v) particular (ii);

(b)    43(vi) particular (iv);

(c)    43(vii) particulars (i) and (iii); and

(d)    any particulars to the Loss of Value case;

by 12 September 2025.

3.    Leave be granted to the applicant to file Confidential Annexure D substantially in the form proposed but omitting the particulars to the Loss of Value case.

4.    Leave be granted to the applicant to file an Amended Consolidated Particulars document when discovery is complete and/or on receipt of the respondents’ evidence, such amendments being limited to references to additional documents relied upon.

5.    Adjourn the matter for a further case management hearing to a date to be fixed.

6.    Costs of the interlocutory application filed 15 July 2025 to be paid by the applicant.

7.    The interlocutory application filed 21 July 2025 dismissed with costs.

8.    Vacate order 2 of orders made by Needham J on 12 June 2025.

9.    Order that the applicant pay the respondents’ costs of the application to vacate the hearing filed 24 June 2025, as agreed or taxed.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    These proceedings came before me on 4 August 2025 for case management and interlocutory hearing, after the hearing of this matter in September 2025 was vacated (see BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (Application to Vacate Hearing) [2024] FCA 733). The applicant has now filed two Interlocutory Applications which were argued before me on 4 August. Given the fact that one of the applications is for leave to amend the current Amended Statement of Claim (ASOC), and the first tranche of the re-listed hearing is currently listed in December 2025, these reasons are given in as short a form as is possible. The parties have each provided written submissions and have had a full day of oral argument; I have had regard to what has been said in each of those in preparing these reasons.

2    I will refer to the interlocutory application to amend as the AIA. The second interlocutory application seeks to strike out various particulars to the Defence (PIA).

3    On 12 June 2025 I gave reasons in BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (Review of Registrar’s Decision) [2025] FCA 616, refusing the respondents’ application for review of a decision of the Senior National Judicial Registrar for provision of further particulars, with costs. The orders sought in that review application, and the argument before me when it was heard on 4 June 2025, are relevant to the amendment application in the AIA.

4    Attachment A to the Review of Registrar’s Decision sets out the relevant paragraphs of the ASOC and Defence, which have relevance to the arguments in the AIA. These reasons assume familiarity with my previous decisions, and utilise the same defined terms.

5    I am currently reserved on the issue of costs of the Application to Vacate Hearing, which the parties have agreed should be heard on the papers. I deal with those costs in this decision below.

Background to these applications

6    On 7 July 2025, after the Application to Vacate Hearing decision, I made orders that the applicant provide further and better particulars of the ASOC. This was in the context of there having been a discussion between the parties about provision of particulars to various specific paragraphs of the ASOC as proposed by the respondents, and a more general form of order proposed by the applicant, which more general order was eventually made. Those particulars were served in accordance with the order along with amended Confidential Particulars.

7    The applicant filed the AIA on 15 July 2025 and the PIA on 21 July 2025.

Principles relating to particulars in pleadings

8    The applicant sought orders in the AIA:

1.    To the extent that leave is required, the Applicant be granted leave to file:

a.    the Further Amended Statement of Claim;

b.    consolidated particulars document; and

c.    amended Confidential Annexure D,

substantially in the form served by Gilbert + Tobin on Mills Oakley on 15 July 2025.

9    The reference to “to the extent that leave is required” is a reference to an ongoing difference of opinion between the parties as to whether leave is required to provide further and better particulars of allegations in a pleading to bring them into line with the evidence which has been led, ensuring that the particulars now align with that evidence: see Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437; Prowse v Rocklands Richfield Limited [2012] NSWSC 799 (Hammerschlag J) at [13]. Mr Williams, solicitor for the applicant, dealt with this in his affidavit of 15 July 2025 where he said:

(c)    In my experience, it is the orthodox course in litigation before this Court for a party that has provided the best particulars that it can prior to discovery from its opponent to then update its particulars, where relevant, by reference to documents discovered by the opposing party and evidence that has been filed. That is one of the bases on which these particulars are relied on by the Applicant.

(d)    The remaining particulars that do not fall squarely within what is described above relate to paragraph 43 of the ASOC. I have addressed the basis below on which the Applicant relies on those particulars.

(e)    My understanding of rule 16.53 of the Federal Court Rules 2011 (Cth) is that it is directed to an amendment to a pleading or to particulars which would materially change the nature of the case the opposing party would need to meet, as opposed to the provision of additional particulars of an existing pleaded case – which I believe is the case here.

10    The role of particulars as they relate to pleadings has been an ongoing issue in these applications. Rule 16 of the Federal Court Rules 2011 (Cth) (FC Rules) makes it clear that a party may amend a pleading without leave only in the particular circumstances of r 16.51. Any subsequent amendment requires the leave of the Court: r 16.51(2).

11    There is of course some interplay between pleadings and particulars. As I said in The Epoch Holding Group Pty Ltd v Katz (Disclosure of Documents) [2025] FCA 271 at [53]:

It is, as noted during the hearing, “Pleadings 101” that particulars are not allegations of material fact and do not need to be pleaded to; they provide the details of the material facts which prevent the opponent being taken by surprise, and they inform the opponent of the case it has to meet. As the learned authors of Zuckerman on Australian Civil Procedure (Zuckerman, A, Wilkins, S, Adamopoulos, AV, Higgins, A, Hooper, S, Oreb N and Jago, C; 2nd ed, Lexis Nexis, 2023) title their chapter on pleadings – the purpose of pleadings is to “Define the Controversy”.

12    I dealt further with the purpose of pleadings and particulars, and examined the relevant rules, at [15]-[17] of the Review of Registrar’s Decision. In short, the purpose of pleadings is to set out the material facts to be relied upon in the proceedings, so that the issues are sufficiently defined for the parties to understand them, and the purpose of particulars is to prevent parties from being taken by surprise, and to facilitate the collection of relevant evidence.

13    Rule 16.41 provides that “[a] party must state in a pleading, or in a document filed and served with the pleading, the necessary particulars of each claim …”.

14    In relation to particulars, Katzmann J said in Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No. 3) [2011] FCA 539:

10    Young CJ in Eq provided a convenient summary of the relevant principles in Deemah Marble & Granite Pty Ltd (in liq) v Sutherland [2001] NSWSC 829 at [6] (“Deemah Marble & Granite”):

(1)    The basal function of particulars is to reduce costs by alerting the opponent to the scope of the real case being made so the opponent is not caught by surprise, nor does the opponent waste time and money in preparing to meet issues that the other party does not intend to raise: see eg Sims v Wran [1984] 1 NSWLR 317, 321 and Banque Commerciale SA (In Liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286.

(2)    Particulars are supplied of the material facts pleaded as P E Joske J said in Trade Practices Commission v Total Australia (1975) 24 FLR 413, 417:

“While the defendant is entitled to know the case it is called upon to meet, it is not entitled to be told the evidence that will be called to prove the case. A defendant is entitled to ask for the material facts upon which the plaintiff will rely and he may make his request for the facts and matters relied on, which is taken to mean the same thing. When he asks for the facts and circumstances relied on he is going beyond the scope of particulars, and is probing for evidence.”

(3)    However, every litigation lawyer knows it may be appropriate, in order to carry out the aim which I have stated in (1), it will almost be inevitable to disclose some of the evidence, and that if this happens, it is no answer that evidence must be disclosed by the giving of the particulars. See Sims v Wran at 321 and Wilson v Wilson (1952) 69 WN 358.

(4)    The party’s obligation is only to supply the best particulars he or she can supply, provided that after discovery those particulars are supplemented, if possible; see Marshall v Inter-Oceanic Steam Yachting Co (1885) 1 TLR 394.

(5)    When one party has the means of knowing the real facts, ordinarily the opponent will not be ordered to supply particulars until after discovery: Millar v Harper (1888) 38 Ch D 110; TPC v CC (NSW) Pty Ltd (1995) 131 ALR 581, 593.

(6)    The degree of particularity depends upon the nature of the case: American Flange and Manufacturing Co Inc v Rheem Australia Pty Ltd [1963] NSWR 1121, 1126.

(7)    In equity, because other remedies may seem appropriate, and because evidence is filed by affidavit, the Court is less likely to order particulars and will not permit parties to slow down proceedings unjustifiably in their preparation for trial. This proposition is partly derived from the American Flange case and partly from the tactic used up to about 1980 by large firms acting for defendants, who created delays by constant requests for copious particulars, a worldwide phenomenon, as shown by the judgment of Wessels JA in the Appellate Division of the Supreme Court of South Africa in Moaki v Reckitt & Colman (Africa) Ltd (1968) 3 SA 98, 102.

(8)    The order for particulars is discretionary, the object being to ensure the efficient process of the Court.

11    The point his Honour made at (7) is of particular relevance here. In Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd [2006] FCA 1395 at [17] French J (as his Honour then was) went further:

What are “necessary” particulars of any claim, defence or other matter pleaded is a matter of judgment. The underlying principle is that the case of each of the parties is adequately exposed to the other. It is important to maintain a sense of balance in the detail of particulars sought and ordered. The provision of particulars should not be allowed unduly to increase the cost and delay associated with litigation. In contemporary commercial litigation where, frequently, the court will direct the filing of witness statements or affidavits on either side subject to the right to cross examination, the necessity for elaborate particulars and lengthy debates about them is even more questionable.

12    These remarks are reinforced by the terms of Part VB of the Federal Court of Australia Act 1976 (Cth) (“the Act”). Section 37M(1) declares that the overarching purpose of the civil procedure provisions of the Act and Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (“the overarching purpose”). Section 37M(3) imposes an obligation on the Court to exercise any power conferred by the Act or the Rules in the way that best promotes the overarching purpose.

15    Power Infrastructure was a case decided on the predecessor to r 16 of the FC Rules, but the principles, in particular the reference to s 37M, remain apposite. In particular, Young CJ in Eq’s points (4) and (5) in Deemah Marble & Granite Pty Ltd (in liq) v Sutherland [2001] NSWSC 829 are particularly relevant even though that case was a determination of the extent of a request for particulars.

16    A number of paragraphs of the ASOC provide that further particulars will be provided “after evidence and discovery” – see for example paragraph 124A of the ASOC. That is a fairly unexceptionable form of particulars, and reflects Young CJ in Eq’s point (4) above.

17    The dispute between the parties is not only how specific the particulars need to be, but also how far the particulars need to go to define the applicant’s case. The instant case is a very discovery-heavy one. The applicant’s allegation is that the respondents or some of them engaged in contractual breach, tortious conduct, misleading and deceptive conduct, unlawful interference with contractual relations, a commission of a breach of confidence, and infringed copyright, and so much of the detail of the applicant’s claim is found in discovery. Much of what the applicant knows about the respondents’ alleged conduct has been gleaned through discovery – both pre-trial, and over the last few years. The parties have (or will) put on affidavits and expert reports. The respondents take a fairly stringent view that the applicant should be held to the specific lists of customers (for example, in Confidential Annexures A, B, and C) and should not have to “sift through affidavits” or tender bundles to “ascertain [the applicant’s] case”.

18    Updated lists of matters such as customer names, dates of correspondence relied upon, and, (using paragraph 124A as an example) the representations that the respondents made to third parties as to the quality of the applicant’s products to lure them to subscribe to one of the respondents’ products, can and should be updated as the discovery is provided and the evidence is adduced. Paragraph 124A of the ASOC contemplates this process; the particulars lead with “(i) The best particulars that BCI Media Group can currently provide are that …” and end with “(ii) BCI Media Group will provide further particulars after evidence and discovery”.

19    To that limited extent, I agree with the applicant that particulars can be supplemented by material of that kind, most helpfully in this case by filing an amended consolidated particulars document. The parties have now undertaken the process of a consolidated particulars document, and are now agreed on all but two aspects (as set out below).

20    Rule 16.53(1) of the FC Rules makes it clear that “a party must apply for the leave of the Court to amend a pleading” (unless r 16.51 applies as described above). See Unilever Australia Ltd v Revlon Australia Pty Ltd (No 7) [2015] FCA 137 where Gleeson J said (at [43]):

By rule 16.53 of the Federal Court Rules 2011 (Cth), unless rule 16.51 applies, a party must apply for the leave of the Court to amend a pleading. The power to amend pleadings includes the power to amend particulars.

See also Younan J in Hanson v Burston (No 3) [2025] FCA 761 at [45] and [47].

21    The above principles are relevant to parts of both the AIA and to the PIA. I will deal with each application in turn.

The AIA

22    The AIA seeks to amend the ASOC in the form of the proposed Further Amended Statement of Claim (proposed FASOC) which was served on 15 July 2025. It also seeks to rely on the combined Consolidated Particulars, and Confidential Annexure D, which includes some new particulars reflecting the damages calculated by the applicant’s expert, Mr Ross, and item 3, headed “Lost Value”, which is the particulars, again calculated by Mr Ross, to the new paragraph 55A in the proposed FASOC. These were referred to in argument as the Pleading Amendment, Inferential Particulars, and Loss of Value case (which was flavoured by the respondents as the “New Loss Case”).

23    The applicant set out the amendments in the proposed FASOC in their submissions in support of the AIA as follows:

The amendments fall into the following categories:

(a)    The further and better particulars served on the Respondents on 20 June 2025 in response to a request for particulars made by the Respondents on 28 May 2025 and Order 7 made on 13 June 2025. They are further and better particulars of documents discovered by the parties and evidence served by BCI. The amendments are underlined in that document. Further amendments have been made to that document, which are double-underlined (such as particulars to paragraphs 4 and 7 of the ASOC identifying documents discovered by the Respondents demonstrating that the Cordell received revenue from customers in respect to Cordell Connect, contrary to the Respondents’ denial).

(b)    Amended Confidential Annexure D which sets out updated particulars of loss suffered by BCI to reflect the expert evidence in Andrew Ross’s report of 25 June 2025 (being the quantum of the loss subscription fee revenue and loss of value of BCI’s business as summarised in Figures 1 and 2 and paragraphs 2.2.9-2.2.10 of that report). Similar amendments are made to paragraphs 55A, 82A, 99A and 128B of the ASOC to reflect the loss of value of BCI’s business summarised in paragraphs 2.2.9-2.2.10 of Mr Ross’s 25 June 2025 report.

(c)    Amendments to the ASOC to refer to documents generally (not limited to spreadsheets as currently pleaded) in paragraph 42A and 42B and dates in paragraphs 27 and 43(i)-43(vii) of the ASOC, to reflect documents discovered by the Respondents.

(d)    Amendments to the ASOC to plead that Cordell received revenue from customers for Cordell Connect during the relevant period (paragraphs 43(vii), 82C((d)), 82D, 82E(a), 99C(d), 99D and 124A). As noted in (a) above, that arises from documents discovered by the Respondents being inconsistent with their denial that Cordell conducted any business.

(e)     Amendments to paragraph 124 of the ASOC to plead the additional “Third Party Representations” that have come to light from the Respondents’ discovery.

24    In a helpful aide-memoire provided after the hearing at the request of the Court, the only areas of amendments which are now opposed are:

•    Pleadings: BCI’s claim for loss of value: 55A, 82A, 99A, 128B, 135

•    Particulars:

•    Inferential particulars – 43(v), 43(vi), and 43(vii)

•    BCI’s claim for loss of value – 55A, 82A, 99A, 128B, 135.

25    Accordingly, the only matters which the parties agree that I need to determine are the “inferential particulars” and the “loss of value case”.

26    Much of the applicant’s pleading difficulties, in this application and in the past, arise out of the need to avoid proving each instance of alleged misconduct by the respondents, given that there are many tens of thousands of invoices and customer records relied upon. Both sides are of the view that that kind of proof should be avoided. In doing so, however, the respondents are entitled to know what the applicant’s case will be.

Principles relating to an application to amend a pleading

27    The applicant relied on various authorities such as Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 and Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2015] FCA 1098 (Gleeson J) to contend that amendments to pleadings should be allowed that “are necessary to ensure the real questions in controversy between the parties are decided”, citing Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 1536 at [55] (Gleeson J). It submitted that generally amendments which do not cause prejudice which cannot be compensated by an award of costs or an adjournment, and which are not obviously futile, should be allowed (see Lynch at [55]). Amendments where the purpose is to “align the pleadings with the evidence” should generally be allowed, even during or towards the end of a trial; Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664, cited in Tamaya at [144]. However, as the trial grows closer, substantial new claims or reconfigurations of existing claims are less likely to be allowed.

28    The respondents took me to various authorities to support their argument that a party’s opportunity to amend a pleading is subject to limits, and that costs may not always be “sufficient compensation” (Clurname Pty Ltd v McGraw-Hill Financial, Inc [2017] FCA 1319 at [56] (Wigney J)); a party may not “sit on” a case which it wishes to advance if it is “demonstrably inefficient” and “good reason” as to the delay had not been included (Tamaya Resources v Deloitte Touche Tohmatsu [2006] FCAFC 2; (2016) 332 ALR 199 at [100] (Tamaya FC) (Gilmour, Perram, and Beach JJ)); and that a failure to provide an explanation for delay may result in “an insurmountable difficulty” in obtaining leave (Murden v NM Superannuation Pty Ltd [2025] FCA 148 at [28] (Derrington J)).

Inferential particulars

29    Within paragraph (c) of the applicant’s characterisation of the amendments at [23] above is an issue arising out of the amendments to particulars of paragraphs 43(i) to 43(vii) of the ASOC. The applicant submits that the amendments are confined to “dates in paragraph … 43(i)-43(vii) of the ASOC, to reflect documents discovered by the Respondents.” The applicant argued that the particulars in question were already the subject of a grant of leave allowed by order 7 of 13 June 2025. However, if leave needs to be sought, it said:

The only matter which has been raised by the Respondents is the suggestion that the further and better particulars to paragraphs 43(v) to 43(vii) articulate an inferential case that has not been pleaded. That is not correct. As Mr Williams identifies in his 15 July 2025 affidavit, BCI identified to the Court during the Respondents’ application to review the Registrar’s decision that the conclusion pleaded in paragraph 43(v) and 43(vi) is based or to be inferred from the matters pleaded in paragraph 43-43(iv). The Court recognised that in [37] and [42]-[44] of BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (Review of Registrar’s Decision) [2025] FCA 616.

The particulars provided to paragraph 43(v) (and similarly to 43(vi) and (vii)) expressly identify that. They also identify three matters which also support the conclusions pleaded in those paragraphs … [and then the submissions go on to identify matters already pleaded or particularised, and to the expert’s reports].

30    The respondents contended that the applicant’s proposed particulars were that which were identified as lacking in the respondents’ application, and dismissed, on the application determined in the Review of Registrar’s Decision. The applicant resists the respondents’ analysis that the amendment should not be allowed on the basis that this inferential case was expressly disavowed as being relied upon during the Review of Registrar’s Decision hearing (see [18]-[44]).

31    In very short compass, the respondents in their application for review sought orders that the applicant plead the basis of what the respondents contended was a “necessarily inferential case”, by way of the provision of particulars linking the facts in paragraphs 43(i)-43(iv) of the ASOC with 43(v) and 43(vi). The respondents sought particulars which identified the facts and matters relied upon to support the allegation that “by presenting the information [specified in 43(i)-43(iv)] … [the relevant respondents] induced customers and prospective customers of BCI Media Group to believe that the information in Cordell Connect was more comprehensive and accurate than the information in LeadManager”. At [45] of the Review of Registrar’s Decision I said:

It seems to me that the CoreLogic parties have not made out their contention that there is a necessarily unpleaded case underlying the pleadings in paragraphs 43(v) and (vi). Where BCI has expressly disavowed that position, and has pointed to the way in which it intends to run its case by proving the process and the directions to staff from which, it says, it can prove the inducement to customers and potential customers, it does not seem to me that the CoreLogic parties are unable to run their case on the pleadings and particulars currently provided.

32    The proposed FASOC now includes additional particulars to paragraph 43(v) which commence:

(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 be 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 …

33    Similar conclusory statements appear in the particulars to paragraphs 43(vi)(subparagraph (iv)) and 43(vii)(subparagraphs (i), which is not new, and (iii)).

34    The respondents said, robustly, that the leave sought to file the proposed FASOC with these particulars introduces the “previously (and recently) disavowed inferential case as to the matters pleaded in paragraphs 43(v) and 43(vi) of the ASOC”.

35    The transcript of argument before me on 4 June 2025 is set out in paragraph 27 of the affidavit of Mr Williams of 15 July 2025. The respondents asserted that, in relation to the pleading in paragraphs 43 of the ASOC:

… they are running an inferential case. … It’s entirely permissible for parties to seek to prove facts on the basis of establishing inferences, but the cases require, as a core and indispensable requirement of the pleading, to properly disclose the case to the other side, but the fact that a particular allegation is going to be established by inference, be identified, and importantly, the foundational facts, the facts relied upon to support the inference, are also identified in the pleading, and in this case, they’re not. That’s what the application is about.

36    The point raised by Mr Hastie, counsel for the respondents, on that occasion was there was no identification of the way in which the facts on which the pleading in paragraphs 43(v)-(vii) is based could be inferred from 43(i)-(iv). He made the point that the “earlier paragraphs speak to a general process” and that there was “nothing in those paragraphs that could possibly support an inference that those very specifically identified customers in the annexures were shown comparative documents and then caused to think certain things”. He went on to say that “… it says nothing at all which would support an inference that … any one or more of the specific customers identified in those lists were in fact the customers contacted. … There must be something more …”.

37    In response to this, Mr Hennessy SC, senior counsel for the applicant, said (quoted at [42] of Review of Registrar’s Decision):

… the opening words [of 43(v) are] “by presenting the information in the comparative documents”. That is language that, self-evidently, refers back to previous sub-paragraphs that make a series of factual allegations about the deployment of information in the comparative documents by presentation, much of which is admitted in some form or another.

38    In the Review of Registrar’s Decision, I noted that the applicant relied on the whole of paragraph 43 being read together, and because it had “steadfastly rejected the view that the way to proof lies in proving an inference, it is on notice as to how it needs to prove its case” (at [48]). On that basis I was “not minded to order the further particularisation of the claims in 43(v) and (vi)” (at [47]).

39    What the applicant has now sought is to make amendments to the particulars to paragraphs 43(v), (vi) and (vii) which specifically link those sub-paragraphs to (i)-(vi) by the use of the words “it is to be concluded”. Sub-paragraph 43(vii)(i) already contains a particularisation of an inference. Despite my indication quoted above that I would not order further particulars in relation to these paragraphs, the applicant has exercised the general liberty it contended for to seek to add the particular alleging a “conclusion” (which is a synonym for an inference; see the online Macquarie Dictionary definition 4.b of “inference” which is “the process of arriving at some conclusion”, and 6 of “conclusion” which is “a deduction or inference”).

40    Those amendments were provided to the respondents some 8 days after the Review of Registrar’s Decision was delivered, providing what the respondents characterised as “a long list of facts which are said to support the conclusions” in paragraphs 43(v) to 43(vii).

41    The respondents contended that the amendments are those the need for which was disavowed by BCI during the Review of Registrar’s Decision hearing, and said that the Court needs to hold parties to the choices they make in litigation, where those choices are not adequately explained and are prejudicial to the other party. They contended that to allow the inferential particulars would be to risk a loss of confidence in the public in the administration of justice. They said that the departure from the previous position is such that a detailed explanation is required, and that where the departure from the position argued before the Registrar and on review (where a costs order was made against the respondents – order 2 of the orders of 12 June 2025), the prejudice is more than merely costs, but also the time and energy spent arguing the matters before the Registrar and on review which, semble, could be spent on other aspects of this litigation.

42    The respondents also contended that the particulars to 43(v) to (vii) are incomplete, as they include (in the Confidential Particulars A, B, and C) the names of customers who have been identified as having had “dealings” with the CoreLogic parties. What “dealings” are is not explained. Mr Cliff, the solicitor for the respondents, put on evidence noting that some of the customers are not referred to in the applicant’s Customer Relationship Management program , and if they were, were referred to in a way which does not make it clear that there was any contact between the customer and one of the respondents. Further, the respondents complained that the applicant has reserved its right to provide further particulars of paragraphs 43(v), (vi), and (vii), and so say that the case is incomplete.

43    In reply, the applicant said that the evidence and submissions in the Review of Registrar’s Decision hearing, and Mr Williams’ explanations, as well as paragraphs [42]-[44] of the reasons for decision, make it clear that the applicant has “pleaded an inferential case which includes but is not restricted to paragraphs 43(v) and (vi)”.

Consideration of inferential particulars case

44    The opposed particulars are those given to paragraphs 43(v), 43(vi), and 43(vii).

45    The real difficulty in the opposed particulars is that some parts of them – in particular the contentious phrasing in particular 43(v)(ii) of “[i]t is to be concluded that customers and prospective customers … were induced to be believe [that the respondents’ product was a better one than the applicant’s product]” – are more appropriately matters which should be pleaded, rather than provided in particulars. This has caused the tension referred to above with the respondents treating the particulars more as pleadings and seeking more refinement, and the applicant resisting more precision by reference to the role of particulars.

46    I do not agree with the applicant’s contention that “that [it] is running an inferential case is not a new development” when it comes to the inference, under the guise of a conclusion, in the proposed new particulars to 43(v)(ii). While paragraphs 43(i) to (iv) of the ASOC state the basis of facts upon which the matters in paragraph 43(v) are built, 43(v) leads with “[b]y presenting the information in the Comparative Documents to customers and prospective customers …” and then pleads that those customers were in fact induced. The previous particulars only provided the three lists of customers in Confidential Annexures A, B, and C.

47    By now including an express pleading of an inference (or conclusion) in the particulars, the applicant is seeking to expand, in particulars, the facts on which it relies to show that the customers and prospective customers were in fact induced. That expansion goes against the position it took before me in the Review of Registrar’s Decision. As noted by Mr Hennessy in the Review of Registrar’s Decision and quoted by me at [42] of those reasons:

And that point addresses argument 1 by my friend immediately before lunch, because his point was that we have not identified the inferential case in paragraphs 43(v) and (vi). My point, with respect, is, of course we have, because 43(v), acknowledged by my learned friend both in writing and in oral submissions to be a pleading about the consequences of the conduct pleaded earlier, is referring to that earlier conduct, and that conduct is not to be mischaracterised as simply allegations about a general practice. They are specific allegations about the use of my client’s information in documents that were presented to customers and potential customers.

48    The applicant characterised the new particulars to 43(v) as merely “identify[ing] the conclusions” sought to be drawn from paragraphs 43 to 43(iv). But they go further than that. Particular (ii) expressly asserts that conclusions can be drawn from other facts alleged in the pleading; some of those facts are (as the applicant rightly pointed out) admitted (for example, paragraph 22 of the ASOC) and some facts are “examples” of documents demonstrating reduction in churn and increase in revenue of the respondents, presumably relying on the documents discovered, and on the expert’s report.

49    The difficulty with this “identification of the inferential case” is that the pleading with its original particulars was robustly defended on the last occasion as being a pleading about “consequences of the conduct” which had been pleaded and particularised in paragraphs 43(i) to (iv) of the ASOC. The applicant seeks now to do what it said it did not need to do, which is to bring into paragraph 43(v) the documents upon which it said the pleaded fact in paragraph 43(v) can be concluded (or inferred), after some months of litigation about that very prospect. The proposed particulars seek to link previously pleaded facts, as well as new matters, and ask the Court to draw relevant conclusions.

50    Parts of the new particulars to 43(v) do, in fact, align the particulars with the documents that have now been discovered. For example, particular 43(v)(iii)(E) sets out the “presentations”. It seems to me that these would more properly be particulars to paragraph 43(iv). Those particulars may remain on the basis that they are lists of documents that have come to light.

51    However, in relation to the main points of contest (the particulars alleging that “it is to be concluded that …”), it seems to me that the applicant is seeking to include in the new particulars matters which properly should have been in the body of the pleading, in particular the contentions as to the effect of the presentations and representations as to the quality of Cordell Connect over LeadManager. For example, the proposed particulars to 43(v) (quoted at [32] above), are an assertion that the Court should draw a conclusion from matters pleaded in other paragraphs of the pleading, which conclusion factors in (as a particular) the central facts that Confidential Annexure A customers ceased being customers, and Confidential Annexure B customers stayed on being provided with a discount, and Confidential Annexure C customers did not become customers of the applicant, because of the matters pleaded in paragraphs 43 to 43(iv), and 50. These are matters that should have been expressly pleaded, and not merely included as particulars. My view is that if the applicant wishes to rely on these conclusions, it should have pleaded them when the matter was first pointed out by the respondents, instead of relying on “the whole of paragraph 43 [including sub-paragraphs (i)-(vii) being] read together” as submitted by the applicant in the Review of Registrar’s Decision to demonstrate the process, and the effect of the process, relied upon.

52    I am of the view that the particulars now provided to paragraphs 43(v)(ii), 43(vi)(iv), and 43(vii)(iii) were the specific kinds of particulars which were being sought from the applicant by the respondents during the Review of Registrar’s Decision process. Were those particulars to have been given at that stage, it is likely that there would have been no need for that process. It is most unsatisfactory for the respondents now to have to deal with the proposed conclusory matters in a new set of particulars.

53    I have pondered at length what the outcome should be. Rejecting the new “conclusory” particulars to 43(v), (vi), and (vii), and holding the applicant to the case as argued before me in the Review of Registrar’s Decision hearing has its attractions. However, it seems to me that if this course is taken, there will inevitably be further arguments about the way in which evidence is to be used and how it fits into the applicant’s case.

54    If the applicant is now seeking to link, in the specific way proposed, the material facts which are being included in the particulars, it will need to plead them specifically in the body of the FASOC, and the respondents would need to amend its defence to plead to them in response. The particulars then will be able to be confined to the Confidential Annexures and to other documents which provide details around the material facts pleaded, and will save the parties (and the Court) from having to have the argument, once more, when the matter finally proceeds to a hearing, as to how and in what circumstances the applicant contends the conduct of the respondents affected the conduct of the customers listed in the Confidential Annexures.

55    Consequently, and in the interests of having the issues properly defined in the pleadings where they should be, I will order that the applicant have leave to re-plead paragraphs 43 and its various sub-paragraphs to allege the material facts, and to restrict the particulars to matters which are properly the subject of particulars such as names of customers and employees, dates of emails and the like. In doing so, I make a plea for more intuitive numbering to be used. The following paragraphs of the particulars should not be included as particulars, but should form part of the body of the pleading:

(a)    43(v) particular (ii);

(b)    43(vi) particular (iv); and

(c)    43(vii) particular (iii) (as well as particular (i), which is a pleading of an inference which should properly be in the body of the pleading);

in each case including any sub-paragraphs. If the applicant does not choose to replead that part of its claim, and will at hearing rely on the analysis of its case provided during the Review of Registrar’s Decision hearing, then it will need to do so without those particulars.

56    The respondents took issue with the paragraphs which indicate that further material may be relied on post discovery and service of the respondents’ evidence. As set out above, I take the view that within reason this is acceptable and will make orders that the applicant provide a consolidated Particulars document which may be updated from time after the close of evidence and discovery. This is such a case as referred to by Young CJ in Eq in his point 5 in Power Infrastructure (see paragraph [14] above) where the knowledge of what happened is in the hands of the respondents, and until their evidence is finalised and discovery finally complete, the applicant should be able to provide further particulars of what they rely upon as particulars grounding the pleaded matters in contest.

57    As an additional resistance to the new particulars, the respondents additionally suggested that the particulars are incomplete, or confused, or based on an incorrect analysis (for example, they submitted that Confidential Annexure B appears to include every customer offered a discount by the applicant to remain with them, where there is no apparent link between that customer and the respondents. It was suggested that for those reasons the amendments to Confidential Annexures should be disallowed.

58    I do not agree. It seems to me that this is a question of proof for trial, not as to whether the applicant should be allowed to include those particulars in the pleading. As the applicant pointed out in its submissions in reply, it was given leave to amend Confidential Annexures A, B, and C, and the respondents were given the opportunity to file a strike out motion (order 7 of the orders of 7 July 2025) but did not do so.

59    I will make orders reflecting the above reconfiguration of the pleadings and particulars, and bring the matter back before me for a case management hearing after the respondents have had the opportunity to review the new amendments.

Loss of Value amendment

60    The amendments referred to as the Loss of Value case (new, or old) arise out of a head of damage enunciated by Mr Ross, the applicant’s expert report in relation to profits obtained by the respondents and consequent loss of those profits suffered by BCI, resulting in a loss of value of the applicant’s business. The applicant characterised these amendments and the particulars supplied in in the last paragraph of Confidential Exhibit D as merely reflecting the evidence and submitted that the amendments should be allowed as aligning the pleadings with the evidence; see Tamaya at [144]. The submissions for the applicant noted that “the Respondents have been on notice that BCI relies on [the expert’s] reports since they have been served and they have engaged experts … to prepare reports responding to them”. The applicant relied on Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 (Katzmann J) where her Honour said (at [323]):

… there is nothing in Aon or in the FCA Act to suggest that it is irrelevant for the Court to take into account in the exercise of its discretion the desirability that a case be decided on its merits, so as to preserve public confidence in the administration of justice.

61    During the hearing, I asked the applicant whether the Loss of Value claim had been part of the instructions to the expert. The letters of instruction do not expressly include that claim, but asked the expert to consider profits made by the respondents when all the shares in CoreLogic Inc were sold in June 2021. The expert was asked to assume that “BCI’s case is that the impact on BCI’s revenue of the Alleged Wrongful Conduct did not end immediately with the end of the Access Period”.

62    The proposed amendment is to add into the proposed FASOC the words “and the loss of value (being future loss of profits and reduction in value of BCI Media Group’s business)” to the end of each of paragraphs 55A, 82A, 99A and 128B, which plead the loss suffered by reason of the lost subscription fee revenue and prospective customers pleaded in paragraph 43(vi).

63    In summary – the applicant submitted that the Loss of Value case is merely a refinement of the pleading that damages would not end with the end of the conduct, as pleaded in paragraph 136 of the ASOC:

Unless restrained by this Court, CoreLogic Australia, RP Data, Cordell and CoreLogic, Inc will continue to engage in the conduct alleged above and will continue to make profits at the expense of BCI Media Group.

64    A similar but not identical pleading to paragraph 136 was found in the original Statement of Claim filed on 1 April 2021.

65    After the original Statement of Claim was filed, the parties embarked on some two years of argument as to the pleadings, on which Yates J gave two decisions; BCI Media Pty Ltd v Corelogic Australia Pty Ltd [2022] FCA 1128 (BCI no 1) and BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (No 2) [2023] FCA 664 (BCI no 2). In each of these cases, Yates J refused leave to file the versions put forward and criticised the “rolled-up” pleadings. In the pleading the subject of BCI no 2 (the draft ASOC), paragraph 55 included an allegation (without particulars at that point) that BCI had “suffered loss and damage by … (g)(iv) causing damage to the value of BCI Media Group’s business”. This formulation is repeated in other paragraphs of the draft ASOC.

66    There was some discussion during the hearing as to the nature of Yates J’s findings in relation to the draft ASOC which included the pleading in paragraph 48(g)(iv). This is dealt with in [87] and [92] of his Honour’s reasons in BCI no 2:

… One identified loss is that BCI’s actual or prospective customers subscribed to Cordell Connect rather than LeadManager.

…

I accept that there are deficiencies in BCI’s pleading of loss or damage.

67    At [90], Yates J referred to a submission by the respondents that a pleading of loss of subscription revenue, and loss of value to the business, may be “double counting”. At [94]-[97] Yates J set out the deficiencies and required that particulars accompany the new pleading.

68    The pleading of damage to the value of BCI’s business did not, in those terms, make its way from the draft ASOC into the original ASOC as filed, although paragraph 136 remained. Confidential Annexures A, B, and C contain names of customers in the various categories in relation to whom it is claimed the respondents caused loss of their business to the applicant.

69    The expert evidence was filed in two tranches, served on 30 May 2025 and 25 June 2025. The Loss of Value damages appear in the 25 June 2025 report. The later report was referred to by Mr McMeniman, junior counsel for the applicant, as “the one that completes the picture in terms of analysis of both BCI’s and CoreLogic’s revenue and trends in the relevant period”. In part 9 of the second expert report, Mr Ross said that on his Lost Value Calculations the value of BCI based on FME (future maintainable earnings) and EBITDA (earnings before interest, taxes, depreciation and amortisation) on the basis of the impact of the lost future profits set out in reference to the customers in Confidential Annexures A and C would be in a number, or tens, of millions.

70    The respondents submitted that if the Loss of Value pleading amendment were allowed, their experts would require further discovery of various documents (a schedule of which has been prepared and discussed between the parties on the basis that the order for amendment were to be made), and some 12 to 13 weeks after the provision of that discovery, at a cost of around $250,000 plus GST, in order to reply to the expert evidence on this claim. This discovery, it was said, is based on the perceived need for a full valuation of the applicant’s business, a process resisted by the applicant on the basis that Mr Ross did not undertake a formal valuation, but instead used formulae based on FME and EBITDA, and relying on his Lost Value Calculations.

71    I note that were this amount of time allowed for the expert for the respondents to undertake that process, it would not make the timetable set for the completion of expert evidence nor the proposed conclave (to be held before the end of October).

72    Additionally, the respondents asserted that the Loss of Value case is a “rolled-up” pleading of the kind criticised in BCI no 2 at [94], and involves “double counting” given that lost subscription revenues and a loss of value due to those lost subscription revenues is the same loss. At [94] of BCI no 2 Yates J said:

It is not clear how paragraphs 55, 82, 99, 127, and 128 of the draft statement of claim (and the existing particulars of those paragraphs) are to be read with the further particulars that have been provided and, in any event, the further particulars do not rectify the rolled-up nature of the allegations. Moreover, the further particulars are very broad indeed and do not sufficiently perform the function of particulars. In other words, the further particulars are not “particular enough.”

73    The applicant met these claims by proposing to change the “and/or” to “and”, and submitting that Mr Ross ensured, in his second report, that he took care not to double-count revenue.

Consideration of Loss of Value amendment

74    The portions of the proposed FASOC and particulars which are opposed are paragraphs 55A, 82A, 99A, 128B, 135 and the particulars in the Consolidated Particulars document to those paragraphs. The Loss of Value amendments include both future loss of profits and loss of value of the business; I am of the view that the contentious issue is the loss of value of the business (which is what the respondents essentially take issue with, being the case previously raised and not proceeded with, and citing the prejudice they would suffer were they now required to meet such a case). Where I refer to the Loss of Value case below, I am referring to the question of the alleged damage to the value of the applicant’s business, not the future loss of profits.

75    I do not necessarily accept that any response to the Loss of Value amendment requires a formal valuation of the applicant’s business as proposed by the respondents (and as contemplated in the proposed discovery categories). I agree however with the respondents that the Loss of Value case – in so far as it relates to the “damage to the value of [the applicant’s] business” (as pleaded in par 82(b)(iv) of the draft ASOC) – was proposed to be brought two years ago, and was not. That must have been a choice made by the applicant in how the case was to move forward. It is not a sufficient explanation to say that the amendments are merely bringing the pleadings into line with the evidence, when the evidence is based on an expert who was not expressly asked to give his opinion on this issue. It is a substantial damages claim which was not previously expressly pleaded and which has appeared, apparently unbidden, in an expert’s report. That is no proper explanation for what is a return to an expressly pleaded claim from the draft ASOC which did not find its way into the ASOC, and now, some months before the hearing, is sought to be resurrected into the proposed FASOC.

76    In any event, the cases relied upon to ground the “alignment with the evidence” principle do not support a new case being brought by way of inclusion in an expert’s report. One of the cases relied upon by the applicant, Prowse v Rocklands, involved an amendment to include facts and circumstances “particularised in the disallowed amendments as particulars of or facts relevant to [a different] claim”, on the basis that evidence had been completed and the striking out of one claim did not mean that the evidence brought on that claim could not be relied on in the other (see paragraphs [12] and [13] per Hammerschlag CJ in Eq). And the High Court in Dare v Pulham at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ) makes it plain that amendment to accommodate a new cause of action taken from the evidence is not a mere “alignment of the pleadings”:

But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed …

77    Each of Aon Risk and Tamaya deals with substantial new cases being brought into long-running proceedings at a late stage. Katzmann J distinguished Aon Risk, at [317] of Fair Work Ombudsman by noting that the amendment proposed in that case was not a “substantial new claim”, and said (at [316]) that the proposed amendment by the Ombudsman was “very different” from that in Aon Risk.

78    In Tamaya FC the Full Court said (at [100]) that it was “demonstrably inefficient” for a party not to articulate a part of its case until after a year had passed. As Derrington J said in Murden (at [26]):

… the essence of Aon is that emphasis should now be placed upon ascertaining whether a party has had a sufficient opportunity to present their case.

79    I agree with the respondents that the applicant has had a sufficient opportunity to present its case in relation to damage to the value of its business. At this late stage, to allow this cause of action would derail the timetable and so the trial once more. Even though the timetable contemplates one week of hearing in December 2025 and the balance of the hearing in April 2026, I agree with the respondents that it would be inappropriate to commence the trial without the evidence having been finalised, and the pleadings settled. At this late stage, allowing the amendment of the pleading to include the Loss of Value case would not do justice to the respondents.

80    I will make orders disallowing that part of the amendments that relates to the loss of value of the business. The applicant may rely on the amendment as it relates to a future loss of profits. Unless the parties are agreed on any further discovery, I will not make the orders contemplated by the respondents for the documents they say were required for the valuation process.

Costs of AIA

81    While the applicant has obtained leave to amend the pleading and file particulars, the respondents have been substantially successful in refining the areas of amendment and reining in the Loss of Value case as it relates to a case previously abandoned. Those issues took up the majority of the time before the Court. The applicant should pay the respondents’ costs of the AIA.

82    The respondents further submitted that they have suffered a prejudice if, as I have found, the inferential case is to be allowed. In his written submissions Mr Hastie said:

the prejudice to the Corelogic Parties is real. They were put to many months of cost and time in arguing with BCI about the provision of the very particulars BCI now seeks to rely upon. That resulted in a costs order being made against the Corelogic Parties.

83    I agree. In balancing the applicant being able to bring its best case by re-pleading paragraphs 43 to 43(vii), with the prejudice to the respondents, in accordance with the authorities post-Aon Risk cited above, it is appropriate to revisit the costs of the Review of Registrar’s Decision.

84    I have come to the view that I should vacate my orders as to costs in the Review of Registrar’s Decision so that those costs be part of the overall argument as to costs in the proceedings.

The PIA

85    In the PIA, the applicant seeks to strike out paragraphs of the Defence which, it says, are:

(a)    untenable denials (paragraphs 4(b), 7(a), 8(a), 77B, and 124A); and

(b)    non-admissions which the respondents are in a position to admit or deny (26, 27(b), 29, 33(b), 35, 38(b), 41, 74(f), 124; also 41A, 73(b)).

A number of other paragraphs were identified in these and a third category, but were not pressed on the basis of amendments proposed in written submissions and during oral argument.

Strike-out

86    The applicant relied on r 16.02(2) of the FC Rules (evasive, ambiguous, likely to cause prejudice, embarrassment or delay, fails to disclose a reasonable cause of action or defence, or otherwise an abuse of the processes of the Court). It submitted that the striking out of the impugned paragraphs may “substantially reduce the burden of preparing for a trial or the burden of the trial itself” – see Casey v General Motors Australia and New Zealand Pty Ltd [2025] FCA 772 at [11] (Anderson J).

87    The respondents referred to the application as “an audacious attempt to ventilate contested matters which are properly the province of a trial”.

88    The parties have provided a similar aide-memoire as to the parts of the pleadings which remain impugned. I am grateful to the parties for reducing the areas of contest in a significant way. The respondents have indicated they will deliver an amended pleading which will reflect the responses to the paragraphs which are no longer sought to be struck out under the PIA. A timetable for the filing of that defence to the new FASOC can be determined at the next case management hearing.

Untenable denials

89    The applicant relied on evidence obtained through discovery to suggest that the denial that the third respondent, Cordell Information Pty Ltd, operated any business during the relevant period, was untenable. The evidence includes invoices and receipt of revenue for the product Cordell Connect. It was submitted that the documentary evidence makes the denial untenable, and so the denial is without basis, rendering that pleading evasive, embarrassing, and likely to cause prejudice and delay.

90    The respondents submitted that the pleaded denial is “that Cordell was, at all material times, engaged ‘by itself, and through its affiliates, in the business of supply construction data and associated services in Australia’.” They characterise the denial as having a proper basis and not one which should be gainsaid by the fact that invoices were issued in Cordell’s name. They said that RP Data Pty Ltd owned all the shares in Cordell and thereafter, it was submitted, it did not carry on business (although invoices remained issued in the name of Cordell).

91    In reply, the applicant said that the explanation of the respondents in effect confirms their stance that the non-admission is embarrassing, and so should be struck out.

Non-admissions

92    This argument is based on matters raised in the applicant’s Reply. Relying on paragraph 6 of the Reply, the applicant submitted that the Defence “includes numerous non-admissions of matters of fact in response to the material facts pleaded in the Statement of Claim” which are within the knowledge of the respondents. Most of the examples go to the knowledge of one or all of the respondents. For example, in paragraph 27(b), the respondents plead that they “do not know, and cannot admit” whether RP Data received the User Details which were supplied to the Forum Group without the knowledge or consent of BCI Media Group. Each of RP Data and BCI Media Group are parties to the proceedings. Further particulars relate to whether third parties knew that RP Data was using its user details to access the applicant’s products.

93    In paragraph 74(e)-(f) of the Defence, the respondents plead that it could only admit the publication of the Comparative Documents to customers and prospective customers as particularised in paragraph 43(iv). And in paragraph 124, they said they cannot plead to the paragraph in the ASOC because it is not adequately pleaded and particularised (the pleading relates to third-party representations).

94    The applicant’s complaint is made on the basis that the matters pleaded are within the knowledge of the respondents, and a pleading of non-admission or lack of knowledge is contrary to specific admissions in the Defence “which are consistent with the Respondents having that knowledge”. The applicants relied on rr 16.02(2)(c), (d), 16.07(1) and 16.07(3).

95    The applicant proposed that the paragraphs should be struck out or the Court should find and make an order that the allegations of fact which are the subject of the non-admissions have not been specifically denied and are taken to be admitted by operation of r 16.07(2).

96    The respondents countered in relation to the pleadings that involve third parties and said that the non-admissions relate to matters which are outside the knowledge of the respondents. For example, in relation to paragraph 27, the respondents said that they have admitted various matters relating to matters within their knowledge, but not to matters relating to the knowledge of third parties (in this case, the applicant, and Forum Group).

97    In relation to the proposed strikeout of paragraph 43(iv) of the Defence, the respondents said that this should not be ordered while the applicant is seeking to “chang[e] its case” in that paragraph. Further, they said that paragraph 43(iv) does not list customers, or prospective customers, and so pleading in a specific manner is impossible. Paragraph 74(f) relates back to paragraph 43(iv).

98    The respondents criticised the pleading of paragraph 124 and said that it is not much better than the version that Yates J “previously deprecated” – see BCI no 1 at [73]. They said rather than making an application for strikeout it has chosen, appropriately they submitted, to plead a non-admission.

99    In reply, the applicant said that documents produced on discovery demonstrate that the third parties were “in on the game” in providing their user details to the second respondent RP Data, and that the Defence confirms that the subterfuge was because RP Data knew that the applicant would never have granted it a licence. In those circumstances, it says that there should be an admission or a denial of the allegations.

100    In response to the position about paragraphs 43(iv) and 74(f), the applicant said that the respondents “must have” the knowledge that is not admitted in the defence. Similarly, the applicant submitted that the respondents can plead to paragraph 124 given that the representations are extracts from communications between RP Data and customers and they therefore would know how, when and to whom the alleged representations were made.

Determination of strikeout of pleading

101    I am in agreement with the respondents that the denials in the pleadings are not untenable. The situation has more nuance than merely Cordell and RP Data carrying on a business or not. Taking all of the information provided by the respondents, by way of their solicitor Mr Cliff in his affidavit of 28 July 2025, it seems to me that the denials could be properly based. In that case, I decline to order a strikeout on the face of the evidence brought by the applicant.

102    As to the non-admissions, I agree with the respondents that the application seeks a premature determination of the evidence underlying the pleading of the respondents. In particular, it is premature to order a strikeout to the pleading in paragraph 43(iv) when the applicant is seeking to amend the particulars to that very paragraph (and, as I have determined, the particulars to that paragraph will be now matters for inclusion in the pleading). It seems to me that, on the explanation by Mr Cliff, the respondents are seeking to plead to matters within their knowledge. It may very well be that the applicant can prove that the CoreLogic parties knew the position in relation to the third parties; but as was said in KTC v David [2022] FCAFC 60 at [228] (Anastassiou J):

The discretion plainly should not be exercised simply on the basis that the applicant’s case appears to be weak, or on the basis of minor, stylistic or technical deficiencies that could be readily cured. Nor should an unduly technical or restrictive approach be taken to pleadings.

103    I decline to make the orders in the PIA.

Costs of PIA

104    As the respondents have been entirely successful, the applicant should pay the costs of the PIA.

Costs of Application to Vacate Hearing

105    I am reserved on the costs of the Application to Vacate Hearing. The applicant seeks that the costs be reserved, and the respondents seek their costs. In that decision I said:

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 costs order to that order to be foreshadowed at the next case management hearing.

106    My intention in making that indication was to enable the parties to put forward any factors which might incline me away from that position, such as any Calderbank offers which may have been made. Neither has done so.

107    Each of the parties has put on written submissions, which set out their respective positions. I am not moved by the applicant’s arguments that it is more appropriate to reserve the costs of the application; the hearing was vacated because of the dilatory service of evidence and the inability of the respondents to deal with that late evidence – particularly the expert’s evidence – by the listed hearing dates.

108    The applicant should pay the respondents’ costs of the Application to Vacate Hearing application.

Next steps

109    The matter should be set down for a further case management hearing, at which the timetabling of a Defence and any amended Reply can be finalised, and an assessment of whether the matter will be realistically ready for a first week of hearing in December can be discussed.

Associate:

Dated:    27 August 2025

SCHEDULE OF PARTIES