Federal Court of Australia

Quarter Turn Pty Ltd v Reinteractive Pty Ltd (No 6) [2026] FCA 125

ORDERS

THE COURT ORDERS THAT:

1.    The oral application by the applicant to vary the order made on 16 February 2026 is refused.

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

REASONS FOR JUDGMENT

GOODMAN J:

1    On 16 February 2026, I made an order pursuant to s 136 of the Evidence Act 1995 (Cth) that particular documents tendered by the applicant may not be used in any wasted expenditure claim advanced by the applicant in this proceeding. My reasons for doing so were published as Quarter Turn Pty Ltd v Reinteractive Pty Ltd (No 5) [2026] FCA 102 and some familiarity with those reasons is assumed in what follows.

2    In summary, my reasons were: (1) s 136 of the Act confers a discretion upon the Court to limit the use to be made of evidence if there is a danger that a particular use might be unfairly prejudicial to a party; (2) there was a danger that the use of the documents in question for the purposes of a wasted expenditure claim would be unfairly prejudicial to the respondent in circumstances where: (a) the proceeding had been conducted upon the basis that the applicant was pursuing a loss of opportunity claim and not a wasted expenditure claim; (b) had the wasted expenditure claim been identified at an earlier point in the proceeding then the respondent would have: (i) taken a different approach in its defence of the proceeding including considering the filing of lay and expert evidence to address questions such as the nexus of the applicant’s expenditure to the contract between the applicant and the respondent, whether the applicant’s expenditure would have been recovered but for the respondent’s alleged breach of contract, and whether the applicant’s expenditure resulted from its own unreasonable or improvident conduct; and (ii) sought further security for its costs.

3    On 18 February 2026, counsel for the applicant made an oral application for the Court to revisit the order.

4    The Court plainly has power to vary the order: r 39.05 of the Federal Court Rules 2011 (Cth). In exercising that power, the over-riding consideration is the interests of justice in all of the circumstances of the particular case: see, e.g., Greenbot Pty Ltd v Clean Energy Regulator [2025] FCA 369 at [57] to [62] (Horan J), and the authorities there cited. The interests of justice include the interests of finality in litigation, and the overarching purpose identified in s 37M(1) of the Federal Court of Australia Act 1976 (Cth) of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see Greenbot at [63].

5    There are two broad strands to the argument advanced by counsel for the applicant as to why the Court should revisit the order.

6    The first is that the danger of unfair prejudice to the respondent could be ameliorated by adjourning the proceeding so as to allow time for the respondent to adduce evidence of the kind referred to in paragraph [2] above. I note that this proposal does not include any offer to provide additional security for the respondent’s costs.

7    The second strand of the argument involved the reiteration of parts of arguments previously made, including that the respondent should already have put on evidence responsive to the wasted expenditure claim.

8    I am not persuaded by either strand of the argument that it is in the interests of justice to revisit the order.

9    The first strand was not advanced at the hearing of the application for the order. No suggestion has been made that such an argument could not have been advanced at the time nor any reason proffered as to why it was not. The proposed adjournment would also add to the length and cost of the trial and would likely involve the recall of at least Mr Liew for further cross-examination. In these circumstances it is not in the interests of justice, and particularly the matters identified in paragraph [4] above, to revisit the order. In any event, the proposed course would not overcome the prejudice identified by the respondent in circumstances where no further security for costs has been proffered.

10    The second strand is in substance an attempt to re-present previously unsuccessful arguments. As Young J explained in Paras v Public Service Body Head of the Department of Infrastructure (No 2) [2006] FCA 652; (2006) 152 IR 352 at 354 [5] with respect to the predecessor to r 39.05, the rule is not to be invoked “for the purpose of allowing a party to present a case a second time to its better advantage”. It is plainly not in the interests of justice to allow the re-agitation of the applicant’s unsuccessful arguments.

11    It follows that the application must be refused.

Associate:

Dated:    19 February 2026