Federal Court of Australia

Hubexo Australia Pty Ltd v CoreLogic Australia Pty Ltd (Amendment of Defence and Tendency Notice) [2026] FCA 1310

ORDERS

THE COURT ORDERS THAT:

Respondents’ Interlocutory Application dated 22 July 2026

1.    Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and r 26.11(2) of the Federal Court Rules 2011 (Cth), the respondents have leave to withdraw the admission made relating to the defence to the claim of inducement to breach contractual relations insofar as it relates to the allegations of “copying” as pleaded in sub-paragraphs 51(d), 52(d), 53(d), and 54(d) of the Further Amended Statement of Claim (FASOC) dated 12 September 2025, with the balance to be admitted in conformity with the admissions made by the respondents in opening submissions.

2.    The respondents are to ensure that the relevant witnesses whom the applicant wishes to cross-examine are made available for that purpose at a time convenient to the applicant.

3.    The cross-examination of Ms Bolles be broadened to cover the issues which the applicant wishes to raise in relation to the copying of the material.

4.    Pursuant to s 23 of the Act and r 16.53(1) of the Rules, the respondents have leave to file, serve and rely upon a Further Amended Defence, which pleads:

(a)    to paragraphs 51 to 54 in a manner which responds directly to the terms of those paragraphs in the FASOC, and which reflects the admission in opening submissions of all elements of those paragraphs bar the copying element and that the conduct caused damage and loss; and

(b)    otherwise consistently with the admissions made in the respondents opening submissions at paragraphs 18, 19 and 33 and elsewhere if necessary.

5.    The Further Amended Defence be served upon the applicant 7 days after the making of these orders.

6.    Any application by the parties in relation to the Further Amended Defence be served by 14 days after the making of these orders and listed before Needham J at a convenient time.

7.    Costs be reserved to a convenient date.

Prayer 3 of the Applicant’s Interlocutory Application dated 10 July 2026

8.    Pursuant to s 97(1) of the Evidence Act 1995 (Cth), the tendency evidence identified in paragraphs 15, 17, 18 and 19 of the applicant’s Tendency Notice dated 8 June 2026 be admitted for the purposes identified in those paragraphs.

9.    Prayer 3 of the applicant’s Interlocutory Application be otherwise dismissed.

10.    Costs be reserved to a convenient date.

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

REASONS FOR JUDGMENT

Needham J

1    This next chapter in the ongoing saga of Hubexo Australia Pty Ltd v CoreLogic Australia Pty Ltd assumes familiarity with the factual matrix and defined terms used in previous decisions, including the decisions of:

(a)    BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (Review of Registrar’s Decision) [2025] FCA 616;

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

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

(d)    Hubexo Australia Pty Ltd v CoreLogic Australia Pty Ltd (Amendment of Defence) [2026] FCA 547.

2    The applicant was formerly known as BCI Media Group Pty Ltd and is generally referred to in this litigation as BCI.

3    This judgment concerns two applications. The first is an application by the applicant dated 10 July 2026 seeking (among other things not presently relevant) that the tendency evidence identified in the applicant’s Tendency Notice dated 8 June 2026 be admitted pursuant to s 97(1) of the Evidence Act 1995 (Cth) (Tendency application). The second is an application by the respondents dated 22 July 2026 seeking to amend their defence and, to the extent necessary, to withdraw an admission (Amendment application).

4    As a reminder, one of the applicant’s claims, appearing under the heading “Breach of Contract” in paragraphs 51 to 55B of the FASOC (Inducement Claim), is that the respondents induced three “dummy” subscribers (Forum Group, Skilltech, and Gingold) to subscribe to BCI’s platform LeadManager and to breach their respective contracts with the applicant by allowing RP Data, one of the respondents, to use those subscriptions and to “access and copy information from LeadManager manually and by using computer programming routines” (emphasis added): see FASOC paragraphs 51-53, in each case, sub-paragraph (d). The allegation of accessing and copying also appears in sub-paragraph 54(d) although that sub-paragraph was not the primary focus of the parties in argument. The words “and copy” above in bold are the basis of the Amendment application. The allegation as to accessing and copying is denied in the Amended Defence.

5    While the Tendency application was argued first, the question of whether the respondents should be allowed to amend their Amended Defence further is best determined before the Tendency application, as the terms of the pleadings are relevant to the issues in dispute in relation to which the documents referred to in the Tendency Notice are sought to be admitted.

Questions in dispute

6    The following questions arise:

(a)    Should the respondents have leave to withdraw an admission?

(b)    If so, should the respondents have leave to amend the Amended Defence?

(c)    Was the applicant’s Tendency Notice adequate? (s 97(1)(a) of the Evidence Act).

(d)    In the light of the pleadings as they stand after the Amendment application, is the evidence of “significant probative value”?

(e)    Should any of the documents, and if so, which, be admitted to prove a tendency?

7    I have answered these questions as follows:

(a)    Yes, with a limitation.

(b)    Yes, with restrictions.

(c)    Yes.

(d)    Where issues the subject of the tendencies are not in dispute, no; otherwise, yes.

(e)    Yes – in relation to Tendency 2 and Tendency 4 (as defined below).

8    In relation to costs, I am inclined to order that the costs of the Tendency application be the applicant’s costs in the cause. As for the Amendment application, my initial inclination is that the respondents should pay the applicant’s costs of the application, and any costs thrown away, on the indemnity basis, as agreed or taxed forthwith (despite the provisions of r 40.13 of the Federal Court Rules 2011 (Cth) (FC Rules)). However, I am open to hearing from the parties on costs.

The respondents seek to amend their Amended Defence

9    The current pleadings have been on foot since 12 September 2025 (the FASOC) and 14 October 2025 (Amended Defence). The words “and copy” in paragraphs 51-53(d) were contained in the Amended Statement of Claim filed on 29 February 2024, and prior to that, the Statement of Claim filed on 1 November 2023, in substantially the same if not identical context.

10    Paragraph 51 of the FASOC reads:

51.     In and after July 2016, the [relevant dummy subscriber] breached [its] Subscription Agreement by:

….

(d)     allowing RP Data to use their User Details to access and copy information from LeadManager manually and by using computer programming routines (cl 2.3, 3.1, 4.1 and 5.1 of the [relevant dummy subscriber’s] Subscription Agreement; cl 2.1(a) of Fair Usage Policy).

11    Paragraphs 52 and 53 mirror this pleading for the other dummy subscribers, but with slight variations, such as in relation to the time period of the alleged breach and the relevant clauses of the subscription agreements. Paragraph 53 also includes a reference to “or web scraping software” after “computer programming routines”.

12    The current Amended Defence denies each of sub-paragraphs 51-53(d) (again with variations, including as to changes in the terms of the relevant subscription agreements). Paragraph 52 of the Amended Defence provides (relevantly):

… the Respondents:

(d)    deny the allegation in sub-paragraph (d) and say that:

(i)    the use of the Robotics Program did not on a proper construction of clause 3.1(b) of the [relevant dummy subscriber’s] Subscription Agreement constitute a breach of that clause;

(ii)    the terms of the Fair Usage Policy in place from, at least, 15 January 2019 did not, properly construed, prohibit [relevant dummy subscriber] from allowing RP Data to access and copy information;

(iii)     allowing RP Data to do those things did not, on a proper construction of clause 4.1 or 5.1 of the [relevant dummy subscriber’s] Subscription Agreement, constitute a breach of either of those clauses.

13    Paragraph 54 of the FASOC pleads that RP Data “induced or procured the breaches of contract” from each dummy subscriber pleaded in 51-53 and in sub-paragraph (d), repeats the allegation that the data was copied. The Amended Defence pleads to paragraph 54 with a blank denial.

14    The trial of the matter commenced in April 2026. The respondents made a number of admissions in Part C of their opening submissions (ROS). Part C sets out a substantial list of the admissions which the respondents made in opening, but which were not reflected in the Amended Defence. For example, paragraph 33 of the Amended Defence admits that RP Data “obtained or received” the User Details of one of the three dummy subscribers to LeadManager, but does not admit the date that that occurred or that it was “without the knowledge or consent of BCI Media Group” (paragraph 33 of the FASOC).

15    In Part C of ROS, the respondents formally noted that they:

(a)     admit that RP Data obtained User Details provided by the applicant to each of [the three dummy subscribers], in each case without the knowledge or consent of the applicant (FASOC/Defence at … [33] …)

16    Part C does not deal with any admissions in relation to the Inducement Claim. Part C does, however, break up the admissions they make in relation to access to LeadManager (set out in paragraph 18), and in relation to use of the accessed material (set out in paragraph 19).

17    The ROS dealt with the Inducement Claim in Part E, headed “Liability”, in the following terms:

E1 Inducing breach of contract

…

32. … the applicant cannot demonstrate that it suffered loss and damage …

33. There is no dispute that the other elements of the tort are made out on the evidence.

18    While this section of the ROS deals with the content of the Inducement Claim, it does not refer to the paragraphs in which it is pleaded.

19    In their opening submissions in reply (ARS), the applicant said, after citing paragraph 33 of ROS:

2. … That means the Respondents no longer maintain the denials and deemed denials in Defence [21], [23], [25]-[27], [33], [38]-[39] and [51]-[54]. Once the Court finds that any damage was suffered by the Applicant, that claim necessarily succeeds.

3. This admission, coupled with formal admissions made in RS [18(a)-(f)] and [19(a)-(e)], have knock-on consequences for the denials that appear to be maintained in relation to at least some of the causes of action based on misleading conduct. For example, the admission of the inducement claim as pleaded must carry the consequence that the Respondents cannot dispute their knowledge of the terms of Hubexo’s subscription agreements and that they would be breached by the front companies when they allowed the Respondents to access the accounts.

4. The admission of inducement also has consequences for claims of breach of confidence. The terms of the subscription agreements in FASOC [19] include a term that the subscriber agreed to only use their User Details as directed and to keep their User Details confidential (cl. 2.3). How the Respondents can continue to deny that the User Details are confidential is a mystery.

…

10. All elements (except for loss) of inducement to breach contract are now admitted: RS [32]-[33].

(bold emphasis in original; underlined emphasis added)

20    In paragraph 6 of the ARS, the applicant presciently suggested that:

The scope of the admissions needs to be clarified because they materially change how the Respondents intend to defend the case at trial. The Applicant and the Court should not be left to parse the vague language in the [ROS] with the Defence to understand what is now admitted and how it relates to other denials and non-admissions. Procedural fairness requires that the Respondents file and serve a Further Amended Defence before the Applicant calls their first witness.

21    Between the filing of the ROS and the first day of hearing, the respondents served two proposed draft Further Amended Defences. Each of them made some admissions in paragraphs 51-53. The first (10 April 2026) maintained the denials of paragraphs 51(d), 52(d) and 53(d) set out at [12] above. There was no specific mention of access or copying; that part was just denied. The second (12 April 2026) admitted breach of the subscription agreements by each of the dummy subscribers, denied that the contractual arrangement between the dummy subscriber and the applicant had the necessary quality of confidence to ground a breach of confidence claim, and “otherwise den[ied] the allegations made in the paragraph”, which had, of course, the effect of denying each sub-paragraph (d) of 51-53 without delineating the allegations of accessing and copying. Sub-paragraph 54(a) admitted that “other than the element that the breach of the contract must cause loss or damage to the plaintiffs, all elements of the tort of inducing a breach of contract are established …”. Sub-paragraph 54(d) is a blanket denial.

22    A third proposed draft Further Amended Defence was served on 14 April 2026, together with an interlocutory application of the same date seeking leave to file, serve and rely on that version (Amendment of Defence Application). The pleading to paragraphs 51-53, and 54, was identical to that in the 12 April version.

23    The Amendment of Defence Application was heard on 15 April 2026, which was the third day of the hearing. I gave judgment on the Amendment of Defence Application ex tempore: see Hubexo Australia Pty Ltd v CoreLogic Australia Pty Ltd (Amendment of Defence) [2026] FCA 547 (Amendment of Defence Judgment). Paragraph [2] of that judgment reads:

The respondents’ proposed Further Amended Defence sought pursuant to r 16.53(1) to make admissions in relation to paragraphs 23, 26, 33, 38, 41AA, 41B, 42C, 51, 52, 53 and 54 of the Further Amended Statement of Claim (FASOC) reflecting their written outline of opening submissions which was filed on 6 April 2026. When the application to amend was made, the applicant contended that the proposed admissions were confusing and vague, and the respondents withdrew them. In discussion with Senior Counsel for the respondents, Mr Martin KC, it was clarified that the position in the opening submissions reflected the position of the respondents, and so they did not seek to amend the defence in relation to those paragraphs. They do however seek leave to amend the defence in relation to other paragraphs of the FASOC…

(emphasis added)

24    As can be seen, the proposed amendments to inter alia paragraph 33 and, relevantly for the Amendment application, paragraphs 51-54 of the Further Amended Defence, were withdrawn, although the respondents continued to seek leave in relation to other amendments. The Amendment of Defence Application was dismissed with costs.

25    Part of the “clarification” referred to in the bolded passage of the Amendment of Defence Judgment set out above was in the following terms (edited slightly for clarity):

MR McMENIMAN: Thank you, your Honour. Consistent with their statutory duties and obligations to this court, the respondents are obliged to identify what the issues are that were in dispute. And that’s why we respectfully submit that that does need to be made clear.

Otherwise, because of the inconsistent positions that has been taken in the respondents’ opening submissions – compared to this draft defence that is now not moved on – it is not clear what position the respondents take. And so the only thing that your Honour can do if they’re not required to file a defence is to hold them to the admissions in the broad terms that they are in their opening submissions in paragraphs 18, 20, 25, 31 and 85.

And that means with respect to the inducement to breach contract, they admit everything except the loss – including breach of all the terms that we say were breached – and their inducing to breach all of those terms. So you can ignore what’s in the defence. That’s what the respondents would have you say.

HER HONOUR: Yes. It’s not uncommon to have matters which are, effectively, abandoned as defences as the time goes on.

MR McMENIMAN: There’s not - - -

HER HONOUR: And this has been done at the outset of the hearing. So, in an ideal world, yes, there would be an amended defence to that extent. But the respondent is no longer seeking to amend its defence. And so I think, then, the best way to proceed would be to rely upon the submissions. And, of course - - -

MR McMENIMAN: And that’s my submission, your Honour – is that what carries with that is none of the limitations in the draft defence that is not pressed.

HER HONOUR: … So, currently, the case before me – subject to what Mr Martin says in oral submissions – is as in his written opening outline… where the question of whether there was an inducement to breach of contract by the – of those three companies’ arrangements with BCI – is no longer in contest.

MR McMENIMAN: Yes.

HER HONOUR: Now ---

MR McMENIMAN: And the inducement to breach - - -

HER HONOUR: Yes.

MR McMENIMAN: - - - the contract, as pleaded.

HER HONOUR: The inducement, yes. Yes.

MR McMENIMAN: Which includes all of the breaches that we plead.

HER HONOUR: That’s just how I understand it. And I didn’t understand Mr Martin to be saying anything differently.

MR MARTIN: No, I’m not, your Honour.

HER HONOUR: No. So the question, then, is what is the loss… which arises out of that?... I suppose causation is part of that. You’re – are you still saying that - - -

MR MARTIN: No, no – causation is a very real - - -

HER HONOUR: Causation and loss - - -

MR MARTIN: - - - issue. Yes. Yes.

HER HONOUR: - - - are the - - -

MR MARTIN: Very much.

HER HONOUR: - - - the real issues.

MR MARTIN: Very much so. Yes.

HER HONOUR: Whereas the facts leading to the commission of that – those breaches are not. …

(Transcript 15 April 2026 pages 155-157)

(emphasis added in bold)

26    I maintain that my view – that in an ideal world the pleadings would reflect the admitted facts – is not an unreasonable one. In hindsight I am surprised that it has not loomed larger in the respondents’ approach to the pleadings.

27    The next day, the position that the only element of the Inducement Claim that was in issue was causation and loss was repeated by Mr Hastie (junior counsel for the respondents) in the following terms:

It is true that the battleground – the only remaining issue on the inducing breach of contract case is whether the applicant has shown that it has suffered loss and damage. So, in that sense, the questions of causation and loss – which loom large across all of the various different claims advanced by the applicant – are the remaining issues on the “inducing breach of contract” case.

(Transcript 16 April 2026 page 231, lines 20 to 25)

28    Following the Amendment of Defence Judgment, the applicant and respondents called witnesses, including IT experts, who were cross-examined over some 15 days of court time between 16 April 2026 and 11 June 2026.

29    On 1 May 2026, Mr Hastie said, when discussing a draft of the elusive Factual and Legal Issues for Determination (first ordered on 12 December 2025 to be provided to the Court by 1 April 2026, but as yet not to be seen in final form), noted that in relation to the Inducement Claim:

MR HASTIE: … in section B, your Honour will see that we have attempted what we would respectively characterise as a high-level analysis of the legal issues, so ---

HER HONOUR: Yes.

MR HASTIE: Tortious inducement. Your Honour has already heard the one remaining issue there with that tort is whether or not the applicant ---

HER HONOUR: The damage. Yes.

MR HASTIE: Quite…

30    Even though the question of the extent of the admissions of the Inducement Claim were left to be litigated in accordance with the ROS, it became clear, during a break in the hearing dates, that the better position was that the respondents should put on a further amended defence. On 1 July 2026 I made the following order:

By 3 July 2026, the respondents serve on the applicant a proposed further amended defence to reflect any concessions that have been made throughout the course of the trial.

31    A proposed Further Amended Defence (draft Defence) was served on 5 July 2026 (a Sunday). The draft Defence did not admit the elements of the tort of inducement of breach of contract save for damage. Instead it read (for paragraph 51 but which pleading is reflected in the proposed paragraphs 52 and 53):

As to paragraph 51, the Respondents:

(a)     admit that, by providing its User Details to RP Data, [the relevant dummy subscriber] was in breach of cl 2.3 of the [its] Subscription Agreement; and

(b)     otherwise deny the allegations.

32    Sub-paragraph 54(a) of the draft Defence stepped back from the previous two versions and admitted only that “RP Data procured the breaches of the [dummy subscribers] admitted in paragraphs 51 to 53 above”, but otherwise denied the allegations. As sub-paragraph 54(a) of the FASOC alleges that RP Data “induced or procured the breaches of contract” pleaded in paragraphs 51-53, it appears that the “otherwise deny” pleading relates to inducement. Again, that is not consistent with the admissions in the ROS and by counsel for the respondents as outlined above.

33    The applicant characterises this kind of pleading as a “partial admission of [a] reformulated breach”.

34    The service of the draft Defence, and the re-agitation of an application to amend during the evidentiary hearings on 14-15 July 2026, was formalised by way of the Amendment application, and argued before me on 20 August 2026. The orders sought were that leave be granted to file a Further Amended Defence and, “to the extent necessary”, withdraw the admission as to the copying allegation in the “elements of the tort of inducement of contract” referred to above.

35    Perhaps understandably, given the history set out above, the applicant was not amenable to consenting to the draft Defence. A letter from Gilbert and Tobin (solicitors for the applicant) to Mills Oakley (solicitors for the respondents) on Friday 10 July 2026 pointed out (among other things) that:

(a)    paragraph 33 of the ROS;

(b)    Mr Martin’s comment on 15 April 2026 as to whether there was an inducement to breach the contract; and

(c)    Mr Hastie’s comment on 1 May 2026 as to the remaining element of the tort being causation and damage;

were inconsistent with the draft Defence’s denial of everything but a breach of clause 2.3 of the Subscription Agreements, and that this position was “obviously untenable”. The letter noted that the respondents “will be held strictly to the way they opened their case and the concession about all breaches of the subscription agreements and other terms, not just clause 2.3”.

36    Some three and a quarter hours later, Mr Cliff, of Mills Oakley, responded by email. He said:

Mr Martin KC disavows all of your assertions that he has made admissions beyond those referenced in the further amended defence.

To be clear we were never intending on seeking leave to deliver the further amended defence. We are responding to her Honour’s request to be provided with assistance by the parties.

What you think the admissions should be is of no interest to us. The Respondent will raise the matter again with Her Honour next week.

37    The “next week” referred to was Monday 13 July 2026, when both parties were represented by senior and junior counsel on a case management hearing to organise the various evidentiary applications (including the Tendency application) to be heard over the next two days. The applicant drew my attention to Mr Cliff’s response, and the respondents characterised it as an “initial response” rather than one borne of “serious and mature consideration”. The email contains nothing obvious which marks it as an initial or interim response.

38    Mr Hastie spoke to the draft Defence, which he said sought to encapsulate “the admissions which we consider – obviously the applicant takes a different view – we consider are consistent with those that have been made in writing and orally at the outset of the hearing”. He did not deal with whether Mr Martin KC did, in fact, disavow making any admissions, and Mr Martin did not appear on that day.

39    On 14 July 2026, another proposed Further Amended Defence (further draft Defence) was served. This document contained admissions for all parts of paragraphs 51-53 but for each sub-paragraph (d). Sub-paragraph 54(a) was in the same terms, and sub-paragraph 54(d) was denied.

40    On 15 July 2026, Mr Martin appeared once more. He raised the further draft Defence, and elucidated Mr Hastie’s point from 13 July that the issue with sub-paragraphs 51-53(d) was that while the fact that the dummy subscribers allowed RP Data to access LeadManager was admitted, the fact that there was copying of that information was not. This is part of a larger dispute about whether, and the extent to which, data was copied from LeadManager and used to improve Cordell Connect (the respondents’ product which was in competition with LeadManager): see paragraphs 42-42C of the FASOC in relation to the copying of the data (which is denied in the corresponding paragraphs in the Amended Defence), and paragraph 43 in relation to its use to improve Cordell Connect (which is also denied in the Amended Defence). Paragraphs 42C, 43 and 43A of the FASOC deal with the use of the data to create Comparative Documents. The respondents plead in their Amended Defence to paragraph 43B that Comparative Documents were only requested by employees some 21 times (paragraph 43B of the Amended Defence).

41    The words “and copying” or “and copy” appear 8 times in the FASOC (not including paragraphs 51-54), and a further 8 times in the Consolidated Particulars to the FASOC, as part of the phrase “accessing and copying”.

42    Various witnesses including Ms Bolles and Mr Nikurawu had been cross-examined as to the extent to which information obtained by RP Data was used by Cordell and RP Data employees. The applicant contends that they forbore from cross-examination in relation to the pleadings in paragraphs 51-53 as a result of the admissions made in the ROS and by Mr Martin and Mr Hastie in the earlier parts of the proceedings. For example, Mr Hennessy SC, senior counsel for the applicant, indicated that he would have asked Mr Nikurawu questions about whether Telus, a company engaged by the respondents to access and copy data from LeadManager, was using computer programming as alleged in those paragraphs.

43    I asked Mr Martin, in reference to Mr Cliff’s email, whether he did in fact disavow his admission made on 15 April 2026. He replied, “I don’t think I disavowed the transcript”. Later he said, not entirely clarifying the matter:

Well, I’m being frank with your Honour, the transcript – our written submissions are there, what I said in the transcript is there. I’m not disavowing any of that. And what we are saying to your Honour now is what we put forward to your Honour fairly represents what we say are the concessions made in this matter. Subject [to that], I could flesh out the subparagraph (d) point, but other than that we say that this fairly represents that.

44    I understood the “subparagraph (d) point” to be that the pleading of access to and copying of the information was a rolled-up pleading, and not one which was intended to be included in the various statements as to the Inducement Claim being admitted save as to damage.

45    Mr Hennessy submitted that he was only able to deal with this issue “in part” and suggested that the respondents put on the interlocutory application to enable the applicant to deal with the matter “sensibly on the evidence”. The respondents were given seven days to file an application to amend the defence and to withdraw, as far as necessary, any admissions already made.

46    The respondents provided a further proposed Further Amended Defence (current draft Defence) by annexing it to an affidavit of Mr Cliff sworn 22 July 2026 in support of the Amendment application. The current draft Defence admits paragraphs (a), (b), and (c) of each of paragraphs 51-53. Each of sub-paragraphs (d) is slightly different. Each admits an allegation “insofar as it is alleged that the clauses of the [dummy subscriber’s] Subscription Agreement pleaded therein were breached by RP Data using the User Details to access Lead Manager”. In relation to paragraph 52, there is an added admission of “manually copy[ing] the information from LeadManager identified [in] paragraph 42(b)(ii)”. Paragraph 53 similarly admits manual copying of the information in paragraph 42(b)(ii), and further admits manual copying of the information identified in 42(a)(ii). It also admits the authorisation of Artis “to copy information from LeadManager using the Robotics Program from the date, and in the manner, pleaded in paragraph 41 AA(d)(i)”. Sub-paragraph 54(a) remains the same. Sub-paragraph (d) repeats and relies on the matters pleaded in paragraphs 51-53 and otherwise denies the allegations.

47    While the re-pleaded approach to paragraphs 51-53 does provide more nuance to the pleaded defences, it is not the case that the re-pleaded paragraphs 51-53, or 54(a), reflect the admissions in the ROS or in opening submissions.

48    In paragraphs 25 to 30 of his 22 July 2026 affidavit, Mr Cliff said on information and belief that Mr Martin had not intended to admit that there had been copying as alleged in those paragraphs, and that he understood that Mr Martin had “overlooked” the issue of whether copying was included in his admission. A notice to produce was issued for documents underlying that understanding, and Ms Natalie Zwaar, a solicitor in the applicant’s team, exhibited the document so produced to her affidavit dated 19 August 2026. The document was an email from Mr Martin to Ms Morgan Walford (a solicitor in the respondents’ team) and Mr Hastie, and copied to Mr Cliff, Mr Aitken (another solicitor in the respondents’ team), and Mr Smith (junior counsel for the respondents) (the information email).

49    At the hearing of the Amendment application on 20 August 2026, Mr Cliff was cross-examined on his affidavit. It will be recalled that his email of 10 July 2026 was fairly brusque and that assessment is consistent with his evidence in the witness box. He agreed he was present in Court when Mr Martin’s admission was made, and when it was referred to on various occasions (some of which are set about above) where the applicant adverted to paragraphs 51-53 of the FASOC, orally and in writing, as being uncontested but for the issue of damages. Despite that, he said that he was unaware until recently of the issue of copying of information, separate from access to LeadManager, being regarded as having been admitted.

50    Mr Martin had said in the information email:

For the purposes of Cliffy’s affidavit in support of the application to amend the defence I’m happy with the following.

I am informed by Mr Martin and verily believe when he settled the applicant’s [sic – respondents’] opening submissions and said to Her Honour on 14 April 2026 the words “No I’m not, your Honour” recorded at T.156 l 14-20 Mr Martin understood that the applicant’s case on inducing a breach of contract was based on each of the [dummy subscribers] providing their user details to RP Data and allowing RP Data to access LeadManager.

…

I am informed by Mr Martin and verily believe when he settled the applicant’s [sic – respondents’] opening submissions and said the words to Her Honour referred to above it was not his intention to admit on behalf of the respondents that each of the [dummy subscribers] had breached their respective subscription agreements by allowing RP Data to copy information from LeadManager …

51    As pointed out in Mr Hennessy’s cross-examination on the information email, not all of Mr Martin’s explanation was reproduced in Mr Cliff’s affidavit. For example, the effect of the third sentence in the second paragraph quoted above (commencing “Mr Martin understood …”) was not included, nor was part of the third paragraph.

52    Mr Cliff asserted that the failure to mention paragraphs 51-53 of the Amended Defence in Part C, specifically paragraph 18 of the ROS, was because it was intended to maintain some denials as to parts of sub-paragraph (d) to those paragraphs. He maintained that he did not appreciate that the applicant’s interpretation of the admission was that the only aspects of paragraphs 51-53 in contention after the opening was the question of damage. Nor did Mr Cliff seek to correct the Court, through counsel, when I expressed the view that the pleaded breaches, and the facts leading to them, were admitted, but causation and loss were the real issues (on 15 April 2026).

Should the respondents have leave to withdraw the admission?

53    Rule 26.11(2) of the FC Rules provides that in the absence of consent from the other party, a party cannot withdraw an admission unless the Court grants leave. It is not the case that only admissions in pleadings require leave to be withdrawn: Celestino v Celestino [1990] FCA 449; Coates-Kelly v New Zealand (2022) 294 FCR 422 at [40]. In this case, there was significant and ongoing discussion about the parameters of the admitted conduct and whether that admission should have been reflected in a pleading soon after it was made. The respondents took a position that “we tried, you didn’t like it, so we withdrew it”, but clearly those attempts at re-pleading paragraphs 51-53 had no basis in either ROS 33 or in Mr Martin’s enunciation of the case in relation to the Inducement Claim.

54    The terms of the admission are important. There are two aspects here; what the respondents said, and how it was interpreted by the applicant (into which insight can be drawn from some of the exchanges set out above). From an overview of the transcript and the submissions by each side on this application it appears to me that the following propositions are true:

(a)    The admission was specifically made as to the “elements of the tort” of inducement breach of contract; see paragraph 33 of ROS;

(b)    The interpretation by the applicant of that admission was that the pleadings in paragraphs 51-53, and semble 54, were then admitted;

(c)    Neither the respondents’ admission, nor the applicant’s understanding of it, found its way into any iteration of the proposed amended defences;

(d)    The respondents’ approach to the Amendment application (of disavowal, then of non-disavowal, by Mr Martin of an admission; of an expression of ennui on the part of Mr Cliff as to the interpretation put on the admission by the applicant, the very late articulation of the parts of sub-paragraphs 51-54(d) which were intended to be the subject of the admission, and the need for the applicant to rely on a notice to produce) have not assisted the process of determining the bounds of the respondents’ admissions;

(e)    The applicant could not have been on notice that the distinction between access and copying was an essential element of the admission (in particular because this was never clearly expressed in the various iterations of proposed amended defences up to and including the current draft Defence, or at all until Mr Martin’s submissions on 15 July 2026);

(f)    The FASOC pleaded elsewhere, and the respondents joined issue with, the allegation that RP Data used the dummy subscribers’ subscriptions to access and copy information from LeadManager. Indeed, one heading in the FASOC before paragraph 41A reads:

RP Data and Telus International and Artis Group accessed and copied information from LeadManager.

55    In the Amended Defence, the allegation in 41A is admitted in that RP Data used the User Details, but the respondents “otherwise do not know, and cannot admit, the allegation”.

56    In Selvaratnam v St George - A Division of Westpac Banking Corporation (No 2) [2021] FCA 486, Stewart J set out the principles to be considered in determining whether an admission may be withdrawn. Both parties relied on the first principle, which is that there is a broad discretion to be exercised with the overall goal to ensure a fair trial: Jeans v Commonwealth Bank of Australia [2003] FCAFC 309; 204 ALR 327 at [18] and [23] per Hill, Madgwick and Conti JJ. The overriding principle is that of the interests of justice: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] FCA 1390 at [4] per Finn J.

57    The applicant relied on the principle in paragraph [27(2)] of Selvaratnam, which is that the “court will require an explanation for the making of the admission which is now sought to be withdrawn; the explanation must be a sensible one based on evidence of a solid and substantial character” (citing Celestino at 8 [12] per Spender, Miles and von Doussa JJ). The applicant contends that there is no, and certainly no sensible or soundly based, explanation. Mr Hennessy submitted that the respondents should have sought evidence from Mr Martin directly, and not on information and belief through Mr Cliff. When the court did hear from Mr Martin, the explanation was not compelling. The respondents submitted that Mr Cliff’s explanation in not picking up that the applicant regarded the admission as broader than the admission merely of the elements of the tort, and instead regarded it as an admission of the entirety of paragraphs 51-53 absent the element of damage, is explicable as “a mistake, a human error”. The respondents submitted that Mr Cliff’s affidavit provided a full and thorough explanation.

58    The applicant also adopted an expression from the fifth principle in Selvaratnam at [27], which is that the “court will not lightly permit a party to withdraw an admission where the other party has acted to its detriment on the admission or is otherwise prejudiced by its withdrawal”. This concept is similar to an estoppel: Celestino at 10 [14].

59    The respondents, while not conceding in a full-throated way that an admission had been made (which I interpret to be read as that no admission had been made as to the copying and use of the data), submitted that the interests of justice required that there be a fair trial; that is, deciding the rights of the parties. The granting of leave to withdraw an admission should not be treated as a punishment of the party seeking to withdraw it, and the question is whether, if not corrected, there will not be a decision on the real matters in issue (Celestino at 7 [10]; Selvaratnam at [27(3)]).

60    Here, I have real reservations about the explanations given by Mr Cliff and by Mr Martin. I do not however accept Mr Hennessy’s submission that Mr Cliff was not telling the truth, with the exception that I find it difficult to accept that none of Mr Cliff and counsel understood that the applicant had taken and maintained a position in relation to the pleading rather than the elements of the tort. That position was, after all, expressly articulated that way in the ARS. Where a party makes an admission by mistake or inadvertence, an explanation, while important, is not decisive: see Bye v Hend [2025] ACTSC 94 at [21] (McWilliam J). That proposition is subject to the question of whether the mistake “can be corrected without injustice to the parties”: Bye v Hend at [23].

61    The applicant submitted, forcefully, that the explanation should have come, not from Mr Cliff, but from Mr Martin. I noted the terms of part of Mr Martin’s explanation above, and its lack of any acceptance of a mistake. In Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261, the Court (Keane, Gilmour and Logan JJ) held that the primary judge was able to accept an explanation from the bar table by senior counsel who took responsibility for how the case was pleaded (at [52]). Like in Cement Australia, the explanation here was not that there was a tactical forensic decision; it too, was an error.

62    In Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; 332 ALR 199, a mistake by a solicitor was not adequately explained (at [132]), because ultimately the primary judge could not determine whether the delay was attributable to Tamaya’s lawyers, or to the liquidator. The Court (Gilmour, Perram and Beach JJ) noted that “[j]ust what explanation is called for will necessarily depend upon the particular case” but that it should be given by, or on behalf of, the moving party (at [154]).

63    Here, obtaining a full version of the explanation had an air of pulling teeth. However, it has now become clear that the breadth of Mr Martin’s admission in opening submissions was a mistake. I accept Mr Cliff’s (and Mr Martin’s, in the information email) admission that it was so. In the best of all possible worlds (and here I risk channelling Voltaire’s Candide), the admission would not have been disavowed by Mr Cliff in his email, and the explanation that it was a mistake on his part would have been made by Mr Martin, frankly, from the bar table when asked about it directly. If necessary, it would then have been backed up with the information email which should not have had to have been obtained by the issuing of a notice to produce. Had the admission been made on instructions, rather than in error, my decision would have been different.

64    I am able to find that the subtleties of the allegations as to copying in the pleading may have been missed by the respondents, and that the extent and limits of the admission may have been adopted more broadly by the applicant than was intended by the respondents. The difficulties are exacerbated by the respondents’ failure to include in Part C or paragraph 33 of the ROS the relevant paragraphs of the FASOC which were subject to the admission, and the continuing failure by the respondents to provide versions of further amended Defences which actually reflected the admissions which were made. The focus of the admission on the elements of the tort rather than the pleaded matters in paragraphs 51-54 is another factor which leads me to find that the parties were on different paths.

65    Despite my concerns about the explanations, and the failure of the respondents to appreciate or correct the applicant’s position as to the admission, I am not persuaded that there is a significant prejudice to be suffered by the applicant were I to allow the withdrawal of the admission but limited only to the element of copying. This is because the issue of the copying and use of the material obtained from LeadManager has remained an issue in dispute on the pleadings, was part of the affidavit evidence which was filed before the ROS and Mr Martin’s admission, and the applicant’s counsel has been able to cross-examine on this issue (although, as Mr Hennessy says, not specifically on sub-paragraphs 51-53(d)).

66    Importantly, the evidence has not finished. Ms Bolles, who is a key witness as to the use of the material obtained from LeadManager, has yet to complete her evidence. The other witnesses who gave evidence on this subject, Mr Nikurawu and possibly Mr Murton, should be able to be recalled and cross-examined were it deemed necessary. The recalls of the witnesses should be at the cost of the respondents notwithstanding the eventual outcome of the proceedings.

67    I am prepared to allow the respondents to withdraw the admission in so far as it relates to the allegations in relation to the Inducement Claim of “copying” information. The balance should remain admitted, so as to limit the prejudice to the applicant as much as possible.

68    In order to achieve this goal, the respondents must, first, ensure that the relevant witnesses whom the applicant wishes to cross-examine are made available for that purpose at a time convenient to the applicant, and in particular Ms Bolles’ recall which was previously allowed on a limited basis will be broadened to cover any issues which the applicant wishes to raise in relation to the copying of the material. Secondly, the respondents must pay the applicant’s costs of this application. I am minded to order that they pay the costs thrown away, on the indemnity basis, to be paid as agreed or taxed forthwith (and not abiding the outcome of these proceedings). They are seeking an indulgence from the Court and much time has been wasted in their presenting draft defences which do not reflect the undisputed elements of the admission, which should have involved a denial of the copying allegation only. The current draft Defence, for example, maintains (in 54(a)) a denial of inducement; that cuts across the very clear position taken by the respondents in ROS paragraph 33.

Should the respondents have leave to amend?

69    The respondents require leave to amend the Amended Defence: r 16.53 of the FC Rules, with r 16.51 not applying.

70    The applicant characterises the pleading of each sub-paragraph (d) to sub-paragraphs 51-53 in the current draft Defence (summarised at [46] above) as a re-characterisation of part of the paragraph pleaded to and a denial of the balance. This is not a satisfactory manner of pleading. It is not immediately obvious what part of each sub-paragraph (d) is admitted or denied, if the proposed defence does not reflect the words of the FASOC. As for sub-paragraph 54(a), as noted above, the blanket denial of the balance of the paragraph appears to relate only to the allegation of inducement. It may be intended to operate more broadly, because only part of the allegation is encapsulated in the narrative, but it is not clear how. I have already dealt with my discomfort about a pleading which does not reflect the evidence (and see Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446 (per Stephen, Mason, and Jacobs JJ)).

71    In Selvaratnam, Stewart J summarised the relevant principles relating to amendment of pleadings at [28], citing Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5], [30], [71], [90], [93], [94], [98] and [102], and Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (No 2) [2020] FCA 863 at [6]. Similarly to the principles relating to the withdrawal of an admission, the overriding purpose of the civil practice and procedure provisions of the FC Rules requires consideration of prejudice to the parties, the importance of determining the real questions in dispute, and the compensation to the party incommoded by the amendment adequately if possible.

72    The respondents made it clear that they were meeting a request of the Court, rather than adhering to a requirement that the pleadings reflect the issues. This application demonstrates why that is a requirement rather than something that would be “nice to have”. In order that the parties are able to go forward in this trial with confidence that their cases are understood and properly pleaded, there should be a defence which finely follows the admissions made by the respondents in their ROS and the clear admission, made many times, that only the element of causation and loss is in dispute in the Inducement Claim (which includes an admission of access to, but not copying of, information in sub-paragraphs 51-54(d)).

73    The applicant’s prejudice in meeting an amended defence will be allayed by the orders I will make, which is that the pleading of any defence must plainly include the admissions which remain on foot and not raise any new or expanded issues. It will be further allayed by other roadblocks affecting these proceedings. The two weeks’ further hearing listed in early September (just two weeks after the argument on this point) is already unable to be used for expert evidence by the length of time the accounting experts have taken to consider and prepare their joint report. It will also be necessary to determine some issues arising out of the respondents’ applications under s 50 of the Evidence Act, and the applicant’s application for representative samples in the copyright and breach of confidence claims.

74    The parties have been provided with dates which should allow the hearing to be completed with evidence and submissions by November this year. I am prepared to realign my calendar to meet the applicant’s convenience to this extent (noting that I consider I should pay more attention to the applicant’s convenience than the respondents’, given the lack of a satisfactory explanation of the need for the repleading based on the admissions made).

75    I will allow the respondents to file a further amended defence which responds directly to the terms of the Inducement Claim pleadings, and which reflects the admission of all elements of those paragraphs bar the copying element and that the conduct caused damage and loss. This will involve a broad admission and a denial only of the copying aspect of the part of sub-paragraph (d) in each paragraph (including paragraph 54). It will also – in order to be consistent with the admissions made – need to rephrase sub-paragraph 54(a) and there may of course be other areas of the Inducement Claim which will need to be reviewed.

76    The next iteration of the amended defence should be amended consistently with the admissions made in ROS paragraphs 18, 19, and 33 and elsewhere in the transcript if necessary. The costs of dealing with the various pleading amendments after Amendment of Defence Judgment be paid, as above, by the respondents. I will hear from them, if they wish, as to why those costs should not be ordered on the indemnity basis, including costs of the argument before me and costs thrown away dealing with previous iterations of the Amended Defence or by any additional recalling of witnesses, and why they should not be paid, as agreed or taxed, forthwith.

The applicant seeks to tender documents to prove tendency evidence against the respondents

77    The Tendency application is brought by the applicant who seeks the following (order 3):

Pursuant to section 97(1) of the Evidence Act 1995 (Cth), the tendency evidence identified in the Applicant’s Tendency Notice dated 8 June 2026 be admitted for the purposes identified in those notices.

78    The applicant relied on paragraphs 85-118 of an affidavit of Michael Williams, solicitor, sworn 10 July 2026. Pages 41-79 of Mr Williams’ Confidential Exhibit MJW-42 contained a tendency notice served on 12 March 2026 (prior to the commencement of the hearing), the respondents’ solicitor Mr Cliff’s reply on 3 June 2026 (by which time some four weeks of hearing had taken place), and an Amended Tendency Notice dated 8 June 2026 which appears at pages 48-79 of MJW-42.

79    The documents in question were marked MFI-36, a folder containing 72 documents. References to those documents below are to tab numbers in that folder.

80    Section 97(1) of the Evidence Act provides:

97  The tendency rule

(1)     Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a)     the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and

(b)     the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

81    Section 95(1) of the Evidence Act is relevant to the operation of s 97(1). That section provides:

Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.

82    Tendency evidence is generally not admissible (s 97(1)). Unless the requirements of s 97 are satisfied, then the material cannot be received or used for that purpose (s 95(1)). In other words, even if the documents in MFI-36 were relevant for other purposes, without a finding in accordance with s 97(1)(b), they may not be used to prove that the respondents or some of them had particular tendencies: see Sackville J in Jacara v Perpetual Trustees Ltd [2000] FCA 1886; 106 FCR 51 at [60] (Whitlam and Mansfield JJ agreeing). The documents must be adjudged to have significant probative value for the purpose of proving a tendency on the part of, in this case, one or more of the respondents to do the things alleged.

83    In El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93, Leeming JA set out the way in which the common law tests applicable to “similar fact” evidence were displaced by the enactment of s 97 of the Evidence Act and noted that accordingly, decisions prior to 1 January 2009 need to be considered in the light of the change. However, Leeming JA (at [34]) considered that the “high degree of probative value” under the common law was a “similar requirement” to that of s 97 (citing Whealy JA in DSJ v The Queen [2012] NSWCCA 9; 84 NSWLR 758 at [48]-[49]).

84    The applicant seeks to tender the documents in MFI-36 (all of which are documents discovered by the respondents) in support of the following tendency propositions:

(a)    That the respondents had, during the period of 7 July 2016 to 27 March 2020 (Access Period), a tendency to gain unauthorised access to third party subscription services (paragraphs 1-5 and 14 of the Tendency Notice) (Tendency 1);

(b)    That the respondents had, during the Access Period, a tendency to engage in data scraping from third party subscription services (paragraphs 6-7 and 15 of the Tendency Notice) (Tendency 2);

(c)    That the respondents had, during the Access Period, a tendency to instruct contractors, agents (such as Telus and Artis) or robotic programs to gain unauthorised access to third party subscription services (paragraphs 9 (Telus), 10 (Telus and robotics processes), 11 and 12 (UiPath and Artis), and 16 of the Tendency Notice) (Tendency 3);

(d)    That the respondents had, during the Access Period, a tendency to use data scraped by them, or contractors [or] agents from third party subscription services:

(i)    to improve their products, including Cordell Connect;

(ii)    to obtain revenue and other financial benefits for their businesses; and/or

(iii)    to procure sales from customers and prospective customers of the respondents

(paragraphs 2, 8, 13, 17, 18 and 19 of the Tendency Notice) (Tendency 4).

85    Those tendencies are, the applicant submitted, relevant to various facts in issue including whether the applicant gained unauthorised access to LeadManager, scraped project information from it, and used that information in relation to the Cordell Connect product; interference with contractual relations; and breaches of copyright. As can be seen, they reflect the two aspects raised in the Amendment application; the access to the information, and the use of it (once copied).

Was the Tendency Notice adequate?

86    I am satisfied (and it is not in contest) that the respondents were given reasonable notice, in writing, of the applicant’s intention to adduce the evidence.

87    Mr Cliff in his response of 3 June 2026 to the original tendency notice raised the requirements of regulation 7(2)(b) of the Evidence Regulations 2018 (Cth) (which relates to identification of the place, circumstances, and names and addresses of those persons who perceived the conduct). Those aspects were remedied by the service of the Tendency Notice which in my view cures the complaint of the respondents that they were “left guessing” as to the parts of the documents which constituted the alleged tendency evidence. Mr Cliff had also requested further specificity as to the tendency which was alleged to be demonstrated by the documents sought to be tendered. The respondents contended that without that specificity, the “the precise tendency alleged” was obscured.

88    Once the amendments were made, the respondents no longer disputed that the Tendency Notice “is a compliant notice for the purpose of s 97”.

Does the evidence have significant probative value?

89    This question is to be determined in the light of the amendments as specified above. In a sense I am determining it in a vacuum given that I have not yet seen the final iteration of the amended Defence; but as I have said, it should reflect ROS paragraphs 18, 19, and 33, and Mr Martin’s admission that the only element of the tort in the Inducement Claim which is disputed is “causation and loss”, and that everything else apart from the allegation of copying in sub-paragraphs 51-53(d) and 54(d), will be admitted.

90    The applicant, through Mr Williams in his affidavit and through submissions from Mr Hennessy, contended that the documents were relevant to various pleaded allegations in the FASOC, and that despite the fact that the respondents have admitted the above aspects of the applicant’s pleading, they go inter alia to issues of the flagrancy of any breach of copyright (see s 115 of the Copyright Act 1968 (Cth)).

91    Part 1 of the Dictionary to the Evidence Act specifies that “probative value” of evidence means:

the extent to which that evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

The parties’ submissions on “facts in issue”

92    I will deal first with this question, which is relevant to the first three tendencies (summarised at [85](a)-(c) above), as these are matters which, the respondents say, are not “facts in issue”.

93    The respondents contended that as it was not in dispute that the respondents gained unauthorised access to LeadManager, “tendency evidence as to an issue which is admitted could never have the “significant probative value” which s 97 of the [Evidence] Act requires”. As Sackville J said in Jacara at [61] (Whitlam and Mansfield JJ agreeing):

… the question is whether the evidence of conduct is relevant to a fact in issue via propensity: in so far as the evidence establishes the propensity of the relevant person to act in a particular way, is it a link in the process of proving that the person did in fact behave in the particular way on the occasion in question?

94    Relying on Stubley v Western Australia (2011) 242 CLR 376 at [65] (per Gummow, Crennan, Kiefel and Bell JJ), the respondents submitted that where an issue was not a “live issue at the trial”, the “probative value of the evidence to prove [the relevant tendency] ceased to be significant once [the fact in issue] was not challenged”. In Stubley, the fact in issue was whether a doctor had a tendency to engage in sexual relations with his patients during consultations. Other patients gave evidence that that had occurred. However, the trial had been conducted at first instance on the basis that the sexual relations with the patients the subject of the charges had occurred, and the live issue in the trial was one of consent. The majority said (at [65]):

… evidence of sexual misconduct not charged in the indictment committed against other women led in order to prove an issue that was not live in the trial, would not meet the test in subs-[31A]2(b) [of the Evidence Act 1906 (WA)]”.

95    At [73], their Honours went on to say:

The probative value of the evidence of [the other women patients] was confined to the case that [the complainant witnesses in the trial] did not consent to the acts charged.

and at [84], the appeal was allowed on the basis that the evidence of the other women patients “did not have significant probative value under s 31A(2)(a) of the Evidence Act [1906 (WA)].” It should be noted that section 31A(2) of the Western Australian legislation imports an element which is not present in s 95 of the Evidence Act; that of the risk of “fair-minded people” being liable to think that “the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial”. Subsection 31A(2)(a) relates to the significant probative value being considered by itself or having regard to other evidence adduced in the proceedings.

96    Whether the section under consideration in Stubley is helpful or not, based as it is on a different statutory provision, was not argued before me. The respondents’ contention is that where facts are indeed “not in issue” as they had been admitted on the pleadings, there can be no work for s 97 to do. Mr Hastie said in his oral submissions that “the first three tendencies that are sought to be established … all go to matters which are not seriously in issue in the proceeding”. He submitted that I did not need to go beyond the “existing version of the defence” to find that the respondents did access LeadManager without authorisation to do so. As to data scraping, the respondents submitted that the facts that they exported project spreadsheets from LeadManager, and copied data to create project spreadsheets, were admitted. There is however a live dispute about what “data scraping” means and whether that was what the respondents were doing, which arises partly from the respondents’ expert’s evidence where Mr Whitbourn had some differences in opinion as to the definition of scraping. The respondents also admit that it instructed others including robotics programs or “bots” to gain further unauthorised access.

97    The applicant went through the various asserted tendencies (at [85]) in oral submissions and sought to link them to paragraphs 21-23, 27, 33, 38, 41, 41AA, 41D, 41E, 42B, 50 and 54 of the FASOC. Mr Hennessy, using paragraph 27 as an example, noted that the allegation that the login details for one of the dummy subscriber’s subscription to LeadManager had been obtained by RP Data was admitted, but the fact that it was “without the knowledge or consent of BCI Media” was not admitted in the Amended Defence, and that that pleading was maintained in relation to the other dummy subscribers. Concealment of the use of the BCI Works and BCI Confidential Information (both defined terms) was denied (specifying a denial of copyright subsistence in the BCI Works and a denial that the BCI Confidential Information existed).

98    Mr Hennessy submitted that even if an aspect of the applicant’s case were admitted, there would still be an issue in dispute as to s 115(4) of the Copyright Act which enables the Court to have regard to the flagrancy of the conduct and the need for deterrence in assessing damages for any infringement of copyright.

99    The applicant relied on Jacara and the need for more than “mere statutory relevance” (see Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175-6 cited in Jacara at [72] per Sackville J). It said that the word “significant” as a modifier for “probative value” (a statutorily defined term) was “the standard that is to be applied, and judicial statements as to the construction of the legislation cannot supplant that language” (at [74]).

100    The applicant took me to Hughes v The Queen [2017] HCA 20; 263 CLR 338 at 348 [16] where Kiefel CJ, Bell, Keane and Edelman JJ said:

Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent … The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove.

and at 362 [61]:

… the extent to which the evidence supports a tendency, does not require that the evidence be considered “by itself”. … evidence of a tendency might be weak by itself but its probative value can be assessed together with other evidence.

See also IMM v The Queen [2016] HCA 14; 257 CLR 300 at 314 [46] per French CJ, Kiefel, Bell and Keane JJ. The High Court has recently set out the approach to be taken in relation to the considerations of onus when tendency evidence is admitted in criminal proceedings in Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; 281 CLR 18 and then The King v AR [2026] HCA 10; 428 ALR 646.

101    In relation to the difference between the approach in civil and criminal proceedings, the applicant relied on Commissioner of Taxation v White (No 3) [2025] FCA 392 where Kennett J admitted five WhatsApp messages from the respondent to other persons, of which three appeared to be the respondent proposing similar arrangements as to those which caused the Commissioner to seek civil penalties against the respondent (at [1]). The relevance was characterised at [12] as being “suggestive of an arrangement or understanding between [the respondent] and [the message recipient]” similar to that the subject of the proceedings. While a proceeding for a civil penalty is not a criminal proceeding, the respondent was still entitled to the “penalty privilege” (at [5]) and so was not required to file a defence. At [26], after considering the meaning of “significant” in a criminal trial, Kennett J admitted the messages as being “of consequence” or “influential” (reflecting the language used in IMM) and therefore had “significant” probative value.

102    The respondents relied on the failure of the Tendency Notice to mention flagrancy or copyright issues, and submitted that the tendencies in the notice were not matters which were required to be established to demonstrate flagrancy. It was not contended in the Tendency Notice, for example, that the respondents have a tendency to act surreptitiously or to cover up their conduct. Looking elsewhere, it was said, did not assist in determining the extent of information that was copied nor the use of the comparative documents.

Should any of the documents in MFI-36 be admitted?

103    I have reviewed the relevant passages of Mr Williams’ affidavit and the documents in MFI-36, and taken into account the arguments set out above. I agree with the respondents that a fact is not “in issue” if it is admitted, and that where, as in a number of categories, the tendency asserted relates to matters which are not in contest. There is for that reason no significant probative value in demonstrating that the respondents did to others what they admit doing to the applicant.

104    On that basis, I am not prepared to admit the following documents to prove the tendencies asserted in the following parts of the Tendency Notice:

(a)    Tendency 1, being that the respondents had a tendency to gain unauthorised access to third party subscription services (Mr Williams’ affidavit at paragraphs 93-99; documents in paragraphs 1-5 of the Tendency Notice). I do not agree that there would be significant probative value in showing that the respondents engaged in conduct similar to the conduct that it currently admits on its pleadings (as proposed above) or in the ROS. The documents deal with the respondents’ unauthorised access to third party subscription services and the Tendency Notice names four companies, some of whom have been mentioned in the evidence by witnesses or in other documents. I do not regard a tendency to gain unauthorised access to competitors to have significant probative value in relation to the unauthorised access which is admitted by the respondents, and would reject the tender to prove that tendency. Some of the material relied on by the applicant was indeed denied in the Amended Defence but then admitted in ROS Part C and, as dealt with above, in paragraph 33. The next iteration of the Amended Defence will not affect the position in relation to the admission by the respondents of gaining unauthorised access to LeadManager.

(b)    Tendency 3, being that the respondents had a tendency to instruct contractors, agents, or robotic programs to gain unauthorised access to third party subscription services (Mr Williams’ affidavit at paragraphs 103-107; documents in paragraphs 9-12 of the Tendency Notice). On the same basis as Tendency 1, I do not agree that there would be significant probative value given the conduct is admitted.

105    I am prepared to admit documents listed under Tendency 2 (data scraping), and Tendency 4 (use of scraped data). Scraping is an issue of significant contest, as is the tendency to use scraped data for improvement of products. The respondents have been resistant to the suggestion that the activities undertaken by it or its agents were “scraping” data. Despite Mr Nikurawu, the former head of data acquisition at RP Data and then senior product manager of Cordell Connect, then head of product solutions during the access period, agreeing that the respondents were scraping data from LeadManager during the relevant period, it was a matter of some contest in the evidence of Mr Whitbourn, the respondents’ IT expert who was cross-examined about this topic for some time.

106    I have not listed each document and here summarised its contents, nor its alleged connection to the tendencies. The basis for each one is set out in Mr Williams’ affidavit and, while there may be some issues as to the date of documents being relevant, that is a question that I consider goes more to weight. I do not accept the applicant’s submissions that the flagrancy element of copyright violations is relevant to the admitted conduct; that is not a matter raised in the Tendency Notice. While Mr Williams mentions “the use of another entity’s copyright works” and “authorisation of copyright infringement by CoreLogic, Inc” in his affidavit, the omission of that from the Tendency Notice is fatal to any suggestion that I should take that into account in determining whether the documents may be relevant to a tendency not already subject to the required notice.

Determination

107    The applicant has leave to tender the documents referred to in paragraphs 2, 6, 7, 8 and 13 of the Tendency Notice to prove the tendencies referred to in paragraph 15 (being Tendency 2) and paragraphs 17, 18 and 19 (being Tendency 4) of that notice, as set out above.

108    The parties are intending to tender documents at an upcoming hearing tranche, and the tendency documents for Tendency 2 and Tendency 4 should be tendered specifically on that basis. As to the balance of the documents, they may be sought to be tendered on other bases, but will not be admissible to prove those tendencies pursuant to s 97(1) of the Evidence Act (see s 95(1)).

109    I will hear the parties on costs, but my preliminary view is that the costs should be the applicant’s costs in the cause.

Associate:

Dated:    4 September 2026