Background
Hubexo Australia Pty Ltd, formerly BCI Media Group Pty Ltd, alleges that CoreLogic entities induced three “dummy” subscribers to breach LeadManager subscription agreements. The pleaded breaches included allowing RP Data to use subscriber credentials to access and copy information from LeadManager, including through programming routines or web-scraping software.
At the start of trial, the respondents said in written and oral openings that all elements of the inducement claim other than causation and loss were made out. Hubexo understood that to admit the pleaded access-and-copy allegations. During the hearing, however, the respondents sought to amend their defence and withdraw the admission insofar as it concerned copying. Hubexo also sought to introduce documents as tendency evidence that the respondents accessed, scraped, and used data from third-party subscription services.
The Court’s Holding
Justice Needham granted the respondents leave to withdraw their admission only as to the copying allegations in the inducement claim. The Court accepted that the breadth of the earlier admission was a mistake, while expressing substantial concern about the respondents’ delayed and incomplete explanation and their inconsistent draft pleadings. The balance of the admission remained in place.
The Court also allowed a further amended defence, but required it to respond directly to Hubexo’s pleaded allegations and consistently reflect the admissions made in opening. To address prejudice, the respondents must make relevant witnesses available for further cross-examination, including broader cross-examination of Ms Bolles on copying. On the tendency application, the Court found the notice adequate and admitted evidence concerning alleged tendencies to scrape data and use scraped data, but rejected evidence directed only to unauthorised access or use of contractors or bots to obtain access because those matters were admitted and therefore not live issues.
Key Takeaways
- An admission made in opening submissions may be withdrawn only with leave, even if it was not pleaded.
- A mistaken admission may be corrected where doing so does not cause irremediable unfairness, but the party seeking relief must provide a substantial explanation.
- Tendency evidence under s 97(1) is not significantly probative of facts already admitted; it may be admitted for genuinely disputed issues such as scraping and use of data.
Why It Matters
The decision underscores that parties must ensure their pleadings accurately track concessions made at trial. Vague or shifting admissions can cause procedural unfairness, wasted costs, and witness recalls—even where the Court ultimately permits a correction.
It also illustrates the fact-specific operation of tendency evidence in civil proceedings: evidence of similar conduct may be admissible where it bears significantly on a contested fact, but not simply to prove conduct the opposing party already accepts.