21st Century Promotions v Telstra Corporation Ltd No. Scgrg-98-902 Judgment No. S6929

[1998] SASC 6929

21ST CENTURY PROMOTIONS v TELSTRA CORPORATION LTD

Civil
Debelle J (ex tempore)

1. On 17 September 1998, I ordered an early trial of this action and made orders with directions in order to bring about that early trial.  At that stage, the plaintiff had filed a statement of claim. 

2. On 2 October 1998, I made orders with further directions.  I also ordered that the trial commence on 2 November 1998.  On that day, the appellant foreshadowed amendments to its defence and the plaintiff foreshadowed amendments to its statement of claim.  Neither party disclosed the nature of the proposed amendments.  Assuming the amendments would be relatively inconsequential, I gave leave to make the amendments and fixed dates for doing so.   The plaintiff was ordered to file and deliver its amended statement of claim by 9 October. 

3. The plaintiff had, in its statement of claim, alleged that the defendant had wrongfully terminated telecommunication services which the defendant provided to it.  It also alleged the defendant had agreed to transfer a telecommunications service called a Prime On Ramp connection from a related company of the plaintiff to the plaintiff, and that the defendant was estopped from disconnecting its communication services to the plaintiff.   The claim was, essentially, founded on estoppel and a claim for a breach of a service guarantee. 

4. The amendment filed on 12 October 1998 added an entirely fresh claim and cause of action. It alleged that the defendant had misused its power in the telecommunications market in breach of s46 of the Trade Practices Act 1974 (Cth) in refusing to permit Optus to supply the Prime On Ramp connection to the plaintiff. By virtue of s86 of the Trade Practices Act, the Federal Court of Australia has exclusive jurisdiction in respect of matters arising under s46 of the Trade Practices Act. Matters arising under s46 of the Act are defined by s3 of the Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth as “special federal matters”.

5. The cross-vesting legislation of the Commonwealth and of this State both provide that, if special federal matters arise for determination in proceedings in this court, the proceedings must be transferred to the Federal Court.   However, this court may order that it determine the proceedings if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties: see s6(3) of the Commonwealth Act and the identical provision in s6(3) in the State Act. 

6. The plaintiff has applied for an order that this court hear the action, notwithstanding the existence of the special federal matter.  On 13 October 1998, the plaintiff gave notice to the Attorneys-General of the Commonwealth and of the State of South Australia, as required by s6(4) of the Commonwealth and State Act.  The Attorneys-General of the Commonwealth and of the State have both advised that they have no interest in this litigation or in this special federal matter. 

7. I am satisfied that there are special reasons why this court should continue to hear and determine this matter. They are, first, that an early trial has been ordered and it is desirable that the date for the trial having been fixed, the parties should be able to proceed on the appointed day. Secondly, these proceedings arise out of a long-standing dispute between the parties. In July last, an application was made for an interlocutory injunction by the plaintiff. A number of applications have ensued which culminated in the order for the early trial. The parties have acted with commendable expedition in getting the matter ready for trial and, as I have said, should be able to proceed on the appointed day. Thirdly, the plaintiff is entitled to know as soon as conveniently possible whether it is entitled to retain the telecommunications services it requires for the purpose of the conduct of its business, which appears to be related to the provision of services on the Internet. For its part, the defendant is entitled to know whether what it alleges to be the unsatisfactory arrangements of the payment of debts due to it by the plaintiff entitle it to discontinue the services which it provides to the plaintiff. There are, in other words, strong commercial reasons which the plaintiff and defendant respectively have for seeking the early determination of the issues between them. Those issues go far beyond the mere convenience of the parties. Fourthly, the introduction of the special federal matter has occurred late in these proceedings and the nature of the issues which are raised are not of such importance that they will require a decision of the Federal Court to clarify the law in relation to the true meaning of s46. The issue is a fairly limited one which need not occupy the attention of the Federal Court. Finally, if the matter were referred to the Federal Court, it is obvious the matter could not be heard as quickly as it could be heard in this court. For all of these reasons, I am satisfied that this court should continue to hear and determine the matter and that it need not be transferred to the Federal Court.

8. There will, therefore, be an order that the proceeding be determined by this court, notwithstanding that it involved a special federal matter.  The costs of the application will be costs in the cause.