21st Century Promotions v Telstra Corporation No. Scgrg-98-902 Judgment No. S46

[1999] SASC 46

21st CENTURY PROMOTIONS v TELSTRA CORPORATION
[1999] SASC 46

Civil

1. WICKS J          This is an application for an order that the injunction granted by this court in this action on 9 July 1998 be dissolved.  The application for the dissolution of the injunction was made on 8 September 1998.  At that time, rather than entertain a prolonged argument about whether the injunction should remain in force, it was decided that the trial of certain issues in the case should be brought promptly before the court for hearing in October 1998.

2. The trial , however, did not proceed in October but was stood over until the following month. It proceeded for one week.  During that time it was necessary for there to be various adjournments brought about by the illness of the plaintiff’s principal witness, Mr Justin Maine.  At the end of the week, Mr Maine was hospitalised and it looked unlikely that the trial would proceed in the following week as had been contemplated originally.  I therefore stood the matter over until the last week in February, 1999 being the earliest available time during which the trial could proceed. 

3. Shortly after the matter was adjourned in November, the defendant renewed its application that the injunction of 9 July 1998 be dissolved.

4. I heard argument on who should be dux litus in respect of the application and decided that as the question of the maintenance of the injunction had not been the subject matter of full argument in the first place, the plaintiff should be dux litus.  I then heard argument on the matter from both parties. 

5. In order to dissolve the injunction I will need to decide that there was not a serious question to be tried, or alternatively, that the balance of convenience does not favour the plaintiff. 

6. After giving the matter careful consideration, I am of the view that I should not make findings of any kind relating to the issue of whether there is a serious question to be tried.  In coming to that conclusion I have taken account of the fact that the trial of the action has already begun and that the hearing of the matter has proceeded almost to a conclusion of the plaintiff’s case.

7. I express no view on the findings which I might have made if I had come to a conclusion whether or not there is a serious question to be tried.  In considering such a question, as I indicated to the parties, I would only be concerned with the plaintiff’s case so as to consider that case put at its highest.  I have come to the conclusion, however, that in view of the fact that the trial is part way through, I should not publish findings of any kind as, to do so, might place me in a position where I would be obliged to disqualify myself as trial Judge, thus requiring the trial to be commenced afresh.  Any hardship on this account on the part of the defendant can be alleviated by my requiring the payment of further cash security as suggested below in these reasons.

8. I consider that I have a discretion in this matter as to whether or not to grant the defendant’s application.  In the circumstances, and for the reasons which I have just given I propose to refuse the application to dissolve the injunction.

9. In Telstra Corporations Limited v First Netcom Pty Ltd (1997) 148 ALR 202, following Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, the Court held, at p206:

   "Where a person seeks an injunction to restrain the termination of an ongoing agreement with the consequence that the party so enjoined is forced to continue to deal against his or her will, the party seeking the injunction will, prime facie, be required to pay to the party enjoined any moneys owing between them, or if there is dispute as to whether moneys are owing, to pay the amount in dispute into court, in addition to the normal undertaking as to damages."

1. In the period leading up to the trial of this action, Debelle J ordered the payment of two amounts of $10,000 each into court to the credit of an account entitled with the name of this action. I would be prepared to follow the procedure in this regard adopted by Debelle J and order the payment of an additional amount being sufficient to cover the total of the defendant’s claim against the plaintiff, taking into account the two amounts already paid into court.

2. Before dealing with the matter, I would need to see an affidavit filed on behalf of Telstra made by a responsible officer deposing to the amount outstanding by the plaintiff in respect of the services, the subject of the injunction.  The affidavit should contain a proper statement of the amount owing detailing that amount in relation to each of the services involved.

3. The affidavit should specifically exclude from the amounts involved the indebtedness of National Digital Australia Pty Ltd or of Australian National Cellular Communications Pty Ltd.  These are separate matters and have nothing to do with the injunction under consideration.

4. The terms of the injunction are very general.  Paragraph one restrains the defendant from terminating telephone and telecommunication services provided to the plaintiff in Australia.  Paragraph 2 requires the defendant to restore forthwith telephone and telecommunication services of the plaintiff which it has already disconnected.  The only specific inclusion is the service belonging to the number 03 9731 9571, the prime on-ramp connection which, as a matter of estoppel, the plaintiff claims the defendant is obliged to provide for the benefit of the plaintiff even though the service is currently in the name of Network Digital Australia Pty Ltd.

5. I envisage that the plaintiff would be given the opportunity to pay an additional amount into court within a limited time.  If that is not done, application could be made to the court to dissolve the injunction.

6. I would dismiss the defendant’s application to dissolve the injunction.