Media Ocean Ltd v Optus Mobile Pty Ltd (No 6) - [2009] FCA 1319

FEDERAL COURT OF AUSTRALIA
Media Ocean Limited v Optus Mobile Pty Limited (No 6) [2009] FCA 1319
PRACTICE AND PROCEDURE – notice of motion applying to amend application and statement of claim
Held: application to amend allowed
Aon Risk Services Australia Limited v Australian National University (2009) 258 ALR 14; [2009] HCA 27
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1
Butterworths. Practice & Procedure: High Court and Federal Court of Australia. Sydney (2000), loose-leaf service (last updated October 2009 Service 198) at [40,455.5]
MEDIA OCEAN LIMITED and MEDIATEL SERVICES PTY LIMITED (ACN 090 256 796) v OPTUS MOBILE PTY LIMITED (ACN 054 365 696)
NSD 242 of 2009
JAGOT J
5 NOVEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 242 of 2009

BETWEEN:
MEDIA OCEAN LIMITED
First Applicant

MEDIATEL AUSTRALIA PTY LIMITED (ACN 106 996 736)
Second Applicant

AND:
OPTUS MOBILE PTY LIMITED (ACN 054 365 696)
Respondent

FIRST CROSS-CLAIM

BETWEEN:
OPTUS MOBILE PTY LIMITED (ACN 054 363 969)
First Cross-Claimant

OPTUS NETWORKS PTY LIMITED (ACN 008 570 330)
Second Cross-Claimant

AND:
VODAFONE NETWORK PTY LIMITED (ACN 081 918 461)
Cross-Respondent

SECOND CROSS-CLAIM

BETWEEN:
VODAFONE NETWORK PTY LIMITED (ACN 081 918 461)
Cross-Claimant

AND:
OPTUS MOBILE PTY LIMITED (ACN 054 363 969)
First Cross-Respondent

OPTUS NETWORKS PTY LIMITED (ACN 008 570 330)
Second Cross-Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

5 NOVEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to Order 6 rule 8(1) of the Federal Court Rules Sound Advertising Limited be joined as an applicant to the proceedings.
2.The applicants be granted leave to amend their second further amended application and second further statement of claim in the form annexed to the Notice of Motion filed 5 November 2009 and marked A and B.
3.The applicants pay the respondent’s and Vodafone Network Pty Ltd’s costs thrown away by reason of the amendments to the second further amended application and second further amended statement of claim including the costs thrown away by reason of the vacation of the hearing date as agreed or taxed.
4.The applicants pay the respondent’s and Vodafone Network Pty Ltd’s costs of the notice of motion filed 5 November 2009 as agreed or taxed.
5.Vacate the hearing dates of 30 November to 11 December 2009.
6.List the matter for directions at 9.30 am on Friday 13 November 2009.
7.Adjourn the respondent’s foreshadowed application to amend its cross-claim to 13 November 2009 for mention.
8.Otherwise vacate all procedural directions pending the directions hearing on 13 November 2009.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 242 of 2009

BETWEEN:
MEDIA OCEAN LIMITED
First Applicant

MEDIATEL AUSTRALIA PTY LIMITED (ACN 106 996 736)
Second Applicant

AND:
OPTUS MOBILE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 1319
Decision Date: 5 NOVEMBER 2009

CaseChat Overview and Summary

The parties involved in this case were Media Ocean Ltd and Optus Mobile Pty Ltd. The dispute centered around an application to amend statements of claim in proceedings regarding claims of misleading or deceptive conduct, and contraventions of Australian Consumer Law. The Federal Court of Australia presided over this matter. The applicants sought leave to amend their second further amended application and second further statement of claim. The legal issues the court was required to decide included whether the applicants should be granted leave to amend their claims, and the costs associated with such amendments.

The court determined that the applicants should be granted leave to amend their claims, but subject to certain conditions. These included the joining of Sound Advertising Limited as an applicant, and the payment of costs incurred by the respondent and Vodafone Network Pty Ltd as a result of the amendments. The court found that the amendments were not frivolous or vexatious, and that there was a sufficient cause of action to warrant the changes. However, the court also noted that the applicants should bear the costs of the amendments, and that the hearing dates should be vacated as a result of the changes. The court further ordered that the respondent's application to amend its cross-claim be adjourned to the same date as the directions hearing.

In conclusion, the court granted the applicants leave to amend their claims, subject to certain conditions. The applicants were required to pay the costs of the amendments, and the hearing dates were vacated as a result. The matter was listed for a directions hearing, at which the respondent's application to amend its cross-claim would also be mentioned. The court's decision ensures that the proceedings are fair and just, while also protecting the rights of all parties involved.

Orders

Orders of the court

1. Pursuant to Order 6 rule 8(1) of the Federal Court Rules Sound Advertising Limited be joined as an applicant to the proceedings.

2. The applicants be granted leave to amend their second further amended application and second further statement of claim in the form annexed to the Notice of Motion filed 5 November 2009 and marked A and B.

3. The applicants pay the respondent’s and Vodafone Network Pty Ltd’s costs thrown away by reason of the amendments to the second further amended application and second further amended statement of claim including the costs thrown away by reason of the vacation of the hearing date as agreed or taxed.

4. The applicants pay the respondent’s and Vodafone Network Pty Ltd’s costs of the notice of motion filed 5 November 2009 as agreed or taxed.

5. Vacate the hearing dates of 30 November to 11 December 2009.

6. List the matter for directions at 9.30 am on Friday 13 November 2009.

7. Adjourn the respondent’s foreshadowed application to amend its cross-claim to 13 November 2009 for mention.

8. Otherwise vacate all procedural directions pending the directions hearing on 13 November 2009.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JAGOT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JAGOT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 242 of 2009

BETWEEN:	MEDIA OCEAN LIMITED First Applicant MEDIATEL AUSTRALIA PTY LIMITED (ACN 106 996 736) Second Applicant
AND:	OPTUS MOBILE PTY LIMITED (ACN 054 365 696) Respondent
FIRST CROSS-CLAIM
BETWEEN:	OPTUS MOBILE PTY LIMITED (ACN 054 363 969) First Cross-Claimant OPTUS NETWORKS PTY LIMITED (ACN 008 570 330) Second Cross-Claimant
AND:	VODAFONE NETWORK PTY LIMITED (ACN 081 918 461) Cross-Respondent
SECOND CROSS-CLAIM
BETWEEN:	VODAFONE NETWORK PTY LIMITED (ACN 081 918 461) Cross-Claimant
AND:	OPTUS MOBILE PTY LIMITED (ACN 054 363 969) First Cross-Respondent OPTUS NETWORKS PTY LIMITED (ACN 008 570 330) Second Cross-Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	5 NOVEMBER 2009
WHERE MADE:	SYDNEY