Pacific Star Communications Pty Ltd v Telstra Corporations Ltd

[1997] FCA 1611

JUDGMENT No. L~LL..I &z,?

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 498 of 1997

GENERAL DIVISION )

Between: PACIFIC STAR

COMMUNICATIONS	PTY
LIMITED 6. ORS

Applicant

And: TELSTRA CORPORATION

LIMITED

Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 30 JUNE 1997

The matter before the Court this morning is whether an application by the applicants for an interlocutory injunction against Telstra restraining the cutting off of its customer services from a date in July and the sending of a preliminary letter before the cutting off to advise the customers that it is about to take place should be transferred to the Supreme

Court of Queensland or the Queensland Registry of the Federal

Court.

The reason for the application brought by Telstra is that there are already proceedings on foot in the Queensland Supreme Court in which Telstra is suing the applicant companies for a debt for unpaid telephone calls. I am informed and have no reason not to believe that it is the

intention of the applicants who are the defendants in those

proceedings to cross-claim against Telstra in those proceedings raising a number of matters including matters under Part IV of the Trade Practices Act.

In this respect these proceedings would be the same or similar to proceedings commenced in the New South Wales Supreme Court by Telstra against another company providing the same or similar services to the applicants. That case was transferred to this Court upon the cross-claim being filed on the grounds that only this Court has jurisdiction to deal with Part IV claims.

In those circumstances it seems very likely that the Queensland Supreme Court proceedings will at some stage be

transferred to the Federal Court, whether in the Queensland

Registry or in the New South Wales Registry.

The argument for the matter to remain in Queensland appears to be that the business of the first and second applicants in

particular is substantially Queensland-based. However, the evidence establishes that the first applicant is in the process of going out of business altogether and transferring its business elsewhere. There is also evidence in the

affidavits that in any case Telstra's office in Brisbane has

now referred the handling of the dispute to the company's

office in Sydney or Melbourne. This, I imagine, is because

the matter is of nationwide significance, having in mind the fact that there are so many of these disputes now before Australian courts.

Moreover, as I read the affidavits, it seems to me to be of very minor consequence anyway as to where the customer base of the applicants is. The customer base is not the issue in dispute here. The issues concern a number of billing problems which the applicants claim they have had with Telstra over a long period of time similar to other companies providing the same or similar services who have present proceedings in the New South Wales Registry of the Court.

It has always been said that matters where the same or similar disputes are raised should be heard in the same court. The

whole purpose of the cross-vesting legislation is to avoid duplication, the possibility of inconsistent judgments and of lengthy delays brought about by having to explain the same set of facts to different courts, and the need to bring the same or same type of evidence more than once. Cross-vesting seeks to ensure that parties cannot run parallel cases in different courts, both in the state and the federal system, in order to thwart the desire that litigation be dealt with in the most expeditious fashion, at the least possible cost, and with negligible opportunity for tactics and duress.

That certainly applies to this litigation. As I have said in other aspects of similar litigation before this court already, unless the parties resolve their differences or agree to a more sensible regime for their resolution, it is perfectly clear that at some stage in this litigation, it will be necessary to use what are now the compulsive powers of the Court to send out to an arbitrator or mediator certain questions to be determined. At the very least, someone other than a Judge will have to go through all the primary records of Telstra in order to ascertain whether the billing disputes raised by the applicants in this case and in the other cases have any merit at all.

~	It is understandable that Telstra should have become anxious about the large accumulation of debt by service providers such as the applicants in this particular litigation. These figures have now reached astronomical proportions and Telstra
l
i	is perfectly justified in taking steps to ensure that they get
l	paid the amounts which are properly owing.
In this particular case, the proportion of amounts or calls in dispute to the number and overall cost involved in calls is
less than in other cases but it is still a very large sum of money. If the cross-claim to be filed in the case before the Supreme Court of Queensland is anything like the cross-claims filed in the other cases, it will itself be claiming damages

in what, if the pun may be pardoned, can only be described as

telephone numbers.

It does not seem to me that the maximum degree of efficiency and expedition can possibly be achieved by having the litigation spread throughout the court system in Australia or between the state and federal court streams. As this case,

for the reason given earlier, appears likely to be heard in the Federal Court, and as there is no particular reason why the matter should be heard in Queensland as it has been commenced in New South Wales, I refuse the application to transfer the matter to the Supreme Court of Queensland and the alternative application to transfer it to the Queensland Registry of the Court.

That is not to say that at some later time it may be appropriate to transfer it to the Queensland Registry of the Court, depending upon how the litigation develops, the likely spread of witnesses, and what the opportunities are for the Court in New South Wales to hear the matter. Of course the Judge hearing the matter in Sydney can quite easily take evidence in Brisbane or other states of Australia if necessary, including by telephonic or video link if the evidence lends itself to that form of technology.

For the present it seems to me that the application of Telstra to change States should fail and I dismiss it.