Taxinet Australia Pty Ltd v State of Victoria
[2000] VSC 130
•4 April 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 4671 of 2000
| TAXINET AUSTRALIA PTY. LTD. | Plaintiff |
| v. | |
| THE STATE OF VICTORIA | Defendant |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 MARCH 2000 | |
DATE OF JUDGMENT: | 4 APRIL 2000 | |
CASE MAY BE CITED AS: | TAXINET AUSTRALIA PTY. LTD. v. STATE OF VICTORIA | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 130 | |
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CATCHWORDS: Interlocutory Injunction – Principal dispute between parties resolved – No justification for injunctive relief.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. S. Whelan QC and Mr. N. Rosenbaum | Deacons Graham & James |
| For the Defendant | Mr. R. Garratt QC | Arthur Robinson Hedderwicks |
HIS HONOUR:
This was the return of a summons filed in the court by the plaintiff, Taxinet Australia Pty Ltd (Taxinet) whereby the plaintiff originally sought the following orders against the defendant, the State of Victoria:
"1.Until further order of this court, the defendant, whether by its servants and agents or otherwise, be restrained from representing to any person or entity that the plaintiff is not entitled to accept and process Multi-Purpose Taxi Program vouchers in respect of Multi-Purpose Taxi Program transactions which take place after 1 March 2000.
2.The defendant, whether by its servants and agents or otherwise be further restrained from interfering with or hindering or obstructing the conduct by the plaintiff of its business of processing Multi-Purpose Taxi Program vouchers in respect of Multi-Purpose Taxi Program transactions taking place after 1 March 2000.
3.The defendant at its own expense within 24 hours of the date of this order forward a letter in the terms of Annexure A hereto to every Melbourne Metropolitan Taxi Depot.
4.Further or alternatively, the defendant at its own expense within 24 hours of the date of this order forward a letter in the terms of Annexure B hereto to the plaintiff."
The two forms of letters can be disregarded for present purposes.
By its endorsement of claim and affidavit material the plaintiff alleges that by a non-exclusive agreement made on or about 10 December 1999 between it and the Secretary, Department of Infrastructure (DOI) as agent for and on behalf of the defendant, the plaintiff agreed to provide certain processing services to the defendant in respect of the Multi-Purpose Taxi Program (MPTP). The other substantial provider of these services to the defendant is Cabcharge Australia Pty Ltd.
The MPTP is a government funded taxi fare subsidy program designed to serve the special needs of Victorian residents with disabilities of a type and degree which severely limit their mobility and which prevent them from using mainstream public transport.
Members of the program receive a discount of 50% on the metered taxi fare up to a maximum of $25 per fare. The discount is financed by the Victorian Government through DOI.
As at 30 June 1999 there were 189,600 MPTP members. In 1998/1999 the total MPTP trips were approximately 4.8m. at a subsidy cost of over $32m.
The plaintiff is a wholly owned subsidiary of Schmidt Electronic Laboratories Pty Ltd (SEL). SEL carries on the business of manufacturing microcomputer based products including electronic taxi meters, credit card and smart card point of sale terminals, miniature printers, modems and speed warning devices.
Pursuant to its agreement with the defendant the plaintiff was to process for end use by the defendant MPTP vouchers generated by MPTP transactions. The vouchers were to be delivered to the plaintiff by Victorian Taxi Depots. The plaintiff was to render invoices to the defendant each month in respect of services it had performed for the defendant in the preceding month, such invoices to be paid within 30 days of their receipt by the defendant.
On 10 January 2000 the plaintiff rendered an invoice to the defendant for $22,683.50 in respect of services provided by it in December 1999 and on 31 January 2000 the plaintiff rendered an invoice to the defendant for $351,823.50 in respect of services provided by it in January 2000. At the time this application came before me for hearing the defendant had not paid the two invoices.
The dispute which has arisen between the parties is complex and relates to the introduction by DOI on 1 March 2000 of what is described as a "smart card" to replace the old magnetic stripe cards previously used by members of the program.
The case for the plaintiff is that pursuant to its agreement with the defendant the smart cards were not to be introduced until the expiration of twelve months from the date of the plaintiff's agreement.
In that regard the plaintiff relies on the provisions of clause 13.1 of the agreement, which read:
"13.1The Parties acknowledge that the Contractor will be able to process Off-line Transactions and Voucher Transactions prior to the Actual Acceptance Date for the System. The Contractor may process Voucher Transactions by converting these transactions into electronic data and transmitting that electronic data to CCC."
The defendant on the other hand contends that that is not the case, that pursuant to the provisions of clause 3.1 of the agreement it was entitled to introduce the smart cards on 1 March. That clause reads:
"3.1The Contractor shall, in accordance with this Agreement implement and conduct the Data Collection Service using Off-line Terminals, Infield Base Station Terminals and the Voucher System, complying with their respective Specifications (which, in the case of the Voucher System, includes the provision of Transaction data in a format which complies with the Back Office System Interface Specifications in Schedule 4)."
The dispute between the parties concerning those aspects of the agreement is complex, to say the least of it. Fortunately, in light of the events which have occurred since the plaintiff instituted this proceeding, it is unnecessary for me to make any determination in relation to it at this stage of the proceeding. What I do say, however, is that there is a serious issue to be determined concerning it.
At all events, by letter of 3 February from the Victorian Taxi Directorate (VTD) to the plaintiff, the plaintiff was informed of the introduction of the new card. The first two paragraphs of that letter read:
"Commencing on Monday 7 February 2000 the Taxi Directorate will be issuing new membership cards for the MPTP on a Statewide basis. These cards are smartcards and their issue is in preparation for the roll-out of the new electronic system. In the meantime the new cards will be accepted with existing dockets which will be replaced by new paper dockets over the next month. It is expected that the old dockets will be phased out by end of February 2000. The new dockets (see enclosed example) provide VTD with essential additional information. Data collection agencies will be required to provide the VDT Back Office System with an electronic file of these transactions which conforms to specifications listed below.
The new system means that claim forms are no longer required, payments being made daily on the basis of transactions received through the Back Office System. As a contractor to the VTD for data collection, Taxinet Australia Pty Ltd is required, since the commencement of its agreement with the Department of Infrastructure, to provide data as specified below using electronic media."
By letter of 4 February from the plaintiff's solicitors to the defendant's solicitors, the defendant's solicitors were informed that it was the plaintiff's view that the defendant was not entitled to take the action it had in the matter.
However, on 17 February 2000 the plaintiff wrote directly to the VTD informing it that it would take steps to enable it to process the MPTP vouchers in accordance with the new requirements. Thereafter the plaintiff used its best endeavours to do so.
Despite that fact, on 1 March 2000 officers of the defendant attended a meeting of representatives of Melbourne Metropolitan taxi depots and addressed them in relation to the new cards.
The case for the plaintiff is that at that meeting officers of the defendant represented to those attending the meeting:
(1)that the plaintiff was "not certified or otherwise authorised by the defendant to process any "new" MPTP vouchers in respect of MPTP transactions taking place on or after 1 March 2000;
(2)that all "new" MPTP vouchers in respect of MPTP transactions taking place on or after 1 March 2000 should be forwarded to the plaintiff's only competitor, Cabcharge Australia Pty Ltd.
The defendant's account of that aspect of the meeting is somewhat at variance with that of the plaintiff. In his affidavit of 24 March 2000 the director of the DOI, Stephen Stanko, has sworn:
"58.Those present at the meeting were informed by representatives of the VTD that:
(a)as from 1 March 2000, the new vouchers were to be used to process MPTP transactions;
(b)'at this stage' only Cabcharge was able to process those vouchers because the plaintiff had not demonstrated that it met the requirements to interface with the Back Office System;
(c)accordingly, 'for the time being', Depot Managers should forward the new vouchers to Cabcharge for processing."
Whatever was said at the meeting had a dramatic effect upon the plaintiff's business. Almost immediately there was a sudden and dramatic decrease in taxi vouchers arriving from Metropolitan taxi depots for the purpose of being processed by the plaintiff.
By letter of 7 March the plaintiff's solicitors wrote to the defendant's solicitors informing them that, effective as from 9 a.m. on Monday 6 March, the plaintiff had taken all necessary steps to enable it to process the MPTP vouchers in accordance with the new requirements and sought various undertakings from the defendant, including an undertaking that by 5 p.m. that day the defendant would forward to all taxi depots, taxi operators and taxi drivers in Victoria a notification to the effect that the representations made by its officers at the meeting on 1 March were not accurate and that the plaintiff was now fully operational and able to accept voucher transactions.
The defendant declined to give the undertakings and on 16 March the plaintiff filed this proceeding in the court.
When the matter first came before me on 20 March I was informed by counsel for the defendant that it was proposed that there be a meeting of representatives of the parties the following day with a view to resolving the dispute between them, and that if the dispute was not resolved it would take the defendant some time to prepare affidavits in opposition to the plaintiff's application. I thereupon adjourned the further hearing of the application to 27 March.
On 27 March, and by consent of the parties, the further hearing of the matter was adjourned to 29 March.
When the matter came before me again on 29 March I was informed by counsel for the parties that the implementation issues relating to the smart card had now been resolved by the parties and that that day the VTD had commenced sending a letter by facsimile to all Melbourne Metropolitan, Frankston and Dandenong taxi depots advising them that the VTD was able to accept MPTP transactions processed using the new vouchers from either Taxinet or Cabcharge. The circular letter reads:
"Multi Purpose Taxi Program (MPTP)
The VTD wishes to notify all depots that, in addition to electronically processed transactions, the VTD is able to accept MPTP transactions processed using the new vouchers from either Taxinet or Cabcharge."
Fearful that there may be a repetition of the dispute and that the defendant may again inform taxi operators that the plaintiff is not authorised or certified to process the voucher transactions, the plaintiff now seeks the following injunctive relief:
"Until the hearing and determination of this proceeding or further order the defendant is restrained from representing to any Taxi depot that the plaintiff is not entitled to process Voucher Transactions (as that term is defined in the Agreement, a copy of which is exhibit 'GS2' to the affidavit of Gary Schmidt affirmed 16 March 2000 and filed herein), or is not authorised or certified to process such vouchers, or that such vouchers should not be forwarded to the plaintiff, or that all such vouchers should be forwarded to an entity for processing other than the plaintiff, without first giving to the plaintiff 7 days notice in writing of its intention to do so."
Whilst in the events that have happened one can understand the plaintiff's fears in that regard, I am not persuaded that they are sufficiently real to justify the making of the order sought.
Mr Stanko has sworn in his affidavit of 29 March 2000 that he believes the implementation issues have been resolved and that has been confirmed by the action of the VTD in sending the circular letter in question to taxi operators.
In my opinion it is unlikely, therefore, that any further problem justifying the cutting off of the supply of vouchers to the plaintiff will arise.
But if a further problem did arise I would expect the defendant to give the plaintiff every opportunity to rectify it before taking such a drastic step. And it would be a drastic step because it would cut off the plaintiff's source of income.
I consider that it will be sufficient to reserve to the parties liberty to apply and simply adjourn the further hearing of the plaintiff's summons sine die, and those are the orders I make in the matter.
I reserve the costs of the application.
I direct that any application to be made by the plaintiff or the defendant in relation to the matter be made to a judge of the court rather than a Master.
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