Telecom Vanuatu Ltd v Optus Networks Pty Ltd - [2005] NSWSC 951

CITATION:
Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2005] NSWSC 951

HEARING DATE(S): 09/09/05

JUDGMENT DATE :

23 September 2005

JURISDICTION:
Equity Division
Commercial List

JUDGMENT OF:
White J

DECISION:
1. Dismiss the defendant's notice of motion of 9 August 2005; 2. defendant pay the plaintiff's costs of the notice of motion.

CATCHWORDS:
PRACTICE AND PROCEDURE - Application to have part of the pleadings struck out - Plaintiff pleads tort of conversion in respect of intangible property - Applicant argues that the claim is untenable - No material advantage in preparation or conduct of the case if impugned allegations struck out - Issue is whether claim is reasonably arguable at an appellate level - Application dismissed.

LEGISLATION CITED:
Telecommunications Act 1977 (Cth)
Torts (Interference with Goods) Act 1977 (UK)

CASES CITED:
In re Fontainebleau Hotel Corporation; South Central Bell Telephone Company v Simons 1975, 508 F2d 1056
Baltic Shipping Co. v Dillon (1993) 176 CLR 344
Ferguson v Eakin (27 August 1997, unreported, Cole JA)
Penfold Wines Pty Ltd v Elliott (1946) 74 CLR 204
Balkin & Davis, Law of Torts, 3 ed
McLachlan v Canadian Imperial Bank of Commerce (1987) 13 BCLR (2D) 300; (1989) 57 DLR (4th) 687
Royal Bank of Canada v W Got & Associates Electric Ltd (1994) 150 AR 93; 196 AR 241; [1999] 3 SCR 408
Kavcar Investments Ltd v Aetna Financial Services Ltd (unreported, 11 April 1986, Ontario Supreme Court, Hollingworth J)
OBG Ltd v Allan [2005] 2 WLR 1174
Kremen v Online Classifieds inc. (2003) 337 F 3rd 1024
Payne v Elliot 54 Cal 339 (1880)
Re-statement (2nd) of Torts s 242 (1965)
Wickstead v Browne (1992) 30 NSWLR 1
Williams & Humbert v W & H Trade Marks (Jersey) Ltd [1986] AC 368
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Gibson v Parkes District Hospital (1991) 26 NSWLR 9

PARTIES:
Telecom Vanuatu Limited
v
Optus Networks Pty Limited

FILE NUMBER(S):
SC 50107/05

COUNSEL:
Plaintiff: F Kunc, S Aspinall
Defendant: I M Jackman SC & Dr A Bell

SOLICITORS:
Plaintiff: Gadens Lawyers
Defendants: Clayton Utz

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

WHITE J

Friday, 23 September 2005

50107/05 Telecom Vanuatu Ltd v Optus Networks Pty Ltd

JUDGMENT

1 HIS HONOUR: This is an application by Optus Networks Pty Ltd to strike out paragraphs 17 to 24 of the Summons.

2 The proceedings arise out of tripartite agreements made between Telecom Vanuatu Limited, Optus, and originating carriers of telecommunications. Telecom Vanuatu claims to have exclusive rights under Vanuatu law to control international Vanuatu telephone numbers. An international Vanuatu telephone number dialled from another region has the prefix 678.

3 By paragraphs 1 to 16 of the Summons, which are not challenged, Telecom Vanuatu alleges that Optus failed to pay call termination charges for international telecommunications traffic terminating on Vanuatu Number Ranges in respect of which Optus was the transit carrier. Telecom Vanuatu alleges that these moneys were owing…

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: [2005] NSWSC 951
Decision Date: 23 September 2005

CaseChat Overview and Summary

Telecom Vanuatu Limited brought an action against Optus Networks Pty Ltd, claiming compensation for the alleged tort of conversion. The dispute centred on the conversion of intangible property. The Federal Court of Australia was tasked with deciding whether part of the plaintiff's pleadings should be struck out. The court was asked to determine if the claim was reasonably arguable, particularly in relation to the tort of conversion concerning intangible property.

The court considered the application to strike out the claim, which hinged on whether the plaintiff's allegations were sufficiently arguable. The applicant argued that the claim was untenable and that there was no material advantage in the preparation or conduct of the case if the alleged tortious act was excluded. The court was required to weigh the merits of the claim against the principles of procedural fairness and the importance of allowing parties to present their best case. Ultimately, the court found that the claim, although contentious, was reasonably arguable on appeal, and thus the application to strike out the pleadings was dismissed.

The Federal Court's decision underscored the importance of allowing parties to present their full case unless there was a clear and compelling reason to do otherwise. The court held that the plaintiff's claim, despite being contentious, was sufficiently arguable to warrant its consideration at an appellate level. The court's ruling reinforced the principle that procedural fairness and the right to a full and fair hearing are paramount in the judicial process.

The court's final order was that the application to have part of the pleadings struck out was dismissed, allowing the plaintiff to proceed with its claim for the tort of conversion concerning the intangible property. This decision ensured that the plaintiff could pursue its case in the courts, subject to the ongoing merits and arguments presented.

Orders