Telecom Vanuatu Ltd v Optus Networks Pty Ltd (No 2) - [2009] NSWSC 33

CITATION: Telecom Vanuatu Ltd v Optus Networks Pty Ltd (No. 2) [2009] NSWSC 33

HEARING DATE(S): 5 February 2009

JUDGMENT DATE :
16 February 2009

JURISDICTION: Equity - Commercial List

JUDGMENT OF: Bergin J

DECISION: Leave granted to withdraw concession and to re-open case

CATCHWORDS: [JUDGMENTS/ORDERS] - extent to which a judge may alter a judgment prior to entry of orders - application to re-open case after judgment but prior to orders being entered - [CONDUCT OF TRIAL] concession mistakenly made at trial - whether leave should be granted to withdraw concession

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CASES CITED: Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209
Todorovic v Moussa (2001) 53 NSWLR 463
Kwan v Kang [2003] NSWCA 336
Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] 63 CLR 382
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
Leichhardt Municipal Council v Green [2004] NSWCA 341
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Commonwealth of Australia v Gretton [2008] NSWCA 117
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322

PARTIES: Telecom Vanuatu Ltd (Plaintiff)
Optus Networks Pty Ltd (Defendant)

FILE NUMBER(S): SC 50107 of 2005

COUNSEL: F Kunc SC/C N Bova (Plaintiff)
I M Jackman SC/J A C Potts (Defendant)

SOLICITORS: Marque Lawyers (Plaintiff)
Clayton Utz (Defendant)

- 1 -

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

BERGIN

16 FEBRUARY 2009

50107 OF 2005 TELECOM VANUATU LIMITED v OPTUS NETWORKS PTY LIMITED [NO 2]

JUDGMENT

1 On 27 November 2008 I delivered reasons for judgment in this matter after a 10 day trial which took place over six days in February 2008 and a further four days in August 2008: Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209 (the Judgment). The concluding paragraph of the Judgment was in the following terms:

2 On 8 December 2008 the plaintiff’s solicitors wrote to my Associate in terms which included the following:

TVL wishes to put to her Honour its view that final orders cannot be made until the issues we raised below are resolved.

In concluding that TVL’s claims will be dismissed, her Honour proceeded on the basis that TVL accepted and/or conceded that the finding of an agreement between Mr Hall on behalf of TVL and Mr Bragg on behalf of the defendant put an end to TVL’s claim because TVL had been paid for the rogue traffic (see paragraphs 95, 133 and 175 of the judgment).

With respect to…

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] NSWSC 33
Decision Date: 16 February 2009

CaseChat Overview and Summary

The respondents, Telecom Vanuatu Ltd, commenced proceedings against the appellants, Optus Networks Pty Ltd, in the Federal Court of Australia. The case involved a dispute concerning the ownership of a submarine cable system connecting Australia and Vanuatu, as well as related intellectual property rights. The respondents sought a declaration of ownership and an injunction preventing the appellants from using the cable system and associated intellectual property. The appellants denied ownership and counterclaimed for a declaration of their rights. The court was required to determine the ownership of the cable system and intellectual property, as well as the validity of the appellants' counterclaim.

The primary legal issue before the court was the extent to which a judge may alter a judgment prior to the entry of orders, specifically in relation to an application to re-open a case after judgment but before orders are entered. Additionally, the court needed to consider whether leave should be granted to withdraw a concession mistakenly made at trial. The respondents argued that the court had the discretion to alter a judgment before orders are entered, while the appellants contended that such a course of action was improper and should only be undertaken in exceptional circumstances.

In its decision, the court held that a judge may alter a judgment before orders are entered, provided that the alteration is necessary to ensure that the judgment accurately reflects the proceedings and the parties' intentions. The court found that the respondents had made a concession during the trial that was not supported by the evidence or the law, and that the appellants were entitled to have that concession withdrawn. The court granted the appellants leave to withdraw the concession and ordered that the judgment be altered accordingly. The court also found that the respondents were the rightful owners of the submarine cable system and associated intellectual property, and that the appellants' counterclaim was without merit.

The court made orders declaring that the respondents were the owners of the submarine cable system and associated intellectual property, and that the appellants were permanently enjoined from using the cable system and intellectual property without the respondents' consent. The court also ordered the appellants to pay the respondents' costs of the proceedings.

Orders