Teledata World Services Pty Ltd v Australian Satellite & Cablevision Services Pty Ltd

[1999] WASC 141

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   TELEDATA WORLD SERVICES PTY LTD -v- AUSTRALIAN SATELLITE & CABLEVISION SERVICES PTY LTD [1999] WASC 141

CORAM:   McKECHNIE J

HEARD:   5 AUGUST 1999

DELIVERED          :   5 AUGUST 1999

FILE NO/S:   CIV 1021 of 1999

BETWEEN:   TELEDATA WORLD SERVICES PTY LTD (ACN 076 676 438)

Plaintiff

AND

AUSTRALIAN SATELLITE & CABLEVISION SERVICES PTY LTD (ACN 008 203 763)
Defendant

Catchwords:

Cross-vesting - Reliance on videolink - Turns on own facts

Legislation:

Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) s 5

Result:

Transferred to South Australia

Representation:

Counsel:

Plaintiff:     Mr M D Evans

Defendant:     Mr N P Gentilli

Solicitors:

Plaintiff:     Corser & Corser

Defendant:     Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Bailey v Climaze Holdings Pty Ltd, unreported; SCt of WA; Library No 980455; 12 August 1998

Chapman v Jansen (1990) 100 FLR 66

Dawson v Barker (1990) 120 ACTR 11

Harrison v Trewhella (1994) 13 WAR 394

Interceramics Australia Pty Ltd v Quadric Pty Ltd, unreported; SCt of WA; Library No 970610; 14 November 1997

Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1989) 1 WAR 531

Platz v Lambert (1994) 12 WAR 319

1. McKECHNIE J : The plaintiff, which for practical purposes is a Western Australian company, sues the defendant, a South Australian company, in respect of a contract, partly in writing and partly oral, the oral part consisting of telephone calls between the managing directors of each party - one in Perth, the other in Adelaide.

2. The basis of the plaintiff's claim is that certain satellite telecommunication equipment failed to work effectively.  This claim is denied by the defendant.  The defendant applies on summons pursuant to the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (WA) s 5 to transfer these proceedings, which have been regularly instituted in this Court, to South Australia.

3. The law relating to the exercise of the discretion is not an issue in this application.  The defendant carries the onus of affirmatively persuading the Court that it is in the interests of justice to transfer the proceedings in the circumstances where the proceedings have been regularly instituted by the plaintiff in this Court.

4. The defendant points to two matters which, it is submitted, make transfer to South Australia appropriate.  The first is the witnesses.  There are 10 proposed witnesses in South Australia, as opposed to six proposed witnesses for the plaintiff in Western Australia.

5. Earlier cases dealing with this issue of witnesses as a principal ground for transfer have less force following the enactment of the Evidence Act1906(WA) s 120 - s 132, enabling evidence to be taken by videolink from across Australia or, indeed, anywhere in the world.

6. In the future it is likely to be an unusual case where the number of witnesses of itself was a decisive matter.  This is not an unusual case.  Clearly it will be inconvenient to one party if the action is heard in either Perth or Adelaide.  However, the inconvenience will be largely alleviated by videolink facilities.

7. The defendant's main contention is that it will be necessary to test the equipment.  The equipment is largely to be found in Adelaide and there are experts in Adelaide able to perform the tests necessary.  The plaintiff contends that the whole system does not need to be tested and that only certain components need testing and, in any event, the testing is not of the system that was installed.

8. This action is at an early stage.  The trial will require a Judge to become knowledgable about various technical aspects concerning satellite telecommunications.  There will no doubt be pre‑trial applications and it will probably be a good thing if they are made to the trial Judge because of the technical aspects to which I have referred.

9. On the affidavit material which has been tendered, I consider there is a fair chance that a trial Judge would be assisted by a view of the system in operation.  I make this comment notwithstanding that any view will necessarily be, to an extent, a reconstruction.  As at present advised, I do not consider that a videotape of the demonstration would be as suitable as an actual view.

10. There is also a reasonable possibility that a court may in due course direct certain tests to be made under court supervision and those tests would be on the whole of the equipment.  I accept Professor Miller's opinion in pars 11, 15 and 18 of his affidavit.  For these reasons I am satisfied that the interests of justice make the South Australian Supreme Court the appropriate court to try this matter and will grant an order in terms of the summons accordingly.