Terravision Pty Ltd v Black Box Control Pty Ltd - [2014] WASC 261

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TERRAVISION PTY LTD -v- BLACK BOX CONTROL PTY LTD [2014] WASC 261

CORAM: LE MIERE J

HEARD: 4 JULY 2014

DELIVERED : 23 JULY 2014

FILE NO/S: CIV 2103 of 2012

BETWEEN: TERRAVISION PTY LTD
Plaintiff
AND
BLACK BOX CONTROL PTY LTD
Defendant

Catchwords:

Application for trial of separate issues or questions - O 32 r 4 of the Supreme Court Rules 1971 (WA) - Factors to consider in ordering separate questions - Separate question will ensure efficient use of time, minimise costs and may lead to disposal of proceedings - Question for determination not adequately formulated

Legislation:

Federal Court Rules 1979 (Cth), O 29 r 2(a)
Supreme Court Rules 1971 (WA), O 1 r 4, O 1 r 4B, O 20 r 8(1), O 20 r 9(1)(b), O 32 r 4

Result:

Application granted in part

Category: B

Representation:

Counsel:

Plaintiff: Ms K J Levy
Defendant: Mr P Mendelow

Solicitors:

Plaintiff: Danaghers Commercial and Corporate Lawyers
Defendant: Bowen Buchbinder Vilensky

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

Agriculture & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 441
AWB Ltd v Cole (No 2) [2006] FCA 913; 233 ALR 453
City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 294 ALR 550
Landsdale Pty Ltd v Moore [2009] WASCA 176
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1

LE MIERE J: The plaintiff, TerraVision Pty Ltd (TerraVision), is a software manufacture and supply company. It supplies software systems to provide data for the location of vessels, vehicles and assets as well as other data relating to the operation of those vessels, vehicles and assets. It holds intellectual property rights including the copyright and software source code in certain software (TerraVision Software) and materials and physical items that are utilised by TerraVision Software (TerraVision Hardware).
The defendant, BlackBox Control Pty Ltd (BlackBox), is a hardware and software supply company. In supplying services to its customers it uses TerraVision software, hardware and services pursuant to a licence agreement with TerraVision made on 13 June 2006 (Licence Agreement).
The Licence Agreement provides that, subject to certain qualifications, BlackBox has the exclusive right to provide products or services that include or use TerraVision Products for vehicle and mobile asset tracking. TerraVision Products is defined to mean any one of a range of hardware or software products or services that are listed in the Price List. Clause 9.5 provides that 'BlackBox may provide tracking services that do not include TerraVision Products providing, TerraVision is paid the Price in accordance with subcl 10.4'. Clause 10 sets out obligations of BlackBox in relation to sales. The obligations include advising or notifying TerraVision of…

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: [2014] WASC 261
Decision Date: 23 JULY 2014

CaseChat Overview and Summary

Terravision Pty Ltd brought an application against Black Box Control Pty Ltd in the Supreme Court of Western Australia. The dispute involved a contractual claim for damages related to a failure to supply and install a security system. The application was made to determine whether certain questions could be tried separately under Order 32 Rule 4 of the Supreme Court Rules 1971 (WA). The central legal issue was whether the proposed separate questions were adequately formulated to ensure an efficient use of time and resources, and whether they could lead to a disposal of the proceedings.

The court considered the relevant criteria for ordering separate questions, which include ensuring the efficient use of time, minimising costs, and potentially disposing of the proceedings. The court found that the questions proposed by Terravision were not adequately formulated, as they lacked specificity and clarity. The questions did not sufficiently address the factual and legal issues that needed to be resolved. Consequently, the court was unable to determine whether the proposed separate questions would meet the criteria set out in the rules.

As a result of the court's reasoning, the application for separate questions was dismissed. The court held that the questions needed to be reformulated to adequately address the issues in dispute and to ensure an efficient trial process. The court did not make any final orders in relation to the proceedings but directed the parties to redraft their application for separate questions.

Orders