Case: Amalgamated Mining Services Pty Ltd v Warman International Ltd (1988) 19 FCR 324
Outcome: referred to
As foreshadowed, TV Plus has to date withheld from joinder of JRTS , yet TV Plus seeks to obtain from UBI a not insignificant extent of security for costs, being interlocutory relief which at least seems to me to be inappropriate to award, at least at the present time and until such circumstances can be addressed in an appropriately established context. JRTS has made known to TV Plus explicitly for some time its stance as to cessation of any contractual entitlement of TV Plus to broadcast in Australia television signals sourced from JRTS . It would be seemingly inappropriate to the exercise of the Court's discretion in its favour in the somewhat unique context presently prevailing, if not also inequitable, on the present state of the evidence, for TV Plus to gain the benefit of security for its costs provided by its Australian competitor UBI , in circumstances where it has withheld, at least for the time being, from joining to the proceedings the very entity from whom it claims controversially to derive its source of broadcasting entitlement or authority. In that regard, the present state of the evidence is that JRTS has maintained the position (and has done so in the context of its comprehensive affidavit material) of denial of any present entitlement, contractual or otherwise, of TV Plus to broadcast the television signals of JRTS in Australia, and for TV Plus to seek to do so to the competitive detriment of UBI as JRTS's asserted exclusive appointee in Australia. The commercial reality of the stance adopted by TV Plus may be described as being at least equally aggressive to that of UBI : Amalgamated Mining Services Pty Ltd v Warman International Ltd (1988) 19 FCR 324. 65 Assuming that an early final hearing is reasonably achievable, the making of final procedural orders should obviously be addressed by the parties and the precise formulation of those orders should be resolved as early as feasible. Of course the presently prevailing circumstances may change in the context of further steps that may be taken by any of the parties in order to resolve this complex as well as volatile dispute, being steps which may conceivably justify a re-opening of interlocutory issues. For the time being however, the status quo is that TV Plus is continuing controversially to utilise the television signals of JRTS in circumstances where UBI alone, and hence to the exclusion of TV Plus , is said by JRTS to be authorised. In the meantime in the context of the presently somewhat deficiently structured proceedings not yet fully and formally pleaded, and from which there has been thus far absent the critical off-shore source (ie JRTS ) of the subject television signals, I am of the view that I should defer the consideration of the grant of any interlocutory relief at least until there has been further clarification of the critical issues inherent to the dispute, including issues as to joinder of all necessary parties. 66 I direct that UBI provide to the Court draft orders to give effect to these reasons within three clear hearing days. I further direct that TV Plus respond with any changes required within a further two clear hearing days. The proceedings should then be listed for mention, hopefully with a view to fixing the date for a final expedited hearing to take place, and as early as possible having regard to all the circumstances for the time being prevailing, and in any event in order to resolve any remaining disputes in relation to the context of interim orders required to be put in place. An indication should be provided as to the nature and scope of what evidence (if any) remains to be adduced by each party, and of any additional issues of law still intended to be pursued. The costs of the present interlocutory proceedings would normally be ordered in terms merely as to costs of the proceedings generally, but I will entertain nevertheless any contrary submissions from either party so long as the same are furnished in writing within the next seven days. Of course there must be liberty to either side of the record to apply on seven days' notice to the other, that time taking into account the overseas elements of the proceedings. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 16 February 2007 Counsel for the Applicant: Mr R K Weaver Solicitor for the Applicant: Watson Mangioni Lawyers Counsel for the Respondent: Mr M Holmes QC and Mr S Ricketson Solicitor for the Respondent: Middletons Lawyers Date of Hearing: 15 and 21 December 2006 Date of Judgment: 16 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/142.html