Overlook v Foxtel [2001] NSWSC 682

New South Wales Supreme Court

CITATION : Overlook v Foxtel [2001] NSWSC 682 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50165/99 HEARING DATE(S) : 27.7.01, 3.8.01 JUDGMENT DATE : 10 August 2001

PARTIES : Overlook Management BV v Foxtel Management Pty Ltd JUDGMENT OF : Hunter J

Plaintiff: S Stanton / S A Kroon (Solicitor) COUNSEL : Defendant: A Leopold Commonwealth Attorney General: S Lloyd SOLICITORS : Plaintiff: Aitken McLachlan & Thorpe Defendant: Allens Arthur Robinson CATCHWORDS : Practice and Procedure - special federal matter - whether proceedings be transferred to Federal Court - whether special reasons for matter to be determined by this Court - proceedings fixed for early hearing - notice to Commonwealth and State Attorneys-General - neither participating in hearing - application for leave to take evidence by audio-visual link. DECISION : Order that 1. the proceedings be determined by this Court 2. in terms of the application to take evidence by audio visual link

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST HUNTER J 10 AUGUST 2001

50165 /99 OVERLOOK MANAGEMENT BV -V- FOXTEL MANAGEMENT PTY LTD REASONS FOR JUDGMENT

1 These proceedings raise an issue in the nature of a "special federal matter" within the meaning of s 3(1) Jurisdiction of Courts (Cross- Vesting) Act 1987 (Cth) (the Act) and as such "is a matter for determination in a proceeding that is pending in the Supreme Court" within the meaning of s 6(1) Jurisdiction of Courts (Cross-Vesting ) Act 1987 (the State Act). 2 The nature of the issue constituting a special federal matter arises out of pars 26 and 28 of the defence to the further amended summons which raise an alternative defence that certain provisions of the subject contract, upon which the plaintiff proceeds, contravene the resale price maintenance provisions of the Trade Practices Act 1974 (Cth), the determination of which falls under Pt IV of that Act. Accordingly notice must be given to the Commonwealth and State Attorneys-General under s 6(4) of the State Act. That notice has been given in these proceedings pursuant to which counsel for the Commonwealth appeared and has informed the Court that the Commonwealth does not propose to take any part in the hearing of the s 6(3) matter. 3 Under s 6 (6) of the State Act the Court is obliged to "have regard to the general rule that special federal matters should be heard by the Federal Court". 4 The question remains whether an order could be made pursuant to s 6(3) of the State Act which is in the following terms: "6(3) The Supreme Court may order that the proceedings be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties." 5 Both parties submit that special reasons exist for the exercise of the discretion under s 6 (3) of the State Act. 6 I think in the circumstances of this case that special reasons do exist, other than reasons relevant to the convenience of the parties, for making an order that the proceedings be determined by this Court. While recognising that the lateness of the raising of this question is not relevant to the exercise of discretion, consideration of this issue comes at a time when the proceedings are fixed for hearing on 17 September 2001 and at a time when the matter is ready for hearing which is estimated to occupy two weeks of the Court's time. Moreover, the special federal matter is one of several principal issues in the proceedings, the remainder of which are matters involving the exercise of state jurisdiction. 7 It is apparent from the affidavit of Jacqueline Ann Downes sworn 26 July 2001 that preparation is underway for the adducing of evidence by audio visual link with witnesses resident in London and Hong Kong. I think the matters referred to in the preceding paragraph and the disruption to the Commercial List by a late vacating of the date fixed for hearing of this matter, which is ready to proceed, amount to special reasons why these proceedings should not be transferred to the Federal Court. 8 The defendant's application to receive evidence by audio visual link is consented to by the plaintiff and is supported by the affidavit of Ms Downes earlier referred to. 9 Accordingly I make orders in terms of the defendant's application dated 27 July 2001 and invite the parties to bring in short minutes of order in accordance with these reasons.