Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 309

New South Wales Supreme Court

CITATION : Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 309 HEARING DATE(S) : 06/03/03 JUDGMENT DATE : 6 March 2003

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Einstein J DECISION : Application declined.

CATCHWORDS : Practice and Procedure - Application by defendants for leave to file and read as part of their case affidavit by witness - Plaintiff's case closed and plaintiff conducting cross examination of defendants witnesses - Deliberate decision by defendants not to call witness - Alteration to evidentiary landscape - Prejudice to plaintiffs - Overriding purpose rule LEGISLATION CITED : Supreme Court Rules Ronnoc Financial Limited v Spectrum Network Systems Limited, 20 August 1997, unreported CASES CITED : Smith v New South Wales Bar Association [1992], 176 CLR 256 Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 PARTIES : Mobile Innovations Limited (Plaintiff) Vodafone Pacific Limited (Defendant) FILE NUMBER(S) : SC 50123/01 COUNSEL : Mr D J Hammerschlag SC, Mr V F Kerr Plaintiff) Mr T F Bathurst QC, Mr T D Castle (Defendants) SOLICITORS : Deacons (Plaintiff) Henry Davis York (Defendants)

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

Einstein J

Thursday 6 March 2003 ex tempore Revised 15 April 2003

50123/01 Mobile Innovations Limted v Vodafone Pacific Limited & Ors JUDGMENT

The Application 1 There is before the court an application by the defendants for leave to file and read as part of their case an affidavit by Mr John Raymond Townsend made on 5 March 2003. The application is resisted by the plaintiff. 2 The proceedings are nearing the end of the third week of the final hearing, an estimate of hearing time of approximately four weeks, having been given to the court some time ago. 3 The present position is that the plaintiff's case is closed and the plaintiff's leading counsel, Mr Hammerschlag SC, is presently cross-examining the second of the defendants' witnesses. That cross-examination is nearing completion and has extended for some time. The witness currently in the witness box is Ms Blake. The first of the defendants' witnesses, Mr Maher, has been cross-examined and re-examined. 4 The application before the court is not supported by any evidence as to the reasons why Mr Townsend's affidavit was not filed in accordance with the usual court directions, quite some time ago. The defendants' submission 5 The defendants' leading counsel, Mr Bathurst QC, has submitted that the court should accept that there are legitimate reasons why the affidavit was not filed earlier and why the defendants, as they accept, took a deliberate forensic decision not to call Mr Townsend some time ago. 6 The submission is that the defendants came to realise, by reason of the particular lines of cross-examination by Mr Hammerschlag of their first two witnesses, that it was necessary or prudent to call Mr Townsend and that this had not occurred to the defendants as necessary up to that point in time, in terms of the pleaded issues and matters being litigated. The Proceedings 7 It is necessary to review, albeit briefly, the issues of relevance. That having been said the pleadings are complex in the extreme and this is not an occasion to be anything like exhaustive in an attempt to summarise the relevant issues. 8 The proceedings concern disputes arising from the contractual and other arrangements of parties carrying on the business of providing mobile telecommunication services. 9 The principal issues concern the proper construction of a long term commercial agreement of some complexity. As often occurs in relation to such agreements, the parties who have contracted into the future using a variety of concepts, formulae and detail, later come to heated disputation about what was agreed. The construction and other issues to be treated with in the final judgment have been litigated up to this point into time and were hotly contested, no doubt by reason of the significance which findings, one way or the other, will have to the parties disparate commercial interests. The ASP Agreement 10 At the centre of the dispute being litigated stands the ASP agreement by which Vodafone engaged Mobile as its agent: · to acquire and connect new subscribers to mobile telecommunication services made available to subscribers by Vodafone on a post paid basis; · to provide management services including retention activities and handset upgrades, to new and existing subscribers. 11 This is not the occasion to treat with the very close arguments put by each party in terms of the proper construction of the ASP. Suffice it to say that the ASP is a complex contract clearly intended, on a long term basis, to regulate the business dealings between the parties, and containing a series of provisions concerning how the parties were apparently intended to go forward on a quarterly basis by consultations in terms of proposed business plans. 12 A reasonably critical question concerns whether, properly construed, the contract entitled Vodafone to set a nil target in respect of any quarter, or to decline to set at any time a target at all in respect of particular or any quarters.