New South Wales Supreme Court CITATION : Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 423 HEARING DATE(S) : 15/4/03 JUDGMENT DATE : 15 April 2003 JURISDICTION: Equity Division Commercial List JUDGMENT OF : Einstein J DECISION : Costs determined; Declarations made; Stay of money judgment ordered CATCHWORDS : Costs - Principles - Apportionment in terms of issues - Declarations - Orders - Stay of proceedings LEGISLATION CITED : Supreme Court Act 1970. Abigroup v Peninsula (No 2) [2001] NSWSC 1016 Anglo Cyprian Trade Agencies v Paphos Wine Industries, Devlin, [1951] 1 All ER 873 Australian Trade Commission v Disktravel [2000] FCA 62 Cretazzo v Lombardi (1975) 13 SASR 4 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 CASES CITED : Hughes v Western Australia Cricket Association Inc (1986) ATPR 40-748 International General Electric Co of New York Ltd v Customs and Excise Commissioners [1962] Ch 784 LMI v Baulderstone Hornibrook (No.2) [2002] NSWSC 72 Madden as Liquidator of Aquanaut Constructions Pty Ltd (in liq) [2001] NSWSC 1051 NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (No 2) [2002] FCA 967 Oshlack v Richmond River Council (1998) 193 CLR 72 Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 Waters v P C Henderson (Australia) Pty Ltd (NSWCA, 6 July 1994, unreported) PARTIES : Mobile Innovations Limited (Plaintiff) Vodafone Pacific Limited (Defendant) FILE NUMBER(S) : SC 50123/01 COUNSEL : Mr V F Kerr (Plaintiff) 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 Tuesday, 15 April 2003 ex tempore Revised 20 May 2003 50123/01 MOBILE INNOVATIONS LIMITED v VODAFONE PACIFIC LIMITED & ORS JUDGMENT The matters for determination 1 A reserved judgment was delivered on 27 March 2003 in these proceedings. 2 Leave was reserved to the parties to address further submissions on certain issues and in relation to costs. The form of final orders also required to be addressed. Mobile presses for the Court to make orders in terms of the "Minute of Orders and Judgment", a copy of which will be appended to the judgment in its revised form. 3 The parties have reached a measure of consensus in terms of a number of the orders which in the light of the reasons for judgment are appropriate to be made. Some questions separate the parties in that regard and these are addressed below. Costs 4 Detailed submissions were received from both parties in relation to costs. There was substantial agreement in terms of the appropriate principles. In that regard, but with one exception, Vodafone accepted the following statement of principle to be found in the written submissions of Mobile: · Costs are in the discretion of the Court which has full power to determine by whom and to what extent costs are to be paid: s76(1) Supreme Court Act 1970. · The powers and discretions of the Court under s76 are to be exercised in accordance with SCR 52A: SCR 52A rule 4. · If the Court makes an order as to costs, the Court shall order that costs follow the event except where it appears to the Court that some other order should be made as to the whole or any part of the costs: SCR 52A rule 11. · Thus, the starting point is that plaintiff, having been successful, is entitled to its costs. It is for the defendants to establish a basis for departing from that rule. · It is certainly the case that a successful party who has failed on certain issues may not only be deprived of their costs on those issues but may be ordered as well to pay the other party's costs of them Hughes v Western Australia Cricket Association Inc (1986) ATPR 40–748 at 48,136. · Notwithstanding that the Court has power to deprive a successful party of costs, or even order a successful party to pay costs, that is a course to be taken in unusual cases and with a degree of hesitancy. For example: (a) Cretazzo v Lombardi (1975) 13 SASR 4 at 16 (Jacobs J): "But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. ... I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues." (b) Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 (Gummow, French and Hill JJ): "The propositions enunciated in [Hughes] are subject to the further consideration that justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case: Cretazzo ... at 12. In Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201, Fisher J regarded the discretion to apportion costs as one to be exercised only in the most exceptional circumstances. Nevertheless he accepted that where a considerable part of the trial is taken up in determining issues upon which a party fails, it is a proper exercise of the discretion to reduce the costs allowed to that party." (c) Waters v PC Henderson (Aust) Pty Ltd (unreported, CA(NSW), Kirby, Mahoney and Priestley JJA, 40678/91, 6 July 1994) (per Mahoney JA): "Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those in which it failed." (d) NRMA Ltd & Ors v Morgan & Ors (No 3) [1999] NSWSC 768 (Giles J): "Principles according to which some other order may be made are fairly well established. If a party fails on some issues, the circumstances may make it reasonable that he be deprived of the costs of those issues, or even be ordered to pay the other party's costs of those issues. For this purpose, issues may be issues in a pleading sense of bases of claim, or may be disputed questions of fact or law. But it must be remembered that parties should not be dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case, and unless a particular issue or group of issues is clearly dominant or separable from the balance of the proceedings it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between the issues on which he was successful and those on which he failed. It is sufficient to refer to Cretazzo v Lombardi (1975) 13 SASR 4 at 12; Hughes v Western Australian Cricket Association (1986) ATPR 40-748 at 48,136; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2; and Waters v P C Henderson (Australia) Pty Ltd (NSWCA, 6 July 1994, unreported). (e) Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282 (Hely J): "The courts have cautioned against too ready a resort to apportionment according to issue based outcomes. See, eg, Australian Trade Commission v Disktravel [2000] FCA 62. Justice may not be served if the parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Cretazzo v Lombardi (1975) 13 SASR 4 at 16". · A recent application of the principle was by Barrett J in LMI v Baulderstone (No.2) [2002] NSWSC 72. In that case two plainly discrete claims were made by the plaintiff – a minor claim upon which the plaintiff was successful and the dominant claim upon which the defendant succeeded. His Honour considered the claims "were so separate and disassociated (although involving common witnesses) that I think they should be treated, for costs purposes, as if they had been the subject of separate trials". · Where the principle is applied it is generally not appropriate to order that costs be paid in respect of particular issues because "that would create a degree of artificiality, and would impose an extraordinarily difficult task upon any registrar faced with the need to tax costs, in default of agreement": Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (No 2) [2002] FCA 967 (Weinberg J). · Rather it is generally appropriate simply to apportion costs [SCR 52A rule 6(2)(a)] on the basis of "impression and evaluation: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272; LMI at paragraph 36. Mathematical precision is not required and the court will not attempt to be too technical or exacting in seeking to allocate costs: Dodds Family Investments at 272; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 (Giles J) at paragraph 25; Madden as Liquidator of Aquanaut Constructions Pty Ltd (in liq) [2001] NSWSC 1051 (Hamilton J) at paragraph 3; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22. Relevant factors include the relative time devoted to evidence and submissions on the competing issues: Hughes at 48-136; Waters at 5; Fexuto at 22-25; NRMA at paragraphs 31-47 and the relative success of the party in terms of its original claim: Abigroup v Peninsula (No 2) [2001] NSWSC 1016 (13 November 2001) at paragraphs 36-40; LMI at paragraphs 41-47. 5 The proposition with which Vodafone took exception was that the principle was properly expressed in the sentence "Notwithstanding that the Court has power to deprive a successful party of costs, or even order a successful party to pay costs, that is a course to be taken in unusual cases and with a degree of hesitancy." Vodafone here submitted that caution needs to be exercised in a 'multiple issues' case such as the present in terms of awarding the successful party all of its costs, where it has failed on a number of discrete issues less an injustice be perpetrated against the unsuccessful party. [(cf. Fexuto v Bosnjak Holdings (No 3) (1998) 30 ACSR 20 per Young J)]. 6 In addition to the above authorities it seems to me that reference should be made to Oshlack v Richmond River Council (1998) 193 CLR 72. In that case McHugh J, with whose reasons for judgment Brennan CJ was in general agreement, after dealing with the statutory jurisdiction conferring on the Court a broad discretion to award costs, said at pp 96 -98: "The discretion must be exercised judicially Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation. In this manner, the law has gradually developed principles to guide the proper exercise of the discretion and, in some cases, to highlight extraneous consideration which, if taken into account, will cause the exercise of the discretion to miscarry. Consistent with the aim of justice the law could not have developed otherwise...by far the most important factor which Courts has viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs. As Develin J said in Smeaton Hanscomb v Sassoon when setting aside an arbitrator's costs award: "The arbitrator is not directing his mind to one of the most, if not the most, important of the elements which ought to affect his discretion, namely the result of the case. Prima facie, a successful party is entitled to his costs. To deprive him of his costs or to require him to pay a part of the costs of the other side is an exceptional nature." The combined force of the sentiments recognised above by Mason CJ regarding the need for consistency in order to avoid injustice, and by Devlin J, regarding the most significant factor affecting the costs discretion, provides the juris prudential basis for the important principle commonly referred to as the 'usual order as to costs'. The Usual Order as to Costs The expression the 'usual order as to costs' embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought or defended by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. As a matter of policy, one beneficiary by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased and often necessary burden on the scarce resources of the publicly funded system of justice. The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo Cyprian Trade Agencies v Paphos Wine Industries , Devlin J formulated the relevant principle as follows: "No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct." 'Misconduct' in this context means misconduct relating to the litigation or the circumstances leading up to the litigation. Thus the Court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purposes of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute. Apart from anomalous examples in the Equity Jurisdiction, there are few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct. The Court may award costs in favour of a defendant where the plaintiff has obtained only nominal damages. However this practice can be justified on the basis that, in reality, the successful party lost the litigation and the unsuccessful party won. For present purposes it is not necessary to list any further exceptions to the principle of the usual order as to costs." 7 Ultimately, the matter is one for the Court's discretion to ensure that the power given in s76 and Part 52A r11 is exercised justly. 8 Vodafone in this regard has submitted as follows: · Vodafone accepts that Mobile had substantial success in relation to the principal question agitated at the trial of good faith and the setting of 'nil targets'. In relation to the specific claims, Vodafone agrees that Mobile had substantial success in relation to: claim 1 (ACM Agreement); claim 4 (June 2001 quarter) claim 5 (September 2001 quarter) claims 6,7 (December 2001 and subsequent quarters); claim 9 (Direct marketing); claim 11 (Website agreement). · However, Vodafone was successful in relation to the following claims: claim 3 (MC9 agreement); claim 8 (Retention funding) - abandoned by the plaintiff in final submissions; claim 10 (Repudiation); claims for redundancies and in respect of the Innovations marketing agreement. Claim 2 (v.mobile) involved a substantial part of the claim in monetary terms being abandoned by Mobile during the hearing, and concessions made by Vodafone in closing address as to the balance of the claim. · In exercising its discretion to award costs, Vodafone draws specific attention to the costs incurred by it in relation to claim 10 and the costs of Ernst & Young in meeting the reports served by Mobile in relation to damages claimed for repudiation. In addition, Vodafone's solicitors spent considerable time in assisting Ernst & Young in relation to that work. Mobile eschewed any claim for damages for repudiation at the hearing, and did not tender the reports of Mr Gower in which such damages were claimed. Accordingly, expenditure on the work performed by Ernst & Young in relation to claim 10 was wholly wasted. · In these circumstances, Vodafone submits that, if the Court is minded to approach the matter on a global basis, the Court ought make an order that Vodafone pay only 70% of Mobile's costs. Alternatively, Vodafone seeks an order that it be liable for Mobile's costs only in respect of the claims in which Mobile was successful and that Mobile pay Vodafone's costs (including the Ernst & Young costs) for the claims in which Vodafone was successful. 9 I have reached the clear conclusion that the proper exercise of the Court's discretion is to order that Vodafone pay 95 per cent of Mobile's costs of the proceedings. In this regard the submissions of Mobile are generally adopted in the reasons which follow. 10 As has already been seen, at trial the parties adopted, as a convenient management approach, a subdivision of the proceedings into eleven "Claims", some of which overlapped and some of which stood independently of the others. The factual matrix was, however, common to all either by way of adjectival background or by reference to contemporaneous and relevant events. The factual matrix concerned the construction of interrelated and overlapping provisions of complex contractual documents. 11 In the result, the plaintiff was substantively successful in eight of the Claims: (a) Claim 1 (ACM agreement) (b) Claim 2 (V Mobile) (c) Claim 4 (June 2001 quarter) (d) Claim 5 (September 2001 quarter) (e) Claim 6 (December 2001 quarter) (f) Claim 7 (Subsequent quarters) (g) Claim 9 (Direct marketing) (h) Claim 11 (Website agreement). 12 In particular, it established: (a) the construction of the ASP agreement for which it contended in relation to whether Vodafone could set a nil target or refuse to set a target; (b) the existence and breach of implied terms of "good faith" and "cooperation"; (c) an entitlement to damages of approximately $14.5 million; (d) a breach by Vodafone of the plaintiff's rights of exclusivity in direct marketing. 13 Conversely the defendants succeeded outright in only one claim (Claim 3 – the MC9 claim). 14 Of the remaining two claims, the plaintiff, although not obtaining the relief originally sought, did establish matters under these heads relevant to other matters litigated: (a) Claim 8 (Retention funding): while the plaintiff abandoned the claim that an oral agreement had been reached, it did establish that Vodafone would have continued to provide retention funding if it had not set the nil targets – a matter which sounded in nominal damages (Judgment paragraph 857); (b) Claim 10 (Repudiation): while the plaintiff was not entitled to the form of declaration originally sought, it did establish that much of the conduct of which it had complained was repudiatory in nature (Judgment paragraph 883). 15 On any view, the plaintiff has been substantively successful. I have given close consideration to the clear possibility that the appropriate exercise of the Court's discretion should be in terms of an application of the usual rule that costs follow the event, by which the plaintiff would have the whole of its costs of the proceedings. The issues on which Vodafone succeeded were not so clearly dominant nor so clearly separate from the balance of the closely interwoven issues litigated at large, it may be thought, as to warrant a departure from the usual rule. Ultimately, however, it does seem to me that only a minor departure from the usual rule is justified so that the defendants are to pay 95 per cent of the plaintiff's costs of the proceedings. Declarations 16 Mobile seeks the four declarations set out in the Minute of Order. Declarations 1 and 2 17 No issue is taken as to the propriety of the making of declarations 1 and 2. Declaration 3 18 In my view it is appropriate that a declaration in the form of declaration 3 be made. The declaration squarely records an express holding to this effect [cf paragraphs 619, 641]. The agreement remains extant and on foot and it seems to me that there is utility in the making of declaration 3 in ensuring the regulation of the dealings between the parties in the future. Declarations 4 and 5 19 The parties are of course bound by a res judicata discernible from the reasons for judgment: cf International General Electric Co of New York Ltd v Customs and Excise Commissioners [1962] Ch 784 at 789 and Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, Butterworths, 3rd Edn, 1996 at [159]. 20 The difficulty with the proposed form of declarations 4 and 5 is exposed in the reasons for judgment. As the judgment makes plain the real issue concerns the content of an implied term requiring Vodafone to act in good faith and reasonably in exercising its powers under the ASP. The judgment makes explicit, for example, that in certain respects there are limits to the extent to which the good faith or reasonableness implied terms constrained Vodafone from acting in a particular way [cf paragraphs 689, 691]. 21 In the circumstances where the extent to which the implied terms requiring Vodafone to act in good faith and reasonably have been tested against particular facts, matters and circumstances, and in that regard are dealt with in the reasons for judgment, there can be no doubt but that the parties are bound by a res judicata. Further those obligations will be breached if Vodafone's discretion to determine the target is exercised arbitrarily or capriciously [cf paragraph 692]; and [see paragraph 678 referable to the implied duty to co-operate]. 22 Notwithstanding these findings it does not seem to me that there is utility in the Court, in the particular facts matters and circumstances here litigated, making declarations in terms of declarations 4 and 5. As Vodafone has rightly submitted, the content of any good faith or reasonableness obligation depends upon factual circumstances. In respect of Vodafone's past conduct, these obligations were carefully addressed in the reasons for judgment with sufficient precision, as it seems to me, to ensure that the parties are bound by a res judicata. 23 As will appear from the reasons below, further declarations are appropriate to here be made. I will return to that matter. Damages 24 The calculation of the damages put forward by Mobile is accepted by Vodafone subject to two qualifications. These concern claims 5 and 8. Claim 5 - the September 2001 quarter [judgment paragraphs 845-853] 25 Mobile has calculated the damages for this quarter on the basis of 9,000 connections less 1,509 connections actually achieved. Vodafone does not dispute the mathematics of the calculation advanced by Mobile. 26 To the extent that the Court has invited further submissions about the question of damages for this quarter, Vodafone repeats its submissions put both orally and in writing, that Mobile has failed to sustain any basis for claiming damages against it, whether in respect of the 9,000 target or otherwise for the September 2001 quarter. 27 To my mind the submissions of Mobile in this regard are of substance and they are adopted in what follows. 28 The Court's finding (paragraph 850) is that "Vodafone's refusal to accept that the dispute resolution process had been enlivened, and to participate in that proceeding, constituted a breach of the ASP". 29 Determining what follows from that breach (paragraph 853) involves the same exercise as that upon which the Court embarked in respect of the nil target quarters: · the breach constituted the loss of an opportunity of value to Mobile, namely to engage in the dispute resolution process (paragraph 759); · the damages exercise then involves an ascertainment of quantum by reference to the possibilities (paragraph 762); · the approach likely to have been taken by Vodafone (paragraph 770) is that set out in paragraph 768 – the consequence of which for the quarters from December 2001 to March 2003 would have resulted in a 12,000 connection target; · that figure is required to be discounted for vicissitudes and contingencies reflecting the possibility the target would not have been achieved (paragraph 792). 30 In respect of the September 2001 quarter, that approach is qualified by the facts that: · a 9,000 target had been notified by Vodafone and adopted by Mobile as the basis for draft CTA worksheets; · the draft CTA worksheets included Vodafone Direct and affinity programs as elements, which elements Vodafone had not satisfied by mid August; · although Mobile commenced seeking connections during the quarter, it ceased to do so, with Vodafone's acquiescence, in mid August 2001, following the nil target determination for the December quarter (paragraphs 561-2). 31 In those circumstances whilst, prima facie, 12,000 is appropriate, the Court is not in error, as it seems to me, in taking 9,000 connections, less the 1,509 actually connected as the basis for calculating damages. A 9,000 figure more than takes into account the 10% contingency rate as adopted for subsequent quarters. The figure in the draft orders includes such a discount in favour of the defendants. In short, even though taking the figure of 9,000 would more than compensate for the 10% vicissitudes, the figure in the orders takes the 9,000 figure and further discounts it by yet another 10%. Claim 8 [Judgment paragraphs 854 - 857] 32 Mobile seeks nominal damages of $100. 33 Vodafone submits that this claim should be disallowed and puts the following submissions in this regard: · Mobile expressly abandoned the claim which it had pleaded in relation to the alleged retention funding agreement [paragraph 854]. It has neither pleaded nor particularised a breach of any other obligation so as to support an award of damages of any type in relation to retention funding matters. In these circumstances extremely limited oral submissions were advanced in relation to claim 8 by Mobile [transcript 1263/39-42; 1274/30-1275/51] and by Vodafone [transcript 1295/56-1296/30], although Vodafone had prepared detailed written submissions about this matter prior to Mobile abandoning this part of its claim. · Vodafone submits that the statement in paragraph 857 of the judgment that "the claim to any more than nominal damages on this head fails" does not connote an entitlement to nominal damages, but merely a limit on what damages could be potentially be available in respect of retention funding matters if there had been some obligation pleaded, particularised and proved by way of evidence in the proceedings. 34 I accept as of substance the submissions of Mobile in this regard. The judgment makes clear that the basis for 'nominal damages' under this head is not as a separate cause of action but rather as a separate head of damage for the nil target breaches (Claims 6 and 7). The damages calculated for those claims do not include the loss of benefit of retention funding. 35 Understood in this way the submission of Vodafone misconstrues the basis for the nominal damages sum. Mobile is entitled to an order reflecting nominal damages in the claimed sum of $100 - as a separate head of damage falling under claims 6 and 7. The schedule to the short minutes is to be re-engrossed to replace the figure of $100 by nil and an amount of $100 is to be included in claims 6 and 7 which should read: 6 and 7, Retention Damages, $100. The Direct Marketing Dispute - Claim 9 - Injunctions [Judgment paragraphs 862-880] 36 Here again for the purposes of the relief, Vodafone repeats its oral and written submissions that no basis has been established for the Court to grant any injunction in respect of the matters alleged in claim 9. 37 If the Court determines to grant injunctive relief, Vodafone has advanced two objections to the forms of order: "First, the proposed orders refer to " such subscribers ". The only subscribers to which the ASP Agreement relates are " post paid " subscribers: see definition of "New Subscribers" in clause 1.1. Thus, in each of the orders the word " such " ought be replaced by " post paid ". Secondly, the words " and thereafter managing " appearing in each of the proposed orders should be deleted as superfluous." 38 Mobile contends that: · the words "such subscribers" merely emphasise that the prohibition on managing applies to those very same subscribers in respect of whom the prohibition on acquiring applies. It is not, on a proper reading, intended to identify the types of subscribers capable of being acquired (or managed) under the ASP Agreement; · the words "and thereafter managing" serve to emphasise that the prohibition extends both to acquisition and management (see the definition of "Service Provider" at Judgment paragraph 863). While the plaintiff accepts that the defendants cannot manage customers not acquired, the words are not confusing and ought to remain. 39 In my view the grant of injunctive relief is clearly appropriate. 40 It seems to me that the word "such" may cause some ambiguity and that the appropriate declarations should be in terms of the proposed declarations 6 and 7 but simply omitting in each case the word "such" on the second line. Likewise the words "and thereafter managing" should be omitted as superfluous. 41 During submissions before the Court the plaintiff accepted the propriety of the inclusion of the words "post paid" in each of orders 6 and 7 after the word "acquiring" and the re-engrossed form of short minutes of order will require to make that plain. Additional declarations 42 It seems to me appropriate in the circumstances for certain declarations to be made in terms of the construction findings which underpin the direct marketing dispute. Clearly enough each of the following proposed additional declarations which in my view ought be made is underpinned by the findings in the judgment: · Declare that upon the proper construction of the ASP Agreement, the word "solely" in the definition of 'Mobile Direct Marketing Operation', qualifies the words "acquisition of subscribers" namely by "remote selling", being an acquisition technique relying "solely" on responses to advertisements effected by means of orders received centrally by telephone, fax, email or the Internet in response to advertisements placed in the press, magazines or catalogues or direct mail [paragraph 865]; · Declare that on its proper construction the ASP Agreement: (a) prevents Vodafone itself from appointing or dealing, directly or indirectly, with a Service Provider which conducts a Mobile Direct Marketing Operation in competition with Mobile. [Judgment paragraph 871]; (b) obliges Vodafone to procure that no Group Member appoints or deals, directly or indirectly, with a Service Provider which conducts a Mobile Direct Marketing Operation in competition with Mobile [Judgment paragraph 872]; ( c) precludes Vodafone when acting partly through or in conjunction with its agents, from conducting a Mobile Direct Marketing Operation in competition with Mobile; [Judgment paragraph 876]; (d) does not preclude Vodafone when only acting itself from conducting a Mobile Direct Marketing Operation in competition with Mobile [Judgment paragraph 876]. Application for a stay of orders 43 Vodafone seeks a stay of the money judgment save for so much of that judgment as is reflective of the award in terms of the V Mobile dispute, and seeks that stay for the purpose of an appeal. 44 As a matter of general course such a stay will be granted for a very short period, usually 28 days, to permit the putative appellant to proceed by filing a Notice of Appeal and by moving before the Court of Appeal for a continuance of the stay. Indeed the successful party at first instance may also seek before the Court of Appeal for such regime pending the final determination of the appeal as may be seen as appropriate. To my mind this by and large in many situations accommodates the respective rights of the parties and permits the Court of Appeal to deal with such questions or to remit to the Court at first instance matters which may be regarded as appropriate for determination by it, albeit pending final determination of the Appeal. 45 Naturally the trial judge may, as the price of granting a stay, impose such conditions as in any particular case may be appropriate. 46 Mobile opposes the grant of such stay. 47 Mobile has submitted that if such a stay is to be granted it should be only upon the basis that the defendants give an undertaking to the Court that for the duration of any stay the defendants will continue to make such payments as fall due for payment during that period under and in terms of the ASP agreement. In my view that should not be a condition of the grant of a stay. 48 The stay is only to operate for 28 days. I am quite clear that it is appropriate to stay the money judgment for a period of 28 days. 49 No suggestion was put from the Bar table by Vodafone that there should be any particular orders inhibiting the taking into effect of the declarations which are of course declaratory. 50 No submission was made to the effect that there should be any stay of the injunctions in respect of which there will be no special orders made. 51 It follows then that the way forward is for the plaintiff to bring forward a re-engrossed form of the minute of orders and judgment. I certify that paragraphs 1 - 51 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on Tuesday 15 April 2003 and revised on 20 May 2003 ___________________ Susan Piggott Associate 20 May 2003 Last Modified: 05/30/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.