Plaintiff v Defendant

2 Before the investment by Tardis, and on 16 December 2016, Ocean 3D entered into a distribution agreement with SK Films Inc, a company incorporated in Canada ('SK Films') to distribute the Film worldwide ('Distribution Agreement').

3 On 7 January 2019 Ocean 3D gave SK Films notice of termination of the Distribution Agreement. On 7 February 2019 SK Films commenced proceeding 2019/42077 in the Supreme Court of New South Wales against Ocean 3D ('the NSW Proceeding').

4 On 20 August 2019 Ocean 3D entered into a creditors voluntary liquidation.

5 On 21 August 2019 Tardis exercised its right to terminate the Tardis Agreement, a right said to arise in favour of Tardis upon Ocean 3D being placed into liquidation.

6 On 10 December 2019 leave was given in the NSW Proceeding for SK Films to join Tardis, Mr Gross (the sole director and shareholder of Ocean 3D) and Asia Film Investment Group Ltd ('Asia Film') as defendants to the NSW Proceeding.

7 On 14 January 2020 Tardis commenced this proceeding ('the Victorian Proceeding') against the liquidator of Ocean 3D, Clifford John Sanderson ('the Liquidator').

8 On 16 April 2020 orders were made in the Victorian Proceeding, giving Tardis leave to join Ocean 3D as a defendant to the Victorian Proceeding and for the proceeding against the Liquidator to be discontinued.

9 By summons filed on 2 June 2020, amended 19 June 2020 ('Summons') SK Films, a non-party to the Victorian Proceeding, and the plaintiff in the NSW Proceeding applied for orders that:

(a) the Victorian Proceeding be transferred to the Supreme Court of New South Wales pursuant to s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic) ('the Act');

(b) the Victorian Proceeding be immediately stayed until further order;

(c) in the alternative, SK Films be joined as a party to the Victorian Proceeding; and

(d) the plaintiff in the Victorian Proceeding, Tardis, pay the costs of the application.

(a) the first affidavit of Gary Rogers dated 1 June 2020 ('First Rogers Affidavit');

(b) the second affidavit Gary Rogers dated 19 June 2020 ('Second Rogers Affidavit'); and

(c) the third affidavit of Gary Rogers dated 1 July 2020 ('Third Rogers Affidavit**'**).

11 In opposition to the application, Tardis relies on the affidavit of Alex Martin dated 24 June 2020 ('Martin Affidavit**'**).

12 In accordance with earlier directions, both parties to the application filed written submissions.

13 By its amended statement of claim filed 29 April 2020 ('ASOC') Tardis alleges that the Tardis Agreement stipulated that upon the liquidation of Ocean 3D, the entire rights of Ocean 3D in the 'Film Assets' were automatically assigned to Tardis. It is alleged that on 20 August 2019, Ocean 3D went into liquidation and that on 21 August 2019, Tardis exercised its right to terminate the Tardis Agreement, resulting in all rights to the Film Assets being automatically assigned to Tardis.

14 The relief claimed by Tardis against Ocean 3D in the Victorian Proceeding is:

A declaration that all intellectual property rights (including present and future copyright) in the Film are its lawful and exclusive property.

15 In support of its asserted entitlement to the intellectual property rights claimed, Tardis pleads and relies upon three separate agreements. The first, the Tardis Agreement. The second, a 23 August 2017 deed of assignment and release between Ocean 3D, DFRA Pty Ltd ('DFRA**') and Achtel Pty Ltd ('Achtel') (ASOC [15]-[18]) ('Achtel Assignment'**). The third, a 1 October 2017 deed of assignment between Tardis, DFRA and Mojo Media Solutions Pty Ltd ('Mojo') (ASOC [23]-[26]) ('Mojo Assignment').

16 The ASOC pleads the 16 December 2016 Distribution Agreement (ASOC [14]). The pleading refers to the NSW Proceedings (ASOC [28]) and to orders made by consent as between Ocean 3D and SK Films in those proceedings on 10 February 2019 that:

Until further order of the Court and on a without prejudice basis, each party will have the rights defined in the Distribution Agreement in the Film in 'The Territory' but excluding China (ASOC [29]).

17 The ASOC refers to email communications on 17 September 2019 by which it is alleged SK Films informed IMAX that SK Films continues to have a Distribution Agreement in place with Ocean 3D despite Ocean 3D being in liquidation (ASOC [35]-[36]). The pleading recites part of the Liquidator's second report dated 19 November 2019 in which the Liquidator reported that SK Films claimed to have the sole distribution rights for the Film (ASOC [42.1]-[42.3]). It pleads extracts from correspondence sent by the solicitors for Tardis to the solicitors for the Liquidator on 11 December 2019 described as putting the Liquidator 'on notice as to a potential proceeding for breach of copyright' (ASOC [44]). That letter includes the following, as pleaded:

45.2 The Liquidator, on behalf of Ocean 3D, and other parties have no entitlement to licence, use or deal with Tardis' rights and property in the Film;

...

45.5 IMAX Kuwait has been screening the Film in breach of Tardis' ownership of the rights and property in the Film;

45.6 Tardis is in the process of negotiating a licensing agreement in relation to its rights and property in the Film with a third party in the United States ('USA deal');

45.7 The USA deal will be jeopardised if SK Films or any other party claims ownership of the rights and property in the Film (as will any licensing fees generated by the screening of the Film at IMAX Kuwait).

1. The Liquidator has failed to communicate to creditors, including SK Films, that Ocean 3D does not have any rights or property in the Film. Instead ... it has been conveyed to SK Films and to other parties that SK Films has sole distribution rights in the Film ...

1. IMAX Melbourne, IMAX Denver, IMAX Kuwait and Omaha Zoo have been screening the Film at regular intervals and IMAX California and IMAX Tennessee plan to begin showing the Film in February 2019 in breach of Tardis' ownership of the rights and property in the Film.

19 On 6 March 2020 the Liquidator, at that time the sole defendant to the Victorian Proceeding, applied by summons for a stay of the Victorian Proceeding until after the hearing and determination of the NSW Proceeding. That application, originally returnable on 25 March 2020, was adjourned to 16 April 2020 due the impact of the COVID-19 pandemic. It was not heard or determined by the Court on 16 April 2020, because on that day, by agreement with Tardis, the Liquidator ceased to be a party. The Liquidator was replaced as the defendant to the Victorian Proceeding by Ocean 3D.

20 Ocean 3D has not filed an appearance and does not intend to contest the Victorian Proceeding. So much has been confirmed by the solicitors for the company's Liquidator.

21 On 2 June 2020 SK Films issued its cross-vesting summons. On 18 June 2020, Tardis sent a draft summons to the Court seeking leave to bring an application for summary judgment ('Draft Summary Judgment Application**'**). If the Victorian Proceeding is not cross-vested and if SK Films is not added as a party, it can be expected that the Victorian Proceeding will either be determined on a summary judgment application or as an undefended proceeding.

22 In oral argument, Mr Andreou, who appeared on behalf of Tardis, submitted that the declaration sought in the Victorian Proceeding was not a declaration to the world at large and would only impact the rights of the parties to the Victorian Proceeding. He submitted that the Victorian Proceeding did not purport to affect persons who were not party to it and in particular, did not purport to affect the rights of SK Films. I do not agree, and I do not accept that submission.

23 It is clear from the express reference in the ASOC to the Distribution Agreement and to the matters pleaded as set out at paragraphs 17 and 18 above, that the material facts to be relied upon by Tardis, include the fact of the Distribution Agreement and the activities being undertaken pursuant to it by SK Films, specifically, the showing of the Film at various IMAX venues identified in the pleading. If these matters do not comprise part of the material facts relied upon by Tardis in support of the relief claimed, they should not form part of the pleading.

24 What is meant by the expression 'all intellectual property rights', the language of the declaration sought in the prayer for relief, is by no means clear. The declaration sought goes on to refer to all such rights in the Film being the 'lawful and exclusive property' of Tardis.

25 In its submissions SK Films relies on s 196(4) of the Copyright Act 1968 (Cth) ('Copyright Act'), 'A licence granted in respect of a copyright by the owner of the copyright binds every successor in title to the interest in the copyright of the grantor of the licence to the same extent as the licence was binding on the grantor,' to say that Tardis as the purported new owner of the Film, takes the right to the Film subject to SK Films' exclusive licence.

26 Whether or not SK Films retains its exclusive theatrical rights to distribute the Film is a matter that SK Films says is a fundamental issue to be resolved in circumstances where Tardis seeks a declaration to the effect that SK Films has no rights. SK Films submits that if Tardis obtains the declaration sought in the Victorian Proceedings then, on its view of the world, SK Films would have no rights in relation to the Film.

27 If a declaration in the terms sought by Tardis were to be made, it is difficult to see how, on a plain reading, the finding of such exclusive property rights in the Film in favour of Tardis could leave intact or have no impact upon the asserted rights of SK Films pursuant to the Distribution Agreement.

28 In the NSW Proceeding SK Films alleges that, so far as is material, it was granted the exclusive theatrical rights to distribute the Film by Ocean 3D, by the Distribution Agreement.

29 SK Films alleges that the purported termination of the Distribution Agreement by Ocean 3D in January 2019 was not effective, and as such it retains the rights to distribute the Film. SK Films also alleges that in breach of the Distribution Agreement, Ocean 3D, entered into a separate agreement with Asia Film for the distribution of the Film in China.

30 By its amended pleading dated 30 January 2020 SK Films alleges that it was an express term of the Distribution Agreement that any assignment by Ocean 3D of its rights, duties and obligations in the Distribution Agreement shall be subject to the Rights as defined in the Distribution Agreement. Various breaches of the Distribution Agreement are alleged by Ocean 3D.

31 In the prayer for relief, SK Films seeks, amongst other things:

(a) a declaration that SK Films has an irrevocable Right as defined in the Distribution Agreement throughout the world for the term of the Distribution Agreement;

(b) a declaration that SK Films is the exclusive licensee of the copyright throughout the world in the Film, being the right to cause the Film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public, excepting in digital video full dome theatres and on 4D screens; and

(c) a declaration that the assignment of rights in the Film by Ocean 3D to Tardis under or pursuant to the Tardis Agreement is subject to the Rights (as defined in the Distribution Agreement) including the exclusive licence granted to SK Films of the right to cause the Film to be shown in public.

32 Tardis appeared at procedural hearings in the NSW Proceeding on 4 February 2020 and again on 27 March 2020. On 27 March 2020 the Court ordered Tardis to put on its defence and any cross-claim by 24 April 2020.

33 On 24 April 2020, the legal representatives of Tardis in the NSW Proceeding, not the same practitioners as acting on its behalf in the Victorian Proceeding, filed a notice of ceasing to act. Despite being ordered to do so Tardis have not filed any defence nor have they filed a counterclaim in the NSW Proceeding. Tardis says that this reflects its view that it has no interest in the outcome of the NSW Proceeding.

34 Asia Film has not filed an appearance in the NSW Proceeding. Mr Rogers deposes to his understanding that the sole director of Tardis, Ms Francey, is also the director and/or managing director of Asia Film. That evidence is not challenged.

35 Prior to Ocean 3D being placed into liquidation, it actively participated in the NSW Proceeding. Mr Gross has filed and served his defence in the NSW Proceeding.

36 The NSW Proceeding is in the Expedition List of the Supreme Court of New South Wales. It was moved to the Expedition List in early 2020. The evidence discloses that in June 2020, Justice Sackar anticipated the matter may be able to be heard in November or December of this year. I was told by Mr Forrester who appeared on behalf of SK Films that further progress of the NSW Proceeding and arrangements to list the matter for trial have been put on hold pending the hearing and determination of this application.

16 December 2016 - Ocean 3D and SK Films enter into the Distribution Agreement;

23 August 2017 - Achtel Assignment is entered in to;

1 September 2017 - Tardis and Ocean 3D enter into the Tardis Agreement;

30 April 2018 - The Distribution Agreement is amended;

7 January 2019 - Ocean 3D issues a notice to SK Films to terminate the Distribution Agreement;

7 February 2019 - The NSW Proceedings against Ocean 3D are commenced by SK Films;

10 February 2019 - Ocean 3D and SK Films agree to orders by consent that, until further order of the Court and on a without prejudice basis, each party would have the rights defined in the Distribution Agreement in the Film in 'the territory' but excluding China;

20 August 2019 - Ocean 3D go into voluntary liquidation;

21 August 2019 - Tardis purport to exercise their rights to terminate under the Tardis Agreement;

15 October 2019 - SK Films write to Tardis seeking information as to what rights Tardis has in the Film and putting Tardis on notice of the NSW Proceeding (SK Films has corresponded with Tardis' legal representatives since 15 October 2019);

10 December 2019 - Leave given in the NSW Proceeding to join Tardis and other defendants. Pembroke J indicated that the NSW Proceeding was not appropriate for the ordinary timetable in the general list and that the matter might be listed before the Expedition Judge in February 2020;

16 December 2019 - SK Films send a lengthy letter to Tardis setting out in detail the NSW Proceeding and foreshadowing joining Tardis to it;

19 December 2019 - DVM Law ('DVM)' advised they had only recently been retained by Tardis so would need time to respond on behalf of Tardis and that their offices would be closed between 23 December 2019 and 13 January 2020;

20 December 2019 - The solicitors for SK Films provided numerous documents to DVM and advised that Tardis was going to be joined to the NSW Proceeding by 24 January 2020;

14 January 2020 - Tardis commence the Victorian Proceeding;

23 January 2020 - DVM advise SK Films that they have instructions to accept service on behalf of Tardis in the NSW Proceeding, however no mention is made of the Victorian Proceeding;

30 January 2020 - Tardis (and the other defendants) are joined to the NSW Proceeding;

4 February 2020 - Tardis first appear before Justice Pembroke in the NSW Proceeding;

6 March 2020 - The Liquidator issues his stay application in the Victorian Proceeding;

25 March 2020 - the return of the Liquidator's stay application in the Victorian Proceeding is adjourned until 16 April 2020 due to COVID-19;

27 March 2020 - Tardis appears at the directions hearing in the NSW Proceeding and is ordered to deliver its pleadings in the NSW Proceeding;

16 April 2020 - Orders are made in the Victorian Proceeding removing the Liquidator as defendant and adding Ocean 3D as the defendant; no hearing and determination of the stay application;

24 April 2020 - Tardis' legal representatives in the NSW Proceeding file a notice of ceasing to act;

29 April 2020 - the ASOC is filed by Tardis in the Victorian Proceeding;

18 June 2020 - Tardis sends the Draft Summary Judgment Application to the Court; and

37 The key provision of the Act is s 5 which provides for the transfer of a proceeding where certain conditions are satisfied:

5. Transfer of proceedings

(1) ...

(2) Where -

(a) a proceeding (in this sub-section referred to as the "relevant proceeding") is pending in the Supreme Court (in this sub-section referred to as the "first court"); and

(b) it appears to the first court that -

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;

(ii) having regard to -

(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory;

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-sub-paragraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross- vesting of jurisdiction; and

(C) the interests of justice,

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court.

38 SK Films say that s 5(2)(b)(iii) of the Act provides a stand-alone ground for the transfer of proceedings. It accepts that it must demonstrate why the interests of justice dictate that the Victorian Proceeding should be transferred.

39 The parties agree that the relevant principles are those summarised by Almond J in Re the Will and Estate of David Ian Green:[1]

[12] In BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 Gleeson CJ, McHugh and Heydon JJ said in relation to s 5 of the Act:

[T]he Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice ... There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.

...

The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality.

...

In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications.

[13] In BHP Billiton Ltd v Schultz, Gummow J said in relation to subpara (iii) of s 5(2)(b) of the Act:

The phrase "otherwise in the interests of justice" in sub para (iii) of s 5(2)(b) of the Cross-Vesting Act requires the Supreme Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff.

[14] In discussing the connecting factors in Mcleod v Munro, Dodds-Streeton J said:

There can be no exhaustive or prescriptive statement of what they are, but principal relevant factors which are constantly recognised as legitimate and central are: first, the governing law of any agreement in dispute; secondly, the connection between the alleged conduct and the jurisdiction (for example, where the alleged wrong was committed); and thirdly, issues of cost and convenience to the parties, such as a consideration of the place where the witnesses and parties reside and carry on business, and the like.

40 In addition Tardis places reliance on further authorities including Bankinvest AH v Seabrook[2] and Ross Mollison Group Pty Ltd v The Really Useful Company (Aust) Pty Ltd.[3] It is submitted on behalf of Tardis that Ross Mollison indicates that where there is a balance of factors (cf. a clear-cut case) the Court will be slow to order a transfer.

41 SK Films submit, and it is not in substantive contest between the parties, that the usual considerations referred to in Re the Will and Estate of David Green are somewhat neutral. The SK Films' submission identifies those considerations as follows:

(a) the Distribution Agreement has an exclusive jurisdiction clause (NSW) and yet so does the Tardis Agreement (VIC);

(b) the witnesses for SK Films are based in Canada;

(e) the director of Tardis is potentially based in Hong Kong;

(f) it is unlikely that any witness is based in Victoria;

(g) any further witnesses may be from overseas; and

(h) the solicitors and counsel for SK Films are resident in New South Wales and have been involved in the NSW Proceeding since early 2019.

42 The primary question that separates the parties to this application is whether or not there is a clear overlap in the two proceedings as contended on behalf of SK Films. The submission on behalf of Tardis is that both proceedings raise discrete issues for determination; the Victorian Proceeding is concerned with ownership of copyright, the NSW Proceeding is concerned with the Distribution Agreement.

43 I do not agree that there are discrete issues raised by the Victorian Proceeding. I accept the submission on behalf of SK Films that there is clear overlap in the two proceedings. I agree that the consequence, if the two proceedings are not heard and determined by the same court, is the risk of inconsistent findings and inconsistent declarations relating to the same, or at least overlapping sets of rights with respect to the Film.

44 Tardis submits that the Tardis Agreement and the Distribution Agreement confer different rights and obligations and says that if the Distribution Agreement remains in force, then Tardis will be bound by it. Whilst in support of that submission Tardis refers to paragraphs [19]-[22] of their ASOC, the paragraphs of the pleading to which I have referred and the broad and exclusionary wording of the declaration sought, directly undermine that submission.

45 If the Victorian Proceeding were to be heard on its own, whether as an undefended proceeding or a proceeding to which SK Films were joined as a necessary party, in order to determine whether declaratory relief should be granted in favour of Tardis and, if so, on what terms, the Victorian Court is bound to proceed by reference to the pleaded case. As is apparent from the pleading, the Victorian Court will need to consider the rights and obligations arising under the Distribution Agreement when determining the issues in the Victorian Proceeding.

46 Although the ASOC asserts that Tardis does not have a copy of the Distribution Agreement and does not know its terms (ASOC [14]), as Mr Andreou correctly accepted in oral argument, that is no longer the case. It is inevitable that the Victorian Court will need to consider the Distribution Agreement and its terms, including terms that appear to prohibit assignment by Ocean 3D without SK Films' consent.

47 In the NSW Proceeding there will be issues as to the impact of the Distribution Agreement and its terms upon the rights which Tardis claim are held by it in consequence of the assignment pursuant to the Tardis Agreement. The declarations sought by SK Films in the NSW Proceeding include a declaration that the assignment to Tardis is subject to the rights of SK Films in the Distribution Agreement.

48 It is clear from both the pleaded case and from the relief sought in the NSW Proceeding that there is a very significant overlap between the issues that will arise in that proceeding and the issues that will arise in the Victorian Proceeding. One might ask in relation to the Victorian Proceeding, what is the utility of the proceeding if it is not to seek declaratory relief which has the effect of shutting out any asserted rights held by SK Films under the Distribution Agreement?

49 In these circumstances, it is simply not the case that the two proceedings in different jurisdictions can be approached as if they were confined to different silos. There is a clear overlap of subject matter, the agreements to be considered and construed and as to the rights claimed by the parties in the two proceedings.

50 Tardis submit that it would not be 'more appropriate' to transfer the Victorian Proceeding because this would be to prioritise the distribution question over the ownership question; nor would it be 'in the interests of justice' because it would prejudice Tardis' right to obtain a swift declaration under the terms of the Tardis Agreement (including the exclusive jurisdiction clause). However that submission is based on the premise that the there are two discrete disputes that fall for consideration, one by each Court and without overlap and the clear risk of inconsistent findings. For the reasons earlier mentioned, I do not accept that to be the case.

51 The parties are agreed that the critical question for determination on this application is whether it is in the interests of justice that the Victorian Proceeding be determined by the Supreme Court of New South Wales. If it is in the interests of justice to transfer, then the Victorian Supreme Court must do so.

52 The interests of justice are only served by one Court both managing and hearing and determining the two overlapping proceedings.

53 In BHP Billiton Ltd v Schultz,[4] Gleeson CJ, McHugh and Heydon JJ said, in relation to s 5 of the Act, that the 'justice' referred to in s 5 is not disembodied or divorced from practical reality.

54 The practical reality is that the NSW Proceeding was issued well before the Victorian Proceeding. It would have been open to Tardis to bring the claims that it now brings in Victoria in the Supreme Court of New South Wales. Tardis simply chose not to do so.

55 The chronology demonstrates and the affidavit evidence and exhibits establish that Tardis was well aware of the NSW Proceeding when it decided to issue the Victorian Proceeding. It had been on notice of the NSW Proceeding since October 2019. Its New South Wales solicitors had been provided with documents relevant to that proceeding on 20 December 2019. They sought time to consider their client's position as to joinder as a defendant to that proceeding until 13 January 2020. On the following day, 14 January 2020, by its Victorian solicitors, Tardis issued the Victorian Proceeding without any notice of that proceeding being given to SK Films.

56 Tardis participated in the NSW Proceeding until it was able to resolve the Liquidator's stay application in the Victorian Proceeding. It is correct as Tardis submits that the fact that the Tardis Agreement contains an exclusive jurisdiction clause in favour of the Supreme Court of Victoria is a relevant consideration on an application such as the present. The existence of the exclusive jurisdiction clause has no great significance when one considers the history of the two proceedings and the manner in which Tardis chose to conduct each of them.

57 I do not accept the Tardis submission that the objectives on minimising cost and maximising efficiency favours the continuation of separate proceedings in two Courts. If the Victorian proceeding were to remain separate, joinder of SK Films as a defendant, as sought in the summons in the alternative would be appropriate. There would then be two parallel sets of proceedings with the same parties and the same issues. That is not only highly undesirable, such an outcome would not in any way minimise costs or increase efficiencies - it would have the opposite effect.

58 Tardis has already participated in the NSW Proceeding. It knows the case against it and there is already in place an order that it provide a defence and any counterclaim. If Tardis wishes to pursue an application for summary judgment in the Victorian Proceeding once transferred, issues concerning that application can be dealt with by the judge managing the litigation in New South Wales.

59 It is necessary to deal briefly with one further matter relied upon by Tardis in opposition to cross-vesting. Mr Martin, solicitor for Tardis, gives evidence on instructions, of an alleged ulterior commercial motive on the part of SK Films for seeking a cross-vesting order. It is submitted by Tardis that the asserted ulterior motive of SK Films might be thought to be advanced by delay that may flow if the Victorian Proceeding is transferred to New South Wales.

60 First, as to that issue, the affidavit contends that if the declarations sought in the Victorian Proceeding are not made by 1 July 2020, then a one-year postponement of certain commercial opportunities available to Tardis will be lost for one year and SK Films, its commercial rival, will gain a commercial advantage as a result. Accepting the validity of that proposition for present purposes, the critical time has already passed.

61 Second, there is in any case a factual contest concerning such alleged motivation which is not able to be determined on this application. The Third Rogers Affidavit sets out his instructions, which are in stark contrast to those provided to Mr Martin.

62 Third, whatever the motivation of the respective parties when taking action or omitting to take action in either of the two proceedings, such motivation is not relevant to a determination of this application which is to be determined according to the interests of justice.

63 Fourth, I am by no means persuaded that if the Victorian Proceeding is cross-vested that there is likely to be delay which is in any way material. The NSW Proceeding is being managed in the Expedition List. The whole purpose of the cross-vesting order that I propose to make is to enable the two proceedings to be managed by the same judge.

64 There is no doubt that the interests of justice demand that the Victorian Proceeding be transferred to the Supreme Court of New South Wales. This is a 'clear-cut case'. Cross-vesting the Victorian Proceeding will allow all issues concerning copyright, intellectual property to the Film, the Film Assets, competing issues as to assignments and the impact of assignment on rights to be heard and determined by the one Court at the one time. The risk of inconsistent findings in two different Court will be removed. Cross-vesting will allow both cases to be managed together, costs to the parties will in that way be minimised and efficiencies are likely to result in the Expedition List of the Supreme Court of New South Wales.

(a) the Victorian Proceeding be transferred to the Supreme Court of New South Wales pursuant to s 5(2) of the Act; and

(b) Tardis pay SK Films' costs of this application on a standard basis.

[1] [2011] VSC 155, [12]-[14] (citations omitted).

[2] (1988) 14 NSWLR 711 (Rogers AJA, Street CJ and Kirby P agreeing).

[3] [2000] VSC 256 (Warren J) ('Ross Mollison').

[4] [2004] HCA 61; (2004) 221 CLR 400, 421; [2004] HCA 61, [15].