Anderson Formrite Pty Ltd v Baulderstone Hornibrook Pty Ltd
[2004] WASC 115
ANDERSON FORMRITE PTY LTD -v- BAULDERSTONE HORNIBROOK PTY LTD [2004] WASC 115
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 115 | |
| Case No: | CIV:2534/2003 | 6 APRIL 2004 | |
| Coram: | SIMMONDS J | 2/06/04 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | ANDERSON FORMRITE PTY LTD (ACN 097 652) BAULDERSTONE HORNIBROOK PTY LTD (ACN 002 625 130) |
Catchwords: | Jurisdiction Cross-vesting Construction of exclusive jurisdiction clause Transfer of proceedings to the Supreme Court of New South Wales Action commenced in the Supreme Court of Western Australia |
Legislation: | Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 5(2) Trade Practices Act 1974 (Cth), s 51, s 52 |
Case References: | Air Attention WA Pty Ltd v Seeley International Pty Ltd, unreported; SCt of WA (Walsh J); Library No 960509; 3 September 1996 Anderton v Enterprising Global Group Pty Ltd [2003] WASC 67 Bank Invest AG v Seabrook (1988) 14 NSWLR 711 Bond v Larobi Pty Ltd, unreported; SCt of WA; Library No 920057; 31 December 1991 FAI Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association & Anor (1997) 41 NSWLR 117 Jovista Pty Ltd v Bateman Project Engineering Pty Ltd, unreported; SCt of WA (Wheeler J); Library No 980256; 19 May 1998 Mullins Investments Pty Ltd v Elliot Exploration Co Pty Ltd (1990) 1 WAR 531 Oceanic Sun Line Special Shipping Co Incorporated v Fay (1988) 62 ALJR 389 Patrick Badges Pty Ltd v Commonwealth [2002] NSWSC 221 Rogan & Ors v Rushton (QLD) Pty Ltd [2002] VSC 375 Rossi Gearmotors Australia Pty Ltd v Continental Conveyor and Equipment Pty Ltd [2003] WASC 42 Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588 World Fire Fighters' Games Brisbane 2002 v World Fire Fighters' Games WA Inc (2001) 161 FLR 355 Platz v Lambert (1994) 12 WAR 319 Rodney Peter Bailey (by his next friend The Public Trustee) v Climaze Holdings Pty Ltd, unreported; SCt of WA (Murray J); Library No 980455; 12 August 1988 Whyalla Refiners Pty Ltd v Grant Thornton (A Firm) [2001] WASC 49 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
BAULDERSTONE HORNIBROOK PTY LTD (ACN 002 625 130)
Defendant
Catchwords:
Jurisdiction - Cross-vesting - Construction of exclusive jurisdiction clause - Transfer of proceedings to the Supreme Court of New South Wales - Action commenced in the Supreme Court of Western Australia
Legislation:
Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 5(2)
Trade Practices Act 1974 (Cth), s 51, s 52
Result:
Application allowed
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Category: B
Representation:
Counsel:
Plaintiff : Mr G R Donaldson
Defendant : Mr M G Pendlebury
Solicitors:
Plaintiff : CLP Lawyers
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Air Attention WA Pty Ltd v Seeley International Pty Ltd, unreported; SCt of WA (Walsh J); Library No 960509; 3 September 1996
Anderton v Enterprising Global Group Pty Ltd [2003] WASC 67
Bank Invest AG v Seabrook (1988) 14 NSWLR 711
Bond v Larobi Pty Ltd, unreported; SCt of WA; Library No 920057; 31 December 1991
FAI Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association & Anor (1997) 41 NSWLR 117
Jovista Pty Ltd v Bateman Project Engineering Pty Ltd, unreported; SCt of WA (Wheeler J); Library No 980256; 19 May 1998
Mullins Investments Pty Ltd v Elliot Exploration Co Pty Ltd (1990) 1 WAR 531
Oceanic Sun Line Special Shipping Co Incorporated v Fay (1988) 62 ALJR 389
Patrick Badges Pty Ltd v Commonwealth [2002] NSWSC 221
Rogan & Ors v Rushton (QLD) Pty Ltd [2002] VSC 375
Rossi Gearmotors Australia Pty Ltd v Continental Conveyor and Equipment Pty Ltd [2003] WASC 42
Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588
World Fire Fighters' Games Brisbane 2002 v World Fire Fighters' Games WA Inc (2001) 161 FLR 355
Case(s) also cited:
Platz v Lambert (1994) 12 WAR 319
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Rodney Peter Bailey (by his next friend The Public Trustee) v Climaze Holdings Pty Ltd, unreported; SCt of WA (Murray J); Library No 980455; 12 August 1988
Whyalla Refiners Pty Ltd v Grant Thornton (A Firm) [2001] WASC 49
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1 SIMMONDS J: This is an application for stay of proceedings, or alternatively their transfer to the Supreme Court of New South Wales, brought by the defendant under s 5(2)(b)(iii) of the Jurisdiction of Courts Cross-Vesting Act 1987 (WA). An affidavit was filed in support of the defendant by a Mr Hall "of care of Level 10, 40 Miller Street, North Sydney in the State of New South Wales, Commercial Manager" as "Commercial Manager of the Defendant". There are also affidavits opposing the defendant's application, from a Mr Anderson as managing director of the plaintiff, and from a Mr Passione as managing director of a company which provided administrative and project management services to the plaintiff in relation to the building project the subject of the plaintiff's claim.
Background
2 The background to this matter emerges from the writ of summons on which is endorsed the plaintiff's claim, to which the affidavit of Mr Anderson in particular relates.
3 The writ discloses that the subject of the claim is the construction by the defendant of an office tower and other structures at 240 St George's Terrace, Perth in the State of Western Australia, which the parties at the hearing indicated is the recently completed Woodside Building. The plaintiff had contracted with the defendant under an instrument of subcontract dated 11 October 2001, a copy of which was Annexure "LRH-1" to Mr Hall's affidavit. This subcontract called for the plaintiff to provide formwork and associated services in respect of the defendant's construction project. The indorsement of claim pleads conduct of the defendant in breach of s 51 and s 52 of the Trade Practices Act 1974 (Cth) in respect of certain services the plaintiff claims the defendant required the plaintiff to use for the purposes of the contract; the wrongful termination of the contract by the defendant; breaches of the contract in respect of wrongfully calling in securities provided by the plaintiff to the defendant; wrongful conversion by the defendant of formwork equipment owned by the plaintiff; moneys owed in the form of unpaid progress claims; breaches of the contract by the defendant in refusing or failing to grant claims for extension of time for practical completion of the work to be performed by the plaintiff; damages for breach of an agreement made between the plaintiff and the defendant subsequently to the contract where the plaintiff was said to have agreed to a bonus payment to the defendant in respect of formwork and associated services under the contract, to extend the time for practical completion, and not to pursue any claims for liquidated damages under the contract for
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- delay in completing the works; and unlawful interference by the defendant through a named agent or employee in respect to the contractual relations between the plaintiff and the providers of the services in association with the contract to which reference was first made.
4 Mr Anderson, in his affidavit, provides the surnames of witnesses which he indicates will have to be called by the plaintiff in relation to the matter, both in reference to the general factual background, and in reference to those of the claims I have referred to above, starting with the wrongful termination claim through to and including the subsequent agreement claim. Mr Anderson also refers to a number of companies that have provided services to the plaintiff in relation to the work it carried out under the contract, and to the likelihood of it being necessary for the plaintiff to call representatives of them as witnesses.
5 In Mr Anderson's affidavit, names of the witnesses and names of corporations are highlighted in bold; elsewhere in the affidavit fuller names are provided which appear to correspond to these emboldened names although the correspondence is not spelt out. On the best count I have been able to make, which aligns with the overall count provided during the hearing by counsel for the plaintiff respondent, there are 19 suggested witnesses identified by emboldened surname as having Western Australian addresses, together with nine emboldened corporations identified as "resident and based in Western Australia in respect of the services they provided to the plaintiff" (par 27). There are also four witnesses with emboldened surnames indicated in Mr Anderson's affidavit as residing outside Western Australia, and a further three witnesses, who, so far as one can tell, are all officers or representatives of the defendant, and who are shown as potential witnesses in the same way, but without an indication as to their places of residence.
6 Mr Passione in his affidavit refers to three employees of his corporation, Prime Projects Pty Ltd, as persons who may be called as witnesses in the proceedings, surnames of two of whom correspond with those on the Anderson list of Western Australian residents.
7 The only other matters of background that are appropriate to highlight at this point go to the witnesses for the defendant identified in Mr Hall's affidavit, as well as the expected length and character of the trial, on what are still very basic pleadings, there having been no defence nor other material by way of pleadings filed as yet.
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8 Mr Hall, in his affidavit at par 7 indicates that, in the absence of further particulars, he believes there are "eleven potential witnesses who may be the most appropriate people to give evidence in these proceedings on behalf of the Defendant, in relation to the allegations so far raised" (par 7). Of these 11, seven are said to reside in New South Wales, two in Queensland and two in Victoria (par 8). The same paragraph indicates that there "may be other witnesses who reside in New South Wales who have not yet been identified and whose evidence may be required once the defendant has received particulars of the Plaintiff's claim". Mr Hall's affidavit does not provide names of any of these witnesses, nor particular indications of matters in the indorsement of claim to which their evidence might be particularly appropriate.
9 As to the expected length and nature of the trial, it was submitted to me by the plaintiff respondent at the hearing that, in view of the number of witnesses, and the character of the indorsement of claim, the trial could be expected to be both lengthy and peculiarly fact dependent. The facts would all or almost all relate to a building project in the central business district of Perth.
10 Finally, the defendant drew to my attention that it was not clear from Mr Hall's affidavit where he resided, which contravenes the requirements for affidavits. It was noted at the hearing that the defendant corporation is shown in the Contract, being LRH-1 of Mr Hall's affidavit, both in the heading to the contract and in the annexure thereto, as having a St George's Terrace address, although there is a reference to the principal with which the defendant contracted for the construction of the building the subject of the writ, Deutsche Asset Management (Australia) Ltd, which has a Sydney address.
The jurisdiction clause in the contract
11 The principal argument in the proceedings before me had to do with the characterisation of this clause, and its effect on the decision I was called upon to make. That clause appears in the Contract in the section headed: "1. Interpretation and construction of Subcontract" (Hall's affidavit at par 13). Following the list of defined terms that concludes with "WUS", and following the words "in the subcontract:" at letter "(h)" the following appears:
"The law governing the Subcontract, its interpretation and construction, and any agreement to arbitrate, is the law of Western Australia but the forum is New South Wales for the conduct of any dispute …"
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12 The defendant applicant contended strongly that this was a clause intended by the parties to give effect to an agreement that the disputes to which the clause referred should only be conducted in the forum of New South Wales. This the defendant applicant characterised as an exclusive jurisdiction clause. Although it was conceded that the word "exclusive" or a synonym did not appear either in the clause or elsewhere in the agreement so as to put the matter beyond dispute in that way, it was submitted that there was ample authority that it was not necessary for a clause or its context expressly so to state for the conclusion as to it being an exclusive jurisdiction clause to be drawn. I was referred to FAI Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association & Anor (1997) 41 NSWLR 117 at 126 and to the materials collected at [5.59] of the text, Bell, Forum Shopping and Venue in Transnational Litigation, Oxford University Press, 2003. For that matter, I note from the defendant applicant's list of authorities Jovista Pty Ltd v Bateman Project Engineering Pty Ltd, unreported; SCt of WA (Wheeler J); Library No 980256; 19 May 1998, especially at 4 to 5 where Wheeler J clearly accepts this point. In my view, it is clearly correct, and the respondent did not appear to me to be submitting otherwise.
13 The issue was, rather, whether or not this particular clause was an exclusive jurisdiction one, although in the end, on authority to which I will subsequently refer, this may be less important than might otherwise appear to be the case. The defendant applicant laid considerable stress on the words "but", "the" and "is" as showing that clause is not ambiguous, and does indeed amount to an exclusive jurisdiction provision. The plaintiff respondent noted, however, apart from the lack of the word "exclusive" or similar words, that unlike the Jovista case it was not altogether clear on the face of the agreement that the courts in New South Wales would have had jurisdiction in the absence of the clause, and that its rather unusual drafting involving the use of the words "but", "is" and "any" did not unambiguously point towards exclusive jurisdiction, but rather jurisdiction for New South Wales, and what the choice of law would be on that choice.
14 I note in respect of the difference between an exclusive and a non-exclusive jurisdiction clause the authority cited to me by both parties: Air Attention WA Pty Ltd v Seeley International Pty Ltd, unreported; SCt of WA (Walsh J); Library No 960509; 3 September 1996, especially at 6. That case involved claims in respect of airconditioners which it was alleged in the action in Western Australia by the plaintiff, a supplier and distributor of the units in Western Australia, were faulty in a number of instances, generally unsuited to purpose, and the subject of
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- misrepresentations for the purposes of both Federal and State law. There was in that case, a clause which both indicated the law by which the agreement should be construed and governed (in that case the laws of South Australia) and that the parties "hereby submit to the jurisdiction of courts of that State and of any courts having jurisdiction to appeals therefrom". In his Honour's view it was clear from the clause that it was an exclusive jurisdiction one. However, in the respect of importance here, he indicated that he was wrong in that conclusion as he:
"… would in any event have come to the conclusion that even if it is not an exclusive jurisdiction clause, nonetheless full weight should be given to it because that clause evidences the basic intent of the contracting parties that their obligations were to be determined in accordance with the laws of the State of South Australia".
Here, of course, the clause did not have the alignment of choice of law and choice of jurisdiction. And in that case proceedings had been begun by the defendant also, in South Australia, although in the analysis of Walsh J he had to accord primacy to the Western Australian proceedings for the purposes of his analysis.
15 In Patrick Badges Pty Ltd v Commonwealth [2002] NSWSC 221, the judgment of Howie J of the Supreme Court of New South Wales, Law Division at [14] indicates that:
"Provided that the clause can be construed as being a substantive term of the agreement between the parties as to the likely jurisdiction for the termination of disputes under the agreement, it should be given weight in the determination of where the 'interests of justice' lie. It would be a factor, possibly of significance when consideration is given to the weight to be accorded to the inconvenience of a particular party, that the party entered into an agreement under which dispute resolution would, prima facie at least, take place in a particular and possibly inconvenient jurisdiction. But it may be that, if the clause is construed as being an exclusive jurisdiction clause, more weight should be given to it in determining the appropriate jurisdiction and less to the inconvenience and expense of a party having to proceed in that jurisdiction in accordance with the agreement entered."
- Although that case concerned an approach to the equivalent provision to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act (WA) in
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- New South Wales, a matter to which I will also return, it appears to me to express the appropriate principle. It is that weight should be given to the clause as the plaintiff respondent indicated even if it were not construed as an exclusive jurisdiction one; but greater weight should be given to it if it is so construed.
16 I have also determined, based on the structure of the clause, that it is more likely than not that the clause should be construed as an exclusive jurisdiction one. The structure would suggest to me that the parties' attention is being drawn to a trade-off between the choice of law and the forum in which the dispute should be resolved. At the same time, I note the connection to New South Wales represented by, from the agreement, the location of the principal under the main contract.
17 It will become evident shortly what significance I therefore attach to the clause in relation to the decision I must make.
Applicable approach: the "clearly inappropriate" test
18 Both the defendant applicant and the plaintiff respondent were agreed on the starting-point in relation to these principles. The difference emerged between them as to how the principles should be applied in this case.
19 The starting-point, it was so agreed, is represented by Mullins Investments Pty Ltd v Elliot Exploration Co Pty Ltd (1990) 1 WAR 531. That case involved an action for misrepresentations, breach of contract and misleading conduct within s 52 of the Trade Practices Act all based on a written report submitted to the first or the second plaintiff by the first defendant on the second defendant's behalf. The first defendant was incorporated with its principal place of business in Queensland and all of its directors resided there; the second defendant was incorporated in Queensland; the report related to gold deposits under an authority to prospect in Queensland, where the report had been compiled; the first defendant's witnesses all resided in Queensland and the Court was told the matter could be heard six months earlier in Queensland. However, the first plaintiff was incorporated in Western Australia, the first and second plaintiffs' principal places of business were in Western Australia, and all the plaintiffs' witnesses resided in Western Australia, while the third party in the proceedings agreed to the matter being heard in this State. There, in deciding that the application for transfer under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act should be dismissed, the Court said that the correct approach was in terms that the expression "interests of justice" under s 5(2)(b)(iii) should be interpreted by reference to the
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- "prima facie right of a plaintiff to insist upon the exercise of competent jurisdiction which he has regularly invoked", taken by his Honour from Oceanic Sun Line Special Shipping Co Incorporated v Fay (1988) 62 ALJR 389 per Deane J at 408. This approach has been contrasted with the rather less exacting one for an applicant that is associated with the judgment of Rogers J in Bank Invest AG v Seabrook (1988) 14 NSWLR 711 at 730 in the text Nygh, P E and Davies, M Conflict of Laws in Australia 7th ed, Lexis Nexis Butterworths, Chatsworth, 2002 at [6.13]. The test from Bank Invest is rather that of "the more appropriate forum".
20 For the reasons given in the judgment of Hasluck J in Anderton v Enterprising Global Group Pty Ltd [2003] WASC 67 at [28] – [31] where his Honour provided his reply to the submissions in that case made against the Mullins approach, I should follow that approach. I do this notwithstanding the criticisms of the Mullins approach in the Nygh and Davies text at the place indicated.
21 The defendant applicant drew my attention to a number of cases from this jurisdiction in which the Mullins approach had been followed. It is unnecessary to refer to all of them in light of the agreement on the appropriateness of the Mullins approach to which I have referred. However, the defendant applicant indicated that that approach required me to consider the matter on the common law one associated with the Oceanic Sun Line case. While I agree that dicta in a number of authorities cited might lead to the view that that is the appropriate manner of proceeding, I agree with the submission of the plaintiff respondent that the language of s 5(2)(b)(iii) is the touchstone for jurisdiction in this case. The common law materials are used to inform that analysis, but are not a substitute for it. In the end, I do not think that this makes for a very large difference, and not one that is material to the disposition of this case, as I understand the Western Australian authorities.
22 This then takes me back to the exclusive jurisdiction clause as I have construed it. Here I was referred by the defendant applicant to Dicey and Morris on the Conflict of Laws 13th ed, Sweet & Maxwell, London, 2000, at [12.114], where the learned authors indicate that at common law, in the face of an exclusive jurisdiction clause, a stay is granted unless there is a strong case against it; and it is a case that needs to be stronger than that which would satisfy a Court that a stay is appropriate on forum non conveniens grounds. For Australian authority, counsel for the defendant applicant referred me to the Oceanic Sun Line case in the judgment of Brennan J at 230 where his Honour considers that, had the exclusive foreign jurisdiction clause argued for there been a term of the contract of
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- carriage, "it would have been necessary to determine whether there were circumstances which warrant a refusal of the stay to which the defendant would have been entitled prima facie". I was also referred to his Honour's dicta at 231 of the same case where he said:
"Before a court can refuse to enforce a contractual stipulation in order to allow a plaintiff a right to sue which he has bargained away the court must have substantial grounds prevailing over what Dixon J in [Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502 at 509] called a 'strong bias in favour of maintaining the special bargain'."
"However, it does show that the parties turned their minds to the question of jurisdiction and agreed accordingly. The plaintiff's choice of this Court is consistent with the contractual provision."
24 I was invited to infer from this that, had the contractual provisions stipulated otherwise, it would have been strong reason to follow the parties' contractual choice.
25 I also had my attention drawn to the Air Attention case, to which I made previous reference. There, his Honour Walsh J found the jurisdictional clause in the agreement "a determinative feature of the application before me" and made reference to "principles extracted from private international law". I further note from the same case at 8 that his Honour concluded in material part as follows:
"It is necessary that full weight be given to the bargain that the parties reached. It seems to me, therefore, that taking that into account, notwithstanding the inconvenience that it is said will result to the plaintiff and expense which may ensue, which in any event may appear to be evenly balanced, at the end of the day I have reached the opinion that the interests of justice in this case, having regard to the specific clause in the agreement,
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- favours the applicant defendant company, the specific clause in the agreement being determinative in the sense that it brings the balance down in favour of the applicant."
- Counsel for the defendant applicant reminded me that in that case it did not appear that there was any suggestion of a material difference between the law in Western Australia and South Australia, which was also the case here. For that reason, the choice of law clause and related issues did not tell for or against the application, and I so find.
26 Counsel for the defendant applicant also drew to my attention the case of Jovista Pty Ltd v Bateman Project Engineering Pty Ltd (supra), a case with some similarity to this one in that the plaintiff in Northern Territory proceedings was making claims arising out of a progress payment certificate in respect of work being done in the Territory. Subsequently, the plaintiff commenced an action in Western Australia apparently on the same or closely related matters. It was conceded in that case that if the contract in question contained a clause conferring exclusive jurisdiction for courts in the Northern Territory then "the plaintiff would be required to show 'strong grounds' why proceedings should not be transferred to the Northern Territory". Her Honour went on further to say, at 4, "the balance of authority appears to favour the view that the parties in such a case, in the absence of good reason to the contrary, should be kept to their bargain, and I take the view that the plaintiff's concession is correct". I have previously referred to this case in connection with the exclusive jurisdiction issue. Having determined that the case was one involving an exclusive jurisdiction clause, her Honour turned to the issue of whether the plaintiff had demonstrated "strong grounds" why the pleading should not be transferred to the Northern Territory. In view of the plaintiff's own manner of proceeding, and despite the fact that the plaintiff and the defendants resided, carried on business or both, in Perth and that all of the plaintiff's and defendants' witnesses were said to be in Perth, her Honour concluded that it was difficult to ascertain what hardship, if any, would be entailed in requiring witnesses to attend in the Northern Territory and to require officers of the plaintiff and defendant to travel to the Northern Territory for the purpose of giving instructions. This was "in the absence of any evaluation of the likely number of witnesses and length of proceeding". Her Honour specifically determined that issues concerning the conclusion of the contract in Perth and certain matters associated with that contract having occurred in Perth did not appear to be relevant to the proceedings.
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27 I was also referred to Rossi Gearmotors Australia Pty Ltd v Continental Conveyor and Equipment Pty Ltd [2003] WASC 42, a judgment of his Honour Roberts-Smith J. There the plaintiff was a supplier of certain machinery and carried on business in Western Australia. The defendant purchaser was a company whose registered office and principal place of business was in New South Wales. His Honour was faced with proceedings that had been commenced by the defendant in New South Wales and the plaintiff in Western Australia, the latter having to do with the failure of the defendant to pay the purchase price and the former having to do with breaches of contract arising out of the same circumstances and events. His Honour there indicated that, as I read his judgment, at [28] – [30] read with [27], a special approach might need to be adopted where both plaintiff and defendant had launched proceedings in respect of the same subject matter in different jurisdictions. However that may be, I noted the dicta to which the defendant applicant drew my attention, at [33], where his Honour considered, on the assumption that the submission to the jurisdiction clause on which the plaintiff relied was part of the contract, whether it disposed of the matter. At [33], his Honour concluded that it did not, on the authorities it being "merely a consideration which would give a strong bias in favour of maintaining the agreement struck by the parties". I was also referred to FAI Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association & Anor (supra) for the outline of the general position at 125 which it appears to me does not add significantly to any of this.
28 Finally, I was referred to two cases on the Bank Invest approach whose inapplicability in Western Australia I have already addressed. These cases it was said confirmed that, even under that approach, there was considerable weight to be given to exclusive jurisdiction clauses, or at least jurisdiction clauses more generally. In the first of these, Patrick Badges Pty Ltd v Commonwealth (supra) the claim arose out of a breach of contract entered into with the defendant relating to the promotion of events in connection with the 75th anniversary year of the Royal Australian Air Force in 1996. At [19], his Honour referred to Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588 where his Honour indicated:
"It was held to be a relevant consideration that the [jurisdiction] clause was contained in an agreement made between 'sophisticated businessmen' who had carefully chosen their words as to the relevant jurisdiction for the resolution of disputes under the contract."
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- That was the situation presented to me, it would appear. His Honour went on at [20] to indicate that he did not find it difficult to understand why the defendant would want a clause of this sort where the plaintiffs did not conduct business within the ACT, where the defendant operated from the ACT, where the work to be performed by the plaintiff under the contract would be performed to a large extent outside the ACT and where there were to be events the subject of the contract in various States and Territories throughout Australia. This has points of similarity to the case before me here.
29 The other case on the Bank Invest approach to which my attention was drawn was World Fire Fighters' Games Brisbane 2002 v World Fire Fighters' Games WA Inc (2001) 161 FLR 355 where there was a clause that both parties chose the law of Western Australia and submitted to the exclusive jurisdiction of the courts of that State (an alignment like that in Air Attention, but unlike that here). The jurisdiction clause was the important factor in the Court's determination that the interests of justice favoured a transfer to Western Australia away from Queensland where the event in question the subject of the proceedings was held, and where the number of witnesses in that State was greater than that of any outside it. There are considerable points of similarity in that case to this one.
30 Counsel for the plaintiff respondent took me to the same cases to which I have just referred, together with that of Rogan & Ors v Rushton (QLD) Pty Ltd [2002] VSC 375, a case in the Supreme Court of Victoria, Commercial and Equity Division, commercial list before Warren J. There proceedings had been launched some time previously in respect of the same subject matter as the proceedings in Victoria the subject of the application in question. There was what the Court determined to be an exclusive jurisdiction clause calling for the case to be determined in Victoria. The contract further provided that it was regulated by the laws of Victoria. However, the case in Queensland had reached the stage of being ready to be set down for trial. The plaintiff in the Victorian proceedings had in fact submitted to the jurisdiction of the Court there and had chosen to institute proceedings in that court. His Honour found, at [17], that "the conduct alleged between the parties and the matter of cost and inconvenience falls equally between Queensland and Victoria". The particular attraction to one jurisdiction over another resolved itself to the exclusive jurisdiction clause and the fact that "it seems to me generally undesirable that an aspect of the agreement that is the subject to litigation in the Supreme Court of Queensland be determined by the Victorian Supreme Court when the subject on its face could be dealt with readily in the Supreme Court of Queensland": [17]. In the final analysis,
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- his Honour concluded that it was in the interest of justice that all the proceedings be heard at the same time in the one jurisdiction and he noted, at [17], that "consideration can be given to the fact that no significant aspect of the subject agreement is governed by law that is unique and peculiar to a particular jurisdiction". He also referred to the fact that there was no Victorian statute governing the agreement, if any, between the parties in that case.
31 The plaintiff respondent made these references as part of the more general submission that the approach the Court should adopt in the present case was to invoke the jurisdiction clause as a factor bearing on the "interests of justice determination", using the common law accounting for such a clause as no more than a guide.
32 In this aspect of the matter, I agree with the plaintiff respondent that the Western Australian courts appear to approach the matter as one of giving effect to the "in the interests of justice" touchstone; but I consider that they are giving to the exclusive jurisdiction clause the same sort of weight that the common law approach as described by the defendant applicant indicates.
33 That is not entirely the end of the matter as it is important not to overlook that the approach from those common law cases has been worked out in connection with international contracts. In this respect, while that approach might correctly be described as one where a party seeking to go forward in the face of an exclusive jurisdiction clause has "the burden of satisfying the court that there are strong grounds for proceedings in the forum …", it must also be said "that that burden may be less onerous if the exclusive jurisdiction is that of another Australian State or Territory": Nygh and Davies at [7.25] (footnotes omitted). The view in that respect was one which the plaintiff respondent commended to me, while the defendant applicant suggested that the matter was one of emphasis only, going only to matters of "practicality". I note that there is some support for that suggestion to be had from the analysis and conclusions in World Firefighters' Games Brisbane (supra), where his Honour Philippides J also notes, at [14], that the "bias in favour of exclusive jurisdiction clauses may be stronger in a case having an international element than a case which involves competing in transitional forums".
34 In the final analysis, I do not believe that the difference represented by the international and federal contexts is telling in this case in light of the way in which the courts have approached the matter in this State. That
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- is, I believe that it is still necessary to establish a state of matters which overcomes the exclusive jurisdiction agreement settled upon by commercial parties in a contract such as this one. In this respect, I particularly draw upon the approach of his Honour, Walsh J in the Air Attention case, which appears to me to suggest that it is appropriate to consider the clause as replacing the plaintiff's choice and directing my attention to whether there is more than a mere balance of convenience in favour of the jurisdiction of the plaintiff has chosen. Here I acknowledge the imbalance in the number of witnesses which favours Western Australia, although I note that the imbalance must be tempered in my consideration by the fact that at this relatively early stage in the proceedings it is unclear what the roles of all of the witnesses will be. It is, however, not the case as the defendant applicant pressed upon me that I should substantially disregard the witnesses referred to by the defendant applicant as he had not provided as much detail in respect of them as had the plaintiff respondent. There are a sufficient number of non-Western Australian witnesses, including a number identified by the plaintiff respondent itself through Mr Anderson's affidavit, such that it is not clear to me a strong argument on convenience grounds can be made against the clause. I see the matter of choice of law as neutral for the reasons previously indicated. Although the matter is not altogether clear of doubt, there is reason to think from the affidavit of Mr Hall that the defendant has a significant connection with New South Wales, although I am in agreement with the plaintiff respondent to the extent that it is not possible to put the matter any higher than that, particularly in view of the address given for the defendant applicant in the contract here.
35 In the event, then, I am making the order that these proceedings be transferred to the Supreme Court of New South Wales, in terms of the notice of motion of the defendant dated 27 January 2004, par 2; and that the plaintiff pay the defendant's costs of this application.
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