Anderson v Raelene Overall Consultants Pty Ltd

[2000] WADC 308

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   ANDERSON & ANOR -v- RAELENE OVERALL CONSULTANTS PTY LTD & ORS [2000] WADC 308

CORAM:   REGISTRAR KINGSLEY

HEARD:   1 NOVEMBER 2000

DELIVERED          :   27 NOVEMBER 2000

FILE NO/S:   CIV 1670 of 2000

BETWEEN:   DAVID STEWART ANDERSON

JUDITH ANDERSON
Plaintiffs

AND

RAELENE OVERALL CONSULTANTS PTY LTD (ACN 054 528 513)
First Defendant

ROBERT HUGHALL OVERALL
Second Defendant

RAELENE HUGHALL OVERALL
Third Defendant

Catchwords:

Practice - Western Australia - Practice under s 20 - Service and Execution of Process Act 1992 (Cth) - Application for stay of proceedings

Legislation:

Service and Execution of Process Act 1992 (Cth)

Trade Practices Act 1974

Result:

Application allowed

Representation:

Counsel:

Plaintiffs:     Mr P Redding

First Defendant             :     Mr A Beech

Second Defendant         :     Mr A Beech

Third Defendant           :     Mr A Beech

Solicitors:

Plaintiffs:     Williams & Hughes

First Defendant             :     Fearis Slater Power Shervington

Second Defendant         :     Fearis Slater Power Shervington

Third Defendant           :     Fearis Slater Power Shervington

Case(s) referred to in judgment(s):

Akai Pty Ltd v Peoples Insurance Co Ltd (1996) 188 CLR 418

FAI General Ins v Ocean Marine Mutual (1996) 41 NSWLR 117

Jovista Pty Ltd v Bateman Project Engineering Pty Ltd, unreported; SCt of WA; Library No 980256; 19 May 1998

Case(s) also cited:

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Valkama v Jamieson (1994) 11 SR (WA) 246

Contractors Ltd v MTE Control Gear Ltd [1964] SASR 47

Ricky Cobby P/L v Podestra Transport (1997) 139 FLR 54

Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460

S & W Berisford Plc v New Hampshire Insurance [1990] 2 QB 631

1. REGISTRAR KINGSLEY:  This is the defendants application for a stay of the plaintiffs action pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth) (the Act).  The Act provides that initiating process issued in a State may be served in another State.  Section 12 of the Act provides that, subject to the Act, service of process under the Act has the same effect as if the process had been served in the place of issue.  Section 20 goes on to provide that for a proceeding issued in a court other than a Supreme Court a person served with that process may apply to the court of issue for an order staying the proceedings.  In its sub-sections, s 20 provides that the issuing court may order the proceedings be stayed, if it is satisfied that a court of another State that has jurisdiction to determine all the matters between the parties, is the appropriate court.  Section 20 then provides six matters which the issuing court is to take into account on an application in determining whether a court of another State is the appropriate court.  It is common ground that proceedings have issued in the Local Court (Northern Territory) but there is no evidence before me as to jurisdiction of the Local Court (Northern Territory).  However all that s 20 of the Act requires is that I be satisfied that a court of another State that has jurisdiction is the appropriate court.

2. The dispute between the parties arises from the sale of a business.  Robert Hughall Overall in a affidavit sworn 18 July 2000 deposes that he and the third defendant met with the plaintiffs in October 1998 to discuss a possible joint venture between the first defendant and Bell Personnel Pty Ltd. Negotiations continued until April 1999 and during the course of negotiations statements as to projections of gross income for the business were made.  In a facsimile transmission dated 19 April 1999, described by Overall as the key terms and conditions of the offer, the second defendant writes to the plaintiffs stating they are prepared to sell a part of their business for $150000 and are prepared to vendor finance the sale.  An agreement dated 22 April 1999 was entered into by the plaintiffs and the first defendant which was executed in Perth.  The agreement was a Real Estate Institute of WA pro-forma contract and included two appendixes.

3. All this is broadly confirmed by David Stewart Anderson in an affidavit sworn 1 September 2000.  Anderson deposed that all discussions and negotiations after October 1998 took place in Perth.  As for the signing of the agreement Anderson deposed that the agreement was executed on site at an “Oil and Gas Expo” held in Langley Park on 22 April 1999.  Anderson deposed that the second defendant was stationed at one of the stands.  Various hand written components were completed by Anderson and both Anderson and Overall executed the agreement in the presence of a witness.

4. The plaintiff’s action pleads misleading and deceptive conduct on the part of the defendants on the basis that the business purchased was not worth $150000 and the annual revenue was not that as represented.  In addition the plaintiffs plead a trade restraint clause.

5. The defendant’s Local Court action in the Northern Territory relates to the failure by the plaintiffs to pay instalments of the purchase price.  I do not intend to give primacy to the fact that the defendants - as plaintiffs - have issued proceedings in the Local Court (Northern Territory).

6. Further by way of preamble an application for a stay is not ordinarily dependent on the formation of any view about the merits of the claim.  Certainly on the evidence before me the defendants intend to vigorously defend the proceedings issued by the plaintiffs.

7. I turn now to the various heading under s 20(4) of the Act.  The onus of persuasion rest on the defendant and is no more than the balance of probabilities.  The task I have is to balance the competing factors raised in evidence.

Place of residence of the parties and of the witness

1. The residence of the plaintiff and defendant is neutral.  However the defendants contend there are substantially more witnesses that are likely to be called who reside in Darwin than those who reside in Western Australia.  Many of these potential witnesses, as deposed, are listed on the basis that they can provide evidence as to business leads and business contacts.  The plaintiffs dispute that the persons named by the defendants are likely to be witnesses.  Certainly the plaintiffs intend to call two witnesses in Western Australia.  It is acknowledged by the plaintiffs that two of their witnesses do reside in the Northern Territory.

2. The defendants business was one of providing temporary employment and permanent recruitment services.  The plaintiffs allege that the defendant engaged in misleading conduct or conduct that was likely to mislead and deceive in that the business did not have the represented annual revenue nor was worth the represented value.  Further the plaintiffs allege the business had not shown any growth nor was it a profitable business.  All these matters will require evidence as to what contracts were in place and likely to be in place and this will require evidence from various witnesses.  Whilst the plaintiff may be correct when it says that the numbers would be overstated the very nature of the action will require the majority of the evidence from persons in the Northern Territory.

The place where the subject matter is situated

1. The subject matter is the sale of the business and I am of the opinion that there is nothing under this heading which tips the balance either way.

Financial circumstances of the parties

1. No evidence has been given as to the financial capacity of the parties and accordingly I make no comment under this heading.

Any agreement between the parties about the Court or place which the proceedings should be instituted

1. Clause 27 of the agreement provides:

   "GOVERNING LAW

   This agreement shall be subject to the laws of Western Australia and the Courts of that State shall have jurisdiction in relation thereto".

2. The plaintiffs counsel argues that the clause gives exclusive jurisdiction to the Western Australian Courts.  The plaintiffs counsel argues, following FAI General Ins v Ocean Marine Mutual (1996) 41 NSWLR 117 at 127 that the words "this agreement" in cl 27 conveys exclusivity as to all matters in dispute under the agreement.

3. The defendants counsel submit that cl 27 merely identifies one forum where jurisdiction is beyond dispute.  Defendants counsel submits that when one considers the course of negotiations giving rise to the agreement (Akai Pty Ltd v Peoples Insurance Co Ltd (1996) 188 CLR 418 at 425) and the fact that the agreement is a pro forma contract designed to work under a variety of circumstance and potentially enforced in a great variety of jurisdictions (Jovista Pty Ltd v Bateman Project Engineering Pty Ltd & Ors, unreported; SCt of WA; Library No 980256; 19 May 1998) then there is no exclusive jurisdiction issue.

4. The affidavits of Anderson and Overall indicate that the choice of jurisdiction was not an influencing factor, nor even a factor, in the course of their negotiations.  The affidavits of the deponents indicate that the parties did not address their minds to the questions of jurisdiction.  It was not a negotiating point nor was it a considered term of the contract.  I am of the opinion that cl 27 does no more than identify one forum which is beyond dispute.

The law that would be most appropriate

1. The issues arise under the Trade Practices Act 1974.  In my opinion nothing turns on the most appropriate law.

Whether a related or similar proceeding has been commenced

1. In my opinion the fact that there are proceedings in the Local Court (Northern Territory) do not weigh one way or the other.

Conclusion

1. In my opinion the plaintiff and defendant had no contemplation of which jurisdiction was appropriate to hear any dispute.  Clause 27 does no more than put one forum beyond dispute, but does not create any exclusivity of jurisdiction.  In my opinion, on the evidence, there will be a preponderance of witnesses in the Northern Territory.  Comment has been made in relation to the taking of video evidence, but no evidence has been put forward as to the practicalities of taking that evidence.  In my opinion as there is a preponderance of witnesses in the Northern Territory, the proceedings in this Court ought be stayed on the basis that a court of the Northern Territory would be the appropriate court to determine these matters. I will hear counsel as to the form of orders.