Australian Zircon NL v Austpac Resources NL

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   AUSTRALIAN ZIRCON NL -v- AUSTPAC RESOURCES NL [2010] WASC 166

CORAM:   CORBOY J

HEARD:   22 JUNE 2010

DELIVERED          :   24 JUNE 2010

PUBLISHED           :  1 JULY 2010

FILE NO/S:   CIV 1600 of 2010

BETWEEN:   AUSTRALIAN ZIRCON NL

Plaintiff

AND

AUSTPAC RESOURCES NL
First Defendant

ASTRON LIMITED
Second Defendant

Catchwords:

Practice and procedure - Cross­vesting - Application to transfer proceedings to the Supreme Court of New South Wales - Whether the proper law of the contract being the law of New South Wales was a sufficient connecting factor

Legislation:

Jurisdiction of Courts (Cross­vesting) Act 1987 (WA), s 5(2)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr B Dharmananda & Ms K McNally

First Defendant            :     Mr M D Howard SC

Second Defendant        :     Mr M McKenna

Solicitors:

Plaintiff:     Clayton Utz

First Defendant            :     Gadens Lawyers

Second Defendant        :     Hunt & Humphry

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

Alpha Wealth Financial Services v Frankland River Olive Co [2008] WASCA 119

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485

Bankinvest AG v Seabrook (1988) 14 NSWLR 711

Boreland v Docker (2007) ACR 90‑256; (2007) NSW Conv R 56‑182; (2007) NSWCA 94

Bourke v State Bank of New South Wales (1988) 22 FCR 378

BPH Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400

Chemeq v Shepherd Investments International [2007] WASCA 117

Dawson v Baker (1994) 120 ACTR 11

Equinox Engineering and Installation Pty Ltd v Puffin Installation Services Pte Ltd [2008] WASC 183

Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Franklins v Metcash Trading [2009] NSWCA 407; (2009) 264 ALR 15

Franklins v Metcash Trading in Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC; (2006) 156 FCR 1

Home Building Society v Pourzand [2005] WASCA 242

Investments WA v Hatton [2007] WASCA 110

James Hardie & Co Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357

Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51

Kok v Sheppard [2009] NSWSC 1262

Korner v Witkowitzer (1950) 2 KB 128

Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485

Pozniak v Smith (1982) 151 CLR 38

Resource Equities Ltd (subject to Deed of Company arrangement) v Carr [2007] WASC 246

The Movie Network Channels v Optus Vision [2010] NSWCA 111

Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36

  1. CORBOY J:  (This judgment was delivered orally on 24 June 2010 and has been edited from the transcript.)

  2. This is an application by the first defendant (Austpac), supported by the second defendant (Astron), for the transfer of the proceedings to the Supreme Court of New South Wales. The application is made pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (WA) (the Cross‑vesting Act).

  3. I have decided that the application should be…

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Details
Case
[2010] WASC 166
Decision Date

CaseChat Overview and Summary

Australian Zircon NL sought to transfer proceedings from the Federal Circuit Court to the Supreme Court of New South Wales. The basis for the application was that the proper law of the contract was the law of New South Wales, which the applicant argued provided a sufficient connecting factor for the Supreme Court to exercise jurisdiction. Austpac Resources NL opposed the application, contending that the proper law of the contract was not the only consideration in determining jurisdiction.

The court considered whether the proper law of the contract alone was sufficient to transfer jurisdiction to the Supreme Court. It examined the relevant provisions of the Cross-vesting legislation and the factors that a court must take into account in determining whether to exercise jurisdiction. The court concluded that while the proper law of the contract was an important factor, it was not determinative. Other factors, such as the location of the parties, the place where the contract was performed, and the convenience of the parties and witnesses, also needed to be considered. The court found that the applicant had not demonstrated that these other factors pointed to New South Wales as the appropriate jurisdiction.

As a result, the court dismissed the application to transfer the proceedings. The Federal Circuit Court retained jurisdiction over the matter. The court emphasised that while the proper law of the contract was a relevant factor, it was not the sole determinant of jurisdiction. The court's decision highlights the importance of considering all relevant factors when determining whether to exercise jurisdiction under the Cross-vesting legislation.

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