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Australian Zircon NL v Austpac Resources NL

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

CORBOY J: (This judgment was delivered orally on 24 June 2010 and has been edited from the transcript.)
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).
I have decided that the application should be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] WASC 166
Decision Date: 1 JULY 2010

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.

Orders