Bombardier Inc v Avwest Aircraft Pty Ltd

In the case of Bombardier Inc v Avwest Aircraft Pty Ltd, Bombardier, the appellant, sought to appeal against the decision of the District Court of Western Australia, which had refused to set aside the leave to issue a writ outside of Australia. The dispute centred on the interpretation of certain clauses in written agreements between the parties, which Bombardier argued effectively dispensed with the requirement to communicate acceptance of an offer. Additionally, Bombardier contested the choice of jurisdiction, arguing that the Western Australian court was an inappropriate forum given that key witnesses were overseas and foreign law applied to the written agreements. The primary issues for the Court of Appeal to decide were whether the primary court erred in its refusal to set aside the leave to issue the writ, and if the primary court applied the correct legal test regarding the onus of proof on the application to set aside the grant of leave to issue and serve a writ outside of jurisdiction.

The Court of Appeal found that the primary court had not erred in its refusal to set aside the leave to issue the writ. The court held that there was no basis for setting aside either the writ or the service of the writ, as the primary court had correctly determined that Bombardier had not made out an arguable case for the relief sought. The Court of Appeal further held that the primary court had applied the correct legal test regarding the onus of proof. The court emphasised that, in cases where the key witnesses are overseas and foreign law applies to the written agreements, the onus is on the party seeking to set aside the grant of leave to prove that the primary court applied an erroneous test.

Consequently, the Court of Appeal refused Bombardier's application for leave to appeal, finding that the primary decision was not plainly wrong or attended by sufficient doubt to justify the grant of leave. The Court of Appeal concluded that the primary court had correctly interpreted the relevant contractual clauses and applied the appropriate legal principles in its assessment of the jurisdictional issues. The Court of Appeal thus affirmed the decision of the primary court.