Corrs Chambers Westgarth (a firm) v Charter Pacific Corporation Ltd - [2021] WADC 114

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   CORRS CHAMBERS WESTGARTH (a firm) -v- CHARTER PACIFIC CORPORATION LTD [2021] WADC 114
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   18 OCTOBER 2021
DELIVERED          :   2 DECEMBER 2021
FILE NO/S:   CIV 2603 of 2021
BETWEEN:   CORRS CHAMBERS WESTGARTH (a firm)
Plaintiff
AND
CHARTER PACIFIC CORPORATION LTD
Defendant

Catchwords:

Practice and procedure - Application for stay - Turns on its own facts

Legislation:

Australian Consumer Law
Service and Execution of Process Act 1992 (Cth)

Result:

Stay refused

Representation:

Counsel:

Plaintiff	:	Ms J Taylor SC
Defendant	:	Mr J Entwisle

Solicitors:

Plaintiff	:	McNally & Co
Defendant	:	Patterson Houen & Commins

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

Nil

DEPUTY REGISTRAR HEWITT:

Before me for determination is the plaintiff's amended chamber summons seeking a stay of the proceedings under the provisions of the Service and Execution of Process Act 1992 (Cth) together with a condition that such stay require the defendant to commence proceedings in the District Court of New South Wales within 28 days of the order together with a number of other incidental orders. In order to dispose of the application I shall start by a review of the circumstances which have given rise to the plaintiff's claim.
The plaintiff is a firm of solicitors suing the defendant for outstanding fees totalling approximately $400,000. By its defence, the defendant alleges in essence that the services provided by the plaintiff to the defendant were negligently provided, that there was a breach of the Australian Consumer Law and that as a consequence the defendant suffered significant losses.
The plaintiff was retained by the defendant in regard to a dispute with one Christopher John Burke to enforce the terms of a share purchase agreement of companies described as Securicom (NSW) Pty Ltd (Securicom) and Microlatch Ltd (Microlatch). The objective in purchasing the shares in the companies was to obtain access to certain patents held by those companies. The engagement required the plaintiff to commence proceedings in the Supreme Court of New South Wales seeking specific performance of the share purchase agreements. The terms of those agreements made it necessary for the action to be commenced in New South Wales, however, the relevant expertise to carry out the instructions was in Western Australia where a member of the plaintiff firm, Mr David Yates, who had experience in litigation in the patent and technology field was based. Mr Yates operated out of the Perth office and as a consequence the proceedings, although conducted in New South Wales, were run through the Perth office. The defendant on the other hand is a company located in and operating from Queensland.
Notwithstanding the fact that the plaintiff and its then client were in different states and the litigation conducted in a third, the case was pursued through the court in New South Wales to an eventual judgment in favour of the present defendant. It is said by the defendant that the objective in entering the share purchase agreements and seeking to obtain specific performance of those agreements was in order to procure the ownership of certain Australian and international patents owned by Securicom and Microlatch. It is alleged by the defendant that the plaintiff failed to take steps necessary to procure the transfer of the international patents to the defendant as a consequence of which it has been put to considerable further litigation which ultimately succeeded in the objective of obtaining the ownership of the international patents but at significant expense. Although it has not yet commenced proceedings, it is clear that the defendant intends to commence proceedings against the plaintiff seeking damages from the plaintiff flowing from the matters I have mentioned. It is against that background that the application which is before me has been brought. The information put before me suggests that the amount of the proposed claim will exceed the amount sought by the plaintiff in the present proceedings. The issue is therefore, where should the action take place, and in that respect, the provisions of the Service and Execution of Process Act are relevant and underpin the application. Section 20 of the Act is relied upon to support the application and that section provides:
20Stay of proceedings
(1)This section does not apply in relation to a proceeding in which the Supreme Court of a State is the court of issue.
(2)The person served may apply to the court of issue for an order staying the proceeding.
(3)The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.
(4)The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:
(a)the places of residence of the parties and of the witnesses likely to be called in the proceeding; and
(b)the place where the subject matter of the proceeding is situated; and
(c)the financial circumstances of the parties, so far as the court is aware of them; and
(d)any agreement between the parties about the court or place in which the proceeding should be instituted; and
(e)the law that would be most appropriate to apply in the proceeding; and
(f)whether a related or similar proceeding has been commenced against the person served or another person;
but do not include the fact that the proceeding was commenced in the place of issue.
(5)The court's order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense.
It will be seen that s 20(4) sets out criteria which must be considered in deciding whether or not a stay such as that which is sought in the present application should be made. In order to properly consider that matter, it is necessary again, to have regard to the amended application which is before me. It is clear that the intention of the application is that the action should proceed in the District Court of New South Wales and I must therefore consider this application in the context of a contest between the Western Australian court and the New South Wales court.
The first matter to be considered is the places of residences of the parties and the witnesses likely to be called in the proceedings. The defendant is a Queensland company and its witnesses insofar as they can be determined at this stage reside in that state. The plaintiff is a partnership with an Australia wide reach having offices in Sydney, Melbourne, Brisbane and Perth. The witnesses likely to be called by the plaintiff reside in Western Australia. If there is any advantage to either party, it would be relatively slight but would favour Western Australia.
Next, I must consider the place where the subject matter of the proceedings is situated. It is obvious that the subject matter of the initial proceedings was the court proceedings in New South Wales, that is not to say that the subject matter of the present proceeding is in fact so situated. The subject matter of the present proceeding is the performance of the plaintiff in carrying out the terms of its retainer with the defendant. It is difficult on the information with which I am presented to know whether (a) there was such a breach and (b) if there was such a breach where it took place. If there was damage suffered it was presumably suffered in Queensland. Nothing in the consideration of those matters points very definitely towards either court in contention.
A further matter requiring consideration is the financial circumstances of the parties. As neither party advance this as a relevant consideration I shall disregard it.
The next matter requiring consideration is whether the parties have breached any agreement as to where the litigation should take place. On that score there is no agreement and it is irrelevant.
The next issue is what would be the most appropriate law. The law of tort is largely similar between Western Australia and New South Wales, save that there are likely to be some differences, probably of no significance, due to differences between the Civil Liability Acts in the respective states. My comment in regard to the law flows on to which law would be most appropriate. It is probably of no consequence which law is relevant and it is very much a peripheral issue. Insofar as the defendant's proposed claim under the Australian Consumer Law is concerned it is uniform between states and confers no advantage to either Western Australia or New South Wales.
The final point to consider is whether a related or similar proceeding has been commenced and although there is clearly such a proceeding in the offing, no such proceeding has yet been commenced.
Finally, I must disregard the fact that the action was commenced in Western Australia in my consideration as to what is the most appropriate court.
The factor which is relied upon most heavily to point to New South Wales as being the appropriate court lies in the fact that the proceedings which give rise to the claim were conducted in the courts in that state. That, however, was due to a contractual term requiring litigation to be pursued in New South Wales rather than elsewhere. That litigation has reached its conclusion and the subsequent litigation was likewise properly commenced in New South Wales because it was so intimately tied with what had gone before. None of those considerations apply in the present case. Here, I have an engagement of a firm of solicitors with the intention that the work which was required to be done to fulfill the retainer would be done by lawyers situated in Western Australia who would effectively run the case from Western Australia with occasional visits to New South Wales as and when required and in particular for the trial. The plaintiff was specifically chosen because there were lawyers within its Western Australian branch who were thought to have particular skills necessary to successfully conduct the litigation required. From my perspective I can see no advantage in adjudicating the present dispute which would be enjoyed by a court in New South Wales. The original actions are over and although they are the genesis of the present action they confer no advantage that I can see which impinges on the determination of the present action. The matter comes down to a Queensland defendant wishing to remove the action to New South Wales.
In my view the matter is finely balanced but the fact that the connection to Western Australia is marginally stronger than that to New South Wales persuades me that the action should remain in this State and the application dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
17 DECEMBER 2021