Primero Group Ltd v Wartsila Australia Pty Ltd - [2021] WASC 44

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PRIMERO GROUP LTD -v- WARTSILA AUSTRALIA PTY LTD [2021] WASC 44
CORAM:   KENNETH MARTIN J
HEARD:   28 JANUARY 2021
DELIVERED          :   22 FEBRUARY 2021
FILE NO/S:   CIV 1520 of 2020
BETWEEN:   PRIMERO GROUP LTD
Plaintiff
AND
WARTSILA AUSTRALIA PTY LTD
Defendant
WARTSILA AUSTRALIA PTY LTD
Plaintiff by counterclaim
PRIMERO GROUP LTD
Defendant by counterclaim

Catchwords:

Cross-vesting application - Application to transfer proceeding to another State Superior Court - Contract action - Construction contract dispute - Proceedings pending in South Australia raising same issues - Prior decision by South Australian Supreme Court to refuse transfer to Supreme Court of Western Australia - South Australia is natural forum - Action transferred to Supreme Court of South Australia

Legislation:

Australian Consumer Law
Building and Construction Industry Security of Payment Act 2009 (SA)
Jurisdiction of Courts (Cross-vesting) Act 1987 (SA)
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)

Result:

Proceeding to be transferred

Category: B

Representation:

Counsel:

Plaintiff	:	Mr S K Dharmananda SC
Defendant	:	Mr B C Roberts QC & Mr D F O'Leary
Plaintiff by counterclaim	:	Mr B C Roberts QC & Mr D F O'Leary
Defendant by counterclaim	:	Mr S K Dharmananda SC

Solicitors:

Plaintiff	:	Corrs Chambers Westgarth
Defendant	:	Fenwick Elliott Grace
Plaintiff by counterclaim	:	Fenwick Elliott Grace
Defendant by counterclaim	:	Corrs Chambers Westgarth

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

Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Deuble v Janet Penna by her Limited Administrator Alyce Catherine Lesberg [2021] WASC 27
Santos Ltd v Helix Energy Services Ltd [2009] VSC 282; (2009) 28 VR 595
Schmidt v Won [1998] 3 VR 435
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
Wärtsilä Australia Pty Ltd (ACN 003 736 892) v Primero Group Ltd (ACN 149 964 045) & Ors [2020] SASC 162
Wärtsilä Australia Pty Ltd v Primero Group Ltd [2020] SASC 185

KENNETH MARTIN J:

Introduction

The defendant in this local action (Wärtsilä) brings an application by its chamber summons of 22 October 2020 seeking that pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) (WA Cross-vesting Act), this proceeding be transferred to the Supreme Court of South Australia. Alternatively, it seeks the proceeding be permanently stayed. Its position as between those alternate remedies as clarified by senior counsel for Wärtsilä during the hearing of oral arguments was that its preferred remedy was a transfer order under the WA Cross‑vesting Act.
Section 5(2)(a) of the WA Cross-vesting Act, read with (b)(iii), permits this court to transfer the action to the Supreme Court of South Australia if it were 'otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State …'.
The underlying circumstances are somewhat unique given there is also on foot in the Supreme Court of South Australia, litigation as between the very same parties and which is accepted will raise essentially the same issues for resolution as present in this local litigation.

Background facts

As a matter of historic record, the Western Australian litigation was commenced first in time by the plaintiff, Primero Group Ltd (Primero) on 24 April 2020 (CIV 1520 of 2020 - the WA proceeding). The South Australian litigation was commenced later out of the Supreme Court of South Australia on 26 June 2020 by Wärtsilä, in circumstances I will explain (CIV-20-001142 - the SA proceeding).
The present transfer application is not brought pursuant to the terms of s 5(2)(b)(i) of the WA Cross-vesting Act. However, an existence of two pending actions between the same parties, raising essentially the same disputed issues is the core foundation for the alternate relief of a permanent stay, as is also sought by Wärtsilä, as its second preference relief on its application.
There appears no dispute between the parties that a wasteful duplication of resources and, even more importantly, the avoiding of a potential for different state superior courts to ultimately render inconsistent findings upon like issues as a result of two different trials (thereby bringing the administration of justice into disrepute) - must be avoided at all cost.
The current application, essentially, is over which of the two available state superior courts should resolve the parties' grievances.

The Subcontract

At the heart of the parties' disputation is a breach of contract action. More correctly, what presents is their subcontract breach dispute around issues associated with the performance of works undertaken in relation to the construction of a new gas fired power station in South Australia at the Barker Inlet situated on Torrens Island, a location some 18 km or so to the north-west of the city of Adelaide.
A head contract had been effected in early 2018 between the principal party responsible for establishing the new power station, AGL Barker Inlet Pty Ltd as trustee for the Barker Inlet Trust (AGL) and Wärtsilä. Wärtsilä essentially, as head contractor, then proceeded to contract further by way of a subcontract with Primero, engaging it, in effect, to perform some of the required works for the establishment of the power station. These arrangements were embodied in a wholly written Subcontract for the performance of civil, mechanical and electrical works and to supply of tanks, perfected on 18 April 2018 (the Subcontract).
The Subcontract is a written agreement which presents in typically dense fashion across some 181 pages containing 18 schedules (see the affidavit of Mikko Piekkala affirmed 19 October 2020 (Piekkala affidavit), attachment MP-1).

History of the disputes

Subsequently, there has emerged a series of contract disputes as between Wärtsilä and Primero, around issues of time delays, key events and payment.
Whilst undertaking the works, Primero submitted various claims for moneys to Wärtsilä which it contends remain due and owing to it by Wärtsilä for the works carried out in the construction of the Barker Inlet power station.
It appears that the works, for various reasons, have been the subject of delays.
Consequently, Primero has claimed extensions of time under the Subcontract. Correspondingly, Wärtsilä has largely rejected such extension of time claims by Primero and countered, seeking to invoke provisions of the Subcontract to impose liquidated damages sanctions against Primero by reason of the delays.
The dispute has been simmering between the parties for some time. Each side has engaged lawyers and counsel. Vast amounts of lawyer correspondence raising claims and counter contentions looks to have been exchanged. In the main, Wärtsilä has engaged lawyers in South Australia, namely, Fenwick Elliott Grace. On the other hand, Primero has been represented by Western Australian lawyers, initially by Jackson McDonald then subsequently, by its present lawyers of record, the Perth branch of Corrs Chambers Westgarth (Corrs). Corrs, of course, is a nationally operating Australian law firm.
Over time there have been efforts involving parties and their lawyers, sometimes on an interim basis, to resolve the multiple construction disputes arising between Wärtsilä and Primero. Some of these efforts culminated in settlement agreements of an interim character - under which some claimed funds were paid over by Wärtsilä to Primero, albeit on a conditional basis - pending a final evaluation of those Primero claims for extra remuneration.
In that environment of interim payments, further disputes have later arisen over amounts which Wärtsilä now contends ultimately it has, in fact, overpaid to Primero and which it seeks to recover. For its part, Primero presses its demands for the payment of substantial claimed funds it says still remain due and unpaid to it by Wärtsilä.

The WA proceeding

Under Primero's writ of summons filed in this court on 24 April 2020, by the endorsement to the writ, Primero was initially seeking only declaratory final relief against Wärtsilä - towards the proper construction of certain extension of time provisions in the Subcontract and as to Primero's entitlements under the Subcontract.
But by a detailed statement of claim lodged on 24 September 2020, Primero expanded the terms of the relief claimed beyond mere passive relief declarations, to seek then, the claimed amount said to be due, of $95,436,828 (prayer for relief B) as the total amount due under the Subcontract. That claim was for what Primero characterised as milestone payments, variations (direct costs), variations (indirect costs), variations including materially different work (disruption), remeasurement of the bill of quantities, delay costs, bonus payments, conditional payment and materially different work. Primero also sought damages pursuant to s 236 of the Australian Consumer Law.
By an amended statement of claim (ASOC), filed only the day before the hearing of the present application on 27 January 2021, Primero adjusted its money claim downwards somewhat. Specifically, the sum claimed from Wärtsilä was revised downwards on a basis of newly seen pleas (ASOC par 46B). These pleas were to the effect that on 3 December 2020 an adjudicator, upon Primero's adjudication application of 21 October 2020 submitted under the Building and Construction Industry Security of Payment Act 2009 (SA) (SOP Act), had awarded Primero $10,579,644.51 in respect of its reasonable additional direct costs claim arising from variations. That amount was then paid by Wärtsilä (ASOC par 46C).
Primero however, claims by the ASOC, that substantial claimed moneys still remain unpaid to it.
Under the ultimate prayer for relief as is now seen in the ASOC, Primero seeks a revised sum of $78,015,260.24 from Wärtsilä as the total amount of its outstanding claims under the Subcontract (prayer for relief B).

Four significant matters

It is opportune to mention early the following four matters of strategic significance to the present application by Wärtsilä seeking the transfer of the WA proceeding to the Supreme Court of South Australia.
First, the written Subcontract perfected as between Wärtsilä and Primero displays what is an express choice by the parties that the governing law of that Subcontract will be the laws of South Australia.
Clause 41.1(a) of the Subcontract identifies the parties' choice of governing law as being 'the laws of the jurisdiction set out in Item 33 [of Schedule 1]'. Item 33 in turn refers to South Australia.
There is also in the Subcontract a non-exclusive and irrevocable submission to the courts exercising jurisdiction in the State of South Australia by cl 41.1(b), which concludes:
Each Party irrevocably waives any objection to the venue of any legal process in those courts on the basis that it has been brought in an inconvenient forum.
There is also a rather elaborate dispute resolution clause stipulating for prior negotiation and for other pre-requisites, before a resort to litigation is permitted as between the contracting parties (see cl 34).
I emphasise that those factors that I now identify as to the choice of law and curial jurisdiction are indicative factors only, rather than determinative factors in the present application. As regards a choice of forum/jurisdiction clause, it is explicitly plain that even when under an exclusive choice of jurisdiction, that such a clause will not necessarily be determinative. Ultimately the terms of the relevant cross-vesting statute prevail.
Second, upon the evidence relied on in the current application, neither Primero nor Wärtsilä present as, or contend to be, corporations that are exclusively domiciled within, or are said to be doing business exclusively within any particular Australian state. Each corporation then, within their respective spheres of business operation, carries out high value project work across Australia, and to that end, attending with resources wherever the project work presents and requires them to work.
Wärtsilä is a local Australian subsidiary of an international energy infrastructure delivery corporation that is ultimately based in Finland. In terms of Australian work through the local subsidiary, Wärtsilä looks to have closest residential ties its industrial premises in Huntington, New South Wales. However, Wärtsilä had moved personnel and infrastructure resources to South Australia, in order to carry out the work associated with the construction of the Barker Inlet power station.
The plaintiff, Primero Group, as its name suggests, is part of a corporate group of entities performing engineering work in sophisticated resourcing projects across Australia, particularly in the energy industry. Geographically, it looks to have closer ties to Western Australia then Wärtsilä, where Primero it carries out a significant amount of work in the mining industry, particularly in the Pilbara region of the state.
Hence, each corporation, relatively speaking, is a sophisticated and well-resourced commercial entity operating across Australia, as different project work presents as an opportunity to be done from time to time, by engaging and deploying flexible workforces and management personnel as required. Each entity, in effect, is a heavyweight within its respective industry and sphere of business.
A need for a significant, energy efficient power station in South Australia under the auspices of AGL, saw both Wärtsilä and then Primero effectively deploy significant senior personnel and resources to South Australia and, in particular, to the site of the 'to be' constructed Barker Inlet power station, in order to progress and implement those project works.
As the completion of the power station work drew to a conclusion, many of the engaged personnel, particularly of Primero, effectively then relocated back to other jurisdictions around Australia. In the case of Wärtsilä, three or more of its senior management have gone back to Finland in order to do other work. Primero has essentially demobilised from the Barker Inlet and now, essentially, has no operative personnel remaining in South Australia. Wärtsilä looks to retain some minimal management personnel engaged there. See the affidavit of Dean Ercegovic sworn 9 November 2020 (Ercegovic affidavit) at par 92.
Third, in terms of the two subsisting state Supreme Court actions, it is the case historically that on 24 April 2020 Primero, as plaintiff, commenced the WA proceeding first against Wärtsilä, as defendant, then seeking interlocutory injunctive relief. Primero's action reached me in urgent circumstances that day last year, just before the national Anzac Day holiday. At the time, the immediate focus of the action was to obtain urgent interlocutory relief for Primero to then restrain Wärtsilä on an interim basis (later extended) by interlocutory injunction against a feared threat of Wärtsilä immediately calling on the payment under a performance bond security given to it by Primero under their Subcontract arrangements.
It had been explained to me at the urgent hearing of 24 April 2020 that the parties had then been in significant dispute for some time over contentions of delay, rejected claims for extensions of time and counterclaims for liquidated damages - all prevalent issues.
At the same time, Primero had also then been seeking to obtain summary relief against Wärtsilä under the SOP Act in South Australia by an adjudication. Primero served such a claim on Wärtsilä under s 13 of that legislation, on 2 March 2020.
Ultimately, that claim became the subject of an adjudication determination of 27 April 2020 rendered under the SOP Act in favour of Primero in an amount of $15,269,674.30 (ex GST) plus interest and adjudication costs.
Faced then with that adverse determination under the SOP Act, on 6 May 2020 Wärtsilä had commenced judicial review proceedings against the adjudication decision, against Primero out of the Supreme Court of South Australia (the judicial review proceeding). Under that application Wärtsilä sought to quash the determination of the adjudicator, on the basis that the claim had lacked any valid reference date. That was a statutory pre-condition to the making of a valid claim under s 8 of the SOP Act.
The judicial review proceeding was duly heard before Stanley J in the Supreme Court of South Australia on 27 and 28 May 2020.
On 2 September 2020, Stanley J provided reasons upholding the challenge against jurisdiction and duly quashed the adjudication determination: see WärtsiläAustralia Pty Ltd (ACN 003 736 892) v Primero Group Ltd (ACN 149 964 045) & Ors [2020] SASC 162). Orders were made for a payment of moneys back to Wärtsilä. Funds had been paid into court in South Australia, pending the result of those review proceedings in the South Australian Supreme Court.
Back in the Supreme Court of Western Australia, after my granting of the initial interim relief, I had granted further orders on 6 May 2020 and then on 30 July 2020 enlarging and varying those initial orders to encapsulate a restraint against any further potential calling of the performance security bonds by Wärtsilä under a different demand. After that, the litigation in Western Australia effectively, at the behest of both parties, did not progress, pending an awaiting of the outcome of the judicial review proceeding in the Supreme Court of South Australia.
No timetable for the exchanging of pleadings and/or dealing with other interlocutory issues prior to trial was provided in the local action. Instead, the parties sought orders which were ultimately issued by consent, suspending for a time the exchange of pleadings. The motivation to that end was explained to me by reference to the awaited outcome of the judicial review proceeding, which had been commenced, but had then not yet been heard.
A key point of emphasis emerging from all these events, however, is that in terms of various territorial connections with the overall dispute, Primero had, as was its right, deliberately chosen to invoke the SOP Act as a relief mechanism towards it obtaining, at least, some interim relief against Wärtsilä. That South Australian legislation effectively has a counterpart with the local Construction Contracts Act 2004 (WA). Such relief legislation is present in somewhat different forms across the Australian states and territories, directed at protecting the interests of parties performing construction work under interim payment obtained summarily. The policy object is to assist against construction claimants, in effect, being 'starved' of the funds otherwise due to them for performed works and thereby against them being driven into insolvency, or an early capitulation before a fully ventilated construction claim dispute can be substantially resolved upon its merits under full scale litigation or arbitration.
Once Primero obtained urgent interlocutory injunctive relief in this court - which I note remains in place - restraining Wärtsilä from taking steps to call upon the performance bond security it holds vis-à-vis the obligations of Primero, it was essentially then for the parties to advise the court of an appropriate timetable to advance the progress of the WA proceeding to trial. Under case management rules of the Supreme Court of Western Australia (see the Rules of the Supreme Court 1971 (WA)), parties are required via their legal representatives to confer upon such issues. Here, they obviously did. In the end, there looked to be no real controversy between the parties over a timetable in the local action being deferred in its progress, to await events of the judicial review proceeding.
Thus, at the end of July 2020, these parties were essentially content for there to be a pause in the WA proceeding, pending an unfolding of events in South Australia around Wärtsilä's judicial review proceeding concerning the fate of the adjudicator's determination of Primero's summary claim under the SOP Act for $15.2 million or thereabouts.

It is no criticism at all of the parties that they took that course locally. Indicatively, however, any real progress in the WA proceeding was then consensually deferred, in deference to awaiting the outcome of the pending judicial review proceeding in South Australia. That is some indication of the parties' priorities at the time, being elsewhere than in the Supreme Court of Western Australia.
Fourth, I should indicate, in reference to the substantive SA proceeding already mentioned, that on 26 June 2020, Wärtsilä had issued a statement of claim commencing its action against Primero. Wärtsilä sought first, the reimbursement of a proportion of an interim payment made on account to Primero upon the basis of a contended excess moneys being owing to Wärtsilä. Secondly it sought the payment of liquidated damages, by reason of an alleged failure of Primero to complete key events at key dates as specified under the Subcontract in relation to the power station works.
Primero looks to have been aggrieved by a commencement of that South Australian Supreme Court action by Wärtsilä. This is in circumstances where Primero contends that it was given, in effect, no warning at all of a likely commencement of the SA proceeding, and further that the antecedent dispute resolution prerequisite requirements in the Subcontract were not engaged or, at least, not fully engaged with prior to the commencement of that action in the South Australian Supreme Court.
Primero also complains, in effect, that there was no real communication to it, by Wärtsilä, of any expressed concern by it over the appropriateness of the (then albeit inactive) WA proceeding it had earlier commenced.
Subsequently, Primero, on 16 July 2020 filed its own interlocutory application in the SA proceeding, seeking orders to compel a transfer of Wärtsilä's action to the Supreme Court of Western Australia and/or a stay of that South Australian proceeding.
Primero's application for transfer was made, effectively, under the counterpart provision in the uniform South Australian Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) (SA Cross-vesting Act), that is akin to the provision as is currently being relied upon now by Wärtsilä under the WA Cross‑vesting Act to ground the present transfer application.
Primero's application for transfer was opposed on that occasion. It came to be heard by Bampton J in the Supreme Court of South Australia on 2 September 2020.
On 1 October 2020, her Honour delivered reasons for decision, effectively refusing the transfer of the South Australian litigation to the Supreme Court of Western Australia: see Wärtsilä Australia Pty Ltd v Primero Group Ltd [2020] SASC 185. At the concluding component of her Honour's reasons (see par [77]), her Honour's decision reached against a transfer was expressed to be influenced by her Honour's assessment that the application for transfer by Primero was either made prematurely or was premature, given the relative infancy, in effect, of the action in the WA proceeding.
In large part, that observation, undoubtedly correctly made, was attributable to the fact that at that time, had been no pleadings at all filed in the WA proceeding, in order to provide a comparison of relevant issues raised, as between the two actions.
It is the case, however, that in the course of the transfer application Primero provided what was then its draft proposed statement of claim in the WA proceeding. It is said that this draft pleading was in terms closely akin to the statement of claim, as was subsequently filed in the Supreme Court of Western Australia, on 24 September 2020 (subsequently, of course, amended in the terms of the ASOC).
Primero is also aggrieved (there being no appeal against a transfer or refusal to transfer decision under the cross‑vesting regime - see s 13 of the WA Cross‑vesting Act) that Wärtsilä, as it saw matters, had shifted ground rather significantly in terms of a seeminlgy late acceptance of the commonality of issues as between the two actions.
Primero contends, in effect, that Bampton J was told by Wärtsilä that albeit the parties were the same, it could not be said (then) with any degree of assurance (absent any pleadings in Western Australia) that the two actions in the different states raise substantially the same issues. Against that, Primero points to its draft statement of claim put before the court upon the South Australian transfer application, to contend that the SA proceeding, viewed by reference to Wärtsilä's statement of claim, is essentially a mirror reflection of the issues presenting in the WA proceeding, albeit pleadings were still then deferred under the consent orders I had issued at the behest of both parties, on 28 April 2020. Primero points to a different position articulated on the present transfer application by Wärtsilä to this court, where there is no contention at all that the same issues effectively arise in both State Supreme Court actions.
Uniquely, however, the scenario for the present transfer application as now advanced by Wärtsilä under the WA Cross‑vesting Act, is being advanced in circumstances where in the Supreme Court of South Australia on 1 October 2020, has already refused what was the earlier transfer application by Primero made in that court under the SA Cross‑vesting Act. The position reached then is that the SA proceeding will be staying and no doubt advancing to a trial in the Supreme Court of South Australia, one way or the other.
In terms of the progress to date of the SA proceeding, it appears that the parties have exchanged a series of pleadings, but discovery has not yet been given on either side. This was explained for Primero in the affidavit of Rachael Elizabeth King affirmed on 10 November 2020 (King affidavit) (see pars 46 - 50).
In the WA proceeding, the pleadings on both sides did appear to be substantially advanced, albeit not finalised. Nevertheless, I have mentioned that there has emerged the ASOC of Primero, filed the day before the hearing of the present application. That development potentially opens up the pleadings again. Earlier on 22 October 2020, Wärtsilä filed a defence and counterclaim in the local litigation (along with its application for the stay or transfer of the WA proceeding to South Australia). Primero then filed a reply and defence to the counterclaim of Wärtsilä in the local action, on 9 November 2020.
In terms then of overall comparative progress towards a trial in the respective courts, the state of the interlocutory advancement of the WA and SA proceedings at this time looks to be relatively aligned. Neither action has yet been listed for a trial in either court.

Materials relied upon for the present application

Affidavits

For the purposes of determining the present transfer and stay application made by Wärtsilä, in this court, two affidavits each were essentially relied upon on by each side.
Wärtsilä read and relied upon the affidavit of Jordan David Schulz, sworn on 22 October 2020. Mr Schulz is the lawyer partner of the solicitors of record for Wärtsilä, Fenwick Elliott Grace. The other affidavit read and relied upon by Wärtsilä is the Piekkala affidavit. Mr Piekkala is a senior contract manager with Wärtsilä Finland Oy, the parent company of Wärtsilä Australia. Neither deponent was cross‑examined.
Resisting Wärtsilä's transfer application, Primero relied upon the King affidavit. Ms King is the Corrs Chambers Westgarth solicitor partner for Primero. She relates that Corrs have been instructed by Primero since about February 2020 in relation to their disputes with Wärtsilä. Prior to that, another local Perth law firm, Jackson McDonald, had also been instructed from around late 2019 in relation to payment disputes with Wärtsilä under the Subcontract.
For Primero, the other affidavit it read and relied upon was the Ercegovic affidavit, by its Executive Director and Chief Operating Officer.
Again, there was no requirement for Ms King or Mr Ercegovic to be cross‑examined on their respective affidavits. No objections were taken on either side against any of the affidavit material provided for the purposes of the present transfer and stay application of Primero.

Written submissions

Under case management directions I earlier issued for the hearing of the present application, Wärtsilä as applicant, filed comprehensive written submissions on 19 November 2020. Those written submissions were then responded to under Primero's equally comprehensive written submissions resisting Wärtsilä's application filed on 26 November 2020.

Legal principles

Albeit there was no controversy at all between the parties over the relevant legal principles underlying the present transfer and stay application, it is necessary to briefly observe upon certain aspects of the leading High Court authority upon transfer applications made under the national cross‑vesting regime - by reference to BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 (BHP Billiton).
In that appeal, the significant error of principle identified by the High Court was effectively an error of the first instance decision maker in affording any weight at all to the jurisdiction within which the litigation the subject of the transfer application had first been commenced. Whilst at common law a Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 a 'forum non conveniens' approach is found applied by reference to a 'clearly inappropriate forum' test, the national cross-vesting legislation delivers a wholly different regime of prioritisation as between rival Supreme Court forums across Australia. Effectively, what is required under the WA Cross-vesting Act is a 'nuts and bolts' management decision, underlying the expressed criteria of s 5(2)(b)(iii) and to be made by reference to the overall 'interests of justice', as regards a relevant proceeding being determined by a Supreme Court of another state or territory.
In BHP Billiton, Gleeson CJ, McHugh and Heydon JJ referred with approval to earlier first instance observations by Street CJ in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 (where the phrase '"nuts and bolts" management decision' has its origin (see [13])). Their Honours explained:
[14]In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court 'shall transfer' the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.
[15]The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff's lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff's lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality. If a plaintiff in the Tribunal were near to death, and, in an application such as the present it appeared that the Supreme Court to which the transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interests of the defendant in such benefit as it might obtain from the plaintiff's early death. The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases.
[16]On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater significance to one rather than the other. The advantage which a plaintiff might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to a defendant. The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party.
...
[19]In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant is in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications.
Consequently, upon undertaking an evaluation of a transfer application as required under the WA Cross-vesting Act, a court tasked with determining the application for the transfer of its own action must commence from a position of complete neutrality - in terms of choosing as between the respective merits or demerits of rival competing curial forums. The transfer court merely determines which forum, in the overall interests of justice, is the more appropriate for the singular determination of the parties' dispute.
Following the High Court's decision in BHP Billiton, there have followed many first instance transfer decisions delivered under the national cross‑vesting regime upon transfer applications as between the nation's superior courts. Each must invariably present its own set of unique facts and considerations. Thus, there is little point canvassing again a plethora of first instance decisions. A selection will be found collated and discussed by Thomson J, Warnick LA and Martin KJ, in Commercial Contract Clauses: Principles and Interpretation (3^rd ed, 2019) pt 3, commencing at par [85610] and following.

Determination upon Wärtsilä's transfer application

A unique consideration

Upon the present transfer application, the factual circumstances of existing Supreme Court litigation in the jurisdiction where this local action is now sought to be transferred, as between the same parties and which raises, effectively, the same disputed issues, coupled with an earlier cross‑vesting transfer application that has historically already made and determined against Primero, is unique.
Nevertheless, this is a two forum circumstance which was discussed somewhat under obiter observations of Byrne J in a Victorian Supreme Court first instance decision, Santos Ltd v Helix Energy Services Ltd [2009] VSC 282; (2009) 28 VR 595 (Santos). The decision had not been referred to in Wärtsilä's written submissions, but was raised later with the court, the day before the hearing by senior counsel for Wärtsilä. Significant reference was then made to its observations during oral arguments from senior counsel on both sides.
In particular, reference by senior counsel for Wärtsilä was made to the observations by Byrne J at [15], concerning a potential for an anti‑suit injunction - rendered thereby reference to earlier observations of Ormeston JA in Schmidt v Won [1998] 3 VR 435.
Subsequent reference (at [23]) was also made to the Pegasus litigation. Particular emphasis was made by counsel in directing the court to Byrne J's observations at [27], concerning the force of a decision first made against a transfer application in an Australian court of another state or territory or jurisdiction, on the basis the local jurisdiction was considered to be the appropriate one. His Honour then observed at [27]:
… [T]he judge in a jurisdiction where another proceeding dealing or capable of dealing with the same issues had been commenced, would readily stay its own competing proceeding. Such a decision would not be based on the Voth principles apposite to conflicts in an international arena, it is based upon federal comity and upon a respect for the cross‑vesting regime.
Byrne J had continued at [28] - [31]:
But the question of a stay would not arise until a party to the other proceeding moved the judge to grant that relief. Until this is done, the other court may see itself duty‑bound to deal with the other proceeding with which it was seized. It would, of course, not progress that other proceeding unless a party sought this. In so seeking, that party is, in effect, dissenting from the adverse decision of the first court - a situation which ought not to occur.
Accordingly, in a case where there are two competing proceedings in two jurisdictions within the cross-vesting regime and a judge in one jurisdiction refuses to transfer the local proceeding, because in the interests of justice, the local court is seen as more appropriate, it would not be unreasonable for the judge to make enquiry of the parties seeking an assurance or an undertaking that they would agree to a stay or at least to take no further step in the other proceeding. If there was any risk that this course would not be taken, it would be but a consequence of the decision not to transfer that there be granted an anti-suit injunction in order to ensure that this decision was given effect to.
This is consistent with the spirit and intent of the cross-vesting legislative regime. It places the decision as to the forum in the hands of the judge of the court in which the proceeding to be transferred has been commenced. The judge is to approach that question in a practical, 'nuts and bolts' way, without any disposition to favour the local court or indeed any court. And, significantly, there is no appeal. This suggests that the legislatures were confident that the judges would ensure that 'cases were heard in the forum dictated by the interests of justice' and that the parties, particularly the unsuccessful party, would accept this essentially pragmatic decision.
The granting of an anti-suit injunction should then be seen, not as an intrusion upon the processes of the other court, nor as a reflection upon the competence of the other court, nor as any criticism of the other court for accepting the other proceeding or for progressing it. Rather it is but a practical order made in aid of the underlying decision made under the cross-vesting legislation as to which court is the more appropriate.

Those observations from Santos are of some moment towards the present application. Nevertheless, for the present I propose to quarantine, as a separate factor, the historic refusal by Bampton J on 1 October 2020 of Primero's transfer application concerning that SA proceeding to Western Australia.
I take that isolating approach, essentially for two reasons. First, as revealed by her Honour's reasons, particularly at [77], a significant component of the reasoning against transfer looks to be grounded on the basis of a determination that the transfer application as it was made then by Primero, was prematurely made. Second, I have not been informed of any anti‑suit injunction that has been applied for or issued out of the Supreme Court of South Australia against Primero, in terms of an order inhibiting Primero against progressing the WA proceeding.
For the moment then, I prefer to isolate the earlier unsuccessful transfer application factor as a consideration, so I can weigh all the other considerations as a part of the nuts and bolts management decision that is required concerning the possible transfer of the WA proceeding to the Supreme Court of South Australia at Wärtsilä's behest.

Evaluation of other considerations towards whether to transfer or not

Ultimately, I have reached the position where, for the reasons as canvassed below, this WA proceeding, in the overall interests of justice, should be transferred to the Supreme Court of South Australia. Once transferred it can either be consolidated with the existing SA proceeding, or be concurrently case managed to a trial in conjunction with that local action, as is deemed appropriate towards the overall efficient case management of all the underlying disputes towards one trial.
Essentially, for the reasons mentioned below, I reach that transfer position, whilst isolating, as I have said, the prior refusal to transfer decision away from the overall evaluation, for the moment.
First, in my view, the underlying contractual dispute is obviously more geographically proximate to South Australia, having regard to the underlying project context of the construction of a new power station at the Barker Inlet on Torrens Island. Geographically, the subject matter of the dispute is more proximate in this South Australian energy infrastructure project.
Demonstrably also, the project is an important strategic infrastructure delivery project concerning the construction of an energy producing asset bearing upon the eventual delivery of essential energy provision infrastructure for the benefit of the people of the State of South Australia.
Second, at root, the dispute between the parties is a contract breach dispute, where the chosen proper law of the Subcontract, as seen, has been expressly designated by the Subcontract as the law of South Australia. There is, as well, a non-exclusive choice of jurisdiction for the courts of South Australia made by the parties as under that Subcontract. The parties' chosen proper law for their contract and the resultant nexus to South Australia reinforces that location as the natural curial forum for the resolution of the parties' Subcontract disputes. That, of course, is not to say that this or, indeed, any of the ensuing considerations are necessarily determinative or overwhelming. They are evaluative considerations to be weighed up and balanced on an overall rating scale. Nevertheless, the express choice of law and jurisdiction are a healthy pointer towards reinforcing South Australia as the natural forum for the present dispute.
Third, both Wärtsilä and Primero as well‑resourced disputants, are sophisticated commercial project operators. They manifest highly flexible and mobile management personnel and workforces who can be deployed, essentially on a FIFO basis as required, to participate in significant project work wherever that project work might take them across Australia. An essential commercial mobility so as to meet the exigencies of a project is their mode of doing business. The present disputes arise out of their Subcontract which governed that project work. A resolution of the emerging disputes by litigation over that Subcontract application to their relationship calls for a deployment of the very same flexible and mobile approach by making their personnel available as expert or non‑expert witnesses or otherwise as is required to travel in terms of achieving a resolution by litigation, if ultimately required. The commitment to travel is merely an aspect of finalising the relationship under their Subcontract to the extent that there remains disputation.
Fourth, the parties' present Subcontract dispute is perfectly capable of being determined swiftly, justly, fairly and appropriately, in the Supreme Court of South Australia. No‑one suggests otherwise upon the materials before me. Both parties essentially contend only for convenience factors on either side towards litigating the dispute, either in the Supreme Courts of either South Australia or in Western Australia. These are only matters of convenience, not forensic prejudice towards participating in a trial.

Factors of convenience

The parties' assembled affidavits have been directed towards the usual rival location arising issues, including pointing to the rival geographic locations of the parties' lawyers or counsel, the parties' respective bases of operations across Australia, with Primero doing business more predominantly from Western Australia and with Wärtsilä essentially more geographically located in Huntington, New South Wales.
Wärtsilä also contends that the issues in the litigation may render it appropriate for the trial judge, with counsel, to undertake a view of the Barker Inlet power station site to facilitate a better understanding of issues in the trial. Primero's contention is that any need for a view is overblown, as the case turns essentially upon a large number of documents and the evidence of witnesses, so that a court is unlikely to be assisted by undertaking a view of the site.
There are considerations going each way over such issues as regards expert and non-expert witnesses, and as to the end need for a view.
Also raised, as usual, are the geographic locations of potential trial witnesses. This factor is invoked towards the consideration of personnel who were respectively once engaged in the Barker Inlet power station project and about whom it is now speculated might be needed as trial witnesses, should the matter proceed to a trial. Both sides say they have also, as is usual, engaged experts - with two such experts engaged by Primero based in Perth and one in Brisbane. For Wärtsilä, it has engaged experts from other states.
As regards the location of expert and non-expert witnesses, I do acknowledge such considerations going to convenience. But overall, I can attribute only minimal weight to such considerations. My own experiences in conducting commercial civil litigation throughout last year during a COVID-19 afflicted 2020 have demonstrated how effectively evidence can be taken in trials by utilising remote audio visual linkages. The otherwise disruptive ramifications of the pandemic in many quarters has nevertheless stimulated progress and seen rapid advances by Australian courts concerning the wider use of remote trial evidence facilities on an almost daily basis, including for expert evidence via video-link technology.
Such rapid advances in remote evidence taking from witnesses would perhaps have been thought unlikely only 18 months ago - but now, essentially, they are commonplace and in my own experience, highly efficient. The swift development of video-link technology (such as Microsoft Teams, Zoom or court based technology) to facilitate remote connections as between courts to locations across Australia and, indeed internationally, has progressed immeasurably in use across and following 2020 in commercial civil case management and trials. This was particularly so in civil in Western Australia.
A now commonplace and widespread use of remote evidence taking technology in civil to receive the evidence of witnesses, including from expert witnesses in a trial, in my experience is overwhelmingly effective. Despite some initial reservations in quarters over what were feared detrimental impacts by not being able to 'eyeball' a particular witness in 'the flesh', so as to render determinations concerning credibility, such trepidations have largely proved unfounded for civil cases. Important trial witnesses, including experts, have routinely been very effectively led and cross-examined in trials over the last 12 months, given COVID-19 induced travel constraints, by effectively using video-link technology to and from locations across Australia.
Of course, I note that not everyone has shared a universally positive experience in the use of video-link technology in court proceedings. To this end, I note the recent observations in Deuble v Janet Penna by her Limited Administrator Alyce Catherine Lesberg [2021] WASC 27 at [71], where her Honour speaks of the disruptions due to audio and vision when using technology that causes the inevitable adjournment of proceedings. Nevertheless, on balance, I am of the view that the greater use of remote linkages technology to allow for the remote receival and reception of trial witness evidence, including expert evidence, is overall a beneficial and cost effective development. Its availability as another factor weighs in favour of the present proceedings being transferred to the Supreme Court of South Australia.
The construction dispute between Primero and Wärtsilä around the Barker Inlet power station, on its face, presents as a rather typically dry construction dispute over a vast sum of claimed money due, delays, disputed extensions of time claimed but rejected and counterpart claims by Wärtsilä for liquidated damages for failure to meet key time lines in the project or the like.
For such large construction arbitrations or litigation disputes, my experience is that massive discovery exercises leading to the trawling over of vast amounts of electronic materials, sadly, are to be expected. Frequently, however, the central issues presenting in such disputes can narrow before trial. Witnesses once thought to be necessary are jettisoned just before the trial, or agreement is sensibly reached that much witness evidence will be received in writing without requiring attendances for cross‑examination. Typically, such major construction disputes in my experience tend to narrow to their absolute essence closer to trial. In the process, more construction actions look to me to settle prior to trial than are ultimately litigated.
At trial of course, there may be several witnesses that will present as requiring an essential finding of credibility, sufficient to possibly justify the required in person attendance. Nevertheless, these days, credibility findings required in commercial cases are largely reached holistically, contextually and by reference to what normally presents as a surrounding rainforest of contemporary electronic documents all marshalled together around a key witness's evidence.
Here, Primero contends that it wishes to adduce trial evidence from over 20 potential non-expert witnesses, all variously located around Australia or overseas, none of whom are now located in South Australia. Its lawyers are based in Western Australia, as is their senior counsel. Nevertheless, Corrs, as the lawyers of record for Primero, is an Australian firm and holds itself out, essentially, as a national practice. Plainly, it holds the resources and flexibility to competently represent the interests of its clients in high level commercial disputes arising anywhere across Australia.
If it were ultimately thought to be inappropriate for Primero's senior counsel to appear remotely at trial in the Supreme Court of South Australia, then a trip interstate within Australia (particularly as between Western Australia and South Australia where COVID-19 interruption to travel to date has been minimal that is, as matters currently stand in February 2021), is a more manageable travel task perhaps than for common law jurisdictions anywhere else.
As to the question of a view, my assessment is that it is inappropriate and far too early to be forming any reliable final conclusions over that issue. The litigation is still unfolding before any trial in either place. Pleadings have just closed (or are likely to be closing shortly) in both jurisdictions. Ultimately, it will be a decision for whoever is to be trial judge to decide whether they would be assisted or otherwise by undertaking a view. It would be unwise at this time to sweep aside the option from the discretion of a fully briefed trial judge after the trial has been opened.
Consequently, for all the reasons which I have now canvassed collectively, I am ultimately persuaded on the balance that it is the WA proceeding, which essentially raises the same issues as manifest in the SA proceeding, that would be more appropriately dealt with by the Supreme Court of South Australia - with that state jurisdiction as the more natural forum to this underlying Subcontract dispute. Such a transfer, in my assessment, is the necessary conclusion dictated in the interests of justice, pursuant to s 5(2)(b)(iii) of the WA Cross‑vesting Act.

An extra consideration

My conclusion as to a transfer was of course reached without taking account of the further factor that I had isolated until now, namely, the failed cross-vesting transfer application by Primero in the Supreme Court of South Australia. Nevertheless, I will now render some additional observations, incorporating that extra factor, by reference first to some the observations by Bampton J.
In her Honour's decision in Wärtsilä v Primero [2020] SASC 185, she concluded at [77]:
Having regard to the submissions and the affidavit evidence, I am of the view that Primero's application for transfer at this stage of the inchoate proceedings is premature. Further, I consider that the alternative form of relief sought in the form of the stay is premature and arguably would, as submitted by Wärtsilä, replicate the negotiations that have occurred already. (emphasis added)
As seen in the two sentences cited above, prematurity was a significant consideration, in light of the observed upon 'inchoate' WA proceeding at that time. Because the decision was so influenced upon the basis of prematurity, I am ultimately disinclined to give too afford weight to the abuse of process considerations as were urged upon me by senior counsel for Wärtsilä.
I have already referred, of course, to observations made by Byrne J in the Santos decision, which were heavily emphasised by Mr Roberts QC for Wärtsilä, effectively contending that an issue of an anti-suit injunction against Primero from it continuing with the current WA proceeding is called for here or, alternatively, an order for a permanent stay of the present local action.
Whilst I of course respectfully acknowledge and endorse the observations by Byrne J concerning the potential significance as a factor of a prior rejected application for transfer under the national cross‑vesting regime, the current situation presents to me as somewhat different. Here, the anterior decision made against a transfer was reached, and was heavily expressed to be reached, upon the consideration of prematurity.
Each case concerning a contested transfer application under the cross‑vesting legislation, of course, necessarily its own presents different facts. Each application then requires a bespoken evaluation. Theoretically, here, applying Byrne J's observations, it would have been open to Wärtsilä to apply in South Australia to obtain an anti-suit injunction against Primero, in the wake of that decision made against a transfer by Bampton J on 1 October 2020. No such application has been made. Nevertheless, it is plainly in the overall interests of justice that only one Supreme Court of Australia proceed with hearing a trial of the dispute prevailing as between these parties and raising essentially the same issues in two courts at this time.
Were I to incorporate the extra factor, it would, if anything, only strengthen the end determination that the Supreme Court of South Australia is the appropriate forum for all the parties' Subcontract disputes to be resolved in one place together.

Conclusion and orders

Consequently, I propose to order the WA proceeding be transferred to the Supreme Court of South Australia. First, however, I will publish these reasons for the decision, to allow the parties to digest them and then to confer in terms of agreeing hopefully, upon appropriate orders giving effect to the decision. A short conferral process to that end should unfold over a period not exceeding 7 days from the publication of these reasons.
Upon the question of costs, I will hear the parties, if necessary. Prima facie, my inclination is that the usual costs order should follow, so that Wärtsilä, as successful party upon its present application, which was resisted, ought receive its taxed costs of the application. But I will hear the parties if necessary concerning all orders, including as to costs after publication of these reasons and following their conferral.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Research Associate to the Honourable Justice Martin
22 FEBRUARY 2021