Rossi Gearmotors Australia Pty Ltd v Continental Conveyor and Equipment Pty Ltd - [2003] WASC 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ROSSI GEARMOTORS AUSTRALIA PTY LTD -v- CONTINENTAL CONVEYOR AND EQUIPMENT PTY LTD [2003] WASC 42

CORAM: ROBERTS-SMITH J

HEARD: 17 FEBRUARY 2003

DELIVERED : 17 FEBRUARY 2003

PUBLISHED : 14 MARCH 2003

FILE NO/S: CIV 2389 of 2002

BETWEEN: ROSSI GEARMOTORS AUSTRALIA PTY LTD (ACN 080 008 546)
Plaintiff (Respondent)
AND
CONTINENTAL CONVEYOR AND EQUIPMENT PTY LTD (ACN 059 870 058)
Defendant (Applicant)

Catchwords:

Cross-vesting - Section 5(2) Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) - Two actions arising out of same subjectmatter pending in different States - Criteria for transfer - Onus of proof

Legislation:

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

Result:

Application for transfer refused

Category: A

Representation:

Counsel:

Plaintiff (Respondent) : Mr M D Howard
Defendant (Applicant) : Mr G D Burgess

Solicitors:

Plaintiff (Respondent) : McCallum Donovan Sweeney
Defendant (Applicant) : Angus Tibbits

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

Bond v Larobi Pty Ltd, unreported; SCt of WA; Library No 920057; 31 December 1991
Harrison v Trewhella & Anor (1994) 13 WAR 394
Mullins Investments Pty Ltd & Anor v Elliott Exploration Co Pty Ltd & Ors (1990) 1 WAR 531
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Rick Manietta Pty Ltd & Ors v National Mutual Life Association of Australasia Ltd, unreported; SCt of Vic; 8 September 1995

Case(s) also cited:

Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Bonython v Commonwealth of Australia (1950) 81 CLR 486
CSR Ltd v Cigma Insurance Australia Ltd (1997) 189 CLR 345
Donohue v Armco Inc [2002] 1 All ER 749
Eggleston v Marley Engineers Pty Ltd (1979) 21 SASR 51
FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117
Granger & Sons v Gough (Surveyor of Taxes) [1896] AC 325
Hanessian v Lloyd Triestino Societa and Anonima Di Navigazione (1951) 68 WN (NSW) 98
Henry Kendall & Sons (a firm) v William Lillico & Sons Ltd [1969] 2 AC 31
Huddart Parker Ltd v Ship Mill Hill (1950) 81 CLR 502
Molodyski v Vema Australia Pty Ltd (1988) 4 BPR 9552
Parker v South Eastern Railway Co (1877) 2 CPD 416
Smith & Anor v South Wales Switchgear Co Ltd [1978] 1 WLR 165
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460
The Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379
The Fehmarn [1958] 1 All ER 333
Twynam Pastoral Co Pty Ltd v Anbon Pty Ltd (1989) 6 BPR 13,448
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

ROBERTS-SMITH J: This matter came on for hearing before me on 17 February 2003 as a special appointment in chambers. Having heard the matter in the morning and into the afternoon, I indicated to counsel then that I had a limited opportunity to deal with it in any extensive way that afternoon as I was about to leave for the Supreme Court circuit in Kalgoorlie only 10 minutes later. However, I did give a decision and short reasons. I indicated that if the parties required I would provide full written reasons in due course. I have since been requested to do so. These are those reasons.
The applicant is the defendant in these proceedings. The application is by notice of motion dated 19 November 2002.
The notice of motion seeks orders that the substantive proceedings herein be stayed, or further and in the alternative that they be transferred to the Supreme Court of New South Wales pursuant to s 5(2) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (WA) ("the Act") and consequential orders.
The present proceedings ("the WA proceedings") were issued by the plaintiff (respondent) out of this Court on 7 October 2002. The claim made by the plaintiff is in relation to the purchase of conveyor-drive units by and delivery of them to the defendant. The plaintiff claims that despite demand, the defendant has failed to pay the purchase price of $478,984.00. There are proceedings which have been issued by the defendant out of the Supreme Court of New South Wales ("the NSW proceedings") on 27 November 2002 alleging breach of contract arising out of the same circumstances and events. In those proceedings the defendant claims the units were defective. The defendant has filed a conditional appearance in the WA proceedings.
I was originally informed that the plaintiff had applied to have the NSW proceedings stayed in New South Wales and transferred to this Court, which application was to be heard that morning in New South Wales, but during the course of the hearing was informed that that application had been adjourned to a date in March.
The plaintiff is a company incorporated under the Corporations Law and carries on business from Canning Vale in Western Australia. The defendant is a company incorporated under the Corporations Law and whose registered office and principal place of business is at Somersby in New South Wales.
On 13 February 2001 at the defendant's premises at Somersby, the plaintiff collected a request made by the defendant for a quotation for the supply to it of "gearboxes". The request was on letterhead from Continental Conveyor Pty Ltd (a non‑existent company). The request was signed by a Mr Ian Morris and underneath his signature was written "Continental Ace Pty Ltd". It was dated 21 September 2000. Attached to the request were some commercial conditions with the heading "Continental Ace Pty Ltd Pty Ltd" (sic) and some technical specifications.
The plaintiff submitted its first quotation to the defendant dated 16 February 2001, stating that the offer was subject to express terms and conditions, including its standard conditions of sale "unless modified above".
As a result of further pre‑contractual negotiations between the plaintiff and the defendant, the plaintiff submitted revised quotations to the defendant dated 4 and 7 June 2001, which again stated that the plaintiff's standard conditions of sale would apply unless modified above.
By facsimile dated 7 June 2001 Mr Morris, representing the defendant, accepted the plaintiff's revised quotation dated 7 June 2001 for the supply of gearboxes to Glennies Creek, being the place at which the defendant wished the plaintiff to supply them.
The defendant issued a purchase order to the plaintiff requesting delivery of the gearboxes to "Continental Conveyor Pty Ltd" at the defendant's address. The defendant's purchase order contained "notes" stating amongst other things:
"Please supply us with materials or services in accordance with instructions listed herein attached. The conditions as set out in AS 2987 'Equipment supply with or without installation" or AS 3556 "Materials supply only" shall apply unless otherwise noted in our terms and conditions herein attached."
The plaintiff says no such terms and conditions were attached.
There were subsequent contractual variations by way of revisions to the defendant's purchase orders as a result of further negotiations between them.
The defendant says that a revised purchase order dated 30 October 2001 was sent to the plaintiff, but the plaintiff denies ever having received it. That purchase order was the same as the previous ones except that the statement in the "notes" regarding the conditions was said to have been replaced with the statement that "the conditions of contract shall be CCE standard conditions of purchase". The plaintiff says it has never received a copy of such standard conditions.
The plaintiff delivered the goods to the defendant's premises, consigned to Continental Conveyor Pty Ltd at the defendant's request and issued invoices for delivery. Each of the invoices contained the plaintiffs terms and conditions of sale and supply on their reverse. Clause 17 of the conditions stated:
"The contract between the company and the customer shall be deemed to have been made in Western Australia and in accordance with the laws of Western Australia and shall be governed in all respects by Western Australian law and the customer hereby submits to the jurisdiction of the Western Australian courts".
If these proceedings continue (in whatever jurisdiction) there will be evidence given as to the effect of the differing descriptions of the defendant entity. It is not necessary for me to deal further with that here, nor to detail what the parties say was the course of dealings between them subsequently.
The WA proceedings were instituted on 7 October 2002. The NSW proceedings were issued on 27 November 2002.
The first ground on which the defendant's application is based is s 5(2)(b)(ii)C of the Act, namely that there are presently proceedings pending in the Supreme Court of New South Wales and it is "more appropriate" having regard to the interests of justice that the WA proceedings be transferred to the Supreme Court of New South Wales.
The defendant's second and distinct ground upon which its application is made is pursuant to s 5(2)(b)(iii) of the Act. That is that irrespective of the pending NSW proceedings, it is "in the interests of justice" that the WA proceedings be determined by the Supreme Court of New South Wales.
I accept the defendant's submission that the "more appropriate" test under s 5(2)(b)(ii)C is more easily satisfied than the "interests of justice" test under s 5(2)(b)(iii) of the Act (Bond v Larobi Pty Ltd, unreported; SCt of WA; Library No 920057; 31 December 1991 per Owen J at 11).
The defendant relies upon the fact that its registered office and principal place of business are in New South Wales as are all of its operations which are relevant to both the WA and NSW proceedings.
It is submitted on behalf of the defendant that I could not be confident at this stage in reaching any conclusion other than that the contract between the parties, to the extent that it was reflected in writing, did not contain any express choice of law or jurisdiction. That being so, it is further submitted that "the safest basis" on which I should proceed is that the proper law governing the contract is that with which the transaction had its closest and most real connection, namely that of New South Wales.
The plaintiff on the other hand, points out that the plaintiff's headquarters are in Perth and all of the equipment delivered by it to the defendant was delivered from that location and that the design, assembly and supply of the conveyor drive unit equipment delivered to the defendant was carried out at the plaintiff's Perth headquarters.
The plaintiff submits that cl 17 of its standard terms and conditions is applicable, having been incorporated by express reference in pre-contractual negotiations, by acceptance and by the course of dealings between them.
It is common ground that both the WA and NSW proceedings were commenced regularly under the Service and Execution of Process Act 1992 (Cth).
In Mullins Investments Pty Ltd & Anor v Elliott Exploration Co Pty Ltd & Ors (1990) 1 WAR 531, the plaintiffs were suing the defendants for damages for negligent misrepresentation, breach of contract and misleading conduct under s 52 of the Trade Practices Act 1974 (Cth). The defendants applied for the action to be transferred to the Supreme Court of Queensland pursuant to s 5(2) of the Act. Ipp J held that an applicant under s 5 of the Act bore an onus to demonstrate why it would be in the interests of justice for the proceedings to be transferred from the jurisdiction in which they had been commenced. He held further that the mere balance of convenience, even were that marginally in the defendant's favour, was insufficient to displace the plaintiff's prima facie right to require the court to exercise the jurisdiction which it had. His Honour noted that there was a difference between the expression "the interests of justice" in s 5(2)(b)(ii)C and at the same expression in s 5(2)(b)(iii). In the former it appeared in juxtaposition with other factors, whereas in the latter it stood alone. His Honour concluded from that (at 537) that it followed that even if the requirements of s 5(2)(b)(ii) were not met, the "interests of justice" within the meaning of s 5(2)(b)(iii) may nonetheless be such as to render it more appropriate that the proceedings be determined by another court.
Although Ipp J recognised that in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 the High Court was dealing with factors relevant under private international law to the grant of a stay of proceedings rather than with the cross‑vesting legislation, nonetheless the remarks made by the court were relevant to construing the cross‑vesting legislation. In particular his Honour referred to the observations of Deane J (at ALJR 408) to the effect that a party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon its exercise and the passage from his Honour's judgment at 309:
"The starting point of the determination of such an application in accordance with traditional principle must be the prima facie right of a plaintiff to insist upon the exercise of competent jurisdiction which he has regularly invoked. That prima facie right of a plaintiff is not to be lightly displaced or denied."
The present case is of course different in that proceedings have regularly been commenced in two jurisdictions. That was the position in Harrison v Trewhella & Anor (1994) 13 WAR 394 in which proceedings had been instituted in both Victoria and Western Australia. That case turned on a different point, having to do with the defendant's ultimate purpose of seeking to have the proceedings transferred from the Supreme Court of Victoria into the County Court at Bendigo. Commissioner Heenan QC (as he then was) concluded that course was not authorised by the Act.
On the position where all parties before the court on an application to transfer proceedings claimed a right to invoke the jurisdiction of the court in which they had commenced their action, the learned Commissioner concluded there was nothing to assist the court to distinguish between the jurisdictions. At 401 and following, his Honour thought there may be other factors which would allow a preference to be made for one jurisdiction rather than the other on some objective criterion. His Honour noted that the language of the relevant statutory provisions is wide and concluded that there should be no initial presumption that the court in which the proceedings were commenced is, for that reason alone, the more appropriate forum or that it is necessarily in the interests of justice that the proceedings should remain there - although that observation did not overlook the onus on an applicant for a transfer to show a case why it should be ordered (402). With respect, I agree, although I consider the plaintiff's choice of jurisdiction is a relevant factor. The weight to be given to it will depend upon the circumstances of the particular case. I also agree with his Honour's conclusion that the expressions "the more appropriate court" and "in the interests of justice" are meant to encompass a wide variety of practical considerations, not all of which may be present in every instance, but which should be considered and applied objectively and be given such weight as is appropriate in the individual case (403).
It is in that context and against that background of principle that I approach the application on the basis that where a plaintiff has chosen a venue which is lawfully open to it, there is an onus on a party seeking an order for transfer of the proceedings to a different jurisdiction to demonstrate some cogent reason why such an order should be made.
In the present case I take the view it is not the appropriateness, nor comparative appropriateness, of the transferee court which should dictate the outcome, but rather whether this Court is inappropriate. In taking into account the considerations appropriate to this particular case, I consider that due weight must be given to the plaintiff's choice of venue. It cannot be said that its choice of this jurisdiction is based on merely marginal considerations.
As I have observed, the plaintiff relied very strongly on its argument that cl 17 (the jurisdiction clause) applies to the contractual relationship between the parties. That is the question to be resolved in the proceedings. There is a dispute about it. The plaintiff claims that it is applicable. The defendant says that it is not. I am not in a position presently to resolve that contractual issue. I think the highest that can be put at the moment is that it is strongly arguable that the jurisdiction clause has been incorporated in the contract and accordingly does apply.
Even if that were so however, it would by no means dispose of the matter. In that regard I accept what McDonald J said in Rick Manietta Pty Ltd & Ors v National Mutual Life Association of Australasia Ltd, unreported; SCt of Vic; 8 September 1995 at 8. The effect of what his Honour said was that such a clause would not preclude the transfer of the proceedings to another jurisdiction - it would be merely a consideration which would give a strong bias in favour of maintaining the agreement struck by the parties. With respect, I accept that proposition and I take the point into account to that extent and in that way.
The question of what law is to be applied seems to me not to be determinative. I am told by Mr Howard, counsel for the defendant (and no issue appears to be taken with this) that the proceedings will ultimately be dealt with upon the basis of the common law and the Trade Practices Act; it is not likely that there will be a requirement for the application of State law in whichever jurisdiction the proceedings are conducted. That consideration accordingly seems to me to be neutral.
The same might be said of the fact that the proceedings in each instance have been instituted in accordance with the Service and Execution of Process Act. It was suggested, I think, that this gives an indication of the law to be applied or, rather, the consent of the parties to the law to be applied. In my view however, that is no indication of choice other than by the particular party instituting the particular proceedings. I would not take that consideration as militating either way in relation to the present application.
Of greater weight are the considerations that the contract was concluded in New South Wales and that the equipment is in New South Wales and it was provided there. There are also a number of witnesses from New South Wales to be called by the defendant. As against that, the design, assembly and supply of the conveyor-drive unit equipment was all carried out at the plaintiff's Perth headquarters and there are two witnesses here who would be called by the plaintiff who are said to have knowledge of the matter.
Those considerations are to my mind reasonably countervailing, although I do acknowledge the preponderance of witnesses on the defendant's side to be called in New South Wales. That does not apply to experts. The place and origin of expert witnesses who are to be called again seems to me to be a neutral consideration because they are all outside both jurisdictions.
In the context of the factors I have mentioned the considerations relied upon by the plaintiff thus far, particularly that the equipment was designed, assembled and supplied from Western Australia, in combination with the fact that to my mind it cannot be said that Western Australia is not an appropriate forum and the fact that the proceedings instituted in this State by the plaintiff were instituted first in time, taken in conjunction with the weight which I think here should be accorded to the right of the plaintiff to choose his or its forum for the proceedings, to my mind on balance militate in favour of continuing the proceedings in Western Australia.
I am of the view that the defendant would not suffer injustice if the proceedings in this Court were to be allowed to continue.

The defendant has not persuaded me either that it is "more appropriate" under s 5(2)(b)(ii)C or "in the interests of justice" under s 5(2)(b)(iii) of the Act for the proceedings to be transferred to the Supreme Court of New South Wales. Accordingly, I would conclude that the defendant's application should be refused.