Santos Ltd v Helix Energy Services Pty Ltd
[2009] VSC 282
•10 July 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 5219 of 2009
| SANTOS LIMITED (ABN 80 007 550 923) | Plaintiff |
| v | |
| HELIX ENERGY SERVICES PTY LTD (ABN 79 122 647 938) | Defendant |
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JUDGE: | BYRNE J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 June 2009 | |
DATE OF JUDGMENT: | 10 July 2009 | |
CASE MAY BE CITED AS: | Santos Ltd v Helix Energy Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 282 | |
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Courts – proceedings commenced in Victoria and South Australia concerning the same subject matter – plaintiff seeks anti-suit injunction – defendant applies to transfer Victorian proceeding to South Australia – whether anti-suit injunction available or appropriate in cross-vesting environment – whether South Australian Court a more appropriate forum – whether anti-suit injunction should go.
Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G John Digby QC and Mr R Andrew | Freehills |
| For the Defendant | Mr Malcolm Blue QC and Mr Matthew Barrett | Thomson Playford Cutlers |
HIS HONOUR:
The applications before the Court concern the forum for the conduct and resolution of the litigation between the plaintiff, Santos Limited, and the defendant, Helix Energy Services Pty Ltd. Santos wants it to be this Court; Helix prefers the Supreme Court of South Australia.
By contract dated 5 December 2007 the parties agreed that Helix would provide and install pipelines and electric hydraulic control umbilicals and provide certain other services for stage 2 of the VIC/P44 off-shore gas development in the Otway Basin southwest of Port Campbell in the State of Victoria.
By March 2009 the parties were in dispute and on 13 March Santos sent two letters to Helix. The first was a letter asserting that Helix, in very many respects, had so conducted itself that it had repudiated the contract. These respects are set out in the list of some 18 pages which is attached to the letter. Santos asserted that it was entitled to and did in fact accept this repudiation, so that the contract was terminated. In the second letter Santos alleged that Helix had committed material breaches of the contract and had regularly failed to meet contractual requirements so that Santos was entitled to terminate the contract forthwith pursuant to cl 1.11.1. Santos then stated in the letter that it exercised its right so that the contract was terminated. This letter, too, contains an 18 page list of acts and omissions of Helix which are said to warrant the contract termination. In the list enclosed in each of the letters Santos reserved the right to add to the listed items.
The contract provides in cl 1.24 for dispute resolution:
1.24 DISPUTE RESOLUTION
1.24.1 Commencement of Proceedings
A party shall not commence court proceedings relating to any dispute arising from the Contract except when that party seeks urgent relief from a court or when dispute resolution has failed under this clause 1.24. If a party fails to comply with clause 1.24, the other Party is not required to undertake dispute resolution for the dispute in accordance with clause 1.24.
1.24.2 Failure of Negotiation
If a dispute arising between Santos and the Contractor cannot be settled by negotiation (including negotiation between senior management of the Parties) within twenty-eight (28) Days, the Parties may agree to use an alternative dispute resolution process to attempt to resolve the dispute.
It also contains in cl 1.39 a governing law provision:
1.39 GOVERNING LAW
1.39.1 Law
The Contract is governed by the laws of South Australia.
1.39.2 Jurisdiction
Each Party submits to the non-exclusive jurisdiction of the courts of the state of South Australia in connection with matters concerning the Contract.
Notwithstanding these provisions, Santos on 20 March 2009 commenced its proceeding by generally indorsed writ in this court. The indorsement alleges repudiation and termination of the contract and seeks damages. It also seeks damages for false and misleading representations made by Helix prior to the contract.
On 23 March 2009 Santos wrote to Helix informing it that a writ had been filed and stating, nevertheless, that legal proceedings would be held in abeyance for a short time with a view to exploring settlement. On the following day the solicitors for Helix searched the Court file and a copy of the writ was provided to their client. The writ itself had not been served on Helix.
Then followed an exchange of correspondence between the parties in increasing tones of outrage and in which each appeared to be manoeuvring to optimise its bargaining positions. It seems, however, that no serious negotiation was undertaken and no settlement agreement was reached. The writ remained unserved.
On 4 May 2009 Helix commenced proceeding No. 666 of 2009 in the Supreme Court of South Australia and served the process on Santos in Adelaide.
Rule 33 of the South Australian Supreme Court Civil Rules 2006 provides an elaborate pre-litigation protocol for cases such as this. The proposed plaintiff must at least 90 days before commencing an action make an offer in writing and provide details of the claim and a copy of expert reports in its possession to the prospective defendant. The prospective defendant, for its part, must within 60 days after receiving the plaintiff’s notice, respond by accepting the offer, making a counter-offer or stating that liability is denied and giving the grounds upon which it is denied. It, too, must deliver expert reports in its possession. The Court has power to make an order excluding a proceeding from the application of this rule and the plaintiff may commence the action in anticipation of obtaining such an exclusion order.
The Helix action was commenced in South Australia without first having given the 90 day notice but it contains an endorsement advising the Court of this fact and that Helix seeks an exclusion order pursuant to R 33(8), on the basis that there had been “extensive open and without prejudice correspondence with a view to resolving all issues arising between them under the Contract the subject of this action both before and after the commencement of this action”. Such correspondence as I have seen passing between the parties in March 2009 and thereabouts does not encourage me to accept the accuracy of this. I shall assume, however, that the statement is correct.
In its statement of claim Helix alleges that the Santos letters of 13 March 2009 were wrongful and constituted a repudiation of the contract by Santos which repudiation Helix accepted on 18 March 2009. It seeks damages for loss of profit under the contract and also sums totalling about $11.5 million which are said to be payable under the contract prior to termination. These were claims which might be brought by way of set-off or counterclaim in the Victorian proceeding. Equally, the claims of Santos in the Victorian proceeding might be brought by set-off or counterclaim in the South Australia proceeding. No defence or counterclaim has been filed in either proceeding.
It is clear from this and from what appeared in argument before me that there is and will be a good deal of overlap in the issues and evidence to be led at each of these trials. No party contended that it would be appropriate to conduct two trials in two jurisdictions; the question is whether the single trial should be had in the Supreme Court of Victoria or the Supreme Court of South Australia.
Accordingly, by summons filed on 15 May 2009 Santos seeks injunctive relief restraining Helix from taking any step in the South Australian proceeding. Helix, by summons filed on 27 May seeks an order pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987, transferring the Victorian proceeding to the Supreme Court of South Australia.
Anti-Suit Relief in a Cross-Vesting Environment
It was put at the outset on behalf of Helix that the anti-suit injunction sought by Santos was not an appropriate remedy having regard to the statutory cross-vesting regime in existence between the various superior jurisdictions in Australia. Reliance was placed upon the following observation of Ormiston JA in Schmidt v Won:[1]
Subject always to the power of the court to stay frivolous, vexatious or oppressive proceedings or any which amount to an abuse of process (the categories of which can never be closed), the Voth principle should be considered as having no continued practical application so far as the exercise of jurisdiction as between the several State Supreme Courts. So the ordinary remedy of parties, who are served in Australia with process issued out of the Supreme Courts of States or Territories other than that in which they reside and who wish to complain that the Supreme Court of that other State or Territory is not the appropriate forum in which the litigation should be heard, is to seek transfer pursuant to the provisions of s. 5(2) of one of the State Cross-Vesting Acts. In the light of the complex and sophisticated scheme now in operation in this country, a stay of the kind contemplated by Voth must be seen as an inappropriately heavy-handed means of ensuring that issues are determined in the proper forum, i.e. in the court within Australia most appropriate to hear the action and most convenient to the parties for that purpose. Transfer under the cross-vesting legislation should be seen as now providing the necessary and appropriate weapon to achieve the same end by transferring litigation to a more appropriate jurisdiction within Australia.
[1][1998] 3 VR 435 at 453-4 (Charles and Batt JJA concurring).
Counsel on behalf of Santos resisted this. They contended that his Honour’s dictum means only that the common law test of forum non conveniens in Voth v Manildra Flour Mills Pty Ltd[2] is not applicable in cases in courts covered by the cross-vesting legislation when the question is one as to the appropriateness of the plaintiff’s forum. This, they contended, is not such a case: it is a case where Helix commenced the proceeding in South Australia knowingly dealing with the same dispute as that already before the Victorian court. This, they say, is an abuse of process, vexatious and oppressive. Accordingly, Helix should be restrained from interfering in this way in the dispute resolution process already under way in this Court.
[2](1990) 171 CLR 538.
The Voth case was one in which the defendant before the Supreme Court of NSW, sought an order that the proceeding be stayed on the basis that the courts in Missouri, USA, were the proper forum; the court was asked to stay its own process. This is not such a case. What is here sought is the domestic equivalent of an anti-suit injunction preventing a party to litigation in another jurisdiction from pursuing that litigation. Although such an order is directed to the litigant in the foreign jurisdiction rather than to the foreign court, it does, in an indirect way, represent an interference in the legal process of the foreign court. It is a jurisdiction which the Court will exercise with caution and only where it is appropriate to do so in order to avoid injustice.[3]
[3]CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 372, per Brennan CJ; and at 389 – 94, per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
One such circumstance is that where the proceeding in the foreign jurisdiction is, according the principles of equity, vexatious or oppressive. It may be characterised as such where it duplicates the local proceeding in the sense that the plaintiff cannot, in the foreign court, gain anything which is not available to it in the local court.[4] Where the local court and the foreign court are both part of the cross-vesting legislative scheme, the question is whether an anti-suit injunction has any role to play.[5]
[4]CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393.
[5]I was referred to the following cases where an anti-suit injunction was granted, but these appear to have turned upon their facts and the question of the impact of the cross-vesting regime was not considered: Shell Refining (Australia) Pty Ltd v Australian Workers Union [1999] VSC 297; Construction, Forestry, Mining and Energy Union v Multiplex Constructions Pty Ltd [2000] FCA 101; Christie & Christie [2007] FamCA 125; Agisaliou & Agisaliou [2007] FamCA 1610.
As Gummow J observed in BHP Billiton Ltd v Schultz,[6] the cross-vesting legislation enacted in each State in 1987 established two systems. First, each statute conferred certain jurisdiction with respect to local State matters in the Supreme Courts of other States and Territories.[7] And so, the Victorian Act vested the South Australian Supreme Court with certain jurisdiction possessed by the Victorian Supreme Court.[8] And, the South Australian Act invested similar South Australian jurisdiction in the Victorian Supreme Court. The second is a system whereby one Supreme Court will transfer a proceeding properly before it to the Supreme Court of another State or Territory where that was appropriate in the interests of justice.[9] This second system is one whereby the court sends its own proceeding interstate; it is not one whereby the court attracts to itself a proceeding which is pending in the interstate court.
[6](2004) 221 CLR 400 at 430 [43].
[7]Described by Street CJ as an “Australia-wide jurisdiction”: Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 713
[8]Section 4(3).
[9]Section 5.
Under such a legislative regime, it is not difficult to see that the jurisdiction to stay a court’s own proceeding under the Voth principle will have little practical relevance. If a court determines that the court of another State or Territory court is a more appropriate forum having regard to the interests of justice, it is obliged to transfer it to that other court. It is difficult to suppose a circumstance where the preconditions for a stay exist but a transfer is not required.[10]
[10]See, for example, Pegasus Leasing Ltd v Balescope Pty Ltd (1994) 63 SASR 51 at 57-8 and World Firefighters Games Brisbane, 2002 v World Firefighters Games Western Australia Inc [2001] QSC 164 at [26].
In a case such as the present, where the Court is asked to grant an anti-suit injunction, the position may be different. If the circumstances requiring transfer under the cross-vesting regime exist, there is no difficulty: the proceeding will be transferred to the South Australian court, as Helix requests. On the other hand, if this Court was to conclude that it is itself the appropriate forum in terms of s 5, the transfer application would fail. The proceeding in Victoria would then remain on foot; as would the South Australian proceeding.
What, then, would happen with the South Australian proceeding, if Helix were minded to pursue it? In terms of the cross-vesting scheme, it would be for Santos to apply to the South Australian court for a transfer to this Court, under the South Australian cross-vesting legislation. Doubtless, the South Australian court would have regard to the decision of the Victorian court as to the appropriateness of Victoria as the place for the trial, but it might, nevertheless, determine that Victoria is not the appropriate jurisdiction to determine the litigation. In such case, the transfer application in the South Australian court would fail. The unsatisfactory consequence of this would be that the parties remained confronted by two proceedings dealing with the same issues.
This was the situation which arose in the complicated Pegasus litigation. A proceeding was commenced in the South Australian Supreme Court on 2 April 1992 and in the ACT Registry of the Federal Court on 15 May 1992. On 9 December 1993, Debelle J, in the South Australian court refused a defendants’ application to transfer the South Australian proceeding to the Federal Court on the ground that its issues would be determined more promptly in South Australia than if they were tried together with other issues involving other parties in the Federal Court.[11] and remitted to a Master an alternative application that the South Australian court stay its own proceeding to permit the Federal Court proceeding alone to continue. The master refused this application and, in due course, his decision was, on 20 September 1994, upheld by the South Australian Full Court.[12] It seems, too, that an application had been brought in the South Australian court an early stage of the proceeding for an anti-suit injunction but that this was not proceeded with.[13]
[11]Pegasus Leasing Ltd Cadoroll Pty Ltd [1993] SASC 4742 at [15].
[12]Pegasus Leasing Ltd v Balescope Pty Ltd (1994) 63 SASR 51.
[13]See Cadoroll Pty Ltdv Allegra Corporation Ltd [1994] FCA 875 at [17].
In the Federal Court, Neaves J on 17 January 1994 refused to grant an anti-suit injunction restraining the parties from pursuing the proceeding in South Australia[14] but when this application was renewed, his Honour, on 23 December 1994 granted the injunction sought and this decision was upheld by the Full Federal Court.[15] I am not here concerned with the correctness of these decisions not to transfer one or other of the proceedings. For my purposes, this is a case where the Federal Court, in the cross-vesting environment, concluded that an anti-suit injunction was appropriate to break the impasse and to enable the litigation to be pursued in the one court. It concluded that the Federal Court was a forum where full and final justice could be administered to all parties. The majority endorsed the approach of Neaves J, saying that it “accords with common sense and the practicalities of the overall administration of the litigation between the parties and is not contrary to relevant principles of comity, federalism or equity”.[16]
[14]Cadoroll Pty Ltdv Allegra Corporation Ltd [1994] FCA 875.
[15]Pegasus Leasing Ltd v Cadoroll Pty Ltd (1996) 59 FCR 152.
[16](1996) 59 FCR 152 at 160 (per Lee and Tamberlin JJ).
I do not stay to consider what would have been the outcome had the plaintiff in the South Australian proceeding pressed its application for its early application for an anti-suit injunction. In his dissenting judgment in the Full Federal Court, Higgins J deplored the waste of resources that had been the product of the jurisdictional conflicts between the parties and of the failure of the legislative regime to provide a solution to the impasse:
…Many thousands of dollars have been expended with no substantive result. No doubt, in part, this situation, making as it does a mockery of the system of litigation in this nation, results from forensic decisions of the parties. To that extent they have only themselves to blame.
However, they have been aided and abetted by a legal system which has failed promptly to prevent these parallel proceedings. The mechanisms in place to resolve the situation where parallel proceedings are commenced and continued have been shown to be defective, at least in the present circumstances.
Serious consideration needs to be given to the application of a mechanical rule which would automatically transfer the second of two parallel sets of proceedings to the court in which the first of them has been commenced. It should then be entirely up to that first court to decided whether or not the proceedings should be transferred to another court.
In the absence of any statutory requirement to this effect there should, at least, be a prima facie acceptance that the first court competently seized of the proceedings should, unless the interests of justice clearly dictate otherwise, proceed to conclude them.
It should not be open to one court to appear to decide that a decision of an equivalent court of this country should be disregarded. The orders and proceedings of such a court are required to be given “full faith and credit” by s 118 of the Constitution. Such a decision should not appear, even indirectly, to be regarded by another equivalent court as oppressive to a party or otherwise not in the interests of justice.[17]
[17](1996) 59 FCR 152 at 161.
While it is not difficult to sympathise with his Honour’s concerns, I am not at all persuaded that the scenario which he envisages is likely to arise. Subject to the constitutional impediment affecting federal courts,[18] the effect of the cross-vesting legislative scheme and that established by the Service and Execution of Process Act 1992, is that the superior courts of Australia are increasingly seeing themselves as components of one Australian judicial structure.[19] For example, the Supreme Court of Victoria exercises without any discomfort Federal jurisdiction where it is conferred and the jurisdiction of other States and Territories to the extent that this is conferred by their cross-vesting statutes. The decision of one court within this system to transfer or not to transfer a proceeding should be seen of no great a moment than, for example, the transfer or non-transfer of a proceeding issued in a provincial registry in a State to another city in that State for trial. It would hardly be supposed that a judge in that State would not accept the decision in such an essentially administrative matter, even if the judge might have had doubts about its correctness. And so, the impasse which arose in the Pegasus litigation may be seen, not so much as an example of parochial attitudes in conflict, but rather as different results arrived at different stages of the interlocutory process in the proceedings concerned. It appears from the various reports that the issues between the parties had changed after the South Australian court had refused the transfer to the Federal Court.
[18]See Re Wakim; Ex parte McNally (1999) 198 CLR 511.
[19]This is the case where they exercise federal jurisdiction: Commonwealth v Mewett (1997) 191 CLR 471 at 524-5, per Gaudron J, and it is increasingly the case where they exercise a national jurisdiction under the common law of Australia: Lipohar v The Queen (1999) 200 CLR 485 at 513 [68], per Gaudron, Gummow, and Hayne JJ; or under legislation which is enacted as part of an Australia-wide scheme, as, for example, the uniform Commercial Arbitration Acts.
And so it might be expected that a judge would respect and act upon the decision of another Australian judge that a proceeding commenced in that other judge’s court should or should not be transferred. Where that other judge had determined in terms of s 5 that the proceeding should not be transferred because the local court was considered to be the appropriate one, the 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.
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.[20] 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”[21] and that the parties, particularly the unsuccessful party would accept this essentially pragmatic decision.
[20]See BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 421, per Gleeson CJ, McHugh, Heydon JJ.
[21]Ibid.
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 more appropriate.
This is, if I may respectfully say so, a more satisfactory solution to the impasse presented by a case such as the Pegasus case[22] than that proposed by Higgins J, which would grant priority to the proceeding first commenced where no other factor required a transfer. It is undesirable to encourage an unseemly race to the door of the court and it is inconsistent with modern pre-action procedures, of which the South Australian Rule 33 is an exemplar. It places the choice of venue in the hands of a judge acting upon rational principle rather than in those of the parties who may be driven by tactical or other considerations.[23]
[22]See para [25] above.
[23]See BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 421 [15] , per Gleeson CJ, McHugh and Heydon JJ.
The Application
The Helix application for transfer to South Australia is brought under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic). In support of the appropriateness of the South Australian court a number of considerations were relied upon.
Before I turn to them, it should be noted that the application to transfer is brought very early in this litigation. The claim of Santos in its general indorsement is in the most general terms. No statement of claim has been filed, notwithstanding that the writ was filed on 20 March 2009 and served on 4 May 2009. It is, however, possible to see where the lines of battle will lie from this indorsement, from the Helix statement of claim in the South Australian proceeding and from the correspondence between the parties, especially the letters relating to termination. Even so, there is much uncertainty. The litany of deficiencies contained in the lists which accompanied the Santos termination letters of 13 March 2009 bear witness to the care with which the drafter has sought to include any possible matter of complaint. Even so, the lists are said not to be exhaustive. I have little doubt that the breaches which will find their way in due course into the Santos statement of claim in the Victorian proceeding or in its defence and counterclaim in the South Australian proceeding will be very comprehensive. It will, I suspect, be upon these matters that the greater part of the litigation will focus.
Location of the Parties
Santos is a South Australian company with its head office and principal place of business and legal department all located in Adelaide. It has business operations Australia wide. Helix is a subsidiary of Helix Energy Solutions Group Inc, a company listed on the New York Stock Exchange. The group conducts a construction business in the Asia Pacific region and, for that purpose, established Helix, the party to these proceedings, in Perth. Helix does not have an office or any other business premises in South Australia or, it would seem, in Victoria.
The Jurisdiction Clause
In their contract, Santos and Helix agreed that they would submit to the non-exclusive jurisdiction of the South Australian court.[24] This is said to be a very significant matter, especially as the contract was drawn by Santos.
[24]Clause 1.39.2. See para [5] above.
The Law of the Contract
This, too, was agreed in the contract to be South Australian law.[25] It was put on behalf of Helix that, while the common law is the same in Victoria, the South Australian Frustrated Contracts Act 1988 differs from the Victorian equivalent in Part 2C of the Fair Trading Act 1999. Neither statute defines frustration.. The differences between them lie in the manner in which the rights of the parties are to be adjusted following frustration. It was said that a South Australian judge would be more comfortable construing a local statute. I am not at all persuaded that this is a matter of great moment. Frustration is not alleged by Helix in its pleading but I was told that it would be raised in due course. If this should occur, the trial would require an examination of the events relied upon as amounting to frustration and of the question whether they in fact amounted to frustration. Furthermore, the consequential adjustment of the parties’ rights under s 7 of the South Australian Act will involve a consideration of contractual benefits, and their value, received by each party as a result of the performance of the contract works. These acts and events are all likely to have occurred in Victoria.
[25]Clause 1.39.1. See para [5] above.
Location of the Documents
Neither party took any point based on the location of the documents which might be discovered or used in the litigation.
Location of the Lawyers
Santos retained Freehills in connection with the contract on or about 14 November 2008. Victorian counsel were engaged in March 2009. Freehills does not have an Adelaide office. In the Helix proceeding, Santos entered an appearance through South Australian solicitors engaged as local agents for Freehills. It is said, and I accept, that over the past eight months much effort has been applied by these lawyers in preparing for the termination of the contract and for the litigation.
The solicitors for Helix were also retained in November 2008, some months prior to the termination of the contract. They were the Adelaide office of Thomson Playford Cutlers. This firm has a Melbourne office. The Adelaide solicitors have also performed significant work since their retainer. Senior counsel of the South Australian bar was engaged in December 2008 and an Adelaide junior sometime later. For the hearing of these applications, Helix retained Victorian junior counsel.
Location of the Events
The contract was to perform work at Port Campbell in Victoria. This is about 225km from Melbourne. In such a case as the present where there is little to connect either of the parties to Victoria and where the case is likely to involve an investigation of the performance of Helix and the management of Santos, this is a very significant factor.
Other factual disputes are likely to arise from the claims by Helix to pre-termination contractual entitlements. It is likely that the acts and events underlying these occurred in Victoria.
In each of the Santos lists of the performance deficiencies of Helix which accompanied the termination letters of 13 March, it is said that Helix was in breach of pre-contractual representations as to the suitability of the diving vessel, Express. It does not appear where these representations were made or what issues might arise from this allegation.
It would be to prolong this judgment unnecessarily if I were to undertake a detailed analysis of the other matters alleged in the lists. It is sufficient that I record my impression that many of the events said to amount to breaches of contract on the part of Helix occurred in Victoria. None of them occurred in South Australia. It may be assumed that the response of Helix, whether by confession and denial or otherwise, will concern events in this State.
Location of the Witnesses
It is very early in the history of this litigation to seek to identify the principal witnesses; the issues remain to be drawn in any detail. One thing, however, which can be said with confidence, is that none of the persons principally concerned with the negotiation and the administration of the contract have very much contact with Victoria. The Santos manager responsible for the project was Giuseppe Franco Gugliotta who lives in Adelaide. The Helix project director was Gregory Edwin Harrison who gives an address in Western Australia. Mr Harrison lists the six Santos personnel with whom he had contact on the project. Of these, three including Mr Gugliotta are based in South Australia and the balance in Western Australia. He also lists the eight senior Helix personnel who might be called as witnesses, giving their domicile respectively as three in Western Australia, three in Texas USA, and two elsewhere overseas. The principal Helix subcontractors are also based in Western Australia.
One of the principal complaints put against Helix is that it failed to enter into satisfactory agreements with the unions whose members were working on the project. In his answering affidavit Mr Gugliotta identifies a number of union personnel who might be called as witnesses. They are all from Victoria.
I do not think that, in litigation of this kind, it is possible to draw any firm conclusions from the location of the principal management witnesses. To a large extent, the nature of their work requires them to travel within and outside Australia where projects are located. A requirement that they come to Melbourne for this litigation is likely to be less of an inconvenience for them than might otherwise be the case. Furthermore, the question whether any or all of them will be required to come here for the purposes of instructing the lawyers or for the trial is, at this stage, a matter of conjecture. For present purposes, I do not place much reliance upon this aspect of the case. They, like the documents, are very portable.
In any event, in terms of numbers, the majority of these witnesses are based in Western Australia and neither party suggests that the litigation be transferred to that jurisdiction. Moreover, the witnesses from South Australia are all Santos witnesses and this party does not appear to be concerned that their location interstate will cause any problem for the litigation in Victoria.
To the extent that the location of likely witnesses is a consideration, it is the minor witnesses whose convenience is likely to be of greater significance. These are the union officials and smaller contractors for whom a lengthy stay interstate is likely to cause difficulty and disruptions to their business or other activities.
Conclusion
I remind myself that the contest as to venue is between Victoria and South Australia. A very significant factor is the decision of the parties to submit to the jurisdiction of the South Australian court. But this may be less significant in the present context, where the parent company of one of the contracting parties is located in the USA. It is understandable that Santos would wish that that party, if sued, should submit to a local jurisdiction.
Apart from this contractual provision, there is little, if anything, which ties the parties to South Australia or Victoria. They are both major enterprises accustomed to operating away from their principal places of business or incorporation. In this regard, it is the Texas controlled company, and not the South Australian party, which wishes to litigate in South Australia. In terms of the substance of the dispute, there is nothing which suggests that the South Australian court is the more appropriate forum in the interests of justice. Victoria is the locus of the project where arose the subject matter of the complaints leading to the termination, where arose the subject matter of the force majeure or frustration allegations, if they are made, and where the pre-termination contract claims are based. It is likely, too, that Victoria will be the place where much of the quantum evidence is drawn. For this reason, as things now stand, the contest between Victoria and South Australia must be resolved in favour of the former. I conclude, that in the interests of justice, the Supreme Court of South Australia is not the more appropriate forum for this litigation, including the likely defence and counterclaim of Helix; this Court is the appropriate forum.
The application to transfer the Victorian proceeding to the Supreme Court of South Australia is refused. I will invite counsel for Helix to state their client’s position with respect to the future of the South Australian proceeding. I will hear counsel for both parties as to any interlocutory matters which might be required to progress this matter to trial.
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