Slater & Gordon Pty Ltd v Porteous - [2005] VSC 398

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST

No. 2074 of 2005
F5854

SLATER & GORDON PTY LTD	Plaintiff
V
ROSE MARIE PORTEOUS	Defendant
ROSE MARIE PORTEOUS	Plaintiff by Counterclaim
V
SLATER & GORDON PTY LTD	First Defendant by Counterclaim
V
SLATER & GORDON (a firm)	Second Defendant by Counterclaim

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2005
DATE OF RULING:	3 October 2005
CASE MAY BE CITED AS:	Slater & Gordon v Porteous
MEDIUM NEUTRAL CITATION:	[2005] VSC 398

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PRACTICE AND PROCEDURE – Transfer of proceeding – Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5(2)(b)(iii) – Issue of whether onus of any kind on applicant for transfer referred to – Effect of exclusive jurisdiction clause – Exclusive jurisdiction clause the overwhelming factor – Application for transfer to the Supreme Court of Western Australia dismissed.

BHP Billiton Ltd v Schultz [2004] HCA 61, applied.
Todber Pty Ltd v Glendale RV Syndication Pty Ltd [2004] FCA 1328, distinguished.
World Firefighters Games Brisbane, 2002 v World Firefighters Games Western Australia Inc (2001) 161 FLR 355, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P D Crutchfield	Arnold Bloch Leibler
For the Defendant	Mr J Giles (solicitor)	Solomon Brothers

HIS HONOUR:

This is an application by summons filed 16 September 2005 in which the defendant/plaintiff by counterclaim seeks an order that the proceeding be transferred to the Supreme Court of Western Australia pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (“the Act”).

The plaintiff, Slater & Gordon Pty Ltd, is a company which provides legal services. It conducts the legal practice formerly conducted by the second defendant to counterclaim, the solicitors firm of Slater & Gordon.

The defendant, Mrs Porteous, is the widow of the late Mr Lang Hancock. She was for many years a party to a considerable amount of litigation involving assets associated with her late husband. That litigation was principally conducted in Western Australia, although there were also proceedings in New South Wales.

Mrs Porteous and Slater & Gordon entered into a series of agreements pursuant to which Slater & Gordon conducted the litigation to which I have referred between 1997 and 2003. There are a number of written agreements between Mrs Porteous and Slater & Gordon which Mrs Porteous signed and which culminate in a deed dated 20 January 2005. It is alleged by Mrs Porteous that there was an oral agreement entered into with a representative of Slater & Gordon named Mr Nicholas Styant-Browne in July 1997, prior to all of the written agreements. This oral agreement is inconsistent with the written agreements and is denied by Slater & Gordon.

The January 2005 deed required Mrs Porteous to make payments to Slater & Gordon by specified dates. She made a number of payments and then ceased. Slater & Gordon’s solicitors took steps in response, and on 27 June 2005 issued this proceeding seeking to enforce the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] VSC 398
Decision Date: 3 October 2005

CaseChat Overview and Summary

Slater & Gordon Pty Ltd brought an application to transfer a proceeding from the Federal Circuit Court to the Supreme Court of Western Australia. The dispute involves claims of professional negligence and breach of contract. The Federal Circuit Court held that it had jurisdiction over the matter, and Slater & Gordon sought to have the case transferred to Western Australia on the grounds that it was more appropriate for that court to hear the matter.

The legal issue before the court was whether the onus was on the applicant to demonstrate that the proceeding should be transferred, and if so, whether the transfer was justified under section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. The court considered the effect of an exclusive jurisdiction clause in the contract between the parties and whether it was the overwhelming factor in determining the appropriate forum for the litigation. The applicant argued that the exclusive jurisdiction clause did not apply because it was not an onus-bearing provision, while the respondent contended that the clause was the primary factor in determining the appropriate forum.

The court found that the exclusive jurisdiction clause was indeed the overwhelming factor in determining the appropriate forum for the litigation. It held that the onus was on the applicant to demonstrate that the proceeding should be transferred and that the transfer was justified under section 5(2)(b)(iii) of the Act. The court held that the exclusive jurisdiction clause in the contract was a strong indication that the parties intended for the litigation to be heard in a particular jurisdiction, and that this was the primary factor in determining the appropriate forum. The court distinguished the case of Todber Pty Ltd v Glendale RV Syndication Pty Ltd and applied the principles from BHP Billiton Ltd v Schultz and World Firefighters Games Brisbane, 2002 v World Firefighters Games Western Australia Inc to come to its conclusion.

The court dismissed the application for transfer to the Supreme Court of Western Australia, finding that the applicant had not discharged the onus of demonstrating that the transfer was justified. The court held that the exclusive jurisdiction clause was the overwhelming factor in determining the appropriate forum for the litigation, and that it was not appropriate to transfer the proceeding to Western Australia.

Orders