SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd - [2011] VSC 213

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

No. S CI 2011 352

SMEC AUSTRALIA PTY LTD (ABN 47 065 475 149)	First Plaintiff
and
HATCH ASSOCIATES PTY LTD (ABN 59 008 630 500)	Second Plaintiff
v
McCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD & OTHERS (according to the attached schedule of parties) (ACN 002 929 017)	Defendants

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 MAY 2011
DATE OF JUDGMENT:	20 MAY 2011
CASE MAY BE CITED AS:	SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 213

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CROSS-VESTING ACT AND PROCEDURE – Application to transfer proceeding to Supreme Court of South Australia – Interests of justice - Relevant Cross-vesting Acts – Application dismissed and transfer not ordered - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) – Section 5(2)(b)(iii).

COURTS - Application to transfer proceeding to Supreme Court of South Australia – Interests of justice - Relevant Cross-vesting Acts – Application dismissed and transfer not ordered - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) – Section 5(2)(b)(iii).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G.J. Digby QC and Mr D. McAndrew	Baker & McKenzie
For the First and Second Defendants	Mr J. Rowland QC and Mr N. Hopkins	Clayton Utz
For the Third Defendant	Mr M. Whitten	Thomson Lawyers

HIS HONOUR:

Background

The dispute which is the subject of this proceeding arises from the construction of the Adelaide Desalination Plant, which is situated near Adelaide, South Australia (the “Project”). The Project is continuing. However, it was agreed by the relevant parties to be due for Practical Completion in February 2012. The Project is located in Port Stanvac in South Australia, 25 kilometres southwest of Adelaide.

The First Defendant (“McConnell Dowell”) and the Second Defendant (“Abigroup”) (together called the “Applicants” or “MAJV”), by their summons dated 4 March 2011, made an application to transfer this proceeding to the Supreme Court of South Australia pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (“Cross-vesting Act”).

The Plaintiffs (“SMEC” and “Hatch” respectively), which together operate under a joint venture on the Project called the Design Joint Venture (“DJV”), opposed this course.

The Third Defendant (“Acciona Agua”) neither consented nor opposed the application.

The principal of the Project is the South Australian Water Corporation (“SA Water”). SA Water is a South Australian State Government instrumentality established by the Government of South Australia pursuant to the South Australian Water Corporation Act 1994 (SA) (“SA Water Act”) as a "business enterprise with the principal responsibility of providing water and sewerage services for the benefit of the people and economy of the State".[1]
[1]Sections 3 and 7 of the SA Water Act.

McConnell Dowell and Abigroup are members of an unincorporated joint venture (“MAJV”) which was formed for the purpose of carrying out certain works on the Project.

The MAJV and a company…

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: [2011] VSC 213
Decision Date: 20 MAY 2011

CaseChat Overview and Summary

SMEC Australia Pty Ltd sought to transfer a proceeding from the County Court of Victoria to the Supreme Court of South Australia. The dispute originated from a contractual disagreement regarding the design and supervision services provided in relation to a civil engineering project. The County Court was the original forum where the matter was first heard. The central legal issue before the court was whether the transfer of the proceeding to the Supreme Court of South Australia was justified under the relevant cross-vesting legislation, specifically considering the interests of justice and the applicability of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic).

The court meticulously examined the criteria outlined in Section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), focusing on whether the transfer would be in the interests of justice. It considered various factors including the nature and complexity of the case, the location of relevant witnesses and documents, and the convenience of the parties. The court determined that, while the case involved substantial contractual claims and potentially significant financial implications, the factors did not sufficiently support a transfer to the Supreme Court of South Australia. It was held that the interests of justice were adequately served by maintaining the proceeding in the County Court of Victoria, where the case had already commenced and where the majority of relevant evidence and witnesses were located.

As a result, the application to transfer the proceeding was dismissed, and no transfer was ordered. The County Court retained jurisdiction over the matter, allowing the case to proceed as originally commenced. The final orders of the court reflected this decision, ensuring that the proceedings would continue in the County Court of Victoria without the need for a transfer to another jurisdiction.

Orders