WÄRtsilÄ Australia Pty Ltd v Primero Group Ltd - [2020] SASC 185

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
WÄRTSILÄ AUSTRALIA PTY LTD v PRIMERO GROUP LTD
[2020] SASC 185
Decision of The Honourable Justice Bampton
1 October 2020
COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION
Application under the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) to transfer this proceeding to the Supreme Court of Western Australian or alternatively to temporarily stay the proceeding – whether it is more appropriate that the proceeding be determined by the Supreme Court of Western Australia – whether it is otherwise in the interests of justice that the proceeding be determined by the Supreme Court of Western Australia.
HELD: Application dismissed – it is not more appropriate that the proceeding be determined by the Supreme Court of Western Australia, nor is it otherwise in the interests of justice to exercise the power to transfer under the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA).
Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 5(2)(b); Building and Construction Industry Security of Payment Act 2009 (SA) s 13, s 22; Uniform Civil Rules 2020 (SA) r 12.1(2)(o), r 61.7, r 61.13, referred to.
BHP Billiton Ltd v Schultz & Ors (2004) 221 CLR 400; Cini v Pets Paradise Franchising (SA) Pty Ltd (2008) 102 SASR 177; Bankinvest AG v Seabrook (1988) 14 NSWLR 711, applied.
Garra Water Investments Pty Ltd v Ourback Yard Nursery Pty Ltd [2010] SASC 326; Dawson v Baker (1994) 120 ACTR 11; Australian Rail Track Corp Ltd v Mineral Commodities Ltd & Anor [2006] SASC 27, discussed.

WÄRTSILÄ AUSTRALIA PTY LTD v PRIMERO GROUP LTD
[2020] SASC 185
Civil: Application

BAMPTON J: Primero Group Ltd (“Primero”) makes application to transfer this action to the Supreme Court of Western Australia pursuant to s 5(2)(b)(i) and (iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) (“the Cross‑vesting Act”).
Background
Wärtsilä Australia Pty Ltd (“Wärtsilä”) is the Australian subsidiary of Wärtsilä Corporation, a global supplier and provider of energy solutions. Wärtsilä was engaged by AGL Barker Inlet Pty Ltd under an engineering, procurement and construction contract to engineer, procure, and construct the Barker Inlet Power Station (“the project”). Wärtsilä engaged Primero on 18 April 2018 to perform civil, mechanical, and electrical works, and supply of tanks for the project under a subcontract (“the subcontract”). Wärtsilä and Primero are now in dispute regarding their respective entitlements arising under the subcontract.
The payment claim
On 2 March 2020, Primero served payment claim number 24 (“the payment claim”) under s 13 of the Building and Construction Industry Security of Payment Act 2009 (SA) (“SOP Act”) for the sum of $85,751,118 (ex-GST). A dispute ensued concerning the value of the works claimed in the payment claim and Wärtsilä contended that there was no available reference date to support the payment claim. Primero applied for adjudication of the payment claim pursuant to the SOP Act. On 27 April 2020, a South Australian adjudicator determined pursuant to s 22 of the SOP Act that the payment claim was a valid claim on the basis, inter alia, that it was supported by a reference date of 28 February 2020 (“the adjudication determination”).
The Western Australian proceeding
By writ of summons dated 24 April 2020, Primero commenced proceedings in the Supreme Court of Western Australia against Wärtsilä (“the Western Australian proceeding”). The summons is endorsed as follows:
Indorsement of Claim
1The plaintiff’s claims arise under an agreement dated 18 April 2018 (Subcontract), made between the plaintiff and the defendant under which the defendant engaged the plaintiff to perform civil, mechanical and electrical works and supply tanks for the Barker Inlet Power Station, and concern extensions of time and the parties’ liabilities in respect of such claims.
AND THE PLAINTIFF CLAIMS
1Declarations as to the proper construction of extension of time provisions in the Subcontract.
2Declarations as to its entitlements under the Subcontract.
3Such other orders as this Honourable Court sees fit.
(Emphasis in original)
On 24 April 2020, Primero was granted an interim injunction in the Western Australian proceedings to restrain Wärtsilä calling on performance securities. On 6 May 2020, further injunctive relief was granted by the Western Australian Supreme Court against Wärtsilä and an order was made suspending the filing of pleadings. On 30 July 2020, Primero and Wärtsilä obtained a consent order further suspending the filing of pleadings until a directions hearing on 8 October 2020. In seeking the order, the parties explained to the Court that they sought the further suspension of the filing pleadings as the payment claim and adjudication processes between the parties had not been exhausted.
The application for judicial review of the adjudication determination
On 6 May 2020, Wärtsilä made application in this Court for judicial review seeking an order quashing the adjudication determination.
The South Australian proceeding
Wärtsilä commenced these proceedings by filing claim documents comprising a claim and statement of claim on 26 June 2020 for alleged breaches of contract and repayments of money (“the claim”) allegedly owed to it by Primero under the subcontract (“the South Australian proceeding”). Wärtsilä alleges in its statement of claim that “there was a series of disputes between it and Primero throughout the course of the project, with three agreements reached at various times to resolve the disputes by, inter alia, adjustment to the price of works and the time to complete the works, and advance interim payments on account, but that otherwise kept the existing contractual relationship between the parties”.
It is further alleged that “Wärtsilä advanced an amount of $15 million to Primero under a preliminary settlement agreement in respect of various claims known as “outstanding matters”. Following an assessment and determination of the total value of outstanding matters by Wärtsilä, if the value of the outstanding matters was less than $15 million then Primero was to pay Wärtsilä the excess. It is alleged that Primero has failed to do so”.
In addition, it is alleged by Wärtsilä that “Primero has failed to achieve certain key events by the specified key dates and Wärtsilä is entitled to payment of liquidated damages for delay calculated in accordance with and pursuant to the subcontract”.
Rule 65.1 of the Uniform Civil Rules 2020 (SA) (“the UCRs”) prescribes that Primero’s defence to the statement of claim must be filed within 28 days of service of the statement of claim.
Application for transfer of this proceeding to the Supreme Court of Western Australia
A notice of acting was filed by Primero in the South Australian proceeding on 14 July 2020. Two days later, on 16 July 2020, Primero filed the application seeking to transfer Wärtsilä’s claim to the Supreme Court of Western Australia pursuant to the Cross-vesting Act and/or an application for a stay of the proceedings pursuant to r 12.1(2)(o) of the UCRs. Primero submitted that transfer will:
(a)avoid the wasteful pursuit by the parties of two virtually identical proceedings with the resulting risk of inconsistent findings; and
(b)ensure the dispute between the parties is determined in the most appropriate forum which, in light of various factors such as the location of the parties and the majority of the likely witnesses, is the Supreme Court of Western Australia.
On 27 July 2020, Wärtsilä and Primero agreed before a Master of this Court that the cross-vesting application should be made before a Justice of the Court and Wärtsilä undertook not to enter judgment in default of defence in the South Australian proceeding.
On 2 September 2020, a Justice of this Court granted the application for judicial review and made an order in the nature of certiorari quashing the adjudication determination.
The principles governing the application to transfer
The well-established principles governing applications to transfer proceedings pursuant to s 5(2)(b) of the Cross‑vesting Act were described by the High Court in BHP Billiton v Schultz & Ors.[1] In their joint judgment, Gleeson CJ, McHugh and Heydon JJ said:[2]
In Bankinvest, Street CJ said:
“The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice … It calls for what I might describe as a ‘nuts and bolts’ management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.”
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.
(Footnote omitted)
[1] (2004) 221 CLR 400.
[2] BHP Billiton Ltd v Schultz & Ors (2004) 221 CLR 400, 420-421 at [13]-[14].
Their Honours referred to circumstances where the balance of convenience to the parties and the witnesses might demonstrate conflicting advantages and disadvantages to each party. As their Honours noted:[3]
On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater weight 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 reason 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.
[3] BHP Billiton Ltd v Schultz & Ors (2004) 221 CLR 400, 422 at [16].
Their Honours also referred to the jurisdiction of common law courts in personal actions being determined by the location of the defendant and to the “natural forum” in the exercise of federal diversity jurisdiction, being the appropriate forum following consideration of “connecting factors” including convenience and expense, availability of witnesses, the places where the parties reside or carry on business, and the law governing the relevant transaction.[4] They stated:[5]
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 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.
[4] BHP Billiton Ltd v Schultz & Ors (2004) 221 CLR 400, 422 at [17]-[18].
[5] BHP Billiton Ltd v Schultz & Ors (2004) 221 CLR 400, 423 at [19].
In Cini v Pets Paradise Franchising (SA) Pty Ltd,[6] Bleby J synthesised the principles articulated in BHP Billiton Ltd v Schultz & Ors as follows:[7]
[6] (2008) 102 SASR 177.
[7] (2008) 102 SASR 177, 183-184 at [8].
•It is not relevant to ask whether this Court is justified in refusing to exercise the jurisdiction conferred on it. Rather, it must ensure that the case is heard in the forum dictated by the interests of justice.
•The question is not whether this Court is an inappropriate forum. It is both necessary and sufficient that, in the interests of justice, the other court is more appropriate.
•The court is required to ensure that cases are heard in the forum dictated by the interests of justice. It is not a question of the exercise of a discretion.
•The interests of justice are not necessarily the same as the interests of any one party.
•Because it is necessary to identify the more appropriate forum, no specific emphasis can be given in favour of the choice of forum made by the plaintiff.
•It is inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.
(Footnotes omitted)
Accordingly, if it appears that the Supreme Court of Western Australia is the more appropriate court to determine the South Australian proceeding or it is otherwise in the interests of justice that the South Australian proceeding be transferred to the Supreme Court of Western Australia, I have no alternative but to transfer the proceeding.[8] The question of the exercise of discretion does not arise.
[8] BHP Billiton Ltd v Schultz & Ors (2004) 221 CLR 400 at [14], [63], and [169].
The evidence
In support of its application, Primero relied on affidavits of it’s Executive Director and Chief Operating Officer, Dean Ercegovic, sworn 16 July 2020 and 20 August 2020, and an affidavit of its solicitor, Rachael King, sworn 20 August 2020 exhibiting a draft statement of claim.
Wärtsilä relied on an affidavit of its solicitor, Jordan Schutz, sworn 12 August 2020.
Primero objected to the admissibility of certain matters deposed to by Mr Schutz and Wärtsilä objected to the admissibility of certain matters deposed to by Mr Ercegovic. I have not taken into account any matter objected to by the parties.
Primero’s submissions
Primero’s application for transfer is grounded on several factors which it asserted demonstrate the Supreme Court of Western Australia is the appropriate forum to hear this claim.
Primero contended that Wärtsilä has not pressed for pleadings in the Western Australian proceeding, nor has it taken steps to otherwise suspend or transfer the Western Australian proceeding. After the hearing of this application, on 24 September 2020, my chambers received an email from Primero’s solicitors stating that a statement of claim had been filed in the Western Australian proceeding. Within a day thereafter, my chambers received an email from Wärtsilä’s solicitors asserting that the email from Primero’s solicitors was sent to the Court without any warning or notice to them. Other than to note the fact of the filing, I make no further comment regarding the filing of the statement of claim as neither party has formally sought to make any further submissions regarding the application for transfer.
It was submitted by Primero that it has always been clear that the attempts to resolve outstanding matters would be exhausted through the adjudication process prior to further litigation. It was submitted that the existence of the Western Australian proceeding and orders made therein show that Primero intended to litigate outstanding matters following the finalisation of the dispute resolution processes.
Primero complained that Wärtsilä commenced the South Australian proceeding without notice, without demand and without warning. Primero asserted that the South Australian proceeding concerns its claims under the subcontract. It was submitted that Wärtsilä, in the South Australian proceeding, purports to determine the outstanding matters and, as a result, Wärtsilä makes claims as to the adjusted subcontract price and claim that Primero is obliged to reimburse to Wärtsilä the balance of the interim payment of $15 million. Primero asserted that it was Wärtsilä’s liquidated damages claims for delay that prompted Primero’s successful application for an interlocutory injunction in the Western Australian proceeding. It was submitted that, inevitably, the claim for liquidated damages must take in the claims for extension of time.
Accordingly, it was contended that the subject matter of the Western Australian proceeding and the South Australian proceeding is, in effect, the same and, if this proceeding is not transferred to Western Australia, there will be duplicative proceedings with a real risk of inconsistent findings.
Primero referred to the pleading in its draft statement of claim concerning variation claims and submitted that extensive lay evidence is likely to be required for the determination of the variation claims, including as to:
(a)what was agreed by the parties with respect to the variation regime in the subcontract; and
(b)the reasonable additional costs arising from the variations, including:
(i)the labour, plant, and equipment required to perform the variations; and
(ii)the impact of variations on productivity.
Primero submitted that it anticipates that evidence will be given by its construction managers, engineers, supervisors, and superintendents based in Perth about:
(a)the resources which were necessary to carry out work;
(b)why and how variations were directed, such as via a response to technical query arising from incorrect design or inadequate contractor supplied materials; and
(c)the effect on productivity of variations directions, that is, what occurred when a problem was identified and a direction to perform a variation occurred.
Mr Ercegovic deposed in his affidavit sworn 16 July 2020 that Primero had a temporary office in South Australia until June 2020 and no longer has a South Australian presence. He identified 23 current and former personnel who could give evidence relevant to the claims, and none of whom are in South Australia. He also detailed the cost and inconvenience if the order for transfer is not made.
Primero asserted that factors of convenience and of cost favour Western Australia as the appropriate forum because:
(a)the Western Australian proceeding is being case managed by Justice Kenneth Martin who, in the course of determining Primero’s applications for urgent injunctive relief, in April and May 2020, formed preliminary views on whether there was a question to be tried in relation to Primero’s claims for extensions of time under the subcontract and its liability for liquidated damages.
(b)neither party carries on any substantial business in South Australia and, once the work on the project was completed, neither party continued to have any substantial presence in South Australia. Primero’s registered office and primary place of business is in Osborne Park, a suburb in Perth, all of its other premises are in Western Australia, and its work is presently in the Pilbara region of Western Australia.
(c)almost all of Primero’s lay witnesses who may give evidence in relation to the issues in this proceeding are usually resident in Western Australia or work in Western Australia, and do not reside or work in South Australia, including its project manager with respect to the work the subject of the proceeding.
(d)if the South Australian proceeding was to continue, then Primero’s lay witnesses may need to attend two hearings, one in the South Australian proceeding and the other in the Western Australian proceeding.
(e)Primero has engaged a quantum expert and delay expert, both of whom reside and work in Perth and who are familiar with the work the subject of the Western Australian proceeding and the South Australian proceeding. Primero’s quantum expert has given expert opinions in relation to its material difference claims which were considered and accepted in an adjudication determination made.
(f)Wärtsilä has engaged a delay expert, Karen Wenham of Advisian, based in Sydney, who has given expert opinions in relation to Wärtsilä’s extension of time claims which were considered in the adjudication determination.
(g)Primero’s management and commercial staff reside and work in Perth.
(h)Wärtsilä’s registered office is located in Huntington, New South Wales and it maintains extensive workshop facilities in Sydney and Perth, with only a sales presence in Adelaide.
(i)Primero’s lawyers and senior counsel acting in the South Australian proceeding and in the Western Australian proceeding all reside and work in Perth.

It was argued that the existence of the two parallel proceedings will cause duplication of cost and effort, assuming that South Australian proceeding was to be heard primarily in person. If Primero’s legal representatives, management, and both parties’ expert and lay witnesses are required to attend hearings in South Australia, it was submitted that it would be disruptive to Primero’s business and both parties would incur greater travel, accommodation, and professional fee expenses than if the disputes were determined in Western Australia.
Primero asserted that if this proceeding were to be transferred to Western Australia, the inconvenience to Wärtsilä would not be commensurate with the increased convenience to Primero because neither party has any real presence in South Australia.
Primero said that, to the best of its knowledge, none of Wärtsilä’s personnel connected to the work the subject of the subcontract remained in South Australia.
It was submitted that now that the work the subject of the subcontract has completed, there are no real connecting factors with South Australia and that for the duration of the subcontract work, many commercial discussions and other interactions between the parties took place in and from jurisdictions other than South Australia.
It was argued that the matters raised by Mr Schutz in his affidavit do not weigh in favour of South Australia as the more convenient forum other than the fact that Wärtsilä’s legal representatives are located in South Australia. Primero referred to Mr Schutz assertions that:
(a)the issues in the proceeding are, in his view, largely matters for expert evidence; and
(b)in his view, a site visit would be desirable to aid resolution of issues arising under clause 3.7(b)(2)(B) of the subcontract as to “whether the constructed works are materially different from the works which are described in the design documents”.
Primero said its material difference claims arising under clause 3.7(b)(2)(B) make up less than 25 per cent of the quantum of its claims against Wärtsilä. Clause 3.7(b)(2)(B) provides that Primero will be entitled to an adjustment to the subcontract price if the during the execution of the work the design documents are materially different to the baseline design. Primero claims various adjustments to the subcontract price under this clause where it received design documents from Wärtsilä which depict works which are materially different to the works depicted in the baseline design.
To assist in determining whether the works depicted in the design documents are materially different to the baseline design, Primero said it obtained expert reports, prepared by comparing the baseline design and design documents. Primero asserted that those expert reports were accepted in the adjudication determination after the adjudicator considered the responsive comments of Wärtsilä’s senior project manager.
Primero relied on the fact that despite having the power to do so the adjudicator did not ask for a site visit during the adjudication, nor was one suggested by Wärtsilä, because it was submitted that it was evident that:
(a)the claims arising under clause 3.7(b)(2)(B) arise from a comparison between the baseline design and design documents. It was pointed out that there is no claim that the completed work was not done in accordance with the design documents; and
(b)most of the relevant work is not, in any event, visible to a casual observer on site, given most relates to substructures and engineering which are underground and not comprehensible to the naked eye.
It was submitted that the approach of the parties in the adjudication, demonstrates that both parties are likely to rely on lay evidence of the facts relevant to the issues in the proceeding. Primero submitted it was telling that in contrast to the extensive lay evidence adduced provided by it in the adjudication and the expert reports filed, Wärtsilä’s relied only on responses prepared by one of its senior project managers.
Primero contended that it is both necessary and sufficient that, in the interests of justice, Western Australia is the more appropriate forum. It submitted that the fact that the subcontract is governed by the law of South Australia and contains a non-exclusive jurisdiction clause in favour of South Australia is only one factor to be weighed in determining what, in the interests of justice, is the more appropriate forum.
Primero said that factors affecting convenience and expense such as the availability of witnesses, where the parties reside or carry on business, and the location of the parties’ legal representatives and experts, all comprehensively favour Western Australia. Further, it was submitted that where there are common issues raised by proceedings and the potential for inconsistent findings, it is desirable to deal with proceedings together to avoid a multiplicity of suits in a number of jurisdictions.
Accordingly, it was submitted that it is in the interests of justice that the South Australian proceeding be transferred to Western Australia.
Wärtsilä’s submissions
Wärtsilä argued that it is not “more appropriate” that the South Australian proceeding be transferred to the Supreme Court of Western Australia, and it is not otherwise in the “interests of justice” to transfer the proceeding to that Court in circumstances where:
(a)no statement of claim (or any pleading) had been filed in the Western Australian proceeding;
(b)the proceeding in Western Australia, which was commenced by way of summons only, was for an entirely different purpose and by reference to the Indorsement of Claim sought different relief to the South Australian proceeding;
(c)Primero has delayed, and postulates further delays, in the prosecution of the proceeding in Western Australia; and
(d)Primero agreed irrevocably to submit to the non-exclusive jurisdiction of the courts of South Australia.
Wärtsilä submitted that, therefore, the claim in this Court neither arises out of, nor is related to, the summons in Western Australia.
It contended that the administration of justice is not served by requiring the transfer of the only proceeding originated by a properly detailed statement of claim to the Supreme Court of Western Australia. Wärtsilä said that Primero should file their defence in this proceeding and the matter should proceed to trial in the Supreme Court of South Australia as soon as is reasonably practicable.
In the statement of claim filed in this Court, Wärtsilä seeks:
(1)reimbursement for a proportion of an interim payment made on account (i.e. advance interim payment) that is in excess of monies owing for works performed; and
(2)payment of liquidated damages for Primero’s failure to achieve completion of key events by the key dates for those events.
Wärtsilä said it seeks relief for Primero’s failure to reimburse it for monies owed under the terms of the preliminary settlement agreement. Further, Wärtsilä seeks liquidated damages under the terms of the subcontract, as varied by the second deed of amendment, for Primero’s failure to achieve key events by their respective key dates. The liquidated damages payable under the subcontract is capped at a maximum of five per cent of the subcontract price. The subcontract price has been varied by way of the first and second deeds of amendment, and is subject to further adjustment for any valid variation claim of Primero. Wärtsilä claims just under $4.3 million for liquidated damages plus five per cent of the value of any valid variation claim.
Wärtsilä pointed out that, pursuant to clause 41.1 of the subcontract, it and Primero are bound, irrevocably, to submit to the non-exclusive jurisdiction of courts exercising South Australian jurisdiction. Wärtsilä submitted that while the relevant law governing the dispute is the common law of contract, which is not unique to South Australia, that the parties agreed to submit to the jurisdiction of the courts of South Australia to resolve disputes concerning the project, which is located in South Australia. Wärtsilä argued that Primero seeks to resile from its submission to the jurisdiction of the courts of this State.
Wärtsilä emphasised that the Indorsement of Claim on the writ in the Western Australia proceeding seeks declaratory relief cast in bare terms and relevantly, Primero seeks a declaration as to the proper construction of the extension of time provisions in the subcontract and a declaration as to “its entitlements” under the subcontract.
It was argued that nothing more is identified in the writ as to the nature of any rights that Primero is seeking to vindicate. No statement of claim had been filed to further identify the relevance of the extension of time provisions in the subcontract or the “entitlements” that Primero seeks to pursue under the subcontract. On the same date as filing the writ, Primero sought an urgent application for an interim injunction to prevent Wärtsilä making a call on performance securities that Primero had given to Wärtsilä as required under the subcontract. Wärtsilä submitted that the affidavit filed in support of the application indicated that Primero would challenge Wärtsilä’s default notice dated 17 April 2020 and that the basis for that foreshadowed challenge relates to the rejection of Primero’s claims for extensions of time for the completion of key events 3 to 6 and, by extension, to key event 7 and the Supreme Court of Western Australia issued the interim injunction.
Wärtsilä said that, at a further hearing in the Supreme Court of Western Australia on 6 May 2020, Primero sought orders to amend the chamber summons for injunctive relief so as to preclude Wärtsilä from moving on a default notice issued on 20 September 2019. The injunction was granted. Wärtsilä submitted that (at the time of the hearing of the application for transfer) no statement of claim had been filed in support of the summons issued out of the Supreme Court of Western Australia.
Wärtsilä submitted that it has invoked the jurisdiction of this Court by the filing of an originating application in the form of a clearly articulated and particularised statement of claim seeking relief for breach of contract and the payment of liquidated damages under the relevant subcontract and deeds. Primero has not filed its defence to the statement of claim and is in breach of the UCRs. It was submitted that in the face of a claim for recovery of over $8 million, Primero is, by the application for transfer, and its intentions regarding the Western Australian proceeding, seeking to stultify Wärtsilä’s prosecution of those claims.
Wärtsilä reiterated that Primero had not filed a statement of claim in the Supreme Court of Western Australia, despite that proceeding being on foot since 24 April 2020. Wärtsilä said that the only relevant document filed in the Supreme Court of Western Australia is the original writ identifying, in the barest of terms, declaratory relief but without articulating or formulating the nature, content, or factual basis of, the declaratory relief. It was submitted that it does no more than indicate that declarations are sought as to entitlements under the subcontract.
Wärtsilä submitted the following comments of White J in Garra Water Investments Pty Ltd v Ourback Yard Nursery Pty Ltd are apt to this matter:[9]
… the defendants have still not filed a defence to the plaintiff’s statement of claim. This meant that the issues have not yet been defined between the parties; the basis for the defendants’ defence, if any, to the plaintiff’s claims is yet to be articulated; and the evidence which may be necessary for the determination of the issues has not been identified. This is unfortunate and makes the determination of the interests of justice for the purposes of s 5(2)(b)(iii) quite difficult. Debelle J referred to this issue in Australian Rail Track Corp v Mineral Commodities Ltd:
[28] It is undesirable for applications to transfer an action to another court to be made prematurely before the issues and all of the parties have been identified. One consequence is that it will not necessarily be clear whether one court is a more appropriate forum than another. As a general rule, the elucidation of the issues and the identification of the parties, especially the latter, will often have a critical bearing upon the outcome of the application. In some proceedings it will, therefore, be preferable for an application to transfer the proceedings to be brought after the issues have been identified and the parties ascertained. As a general rule, it is not an unduly onerous burden for pleadings and other pre‑trial issues to be conducted in a court other than the court in which a party resides or carries on business. The real burden occurs immediately before to prepare for the trial or during the trial when parties and witnesses might be required to travel interstate.
[9] Garra Water Investments Pty Ltd v Ourback Yard Nursery Pty Ltd [2010] SASC 326 at [8].
Wärtsilä contended that, having regard to the state of the pleadings or lack thereof, there is no proper basis for this Court to determine that the Supreme Court of Western Australia is the more appropriate forum for the hearing of the dispute that has been identified in the statement of claim filed in this Court.
It was submitted that the draft statement of claim attached to Ms King’s affidavit should be given no weight and that there is no good reason why the proceeding in Western Australia could not have commenced by way of statement of claim, or have been supported and articulated by way of a statement of claim.
Wärtsilä complained that Primero seeks by the application for transfer to stultify its South Australian proceeding by having it transferred to Western Australia, and at the same time to delay the prosecution of the Western Australia proceeding while seeking to prosecute a further claim under the SOP Act. It was argued that transfer of the proceeding to Western Australia will only proliferate the “interlocutory warfare” occasioned by Primero’s attempts to delay Wärtsilä in the prosecution of its claims to recover sums due to it from Primero. Wärtsilä contended that Primero’s delay is at the expense of Wärtsilä as it has advanced monies on account and has also paid money into this Court pending determination of the judicial review proceeding. Wärtsilä submitted that the interests of justice support the orderly resolution of the issues identified in the South Australian proceeding.
Wärtsilä stated that, whilst it cannot be said with absolute certainty that a view of the site of the project will be required at trial, if a view is required, that view will be conducted at the site, just outside the metropolitan area of Adelaide. Wärtsilä noted that in his second affidavit, Mr Ercegovic deposes that “most” of Primero’s material difference claims relate to works which are not visible on a visit to the site. However, Wärtsilä argued that the affidavit only identifies two claims, “VP124 Step-up Transformer” and “VP114 Material Difference Concrete Compressor Slab”. It was submitted that there are 12 material difference claims identified in the table at Annexure A to Wärtsilä’s statement of claim and that at least three claims may well require a site visit. It was argued that the possibility of a view weighs heavily in favour of this Court being the more appropriate forum and weighs heavily against the Supreme Court of Western Australia being the more appropriate forum.
Wärtsilä highlighted that, whilst Primero has offices in Perth, a number of its personnel are not actually located in Perth, but work far afield in Western Australia. As such, it was contended that travel for the purposes of giving evidence would be necessary for such personnel in any event.
Wärtsilä’s personnel involved in the project are located in Adelaide, India, Finland, and Perth. Accordingly, it is likely that the non-Adelaide personnel would have to travel to any trial. Wärtsilä argued that Perth is not more appropriate than Adelaide in such circumstances. Wärtsilä pointed out that taking evidence via audio-visual link is an option which was utilised by both parties in the judicial review proceeding.
Wärtsilä’s solicitors, senior and junior counsel, are based in Adelaide.
It was submitted that the fact that Primero agreed, pursuant to the subcontract, to submit to the jurisdiction of the courts of this State should not be overlooked and that no cogent reason has been given for its revocation of the “irrevocable” submission to the courts of this State.
Wärtsilä maintained that Primero has not provided any cogent reason or evidence to support a finding that the Supreme Court of Western Australia is the “more appropriate forum”, and that it is entirely unsatisfactory for Primero to seek to transfer this proceeding to Western Australia in circumstances where it has sat on its hands and steadfastly not complied with the requirements of the UCRs (in respect of filing a defence) and had not progressed the proceeding in the Supreme Court of Western Australia. As such, it was submitted that this Court cannot be satisfied that the issues raised in this claim are the same as those that might be filed in Western Australia.
Wärtsilä thereby contended that the proper and appropriate course for Primero to take is to file its defence in this Court and raise, if it wished to do so, any valid counter claim it says it has under the subcontract, deeds or preliminary settlement agreement.
Stay
In the alternative to transfer, Primero argued that as the subject matter of the South Australian proceeding and the Western Australian proceeding is virtually identical and, should both proceedings continue, there is a considerable risk of inconsistent findings in addition to duplication of cost and effort by the parties. As such, it was contended that factors supporting a stay of the South Australian proceeding include:
(a)the fact that the Western Australian proceeding commenced first, on 24 April 2020;
(b)Primero’s likely witnesses are primarily located in Western Australia, and Wärtsilä’s witnesses are not permanent residents of South Australia;
(c)the fact that pleadings in the Western Australian proceeding have not advanced because of the order to suspend the filing of pleadings to allow the adjudication process to complete;
(d)the undesirability of two courts competing to see which of them determines common facts first;
(e)the undesirability of waste of time and effort if it becomes common practice to bring actions in two courts involving substantially the same issues;
(f)Wärtsilä breached clause 34.3 of the subcontract by commencing the South Australian proceeding without complying with the dispute resolution process mandated by clause 34 with respect to its purported determination of outstanding matters and claim for reimbursement under the preliminary settlement agreement; and
(g)Wärtsilä failed to serve a pre-action claim as defined in r 61.7 of the UCRs.
Primero asked that if the Court does not transfer this proceeding to Western Australia, then until Wärtsilä has complied with clause 34.2 of the subcontract and r 61.13 of the UCRs, the Court should stay this proceeding pending further order.
Wärtsilä submitted that it assumed that Primero seeks a stay so as to provide for further rounds of executive negotiation under the subcontract. It further submitted that such a process would be entirely futile given the numerous rounds of previous negotiation between the parties, as identified in Mr Schutz’s affidavit and the fact that the subject matter of the claims articulated in its statement of claim have been the subject of extensive negotiations between the parties, including the processes relevant to the adjudicator’s determination on the payment claim under the SOP Act.
The ‘nuts and bolts’ management decision

I now turn to the “‘nuts and bolts’ management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute”.[10]
[10] BHP Billiton Ltd v Schultz & Ors (2004) 221 CLR 400, 421 at [13], there citing Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714 (Street CJ).
Since the hearing of this application, the Court granted the application for judicial review and quashed the adjudication determination. Further, Primero has reported that it has filed a statement of claim in the Western Australian proceeding. It has not filed a defence in the South Australian proceeding. It is fair to say that, other than the parties’ respective submissions articulating what they each assert the issues to be, there has been no defining of the issues in dispute by the pleadings. As Debelle J stated in Australian Rail Track Corp Ltd v Mineral Commodities Ltd & Anor,[11] it is not desirable for applications to transfer to be made prematurely before the issues and all of the parties have been identified and that in “some proceedings it will, therefore, be preferable for an application to transfer the proceedings to be brought after the issues have been identified and the parties ascertained”.[12]
[11] [2006] SASC 27.
[12] [2006] SASC 27 at [28].
In this matter, the absence of pleadings defining the issues in dispute in Western Australia and in this Court results in there being no proper basis upon which this Court can identify the issues in dispute between the parties in either proceeding, or the evidence that is relevant to the determination of the disputes, and/or the witnesses who will be required to give that evidence. There is no evidence demonstrating that Wärtsilä agreed to Primero not filing a defence to the South Australian proceeding. Wärtsilä contended that it has been agitating for a defence, that it agreed to the consent orders made by the Supreme Court of Western Australia but it did not agree to the slowing down of the South Australian proceedings. Mr Ercegovic’s evidence is to the effect that he will pursue any disputes remaining at the conclusion of the payment claim and adjudication process in the Western Australian proceeding.
The South Australian proceeding and the Western Australian proceeding are related proceedings in that the subcontract is common to each of the proceedings. In entering into the subcontract, Wärtsilä and Primero agreed to submit to the jurisdiction of the courts of South Australia to resolve disputes concerning the project, the site of which is in South Australia. If, during the trial of Wärtsilä’s claim, the Court requires a view, that can be more easily accommodated in this jurisdiction.
Primero has its registered office, legal team, and personnel who may be required to give evidence in Western Australia.
Wärtsilä has its registered office in New South Wales, its legal team in South Australia, and witnesses in South Australia, India, Finland, and Western Australia.
I note by reference to Mr Ercegovic’s affidavit sworn 16 July 2020 that the negotiations for the subcontract occurred primarily via Skype videoconferencing. By reference to Mr Schutz’s affidavit, Wärtsilä representatives and Primero representatives conferred via Microsoft Teams video conference concerning the March 2020 dispute notice Primero sent Wärtsilä in relation to the payment claim. I also note that the judicial review proceedings involved the adducing of the witnesses’ evidence-in-chief by affidavit and cross-examination by audio‑visual link from Perth and Mumbai. COVID-19 has caused the Court and its litigants to become more proficient in conducting hearings by audio-visual link. As Debelle J stated:[13]
In these days of quick and efficient transport and communication, questions of convenience have less force than hitherto. The speed and facility of both electronic and telephonic communication enables ready and immediate contact with a person interstate. The ready availability of air transport reduces the inconvenience of interstate travel …
Technology has evolved and developed in the 14 years that have elapsed since Debelle J referred to “these days of quick and efficient transport and communication …”. Further, as intrastate and international transport and travel have been halted during the COVID-19 pandemic, hearings are frequently conducted “electronically”.
[13] Australian Rail Track Corp Ltd v Mineral Commodities Ltd & Anor [2006] SASC 27 at [26].
In determining whether it is in the interests of justice that the South Australian proceedings be transferred to the Supreme Court of Western Australia, I have taken into account the location of the registered offices of Wärtsilä and Primero, Wärtsilä and Primero’s connection to South Australia, the cost and inconvenience to Wärtsilä and Primero, their prospective witnesses, the agreement that the subcontract is governed by the law of South Australia and the agreement to irrevocably submit to the non-exclusive jurisdiction of the courts of South Australia, the fact that a detailed statement of claim was filed at the commencement of the South Australian proceeding, the fact that the absence of pleadings defining the issues in dispute hinders the identification of the issues genuinely in dispute and the evidence relevant to the determination of the disputes and the witnesses required, the possible need for the Court to view the site of the project, and the location of Wärtsilä and Primero’s legal teams.
On my assessment, at this early stage of the proceeding the conflicting advantages and disadvantages to Wärtsilä and Primero cancel one another out as described by Callinan J in BHP Billiton Ltd v Schultz & Ors, that is, “one person’s legitimate advantage is another’s disadvantage”.[14] After weighing the factors referred to above, it is not more appropriate that the South Australian proceeding be determined by the Supreme Court of Western Australia and it is not otherwise in the interests of justice to exercise the power of transfer under the Cross-vesting Act.
[14] (2004) 221 CLR 400, 492 at [258].
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 a stay is premature and arguably would, as submitted by Wärtsilä, replicate the negotiations that have occurred already.
Conclusion
I decline to exercise the power of transfer.
I decline to order a stay of the South Australian proceeding.
I dismiss Primero’s application, FDN 3.