WESTERNVILLE Pty Ltd v Compair (Australasia) Ltd
[2000] WASC 219
•5 SEPTEMBER 2000
WESTERNVILLE PTY LTD & ANOR -v- COMPAIR (AUSTRALASIA) LTD [2000] WASC 219
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 219 | |
| 05/09/2000 | |||
| Case No: | CIV:1619/2000 | 25 AUGUST 2000 | |
| Coram: | SCOTT J | 25/08/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | WESTERNVILLE PTY LTD COMBINED MULCHING AND RECYCLING PTY LTD COMPAIR (AUSTRALASIA) LTD |
Catchwords: | Jurisdiction, practice and procedure Jurisdiction Matters connected with conduct of defence Application to transfer proceedings to different jurisdiction Jurisdiction of Courts (Cross Vesting) Act 1987 (WA) Trade and commerce Related matters Jurisdiction Representations prior to sale |
Legislation: | Jurisdiction of Courts (Cross Vesting) Act 1987 (WA) s 5 |
Case References: | Crouch v Commissioner for Railways (QLD) (1989) 63 ALJR 416 John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 Platz v Lambert & Anor (1994) 12 WAR 319 Seymour-Smith v The Electricity Trust of South Australia (1989) 97 FLR 160 Akai Pty Ltd v Peoples Insurance Co Ltd (1996) 188 CLR 418 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 Deeks v Little Moreton Trading Pty Ltd (1995) 14 WAR 58 FAI General Insurance Co Ltd v Ocean Maritime Mutual Protection & Indemnity Association (1996) 41 NSWLR 117 Interceramics Australia Pty Ltd v Quadric Pty Ltd, unreported SCt of WA (Scott J); Library No 970610; 14 November 1997 Leigh-Mardon Pty Ltd v PRC Inc (1993) 44 FCR 88 Mullins Investments Ltd v Elliot Exploration Co Pty Ltd (1990) 1 WAR 531 Norton's Settlement: Norton v Norton [1908] 1 Ch 471 Oceanic Sun Line Special Shipping Co Inc v Fay (1987-1988) 165 CLR 197 Re Wilcox (1996) 66 FCR 511 S & W Berisford Plc v New Hampshire Insurance Co [1990] 1 Lloyd's Rep 454 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Waterhouse v Australian Broadcasting Corporation (1989) 97 FLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
COMBINED MULCHING AND RECYCLING PTY LTD
Second Plaintiff
AND
COMPAIR (AUSTRALASIA) LTD
Defendant
Catchwords:
Jurisdiction, practice and procedure - Jurisdiction - Matters connected with conduct of defence - Application to transfer proceedings to different jurisdiction - Jurisdiction of Courts (Cross Vesting) Act 1987 (WA)
Trade and commerce - Related matters - Jurisdiction - Representations prior to sale
(Page 2)
Legislation:
Jurisdiction of Courts (Cross Vesting) Act 1987 (WA) s 5
Result:
Application dismissed
Representation:
Counsel:
First Plaintiff : Mr R H B Pringle QC and Mr R J Allen
Second Plaintiff : Mr R H B Pringle QC & Mr R J Allen
Defendant : Mr S M Davies
Solicitors:
First Plaintiff : Murfett & Co
Second Plaintiff : Murfett & Co
Defendant : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Crouch v Commissioner for Railways (QLD) (1989) 63 ALJR 416
John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109
Platz v Lambert & Anor (1994) 12 WAR 319
Seymour-Smith v The Electricity Trust of South Australia (1989) 97 FLR 160
Case(s) also cited:
Akai Pty Ltd v Peoples Insurance Co Ltd (1996) 188 CLR 418
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725
Deeks v Little Moreton Trading Pty Ltd (1995) 14 WAR 58
FAI General Insurance Co Ltd v Ocean Maritime Mutual Protection & Indemnity Association (1996) 41 NSWLR 117
Interceramics Australia Pty Ltd v Quadric Pty Ltd, unreported SCt of WA (Scott J); Library No 970610; 14 November 1997
Leigh-Mardon Pty Ltd v PRC Inc (1993) 44 FCR 88
Mullins Investments Ltd v Elliot Exploration Co Pty Ltd (1990) 1 WAR 531
(Page 3)
Norton's Settlement: Norton v Norton [1908] 1 Ch 471
Oceanic Sun Line Special Shipping Co Inc v Fay (1987-1988) 165 CLR 197
Re Wilcox (1996) 66 FCR 511
S & W Berisford Plc v New Hampshire Insurance Co [1990] 1 Lloyd's Rep 454
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Waterhouse v Australian Broadcasting Corporation (1989) 97 FLR 1
(Page 4)
1 SCOTT J: The first and second plaintiffs in this action are companies incorporated in Western Australia. The defendant is a company incorporated in the State of Victoria that has a branch office in Western Australia inter alia selling mulching machines.
2 As the statement of claim in this action sets out, on or about 28 January 1999 two directors of the first and second plaintiffs met with an employee of the defendant with a view to the plaintiffs acquiring a biogrind mulching machine ("the biogrind") from the defendant for use by the second plaintiff in the course its mulching business.
3 The plaintiffs plead against the defendant that at the time of the negotiations, the defendant was advised of the plaintiffs' requirements with respect to the required ability of the biogrind to deal with the particular green waste which the second plaintiff had to mulch.
4 The plaintiffs plead against the defendant certain representations said to have been made as to the suitability of the biogrind to meet the plaintiffs' requirements.
5 The plaintiffs plead that eventually the first plaintiff sent a written notice to the defendant offering to purchase the mulcher subject to finance. It is common ground that the defendant ultimately sold the biogrind to Elderslie Finance Corporation Ltd who acquired the biogrind and leased it to the first plaintiff on certain terms and conditions.
6 The plaintiffs plead that the biogrind did not operate in the manner represented by the defendant and as a result loss and damage was occasioned to the plaintiffs.
7 The second plaintiff pleads that it suffered damaged by reason of the biogrind breaking down, and that it lost income during the time that the machine was being repaired. In addition, it lost business as a result of being unable properly to use the biogrind.
8 The defendant entered a conditional appearance to the writ of summons and filed an application to set aside the originating process, or, alternatively, to transfer proceedings to the State of Victoria, pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 of Western Australia.
9 Whilst in the defendant's outline of submissions it was originally contended that there was a contractual relationship between the defendant and the plaintiffs, in the course of argument that contention was
(Page 5)
- abandoned by counsel for the defendant. Counsel conceded that there was no contract between the plaintiffs and the defendant to purchase the biogrind, which was ultimately sold by the defendant to Elderslie Finance Corporation Ltd and leased by that company to the plaintiffs.
10 The second plaintiff utilised the machine in its business.
11 The defendant contends that in the course of its negotiations with the plaintiffs, a copy of its standard terms and conditions of sale was forwarded to Laurie Ellis Earthmoving, a company under the control of Mr Laurie Ellis, who was a director of the second plaintiff. There is a dispute as to whether that facsimile was ever received by the second plaintiff and as to whether or not it ever came to the attention of the plaintiffs' directors. Be that as it may, counsel for the defendant concedes that the defendant's terms and conditions of sale never became part of any contractual relationship between the defendant and the plaintiffs.
12 Importantly, one of the defendant's terms and conditions in its standard contract provided:
"This agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of Victoria and the parties hereto irrevocably submit to the jurisdiction of the courts of that State including any courts having appellate jurisdiction therefrom."
13 Once it is conceded that the biogrind was not sold by the defendant to either of the plaintiffs, the most that could be said of that clause is that it was a proposed condition which the defendant would ordinarily include as part of its standard selling conditions.
14 In support of the defendant's application counsel for the defendant maintains that the defendant will be obliged to call at least five witnesses to defend this claim. It is said that none of the defendant's witnesses remain employed by the defendant, and as a consequence they will have to be subpoenaed. In addition, there is a further witness from Queensland and one from the United States who will be called to testify. It is contended that these witnesses may be reluctant to come to Western Australia to testify, as they will be a long way from their place of residence and their place of employment. On the other hand it is contended that the plaintiffs' witnesses are in the employ of the plaintiffs so that they would be willing and co-operative witnesses for the plaintiffs and would not be inconvenienced by giving evidence in Victoria.
(Page 6)
15 I would add that there is no evidence to suggest that any of the defendant's witnesses are either unwilling to come to Western Australia or object to giving evidence in this State.
16 On the other hand, the plaintiffs' position is that the negotiations for the acquisition of the machine were all conducted in Western Australia; that the machine was sent to this State where it remains and that any damage sustained by the plaintiffs occurred here.
17 In my opinion it is not necessary to determine the interesting argument concerning the effect of cl 9(4) of the defendant's terms of sale as it is conceded that there was no direct contract between the plaintiffs and the defendant for the purchase of the machine. The effect of that clause, if any, will be a matter for evaluation by the trial Judge.
18 The present application is made pursuant to s 5(2)(b)(iii) of the Jurisdiction of Court (Cross-Vesting) Act 1987 (WA) ("the Act"). That section relevantly provides:
"5(2) Where -
(a) a proceeding (in this subsection referred to as the 'relevant proceeding') is pending in the Supreme Court (in this subsection referred to as the 'first court'); and
(b) it appears to the first court that -
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory-
19 In considering the appropriate principles to apply in making the decision, it is necessary to refer briefly to some of the authorities on the Act. In Platz v Lambert & Anor (1994) 12 WAR 319 Malcolm CJ said at 323:
"The legislation was enacted against the background in which there were many sterile jurisdictional arguments being raised, particularly as between the Federal Court of Australia and the Supreme Courts of the States on the other hand.
(Page 7)
- All of this caused a great deal of inconvenience and the purpose of the legislation was to ensure that amongst other things litigation would be dealt with in a most convenient forum. In Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 517, Ipp J had earlier expressed the view that the purpose of the Act was to alleviate the difficulties referred to in the explanatory memorandum.
His Honour held in Mullins Investments Pty Ltd v Elliot Exploration Co Pty Ltd (1990) 1 WAR 531 that the expression 'the interests of justice' in s 5(2)(b)(iii) of the Act had to be construed so as to give effect to the purpose of the Act. In Waterhouse v Australian Broadcasting Corporation (1989) 97 FLR 1 at 16-17, Kelly J said of the phrase 'the interests of justice':
'Whatever be the correct interpretation of the phrase, I think that these applications may be decided on the narrower ground that an order for transfer should be made if, having made all due allowance for the plaintiff's right to bring their action in this court with such forensic advantages as may attend upon that course, the expense and inconvenience which would fall upon the defendant and result in real injustice to it: see Re Norton's Settlement; Norton v Norton [1980] 1 Ch 471 at 482 per Vaughan Williams LJ'."
"The aim is, I think, to select the court which, in all the circumstances, will facilitate the course of litigation".
21 In this case, in my view, it is inevitable that the course of litigation is better served by the matter remaining in the Supreme Court of Western Australia. The biogrind is here and should it be necessary to have that machine inspected or re-examined, that can be done in this State. The plaintiffs' witnesses all reside here, and it is alleged that the damage occurred here. The majority of the defendant's witnesses on the other hand, are inevitably going to have to travel either to Victoria or to Western Australia, depending upon where the litigation is conducted, and so will be subject to the inconvenience that such travel involves.
(Page 8)
22 In my opinion, once the concession was made by counsel for the defendant that the jurisdictional clause in the defendant's contract of sale (cl 9(4)) played no part in any contractual relationship between the plaintiffs and the defendant, the thrust of the defendant's application fell away.
23 It is for these reasons that on 25 August 2000 I dismissed the defendant's application and made consequential orders.
24 I would add that the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 has indicated that the lex locidelicti should be the governing rule with respect to torts committed in Australia which have an interstate element. In this case it is not in issue that the plaintiffs' cause of action arose in Western Australia, which is the appropriate forum for the resolution of this dispute.
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