WHYALLA REFINERS PTY LTD -v- GRANT THORNTON (A FIRM) & ANOR [2001] WASC 49

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 49
Case No:	CIV:1397/1999	Heard:	13 FEBRUARY 2001
Coram:	MILLER J	Delivered:	6/03/01
No of pages:	13	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	WHYALLA REFINERS PTY LTD (ACN 063 271 625) GRANT THORNTON (A FIRM) SOUTHERN CROSS PETROLEUM SALES (SA) PTY LTD (IN LIQ)
Catchwords:	Cross-vesting Jurisdiction of Courts (Cross-Vesting) Act, s 5(2) Interests of justice Relevance of rules of private international law Right of plaintiff to require court to exercise jurisdiction Onus of proof
Legislation:	Fair Trading Act 1987 (WA), s 10 Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 5(2) Jurisdiction of Courts (Cross-Vesting) Bill 1986 (Cth) Trade Practices Act 1974 (Cth), s 52
Case References:	Baffsky v John Fairfax & Sons Ltd (1990) 97 ACTR 1 Bailey (By his next friend The Public Trustee) v Climaze Holdings Pty Ltd, unreported; SCt of WA; Library No 980455; 12 August 1998 BankInvest AG v Seabrook (1988) 14 NSWLR 711 Bond v Larobe Pty Ltd, unreported; Library No 920057; 31 December 1991 Chapman v Jansen (1990) 100 FLR 66 Dawson v Baker (1994) 120 ACTR 11 Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd [1990] 1 WAR 531 Platz v Lambert (1994) 12 WAR 319 Waterhouse v Australian Broadcasting Corporation (1989) 86 ACTR 1 Interceramics Australia Pty Ltd v Quadric Pty Ltd, unreported; Library No 970610; 14 November 1997 Van der Sluys v Anaconda Nickel Ltd [2000] NSWSC 719

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WHYALLA REFINERS PTY LTD -v- GRANT THORNTON (A FIRM) & ANOR [2001] WASC 49 CORAM : MILLER J HEARD : 13 FEBRUARY 2001 DELIVERED : 6 MARCH 2001 FILE NO/S : CIV 1397 of 1999 BETWEEN : WHYALLA REFINERS PTY LTD (ACN 063 271 625)

Plaintiff

AND

GRANT THORNTON (A FIRM)

First Defendant

SOUTHERN CROSS PETROLEUM SALES (SA) PTY LTD (IN LIQ)

Second Defendant

Catchwords:

Cross-vesting - Jurisdiction of Courts (Cross-Vesting) Act, s 5(2) - Interests of justice - Relevance of rules of private international law - Right of plaintiff to require court to exercise jurisdiction - Onus of proof

Legislation:

Fair Trading Act 1987 (WA), s 10

Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 5(2)
Jurisdiction of Courts (Cross-Vesting) Bill 1986 (Cth)

(Page 2)

Trade Practices Act 1974 (Cth), s 52

Result:

Application dismissed

Representation:

Counsel:

Plaintiff : Mr C G Colvin

First Defendant : Mr P C Doherty

Second Defendant : Mr P C Doherty

Solicitors:

Plaintiff : Arthur Robinson & Hedderwicks

First Defendant : Minter Ellison

Second Defendant : Minter Ellison

Case(s) referred to in judgment(s):

Baffsky v John Fairfax & Sons Ltd (1990) 97 ACTR 1
Bailey (By his next friend The Public Trustee) v Climaze Holdings Pty Ltd, unreported; SCt of WA; Library No 980455; 12 August 1998
BankInvest AG v Seabrook (1988) 14 NSWLR 711
Bond v Larobe…

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: [2001] WASC 49
Decision Date

CaseChat Overview and Summary

Whyalla Refiners Pty Ltd initiated proceedings against Grant Thornton (A Firm) and Southern Cross Petroleum Sales (SA) Pty Ltd in the Supreme Court of Western Australia, seeking damages for negligent misrepresentation and misleading conduct under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (WA). The claim against Grant Thornton (A Firm) was based on its alleged misleading representations regarding the financial stability of Southern Cross Petroleum Sales (SA) Pty Ltd, which induced Whyalla Refiners Pty Ltd to extend credit. Grant Thornton (A Firm) sought to transfer the proceedings to South Australia, arguing that the matters in issue were more closely linked to that jurisdiction. The court considered whether the transfer was in the interests of justice and whether the plaintiff's right to choose its forum should be upheld. The court found that the forensic considerations were evenly balanced, and that the plaintiff's right to require the court to exercise its jurisdiction should not be displaced without a clear demonstration of real injustice to the defendant. The application for transfer was dismissed.

Orders