Aquila Resources Limited v Pasminco Limited

Aquila Resources Limited v Pasminco Limited - [2004] FCA 39 - FCA 1989 case summary — Zoe

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REASONS FOR JUDGMENT 1 On behalf of the respondents notices of motion are brought seeking the removal of each of the within proceedings from the Western Australia District Registry to the Victoria District Registry of this Court. The applications are brought in reliance on the power to that end contained in s 48 of the Federal Court of Australia Act 1976 (Cth). 2 Applicable principles to invoke the Court's power under that section are common ground. They were expressed in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 by a Full Court constituted by Bowen CJ, Woodward and Lockhart JJ. There the Court recognised (at 162) that the power conferred by the above section is in terms wholly unfettered. It was said, '[such power] should be exercised flexibly having regard to the circumstances of the particular case'. As the section permits the power to be exercised subject to conditions, it is possible to mould orders to take account of the many and varied circumstances that arise in particular cases. It was accepted that the factors which a court is entitled to take into account in considering whether one location is more appropriate than another for interlocutory hearings or for the trial are numerous and that the Court must weigh those factors in each case. Factors noted as having possible relevance are the residence of parties and witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself. Additionally, the balance of convenience was generally thought to be relevant 'but not necessarily determinative of each case'. Nevertheless, it is an important consideration and its weight must vary from case to case. Where the application is brought there is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. Nevertheless, the Court must be satisfied after considering all relevant matters 'that there is sound reason to direct that the proceeding be conducted or continued elsewhere'. The Court said that ultimately the test is 'where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court'. The Court also accepted that difficult questions arise where the relevant laws in more than one State or Territory differ in its effect on the rights of the parties, particularly because it may be difficult for the Court to assess at an early stage of a proceeding whether the differences will affect the rights of the parties. Although these principles are well known, I have set them out because aspects of them were put in issue in the course of address by counsel in relation to the notices of motion. 3 The notice of motion in matter W3007 of 2003 is supported by affidavits of Mr Walker sworn on 17 November 2003 and 27 November 2003. In matter W136 of 2003 the notice of motion is supported by affidavits of Mr Walker sworn on 4 September 2003 and 27 November 2003. The case for the applicants in matter W3007 of 2003 relies upon an affidavit of Mr Brown sworn on 5 November 2003 and in matter W136 of 2003 on a affidavit of Mr Brown sworn on 2 December 2003 and an affidavit of Mr Poli sworn on 5 November 2003.

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proceeding w3007 OF 2003 4 The application in matter W3007 of 2003 was filed with the Court on 26 March 2003. It is an application to set aside deeds of company arrangement. Although there have been no pleadings filed in this proceeding it appears that the essence of the applicants' case is that the third and fourth respondents (also described as 'the Savage companies') were not insolvent as at the date when they were placed into voluntary administration because they were not party to a Deed of Cross Guarantee prevailing in respect of the Pasminco group of companies. The relief sought by the applicants is the termination of the respective administrations and of the respective deeds of company arrangement binding the third and fourth respondents. 5 On 27 March 2003 an interlocutory injunction was granted preventing the Deed administrators from putting forward a resolution to the creditors of the third and fourth respondents to vary each of the deeds of company arrangement operating in respect of those companies: Aquila Resources Limited v Spark [2003] FCA 394. In the reasons delivered in connection with that application it was stated that it will be asserted for the applicants that the Savage companies are not and have never been parties to the Deed of Cross Guarantee because although the Savage companies executed the necessary Deed of Assumption evidencing their attention to be joined as a party to the Deed of Cross Guarantee, the former document was never lodged at the Australian Securities and Investment Commission and so did not take effect, although it may provide an arguable basis for an issue of estoppel. It will be contended that the directors of the Savage companies proceeded on the erroneous understanding that the contingent liabilities of those companies had been assumed pursuant to the Deed of Cross Guarantee so there could not have been a proper basis for resolving to place them in voluntary liquidation. It will be further contended that it is highly probable that at the time of being placed into administration each of the Savage companies was solvent. The applicants have submitted a proof of debt to the administrators of the Savage companies in the amount of $153 million and the administrators have admitted the applicants as a creditor to that nominal value for voting purposes. 6 The applicants recognise that proceeding W3007 of 2003 may not be capable of final resolution until their claim in proceeding W136 of 2003 has been determined because the extent to which the applicants are established, finally, as creditors of the respondent companies may be relevant to the Court's exercise of discretion in such proceedings. However, the applicants contend it would not be appropriate for forestall W3007 of 2003 completely pending determination of the other proceedings at this stage and that further interlocutory progress could be made. On the other hand the administrators' solicitors have asserted that proceeding W3007 of 2003 should be stayed pending resolution of the applicants' claim in proceeding W136 of 2003.

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proceeding w136 of 2003 7 The claim in proceeding W136 of 2003 is for damages for contravention of s 52 of the Trade Practices Act 1975 (Cth) or, in the alternative, for breach of contract. The claim is on behalf of the applicants against Pasminco Limited and the Savage companies. It arises out of alleged representations said to have been made by or on behalf of the respondents in the course of negotiations as to the sale to the applicants of the respondents' interest in the Ernest Henry Copper Mine located in Northern Queensland. It is alleged these negotiations were conducted by Mr Poli on behalf of the applicants and by Messrs Lambert, Stewart, Furphy and Allard on behalf of the respondents. At the time of those negotiations the respondents' representatives were, respectively, a director of each of the respondents and chief executive officer of the first respondent; company secretary of the first respondent; general manager planning of the first respondent; and a partner in the solicitors for the respondents. It is alleged that certain representations were made by or on behalf of the respondents in early March 2001 in communications passing between the applicants' representatives (in particular Mr Poli) and the respondents' representatives (in particular Mr Lambert and Mr Stewart). Those communications are alleged to have taken place during telephone conversations between the respondents' representatives in Victoria and the applicants' representatives in Western Australia. 8 Paragraph 18 of the statement of claim alleges that on or about 27 February 2001 there were communications between Mr Mangini of Credit Suisse First Boston Australia Limited ('Credit Suisse') on behalf of the respondents and Mr Baker of MIM Holdings Limited ('MIM'). Paragraph 19 pleads that on or about 28 February 2001 there were communications between Mr Lambert on behalf of the respondents and Mr Angus Graham on behalf of MIM Holdings Limited. Paragraph 21 of the statement of claim pleads that on or about 1 March 2001 there were communications between Mr Graham and Mr Ben Zilman of Allens Arthur Robinson on behalf of MIM Holdings Limited and Mr Lambert and Mr Furphy. 9 The claim for damages for breach of contract arises out of the alleged breach by the respondents of the terms of the Deed of Commitment pleaded in par 13(b) of the statement of claim. The statement of claim at par 14 also pleads certain express terms of the proposed share sale agreement.

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interrelationship with w136 of 2003 24 For the applicants it is contended that proceeding W3007 of 2003 should await the outcome of the applicants' substantial claims in W136 of 2003 so that it is premature to anticipate how any final hearing in W3007 of 2003 should be managed. For the respondents it is accepted that it is only if the applicants succeed in their application in W136 of 2003 that they will be established as creditors of the third and fourth respondents and have standing to apply for the termination of the deeds of company arrangement in respect of those respondents in W3007 of 2003. 25 In response to this Mr Walker relies on his evidence to the effect that included among the orders made by the Court in Pasminco proceedings are orders relating to borrowings made by the administrators to fund the Pasminco group during the voluntary administration period. The outcome of proceeding W3007 of 2003 may have implications for those orders in that if the applicants succeed in that proceeding, the respondents' counsel foreshadowed, that the Court would be asked to rule on the efficacy of the claimed lien. This would effect not the just the third and fourth respondents but all other companies in the Pasminco group which were parties to the original application and which were subject to the orders made. I regard these matters as establishing a relevant interconnection between W3007 of 2003 and the Pasminco proceeding, although it is not apparent how that interrelationship can give rise to orders in anticipation until such time as W3007 of 2003 is resolved. 26 The case for the applicants stresses that it has always been common ground that the resolution of W3007 of 2003 needs to await the resolution of W136 of 2003 because it is necessary before final orders can be made in the latter for the applicants to establish their position as a creditor. To this end it was said that the respondents' position was that W3007 of 2003 should be stayed pending the outcome of W136 of 2003. The applicants have, however, attempted to progress the discovery of certain documents in W3007 of 2003, although there has been no progress on agreement in that regard. The applicants' position is that it is premature for the Court to have regard to how W3007 of 2003 could impact on the Pasminco proceedings in Victoria because those issues are not now live issues on either party's approach to W3007 of 2003.

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RESIDENCE OF PARTIES AND OF WITNESSES 27 For the applicants it is submitted, it is too early to determine in proceeding W136 of 2003 where the balance of convenience lies in relation to witnesses. It is said that it is just not possible at this stage to make an informed decision. Nevertheless, it is accepted for the applicants that given the nature of the allegations of the representations, Messrs Poli, Fearis and Daniel are prospective witnesses for them and Messrs Lambert, Stewart and Furphy are prospective witnesses for the respondents together with Mr Allard. These relate to par 24 and par 25 of the statement of claim. 28 With respect to pars 18, 19, 20, 21, 22 and 23 of the statement of claim, it is said that these are matters upon which the applicants carry the onus of proof, being the context in which the applicants do not plead positively but rather plead denials. 29 It is also said that it is not clear on the evidence, to what extent some of the matters really will be in issue. The submission is that until discovery has been given and other interlocutory procedures (such as interrogatories or notices to admit) have been completed, it is premature to make an informed decision concerning the true nature and extent of the contest in relation to the matters pleaded. Examples were given in oral submissions arising from pars 18, 19 and 23 of the statement of claim. 30 The residence of the parties remains as it is in W3007 of 2003. 31 The witnesses in W136 of 2003 appear from the evidence for the respondents as potentially comprising eight persons, four of whom are resident in Melbourne and the other four of whom are resident in Brisbane or Queensland. The evidence for the applicants shows the likelihood of three witnesses being called, all from Perth. 32 In his affidavit Mr Poli deposes that as Executive Chairman of the applicant companies he is responsible for overseeing the operations of the company as a whole and for briefing the applicants' solicitors. He states that there would be significant disruptions to the day-to-day management of the applicants if he was obliged to spend time away interstate from his offices in Western Australia. He states it is a small listed company with a staff of 4 people (excluding himself) and there is no person who can assume his role, for example, in authorising payments of cheques. Therefore, there would be substantial burden on the applicants if the proceedings were transferred. 33 For the respondents reliance is placed on observations of Carr J in Wyllie Group at [24] to the effect that preparation of evidence could take place in Perth and that the witness would not be required to be in Victoria for very long. His Honour accepted in that case that if the applicants chose to instruct Victorian solicitors and brief different counsel, this would involve additional expense. However, he did not regard that course as being inevitable and noted that interlocutory applications could be dealt with by video-link. 34 In relation to the reasoning of Carr J in Wyllie Group it is submitted for the applicants that it would not be reasonable to expect Mr Poli simply to attend and to give evidence when the litigation is of such import to the companies of which he is Executive Chairman and that he would be responsibly required to remain throughout the litigation with consequent inconvenience and cost to the applicants.

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governing law of the transactions 36 It is a relevant factor that the agreements refer to a choice of governing law: KC Park Safe (SA) Pty Ltd v Adelaide Terrace Investments Pty Ltd (unreported, Finkelstein J, 15 May 1998). This is so even though there may not be any relevant difference between the law of the two jurisdictions: Wyllie Group at [29]. 37 In W136 of 2003 the Deed of Commitment provides: 'Governing law and jurisdiction (a) This deed is governed by the laws of Victoria, Australia. (b) Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria. (c) Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum. Clause 13.2 of the Proposed Share Sale Agreement provided: 'Governing law and jurisdiction (a) This deed is governed by the laws of Victoria, Australia. (b) Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria. (c) Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.' 38 For the respondents it is submitted that par (c) of the each of the above clauses, properly read in its context, amounts only to a waiver of objection to Victoria as a venue. It is said that any other construction of par (c) would set at nought the provisions of par (a) and par (b). Further, it is submitted, that par (c) can, in any event, have no application here because the motion before the Court is not one based upon the rules concerning forum non conveniens. 39 For the applicants it is said that it is important that in par (b) in each of the clauses above the submission to jurisdiction is a non-exclusive submission. Such a provision leaves the parties with the right to sue in any other court which may have jurisdiction: Dicey & Morris on The Conflict of Laws, vol 2, 12-076. As to par (c) in each of the clauses, it is said, this constitutes an irrevocable waiver of any objection on the basis that the process has been brought in an inconvenient forum. It is submitted that the submissions for the respondents make it apparent that the inconvenience of Perth as a forum is at the foundation of their case for transfer. Therefore, it is said, that as the parties have reached a contractual agreement on this issue, the Court should recede from approaching the matter in a way which would frustrate that contractual agreement. However, it is accepted, the existence of the contracted provision does not preclude the exercise of the Court's discretion pursuant to s 48 of the Federal Court Act if the preponderance of factors favours the exercise of discretion in that way. 40 In my opinion the submissions for the applicants are correct. Given that par (b) is referable to non-exclusive jurisdiction, there is no inconsistency in reading par (c) in the manner contended for on behalf of the applicants. Furthermore, it is the fact that the respondents' case is based, at least in part, on arguments of the inconvenience of the forum so that the language of par (c) is attracted even though the application is not itself cast so as to be based upon the rules concerning forum non conveniens. 41 In KC Park Safe,Finkelstein J adopted the approach that a court can and should require parties to abide by their choice of a forum unless there is some good reason why that should not be done. I propose to follow that course.

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CONCLUSION 51 I am very aware of the submissions for the applicants that, as relatively small companies based in Perth with a firm of solicitors not possessed of interstate offices, any transfer to the Victorian registry may adversely affect them in the conduct of the litigation. However, I must apply the recognized tests on the present motions. Additionally it is appropriate to observe that the video-conference facilities of the Court in Perth would be available to the Perth based parties for interlocutory applications hearings and directions. Any anticipated adverse impact is capable of being substantially minimised. 52 In relation to proceeding W136 of 2003, I consider, like von Doussa J in AMC Investments, that all factors considered, this case has a strong Victorian character. Particularly when the interests of all the other persons who might be involved as witnesses are taken into account, it becomes apparent that the ends of justice would best be achieved by having the matter heard in Melbourne and that it would be the most suitable place for the continuance and conduct of the proceedings. Either way, there will be additional inconvenience and expense to one or other of the principal parties because they have their bases in different cities. The inference from all the circumstances is that the lesser inconvenience and expense will occur if the matter is managed from the Victorian registry. Additionally there are possible advantages in having all interrelated litigation managed from one registry, which would not be the case if these proceedings continued in the Western Australia District Registry. 53 In relation to proceeding W3007 of 2003, I have given consideration to the possibility that this proceeding will be stayed pending determination of the issues in proceeding W136 of 2003. That would favour not making any orders at present and holding the motion for transfer over until that determination. However, that course seems to me to deny the fundamental interconnection between this proceeding, proceeding W136 of 2003 and the Pasminco proceeding. To seek to hold proceeding W3007 of 2003 in abeyance would create an unnecessary artificiality when the evidence show that if that proceeding were to proceed, the most suitable and efficient place for the hearing and management of it would be in the Victoria District Registry. 54 In reaching each of these views I have taken into account the effect of the choice of law clauses in W136 of 2003 but I consider that effect is outweighed by the other circumstances. 55 The result is that I consider each of the notices of motion should be granted. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

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