THE DISCRETION OF THE COURT
39 Clough submits that this Court is not a clearly inappropriate forum: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, 570-571. It points to the balance of factors weighing in favour of the competing jurisdiction:
(a) The factors that favour an Indian court exercising jurisdiction include: ONGC is an Indian company; the project is in India and off the Indian coast; the proper law of the contract is Indian law and there is an exclusive jurisdiction clause, subject to the arbitration clause, in relation to the Courts of India.
(b) The factors that favour an Australian court exercising jurisdiction include: Clough is an Australian company; the parties could not have intended that the foreign jurisdiction/arbitration clause would apply to a TPA claim: Hi-Fert Pty Ltd v Kukiang Maritime Carrier Inc (1998) 90 FCR 1; it is the contractor to the project; importantly, the performance guarantees will be called in Australia and, in this proceeding, Clough seeks to enjoin the calling of the performance guarantees; and, if they are called, loss will be suffered by Clough in Australia.
40 There are other factors, however, which I consider, on balance, favour a view arguably that this Court is not a clearly inappropriate forum. They are that:
(a) Clough seeks urgent interlocutory relief (beyond the interim protection granted and to be granted) to enjoin the calling of performance guarantees and payment thereunder in Australia.
(b) In respect of its claim under the Act, Clough would be deprived of its right to seek to obtain declaratory and injunctive relief in respect of ONGC's conduct said to contravene the Actif it were left to sue in India.
41 The choice of the exclusive jurisdiction of the Courts of India in the Contract does not necessarily prevent this Court taking jurisdiction where there is a strong case for the Court doing so: Leigh-Mardon Pty Ltd v PRC Inc (1993) 44 FCR 88, 95-99. As I have mentioned, were the matter to be dealt with in India, Clough would be deprived of a legitimate personal or juridical advantage, namely its ability to invoke relief under the Act. It is relevant, in this context to have regard to the object of the Actwhich, by s 2, is to enhance the welfare of Australians through the promotion of competition and fair trading and provision of consumer protection. The remedy conferred by the Act, in respect to s 51AA cannot be lost, whatever the parties agree in their contract. See, by analogy Clark Equipment Australia Ltd v Covcat Pty Ltd (1987) 71 ALR 367, 371. The Act is 'a public policy statute'. Its operation cannot be ousted by private agreement. 'Parliament passed the [TPA] to stamp out unfair or improper conduct in trade or in commerce; it would be contrary to public policy for special conditions such as those with which this contract was concerned to deny or prohibit a statutory remedy for offending conduct under the [TPA]': Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546, 561. See also IOOF Australia Trustees (NSW) Ltd v Tantipech (1998) 156 ALR 470, 478-480. Any attempt to contract out of the remedies conferred by the Actmay be void: Hi-Fert Pty Ltd v Kukiang Maritime Carrier Inc (1998) 90 FCR 1, 24.
42 In Akai Pty Ltd v People Insurance Co Ltd (1996) 188 CLR 418, 445, the High Court confirmed that an application to stay proceedings on the basis that the proceedings were brought in breach of a foreign jurisdiction clause 'may be refused where the foreign jurisdiction clause offends the public policy of the forum whether evinced by statute or declared by judicial decision'. The policy of the Actmilitates against this Court refusing to accept jurisdiction. The Court is required to give decisive weight to the effective operation of the Act: Akai, 447.
43 If an Australian protective provision would be avoided by forcing an applicant to sue in the courts of nominated jurisdiction, that is an important factor which should overcome the pre-disposition of the court to refuse to accept jurisdiction: Commonwealth Bank of Australia v White [1999] 2 VR 681, 704-705, [87]-[91]; Quinlan v Safe International Forsakrings AB [2005] FCA 1362, [49]; Hume Computers Pty Ltd v Exact International BV [2006] FCA 1440, [21]-[26]; see also [2006] FCA 1439, [35].
44 The starting point is that the proper construction of the contract, the performance guarantees, and other contractual questions should be determined by applying the proper law of the contract: Permanent Trustee Co (Canberra) Ltd v Permanent Trustee Co of New South Wales Ltd (1969) 14 FLR 246, 254; L Collins, Dicey and Morris on The Conflict of Law (13th ed, 2000), [32-188]. The contract is governed by Indian law: cl 1.3.1. As a general rule, there is a presumption that the law of a foreign country is the same as that of the forum, unless proven otherwise: Neilson v Overseas Projects Corp of Victoria Ltd (2005) 223 CLR 331, [116], [125], [249], [267].
45 Clause 3.3 of the contract deals with the Performance Guarantee. Arguably on its proper construction, its terms are as follows.
46 Clough shall furnish an unconditional Performance Guarantee for the performance of the contract, in the form of Appendix III of Annexure A, for a sum equivalent to 10% of the contract price: cl 3.3.1.
47 The Performance Guarantee is to be valid initially for the period to the original completion date of 30 April 2006, plus the 12 month Guarantee/Warranty period, plus 60 days: cl 3.3.1.
48 If the works are delayed beyond the original completion date, whether the delay is attributable to ONCG, or to Clough, or for any other reasons (including force majeure), Clough shall extend the term of the Performance Guarantee so that it is valid for 12 months plus 60 days, from the actual date of completion of the works: cl 3.3.2.
49 If the reason for delayed completion of the works is attributable to ONGC, then ONGC shall bear the cost of procuring the extension of the term of the Performance Guarantee: cl 3.3.2.
50 Clough submits that ONGC only has the right to call on the Performance Guarantee where:
(a) Clough acknowledges it is, or it is found following arbitral or other determination to be, in breach of contract, other than with respect to those provisions of the contract (cll 5.9.7.2 and 7.3.9) expressly giving ONGC the right to deduct moneys during the performance of the contract prior to practical completion;
(b) Clough fails to pay moneys claimed by ONGC from Clough pursuant to cll 5.9.7.2 and 7.3.9;
(c) Clough fails to pay for the cost of remedial works within 30 days during the Guarantee/Warranty period as required under cl 6.1.2;
(d) ONGC has the right, once acknowledged by the contractor or established by arbitral or other determination, to recover liquidated damages under cl 6.3.2.
51 This construction is said to emerge from consideration of the Contract read as a whole, especially cll 3.3.1, 3.3.3, 3.3.5, the reference to "breach" in Appendix III Annexure A. If ONGC exercises its rights to call on the Performance Guarantee to recover liquidated damages, Clough shall cause the Performance Guarantee to be increased by the amount drawn down by the call, or cause a fresh Performance Guarantee to be given for that amount: cl 3.3.5. I accept that, for present purposes, this construction is arguable.