First Plaintiff v Defendants

1 The dispute which is the subject of this proceeding arises from the construction of the Adelaide Desalination Plant, which is situated near Adelaide, South Australia (the "Project"). The Project is continuing. However, it was agreed by the relevant parties to be due for Practical Completion in February 2012. The Project is located in Port Stanvac in South Australia, 25 kilometres southwest of Adelaide.

2 The First Defendant ("McConnell Dowell") and the Second Defendant ("Abigroup") (together called the "Applicants" or "MAJV"), by their summons dated 4 March 2011, made an application to transfer this proceeding to the Supreme Court of South Australia pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) ("Cross-vesting Act").

3 The Plaintiffs ("SMEC" and "Hatch" respectively), which together operate under a joint venture on the Project called the Design Joint Venture ("DJV"), opposed this course.

4 The Third Defendant ("Acciona Agua") neither consented nor opposed the application.

5 The principal of the Project is the South Australian Water Corporation ("SA Water"). SA Water is a South Australian State Government instrumentality established by the Government of South Australia pursuant to the South Australian Water Corporation Act 1994 (SA) ("SA Water Act") as a "business enterprise with the principal responsibility of providing water and sewerage services for the benefit of the people and economy of the State".[1]

6 McConnell Dowell and Abigroup are members of an unincorporated joint venture ("MAJV") which was formed for the purpose of carrying out certain works on the Project.

7 The MAJV and a company associated with Acciona Agua are members of an unincorporated joint venture ("Contractor JV") for the purpose of carrying out the design, construction and commissioning of the Project.

8 The Contractor JV and SA Water are parties to a contract dated 16 February 2009 for the design, construction and commissioning of the Project.

9 In early 2009, the Defendants, being the MAJV and Acciona Agua, entered into a Tender Services Agreement ("TSA") with the Plaintiffs as project designers for the initial tender and design services to be provided in relation to the Project.

10 On or around 9 October 2009, the MAJV entered into a Professional Services Contract ("PSC") with the Plaintiffs for the provision of design services for the Project.

11 In this proceeding the Plaintiffs make claims for additional costs, extensions of time and damages pursuant to both the TSA and PSC, including:

(a) $6,704,048 for alleged variations to the services carried out under the TSA and PSC;

(b) $16,011,262 for alleged additional project support services provided under the TSA and PSC;

(c) unspecified extensions of time for completion of the services under the TSA and PSC together with consequential delay costs of $3,714,688; and

(d) damages pursuant to the Trade Practices Act 1974 (Cth) ("TPA") for alleged misrepresentations made by the MAJV about the contractor's construction programme.

12 At this point, the Applicants have not filed defences or counterclaims. MAJV says that it intends to pursue counterclaims against the Plaintiffs in respect of the services provided by them under the TSA and the PSC. The nature of these counterclaims are outlined in an affidavit filed in support of the application, being that of Andrew Jon Stephenson sworn 28 April 2011.

13 The Applicants also rely upon the affidavit of Kate Susan Perumal, General Counsel of Abigroup, affirmed on 3 March 2011.

14 The Plaintiffs rely upon the affidavits of Robert Frederick Walton, Commercial Manager of Hatch, sworn 25 March 2011, and that of Leigh William Duthie, solicitor for the Plaintiffs, sworn 25 March 2011.

15 The Cross-vesting Act, which is part of a uniform scheme across all States and Territories of Australia, allows for Supreme Courts to transfer proceedings from one State or Territory to another. The provision of the Cross-vesting Act relied upon by the Applicants is s 5(2)(b)(iii). It provides:

Where:-

(a) a proceeding (in this sub-section referred to as the 'relevant proceeding') is pending in the Supreme Court (in this sub-section 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, the first court shall transfer the relevant proceeding to that other Supreme Court.

16 Pursuant to s 5(2)(b)(iii) of the Cross-vesting Act, if it appears to the Supreme Court, which was originally seized of the matter, that it is in the interests of justice to permit the transfer, then it must transfer the proceeding to the other relevant Supreme Court.

17 The outcome of the present application will therefore turn on the phrase in s 5(2)(b)(iii) in the interests of justice, and its application to the facts of this case. As submitted by the Applicants, the phrase has received considerable judicial attention.

18 In BHP Billiton v Schultz & Ors,[2] Gleeson CJ, McHugh and Heydon JJ analysed the concept interests of justice found in s.5(2)(b)(iii).[3] The central points which emerge from this analysis are:

(a) In the context of the Cross-vesting Act_,_ the court is required to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked;

(b) 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;

(c) The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter which coincides with the interests of justice;

(d) The justice referred to in s 5 is not disembodied, or divorced from practical reality;

(e) The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice;

(f) 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 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;

(g) The ordinary basis of jurisdiction of common law courts in personal actions is the presence of the defendant within the court's territory, and the defendant's resulting amenability to the court's process. In most cases, the jurisdiction of an Australian court, in the sense of authority to decide, depends upon the location of the defendant, rather than that of the plaintiff;

(h) "Connecting factors", described by Lord Goff in Spiliada include matters of convenience and expense, such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction. Lord Templeman described such factors as "legion", and said that it was difficult to find clear guidance as to how they are to be weighed in a particular case;

(i) 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;

(j) 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.

19 Accordingly, the ultimate question is whether, in the interests of justice, the Supreme Court of South Australia is the more appropriate forum to manage and determine the present proceeding. It is not necessary that it should appear that the Supreme Court of Victoria is a "clearly inappropriate" forum.

20 Further, as was made clear in BHP Billiton v Schultz in the passage cited, there are sub-sets of other factors which may, be brought to bear on the question as to where the interests of justice lie. Such factors are many and their particular shape and importance will vary in each proceeding. The factors are incapable of being corralled into a convenient and definitive list, and even elude demarcation by categories. Nevertheless, as the High Court counsels, "the justice referred to in s 5 is not disembodied, or divorced from practical reality". It is, in the end, a "nuts and bolts decision".[4] In each case, and taking a practical approach, the particular factors which properly bear upon the question, must not only be identified, they must also be weighed in the balance.

21 In Beston Parks Management Holding Pty Ltd v Sexton,[5] another case where the applicant sought to transfer a pending proceeding from Victoria to South Australia, Hollingworth J (referring to the decision or Lord Templeman in Spiliada Maritime Corporation v Cansulex Ltd[6]) stated in the passage which follows that the connecting factors may include, but are not limited to, a number of matters:[7]

Factors which may be relevant include, but are not limited to: the connection between the parties, the alleged conduct and the jurisdiction; the governing law of the dispute; any choice of jurisdiction clause; and issues of cost and convenience to the parties, including where the parties and witnesses live and carry on business. Not all of these Factors appear in each case, and those present will adopt varying degrees of relevance in different cases.

22 In relation to the burden of proof, it was submitted by the Plaintiffs that in the event that the Court was to find that the question was finely balanced, as to whether it was in the interests of justice that the proceeding be determined by the Supreme Court of Victoria or South Australia, the application should fail because the Applicants bear at least a "persuasive" burden. I do not accept this submission without qualification.

23 The issue of the burden of proof (if any) in applications founded upon s 5(2)(b)(iii) have been canvassed in a number of cases, both in Victoria and in New South Wales. The case law in this area has been usefully gathered and analysed by Hollingworth J in Beston Parks Management Pty Ltd v Sexton and Anor,[8] where her Honour considered the following authorities:[9] Bankinvest v Seabrook & Ors (Rogers AJA);[10] BHP Billiton Limited v Schultz (Gummow J);[11] Ewins v BHP Billiton (Gillard J);[12] McLeod v Munro (Dodds-Streeton J);[13] Slater & Gordon v Porteous (Whelan J);[14] Holt v Forehan (Harper J);[15] and Eden v Amaca Pty Ltd & Ors (Kaye J).[16]

24 In Eden v Amaca Pty Ltd & Ors[17] Kaye J determined that it was not necessary to decide the issue of onus of proof in the case before him because there were no contested issues of fact to be determined. However, his Honour considered the express terms of s 5(2)(b)(iii) imposed an "onus of persuasion" whereby the applicant for transfer must persuade the court that it is in the interests of justice that the Supreme Court of another State determine the case. His Honour observed:[18]

In BHP Billiton Limited v Schultz, Gummow J expressed the view that it was inappropriate to speak in terms of an applicant bearing an onus of proof. That view was favoured by Dodds-Streeton J in McLeod & Anor v Munro and by Harper J in Holt v Forehan. On the other hand, in Ewins v BHP Billiton Limited, Gillard J was not prepared to accept that the views of Gummow J in Schultz represented the law. In this case, the issue of the onus of proof is academic, as there are no competing issues of fact which I must resolve. The question whether there is an "onus of persuasion" is answered by the terms of s 5(2)(b). In its express terms, s 5(2)(b) empowers me to transfer the proceeding to another Court only if it is "otherwise in the interests of justice" that the proceeding be determined in that Court. If I do not consider that it is "otherwise in the interests of justice" that the Court of either Tasmania or Queensland determine the case, then I have no power to transfer the proceeding to that Court. It is the applicant who seeks to persuade me that it is otherwise in the interests of justice that the Supreme Court of Tasmania, or alternatively of Queensland, determine the case. To that extent, an "onus" of persuasion falls on the applicant.

25 In the present case, to the extent that I have competing issues of fact to resolve, I adopt the approach that in applications of this kind it is inappropriate to impose on an applicant a legal onus of proof. Rather the applicant assumes an evidentiary burden to adduce such evidence as may be relevant to the issue upon which appropriate findings can be made.

26 Once the relevant facts are found, the applicant assumes an "onus" to persuade the Court, that it should find, to its reasonable satisfaction, that it is "in the interests of justice" to transfer the proceeding to another Court for determination pursuant to s 5(2)(b)(iii) of the Cross-vesting Act.[19]

27 In my opinion, the pre-requisite for requiring an applicant to satisfy a "persuasive" burden, namely that the relevant question must first be finely balanced before the persuasive burden is imposed, has no place in the application of s 5(2)(b)(iii). I do not accept the submission of the Plaintiffs in this regard.

28 Accordingly, the test which I apply to the facts as found, for the purposes of making the necessary determination under s 5(2)(b)(iii) of the Cross-vesting Act, is that, unless I am in a position to find, to my reasonable satisfaction, that it is in the interests of justice that the Supreme Court of South Australia should hear and determine the case, I have no power to transfer the proceeding to that Court.

29 The Applicants relied upon a number of factors in support of their application ("Applicants' Key Points"). The Applicants' Key Points may be summarised as follows:

(a) the Project is located in South Australia, very close to Adelaide;

(c) key personnel for both the Plaintiffs and the Defendants are presently located in South Australia, working on the Project;

(d) the vast majority of the likely witnesses (taking into account the counterclaim to be advanced by McConnell Dowell and Abigroup) are presently located in South Australia, working on the Project;

(e) there would be adverse consequences to the Project in having these witnesses travel to Victoria to prepare witness statements and/or give instructions;

(f) the documents relevant to the dispute and the Project generally are located in South Australia, either at the site itself or on the electronic server situated on site;

(g) the contracts in question are governed by South Australian law;

(h) the administration of the contracts occurs in South Australia;

(i) the Project is being undertaken for the South Australian Water Corporation (SA Water), a South Australian government instrumentality, suggesting that the natural forum is South Australia; and

(j) litigation between SA Water and McConnell Dowell and Abigroup in relation to the Project, which is in prospect, is almost certain to be commenced in the South Australian Supreme Court and in that event, there would be real prejudice to McConnell Dowell and Abigroup in having to run two proceedings in respect of the same Project in two different jurisdictions. Further, consolidation of these proceedings would be an important consideration if they were in the same jurisdiction.

30 McConnell Dowell and Abigroup submitted that the factors summarised in the Applicants' Key Points demonstrate that the Supreme Court of South Australia has more than just "the most real and substantial connection" to this proceeding. It was submitted that it is the court with the only real and substantial connection to this proceeding. It was submitted that together these factors provided a powerful basis for ordering the transfer of this proceeding.

31 Each of the factors summarised in the Applicants' Key Points are considered in more detail below.

32 The Project is located in South Australia, very close to Adelaide, and the works on the Project site, at least for the present, are ongoing. The Project is being undertaken for the benefit of South Australians. It was submitted by the Applicants that this was a very strong factor warranting the transfer in this case.

33 It was also submitted by the Applicants, that the works on the Project are ongoing, and personnel are required on site to complete the works. Consequently, a potential adverse financial consequence to the Project caused by additional delay could arise if witnesses, who are part of the existing workforce, are required to attend court in Melbourne, rather than Adelaide.

34 However, the force of this submission is considerably eroded in this case by two factors:

(1) practical completion of the Project is on target to be achieved in February 2012; and

(2) there is no prospect of the proceeding being ready for the commencement of a trial by then.

These matters were conceded by the relevant parties.

35 Although the location of the Project near Adelaide, as an ongoing enterprise may have had some weight in the determination, particularly given the likelihood of calling members of the existing workforce as witnesses while the works are continuing, the weight of this factor is very much reduced by the completion of the works which is likely in February 2012.

36 Following completion and commissioning, the Adelaide Desalination Plant will of course remain in South Australia and will continue to be a major utility producing fresh water for the benefit of South Australians. However, although this may provide a close and ongoing connection to the State in a geographical and economic sense, and may even have contributed to a finding that the Supreme Court of South Australia is the "natural forum" for the present proceeding, that is not the test under the Cross-vesting Act.

37 The location of the completed plant may have been a relevant factor if it was made plain that a view of the facility would be a necessary and likely step in the course of the trial. However, it has not been established that this is likely to be either necessary or even useful in the present proceeding. Therefore, I am unable to find that the location of the plant as completed has any weight in determining whether it is "in the interests of justice" that the Supreme Court of South Australia should hear and determine the case.

38 Ms Perumal is the General Counsel of Abigroup, the parent company of the Second Defendant. Ms Perumal filed an affidavit in support of the cross-vesting application. She states that she has had discussions with Mr Kiddle, Deputy Project Director for the Contractor JV, and that on the basis of these discussions she considers that there are 19 key personnel who ordinarily reside in South Australia and who would be potential witnesses in the proceeding for the Defendants. She identifies a further three key personnel who commute between South Australia and NSW for the purposes of the Project, but are ordinarily resident in NSW.

39 In assessing the witnesses likely to be called by the Plaintiffs, Ms Perumal deposes that she relies upon information obtained from Mr Wayne Sampson, an Engineering Director. She identifies six key personnel who are ordinarily resident in South Australia and who would be potential witnesses in the proceeding. She identifies a further seven key personnel who are resident in South Australia for the purposes of the Project, one of whom commutes from Victoria. Of these seven personnel, one lives in NSW, two in WA, three in Victoria and one in Queensland. Ms Perumal also deposes that there are four Committee members who may be called as witnesses, one from each of NSW, WA, Victoria and Queensland. She also identified six "minor" witnesses, of whom four live in South Australia and one in each of NSW and Victoria.

• 19 key witnesses for the Defendants who are ordinarily resident in South Australia and three who are not;

• six key witnesses for the Plaintiffs who are ordinarily resident in South Australia and 11 who are not;

• four minor witnesses for the Plaintiffs who are ordinarily resident in South Australia and two who are not; and

• In total, 29 witnesses who are ordinarily resident in South Australia and 16 who are not.

• Of those 16, 10 are currently either wholly or partly resident in South Australia for the purposes of the Project, but would presumably cease to be following cessation of the Project.

Thus, according to Ms Perumal at the present time 39 of the 45 potential witnesses in the proceeding are living in South Australia.

41 Mr Walton, the Commercial Manager of Hatch and the Project Services of the Plaintiffs' joint venture, swore an affidavit in support of the Plaintiffs' submissions opposing the application. He took issue with aspects of Ms Perumal's affidavit evidence.

42 In respect of the Defendants' witnesses, Mr Walton said that he spoke either from personal knowledge or relying on the knowledge of Mr Mal Spears, Project Director. In respect of eight witnesses that Ms Perumal identified as ordinarily resident in South Australia, Mr Walton swore that all of them were only temporarily resident in South Australia for the purposes of the Project. According to Mr Walton, of these eight, two are ordinarily resident in Queensland and one is ordinarily resident in each of New Zealand, Spain, Victoria, WA and NSW.

43 In respect of the Plaintiffs' witnesses, Mr Walton was able to confirm the information directly from each witness concerned. His affidavit differed from Ms Perumal's in respect of three witnesses, each of whom Ms Perumal said were ordinarily resident in South Australia. Mr Walton stated that these witnesses were only temporarily resident in South Australia for the purposes of the Project, with one witness ordinarily resident in NSW and two witnesses in Queensland. Mr Walton also referred to a further nine witnesses who, Ms Perumal had correctly stated, were resident in South Australia for the purposes of the Project, adding that in each case the witness would be leaving the Project and returning to their home State by mid-to-late 2011 (prior to the projected completion date for the Project). However, only one of these witnesses was considered by Mr Walton to be a relevant witness.

44 Mr Walton further claimed that several of the witnesses, put forward by the Defendant as being potential witnesses, were not relevant to the dispute, and were of only marginal relevance to it. He identified nine of the Defendants' witnesses who he considered to be irrelevant to the dispute. Of these, 2 (Mr Puni and Mr Erasmus) were persons not ordinarily resident in South Australia. He further identified 15 of the persons nominated by Ms Perumal as likely Plaintiffs' witnesses who he considered similarly irrelevant. Of these, 5 were persons not ordinarily resident in South Australia.

45 Mr Walton also deposed to the identity of a further 11 witnesses who are material to the issues raised in the Proceedings, of whom four live in NSW, 3 in Victoria and 4 in Queensland.

46 In summary, Mr Walton deposed that, although 11 of the Defendant's witnesses are ordinarily resident in South Australia, 11 are only temporarily resident in South Australia for the purposes of the Project and would be likely to leave the State upon the completion of the Project. He stated that 7 (including the 4 "minor" witnesses) of the Plaintiffs' witnesses are ordinarily resident in South Australia and that 16 are ordinarily resident in other States. Of those 16, 12 are resident in South Australia for the duration of the Project with the remainder permanently based in other States. At the present time, according to Mr Walton, 41 of 57 potential witnesses are in South Australia, either temporarily or permanently. By the end of 2011, 9 of these witnesses would have left South Australia.

47 Upon completion of the Project, assuming all witnesses return to their usual places of residence, 18 of 57 potential witnesses would be in South Australia, 9 would be in Victoria, 12 would be in New South Wales, 4 would be in Western Australia, 11 would be in Queensland, 1 would be in Spain, 1 would be in New Zealand, and 1 would be in either NSW or Victoria.

48 The evidence concerning the location and convenience of witnesses has the following shortcomings:

(a) the pleadings at this stage have not progressed beyond the filing of a statement of claim. Consequently, the precise issues for determination at trial have not yet crystallised, and the witnesses to be called in relation to those issues cannot be identified with any certainty;

(b) in particular, a counterclaim, which has been foreshadowed to be put on by the Applicants, has not yet been pleaded;

(c) further, no mediation has yet been conducted which may have the potential to narrow the issues in dispute, and hence limit the number, nature and identity of the witnesses to be called;

(d) no attempt has been made by either Ms Perumal or Mr Walton to estimate how long each witness is likely to occupy court time in the course of the trial;

(e) neither Ms Perumal nor Mr Walton were cross-examined during the application, and for this reason, where their evidence is in conflict, the Court is not in a position to safely resolve the differences between them;

(f) further, both could only present their best assessments of likely witnesses and their location based upon their perception of the likely issues to be ventilated at a proposed future trial and the evidence which is likely to be called in relation to those issues. Neither are expert litigators. Further, their assessments are founded upon their respective enquiries of the present and future locations of possible witnesses, as best they are able to make such enquiries at the present time, and as best the respondents to those enquiries are able to advise as to their future locations at the present time.

49 Nevertheless, although the issues in the proceeding at this point are insufficiently defined to assess the number, identity and location of the likely witnesses with any confidence, I am in a position to make at least the following general findings as to the location and convenience of witnesses:

(a) the landscape in relation to likely witnesses will change significantly following the anticipated practical completion of the Project in February 2012, when a good many persons who may be called as witnesses will disperse throughout Australia and elsewhere; and

(b) at the time of any likely trial, although large number of witnesses are likely to reside in South Australia, a large number will be also be dispersed throughout Australia and elsewhere.

50 Further, taking a practical approach to the issue of witnesses, the following factors must be considered:

• the Plaintiffs' solicitors have video conferencing facilities;

• the Defendants' solicitors are also likely to have video conferencing facilities in their Melbourne offices which enable the parties' solicitors in many instances to significantly reduce the need to undertake travel interstate (with associated travel and accommodation costs) to confer with witnesses or vice versa;

• there is scope for witnesses who are located outside of Melbourne to give evidence by audio or visual link pursuant to s 42D of the Evidence Act 1958 (Vic) and O.41A of the Supreme Court (General Civil Procedure) Rules 2005 and thereby dispense with the cost and inconvenience of travelling from interstate (during the Project or at any other time) if required and appropriate in all the circumstances;

• it is no longer an onerous task or as expensive for witnesses to travel from Adelaide to Melbourne as was the case many years ago;[20] and

• a number of the witnesses normally reside in Brisbane and Sydney. The cost and inconvenience to these witnesses travelling to Melbourne is likely to be lessened if the case remains in Melbourne.

51 I am not satisfied that it is in the interests of justice that the Supreme Court of South Australia should hear and determine the case founded upon the evidence of the location and convenience of witnesses, such that it is, Victoria could be an equally convenient venue. At best, the evidence points to this being a neutral factor.

Adverse Consequences to the Project of Witnesses Travelling to Victoria

52 It was submitted by the Applicants that there would be adverse consequences to the Project in having the witnesses presently working on site travel to Victoria to prepare witness statements and give instructions.

53 I do not accept this factor as having any great weight.

54 The Project will be completed in February 2012. Before completion, if it becomes necessary for either group of parties to give instructions or prepare proofs of evidence, there is nothing to prevent instructors or counsel travelling to South Australia to undertake the task, if electronic facilities are not able to be conveniently availed of.

55 The Defendants' solicitors are Clayton Utz, with offices in Melbourne. They have engaged senior counsel, a partner from the Sydney office of the firm (Mr Rowland QC) and junior counsel from the Victorian Bar (Mr Nick Hopkins). The Plaintiffs have engaged a Melbourne firm of solicitors, Baker & McKenzie, and both senior and junior counsel from the Victorian Bar (Mr John Digby QC and Mr David McAndrew).

56 Following completion, there will be no disruption to the Project brought about by the litigation, wherever it is conducted.

57 The Applicants pointed to the documents relevant to the dispute and the Project generally being located in South Australia, either at the site itself or on the electronic server situated on site.

58 I do not accept this factor as having any weight.

59 All project documents are contained on a proprietary electronic control system referred to as "Project Centre" and are accessible (with appropriate authorisation) via the internet.

60 Electronic documents may be conveniently and cheaply transmitted and stored anywhere, at any time and by a number of means. A few lines from Susskind's work, dispiritingly called "The End of Lawyers",[21] makes the point. The chapter "Online Community" begins:

I find it helpful to regard the Internet, not just as a global network of networks, but also as a technology infrastructure that supports three main utilities. The first is electronic mail, an application that has revolutionized the communication habits of hundreds of millions of people on our planet. The second is the Web, the world's largest information resource, which has transformed our information-seeking habits. The third is online community - with human beings connected to one another through the Internet, this gives rise to fundamental new ways for us to interact and collaborate with one another.

61 All of the relevant contracts in issue in the proceeding are governed by the laws of the State of South Australia. Clause 30.5 of the TSA provides that "this Agreement will be governed by and construed in accordance with the laws of South Australia". Similarly, clause 1 of the PSC provides that the "law governing the [PSC] and its interpretation is the law of" South Australia.

62 Further, the D&C Contract is governed by, and is to be constructed in accordance with, the law in force in South Australia (by clause 50.1). The parties to the D&C Contract also agreed to "irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of South Australia and any courts which have jurisdiction to hear appeals from any of those courts and waive any right to object to any proceedings being brought in those courts".

63 The fact that a contract, the subject of the proceeding is governed by the law of a particular jurisdiction, is well established as a relevant factor to be considered in determining whether a proceeding should be transferred. In BHP Billiton v Schultz, Callinan J said that, where parties have contractually agreed to a "governing law" clause, the 'parties' reasonable expectation would almost certainly be that in the event of a dispute about any of these matters, it would be resolved according to those laws as interpreted and applied by the court of that State".[22]

64 Similarly, in West's Process Engineering Pty Ltd v Westralian Sands Ltd[23] Rolfe J said that "it is appropriate to give substantial weight to the jurisdiction clause for it represents the bargain of the parties".[24]

65 The Applicants submitted that the clauses identified above in the D&C Contract, the TSA Contract and the PSC Contract strongly suggest that the parties to the Project, and in particular the parties to this proceeding, intended that any issues or disputes arising in respect of the Project be issued in and determined by the Supreme Court of South Australia (or courts of lower jurisdiction as appropriate).

66 However, there are other factors which work to reduce the weight of the "governing law" consideration in this case.

67 First, the D&C Contract contained a jurisdiction clause pursuant to which the parties submitted to the jurisdiction of the courts of South Australia and agreed to waive any right to object to any proceedings being brought in those courts. They did so, however, on a non-exclusive basis. The TSA Contract and the PSC Contract, although they included a choice of law clause, did not contain a jurisdiction clause.

68 Second, the Applicants were not able to identify any law of South Australia which was any different to that which applies in Victoria, pursuant to which the relevant contracts are governed or to which the issues in dispute are to be determined. It is of note that, although the provisions of the Trade Practices Act 1974 (Commonwealth) are invoked in the Statement of Claim, no equivalent legislation of the State of South Australia is relied upon.

69 Accordingly, in the present case, little weight can be given to the choice of law provisions in determining the application.

The Administration of the Contracts Occurs in South Australia

70 It is accepted that the relevant contracts are administered in South Australia.

71 It is hard to see how this factor can be given any weight. Although it does provide an element of connection to South Australia, this factor does not bear directly on any question as to the administration of justice in the proposed trial. This is particularly so, given that the Project is to achieve practical completion in February 2012, whereupon it is likely, that the obligations under the contracts will be substantially discharged, save for any possible continuing obligations such as maintenance and the like.

72 The Applicants further submitted that the Project is being undertaken for the South Australian Water Corporation (SA Water), a South Australian government instrumentality, suggesting that the natural forum is South Australia.

73 This may be the case. However, the fundamental question is whether it is in the interests of justice that the proceeding be transferred from Victoria to South Australia.

74 SA Water is not a party to the present proceeding, although it is the ultimate beneficiary of the Project. I am not satisfied that this factor alone, although it is a relevant consideration in the mix, is of any great weight.

Prospect of Litigation Between SA Water and McConnell Dowell/Abigroup

75 It was submitted by the Applicants that litigation between SA Water and McConnell Dowell and Abigroup in relation to the Project, which is in prospect, is almost certain to be commenced in the South Australian Supreme Court and in that event, there would be real prejudice to McConnell Dowell and Abigroup in having to run two proceedings in respect of the same Project in two different jurisdictions. Further, consolidation of such proceedings with this proceeding would be an important consideration if they were in the same jurisdiction.

76 I accept that if such litigation was clearly in contemplation, it would be a relevant factor in the present determination. However, at present, the prospect of such litigation is a mere possibility at best and has not arrived at the stage of being seriously entertained, let alone be formulated.

77 A document was exhibited which included reference to a sum of money which SA Water said was payable to it. However, the claim has not progressed beyond this point. There is no letter of demand, let alone any threat to commence legal proceedings.

78 Further, the Court was taken to the dispute resolution section of the contract with SA Water, comprised in clause 44. This contains an elaborate dispute resolution regime which the parties are obliged to invoke should a dispute arise under the contract. Clause 44.1(a) and (c) provide:

(a) If a party wishes to pursue a claim or dispute any Claim or other difference relating to or arising out of or in connection with this document, a Project Document or the Project (for purposes of this clause 44, a Dispute) it must do so by giving written notice (Notice of dispute) to the relevant parties.

(b) ...

(c) the parties must follow the Dispute resolution procedure in this clause 44 to resolve any dispute.

79 The dispute resolution procedure under the contract with SA Water has not yet commenced. No notice as required by clause 44.1(a) has been served.

80 Further, even if a clause 44.1(a) notice is served, any such dispute may well be compromised under the dispute resolution procedure prescribed.

81 The prospect of litigation being a mere possibility at this point, the factors addressed by the Applicants which arise under this head, also remain a mere possibility. Accordingly, the matter cannot be given anything but little weight.

82 The proceeding has been commenced in the TEC list of the Supreme Court of Victoria which has a specialist Technology Engineering and Construction List. This list is specifically designed to hear and determine disputes in relation to significant infrastructure projects such as the Adelaide Desalination Project. The TEC list has unique procedures which are designed to promote a cost effective resolution of the disputes between the parties in technology, engineering and construction disputes.

83 The present proceeding is certainly within the ambit of matters which may be accommodated and managed in the TEC List.

84 However, and contrary to the submissions advanced by the Plaintiffs, I do not accept that the Supreme Court of South Australia is less well equipped to deal with the matter, even though it does not operate a similar specialist list.

85 Nevertheless, the suitability of the TEC List to manage, hear and determine the proceeding in Victoria, does not serve as a factor which warrants transfer of the proceeding to South Australia. Rather, it militates against such a course. The Court is entitled to take this into account in its consideration as to which Court is the most appropriate in the interests of justice.[25]

86 Other factors relied upon by the Plaintiffs in favour of retaining the proceeding for case management and hearing in Victoria which I accept are:

• the close proximity in Melbourne of the First Defendant (registered office and principal place of business), the Second Defendant (regional office very proximate to First Defendant), the Third Defendant (principal place of business) and their proximity to the Supreme Court of Victoria;

• the close proximity of the DJV and MAJV to their Melbourne based solicitors or their solicitors' Melbourne offices;

• the fact that the MAJV and the DJV have not retained solicitors who are based or have offices in Adelaide and the fact that no party has engaged Counsel from Adelaide;

• there is no evidence adduced by the MAJV to the effect that they intend to engage Adelaide solicitors and Counsel in the event that the proceeding were to be cross-vested;

• the parties (including Acciona at least insofar as the costs of its Melbourne Counsel is concerned) are likely to incur not insubstantial additional travel and accommodation and other miscellaneous costs incurred by their legal representatives in the event that they were required to travel to South Australia for directions hearings and the trial.

87 The Applicants submitted that there was no, or insufficient connection with Victoria for the proceeding to be commenced in the Supreme Court of this State. They submitted that if a plaintiff does not have a legitimate reason for selecting a particular jurisdiction to commence proceedings, it may be the case that it is "forum shopping",[26] in which case there would be reason for transferring the proceeding in the interests of justice.

88 On the evidence, I do not accept that the Plaintiffs have been guilty of forum shopping.

89 Considering the factors advanced by the parties overall, I am not satisfied that the interests of justice call for the proceeding be transferred to the Supreme Court of South Australia.

[1] Sections 3 and 7 of the SA Water Act.

[2] [2004] HCA 61; (2004) 221 CLR 400.

[3] [2004] HCA 61; (2004) 221 CLR 400 at [14] to [19] (BHP Billiton v Schultz).

[4] Schultz (at [13]) per Gleeson CJ, McHugh and Heydon JJ citing with approval Bankinvest v Seabrook (1988) 14 NSWLR 711 per Street CJ (at 713-714).

[5] [2008] VSC 95.

[6] [1987] AC 460 at 465.

[7] [2008] VSC 95 at [6].

[8] [2008] VSC 95.

[10] (1988) 14 NSWLR 711 at 727.

[11] [2004] HCA 61; (2004) 221 CLR 400 at [71].

[12] [2005] VSC 4 per Gillard J at [23].

[13] [2005] VSC 375 at [37].

[14] [2005] VSC 398 at [21].

[15] [2006] VSC 148.

[16] [2007] VSC 274.

[17] [2007] VSC 274.

[19] See too: See: Torren Fishing & Trading Pty Ltd v McKenzie Family Nominees Pty Ltd & Ors [1995] 4 NTLR at 211 per Kearney J; Holt v Forehan [2006] VSC 148 per Harper J at [14].

[20] See: Ross Mollison Group Pty Ltd v Really Useful Co (Aust) Pty Ltd [2000] VSC 256 per Warren J (at [17]); Contract Media Sales (Aust) Pty Ltd v Roads and Traffic Authority of New South Wales (1999) VSC 391 per Beach J.

[21] 2008 Oxford University Press, at p.69.

[22] [2004] HCA 61; (2004) 221 CLR 400 at [259].

[23] Unreported decision of Rolfe J of the New South Wales Supreme Court dated 6 August 1997.

[25] See: Schultz per Gleeson CJ, McHugh and Heydon JJ at [31].

[26] See: McKee v Van Haften [2001] VSC 251 at [19].