Goldamere v Metso Minerals

BHP Billiton Ltd v Schultz (2004) 221 CLR 400 British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 Connelly v RTZ Corporation Plc [1998] AC 854 CASES CITED : James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 Valceski v Valceski [2007] NSWSC 440

Goldamere Pty Limited t/as Australian Bulk Minerals (Plaintiff) Metso Minerals Industries Inc (First Defendant) PARTIES : Metso Minerals (Australia) Limited (Second Defendant) RCR Heat Treatment Pty Limited (Third Defendant) The Engineering Company Pty Limited (Fourth Defendant) ACN 009 483 694 Pty Limited t/as Haywards (Fifth Defendant)

S A Kerr / S Mirzabegian (Plaintiff) C D Freeman (First and Second Defendant) COUNSEL : Brookes (Third Defendant) D Porter QC / J L Sharpe (Fourth Defendant) K E Read (Fifth Defendant)

DLA Phillips Fox (Plaintiff) Clayton Utz (First Defendant) SOLICITORS : Lander & Rogers Solicitors (Second Defendant) Dibbs Abbott Stillman (Third Defendant) Thompson Cooper Lawyers Pty Ltd (Fourth Defendant) Holding Redlich (Fifth Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY & CONSTRUCTION LIST

24 August 2007 (ex tempore - revised 27 August 2007)

55049/07 GOLDAMERE PTY LTD t/as AUSTRALIAN BULK MINERALS & ANOR v METSO MINERALS INDUSTRIES INC JUDGMENT 1 HIS HONOUR: These proceedings relate to a fire which occurred on 21 June 2006, in something called an autogenous mill at the plaintiff's Savage River Mine in north-west Tasmania. The plaintiff is the owner and operator of the mine. The repair work (relating to cracks in the mill) is said to have been designed by the first and second defendants and to have been carried out by the third to fifth defendants, under the supervision and management of the first and second defendants. 2 The plaintiff's amended Technology and Construction List statement filed on 9 August 2007 makes it clear that the plaintiff relies on three matters:

1. Misrepresentations in relation to the making of the repair contracts and afterwards, calling in aid s52 of the Trade Practices Act 1974; 2. Breach of contractual obligations owed by the various defendants in relation to the repair work; 3. Negligence.

3 The allegations in the statement make it clear that the representations were made at the plaintiff's mine in Tasmania. Obviously, the repair work was carried out there. Thus, to the extent that breach of contract or negligence is made good, damage was sustained directly by injury through fire to the plaintiff's mill and indirectly through consequential financial loss. 4 On the evidence, it would appear to be the case that at least some of the repair contracts were made in Tasmania by receipt there of purchase orders from the plaintiff. The contract or contracts between the plaintiff and the first and second defendants is or are in a different category. Those contracts expressly provide for the law of this State to apply and for this Court to have exclusive jurisdiction. 5 However, the first and second defendants do not oppose the application that I am about to describe. 6 Against that background the third, fourth and fifth defendants have sought orders that these proceedings be cross-vested to the Supreme Court of Tasmania. As I have indicated, the first and second defendants do not oppose that relief, notwithstanding what they say are relevant terms of the contract or contracts on which they rely. 7 It was common ground that the application under s5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 was to be dealt with on the basis described by Brereton J in Valceski v Valceski [2007] NSWSC 440 at [69]: "[69] That leaves to the third factor, the interests of justice. The question is simply whether, assuming that the jurisdiction of the transferor court has been regularly invoked, it is in the interests of justice that the proceedings be heard and determined in the transferee court, there being a statutory obligation to transfer the proceedings to that court whenever it appears to be in the interests of justice to do so - for which purpose it is both necessary and sufficient that the transferee court be the "more appropriate" forum [ BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 421 [14], 434-5 [63]]. In identifying the "more appropriate forum", relevant considerations include the cost and efficiency of proceedings in the respective jurisdictions, and the "connecting factors" described by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 478 - including 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 [ BHP v Schultz , 422 [18]]. Consideration of relevant connecting factors may identify a "natural forum" [ BHP v Schultz , 423 [19]; cf British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230, [44]]. As Schultz makes clear, the interests of justice concern those of both parties, and rather than the selection of the most advantageous, or least disadvantageous, forum for one of them, the "interests of justice" are to be judged by more objective factors, such as facilitate identification of the "natural forum", in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be [cf British American Tobacco v Gordon , [47]]." 8 As his Honour said, the identification of the interests of justice requires a consideration of connecting factors so as to enable the Court to identify the "natural forum" for the resolution of the disputes. On the brief description that I have given, it might be wondered why the Supreme Court of Tasmania is not the natural forum. If that court is the natural forum, and is therefore the more appropriate forum, it is plain that the interests of justice require, in the sense of mandating, that a cross-vesting order be made: see BHP Billiton Limited v Schultz (2004) 221 CLR 400, for example in the reasons of Callinan J at 481 [222]. 9 Once the determination is made that another court is the more appropriate forum, so that transfer is required, the parties have to take that forum as they find it. In particular, as Kirby J pointed out in Schultz at 464 [164], they must take it as they find it "even if it is in certain respects less advantageous...than the [chosen] forum". His Honour was quoting from the judgment of Lord Goff of Chieveley in Connelly v RTZ Corporation Plc [1998] AC 854 at 872. 10 As his Honour then noted, there is an exception where it is clear that "substantial justice" cannot be done to the plaintiff in what is otherwise "the appropriate" forum. In this case no one submitted that substantial justice could not be done to the plaintiff, either in this Court or in the Supreme Court of Tasmania. 11 In James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357, Spigelman CJ said at 361 [7] that, in considering the interests of justice for the purposes of a cross-vesting application, the court should look at the place of the tort. His Honour continued by saying that "Where the place of the tort and the residence of the parties coincide, this will generally be determinative...". 12 In the present case, as I have indicated, the place of the tort is Tasmania. However, the "residence of the parties" or, to be more accurate, their residences, are scattered across this nation. In Schultz at 468 [170], Kirby J (who had expressly agreed at 465 [165] with the observations of Spigelman CJ in Barry, to which I have referred), expanded upon the observations of the Chief Justice. His Honour said that:

"Normally the interests of justice...will require the transfer of proceedings...[to] the Supreme Court of another State or Territory where that court, rather than the court of the forum selected by the plaintiff, is the "natural forum"...Usually that will be the place of the wrong or of the contract or of the operation of the statute sued upon and particularly where that is also the place of the residence of the parties."

13 In this case, as I have already pointed out, Tasmania is the place of the wrong, the place of the contract and the place on the evidence to date, where s52 of the Trade Practices Act had its operation. 14 The plaintiff points to a number of circumstances that it says displace the inference available, from what I have recited, as to the most appropriate forum. It refers to the terms of contract between the plaintiff and the first and second defendants, including, as they appear to do, the choice of this State as the State whose courts have jurisdiction over disputes under the contract. 15 As I have said, the first and second defendants do not rely upon that to oppose the application. Further, in circumstances where the plaintiff does not rely upon that contract, in the sense that it does not assert the relevant terms, I do not see why the choice of the law and courts of this State should be regarded as dispositive. If the matter were to be heard in the Supreme Court of Tasmania, it is clear that that Court could inform itself as to any relevant respect in which the relevant law of this State differs from the law of Tasmania.

16 The plaintiff referred to the "residences" or domiciles of the various parties. With the exception of the first defendant (which is a corporation in the United States of America), the parties are Australian. Three of them in fact have their "residences" or domiciles in Tasmania, two in Western Australia and one I think in this State. Again, in the case of corporations, I do not regard that as dispositive. 17 The situation as to witnesses, on which the plaintiff also relies, is evenly balanced, as Mr S A Kerr of counsel, who appeared for the plaintiff, acknowledged in submissions. On the evidence, most of the witnesses of fact will come from Tasmania or from States other than New South Wales. That is because, of the witnesses of fact who were not Tasmanians working in their home State, the others, on the evidence, are likely to be people who work at various locations around Australia. 18 Again, of the expert witnesses the evidence suggests that the bulk of them will come from Tasmania or Victoria and that, of the others, most will come from States other than New South Wales. 19 I was informed from the bar table, without any objection being taken, that the Supreme Court of Tasmania could, and on occasions did, sit in other States as the Supreme Court of Tasmania, if it were necessary to do so, to hear the evidence of witnesses more conveniently, and that in any event it has facilities for taking evidence via video link. 20 I do not think that anything in the location of the various witnesses tips the balance either way. 21 The plaintiff relied upon what it said would be a severe prejudice in costs if the proceedings were to be conducted in Tasmania. The evidence indicates that if the proceedings were to be conducted in Tasmania, and if the plaintiff continued with its existing legal representation, any costs orders in favour of the plaintiff would be taxed down to a much greater degree than they would be assessed down in this State. That is because the scales of costs recoverable in proceedings in the Supreme Court of Tasmania in general reflect allowances vastly less than the hourly and daily rates commonly charged in this State, including those hourly and daily rates as assessed down on a party and party basis. That, however, seems to me to be something which relates to taking the Supreme Court of Tasmania as one finds it, not as something which indicates that substantial justice cannot be done in that Court. 22 The plaintiff pointed also to the question of prejudgment interest. That is available in this state through s100 of the Civil Procedure Act 2005. It is not available in Tasmania. If, however, the substantive law applicable is the law of Tasmania, then the plaintiff would not have the benefit of prejudgment interest, even if the proceedings were heard in this Court. 23 On the other hand, if the proper law relating to the causes of action is the law of this State, the plaintiff would have the benefit of prejudgment interest even if the proceedings were heard in the Supreme Court of Tasmania. That is because the availability of prejudgment interest is clearly a feature of the substantive law of this State and not merely a matter of procedure, having regard to the test explained by the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 543 [99]. 24 The plaintiff referred to the specialist lists maintained by this Court and to the case management procedures available in those lists. However, it is clear from Pt 14 of the rules of the Supreme Court of Tasmania that the Supreme Court of that State has ample power to conduct case management. Rule 415 provides for directions hearings to be conducted, unless a judge has already commenced one, on the occurrence of certain events. The purpose of directions hearings is stated in subr (2) to be:

"To eliminate any lapse of time from the commencement of the proceeding to its final determination beyond that reasonably required for[matters]essential to the fair and just determination of the issues...and the preparation of the case for trial".

25 It is apparent from subr (3) that the very wide powers indicated by subr (2) contain extensive specific powers aimed at identifying and narrowing the real issues in dispute, and identifying and furthering the just, quick and cheap resolution of those real issues. 26 I do not think that it is appropriate for a judge of one superior court in one State to express a view that the procedures available in that court make it "preferable" to a superior court of another State by reason of the procedures available in that other court. Nothing that I say should be read or understood as conveying any such assertion. The specialist lists in this State have been established partly because of the bulk of litigation that is and has been conducted in them. Over the years, this Court has evolved the specialist lists and the Practice Notes relating to them (currently Practice Note SC Eq 3) to attempt to get to the real issues and have them disposed of as quickly and as cheaply as possible. 27 If it be accepted that litigation in (for example, the Supreme Court of Tasmania) does not include the same number of "Commercial" and "Technology or Construction" cases as does litigation in this Court, all that means is that the Supreme Court of Tasmania may use its powers on a more individual basis under Pt 14 of its rules. It does not follow that such difference in procedures as there may be indicates any degree of inherent superiority or inferiority, comparing one court to the other. I should make it plain that Mr Kerr expressly disclaimed reliance on any such proposition. 28 In the circumstances, I think there is nothing in the varying case management techniques to give any reason for a conclusion that one court rather than another is more, or less, appropriate. 29 In short, I think the prima facie position to which I have referred has not been displaced by a consideration of the countervailing matters, whether they are considered alone or together. In my view, the Supreme Court of Tasmania is clearly the more appropriate forum for the resolution of these disputes because it is clearly the natural forum for the determination of those disputes. 30 In those circumstances the moving parties are entitled to the relief claimed by them in their respective notices of motion. It is probably sufficient to take the first in time of those notices of motion (that is, the one filed by the fourth defendant on 23 July 2007) and to make, as I now do, an order in accordance with prayer 1.

(Submissions re costs.) 31 It is, I think, clear that costs should follow the event. However, the plaintiff has raised the question of the third and fifth defendants' costs in circumstances where their submissions made it clear that they adopted the submissions for the fourth defendant. I do not see why that, of itself, should deprive them of an entitlement to the costs of the hearing today. They were entitled to be represented and to advance their case by such further submissions as seemed appropriate, having regard to the way the course of argument ran on the fourth's defendant's application (the fourth defendant being, by common consent, what one might call the primary moving party ). 32 I have some difficulty in understanding why, in circumstances where the third and fifth defendants supported the fourth defendant's application, they filed their own notices of motion. It would have been open to them to achieve the result that has been achieved by appearing on the hearing and putting submissions, having earlier (as they both did) filed affidavit evidence. 33 As between the plaintiff and the first and second defendants, the first and second defendants do not ask for costs and it is appropriate that there be no order as to costs between them.

1. Order the plaintiff to pay the third, fourth and fifth defendants' costs of the application heard and determined today. 2. Order that the costs payable to the third and fifth defendants exclude any costs referable to the preparation and filing of their respective notices of motion and the filing fees for those notices of motion. 3. Make no order as to costs as between the plaintiff and the first and second defendants.

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