KEYSTONE TRAINING GROUP PTY LTD -v- BRODRICK PTY LTD as trustee for MATOUSEK FAMILY TRUST [2024] WASC 497 (20 December 2024)

(a) the principal place of business of any body corporate concerned in the proceedings or application;

(b) the place or places where the events that are the subject of the proceeding or application took place; and

(c) the other courts which have jurisdiction to deal with the proceedings or application.

1. Section 1337N provides that the court may transfer proceedings under s 1337H at any stage. In this matter, I observe that the proceedings were issued on 9 August 2024, and a statement of claim was filed on 24 September 2024. The defendants have elected to file their application before filing a defence, rather than waiting until the precise issues are more fully ventilated and exposed by the exchange of pleadings.
2. It may be observed that the substantive difference between the Cross‑vesting Act and the Corporations Act in respect of such an application is that if the court is satisfied that it is in the interests of justice for the proceedings to be heard by another court then, under the Cross‑vesting Act, this court is required to transfer the proceedings. In contrast, under the Corporations Act, this court retains a discretion as to whether the proceedings ought to be transferred.
3. As Martin CJ observed in Resource Equities Ltd v Carr[2] at [5], it will be a rare case in which the difference between the mandatory and discretionary language will have any practical application. In my view, and counsel for the parties agreed, this is not such a rare case.
4. The principles that apply to such applications are reasonably well settled and were discussed by the High Court in BHP Billiton Ltd v Schultz.[3] They were more recently summarised by Le Miere J in Access Group Australia v Topper Hydraulic Platforms[4] at [23] ‑ [26] and by Archer J in UON Pty Ltd v Hoascar[5] at [19]. It is well established that the assessment calls for a nuts‑and‑bolts management decision. Each case turns on its particular facts as to which is the more appropriate court, having regard particularly (but not exclusively) to connecting factors such as which forum has the most natural and substantial connection to the subject of the proceedings, and where justice can be done in the most efficient and convenient manner.
5. The applicable principles under the Corporations Act were summarised by Sifris J in Kadak v Complete Health Products Pty Ltd[6] at [9] ‑ [15], and more recently by Connock J in Immortal Imaginations Motion Pictures v Rose[7] at [6] ‑ [11]. That latter decision draws on the comprehensive summary of Robson J in Irwin v State of Queensland (Irwin).[8] In that summary, Robson J observed:[9]

Relevant connecting factors 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 covering the relevant transaction.

1. The proceeding is brought by the plaintiffs arising from the purchase of a business involved in registered training organisations. Essentially, the first plaintiff (Keystone) purchased from the first defendant (Brodrick) all of the shares in the second plaintiff (OVET). OVET operated a business by the name of Opportune Professional Development (the Business). The third plaintiff, Mr Atkinson, and the fourth plaintiff, Mr Dowd, were at all times directors of Keystone and became directors of OVET upon Keystone's purchase of the shares in OVET. Mr Atkinson and Mr Dowd represented Keystone in the transaction in which Keystone purchased the shares in OVET.
2. The second defendant, Ms Matousek, and the third defendant, Mr Matousek, were the directors of OVET until the sale of its shares to Keystone. Ms Matousek was the person with whom Keystone, represented by Mr Atkinson and Mr Dowd, dealt with in the negotiations leading to the purchase of the shares in OVET by Keystone.
3. The statement of claim alleges the following matters:

(a) Keystone's interest in the purchase of the shares in OVET commenced in March 2023 when a broker, Mr Latter, provided Mr Atkinson information about the opportunity.

(b) In early May 2023, Ms Matousek contacted Mr Atkinson by telephone to discuss the prospect of the sale of the Business to Keystone.

(c) Shortly following that, a meeting took place in East Perth where the opportunity was discussed and certain information was provided by Ms Matousek.

(d) In July 2023, Brodrick provided financial information, including a budget and statement of expected earnings. The statement of claim alleges that these documents gave rise to certain representations regarding the revenue and expected earnings of the Business. The information was provided by uploading it to a due diligence folder made available electronically to the plaintiffs.

(e) Further negotiations ensued, during which it is alleged that Ms Matousek represented to Mr Atkinson and Mr Dowd that OVET had strong relationships with particular clients, namely TSA Group and Downer Group. Those representations and negotiations were made during meetings on Microsoft Teams conducted while Mr Atkinson and Mr Dowd were situated in Perth, and Ms Matousek was situated in Sydney.

(f) On 6 June 2023, Mr Atkinson and Mr Dowd met with Ms Matousek in Sydney together with Mr Atkinson and Mr Dowd's advisor, Mr Robert Gordon to discuss the business and possible sale.

(g) Following those discussions that ensued between May and August 2023, a terms sheet was negotiated. The terms sheet was negotiated through the various meetings and email communications between the parties.

(h) The statement of claim also alleges that, in the course of those negotiations, further representations were made regarding the strength of the Business.

(i) On 27 August 2023, Keystone, Mr Atkinson and Mr Dowd entered into a terms sheet for the acquisition of the shares in OVET from Brodrick.

(j) On 28 August 2023, Ms Matousek is alleged to have made further representations to Mr Dowd regarding the strength of the Business, in particular representations regarding the strength and prospectivity of particular client relationships. On 30 and 31 August 2023, at a meeting in New South Wales between Mr Atkinson, Mr Dowd and Ms Matousek to discuss the Business, various representations were in effect restated and not corrected.

(k) On 12 October 2023, Keystone, Mr Atkinson and Mr Dowd entered into a share sale deed, a vendor finance loan agreement, and a working capital loan agreement. That suite of documents effectively encompassed the purchase by Keystone of the Business by the acquisition of the shares in OVET. In addition, as part of that suite of documents, OVET entered into an employment agreement with Ms Matousek whereby she continued her association with the Business.

(l) Completion of the transaction occurred on 1 November 2023. The plaintiffs allege that, up to the period of completion, Ms Matousek effectively repeated and did not correct the representations.

(m) The plaintiffs further allege that in or around December 2023, Ms Matousek caused OVET to employ Mr Matousek on a full‑time salary of $140,000 per year and employed Mr Matousek's mother as a bookkeeper for 3.5 days per week.

(n) The plaintiffs also allege that between 1 June 2024 and 17 July 2024, Ms Matousek and Mr Matousek caused approximately 185,000 emails, comprising records of OVET, to be permanently deleted.

1. The plaintiffs allege that the representations made to them were false. It appears that the plaintiffs allege that among the emails that were deleted (which, with expert assistance, they managed to recover) there is evidence indicating that the Business did not enjoy the strength of the relationships with clients that had been represented to the plaintiffs, and that there were no reasonably or honestly held grounds for the representations made regarding the financial health and prospectivity of the Business. In broad terms, on that basis, the plaintiffs allege that the defendants engaged in misleading and deceptive conduct in contravention of the ACL.
2. I observe that the particular conduct alleged to be in contravention of the ACL arises from representations alleged to have been misleading. Those alleged representations are:

(1) The Revenue Representation; this representation was alleged to have been made in July 2023 by the uploading of financial information to an electronic folder to which access was granted to the plaintiffs;

(2) The EBITDA Representation; this was also made in July 2023 by the uploading of financial information to an electronic folder to which the plaintiffs were granted access;

(3) The Replacement Revenue Representation; this is alleged to have been said by Ms Matousek to Mr Atkinson and Mr Dowd in a Microsoft PowerPoint presentation on or about 28 August 2023;

(4) The First and Second Downer Representations; this is alleged to have been made by Ms Matousek to Mr Atkinson and Mr Dowd over the course of negotiations between June 2023 and 24 August 2023 conducted by email communications;

(5) The IP Representation; this is alleged to have been said by Ms Matousek to Mr Atkinson through the provision of a Microsoft PowerPoint presentation on or about 28 August 2023; and

(6) The TSA Representation; this was alleged to have been said by Ms Matousek to Mr Atkinson on or about 28 August 2023.

1. The representations appear to have been conveyed by various means, at various times and in various places. That includes email communications by the defendants in Sydney to the plaintiffs in Perth, by the uploading of financial information electronically by the defendants in Sydney with access granted to the plaintiffs situated in Perth, and by telephone calls between the parties and their legal representatives. It also included face-to-face meetings, one or more of which was in Perth and at least two of which were in Sydney. It appears particularly from the further affidavit filed by the second defendant that a significant meeting took place in Sydney over the course of two days on 30 and 31 August 2023. I note however that the statement of claim does not allege that fresh or independent representations were made at that two‑day meeting, but rather that some of the allegedly offending representations were restated or not corrected.
2. In addition, the plaintiffs allege that the conduct relating to the employment of the third defendant, the second defendant's mother, and the deletion of the emails, constituted breaches of directors' duties owed under s 182 of the Corporations Act.
3. The primary relief sought by the plaintiffs is an order under s 243 of the ACL setting aside the transaction documents and a further or alternative claim for damages under s 236 of the ACL. Damages are also sought against the second and third defendants.

1. In support of their application for the transfer of the proceedings to New South Wales, the defendants rely on a variety of factors, which they submit establish the more natural and stronger connection of the proceedings with New South Wales.

1. The defendants contend that the location of the witnesses is a factor weighing in favour of the transfer of the proceedings to New South Wales because it will improve the accessibility and availability of witnesses and therefore be more efficient, and less expensive and burdensome. In that regard, the defendants through the affidavit of their lawyer Mr Cohen have set out information relating to the number of employees of the Business and the various jurisdictions in which they were employed. The information is provided in very general terms without any analysis as to the extent to which the evidence of any of those employees may be relevant to the particular issues that may arise in the proceedings. Rather, Mr Cohen deposes in general and fairly sweeping terms that he is instructed by Ms Matousek that the 'statement of claim will require the giving of evidence from many (if not all) of the current and former staff of the first and second plaintiffs'.[10] The evidence in that form is not particularly probative or helpful. In any event, it shows that the employees of the business are spread across New South Wales, Queensland, Tasmania, Victoria and Western Australia.
2. Ms Matousek in her affidavit of 16 December 2024 deposes that she is 'advised and believes' that each of the people at the meeting of 30 and 31 August 2023 in New South Wales will be critical witnesses in the trial. Ms Matousek identifies nine people at that meeting, including herself. Six of them reside in New South Wales (including Ms Matousek herself), and three in Western Australia. Later in her affidavit, Ms Matousek says that she is of the view that, in light of the allegations in the statement of claim, six identified people will be 'key and material witnesses'. Again, there is little substantive analysis of how the evidence of each of these proposed witnesses may relate to the issues in the proceedings. Nor is there any explanation of the significantly greater number of witnesses identified in Mr Cohen's affidavit in contrast to the lesser number in Ms Matousek's affidavit. On either assessment however, the number of witnesses would, at first blush, appear to be an unusually large number of witnesses in light of the issues involved.

1. The defendants say that the Business is 'by all tests and means' a business conducted in New South Wales.[11] In support of this proposition, the defendants referred to company records which show that the principal place of business is in Balmain, New South Wales and that the business is 'physically located in New South Wales and conducts its core activities under the regulatory frameworks of New South Wales's laws'.[12] The affidavit of Mr Cohen also deposes 'on instruction from Ms Matousek' that the documents of the Business are predominately located in New South Wales, and that five out of 12 of the Business's clients are located in New South Wales, while only one of the Business's clients are located in Western Australia.[13]
2. Somewhat contrasting with Mr Cohen's evidence on instruction from Ms Matousek that 'the Business is and at all relevant times has been physically located in New South Wales', Ms Matousek's own affidavit states 'whilst there is no physical office, the operations of the Business have always been based out of New South Wales'. It is not clear in the circumstances, nor is it explained, what Ms Matousek means by the expression 'based out of New South Wales'. It is less clear still what Mr Cohen means when he was instructed by Ms Matousek that the Business has always been 'physically located in New South Wales'. Those statements appear to have the flavour of an attempt to establish a physical connection with New South Wales, which, given the electronic nature of the operations of the Business, would appear to be somewhat strained.
3. The defendants also point to authority that the defendants' domicile in New South Wales is a factor weighing in favour of the transfer of the proceedings. The defendants refer to the summary in Irwin at [14(k)] where Robson J said that it would ordinarily be the residence of the defendant that is important to establish jurisdiction.

1. Mr Cohen and Ms Matousek herself give evidence of Ms Matousek's medical condition which relates primarily to a degenerative hearing condition which would require Ms Matousek to participate in and give evidence in person. Ms Matousek's inability to attend in person was supported by a document dated 16 September 2024 and entitled 'Medical Certificate' which states in bland terms that Ms Matousek 'has a medical condition and will be unfit for flying from 16 September 2024 to 30 March 2025'. The affidavit evidence also included an audiology report from Ms Matousek confirming her difficulties with hearing.
2. From her own affidavit, it appears that Ms Matousek's inability to fly is related to a separate medical condition which will be reviewed in February 2025.
3. At this point, I observe that there is no prospect of this matter being heard by 30 March 2025.
4. The defendants place considerable emphasis on the necessity of Ms Matousek being present due to her degenerative hearing, which, they contend, requires her to participate and give evidence in person. While there is an audiology report, there is no evidence to assist me to understand if or whether Ms Matousek would be able to give evidence by video link. I infer that her strong preference to be present in person is so that she can see the person enunciating the words which, understandably, would assist her ability to hear and understand what is being said. There is nothing before me however to indicate whether a video link which will show perhaps even in magnified form the person asking questions, will help or hinder Ms Matousek's ability to participate.
5. In her affidavit of 16 December 2024, Ms Matousek also deposes to various personal and professional difficulties she will encounter if the trial is held in Western Australia.

1. The defendants point to a clause in the documents recording the transaction for Keystone's purchase of the Business which provides as follows:

This Deed is governed by and is to be construed in accordance with, the law of New South Wales and the Parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any court hearing appeals from those courts.

1. The defendants submit that this provision constitutes express consent to the non‑exclusive jurisdiction of New South Wales, which is a 'critical and decisive factor'. While counsel for the defendants accepted that the law under the ACL and the Corporations Act was the same in both Western Australia and New South Wales, he submitted that a difference would arise because New South Wales has enacted the Uniform Evidence Law, while Western Australia is yet to do so. The law of evidence, he submitted, would be relevant to the assessment of evidence that may bear upon the construction of the relevant contractual instruments.

1. In addition, the defendants point to proceedings on foot in the Supreme Court of New South Wales. Mr Cohen says in his affidavit that these proceedings purport to be a defence to the New South Wales proceedings. The documentation to support that proposition is not annexed to Mr Cohen's affidavit. In her affidavit of 16 December 2024, Ms Matousek appears to suggest that these proceedings were issued hastily in Western Australia as a strategic measure prior to the proceedings issued in New South Wales.
2. Although not a focus of the initial affidavit evidence or written submissions, at the hearing of the application, counsel for the defendants placed considerable weight on what the defendants characterised as the plaintiffs' precipitous issuing of the proceedings in this court. By reference to the correspondence passing between the parties' legal representatives in the period leading up to the issuing of the writ, counsel for the defendants submitted in effect that the plaintiffs commenced proceedings in this court as a strategic pre‑emptive strike in order to have the litigation conducted in Western Australia rather than in its natural home in New South Wales. The defendants submitted that particularly where the factors are finely balanced, the plaintiffs' mala fides in pre‑emptively issuing the proceedings in this court should be taken into account. The correspondence relied upon by the defendants was annexed to the affidavit of Ms Matousek without leave, two days before the hearing and outside the period permitted by the court's orders. As I have noted, the point was not a focus of the written submissions. Although I was prepared to accept Ms Matousek's affidavit over the objections of the plaintiffs, I am not prepared to draw the inference urged by the defendants. The allegations advanced are of some gravity and they remain untested. On the face of the correspondence I am not prepared to infer that the plaintiffs' conduct was anything other than a firm but unremarkable response to the position adopted by the defendants as reflected in the correspondence from their legal representatives.
3. I note also that while the defendants explain the preponderance of connection to New South Wales, their own residence in New South Wales, and Ms Matousek's hearing difficulties outside face‑to‑face communications, they have appointed lawyers located in Melbourne, Victoria.

1. The plaintiffs submit that the predominant connection of the proceedings is with Western Australia.

1. The plaintiffs submit that properly understood, the contravening conduct occurred principally in Perth. The plaintiffs point to the fact that the plaintiffs were primarily located in Perth when they received electronic and telephone communications that contained information alleged to be misleading and that, as intended by the defendants, the plaintiffs accessed the electronic material in Perth. The plaintiffs were in Perth when they attended Microsoft Teams meetings and received phone calls and emails.
2. The plaintiffs point to the High Court decision in Voth v Manildra Flour Mills.[14] The plurality in that decision (Mason CJ, Deane, Dawson and Gaudron JJ) in the context of the tort of negligent misstatement, said:[15]

If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon.

1. Senior counsel for the plaintiffs submitted that the same approach ought to be taken in respect of a statement said to be misleading and in contravention of the ACL. The cause of action therefore largely arose in Western Australia and that ought to be a decisive factor in assessing the appropriate forum for the proceedings.
2. The overview set out above from the statement of claim indicates that there were meetings in Sydney. Ms Matousek in her affidavit suggests that the most significant meeting in the course of negotiations was the meeting in Sydney over two days on 30 and 31 August 2023. Ms Matousek in her affidavit attaches less significance to the meetings in Perth. I have already observed that the statement of claim does not plead the second two‑day Sydney meeting as the primary source of the allegedly misleading representations. Counsel for the defendants contended that the Sydney meeting will feature more prominently in the defence (which as yet has not been filed). Ms Matousek also points to the fact that she was in Sydney during the various phone calls and Microsoft Team meetings.

1. The plaintiffs submit that it is plain that evidence will need to be given by Mr Atkinson, Mr Dowd and Ms Matousek. The plaintiffs also point to the likely evidence that will be required from the plaintiffs' advisor Robert Gordon who attended the meeting on 6 June 2023, Phil Briggs who was a former manager of the Business, Amber Lewis, a former team leader of the Business, and Zahra Peggs, the Chief People Officer at one of the Business's major clients. All of those people other than Ms Matousek live in Perth. The plaintiffs appear to accept that Mr Matousek is likely to give evidence, but point out that his role is likely to be fairly confined and his evidence likely to be limited.
2. The plaintiffs submit that it is unlikely that all the people who attended the meeting of 30 and 31 August 2023 will need to be called to give evidence.
3. In addition, the plaintiffs expect to call three experts; a forensic accountant, an information technology (IT) expert, and a further accountant in relation to the hours worked by Ms Matousek's mother. The plaintiffs advise that all the experts they have engaged are based in Western Australia.

1. The plaintiffs dispute the assertion that the Business operates in New South Wales. The defendants point out that the Business operates under a national regulatory framework and is active nationally in Queensland, New South Wales, South Australia, Tasmania and Western Australia. The documentary evidence provided to the court supports that proposition. It also illustrates that, as noted, the defendants have elected to appoint lawyers who are based in Victoria, the only jurisdiction in which the Business itself does not appear to operate.
2. The plaintiffs point to the electronic nature of the Business's operations, including its record and management system and the fact that the Business is primarily comprised of online rather than face‑to‑face training. Significantly, the evidence presented by the plaintiffs is that 70 per cent of the Business's revenue is derived from a company with its principal place of business in Western Australia and this revenue stream and relationship are an important feature of the plaintiffs' claim. This contrasts with the submissions made by the defendants and the statement in Mr Cohen's affidavit that 'five of the Business's 12 clients are situated in the state of New South Wales'. As the plaintiffs point out, there is an absence of any detail to support that proposition. The clients, for example, are not named or identified in any way, nor is their significance to the claim or its defence explained.
3. The plaintiffs point to the fact that Keystone itself is based in Perth.

1. Mr Atkinson states in his affidavit that he too has a degenerative hearing condition. Ms Matousek's condition is supported by some independent evidence and I do not doubt its seriousness. It nevertheless appears to be a curious feature of this matter that parties who conducted intensive negotiations over the phone and electronically for a period of months have now disclosed hearing conditions that require their personal attendance for the giving of instructions and for the giving of evidence. The sensitivity to hearing difficulties is now called in aid by both sides to argue for the forum most convenient to them.
2. Mr Atkinson and Mr Dowd also depose to professional and personal difficulties they anticipate in the event that the proceedings are transferred to New South Wales.

1. The plaintiffs submit that the applicable law is governed by the ACL and the Corporations Act. It is therefore equally applicable to Western Australia and New South Wales. Further, the plaintiffs point to authority suggesting that a non‑exclusive jurisdiction clause is of little significance to the application. As to the defendants' reference to differences in the law of evidence, the plaintiffs submit that the construction of the contractual instruments is not in issue in the proceeding.
2. In relation to the New South Wales proceedings, the plaintiffs reject the defendants' assertion that they issued the proceedings without good faith in order to secure an unjustified locational advantage. The plaintiffs appear to accept that the New South Wales proceedings are linked to these proceedings and contend that it should be raised as a counterclaim in this proceeding. The plaintiffs say the real point of contention is whether the sale transaction ought to be set aside in accordance with the relief they seek in these proceedings.

1. The court is required to make a nuts‑and‑bolts assessment of whether the interests of justice are best served by the proceedings being determined by the Supreme Court of New South Wales.
2. Much of the evidence and submissions were directed to the location of the alleged representations, the Business itself, and the witnesses.
3. I should first observe that the affidavits give rise to considerable conflict in the evidence about the communications between the parties, the nature of the Business, and the varying importance of potential witnesses. It is neither appropriate nor indeed possible to resolve these conflicts for the purposes of this application. The plaintiffs' claim is set out in the statement of claim. The defendants have not yet filed a defence but have foreshadowed aspects of their defence in Ms Matousek's affidavit of 16 December 2024. Those documents shape the dispute in broad outline and it is on that basis that I am in a position at least at this stage to make the assessment required by the application.
4. In relation to the alleged representations and provision of information, I accept that the cause of action is likely to have arisen in the place where the allegedly misleading statements were received and accessed and where the alleged inducements are said to have occurred. On the pleadings to date that would appear to be predominantly, but not exclusively, in Western Australia. The decision in Voth, however, was concerned with ascertaining the place of the act which gave rise to the complaint and therefore the cause of action. It seems to me that the nuts-and-bolts management decision involved here in the assessment of the interests of justice is a different and less technical exercise. I therefore do not consider it necessary to undertake the sort of assessment that might have been required had the issue been one of a conflict of laws or applicable jurisdiction. The reality is that the communications were electronic, both by phone and by Microsoft Teams, with meetings in both Perth and Sydney. The defendants were largely based in Sydney from where they conveyed or provided the information, and the plaintiffs were based in Perth where they accessed or received it. I accept that the matters alleged in the statement of claim regarding where the receipt of, or access to, the information took place, points in favour of a stronger connection with Western Australia. However, in my view, in these circumstances it is a marginal and not decisive factor. It is not a factor which determines where the interests of justice ultimately lie in respect of the nuts‑and‑bolts management decision about the most appropriate court for the conduct of the proceedings.
5. Similarly, it appears to me that the Business operates largely electronically. Its formal registered place of business does not appear to me to be of great significance for the purposes of this application. It clearly operates across various states within Australia and does not appear to have an overwhelming connection with any particular place or jurisdiction in respect of the services it provides.
6. The same may be said about the witnesses. It is too early to tell at this stage precisely who will be the witnesses and how many of them will need to travel and where from, for any trial. However, it is plain that witnesses from Western Australia and from New South Wales will be required to attend, and it is likely that witnesses will also be required from other states.
7. Both sides will no doubt suffer inconvenience and difficulty in attending the trial wherever it is. The medical and convenience factors, at least at this stage, largely cancel each other out.
8. I note in any event that both sides have stated that they would consent to evidence being given by video link at least in circumstances where that would prevent undue expense or hardship. This largely neutralises the difficulties associated with people having to travel to give their evidence.
9. I do not accept the defendants' submission that the non-exclusive jurisdiction clause 'is a critical factor'. The defendants refer to the decision of the New South Wales Supreme Court in British American Tobacco Australia Services Limited v Laurie.[16] The Court of Appeal in New South Wales has made plain that a non‑exclusive jurisdiction clause is of limited significance in an application of this nature. In Joshan v Pizza Pan Group Pty Ltd, Bell P (with whom Gleeson JA and McCallum JJA agreed) said:[17]

Generally speaking (although the true nature of all such clauses is driven by their precise wording), a non-exclusive jurisdiction clause entails no more than a submission to the nominated jurisdiction. It neither requires litigation to proceed in that forum nor precludes either party from suing in another forum which has jurisdiction to resolve the dispute between the parties. To do so does not entail a breach of the non-exclusive jurisdiction clause ...

Whilst noting that Asciano has been applied at first instance in cross‑vesting applications in support of the significance of a non‑exclusive jurisdiction clause ..., it follows, in my opinion, from the reasoning in [80]-[82] above that, at least as it relates to non-exclusive jurisdiction clauses or agreements, Asciano at [18][18] cannot be regarded as good law.

1. Further, the relevant legal principles arise under the ACL and the Corporations Act. There is no basis to suggest that the applicable law will be materially different as between Western Australia and New South Wales. The suggestion that some difference might arise in the law of evidence is mere speculation, particularly as no issue as to the proper construction of any contractual instrument arises on the pleading.
2. In all the circumstances, many of the factors that occupy the evidence and submissions of the parties do not seem to me to be determinative of the natural forum and where the interests of justice lie in that regard.
3. The primary claim relates to the plaintiff's allegations that it has been misled in relation to the strength of the Business and in particular the reliability or prospectivity of revenue from particular clients. It has thereby allegedly suffered loss. That loss or absence of revenue has been suffered by the Business operated by people resident and working in Western Australia. The evidence to date is that the most significant loss is a client relationship, and revenue in respect of a client operating in Western Australia. In my view, that is the nub of the case, and together with the plea that the allegedly misleading information was received and accessed in Western Australia, tips the factors in favour of Western Australia being the location with which the proceedings have the most natural connection. I note in addition that the defendants have appointed lawyers that do not operate in the state in which the defendants are themselves resident. In contrast, the plaintiffs have engaged lawyers and experts resident and operating in Western Australia.
4. Those factors, in my assessment, mean that the interests of justice are best served by maintaining the proceedings in Western Australia. Even if I am wrong that the balance tips in favour of Western Australia, it appears to me that at best, there is no identifiably more appropriate forum. In those circumstances, I respectfully adopt the observation of Martin CJ in Resource Equities:[19]

The only incidence in which I can envisage onus would be relevant would be, if, after considering all the circumstances the Court concluded that there was no identifiable distinction between the alternative fora in terms of the interests of justice in such circumstance. It may be that in such an instance the Court would conclude that it was appropriate to leave the case where it was.

1. It may be that in due course, the position will become clearer one way or another. At this stage, however, the application should be dismissed, and the defendants should pay the plaintiffs' costs of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Competition and Consumer Act 2010 (Cth) sch 2.

[2] Resource Equities Limited (Subject To Deed of Company Arrangement) v Carr [2007] WASC 246 (Resource Equities).

[3] BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400.

[4] Access Group Australia Pty Ltd v Topper Hydraulic Platforms Pty Ltd [2019] WASC 265.

[5] UON Pty Ltd v Hoascar [2021] WASC 17.

[6] Kadak Pty Ltd v Complete Health Products Pty Ltd [2015] VSC 613.

[7] Immortal Imaginations Motion Pictures v Rose [2021] VSC 514.

[8] Irwin v State of Queensland [2011] VSC 291 (Irwin).

[10] Affidavit of Ben Cohen affirmed 4 October 2024 (BC Affidavit).

[14] Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 (Voth).

[16] British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83.

[17] Joshan v Pizza Pan Group Pty Ltd [2021] NSWCA 219 (Joshan) [81], [83].

[18] Asciano Services Pty Ltd v Australian Rail Track Corporation [2008] NSWSC 652.