[1996] HCA 39
Australian Health & Nutrition Association Ltd and Another v Hive Marketing Group Pty Ltd and Another (2019) 99 NSWLR 419
[2019] NSWCA 61
British Aerospace plc v Dee Howard Co [1993] 1 Lloyd's Rep 368
Epic Games, Inc and Another v Google and Others (2022) 399 ALR 119
[2022] FCA 66
Epic Games Inc and Another v Apple Inc and Another (2021) 286 FCR 105
[2004] FCA 698
Oceanic Sun Lines Special Shipping Company Inc v Fay (1988) 165 CLR 197
Source
Original judgment source is linked above.
Catchwords
[1996] HCA 39
Australian Health & Nutrition Association Ltd and Another v Hive Marketing Group Pty Ltd and Another (2019) 99 NSWLR 419[2019] NSWCA 61
British Aerospace plc v Dee Howard Co [1993] 1 Lloyd's Rep 368
Epic Games, Inc and Another v Google and Others (2022) 399 ALR 119[2022] FCA 66
Epic Games Inc and Another v Apple Inc and Another (2021) 286 FCR 105[2004] FCA 698
Oceanic Sun Lines Special Shipping Company Inc v Fay (1988) 165 CLR 197
Judgment (6 paragraphs)
[1]
JUDGMENT
HER HONOUR: On 27 June 2023 the plaintiff, Pacific National Constructions Pty Ltd ("Nowra Cranes"), filed a Statement of Claim seeking orders against the defendant, Geurts Trucks Besloten Vennootschap ("Guerts Trucks"), for the payment of a sum of just under half a million Australian dollars. The claim, brought under s 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) ("the ACL"), relates to a dispute over the purchase of a crane, acquired by the plaintiff, based in Nowra, from the defendant, located in the Netherlands. The plaintiff asserts claims in fraudulent misrepresentation, negligent misrepresentation and misleading or deceptive conduct, with relief sought pursuant to ss 236 and 237 of the ACL.
This judgement concerns a preliminary question as to the operation of an exclusive jurisdiction clause. On 25 March 2024, the defendant filed a Notice of Motion seeking an order that the Court has no jurisdiction over the dispute, and setting aside the Statement of Claim pursuant to r 12.11 of the Uniform Civil Procedure Rules 2005 (NSW), or an alternative order (raised in written submissions) to permanently stay the proceedings. The Motion proceeds on the basis that the defendant does not concede the jurisdiction of this Court to hear the plaintiff's claim.
The Motion was heard on 27 June 2024 with judgment reserved until today.
[2]
The Evidence
The plaintiff read and relied upon two affidavits of Clifford Wilson affirmed on 27 May 2024 and 17 June 2024, whilst the defendant read affidavits from Dirk Geurts, affirmed on 7 May 2024 and 11 June 2024. A Joint Court Book ("JCB") was placed before the Court with relevant annexures. The following short summary is drawn from that material.
Mr Wilson owns and operates Nowra Cranes, a business which leases cranes to its customers. It maintains a fleet of cranes with differing capacities for that purpose, updating its fleet from time to time by the purchase of additional or replacement cranes. In around May 2022 Mr Wilson became aware of a crane advertised for sale by the defendant on an internet database. [1] The crane had been advertised for sale by the defendant on 16 December 2020 via a number of websites. Accompanying each advertisement was the statement:
"Geurts Trucks' general terms and conditions apply to all offers, quotations and agreements. All agreements with Geurts Trucks are governed by the law of the Netherlands and the Oost-Brabant Court, located in 's-Hertogenbosch, has exclusive jurisdiction to take cognizance of any disputes. You can find the full text of our general terms and conditions on our website."
The Geurts Trucks website to which the statement directed the reader was a publicly accessible website which contained a section for "Terms and Conditions" ("T&C"). Article 12.1 of the T&C was in these terms:
"All disputes arising between Geurts and the Customer are subject to Dutch law, and these disputes will be settled exclusively by the Court of Oost-Brabant, s Hertogenbosch location."
On 31 May 2022 Mr Wilson sent an inquiry via email about the crane, which was followed up by a telephone call of 1 June 2022. The call was conducted in English, with Mr Wilson deposing that, whilst Mr Guerts' English was not without fault, he could understand Mr Geurts and believed that Mr Geurts could understand him. There were a number of email exchanges between the parties thereafter. On each email sent by Geurts Trucks, the standard signature block towards the end of the correspondence was followed by a statement in the Dutch language to the same effect as the statements extracted at [5] and [6] above.
On 2 June 2022 Geurts Trucks sent the plaintiff an invoice for the purchase of the crane. The invoice stated, in English, that:
"This invoice is also considered to be a purchase agreement. […] This agreement is covered by the law of the Netherlands and the Oost Brabant Court, located in the Netherlands, has exclusive jurisdiction to take cognizance of any disputes between the parties. […] The Purchaser furthermore acknowledges that Geurts general terms and conditions apply to this agreement, which the Purchaser has received. These general terms and conditions are printed on the back of this invoice ... ".
The T&C, which were included with the invoice, repeated the statement as to the resolution of disputes:
"All disputes arising between Geurts and the Customer are subject to Dutch law, and these disputes will be settled exclusively by the Court of Oost-Brabant, 's Hertogenbosch location" (JCB77-80).
The invoice described the crane as a "Terex AC40-2L Crane Demo Prototype without CE" [2] , gave the first registration date as 2015, and cited a vehicle identification number. The purchase price of the crane was 249,000 Euros. [3]
Upon the invoice being received by a staff member at his place of business, Mr Wilson, who was not at that time in his office, and who did not see or read the invoice, attended a local bank and paid a deposit against the purchase of the crane. The deposit was paid into the defendant's Dutch bank account on 3 June 2022, with the balance of the purchase price paid by the same means on 5 July 2022 (JCB88).
The crane was thereafter shipped from the Netherlands to Australia, being delivered to Nowra Cranes on or about 26 October 2022. Mr Wilson deposed to his discovery of significant deficiencies with the identification information and operational capacity of the crane thereafter, such that it cannot be registered in New South Wales and is not fit for the purpose for which it was purchased. He set out the extent of his loss in his claim, losses he says were incurred because of the false or misleading representations Geurts Trucks made about the crane.
[3]
The Issue for Determination
The defendant contends that the plaintiff can be reasonably taken to have assented to the exclusive jurisdiction clause that appeared on the purchase invoice and other relevant documentation, and thus to have assented to the jurisdiction of the Dutch court over any dispute relating to the purchase. It argues that the exclusive jurisdiction clause should be upheld, there being no strong reasons to set it aside. The plaintiff does not dispute that it contracted to buy a crane from the defendant on terms that gave exclusive jurisdiction to the Dutch court. It resists the enforcement of the clause however, advancing nine features which, it submits, taken together with considerations of convenience, amount to strong reasons in favour of the Court declining to enforce the clause and determining the plaintiff's suit in New South Wales. The question for this Court to determine is whether the exclusive jurisdiction clause should be enforced.
The plaintiff submits that the following matters militate strongly against the enforcement of the exclusive jurisdiction clause:
"1. The evidence is silent on the ability of the Dutch court to hear the plaintiff's claims. Uncertainty as to this point weighs against granting the relief sought by the defendant.
2. It will be cheaper for crane experts if the matter proceeds in this Court.
3. Experts in Australian law may be necessary if the matter were heard in a Dutch court, but would not be necessary in this Court.
4. The matter could be prepared more efficiently by Australian lawyers, rather than Dutch lawyers.
5. The principal of the defendant is able to communicate in (at least) written English, and has found an Australian law firm.
6. The principal of the plaintiff cannot communicate in Dutch.
7. There is no evidence that the Dutch court could hear the matter as quickly, or that the same suite of pre-trial processes in this Court are available in a Dutch court.
8. There is no evidence that the defendant would suffer prejudice if the matter if the matter were to continue in this Court. Further, to ameliorate any prejudice, the plaintiff is willing to have any witnesses from the defendant to be cross examined by video-link.
9. The plaintiff has claimed that the contract has been rescinded. If that is made good, it would follow that the exclusive jurisdiction clause would not regulate the parties' relationship."
[4]
Determination
It is useful to commence with consideration of the applicable legal principles, which may be found helpfully discussed in Australian Health & Nutrition Association Ltd and Another v Hive Marketing Group Pty Ltd and Another (2019) 99 NSWLR 419; [2019] NSWCA 61 ("Australian Health"), among other decisions. Referring to the case under consideration as an appeal involving "litigation about where to litigate", Bell P, as the Chief Justice then was, set out the principles relevant to such a dispute, in the context of his analysis of the arguments before the court, at [75]-[79]:
"Whenever a dispute arises between parties based in different jurisdictions, or even between parties from the same jurisdiction but where the dispute has a connection with another jurisdiction, there is the scope for either jurisdiction to become involved in the resolution of that dispute, and, as such, the possibility arises of a multiplicity of suits between the same parties in relation to, or arising out of, the same dispute. It is this very possibility that often leads commercial parties to make provision in their contractual arrangements for the courts of a particular nominated forum to have exclusive jurisdiction to resolve disputes arising out of, or having a connection with, the parties' contract. Such a forum may be neutral or, as was the case with cl 20 of the RTA in the present matter the 'home' forum of one of the parties.
It is scarcely surprising that common law courts have traditionally supported such arrangements by manifesting a strong disposition towards the enforcement of such clauses whilst never accepting that private parties can 'oust' the court's jurisdiction by such agreements. In Australia, this approach is based upon a series of decisions of the High Court (see Huddart Parker Ltd v The Ship 'Mill Hill' (1950) 81 CLR 502; [1950] HCA 43 (Huddart Parker); Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577; [1954] HCA 62; Akai at 427-9 and 445), and a similar robust approach to the enforcement of such clauses is readily discernible in other jurisdictions, at least where such clauses are between commercial parties dealing with each other at arm's length: see, for example, Donohue v Armco Inc [2001] UKHL 64; [2002] 1 Lloyd's Rep 425 (Donohue v Armco) (England); Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] SGCA 65 at [112] (Vinmar) (Singapore); Pompey Industrie v ECU-Line NV [2003] 1 SCR 450 (Canada); M/S Bremen v Zapata Off-Shore Co, 407 US 1 (1972) (United States); Kidd v van Heeren [1998] 1 NZLR 324 (New Zealand). (A somewhat less robust approach to the enforcement of such clauses in the context of consumer contracts has developed in Canada: Douez v Facebook Inc [2017] 1 SCR 751).
Where a commercial dispute only involves contracting parties, respect for party autonomy and holding parties to their bargain ('pacta sunt servanda') will usually result in courts giving effect to exclusive jurisdiction agreements either by staying or restraining (by anti-suit injunction) proceedings commenced in a forum other than that nominated in the exclusive jurisdiction clause or agreement: in addition to the cases referred to in the previous paragraph, see FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 559 for an example of the grant of a stay of New South Wales proceedings where proceedings were commenced in the face of a foreign exclusive jurisdiction clause; for an example of an anti-suit injunction being granted to restrain a party from proceeding abroad in the face of a local exclusive jurisdiction clause, see The Angelic Grace [1995] 1 Lloyd's Rep 87; and see generally Alex Mills, Party Autonomy in Private International Law (2018, Cambridge University Press); Peter Nygh, Autonomy in International Contracts (1999, Oxford University Press).
The case law discloses not so much a 'test' for or governing the exercise of discretion in this area but rather an approach which begins with a 'firm disposition in favour of maintaining [the] bargain unless strong reasons be adduced against a stay': Akai at 445. This has been described as a 'prima facie position'. In Donohue v Armco at [25], Lord Bingham said that:
'Where the dispute is between two contracting parties, A and B, and A sues B in a non-contractual forum, and A's claims fall within the scope of the exclusive jurisdiction clause in their contract, and the interests of other parties are not involved, effect will in all probability be given to the clause.'
In Global Partners, Spigelman CJ observed (at [89]) that:
'The kinds of considerations which may lead to the prima facie position being overturned have been frequently expressed in forceful words of equivalent import such as:
"A strong bias in favour" (Huddart Parker v The Ship "Mill Hill", supra at 509).
"Strong reasons" Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 259 per Gaudron J; Akai v The People's Insurance Co supra at 429 per Dawson and McHugh JJ and at 445 per Toohey, Gaudron and Gummow JJ.
"Strong cause" The Eleftheria supra at 99.
"Substantial grounds" FAI v Ocean Marine Mutual supra at 569; Incitec v Alkimo Shipping Corp supra at [42].
"Strong countervailing circumstances" Incitec v Alkimo Shipping Corp supra at [43]".'" (internal reference omitted)
[5]
ORDERS
The Court makes the following orders:
1. The Claim filed by Pacific National Constructions Pty Ltd (CAN 104 808 844) trading as Nowra Cranes on 27 June 2023 bearing Case number 2023/00206663 is permanently stayed;
2. Subject to order (3) costs of the Motion filed by Geurts Trucks Besloten Venootschap on 25 March 2024 are in favour of the defendant;
3. Should either party seek an order for costs different to that given at order (2), written submissions and any evidence in support are to be filed and served on the opposing party within 7 days of the date of these orders. Submissions and any evidence in reply are to be filed and served 7 days thereafter. Any such application will be determined on the papers.
[6]
Endnotes
There is some difference in the evidence of Mr Wilson and that of Mr Geurts as to the website Mr Wilson viewed, with Mr Wilson asserting in his affidavit of 27 May 2024 that there was nothing on the advertisement he saw that referred to the defendant's Terms and Conditions, or the jurisdiction of the Dutch courts (JCB85). However, it is clear from the record of email exchanges that the initial contact from Mr Wilson to Geurts Trucks was via a website which did display the relevant information (JCB128-129), and the information was contained in all subsequent communications.
"CE" is understood to refer to conformity to European standards (Tcpt, 27 June 2024, p14(42)).
About $385,000.
Oceanic Sun Lines Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1998] HCA 32 at 259 per Gaudron J.
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Decision last updated: 09 July 2024
Further, the plaintiff contends that the Supreme Court "is not a clearly inappropriate forum", having regard to these matters, matters largely of convenience:
"1. The crane is in Australia.
2. The plaintiff and its witnesses are in Australia.
3. The parties' lawyers are in Australia.
4. It is reasonable to expect that crane experts will be in Australia.
5. The law to be applied is Australian law."
For the reasons given below, I am not persuaded that the features referred to by the plaintiff amount to strong reasons militating against the enforcement of the jurisdictional clause.
The onus of establishing that "strong reasons" or "substantial grounds" exist to refuse to enforce an exclusive jurisdiction cause falls on the party seeking to resist the effect of the clause. The plaintiff concedes that the onus of "adducing strong reasons" [4] applies to it.
The rationale for the requirement for strong reasons rests in the importance of limiting jurisdictional risk such as to facilitate orderly international trade. In Epic Games Inc and Another v Apple Inc and Another (2021) 286 FCR 105; [2021] FCAFC 122 ("Epic v Apple"), the Full Court of the Federal Court (per Middleton, Jagot and Moshinsky JJ) observed that,
"[…] exclusive jurisdiction clauses are a significant feature of global commerce, being a major tool in limiting jurisdictional risk and exposure: see, eg, Incitec at [43] (Allsop J (as his Honour then was)); Australian Health at [78]-[79] (Bell P, Bathurst CJ and Leeming JA agreeing). Undoubtedly, the enforcement of exclusive jurisdiction clauses stimulates commerce by preventing a multiplicity of suits arising out of the same dispute, and removing or reducing the risk of inconsistent factual findings: Australian Health at [75], [81], [92]; Incitec at [47], [52]-[56]; Global Partners at [67] (Spigelman CJ, with whom Giles and Tobias JJA agreed). As stated by Spigelman CJ in Global Partners at [67], "[t]here is a clear commercial interest in minimising the possibility of a dispute being determined by multiple tribunals, with the consequent prospect of divergent findings".
Considerations of convenience are ordinarily of little or no relevance when considering whether an exclusive jurisdiction should or should not be enforced. In Incitec Ltd v Alkimos Shipping Corporation (2004) 138 FCR 496; [2004] FCA 698, Allsop J made the point, at [49] that,
"… [t]o the extent that the operation of the exclusive jurisdiction clause causes financial or forensic inconvenience to the party which bound itself to the clause, that, of itself, is to be seen as only the direct consequence of the bargain entered and, generally, can be set to one side."
This principle was endorsed in Australian Health, at [101], additionally citing Waller J (as his Lordship then was) in British Aerospace plc v Dee Howard Co [1993] 1 Lloyd's Rep 368, wherein it was said, at 376:
"[…] it simply should not be open to DHC to start arguing about the relative merits of fighting an action in Texas as compared with fighting an action in London, where the factors relied on would have been eminently foreseeable at the time that they entered into the contract … it seems to me that the inconvenience for witnesses, the location of the documents, the timing of a trial, and all such like matters, are aspects which they are simply precluded from raising."
Bell P cited further authority along those lines, at [103] of Australian Health.
The plaintiff's arguments in favour of strong reasons being established, extracted at [14] and [15] above, fall to be assessed in light of these principles.
Commencing with consideration of the issue set out at [14(1)] above, the plaintiff submits that the absence of any evidence adduced by the defendant as to the capacity of the Dutch court to hear its claim militates against the relief sought by the defendant. A similar claim is made in the argument extracted at [14(7)] above, pointing to the absence of evidence of the speed and thoroughness with which the Dutch court might determine the matter.
Those arguments suffer from the flaw of equating an absence of evidence with evidence of absence of capacity, in circumstances where it is not for the defendant to establish that the court given jurisdiction by the contract can determine the plaintiff's claim, but for the plaintiff to establish that it cannot or should not. The plaintiff has not put on any evidence to point to any juridical disadvantage to it in the claim being determined by the jurisdiction to which it agreed to give that authority; neither did it seek an adjournment to obtain relevant evidence after the defendant put the matter in issue.
The fact that there is no evidence about the capacity of the Dutch court to fully hear the plaintiff's claim or to do so as expeditiously as this Court might can hardly be relied upon by the plaintiff as a feature in its favour when the onus is on Nowra Trucks to establish any claimed juridical disadvantage. If the plaintiff asserts the proposition of incapacity of the Dutch court leading to disadvantage to Nowra Cranes, it must prove it; the defendant is not obliged to prove the contrary proposition. That is particularly so when it is open to infer that acceptance by the plaintiff of the jurisdiction and capacity of the Dutch court and the system of jurisprudence that applies there is inherent in the agreement of the parties to the exclusive jurisdiction clause. There is no onus on the defendant to disprove an assertion made by a party which did not seek to prove it. Commenting on what was stated by the majority in Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418; [1996] HCA 39, the Full Court of the Federal Court in Epic v Apple said, at [83]:
"The better view of the majority judgment in Akai at 445 is that if the party resisting the stay application on the basis of an exclusive forum clause establishes that there are aspects of Australian law that would not apply in the foreign court, the non-application of which involves depriving that party of a legitimate juridical advantage, that may comprise strong reasons not to grant a stay unless the party seeking the stay proves to the contrary.
Contrary to Epic's submissions, we do not consider that the majority in Akai were proposing that where a party responds to a stay application by asserting that a law of the invoked jurisdiction confers upon it a juridical advantage, the onus shifts to the party seeking the stay of proceedings. In such a case, in our view, the onus remains on the party seeking to resist the enforcement of the exclusive jurisdiction clause to prove strong reasons not to enforce the exclusive jurisdiction clause: Australian Health at [79]....Provided that the exclusive jurisdiction clause appears to bind the party resisting the stay and the commencement of the proceedings involves a prima facie contravention of the exclusive jurisdiction clause, it is for the party resisting the stay to prove the existence of the strong reasons not to enforce the clause."
The fact that the plaintiff's Claim is brought under s 18 of the ACL does not lessen or alter its obligation to prove juridical disadvantage; that fact does not of itself establish an important public policy issue in the interpretation or application of complex Australian law that is apt to be misunderstood by a foreign court. The dispute between the plaintiff and the defendant is essentially contractual; the plaintiff's Claim is relatively straightforward and there is no reason in the absence of evidence establishing the proposition to simply assume that a Dutch court cannot be properly informed of, and apply, Australian law. The Netherlands is a modern European democracy and member of the European Union ("the EU"); its courts necessarily comply with the requirements of membership of the EU. If the plaintiff seeks to establish that a Dutch court cannot properly consider and apply straightforward Australian law, to its disadvantage, evidence of the proposition is necessary. The issue was discussed in Carnival plc and Another v Karpik (The Ruby Princess) (2022) 294 FCR 524; [2022] FCAFC 149, at [36] - [37]:
"In Epic Games Inc v Apple Inc (2021) 286 FCR 105 at [110] (Epic v Apple), the Full Court considered that a foreign court having to apply Australian law "through the prism of expert evidence" is a factor which may weigh in favour of non-enforcement of an exclusive jurisdiction clause, including "the risk that important aspects of foreign law will be lost in translation" and "matters of meaning and context may be overlooked or misconstrued". In matters such as Epic v Apple that involve complex questions of law and which may have precedential value for Australian courts, it may be accepted that this is a public policy reason (the weight of which will depend on the circumstances of the case) against enforcing an exclusive jurisdiction clause. Care is necessary, however, in engaging in such an evaluation. In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (Voth) at 559, Mason CJ, Deane, Dawson and Gaudron JJ expressed the view that there were "powerful policy considerations", particularly international comity, "which militate against Australian courts sitting in judgment upon the ability or willingness of the courts of another country to accord justice to the plaintiff in the particular case". That public policy consideration underpinned the choice by the High Court in Voth to favour the "clearly inappropriate forum" test over the "more appropriate forum" test for forum non conveniens analysis. Application of this factor illustrated in Epic v Apple should be focused clearly on the public policy benefits for Australia of the potential of a particular case to contribute to Australian jurisprudence on complex or unsettled questions of law, thereby informing the question whether there are strong reasons not to enforce the exclusive jurisdiction clause. It should not be based on notions of the comparative ability or inability of a foreign court to occasion justice in a particular case.
In this case, the primary judge concluded at J[313] that the "Australian law on the ACL provisions that are relied on is reasonably well established and settled" and that the "factual issues rather than the legal issues [will be] the principal debate". In these circumstances, I agree with Derrington J's conclusion that the public policy underlying the Full Court's conclusion in Epic v Apple has little, if any, weight. A court applying foreign law through expert evidence in matters governed by foreign law is a well-established and fundamental tenet of private international law."
The provisions of the ACL of relevance in this case are "reasonably well established and settled", and it is likely that the matter will turn on factual questions concerning any representations made or not made, rather than upon any complex or abstruse questions of local law. It cannot simply be assumed, as the plaintiff suggests the Court ought to do because of an absence of evidence on the point, that a Dutch court will not be able to apply foreign law, or deal appropriately with its claim.
The plaintiff relied upon the decision of Epic Games, Inc and Another v Google LLC and Others (2022) 399 ALR 119; [2022] FCA 66, a decision of Perram J, to contend the contrary position, that is that, where the evidence is uncertain as to the capacity of a foreign court to apply Australian law, strong reasons to set aside an exclusive jurisdiction clause will be established. It argued that, on that basis, a burden fell on the defendant to adduce evidence as to the operation of the Dutch court. I did not find that argument persuasive. In the decision the Court was taken to, Perram J heard evidence adduced by both parties as to the capacity of a foreign court which left him unable to determine where any juridical disadvantage lay. His decision was one of fact. I do not understand it to lay down any principle concerning the onus of proof that differs from what was said in the authorities already cited.
By its second claim ([14(2)] above), the plaintiff asserts that it will be cheaper for "crane experts" if the matter is heard in this jurisdiction. That may be so, although, as a matter principally connected with issues of convenience, it is not a feature of great weight. Further, the proposition is by no means a certainty, and rests on at least one assumption, an assumption that may be inapposite. That assumption is that the substance of the dispute for determination by a court will be the functionality of the crane purchased by Mr Wilson. At this stage, and noting that the defendant does not concede the jurisdiction of this Court, no defence has been filed. What any defence may be can only be the subject of speculation. One speculative defence is that implicitly suggested by the plaintiff, that the crane is not as flawed as Mr Wilson contends, necessitating "crane experts" to examine the machine to see if it conforms to the representations said to have been made about it by Mr Geurts. Other speculative defences one can foresee include: that the representations were not made in the terms Mr Wilson asserts, or at all; or, that the machine sold to Nowra Cranes was the crane described on the purchase agreement, that is, a "demo prototype without CE". These last potential defences would be unlikely to require any evidence from crane experts at all: the former would be dependent upon an assessment of the evidence of Mr Wilson and of Mr Geurts, together with any supportive evidence relevant to that process; the latter would rest on scrutiny of the purchase agreement, it not being in dispute that a demonstration prototype is not a functional crane, as Mr Wilson discovered when he tried to register the machine in New South Wales.
The arguments extracted at [14(3)] and [14(4)] above are issues of forensic inconvenience with associated issues of cost, but these considerations attract little weight. There will be greater inconvenience and expense to one of the litigants, that which must fight the action on foreign soil but, should that be Nowra Cranes, that is a feature inherent in its agreement to the exclusive jurisdiction clause. It is not a basis to permit the effect of the clause to be avoided.
Similar considerations apply to the issues extracted at [14(5) and (6)] above. The plaintiff seeks to rely upon the fact that Mr Geurts has some English language skills, whilst its principal has no Dutch, as a feature to advantage it in its endeavour to avoid the exclusive jurisdiction clause. That Mr Wilson cannot speak Dutch is a feature that was known to him at the time Nowra Cranes accepted the terms offered by Geurts Trucks. Being at a linguistic disadvantage can be one common feature of engaging in foreign trade; it cannot be relied upon as a basis to avoid the jurisdiction of a foreign court. In modern litigation the use of interpreters to assist witnesses and litigants is common. There is no reason to assume that translations services would not be available to the plaintiff should its claim proceed in the Netherlands.
Nor is there any reason to accept that the plaintiff would be unable to secure legal representation in the Netherlands. The use of foreign lawyers to pursue claims in a foreign legal system is an ordinary feature of international trade litigation which, whilst it adds to cost and inconvenience, is not a feature militating in the plaintiff's favour. The same can be said of the reliance upon the defendant's demonstrated ability to obtain local legal representation to put on the present Motion - it does not assist the plaintiff in seeking to avoid the exclusive jurisdiction clause. To have regard to the fact that the defendant is represented in this matter would be to penalise a litigant for seeking and securing a lawyer to assist it.
The plaintiff's reliance on an absence of evidence of juridical disadvantage to the defendant ([14(8)] above) is misplaced. The defendant has the benefit of the operation of the exclusive jurisdiction clause that was part of the bargain it struck with Nowra Cranes - it does not have to put on evidence to establish why the clause should operate; the plaintiff bears the onus of establishing why it should not.
The final feature of the nine advanced by the plaintiff is that it has claimed that the contract has been rescinded. The effect of that claim is not entirely clear, but one thing it cannot achieve is to undo that which was done, to somehow "unmake" a contract, as if time could be turned back. As Giles CJ observed in FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 559, at 563,
"Neither recission by a party nor a judge's say so can turn the clock back to have that literal effect, and a contract avoided ab initio is not, in Newspeak, an uncontract."
As to the appropriateness of New South Wales as the forum in which to litigate the plaintiff's claim, extracted at [15] above, these are features of convenience, dealt with to some extent when considering the matters referred to at [14]. That the crane is physically located in Australia ([15(1)]) may be of no relevance at all, depending upon the nature of the defence. Even if it is of relevance, and it will be necessary for experts to examine the crane, that will or may lead to a forensic inconvenience to one party or the other. Witnesses to be called ([15(2)]) by either party may be inferred to be in Australia or the Netherlands, with some inconvenience to one or the other litigant, although perhaps to a lesser extent than formerly given the ability of modern courts to take evidence via an audio-visual link, and the capacity of lawyers to use video conferencing platforms. I have considered earlier the use of foreign lawyers ([15(3)]) and the need for or location of crane experts ([15(4)]); I have also considered the application of Australian law and the capacity of foreign courts to be informed of law that is neither complex nor unsettled ([15(5)]). None of these features are persuasive. They are largely matters of convenience and, even taking them together, do not provide a basis to avoid the operation of the relevant clause.
The plaintiff's overarching submission is that the matters it relies upon together have the force of strong reasons why it should not be held to the agreement it struck for the operation of Dutch jurisdiction over any dispute arising from its purchase of the crane. Whilst the question is ultimately a factual one, the assessment of the facts must be carried out in accordance with the legal principles set out above. Although I accept that Nowra Cranes will be put to considerable expense and inconvenience if it has to pursue its claim in the Netherlands and, if its claim can be made good, that simply adds to the disadvantage caused by the conduct of the defendant, the features it has raised do not amount to a compelling basis for the Court to refuse to enforce the exclusive jurisdiction clause. The plaintiff and defendant were the only parties to the bargain struck concerning the crane; each had a proper opportunity to consider the terms of the purchase and decide whether it was advisable to accept the terms and proceed with the bargain; that it is more convenient for Nowra Cranes to pursue a claim in this State under Australian law is not a sufficiently strong reason for refusing the defendant's Motion.
The plaintiff has failed to make good its claim that there are strong circumstances militating against enforcement of the exclusive jurisdiction clause. The defendant's Motion should be granted and the order it seeks for the plaintiff's Claim to be permanently stayed made.