That approach is consistent with that taken by courts in this State, see West's Process Engineering Pty Ltd (Administrator Appointed) v Westralian Sands Ltd (NSWSC, Rolfe J, 6 August 1997) and Wholesome Bake Pty Ltd v Sweetoz Pty Ltd (NSWSC, Bryson J, 5 April 2001).
16 To the extent that it is necessary to make a determination about the nature of clause 66.1, I have come to the view that it does purport to give exclusive jurisdiction to the ACT courts to determine disputes in relation to or arising under the agreement. I start my consideration on the basis that the clause should be construed as having some work to do in the agreement between the parties simply from the fact that it is there. It was accepted by both parties that there was nothing otherwise in the terms of the agreement that would in any way affect the operation of the clause and that the words "subject to this Deed" could be considered as surplusage.
17 The Plaintiff relied both on the fact that these words appeared in the clause and that the courts of the ACT would have jurisdiction independently from the existence of the clause to found a submission that the presence of the clause was merely an oversight arising from the use of a standard form of agreement and it should not be given any weight in determining the appropriate court to hear the plaintiff's action. In effect it was submitted that the existence of the clause should be considered as no more than an "unthinking inclusion", quoting the words of Justice Giles as Chief Judge of the Commercial Division in FAI General Insurance v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117 at 127.
18 In that case, which concerned insurance contracts, his Honour was called upon to determine whether a clause in a particular contract should be construed as an exclusive jurisdiction clause. His Honour, having referred to a number of authorities on the issue, determined to approach the matter on the following principles (at 126-127):
"(a) Whether a jurisdiction clause is an exclusive jurisdiction clause is a construction of the particular contract, with such regard to the circumstances surrounding the entry into the contract as is permissible.
(b) The word 'exclusive' is not determinative, and a clause may be held to be an exclusive jurisdiction clause notwithstanding the absence of that or a similar word or phrase: as it was said in Continental Bank NA v Aeakos Compania Naviera SA (at 594) it would be a surrender to formalism to require a jurisdiction clause to provide in express terms that the chosen court is to be the exclusive forum.
(c) Although mutuality, in the sense that both parties agree to a relevant jurisdiction, has been thought to point to exclusive jurisdiction, I have some difficulty seeing why that should be so. Lack of mutuality is likely to tell against exclusive jurisdiction ( Continental Bank NA v Aeakos Compania Naviera SA ), but mutuality is consistent with no more than submission to the jurisdiction. However, when taken with other matters mutuality may assist in finding a contractual intention that disputes shall be submitted only to the courts of the relevant jurisdiction: British Aerospace Plc v Dee Howard Co ; Austrian Lloyd Steamship Co v Gresham Life Assurance Society Ltd .
(d) Other language in the clause or the nature of the contract may point towards that contractual intention, for example 'under the jurisdiction of the English courts' and the assumed desire for certainty in Sohio Supply Co v Gatoil (USA) Inc ; or the use of transitive language as in Austrian Lloyd Steamship Co v Gresham Life Assurance Society Ltd , British Aerospace Plc v Dee Howard Co and Continental Bank NA v Aeakos Compania Naviera SA ,
(e) If the courts of the relevant jurisdiction would have jurisdiction in the absence of the clause, that may indicate that the clause was intended to confer exclusive jurisdiction: Sohio Supply Co v Gatoil (USA) Inc ; Gem Plastics Pty Ltd v Satrex Maritime (Pty) Ltd . It will not always be so, as the clause may have been intended only to put beyond doubt the existing jurisdiction ( S & W Berisford Plc v New Hampshire Insurance Co ), or be an unthinking inclusion."
19 I have been taken to some of the decisions that Justice Giles considered and to which he referred in the quote above. As his Honour found, they have limited value when considering a particular clause, especially when one has regard to the subject matter of the particular agreement being construed and the circumstances in which the agreement was made. One of the relevant matters in that regard will be the nature of the parties entering into the agreement, so that in Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588, a non-insurance case, it was held to be a relevant consideration that the clause was contained in an agreement made between "sophisticated businessmen" who had carefully chosen their words as to the relevant jurisdiction for the resolution of disputes under the contract.
20 The present agreement is one executed in a commercial setting. There is nothing to suggest that the parties were not in an equal position in determining the terms of the agreement. There is no indication from the terms and conditions of the agreement that it was a standard form used by the defendant in which inappropriate or irrelevant clauses might appear and which would have been disregarded by the parties. It may be, although there is no evidence of it, that clause 66 is a standard clause used by the defendant in its contracts and this may explain the use of the words "subject to this Deed". But that does not mean that the parties did not intend the clause to operate according to its terms or that it was an "unthinking inclusion". It is not difficult to understand why the defendant would want such a clause in the contract particularly where the plaintiff did not conduct business within the ACT, where the defendant operates from the ACT, where the work to be performed by the plaintiff under the contract would be performed to a large extent outside the ACT and where there were to be events, the subject of the contract, in various states and territories throughout Australia.
21 The fact that the ACT court would have jurisdiction despite the clause does not detract from the construction that it is an exclusive jurisdiction clause. I have already expressed my view that the clause does not find its way into the agreement as an oversight. Nor do I believe that it was intended simply to confirm or declare the jurisdiction of the ACT courts. Unlike the situation found to exist in S & W Berisford Plc v New Hampshire Insurance Co [1990] 1 Lloyd's Rep 454, I can see no reason why the parties would acknowledge the jurisdiction of the ACT courts unless that jurisdiction was preferred by them.
22 The present clause is very similar to that considered in British Aerospace Plc v Dee Howard and Co [1993] 1 Lloyd's Rep 368 and all the indicia which were found to give rise to a construction that the clause in that case was an exclusive jurisdiction clause are present in clause 66.1. Of course that is not a binding decision upon me and the clause in this agreement is to be construed within the agreement itself as entered into by these particular parties. But applying the approach adopted by Justice Giles set out above, I conclude that it was intended to confer exclusive jurisdiction for the resolution of any, that is all, disputes arising in respect of or under the agreement.
23 I accept that such a conclusion is not decisive and I doubt that it was truly necessary in order to determine the present application. However, the clause should be given weight in determining the appropriate forum on the basis that it was a term of the bargain between the parties that litigation arising out of the agreement they entered into would be resolved in accordance with the laws of the ACT and by the courts within that jurisdiction. The existence of that clause at the very least displaces the prima facie right of the plaintiff to determine the appropriate jurisdiction in which to commence proceedings. But it is also a matter of some importance when evaluating the inconvenience and cost to a party of being required to conduct proceedings in a particular jurisdiction.
24 I am prepared to find, although there is no direct evidence of it, that the defendant is more able to cope with the costs and inconvenience of a hearing outside the jurisdiction in which it primarily operates than is the plaintiff. It does not seem to me to be irrelevant in that regard that the defendant is the Commonwealth of Australia and the plaintiff is a business operated in NSW by two private persons. The apparent disparity in the resources available to the parties might have been of critical importance were there no other matters tending to indicate one jurisdiction in preference to the other and had the plaintiff been entitled to choose the jurisdiction unimpeded by the agreement.
25 But there is nothing to indicate that it would be unjust for the plaintiff to be bound by the term of the agreement as to the appropriate jurisdiction notwithstanding that it will be inconvenienced as a result. That inconvenience was foreseeable at the time the plaintiff entered into the agreement. It is relevant that the jurisdiction determined by the agreement is the most proximate to that preferred by the plaintiff and there is no reason why it should not be assumed that this was a matter taken into account by the plaintiff when it agreed to be bound by clause 66.
26 I order that pursuant to s 5(7) of the Act the proceedings be transferred to the Supreme Court of the Australian Capital Territory. I will hear the parties as to the order I should make in relation to costs.
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