Pico Holdings Inc v Dominion Capital P/L [2001] VSC 333

Supreme Court of Victoria|2001-08-30|Before: BONGIORNO, J.

The application to withdraw the appearance is made under Rule 25.01. A party who has filed an appearance in a proceeding may withdraw the appearance at any time, with the leave of the court. If the defendant were permitted to withdraw its appearance, it would do so and file a conditional appearance, following which it would then move for a stay of proceedings on the ground that the court should enforce the exclusive jurisdiction clause to which I have referred. In the determination of that application, the court would apply the principles set out by the High Court in Oceanic Sunline Special Shipping Company Inc. v Fay [1988] HCA 32; (1998) 165 C.L.R. 197. The question which would be determined on that application would be whether the defendant had waived its right to insist upon the exclusive jurisdiction clause being applied or whether the exclusive jurisdiction clause should be applied by the Court staying the action, to permit the subject matter of the action to be litigated in the nominated Californian court.

Here, the first hurdle that the defendant must jump is the hurdle of obtaining leave to withdraw its unconditional appearance. In normal circumstances, by its filing an unconditional appearance, the defendant submits to the jurisdiction of the Court and has waived any objection to the Court hearing the case. The defendant says however that Mr Troiani's original mistake, brought about, I might hastily add, by lack of instructions and not by any misapprehension of either the facts or the law, leads this Court to the situation where the discretion to permit the withdrawal of the appearance is enlivened. However, that discretion must be exercised judicially and in light of all the facts of the case, including in this case, the allegations by the plaintiff that the defendant has waived its right to object to the jurisdiction, so that even if a conditional appearance were now entered, no stay of proceedings would follow, so that the appearance would become unconditional, thus maintaining the jurisdiction of this Court to hear the case on its merits. Accordingly, the proper exercise of the discretion under Rule 25.01 involves a consideration of whether there has indeed been a waiver.

As Chernov J set out in Schweitzer v Kroner Verwaltungs, GMBH & Anor (unreported 24 June 1997) waiver in the context presently being considered involves a voluntary act by a defendant unequivocally evincing an intention to abandon an objection to jurisdiction. In National Commercial Bank v Wimborne [1979] 11 N.S.W.L.R. 156 at 176, Holland J said:

"In this field, as in others, the allegation of 'waiver' by a party of some right is that in law the right has been lost. Waiver in this sense is a conclusion of law based on relevant facts. To constitute waiver the facts must show a voluntary act unequivocally evincing an intention to abandon or not to assert a right and such intention may be express or its existence imputed from conduct."

In this case, on 31 July the defendant asserted a right to object to the jurisdiction of this Court to hear the matter, based on the exclusive jurisdiction clauses contained in the relevant documents. It did so, adding that it would take proceedings to protect its right in the event the plaintiff did not concede that right by close of business on 1 August. Not only did the plaintiff not concede that right by 1 August, but on that very date informed the defendant that it rejected its assertions and put it on notice that it (the plaintiff) should be given sufficient notice of any application for injunctive relief made to a court in the United States. Almost a month passed and nothing occurred. Nothing, that is, which would suggest that the defendant was continuing to assert the right it earlier claimed. Indeed, as I have already detailed, the defendant took a number of steps in the course of this action in which it made no claim to be maintaining the objection to jurisdiction but rather defended the proceeding as if no such right existed.

Of particular importance in this regard was its failure to raise the question of jurisdiction as an answer or partial answer to the plaintiff's claim for a Mareva order. Even if Mr Styring was be correct in saying that the jurisdiction claim and the plaintiff's response to it may have constituted a serious issue to be tried (although that may be doubted having regard to the terms of the exclusive jurisdiction clause which seems clear: Akia Pty. Ltd. v People's Insurance Company Ltd (1996) C.L.R. 188 at 418), the fact that it was not raised at all leads in my view to the necessary inference that at that stage at least it had abandoned its objection to jurisdiction. I instance that particular Act, but also point to the filing of affidavits, the exchanges of correspondence, the appearances in court and the proffering of an order to which it was prepared to consent as further facts from which the inference of waiver is virtually compelled.

Accordingly, I am satisfied that it is a necessary inference from the acts of the defendant since 1 August and up to at least 27 August, that it had waived its right to object to the jurisdiction of this Court in terms of the exclusive jurisdiction clause contained in each of the promissory notes.

Mr Styring for the defendant relied upon a number of cases and drew my attention to them. Each of them is either distinguishable insofar as they need to be distinguished, or in fact supports the proposition which I have found was made out.

In this case the failure of the defendant to seek to enforce its claimed right over such a period combined with the acts to which I have referred, are sufficient in my opinion to raise the necessary inference of waiver.

The question then is what order should now be made. Whilst it may be true that the proof of the mistake under which the original unconditional appearance was entered gives rise to a right to have the question of withdrawal of that appearance considered under Rule 25.01, the question is clearly discretionary. Having regard to the finding which I have made as to the defendant's having waived its rights, I consider that it ought not now be permitted to withdraw its appearance. As I have already indicated, were it to be permitted to do so and replace that appearance with a conditional appearance, it would then have to move for a stay of the proceeding. Such application would raise the identical issue of waiver which I have already found against it.

Accordingly, the defendant's application to withdraw its unconditional appearance is dismissed.

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Cases Cited (1)