SAGASCO SOUTH EAST INC & ORS v BHP PETROLEUM P/L No. SCGRG-98-690 Judgment No. S6998 [1998] SASC 6998

Before considering these provisions in the present context, it is appropriate to have regard to the purpose of the cross-vesting legislation. The preamble of the various acts is significant:

"1. Inconvenience and expense have occasionally been caused to litigants by jurisdictional limitation in federal, State and Territory courts: 2. It is desirable - (a) to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court; and (b) to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and (c) if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court."

It may be seen that the intention is that the system should not detract from the existing jurisdiction of any court and that proceedings should be instituted and heard in the appropriate court.

Shortly after the legislative scheme was enacted, it was considered by the New South Wales Court of Appeal in Bankinvest AG v Seabrook & Ors (1988) 90 ALR 407. The leading judgment was given by Rogers AJA. The other members of the Court, Street CJ and Kirby P, agreed with his various observations. He accepted that a purpose of the scheme was as stated by the Advisory Committee to the Constitutional Commission or the Australian Industrial System that:

"Transfer and removal provisions will ensure that cases are heard in the court in whose ordinary jurisdiction they belong. The aim of the cross-vesting provisions is not to effect a general shake up of the role of the courts. Nor, is it to give litigants a free choice of forum for initiating proceedings. Rather it is to 'ensure that almost always the court hearing a case would have ample jurisdiction to determine all the claims and defences involved in the case'". [see p418]

He went on to say that the proceedings are to be disposed of in one court and that that court is to be the natural or more appropriate court "for the disposition of the dispute": pp419-420, p423.

In Bourke & Ors v State Bank of New South Wales (1988) 85 ALR 61, Wilcox J considered the legislation and noted that it did not authorise the transfer of a proceeding to another court simply because the judge formed an intuitive view that the transfer would be appropriate: see pp76-77.

Section 5(2)(b)(i) has no application as there is no other relevant or related proceeding elsewhere. It is the provisions of s5(b)(ii) and (iii) which bear upon the matter. It is to be noted that if each of the criteria in s5(2)(b)(ii) are present or that the provisions of s5(2)(b)(iii) apply, the Court is required to transfer the proceedings to the other appropriate Court. Conversely, if the criteria are not satisfied, the Court has no power to transfer the action as Wilcox J said in Bourke & Ors v State Bank of New South Wales, when he considered s5(4)(b) which contains similar provisions regarding transfer from the Federal Court to a Supreme Court.

I first consider the matters set out in s5(2)(b)(ii). These proceedings could not have been instituted in this Court but for the provisions of the cross-vesting legislation and consequently the matter comes within subs(A). The matters for determination in the action arise under the law of Western Australia. At this stage it is suggested that the law of Western Australia is no different from the law of South Australia with respect to interpretation of contracts or rectification and that reliance is not placed by the defendants upon a statute of Western Australia. None the less, the relevant matter arose under the law of Western Australia and the relevant law is part of that law. Apart from the common law as to choice of law, there is the agreement of the parties. Clause 23.6 of the Griffin Agreement provides that it shall be governed and interpreted in accordance with the laws from time to time in force in the State of Western Australia. Also, the matters for determination do not arise within the jurisdiction of this Court apart from the provisions of the cross-vesting legislation. So the matter also comes within subs(B).

Under this subsection, it remains to consider whether the interests of justice in the context of whether it is more appropriate that the action be heard in the Supreme Court of Western Australia. In Bankinvest AG v Seabrook & Ors, the Court accepted the view that consideration of "interests of justice" is the same under s5(2)(b)(ii)C as under s5(2)(b)(iii) and encompasses all matters that determine which is the more appropriate forum along the lines discussed by Lord Goff in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at pp476 ff. Those matters are with which court the action has the most real and substantial connection which includes not only factors such as convenience and expense but also the law governing the relevant transaction and where the parties reside and carry on business. In Bourke & Ors v State Bank of New South Wales, Wilcox J said that the expression "interests of justice" should be read widely and the court should consider not only the ability of a particular court to deal with all aspects of a matter and to make and enforce the orders to which a party is entitled, but also the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date: p77. Referring to the expression "otherwise in the interests of justice in s5(2)(b)(iii)", he went on to say at p78:

"I take this to be a charter for the court to take the course which appears to it to be more just, interpreting that word widely. However, for an applicant's choice of forum to be overridden, there must be some objective factor which makes it possible to say that the interests of justice will be better served by transfer than by non-transfer. Where, as here, it is impossible to identify any such factor, the sub-paragraph has no application."

I now consider the matters relevant in the present case.

As has been seen, the Supreme Court of Western Australia is the forum which has "the most real and substantial connection with the action". This Supreme Court of South Australia has no such connection.

Apart from the choice of law provision in the Griffin Agreement which has been mentioned, cl35.6 goes on to provide:

"The parties hereby irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Courts of Western Australia and all Courts which are competent to hear appeals in or from that jurisdiction."

This provision is indicative but not determinative of an application of this nature: Power & Water Supply Authority v MacMahon Contractors Pty Ltd & Ors (unreported, Supreme Court of Northern Territory, Judg No 101 of 1991) per Angel J. It is a matter of significance: National Dairies WA Ltd & Ors v Wesfarmers Ltd (unreported, Federal Court of Australia NG, Judg No 509 of 1996) per Tamberlin J and Sarah Civil Pty Ltd v Stork ICM Pty Ltd (unreported, 12th June 1998, Judg No S6713) per Lander J. In the last mentioned case, Lander J went on to say at p5:

"It demonstrates that the parties have applied their mind(s) to the possibility of a contractual dispute and where that dispute ought to be resolved. Because of that a clause of this kind must be given significant weight in the determination of the application, but it cannot be, as Angel J said, determinative itself of the application. To make it determinative of the application would be to rewrite the Act of Parliament on which the application is based."

It was submitted that this matter is of less significance in the present case because all of the plaintiffs were not the original parties to the Griffin Agreement but became parties in consequence of various acquisitions and transactions. That is a matter of no significance. The "acquiring" plaintiffs stand in the same place as the initial parties to the contract. Also, the significance of this matter is enhanced by the arbitration provision in the Griffin Agreement which is to the effect that any dispute or difference between any of the parties, with their agreement, is to be referred to arbitration in accordance with the Commercial Arbitration Act 1985 of Western Australia. This clause confirms the intention of the parties as to where disputes should be resolved.

The balance of convenience of the parties and witnesses also favours the transfer of the action to the Supreme Court of Western Australia. All relevant entities of the parties have administration offices in Perth. The Griffin Agreement was negotiated in Perth and so any evidence of the negotiation and administration of the Agreement will involve witnesses resident in Western Australia. Of course, most of the parties are large organisations with officers in various parts of Australia and there are also personnel concerned with the administration of the agreement who live outside Western Australia, including in Melbourne and Adelaide. At this stage of the proceedings, decisions about the witnesses to be called have not been finalised but I am informed that it is likely that witnesses residing in Western Australia will be called. Some witnesses will be called about the incident on the Griffin Venture. Although the vessel was not in Western Australian waters at the time and any witnesses living on the vessel are not, strictly speaking, living in that State, their attendance in Perth is more convenient and less expensive than in Adelaide. If a view of the Griffin Venture is necessary to better understand the evidence relating to the incident should the point about the alleged Force Majeure have to be determined, it will be more convenient and less expensive for a Western Australian Judge to preside than a South Australian Judge. There are likely to be witnesses who do not live in Western Australia. There are some in South Australia, Victoria and Brisbane and possibly overseas. The balance of convenience and expense tips in favour of Western Australia.

The next matter is that although the plaintiffs, particularly the Boral Group, have offices in Perth, the major work in the administration of the Griffin Agreement by them is undertaken in Adelaide. A large proportion of their relevant documents are in Adelaide. I do not regard this as a matter of much significance. Documents relevant to the litigation may easily be transported to Perth. Copies may be made and kept in Adelaide. Perhaps copies will be used in the litigation. The number of documents to be used is probably not yet known.

Another matter of significance is that the major parties are not impecunious and so the transporting of witnesses and documents interstate will not cause relevant hardship in the financial sense.

Lastly, there is no suggestion that transfer of the proceedings to the Supreme Court of Western Australia will cause delay in the litigation. The action was commenced on 20th May 1998 and is still in the early stages of its progress. There is no reason to suppose that the matter would not progress as expeditiously in the Supreme Court of Western Australia as in this Court.

In my view, it is clearly established that the interests of justice also dictate that the Supreme Court of Western Australia is the more appropriate Court than this Court to determine the action. Consequently, the action must be transferred to the Court pursuant to s5(2)(b)(ii) as all of the criteria in that subsection have been satisfied.

Also, I am satisfied that it would be otherwise than in the interests of justice for the action to be determined in this Court.

For these reasons, I made the order sought by the defendants.