World Firefighters Games Brisbane v World Firefighters Games Western Australia Incorporated & Ors

[1] In these proceedings, an originating application was filed by the applicant seeking declaratory and injunctive relief in respect of a Deed made between the applicant as licensee and the first respondent as licensor on 23 December 1998. In effect, the applicant seeks to restrain the first respondent from calling up, pursuant to cl 7 of the Deed, a Commonwealth Bank of Australia bank guarantee on the grounds that the applicant has defaulted in respect of its obligations under the Deed.

[2] By consent order made on 29 March 2001, the court is called upon, pursuant to r 483 of the Civil Procedure Rules, to answer the following question separately from the other issues in this proceeding:

"Whether, given the First Respondent's reliance on clauses 38 and 39 of the Deed made between the Applicant as licensee and the First Respondent as licensor on 23 December 1998, it is appropriate for the Supreme Court of Queensland to further hear and determine or grant relief to the Applicant in this proceeding."

[3] Clauses 38 and 39 of the Deed provide as follows:

"38. This Deed will be governed by, take effect and be construed in accordance with the laws in force in the State and the parties submit to the exclusive jurisdiction of the Courts of the State.

a) to object to an action being brought in those Courts;

1. to claim that the action has been brought in an inconvenient forum; or

c) to claim that those Courts do not have jurisdiction."

Clause 1 of the Deed defines "the State" to mean the State of Western Australia.

[4] The separate question therefore concerns the effect of the exclusive jurisdiction clause and the waiver clause in the Deed. The common law does not regard agreements of this nature as operating to exclude the forum court's jurisdiction, but such agreements may provide a ground for that court, in the exercise of its discretion, to consider staying proceedings in the forum. The common law principles to be applied by the forum court are well settled, and are set out in The Eleftheria[1].

[5] Mr McKenna on behalf of the applicant submitted that, the common law principles have no application in cases such as the present one, where the competition is between interstate forums, given the enactment of the various Australian statutes creating the national cross-vesting scheme in 1987. He submits that, where parties are in dispute as to which State Court should properly determine their litigation, the dispute is to be resolved solely pursuant to the code created by the cross-vesting legislation and that no common law jurisdiction remains. Mr McKenna is unable to rely on any authority which directly lays down this proposition in the context of exclusive jurisdiction clauses. However, he relies on authorities in the forum non conveniens arena, such as Bankinvest AG v Seabrook[2] ("Bankinvest") and Schmidt v Won[3]. Furthermore, in Mr McKenna's submissions, the question in this case becomes not one of whether the court should stay proceedings, but rather one of whether the proceedings should be transferred to the Supreme Court of Western Australia.

[6] On the approach urged by counsel for the applicant, the exclusive jurisdiction clause becomes just another factor to be considered in determining whether, pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act (Qld) 1987 ("the Act"), it is "otherwise in the interests of justice" that the relevant proceeding be transferred. Mr McKenna submits that on balance, the various relevant factors point to Queensland being the "most appropriate forum" for the resolution of the litigation. In the present case, he submits that "the interests of justice" require that the proceedings be permitted to continue in Queensland, notwithstanding cl 38 and cl 39, so that the separate question for determination should be answered "yes". However, Mr McKenna contends that were I to consider that the question should be answered "No", the appropriate ancillary order would be one transferring the proceedings to the Western Australian Supreme Court, rather than one staying the proceedings.

[7] Mr Amerena for the first respondent was prepared for present purposes, to adopt the view that following decisions such as Schmidt v Won, the cross-vesting legislation has "ousted" the right to rely on the common law doctrine of forum non conveniens, when the competing curial forums are the courts of the various Australian States, as opposed to an Australian court and a foreign court. However, he contends that cases such as Schmidt v Won say nothing about whether or not the cross-vesting legislation has "ousted a party's different common law right to rely on an exclusive jurisdiction clause" in seeking a stay of proceedings brought in breach of such a clause. Mr Amerena submits that that common law jurisdiction continues.

[8] Alternatively, Mr Amerena contends that even if there is no residual common law jurisdiction and the cross-vesting legislation governs, the "interests of justice" considerations in s 5(2)(b)(iii) of the Act do not preclude the application of common law principles relating to exclusive jurisdiction clauses.

[9] He contends that on the basis of the common law principles concerning exclusive jurisdiction clauses, the separate question for determination should be answered "No", with the consequence that the present proceedings should be stayed.

Common Law Principles Concerning Exclusive Jurisdiction Clauses

[10] At common law, principles were developed to regulate the circumstances where the courts would stay proceedings on the basis that proceedings should not have been commenced in the forum court, but in the courts of another jurisdiction. In Voth v Manildra Flour Mills Pty Ltd[4] ("Voth"), the High Court held that, in Australia, the courts have a discretion at common law to stay proceedings commenced in the jurisdiction where the local forum is "clearly an inappropriate forum".[5]

[11] However, the common law principles as to whether a stay should be granted where there is a submission to the exclusive jurisdiction of a foreign court are different. In such cases, the starting point is that the parties should be held to their bargain and that while the forum court retains its jurisdiction and a discretion to decline to grant a stay of proceedings, substantial grounds for doing so are required: see Huddart Parker Ltd v The Ship "Mill Hill"[6]; Oceanic Sun Line Special Shipping Co Inc v Fay[7] ("Oceanic"); Akai Pty Ltd v Peoples Insurance Co Ltd [8] ("Akai Pty Ltd").

[12] The rationale for the common law approach with respect to exclusive jurisdiction clauses is explained by the High Court in Akai Pty Ltd, where it noted[9] that "the law has always been solicitous that when parties do contract to submit their disputes to the exclusive jurisdiction of the courts of another country they should be held to their bargain", confirming that there was a "strong bias in favour of maintaining the special bargain"[10].

[13] In The Eleftheria, Brandon J summarised[11] the considerations to be taken into account in exercising the discretion to stay proceedings commenced in breach of a foreign exclusive jurisdiction agreement. These considerations are subject to the important qualification that the court should take into account the circumstances of the particular case. Accordingly, none of the specified considerations are conclusive, and one consideration may outweigh another. The considerations are as follows:

(a) in which country the evidence on the issues or facts is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the forum and the foreign courts;

(b) whether the law of the foreign court applies and if so, whether it differs from the law of the forum in any material respects;

(c) with which country the parties are connected and how closely;

(d) whether the defendants genuinely desire trial in the foreign country, or are seeking only procedural advantage;

(e) whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would:

(iii) be faced with a time bar not applicable in the forum; or

(iv) for political, racial, religious, or other reasons be unlikely to get a fair trial.

[14] Whilst there is little authority on the point, it seems that the bias in favour of exclusive jurisdiction clauses may be stronger in a case having an international element than a case which involves competing intranational forums[12].

[15] The question arises as to whether the common law jurisdiction concerning the staying of proceedings in breach of exclusive jurisdiction clauses continues to apply in cases where the competition is between interstate forums, given the enactment of the various Australian statutes creating the national cross-vesting scheme in 1987. That is, does the cross-vesting legislation oust the common law discretion to stay proceedings brought in defiance of an exclusive jurisdiction clause? If so is the relevance of the exclusive jurisdiction clause to be assessed, not by reference to common law principles, but by reference to the principles applied under the cross-vesting legislation?

[16] It was accepted by both parties that, under the cross-vesting scheme, the relevant head of jurisdiction in the present case is s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act (Qld) 1987, which provides for a transfer of the proceedings where it is "otherwise in the interests of justice that the relevant proceedings be determined by the Supreme Court of another State...".

[17] There is currently a divergence in the authorities as to whether s 5(2)(b) of the cross-vesting legislation is to be interpreted according to the principles of private international law applying to stay of proceedings or whether it introduces a new test based simply on which court is more appropriate. Clearly, if the rules of private international law are retained, then the common law principles dealing with exclusive jurisdiction clauses continue to apply, whereas if they are not and a test of which is the more appropriate forum is applied, then the jurisdiction clause becomes another relevant factor with no special weight[13].

[18] One line of authority, represented by Bankinvest, takes the view that the cross- vesting legislation adopts a new regime for staying and transferring proceedings. The other line of authority, to the effect that there is room under the legislation for the common law principles, is represented by Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd[14] (Mullins Investments).

[19] In Bankinvest, the New South Wales Court of Appeal held that the approach to be taken under the cross-vesting legislation is not to be governed by principles of private international law, but is to be governed by the language of the Act.[15] Thus, Street CJ [16] said that:

"[The Act] calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. Consideration of textured principle and deep learning - in particular principles of international law such as forum non conveniens - have no place in a cross-vesting adjudication. There is, in substance, no principle to be enunciated other than the necessity of applying the specific considerations stated in the cross-vesting legislation."

[20] In Bankinvest, Rogers A-JA in the leading judgment[17], noted that since the cross- vesting legislation was enacted it is no longer appropriate to regard the court of another State as a "foreign" court, with the consequence:

"...that the principles of forum non conveniens, applied in circumstances where the competition is between an Australian and a non Australian court, have no role to play in the resolution of applications made under the legislation or in its interpretation. Legislation prescribes the criteria whereby such applications are to be determined. The criteria are rather more specific in some respects but in referring to the "interests of justice", call for considerations of a more general kind than the judicially established rules of forum non conveniens."

[21] Rogers A-JA held that "the only lodestar that a judge may steer by, is what do the interests of justice dictate should be done"[18]. This required the court to look to the forum which was the "more appropriate forum for the trial of the action", that is, the "natural forum"[19]. This required assessing with which forum the action had the most real and substantial connection, and a consideration of connecting factors of the type outlined by Lord Goff in Spiliada Maritime Corp v Cansulex Ltd [20] ("Spiliada"). This approach involves a rejection of the common law principle of "clearly inappropriate jurisdiction" in Oceanic and Voth in a contest under the legislation.

[22] In Mullins Investments, Ipp J[21] rejected the Bankinvest approach and the view "that the cross-vesting legislation intended to preclude the ordinary rules of private international law from being of application, in appropriate instances, to proceedings brought thereunder".

[23] In Queensland[22], as in other jurisdictions[23], except for Western Australia[24], the courts have adopted "the appropriate forum test", as articulated in Bankinvest, as the correct approach to be taken under the cross-vesting legislation.

[24] Recently, the Victorian Court of Appeal, in Schmidt v Won, built on the Bankinvest approach when it considered, in the forum non conveniens context, the question of whether there remains a residual common law discretion to stay proceedings. The Court of Appeal unanimously held that[25]:

"... assuming therefore that the question which is the forum to be preferred is one between States of the Commonwealth, here the Supreme Courts of Victoria and New South Wales, the cross-vesting legislation now imposes the relevant and indeed less stringent tests, in effect which is the 'more appropriate' court to hear the matter 'in the interests of justice', as those tests were expounded in Bankinvest... More significantly for practical purposes, that legislation does not provide for a stay but only for a transfer to the more appropriate court, so far as Supreme Courts are concerned. Consequently, save in exceptional circumstances which need not be here examined, the Voth test is now irrelevant to a consideration of that issue and should in practice be confined to cases where it is arguable that a foreign court should be preferred...

Subject always to the power of the court to stay frivolous, vexatious or oppressive proceedings or any which amount to an abuse of process (the categories of which can never be closed), the Voth principle should be considered as having no continued practical application so far as the exercise of jurisdiction as between the several State Supreme Courts. So the ordinary remedy of parties, who are served in Australia with process issued out of the Supreme Courts of States or Territories other than that in which they reside and who wish to complain that the Supreme Court of that other State or Territory is not the appropriate forum in which the litigation should be heard, is to seek transfer pursuant to the provisions of s 5(2) of one of the State Cross-Vesting Acts. In the light of the complex and sophisticated scheme now in operation in this country, a stay of the kind contemplated by Voth must be seen as an inappropriately heavy-handed means of ensuring that issues are determined in the proper forum, i.e. in the court within Australia most appropriate to hear the action and most convenient to the parties for that purpose. Transfer under the cross-vesting legislation should be seen as now providing the necessary and appropriate weapon to achieve the same end by transferring litigation to a more appropriate jurisdiction within Australia."

[25] This approach has been expressly adopted in a number of Australian States; e.g. New South Wales[26], Victoria[27] and Tasmania[28]. Whilst this issue has not yet been considered in Queensland, it was submitted on behalf of the applicant, that for reasons of comity and to ensure a consistency of approach to the cross-vesting legislation amongst the States, these decisions should be followed and that, whilst Schmidt v Won did not expressly deal with the sub-category of cases concerning exclusive jurisdiction clauses, the statement of principle and reasoning in that case was clearly intended to embrace such cases. Indeed, the applicant's counsel submitted that there appears to be no case in recent years where the common law jurisdiction concerning the staying of proceedings brought in breach of an exclusive jurisdiction clause has been applied in a domestic Australian context[29]. Certainly in the present case, there is no question of abuse of process.

[26] It is clear that the cross-vesting legislation operates as a scheme, investing each State court with the jurisdiction of each other State court, and creating a system by which matters are to be transferred between courts for determination in the most appropriate forum. I agree with the applicant's submission that the Acts do not contemplate that proceedings would simply be stayed if it were found that proceedings were commenced in an inappropriate court and that the appropriate order in such a case would be one transferring the proceedings.

[27] Queensland has adopted the Bankinvest approach[30]and it is appropriate that the Schmidt v Won approach to s5(2)(b) should also be followed. The Schmidt v Won approach has implications which extend beyond the forum non conveniens context. The rationale in that case extends also to the common law jurisdiction to stay actions commenced in one State Supreme Court in breach of an exclusive jurisdiction clause conferring jurisdiction on the courts of another State. Such an approach requires me to consider the question to be determined, not in the context of the common law jurisdiction concerning exclusive jurisdiction clauses, but in accordance with the principles applicable under the Act.

[28] It should be noted that there is presently no application for transfer under the cross-vesting legislation, but given my view as to the residual common law jurisdiction, the matter nevertheless falls to be considered under the principles applicable under the cross-vesting legislation. I also note that counsel in their oral submissions treated the application essentially as if it were one to be decided under the Act.

[29] I also accept that under that legislation the appropriate order, were I to find that proceedings should not be permitted to continue in Queensland, is one transferring the proceedings to the appropriate jurisdiction, rather than one staying the proceedings generally. I note that under s5(7) of the Act an order for transfer may be made by the court on its own motion.

The considerations relevant under the cross-vesting legislation

[30] What then are the considerations to be taken into account under the cross-vesting legislation as to whether the proceeding should be permitted to continue or should be transferred? In Bankinvest, the court held that in determining under s5(2)(b)(iii) which forum the "interests of justice" favoured, regard is to be had to the forum with which the action has the most real and substantial connection. In assessing this, the Court looks at the connecting factors regarded by Lord Goff in Spiliada[31] as relevant to the selection of "the appropriate forum", rather than the principles considered applicable to forum non conveniens (the "clearly inappropriate forum" test) adopted by the High Court in Oceanic and Voth.

[31] It should be noted that in Spiliada, Lord Templeman described those relevant factors as "legion", and noted that the "authorities do not, perhaps cannot, give any clear guidance as to how these factors are to be weighed in any particular case" [32].

[32] The range of factors considered relevant in assessing which is the "more appropriate forum" are[33]:

(a) the application of the substantive law, if it is peculiar to a particular jurisdiction;

(b) forensic advantages or disadvantages conferred by the competing procedural laws;

(c) the plaintiff's choice of forum and the reasons for that choice;

(d) substantive connections with the forum (eg. residence, domicile, place of occurrence and choice of law);

(e) balance of convenience to parties and witnesses;

[33] Though not one of the matters specified in the above list, an exclusive jurisdiction clause in this context is clearly a relevant factor. The authorities are not entirely consistent as to the weight to be given to such clauses in applications to transfer under the cross-vesting legislation. This is to some extent understandable, given that the significance of the clause will vary from case to case depending on the circumstances of each case.

[34] In Air Attention WA Pty Ltd v Seeley International Pty Ltd[34], Walsh J found that the cross-vesting legislation did not exclude the ordinary rules of private international law, and that Bankinvest to the extent it suggested to the contrary, should not be followed. Nevertheless, his Honour took an approach, in assessing the relevant considerations for a transfer under s 5(2)(b)(iii), which was not inconsistent with the Bankinvest approach. In considering the question of the appropriate forum, his Honour was careful not to overlook general matters of convenience, expense and advantage said to arise on behalf of the plaintiff. His Honour said[35]:

"It is necessary that full weight be given to the bargain that the parties reached. It seems to me, therefore, that taking that into account, notwithstanding the inconvenience that it is said will result to the plaintiff and expense which may ensue, which in any event may appear to be evenly balanced, at the end of the day I have reached the opinion that the interests of justice in this case, having regard to the specific clause in the agreement, favours the applicant defendant company, the specific clause in the agreement being determinative in the sense that it brings the balance down in favour of the applicant."

[35] National Dairies WA Ltd v Wesfarmers Ltd[36] concerned an application for transfer or cross-vesting in the context of an exclusive jurisdiction agreement that disputes be heard in Western Australia. Tamberlin J, in applying the principles in Bankinvest to the question of what was the appropriate forum, considered that the governing law clause containing the exclusive jurisdiction clause was "very significant" and ordered that the proceedings be transferred.

[36] In West's Process Engineering Pty Ltd v Westralian Sands Ltd[37], Rolfe J, in applying the Bankinvest approach as to the considerations relevant to an application under s5(2)(b)(iii), noted that "the weight to be attributed to an exclusive jurisdiction clause may be sufficient to over-ride other relevant considerations". His Honour held that the correct approach to an exclusive jurisdiction clause in the context of a contest between competing state forums was that it was a significant consideration for the "very sound reason that it is wholly consistent with the interests of justice that parties should abide by their bargain", and that accordingly it was "appropriate to give substantial weight to the jurisdiction clause".

[37] In Jovista Pty Ltd v Bateman Project Engineering Pty Ltd[38], there was a concession that, given the exclusive jurisdiction clause conferring jurisdiction on the courts of the Northern Territory, strong grounds would be required to be shown why proceedings commenced in Western Australia should not be transferred. Nevertheless, Wheeler J found that that position accorded with the balance of authorities. Wheeler J held that parties in such a case should be held to their bargain in the absence of good reason to the contrary.

[38] The authorities favour the view that under the cross-vesting legislation, the exclusive jurisdiction clause remains a relevant consideration, on the basis that the "interests of justice" require that due acknowledgment be accorded to such a clause as representing the bargain between the parties and that proper regard be given to the need to hold parties to their bargain. Nevertheless, in my opinion, in considering the weight to be given under the legislation to such a clause, one should not start from the position that such clauses should be viewed with the "strong bias" in their favour previously accorded to them at common law. The weight to be given to such clauses will vary depending on the other surrounding and countervailing circumstances.

[39] In determining whether the proceedings should be permitted to continue in Queensland, it is relevant to have regard to the factual background and the issues in dispute in the proceedings.

[40] The first respondent is an incorporated association founded under Western Australian law. It is a non-profit association in that its members are not entitled to participate in any profits. Its principal object is to promote a sporting event called "The World Firefighters' Games". Its ancillary objects are fundraising for charitable purposes. All its directors are Western Australian residents who are active or retired firefighters. The first respondent does not carry on business or activities outside Western Australia, except as is necessary in the performance of its obligations pursuant to the Deed.

[41] In 1998, upon the Queensland Fire and Rescue Authority ("QFRA") being successful in its bid to host the Games in 2002, the applicant was incorporated in Queensland as a company limited by guarantee.

[42] On 23 December 1998, the Deed was executed by the applicant and the first respondent to regulate the conduct of the 2002 Games. The Deed was executed by the first respondent in Perth and accepted by the applicant in Brisbane. There are three features of the agreement which should be noted. Firstly, the object of the agreement is to bring about the staging of a major event in Queensland by the applicant. It therefore requires performance in Queensland. Secondly, there is a choice of law clause specifying Western Australian law. Thirdly, the contract contains in cl 38 and cl 39 an exclusive jurisdiction clause and a waiver clause.

[43] Upon execution of the Deed, the applicant commenced to prepare for the Games. The applicant has established a Games office in Brisbane, where its records are kept. It has a number of full time staff and other officers who are also engaged in full time work with the QFRA. Its organisational structure is comprised of:

(b) an Executive Manager (originally Mr Shane Barker);

(c) other managers (including Mr Theodore and Ms Malouf);

[44] In October 1999, a complaint was made against Mr Shane Barker by another employee. As a consequence of this complaint, Mr Barker was stood down from his duties and replaced by Ms Malouf. Mr Barker complained to the first respondent about his treatment. This resulted in a dispute between the applicant and the first respondent about Mr Barker's reinstatement, the first respondent supporting Mr Barker's reinstatement. The dispute widened to encompass the issues referred to below.

[45] Since the dispute arose both the applicant and the first respondent have been represented by Brisbane solicitors.

[46] In February 2000, the first respondent's solicitors proposed a mediation as a means of resolving the dispute, which proceeded in Brisbane.

[47] In October 2000, pursuant to cl 7 of the Deed, the applicant provided the first respondent with a $50,000 Bank Guarantee issued by the second respondent's Brisbane branch.

[48] On 1 February 2001, Mr Pateman (on behalf of the first respondent) issued a "show cause" notice to the applicant advising that, in default of performance, the Bank Guarantee would be called upon.

[49] In March 2001, the first respondent's solicitors advised that the Bank Guarantee had been called upon.

[50] On 16 March 2001, the applicant filed an originating application seeking declaratory and injunctive relief.

[51] On 19 March 2001, consent orders were made for the hearing of an interlocutory injunction application.

[52] An identification of the issues in this proceeding is somewhat hampered by the lack of pleadings to define the substantive issues. However, the issues can largely be gleaned from the correspondence (the "show cause" notice and the response thereto). The litigation is concerned with the calling up of a Bank Guarantee, which the first respondent is only entitled to do in "the event of default by the Licensee of its obligations hereunder" and the non-compliance with a valid notice.

[53] The applicant seeks a declaration that no default has occurred and injunctive relief against both respondents. The first respondent points to breaches of three clauses:

(a) cl 8(d) concerning the applicant's obligation "to manage ... to the satisfaction of" the first respondent;

(b) cl 8(d)(viii) concerning the applicant's obligation to provide quarterly reports;

(c) cl 18(a) concerning the applicant's obligation to endeavour to create, promote and retain the Goodwill.

[54] The first respondent alleges that six aspects of the management of the Games by the applicant breached these terms:

(b) management issues, in particular, the appointment of a General Manager who was inadequately qualified;

(c) the issuing of a memo to QFRA personnel which suggested that the first defendant "perceives the Queensland Firefighters do not have the capacity to run the Games."

(d) by not being advised that Mr Barker (the first Executive Manager) was on a 12 month secondment from the QWFRA;

(e) by directors of the plaintiff becoming involved in a bid for the World Police and Fire Games for Queensland;

(f) by "failing to win the support of Firefighters in Queensland and nationally".

[55] The applicant denies these breaches for the reasons given in correspondence, and (insofar as its reporting obligation is concerned) because of the conduct of Mr Pateman on behalf of the first respondent.

[56] Beyond these issues there are the discretionary considerations applicable to the issue of an injunction.

[57] It appears that the applicant's immediate reason for instituting proceedings in Queensland was because of the need to obtain urgent relief, in circumstances where all the parties' legal representatives were in Queensland. The applicant's reasons for wishing the proceedings to remain in Queensland are based on the applicant's contention that there is an overwhelming Queensland nexus of the critical events and evidence, and that the balance of convenience favours Queensland.

[58] There are a number of connecting factors which establish a nexus with Western Australia:

(a) It is the place of the first respondent's incorporation and the place where the first respondent's board meets;

(b) It is the place where the Deed was executed by the first respondent;

(c) It is the location of the contractual choice of law;

(d) The parties agreed to submit to the exclusive jurisdiction of the courts of that State.

[59] As regards the choice of law clause, I was not advised of any material difference between any applicable Queensland and Western Australian law, and accordingly, it is not a factor to which I attach significance.

[60] I regard the exclusive jurisdiction clause as a matter of importance. It represents the agreed choice of the parties and one of the terms upon which the licensor/first respondent granted the licence to stage the Games to the licensee/applicant. It is a significant consideration in this case, because it must have been reasonably apparent to the parties, when they agreed to confer exclusive jurisdiction on the Western Australian courts, that the jurisdiction in which a dispute was likely to arise was in Queensland, which was the place specified in the Deed as the location for the staging of the Games and therefore as the place of performance of the contract. Its importance is underlined by the presence, in those circumstances, of cl 39.

[61] The applicant points to the following connecting factors which point to Queensland:

(a) Queensland is the place where performance of the agreement is required;

(b) The breach of the Deed alleged is failure to properly manage the Games in Queensland;

(c) All directions from the first respondent were communicated to the applicant in Queensland;

(d) The effect of the applicant's management on the potential success of the Games concerns matters in Queensland;

(e) The dispute has hitherto been conducted through Queensland lawyers;

(f) At the first respondent's request a mediation (which was lengthy) took place in Queensland;

(g) The first respondent agreed to accept service of process in Queensland and consented to directions for a substantive hearing in Queensland.

[62] As regards the matters referred to in (g) above, an issue was raised by the applicant in its written submissions, although not pressed during oral submissions, that the first respondent by its conduct had formally waived the benefit of the exclusive jurisdiction clause. In my opinion, this is not borne out by the evidence. In particular, on 19 February 2001, when the first respondent's solicitors wrote to the applicant's solicitors advising that they held instructions to accept service of any proceedings on their client's behalf, they clearly indicated they would rely on the exclusive jurisdiction clause if proceedings were to be issued outside of Western Australia. Furthermore, the first respondent's solicitors again raised the matter of jurisdiction on 16 March 2001 on the date the originating summons was filed. In the circumstances, I consider that any subsequent failure to reserve rights concerning jurisdiction does not result in a waiver of the benefit of the exclusive jurisdiction clause.

[63] The connecting factors listed in (a) to (d) above are significant factors in assessing the question of transfer under s 5(2)(b)(iii)of the Act. However, they are in truth, but different factors of the one connecting factor; that is, that Queensland is the place of performance. In considering the weight to be accorded to this factor, it is also relevant to have regard to the exclusive jurisdiction clause.

[64] When the Deed was entered into, upon the applicant's successful bid to stage the Games in Brisbane, it would have been in the parties' contemplation that a dispute as to performance would be likely to involve primarily Brisbane-based witnesses and be essentially a Brisbane-based dispute. Notwithstanding this, the parties agreed to submit to the exclusive jurisdiction of the Western Australian courts, and agreed to waive any claim to inconvenience in respect of those courts. This is not a case where an exclusive jurisdiction clause was chosen in circumstances where it was not apparent where a dispute would be likely to arise, nor to what extent it would be connected with the agreed forum. Rather, it is a case where it would have been abundantly apparent that were a dispute to arise, it would most likely be in Queensland, the place of the performance of the contract. In spite of that, the parties expressly agreed to cl 38 and cl 39.

[65] Whilst the use of Queensland solicitors by both parties to date and the conduct of the mediation in Queensland are also matters of significance, it should be noted that the involvement of legal representatives to date has essentially been in the pre-litigation phase of the dispute. No pleadings have been delivered. Those solicitors have not been engaged to formulate the case to be pleaded in the proceedings. Nor has it been contended that the Brisbane counsel involved hitherto have been involved to settle pleadings.

[66] The applicant's counsel sought to rely on the use of Brisbane solicitors and the holding of the Brisbane mediation as an acknowledgment by the first respondent of the appropriateness of Queensland as a venue for resolution of the dispute. However, I do not consider that that argument can be taken far. It is one thing for a party such as the first respondent to choose to engage Queensland solicitors in order to attempt to resolve the dispute.[39] It is another matter entirely for such a party once the matter proceeds to litigation to be precluded from litigating in the agreed forum, and to be forced to engage in potentially lengthy litigation outside the agreed forum.

[67] In addition to the matters referred to above, the applicant relies on the following matters, in its contention that the balance of convenience favours the proceedings remaining in Queensland :

(a) The fact that if Western Australian lawyers need to be instructed afresh, costs will be wasted and needless delay occasioned;

(b) The majority of witnesses being located in Queensland, which presents logistical difficulties in taking statements, preparing for trial and conducting the trial. Especially, since these witnesses are also those seeking to stage the Games and/or perform their duties to the QFRA ;

(c) The second respondent (which is not party to the Deed) is relevantly involved through its Queensland office;

[68] As regards the involvement of the second respondent, it is prepared to abide the order of the court and accordingly its involvement is of no moment.

[69] Likewise I do not place much weight on the location of relevant documents in Queensland. This does not cause any serious inconvenience in that the documents can be forwarded elsewhere and this is perhaps reflected in this factor not being particularly pressed by Mr McKenna.

[70] Whilst the engaging of Western Australian solicitors and counsel will involve some additional cost and some delay, given the early stage of the proceedings, I am not persuaded that it would involve any serious degree of wasted costs and needless delay. Any Western Australian solicitors engaged can easily peruse the relevant documentation to acquaint themselves with the dispute.

[71] As regards the witnesses, counsel for the applicant indicated that the applicant no longer seeks to argue a case of mala fides by the directors of the first respondent in issuing the show cause notice. Accordingly, the Western Australian directors of the first respondent will not be required as witnesses in relation to any issue of mala fides. It appears that the witnesses are located in Queensland, save for Mr Pateman and Mr Liaros who are located in Western Australia, and twelve other witnesses who are located in "neutral" States or Territories, who would have to travel to the trial venue in any event. The applicant disputes the relevance of the evidence it is proposed that these additional twelve witnesses would give. I do not consider it necessary to enter into that issue, as I do not consider that the question of their attendance alters the balance of convenience either way.

[72] However, it is clearly a significant consideration that the witnesses are largely located in Queensland, and that that will result in inconvenience to the applicant in the preparation of the trial and the preparation of the Games should the proceeding not continue in Queensland. Indeed, it is a strong factor in favour of the proceeding remaining in Queensland. However, in considering the weight to be given to this factor, regard must also be had to the exclusive jurisdiction clause.

[73] The factors which are relied upon by the applicant as going to the balance of convenience, were precisely the type of matters which were eminently foreseeable at the time the parties entered into the agreement and the applicant agreed to waive its right to claim that Western Australia was an inconvenient forum.[40] I find that, in those circumstances, the weight to be given to the arguments based on the matters of inconvenience raised by the applicant, in particular to inconvenience regarding the location of its witnesses in Queensland, is reduced. Likewise, the exclusive jurisdiction clause (cl 38) and the waiver clause (cl 39) have greater weight than might otherwise have been the case, because of the matters which must have been apparent to the parties when they agreed to those clauses.

[74] In summary, the factors of significance which favour the proceeding continuing in Queensland are as follows:

(a) The involvement of Brisbane solicitors: However, as I have mentioned the involvement of the Brisbane solicitors to date has occurred largely in a pre-litigation context, with the proceeding in such an early stage that no pleadings have been delivered.

(b) The connecting factors relied upon by the applicant arising from the fact that the contract provided for performance in Queensland, such that the dispute is essentially a Brisbane-based dispute: However, the weight to be given to these factors must be viewed in the light of the fact that these were matters of which the parties must have been cognisant when agreeing, nevertheless, to the exclusive jurisdiction of the Western Australian courts.

(c) The inconvenience flowing from litigation being conducted in Western Australia, when the witnesses are largely located in Queensland: However, this circumstance of inconvenience was one which must have been fully apparent to the parties when they agreed to cl 38 and cl 39. In those circumstances, the weight to be given to this factor should not override the weight to be given to the exclusive jurisdiction clause.

[75] Accordingly, I find that nothwithstanding the factors relied upon by the applicant as requiring that the proceeding remain in Queensland, the interests of justice favour the proceeding being transferred to Western Australia.

[76] In coming to this conclusion, I do not, as I have already mentioned, regard cl 38 and cl 39 as clauses to be given the favoured status they held at common law. Rather, I come to this conclusion, because the factual context of this case indicates that cl 38 and cl 39 should be given a weight which overrides the other relevant factors pointing to a Queensland connection and pointing to the inconvenience flowing from the matter proceeding in Western Australia.

[77] In the circumstances, I find that the separate question:

"Whether, given the First Respondent's reliance on clauses 38 and 39 of the Deed made between the Applicant as licensee and the First Respondent as licensor on 23 December 1998, it is appropriate for the Supreme Court of Queensland to further hear and determine or grant relief to the Applicant in this proceeding"

[78] I order pursuant to s 5(7) of the Act that the proceeding be transferred to the Supreme Court of Western Australia.

[79] I shall hear the parties on the question of costs.

[1] [1970] P 94 at 99

[2] (1988) 14 NSWLR 711

[3] [1998] 3 VR 435 at 450

[4] [1990] HCA 55; (1990) 171 CLR 538

[5] This formulation represents a departure from the law in England and the United States of America where the principle is that proceedings should be heard in the more appropriate forum: see Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460.

[6] [1950] HCA 43; (1950) 81 CLR 502 at 508-509

[7] [1988] HCA 32; (1988) 165 CLR 197 at 230-231, 259

[8] [1996] HCA 39; (1996) 188 CLR 418 at 425-429, 445

[10] Akai at 428, referring to Huddart Parker Ltd v The Ship "Mill Hill" [1950] HCA 43; (1950) 81 CLR 502 at 509. This bias has been expressed in varying terms. Thus, in The Eleftheria, Brandon J spoke (at 99, 103) of "strong cause" being required in order for the court to refuse to stay proceedings brought in breach of the exclusive jurisdiction clause, stating that it was "essential that the court should give full weight to the prima facie desirability of holding the plaintiffs to their agreements". In Oceanic, Brennan J (at 224) referred to the need to show "countervailing reasons", whilst Gaudron J referred (at 259) to "strong reasons" being required.

[12] Aldred v Australian Building Industries Pty Ltd [1987] NTSC 45; (1987) 48 NTR 59 at 64, 65; see also Nilsen Electric (WA) Pty Ltd v Jovista Pty Ltd (unreported Byrne J, Sct Vic, 8 March 1995); PE Nygh, "Conflicts of Laws in Australia", 6th ed, 1995, at p 110; also R. Garnett, "The Enforcement of Jurisdiction Clauses in Australia" (1998) UNSW Law Jo 1 at 22

[13] See R Garnett, "The Enforcement of Jurisdiction Clauses in Australia", 1988 UNSW Law Jo 1 at 23; Skyes & Pryles, "Australian Private International Law", 3rd ed, 1991 pp 98-99

[14] (1989) 1 WAR 531

[15] See also James Hardie & Coy Pty Ltd v Barry (unreported, NSW CA, 4 Dec 2000)

[20] [1987] AC 460 at 478. Kirby P reserved his position on the issue of the extent the Act imported into Australian law the Spiliada principles.

[22] See Hub Capital Limited v Challock Pty Ltd [1999] QSC 21; [1999] 2 Qd R 588 at 591 (White J)

[23] As to Victoria, see Schmidt v Won; as to the ACT, see Dawson v Baker (1994) 120 ACTR 11 (FC); as to NSW see also James Hardie; as to SA see Pegasus Leasing Ltd v Balescope Pty Ltd (1994) 63 SASR 51, 56 (FC)

[24] See Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd. (1990) 1 WAR 531 (Ipp J); Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 517; Platz v Lambert (1994) 12 WAR 319, Bond Brewing Holdings Ltd v National Australia Bank Ltd (1990) 1 ACSR, SCWA, which follow the approach of Kelly J in Waterhouse v Australian Broadcasting Corporation (1989) 86 ACTR 1

[27] See Ross Mollison Group Pty Ltd v The Really Useful Co (Australia) Pty Ltd [2000] VSC 256

[28] See McEntee v Connor [1994] TASSC 47; (1994) 4 Tas R 18, 24 (Underwood J).

[29] In this regard, it should be noted that Aldred was decided before cross-vesting legislation took effect.

[30] See Hub Capital Ltd v Challock Pty Ltd [1999] QSC 21; [1999] 2 Qd R 588

[33] See Dawson at 25 and James Hardie at 19

[34] Unreported, Walsh J, S Ct WA, 3 Sept 1996.

[36] Unreported, Tamberlin J, Fed Ct, 18 July 1996.

[37] Unreported, Rolfe J, NSW SCt, 6 Aug 1997.

[38] Unreported, Wheeler J, SCt WA, 19 May 1998.

[39] It should also be noted that the first respondent could not have compelled the applicant to conduct mediation in Western Australia given the terms of cl 38.

[40] See British Aerospace PLC v Dee Howard Co [1993] 1 Lloyd's LR 368 at 376, admittedly a case involving the common law principles concerning exclusive jurisdiction clauses, but nevertheless in this regard making a point concerning the foreseeability of the alleged matter of inconvenience which is relevant to the present case.