Case: Green v Australian Industrial Investment Ltd (1989) 25 FCR 532
Outcome: cited
A non exclusive jurisdiction clause does not preclude a party bound by that clause from commencing proceedings in a jurisdiction other than the jurisdiction specified in the clause. The effect of the clause is that the contracting parties agree to submit to the non exclusive jurisdiction of the court specified in the clause, the claims that are within the scope of the clause. I accept the argument of counsel for Plantagenet that there is a relationship between the scope of the choice of law clause and the scope of the submission to the non exclusive jurisdiction in cl 24.7 of the distribution agreement. I also accept Plantagenet's argument that the words 'The Agreement and the transactions contemplated by this [agreement]' in that clause, refer to claims relating to the construction and performance of the distribution agreement and do not refer to claims of misrepresentation inducing the entry into the distribution agreement (see Green v Australian Industrial Investment Ltd (1989) 25 FCR 532 at 543 ('Green') ). However, a significant part of Plantagenet's claim in the Federal Court proceedings relates to allegations of breach of contract by Lion Nathan and, therefore, the fact that Plantagenet is party to a non exclusive jurisdiction clause in favour of the courts of New South Wales must be taken into account. In my view, the effect of the clause is that the parties have agreed that New South Wales is an appropriate forum to consider claims falling within the ambit of the choice of law clause, and have, thereby, agreed to accept the jurisdiction of that Court for the determination of those claims, but that does not mean that they have agreed that there is no other court, particularly within Australia, which may also be an appropriate forum. I am of the view, therefore, that, given the limited scope of the claims that the parties have agreed to submit to the non exclusive jurisdiction of the New South Wales courts, some, but not much, weight is to be accorded to the non exclusive jurisdiction clause, as a factor in favour of the Federal Court proceedings being transferred to the New South Wales Supreme Court. 60 I do not regard it as helpful to address, in this context, the question of whether the Federal Court sitting in Sydney is within the ambit of the expression 'courts of [New South Wales]'. This is because the inquiry at hand requires an assessment of whether, by reference to its connecting factors to the Western Australia District Registry of this Court, as opposed to any other district registry, the Federal Court proceedings should be transferred to the New South Wales Supreme Court. 61 I place no weight, additional to that already referred to, on the fact that the distribution agreement provides that the governing law of the distribution agreement is the law of New South Wales. This is because the Federal Court is a national court which applies the common and statutory law of each of the States when it is appropriate to do so. Further, Lion Nathan has not pointed to any distinguishing features in the law of New South Wales which it is anticipated, will assume any importance in the resolution of the controversy (see Green at 544). 62 I place no weight on the claim that the New South Wales proceedings are likely to be determined within a shorter period than the Federal Court proceedings. The evidence of Ms Ward is that the New South Wales proceedings could be heard within approximately six to seven months. The evidence of Ms Allison is that in her recent experience, it is possible for an application to get to trial in the Western Australia District Registry of this Court within a year of the date of issue, even in cases where there have been defaults in the timetable. In her view, if the parties were to comply with the timetable it would be possible to get a matter to trial in this Registry in a substantially lesser period of time. Ms Allison also deposes that she has been informed by Mr O'Connor, a partner of the Sydney law firm, Addisons, that in his experience a trial may be had in the Federal Court in Sydney within four to six weeks of the issue of the application if the disposition of the matter is regarded as urgent. In my view, evidence at this level of generality is of very limited value. What is more significant is that each court has the facilities available to the parties whereby each court is able to make directions, at the instance of the parties, for bringing the matter to trial within a short period of time. 63 I also place no weight on the claim that the proceedings are further advanced in the New South Wales Supreme Court. In this Court, Plantagenet has filed an application and a statement of claim. In the New South Wales proceedings, Lion Nathan has filed a statement of claim and a commercial list statement. In neither of the proceedings has a defence been filed. Further, in neither of the proceedings have directions been made for the progress of the proceedings to trial. Further, I place no weight on the submission that solicitors and counsel retained in New South Wales will have acquired such a familiarity with the case that it would be inefficient to waste that expertise. There has not been any contested application heard in the New South Wales proceedings.