New South Wales Supreme Court CITATION : Asciano Services Pty Ltd v Australian Rail Track Corp Ltd [2008] NSWSC 652 HEARING DATE(S) : 20 June 2008 JUDGMENT DATE : 20 June 2008 JURISDICTION : Equity Division JUDGMENT OF : Palmer J EX TEMPORE JUDGMENT DATE : 20 June 2008 DECISION : Proceedings cross vested to South Australia. CATCHWORDS : PRACTICE AND PROCEDURE – CROSS-VESTING – Whether New South Wales or South Australia more appropriate forum for trial arising from collision in Western Australia – evidence as to convenience of witness equivocal – weight to be attached to clause governing proper law and jurisdiction of Courts. LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) - s.5(2)(b)(iii) CATEGORY : Procedural and other rulings - Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711 - Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588 - FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 117 CASES CITED : - James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 - Patrick Badges Pty Limited v Commonwealth [2002] NSWSC 221 - Sohio Supply Company v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588 - Twentieth Super Pace Nominees Pty Limited v Australian Rail Track Corporation Limited [2003] VSC 112 - Valceski v Valceski [2007] NSWSC 440, (2007) 210 FLR 387 PARTIES : Asciano Services Pty Ltd t/as Pacific National (Plaintiff) Australian Rail Track Corporation Ltd (Defendant) FILE NUMBER(S) : SC 2301/08 COUNSEL : R.J.A. Sergi (Plaintiff) Ms K.W. Dawson (Defendant) SOLICITORS : Colin Biggers & Paisley (Plaintiff) Dibbs Abbott Stillman (Defendant) 2301/08 Asciano Services Pty Ltd t/as Pacific National v Australian Rail Track Corp Ltd JUDGMENT – Ex tempore 20 June, 2008 Issues 1 The Defendant ("ARTC") applies for an order under s 5, Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) for an order that these proceedings be transferred to the Supreme Court of South Australia on the ground that it is in the interests of justice to do so. 2 The proceedings arise out of a collision between the Indian Pacific Passenger Train and a freight train near Zanthus in Western Australia in August 1999. A number of passengers brought actions against the Plaintiff in these proceedings ("Pacific National"), which was the employer of one of the train drivers, and against ARTC, which owns and operates the track. Pacific National settled the claims without the involvement of ARTC on the basis that liability as between Pacific National and ARTC would be determined later. These proceedings have been commenced by Pacific National for that purpose. 3 Pacific National's registered office and its principal place of business are in New South Wales. It has instructed New South Wales lawyers to prosecute these proceedings. ARTC's registered office and its principal place of business are in South Australia. It has instructed South Australian lawyers to defend the proceedings. ARTC says that the Supreme Court of South Australia is the more appropriate forum for the trial for two reasons: first, an exclusive jurisdiction clause in the agreement which regulates the relationship between the parties, called the "Track Access Agreement", requires that the proceedings be heard in South Australia. Second, the location of witnesses makes South Australia the more convenient and appropriate forum. 4 Pacific National says that the proceedings should not be transferred because: – the jurisdiction clause in the Track Access Agreement is not an exclusive jurisdiction clause; – there is insufficient evidence as to the identity and location of witnesses for the Court to be satisfied that South Australia is the more appropriate forum; – the principal of comity as between Courts in the administration of the cross vesting legislation requires that this Court follow the decision of Byrne J of the Victorian Supreme Court in Twentieth Super Pace Nominees Pty Limited v Australian Rail Track Corporation Limited [2003] VSC 112, a case in which ARTC was the defendant, similar facts arose and an application to cross vest from the Victorian Supreme Court to the South Australian Supreme Court was refused. The facts 5 The Track Access Agreement upon which Pacific National sues relevantly provides " GOVERNING LAW 21.1 Law of the Agreement The law of this Agreement is the law of South Australia. 21.2 Jurisdiction The parties submit themselves to the jurisdiction of the Courts of South Australia for all proceedings arising from this Agreement." 6 The evidence as to the identity and location of witnesses is extremely sparse. ARTC's solicitor says in his affidavit that ARTC: "… will probably need to call evidence as to the railway points system, the safe operation of the rail track, the investigation of the Collision and as to action taken after the Collision. Those persons are resident in South Australia." 7 Pacific National's solicitor says in her affidavit that: "… there may be lay witnesses to the incident who are likely to be residents of Western Australia." Further, she says she has made inquiries as to witnesses available to Pacific National to give expert evidence as to the rail systems and rail signalling systems, and has been informed that such witnesses "are resident and based in either New South Wales or Queensland" . 8 That is the full extent of the evidence as to the number, identity and location of witnesses and the issues to which their evidence may be directed. Ms Dawson, of Counsel, who appears for ARTC, says that the sparsity of evidence is explained by the fact that Pacific National commenced these proceedings on 11 April 2008 and ARTC, in conformity with UCPR 45, made this application as soon as practicable thereafter. However, I find it somewhat strange that both parties should be so uninformed about the evidence to be adduced in these proceedings in light of the fact that the collision occurred in 1999. There have been proceedings brought by a number of claimants against both Pacific National and ARTC and there has, apparently, been some investigation as to how the collision occurred. Nevertheless, the evidence which I have recounted above is all that the parties have placed before the Court and they now require a decision. The principles 9 There is no doubt about the principles applicable. They have usefully been summarised by Brereton J in Valceski v Valceski [2007] NSWSC 440, (2007) 210 FLR 387 at [69]: "That leaves to the third factor, the interests of justice. The question is simply whether, assuming that the jurisdiction of the transferor court has been regularly invoked, it is in the interests of justice that the proceedings be heard and determined in the transferee court, there being a statutory obligation to transfer the proceedings to that court whenever it appears to be in the interests of justice to do so ­– for which purpose it is both necessary and sufficient that the transferee court be the 'more appropriate' forum [ BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 421 [14], 434–5 [63]]. In identifying the 'more appropriate forum' , relevant considerations include the cost and efficiency of proceedings in the respective jurisdictions, and the 'connecting factors' described by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 478 – including matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction [ BHP v Schultz , 422 [18]]. Consideration of relevant connecting factors may identify a 'natural forum' [ BHP v Schultz , 423 [19]; cf British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230, [44]]. As Schultz makes clear, the interests of justice concern those of both parties, and rather than the selection of the most advantageous, or least disadvantageous, forum for one of them, the 'interests of justice' are to be judged by more objective factors, such as facilitate identification of the 'natural forum' , in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be [cf British American Tobacco v Gordon ]." See also Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711, at 727; James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357. The latter case makes clear at [5] that the substantive law to be applied in determining the dispute is an important factor. Consideration 10 In the present case it is more convenient to deal first with the factors other than the applicable substantive law and, in that context, the question whether clause 21 of the Track Access Agreement is an exclusive jurisdiction clause. 11 The locations of the parties and their respective legal advisers are New South Wales and South Australia. One side or the other will be inconvenienced in whichever forum the action proceeds. There is no evidence upon which I could conclude that the inconvenience and expense on one side in that regard would be greater than that on the other side. Location of the parties is therefore neutralised as a factor in the consideration. 12 The collision occurred in Western Australia. Location of the occurrence is therefore neutralised as a factor. 13 There is no evidence to suggest that the procedural law of either New South Wales or South Australia is more conducive to the just and efficient disposition of the proceedings or that the proceedings will be heard more quickly in one court rather than the other. 14 The evidence does not allow me to form any conclusion as to how many witnesses will be called from South Australia and how many will come from Western Australia, New South Wales or Queensland. Any witnesses who reside in South Australia will be inconvenienced if the trial proceeds in New South Wales. Any witnesses who reside in New South Wales will be inconvenienced if the trial proceeds in South Australia. For all anyone can say at the moment, the greatest number of witnesses may come from Western Australia or Queensland, and they will be inconvenienced wherever the trial takes place. Accordingly, the location of witnesses, their convenience and the expenses of bringing them to the forum are all neutralised as factors in the consideration. 15 That leaves as the only remaining factor the effect of what the parties have provided in clause 21 of the Track Access Agreement. If, as Ms Dawson submits, clause 21.2 is an exclusive jurisdiction clause that would be an end of the matter in the present case, as there are no countervailing factors to weigh against giving it effect. Mr Sergi of Counsel, who appears for Pacific National, submits however that clause 21.2 does not expressly confer exclusive jurisdiction on the South Australian courts. He points to the fact that a similar clause as to proper law and jurisdiction in Twentieth Super Pace Nominees was not regarded by Byrne J as a conclusive factor and did not dissuade his Honour in that case from cross vesting the proceedings to South Australia. 16 It is well established that a clause may be construed as conferring exclusive jurisdiction notwithstanding absence of the word "exclusive", if the context and circumstances so indicate: see, for example, Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588, at 594; FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 117, at 126E per Giles J. 17 It is also established that if the courts of the specified jurisdiction would have jurisdiction to try particular proceedings even in the absence of the jurisdiction clause in the agreement then that circumstance may indicate that the clause was intended to confer exclusive jurisdiction notwithstanding absence of the word "exclusive"; see, for example, Sohio Supply Company v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588. 18 However, regardless of whether a proper law and jurisdiction clause confers exclusive jurisdiction, it carries great weight in determining the appropriate forum in a cross vesting application because it records a term of the bargain between the parties that litigation arising from their agreement will be resolved in accordance with the substantive law of a specified forum and by the courts of that forum: see, for example, per Howie J in Patrick Badges Pty Limited v Commonwealth [2002] NSWSC 221, at [23]. Particularly persuasive is the weight of such a clause in a contract between commercial parties well able to protect their respective interests. 19 In my opinion, the provisions of clause 21 in the present case as to the governing law of the Track Access Agreement and as to the courts in which disputes shall be determined are dispositive of the application. Whether or not clause 21.2 confers exclusive jurisdiction on the South Australian courts, the parties themselves have given a strong indication in that clause of where and under what law their disputes should be tried, regardless of the inconveniences which may be occasioned to either or both of them. 20 In the absence of all other factors, as I say, I regard that consideration as critical and decisive. The application to transfer the proceedings to South Australia should therefore be granted. 21 I should say in conclusion that the decision of Byrne J in Twentieth Super Pace does not bind me as a matter of comity to the opposite result. The facts of that case were markedly different. There, the collision occurred in Victoria and his Honour had clear evidence that most of the witnesses would come from Victoria. His Honour regarded that last circumstance as the most important consideration in refusing to transfer the proceedings away from Victoria: see [16] of the judgment. As I have observed, no similar consideration is present in this case. 22 For these reasons, I order that the proceedings be transferred from the Supreme Court of New South Wales to the Supreme Court of South Australia pursuant to s 5(2)(b)(iii), of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). 23 The Plaintiff will pay the Defendant's costs of the application. – oOo – DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.