JURISDICTION      : SUPREME COURT OF WESTERN AUSTRALIA

                                      IN CHAMBERS

CITATION               : EEPL HOLDINGS -v- CLIFFORD CHANCE [2026] WASC 368

CORAM                   : LUNDBERG J

HEARD                    : 28 AUGUST 2026

DELIVERED           : 31 AUGUST 2026

PUBLISHED            : 1 SEPTEMBER 2026

FILE NO/S               : CIV 2066 of 2026

BETWEEN               : EEPL HOLDINGS

                                      Plaintiff

                                      AND

                                      CLIFFORD CHANCE

                                      Defendant

Catchwords:

Arbitration – Anti-arbitration injunction sought by plaintiff to restrain defendant solicitors pursuing ad hoc international arbitration under the UNCITRAL Rules – Written retainer agreement constituted by several documents – Apparent tension between arbitration agreement in one document and the clause by which parties submitted to the exclusive jurisdiction of the courts of Western Australia in another document – Plaintiff contends retainer incorporates a promise not to arbitrate disputes, relying on the exclusive jurisdiction clause – Defendant solicitors place reliance on detailed arbitration agreement within retainer – Proper construction of the retainer – Turns on own facts

Arbitration – Stay of proceedings sought by defendant solicitors under s 7(2) of the International Arbitration Act 1972 (Cth) – Application held over by agreement

Legislation:

Commercial Arbitration Act 2012 (WA)

International Arbitration Act 1974 (Cth, s 7(2), s 7(5), sch 2

Result:

Anti-arbitration injunction dismissed.

Category: B

Representation:

Counsel:

Plaintiff	:	L N Firios
Defendant	:	S K Dharmananda SC & C E McKay

Solicitors:

Plaintiff	:	Thomsons Lawyers – Perth
Defendant	:	Clifford Chance

Case(s) referred to in decision(s):

<CRJ>

ACE Ltd v CMS Energy Corporation [2008] EWHC 1843 (Comm)

Claxton Engineering Services Ltd v TXM Olaj-És Gázkutató KFT [2011] 1 Lloyd’s Rep 510

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Fitzpatrick v Emerald Grain Pty Ltd [2017] WASC 206

Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549; (2018) 358 ALR 1

Manningham City Council v Dura (Australia) Constructions Pty Ltd [1999] VSCA 158;[1999] 3 VR 13

NB Three Shipping Ltd v Harebell Shipping Ltd [2004] EWHC 2001 (Comm); [2005] 1 All ER (Comm) 200

Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514

Rinehart v Welker [2012] NSWCA 95; (2012) 95 NSWLR 221

Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2016] WASC 193

Sulamerica Sia Macional De Seguros SA v Enesa Engenharia SA [2012] EWHC 42 (Comm)

The Messiniaki Bergen [1983] 1 Lloyd’s Law Reports 424

</CRJ>

Table of Contents

Introduction and summary

The basis for the injunction

Evidence on the application

Factual background

The parties

The retainer

Invoices issued during the Retainer

The commencement of arbitral processes by the defendant

Commencement of the present proceedings

Express terms of the Retainer

Engagement Letter

Terms of Business

Additional Terms

The relevant principles as to proper construction

The proper construction of the Retainer

Discretionary matters

The defendant’s stay application

Conclusion and orders

LUNDBERG J:

Introduction and summary

1.         These reasons concern the plaintiff’s urgent application, brought by chamber summons filed on 14 August 2026, seeking an injunction to restrain the defendant law firm, being its former solicitors, from prosecuting an ad hoc international arbitration.  The plaintiff’s application is, in substance, an anti-arbitration injunction.  
2.         The present action in this court seeks relief concerning the repayment of fees previously paid by the plaintiff to its former solicitors, as well as an assessment of invoices, and damages for the alleged repudiation of the retainer.  The extant arbitration presently involves claims advanced by the defendant solicitors for the payment of unpaid fees under the retainer, and so overlaps with the action.
3.         The plaintiff’s position is detailed in its submissions dated 19 August 2026 (PS), and an aide memoire provided to the court on 28 August 2026 (Plaintiff’s Aide Memoire).
4.         The injunction was opposed by the defendant, who countered with an application for a stay of the present proceedings pursuant to s 7(2) of, or Article 8(1) of sch 2 to, the International Arbitration Act 1974 (Cth) (IA Act).  The stay application is the subject of a chamber summons filed on 18 August 2026.   The defendant’s position is set out in its extensive submissions dated 25 August 2026 (DS), which incorporate an annexure which extracts the arbitration and exclusive jurisdiction clauses which were the subject of several of the authorities relied upon in the submissions.
5.         The plaintiff’s application was heard on Friday, 28 August 2026.  The parties agreed that the court should first address the plaintiff’s application, given the greater urgency associated with that application, noting that the next step required to be taken by the plaintiff in the extant arbitration falls due on Thursday, 3 September 2026.  
6.         Further, the parties recognised that, if the plaintiff’s application failed on constructional grounds, the defendant’s stay application might not be contested.  I was content to follow this course and so these reasons are confined to a consideration of the plaintiff’s anti-arbitration injunction, although ordinarily it would be preferable for all issues to be determined at once.
7.         These reasons have been prepared in a truncated time period, given the urgency associated with the application.  These reasons address the primary submissions advanced by the parties, rather than each and every point developed in the detailed submissions prepared and presented by the parties’ respective counsel.
8.         For the reasons which follow, I am of the view that the plaintiff’s application must be dismissed.  Specifically:

(1)       On analysis of the several documents which constitute the written retainer between the plaintiff and its former solicitors, it must be recognised there is a degree of tension between the specific arbitration agreement in one constituent document, and the provision by which the parties submitted to the exclusive jurisdiction of the courts of Western Australia, in another constituent document forming the retainer.

(2)       On the proper construction of the written agreement as a whole, applying orthodox principles of construction and without any predisposition in favour of arbitration agreements, I conclude that the arbitration agreement does not yield to the Western Australian exclusive jurisdiction provision.  Rather, the provisions may be construed coherently with each other, such that the latter clause has a narrower application, namely to identify the courts which would exercise supervisory jurisdiction.

(3)       The plaintiff’s central contention, carefully explained by its counsel, is that the parties’ bargain incorporates a promise not to arbitrate disputes such as the present – rather than a submission that there was an arbitration agreement which has become inoperative.  I accept the latter formulation is inapposite in the context of the plaintiff’s anti-arbitration injunction, being language more apt to the exposition of a stay application.  In any event, the plaintiff’s central contention is one that I must reject given the proper construction of the retainer, on my analysis.  The retainer does incorporate an arbitration agreement.

(4)       Further, it is evident that the scope of that arbitration agreement captures the subject matter of the present action.

(5)       Given the foregoing matters, it follows that I must dismiss the plaintiff’s application for an anti-arbitration injunction.   

The basis for the injunction

9.         The plaintiff points to the jurisdiction recognised by the majority of the High Court in CSR Ltd v Cigna Insurance Australia Ltd,^[1] in which an injunction may be granted in the exercise of the court’s equitable jurisdiction where there are proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive.  
10.         This equitable jurisdiction, directed at the restraint of unconscionable conduct, may be exercised in aid of legal rights.   One particular example is where there is a contract not to sue, in which event an injunction may be granted to restrain proceedings brought in breach of that contract, whether brought here or in a foreign jurisdiction.^[2]   Another, similar example, is where there exists a contractual promise not to sue in a foreign jurisdiction constituted by an agreement to submit to the exclusive jurisdiction of the courts of the instant forum, in which circumstance an injunction may be granted in aid of that promise.^[3]
11.         The jurisdiction just identified has equal application where the contractual promise is not to arbitrate disputes between the parties, although an anti-arbitration injunction serves an entirely different purpose, as explained by Bell P, as his Honour then was, writing extra-curially:^[4]   

When deployed in the context of an arbitration agreement, the anti-suit injunction reinforces the contractual promise to arbitrate whilst the anti-arbitration injunction, on the other hand, seeks to bring an actual or threatened arbitration to a temporary or permanent halt.  As such, anti-arbitration injunctions very much go against the broad trend of judicial support for arbitration …

12.         An example of the grant of an anti-arbitration injunction in Australia can be seen in the Federal Court decision of Kraft Foods Group Brands LLC v Bega Cheese Ltd.^[5]  In that matter, O’Callaghan J granted an anti-arbitration injunction to prevent a party from proceeding with a New York arbitration pending the determination of the proceedings on foot in the Federal Court.  In broadly rejecting the submission that anti-arbitration injunctions ought be examined through a different prism and with extra caution, compared to anti-suit injunctions, his Honour held that:^[6]   

In my view, there is no ‘different prism’ to be looked through or ‘extra caution’ to be exercised in deciding whether to grant an anti-arbitration injunction.  The relevant question to be addressed is whether an anti-arbitration injunction should go, consistently with the principles enunciated by the High Court in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345.  Of course, caution in the exercise of the jurisdiction to grant any injunction is always needed: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 396.  But no part of the exercise of the court’s discretion on an application for an anti-arbitration injunction involves the court asking itself, or needing to determine, whether the relief claimed is ”exceptional”.

13.         In the present case, the plaintiff contends that, on its proper construction, the engagement agreement between it and its former solicitors embodies a contractual promise not to arbitrate, and that contractual promise in effect displaces the arbitration agreement otherwise contained in the engagement.  
14.         The plaintiff submits that the present situation attracts the orthodox grant of an anti-arbitration injunction in the court’s equitable jurisdiction, to restrain the breach of the contractual promise not to arbitrate, and to restrain proceedings which are vexatious or oppressive.   The proceedings are vexatious or oppressive in the equitable sense that there is a demonstrated absence of any proper contractual basis for the arbitration proceeding.^[7]
15.         The plaintiff places reliance on the decision of Hamblen J in the English High Court authority of Claxton Engineering Services Ltd v TXM Olaj-És Gázkutató KFT,^[8] which it says supports a characterisation which is apt to be applied to the present situation.  In that matter, the claimant had sought an injunction to restrain the defendant from pursuing an arbitration in Hungary.  This was said to be in breach of an exclusive jurisdiction clause.  The court, at an earlier step in the proceeding, had found that the contract contained a submission to the exclusive jurisdiction of the English courts.  Nonetheless, the defendant proceeded to issue a request for arbitration in Hungary, which resulted in the claimant seeking an anti-arbitration injunction.  
16.         Hamblen J granted the injunction on the basis that there had been a clear breach of the jurisdiction clause, although in contrast to the approach adopted in Kraft Foods Group Brands LLC v Bega Cheese Ltd, his Honour considered it necessary to be satisfied that exceptional circumstances existed: 

[35]     In the present case the claimant can establish that the continuation of the arbitration will be a breach of its legal rights.  This court has held that the contract was subject to an English exclusive jurisdiction clause and the proceedings brought by the defendant are a clear breach of that contractual agreement.  Not only that, but this is a legal right of a nature which the English courts have recognised it is generally appropriate to enforce by way of injunctive relief unless there are “strong reasons for not giving effect to the exclusive jurisdiction clause” (citations omitted).

[36]     This is also a case in which the claimant can establish that it would be vexatious and oppressive to allow the arbitration to continue since this court has already held that there is no arbitration agreement.  Allowing the arbitration to continue will therefore not only involve the claimant in duplication of work and needless expense, but it will do so on a jurisdictional basis which this court has already held does not exist.

…

[41]     In many of the cases which concern whether an anti-arbitration injunction should be granted there is an issue as to whether there is any or any valid arbitration agreement.  One can well under- stand why it would generally be appropriate for that issue to be left in the first instance to be determined by the arbitration tribunal.  Here, however, not only has it already been decided by this court that there is no such agreement, but this court has also held there is a governing English exclusive jurisdiction clause.

17.         The arbitration in that case was thus characterised both as a breach of the claimant’s legal rights as well as a vexatious and oppressive proceeding.
18.         The plaintiff acknowledges the necessity, in invoking the court’s equitable jurisdiction, to consider whether this court is a clearly inappropriate forum.^[9]   I accept there is no difficulty in this respect, given the retainer was made in Australia and contains Australian jurisdiction and choice of law clauses.^[10]
19.         In the alternative to the exercise of the court’s equitable jurisdiction, the plaintiff submits the inherent jurisdiction of the court would be available to support the relief sought on the application.^[11]   That jurisdiction would arise given the substantial overlap between the proceedings in this court and the extant arbitration, and the risk of inconsistent findings.
20.         For its part, the defendant in the present case did not dispute the existence of the court’s power to grant an anti-arbitration injunction, either in equity or in exercise of the court’s inherent or implied power.^[12]   The defendant disputes, however, whether any order should be made in this case, and emphasises that, in determining whether an anti-arbitration injunction should issue, the proper construction of the parties’ agreement is paramount.  The defendant submits this is ‘particularly so when both an arbitration agreement and an exclusive jurisdiction clause are found within the same contract’.^[13]
21.         The parties accepted that the construction of the engagement agreement, and whether the anti-arbitration injunction should issue, are matters governed by the law of the forum.
22.         I will return to the construction of the engagement agreement between the parties in due course.  First, it is necessary to outline the evidence which was led on the application and summarise the factual background.

Evidence on the application

23.         The plaintiff relied upon two affidavits sworn by Mr John Paul Welborn, who is a director of the plaintiff, both dated 14 August 2026.  I will refer to these as the Primary Welborn Affidavit (which is non-confidential) and the Confidential Welborn Affidavit (which is confidential).   The Primary Welborn Affidavit attaches the documents which form the basis of the written engagement between the parties, together with certain open correspondence between the parties, exchanged in May and June 2026.
24.         The defendants relied upon two affidavits sworn by Mr Spencer Edward Flay, a partner with the defendant firm, on 18 August 2026.  I will refer to the affidavits as the Primary Flay Affidavit and the Confidential Flay Affidavit, the latter containing confidential communications between the parties concerning the extant arbitration.^[14]

Factual background

25.         It is convenient at the outset to identify the factual background to the action and to the plaintiff’s application, which is relatively narrow in compass.

The parties

26.         The plaintiff is a subsidiary of Equatorial Resources Limited, a company listed on the ASX.  The plaintiff is incorporated pursuant to the laws of the Republic of Mauritius.  
27.         The defendant is a global law firm, having offices throughout the world but relevantly in London, Sydney, and Perth.

The retainer

28.         The plaintiff engaged the defendant in March 2021 to provide legal advice and assistance in connection with a mining dispute in Africa (the Retainer).  The Retainer is in writing and consists of several identifiable documents.^[15]   
29.         I will address the express terms of the Retainer after I have provided some further factual context to the dispute, but for present purposes it is sufficient to observe that the agreement consists of, at least, the following three documents:

(a)       a letter on the letterhead of the defendant signed by a partner, Dr Sam Luttrell, sent to Mr Welborn dated 19 January 2020, but which should correctly be dated 19 January 2021 (the Engagement Letter), and which was signed on behalf of the plaintiff on 11 March 2021;^[16] 

(b)       a document entitled ‘Terms of Business’ bearing the name ‘Clifford Chance’ (the Terms of Business);^[17] and

(c)       a document entitled ‘Additional Terms of Business (Australia Specific)’ bearing the name ‘Clifford Chance’ (the Additional Terms).^[18] 

30.         The above documents were emailed by Dr Luttrell to Mr Welborn on 20 January 2021 (the Covering Email),^[19] together with two further documents, being a document entitled ‘Fact Sheet Legal Costs – Your Right to Know’^[20] and a document entitled ‘Fact Sheet – Your Right to Challenge Legal Costs’.^[21]
31.         The Retainer envisaged that the solicitors would (and, in fact, subsequently did) represent the plaintiff in international arbitration proceedings against the Republic of Congo.  The arbitration concerned the investment treaty dispute between the plaintiff and the Republic of Congo, arising from the asserted expropriation of the plaintiff’s investment in an iron ore project (the ICSID Arbitration).
32.         For present purposes, the details of the ICSID Arbitration and the course of those proceedings need not be examined in any detail.   Further to this, at the hearing on 28 August 2026, the court made orders to preserve the confidentiality of matters deposed to in several affidavits which were relied upon for the purposes of the application.^[22]   To preserve that confidentiality, I will refer in these reasons to the factual material in broad terms, and only where necessary.

Invoices issued during the Retainer

33.         During the course of the engagement, the defendant solicitors issued several invoices, including invoices dated 18 December 2025 and 31 March 2026.  Various invoices issued by the defendant were paid by the plaintiff.  
34.         In January 2026, the plaintiff made a payment to the defendant solicitors, part of which was applied to the invoice dated 18 December 2025.  
35.         It is asserted, and does not appear to be in dispute, that a substantial proportion of the invoices issued by the defendant dated 18 December 2025 and 31 March 2026 remain unpaid.

The commencement of arbitral processes by the defendant

36.         Following the breakdown in the relationship between the parties, on 22 May 2026, the defendant wrote to the present solicitors for the plaintiff, Thomsons, to provide notice of a dispute as to the plaintiff’s failure to pay its invoices.^[23]   That letter broadcast to the plaintiff a desire to resolve the dispute amicably, but failing which indicated an intention to refer the dispute to arbitration under the UNCITRAL Rules.  Among other provisions, the letter referred to cl 16.1 of the Terms of Business and cl 6 of the Additional Terms.
37.         The solicitors for the plaintiff responded on 3 June 2026, raising several issues.^[24]   In that letter, the solicitors noted that the relationship between the parties was regulated by the Legal Profession Act 2008 (WA) (the LPA) and raised the prospect of seeking an assessment of all invoices issued by the defendant through the assistance of this court.   Importantly, the solicitors also pointed to the inconsistency between cl 16 of the Terms of Business and cl 6 of the Additional Terms, and contended that ‘neither party has the right to refer a dispute to arbitration’.
38.         Subsequent to this exchange, the defendant solicitors commenced an arbitration by a notice of arbitration dated 1 July 2026, under the UNCITRAL Rules, and purportedly pursuant to the arbitration agreement within the Retainer.  
39.         For reasons which need not be fully explored at present, this arbitration has now been superseded by a further ad hoc arbitration under the UNCITRAL Rules, commenced by the defendant on 4 August 2026.  This further arbitration seeks to determine the dispute between the parties concerning the payment of fees under the Retainer (the Arbitration).  

Commencement of the present proceedings

40.         On 10 August 2026, the plaintiff filed a writ in this court, indorsed with a statement of claim (SOC).  The SOC pleads contractual and restitutionary claims against the defendant solicitors, seeking the following relief:

(a)       repayment of fees and disbursements paid by the plaintiff (save for an amount of $10,000 paid to the defendant plus any applicable GST);^[25]

(b)       an alternative claim for an assessment of the invoices rendered by the solicitors, pursuant to div 8 of pt 10 of the LPA;^[26] and

(c)       damages for loss and damage suffered by the plaintiff by reason of the defendant’s asserted repudiation of the Retainer.^[27]

41.         The plaintiff pleads that it paid a substantial sum to the defendant to represent it in the ICSID Arbitration ‘in the mistaken belief that the defendant was entitled to charge those fees pursuant to the Retainer’.^[28]
42.         There is evidently then a substantial overlap between the relief sought in the proceedings in this court by the plaintiff, and the claims made by the defendant solicitors in the extant Arbitration.   The claims in this court appear to be broader in terms, but the essence of both proceedings is a central dispute as to the extent of the obligation of the plaintiff to pay fees to the defendant under the Retainer.

Express terms of the Retainer

Engagement Letter

43.         The Engagement Letter is a five-page document, prepared on the defendant’s letterhead, using the Perth office address for the defendant.  The letter has been signed by a partner from the Perth office.  The letter is addressed to Mr Welborn at his office address in Perth.  
44.         The letter begins by stating that its purpose is to ‘confirm the terms and conditions on which we will act for you in this matter’.  The letter contains seven sections, the most relevant for present purposes being ‘1.  Costs Agreement’, ‘2. Terms of Business’, and ‘3. Fees and Disbursements’. 
45.         Section 1 of the Engagement Letter relevantly states as follows:

This letter and its attachments constitute an offer to enter into a costs agreement for the purposes of Division 6 of Part 10 of the Legal Profession Act 2008 (WA) (“the Act“).  Please confirm your acceptance of these terms of engagement (including the attached Terms of Business) by signing and returning a copy of this letter to us.  Acceptance by you of these terms will result in a costs agreement for the purposes of the Act.  If you continue to instruct us in relation to this matter, you will also be taken to have accepted these terms.

46.         Section 2 of the Engagement Letter refers to both the Terms of Business and Additional Terms documents.  The section has three paragraphs, as follows:

Attached are our Terms of Business which will apply in respect of the work performed by us in connection with this matter and any legal services which Clifford Chance may provide to you both here and outside Australia.

To the extent that some of the provisions in our Terms of Business may not be applicable in the State of Australia in which we provide legal services to you, we have highlighted this in the document entitled ”Additional Terms of Business (Australia specific)” (“Additional Terms“) which is also attached.  Disclosures we are required to give to you under the applicable State Legal Profession legislation also appear in the Additional Terms. 

The same terms of engagement will apply in respect of future work we do for you unless we provide new terms of engagement at that time.

47.         Section 3 of the Engagement Letter refers to the prospect of litigation funding, and identifies six fee earners from the firm who will primarily undertake the work on the matter, and their charge out rates in Australian dollars.  At least one of those fee earners is plainly not a legal practitioner in Western Australia (being Mr Audley Sheppard QC).
48.         This section also refers to the application of GST to the rates, giving an indication that the firm did not assess the matter as being subject to GST.
49.         The Engagement Letter was countersigned by Mr Welborn on 11 March 2021, under the sentence ‘I acknowledge receipt and accept the terms of this Engagement Letter and the attached documents’.

Terms of Business

50.         The Terms of Business is a six page document, with the Clifford Chance logo on the first page, containing 17 clauses.  The document commences with the statement, ‘This document sets out the terms (“Terms”) on which Clifford Chance provides legal services’.  There is facility for the document to be signed by the client on the final page, but that appears not to have been done. 
51.         The clauses of the Terms of Business which attracted most attention during the hearing of the plaintiff’s application were cl 1, cl 2, cl 3, cl 4, cl 6, cl 8, cl 14, cl 15, cl 16 and cl 17.  To understand the submissions made by the parties, it will be necessary to extract the relevant portions of the document.
52.         Clause 1 states as follows:

1.         CONTRACTING PARTIES

1.         Our principal partnership is Clifford Chance LLP, a limited liability partnership incorporated in the United Kingdom. In some jurisdictions, we practise through this partnership.  Elsewhere, we do so under the name of a local entity which, in each case, uses the Clifford Chance name (Clifford Chance LLP and such entities are referred to generally below as “Clifford Chance”). Occasionally, we source legal services through an entity with which we have a formal association (“Associated Firms”). Information about Clifford Chance offices and entities and their professional and regulatory bodies, and about Associated Firms can be found on our website and further details on the legal structure of any Clifford Chance office can be provided on request. 

1.2       The entity through which Clifford Chance practises in the country which first accepts instructions from you on any matter is the entity contracting to supply services in relation to that matter. Whichever entity so contracts does so, unless otherwise agreed, on the Terms. subject always to any legal or professional rules in any relevant jurisdiction.  The Terms are also likely to be supplemented by further provisions (“Additional Terms”) which relate to each such specific matter, including details of who will be working for you, and the rates we will charge for our services.  Where another entity through which Clifford Chance practises, or an Associated Firm, subsequently acts for you on the same matter, then it does so as the subcontractor of the contracting entity.  References below to “we” and “us” are to the Clifford Chance entity which has contracted with you on the relevant matter. 

1.3       Where you instruct an Associated Firm first on any matter, it will be the practice of the Associated Firm to act on the basis of terms consistent with these Terms.  You therefore agree that where you do so instruct an Associated Firm. the following paragraphs of these Terms will apply as if the name of the Associated Firm was substituted for “Clifford Chance” and “we” and “us” are references to the Associated Firm.  However, any subsequent involvement by any Clifford Chance office on such a matter shall not be as a subcontractor of the Associated Firm but shall be governed by these Terms. 

1.4       The Terms will apply to any matter when Clifford Chance is instructed by the party to whom this document is sent and, unless you request otherwise in writing, when Clifford Chance acts for any corporate entity controlled or managed by that party.  References to “you” are to the entity or entities contracting with Clifford Chance on each such matter.  The relevant services on each matter are provided solely for such entity or entities. Unless otherwise agreed in writing, we do not owe any duty of care to any other person or entity and you should not disclose our advice to others without our express written agreement.

53.         Clause 2 is headed ‘Our services’.  Within cl 2.6, the document indicates that the firm uses associates who are self-employed in ‘some countries’.
54.         Clause 3 is headed ‘Basis of our charges’.   Clause 3.4 states that ‘in some countries’, the firm is obliged to charge value added tax, sales tax or other taxes in respect of work carried out ‘in that country’.  There is a reference in cl 3.4 to the prospect that work might be undertake by the firm in China.
55.         Clause 6 is headed ‘Conflicts of interest and confidential information’, and commences by stating that: 

Subject to any local legal or professional rules which apply to us in any relevant jurisdiction, or where we have agreed otherwise, we act on the following basis: …

56.         Clause 6.1 also refers to the ‘local legal and professional rules’ which relate to conflicts of interest ‘which apply in the jurisdiction(s) where any Clifford Chance office would be acting on that matter for you’. 
57.         Clause 8 is headed ‘Limitation of liability’, and refers to the ‘assets of the Clifford Chance entity which contracts to supply services’, and imposes a limitation of liability of an amount expressed in English pounds, in the first instance.
58.         Clause 14 is headed ‘Miscellaneous regulatory issues’, and refers to ‘applicable laws and regulations’.  The clause states as follows:

14.       MISCELLANEOUS REGULATORY ISSUES

14.1     There are a number of statements which, under relevant laws and regulations, we are required to make in the context of services we provide in certain countries where we practise.  These statements can be accessed on our website. 

14.2     It is our policy to apply client identification procedures required by relevant EU laws and regulations globally, supplemented as applicable by any additional requirements in countries where we act for you. To comply with these procedures, we may request from you, and retain, information and documentation relating to your identity and the identity of certain individuals in your organisation. We may also need to raise enquiries as to the source of assets and/or of funds to be used on any matter. Where we make such requests, you agree to respond promptly, failing which we may be unable to act for you, or to continue to do so. 

14.3     You accept that we may take whatever steps we consider necessary to comply with applicable laws and regulations even if to do so would be inconsistent with our contractual or other duties to you.

59.         Clauses 15, 16 and 17 are material provisions of the Terms of Business, in the context of the present application, and it is necessary to extract them in full:

15.       APPLICATION OF THESE TERMS AND AMENDMENTS

15.1     While we ask you to confirm your agreement to these Terms by letter or email, we provide our services to you on the basis of the Terms and any Additional Terms which supplement them. By instructing us. or continuing to instruct us on any matter, you agree that the Terms shall apply unless otherwise agreed. If you retain us as agent for a third party, you confirm that you have authority to retain us on the basis of these Terms.  If you disagree with any of the Terms, you should so advise us immediately. These Terms also supersede any earlier document sent by us entitled “Terms of Business”. 

15.2     From time to time, it may be necessary for us to amend the terms on which we act. Where this is the case, we will inform you of the proposed changes and, unless we hear from you in writing to the contrary within 21 days, such amendments will be deemed to come into effect from the end of that period. 

15.3     Where we act for you in certain countries, including Russia and we are to invoice you from our office in such country, it may be necessary for you to enter into a local dual language legal services agreement with the entity through which we practise. Where we ask you to do so on terms consistent with these Terms you agree that you will promptly do so.

16.       DISPUTES

16.1     If either party considers that a dispute or claim of any nature (collectively referred to as a “dispute”) has arisen directly or indirectly in connection with any services provided by us to you, whether arising under a provision of these Terms or otherwise, that party shall give notice in writing to the other party of the dispute, including reasonable details of the nature of the dispute. The parties shall seek to resolve such dispute amicably by negotiation. If the dispute has not been resolved within 30 days of receipt of that notice, then, subject to paragraph 16.2 below, the English courts shall have exclusive jurisdiction to settle the dispute, unless the claimant instead refers the dispute to arbitration by giving notice in writing to the other party, such arbitration to be in accordance with paragraph 16.3. 

16.2     If proceedings are issued in the English courts or in the courts of any other country, the defendant (whether Clifford Chance or you) may elect that the dispute instead be referred to and settled by arbitration in accordance with paragraph 16.3. The defendant must make this election by notice in writing to the claimant and to the claimant’s lawyers (if any) named in the proceedings within 21 days of service of the proceedings. If the defendant elects to refer the dispute to arbitration in accordance with this paragraph, the parties must take all steps necessary to end the proceedings in the English or other courts. 

16.3     If a dispute is referred to arbitration by a claimant in accordance with paragraph 16.1 or by a defendant in accordance with paragraph 16.2, it shall be to arbitration in accordance with UNCITRAL Rules. The number of arbitrators will be three. If the appointment procedure fails to produce a tribunal, the appointing authority will be the London Court of International Arbitration. The language of the arbitration will be English. The seat and place of the arbitration shall be London or the capital city of the country, if any, whose courts the parties have agreed in writing should have jurisdiction instead of the English courts, whether such agreement is by amendment to these Terms or in Additional Terms agreed in relation to the specific matter which is the subject of the dispute (save that the place of any arbitration in the United States will be New York). 

16.4     By way of brief explanation, proceedings in arbitration take place before arbitrators chosen, principally, by the parties, and not before a judge or jury. Additionally, there are certain fees paid by the parties for initiating an arbitration, and for the services of the arbitrators for which the participants will, in whole or in part, be liable. In only very limited circumstances will there be any right of appeal from an arbitration panel’s decision.  The UNCITRAL Rules can be accessed here.

17.       GOVERNING LAW 

17.1     These Terms and any Additional Terms, including specifically paragraph 16 (“Disputes”) and the relationship (whether contractual or non-contractual) between you and Clifford Chance regarding our services on any matter, shall be governed by English law unless we have agreed otherwise in writing with you, either as an amendment to these Terms, or in relation to a specific matter.

60.         An observation should be made concerning the option to arbitrate in cl 16.1 and cl 16.2.  While expressed to be an option, or as a permissive arbitration clause, the provision nonetheless operates as an arbitration agreement.  Simply put, once the option is exercised, the parties will then be obliged to arbitrate and not refer the dispute to the identified jurisdiction.  Authority for this proposition can be found in the decision of Morison J in NB Three Shipping Ltd v Harebell Shipping Ltd,^[29] in which his Honour relied upon the established analysis in The Messiniaki Bergen.^[30]   The decision of the Victorian Court of Appeal in Manningham City Council v Dura (Australia) Constructions Pty Ltd^[31] is to the same effect.  I refer in particular to the reasoning of Buchanan JA at [28].

Additional Terms

61.         The Additional Terms document is two pages in length, with the defendant’s logo at the top of the first page, followed by a chapeau in the following terms: 

These Additional Terms of Business, our Terms of Business and the Engagement Letter which accompanies them constitute the terms and conditions of the agreement between us for the provision of legal services on the matter mentioned in the Engagement Letter.  By continuing to instruct us after you have received the Engagement Letter, our Terms of Business and these Additional Terms of Business, you will be taken to have agreed to them.

62.         There are ten clauses within the Additional Terms.  Many of the clauses can be summarised in short order.  
63.         Clause 1 states that the client has a right to request an itemised bill.  
64.         Clause 2 expressly varies cl 4.1.1 of the Terms of Business to permit interest to be charged on unpaid bills, with a specific regime for New South Wales matters and a specific regime for Western Australian matters, picking up local rules or regulations.   The clause states:

2.         Unpaid Bills

Clause 4.1.1 of our Terms of Business is varied: 

• in NSW as follows: we may charge interest on any amount outstanding after the due date at the rate prescribed in Rule 75 of the Legal Profession Uniform General Rules 2015 equal to the amount set by the Reserve Bank of Australia as the Cash Rate Target, increased by 2 percentage points; or
• in WA as follows: we may charge interest on any amount outstanding after the due date at the rate prescribed in Regulation 79 of the Legal Profession Regulations 2009 equal to the amount set by the Reserve Bank of Australia as the Cash Rate Target, increased by 2 percentage points.
•         Clause 3 states that the firm does not maintain a trust account.  
•         Clause 4 is headed ‘Privacy’ and refers to an ‘APP Privacy Policy’ which the firm has in place pursuant to the Federal privacy legislation, and which can be obtained on the internet.  The clause addresses some other privacy matters. 
•         Clause 5 is headed ‘Benefit of Advice’ and states that the firm’s advice is given solely for the client’s benefit and, among other things, ‘is limited to the law of the State or Territory from which we issued this engagement letter and is given on the basis that it will be governed and construed in accordance with the laws of that State or Territory’.
•         Clause 6 is of central relevance to the plaintiff’s application and should be extracted in full:

6.         Governing Law and Jurisdiction

The Engagement Letter, our Terms of Business these Additional Terms of Business and all aspects of our performance of work for you are governed by the laws of the State or Territory from which we issued the Engagement letter.  Both you and we irrevocably submit to the exclusive jurisdiction of the courts of that jurisdiction on all matters relating to our engagement and our performance of work for you.  You are, however, able to enter into a costs agreement with us on the basis that the corresponding law of another State or Territory is applicable if this matter has a substantial connection with that State or Territory.

69.         Clause 7 is headed ‘Disbursements / Expenses’, and is expressed to be additional to matters in cl 3 of the Terms of Business.  It provides as follows:

In addition to the matters in clause 3 of our Terms of Business you must pay all out of pocket expenses we incur on your behalf. This includes but is not limited to:

•          fees of external professional advisers and others engaged by us to act on your behalf;

•          government fees and charges such as court filing fees and ASIC charges;

•          database search fees;

•          travelling and accommodation expenses and out of pocket expenses incurred whilst travelling.  In the case of any travel for distances such as between Western Australia and other States of Australia, air travel undertaken will be business class; and

•          overtime paid to secretarial and support staff required to work outside their normal working hours.

70.         Clause 8 concerns the taking of urgent instructions from a client.
71.         Clause 9 is headed ‘Limitation of Liability’, and provides that the firm’s liability is limited under the regimes in operation in New South Wales and Western Australia, to a current maximum of A$75 million.  
72.         Finally, cl 10 is headed ‘Your Rights (WA Only)’.  It is the only term of the Additional Terms document which is specific to Western Australia.  It states that the client has rights under the LPA.  The full clause is extracted below:

10.       Your Rights (WA Only)

You have rights under the Legal Profession Act 2008 (WA) (the Act).  Please note that the laws of Western Australia apply to legal costs incurred.  You have a right to be notified of any substantial changes to any matters disclosed by this costs agreement.  If the matter involves us commencing proceedings in the Courts of Western Australia, the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 applies to your legal costs.  To the extent permitted by law, any costs agreement between us overrides that or any other costs determination that might otherwise apply.  Where permitted by law, in accordance with section 309 of the Act, you agree to contract out of any right to have our costs assessed under Division 8, Part 10 of the Act.

If you have any queries about costs, you may contact the partner having primary conduct of your matter (listed on the invoice).

The relevant principles as to proper construction

73.         The parties accepted that the Retainer should be construed by reference to the general principles which apply to the construction of all commercial contracts.  Those principles are well understood.  Drawing from the defendant’s submissions, which themselves refer to the High Court’s decision in Rinehart v Hancock Prospecting Pty Ltd^[32]and the analysis of Martin CJ in Fitzpatrick v Emerald Grain Pty Ltd,^[33] the principles may be summarised as follows.^[34]
74.         First, the court is required to construe the parties’ agreement by reference to the language used by the parties, the surrounding circumstances, and the purposes and objects to be secured by the contract.
75.         Second, the commercial objectives ordinarily attributed, objectively, to rational businesspeople will generally require the court to adopt a broad, liberal and flexible approach to construing an arbitration agreement, to the extent that such an approach is consistent with the words used by the parties.
76.         Third, where a contract is comprised of multiple documents, they should be construed together and with reference to each other.
77.         Fourth, where possible, a contract should be interpreted to give all clauses work to do, so as to avoid surplusage.  
78.         Fifth, with specific reference to the proper construction of arbitration and jurisdiction clauses it is to be presumed that rational businesspeople who are parties to contracts dealing with the same or a related subject matter intend all questions arising out of their legal relationship to be determined in the same forum.  The possibility of fragmentation may be inherent in the scheme of the parties’ agreements, and effect must be given to clear agreements.  This is so even if this may result in a degree of fragmentation in the resolution of disputes between the parties.  That said, fragmentation in this sense is likely to be productive of increased expense and delay and give rise to a risk of inconsistent findings between a court and an arbitral tribunal.  Rational businesspeople are likely to have intended to avoid such an outcome.
79.         Some brief reference to Martin CJ’s decision in Fitzpatrick v Emerald Grain Pty Ltd is warranted at this point.  
80.         In that matter, a large number of growers commenced proceedings in the Supreme Court relating to disputes arising from separate contracts between each of the growers and the operator of grain commodity pools.   The contracts took the form of a single page document which expressly incorporated a separate set of terms and conditions.  Within the separate terms and conditions, a provision was included requiring disputes arising out of, relating to, or in connection with its terms to be resolved by arbitration.  This separate document also included a term by which the parties submitted ‘to the non-exclusive jurisdiction of the courts of Victoria’.
81.         The operator applied for orders referring the disputes to arbitration pursuant to the Commercial Arbitration Act 2012 (WA), and to stay the proceedings.  The growers contended that by submitting to the non-exclusive jurisdiction of the courts of Victoria, the parties had acknowledged the jurisdiction of the courts with respect to disputes falling outside the scope of the arbitration agreement, which supported a narrow construction of the arbitration agreements.
82.         His Honour rejected the growers’ contention.   Among other matters, his Honour regarded it as significant that the jurisdiction clause in the separate document contained an agreement to submit to the non-exclusive jurisdiction of the courts of Victoria, holding that:^[35]

[77]     …While there is an obvious tension between an agreement to confer exclusive jurisdiction upon a court or courts and an arbitration agreement, there is no such tension between an arbitration agreement and an agreement to submit to the non-exclusive jurisdiction of the courts.

[78]     … even in cases in which parties have agreed to submit to the exclusive jurisdiction of courts and have also entered into an arbitration agreement, the courts have shown a willingness to construe the relevant provisions in such a way as to give effect to the parties’ evident intention to arbitrate their disputes.

[79]     …in the present case there is no tension at all between the parties’ agreement to confer non-exclusive jurisdiction upon the courts of Victoria and the broad construction which I would give to their arbitration agreement.  By cl 47, the parties have acknowledged that the courts of Victoria have jurisdiction to supervise the performance of their arbitration agreement and enforce the terms of any award made in accordance with that agreement and, perhaps, have made provision for the possibility that there may be disputes which do not fall within the scope of their arbitration agreement.  None of those things are inconsistent with the natural and ordinary meaning properly given to the words used by the parties in their arbitration agreements.

83.         It is to be noted that, although the instrument in Fitzpatrick v Emerald Grain Pty Ltd incorporated a non-exclusive jurisdiction clause, his Honour expressed himself in terms that indicate strong support for a similar approach where an exclusive jurisdiction is found in the governing instrument.
84.         Reference to an English decision relied upon by the defendant should also be made, namely the decision of Cooke J in Sulamerica Sia Macional De Seguros SA v Enesa Engenharia SA.^[36]   That decision was examined in some detail by both Le Miere J in Samsung C&T Corporation v Duro Felguera Australia Pty Ltd and by Martin CJ in Fitzpatrick v Emerald Grain Pty Ltd.  
85.         In that case, the insurer instituted arbitration proceedings and the insured obtained a temporary anti-suit injunction in Brazil.  Following that, the insurer applied to the English court for an anti-suit injunction.  The contract in question contained Brazilian law and exclusive jurisdiction clauses, but also provided for a London arbitration in the event mediation failed.  In brief terms, the arbitration clause incorporated the supervisory jurisdiction of the English courts, with the governing law of the agreement to arbitrate being English law.  
86.         The court granted the application, finding that giving full effect to the Brazilian exclusive jurisdiction clause would have effectively excluded the right to arbitrate.  The court found this was not the intention of the parties. 
87.         Following reference to the decision of Sir Christopher Clarke J in ACE Ltd v CMS Energy Corporation,^[37] Cooke J held:

[48]     The English courts, when faced with an exclusive jurisdiction clause and an arbitration agreement, look to the strong legal policy in favour of arbitration and the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered to be decided by the same tribunal.  Unless expressly provided otherwise, the parties must be taken to have agreed on a single tribunal for the resolution of all disputes.  A liberal approach to the words chosen by the parties in their arbitration clause must now be accepted as part of our law.   I follow in this regard the comments of Christopher Clarke J. 

[49]     In the present case, on the construction that I have held, all disputes or differences can be and must be referred to arbitration under the terms of Condition 12, but if that is so, what is left of the exclusive jurisdiction of the courts of Brazil under Condition 7?  The answer is very little in practice – much the same as found by Christopher Clarke J in paragraph 82 of the ACE decision.  It enables the parties to found jurisdiction in a court in Brazil to declare the arbitrable nature of the dispute, to compel arbitration, to declare the validity of the award, to enforce the award, or to confirm the jurisdiction of the Brazilian courts on the merits in the event that the parties agree to dispense with arbitration. It specifically operates to prevent the parties proceeding in another court on the merits.  Use of the Condition 7 rights for these purposes does not detract from the arbitration clause but gives them meaning.  Furthermore, enforcement in Brazil against Brazilian parties is self-evidently a realistic possibility. 

[50]     The effect is, of course, to give priority to the arbitration clause over the exclusive jurisdiction clause but there is no other way of reconciling the two.  To give full width to the exclusive jurisdiction clause would be to exclude the right to arbitrate altogether.  The only other option would be to allow both the right to litigate in Brazil and the right to arbitrate to run in tandem, with the potential for a race to judgment between the two.  That, for the reasons already given, is a most unlikely construction of the parties’ intentions, as all the authorities indicate. 

[51]     Of course if the arbitration clause is permissive only, giving a party the option of referring the matter to arbitration, reconciliation of that with the exclusive jurisdiction clause is easier but, once one of the parties has elected to refer the dispute to arbitration, the other party is contractually bound to accept the reference to the exclusion of any other form of dispute resolution, as a run of authorities including the Amazona [1989] 2 LLR 130 at 135-136 (CA) show. (emphasis added)

88.         The decision of Cooke J in Sulamerica has been referred to with approval on numerous occasions since, including in jurisdictions beyond England and Australia.  I accept, as the plaintiff submits, that some care is needed before directly applying the analysis and outcomes in some of the English decisions relied upon by the defendant, given the predisposition of those courts in favour of arbitration.  
89.         As to this last point, Australian courts do not approach the construction of commercial contracts with any predisposition in favour of arbitration, nor with any presumptive approach to the construction of arbitration clauses, as explained by the New South Wales Court of Appeal in Rinehart v Welker.^[38]  The words of the clause cannot be given a meaning they do not have in order to satisfy a perceived commercial purpose, or achieve some predisposition.
90.         The analysis in each case requires a careful examination of the text and context of the constituent documents involved, noting that some of the authorities concern single document instruments, and others (such as the present) involve several documents.  The constructional process is an objective one, and fact specific.

The proper construction of the Retainer

91.         The construction of the Retainer is not straightforward.  So much is evident from the detailed, and competing, submissions advanced by the parties, both of which carry force and find support, in varying degrees, in the text of the instrument.  
92.         At its core, the constructional difficulties emerge from the use by the defendant of multiple documents in the structuring of its client engagement terms, without employing a hierarchical provision to clarify the order of precedence between the documents.  Absent such a provision, where the terms of the several documents are inconsistent, on their face or in their operation, the resolution of that inconsistency must be approached by the application of the principles of construction to which I have earlier referred.  The process of construction is one on which reasonable minds can sometimes differ.  
93.         In the present case, the parties’ arguments focused on the apparent inconsistency between cl 16 of the Terms of Business and cl 6 of the Additional Terms, the former containing a rather specific, optional arbitration regime, while the latter states that the parties ‘irrevocably submit to the exclusive jurisdiction of the courts of [Western Australia] on all matters relating to our engagement and our performance of work’.
94.         The plaintiff bears the onus of demonstrating that its central contention should be accepted, namely that on the proper construction of the Retainer there is no arbitration agreement and, by reason of cl 6 of the Additional Terms, there is an express contractual promise not to arbitrate any disputes.
95.         The plaintiff’s submission is that the tension between cl 16 and cl 6 is simply irreconcilable.  Counsel articulated the plaintiff’s contention as being a case of ‘true inconsistency’, such that the court must choose between the two provisions.  Counsel submitted that there is a promise to arbitrate within the Retainer, and there is a promise to litigate exclusively, and one cannot, without changing the text, reconcile them.
96.         On close analysis, the proper construction of the Retainer as a whole does not require that cl 16 of the Terms of Business must yield to cl 6 of the Additional Terms, in my respectful view.  That is, I do not accept the plaintiff’s ultimate contention that the clauses are fundamentally inconsistent or, put another way, that the tension between the clauses is irreducible such that cl 6 wholly displaces cl 16, leaving no arbitration agreement remaining within the Retainer.  There are several reasons for reaching this view, none of which alone produces the answer, but when assessed collectively, point to the result I have mentioned.
97.         First, starting with the Engagement Letter, which incorporates the Terms of Business and the Additional Terms, the express terms of the letter state that the Terms of Business ‘will apply in respect of the work performed by us in connection with the engagement and any legal services which the defendant may provide to you, in Australia and outside Australia’.^[39]   This language is emphatic.  The Engagement Letter then allows for the possibility that some of the provisions in the Terms of Business ‘may not be applicable’ in the State of Australia in which the defendant provides legal services to the plaintiff.  This language is plainly less emphatic.  The Engagement Letter further indicates that the Additional Terms contain the disclosures which the defendant is required to give to the plaintiff under ‘the applicable State Legal Profession legislation’.
98.         While the terms of the incorporated documents, being the Terms of Business and Additional Terms document, require analysis, the language of the Engagement Letter reveals an intention to give primacy to the Terms of Business, save for where certain of its provision may not be applicable in the particular State.  This is a useful and important starting point for the constructional exercise.
99.         Second, this manifest intention of primacy of the Terms of Business is reinforced by the language of the Terms of Business document itself, to the extent to which that document makes reference to the Additional Terms document.  So much is apparent from cl 1.2 which states that the Terms of Business ‘are also likely to be supplemented by further provisions…which relate to each such specific matter’, and from cl 15.1 which refers to the Additional Terms ‘which supplement’ the Terms of Business.  Clause 17 makes reference to ‘any’ additional terms.
100.         The term ‘supplemented’, which is the past tense and past participle of the verb ‘supplement’, applying the ordinary meaning of that term, means ‘something added to complete a thing, supply a deficiency, or reinforce or extend a whole’.^[40]   The term is directed to the addition of something extra, to make up for a deficiency.  The use of the term ‘supplement’ is consistent with the description of the document as the ‘additional’ terms.
101.         Third, the Terms of Business contemplate there may be ‘amendments’ to the terms of the Retainer, as appears in cl 15.2.  The prospect of amendment of the terms also emerges from the language of cl 17.  An amendment to the terms is plainly a distinctly different concept to a supplementation of the terms.  In a similar vein, cl 15.1 of the Terms of Business uses the term ‘supersede’ in relation to earlier versions of the Terms of Business.  The language employed in the Retainer provides a strong indication that the use of the term ‘supplement’ was a specific and deliberate use of language, and not intended to operate, unless otherwise, as a displacement.
102.         Fourth, there is some specific language within the Additional Terms document which explains the interaction between that document and the Terms of Business, as is evident from cl 2 and cl 7.  Clause 2 expressly states that it varies cl 4.1.1 of the Terms of Business in relation to interest charges.  Clause 7 states that it is ‘in addition’ to cl 3 of the Terms of Business concerning disbursement and expenses.  The other clauses within the Additional Terms document do not expressly address the interaction with the Terms of Business.   That is largely explicable because the clauses deal with matters specific to Australia (see cl 4, cl 9 and cl 10) or deal with issues not addressed in the Terms of Business document (cl 1, cl 3, cl 5 and cl 8).  
103.         Clause 6 arguably stands apart, as it addresses the governing law of the engagement and the submission to the jurisdiction of the courts of Western Australia, being matters also addressed in cl 16 and cl 17 of the Terms of Business.
104.         Importantly, when regard is had to the language used in the Engagement Letter and other documents, the Additional Terms do not appear intended to displace the Terms of Business.  Rather, the objective intention is to supply terms particular to Western Australia because of regulatory requirements in this jurisdiction, a point apparent from the Terms of Business which refer to ‘local legal or professional rules’, ‘local rules’ or ‘applicable laws and regulations’ (see the chapeau to cl 6, cl 8.3, cl 12.1, and cl 14.3).
105.         Fifth, in ascertaining the objective intention of the parties as to the interaction between cl 16 of the Terms of Business and cl 6 of the Additional Terms, one matter of significance which favours the conclusion that cl 16 ought not be regarded as being wholly displaced by cl 6, is the detailed language and structure of the disputes provision in the Terms of Business, in cl 16.  
106.         The terms and structure of that provision evidence a considered approach to the drafting, with discrete stages of the dispute resolution being mandated, and the scope of the provision being worded broadly.  The language is chosen and deliberate.  It is far from a generic dispute resolution clause, or a boilerplate arbitration provision.   
107.         The clause is engaged in relation to ‘a dispute or claim of any nature’, which has ‘arisen directly or indirectly in connection with any services provided by’ the defendant solicitors to the client, ‘whether arising under a provision of these Terms or otherwise’.  The language is extremely wide in its scope.
108.         As to the mechanics, the clause requires that, upon a dispute arising, either party must give notice of that dispute in writing in the first instance, following which the parties shall seek to resolve the dispute amicably through negotiation.  Where the dispute has not been resolved, the clause provides that the English courts shall have exclusive jurisdiction to settle the dispute, unless either the claimant refers the dispute to arbitration by giving notice under cl 16.3, or the defendant to proceedings commenced in an English court makes the election by notice which is referred to in cl 16.2.
109.         Where cl 16.2 is engaged, by proceedings being brought in an English court, or the courts of any other country, the clause requires that, where the defendant makes an election to refer the dispute to arbitration, the parties ‘must take all steps necessary to end’ the extant proceedings in the English courts or the other courts.  As the defendant submits, this reveals the primacy of a party’s election regardless of another provision, in that:^[41]

Any party’s election for arbitration trumps the choice of exclusive jurisdiction for English courts.  And, in express terms, the trump extends to the courts of any other country.

110.         The terms of cl 16 also address the mechanics of the arbitration, which is to be conducted under the UNCITRAL Rules, with three appointed arbitrators, and the London Court of International Arbitration being designated as the appointing authority.  The language, seat and place of the arbitration are all designated.  
111.         Indeed, the clause goes even further, in cl 16.4, to explain the nature of arbitral proceedings and to provide a link for the parties to access the UNCITRAL Rules.   
112.         To reiterate, the language employed within cl 16 is not generic, and is manifestly intentional.  The language employed within cl 6 of the Additional Terms stands in contrast, being relatively vanilla and broad brush in nature.  
113.         Sixth, the significance of the arbitration regime in cl 16 is emphasised by the language employed in cl 17, which ‘specifically’ refers to cl 16 when providing that the governing law of the agreement is English law.  The reference to cl 16 ‘specifically’ immediately follows a reference to the Additional Terms document.  
114.         Seventh, one might initially form the view there is some strength in the contention that questions as to the cost’s entitlement of practitioners, and the assessment of the reasonableness of such costs, are best determined by this court, especially when arising from an engagement agreement entered into in this State.  That initial view, bolstered by the presence of the LPA disclosures attached to the Engagement Letter, might lend support to the conclusion that the present dispute is best determined by this court, rather than through the mechanism of an international arbitration.  
115. To add to the foregoing, it is to be remembered that this court exercises a general supervisory jurisdiction over legal practitioners admitted by the court and practising in this State.   
116.         On closer analysis, there is no compelling reason for such an approach, particularly when the breadth of the dispute regime in cl 16 of the Terms of Business is appreciated (as is apparent from the first sentence of cl 16.1), and when it is remembered that the task requires an objective construction of the instrument to be arrived at, regardless of the nature of the specific dispute presently being examined.   As earlier noted, the plaintiff and defendant may find themselves in dispute as to many features of their relationship, not only matters of costs entitlements, such as claims in negligence for breach of duty, claims for breach of contract, or claims for breach of confidentiality.   
117.         Moreover, the work being performed on behalf of the plaintiff by the practitioners employed by the defendant firm was not being undertaken in proceedings before this court, rather it was being undertaken in the course of the ICSID Arbitration.  Additionally, there appear to be practitioners involved in the engagement who do not practise in this State. 
118.         There is a further reason why this issue is not a determinative aspect of the analysis.  As is expressly recognised by cl 10 of the Additional Terms, it was permissible by reason of s 309 of the LPA for a sophisticated client to contract out of the right to have its solicitor’s costs assessed under div 8 pt 10 of the LPA.  That would seem to be the objective intention of the parties under this Retainer, given the breadth of the arbitral regime in cl 16.
119.         Accordingly, there is no necessary reason why disputes between the defendant and its Western Australia-based client, where that relationship is governed by the Additional Terms, should not be resolved (much less, cannot be resolved) through the arbitral processes identified in cl 16 of the Terms of Business. 
120.         Eighth, it remains entirely possible, consistent with the text of the Retainer and having regard to the approach adopted in authorities such as Fitzpatrick v Emerald Grain Pty Ltd, to give cl 6 of the Additional Terms some operative effect, so as to supplement the Terms of Business, short of concluding that it has been wholly displaced by cl 16 of the Terms of Business.  Specifically, cl 6 can be construed in a manner which is harmonious with cl 16, allowing the detailed arbitration agreement embodied within cl 16 to take effect, and allowing for supervisory jurisdiction to be conferred on the Supreme Court of Western Australia.  
121. As the supervisory court, this court ‘will have the capacity to ensure compliance with the provisions of the agreement and the proper and orderly conduct of the arbitration in accordance with law, and will have the capacity to set aside an award if the minimum standards specified in the governing law are not met’.^[42]
122. It seems to me there is much to be said for a construction which preserves the operation of the detailed and structured arbitration regime in cl 16, before taking the drastic step of construing the several parts of the instrument to deprive that regime of any effect.
123. For all of the reasons set out at [96] to [122] above, I consider that the proper construction of the Retainer is to give primacy to the arbitration clause in cl 16 of the Terms of Business, which is broadly worded and structurally detailed, thereby allowing cl 6 of the Additional Terms a narrow field of operation directed to the issue of supervisory jurisdiction, so as to supplement the Terms of Business.  
124.         Such an approach is preferable, and better accords with the language of the instrument, than the plaintiff’s suggested approach of giving full width to the exclusive jurisdiction clause and, in effect, excluding the right to arbitrate entirely.  To achieve that result would have required the use of emphatic language within cl 6 of the Additional Terms, not presently apparent, to manifest an intention to vary, to replace or to displace the arbitration regime.   
125.         Given this conclusion, the plaintiff’s application for an anti-arbitration injunction must fail as a matter of construction.

Discretionary matters

126.         The defendant also drew attention to what appeared to be discretionary grounds in opposition to the anti-arbitration injunction.^[43]   The point developed was said to be less a question of delay and more a criticism of the plaintiff’s change in tactics.   
127.         The defendant submitted that the plaintiff, in response to the first of the arbitrations initiated by the defendant, was content to allow the arbitral tribunal to decide the question of the jurisdiction, in accordance with the orthodox approach to competence-competence, or kompetenz-kompetenz.  The defendant says the plaintiff has now changed its mind, as is apparent from the commencement of these proceedings and the bringing of the injunction application.
128.         It is strictly unnecessary to address these matters, given the view I have taken on the proper construction of the Retainer.  However, I should observe that these discretionary matters hold little attraction in all the circumstances.  The plaintiff’s approach in response to the initial commencement of arbitral proceedings by the defendant, on an apparent wrong footing, was to adopt a pragmatic approach, preferring to avoid unnecessary costs and energy until the arbitral proceedings were re-commenced.  
129.         Any delay or apparent tactical change of approach by the plaintiff in this sense appears to me to be of limited significance in the overall chronology of the matter, and does not attract any serious criticism which would otherwise have stood in the way of the relief the plaintiff seeks.  

The defendant’s stay application

130.         I have already indicated that the parties were content for the defendant’s stay application under s 7(2) of the IA Act to be held over until the court determined the plaintiff’s anti-arbitration injunction.  I have therefore refrained from expressing any concluded view on the stay application.

Conclusion and orders

131.         For the foregoing reasons, and as summarised at [8] above, I will dismiss the plaintiff’s application for an anti-arbitration injunction.  I will hear from counsel in relation to the orders which should now be made in relation to the plaintiff’s application, as well as in respect of the defendant’s pending stay application, and also on the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

IR

Associate to the Hon Justice Lundberg

31 AUGUST 2026

^[1] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 392 – 393 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).

^[2] CSR Ltd v Cigna Insurance Australia Ltd (392); Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724, [6] (Brereton J).

^[3] CSR Ltd v Cigna Insurance Australia Ltd (392); Ace Insurance Ltd v Moose Enterprise Pty Ltd [15].

^[4] A S Bell, ‘The Rise of the Anti-Arbitration Injunction’ (2020), [8].

^[5] Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549; (2018) 358 ALR 1 [97] – [99].

^[6] Kraft Foods Group Brands LLC v Bega Cheese Ltd [100].

^[7] PS [42].

^[8] Claxton Engineering Services Ltd v TXM Olaj-És Gázkutató KFT [2011] 1 Lloyd’s Rep 510.

^[9] CSR Ltd v Cigna Insurance Australia Ltd (397 – 398).

^[10] PS [45].

^[11] PS [46].

^[12] DS [25].

^[13] DS [27].

^[14] A third affidavit sworn by Mr Flay on 26 August 2026 dealt with procedural issues and need not be mentioned in any detail.

^[15] Primary Welborn Affidavit, Attachments JW-1 to JW-7.

^[16] Primary Welborn Affidavit, Attachment JW-2 and Attachment JW-7.

^[17] Primary Welborn Affidavit, Attachment JW-3.

^[18] Primary Welborn Affidavit, Attachment JW-4.

^[19] Primary Welborn Affidavit, Attachment JW-1.

^[20] Primary Welborn Affidavit, Attachment JW-5.

^[21] Primary Welborn Affidavit, Attachment JW-6.

^[22] The orders were made pursuant to s 16(1) of, and Article 17J of sch 2 to, the IA Act, s 25(9) of the Supreme Court Act 1935 (WA), and the inherent power of the court.

^[23] Primary Welborn Affidavit, Attachment JW-8.

^[24] Primary Welborn Affidavit, Attachment JW-9.

^[25] SOC [11] – [15]; prayer for relief 1 and 2.

^[26] SOC [16]; prayer for relief 3.

^[27] SOC [17] – [19]; prayer for relief 4.

^[28] SOC [12].

^[29] NB Three Shipping Ltd v Harebell Shipping Ltd [2004] EWHC 2001 (Comm); [2005] 1 All ER (Comm) 200 [10] – [12] (Morison J).

^[30] The Messiniaki Bergen [1983] 1 Lloyd’s Law Reports 424, 426 (Bingham LJ).

^[31] Manningham City Council v Dura (Australia) Constructions Pty Ltd [1999] VSCA 158; [1999] 3 VR 13.

^[32] Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514 [18] and [44] (Kiefel CJ, Gageler, Nettle and Gordon JJ).

^[33] Fitzpatrick v Emerald Grain Pty Ltd [2017] WASC 206 [44] (Martin CJ).

^[34] See also Le Miere J’s summary in Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2016] WASC 193 [65].

^[35] Fitzpatrick v Emerald Grain Pty Ltd [77] – [79].

^[36] Sulamerica Sia Macional De Seguros SA v Enesa Engenharia SA [2012] EWHC 42 (Comm) (Sulamerica)

^[37] ACE Ltd v CMS Energy Corporation [2008] EWHC 1843 (Comm).

^[38] Rinehart v Welker [2012] NSWCA 95; (2012) 95 NSWLR 221 [120] – [122] (Bathurst CJ) and [204] (McColl JA), and see also Young JA at [219].

^[39] Terms of Business, section 2.

^[40] Macquarie Dictionary (7^th edition), p 1503.

^[41] DS [69].

^[42] Fitzpatrick v Emerald Grain Pty Ltd [96].

^[43] DS [82].