Summary

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.

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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