REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
1 Following delivery of the reasons for judgment and answers to the questions reserved in the special case, given by the Full Court in Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCAFC 126, Birdon filed an interlocutory application for orders that sought either the continuation of the injunctions granted on 20 May 2011 as extended and varied on 14 and 17 June 2011, or alternatively, that injunctions in those terms be remade in aid of its application for special leave to appeal to the High Court of Australia which was filed in that Court yesterday.
2 During the course of argument today, I raised with senior counsel for Birdon that it had failed to pursue an obvious potential remedy that had been at the heart of its original application in this Court. That was its claim that Houben Marine had acted in contravention of the norm of conduct in s 18 of the Australian Consumer Law in the way in which it brought about the adjudication proceedings, the broad nature of which was discussed in the reasons of the Full Court. If Birdon were to establish, on an interlocutory application, a prima facie case that Houben Marine had engaged, in trade or commerce, in conduct that was misleading or deceptive, or likely to mislead or deceive, it may be entitled to an interlocutory injunction under s 232 of the Law preventing the progression of the adjudication process.
3 Later, in the course of argument today, Birdon applied to amend its interlocutory application to add a claim for an interlocutory injunction under s 232 of the Law. It argued that it would suffer irrevocable prejudice if it were not granted an adjournment to allow it to make a cognate application on all three bases it now advances for interlocutory relief, pending the High Court dealing with its special leave application, and, if leave were granted, any appeal.
4 The present controversy arises because the Full Court's answer to question 5 was that the interlocutory injunctions previously on foot ought not be continued. The argument in the Full Court was confined to the Constitutional validity of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Security of Payment Act). The Chief Justice and Buchanan J determined that, in all respects, that Act was valid and did not interfere with the institutional integrity or the jurisdiction of this Court.
5 Immediately following delivery of the Full Court's reasons and the pronouncement of its orders on 13 October 2011, Birdon applied orally for a continuation of the current injunctive regime pending it making an application for special leave. For the purposes of being able to determine its entitlement to such an order, I made directions on that day for the preparation of evidence and written submissions, so that any application could be determined on proper notice to Houben Marine and in a way in which the Court could be informed of the basis upon which it was to be pursued. As I have noted, Birdon only sought to change course today after I raised the question, going to the exercise of my discretion, as to whether it had other rights that might prevent the loss of the subject matter of the litigation in the High Court, as it was claiming, were an interlocutory injunction not granted.
6 No issue arose as to Birdon's claim for relief under the Law in the questions referred to the Full Court. That was because of the agreed fact that Birdon's invocation of this Court's jurisdiction under the Law and the Admiralty Act 1988 (Cth) was not colourable; that is to say, there was a bona fide basis upon which it claimed relief, without any acceptance as to the claim's strength or otherwise. In that sense, it is understandable that Birdon's attention may have been diverted from the opportunity to pursue other remedies so as to preserve its position pending a final hearing of its originating application.
7 Birdon argued that it would be exposed to some irreparable prejudice if the adjudication process were allowed to proceed and the adjudicator determined that some debt was due by it before it was able to bring an application for an injunction under s 232 of the Law. Birdon contended that the adjudication process would create a legal debt on which Houben Marine could commence proceedings, even if it did not seek to register the certificate as a judgment under s 25 of the Security of Payment Act.
8 Houben Marine asked, not unnaturally, that I give effect now to the answer to question 5 by the majority in the Full Court, namely, that the injunctions should not be continued. Counsel for Houben Marine offered an undertaking by his client to the Court that it would give 48 hours' written notice before seeking to register any adjudication certificate under s 25 of the Security of Payment Act, to avoid the need for a further injunction being granted if the current injunctions were not continued.
9 I am satisfied that Birdon genuinely seeks to formulate a claim for an interlocutory injunction now on the basis of rights it seeks to assert under ss 18 and 232 of the Law. At the moment, that claim does not seem to have been pleaded fully, although it is clearly part of the actual controversy in the substantive proceedings. Birdon is not presently ready to advance that claim. Indeed, its senior counsel asked for the matter to stand down until this afternoon. That was in order that he might be able to consider the affidavits that have already been filed, but which he had not brought to Court, on which he would put that argument. He also indicated that Birdon would only proceed ex parte later today. This would have meant that the proceedings may then have had to be adjourned to a later time for a contested interlocutory hearing.