Consideration
43 The power to stay this proceeding if Australia is a "clearly inappropriate forum" is discretionary. In Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 (Oceanic), Deane J stated, at 247-8, that the power to stay a proceeding on "inappropriate forum grounds" involved a "subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression". Nonetheless, his Honour stated that the power should "only be exercised in a clear case": Oceanic at 248. In the subsequent case of Voth, Mason CJ, Deane, Dawson and Gaudron JJ stated that the jurisdiction to grant a stay is to be exercised with "extreme caution": at 554.
44 The rationale for the exercise of the power to stay is the avoidance of injustice between the parties: Voth at 554.
45 BirdDog bear the onus of establishing that Australia is a "clearly inappropriate forum": Oceanic at 248; Voth at 564; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 (Renault) at [78], [82] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
46 In determining whether Australia is a "clearly inappropriate forum", the focus is "upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum": Voth at 565, quoted in Puttick v Tenlon Ltd (2008) 238 CLR 265 (Puttick) at [27] (French CJ, Gummow, Hayne and Kiefel JJ). In determining whether Australia is a "clearly inappropriate forum", the Court may take into account relevant "connecting factors" and "legitimate personal or juridical advantage[s]": Voth at 564-5.
47 In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (CSR) at 400-1, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ stated that, where different issues are involved in local and foreign proceedings but the different proceedings arise out of the same sub-stratum of fact, the question is whether, in the context of the whole controversy, the proceedings are "vexatious or oppressive" in the sense that they are "productive of serious and unjustified trouble and harassment" or "seriously and unfairly burdensome, prejudicial or damaging": see also Henry v Henry (1996) 185 CLR 571 (Henry) at 587 (Dawson, Gaudron, McHugh and Gummow JJ).
48 As Deane J said in Oceanic at 245:
Notions of vexation and oppression in this context involve an essential element of injustice. If the action has a significant connection with the territorial jurisdiction of the local court (e.g. domicile of the defendant, locus of the relevant transactions, applicable law) and regularly instituted proceedings in that court involve some legitimate and substantial advantage to the plaintiff (e.g. effective enforcement of any judgment) which would not be available in proceedings in the foreign tribunal which the defendant claims is the appropriate one for their determination, it is difficult to imagine circumstances in which it could properly be held by the local court that it was such an inappropriate forum for the proceedings that their continuance would be oppressive or vexatious to the defendant.
49 I am satisfied that Bolin has regularly invoked the jurisdiction of this Court and "has a prima facie right to insist upon its exercise": Voth at [554]. I am also of the view that BirdDog has not established on the evidence that this Court is a "clearly inappropriate forum" for the hearing and determination of this proceeding (Voth at [559]), nor has it established that this proceeding is "vexatious or oppressive" (CSR at 400). My conclusion is based on the following connecting factors and legitimate advantages arising from a proceeding in this Court.
50 First, while I accept there is some conflict in the evidence as to the contracting parties, the written contracts in evidence establish a prima facie connection between Australia and the subject matter of the dispute in this proceeding.
51 The Court was taken to the NDA dated 4 September 2017 between BirdDog and Bolin, which was entered into when Bolin and BirdDog first entered into discussions about Bolin manufacturing PTZ cameras for BirdDog. "BirdDog Pty Ltd" is identified as a party to the NDA, and its address is identified as in Victoria. Bolin's address is identified as in Shenzhen. The NDA expressly states that the agreement is governed by the laws of Victoria, Australia.
52 The other written agreement to which the Court was taken was the letter styled as a "Manufacturing Agreement and Warranty Statement" dated 1 January 2021. This letter must be understood in the context of BirdDog and Bolin's pre-existing relationship. Since 2018, Bolin has been manufacturing and supplying PTZ cameras to BirdDog. BirdDog's headquarters are in Melbourne. In his affidavit, Mr Guo deposes that, between 2018 and 2021, BirdDog issued approximately 90 purchase orders to Bolin for PTZ cameras, and the manufacture, payment and delivery of PTZ cameras occurred pursuant to an established practice set out at [19(c)] above. There is no evidence establishing any connection between that practice and the Bolin entity incorporated in the United States, 2082/Bolin LLC.
53 Notably, the Manufacturing Agreement and Warranty Statement refers to a prior "understanding and agreement" established over "more than 3 years of working together". The letter thus appears to affirm the pre-existing practices of BirdDog and Bolin which, as I have said, do not have a connection with 2082/Bolin LLC or the United States. Further, the letter identifies Bolin's address in Shenzhen, and BirdDog's address in Australia. BirdDog's prospectus for listing on the ASX dated 18 November 2021 refers to this letter, stating that "BirdDog Australia entered into a manufacturing agreement with Bolin Technology on 1 January 2021". The prospectus defines Bolin Technology as "Bolin Technology Co Ltd, a company incorporated in China".
54 I note that, in his affidavit at [12], Mr Miall refers to "various oral and written contracts" that BirdDog is said to have entered with what Mr Miall describes as the "Bolin Parties". Mr Miall deposes that the contracts were agreed between June 2021 and May 2023. On Mr Miall's evidence, these contracts were negotiated following several meetings, including in the United States. However, Mr Miall's evidence does not identify the contracts to which he refers, and his affidavit does not annex or exhibit the written contracts to which he refers.
55 Second, the subject matter of the dispute in this proceeding has a significant connection with Australia which does not exist with the United States.
56 The dispute in this proceeding concerns 10 purchase orders that BirdDog issued from Melbourne to Bolin in Shenzhen between October 2020 and July 2023. Each of the disputed purchase orders also do not expressly identify any connection to 2082/Bolin LLC. The disputed purchase orders are on BirdDog letterhead and record the purchaser as "BirdDog Australia Pty Ltd". The address of BirdDog is identified as in Collingwood, Victoria. The purchase orders record BirdDog's email address, website and Australian Business Number. In all but one of the purchase orders, the vendor is identified as "Bolin Technology" and the vendor's address is stated to be in Shenzhen. One purchase order describes the vendor as "Bolin Technology" without identifying the vendor's address.
57 The evidence of Mr Guo, in his affidavit at [37], is that the purchase orders were accepted by Bolin and payment of a deposit was made by BirdDog from its nominated bank account in Australia with the Australia and New Zealand Banking Group Limited to Bolin's nominated bank account in China with the Shanghai Pudong Development Bank Co. There is no evidence of involvement of 2082/Bolin LLC or any person based in the United States in respect of the acceptance and processing of the purchase orders.
58 The evidence is clear that Bolin undertakes research and develops and manufactures the PTZ cameras in China for delivery to BirdDog's nominated shipping address which, in respect of the disputed purchase orders, was an address in Hong Kong. Again, there is no evidence of a connection with the United States nor with 2082/Bolin LLC in this process.
59 Given the above, the subject matter of the dispute has a significant connection with Australia which does not exist with the United States. That connection is in relation to the issuing of the disputed purchase orders by BirdDog from its headquarters in Melbourne, Australia; the acceptance of the purchase order by Bolin in Shenzhen; the forwarding of monies by BirdDog from its nominated bank account in Australia for deposit in Bolin's bank account in China; and the development and manufacture of cameras by Bolin in Shenzhen. These matters point to the subject matter of the proceeding having a significant connection with Australia and not the United States.
60 Third, the events which took place after the dispute between the parties arose reveal a connection between Bolin in Shenzhen and BirdDog in Melbourne.
61 Notably, on 5 September 2023, BirdDog's Chief Financial Officer, Mr Calnon (based in Melbourne), sent an email to Mr Lo and Ms Lee (based in California) and Mr Guo (based in Shenzhen) at Bolin, in which he requested fulfilment of some outstanding purchase orders and the cancellation of other existing purchase orders.
62 Throughout September and October 2023, Mr Daly, an account and logistics executive at BirdDog in Australia, communicated by email with Helen Song, an officer of Bolin located in China, regarding the payment and delivery schedule of the cameras the subject of the purchase orders.
63 Fourth, on the evidence before me, there is a prima facie case that the substantive law of Australia is the lex causae in this proceeding.
64 As I have previously noted, there is limited evidence of any written contracts between the parties. The written agreements to which I was taken - the NDA and the Manufacturing Agreement and Warranty Statement - were contractual arrangements between BirdDog in Australia and Bolin in Shenzhen. This, taken together with evidence of the creation of the 10 purchase orders by BirdDog in Australia issued to Bolin in Shenzhen between October 2020 and July 2023 and the acceptance of the purchase orders by Bolin, followed by the payment by BirdDog of deposits of between 30% and 50% of the purchase price from BirdDog's bank account in Australia to Bolin's bank account in China, provides a prima facie case that Bolin's contract claims are governed by Australian law by reason of the Vienna Convention which has force by reason of s 86 of the Goods Act 1958 (Vic).
65 The Representation was alegedly made by the CEO of BirdDog, Mr Miall, by email from BirdDog's headquarters in Collingwood, Victoria, Australia on 5 September 2023, which confirmed the purchase orders and that BirdDog would not cancel the purchase orders. The Representation provides a prima facie case for Bolin's claims against BirdDog under the ACL for losses sustained by reason of Bolin's reliance on the Representation. The ACL applies because the Representation is alleged to have been made by BirdDog, which are bodies corporate registered in Australia, and which carry on business in Australia. Section 5(1)(g) of the CCA therefore subjects the conduct of BirdDog to the norms imposed in trade and commerce by s 18 of the ACL, wherever that conduct occurs in the world. I am satisfied that a prima facie case exists in Australia against BirdDog under s 18 of the ACL.
66 When determining whether Australia is "a clearly inappropriate forum", "the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration" and "the substantive law of the forum is a very significant factor in the exercise of the Court's discretion": Voth at 566. As stated by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Renault, a "material consideration" is "whether it is fairly arguable that the substantive law of the forum is the lex causae": at [26]. My conclusion that Bolin has established a prima facie case that its claims in this proceeding are governed by Australian law is a significant factor which weighs in favour of holding that Australia is not a "clearly inappropriate forum" for the resolution of the dispute between the parties.
67 Fifth, the entities comprising BirdDog - namely, BirdDog Technology and BirdDog Australia - are Australian companies with a close connection to this Court's jurisdiction. Bolin is entitled to bring this proceeding in Australia to exploit the "legitimate and substantial advantage" of enforcing any judgment against BirdDog in this Court's jurisdiction: Oceanic at 245.
68 Finally, Bolin and BirdDog have each filed expert evidence from former Judges of United States courts as to whether the US Court has jurisdiction to hear and determine Bolin's claim for contravention by BirdDog of s 18 of the ACL.
69 Bolin's expert, Stephen G Larson was a former Judge of the US Court. He opines that the US Court would not have jurisdiction to hear the ACL claim or, if he is wrong about that, the US Court would decline to hear the ACL claim as a matter of discretion.
70 BirdDog relies upon the expert opinion of Alex Kozinski, a former Chief Judge of the United States Court of Appeal for the Ninth Circuit. The US Court falls within the supervisory and appellate jurisdiction of the United States Court of Appeals for the Ninth Circuit. Judge Kozinski opines that the US Court has jurisdiction to hear and determine a claim brought for contravention of s 18 of the ACL in the exercise of diversity jurisdiction or supplementary jurisdiction. Judge Kozinski is also of the opinion that the US Court would permit Bolin to bring its claim for contravention of s 18 of the ACL as a counter-claim. If the claim for contravention of the ACL were brought using diversity jurisdiction, Judge Kozinski is of the opinion that the US Court would be required to hear it. Were it brought using supplementary jurisdiction, Judge Kozinski is of the opinion that the US Court would have a discretion to decline to exercise such jurisdiction but would be highly unlikely to do so.
71 This Court has previously held that a foreign court does not have jurisdiction to apply the ACL: see, for example, Home Ice Cream Pty Ltd v McNabb Technologies LLC (No 2) [2018] FCA 1093 (McNabb) at [5] (Greenwood ACJ). Ultimately, however, this is a question of fact to be determined by the law applicable in the United States. Accordingly, in Karpik v Carnival plc (The Ruby Princess) (Stay Application) [2021] FCA 1082, Stewart J found, on the basis of expert evidence, that the United States District Court for the Central District of California in Los Angeles would have supplemental jurisdiction in respect of ACL claims brought in that proceeding, and that that Court was unlikely to exercise its jurisdiction to decline supplemental jurisdiction: at [326]-[327].
72 I have read and considered the expert opinion of each Judge. I have not, however, had the advantage of each Judge responding to the other's opinion, nor the advantage of cross-examination to test the competing opinions.
73 I note that BirdDog has indicated that in the event this proceeding is stayed, and Bolin wishes to bring all of its claims which are the subject of this proceeding in the US Proceeding, BirdDog would not oppose that course (subject to challenging those claims on the merits). However, Judge Larson and Judge Kosinski agree that US federal courts are courts of limited jurisdiction. It follows that the US Court is bound to consider whether a claim before it, such as the ACL claim, is within jurisdiction, and must decline to decide a case that is not within jurisdiction, whether or not BirdDog objects on jurisdictional grounds.
74 In circumstances where there are competing expert opinions on this issue, I find that there is a real risk that Bolin may not be able to bring its claims under s 18 of the ACL as a counterclaim in the US Proceeding because the US Court does not have jurisdiction to hear Bolin's ACL claim, or the US Court will decline to hear that claim as a matter of discretion.
75 In Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (in liq) (2003) 254 ALR 29 at [293]-[294], Jacobson J held that, if there was a "significant risk" that this Court was the only forum in which a cause of action agitated before the Court could be fully and properly entertained, this Court "cannot be a clearly inappropriate forum". I have found that there is a real risk that the US Court does not have jurisdiction to hear Bolin's ACL claim, or the US Court will decline to hear that claim as a matter of discretion. Although I have not found that this risk is significant, the existence of the risk weighs heavily against a conclusion that this Court is a "clearly inappropriate forum" for the hearing and determination of this proceeding.