The Proceeding in this Court
11 On 29 November 2019, the applicant commenced a proceeding by originating application in this Court in which he sought relief setting aside the final award and costs against MCC. That relief was said to be sought under Art 34 of the Model Law which deals with recourse against an arbitral award. Article 34(2) of the Model Law sets out various limited grounds on which an arbitral award may be set aside at its seat.
12 Subject to other provisions of Pt III of the IAA, s 16(1) of the IAA gives the Model Law the force of law in Australia. In terms of Art 1(1) of the Model Law, it applies to international commercial arbitration. An arbitration is international if the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states (i.e. countries) (Art 1(3)). It is common ground that the Model Law applies in this case - the applicant relies on it to set aside the award and MCC relies on it to summarily dismiss the set aside application.
13 The originating application recorded that the applicant's solicitor on record was Mr Tony Soubris of Soubris & Associates Lawyers in Hurstville, Sydney. The significance of this will shortly become apparent.
14 In the applicant's affidavit filed in support of the originating application he identified numerous grounds to the application to set aside the award. They cover a wider range of matters including such things as error of law and errors in assessing the evidence. Few of the grounds, if made out on the facts, would qualify as grounds to set aside an award under Art 34(2) of the Model Law.
15 After having commenced the proceeding, the applicant did not apply for leave to serve the originating process on MCC. Further, he did not serve the originating process on MCC.
16 MCC first learnt of the applicant's originating application in this Court on 16 December 2019 when the applicant served a copy of the originating application in the Indian proceeding. There was a call over listed in the High Court in Delhi on 18 December 2019. The originating application in this Court was filed in the High Court in Delhi just in time for that call over. I infer that that was for the purpose of opposing or perhaps delaying or staying that proceeding.
17 As it happens, the matter was not called on 18 December 2019 in Delhi because the judge allocated to hear the case was ill. The matter was relisted in the High Court of Delhi for 24 February 2020. As will be seen, that date has some significance.
18 Also on 16 December 2019, my Associate emailed Mr Soubris suggesting that the matter be listed for a first case management hearing on 6 February 2020. It was anticipated at that time that the applicant would in the meanwhile do whatever was required to serve the application, if it had not already been served, and to notify the respondents of the date for the first case management hearing.
19 On the same day, Mr Soubris replied to my Associate asking that the matter be listed for 20 February 2020 or thereafter to suit his convenience. That email was copied to the applicant at the Sanya Builders email address which had the consequence, as will be seen, that subsequent correspondence to and from my Associate was also sent to that address.
20 On 17 December 2019, Mr Greg Willis, a solicitor and a director of MCC, wrote by email to Mr Soubris pointing out that the originating application had not been served and that it was out of time because of the three month time limit provided for in Art 34(3) of the Model Law. Mr Willis also set out details of the occasions on which he contended that the applicant had received the final award which commenced the running of time, such that the originating application was filed well outside the three months allowed.
21 By email on 17 December 2019, my Associate emailed Mr Soubris (copied to the Sanya Builders email address) notifying that the matter was listed for a case management hearing on 20 February 2020. At that stage, no respondent had entered an appearance.
22 Given that the notice to Mr Soubris, who was unambiguously on record for the applicant at that time, was also copied directly to the applicant, the applicant can be taken to have known from 17 December 2019 that the matter was listed for a hearing on 20 February 2020, i.e. the applicant was given more than two months' notice of the hearing.
23 On 9 January 2020, Mr Willis on behalf of MCC filed a notice of address for service in accordance with the rules, as well as the interlocutory application referred to above (at [1]) and a supporting affidavit.
24 In that regard, Art 34(3) of the Model Law, on which the interlocutory application was said to be based provides as follows:
An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under article 33, from the date on which that request had been disposed of by the arbitral tribunal.
25 No request had been made under Art 33 so the reference to that provision in Art 34(3) is not relevant for present purposes.
26 On 6 February 2020, Mr Soubris filed a notice of intention of ceasing to act for the applicant. The notice was in accordance with Form 7 of the Federal Court Rules 2011 (Cth) (FCR). It stated that after seven days from the date of service of the notice, Mr Soubris would file in the registry a notice that he had ceased to act as the applicant's lawyer in the proceeding and that the applicant must, within five days after that notice, file in the registry a notice of address for service.
27 Rule 4.05(1) of the FCR requires the notice to be served on the party who the lawyer represents, and r 4.05(2) requires the party to file a new notice of address for service within five days of the lawyer's notice being filed. I infer that Mr Soubris served the notice on the applicant as he was required to do by the rule, because that is what he was required to do and because, as will be seen, the applicant did not later say that Mr Soubris had not served the notice on him.
28 On the hearing of the adjournment application, Mr Willis tendered an email dated 8 February 2020 as evidence that on that day he served on Mr Soubris the interlocutory application, MCC's genuine steps statement, MCC's notice of address for service, the supporting affidavit, and an outline of submissions in support of the interlocutory application. The submissions had been filed on that day.
29 The email stated that the documents that were attached were "stamped copies", by which I infer that they were the copies that had been issued by the Court and that bore the stamp of the Court. The copy of the interlocutory application that was served on Mr Soubris therefore included the Court's "notice of filing and hearing" form bearing the Court's stamp and the signature of the Registrar. That form gave notice that the interlocutory application was listed for hearing on 20 February 2020 at 9:30am.
30 It is thus apparent that at a time when Mr Soubris was still on record for the applicant - even before the expiry of the minimum period of seven days provided for in r 4.05(1)(b) - he received notice of the interlocutory application being listed for 20 February 2020. The applicant was thus given proper notice of that listing. In that regard, r 17.01(2) of the FCR requires that a party be given at least three days' notice of an interlocutory application. Here the applicant was given 12 days' notice. That was over and above the more than two months' notice that he had in any event been given of the first case management hearing for the same date and time.
31 On 12 February 2020, my Associate sent an email to the parties requesting them to confer with regard to appropriate orders to be made on 20 February 2020. The email was sent to the applicant's Sanya Builders email address.
32 On 13 February 2020, Mr Willis wrote to my Associate copying the applicant (at the Sanya Builders email address) and Mr Soubris asking that the interlocutory application be determined on 20 February 2020 on account of the fact that the matter would next be before the High Court of Delhi on 24 February 2020. Plainly, Mr Willis hoped that the originating application could be dismissed before the matter was called in Delhi on 24 February so that the fact of a pending application to set aside the award could not be relied on to delay or stay the Indian proceeding.
33 Mr Willis gave evidence on affidavit that in India litigation moves at "glacial speed" and it is not uncommon for a straightforward case to take up to 12 years before a judgment is given. He was clearly seeking to minimise the opportunities for further delay in the Indian proceeding. I infer that if the originating application in this Court remained on foot on 24 February 2020 when the Indian proceeding was called, there was a real risk that the Indian proceeding would be significantly delayed. Such delay would cause MCC significant prejudice.
34 On 19 February 2020 soon after 9:00am, my Associate emailed the parties (including Mr Soubris and the applicant at the Sanya Builders email address) advising that it was the Court's intention that the interlocutory application would be heard on 20 February 2020. This email in effect served to confirm the notification of the listing for that day that had been given to Mr Soubris by Mr Willis on 8 February 2020.
35 The email also pointed out that Mr Soubris had not yet withdrawn as solicitor for the applicant because he had not filed a notice of ceasing to act in accordance with Form 8, notwithstanding the passage of seven days since him having filed his notice of intention to withdraw.
36 Later that day, Mr Soubris filed his notice of ceasing to act.
37 Shortly before 6:00am on 20 February 2020, my Associate's inbox received an email from Kapil Kher, the applicant's advocate and solicitor in the Indian proceeding. The email was in the applicant's name in which he requested an adjournment of the hearing on 20 February 2020 to a date at the end of April or in early May 2020. In summary, the applicant's grounds were as follows:
(1) that on account of some misunderstandings on the quantum of fees chargeable by Mr Soubris he had ceased to act on 19 February 2020;
(2) the applicant is resident in India and unable to represent himself on 20 February 2020 "because of distance and travel times between the two countries" and it will not be possible for him to appear at the hearing;
(3) the applicant's father had died in the month of January 2020 in respect of which the applicant has to perform certain rituals and will not be able to travel to Sydney for at least a month to attend a hearing and to engage the services of another lawyer.
38 When the matter was called on 20 February 2020, a person identifying himself as Mr Vivek Sharma, the nephew of the applicant, appeared on behalf of the applicant. Mr V Sharma is not a lawyer and has no rights of appearance in the Court. Mr Willis, who appeared for MCC, did not object to Mr V Sharma's appearance and I therefore gave him leave to address the Court on the applicant's behalf.
39 Mr V Sharma referred to the email from the applicant cited above and requested on behalf of the applicant that the matter be adjourned for the period of time indicated in the email. Mr V Sharma did not raise any new grounds for the adjournment.
40 Notably, in neither the email nor in Mr V Sharma's address to the Court was it contended that the applicant had not had ample notice of the interlocutory application being listed for 20 February, or that Mr Soubris's withdrawal had taken the applicant by surprise. He had had notice of the listing from 17 December 2020 and of Mr Soubris's intended withdrawal from at least 6 February 2020.