Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd

REASONS FOR JUDGMENT 1 As a result of earlier directions in respect of the conduct of these proceedings, the Sunland parties have brought on today an application for the adjournment of the trial of the proceedings. The trial is presently fixed to commence on Monday, 18 October 2010, and to continue then for a further two weeks, concluding on 29 October 2010. 2 The occasion for hearing that application has, it seems, also inspired the bringing of an application on the part of the fourth respondent, Mr Joyce. 3 Mr Joyce's application, which I have permitted to be returned today, is that he have leave to use in Dubai penal case number 2130 of 2009 in the United Arab Emirates, the documents which are specified in schedule A to his notice of motion filed 2 September 2010. His further application is that the Sunland parties produce in an unredacted form two particular documents identified by their discovery number in his application as SUN003.005.0013 and SUN003.005.0014 (Documents 0013 and 0014). 4 These reasons for judgment must necessarily be read in conjunction with earlier interlocutory reasons for judgment which I have delivered. In those, the general background of the case is described. I do not intend to repeat what I have earlier stated in respect of that background, save insofar as it is necessary to highlight particular matters of history. 5 It is also necessary though to supplement that history with some further developments. Of particular note in that regard is a communication of today's date to the registrar of the court from the central office of the Commonwealth Attorney-General's Department, which records the latest position in respect of dealings as between the Australian Embassy in Abu Dhabi and the authorities of the Emirates in Dubai in relation to the question as to whether the Emirates would permit me to take evidence on commission in Dubai for the purposes of these proceedings. I have at an earlier stage in the proceedings indicated, unsurprisingly perhaps, that the attitude of the authorities in the Emirates would be influential to say the least in relation to the adoption of that course. 6 The advice received is in these terms and reflects a meeting between an official of the Australian Embassy and the Acting Attorney-General of Dubai and the head of the technical bureau at the Dubai Prosecutor's Office: UAE authorities will not permit an Australian Federal Court judge to travel to Dubai for the purpose of taking evidence from two Australian witnesses presently before the Dubai civil and criminal courts. Pending the ratification of the bilateral Extradition and Mutual Legal Assistance treaties, all requests for mutual legal assistance, including requests for video conferencing, must be submitted through the UAE Ministry of Foreign Affairs. Each request will be considered on a case by case basis. Any mutual legal assistance that the UAE provides must be consistent with the UAE Federal Law on International Judicial Cooperation in Criminal Matters, which was enacted in 2006, and without prejudice to any international Extradition or mutual legal assistance agreements to which the UAE was a party. All requests would be considered on 'the condition of reciprocity'. The (UAE) courts are not equipped with these (video conferencing) facilities but... video conferencing had been used on one occasion before the enactment of the Federal Law. Australia could submit a request for video conferencing, but the details of this were not elaborated upon (for example regarding costs). The Acting General Attorney asked whether the taking of evidence could wait until after the proceedings against the Australians and depending on the outcome of the proceedings. He suggested that we provide him with the names of the Australians so that the Dubai Prosecutor's Office could assess the likely length of the proceedings. 7 The further commentary made by the central office of the Commonwealth Attorney-General's Department in respect of that communication, and for the assistance of the court and the parties was this: Based upon this information, it is necessary for the Federal Court to make a formal request for assistance through the diplomatic channel for evidence to be taken from these witnesses. Further enquiries about the likely length of proceedings can be obtained if the names of the witnesses are provided to Dubai authorities which may assist the Federal Court in reaching a decision in regards of the taking of evidence for Australian proceedings. 8 There are, with respect, some opaque and, perhaps, Delphic qualities to this advice which may well reflect the number of hands through which communications have necessarily passed. Such matters of opaqueness were the subject of appropriate highlighting in the submissions of the parties both for and against the adjournment application. 9 What is tolerably clear, though, is that it is unlikely, to say the least, that it would be possible at all for evidence to be taken on commission in Dubai either during the course of the dates presently fixed for the trial of the proceeding or, for that matter, in December this year, which was an alternative time previously highlighted by me to the parties as available to meet the contingency of a need after hearing evidence from Australian witnesses to adjourn to take evidence on commission in Dubai. 10 Quite when the criminal proceeding in Dubai might conclude is a matter of some conjecture, on the evidence read today. It is not necessary and, indeed, may well be impossible to reach any view as to which of the likely periods for the conclusion of the proceedings is the more accurate. On one view, though, the Dubai criminal proceeding may not conclude until June of next year. That is based on the view of an Australian expatriate lawyer who is presently observing the proceeding for one of the parties to the proceeding in this court. There are other views afoot which are, perhaps, more optimistic. 11 The evidence, though, also discloses that, under the law of the Emirates, even were Mr Joyce to be acquitted, in the exercise of original jurisdiction, is possible for the prosecution to appeal against that verdict. It seems, on the evidence, that such an appeal would only be upheld if the appeal court were of the unanimous view that the acquittal should be overturned. Nonetheless, the evidence further discloses that, as a matter of practice, Mr Joyce would be required to remain in the Emirates pending the hearing and determination of the appeal. That particular contingency underscores why it is unnecessary to be concerned about the divergence evidence about the likely length of proceedings in the original jurisdiction. That is because there is the contingency of an appeal which would elongate the requirement for Mr Joyce to remain in the Emirates. 12 Mr Joyce's presence there carries with it the desirability of taking evidence on commission so as to have the advantage of seeing his evidence given personally rather than through the rather more detached mechanism of a video link. His personal attendance to give evidence also carries with it the advantage of a more ready facility to have documents shown to him, including those which might be presented opportunistically in the course of a cross-examination. It is not always easy to predict in advance precisely which documents ought to be in a bundle which is prepositioned for use in a video link alternative. 13 There are varying estimates, as provided by the parties, as to whether it would be possible within the two weeks set aside and given what is now known about the evidentiary case of each of the parties to hear all of the Australian witnesses. Again, it is not necessary to reach any conclusion as to which is unwarranted in terms of optimism or pessimism as to the likelihood of concluding what one might term Australian evidence in the time available. At the very least, what would remain would be the reception of evidence from Mr Joyce and also from a Mr Lee (who is also unable to leave Dubai). Necessarily, that carries with it, then, the prospect of an adjournment of the trial at the conclusion of the Australian evidence at the behest, one might expect, of Mr Joyce. 14 In effect, what the Sunland parties have done is to anticipate what is, however one approaches it, a need to adjourn the trial and to face up to that prospect before the trial commences, rather than at some stage during the course of the time set aside presently for its hearing. 15 The Sunland parties point particularly to an advantage which accrues by facing the prospect of adjournment now rather than after hearing some evidence. The advantage they particularly highlight is, at least insofar as human predictive abilities can take one, either eliminating or at least reducing the possibility of a part heard trial and a part heard trial which may be part heard over an interval of some months. By some months, having regard to what I know of commitments into the new year, those some months would be in the order at least of five to six months. Even then, a consideration which would arise is, should the case further wait its final hearing and determination if Mr Joyce and Mr Lee remain in Dubai. 16 I had much put before me in evidence as to earlier positions which particular parties had taken in the course of interlocutory proceedings vis-ŕ-vis the setting of the case down for trial. To delve into those, though, is to delve into decisions that were made against a background which is but a matter of ancient history in the course of the proceeding. To say the least, life has moved on. I therefore do not place any particular weight at all as to whether one side or the other at some earlier stage was either bullish or not about the case being set down for trial as it came to be for the dates mentioned. None of that can alter the situation which faces both the court and the parties as matters stand at present. 17 The Sunland parties at an early stage of proceedings made no secret of the fact that they proposed to continue to assist the authorities in Dubai in relation to the proceedings that are before the courts of the Emirates. 18 Mr Joyce for his part, I am quite sure, sees some advantage at the moment in being able to test by cross-examination evidence in the course of the trial in this proceeding and then to make some use of evidence publicly given here in his defence in the criminal proceedings in Dubai. I do not see that particular understandable desire on Mr Joyce's part as a reason for visiting all of the parties and me with the very considerable disadvantage of an avoidable part heard trial. 19 Observations have been made at both intermediate and ultimate appellate level in respect of the disadvantage of a lengthy reserved judgment in relation to adjudication in cases involving matters of credibility of witnesses. I consider it undesirable willingly to commence a trial which would necessarily carry with it that type of difficulty. That in itself seems to me to provide a compelling and decisive reason why it is that the trial of the proceeding must be adjourned. In making that statement, I am fully conscious of the investment that the Australian public make in the provision of judicial resources for the resolution of disputes and that one should not lightly adjourn a trial which has been fixed for some months. In the end, what is required in relation to an adjournment is the making of a value judgment as to where the interests of justice lie. 20 Here, the Sunland parties have prosecuted their application with all due despatch. It might be said that there was a contingency always present, in light of the coexistence of a proceeding in a foreign place and witnesses detained for the purposes of that proceeding in that foreign place, that just what has occurred would inevitably come to pass. There is though a considerable element of hindsight in regarding what has occurred as inevitable. That is particularly so given the lead time, in excess of six months, between when trial dates were fixed and the trial dates themselves. It is not possible for a court in Australia to dictate the pace with which the justice system in another country approaches matters. Indeed, to presume so to do would be a serious affront to the sovereignty and dignity of a foreign country. 21 There was raised a question as to whether it might be useful to fix fresh trial dates now, so at least as to give a particular focus to a request made in some more formal way than the formal way already adopted for the reception, at least by video link, of Mr Joyce's and Mr Lee's evidence. The uncertainty though that presently attends by when the Dubai criminal proceeding might be concluded makes me more than reluctant to fix any new dates now. Rather what I propose to do is to adjourn the trial to a date to be fixed. I further propose to fix a date for directions and review in December this year. At that time and on the then state of the evidence, I shall make a decision as to whether and when to list the case. That listing will, if at all possible, be in the New Year. 22 In the meantime, the parties having signified, in light of the communication from the central office of Attorney-General's from which I have quoted, that they would wish Mr Joyce's evidence to be received by video link if such agreement can be secured from the Dubai authorities (even accepting disadvantages of the kind I've highlighted in the reception of evidence by that manner) and that a further request be made through diplomatic channels for permission to receive evidence from those gentlemen in that fashion. Hopefully, a request will be answered in a way that permits, in December, a meaningful fixing of trial dates. Insofar as there is any need to give any focus to such a request in terms of Australian court proceedings that December review date will provide such a focus.

Release from implied use undertaking 23 I turn then to the question of whether there should be any release in the way sought in the application made by Mr Joyce from the implied undertaking to which he is presently subject, in respect of the material identified in schedule A to his application. The existence of such an implied undertaking was confirmed in Home Office v Harman [1983] 1 AC 280. In short, the effect of that is that documents obtained by a party by discovery are subject as a matter of law, to an implied undertaking which prevents the use of those documents for any purpose other than the conduct of the proceeding in which the documents were discovered, save with the permission of the court in which those proceedings are extant. 24 In this court, there is some modification of the pervasiveness of the undertaking that was described in Home Office v Harman, as a result of the presence of O 15 r 18 of the Federal Court Rules. That provides that an order or undertaking, whether express or implied not to use a document for any purpose other than those for the proceedings in which its disclosed, shall cease to apply to such a document after it has been read to or by the court or referred to in open court in such terms as to disclose its contents unless the court otherwise orders on the application of a party or of a person to whom the document belongs. None of the documents that appear in schedule A to Mr Joyce's application fall within the terms of O 15 r 18. 25 There is no dispute between the parties as to the principle which should be applied in relation to the question as to whether Mr Joyce should be released from the implied undertaking in respect of the documents referred to in schedule A. That particular principle is nowhere better expressed than in a judgment of Wilcox J, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. The effect of his Honour's judgment in that case is that a release from the implied undertaking should be granted if special circumstances exist so as to warrant the grant of leave. 26 Such a special circumstance will be found in some special feature of a case which affords a reason for modifying or releasing the undertaking of confidentiality and which is not usually present. In that case, his Honour deliberately and, with respect, prudently did not seek to set any limit on what may or may not constitute special circumstances. That particular view of the basis upon which an undertaking ought to be released was endorsed by a Full Court of this court in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283. 27 This subject has been dealt with in a commendably thorough way in the article by Groves M, "The Implied Undertaking Restricting the Use of Material Obtained During Legal Proceedings" (2003) 23 Australian Bar Review 314. In the course of that review, Mr Groves makes reference to the question of foreign proceedings as special circumstances at p 331. He there offers the following opinion: There is no authority to suggest that the proposed use of material in foreign proceedings will constitute special circumstances, but the law and procedure of foreign jurisdictions may be relevant to the exercise of the court's discretion. Other jurisdictions may not, for example, have procedures for discovery or other processes for the compulsory production of documents. 28 Mr Groves then makes reference to an English case, Halcon International Inc v Shell Transport and Trading Co [1979] RPC 97. Regard to that case confirms the accuracy of the following observation which Mr Groves makes concerning that case and its relevance in relation to the question of foreign proceedings as special circumstances for the purpose of a release from the implied undertaking: The parties to that case were involved in parallel proceedings for a patent in Holland. Halcon sought release from the implied undertaking so that it could use material obtained from Shell by discovery in England in its appeal in Holland. Evidence before the court suggested that Dutch law did not allow for discovery or any similar procedure and that the Dutch appellate court would only consider material if it was filed and made available for public inspection. The [English] Court of Appeal held that it would be unfair if material that was disclosed for a limited purpose in one jurisdiction could then be made available to the public in another. The court was clearly mindful that release from the implied undertaking would enable Halcon to enjoy an advantage that it could not gain directly under Dutch law. If considerations of fairness between the parties are relevant to the operation of the implied undertaking, it seems appropriate that the law and procedure of a jurisdiction should be relevant to determine an application for release from the undertaking. More particularly, release from the implied undertaking should not be granted if it would provide a procedural benefit or tactical advantage to only one party. 29 There is merit in the observation made by Mr Groves in respect of what to make of the Halcon International case in relation to the release from undertaking question. One has to be careful though in relation to special circumstances cases of not elevating particular examples into matters of the application one way or the other of the discretion into matters of principle. For that reason, there is a very limited utility indeed in other cases. 30 The parties themselves contented with submissions based on the general principle as described by Wilcox J and then sought to draw one way or the other particular features from the evidence in this case as to how the discretion should be exercised. 31 The position here is one where an Australian faces a criminal proceeding in a foreign country. That criminal proceeding has not been brought by the Sunland parties. It would be quite wrong to assimilate them with the prosecuting authority in Dubai. It is fair to say, and the Sunland parties do not gainsay this, that evidence has been provided by them to the prosecuting authority in Dubai. 32 The evidence as to the nature of the practice and procedure in Dubai was dealt with in part by evidence read today and also by that which is necessarily within my knowledge from evidence earlier read and for the purpose of earlier interlocutory proceedings. That evidence establishes that the criminal procedure in Dubai is akin to that in civil law countries. In other words, it is inquisitorial in character. 33 It appears that there is some ability for an accused person, not only to be represented but also with the permission of the court to examine or cross-examine witnesses before the Court. That ability though is not to be assimilated with the same ability that an accused before an Australian criminal court has to cross-examine. 34 It is unsurprising that Mr Joyce would wish to make whatever use he thought might suit his particular interest in the Dubai criminal proceeding of that which has come into his possession as a result of the processes of this court for the purposes of this proceeding. Further, his interests are quite different to those of the Sunland parties. He, after all, is the person facing a criminal charge, restricted presently from leaving the Emirates as a result of that criminal charge having been brought and in jeopardy, it seems, in the event of conviction, of the loss of his liberty and related incarceration in Dubai. 35 It strikes me as rather odd if, given that the Sunland parties have been assisting the authorities in Dubai with their inquiries, contemporaneous or transactional documents relating both to the Dubai criminal proceeding and this proceeding but discovered in this proceeding, were not available to Mr Joyce for use in his defence in the Dubai proceeding. It would seem, after all, to be a necessary corollary of the Sunland parties' disposition to assist the authorities in Dubai that there should be no selective assistance by the Sunland parties to the authorities in terms of the provision of what I have termed contemporaneous or transactional documents. It does not follow from this that all of that which is sought by Mr Joyce in schedule A ought to be the subject of any release from the implied undertaking. 36 At present I have two documents to which I have referred before me, by way of example, from the schedule A documents, Documents 0013 and 0014. These record a meeting on 17 May 2009 and another meeting on 31 May 2009 between Mr Brown (who has featured in earlier interlocutory judgments) and an official of the Dubai Court of Public Prosecutor. At present, these have been discovered in a redacted form. It is apparent from Mr Coogan's evidence read today that the redaction is not on the basis of any privilege known to Australian law but rather on the basis of relevance. I had occasion in an earlier interlocutory judgment to voice the view that redaction on the basis of relevance was not a practice to be encouraged in the absence of some prior agreement between parties or prior approval of the court. In so doing I expressed agreement with sentiments earlier expressed by Selway J. That said, there is something of a voyeuristic interest in Mr Joyce's request for release from the undertaking in respect of each of these documents. Particularly that is so when it is accompanied by a request that the documents be produced in unredacted form. I use the term "voyeuristic" because they reflect, each of them, the views of Mr Brown based on dealings which are not contemporaneous to the transaction, the subject either of this proceeding or for that matter, it seems, the Dubai criminal proceeding. 37 Mr Coogan deposes to, on information and belief based on the views of an Australian resident lawyer in Dubai to an apprehension as to damage to Sunland's particular commercial interests in the event of the provision of this material. He further deposes, again, based on similar source material to a difficulty that presently attends the Sunland parties in fully ascertaining the degree of that risk because the Muslim Ramadan festival with all its attendant and appropriate, according to the religion of that country, hiatus in public administration and business affairs. Even so, it seems to me that this type of memorandum, which seems to have been disclosed in part out of an abundance of caution in terms of relevance, ought not be the subject of any release from an implied undertaking. 38 I have a quite different view in relation to accounts firsthand of witnesses as to events which have become the subject of statements or affidavits filed in the proceeding or, for that matter, what I have described as contemporaneous or transactional documents. 39 Even taking into account Mr Coogan's statement that the statements concerned might have been cast differently, had this application been known to be in prospect, it seems to me that a witness either gives an account which is descriptive of an event or does not. It may or may not be accompanied by particular explanatory detail according to the contingency mentioned, but the account concerned, if it is a truthful account, should not vary. 40 I have not as yet been taken to each and every of the documents that are set out in annexure A. Of course, if need be I shall consider each of them and rule upon them separately in the way that I have ruled in respect of Documents 0013 and 0014. 41 However, it does seem desirable that the parties at least be given an opportunity in light of the disposition which I have signified as to the way in which the special circumstances discretion ought be exercised to reach some agreed position in respect of the balance of the documents which comprise annexure A. For that reason, what I propose to do is to stand over for further consideration the application made by Mr Joyce with liberty to him or to the other parties, particularly the Sunland parties, to relist that in the event of there being some inability to reach agreement about the fate of a particular document in annexure A. If there is agreement then that can be the subject of an order which carries into effect the particular view that I have expressed. 42 For the avoidance of doubt, that view is that the phenomenon in this case of a foreign criminal proceeding, inquisitorial in nature, where the Sunland parties are both applicant in this proceeding and a party avowedly on their own account actively assisting the authorities in Dubai, coupled with Mr Joyce's need to defend that foreign criminal proceeding are such as to give rise to the requisite special circumstance necessary to release him from the implied undertaking in respect of such transactional or contemporaneous documents or statements or affidavits which comprise that part of annexe A to his application (save and except Documents 0013 and 0014, upon which I have expressly declined to release him from the undertaking). 43 It follows from my declining to release him from the undertaking that part of the imperative for the other remaining issue today, which is the provision of unredacted copies of those two documents, necessarily abates. Having considered Mr Coogan's explanation in his affidavit in respect of the remaining content of each of those memorandums and whilst I am not, as I have indicated, at all in favour of redaction for relevance, I can see that had the Sunland parties applied in advance to redact for relevance each of those documents that I would have been disposed to uphold that redaction on the basis that it was, even though and unfortunate mixing of matters relevant to this case and not relevant, nonetheless not in the interests of justice, to unmask those other parts of those memorandum. 44 I shall provide by direction for the provision of a further request to the authorities in the Emirate for evidence from Mr Joyce and Mr Lee to be taken by video link and for the parties to have an opportunity to comment upon such a request before it is sent off to Attorney General's department by the Court for transmission through diplomatic channels to Dubai. 45 I shall adjourn the case to 10.15am on 16 December 2010 for directions and also for review in relation to the question of fixing alternative trial dates. 46 The costs of each of the applications heard today will be costs in the proceedings. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

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Judgment (12 paragraphs)

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Cases Cited (2)

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