Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd

JUDGE: LOGAN J DATE: 24 AUGUST 2011 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 As a sequel to the reasons for judgment published by the Full Court and the orders of the Full Court last Friday (Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95), I brought this matter back for mention as soon as conveniently possible. Upon that occurring, an application was made on behalf of the Sunland parties for the evidence of Mr Joyce to be taken in advance of the case-in-chief of the Sunland parties and that of Prudentia, Hanley and Mr Reed (collectively, the Prudentia Parties). The background to that emerges from affidavits which were read today and what one might term a "worst case scenario". That scenario is that the criminal proceedings in Dubai are next and, it seems, finally due for consideration before the courts there on 27 September 2011. The evidence then is that, according to the usual practice of the courts in that place, a decision might be expected within some two weeks thereafter. The worse case scenario, of course, is that that decision may be adverse to Mr Joyce and see him incarcerated with all of the impact that would have on his freedom readily to give evidence by video link or otherwise in this proceeding. 2 It was prompted by that, and what one could only term a "Hobson's choice", that Sunland made its application. That application was not supported either by Mr Joyce himself or by the Prudentia parties for reasons which are, unsurprisingly, to do with the ordinary course of progression of a trial and the ordinary order in which one might expect the evidence of various witnesses to be heard. That is not to say they were not conscious of the impact of the contingency looming in Dubai or, for that matter, that other positions had been taken on other occasions. Rather, their way of attempting to deal with the contingency was to submit that a trial should occur commencing on 12 September 2011. That would then, as best one might apprehend, see Mr Joyce's evidence able to be taken in the ordinary course of events of the trial or at least certainly after Sunland's case in chief had closed. 3 It is not possible for me to accommodate a trial of some three weeks, which is the estimate, starting on 12 September 2011. It is just possible, albeit with difficulty, to set aside 26 and 27 September 2011 to commence this trial, out of order as it were, by reception then only of evidence by video link from Mr Joyce. The earliest trial dates for a trial of three weeks I could offer now are in March 2012. That is because of pre-existing trial and appeal commitments which run up to the end of the usual court sitting period in December in conjunction with, thereafter, appeal duty commitments for February 2012. 4 However I look at the case, there is no easy choice to be made. 5 Another factor which is to be taken into account is that it was the intent of the Full Court that the Department of Foreign Affairs and Trade be given notice of their orders and reasons for judgment. That has occurred and the District Registrar has been informed, to date only orally, of a desire on the part of that department for a whole-of-government view to be reached, which necessarily requires, having regard to portfolio responsibilities for the Hague Convention and countries which are not party to those, consultation also with the Attorney-General's Department by the Foreign Affairs and Trade Department. The Full Court, otherwise in its reasons for judgment, seems not to have regarded the views of a foreign state as relevant, but has, for reasons not wholly, with respect, apparent from those reasons for judgment, nonetheless conceived it desirable to have a copy of their reasons for judgment drawn to the attention of the Foreign Affairs and Trade Department. I do not see that the potential for an intervention by the executive government ought to delay what would otherwise be the progress of this case. 6 What I propose to do is to make a submission to the List Judge in accordance with the ordinary practice of the Court, to see whether it would be possible for another judge to hear this case. Unfortunately, though, if that is not possible, the case is one which will have to be set down for trial, again in accordance with the practice of the Court, according to when the docket judge, ie me, can hear it. So what I propose to do, therefore, is to list the case for trial when I could hear it, but to make that listing subject to further or other order. 7 Whilst I have the conduct of the case, I am not disposed to order the separate reception of Mr Joyce's evidence by video link. That is a very difficult decision to make, and there are certainly factors which tend in favour of it associated with contingencies which may come to pass in Dubai. Unfortunately, though, even allowing for the possibility of a recording of the video link evidence, what remains is the potential for a break of anything up to six months between hearing that man's evidence and otherwise hearing the evidence in this case. I do not consider that that would be a procedurally fair way of going about the conduct of a trial involving allegations which I have described as tantamount to fraud. 8 The application, then, for the reception in advance of Mr Joyce's evidence by video link is refused. I propose, as I have indicated, to list the case for trial when I can hear it, subject to other orders which may come to be made. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.