Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd

REASONS FOR JUDGMENT 1 This case has a considerable history as the earlier interlocutory judgments and, for that matter, that of the Full Court (as to the latter see Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95) reveal. It has twice been set down for trial in the past. On the first occasion, a trial was fixed to commence on 18 October 2010. The then estimate for trial length was two weeks. On 7 September 2010, for reasons which I gave that day, that trial was vacated (see Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 6) [2010] FCA 1009). I shall not repeat what was there stated. Suffice it to say, then, as now, the setting down for trial of this matter has been complicated by the enforced presence of Mr Joyce in the United Arab Emirates to answer criminal charges in that place arising out of circumstances that overlap with the factual allegations which are the subject of the proceedings in this Court. 2 Circumstances concerning the disposition of the government of the UAE to permit the taking of evidence on commission there have changed over time. At a time when the disposition of that government was favourable, which has not always been the case, fresh trial dates were fixed which would have allowed the trial to have been completed in August this year. The disposition of the government there changed and changed not long before that fresh trial period was due to be embarked upon. The view I took was that had the consequence that a fair trial could not be afforded. As it happened, the Full Court reached a differing view. That, though, was after the August trial dates had already been vacated. Thereafter, a very particular endeavour indeed was made to secure, if need be by a judge other than me as docket judge, a trial of this proceeding which would have been completed prior to what was thought to be at the time a "worst case scenario" in relation to Mr Joyce's circumstances. 3 As things stood at that time, in terms of my own commitments, it was not possible for me then to undertake a trial which would have accommodated that scenario. Nor, notwithstanding very particular endeavours in accordance with a request I made of the Chief Justice, was it possible for another judge to be found to hear the trial at a time which would have seen its completion by mid-October. 4 Mr Joyce has brought an application today under liberty to apply seeking again an earlier hearing date than the date which I had fixed, subject to further earlier order, for a third attempt at the trial of this proceeding. 5 At the moment, the case is fixed for trial commencing on Monday, 12 March 2012. That is the earliest date on which I, as docket judge, can commence a trial of three weeks' duration. The only new fact which emerges from the evidence read on behalf of Mr Joyce is a fact concerning a possible course in which proceedings in the criminal courts of Dubai might take, as disclosed in a letter from his lawyer in that place, Mr Omar Qadora of Al Shaali & Co., advocates and legal consultants of Dubai. In his letter of 19 October 2011 to Mr McRobert of Mr Joyce's Australian solicitors, Mr Qadora states, amongst other things: At the hearing on 27 September 2011, we intend to ask the judge to allow Matthew [Mr Joyce] to call fresh evidence from further witnesses in his defence. The judge has a discretion whether to allow our request. The judge is unlikely to rule on our request on 27 September 2011. Instead, he is likely to adjourn the case to consider his decision. There are a number of possible decisions that could be made by the judge. The likely outcome is one of the following: (1) The judge might deny our request and deliver his verdict in a case against Matthew. If the judge does this, then the only hearing after 27 September 2011 will be when the judge delivers his verdict. (2) The judge might allow our request. If so, further hearing dates will be set for us to call the additional witnesses. (3) The judge might decide that there are certain aspects of the prosecution case on which the judge needs to hear further evidence from the prosecution. It is difficult to accurately estimate when the judge will deliver his decision. The length of time it will take the judge may depend on what he decides to do with our request for additional witnesses. If the judge denies our request for additional witnesses then I expect he will deliver his verdict in the case against Matthew some time after first of October. If the judge agrees to our request then there would be some additional hearings in the case. I expect that the hearing of all evidence would finish around the end of November 2011 and the judge would then adjourn the case to consider his judgment. If Matthew is found guilty then he can appeal. He can request bail while his appeal is pending. It is possible that Matthew could be granted bail but I cannot be sure because it is within the judge's discretion whether or not to grant bail to Matthew. If Matthew is found not guilty then it is possible for the prosecution to appeal. If that were to happen, then it is likely that Matthew would be granted bail pending the appeal by the prosecution. 6 When the case was last before me, an affidavit of Ms Carter was read. Ms Carter is the sole in-house legal counsel of what one might term the Sunland parties, based in Dubai. She has been monitoring herself the state of proceedings in the criminal court in Dubai relying in particular for that purpose, because she is not Arabic-speaking, on a Mr Bin Haider and his staff for assistance. Mr Bin Haider is a lawyer in Dubai whose firm has been retained to act on Sunland's behalf in relation to the criminal proceedings in Dubai. Based on information from Mr Bin Haider and her belief as to its truth, Ms Carter deposed on 23 August 2011 as to the events of the then most recent hearing date in Dubai in the criminal proceedings. 7 At that time, she was informed by Mr Bin Haider that: (a) after the hearing on 27 September 2011, all the prosecution's witnesses would be finished; (b) on 27 September 2011, the accused, including the fourth respondent, Mr Joyce, will be required to commence their defence. Her understanding, based on her conversations with Mr Bin Haider and her earlier involvement in those Dubai criminal proceedings, was that this might involve the submission of documents or memoranda to the court there; (c) that accused's defence may also involve the oral examination of other witnesses, including the accused; however, whether or not that occurs will depend on the approach taken by the accused and also by the judge. Her understanding was that the judge can decide who is called to give evidence; (d) the defence will proceed in the same way that the Dubai proceedings have proceeded to date, namely, there will be one hearing approximately each day; (e) after the defence submits their case, then the Dubai proceedings will proceed to judgment. Ms Carter was informed by Mr Bin Haider and expressed her belief in that information that those proceedings were likely to continue for many months, with Mr Bin Haider's estimate being that the period of time from 23 August until delivery of judgment in the Dubai proceedings could be between six months to one year. 8 The new information relates to the possibility that, if Mr Joyce is permitted to give evidence or to lead evidence in the defence of the criminal proceedings, the application might be refused or at least not permitted on his part, as opposed to perhaps other defendants being permitted to give evidence. In any event, what remains is a contingency that Mr Joyce might be faced with a verdict perhaps by mid-October or perhaps by some time in November. 9 The differences, such as they are, between the contents of the letter from Mr Qadora and the information from Mr Bin Haider, seem to me to be differences in terms of particular scenarios that might occur rather than any fundamental difference as to the procedures in the courts in Dubai. There are truly many different scenarios which are at large. 10 Understandably enough, the greater precision in information which now underpins Mr Joyce's Australian lawyer's understanding of the position in Dubai has prompted the application for earlier hearing dates than those presently fixed to be renewed. The difficulty, though, about that is that there are many considerations which are at large. One of them, and undoubtedly an important one, is the contingency that Mr Joyce may not be at liberty, quite literally, in a little over a fortnight. 11 The obligation is to give justice to all of the parties to the case and to do so in a way which is procedurally fair. 12 The application made on behalf of Mr Joyce is supported by the Prudentia parties, although they would face a difficulty in terms of being ready for trial in the week starting 17 October and for three weeks thereafter. The Sunland parties too would have difficulty in that regard. 13 In a case such as this, which has a particular history as well as a range of factual evidence which includes matters of foreign law, it is a relevant factor to take into account that an earlier trial date than that presently fixed, especially one which would see a trial starting on 17 October, would entail necessarily a late change in counsel representing the Sunland parties. 14 That aside, there are other matters which intrude arising from other commitments to which I am subject in terms of cases, including cases in the appellate jurisdiction which have about them an urgency in their own right in terms of delivery of judgment. 15 Quite apart from the availability of counsel, one also has to consider the availability of witnesses apart from Mr Joyce. There is no doubt that the applicants have diligently prosecuted the application. Nor do I doubt, in light of that, that they would make every effort, as they have by their counsel submitted, to cooperate in the bringing on of a case earlier. For all that, though, there are both Australian and international witnesses whose evidence is to be taken in this case, apart from Mr Joyce. 16 On the evidence to hand, it seems to me that the Court has already made such effort as possible, having regard to all of those who call on the exercise of its jurisdiction, to offer a trial date at a time which would accommodate what I have termed the worst case scenario. On the evidence for Mr Joyce, which I have now, there are a number of different scenarios which may come to pass. Some of those, it must be said, would not be well served, in terms of the ability to offer a fair hearing, by a trial which commenced on 12 March 2012; others, though, most certainly would be. I refer, in that regard, to the differing possibilities as to the length of time within which judgment in the Dubai criminal court might be given. 17 Whilst, as before, I am not unwilling to approach the Chief Justice again to see whether, in accordance with the overall administration of the Court, it might be possible for another judge to hear this case earlier than I can, it seems to me that such an endeavour is not warranted, on the evidence to hand. There are just too many scenarios and too many other interests, both in respect of other parties to this case as well as other litigants in this Court, to take into account. It is not in any way to be critical of Mr Joyce for renewing his application. It is just that there is a balancing exercise to undertake which does not admit of any easy or entirely satisfactory answer. 18 But a decision must be made and that decision is that at the moment I am not persuaded that the interests as justice as such that, taking into account not just Mr Joyce's interest or even, for that matter, the interests of the other parties in this proceeding but also those of other litigants in this Court, a case is made out for an earlier trial date than that presently fixed. The difficulty about leaving the matter just on the basis that if dates become available the parties will be told, is the very considerable need in this matter, given the number and range of witnesses here and abroad, to give certainty to many lives, not just that of Mr Joyce, insofar as that is possible. 19 Another suggestion which was put forward was to stand out of the appeal list in November. That truly would be a very difficult task indeed, not just for me but for any other judge of this Court, for a trial of three weeks, given the very particular programming which occurs in relation to the composition of appeal benches and the commitment which necessarily follows then to discharge the appellate jurisdiction of this Court. 20 For these reasons, the application for an earlier listing than that presently allocated is refused. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.