Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 195 of 2009

AND: PRUDENTIA INVESTMENTS PTY LTD ACN 091 390 742

JUDGE: LOGAN J DATE: 3 NOVEMBER 2011 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 As will be evident from earlier interlocutory judgments, the principal proceeding has a substantial history. Pertinent in relation to that history for present purposes is the situation in which Mr Joyce has found and continues to find himself. That is that he is not at liberty to leave the United Arab Emirates pending the hearing and determination of criminal proceedings which he faces in that place. 2 There has been and, on the evidence before me, there remains a contingency that Mr Joyce may be imprisoned as a consequence of those proceedings. Quite when that contingency might first occur has been the subject of evidence at various interlocutory hearings and has reflected the progress of the criminal proceedings in Dubai. At present, the evidence is that the hearing which was expected to have occurred on 30 October 2011 did not then occur, but rather, the case was adjourned until 27 November 2011. Mr Qadora, Mr Joyce's lawyer in Dubai, now states that the adjourned hearing on 27 November 2011 might bring with it a refusal on the part of the judge in that place to allow Mr Joyce to call further witnesses. In that event, Mr Qadora's view is that the judge would then regard the case as one reserved for judgment with a likelihood that judgment would be given in early January 2012. That judgment may, if adverse to Mr Joyce, entail his imprisonment. 3 A Full Court of this Court has decided that it is appropriate for Mr Joyce's evidence to be received by video: see Joyce v Sunland Waterfront (BVI) Ltd (2011) 281 ALR 54. A sequel to the Full Court's judgment has been an endeavour by the Chief Justice on two occasions, at my request, to see whether it was possible for another judge of this Court to try the case at a time earlier than the earliest possible trial dates which I, as docket judge, could offer. Those trial dates are for three weeks on 12 March 2012. Unfortunately, it has twice not proved possible for earlier trial dates than those which I have mentioned to be offered by this Court. 4 What has motivated those endeavours, as earlier interlocutory judgments disclose, is the contingency of Mr Joyce's imprisonment, and the impact which that would have on the ability to do justice between the parties in this proceeding. Mr Joyce is not just a necessary witness but a party, and a party against whom serious allegations have been made by the Sunland parties. 5 After the result of the last endeavour to secure earlier dates for trial in this Court was made known to the parties, those acting for Mr Joyce took the initiative of canvassing with the Chief Justice of Supreme Court of Victoria whether a judge of that court might be available to hear the case earlier than that which has been able to be offered by this Court. As it happens, the result of that communication with the Victoria Chief Justice is a response on Her Honour's behalf by an associate justice, whom I assume fulfils a role similar to that of practice master in other courts, advising that a judge of the Supreme Court of Victoria is available to hear a trial of this proceeding for two to three weeks commencing on 28 November 2011. That has prompted, on the part of Mr Joyce, an application for the proceeding to be cross-vested to the Supreme Court of Victoria. The other respondents, whom I have earlier termed the Prudentia parties, support that application. 6 The touchstone for deciding whether or not to make an order cross-vesting the proceeding is whether such an order is in the interests of justice. If it is, then the court is obliged to make a cross-vesting order: see BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at [14] and [44]. 7 The riposte on the part of the Sunland parties to the cross-vesting application is a renewal of an application earlier rebuffed by me, which is that there ought to be a splitting of the trial in this Court, such that Mr Joyce's evidence is received by video link in December 2011 with the balance of the trial occurring on the dates already allocated in March 2012. Assuming for the moment in favour of the Sunland parties, and it is a considerable assumption, that such an application is competent in the face of earlier refusal, the position remains that it would visit upon me as trial judge and the respondents an interposition of an essential witness out of order. Further, so far as Mr Joyce is concerned, it would also put him in the position of having to give evidence prior to the closure of the Sunland parties' case. That may intrude upon such rights, if any, as he has to make a no case submission, although that position could doubtless be cured by consent between the parties. What could not be cured, though, apart from the reception of the evidence out of order, is the lag which would occur necessarily between seeing and hearing that witness, and the balance of the witnesses in this case. That is, to say the least, undesirable in a case where so much depends upon issues of credit. It is even more undesirable when there exists an alternative which on the evidence before me would see a trial conducted with Mr Joyce's evidence being received in the usual way after the close of the Sunland parties' case, or if worse comes to worst, at least during a continuous trial period. 8 Mr Joyce's situation is obviously relevant to where the interests of justice lie in relation to the cross-vesting application. It is not the only consideration. There are other relevant considerations which arise from the change of venue which would be entailed in the making of a cross-vesting order. These include visiting upon the Sunland parties additional costs associated with the conduct of the trial in Victoria as opposed to Queensland. These costs are not confined to those associated with legal representation, but do include the costs of bringing some witnesses from Queensland to Victoria. As against that, though, there are savings to the respondents which have a corresponding quality both in terms of savings in relation to legal representation, as well as in terms of witness travel expenses. I bear in mind as well that another respondent, Mr Reed, is a resident of Victoria. 9 The case is one which involves the application of legislation of national application namely, the Trade Practices Act 1974 (Cth), as known at the time of the cause of action here, together with the common law of Australia and, it must also be noted, an asserted cause of action arising not under Queensland, but rather, Victorian fair trading legislation. Whilst there is an Australian connection, as there must be for jurisdictional purposes, it is not a connection which is uniquely a Queensland connection. The land concerned lies in the United Arab Emirates, and the law of that place is said to be relevant to the determination of the issues. Where evidence concerning the law of that place is received is neutral as between Queensland and Victoria. The case is not one where there was any abuse of process at all in its institution in Queensland. 10 I remind myself, that questions relating to forum non conveniens issues ought not to intrude upon cross-vesting applications: see Bankinvest AG v Seabrook (1988) 14 NSWLR 711. 11 On earlier interlocutory applications, I have been informed that it would take some three weeks for counsel to read into this case were it to be that a change of venue to another registry of this Court would occur. That seemed at the time to be a reasonable estimate, and it is difficult to see that any different estimate would be appropriate if the venue were the Supreme Court of Victoria rather than, for example, this Court in its Victorian registry. It is, of course, a relevant consideration that a change of venue might necessitate a change of counsel. 12 There is an opportunity cost which one might apprehend would intrude in relation to the replacement of a counsel who has had a longstanding familiarity with the case with another. That cost, though, is one which ought to be able to be recovered in the context of any taxation if events prove favourable for the Sunland parties. For present purposes, it is enough for me that the time between when this application was first communicated to the Sunland parties, and for that matter, today, when compared with the start of the trial, is such that it is by no means impossible for replacement counsel to read into the case. 13 Mr Joyce is not the only overseas witness; two in particular have been singled out in evidence read on behalf of the Sunland parties. It might be first observed of these that what the Full Court has stated with respect to the reception of video link evidence from Mr Joyce is equally apt in relation to the reception of evidence by video link from these witnesses. One of them has aptly been described as peripheral; but the other, Ms Clyde-Smith, could not be so regarded. In neither case, though, is it impossible for relevant documents necessary for the cross-examination of these witnesses over video link to be pre-positioned. So much is envisaged, in any event, for Mr Joyce. Ms Clyde-Smith was recently delivered of a child. Her pregnancy was a relevant consideration on earlier occasions. That event has occurred. There is some evidence of an ambivalence on her part in relation to further participation in these proceedings. Any such ambivalence is one which, as I read the evidence, is applicable either to a trial in December or March. It is not, of course, possible for her to be compelled to give evidence, either in Dubai or, for that matter, in Australia. There are no treaty relations which intrude which would allow for such compulsion. It is for the Sunland parties, as it always has been, to produce such witnesses as are required for cross-examination. That would be the case whether the trial was to occur earlier than March in this Court or, relevantly, in the Supreme Court of Victoria, as it would if the trial proceeds in this Court in March before me. 14 Weighing all of these considerations, I am left with the proposition that there is a judge in a court of competent jurisdiction able to hear this case as early as 28 November 2011. A trial that far ahead will not visit upon the Sunland parties, in my view, any injustice. If a trial does not occur then, there is a contingency that it will visit upon Mr Joyce a very real injustice. It will further visit upon the Sunland parties and the Prudentia parties the very real prospect that the proceedings will have to be stayed. That means, amongst other things, that the Sunland parties will not be able to prove, as they assert they can, the claim which they make within any reasonably proximate time to the events concerned, if ever at all. The Full Court of this Court plainly envisaged that a trial ought to occur as soon as possible. 15 In my view, the interests of justice admit of only one outcome in respect of this application for cross-vesting. That is that the proceedings must be cross-vested to the Supreme Court of Victoria. It is a feature, in my opinion, of the cross-vesting scheme that each of the parliaments which enacted legislation envisaged that no consideration of jurisdictional partiality ought to intrude upon where cases covered by the cross-vesting scheme should occur. In particular, in my view, there should be no sentiment adverse to this application that it will entail the proceeding passing from this Court to a State Supreme Court. Each court has concurrent jurisdiction in relation to the claims which are made. The parliaments plainly intended that Australian judicial resources be regarded as one for the purposes of the cross-vesting scheme, and I so regard them in relation to this application. There will be orders accordingly. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.