Wong v Star Entertainment Qld Limited [2021] QCA 277

SUPREME COURT OF QUEENSLAND

CITATION: Wong v Star Entertainment Qld Limited [2021] QCA 277

PARTIES: YEW CHOY WONG / (appellant) / v / STAR ENTERTAINMENT QLD LIMITED / ACN 010 741 045 / (respondent)

FILE NO/S: Appeal No 4758 of 2021 / SC No 1909 of 2020

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane - [2021] QSC 67 (Bradley J)

DELIVERED ON: 10 December 2021

DELIVERED AT: Brisbane

HEARING DATE: 8 September 2021

JUDGES: Morrison and McMurdo JJA and Boddice J

ORDER: The appeal is dismissed with costs.

CATCHWORDS: PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – ATTEMPTS TO RELITIGATE – where the respondent is seeking damages against the appellant – where the appellant is a resident of Singapore – where the respondent commenced proceedings against the appellant in Queensland and Singapore – where the respondent discontinued the Queensland proceedings before the appellant filed a defence – where the Singaporean proceedings were dismissed on a procedural ground – where the respondent recommenced proceedings in Queensland – where the appellant sought to have the proceeding summarily dismissed, or permanently stayed – where the primary judge dismissed the appellant’s application – whether the primary judge erred in finding that the present proceeding was not an abuse of process / Uniform Civil Procedure Rules 1999 (Qld), r 127(2)(c) / Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27, cited / Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48, cited / Re Treadtel International Pty Ltd (2014) 104 ACSR 1; [2014] NSWSC 1406, cited / Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28, cited / UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, distinguished

COUNSEL: P L O'Shea QC, with C A Johnstone, for the appellant / J D McKenna QC, with F Y Lubett, for the respondent

SOLICITORS: Russells for the appellant / King & Wood Mallesons for the respondent

1. MORRISON JA: I have read the reasons of McMurdo JA and agree with those reasons and the order his Honour proposes.

2. McMURDO JA: The appellant, Dr Wong, is a resident of Singapore. In 2018, he travelled to the Gold Coast, where he stayed and gambled at the respondent’s casino. He attended the casino as a participant in what is called, under part 8, division 2 of the Casino Control Act 1982 (Qld), a special junket agreement.¹

3. Dr Wong held an account with the respondent (Star) from which he could purchase gaming chips. He requested from Star a cheque cashing facility, to allow him to cash cheques with Star to the extent of $40 million. Star agreed to provide the facility, on terms which were recorded in a written agreement (the facility agreement). A few days later, the limit of this facility was increased, by agreement, to $50 million. Dr Wong provided two cheques drawn in Singapore dollars on a Singapore branch of the Oversea-Chinese Banking Corporation, Limited, amounting to the equivalent of $50 million, and that amount was credited to his account with Star. By a week or so later, he had lost most of that sum, such that on Star’s case, he then owed Star $43,209,853.34.

4. A year earlier, Dr Wong had travelled to Australia and gambled at a casino in Sydney which was operated by a company related to Star. On that trip, he had provided a blank cheque, signed by him but left undated and blank as to the payee and the amount. By a term of the facility agreement made with Star in 2018, it was agreed that if Dr Wong provided “a replacement cheque” to Star with the amount and date incomplete, Star was authorised to complete that cheque in an amount equal to what was outstanding under the facility agreement and to date the cheque. In reliance upon that provision, Star dated and completed the cheque, by inserting the amount of SGD45,145,654.64² and the date of 7 September 2018, and its name as the payee. Star deposited the cheque for payment into its account with the National Australia Bank. By this time, Dr Wong had taken action which resulted in the cheque being dishonoured.

5. In this proceeding, commenced in 2020, Star claims $43,209,853.22 as damages for breach of the facility agreement, or alternatively, as damages pursuant to s 76 of the Cheques Act 1986 (Cth). Dr Wong applied to have the proceeding summarily dismissed, or permanently stayed, upon several grounds, including that the proceeding was an abuse of process, because it was the third proceeding brought against him by Star upon the same causes of action. In the judgment under appeal, Bradley J dismissed Dr Wong’s application.

The other proceedings between the parties

6. On 30 January 2019, Star filed a claim and statement of claim in the Trial Division which claimed the same amount as is claimed in the present case. The same causes of actions were pleaded, together with a further case that Dr Wong had falsely represented that the cheque would be met on presentation.

7. On 1 February 2019, Star commenced a proceeding against Dr Wong in the High Court of Singapore, claiming the same amount and on the same bases.

8. Dr Wong responded to each of those proceedings on 27 February 2019. He filed a conditional notice of intention to defend the Queensland proceeding, disputing the jurisdiction of the Court to entertain Star’s claim without his consent, and contending that the proceeding was irregular because the claim and statement of claim had not been properly served, and that the proceeding was an abuse of the Court’s process because, at the same time, Star had commenced the Singapore proceeding. Dr Wong filed a defence in the Singapore proceeding, contesting the merits of the claim.

9. On 12 March 2019, Star discontinued the Queensland proceeding.

10. On 24 April 2019, Star applied for summary judgment in the Singapore proceeding. Before that application was heard, on 17 May 2019 Dr Wong amended his defence to plead that the action was not maintainable by reason of s 5(2) of the Civil Law Act (Cap 43, 1999 Rev Ed) of Singapore, which provides as follows:

“No action shall be brought or maintained in the court for recovering any sum of money or valuable thing alleged to be won upon any wager or which has been deposited in the hands of any person to abide the event on which any wager has been made.”

He also filed a cross-application seeking orders that Star’s claim be struck out on the basis that it disclosed no cause of action, or alternatively was a scandalous, frivolous or vexatious claim and an abuse of process, by reason of s 5(2).

11. On 22 August 2019, a judge of the Singapore International Commercial Court struck out the claim, for the reason that it could not succeed consistently with s 5(2), and it could thereby be characterised as vexatious and an abuse of the process of that court.⁴ It was held, applying a decision of the Singapore Court of Appeal, that s 5(2) was a procedural provision which fell to be applied by Singapore courts as part of the law of the forum.⁵ There was no consideration of the merits of Star’s claim.

12. From this summary, it can be seen that Star did commence simultaneous actions against Dr Wong, claiming effectively the same relief. That remained the position for about six weeks before the Queensland proceeding was discontinued, when it had gone no further than the service, or purported service, of the claim and statement of claim, and the conditional notice of intention to defend filed by Dr Wong. Notably, the Queensland proceeding was discontinued about two weeks after Dr Wong filed his original defence in the Singapore proceeding, which did not include the plea in reliance upon s 5(2) of the Singapore statute.

13. In neither of these earlier cases was there any consideration of the merits. In each, Dr Wong resisted Star’s case being heard on the merits.

Steps in the present proceeding

14. Star commenced the present proceeding on 19 February 2020.

15. On 17 August 2020, Dr Wong filed a conditional notice of intention to defend, again disputing the Court’s jurisdiction and contending that the proceeding had not been properly served and that it was an abuse of process.

16. On 31 August 2020, Dr Wong applied, under Uniform Civil Procedure Rules r 127(2)(c), for dismissal of the proceeding, or alternatively for a stay, on the ground that the claim had insufficient prospects of success. As his case was argued before Bradley J, there were two bases for the orders which he sought. The first was that the prosecution of the proceeding was barred by a res judicata or cause of action estoppel, arising from the dismissal of the Singapore proceeding. The second was that this case was an abuse of the Court’s process. Each argument was rejected and it is only the second which is advanced in this appeal.

The reasons of the primary judge

17. The judge began by quoting this passage from the judgment of the plurality in Tomlinson v Ramsey Food Processing Pty Ltd:⁶

“Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.”

(Citations omitted.)

18. His Honour cited the statement in the joint judgment in Batistatos v Roads and Traffic Authority (NSW),⁷ that “[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories”. He referred to Michael Wilson & Partners Ltd v Nicholls⁸ as a case where the High Court recognised that an abuse of process would exist by the institution and prosecution of proceedings against a party in a second forum, where there are proceedings against that party pending in another forum, “if it would be unjustifiably oppressive to the party that is named as defendant in both forums”.⁹

19. He agreed with the analysis and conclusions of Brereton J (as he then was) in Re Treadtel International Pty Ltd,¹⁰ that it is “not prima facie vexatious to bring parallel proceedings with respect to the same matter in different countries”¹¹ and that:

“…it is well-established that the maintenance of parallel litigation in a foreign jurisdiction is not vexatious or oppressive if it offers remedies or advantages not available in the domestic forum.”¹²

20. His Honour said that the Star’s decisions to commence and prosecute the Singapore case, as it did, “may have been ill-advised, but … had a logical explanation.”¹³ He said that there were clear advantages of litigating the claim in Singapore: Dr Wong lived and had real property there, whereas he had no real property in Australia and Dr Wong had “engaged with the Singapore proceedings”, where he did not plead s 5(2) in his original defence.¹⁴ His Honour noted that senior counsel for Star who appeared in the Singapore proceeding considered it open to argue that s 5(2) “did not apply to contracts for gambling in state-licensed casinos”, and that “[i]t was only after that argument failed that Star commenced this present proceeding.”¹⁵

21. The judge discussed the arguments for Dr Wong that the present proceeding was a use of the Court’s procedures which was unjustifiably oppressive to him and that it would bring the administration of justice into disrepute.

22. As to that first argument, his Honour noted that Dr Wong offered no evidence of any specific burden, prejudice, damage, trouble or harassment which would come from the present proceeding.¹⁶ His Honour acknowledged to the greater burden which would fall upon Dr Wong, as a litigant living outside Australia. However his Honour considered that the case pleaded against Dr Wong was “a relatively straight-forward claim”, and noted that it was a term of the facility agreement that Dr Wong had agreed to submit to the jurisdiction of Queensland Courts.¹⁷ His Honour was unpersuaded that allowing this proceeding to continue would result in Dr Wong incurring “a serious and unfair burden, prejudice or damage or cause him any serious and unjustified trouble or harassment in defending himself.”¹⁸

23. As to the other argument, namely that the continuation of this proceeding would bring the administration of justice into disrepute, the judge said that it was put in two different ways. The first was that Star’s conduct was “out of keeping with the modern conduct of litigation”.¹⁹ As to that, the judge noted that the present proceeding was commenced within 18 months of the dishonour of the cheque and said that there had not been undue delay. His Honour said that although “the overall conduct of Star might appear erratic”, on a closer examination, it could be explained. The second was that the Star had engaged in “forum shopping” which should not be sanctioned. His Honour rejected that characterisation of Star’s conduct.

“There is no evidence of Star causing delay, undue expense or injustice by tactical manoeuvring or of Star attempting to manipulate Dr Wong or the courts by commencing proceedings in Singapore and Queensland. No part of Star’s claim was withheld from the Singapore proceedings with a view to later pursuing it in this court or another. The whole of its claim was pursued in each forum. As noted, Dr Wong will have to plead a defence to the substance of Star’s claim for a second time. This is because none of the issues Star raises was determined in the Singapore proceeding, as a result of Dr Wong’s successful cross-application there.”

The submissions for Dr Wong in this Court

25. For Dr Wong, it is again argued that Star’s conduct has occasioned unjustifiable oppression to him, and that it has brought the administration of justice into disrepute.

26. On that first ground, it is submitted that the primary judge erred by focusing only on the claim in the present proceeding, rather than on Star’s conduct across the three proceedings. It is submitted that the judge’s analysis in this respect appears to have been premised upon a proposition that a plaintiff has a “prima facie entitlement” to simultaneously commence proceedings in two jurisdictions, and then to commence a third proceeding. That proposition was advanced by Star, in its argument to the primary judge.

27. The argument for Dr Wong is that in this case, as in UBS AG v Tyne, it is the fact that he is again forced to confront the same allegations in a different proceeding, in circumstances where Star chose to discontinue and proceed elsewhere, which constitutes the vexation inherent in Star’s conduct.²⁵ It is submitted that this is a case where Star engaged in a “staged conduct”²⁶ of litigation using this Court’s processes “to hedge its bets”.

28. As to whether Star has brought the administration of justice into disrepute, it is argued that the Star’s conduct, taken as a whole, was inconsistent with what is to be expected in the modern conduct of litigation.²⁷ A further submission for Dr Wong is that there is some significance in what is said to be the absence of evidence from Star explaining the decision making, by which it has now brought three proceedings. That submission, which was given particular emphasis in the oral argument for Dr Wong, was apparently to the effect that this Court should draw adverse inferences against Star, from which it would more readily conclude that Star’s conduct was wrongly motivated. Counsel for the appellant conceded that the primary judge had not been asked to draw such an inference, but contended that this Court should do so. In particular, there was a suggested inference that when Star discontinued the first proceeding in Queensland, Star thought to itself “this is an abuse of process – we had better stop it”. Another suggested inference was that Star knew of s 5(2) of the Civil Law Act of Singapore, but “decided to try its hand in Singapore anyway”. Counsel stopped short of seeking an inference that the Singapore proceeding was prosecuted without a belief that it could succeed.

29. Ultimately, it was submitted for Dr Wong that if the present proceeding was allowed to be prosecuted, a right-thinking person would perceive the administration of civil justice to be inefficient, careless about the incurrence of cost by parties, and profligate in the application of public monies.

Consideration

30. As to whether there was unjustifiable oppression in this case, it is true that the primary judge’s focus was upon the burden for Dr Wong in defending the present proceeding. But it cannot be supposed that the judge was unmindful of the history of the litigation, involving all three proceedings. It is evident that the judge focussed upon the present proceeding with regard to what the previous proceedings had required of Dr Wong.

31. In the previous Queensland proceeding, Dr Wong had done no more than file a conditional appearance. In the proceeding in Singapore, he had pleaded his case as to the merits of Star’s claim, before adding the procedural plea on which he succeeded in having that proceeding summarily dismissed. There is no reason to suppose that his pleaded response to the merits of Star’s claim would be any different in the present case than that which he pleaded in Singapore.

32. The primary judge was correct in distinguishing this case from UBS AG v Tyne, where Kiefel CJ, Bell and Keane JJ described the unjustifiable oppression as:

“… found not only in the significant delay in the resolution of the dispute and the inevitability of increased costs to UBS [but also] …the vexation of being required to deal again with claims which should have been resolved in the SCNSW proceedings.”²⁹

and added that:

“On the final determination of the SCNSW proceedings, it was reasonable for UBS to order its affairs upon the understanding that the dispute between it and Mr Tyne, and the entities that he controlled, arising out of those dealings was at an end.”³⁰

33. In the present case, Dr Wong should not have considered that his dispute with Star was at an end once the Singapore proceeding was dismissed. It is no longer argued that by a res judicata or cause of action estoppel, Star was prevented from prosecuting its claim. The judgment in the Singapore proceeding made it clear that it was only by the procedural defence, available to Dr Wong in that forum, that the case was dismissed.

34. There was no error by the primary judge in rejecting the argument of unjustifiable oppression. His Honour was correct to conclude that the burden upon Dr Wong, which the judge did consider in the context of the history of the litigation, was not so great as to constitute unjustifiable oppression.

35. The argument that Star has brought the administration of justice into disrepute cannot be accepted. The judge did not misunderstand the authorities, or the procedural rules,³¹ in emphasising the “public interest in the timely and efficient administration of civil justice”.³²

36. As to the inferences which this Court was asked to draw about Star’s strategy in this litigation, this Court should not interfere with the primary judge’s determination upon inferences which his Honour was not asked to draw. And there was no error by the judge in identifying the explanation of Star’s conduct, as his Honour discussed at [72]-[74] of the Judgment.³³

37. His Honour observed that Star’s decisions to sue, seek summary judgment and continue to a hearing in Singapore may have been ill-advised. Accepting that to be so, it falls far short of conduct by which the administration of justice was brought into disrepute, and nor should the present proceeding be characterised in that way.

38. What is clear is that Star has endeavoured throughout to prosecute its claim to a determination on the merits. In hindsight, the Singapore proceeding could be said to have caused an unfortunate delay in the ultimate resolution of this dispute. But that level of criticism falls far short of a conclusion that Star’s conduct would serve to bring the administration of justice into disrepute.

39. The ultimate judgment to be made here is normative.³⁴ In my conclusion, the judge was correct to hold that this proceeding was not an abuse of process and to dismiss Dr Wong’s application.

Order

40. I would order that the appeal be dismissed with costs.

41. BODDICE J: I agree with McMurdo JA.

Footnotes

1. See s 85D. ↩

2. The then equivalent of what Star said was owing. ↩

3. The Star Entertainment Qld Limited v Yew Choy Wong [2021] QSC 67 (Judgment). ↩

4. The Star Entertainment Qld Limited v. Yew Choy Wong [2020] SGHC (1) 15. ↩

5. [2020] SGHC (1) 15 at [37], citing Star City Pty Ltd v Tan Hung Woon [2002] 1 SLR(R) 306. ↩

6. [2015] HCA 28, (2015) 256 CLR 507 at 518 [25] per French CJ, Bell, Gageler and Keane JJ, cited in Judgment at [67]. ↩

7. [2006] HCA 27, (2006) 226 CLR 256 at 265 [9] per Gleeson CJ, Gummow, Hayne and Crennan JJ, cited in Judgment at [68]. ↩

8. [2011] HCA 48, (2011) 244 CLR 427. ↩

9. [2011] HCA 48; (2011) 244 CLR 427 at [90] per Gummow ACJ, Hayne, Crennan and Bell JJ, cited in Judgment at [69]. ↩

10. (2014) 104 ACSR 1; [2014] NSWSC 1406. ↩

11. (2014) 104 ACSR at [19], cited in Judgment at [71]. ↩

12. (2014) 104 ACSR 1 at [23] cited in Judgment at [71]. ↩