FEDERAL COURT OF AUSTRALIA

Transpacific Pty Ltd v Prudential Retirement and Annuity Company [2011] FCAFC 160

THE COURT ORDERS THAT:

1.     Leave to appeal from the orders made by Stone J on 19 October 2011 be refused with costs.

2.    The Interlocutory Applications filed on 7 November 2011 and 25 November 2011 be referred to the docket judge.

3.    Costs of those Interlocutory Applications be reserved to the docket judge.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACOBSON J

1    I agree that leave to appeal should be refused and I agree with the orders proposed by Justice Robertson for the reasons stated by him.

Associate:

Dated:    16 December 2011

REASONS FOR JUDGMENT

YATES J

2    I agree with the reasons and orders proposed by Robertson J.

Associate:

Dated:         16 December 2011

REASONS FOR JUDGMENT

Robertson J

3    Before the Court are, on the part of Transpacific Pty Ltd (“Transpacific”), the applicant, an amended application for leave to appeal dated 27 October 2011 and interlocutory applications filed on 7 November 2011 and 25 November 2011 (“the Interlocutory Applications”). There is also a proposed notice of cross-appeal on the part of the first respondent.

4    The application for leave to appeal arises from orders made by Stone J on 19 October 2011 at the conclusion of a successful application on behalf of Transpacific, contested by the first respondent, to vacate the dates for hearing for a trial set down to commence on that day. Those orders were interlocutory. The major issue on the application for leave to appeal before this Full Court was the order made by Stone J dissolving an interlocutory injunction.

5    The orders made by Stone J which were contentious before this Full Court were:

…

2.    The applicant, Transpacific Pty Ltd, pay the first respondent’s costs thrown away by vacation of the hearing on an indemnity basis.

…

4.    The applicant to provide a list naming all witnesses upon whose evidence, including expert evidence, the applicant seeks to rely by 17 November 2011 after which date no variation to that list may be made.

5.    Should the applicant fail to provide the list in order 4 by 17 November 2011 the proceeding stands dismissed.

6.    All evidence, including expert evidence, of the applicant to be filed and served by 16 December after which time no further evidence may be filed by the applicant without the leave of the Court.

7.    Any evidence in reply to be filed and served by the first respondent by 31 January 2011.

…

9.    The injunctions made by order 1 on 14 February 2011, as varied on 9 June 2011, and order 5 of 14 February 2011 be dissolved.

6    Her Honour gave reasons for her decision on 26 October 2011 and those reasons state that on 17 March 2011 the proceedings were listed for final hearing for five days commencing on 19 October 2011. On 11 October 2011 an application by Transpacific to vacate the hearing dates was foreshadowed, principally in light of a change of solicitors and consequent difficulties in obtaining Transpacific’s files from that company’s previous solicitors. By interlocutory application filed on 14 October 2011, five days before the scheduled commencement of the hearing, Transpacific formally sought orders that the hearing dates be vacated. That application was listed for hearing on 19 October 2011. It was opposed.

7    In relation to the interlocutory injunction, on 14 February 2011 the Court, by consent and without admissions, had made orders restraining both parties from dealing with the single aircraft the subject of the litigation and restraining the first respondent from taking steps to deal with the aircraft. Also on 14 February 2011 the matter was listed for final hearing over two days commencing on 4 April 2011. On 17 March 2011 that listing was vacated, in part because the parties could not be prepared for a final hearing by that date but also because it was agreed that a five day hearing was required. In those circumstances the matter was relisted for a final hearing for five days commencing on 19 October 2011. I note that in June 2011 the injunction had been varied but nothing turns on that.

8    Transpacific was unable to meet a number of dates fixed for filing its evidence. Those dates were 3 March 2011, 24 March 2011, 28 July 2011 and 8 September 2011. The last date was fixed by order made on 30 August 2011 and provided that after that date Transpacific could file no further evidence without the leave of the Court.

9    Another matter noted by Stone J, quite apart from the difficulties occasioned by the change of solicitors and the briefing of counsel, was that as at 19 October 2011 no relevant expert on the law of New York had been retained by Transpacific. Her Honour observed that the then solicitor for Transpacific said that he had been aware of the issue of New York law from the outset of the proceedings.

10    I note two further matters.

11    First, the first respondent argued before Stone J, in opposing the application to vacate the hearing date, that it would be considerably prejudiced by delay in the hearing as the terms of the injunction prevented it from selling the aircraft and minimising its loss.

12    Second, the legal representative for Transpacific said that he was looking for dates for final hearing towards the end of February 2012.

13    I turn then to the issues before the Court.

14    In relation to indemnity costs, in my view, there is no sufficient doubt about the correctness of Stone J’s order that Transpacific pay the first respondent’s costs thrown away by a vacation of the hearing on an indemnity basis and further there is nothing to take the case out of the ordinary within the principles discussed in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 and referred to by the Full Court in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261. I do not accept the submission that there was an error of principle because the trial could not have gone ahead anyway. Also, in any event, it is not evident to me that the trial could not have proceeded. It was Transpacific which said it was not ready to go on. I would refuse leave to appeal in respect of that order.

15    In the same vein, there is no error warranting the grant of leave to appeal in relation to directions concerning the filing of evidence, whether in reply or otherwise. Those are matters pre-eminently for the docket judge to decide and no appellate interference with those interlocutory orders in relation to practice and procedure is warranted. For example, the order that there be no further evidence filed by Transpacific is expressly subject to the leave of the Court.

16    As to the guillotine orders made by Stone J on 19 October 2011, being orders 4 and 5 which I have set out above, this Court was told that a list was provided in accordance with those orders by 17 November 2011. In my view the real complaint is that part of the order which says that no variation to that list may be made. However, no application to vary the list has been determined by the docket judge and I see no reason to intervene in respect of that matter. I would refuse leave to appeal in respect of that order.

17    Turning next to the interlocutory applications filed on 7 November 2011 and 25 November 2011, each of the matters there sought to be agitated are matters of practice and procedure, including timetabling, pre-trial directions and discovery, which it is inappropriate for a Full Court to become involved with in relation to a proceeding where a final hearing date is now yet to be fixed. Similarly, in relation to the interlocutory application filed on 25 November 2011, a Full Court is not the appropriate forum for a first instance determination of whether or not there should be a statement of claim instead of points of claim, on which the matter has so far proceeded by consent, nor the terms of any such statement of claim. I understand that these matters are probably before the Full Court so that all procedural aspects of the case are in the one place but the appropriate order, in my view, is to refer those matters to the docket judge. The Full Court was told that the application in respect of the statement of claim, at least, is contested.

18    I turn to consider the question of the dissolution of the injunction.

19    The relevant principles have very recently been considered by a Full Court of this Court in Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156 and do not require restatement.

20    I am not persuaded that in dissolving the injunction there was a denial of procedural fairness as submitted on behalf of Transpacific. The issue of the dissolution of the injunction was necessarily, in my view, an aspect of the adjournment application brought by Transpacific. In addition, reference was made to the dissolution of the injunction when the adjournment application was first foreshadowed before her Honour on 11 October 2011.

21    Next, in my view, her Honour was entitled to act, as she did, on paragraph 21 of the affidavit of Mr Patakas sworn on 17 October 2011, whose evidence was:

Further to my review of the Respondent’s above affidavits and expert report I consider that Transpacific must have both lay and expert evidence in reply … without such evidence by Transpacific the evidence of Professor Gillette will be uncontested and therefore must be accepted by this Court thereby leading to the failure of Transpacific in this proceeding

22    In my view, it is not enough to say, for Transpacific, that there was in truth an unarticulated prima facie case or that if fresh evidence were admitted there would be a prima facie case.

23    I would refuse the application to tender further evidence on the application for leave to appeal. In my view the conditions for the reception of such further evidence have not been met.

24    I would therefore refuse leave to appeal in relation to the dissolution of the injunction.

25    Because the proposed cross-appeal was described by senior counsel for the first respondent as “defensive” there is no need to consider it separately.

26    For these reasons I propose the following orders:

1.    Leave to appeal from the orders made by Stone J on 19 October 2011 be refused with costs;

2.    The Interlocutory Applications filed on 7 November 2011 and 25 November 2011 be referred to the docket judge;

3.    Costs of those Interlocutory Applications be reserved to the docket judge.

Associate:

Dated:    16 December 2011