FEDERAL COURT OF AUSTRALIA

Zetta Jet Pte Ltd v The Ship “Dragon Pearl” [2018] FCAFC 99

ORDERS

THE COURT ORDERS THAT:

1.    The draft notice of appeal dated 12 June 2018 accompanying the application for leave to appeal filed on 12 June 2018 be taken to be the notice of appeal filed on 12 June 2018.

2.    The appeal be dismissed with costs.

3.    Order 1 of the orders of Allsop CJ made on 14 June 2018 be vacated and thereby the stay of orders 2, 3 and 7 of the orders made by Burley J on 7 June 2018 extended by order 1 of the orders of Allsop CJ made on 14 June 2018 be discharged.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ:

1    This is an application for leave to appeal and an appeal, if leave be granted or be necessary, against orders made by the primary judge on 6 and 7 June 2018 setting aside a writ in rem dated 13 October 2017 claiming proprietary rights to the motor yacht, “Dragon Pearl”, under s (4)(2)(a)(i) and (ii) of the Admiralty Act 1988 (Cth); setting aside the arrest warrant dated 13 October 2017 under which the vessel had been arrested on 16 October 2017 by an Admiralty Marshal of the Court with the assistance of Australian Border Force officers; dismissing an amended interlocutory application filed in Court on 5 June 2018; and, most importantly, dismissing the proceedings and making various costs orders.

2    The Dragon Pearl is a motor yacht worth over $4 million, on the evidence. She is registered in the Marshall Islands. The registered owner of the vessel is Dragon Pearl Limited (DPL), a company registered in the Marshall Islands. Ms Du Yan is the sole shareholder and sole director of DPL. The writ named the vessel as the defendant. DPL was named as the relevant person for the purposes of r 15 of the Admiralty Rules 1988 (Cth) and was identified as the registered owner for the purposes of r 15(2). Ms Yan and DPL filed appearances as parties interested in the vessel. The first plaintiff (Zetta) is a company incorporated in Singapore in respect of which the second plaintiff, Mr King, was appointed trustee under Chapter 11 of the United States Bankruptcy Code by the Bankruptcy Court for the Central District of California. He was later appointed trustee under Chapter 7.

3    The plaintiff’s proprietary maritime claims are based on assertions that payment of the purchase price of the vessel by DPL was funded by Zetta and so, by constructive or resulting trust, Zetta is entitled to beneficial ownership and possession of the vessel. Pleadings were filed after the commencement of the proceedings.

4    The arrest of the vessel was the exercise of a powerful but most salutary weapon in the armoury of an Admiralty court. It places the vessel or other property under the custody, but not possession, of the Admiralty Marshal of the Court with all associated responsibilities and risks attaching thereto. It denies the use of the vessel to the owner, but it secures, before proof of the claim, the subject of the suit (unless released whether by bail or other steps for security in respect of a claim such as this) where physical possession of the vessel is within the jurisdiction.

5    The invocation of such a power demands that the moving party be ready to prove its case with reasonable dispatch. In some cases, jurisdictional issues must be proved almost forthwith, though this is not so here where the plaintiffs need only prove the existence of a claim to possession, title or ownership of the ship or a share in the ship. But, it is the invocation of such a power based on proof of a claim that sets the background for the need for dispatch for in rem claims in respect of which arrest has been obtained. No attempt was made during the course of the matter below, or on appeal, to disaggregate the position of the arrest and the in rem claim. It goes without saying that an in rem claim, or any claim, does not need to be supported by an arrest.

6    On 21 December 2017, orders were made for the filing of affidavits. The plaintiffs filed two affidavits. One of them is from Ms Lee and one of them is from Ms Weai-Hunt, both sworn on 24 January 2018. These affidavits were directed to the circumstances of payment of the funds for the purchase of the vessel. The primary judge outlined the fundamental issues and the place of Ms Lee and Ms Weai-Hunt in the proceedings at [9]-[11] of the primary judge’s reasons:

9 The issues as they arise in the proceedings can be broadly summarised for present purposes. The plaintiffs contend that Zetta has a proprietary maritime claim to possession, title or ownership of the Dragon Pearl by virtue of a constructive or resulting trust arising from the fact that the purchase price for the vessel came from its funds. More specifically, the sum of A$4,492,034.82 was paid by Zetta to Maritimo Offshore Pty Ltd in 5 instalments between 28 March 2016 until 14 December 2016. There is no dispute between the parties that the instalments were paid by way of transfer from Zetta to Maritimo.

10 The defendants contend that the true source of the funds was not Zetta but Geoffrey Owen Cassidy or Asia Aviation Company (AAC). Mr Cassidy was a director of Zetta from its incorporation on 15 July 2015 until his removal on about 17 August 2017. AAC was a company the shares in which were originally owned by Mr Cassidy and an associate of his, June Tang. In August 2016 the shares in AAC were sold to Zetta for US$1m. The defendants contend (broadly) that the contract price for the Dragon Pearl was set-off at law or in equity against US$3,540,013.62 that was owed to Mr Cassidy either in his own right or as a result of expenses that he paid on behalf of AAC. Furthermore, the defendants contend that on 5 December 2016 DPL became the registered owner of the Dragon Pearl, when more than half of the purchase price for the Dragon Pearl had been paid. DPL was entirely owned and controlled by Mr Cassidy. The defendants also contend that Mr Cassidy owed money to a company called New Target Investments Ltd (New Target). In order to discharge some of his debt he agreed to transfer the shares in DPL to New Target or its nominee as a means of transferring the beneficial ownership of the Dragon Pearl to New Target or its nominee. New Target nominated Ms Yan to receive the shares in DPL. The defendants contend that Ms Yan acquired the shares in DPL bona fide and for value and that she and New Target had no knowledge of the alleged trust or the plaintiffs’ claim for ownership of the Dragon Pearl.

11 In this broad context it is to be seen that a significant issue of fact arises in respect of funds paid from Zetta to Maritimo. The evidence of Ms Lee and Ms Weai-Hunt goes to this subject. Ms Lee was the finance manager of Zetta from July 2016 until 15 September 2017. She was responsible for overseeing the accounting operations of Zetta. In her affidavit of 24 January 2018 she explains her role as finance manager, the accounting and finance systems of Zetta, the audit for the financial year 2016, her interaction with Mr Cassidy in relation to his director’s account and her understanding of certain invoices issued by China Knowledge Consulting (Shangahi) Co (China Knowledge). Ms Weai-Hunt was the chief financial officer (CFO) of Zetta from 29 March 2017 until July 2017 and interim CFO from 17 August 2017 until 30 November 2017 and, according to her affidavit sworn on 24 January 2018 had been assisting Zetta as a consultant on an ad hoc basis since her employment as CFO ceased. In her affidavit she gives evidence about the formation of Zetta, the audit and about certain invoices apparently issued by China Knowledge that she considered were not legitimate or genuine.

7    On 22 February 2018, the matter was set down for hearing from Tuesday, 5 June 2018 for five days. The events that have led to this application for leave to appeal began on the Thursday evening before the hearing, on 31 May 2018. Notice was given at that point for steps to be urgently taken, in the form of interlocutory applications for leave to issue subpoenas outside of Australia. The primary judge described the applications at [5]-[6] of his reasons, as follows:

5 On 1 June 2018, two working days before the trial was to commence, the plaintiffs applied by way of interlocutory application for leave to issue subpoenas outside of Australia to three witnesses who are overseas residents and have given affidavits on their behalf; Yap Weai-Hunt, Lee Choon Yen (whom I refer to below as Ms Lee) and Charles Chaw, the first two of whom are resident in Singapore and the third in the People’s Republic of China. The application also sought an order that the hearing be adjourned until a date to be determined by the Court. During the course of a case management hearing on that date Mr Michael Wyles QC, senior counsel who appears with Dr Anton Trichardt for the plaintiffs, indicated that he relied only upon an affidavit sworn by Ryan Nathan Hennessey, a solicitor employed in the Melbourne Office of DLA Piper (DLA), in support of the plaintiffs’ application. The interlocutory application was listed for hearing on the first day of the trial and was opposed by the defendant.

6 By the day of the hearing the landscape had changed somewhat. An amended interlocutory application was filed in Court on 5 June 2018 and the plaintiffs now seek orders that a letter of request (letter of request) be sent by this Court to the competent judicial authority of the High Court of Singapore to take or cause to be taken on oath or affirmation the evidence of Ms Lee and Ms Weai-Hunt and that the depositions taken of the examinations of those witnesses be filed in the Victorian Registry of the Court. The amended interlocutory application also seeks orders that the trial be adjourned or stayed until a date convenient to the Court after 1 October 2018. During the course of argument the plaintiffs made clear that they no longer seek orders for the issue of subpoenas to witnesses outside of Australia, or any orders in respect of the evidence of Mr Chaw.

8    The plaintiffs were in the position that their two principal witnesses, Ms Lee and Ms Weai-Hunt, were not in Australia and not willing to give evidence. At [8] of the reasons, the primary judge summarised the position as follows:

The argument proceeded on the basis that I should first consider whether or not the plaintiffs’ application for an adjournment of the hearing should be granted. In this regard the plaintiffs candidly accept that in the event that the adjournment is refused, then they cannot succeed in their claim. In broad terms the plaintiffs contend that the evidence of Ms Lee and Ms Weai-Hunt is essential to their case. They accept that the application is brought late in the day and could have been brought earlier, but they contend that the proposed adjournment is for only 3 months until October 2018 and that the events set out in the affidavit material indicate that it was only recently that the witnesses refused to co-operate to give evidence. They submit that the question of prejudice does not arise because the Dragon Pearl is being maintained by Mr King as trustee and that security for the defendant’s costs has been provided. They submit that as Mr King is a trustee for the assets of Zetta, there is a broader interest to be considered that goes beyond the immediate parties, namely the interests of the creditors of Zetta. …

9    The amended interlocutory application before the primary judge on 5 June 2018 sought the following orders:

2A     Further that a letter of request in a form attached hereto or a form to be     approved by the Registrar or the Court be sent to the competent judicial     authority of the High Court of Singapore to take or cause to be taken on oath     or affirmation the evidence of:

a.    Lee Choon Yen (also known as Eunise Lee), ordinarily resident in Singapore at Blk 561, Choa Chu Kang, North 6, #02-96; and

b.    Yap Weai-Hunt, ordinarily resident in Singapore at 38 St Michael’s Road, #03-02, Singapore.

2B.     That the depositions taken of the examinations of the persons referred to in     2A above be filed in the Victorian Registry of the Court.

2. That the trial of the proceeding listed to commence on 5 Jun[e] 2018 be adjourned alternatively be stayed until the depositions of the witnesses referred to in paragraph 2A above are filed with the Registrar of the Victorian Registry of the Court alternatively, until a date to be determined by the convenient to the Court after [1 October 2018].

10    It is of some importance to note that the application was put on the basis that without the evidence of Ms Lee and Ms Weai-Hunt the plaintiffs could not succeed. After describing the issues and the central place of the evidence of the two witnesses, the primary judge turned to the events concerning the taking of evidence from both women. The plaintiffs relied on two affidavits of Mr Hennessey, an employed solicitor of DLA Piper from Melbourne, and an affidavit of Ms Ho, a Singaporean lawyer employed by DLA Piper in its Singapore office.

11    The primary judge made the following findings at [14] about the evidence of Ms Lee:

•    Her affidavit was sworn on 24 January 2018 at which time she was no longer an employee of Zetta or under its direction;

•    A trainee solicitor employed by DLA in Singapore, Ms Sirola, and Ms Ho contacted Ms Lee periodically after she swore her affidavit but apparently not about her availability to give evidence;

•    On 4 May 2018 Mr Hennessey attempted but failed to contact her by telephone;

•    On 21 May 2018 Ms Sirola sent an email to Ms Lee informing her that she wanted to talk to Ms Lee about her giving assistance in the Australian proceedings;

•    On 22 May 2018 and 23 May 2018 Ms Sirola sent text messages to Ms Lee attempting to get in contact with her and on those days and 24 and 28 May 2018 they sought to contact her by telephone;

•    On 30 May 2018 Ms Ho and Ms Sirola visited Ms Lee at home and explained to her that the purpose of their visit was to speak to her about giving oral evidence in this proceeding. Ms Lee indicated that she did not want to appear in Court to give evidence and that her assistance ended when she provided her affidavit. She said that her position was final and she would only attend if required to do so by Court summons;

•    On 31 May 2018 Ms Ho sent a text message to Ms Lee inviting her to think about her position and change her mind about giving evidence by video link.

12    There was no evidence that before 30 May 2018 the question of Ms Lee giving oral evidence was raised with her at all.

13    At [16] of his reasons, the primary judge made the following findings about the evidence of Ms Weai-Hunt:

•    During an initial telephone conversation on 1 December 2017, she indicated to Mr Hennessey that she was reluctant to give evidence at the trial of the proceedings because her partner, Mr Charles Chaw, received a threatening message from Mr Cassidy and she believed that she had been followed home from work and a man had attempted to follow her into her apartment building;

•    Her affidavit was sworn on 24 January 2018 and since then Ms Ho and Ms Sirola have been in periodic contact with her to obtain information but not about her giving evidence in the Australian proceeding;

•    On 4 May 2018 Mr Hennessey attempted but failed to contact her by telephone;

•    On 21 May 2018 Ms Sirola spoke to her in the morning. She expressed reluctance to give oral evidence and questioned why it was required. Ms Sirola explained that the evidence would cover similar factual matters as the affidavit previously given, but records in the file note that without it the affidavit "would not be as convincing to the judge";

•    On the same day Ms Sirola followed up with an email suggesting a further conversation;

•    On 22 May 2018 Ms Sirola spoke to Ms Weai-Hunt who said she was still considering her position;

•    On 24 May 2018 Ms Ho and Ms Sirola spoke to her again. She said that she was unwilling to appear in the Australian hearing "as she did not wish to be cross-examined";

•    On 25 May 2018 she responded to an email from Mr Hennessey of the previous day asking if there will be cross-examination of her by the defendant and indicating that she is apprehensive about testifying in Court and currently engaged in a project with limited availability to assist;

•    On 29 May 2018 a file note prepared by Mr Hennessey indicates that she informed him that she "does not want to be involved any more voluntarily" and "does not want to be cross-examined/ give evidence". His note also records that he explained to her that she "can give evidence by video conference" and that she asked "can she think about it overnight?";

•    On the same day a partner from DLA in the USA contacted Ms Weai-Hunt by email asking to speak with her;

•    On 30 May 2018 Ms Ho and Ms Sirola had a further conversation during which she said that she was reluctant to provide evidence as she does not want to be subject to the rigours of cross-examination and she does not see any advantages in doing so for herself. She said she would be unlikely to change her mind.

14    The primary judge made the following comments at [17] of his reasons:

This evidence indicates that from the outset Ms Weai-Hunt was at best reluctant to give oral evidence, and at worst determined not to do so. I do not consider that the suggestion made in the file note on 22 May that Ms Weai-Hunt was considering her position to reflect a change of mind, rather it was a polite way to put off the enquiry.

15    A matter to which the primary judge had regard concerned an injunction in Singapore in connection with the Chapter 11 bankruptcy order. Zetta had filed for protection on 15 September 2017. Mr King was appointed on 5 October 2017 as a Chapter 11 trustee and in December 2017 as a Chapter 7 trustee. Meanwhile, on 18 September 2017, some shareholders of Zetta commenced proceedings against a Mr Seagrim, a Mr Walter and Zetta in the High Court of Singapore. There was no evidence from the parties explaining the application, but there was evidence that the High Court of Singapore on 19 September 2017 made an order in the following terms that was still on foot in June 2018:

The Defendants, whether by themselves, or through their agents, solicitors or special counsel, including but not limited to Michael Maher and Belinda Vega, be enjoined from carrying out any further steps in and relating to the purported bankruptcy filings relating to the 3rd Defendant [that is Zetta] and Zetta Jet USA, Inc in case [2;17-bk-21387-BB and Case 2;17-bk-21386] in the United States Bankruptcy Court for the Central District of California – Los Angeles Division until trial or further order.

16    In January 2018, the High Court of Singapore refused Mr King recognition under the UNCITRAL Model Law on Cross-Border Insolvency (as adopted as law in Singapore) as interim trustee under the Chapter 7 proceedings. The judge in Singapore, Aedit Abdullah J, said the following in his Honour’s judgment:

… Ignoring an injunction granted by a Singapore court undermines the administration of justice. Orders issued by a court are to be complied with. Those who do not comply are rightly subject to penalties. In particular, they cannot generally seek the assistance of the courts unless the non-compliance is rectified or purged. Where the court’s power to refuse recognition under Article 6 of the Singapore Model Law is discretionary, it would be rare for the court not to refuse recognition where there has been non-compliance with a Singapore court order.

17    There was evidence that procedure in Singapore allowed for the request sought, but there was no evidence of how long that would take to execute, and there was no evidence, if it could be taken as admissible, as to the view of any Singaporean lawyer as to the relationship between the request and the injunction. At [28]-[32] of his reasons, the primary judge discussed the relationship between the injunction in place in Singapore and the request. In the absence of evidence the primary judge was concerned, saying at [31] the following:

In my view there remains an unsatisfactory state of uncertainty in relation to the letter of request. I would not grant it without receiving further evidence and submissions in relation to the approach likely to be taken by the Singaporean High Court.

18    His Honour also referred to further uncertainties at [32], as follows:

There is further uncertainty, and a lack of evidence, as to the amount of time that the request may take to be granted and as to the procedure that might be implemented in the provision of evidence. In this regard, it is unclear whether the plaintiffs wish to request that the evidence be taken by a commissioner and the transcript of oral evidence tendered in the proceeding, or whether the witnesses may provide evidence by video link, or whether I might be asked, or otherwise consider it necessary, to attend any cross-examination. These matters are yet to be determined.

19    At [33]-[38], the primary judge examined the legal principles governing the applications before him, in particular Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75; Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 and ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). There was some suggestion in the written submissions of the appellants of error by his Honour in the way he dealt with the explanation for the lateness of the application, but as I understood the oral submissions of Mr Wyles QC, who with Mr Pintos-Lopez appeared for the appellants, there was no substantive criticism on appeal of his Honour’s approach to the question of principle.

20    The primary judge then dealt with what he referred to as the present application to vacate the hearing date and adjourn the proceedings to a date that is presently indeterminate and dependent on the issue of the letter of request. He began this discussion at [39] of the reasons. Though the reasons were published on 7 June 2018, the substantive first application, as his Honour described it, was dealt with extempore on 6 June 2018. From [39]-[59], his Honour explained why he dismissed the application for an adjournment to allow a request to be made to the High Court of Singapore by this Court.

21    First of all, the primary judge was not satisfied on the state of the evidence that it was appropriate to grant the letter of request, saying at [39]:

I … would have been assisted by the provision of evidence from a suitably qualified person as to the likely approach that [the High Court of Singapore] would take to the request in light of the injunction.

22    There was further uncertainty as to whether the request would be granted. His Honour said, continuing at [39]:

[T]here is an unsatisfactory state of uncertainty as to whether the process envisaged by the plaintiffs in their amended interlocutory application would yield the outcome that they seek.

23    There was also a lack of evidence at the time as to the time it would take to issue the letter of request in Singapore and to arrange the taking of evidence. His Honour said at [41]:

Whatever may be said of these uncertainties, it may be seen that this aspect of the interlocutory application remains in a state of poor preparation. That is perhaps not surprising, given that in the unamended form of the interlocutory application filed last Friday, on 1 June 2018, the letter of request process was not even foreshadowed.

24    At [42], the primary judge looked to broad questions of prejudice from what the proposed course would cause, saying the following:

In considering the detriment to other litigants in the Court and the parties’ choices to date in the litigation, I note that in February 2018 the proceedings were set down for a hearing to commence on 5 June 2018. This hearing date was allocated at an early stage, specifically to accommodate for the fact that the plaintiffs had secured the arrest of the Dragon Pearl, that the claim to ownership of the vessel was contested and that accordingly the case warranted expeditious disposition. Time was allocated so that the trial could be completed and also so that there was time to deliver judgment expeditiously. As a consequence, the interests of third parties were dislodged to accommodate these requirements. If the adjournment application is allowed, no substitute hearing can be put in place of the 5 days allocated.

25    The paragraph reflects the real place for prejudice of other litigants in applications of this kind. Significant time had been set aside well in advance, displacing others. Now, this course would require further time to be taken in the future at some indeterminate point for an indeterminate period while the case was, in effect, prepared properly.

26    His Honour concluded from knowledge of his own docket that his present trial and appeal commitments were such that no further dates were available until the second quarter of 2019, and that even then the allocation of dates would involve dislodging the interests of other parties. It may of course be possible to have the matter moved to another judge’s docket for an earlier date. That may, or may not, be possible, but it also may dislodge or interfere with litigants in other judges’ dockets.

27    At [45], the primary judge summarised the explanation for the current position before him:

The plaintiffs submit that they were, in effect, taken by surprise by the refusal of Ms Lee and Ms Weai-Hunt to assist in giving oral evidence. Through their counsel, they accept that the adjournment application is brought late in the day and apologise for that fact, but they submit that the delay does not reflect any lack of competence in the preparation of the case. They submit that to read the evidence in that way is too harsh and would involve looking at the preparation of the case from an ivory tower. They submit that the plaintiffs are represented by an international firm of lawyers that has done what it could to bring the witnesses to Court and that only recently have they been met by a point blank refusal to co-operate. Further, they submit that justice “demands” that the trustee, who had to arrest the Dragon Pearl in Australian waters to secure the interests of Zetta’s creditors, be permitted to adduce the best evidence possible in support of its case. In this regard they invoke s 37M and s 37N of the FCA Act to contend that in order to do justice, the application for an adjournment should be granted.

28    At [46], his Honour said that he found the explanation offered to be unpersuasive and inadequate. There was some criticism of his Honour’s characterisation of the explanation as inadequate. With the utmost respect to counsel, the description of the explanation as inadequate was one well open to his Honour.

29    To make the support of his Honour’s conclusion good, it is appropriate first to start at [47] of his Honour’s reasons in dealing with Ms Weai-Hunt:

First, the evidence relating to Ms Weai-Hunt indicates that she expressed considerable reluctance to give oral evidence from the outset, as early as 1 December 2017. The evidence indicates that this was a reluctance based on clearly articulated concerns that suggest that she would indeed be slow to change her mind. However, she appears to have been first contacted with a view to securing her cooperation on 4 May 2018. That yielded no contact with her, and it was not until 21 May 2018 when further attempts were made, when she reiterated her reluctance to assist, a position that remained unchanged. The evidence reveals that it is far from surprising that Ms Weai-Hunt would refuse to co-operate; that was her position from the outset.

30    None of those findings are challenged.

31    As to Ms Lee, his Honour concluded as he did in [48] as follows:

The position of Ms Lee is slightly different. The evidence does not reveal that at any point during the course of the preparation of her affidavit, she was made aware that there was a prospect that she would be required to assist by giving oral evidence and being cross-examined. It appears that the first contact sought to be made to secure her assistance by giving evidence was on 4 May 2018, when Mr Hennessey tried unsuccessfully to speak to her on the telephone. Then on 21 May 2018 emails were sent and it was not until 30 May that it would appear that the question of her essential role in answering questions in cross-examination was addressed. It is unclear on what basis the plaintiffs were surprised by Ms Lee’s refusal to attend, other than by reason of a misplaced assumption that she was aware that she would be required to give oral evidence and an assumption that she would oblige by doing so.

32    There is no challenge to those matters. As his Honour then went on to say at [49]:

No evidence suggests that either witness was informed of the hearing date when the matter was set down for hearing in February 2018, asked whether they could attend, or even asked if the dates were convenient to them.

33    The attendance of these witnesses, as his Honour said in [50], was crucial. That was a fact that ought to have been apparent from early on in the proceedings.

34    At [51], his Honour referred to the obligations imposed under s 37N of the Federal Court of Australia Act requiring the parties to conduct litigation in a way consistent with its overarching purpose as outlined in s 37M. At this point, his Honour rejected a submission that it was too artificial, and was to be looking at the matter from an ivory tower to consider that the appellants’ preparation of their case was less than adequate. It was less than adequate. The submissions of senior counsel for the appellants on appeal focused, understandably if I may respectfully say so, on the absence of a finding by the primary judge that there was any deliberate tactical advantage being taken in the late difficulty with the two witnesses. What his Honour was not able to understand, because there was simply no evidence about it, was how this came about: whether it was simply due to oversight and carelessness on the part of people involved in the litigation, or whether it was due to a, perhaps, at the time legitimate desire to contain costs or deal with the matter later at an appropriate time.

35    The point his Honour made was that there was very little explanation as to what was said to Ms Lee and Ms Weai-Hunt and why their presence was not secured before they began to be called a few weeks before the hearing. His Honour said the following at [52]:

I take into account in considering this application the fact that there really is no good reason for the late application. In this regard no witness came forward to explain the delay. No person from DLA came forward to say that he or she was “surprised” by the failure of the witnesses to co-operate. The plaintiffs ask the Court to infer that this is the relevant state of mind to be discerned from the objective facts. For the reasons indicated, I do not accept that this is a correct interpretation. One is left in a state of uncertainty whether the failure to move on the preparation for trial before May 2018 was the result of a deliberate decision, or because of oversight.

36    After thus dealing with the explanation, such as it was, of how the position had got to what it was in early June, the primary judge looked at the detriment to the parties. He examined this from [54] onwards. His Honour dealt with the matter on the basis of the position put by senior counsel to him during the application that “[t]he plaintiffs will suffer serious prejudice in the event that the adjournment is refused” and that they could not prove their case without this evidence.

37    His Honour considered the submissions on detriment, and his Honour said the following at [58]-[59]:

58    I have considered all of the circumstances of the case in considering the outcome of this application. I agree with the plaintiffs that it is important to weigh the interests of the parties and to ensure that justice is done. A heavy matter in their favour is that their claim will come to an end if they do not secure an adjournment. But then to a very large degree, the fault for that lies at their own feet. Having utilised the coercive powers of this Court to secure the arrest of the Dragon Pearl, the plaintiffs then took plainly inadequate steps to prepare the case for hearing. The obligation that lies on all litigants pursuant to s 37N of the FCA Act is brought into particularly sharp relief in such circumstances. Furthermore, I regard the explanation offered by the plaintiffs for their conduct in bringing the application so late to be inadequate, which is a significant factor which weighs against the grant of the relief sought (AON at [4]). My consideration of this application includes consideration of the likely steps to be taken in the future, if the adjournment is granted. Those steps are shrouded in uncertainty. It is unclear whether or not the letter of request process will succeed at all. That uncertainty also plays a role in diminishing the likelihood that the plaintiffs will suffer prejudice. It is also uncertain when a hearing will be able to proceed. This is antithetical to the interests of the administration of justice, to the interests of third parties and prejudicial to the defendants, as is the vacation of the present hearing date. I am also conscious that the process of the letter of request is likely to add significant expense to the conduct of the proceedings. The plaintiffs have made no offer to pay costs, on any basis, for any adjournment or the costs of the steps that would require the defendants to attend in Singapore, although of course these can be a condition of any orders that might be made.

59    Taking these matters together, I have formed the view that the application for the adjournment should be refused.

38    The primary judge delivered the above extempore reasons on the assumption of the position put to him at the time that without the evidence, in effect, the matter would not be proceeding. That position changed in circumstances set out in [60]-[61] of the primary judge’s reasons:

60    The parties’ arguments concerning the adjournment application took most of Tuesday 5 June 2018. On the morning of 6 June 2018, I delivered the ex tempore reasons set out in [2] – [59] above. After doing so, I assumed that the consequence of refusing the adjournment was that the plaintiffs could and would no longer proceed to prosecute their case. During the course of argument on 5 June 2018, the following exchange took place :

His Honour -- I understand from Mr Wyles’ submission today that, in the event that the adjournment application is refused…that the plaintiff can’t succeed, and that accordingly the matter would not proceed. I might have misunderstood him, but…I thought words…to the effect of “Not even my creativity could come up with something which can address that”. Am I incorrect about that Mr Wyles? ---No, your Honour.

Thank you. ---If we’re unsuccessful, we will seek a stay, your Honour.

61    Nevertheless, after delivering my reasons for refusing the adjournment application, senior counsel for the plaintiffs submitted that I should not dismiss the proceedings, because they wished to proceed to prove their case and that the proceedings should be stayed pending an application for leave to appeal from my decision. Senior counsel submitted that he proposed to rely on the affidavit evidence of Mr Tsiakis, a partner at DLA, and that an application may be made under s 190 of the Evidence Act 1995 (Cth) (Evidence Act) for leave to rely on the evidence of Ms Lee and Ms Weai-Hunt, notwithstanding the fact that they are not available to be cross-examined. This was a concerning submission, because in order to put their case for an adjournment at its forensic highest, the plaintiffs had informed me, in effect, that they no longer had a case to run and that the case would not proceed (see transcript 35, 50, 51). That consideration was material in my consideration of the plaintiffs’ application, as is recorded in paragraphs [8], [50], [54] and [58] above.

39    Events then took place as described in paragraphs [62]-[64]. With the first adjournment refused and the letter of request refused, it was submitted that the primary judge should grant an adjournment of the proceedings to enable the plaintiffs to seek leave to appeal from the refusal to grant an adjournment. There was a difficulty with this in terms of s 24(1AA)(b)(ii) of the Federal Court of Australia Act. Instructions were sought and the matter was adjourned to later in the day to permit the plaintiffs to take instructions about certain documents. As the primary judge noted at [63] of the reasons, the matter resumed at 4:00pm and the call for documents was answered. In response to a question from his Honour before adjourning for the day, junior counsel for the appellants informed the primary judge that there would no live witnesses the next day.

40    The matter was resumed at 10:15am on 7 June. At this point, junior counsel for the appellants indicated certain instructions received overnight. This is set out in [64]:

Events took a further turn at 10.15 am the next day. Junior counsel for the plaintiffs commenced by indicating that he had received instructions from his client overnight to seek leave to adduce fresh evidence in chief from Mr Seagrim, a director of Zetta, and also to read his two affidavits. Junior counsel for the plaintiffs submitted that Mr Seagrim’s oral evidence could be taken by video link, because he is in California, or alternatively in person the following Tuesday 11 June 2018, which was the final day allocated for the present hearing.

41    The draft notice of appeal and the submissions put the matter that his Honour refused to accept the evidence of Mr Seagrim referred to in [64]. It perhaps does not matter how one characterises it, but I would characterise what happened, as senior counsel for the defendants at the time did, as a further application for an adjournment and the refusal of that further application. His Honour explained at [66] why he refused what he took to be a further application to adjourn. The essence of [66] was that the content of the further evidence was inchoate; the question of leave to adduce the evidence, whether by video link or otherwise, could not be considered until its content was known; that there was uncertainty as to whether Mr Seagrim’s evidence could be useful given that he had already put evidence on which did not touch this question of payment; and that difficult admissibility and logistical questions would also arise. No explanation was offered as to the overnight change of position. It is preferable that [66] is set out in full so that his Honour may speak for himself:

Several factors led me to refuse that application. First, the content of the further evidence in chief that the plaintiffs sought to lead was inchoate. The plaintiffs submitted that they would not be in a position to provide it in written form until that afternoon. Secondly, the question of leave to adduce the further evidence (whether by video link or otherwise) could not be considered until the content of the additional evidence could be considered. That would no doubt involve further argument and delay. The defendants submitted that it was doubtful that Mr Seagrim would be in a position to advance admissible evidence of the relevant events, because on his current affidavit material he was not present in Singapore at the relevant time and had no apparent role to play in the preparation of the accounts of Zetta. They submitted that it was doubtful that he could fill the gap in the evidence occasioned by the absence of evidence from Ms Lee and Ms Weai-Hunt. Furthermore, the plaintiffs had filed two affidavits of Mr Seagrim that did not touch upon these issues. If they could have done so, then they should have done so long ago. These points indicate that there was likely to be a substantial dispute about whether it was appropriate to grant the leave sought and yet further delay. Thirdly, if it were determined that the further evidence of Mr Seagrim could be admissible, the logistical issues of whether or not the plaintiffs should be permitted to give evidence by video link or orally needed to be addressed. I was by no means satisfied, having regard to the plaintiffs’ conduct of the case to date, that these would be resolved before the end of the allocated time for hearing. No evidence was advance to suggest that they could. Fourthly, no explanation was offered as to the overnight change of position regarding the conduct of the case. I accept that the circumstances of the refusal on 6 June 2018 of their adjournment application must have come as a blow to the plaintiffs. But it cannot sensibly have come as a surprise. It was plainly not a strong application. Put differently, it is to be expected that the experienced and able practitioners representing the plaintiffs must have realised from well before 31 May 2018 that there was a very real prospect that the adjournment would be refused, and turned their minds to the likely manner in which the case would be conducted if that were the outcome. The statements made by senior counsel on 6 June 2018 that the plaintiffs intended only to call the evidence of Mr Tsiakis and possibly make an application under s 190 of the Evidence Act should be taken to be a considered view (I set to one side for this purpose the volte face that immediately followed the refusal of the first adjournment). The late application on the morning of 7 June 2018 came with no explanation as to the more recent change of position, save for the fact that it came recently, and on instructions from the plaintiffs. That was manifestly inadequate. Finally, at no point did the plaintiffs indicate during the course of argument that they could not proceed with the presentation of their case in the absence of the further evidence that they sought to adduce. Prejudice to the plaintiffs was not articulated at all. I assumed that the plaintiffs intended to proceed with their case, foreshadowed the previous day, by calling the evidence of Mr Tsiakis and tendering documents.

42    It is to be noted that, at this point, the primary judge assumed that the plaintiffs intended to proceed with their case by calling the evidence of Mr Tsiakis. At this point, his Honour takes up the refusal of the further oral application in [67] as follows:

After refusing the plaintiffs’ further oral application I directed that the plaintiffs commence with the presentation of their case. It was then that the proceedings took yet another twist. I was informed by junior counsel that the plaintiffs could not proceed with their case with the consequence that their claim must be dismissed.

43    Thus, through the various applications that were refused, the appellants as plaintiffs came to the end of what they could do.

44    Subject to the question of costs, which was then dealt with by his Honour in [68], his Honour dismissed the proceeding. The application for leave to appeal assumes that the orders were interlocutory. Various orders were made, but the essence of them, and the gravamen of them, was that the proceeding was dismissed. The full terms of the orders were as follows:

(1)    The amended interlocutory application filed by the plaintiff’s in Court on 5 June 2018 be dismissed with costs.

(2)    The writ issued on 13 October 2017 in these proceedings be set aside.

(3)    The arrest warrant issued in these proceedings dated 13 October 2017 be set aside.

(4)    The Plaintiffs pay the Defendant’s costs of the proceedings until 22 November 2017 on a party - party basis.

(5)    Plaintiffs pay the Defendant’s costs of the proceeding on an indemnity basis from 22 November 2017, subject to order 6.

(6)    Leave be granted to the Defendant’s to withdraw the interlocutory application dated 4 April 2018 and that there be no order as to costs in relation to the costs of that application.

(7)     The proceedings be dismissed.

(8)    Order 2, 3 and 7 be stayed for 7 days, from the date of this order, pending any application that the Plaintiffs’ wish to make to appeal from these orders.

45    This was not an application for summary judgment, nor was this an application for judgment for default under r 5.23 of the Federal Court Rules 2011 (Cth). It would appear that his Honour was dealing with this matter on the basis that the matter was being called on for hearing and no evidence was being proffered, the relevant adjournments and other applications having been refused. That is certainly how his Honour approached the issue of prejudice. That is how, in my view, we should approach the issue of prejudice, and the character of what occurred below. Minds may differ about this, and views may differ in other jurisdictions, but, for my part, I am of the view that leave is not required. I would grant leave if it be necessary, but take the draft notice of appeal as filed on the day of the filing of the application for leave to appeal.

46    The grounds of appeal in the draft notice of appeal, which should be taken as the notice of appeal, do not challenge any relevant finding of fact. If I may respectfully say so, Mr Wyles put the matter as highly as it could be put, focusing, as I understood the matter, really on the injustice of the outcome being such as to warrant a conclusion that there had been an error of principle. As I said earlier, notwithstanding some aspects of the submissions, I do not see any debate about matters of principle. There is an issue of the reliance on cases such as Maxwell v Keun [1928] 1 KB 645 at 653. There, Atkin LJ, in a well known passage, said:

… [I]f it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so.

47    That way of putting the matter was referred to with approval by the High Court in Bloch v Bloch [1981] HCA 56; 180 CLR 390. It has, however, been placed in another context, perhaps, by cases such as Sali v SPC Ltd [1993] HCA 47; 116 ALR 625 in the High Court. The case has recently been relied upon by the Full Court of this Court in Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; 343 ALR 632, but in a very different context, in the refusal of an adjournment application in bankruptcy where the consequences of the order, if made, are to change the status of the party. The principles are not in doubt and they are reflected in the High Court decisions in Aon Risk Services 239 CLR 175 and Sali 116 ALR 625, together with recent applications of them in this court in cases such as Wyman on behalf of the Bidjara People v The State of Queensland [2015] FCAFC 108; 235 FCR 464.

48    It is appropriate to consider the heavy focus that should be placed on prejudice in this case. The primary judge did that. As the respondents have put in their submissions, there were a number of apparent forensic decisions made, but I accept the submission of the appellants that there was no finding of any forensic decision to hold the surprise up their sleeve. Nevertheless, the primary judge’s findings as to the lack of a proper explanation cannot be gainsaid, in my respectful view. The first adjournment and the letter of request application can really be viewed as one, though perhaps they can be treated separately.

49    It was said, in written submissions and in the notice of appeal, that there was a failure to afford procedural fairness. I would reject that submission. As was said in Wyman 235 FCR at 474 [43], litigants are entitled to a reasonable opportunity to present their case in a reasonable invocation of the power of the Commonwealth to hear their case in court. They are not entitled to every opportunity, irrespective of the delay and the prejudice in relation to other considerations that involve the Court, the public, and the other party. There was an ample opportunity to bring forward properly constructed evidence, and the most basic inquiry of the availability of these witnesses at an appropriate time would have made that possible. The appellants took no steps to secure the attendance of either Ms Lee or Ms Weai-Hunt for the hearing until they began making unanswered telephone calls in May.

50    There was no real explanation as to the lack of activity to secure those witnesses at the trial in the period before early May 2018 despite the critical importance of that evidence. Once it became apparent that Ms Lee had not returned the telephone call of 4 May it would have been obvious to the appellants that she might not cooperate, even if, which I do not accept, it was reasonable to have assumed that she would before that time. For her to give evidence, it was required that she agree to travel to Australia, interrupt her own personal and professional life in Singapore for three days (or possibly more) or, if that were not possible, perhaps give evidence by video link. No reasonable person in the position of the appellants or their lawyers would have assumed after 22 February 2018, without checking with her whether she was: first, willing; and, secondly, able, to travel to Australia for at least three days and be away from her home and work obligations.

51    The matter is even starker in relation to Ms Weai-Hunt’s case. She had told the appellants’ Singapore solicitors during her initial telephone conference in early December 2017 that she was reluctant to give evidence at the trial and gave them her reasons, which included that her partner, Mr Chaw, had received allegedly threatening phone calls from people involved in the case. When Ms Ho spoke to Ms Weai-Hunt on 24 May 2018, she again expressed reluctance to give her oral evidence at the hearing. The appellants gave no evidence as to why, immediately after 22 February 2018 or prior to May 2018, they had not told Ms Weai-Hunt that they wished her to give oral evidence nor taken some steps to effect that. With the utmost respect, the appellants’ submissions on appeal tended to convert their failure to take a step to secure the attendance of these witnesses as somehow arising only four days before the trial.

52    The notice of appeal and the submissions also complain about the inadequacy of the primary judge’s explanation, or his Honour’s conclusion, as to the inadequacy of the explanation provided by the appellants. Aon Risk Services 239 CLR 175 makes plain that such an explanation and its adequacy is very relevant. The appellants in their written submissions sought to characterise the conduct as making a mistake in trusting witnesses to attend without thinking that there was any need to subpoena them. With the utmost respect, that assertion should be rejected. The appellants’ trust was, in Ms Weai-Hunt’s case, in a person who had told the the appellants from the outset that she was reluctant to give evidence and she maintained that position throughout. In the case of both Ms Lee and Ms Weai-Hunt, there was no reasonable basis to establish that the appellants could have proceeded trusting that either witness would be willing to come to Australia for days for the trial.

53    There was an absence of any explanation by Mr King or the appellants’ solicitors of why there was nothing done before 4 May 2018, a month before the trial, to communicate with the two witnesses, Ms Lee and Ms Weai-Hunt.

54    In Tamaya Resources Ltd v Deloitte Touche Tohmatsu (a firm) [2016] FCAFC 2; 332 ALR 199 at 226 [154]-[156], Gilmour, Perram and Beach JJ said:

154 Just what explanation is called for will necessarily depend upon the particular case. The explanation will be given by, or on behalf of, the moving party. Affidavit evidence may or may not be necessary. In Cement Australia, for example, as the explanation was that the error was one of judgment by senior counsel for the ACCC, a statement by him from the bar table, to which no objection was taken, was accepted by the Court as sufficient.

155 It must be borne in mind that the explanation required is that of the moving party, not merely their solicitor or counsel. The client may very well know of matters relevant to the explanation for delay which are not known by the lawyers.

156 Evidence as to the explanation for delay will often be given by an applicant’s solicitor from their own knowledge but that may, in some cases, not be sufficient. …

55    There was ample evidence and material before the primary judge to warrant his decision to refuse the adjournment. And, I am not satisfied that his Honour erred in exercising that discretion. There was involved in the argument an assertion that the respondents had not given any evidence of prejudice. With respect, that argument should be rejected, as the primary judge did. The respondents were ready to proceed at the trial that had been set down three months earlier and over eight months since the institution of proceedings and arrest of the vessel. They have been held out of their prima facie right as registered owner of the vessel to have it released and returned to their unfettered control and use.

56    With the utmost respect, the appellants’ submissions show a preoccupation with the prejudice to themselves that is apt to misdirect the inquiry. In Wyman 235 FCR at 475 [46], the Court said the following:

The [appellants’] focus on the prejudice to themselves by the refusal of the adjournment failed to have regard to the other considerations bearing upon the exercise of the primary judge’s discretion. As French CJ observed in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5]:

In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.

See also the observations of the plurality to similar effect at [93], [95] and [100].

57    The matter should not be taken too far, but the public interest in the efficient use of court resources was here, plainly, a significant factor in his Honour’s judgment and it is a relevant consideration in the exercise of discretion to amend or adjourn. Further, as the Court said at 629 in Sali 116 ALR, in the exercise of discretion to refuse or grant an adjournment “the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the Court as well as the interests of the parties”.

58    In my respectful view, there has been no error shown by the primary judge in his application of the principles governing an adjournment, even taking into account the significant consequences to the appellants. Whether or not another judge would have made the same decision is not to the point.

59    The letter of request application really, as I have said, was bound up with their first adjournment application. If the first adjournment application was a reflection of a House v The King [1936] HCA 40; 55 CLR 499 error, the question of the letter of request application becomes moot. If the first adjournment application was not vitiated by error, the letter of request application was of no utility, because there was to be no adjournment. That is why, in one sense, they run together.

60    The appellants argued, in relation to the letter of request, that it was not an action that the High Court of Singapore would have viewed as in breach of the existing injunction. His Honour was of a view that that matter was uncertain, and there was real doubt about the matter. I would agree with his Honour that the injunction prohibited both the appellants from carrying out any further steps in, and relating to, the purported bankruptcy filings in the United States relating to Zetta. On one view, one can see how the use of Singapore’s judicial power to compel a witness to give evidence in aid of proceedings that the appellants have brought in Australia in relation to the purported bankruptcy of Zetta (namely, the attempt to recover a major asset, being the Dragon Pearl) was a step in, and related to, a purported bankruptcy filing. It was open to his Honour to take into account that the High Court of Singapore had granted the injunction and the problematic position that might arise if this Court issued a letter of request to it. At the very least, a letter of request would have had to draw to the Singapore Court’s attention the circumstances that the Court had at a prior time granted the injunction and that the request sought to compel the giving of evidence in Singapore, at the suit of the appellants relating to the purported bankruptcy filing.

61    The second adjournment application, if I may use that description, was not, as it has been described in the notice of appeal, a refusal to allow Mr Seagrim to give evidence. He had already filed an affidavit which, on 4 June, it was said would not be relied upon. Rather, further time to deal with Mr Seagrim was refused. The appellants could not provide to the Court a draft document setting out any further evidence that Mr Seagrim might give. The appellants had informed the respondent, on 4 June, that he would not be called. The appellants had informed the Court, on 6 June, that the appellants would proceed by calling someone else (their solicitor, Mr Tsiakis) and tendering documents.

62    In my view, in the circumstances that were before the learned primary judge, by the time he was dealing with it, his Honour was entirely justified in refusing a further adjournment to obtain unspecified evidence from someone who apparently, hitherto, had not been central to the proof of the case. While Mr Wyles has not specifically sought to read it on this application, there was involved in Mr Lyons’ affidavit, in support of the application for leave to appeal, material that Mr Seagrim now says would have been available from him in his further evidence. My view is that this Court should not, and would not, receive that evidence. Mr Wyles has not pressed it upon us and, in my respectful view, is right not to do so.

63    Ground 10 of the notice of appeal deals with the question as to whether the primary judge should have dealt with the matter without understanding what Mr Seagrim’s evidence was. With respect, the respondents to the appeal are correct in their pointing out that the appellants ignore that the trial judge asked the appellants, as applicants, whether they could provide a draft document setting out that evidence, and they said no.

64    Without seeking to overlook any particular aspects of Mr Wyles’ submissions, during argument I put to him that, really, to succeed, this was a case of the matter being viewed according to the second limb of House v The King 55 CLR at 505, to the effect that the exercise of discretion of the primary judge was so unreasonable as to be viewed as necessarily containing an error of principle. I cannot so construe or characterise his Honour’s approach in the light of the whole history of the matter since October 2017. The plaintiffs had apparently failed to prepare the case properly, to secure witnesses and to have ready any course to deal with a difficult overseas witness after eight and a half months from commencing the case and invoking the extraordinary power of arrest of the ship, with no certainty, even by the end of the first week of June as to when that case would get on, with what evidence and by what litigious process. The indulgence of this attempt to simply start again with what was on file could only prejudice other litigants and the business of the Court, together with grossly impinging on the registered owner’s right to enjoy a valuable asset.

65    After having had an ample and generous time to prepare their case, the appellants were not in the position to lead evidence without these two adjournments of indeterminate time and character. As I said earlier, no attempt was made in how the case was put to the primary judge to separate out questions of entitlement against the relevant person and the defendant; that is, the registered owner, and the ship. And so, looking at the matter with the benefit of hindsight, it is, perhaps, always easy to see how things could have been done better. But, the task is to understand and to assess whether his Honour fell into error of the character of that required by House v the King 55 CLR 499, and, in my respectful submission, that has not been demonstrated.

66    I would, to the extent necessary, grant leave to appeal although I do not think it is necessary. I would treat the draft notice of appeal dated 12 June 2018 accompanying the application for leave to appeal filed on 12 June 2018 as the notice of appeal filed on 12 June 2018, and I would dismiss the appeal with costs.

Application to discharge stay of orders of primary judge

67    On 7 June 2018, the primary judge made an order staying orders 2, 3 and 7 made by him up to and including 14 June 2018. On that day, and with the agreement of the parties, having programmed the hearing of the application for leave to appeal and appeal for today, I extended the stay of those orders up to midnight on 18 June 2018. Orders 2, 3 and 7 were the orders setting aside the writ, setting aside the arrest warrant and dismissing the proceedings. The consequences of those orders being stayed was that the vessel remained under arrest and the proceedings remained on foot.

68    An application is made by the respondents to the appeal for the discharge of that stay, thereby facilitating the release of the vessel upon any formalities, financial or otherwise, being complied with. The appellants, through their counsel, seek a continuation of the stay for 24 hours, by which I take to mean up to midnight tomorrow, Tuesday 19 June 2018. The basis for that application was expressed not as to seek time to seek special leave to appeal to the High Court against the dismissal of the appeal, but rather to obtain time to commence proceedings by another writ and issue another, as I would understand it, arrest warrant.

69    In my view, it would not be of proper purpose to extend the stay of these proceedings in circumstances where the Court is of the clear view that the orders of the primary judge were rightly made, and in circumstances where the appellants have not said that special leave will be sought but seek to to continue the stay for the purpose of another proceeding. Such a course would be to seek an advantage to proceedings which the court is of the view should be dismissed, for the purpose of an advantage in separate proceedings. Thus, I would not extend the stay and I would discharge the stay made by order 1 on 14 June 2018.

RARES J:

70    I agree with everything that the Chief Justice has said.

71    There are three other matters to which I would simply refer. First, the primary judge referred to two occasions, prior to the final hearing, where the appellants had told the respondents that they would resist any attempts by the respondents to vacate the trial, based on their application to challenge Mr King’s status to bring the proceedings at all. That indicated that the appellants were determined that the trial proceed and, that they would be ready, when it commenced, to prove their case.

72    Secondly, one of the requirements of s 37M is that the Court apply the overarching purpose to facilitate the just resolution of disputes. In Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at 321 [51], French CJ, Kiefel, Bell, Gageler and Keane JJ said:

Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.

73    His Honour was entitled to have regard to those matters in concluding that it would not be consistent with the overarching purpose, or the just resolution of these proceedings, to grant each of the three discretionary applications that the appellants put to him for two adjournments and the issue of a letter of request.

74    Thirdly, Aedit Abdullah J, of the High Court of Singapore, when refusing recognition of Mr King as a foreign representative under the UNCITRAL Model Law on Cross-Border Insolvency, said in the passage that the Chief Justice has set out at [16] above, that if a person such as Mr King, was in breach of the Singapore Court’s orders the person “cannot generally seek the assistance of the courts unless the non-compliance is rectified or purged”. As a result, he refused to recognise Mr King as a foreign representative of Zetta on the public policy ground in Art 6 of the Model Law. The primary judge did not refer to this in support of his reasoning in respect of any prospect that the Singapore Court would grant a letter of request on Zetta’s and Mr King’s application. However, the prospect that it would not do so, in light of Aedit Abdullah J’s observations, was part of the overall circumstances that the primary judge could take into account in deciding whether to grant an application for evidence to be taken in Singapore on the less than full material before him on the first day of the trial.

75    Like the Chief Justice, I am unable to see any basis on which to find that there was any error by the primary judge in making any of the three decisions complained of. I also agree with Middleton J’s reasons.

MIDDLETON J:

76    I agree with the reasons given by both Allsop CJ and Rares J.

77    In addition, I emphasise two matters which seem to me to be determinative of the appeal. First, the primary judge in his reasons made a number of undisputed findings of fact relating to the important issue of the attempts to secure the attendance of witnesses at [14], [16]-[17], [47]-[49] and [50] which have been referred to by Allsop CJ. Significantly, after considering the evidence supporting those findings of fact, the primary judge concluded at [51] that the applicants had manifestly failed to ensure that the matter was ready for trial at the date set down for hearing. On the basis of these important findings in particular, the primary judge had ample basis to reach the conclusion he did and to make the appropriate orders dismissing the proceeding.

78    Secondly, as the Full Court said in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 273 ALR 147 (Keane CJ, Gilmour and Logan JJ) at [69], a Full Court should be very slow to attempt to “second-guess” a primary judge’s conclusion in relation to such matters as have arisen before us in this appeal. The primary judge dealt with the questions before him for decision in accordance with the current applicable principles set out by the legislature in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and by the High Court of Australia in Sali v SPC Ltd & Anor (1993) 116 ALR 625 and Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

79    The primary judge was aware that he was dismissing the proceeding in its entirety. His Honour would have been aware this may (but not necessarily) cause difficulties with the application of the principles of res judicata and abuse of process should the applicants seek to reinstitute a fresh proceeding in respect of the same claim. The primary judge was thus well aware of and took into account the potential prejudice that would be suffered by the applicants if he dismissed the proceeding. The primary judge then weighed up the prejudice to the respondent and to the administration of justice.

80    No error is to be found in the approach of the primary judge. The overall result arrived at by him was not unreasonable or plainly unjust so as to infer that in some way there had been a failure properly to exercise any discretion which led the primary judge to eventually dismiss the proceedings: see House v The King (1936) 55 CLR 499 (Dixon, Evatt and McTieman JJ) at 505.

81    In my view, no leave to appeal is required as the dismissal of the proceeding by the primary judge was final. The appeal has now been heard and should be dismissed. I agree with the orders proposed by Allsop CJ.

ALLSOP CJ:

82    So, the orders of the court will, therefore, be:

1.    The draft notice of appeal dated 12 June 2018 accompanying the application for leave to appeal filed on 12 June 2018 be taken to be the notice of appeal filed on 12 June 2018.

2.    The appeal be dismissed with costs.

3.    Order 1 of the orders of Allsop CJ made on 14 June 2018 be vacated and thereby the stay of orders 2, 3 and 7 of the orders made by Burley J on 7 June 2018 extended by order 1 of the orders of Allsop CJ made on 14 June 2018 be discharged.

Associate:

Dated:    25 June 2018