FEDERAL COURT OF AUSTRALIA

Reed v Sunland Waterfront (BVI) Ltd [2010] FCA 618

THE COURT ORDERS THAT:

1.                  Pursuant to O 52 r 37(2) of the Federal Court Rules, the hearing of the application for leave to appeal be heard concurrently with, or immediately before, the hearing of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             Mr Reed, the applicant, wishes to appeal the decision of Logan J of 31 March 2010 – [2010]   FCA 312 – dismissing his application for an anti-suit injunction against Sunland Waterfront (BVI) Ltd and Sunland Group Limited.  Henceforth, I will refer to both respondents as “Sunland”.  The injunction sought from Logan J was to restrain Sunland from pursuing a civil right claim for compensation arising as an adjunct to certain criminal proceedings that are being pursued against Mr Reed and others by the public prosecution authorities in the Dubai Court of First Instance.

2                                             In those proceedings, Mr Reed has been charged with defrauding Sunland, arising out of a project to develop land in the Dubai Waterfront development.  If that prosecution is successful against Mr Reed, under the law in the United Arab Emirates, Sunland has a right to pursue this civil claim for compensation against Mr Reed.  Mr Reed is presently in Australia and, according to what Logan J was told, he does not presently intend to return to Dubai.  As well as pursuing this civil right claim for compensation in Dubai, Sunland has commenced proceedings in this Court claiming damages against Mr Reed and others, under s 52 of the Trade Practices Act 1974 (Cth), or for the tort of deceit.  Those proceedings have been set down for trial in October this year.

3                                             Because the decision of Logan J was an interlocutory decision, Mr Reed requires leave to appeal that decision, under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (“the Act”).  Furthermore, s 25(2) of the Act provides that applications for leave to appeal must be heard and determined by a single judge unless a judge directs it to be heard and determined by a Full Court, or unless the proceeding has already been assigned to a Full Court.  The latter has not occurred in this case.  Order 52 r 37(2) of the Federal Court Rules allows a party requiring leave to appeal to apply by notice of motion to have the application for leave to appeal heard concurrently with or immediately before the hearing of the appeal. 

4                                             It is obviously implicit in that order that if such an order is made by the Court, the hearing of the application for leave to appeal will be conducted by the Full Court that is to hear the appeal, ie if leave is granted.  Mr Reed has applied for this course to be followed in relation to his application for leave to appeal.

5                                             I might add that prior to the recent amendments to the Act, s 25(2) provided that applications for leave to appeal may, not must, be heard and determined by a single judge.  However, O 52 r 2AA provided, and still provides, for the latter, ie that such applications must be heard by a single judge in very similar terms to what s 25(2) of the Act now provides.  It follows that, in practical terms, the position is not altered.  Nonetheless, I mention this difference because applications of this kind were, and no doubt could still be, brought under O 52 r 2AA.

6                                             Collier J considered such an application in a recent decision of Edwards v Santos Limited [2010] FCA 34 (“Edwards”).  At [10] of that decision, her Honour stated that:  “There must be grounds justifying a departure from the prima facie position that applications for leave to appeal are to be heard and determined by a single Judge”.  I respectfully agree with those observations.

7                                             It follows that Mr Reed must persuade me that there is a good reason why his application for leave to appeal should be treated in this way.  In Edwards, Collier J distilled from a number of other decisions of this Court a list of considerations that may justify that course.  They include the following, at [10]:

·                    Factors of efficiency.  As a general rule applications for leave to appeal which are relatively straightforward will be more efficiently dealt with by a single Judge than by a Full Court.

·                    Whether orders the subject of the application for leave to appeal could properly be characterised as “a minor interlocutory squabble” …, or whether important and final consequences for the parties followed from the orders (irrespective whether substantive rights were determined). 

·                    Whether the applicant’s claims raise issues of novel and general importance which should be the subject of consideration by a Full Court.

·                    Whether, prima facie, it can properly be said that there are arguments of substance supporting the contention that the primary judgment is attended by sufficient doubt to warrant reconsideration by the Full Court, or substantial injustice, on the basis that a hopeless application should not be referred to the Full Court …   

·                    Factors of cost.  If the Court directs that the application for leave to appeal is to be heard by the Full Court concurrently with the appeal, the parties will be put [to] the expense of preparation for an appeal notwithstanding that leave to appeal may be refused.  The flip side of this particular coin is that, in the absence of such a direction, there is the potential for considerable duplication in submissions to the Full Court, in the sense that much of the same material will be covered during both the hearing of the application for leave to appeal and the actual appeal hearing.  Such a direction is, of course, subject to any contrary direction by the Full Court itself.

·                    Other factors relevant to the justice of the particular case or the interests of the particular parties, including the urgency of a hearing and determination in individual circumstances.

8                                             Mr Carmichael, counsel for Mr Reed, relied upon most of these considerations in one way or another.  Mr Monks, counsel for Sunland, did not oppose this application, but instead, he left it to Mr Carmichael to persuade me that the course proposed was justified.  However, Mr Monks did submit that the principles on anti-suit injunctions are well settled in Australia, that this case was determined on its own facts and it did not involve any issues that were novel or of general importance.  Taking into account the submissions of counsel, the matters set out in the draft notice of appeal and in the affidavit of Ms Lincoln, sworn 1 June 2010, without determining whether Mr Monks is correct in his submission that this case does not involve any issues that are novel or of general importance, I consider there are other good reasons among the considerations identified in Edwards that separately justify my directing that Mr Reed’s application for leave to appeal should be heard concurrently with, or immediately before, the hearing of his appeal.

9                                             My reasons for reaching that conclusion are these:  first, I do not consider this application for leave to appeal is straightforward.  In this respect, I agree with Mr Carmichael’s submissions that the leave application is likely to involve a close consideration of the substantive errors Mr Reed alleges are present in the decision of Logan J.  It is also likely to involve a close examination of the legal principles and authorities his Honour relied upon.  If leave is granted, that process will largely need to be repeated before the Full Court.  These matters therefore mean that the efficiency and cost considerations mentioned in Edwards are particularly important in this case.

10                                          Secondly, while the decision of Logan J is interlocutory in nature, the dismissal of Mr Reed’s application for an anti-suit injunction effectively marks the final determination of this aspect of these proceedings and thus the decision clearly has important and final consequences for Mr Reed.  This is also an important consideration mentioned in Edwards.

11                                          Thirdly, while this aspect depends to a large extent on how quickly the proceedings in the Dubai Court of First Instance proceed to a conclusion, if there is any validity in Mr Reed’s appeal, there is an obvious urgency that it be determined before the Dubai proceedings are concluded.  Otherwise, he may be deprived of the benefits of any injunction he may ultimately be able to obtain.  Whilst I have come to that conclusion, I should emphasise that I do not wish to be taken to be prejudging any application for expedition of the appeal hearing.  If any such application is to be made, it will have to depend on its own facts and circumstances.

12                                          Finally, I should add that I have deliberately avoided embarking upon any detailed examination of the merits of Mr Reed’s application for leave to appeal except to the extent of satisfying myself that it is not completely hopeless or bound to fail.  I consider that is the level of detail at which I should examine these issues in an application of this kind, which is essentially a precursor to an application for leave to appeal when such matters will be considered in detail. 

13                                          I therefore propose to make the orders sought.

14                                          I order, pursuant to O 52 r 37(2) of the Federal Court Rules, the hearing of the applicant’s application for leave to appeal is to be heard concurrently with or immediately before the hearing of the appeal.

Associate:

Dated:         25 June 2010