Federal Court of Australia

Bolin Technology Co., Ltd v BirdDog Technology Ltd [2024] FCA 129

ORDERS

THE COURT ORDERS THAT:

1.    The applicant has leave to file the interlocutory application and the affidavit of Edwina Mary Kwan dated 22 February 2024 in Court and is directed to do so forthwith.

2.    The interlocutory application be returnable immediately.

3.    Upon the usual undertaking for damages on behalf of the applicant by its counsel, the respondents be restrained until 5pm on the return date from taking any further step in the proceeding commenced by them against other parties and the applicant in the United States District Court for the Central District of California, or elsewhere in the United States:

(a)    To restrain or seek to restrain the hearing of this claim for interlocutory relief, or any other aspect of this proceeding, whether by way of an application for an anti-suit injunction or other form of relief;

(b)    To otherwise interfere with the applicant’s claim for relief in this proceeding.

4.    The applicant is by 7pm on 22 February 2024 to serve on the respondents a copy of these orders, the interlocutory application, the applicant’s written submissions, and the affidavit of Ms Kwan by email to john.kelly@klgates.com and jonathan.chan@klgates.com, the requirements for service of those documents being otherwise abridged.

5.    The matter is relisted before the docket judge, Anderson J, at 9:30am on 7 March 2024 in Melbourne or at such other time and place as directed by the docket judge for consideration of whether to continue order 3.

6.    These orders to be entered forthwith.

7.    Costs reserved.

8.    There be liberty to apply on reasonable notice.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

STEWART J:

1    This interlocutory application comes to me as the Commercial & Corporations duty judge in Sydney, which is to say, the New South Wales Registry of the Court. It comes on an urgent ex parte basis for an anti-anti-suit injunction. As I will come to, the underlying proceeding which is sought to be protected by that injunction is a proceeding for relief commenced and on foot in this Court but in the Victoria Registry of the Court. The anti-anti-suit injunction is sought by way of interlocutory application in the Victorian proceeding.

2    At the outset of the hearing, I enquired as to why the extraordinary step was taken to come before the New South Wales duty judge in a Victorian case. The answer given is that there is great urgency in the matter and it might have taken too long to arrange for a hearing in Melbourne. That is said to be because the applicant’s solicitors and counsel are in Sydney. That of course overlooks that the duty judge in Melbourne would doubtless have been prepared to hear the application remotely by audiovisual link. That said, by the time the matter came before me, further time had been lost; if I had refused to hear the matter and insisted that it be heard in the Victoria duty system, the hearing would likely not have been able to be heard until tomorrow. Also, one of my colleagues there would have been burdened with it in circumstances where much of the matter had already been explained to me.

3    On the basis that I am satisfied that there is substantial urgency in the case such that further delay could cause significant prejudice, which I will explain below, and that I have power to hear the matter, I was reluctantly prepared to hear the case in the NSW duty system. The expedient of listing a matter before the duty judge in a registry other than the registry in which the process is filed is nevertheless extraordinary and I do not mean by having tolerated it in this case to set any precedent for any party in the future attempting to follow such a course.

4    The applicant is Bolin Technology Co Ltd, a Chinese company which manufactures video cameras. The two respondents are, respectively, BirdDog Technology Ltd, a company incorporated in Australia and listed on the Australian Securities Exchange, and BirdDog Australia Pty Ltd, a wholly owned subsidiary of the first respondent.

5    The principal proceeding was commenced on 24 January 2024. It relates to the supply by Bolin of PTZ (pan, tilt, zoom) cameras and other devices to the respondents. The statement of claim alleges damages for repudiation of purchase orders (ie contracts) which are said to be governed by Australian law and breaches of the Australian Consumer Law (ACL). On the face of the statement of claim and the facts before me at this stage, there is nothing to suggest that the ACL claim might be colourable.

6    The matter has been docketed to Anderson J and a first case management hearing has been listed for 2 May 2024. The respondents’ solicitors on the record of correspondence as between the solicitors are K&L Gates in Melbourne, although they are not yet on the Court record in that they have not yet filed an address for service.

7    The urgency of the matter arises from the respondents – whom I shall refer to as the BirdDog parties – having threatened to obtain an anti-suit injunction restraining Bolin from continuing the proceeding in this Court in a proceeding in the US District Court for the Central District of California. That threat was made by way of correspondence between US counsel for the parties late in the afternoon of Tuesday 20 February 2024 in California, which is to say in the middle of the day on 21 February 2024 (ie yesterday) on the east coast of Australia. That correspondence states that the BirdDog parties seek an anti-suit injunction enjoining the defendants there from pursuing “the parallel lawsuit filed by Bolin Ltd against them in Australia”. It is also asserted that all the elements needed to obtain an anti-suit injunction are present. On that basis, I am satisfied that the threat of the anti-suit injunction is imminent.

8    It should be explained that in the US proceeding, Bolin was not originally named as a defendant. That proceeding was commenced on 7 November 2023 by the BirdDog parties against Mr Hoi Lo, an employee of Bolin, Mr Lo’s wife, Ms Lee, and 2082 Technology LLC, a company incorporated in California. It is alleged in that proceeding that the defendants there are alter egos of Bolin. The BirdDog parties have subsequently sought to join Bolin to that proceeding. The claim there is for the repayment of deposits paid on a number of purchase orders as between the BirdDog parties and Bolin.

9    I am satisfied that there is a substantial overlap between the proceeding in this Court and the proceeding in the US. They cover at least substantially the same purchase orders as between the same parties and relate to the same underlying dispute about the termination of the contractual arrangements between them. As mentioned, the BirdDog parties assert in the US that the two proceedings are “parallel”.

10    The means by which Bolin says that the ACL is available to it in its claims against the BirdDog parties is via the United Nations Convention on Contracts for the International Sale of Goods, also known as the Vienna Convention. The Convention is incorporated into the law of Victoria through the Sale of Goods (Vienna Convention) Act 1987 (Vic) and s 86 of the Goods Act 1958 (Vic). It is said that by the terms of that Convention, the detail of which need not be gone into now, the law of Victoria applies. Even if the choice of law mechanism asserted by Bolin turns out to be wrong, it may be that the ACL also applies in the proceeding in this Court by operation of s 5(1)(c) and (g) of the Competition and Consumer Act 2010 (Cth). See Karpik v Carnival plc [2023] HCA 39; 98 ALJR 45.

11    Bolin is particularly concerned that in the event that its Australian proceeding is subject to an anti-suit injunction in the US and it is thereby forced to litigate its dispute with the BirdDog parties in the US, it will not be able to have recourse to the ACL. Mr Hughes, who appears for Bolin, rightly accepts that that is ultimately a matter for evidence on US law and is not yet established in the present proceeding. However, with reference to prior cases in this Court where that point has been litigated there is at least a substantial risk that the US District Court will not apply the ACL. See, for example, Home Ice Cream Pty Ltd v McNabb Technologies LLC (No 2) [2018] FCA 1093 at [5] and Karpik v Carnival plc (The Ruby Princess) (Stay Application) [2021] FCA 1082; 157 ACSR 1 at [291]-[328].

12    The result of that is that I am satisfied that Bolin has a well apprehended risk of significant harm if the proposed anti-suit injunction by the BirdDog parties in the US is allowed to proceed. Mr Hughes refers to Qantas Airways Ltd v Rolls Royce plc [2010] FCA 1481 and Home Ice Cream Pty Ltd v McNabb Technologies LLC [2018] FCA 1033 for the relevant principles. The point is that an anti-anti-suit injunction is necessary to protect the processes of this Court that have already been set in motion in the form of the underlying proceeding here by restraining the commencement of a foreign proceeding (the threatened anti-suit proceeding in the US) that would have the tendency to interfere with the proceeding pending before this Court. See CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; 189 CLR 345 at 392.

13    With reference to the authorities, I am satisfied that the fact that the US proceeding was commenced before the Australian proceeding is insufficient to deprive Bolin of its right to protect its interests in the Australian proceeding, those interests being those that I have explained in relation to the ACL. I am satisfied therefore that there is an arguable question to be tried at an inter partes hearing in due course.

14    With regard to the balance of convenience, I am satisfied that if the relief is not granted the applicant faces a risk of irreparable prejudice. That is, it may lose its ability to continue the Australian proceeding and thus to rely on its rights under the ACL. I am also satisfied that a short ex parte restraint on the BirdDog parties seeking an anti-suit injunction in the US proceeding will not cause them particular prejudice. There is no suggestion of urgency for them in seeking their proposed anti-suit injunction, other than to defeat this anti-anti-suit injunction.

15    In the circumstances, I am satisfied that the balance of convenience favours the making of orders in the nature of an anti-anti-suit injunction for a short period and to allow an inter partes argument on whether that anti-anti-suit injunction should continue to be heard in due course.

16    Given that the matter is docketed it seems to me that the most efficient way of dealing with it is to make the matter returnable before the docket judge. I propose to list a date two weeks’ hence for that purpose, although I note that that date may be changed at the direction of the docket judge and also that it may be that the matter has to be brought back before the duty judge if it cannot be accommodated by the docket judge.

17    In that regard, the protocol is that an interlocutory application arising within a matter that has been docketed should first be brought to the attention of the docket judge. If the circumstances of urgency and the docket judge’s availability are such that the docket judge cannot deal with the application, then it will be referred to the duty judge. It goes without saying that in the event it is referred to the duty judge, that should be to the relevant duty judge in the Victoria registry.

18    In the circumstances, I will make orders along the lines of those sought by the applicant.

Associate:

Dated:    22 February 2024