FEDERAL COURT OF AUSTRALIA

Bolin Technology Co Ltd v BirdDog Technology Ltd [2024] FCA 286

ORDERS

THE COURT ORDERS THAT:

1.    The Respondents’ interlocutory application dated 22 February 2024 be dismissed.

2.    The Respondents pay the Applicant’s costs of the Respondents’ interlocutory application dated 22 February 2024.

3.    The Respondents file and serve their Defence within 28 days of the date of this order.

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

ORDERS

PENAL NOTICE

TO:    BIRDDOG TECHNOLOGY lIMITED AND BIRDDOG AUSTRALIA PTY LTD

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)    REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)    DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT ORDERS THAT:

1.    Upon the usual undertaking for damages, the Respondents be restrained from taking any further step in the proceeding commenced by it against the Applicant in the United States District Court for the Central District of California or elsewhere:

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

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

2.    The Applicant’s interlocutory application dated 22 February 2024 otherwise be dismissed.

3.    The costs of the Applicant’s interlocutory application dated 22 February 2024 be reserved.

4.    These orders be entered forthwith.

5.    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

ANDERSON J:

INTRODUCTION

1    On 7 November 2023, the respondents (BirdDog) commenced a proceeding in the United States District Court for the Central District of California (US Court). That proceeding, which I will refer to as the US Proceeding, was initially brought against, amongst others, the applicant’s (Bolin) chief executive officer, Hoi “Kyle” Lo, who resides in California, and 2082 Technology, LLC. By an Amended Complaint filed on 12 January 2024 in the US Proceeding, Bolin was added as a defendant to the US Proceeding. Following the commencement of the US Proceeding and the filing of the Amended Complaint, Bolin commenced a proceeding against BirdDog in this Court.

2    Before this Court are competing interlocutory applications by Bolin and BirdDog, each filed on 22 February 2024, concerning the appropriate venue for those proceedings.

3    Bolin seeks orders restraining BirdDog from continuing the US Proceeding (anti-suit injunction). Bolin also seeks the continuation of an order made by Stewart J ex parte on 22 February 2024 to restrain BirdDog from making a threatened application to a US Court to restrain this proceeding (anti-anti-suit injunction). BirdDog seeks a permanent stay or, alternatively, a temporary stay of the proceeding in this Court pending the determination of the US Proceeding.

4    Bolin relies on the affidavit of Edwina Mary Kwan affirmed on 22 February 2024 and Exhibit EMK-1 thereto; the affidavit of Guangquan Guo affirmed on 4 March 2024 and its annexures; and the expert report of Stephen G Larson, a former judge of the United States District Court, Central District of California, dated 4 March 2024.

5    BirdDog relies on the affidavit of Ryan Keech sworn on 21 February 2024; the affidavit of Daniel Charles Miall affirmed on 22 February 2024; and the affidavit of Alex Kozinski, Former Chief Judge of the United States Court of Appeals for the Ninth Circuit sworn on 4 March 2024.

Factual Background

BirdDog

6    BirdDog is a vendor of streaming video technology, including pan, tilt and zoom robotic remotely controlled video cameras.

7    The First Respondent, BirdDog Technology Limited (BirdDog Technology), is incorporated in Australia, listed on the Australian Securities Exchange, and has its principal place of business in Victoria.

8    The Second Respondent, BirdDog Australia Pty Ltd (BirdDog Australia), is a wholly owned subsidiary of BirdDog Technology. It also has its principal place of business in Victoria.

9    BirdDog’s headquarters are in Melbourne. BirdDog’s employees live in Victoria, and the United States, amongst other places.

10    Daniel Miall is the Chief Executive Officer and co-founder of BirdDog Technology and BirdDog Australia. He lives in Melbourne.

Bolin

11    Bolin is a company organised under the laws of the People’s Republic of China and manufactures pan, tilt and zoom (PTZ) cameras. It has its principal place of business in Shenzhen, People’s Republic of China.

12    In its submissions before this Court, BirdDog refers to a further company described as “Bolin LLC”. Bolin submits that no such company exists, and instead, this is a reference to a company that distributes Bolin’s cameras in the United States, 2082 Technology, LLC. Hereafter in these reasons, I will refer to this company as 2082/Bolin LLC.

13    2082/Bolin LLC is incorporated in California. Its principal place of business is in California.

14    It is alleged by BirdDog in the US Proceeding, and BirdDog says it will allege in this proceeding if this proceeding is not stayed, that Bolin and 2082/Bolin LLC operate as a “united enterprise”, and that both companies are engaged in the same work.

15    Mr Lo is the Chief Executive Officer and co-founder of each of Bolin and 2082/Bolin LLC. He lives in California. His wife, Jennifer Lee, a defendant in the US Proceeding, also lives in California.

16    Neither Bolin nor 2082/Bolin LLC own any real property in Australia.

The Dispute

17    The nature of the dispute is identified in Bolin’s Statement of Claim filed on 24 January 2024 and the affidavits of Mr Guo and Mr Miall, which may be summarised as follows.

18    Bolin manufactures PTZ cameras in China. BirdDog Technology and BirdDog Australia are Australian companies that sell PTZ cameras. Bolin has manufactured PTZ cameras for BirdDog since 2018.

19    There is some inconsistency in the evidence as to the contractual arrangements between Bolin and BirdDog for the manufacture of PTZ cameras. In summary:

(a)    In his affidavit at [13], Mr Guo deposes that, in around September 2017, Bolin and BirdDog entered into discussions about Bolin manufacturing cameras for BirdDog. On 4 September 2017, Bolin and BirdDog concluded a non-disclosure agreement (NDA) to discuss a proposal for Bolin to manufacture BirdDog-related products and product development. The parties to the agreement are described as Bolin and “BirdDog Pty Ltd”. Bolin’s address is identified as Shenzhen. The governing law of the NDA is Victoria.

(b)    In his affidavit at [14], Mr Guo deposes that these negotiations were successful and Bolin began, from 2018, developing, manufacturing and supplying PTZ cameras to BirdDog.

(c)    In his affidavit at [16]-[22], Mr Guo deposes that, between 2018 and 2021, BirdDog issued approximately 90 purchase orders to Bolin, and both parties established a set of practices and processes for the order, manufacture, payment and delivery of PTZ cameras. In summary:

(i)    BirdDog would send a purchase order for the PTZ cameras from its office in Victoria to Bolin’s office in Shenzhen.

(ii)    Bolin would communicate acceptance of the Purchase Order either through email, WeChat message or by commencing manufacture of the specified products.

(iii)    Upon acceptance of the Purchase Order, Bird Dog would pay a non-refundable deposit.

(iv)    Bolin would use the deposit, and where required its own capital, to purchase the necessary components and materials to manufacture the camera products.

(v)    The manufacture of the camera products involved a research and development process, which occurred in Bolin’s facilities in Shenzhen.

(vi)    Prior to the final products being shipped, BirdDog and Bolin would agree to the final unit price for the product, and BirdDog would pay Bolin the outstanding balance of the purchase order prior to shipment and delivery of the products.

(vii)    Upon receipt of full payment from Bird Dog’s Australian bank account into Bolin's nominated Chinese bank account, Bolin would ship the products to BirdDog.

(d)    A letter dated 1 January 2021, sent from “Bolin Technology” to “BirdDog Australia”, and styled as a “Manufacturing Agreement and Warranty Statement”, refers to the prior relationship of BirdDog and Bolin. The letter states that “Bolin has an understanding and agreement, established over more than 3 years of working together including a history of production, with BirdDog to manufacture BirdDog branded cameras and controllers (products) on behalf and under the instruction of BirdDog”. The letter further states that the relevant products are assembled with a combination of BirdDog-supplied componentry and Bolin-supplied componentry, with the finished product sold under the BirdDog brand. The letter states that Bolin delivers finished goods to BirdDog’s “logistic centre of choice”. The address of the sender at the bottom of the letter is in Shenzhen.

(e)    In his affidavit at [12], Mr Miall deposes that, between June 2021 and May 2023, “BirdDog and the Bolin Parties [a defined term said to refer to ‘Bolin LLC and Bolin Ltd’] entered into various oral and written contracts (the Contracts) pursuant to which the Bolin Parties agreed to produce and deliver to BirdDog various cameras”. Mr Miall does not clarify which documents are said to constitute the “written contracts” to which he refers. He further states that, to negotiate these contracts, he attended in person meetings with Mr Lo and Ms Lee in Los Angeles, Las Vegas, Shenzhen and Amsterdam: at [18]. He also deposes that he met with Mr Lo virtually and, on almost all occasions, Mr Lo was at either his home or his office in Los Angeles: at [19].

20    The dispute before this Court concerns 10 purchase orders that BirdDog issued to Bolin between October 2020 and July 2023. The purchase orders were accepted by Bolin and were followed by the payment by BirdDog of deposits of between 30% and 50% of the purchase price. Following receipt of these purchase orders and payment of the respective deposit, Bolin undertook the research and development process and purchased the necessary components, so as to commence manufacture of the cameras ordered by BirdDog.

21    A dispute arose as to Bolin’s completion of the disputed purchase orders.

22    On 5 September 2023, BirdDog purported to cancel the disputed purchase orders. That cancellation was recorded in a letter, which was sent by email from Barry Calnon, the Chief Financial Officer of BirdDog, to Mr Lo. Mr Lo responded by email, stating that Bolin did not accept any cancellation of the purchase orders. Consistently with other emails sent by Mr Lo to BirdDog, the signature in Mr Lo’s email contained an office and mobile number which were preceded by a Los Angeles County area code. The email signature also contained the following text: “Bolin Technology is a 2082 Technology LLC company”.

23    BirdDog’s purported cancellation was then followed by an email from Mr Calnon, and a further email, both sent on 5 September 2023, which stated that BirdDog would not cancel any purchase orders (Representation). By its Statement of Claim filed in this proceeding, Bolin alleges that, in reliance on this Representation, Bolin continued to manufacture the cameras the subject of the disputed purchase orders. On 25 October 2023, an officer of Bolin, Helen Song, confirmed that a shipment of cameras would be ready on 30 October 2023, pending the receipt by Bolin of final payment.

24    It is apparent from email correspondence between Ms Song to Pete Daly, the account and logistics executive of BirdDog, that as late as 8 November 2023, Ms Song was inquiring as to when BirdDog would make payment for the shipment. As has previously been noted, BirdDog commenced the US Proceeding on 7 November 2023.

25    At the date of the hearing of the applications in this proceeding, BirdDog had not paid for and taken delivery of the cameras. The cameras ordered by BirdDog remained in a warehouse in Shenzhen.

The Federal Court proceeding

26    On 24 January 2024, Bolin issued a proceeding in this Court against BirdDog in respect of 10 disputed purchase orders.

27    By its Statement of Claim, Bolin alleges that BirdDog has:

(a)    cancelled, refused to make payment and refused to take delivery of certain cameras and equipment, and in so doing, has repudiated and committed a fundamental breach of the disputed purchase orders;

(b)    committed a breach of contract in respect of the disputed purchase orders by failing to pay for and take delivery of certain products;

(c)    committed a breach of contract in respect of the disputed purchase orders by refusing to provide Bolin with necessary hardware, software and firmware;

(d)    represented that it would perform its obligations under the disputed purchase orders, collaborate with Bolin, and maintain Bolin’s exclusivity as BirdDog’s camera manufacturer, which Representation was relied upon by Bolin, and which were misleading or deceptive, in contravention of s 18 of the Australian Consumer Law (ACL) (as contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA)).

28    Bolin alleges that its contract claim is governed by Australian law, by reason of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention) which has force by reason of the Goods Act 1958 (Vic).

29    By its claim under s 18 of the ACL, Bolin claims for losses sustained by reason of Bolin’s reliance on the Representation. Bolin alleges that the ACL applies because a representation was made by BirdDog which are bodies corporate registered in Australia and carrying on business in Australia.

30    Bolin alleges that the quantum of its claim against BirdDog is at least US $11 million.

The US Proceeding

31    Prior to Bolin commencing the proceeding in this Court, on 7 November 2023, BirdDog commenced the US Proceeding. Bolin was not initially a party to that proceeding. The Complaint filed in the US Proceeding named as defendants Mr Lo, 2082/Bolin LLC and other persons described as “DOES 1 through 25”. BirdDog refers to 2082/Bolin LLC in the Complaint (and in Mr Keech’s affidavit in this proceeding) as “Bolin LLC”. As previously addressed, Bolin claims that no such company exists.

32    On 12 January 2024, BirdDog filed an Amended Complaint which added Bolin and Ms Lee (Mr Lo’s wife) as defendants in the US Proceeding. The Amended Complaint describes Bolin and 2082/Bolin LLC collectively as the Bolin Defendants.

33    After filing the Amended Complaint, BirdDog attempted to serve it on Bolin. In his affidavit in this proceeding, Mr Keech deposes (at [22]) that, on 12 February 2024, Bolin was served at its “California headquarters”. He states that Bolin was served by handing the Amended Complaint to Zhen Lin, who he describes as “an authorised person to accept service on behalf of Bolin”. It is not apparent from Mr Keech’s affidavit evidence the basis on which Mr Lin is said to have been authorised to accept service on behalf of Bolin. In his affidavit in this proceeding, Mr Guo deposes (at [8]) that Mr Lin is not an employee of Bolin and is not authorised to accept service on behalf of Bolin.

34    The US Proceeding shares an overlapping factual sub-stratum with the present proceedings. By the Amended Complaint, BirdDog relevantly alleges that:

(a)    the defendants (including the Bolin Defendants, Mr Lo and Ms Lee) represented that the Bolin Defendants were an “original equipment manufacturer” specialist that could and would manufacture cameras for BirdDog;

(b)    the Bolin Defendants hold themselves out as a single, unified enterprise and at all relevant times, Bolin was the alter ego or agent of 2082/Bolin LLC. The Bolin Defendants share business addresses, employees, executives and attorneys, and their assets are comingled in their businesses;

(c)    BirdDog and the Bolin Defendants entered into six oral and written contracts (on 30 June 2021, 23 September 2021, 5 August 2022, 21 October 2022, 31 March 2023 and 17 May 2023) pursuant to which BirdDog agreed to purchase and the Bolin Defendants agreed to manufacture and deliver various products (the Contracts);

(d)    as required by the Contracts and in reliance on the Bolin Defendants’ representations, BirdDog paid deposits of between 30% and 50% of the contract price. The deposits paid by BirdDog total US$3,060,883.10;

(e)    despite BirdDog making repeated requests for delivery, the Bolin Defendants have failed to deliver 9,670 of the cameras that BirdDog had ordered, and have refused to return the amounts which BirdDog had paid to the Bolin Defendants as deposits pursuant to the Contracts;

(f)    by their conduct, the Bolin Defendants breached the Contracts;

(g)    the governing law of the Contracts is Californian law; and

(h)    the proper venue for the determination of the parties’ dispute is the Central District of California.

35    A number of other causes of action are pleaded in the Amended Complaint, including that:

(a)    the Bolin Defendants, Mr Lo and Ms Lee engaged in unlawful, unfair and deceptive business practices in violation of the California Business & Professions Code § 17200; and

(b)    the Bolin Defendants, Mr Lo and Ms Lee and others engaged in a conspiracy to use and disclose BirdDog’s trade secrets in violation of the Defend Trade Secrets Act of 2016 USC § 1832.

36    On 15 December 2023, BirdDog filed in the US Proceeding applications for writs of attachment against Mr Lo and 2082/Bolin LLC. Attachment is an interlocutory remedy not unlike a freezing order. In this case, if the writs were issued, they would have enabled BirdDog to seize approximately US$3.4 million from Mr Lo personally. On 13 February 2024, the US Court denied BirdDog’s application on the basis that BirdDog could not demonstrate “the probable validity of its claims”.

37    On 26 January 2024, Mr Lo and 2082/Bolin LLC brought a motion to dismiss the Amended Complaint. On 9 February 2024, Ms Lee also filed a motion to dismiss the Amended Complaint.

38    As at the time of the hearing of the parties’ applications in this Court, the hearing date for the motions to dismiss was 11 March 2024.

BIRDDOG’S APPLICATION FOR A PERMANENT STAY

Submissions

39    It was not in dispute between the parties that Bolin has regularly invoked the jurisdiction of the Australian courts and “has a prima facie right to insist on its exercise”: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554 (Mason CJ, Deane, Dawson and Gaudron JJ) (Voth). However, the Court has the power to order that this proceeding be stayed if it is satisfied that it is a “clearly inappropriate forum” for resolution of the parties’ dispute: Voth at 559.

40    BirdDog relies on the following factors in support of its contention that this Court is a “clearly inappropriate forum”:

(a)    On BirdDog’s submission, there is a significant connection between California and the subject matter of the dispute, including because of the following matters:

(i)    According to BirdDog, Bolin operates its business, in part, from California. This allegation is contested by Bolin.

(ii)    Bolin’s Chief Executive Officer (Mr Lo) lives in California.

(iii)    While working from California, Mr Lo and Ms Lee approached BirdDog to discuss the Bolin Defendants’ interest in meeting BirdDog’s camera manufacturing needs.

(iv)    Following that approach, the parties met in California to negotiate the Contracts and discuss business nine times. They met in Melbourne on only one occasion.

(v)    When the parties met virtually, Mr Lo was (on almost all occasions) physically located in California.

(b)    By reason of the nexus between California and the subject matter of the Contracts, BirdDog alleges in the US Proceeding (and in this proceeding in the event it is not stayed) that the Contracts are governed by Californian law.

(c)    BirdDog submits that there is no juridical advantage to Bolin litigating its claim in Australia:

(i)    The US Court has jurisdiction to hear and determine the claim it brings against BirdDog for contravention of s 18 of the ACL. In hearing and determining Bolin’s claim for contravention of s 18 of the ACL, the US Court would exercise either diversity jurisdiction or supplemental jurisdiction.

(ii)    Bolin could bring its claim for contravention of s 18 of the ACL as a counterclaim (either compulsory or permissive) in the US Proceeding.

(iii)    If the claim for contravention of s 18 of the ACL were brought using diversity jurisdiction, the US Court would be required to hear it. Were it brought using supplemental jurisdiction, the US Court would have a discretion to decline to exercise such jurisdiction, but it would be highly unlikely for it to do so (and it would be an abuse of process for it to do so if the counterclaim was a compulsory counterclaim), particularly where – as here – BirdDog has obligated itself not to assert venue-based defences.

(iv)    BirdDog has indicated that in the event this proceeding is stayed, and Bolin wishes to bring all of its claims which are the subject of this proceeding in the US Proceeding, BirdDog would not oppose that course (but reserves its right to challenge those claims on their merits).

(v)    Further or alternatively, Californian law has an equivalent (or at least substantially similar) cause of action in its law to the action for misleading and deceptive conduct in breach of s 18 of the ACL – namely, a cause of action under the California Business and Professions Code § 17200.

(d)    BirdDog submits that the US Proceeding is based on the same sub-stratum of fact, and in respect of which there is a significant potential of conflicting findings, including in respect of the following:

(i)    The identity of the parties to the Contracts / disputed purchase orders (that is, whether BirdDog contracted with Bolin only (as Bolin alleges in this proceeding), or with Bolin and 2082/Bolin LLC (as BirdDog alleges in the US Proceeding including by virtue of the “unified enterprise” and/or alter ego and agent allegations);

(ii)    The governing law of the Contracts / disputed purchase orders (that is, whether it is Californian law (as BirdDog alleges in the US Proceeding) or the Vienna Convention (as Bolin alleges in this proceeding);

(iii)    Whether the Bolin Defendants breached the Contracts by failing to deliver the balance of the cameras that BirdDog had ordered (as BirdDog alleges in the US Proceeding) or whether BirdDog breached and repudiated the Contracts in circumstances where the Bolin Defendants tried to deliver the cameras, but BirdDog failed to take delivery of them (as Bolin alleges in this proceeding).

(e)    BirdDog submits that the US Proceeding was commenced before this proceeding, and the parties have already committed significant resources to pursue it in the US Court, including by the writ of attachment (which has now been heard and determined) and motions for dismissal (which are listed to be heard on 11 March 2024).

41    For those reasons, BirdDog submits that this Court is a “clearly inappropriate forum” for the resolution of the parties’ dispute. On that basis, BirdDog submits that the proceeding in this Court ought to be permanently stayed, and the originating application filed on 24 January 2024 set aside.

42    Bolin submits that BirdDog cannot satisfy its heavy onus that Australia is a “clearly inappropriate forum”. Bolin submits that Australia is clearly the appropriate forum for this proceeding and, as a consequence, BirdDog's interlocutory application for a permanent stay should be refused.

Consideration

43    The power to stay this proceeding if Australia is a “clearly inappropriate forum” is discretionary. In Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 (Oceanic), Deane J stated, at 247-8, that the power to stay a proceeding on “inappropriate forum grounds” involved a “subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression”. Nonetheless, his Honour stated that the power should “only be exercised in a clear case”: Oceanic at 248. In the subsequent case of Voth, Mason CJ, Deane, Dawson and Gaudron JJ stated that the jurisdiction to grant a stay is to be exercised with “extreme caution”: at 554.

44    The rationale for the exercise of the power to stay is the avoidance of injustice between the parties: Voth at 554.

45    BirdDog bear the onus of establishing that Australia is a “clearly inappropriate forum”: Oceanic at 248; Voth at 564; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 (Renault) at [78], [82] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

46    In determining whether Australia is a “clearly inappropriate forum”, the focus is “upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum”: Voth at 565, quoted in Puttick v Tenlon Ltd (2008) 238 CLR 265 (Puttick) at [27] (French CJ, Gummow, Hayne and Kiefel JJ). In determining whether Australia is a “clearly inappropriate forum”, the Court may take into account relevant “connecting factors” and “legitimate personal or juridical advantage[s]”: Voth at 564-5.

47    In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (CSR) at 400-1, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ stated that, where different issues are involved in local and foreign proceedings but the different proceedings arise out of the same sub-stratum of fact, the question is whether, in the context of the whole controversy, the proceedings are “vexatious or oppressive” in the sense that they are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging”: see also Henry v Henry (1996) 185 CLR 571 (Henry) at 587 (Dawson, Gaudron, McHugh and Gummow JJ).

48    As Deane J said in Oceanic at 245:

Notions of vexation and oppression in this context involve an essential element of injustice. If the action has a significant connection with the territorial jurisdiction of the local court (e.g. domicile of the defendant, locus of the relevant transactions, applicable law) and regularly instituted proceedings in that court involve some legitimate and substantial advantage to the plaintiff (e.g. effective enforcement of any judgment) which would not be available in proceedings in the foreign tribunal which the defendant claims is the appropriate one for their determination, it is difficult to imagine circumstances in which it could properly be held by the local court that it was such an inappropriate forum for the proceedings that their continuance would be oppressive or vexatious to the defendant.

49    I am satisfied that Bolin has regularly invoked the jurisdiction of this Court and “has a prima facie right to insist upon its exercise”: Voth at [554]. I am also of the view that BirdDog has not established on the evidence that this Court is a “clearly inappropriate forum” for the hearing and determination of this proceeding (Voth at [559]), nor has it established that this proceeding is “vexatious or oppressive” (CSR at 400). My conclusion is based on the following connecting factors and legitimate advantages arising from a proceeding in this Court.

50    First, while I accept there is some conflict in the evidence as to the contracting parties, the written contracts in evidence establish a prima facie connection between Australia and the subject matter of the dispute in this proceeding.

51    The Court was taken to the NDA dated 4 September 2017 between BirdDog and Bolin, which was entered into when Bolin and BirdDog first entered into discussions about Bolin manufacturing PTZ cameras for BirdDog. “BirdDog Pty Ltd” is identified as a party to the NDA, and its address is identified as in Victoria. Bolin’s address is identified as in Shenzhen. The NDA expressly states that the agreement is governed by the laws of Victoria, Australia.

52    The other written agreement to which the Court was taken was the letter styled as a “Manufacturing Agreement and Warranty Statement” dated 1 January 2021. This letter must be understood in the context of BirdDog and Bolin’s pre-existing relationship. Since 2018, Bolin has been manufacturing and supplying PTZ cameras to BirdDog. BirdDog’s headquarters are in Melbourne. In his affidavit, Mr Guo deposes that, between 2018 and 2021, BirdDog issued approximately 90 purchase orders to Bolin for PTZ cameras, and the manufacture, payment and delivery of PTZ cameras occurred pursuant to an established practice set out at [19(c)] above. There is no evidence establishing any connection between that practice and the Bolin entity incorporated in the United States, 2082/Bolin LLC.

53    Notably, the Manufacturing Agreement and Warranty Statement refers to a prior “understanding and agreement” established over “more than 3 years of working together”. The letter thus appears to affirm the pre-existing practices of BirdDog and Bolin which, as I have said, do not have a connection with 2082/Bolin LLC or the United States. Further, the letter identifies Bolin’s address in Shenzhen, and BirdDog’s address in Australia. BirdDog’s prospectus for listing on the ASX dated 18 November 2021 refers to this letter, stating that “BirdDog Australia entered into a manufacturing agreement with Bolin Technology on 1 January 2021”. The prospectus defines Bolin Technology as “Bolin Technology Co Ltd, a company incorporated in China”.

54    I note that, in his affidavit at [12], Mr Miall refers to “various oral and written contracts” that BirdDog is said to have entered with what Mr Miall describes as the “Bolin Parties”. Mr Miall deposes that the contracts were agreed between June 2021 and May 2023. On Mr Miall’s evidence, these contracts were negotiated following several meetings, including in the United States. However, Mr Miall’s evidence does not identify the contracts to which he refers, and his affidavit does not annex or exhibit the written contracts to which he refers.

55    Second, the subject matter of the dispute in this proceeding has a significant connection with Australia which does not exist with the United States.

56    The dispute in this proceeding concerns 10 purchase orders that BirdDog issued from Melbourne to Bolin in Shenzhen between October 2020 and July 2023. Each of the disputed purchase orders also do not expressly identify any connection to 2082/Bolin LLC. The disputed purchase orders are on BirdDog letterhead and record the purchaser as “BirdDog Australia Pty Ltd”. The address of BirdDog is identified as in Collingwood, Victoria. The purchase orders record BirdDog’s email address, website and Australian Business Number. In all but one of the purchase orders, the vendor is identified as “Bolin Technology” and the vendor’s address is stated to be in Shenzhen. One purchase order describes the vendor as “Bolin Technology” without identifying the vendor’s address.

57    The evidence of Mr Guo, in his affidavit at [37], is that the purchase orders were accepted by Bolin and payment of a deposit was made by BirdDog from its nominated bank account in Australia with the Australia and New Zealand Banking Group Limited to Bolin’s nominated bank account in China with the Shanghai Pudong Development Bank Co. There is no evidence of involvement of 2082/Bolin LLC or any person based in the United States in respect of the acceptance and processing of the purchase orders.

58    The evidence is clear that Bolin undertakes research and develops and manufactures the PTZ cameras in China for delivery to BirdDog’s nominated shipping address which, in respect of the disputed purchase orders, was an address in Hong Kong. Again, there is no evidence of a connection with the United States nor with 2082/Bolin LLC in this process.

59    Given the above, the subject matter of the dispute has a significant connection with Australia which does not exist with the United States. That connection is in relation to the issuing of the disputed purchase orders by BirdDog from its headquarters in Melbourne, Australia; the acceptance of the purchase order by Bolin in Shenzhen; the forwarding of monies by BirdDog from its nominated bank account in Australia for deposit in Bolin’s bank account in China; and the development and manufacture of cameras by Bolin in Shenzhen. These matters point to the subject matter of the proceeding having a significant connection with Australia and not the United States.

60    Third, the events which took place after the dispute between the parties arose reveal a connection between Bolin in Shenzhen and BirdDog in Melbourne.

61    Notably, on 5 September 2023, BirdDog’s Chief Financial Officer, Mr Calnon (based in Melbourne), sent an email to Mr Lo and Ms Lee (based in California) and Mr Guo (based in Shenzhen) at Bolin, in which he requested fulfilment of some outstanding purchase orders and the cancellation of other existing purchase orders.

62    Throughout September and October 2023, Mr Daly, an account and logistics executive at BirdDog in Australia, communicated by email with Helen Song, an officer of Bolin located in China, regarding the payment and delivery schedule of the cameras the subject of the purchase orders.

63    Fourth, on the evidence before me, there is a prima facie case that the substantive law of Australia is the lex causae in this proceeding.

64    As I have previously noted, there is limited evidence of any written contracts between the parties. The written agreements to which I was taken – the NDA and the Manufacturing Agreement and Warranty Statement – were contractual arrangements between BirdDog in Australia and Bolin in Shenzhen. This, taken together with evidence of the creation of the 10 purchase orders by BirdDog in Australia issued to Bolin in Shenzhen between October 2020 and July 2023 and the acceptance of the purchase orders by Bolin, followed by the payment by BirdDog of deposits of between 30% and 50% of the purchase price from BirdDog’s bank account in Australia to Bolin’s bank account in China, provides a prima facie case that Bolin’s contract claims are governed by Australian law by reason of the Vienna Convention which has force by reason of s 86 of the Goods Act 1958 (Vic).

65    The Representation was alegedly made by the CEO of BirdDog, Mr Miall, by email from BirdDog’s headquarters in Collingwood, Victoria, Australia on 5 September 2023, which confirmed the purchase orders and that BirdDog would not cancel the purchase orders. The Representation provides a prima facie case for Bolin’s claims against BirdDog under the ACL for losses sustained by reason of Bolin’s reliance on the Representation. The ACL applies because the Representation is alleged to have been made by BirdDog, which are bodies corporate registered in Australia, and which carry on business in Australia. Section 5(1)(g) of the CCA therefore subjects the conduct of BirdDog to the norms imposed in trade and commerce by s 18 of the ACL, wherever that conduct occurs in the world. I am satisfied that a prima facie case exists in Australia against BirdDog under s 18 of the ACL.

66    When determining whether Australia is “a clearly inappropriate forum”, “the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration” and “the substantive law of the forum is a very significant factor in the exercise of the Court’s discretion”: Voth at 566. As stated by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Renault, a “material consideration” is “whether it is fairly arguable that the substantive law of the forum is the lex causae”: at [26]. My conclusion that Bolin has established a prima facie case that its claims in this proceeding are governed by Australian law is a significant factor which weighs in favour of holding that Australia is not a “clearly inappropriate forum” for the resolution of the dispute between the parties.

67    Fifth, the entities comprising BirdDog – namely, BirdDog Technology and BirdDog Australia – are Australian companies with a close connection to this Court’s jurisdiction. Bolin is entitled to bring this proceeding in Australia to exploit the “legitimate and substantial advantage” of enforcing any judgment against BirdDog in this Court’s jurisdiction: Oceanic at 245.

68    Finally, Bolin and BirdDog have each filed expert evidence from former Judges of United States courts as to whether the US Court has jurisdiction to hear and determine Bolin’s claim for contravention by BirdDog of s 18 of the ACL.

69    Bolin’s expert, Stephen G Larson was a former Judge of the US Court. He opines that the US Court would not have jurisdiction to hear the ACL claim or, if he is wrong about that, the US Court would decline to hear the ACL claim as a matter of discretion.

70    BirdDog relies upon the expert opinion of Alex Kozinski, a former Chief Judge of the United States Court of Appeal for the Ninth Circuit. The US Court falls within the supervisory and appellate jurisdiction of the United States Court of Appeals for the Ninth Circuit. Judge Kozinski opines that the US Court has jurisdiction to hear and determine a claim brought for contravention of s 18 of the ACL in the exercise of diversity jurisdiction or supplementary jurisdiction. Judge Kozinski is also of the opinion that the US Court would permit Bolin to bring its claim for contravention of s 18 of the ACL as a counter-claim. If the claim for contravention of the ACL were brought using diversity jurisdiction, Judge Kozinski is of the opinion that the US Court would be required to hear it. Were it brought using supplementary jurisdiction, Judge Kozinski is of the opinion that the US Court would have a discretion to decline to exercise such jurisdiction but would be highly unlikely to do so.

71    This Court has previously held that a foreign court does not have jurisdiction to apply the ACL: see, for example, Home Ice Cream Pty Ltd v McNabb Technologies LLC (No 2) [2018] FCA 1093 (McNabb) at [5] (Greenwood ACJ). Ultimately, however, this is a question of fact to be determined by the law applicable in the United States. Accordingly, in Karpik v Carnival plc (The Ruby Princess) (Stay Application) [2021] FCA 1082, Stewart J found, on the basis of expert evidence, that the United States District Court for the Central District of California in Los Angeles would have supplemental jurisdiction in respect of ACL claims brought in that proceeding, and that that Court was unlikely to exercise its jurisdiction to decline supplemental jurisdiction: at [326]-[327].

72    I have read and considered the expert opinion of each Judge. I have not, however, had the advantage of each Judge responding to the other’s opinion, nor the advantage of cross-examination to test the competing opinions.

73    I note that BirdDog has indicated that in the event this proceeding is stayed, and Bolin wishes to bring all of its claims which are the subject of this proceeding in the US Proceeding, BirdDog would not oppose that course (subject to challenging those claims on the merits). However, Judge Larson and Judge Kosinski agree that US federal courts are courts of limited jurisdiction. It follows that the US Court is bound to consider whether a claim before it, such as the ACL claim, is within jurisdiction, and must decline to decide a case that is not within jurisdiction, whether or not BirdDog objects on jurisdictional grounds.

74    In circumstances where there are competing expert opinions on this issue, I find that there is a real risk that Bolin may not be able to bring its claims under s 18 of the ACL as a counterclaim in the US Proceeding because the US Court does not have jurisdiction to hear Bolin’s ACL claim, or the US Court will decline to hear that claim as a matter of discretion.

75    In Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (in liq) (2003) 254 ALR 29 at [293]-[294], Jacobson J held that, if there was a “significant risk” that this Court was the only forum in which a cause of action agitated before the Court could be fully and properly entertained, this Court “cannot be a clearly inappropriate forum”. I have found that there is a real risk that the US Court does not have jurisdiction to hear Bolin’s ACL claim, or the US Court will decline to hear that claim as a matter of discretion. Although I have not found that this risk is significant, the existence of the risk weighs heavily against a conclusion that this Court is a “clearly inappropriate forum” for the hearing and determination of this proceeding.

Other matters

76    On the parties’ applications, it was apparent that there was a contest on the evidence as to the relationship between Bolin and 2082/Bolin LLC. Mr Miall, in his affidavit at [8], deposes that Mr Lo represented to him that Bolin and 2082/Bolin LLC were a unified enterprise. Consistently with such a representation, at various times, Mr Lo sent emails to BirdDog which included a signature that contained an office and mobile number which were preceded by a Los Angeles County area code, and which stated that “Bolin Technology is a 2082 Technology LLC company”. By contrast, Mr Guo, in his affidavit at [48]-[52], deposes that Bolin merely has a business relationship with 2082/Bolin LLC, does not share any bank accounts, funds or assets with 2082 and does not hold any ownership interest in 2082, and the only person employed by both companies is Mr Lo.

77    Ultimately, it is not possible to resolve any conflict in the evidence as to the relationship between Bolin and 2082/Bolin LLC in an interlocutory application of this nature. It suffices to observe that the evidence before me falls short of establishing that, by reason of the relationship between Bolin and 2082/Bolin LLC, this Court is a “clearly inappropriate forum” for the determination of this proceeding, or that this proceeding is oppressive or vexatious. To the contrary, the raising of the purchase orders by BirdDog, the acceptance of the purchase orders by Bolin, the payment of deposit and final balance monies by BirdDog, and the research, development and manufacture of cameras by Bolin take place either in Australia by BirdDog or in China by Bolin. None of these processes take place or have a connection with the United States. As previously stated at [59] above, these matters point to the subject matter of the proceeding having a significant connection with Australia, which does not exist with the United States.

78    BirdDog’s submissions also emphasised, as relevant considerations for the grant of a stay, that the US Proceeding had been commenced before this proceeding, and that costs had been incurred in the US Proceeding.

79    I accept that the US Proceeding was commenced before this proceeding. However, in circumstances where the US Proceeding was initially not commenced against Bolin, and the Amended Complaint, by which Bolin was named as a party, was only served on Bolin after this proceeding was commenced, I do not consider that the timing of the commencement of the US Proceeding weighs in favour of the grant of a permanent stay of this proceeding.

80    The US Proceeding is not at such an advanced state as would justify staying the present proceeding. At this stage, the US Court has determined an interlocutory dispute relating to writs of attachment and, at the time of the hearing, would shortly hear further interlocutory motions to dismiss the proceeding. These appear to be preliminary interlocutory disputes in the proceeding. I therefore also do not consider that the state of the US Proceeding establishes that this Court is a “clearly inappropriate forum” for this proceeding, or that the proceeding before this Court is “vexatious or oppressive”.

Conclusion

81    For the above reasons, BirdDog has not established that Australia is a “clearly inappropriate forum”, nor has it established that the proceeding before this Court is “vexatious or oppressive”. As a consequence, BirdDog’s application for a permanent stay will be dismissed.

BIRDDOG’S APPLICATION FOR A TEMPORARY STAY OF THE PROCEEDING

BirdDog’s submissions

82    In the alternative, by its written submissions, BirdDog applies for this proceeding to be temporarily stayed pending the determination of the US Proceeding. BirdDog, in applying for a temporary stay, relies on its submissions made in support of a permanent stay. BirdDog submits that having regard to the relevant considerations as identified in Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287 (Sterling) at 291 (Lockhart J) (which are set out further at [85]), the interests of justice would be best served by ordering a temporary stay. In particular, BirdDog submits that it would be undesirable for this Court to make findings in respect of the same sub-stratum of facts, and some of the same legal issues, as the US Court will make in the US Proceeding.

83    On the hearing of BirdDog’s application, counsel for BirdDog made submissions in support of a further alternative order – namely, that this proceeding be stayed for a period of 90 days. Counsel submitted that this would leave time for the motions to dismiss filed by Mr Lo, 2082/Bolin LLC and Ms Lee to be heard and determined, for issues regarding service to be agitated and determined, and to allow the issue of the jurisdiction of the US Court to hear Bolin’s claims under the ACL to be determined by the US Court.

Consideration

84    It was not in dispute between the parties that this Court has the power to control its own proceedings, and that power extends to enabling it to order a temporary stay of a proceeding, including where another proceeding is pending in another court, and it is desirable that that proceeding is determined first: Sterling at 290-291.

85    The relevant considerations to be taken into account in determining whether a temporary stay is appropriate include: which proceeding was commenced first; the public interest; the undesirability of two courts competing to see which of them determine the common facts first; that the law should strive against permitting multiplicity of proceedings in relation to similar issues; how far advanced the proceedings are in each court; circumstances relating to witnesses; and generally balancing the advantages and disadvantages to each party: Sterling at 290-291.

86    BirdDog’s application for a temporary stay of this proceeding pending determination of the US Proceeding relied on the same factors identified in its submissions in support of an application for a permanent stay. I am not satisfied that it is appropriate to grant a temporary stay of this proceeding pending the determination of the US Proceeding for the same reasons that I have refused BirdDog’s application for a permanent stay.

87    My reasons can be shortly stated as they have largely been addressed in the context of my consideration of BirdDog’s application for a permanent stay. In summary, having regard to the relevant considerations in Sterling:

(a)    For the reasons set out at [79] above, I do not consider that the timing of the commencement of the US Proceeding weighs in favour of the grant of a temporary stay.

(b)    For the reasons set out at [80] above, the US Proceeding is not at such an advanced state as would justify temporarily staying the present proceeding. Further, in circumstances where BirdDog faces motions to dismiss the US Proceeding, it is not clear that the US Proceeding will proceed to judgment or that there will be a duplication of issues and inconsistent findings.

(c)    The respondents in this proceeding – BirdDog – are Australian companies. On the evidence before me, Bolin has made out a prima facie case that the dispute in this proceeding is governed by Australian law. The subject matter of the dispute in this proceeding has a significant connection with Australia which does not exist with the United States. The respondents have a legitimate interest in enforcing any judgment against BirdDog in this Court’s jurisdiction. All of these matters weigh against the desirability of, or public interest in, the temporary stay of this proceeding.

(d)    There is a real risk that Bolin may not be able to bring its ACL claim in the US Court. There is, therefore, a real risk that, if the US Proceeding proceeds to judgment, the US Court granting relief against Bolin without regard to Bolin’s ACL claim. This also weighs against the desirability of, or public interest in, the temporary stay of this proceeding.

88    Further, I note that the witnesses in the US Proceeding and this proceeding, other than Mr Lo and Ms Lee, appear to reside in Melbourne or Shenzhen. If the dispute was to be litigated in the United States, then it is most likely that all of BirdDog’s witnesses, who reside in Melbourne, and some of Bolin’s witnesses, who reside in Shenzhen, would need to travel to the United States to give their evidence subject to arrangements being made for those witnesses to give their evidence remotely by way of video-link. On the other hand, in this proceeding, Bolin’s witnesses in Shenzhen and the United States would need to travel to Australia to give evidence (subject to any application to give evidence by a video-link). This would be less disadvantageous than both parties having to arrange for their witnesses to travel to the United States to give their evidence.

89    Given the above, I accept Bolin’s contention that it would be inappropriate to deprive it of its entitlement to have this proceeding, which has been legitimately instituted, heard and determined.

90    I also am not satisfied that it is appropriate for this Court to stay this proceeding for 90 days. BirdDog’s submissions in this respect were predicated on such an order giving sufficient time for the US Court to determine, in particular, the issue of its jurisdiction to hear Bolin’s claims under the ACL.

91    As a preliminary matter, I note that there was no evidence before me as to the timeframe for the issue of jurisdiction to be heard and determined by the US Court.

92    In any case, the issue of the US Court’s jurisdiction to hear Bolin’s claims under the ACL is only one of the factors relevant to my conclusion that this Court ought not to permanently or temporarily stay this proceeding. Even if the US Court were to determine that it had jurisdiction to hear Bolin’s claims under the ACL, this would not affect my decision to refuse to grant a permanent or temporary stay of this proceeding.

93    Given the above matters, I am not satisfied that a 90 day stay of this proceeding would have any utility.

94    For the above reasons, I refuse to grant a temporary stay of this proceeding pending the determination of the US Proceeding. I also refuse to grant a stay of this proceeding for 90 days.

BOLIN’S APPLICATION FOR THE CONTINUATION OF THE ANTI-ANTI-SUIT INJUNCTION

Submissions

95    On 22 February 2024, Stewart J made an anti-anti-suit injunction ex parte to restrain BirdDog from making a threatened application to a US Court to restrain this proceeding: Bolin Technology Co Ltd v BirdDog Technology Ltd [2024] FCA 129. Bolin submits that that order should be continued pending the determination of Bolin’s claims.

96    BirdDog resists the continuation of the anti-anti-suit injunction for the same reasons relied upon by it in support of its application for a permanent stay or alternatively a temporary stay pending the determination of the US Proceeding.

97    BirdDog observes that from the submissions that were filed by Bolin in support of its ex parte application before Stewart J that the principal basis for seeking an anti-anti-suit injunction was to preserve Bolin’s ability to press its claims against BirdDog for misleading or deceptive conduct under s 18 of the ACL.

98    BirdDog has also proffered an undertaking that it will not resist Bolin filing a counter-claim in the US Proceeding that presses the misleading and deceptive conduct claims.

Consideration

99    An anti-anti-suit injunction may be granted where foreign proceedings “interfere with or have a tendency to interfere with proceedings pending in that Court”: CSR at 392. This power is not “restricted to defined or closed categories”, but rather is to be exercised “when necessary for the protection of the Court’s own proceedings or processes”: CSR at 392.

100    I am satisfied that the anti-anti-suit injunction ordered by Stewart J should be continued pending the determination of Bolin’s claims in this proceeding. For the reasons previously given, I find that there is a real possibility that Bolin may not be able to bring its claims under s 18 of the ACL in the US Proceeding because the US Court does not have jurisdiction to hear the ACL claim or the US Court may decline to hear the ACL claim as a matter of discretion. In these circumstances, there is a real possibility that the only forum in which Bolin’s claims under s 18 of the ACL can be heard and determined is in this proceeding. Consistently with the opinion of Stewart J in Bolin Technology Co Ltd v BirdDog Technology Ltd [2024] FCA 129 at [14], I consider 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 this proceeding by restraining the threatened anti-suit application in the US Court, which would have a tendency to interfere with this proceeding.: CSR at 392. If the threatened injunction in the US Court is obtained it would result in this proceeding not being able to continue and the real possibility that Bolin may never be able to bring its claims against BirdDog under s 18 of the ACL.

101    Turning to the balance of convenience, I am satisfied that, if an anti-anti-suit injunction is not granted, then Bolin will face irreparable prejudice in that it may lose its ability to continue this proceeding and to make its claims against BirdDog under s 18 of the ACL.

BOLIN’S APPLICATION FOR AN ANTI-SUIT INJUNCTION TO RESTRAIN THE US PROCEEDING

Bolin’s submissions

102    Bolin submits that the Court should not only continue the anti-anti-suit injunction restraining BirdDog from taking any further step in the United States to restrain this proceeding, but should also grant a broader anti-suit injunction restraining BirdDog from continuing the US Proceeding, pending the determination of Bolin’s claims in this proceeding, for two reasons.

103    First, Bolin submits that the US Proceeding will interfere with this proceeding and Bolin’s right to make claims against BirdDog under s 18 of the ACL. In this sense, Bolin submits that the US Proceeding is vexatious and oppressive because it will undermine the substantive adjudication of the rights and remedies asserted in this proceeding. In this regard, Bolin relies on the reasons of Greenwood ACJ in McNabb at [20]-[21]. In that case, his Honour characterised a proceeding in the Circuit Civil Court of Cook County, Illinois, as “vexatious and oppressive” on the basis that there could be “no doubt” that the foreign proceeding would undermine the proceeding in the Federal Court because the foreign proceeding would not take into account the essential contentions of the applicant in the proceeding in the Federal Court.

104    Second, Bolin submits that an anti-suit injunction is justified by this Court’s equitable jurisdiction to restrain unconscionable conduct because the US Proceeding is “according to the principles of equity, vexatious or oppressive”: CSR at 393.

105    Bolin submits that BirdDog’s commencement of the US Proceeding is vexatious and oppressive, and intended to hamper Bolin’s ability to bring this proceeding in its natural forum. BirdDog contends that the US Proceeding should be seen as vexatious and oppressive by reason of the following prima facie evidence:

(a)    BirdDog’s unexplained decision to commence a proceeding in the United States, a jurisdiction with no connection to BirdDog or Bolin;

(b)    The bringing of “contrived” claims against Bolin’s CEO, Mr Lo, and his wife, Ms Lee, rather than joining Bolin to the initial Complaint in the US Proceeding, which Bolin submits supports an inference that the US Proceeding is an attempt to harass parties connected to Bolin, including its CEO and his wife;

(c)    The lack of particularity in the Amended Complaint, which Bolin contends makes very serious allegations against Mr Lo, Ms Lee and Bolin but provides no detail of the allegations; and

(d)    The US Court’s judgment refusing to grant the sought attachment orders on the basis that “BirdDog does not show the probable validity of its claims under any theory of liability”.

Consideration

106    The power of this Court to grant an anti-suit injunction may be exercised when necessary for the protection of the Court’s own proceedings or processes: CSR at 392. Quite apart from this power, this Court also has power, deriving from its equitable jurisdiction, to restrain unconscionable conduct or the unconscientious exercise of legal rights: CSR at 392. One category of case in which an injunction may be granted in the exercise of the Court’s equitable jurisdiction is that involving a proceeding in a foreign court, which is, according to the principles of equity, vexatious or oppressive: CSR at 393.

107    There are two important distinctions between this Court’s exercise of its implied power to protect its own processes, and the exercise of its equitable jurisdiction, in granting anti-suit injunctions.

108    First, in the case of the exercise of the Court’s equitable jurisdiction to grant an anti-suit injunction, one central question that arises is which court or tribunal should hear and determine the relevant matter. Conversely, when the injunction is sought to protect the proceedings or processes of a court, no question arises as to whether the Australian court is an appropriate forum because “it is the only court with any interest in the matter”: Kraft Foods Group Brands LLC v Bega Cheese Limited [2018] FCA 549 (Kraft) at [65] (O’Callaghan J), quoting CSR at 398.

109    Second, in the case of the Court’s equitable jurisdiction to grant an anti-suit injunction, a proceeding is vexatious or oppressive “only if there is nothing which can be gained by them over and above what may be gained in local proceedings”: Kraft at [66], quoting CSR at 393. Thus, something more than the mere co-existence of proceedings is needed: TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433 (TS Production) at [55] (Gordon J, Stone J agreeing). Where the subject matter of the two proceedings is not identical, there is no prima facie case that the continuation of one or the other proceeding is vexatious: TS Production at [55], citing Henry at 591.

110    Nonetheless, where a foreign proceeding has been commenced to harass a party to a local court proceeding, this may render the foreign proceeding vexatious and warrant the grant of an anti-suit injunction: Morris v McConaghy Australia Pty Ltd (No 3) [2018] FCA 606 at [19]-[20] (Perram J)

111    I do not accept Bolin’s submission that the Court should grant an anti-suit injunction because the US Proceeding will interfere with the proceeding in this Court. Unlike in McNabb, I do not accept that it is a certainty that Bolin will not be able to make its ACL claim in the US Proceeding. The evidence of Judge Kozinski is that the US Court would have jurisdiction to hear and determine Bolin’s claim against BirdDog for contravention of s 18 of the ACL. While, in the light of the competing evidence of Judge Larson, I have concluded that there is a real risk that Bolin may not be able to bring its ACL claim in the US Court, I am not in a position to make a positive finding, as Greenwood ACJ did, that there is “no doubt” that the US proceeding will undermine this proceeding by granting relief against Bolin without regard to an essential contention of Bolin in this proceeding: McNabb at [20].

112    I similarly reject Bolin’s submission that this Court should grant an anti-suit injunction in the exercise of its equitable jurisdiction on the basis that the US Proceeding is vexatious or oppressive.

113    An analysis of the matters alleged by BirdDog in the US Proceeding and the matters alleged by Bolin in this proceeding reveal that, although both arise out of a common sub-stratum of facts, the US Proceeding involves different issues which are not present in this proceeding. Because the subject matter of the two proceedings is not identical, this is not a case in which “prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words”: TS Production at [55]; Henry at 591; CSR at 399.

114    Bolin, in its application for an anti-suit injunction, must demonstrate a sufficient case showing that the further prosecution of the US Proceeding pending the hearing and determination of the proceeding in this Court would be “productive of serious and unjustified trouble and harassment” or “severely and unfairly burdensome, prejudicial or damaging”: Oceanic at 247 and CSR at 401. When the rights and relief in issue in the two proceedings are different and there is something that can be gained by the US Proceeding over and above what may be gained in this proceeding, it is not arguable that it is either unjustified or unfair to maintain claims based on US federal or state law in the US Proceeding simultaneously with claims based on Australian law in this Court.

115    Whilst there is an overlap in the sub-stratum of fact in the present proceeding and the US Proceeding there are additional claims made in the US Proceeding which are not present in this proceeding, namely:

(a)    The defendants to the US Proceeding include 2082/Bolin LLC, Mr Lo and Ms Lee, who are not parties to this proceeding.

(b)    BirdDog’s claims in the US Proceeding regarding confidential information and trade secrets: Amended Complaint at [28]-[43] and [64]-[67].

(c)    BirdDog’s claim in the US Proceeding that Bolin materially breached terms of the NDA by improperly using and disclosing, amongst other things, BirdDog’s strategies, ideas, concepts, methods, processes, systems, know-how, trade secrets and intellectual property: Amended Complaint at [84]-[88].

(d)    BirdDog’s claim in the US Proceeding that the defendants improperly acquired, used, and disclosed BirdDog’s trade secrets in violation of the Defend Trade Secrets Act of 2016 USC § 1832: Amended Complaint at [89]-[97].

(e)    BirdDog’s claims in the US Proceeding that the defendants breached the California Penal Code § 496 by knowingly and intentionally receiving, concealing or withholding stolen property from BirdDog in the sum of $3, 060, 883.10: Amended Complaint at [112]-[116].

(f)    BirdDog’s claims in the US Proceeding that the defendants had intentionally interfered with prospective economic advantage which BirdDog could have enjoyed amounting to millions of dollars annually: Amended Complaint at [121]-[126]

(g)    BirdDog’s claims in the US Proceeding that the defendants’ conduct constituted unlawful, unfair and deceptive business practices in violation of the California Business & Professional Code § 496: Amended Complaint at [127]-[131].

116    The US Proceeding does not completely correspond to this proceeding. Different issues arise for determination in the US Proceeding which are not present in this proceeding. It cannot, in my view, be said that there is nothing to be gained by the US Proceeding. The rights and relief sought in the US Proceeding are different to that sought in this proceeding. In these circumstances, I am not satisfied that it is unjustified or unfair to maintain the claims based on US law in the US Proceeding simultaneously with the claims based on Australian law in this Court.

117    I am also not satisfied that the US Proceeding is vexatious because it was commenced to hamper Bolin’s ability to bring a proceeding in this Court, or to harass parties connected to Bolin. The matters identified by Bolin, which are summarised at [105] above, do not amount to prima facie evidence of BirdDog’s mala fide intent in commencing the US Proceeding.

118    I do not accept that BirdDog has commenced a proceeding in a jurisdiction which has no connection with BirdDog or Bolin. The affidavit of Mr Miall at [8], [18] and [19] identifies a connection between the United States and the dispute, albeit a limited connection, which does not include the raising and acceptance of purchase orders, the payment of monies, or the research, development or manufacture of the relevant product.

119    I do not accept Bolin’s characterisation of the claims against Mr Lo and Ms Lee as “contrived”. The basis for BirdDog’s claims is pleaded in the Amended Complaint. Mr Miall’s affidavit, at [18]-[20], sets out the involvement of Mr Lo and Ms Lee in negotiations concerning the “Contracts”. Mr Lo has exchanged numerous emails with BirdDog in connection with the disputed purchase orders. Ms Lee is copied to those emails. There is no basis on the evidence before me for me to conclude that the claims against Mr Lo and Ms Lee are contrived.

120    I do not accept Bolin’s characterisation of the Amended Complaint as lacking particularity. I am not in a position to assess the adequacy of pleadings filed in a foreign jurisdiction.

121    I reject Bolin’s submission that an inference may be drawn that the US Proceeding was commenced for an improper purpose either by reason of BirdDog filing applications for writs of attachment, including against Mr Lo and Ms Lee, or the fact that those applications were ultimately denied. On Bolin’s own submissions, an attachment order is not unlike a freezing order, which would be available in this proceeding. No adverse inference arises against BirdDog because it sought to avail itself of an interlocutory remedy available to it under California law which is not dissimilar to a remedy available to it in this Court. The fact that BirdDog’s applications were denied because BirdDog did not establish the merits of its claims to the standard required for the grant of interlocutory relief – namely “probable validity” on the “preponderance of the evidence” – cannot support an inference that the US Proceeding was brought for an improper purpose.

122    Given the above, Bolin has not established a prima facie case that the US Proceeding was commenced with the intention of hampering Bolin’s ability to bring a proceeding in this Court, or to harass parties connected to Bolin.

123    For these reasons, I refuse to restrain BirdDog from continuing the US Proceeding by an anti-suit injunction.

DISPOSITION

124    BirdDog’s interlocutory application dated 22 February 2024 will be dismissed.

125    BirdDog will pay Bolin’s costs of BirdDog’s interlocutory application dated 22 February 2024.

126    I will grant Bolin’s anti-anti-suit injunction to restrain BirdDog from making a threatened application to a US Court to restrain this proceeding.

127    I will refuse Bolin’s anti-suit injunction restraining BirdDog from continuing with the US Proceeding until this proceeding is determined.

128    I will reserve the costs of Bolin’s interlocutory application dated 22 February 2024.

129    Finally, I note that BirdDog is yet to file a defence in this proceeding. I will order that BirdDog file a defence within 28 days of this judgment.

Associate:

Dated:    26 March 2024