Sunland/ Victorian Supreme court/ Marcus Lee/ Joyce/ Prudentia Investments

IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
LIST C
S CI 2011 5977
SUNLAND WATERFRONT (BVI) LTD
SUNLAND GROUP LIMITED
(ACN 063 429 532)
First Plaintiff
Second Plaintiff
v
PRUDENTIA INVESTMENTS PTY LTD
(ACN 091 390 742)
HANLEY INVESTMENTS PTY LTD
ANGUS JOHN LUXMOORE REED
MATTHEW JAMES JOYCE
First Defendant
Second Defendant
Third Defendant
Fourth Defendant
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JUDGE: CROFT J
WHERE HELD: Melbourne
DATE OF HEARING: 19 December 2011
DATE OF JUDGMENT: 25 January 2012
CASE MAY BE CITED AS: Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty
Ltd (No 1)
MEDIUM NEUTRAL CITATION: [2012] VSC 1
---
PRIVATE INTERNATIONAL LAW – Application for anti-suit injunction in relation to
foreign proceedings – Where foreign proceedings involve a civil right arising out of a
criminal claim – Where foreign proceedings involve similar factual dispute – Whether coexistence
of proceedings oppressive or vexatious – Fact of overlap is not alone sufficient to
restrain proceedings – Institution or continuance of foreign proceedings vexatious and
oppressive – Abuse of court process – Henry v Henry (1996) 185 CLR 571 – CSR Limited v
Cigna Insurance Australia Ltd (1997) 189 CLR 345 –Batistatos v Roads and Traffic Authority of
NSW (2006) 226 CLR 256 – Wilson v Nicholls [2011] HCA 48 – TS Production LLC v Drew
Pictures Pty Ltd (2008) 172 FCR 433 (FC) - Sunland Waterfront (BVI) Ltd v Prudentia
Investments Pty Ltd (No 2) [2010] FCA 312 – Merrill Lynch, Pierce Fenner & Smith Inc v Raffa
[2000] All ER (D) 647.
---
APPEARANCES:
Counsel Solicitors
For the Plaintiffs Mr G.A. Thompson SC with
Dr S. Monks
Thomsons Lawyers
For the First, Second and
Third Defendants
Mr J.T. Rush QC with
Mr H.R. Carmichael
Freehills
For the Fourth Defendant Mr P.W. Collinson SC with
Mr N.D. Hopkins
Norton Rose
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HIS HONOUR:
Application
1 This is an application by the first, third and fourth defendants, Prudentia
Investments Pty Ltd (“Prudentia”), Mr Angus Reed (“Reed”) and Mr Matthew Joyce
(“Joyce”), respectively to restrain the second plaintiff, Sunland Group Limited
(“Sunland”), from taking any steps to prosecute the civil claim for compensation or
civil remedy commenced by notice filed by Sunland in Dubai criminal proceedings
number 2130/2009 against Reed and Joyce and from taking any steps to join
Prudentia as a party to these civil proceedings. The application is, in fact, two
applications made by two separate summonses, one issued on behalf of the first and
third defendants on 13 December 2011 and the second issued on behalf of the fourth
defendant on 14 December 2011.
2 An application in broadly similar terms was made by Reed to Logan J in the Federal
Court of Australia when his Honour was managing this proceeding in that Court in
Brisbane. This application was refused by Logan J with orders made on 31 March
2010 with reasons for judgment which are published as Sunland Waterfront (BVI) Ltd
v Prudentia Investments Pty Ltd (No 2) [2010] FCA 312. For convenience, I refer to
these as “the Federal Court reasons”.
3 At the time the orders of Logan J were pronounced and reasons published, it was, as
I understand the position, anticipated that the trial of the matter in the Federal Court
would occur in the latter part of 2011. For a variety of reasons, this did not occur and
the proceeding was transferred to this Court. Following hearings for directions,
objections to witness statements and other preliminary matters on 10, 25 and
28 November in this Court, the trial commenced on 29 November in this Court. At
the closing of the plaintiffs’ case on 12 December 2011, the defendants informed the
Court that they did not seek to call any further evidence – various documents having
been tendered previously and tendered on that day. The defendants sought to
proceed to closing submissions as soon as practicable. The hearing of closing
submissions is now scheduled for 27, 30 and 31 January 2012.
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4 The summons issued on behalf of Prudentia and Reed sought, as its principal orders,
the following:
“1. The Second Plaintiff be restrained from taking any steps to:
(a) prosecute the civil claim for compensation or civil remedy
commenced by notice filed by the Second Plaintiff in Dubai
criminal proceeding number 2130/2009 against the Third
Defendant (civil proceeding);
(b) press its application to join the First Defendant in the
proceeding as a defendant in the civil proceeding; and
(c) commence or take any step in relation to any other civil
proceeding or proceedings against the First, Second or Third
Defendants arising out of or in relation to the matters pleaded
in the second further amended statement of claim filed in the
proceeding herein and sought against the First to Third
Defendants in this proceeding.
…”
The second summons, the summons issued on behalf of Joyce, is in identical terms as
far as paragraphs 1(a) and (c) are concerned, but omits paragraph (b) (with obvious
changed references to parties).
5 The application was heard on 19 December 2011 and at the conclusion of that
hearing, the parties agreed an interim, holding, position in the following terms:
“UPON the usual undertaking as to damages by the first, third and fourth
defendants,
1. Until 4.00pm on 27 January 2012 or further earlier order, the second
plaintiff undertakes not to:
(a) take further steps to prosecute the civil claim or claims for
compensation or civil remedy commenced by notice filed by
the second plaintiff in Dubai criminal proceedings 2130 of 2009
against the third defendant and the fourth defendant (the Civil
Proceeding);
(b) press its application to join the first defendant in this
proceeding as a defendant in the Civil Proceeding; and
(c) take any steps in relation to the Civil Proceeding other than in
the Australian proceedings SCI 20115977 (the Australian
Proceeding) or commence another civil proceeding against the
first, second, third or fourth defendants arising out of or in
relation to the matters pleaded in the second further amended
statement of claim filed in the Australian Proceeding herein
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and sought against the first to fourth defendants in the
Australian Proceeding.
2. There be liberty to apply on 2 days’ notice;
3. The undertaking by the second plaintiff does not extend to:
(a) any steps to defend the proceedings commenced by Dubai
World in Dubai; or
(b) any steps in relation to the criminal proceeding Dubai penal
proceedings number 2130 of 2009.”
Background to proceedings
6 The background to the principal proceedings is set out in the Federal Court reasons
and is sufficient for the purposes of this application. I stress, however, that the
Federal Court reasons are relied upon in this respect on a preliminary basis, for the
purposes of providing context to this application only They do not represent any
concluded view on my part as I have not yet had the opportunity to consider the
evidence I have heard at trial with the assistance of the closing submissions of the
parties.
7 Additionally, the Federal Court reasons discuss the nature and procedural aspects of
the relevant civil and criminal proceedings in Dubai. For the purposes of this
application, I rely upon these reasons in this respect; but, again, on the same
preliminary basis as I have indicated in relation to the background material, more
generally, contained in the Federal Court reasons and also subject to my assessment
of further evidentiary material provided to this Court for the purposes of this
application, together with party submissions with respect to that material and the
further authorities relied upon.
Principles governing the grant of anti-suit injunctions
8 The most significant decision and most productive point of embarkation on this
analysis is the decision of the High Court in CSR Ltd v Cigna Insurance Australia
Limited.1 At the outset of its consideration of the authorities, the High Court
emphasised the distinction between the power of a court to stay proceedings and the
1 (1997) 189 CLR 345.
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power to grant anti-suit injunctions,2 noting, nevertheless, that in some cases the
power to stay a court’s own proceedings includes, as an aspect of that power, the
power to grant an anti-suit injunction.3 In relation to the power to grant a stay, the
majority of the High Court said:4
“Although stay orders and anti-suit injunctions are not governed by the same
principles, it will later become apparent that, in some cases, the power to
grant anti-suit injunctions is an aspect of the power which authorises a court
to stay its own proceedings. And it will also become apparent that, in other
cases, the power to grant anti-suit injunctions should not be exercised
without the court concerned first considering whether its own proceedings
should be stayed.
The test which, in this country, governs a stay of proceedings in favour of
proceedings in another country is as stated in Voth v Manildra Flour Mills Pty
Ltd. In that case, this Court declined to adopt the more appropriate forum
test laid down by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd
and accepted, instead, the test propounded by Deane J in Oceanic Sun Line
Special Shipping Company Inc v Fay, namely, that a stay is only to be granted if
the Australian court is a clearly inappropriate forum.
It was pointed out in the joint majority judgment in Voth that it was common
ground in the judgments of the majority in the earlier case of Oceanic Sun
that ‘the traditional power to stay proceedings ... on inappropriate forum
grounds, is to be exercised in accordance with the general principle
empowering a court to dismiss or stay proceedings which are oppressive,
vexatious or an abuse of process and the rationale for the exercise of the
power to stay is the avoidance of injustice ... in the particular case’.
It is clear from the rationale for the exercise of the power to stay proceedings
and, also, from the words ‘oppressive’, ‘vexatious’ and ‘abuse of process’ in
Voth, in Oceanic Sun and in the earlier cases considered in Oceanic Sun,
including St Pierre v South American Stores (Gath & Chaves) Ltd, that the
power to stay proceedings on grounds of forum non conveniens is an aspect
of the inherent or implied power which, in the absence of some statutory
provision to the same effect, every court must have to prevent its own
processes being used to bring about injustice.” [Footnotes omitted]
9 As to the power to grant anti-suit injunctions, the majority continued:5
“The counterpart of a court’s power to prevent its processes being abused is
its power to protect the integrity of those processes once set in motion. And
in some cases, it is that counterpart power of protection that authorises the
grant of anti-suit injunctions. Thus, for example, if ‘an estate is being
administered ... or a petition in bankruptcy has been presented ... or winding
2 (1997) 189 CLR 345 at 390, with reference to the advice of the Privy Council in Société Nationale
Industrielle Aerospatiale v Lee Kui Jak [1987] 1AC 871.
3 (1997) 189 CLR 345 at 390.
4 (1997) 189 CLR 345 at 390-1 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).
5 (1997) 189 CLR 345 at 391-4.
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up proceedings have been commenced ... an injunction [may be] granted to
restrain a person from seeking, by foreign proceedings, to obtain the sole
benefit of certain foreign assets’. Similarly, as Gummow J pointed out in
National Mutual Holdings Pty Ltd v The Sentry Corporation, a court may grant
an injunction to restrain a person from commencing or continuing foreign
proceedings if they, the foreign proceedings, interfere with or have a
tendency to interfere with proceedings pending in that court.
The inherent power to grant anti-suit injunctions is not confined to the
examples just given. As with other aspects of that power, it is not to be
restricted to defined and closed categories. Rather, it is to be exercised when
the administration of justice so demands or, in the context of anti-suit
injunctions, when necessary for the protection of the court's own
proceedings or processes.
Quite apart from the inherent power of a court to protect its own processes,
a court may, in the exercise of the power deriving from the Chancery Court,
make orders in restraint of unconscionable conduct or the unconscientious
exercise of legal rights. If the bringing of legal proceedings involves
unconscionable conduct or the unconscientious exercise of a legal right, an
injunction may be granted by a court in the exercise of its equitable
jurisdiction in restraint of those proceedings no matter where they are
brought.
In some cases, the equitable jurisdiction to restrain unconscionable conduct
may be exercised in aid of legal rights. Thus, as the respondents correctly
contend, if there is a contract not to sue, an injunction may be granted to
restrain proceedings brought in breach of that contract, whether brought
here or abroad. Similarly, an injunction may be granted in aid of a promise
not to sue in a foreign jurisdiction constituted, for example, by an agreement
to submit to the exclusive jurisdiction of the courts of the forum.
One well established category of case in which an injunction may be granted
in the exercise of equitable jurisdiction is that involving proceedings in
another court, including in a foreign court, which are, according to the
principles of equity, vexatious or oppressive. Thus, it was said in Carron Iron
Company v Maclaren that ‘[w]here [there is] ... pending a litigation here, in
which complete relief may be had, [and] a party to the suit institutes
proceedings abroad, the Court of Chancery in general considers that act as a
vexatious harassing of the opposite party, and restrains the foreign
proceedings.’
In Société Aerospatiale, the Privy Council emphasised that the various cases
decided in the nineteenth century with respect to vexation and oppression,
including Peruvian Guano Company v Bockwoldt, have continuing significance
for the grant of anti-suit injunctions. Those cases establish that the mere coexistence
of proceedings in different countries does not constitute vexation
or oppression. In particular, Peruvian Guano establishes that ‘double
litigation [which] has no other element of oppression than this, that an action
is going on simultaneously abroad, which will give other or additional
remedies beyond those attainable in [the domestic forum]’ does not amount
to vexation or oppression.
More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out,
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correctly, in our view, although without specific reference to underlying
equitable principle, that foreign proceedings are to be viewed as vexatious or
oppressive only if there is nothing which can be gained by them over and
above what may be gained in local proceedings. On the other hand, they are
vexatious or oppressive if there is a complete correspondence between the
proceedings or, in terms used in Carron Iron Company, if ‘complete relief’ is
available in the local proceedings.” [Footnotes omitted]
10 The importance of the protection of the integrity of the processes of a court was also
stressed in Batistatos v Roads and Traffic Authority of New South Wales.6 In that case,
the majority of the High Court said that: “[W]hat amounts to abuse of court process
is insusceptible of a formulation comprising closed categories”.7 After repeating this
passage from Batistatos, the High Court again emphasised the point in Wilson v
Nicholls:8
“[89] … In Ridgeway v R, Gaudron J noted that the concept extended to
proceedings ‘instituted for an improper purpose’, and to proceedings that
are ‘seriously and unfairly burdensome, prejudicial or damaging’ or
‘productive of serious and unjustified trouble and harassment’. In Rogers v
R, McHugh J concluded that, although the categories of abuse of process are
not closed, many cases of abuse can be identified as falling into one of three
categories: ‘(1) the court’s procedures are invoked for an illegitimate
purpose; (2) the use of the court’s procedures is unjustifiably oppressive to
one of the parties; or (3) the use of the court’s procedures would bring the
administration of justice into disrepute.’
[90] One recognised class of abuse of process is where proceedings are
instituted against a party in a second forum when there are proceedings
against that party pending in another and the continuance of the second
would be an abuse of the process of the first. In such a case, the continuance
of the second proceedings would be an abuse if it would be unjustifiably
oppressive to the party that is named as defendant in both forums. But, of
course, that was not this case. The respondents to the appeal in this court
were not, and could not have been, joined as respondents to the London
arbitration. And it was not suggested that Mr Emmott could have been
joined as a party to the New South Wales proceedings.” [Footnotes omitted]
11 As the majority of the High Court in CSR v Cigna made clear, both in the passage set
out above and elsewhere,9 the power to grant an anti-suit injunction derives from
equity, “it is a power the limits of which are determined by the dictates of equity and
6 (2006) 226 CLR 256.
7 (2006) 226 CLR 256 at 265 (Gleeson CJ, Gummow, Hayne and Crennan JJ).
8 [2011] HCA 48 at [89], [90] (Gummow ACJ, Hayne, Crennan, Bell JJ).
9 (1997) 189 CLR 345, 389-90.
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good conscience”.10 Continuing, their Honours said:11
“Thus, for example, it may be that the bringing of proceedings with respect to
one claim is properly to be seen, in the circumstances of the case, as an
election either not to proceed on another claim or not to proceed in another
jurisdiction, thus giving rise to an estoppel by conduct such that it would be
unconscionable for that other claim to be pursued or for proceedings to be
commenced in another jurisdiction. In cases of that kind an injunction may
issue in restraint of the subsequent proceedings.” [Footnotes omitted]
12 The authorities emphasise that a degree of caution is required of a court in relation to
the exercise of the power to grant an anti-suit injunction.12 Although, as with
injunctive relief in equity more generally equity acts in personan the grant of such
relief does, nevertheless, involve some interference in the process of a foreign court,
if indirectly. Thus the majority of the High Court in CSR v Cigna said:13
“The cases concerned with injunctions in restraint of proceedings in foreign
courts recognise that, although an injunction of that kind operates in
personam, it nevertheless interferes with the processes of the foreign court
and may well be perceived as a breach of comity by that court. Comity,
relevantly, was explained by the Supreme Court of the United States in
Hilton v Guyot in the following terms:
‘”Comity”, in the legal sense, is neither a matter of absolute obligation,
on the one hand, nor of mere courtesy and good will, upon the other.
But it is the recognition which one nation allows within its territory to
the legislative, executive or judicial acts of another nation, having due
regard both to international duty and convenience, and to the rights of
its own citizens or of other persons who are under the protection of its
laws.’” [Footnotes omitted]
The Australian courts have, unlike some courts in the United States, taken comity
into account but have not elevated it to the status of a decisive factor.14
13 Although the majority of the High Court in CSR v Cigna distinguished stay
applications and anti-suit injunctions and the bases for the exercise of these powers,15
10 (1997) 189 CLR 345, 394.
11 (1997) 189 CLR 345, 394.
12 See McHenry v Lewis (1882) 22 Ch.D 397 (CA) at 403 (Jessel MR), 406-7 (Cotton LJ) and 408 (Bowen LJ);
and cf CSR v Cigna (1997) 189 CLR 345 at 372 (Brennan CJ, dissenting); and see Société Nationale
Industrielle Aerospatiale v Lee Kui Jak [1987] 1 AC 871 (PC).
13 (1997) 189 CLR 345, 395-6.
14 See Bell and Gleeson, ”The Anti-Suit Injunction” (1997) 71 ALJ 955 at 965-7.
15 (1997) 189 CLR 345, 390-94; and see above, paragraph 8.
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their Honours also discussed the relationship between these powers:16
“In a case in which an anti-suit injunction is sought on equitable grounds, the
central question is whether the court to which application is made or some
other court should hear and determine the matter in issue or, at least, that
aspect of it involved in the application for injunction. And where the courts
concerned are, respectively, an Australian court and a court of another
country, there is involved in that question the further question whether the
Australian court is an appropriate forum, in the Voth sense of it not being
clearly inappropriate, for the determination of that matter. The fact that
there is that further question, the preclusive nature of an interlocutory antisuit
injunction and the importance of comity combine to require an
Australian court to consider whether it is appropriate, in the sense that it is
not clearly inappropriate, for it to determine the matter in issue before
granting an anti-suit injunction.”
…
In cases where anti-suit injunctions are sought to protect the proceedings or
processes of a court, no question arises, whether that court is an appropriate
forum for the resolution of that issue; it is the only court with any interest in
the matter. Subject to that consideration, the appellants are correct in their
contention that, before granting an interlocutory anti-suit injunction, an
Australian court should consider whether it is an appropriate forum, in the
Voth sense, for the resolution of the matter in issue or, if there be a difference,
the matter advanced in support of the injunction.
In this respect, as discussed further below, it should be kept in mind that the present
proceedings have, in this Court, proceeded to trial. All the evidence to be relied
upon by the parties is before the Court and completion of the trial now only awaits
closing submissions, scheduled for the last three sitting days of January 2012.
14 On behalf of Joyce, and as adopted by Reed, Mr Collinson SC, submitted that ten
principles were to be derived from the judgment of the majority in CSR v Cigna. In
my view, these principles, which I now summarise, do accurately state the position
to be derived from Cigna and the other authorities considered -
(i) a counterpart of the Court’s power to prevent its processes being abused is its
power to protect the integrity of those processes once set in motion;
(ii) a foreign proceeding may be restrained if it involves the exercise of
unconscionable conduct by the other party;
16 (1997) 189 CLR 345 at 397-8.
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(iii) an established case for injunctive relief is where the foreign proceeding is
vexatious or oppressive;
(iv) foreign proceedings are to be regarded as vexatious and oppressive if, and
perhaps only if, there is nothing which can be gained by a party conducting
those proceedings over and above that which that party may gain in
conducting local proceedings; 17
(v) the mere coincident or co-existence of proceedings in different countries is
not, of itself, vexation or oppression;
(vi) proceedings are generally considered vexatious or oppressive if there is a
complete correspondence between the proceedings, that is, if complete relief
is available in the local proceeding;
(vii) the Court’s power in this respect is determined by the dictates of equity in
good conscience;
(viii) although an anti-suit injunction operates in personan, it does, nonetheless,
interfere with the processes of the foreign court and may be perceived as a
breach of comity by that court, hence the power is to be exercised with
caution;
(ix) there is no rule that an anti-suit injunction should not be granted until an
application has been made in the foreign court for a stay;
(x) one first applies the Voth18 test in considering the application for an anti-suit
injunction; and
17 The onus being on the party seeking injunctive relief to establish prima facie vexation or oppression in
terms of there being nothing to be gained by the party pursuing the foreign proceedings thus leaving
the party resisting such relief to establish that there is some “juridical” or other advantage to be
gained from or “legitimate interest” in bringing and pursuing the foreign proceeding (see TS
Production LLC v Drew Pictures Pty Ltd (2008) FCR 433, at 443 (Finkelstein J), 448 (Gordon J, with Stone
J concurring, at 445); and see, similarly, Bank of Tokyo v Karoon [1987] AC 45 (CA), at 60 (Goff LJ); and
Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2010] FCA 312, at [26] (Logan J)).
18 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; the test being “whether the Australian court is
an appropriate forum, in the Voth sense of it not being clearly inappropriate for the determination of
the matter” (CSR v Cigna at 189 CLR 397; see above, paragraph 13).
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(xi) one does not need to apply the Voth test in a case where the application is
founded on the need to protect the integrity and processes of the local court.
These principles were then illustrated, elaborated upon and discussed in the course
of consideration of a number of other authorities to which reference was made in the
course of the hearing of the application. It is to these that I now turn.
15 In Société Nationale Industrielle Aerospatiale v Lee Kui Jak,19 Lord Goff of Chieveley, in
delivering the advice of the Privy Council, said:20
“Another important category of case in which injunctions may be granted is
where the plaintiff has commenced proceedings against the defendant in
respect of the same subject matter both in this country and overseas, and the
defendant has asked the English court to compel the plaintiff to elect in
which country he shall alone proceed. In such cases, there is authority that
the court will only restrain the plaintiff from pursuing the foreign
proceedings if the pursuit of such proceedings is regarded as vexatious or
oppressive: see McHenry v Lewis (1882) 22 ChD 397 and Peruvian Guano Co v
Bockwoldt (1883) 23 ChD 225. Since in these cases the court has been
presented with a choice whether to restrain the foreign proceedings or to
stay the English proceedings, we find in them the germ of the idea that the
same test (ie whether the relevant proceedings are vexatious or oppressive)
is applicable in both classes of case, an idea which was to bear fruit in the
statement of principle by Scott LJ in St Pierre v South American Stores (Gath &
Chaves) Ltd [1936] 1 KB 382, 398, in relation to staying the proceedings in this
country, a statement of principle now overlaid by the adoption in such cases
of the Scottish principle of forum non conveniens, which has been gratefully
incorporated into English law.”
16 The nature of the vexatiousness or oppressiveness of parallel proceedings in
different countries was the subject of further consideration and comment by the
High Court in Henry v Henry.21 This was not a case involving an anti-suit injunction
but, rather, a case where there were divorce proceedings commenced in Monaco and
subsequently second divorce proceedings commenced by the husband in Australia
and an application by the wife to have the Australian proceedings stayed on grounds
which included forum non conveniens. As is clear from the authorities already
considered, there is a close relationship between the grounds upon which a
proceeding might be stayed in these circumstances and the grounds upon which an
19 [1987] 1 AC 871.
20 [1987] 1 AC 871, 893.
21 (1996) 185 CLR 571.
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anti-suit injunction may be granted, though they are separate powers governed by
separate, though in many senses related, considerations. In terms of the vexing or
oppression, the majority said:22
“Parallel proceedings in another country with respect to the same issue may
be compared with multiple proceedings with respect to the same subject
matter in different courts in Australia. In Union Steamship Co of New Zealand
Ltd v The Caradale, Dixon J observed of that latter situation that ‘[t]he
inconvenience and embarrassment of allowing two independent actions
involving the same question of liability to proceed contemporaneously in
different courts needs no elaboration.’ From the parties' point of view, there
is no less - perhaps, considerably more - inconvenience and embarrassment
if the same issue is to be fought in the courts of different countries according
to different regimes, very likely permitting of entirely different outcomes.
It is prima facie vexatious and oppressive, in the strict sense of those terms,
to commence a second or subsequent action in the courts of this country if an
action is already pending with respect to the matter in issue. And although
there are cases in which it has been held that it is not prima facie vexatious,
in the strict sense of that word, to bring proceedings in different countries,
the problems which arise if the identical issue or the same controversy is to
be litigated in different countries which have jurisdiction with respect to the
matter are such, in our view, that, prima facie, the continuation of one or the
other should be seen as vexatious or oppressive within the Voth sense of
those words.
It does not follow that, because one or other of the proceedings is prima facie
vexatious or oppressive within the Voth sense of those words, the local
proceedings should be stayed. However, it does follow that the fact that
there are or, even, that there may be simultaneous proceedings in different
countries with respect to the same controversy is highly relevant to the
question whether the local proceedings are oppressive in the sense of
‘seriously and unfairly burdensome, prejudicial or damaging’, or, vexatious,
in the sense of ‘productive of serious and unjustified trouble and
harassment’. And it also follows that courts should strive, to the extent that
Voth permits, to avoid that situation.” [Footnotes omitted] [Emphasis
added]
17 This passage from the majority judgment in Henry v Henry23 does, as I have
indicated, provides a more precise articulation of the notion of vexation and
oppression which, as the High Court identified in CSR v Cigna, lies at the foundation
of the jurisdiction to grant anti-suit injunctions, at least in the exclusive jurisdiction.24
On a more general level, it affirms the notion that prima facie to have two proceedings
22 (1996) 185 CLR 571, at 590-1 (Dawson J, Gaudron, McHugh and Gummow JJ).
23 (1996) 185 CLR 571, at 590-1.
24 See Bell and Gleeson, “The Anti-Suit Injunction” (1997) 71 ALJ 955 at 958 et seq, 963 et seq; and see
Raphael, The Anti-Suit Injunction (OUP, 2008), 121 et seq.
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in respect of the same controversy in different countries is vexatious and oppressive
and that the court should do what it can to avoid that situation, for all the reasons to
which reference has been made. Vice Chancellor Browne-Wilkinson, sitting in the
Chancery Division in Australian Commercial Research and Development Ltd v ANZ
McCaughan Merchant Bank Ltd,25 expressed similar views in relation to the vexatious
nature of a plaintiff seeking to pursue the same defendant in two jurisdictions in
relation to the same subject matter and then stressed that in these circumstances, “…
the plaintiff is required to elect which set of proceedings it wishes to pursue”.26 At
this point, I interpolate that Sunland has not only commenced the present
proceedings in Australia, but has pursued them to completion short of closing
submissions, as indicated previously. As discussed further, below, the first, third
and fourth defendants submit that this amounts to an election on Sunland’s part to
pursue proceedings in relation to the same subject matter in Australia, rather than
Dubai. In the absence of some juridical or other advantage or “legitimate interest”
for or in taking and pursuing the Dubai civil proceedings, as I have found and
discussed below, I accept that Sunland has made such an election.
18 Reference was also made to the Queen’s Bench Division decision in Merrill Lynch,
Pierce Fenner and Smith Inc v Raffa,27 a decision which was in part relied upon by
Logan J in the Federal Court reasons. Raffa was, however, not an application for an
anti-suit injunction with respect to a civil claim which had been brought in Egypt but
was, rather, an application by Mr Raffa to stay the English proceeding because of the
fact that a civil claim was on foot in Egypt. Broadly, the facts of the case were that
Mr Raffa, an employee of Merrill Lynch, engaged in some alleged misdeeds with the
result that Merrill Lynch obtained a world-wide freezing order. Mr Raffa was
arrested and imprisoned in Egypt. He was then charged in Egypt whilst held in
custody and Merrill Lynch filed a request for a civil claim against him in Egypt. At
the same time, Merrill Lynch had on foot a proceeding in England seeking judgment
against Mr Raffa. Apart from issues as to the divergence in approach as between the
25 [1989] 3 All ER 65 at 69-70.
26 [1989] 3 All ER 65 at 70.
27 [2000] All ER (D) 647.
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Australian and English courts in this area, particularly in relation to Voth, the Raffa
case is distinguishable from the present case because it was not an anti-suit
injunction application and because it did not focus attention on the legitimacy or
otherwise of Merrill Lynch maintaining its Egyptian civil claim. Another important
consideration is that it appears that Mr Raffa had assets available in Egypt, so there
was a commercial reason, or legitimate purpose, for taking proceedings there.
19 Another distinguishing feature in Raffa, which appears from the judgment of Judge
Raymond Jack QC sitting as a Deputy Judge of the High Court, is that the claimant
was found to have sufficient justification for bringing the two sets of proceedings, for
the following reasons:28
“The reason why two sets of proceedings in respect of the same subject matter
will normally be vexatious is that it amounts to a harassment of the
defendant to make him fight the same battle twice, with the attendant
multiplication of costs, time and stress. But, in my view, it will not be
vexatious, nor will an election be called for, where the claimant has a
sufficient justification for bringing the two sets of proceedings. The passage
in Dicey & Morris provides examples of when that may be so.
The submission made here on behalf of Mr Raffa is that by reason of the
claim made for compensation in the Egyptian criminal proceedings the
English action should be stayed to await an outcome in Egypt. I do not think
that Mr Raffa is facing anything in Egypt equivalent to the English action. If
he is charged, he will be facing criminal charges arising out of the same
subject matter as the English action. No question of liability for
compensation will arise until he is convicted. I cannot see anything
vexatious in Merrill Lynch in the meanwhile seeking judgment against
Mr Raffa in England.
Nor do I think that a question of election arises. Mr Raffa’s case was not put
in those terms, perhaps because Merrill Lynch would prefer to continue with
the English proceedings, and it is those which Mr Raffa wants to stop. It was
submitted that under Egyptian law Merrill Lynch were now unable to
withdraw their claim for compensation made to the Egyptian Prosecutor.
That seems to me to be contradicted by the terms of Article 262.
As this was not dealt with in their evidence, I asked why Merrill Lynch had
made the claim for compensation to the Egyptian Prosecutor. One reason I
was given was that they were now having difficulty in getting the freezing
order recognised and enforced in Egypt. I think that it was probably initially
done by Dr Wahed as an obvious step to take in the circumstances to protect
Merrill Lynch’s interests.”
28 [2000] All ER (D) 647 at p 5 of the electronic print.
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20 There is no indication in the judgment in Raffa, as to whether or not there were any
assets available in England. The defendants submitted that the decision is
distinguishable from the present proceedings because it did not involve an anti-suit
injunction application or any consideration of the ongoing legitimacy of the civil
claim in Egypt and, secondly, it is distinguishable because there were apparently
circumstances that justified maintaining the claim in Egypt as well, particularly
having regard to the fact that there were assets available in Egypt. Logan J, in the
Federal Court reasons, placed considerable reliance upon the decision in Raffa in the
context of the “legitimate interest consideration” raised by the Sunland parties in the
proceedings before him. In this respect, his Honour said, having considered the
judgment in Raffa:29
“[32] That there may be forensic advantages in terms of law and practice in
Dubai in the making of the civil right claim emerges from the expert
evidence. The Sunland parties may well benefit from the amalgam of their
own resources and those of the public authorities in Dubai in demonstrating
that Mr Reed has committed fraud there. If so, a guilty verdict will, at the
very least, be of singular advantage in terms of assisting their establishing
liability in their civil right claim. That advantage will be retained even if, as
appears likely, the criminal court were, in the event of a finding of guilt, to
decide, given the quantum of the claim, to refer it to a civil court.
[33] Any such advantage would be lost in the event that a restraining order
is made and it transpires that the Dubai criminal proceeding is completed
before this proceeding is concluded. …”
21 Reference was also made by the parties and by Logan J in the Federal Court to TS
Production LLC v Drew Pictures Pty Ltd,30 particularly the judgment of Finkelstein J.
Particular reliance appears to have been placed by Logan J on the approach of
Finkelstein J which, in general terms, was that if a party proceeding in a foreign
jurisdiction could show some “juridical advantage to be gained in the foreign
proceeding (which is not available in a local proceeding) then the [anti-suit]
injunction will be refused”.31 Further, Finkelstein J emphasised that the existence of
simultaneous proceedings does not, of itself, establish that an action is vexatious.
29 Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2010] FCA 312, [32]-[33].
30 (2008) 172 FCR 433.
31 (2008) 172 FCR 433 at 443, [32].
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Continuing, referring to the Peruvian Guano Company case, Finkelstein J said:32
“Something more is needed; the applicant must ‘shew that there is vexation in point
of fact, that is to say, that there is no necessity for harassing the Defendant by double
litigation”. In my view, these comments and the approach of Finkelstein J in TS
Production does not indicate that any different approach should be taken in the
present circumstances than flows from the authorities already considered. In
particular, it should be noted in relation to the TS Production case that the foreign
proceeding was a proceeding in the United States concerned with copyright under
United States law and there was no overlap in the issues the subject of the foreign
and domestic proceedings because the Australian court was concerned with
copyright under Australian law. Having regard to the lack of overlap in issues it
followed that there was no existing or likely future interference with the Australian
proceedings.33
Dubai civil proceedings
22 The position that appeared to be reached on the basis of the plaintiffs’ evidence as at
the close of their case was that findings of fact which are made in the criminal
proceedings in Dubai would form the factual basis of the civil proceedings. It
follows that a party seeking to bring civil proceedings on the basis of conduct that is
the subject of a criminal proceeding has an “interest” in the conduct of those criminal
proceedings insofar as they go to fact finding which is critical to the subsequent civil
proceedings. This also appears to be entirely consistent with the process as
described in the Federal Court reasons; viewed as background to this application, as
indicated previously.
23 The submissions of the parties and further evidence provided in support of or in
opposition to this application do serve to support, with some elaboration of detail,
the nature of and the processes involved in the Dubai criminal and civil proceedings
as set out in the Federal Court reasons. Consequently, it is not necessary to repeat
32 (2008) 172 FCR 433 at 443; referring to Peruvian Guavo Company v Bockwoldt (1983) 23 Ch D 225 at 232.
33 (2008) 172 FCR 433 at 447-8, [53] and [54] (Gordon J); cf Sunland’s oral submissions referring to this
part of the judgment of Gordon J in the TS Production case (Transcript (19/12/11), 56-57).
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that account in this judgment.
24 There are, nevertheless, some further aspects that emerged from or were emphasised
in the evidence relied upon by the parties to this application.
25 There was before Logan J a translation of the Dubai civil claim, together with the
affidavit of Ahmed Alqari affirmed on 9 November 2009 and filed on behalf of Joyce
as to the nature of the civil and criminal proceedings. Also before Logan J was an
affidavit of Ms Bronwyn Lisa Lincoln sworn on 8 December 2009 to which is
exhibited an English translation of the Dubai civil claim instituted by Sunland
against Joyce, together with Anthony Brearley and Marcus Lee seeking ultimately,
the payment of AED44,105,780 to Sunland. Subsequently, Sunland joined further
defendants to the Dubai civil proceeding, namely Prudentia, Reed, Clyde & Co
(Legal Consultants – Dubai), and Jonathon Silver (Clyde & Co). Substantially the
same amount is claimed in this proceeding and it was common ground in this
proceeding and in the anti-suit injunction application before Logan J in the Federal
Court that “the substratum of facts in respect of the proceedings in this Court, the
criminal proceedings in Dubai and the civil right claim in those proceedings is
substantially the same.”34 The fact that there are other parties involved in the Dubai
civil proceedings and other matters raised in the criminal proceedings with respect
to Prudentia, Reed and Joyce in those proceedings – and other matters raised in the
civil proceedings with respect to other parties – does not detract from the position
that the Dubai civil proceedings are an action with respect to the same subject matter
in the sense relevant to this application or with respect to the applicants. There is no
suggestion that complete relief against the applicants is not available to Sunland in
these “local“ proceedings.35
26 Reed and Joyce placed reliance upon the opinion of Mr Alqari in relation to Dubai
34 Sunland Waterfront (BVI)Ltd v Prudentia Investments Pty Ltd (No 2) [2010] FCA 312, at [10] (Logan J);
and see the affidavit of Bronwyn Lincoln (8 December 2009) filed in these Federal Court proceedings
on behalf of Prudentia, Hanley Investments PTE LTD and Reed which exhibits an English translation
of the Dubai civil right claim with reference to Case No 2130/2009 – Penal (Exhibit BLL 19).
35 See Bank of Tokyo v Karoon [1987] AC 45 (CA) at 60 (Goff LJ); referred to with approval in CSR Limited v
Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393 (Dawson, Toohey, Gaudron, McHugh,
Gummow and Kirby JJ) in the passage set out above, paragraph 9.
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law.36 In particular, reliance was placed on his opinion in relation to the manner in
which legal proceedings are conducted in Dubai. In summary, in the Dubai case,
Sunland has requested that all seven defendants be subject to the claim of Sunland,
based on fraud. The Dubai criminal court will assess any culpability of each
defendant individually and any defendants found liable could be held by that court,
in its discretion, to be either jointly and severally liable with other liable defendants
for the full amount of Sunland’s civil claim, or be liable for a defined portion of that
claim as the court, in its discretion, might direct. In relation to the question whether
Joyce would be likely to be able to obtain a stay of the civil claims by Sunland against
him in Dubai, given that Sunland is prosecuting a civil claim against him in
Australia, the opinion of Mr Alqari indicates that such applications are rare in Dubai
and that it would be very difficult to predict how a Dubai court might view such an
application, particularly anticipating considerable resistance from the lawyers acting
for Sunland.37
27 Some further light is shed on the Dubai proceedings by the affidavit of
Abdulrahman Juma affirmed on 9 December 2009 and filed on behalf of Sunland
entities in the Federal Court proceedings (which was relied upon by Reed and
Joyce). The evidence of Ahmed Alquari affirmed on 9 November 2009 and filed in
the Federal Court proceedings on behalf of Joyce together with the affidavit of Diana
Hamade affirmed on 15 December 2011 and filed by the Sunland entities in the
proceedings now in this Court support, or are at least consistent with, Mr Juma’s
evidence in this respect. Mr Juma describes the process in some detail in
circumstances where a plaintiff, in Sunland’s position, lodges a statement of claim
under Article 22 of the UAE Criminal Procedure Law. This claim may be described as
an “initial or preliminary damages claim”.38 Mr Juma continues:
11. By this claim, the party (called the plaintiff) can claim damages or
compensation against an accused in the criminal proceedings. This unique
type of “civil claim” if filed before the same criminal Court which is deciding
on the criminal liability. The plaintiff cannot issue an initial damages claim
36 See affidavit of Ahmed Alqari, affirmed 9 November 2009, Exhibits “AAQ5” and “AAQ6”.
37 See Exhibit “AAQ-06”, paragraph 7.
38 Affidavit of Abdulrahman Juma (9 December 2009), paragraph 10.
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against a person who is not an accused in the primary criminal proceedings.
The plaintiff can apply to join any of the accused to its claim at any time
prior to judgment in the criminal proceedings.
12. The initial damages claim is commenced by the plaintiff lodging a
statement of claim before the public prosecutor or the criminal court and
paying a filing fee under article 22 of the UAE Criminal Procedure Law. The
amount claimed can be increased at any time before judgment by submitting
an amended statement of claim, and paying an increase in the filing fee.
(The filing fee varies depending on the amount claimed.) Once the filing fee
has been paid, the initial damages claim is on foot and must be determined
by the Court. However, the claim can be discontinued by the plaintiff at any
time prior to judgment.
13. When the initial damages claim is lodged, the public prosecutor does
not have a discretion to refuse to allow the plaintiff to bring the initial
damages claim.
14. The accused usually defends both the criminal and the ‘initial
damages claim’ in the same criminal proceedings (i.e. there are no separate
court proceedings for this). At the end of the trial the criminal Court will
issue its judgment on the criminal liability, and may (i) uphold the ‘initial
damages claim’; or (ii) reject the ‘initial damages claim’; or (iii) refer the
‘initial damages claim’ to the civil courts.
15. The plaintiff who has lodged an initial damages claim under article 22
of the UAE Criminal Procedure Law is not normally permitted to take an
active role in proving criminal liability (this is the role of the public
prosecutor). The plaintiff does not have any right to influence the timetable
to be set by the criminal Court, although the plaintiff’s lawyers are entitled
to appear in the criminal Court, and to obtain copies of the prosecution
documents.”
28 Mr Juma’s evidence is that in the event that the criminal court finds an accused
person subject to an initial damages claim “not guilty”, then the claim must also be
dismissed. It appears, however, that the plaintiff would then have the option of
commencing separate civil proceedings in the Dubai civil courts relying on the
ordinary provisions of the UAE civil and commercial laws. In the event that the
criminal court finds the accused guilty, it may, he says, make an award of damages
to the plaintiff of all or part of the amount claimed, or refer the assessment of the
quantum of the initial damages claim to the civil courts. Mr Juma says that the
criminal court is likely to take this course if it decides that further investigation is
required in order to prove the amount of loss suffered by a plaintiff or if the amount
claimed is a large amount. Consequently, it does seem a fair generalisation in
relation to the Dubai proceedings that a civil claim made in the circumstances of the
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present Dubai proceedings will, in effect, rely on the fact-finding in the criminal
proceedings. In spite of some of the expert evidence before the Federal Court
suggesting that Sunland would be constrained in its ability to participate in the
criminal proceedings, this is contrary to evidence heard during the trial of this
matter, which indicates that Sunland has the ability, and has, taken a more than
merely passive role.39
29 It was common ground that although a judgment in Dubai would be enforceable
throughout the UAE and also in other Arab League countries, such a judgment
would not be enforced in Australia and an Australian court judgment would not be
enforceable in the UAE.40 This is significant in the present circumstances because the
evidence indicates that neither Prudentia, Reed nor Joyce have any assets in the
UAE.41 Consequently, it was submitted on behalf of Reed and Joyce that there is no
sensible commercial purpose in anyone taking civil proceedings against them in
Dubai - in other words, no legitimate interest on the part of Sunland in taking such
proceedings. It was submitted by Sunland that this position might change in the
future and, consequently, there would be some utility in it holding a judgment
enforceable in the UAE. Nevertheless on the evidence before the Court I regard this
suggestion as entirely speculative and could, at best, be regarded as a remote
possibility. Consequently it provides no sensible commercial purpose for Sunland’s
civil proceedings in Dubai – hence no legitimate interest.
30 The question whether Sunland has a legitimate interest in pursuing proceedings in
Dubai was addressed at some length by Logan J in the Federal Court reasons,
particularly with reference to the Raffa case and the “legitimate interest” of Merrill
Lynch in the circumstances of that case.42 This led his Honour to make the
observations in relation to the “legitimate interest consideration” raised by the
Sunland parties in the proceedings before him and also in relation to the present
39 Cross examination of Mr Soheil Abedian, Transcript of Proceedings p 499-501.
40 See Affidavit of Diana Hamade (15 December 2011) at paragraphs 30-33.
41 See affidavit of John Luxmore Reed (18 December 2011) and the affidavits of Andrew Neil McRobert
(15 and 19 December 2011). It is noted that Joyce has approximately AED103,000 worth of assets in
Dubai (a sum of no significance in the circumstances of these proceedings).
42 See also, as to legitimate purpose, Raphael, The Anti Suit Injunction (OUP, 2008), 129.
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application. Those observations are contained as part of the Federal Court reasons,
set out above.43 Whatever “forensic advantages” in terms of the law and practice in
Dubai might be available to Sunland as a result of maintaining the civil proceeding
in the civil right claim, it is clear from this part of the Federal Court reasons that
Logan J was making these comments in contemplation of a position where the Dubai
proceedings were completed before Australian proceedings were concluded and in
the context of an application to the Federal Court for an anti-suit injunction of the
same general nature of that the subject of the present applications pending the final
hearing and determination of the proceeding in the Federal Court, including the
dismissal of any appeal therefrom.
31 The present situation is now significantly different from that confronting Logan J as
the Australian proceedings are well advanced and the Sunland case closed pending
closing submissions as the final step in the trial. In these circumstances, I am of the
opinion that the overriding considerations now relevant to the application are
considerations of vexation and oppression flowing from the foreign proceedings and
the effect of those proceedings on the integrity of the processes of this Court -
including res judicata, issue estoppel and the like, matters to which reference is made
below.44 Additionally, it is difficult to see how any, so called, “forensic advantage”
in the Dubai proceedings could have any practical significance in terms of a
legitimate interest from the Sunland perspective in circumstances where neither
Prudentia, Reed nor Joyce have any assets in Dubai, other parts of the UAE or in the
Arab League countries, jurisdictions in which any Dubai judgment could be
enforced.
32 Logan J, in the course of the Federal Court reasons, also refers to some other
considerations which might be said to provide “inchoate benefits” for Sunland as a
result of pursuit of the civil proceedings in Dubai. Thus, Logan J said:45
“[39] The Sunland parties were under investigation themselves by the
43 Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2010] FCA 312, [32]-[33]; set out
above at paragraph 20.
44 See below, paragraph 42.
45 Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2010] FCA 312, [39]-[41].
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authorities in Dubai. There may well be inchoate benefits for the Sunland
parties, in the UAE, from being seen there to have instituted a civil right
claim against, materially, Mr Reed and to be seen actively to be participating
in the criminal proceeding in cooperation with the public authorities.
[40] All in all, the civil right claim in Dubai is ‘an obvious step to take in the
circumstances’ for the Sunland parties to protect their interests.
[41] The proceeding in this court might also be termed an ‘obvious forensic
step in the circumstances’, especially given Mr Reed’s residence and
Prudentia’s incorporation in Australia. It is by no means unusual where an
alleged fraud has factual connections with more than one country and,
further, respondents resident in more than one country, for resultant civil
proceedings to be instituted in the courts of each country.”
33 In terms of benefits that would or may flow to Sunland as a result of pursuing the
Dubai civil proceedings reliance was placed on the more recent evidence of
Diana Hamade contained in her 15 December 2011 affidavit, evidence which was not
before Logan J in the Federal Court proceedings. Sunland relied, particularly, on the
following:46
[11] In a criminal case where a civil right claim is made, if the accused is
found guilty, the civil right claim is then considered. Article 269 of the UAE
Criminal Procedure Law provides that findings of fact that are made in the
criminal case are binding on the judge who determines the civil right claim.
[12] When the criminal case is heard, the court will consider any interviews
that the police conducted with the accused or other witnesses. The court will
also consider any documents that were obtained using search warrants. I
have reviewed a copy of a report prepared for the Attorney-General by the
Financial Audit Department dated 1 April 2009. The evidence that is
referred to in that report would have been put before the court hearing the
criminal case.
34 On the basis of this evidence of Ms Hamade Sunland submitted that there are
significant forensic advantages for Sunland in pursuing the civil proceedings in
Dubai. In particular, reference was made to the advantage gained as a result of the
evidence in the civil proceedings being provided, in effect, by the evidence gathering
process in the criminal proceedings which utilises evidence obtained by the Dubai
authorities through the execution of search warrants and police interviews. It was
also noted in Sunland’s submissions that the court in the Dubai criminal proceedings
has also had access to statements taken by the audit section of the Ruler’s Court and
46 Evidence of Diana Hamade (15 December 2011), paragraphs 11 and 12.
22 T0001
by the Dubai police from Mr Lee,47 who declined to give evidence in the proceedings
in this Court – as did Joyce who, it was submitted, claimed privilege against selfincrimination
in relation to many documents which, it was said, might otherwise
have been available to Sunland by way of discovery. Thus it was submitted that the
further evidence that is available to the Dubai court in the criminal proceedings,
which results in factual findings available in the subsequent civil cases do confer
upon Sunland a significant and legitimate juridical advantage not available to it in
the proceedings in this Court.
35 In my opinion the “inchoate benefits” referred to by Logan J are, at best, somewhat
nebulous, not relevant and, in any event, of insignificant weight in the present
circumstances where the trial in this Court is substantially completed and,
consequently, in the face of the type of oppression and vexation identified in the
authorities to which reference has been made against which a court ought properly
intervene to enjoin pursuit of the foreign proceedings and thereby protect its own
processes. In my view the same applies with respect to the forensic, juridical and
other advantages claimed by Sunland on the basis of Ms Hamade’s evidence.
36 Additionally, and as discussed further below, the loss, by Sunland, of any “inchoate
benefits” or forensic and other advantages it claims as a result of pursuing the Dubai
civil proceedings are benefits or advantages which it may lose on the injunctive relief
now sought being granted as a result of its own actions in commencing and pursuing
the present proceedings in Australia. In other words, as a result of its election.48
Further, also as discussed below, any procedural, evidentiary advantage that may
flow from any litigation – in Dubai or elsewhere – is illusory and valueless where the
defendants have no assets in the jurisdiction of the court in which the litigation is
being conducted or otherwise within reach of its judgments. That is the position
here – neither Prudentia, Reed nor Joyce, as the evidence shows, have any assets in
Dubai or within reach of its judgments and there is no evidence that they are likely
47 Mr Marcus Lee was the Project Control Group Director at Dubai Waterfront. He was also known in
some of the correspondence as the Director of Commercial Operations at Dubai Waterfront.
48 See above, paragraph 17.
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to bring assets into Dubai or otherwise within the reach of its courts. There is no
evidence of any other remedy which may be available to Sunland in Dubai that
would not be available in this Court. Even if there were such as, for example, the
right to treble damages in the United States, the remedy would, nevertheless, need to
be one of practical utility in the circumstances. Using this example, treble damages
would be a hollow advantage if such a judgment would simply languish with no
assets accessible to meet it. Finally, I note in the context of the present discussion of
“legitimate interest” and similar issues that, for the reasons set out below, I do not
accept Sunland’s submissions that it has a “legitimate interest” arising from a need,
as it claims, to pursue and maintain its claims in the Dubai World proceeding.49
Power to grant relief sought
37 There is no controversy as to the power of this Court to grant the relief sought. It is a
superior court of record armed with all the inherent and other jurisdiction of such
courts.50 The authorities to which reference has been made reaffirm this power and
the nature of the jurisdiction.51
Discretionary considerations
38 On the basis of the principles governing the grant of anti-suit injunctions in the
exclusive jurisdiction and having regard to the evidence as to the nature of the civil
and criminal proceedings in Dubai, any forensic or other advantage or benefit that
may flow to Sunland in the conduct of the Dubai civil proceedings and the location
of any assets of the defendants, Reed and Joyce made submissions which are now set
out in the following paragraphs, and considered in this light.52 Reference is also
made to the Sunland submissions in relation to the issues raised.
39 First, it was submitted that it is vexatious and oppressive, as a starting point, for a
plaintiff to maintain two civil proceedings seeking the same relief in two
49 See below, paragraphs 45 and 46.
50 See Young, Croft and Smith, On Equity (LBC, 2009), 1026, at [16.130].
51 See, for example, Henry v Henry (1996) 185 CLR 571, CSR Limited v Cigna Insurance Australia Ltd (1997)
189 CLR 345, Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 and Wilson
v Nicholls [2011] HCA 48.
52 See below, paragraphs 39 to 52.
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jurisdictions. This position is sufficient to establish vexation and oppression on a
prima facie basis, thus shifting the onus to the party maintaining the proceedings to
justify its position.53 It was common ground that mere co-incidence of proceedings
in different countries is not, of itself, vexatious or oppressive.
40 Secondly, it was submitted that no question arises in relation to the present
Australian proceeding being stayed, as it clearly meets the test prescribed by Voth54
of not being clearly inappropriate and, in any event, it is past the point of no return
in terms of this jurisdiction because Sunland has acceded to a trial in Australia in
which it has now closed its case. Consequently, the only question that now arises is
whether or not the foreign proceeding, the Dubai civil claim, ought to be enjoined.
41 Thirdly, and following on from the first point, it was submitted that if Sunland were
able to point to some substantive advantage to be gained by pursuing a local
proceeding and at the same time a foreign proceeding, then it might be in a position
to rebut a claim for an anti-suit injunction against it.55 Sunland submitted that the
authorities indicate, particularly CSR v Cigna,56 that foreign proceedings are to be
viewed as vexatious and oppressive only if there is nothing to be gained in the local
proceedings. A classic instance, it was suggested by Reed and Joyce, would be where
the evidence disclosed that they had substantial assets in Dubai or in other parts of
the UAE (where a judgment of a Dubai court would reach). Sunland, it was said,
would then say quite logically that as it cannot enforce a judgment there, though it
may be unattractive to have a court in Dubai dealing with a parallel proceeding on
the same controversy, that is unavoidable, given the location of the assets and the
inability to enforce judgments reciprocally. It is, however, not the situation in the
absence of any assets of Prudentia, Reed or Joyce in Dubai or other parts of the UAE.
42 Fourthly, it was submitted that the application sought should be granted because,
apart from the question of vexation and oppression as a result of the civil
53 As to the burden of proof in this respect, prime facie and otherwise, see above, paragraphs 14 and 17.
54 See above, paragraph 13.
55 See above, footnote 53.
56 (1997) 189 CLR 345.
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proceedings in Dubai, this Court should protect the integrity of its own processes. In
this respect, it was said, that a natural concomitant of civil litigation in this country is
that res judicata and issue estoppels arise from the conduct of civil proceedings which
prevent a multiplicity of proceedings, and re-agitation of the same issue more than
once and in different fora. It is an important principal of civil litigation that once
parties have had their “fight”, then that is the end of the matter, a principle
reinforced by those which underpin an Anshun estoppel.57 Finally, in this respect, it
was submitted that this is all the more significant in the case of a proceeding which,
in this instance, involves an Australian company and Australian citizens. In this
context, it was submitted that as Sunland can advance no good reason for
conducting civil litigation in Dubai, the effect of not being successful in obtaining an
anti-suit injunction would be that there would be no res judicata or issue estoppel
which would restrain Sunland from attempting to succeed with a claim that it was
deceived into paying AED44,000,000 (or thereabouts) in Dubai, even if it were to fail
in these proceedings. The point was also emphasised in submissions by Mr Rush QC
who, referring to the affidavit evidence of Ms Hamade with respect to the conduct of
the criminal and civil proceedings in Dubai,58 said that there is a real risk of
inconsistent outcomes on key factual issues as between the Dubai civil proceedings
and these proceedings. As noted previously, here Sunland has invoked the
jurisdiction of the Australian Courts, called its evidence and closed its case. This, it
was said, emphasises the importance of the court protecting the efficacy of its own
processes in the present circumstances.
43 Fifthly, it was submitted that the cases tend to suggest that a particularly egregious
circumstance of vexation and oppression is where the same plaintiff is pressing a
civil proceeding in two different jurisdictions. Some of the English cases to which
reference has been made discuss this circumstance in terms of “election”. This arises
because applications of this nature are generally made early in the course of both
proceedings, but here, significantly, it was submitted that Sunland has elected to
57 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
58 See the Affidavit of Diana Hamade (15 December 2011).
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pursue its claim in this proceeding and the result of that election cannot be allowed
to continue the civil proceedings in Dubai.59
44 Sixthly, it was submitted that Sunland is not assisted in its position by the fact that
the Dubai World proceeding is on foot. This proceeding was commenced on 15 June
2010, approximately a year after this Australian proceeding. Ms Hamade’s affidavit
of 15 December 2011 sets out the circumstances relating to that claim.60 Ms Hamade
identifies that Sunland has three courses available to it in resisting the claim against
it by Dubai World.61 First, she says, Sunland can avoid liability by showing that one
or more of the other defendants caused all the damage to Dubai World, and Sunland
was not responsible for any of the damage. Secondly, Sunland can ask the Dubai
court to divide liability between the defendants according to their responsibility for
the damage. Thirdly, if the Dubai court funds that Sunland and the other defendants
are liable to Dubai World then Sunland can ask the court to recover from other
defendants, according to their responsibility for the damage, the money Sunland is
required to pay to Dubai World. It was submitted that if the court were to grant an
anti-suit injunction as sought, there would be nothing arising from that which would
impede Sunland from advancing a contention against Dubai World that in fact Joyce
or Reed or any of the other parties to this proceeding were responsible for the
damage suffered by Dubai World. That case can still be made, it was said. As
indicated previously, the Hamade affidavit identifies a second possible course,62
which is that Sunland may ask the Dubai court to apportion liability to Dubai World
between the defendants. Again, it was submitted that if the anti-suit injunction
sought were to be granted, there was nothing to stop Sunland from advancing that
contention. It is, it was submitted, effectively a proportionate liability contention,
and one that can still be made. Another possible course is that Sunland might wish
to pursue a third party claim or a counterclaim against another defendant.63 This is,
it was submitted, just an empty prospect in the absence of any assets in Dubai owned
59 And see above, paragraph 17.
60 Affidavit of Diana Hamade (15 December 2011), paragraphs 14 to 29.
61 Affidavit of Diana Hamade (15 December 2011), paragraphs 24 to 26.
62 Affidavit of Diana Hamade (15 December 2011), paragraph 25.
63 Affidavit of Diana Hamade (15 December 2011), paragraph 26.
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by Prudentia, Reed or Joyce, at least as far as any possible third party claim against
them is concerned. There is, however, nothing to prevent Sunland, even if the antisuit
injunction were granted, to make a third party claim against, for example, Clyde
and Co or any other party with assets in Dubai.
45 In addition to the Dubai World proceedings Sunland submitted that it would be
prejudiced in seeking to pursue a third party claim or counterclaim against another
defendant if it did not have its own civil right claim. In support Sunland relied on
Ms Hamade’s evidence, particularly the following paragraphs of her affidavit:64
[28] In particular, if Sunland does not have its own civil right claim, but only
appears to defend Dubai World’s civil right claim, Sunland cannot ask the
court to make any order allowing Sunland to recover money from another
defendant. This includes any money that Sunland might be ordered to pay
to Dubai World as a result of Dubai World’s civil right claim.
[29] The only way for Sunland to fully defend itself against Dubai World’s
civil right claim, and to maximise its ability to obtain favourable findings of
fact, and to recover money from other defendants, is for Sunland to have its
own civil right claim in the criminal proceedings, and to have its lawyers
participate in the criminal proceedings (including the determination of all
civil rights claims attached to the criminal proceedings) to the fullest extent
possible under Dubai law.
46 In my opinion, this evidence does not, however, support Sunland’s submission.
Ms Hamade’s evidence does not indicate that Sunland would, if the relief sought by
Reed and Joyce were granted, be inhibited from defending its position in the Dubai
World proceedings or that it would be precluded from seeking indemnity or
contribution from defendants in those proceedings other than Reed or Joyce. Any
suggestion that Sunland would be prejudiced as a result of the inhibition from
seeking indemnity or contribution from Prudentia, Reed or Joyce is, in my view,
without foundation as any such claim or claims are of no value in Dubai proceedings
in the absence of any assets of Prudentia, Reed or Joyce in that jurisdiction or those
in reach of its judgments, for the reasons already indicated. Furthermore, in terms of
any possible prejudice to Sunland it should not be forgotten that it is the author of
any detriment it may suffer as it is the party which initiated the present proceedings
64 Affidavit of Diana Hamade (15 December 2011), paragraphs 28 and 29.
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while the Dubai civil proceedings were already being pursued.
47 In addition to the issues raised by Reed and Joyce with respect to Ms Hamade’s
evidence which have been discussed it was challenged more generally. First it was
noted that her evidence in relation to the nature and effect of the civil right claims
filed in the Dubai court by Dubai World and Sunland was based only on the copying
and translation of the first two pages of the Dubai World claim.65 In this respect
Mr Rush QC submitted that Ms Hamade has offered an opinion without seeing the
entirety of the translation of the document and has left unexplained the inclusion of
entities that are not defendants in the civil proceeding. In my view the latter
omission tends to detract from her opinion on Dubai criminal and civil procedure in
favour of the opinions of others, particularly Mr Juma, because only the provision of
a complete English translation would provide an essential factual base for the Court
to consider itself and thus be in a position to properly assess her opinion evidence. I
do note, however, the references to Ms Hamade’s right of audience in the Dubai
courts and that Arabic is her native tongue.66 Nevertheless this does not address the
reservations I have expressed with respect to the evidence.
48 Additionally, Mr Rush QC objected to the paragraphs of Ms Hamade’s affidavit in
which she purports to give an opinion as to why Sunland has included Clyde & Co
and Mr Silver in the civil proceedings and as to the basis for the inclusion of that firm
and Mr Silver. Particular objection was raised to paragraphs 17 to 22 in this respect
on the basis that they are irrelevant – and also outside matters on which Ms Hamade
was asked to comment. It was said that they are entirely gratuitous and unnecessary
matters for Ms Hamade to raise and it was suggested that they were an attempt to
place before the Court the financial audit of Mr Mustafa.67 Mr Thompson SC, on
behalf of Sunland, submitted that they were matters within her expertise as a Dubai
lawyer. Whilst that might be so, the material itself appears speculative and does not
indicate any basis for her opinion beyond experience with Dubai law and procedure
65 See Affidavit of Diana Hamade (15 December 2011), paragraph 14
66 Exhibit DH-2 to the Affidavit of Diana Hamade (15 December 2011).
67 Mr Mohammed Mustafa Hussein of the Financial Audit Department, Government of Dubai.
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generally. Thus it seems no different from a situation in which, for example,
Australian lawyers might consider claims and pleadings in litigation in which they
are not engaged and offer opinions on why claims and pleadings were cast as they
were and parties joined, or not joined. Consequently, I am of the opinion that even if
this material is admissible as opinion evidence it is of no significant weight. I am
more inclined, however, to the view that it is irrelevant to the present applications
and is not admissible. In any event, even if admissible, it does not affect any issues
critical to these applications.
49 Sunland also submitted that the grant of the relief sought would have the potential
to create serious practical difficulties for Sunland instructing its lawyers in Dubai, as
before the Dubai lawyers could ask any question of a witness or make any
submission to the Dubai civil court, it would be necessary for them to obtain
instructions as to whether doing so would breach the injunction.
50 Further, it was submitted that if the granting of an injunction would leave the person
restrained uncertain as to what they were required to do or not to do in order to
comply with it, that would be a powerful factor militating against granting the
injunction. It is clear that certainty is important because breaching an injunction
exposes a person to penal sanctions for contempt of court, which may include
imprisonment. The point was also made that this is not a situation where the parties
seeking the injunction are merely asking the Court to require the other party to do
(or not do) something that the other party had previously willingly contracted to do.
51 Reed and Joyce, however, submitted that Sunland would not have any of the
practical difficulties and uncertainties which it claimed if the relief sought were
granted. Reference was made, in this respect, to the evidence of Mr Juma to the
effect that a civil claim in Dubai may be discontinued by a plaintiff at any time prior
to judgment.68 It was common ground that Sunland would remain a party to the
68 See the Affidavit of Abdulrahman Juma (9 December 2009), paragraph 12 (set out above, at paragraph
27); noting that the opinions annexed to the Affidavit of Ahmed Alqari (9 November 2009) are
consistent with this position and the Affidavit of Diana Hamade (15 December 2011) does not state or
suggest a contrary position.
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Dubai World proceedings as it and the Sunland entities are defending the civil claim
against them in those proceedings. Further, the grant of the relief sought will not
prevent the Dubai proceedings continuing against Reed, Joyce, Prudentia, Clyde &
Co (Legal Consultants – Dubai) or Mr Silver (Clyde & Co) as Dubai World has
brought its claims against all these individuals and entities. Nevertheless, once
Sunland discontinues its civil claim against the defendants there is no risk of noncompliance
with any orders in the form now sought. Once Sunland complies in this
way it can conduct the Dubai proceedings – including cross-examining witnesses
and making submissions – as it thinks fit, subject to the control of the Dubai court.
52 Finally, it was submitted on behalf of Reed and Joyce that the caution which
authorities indicate should be applied by a court considering an application for an
anti-suit injunction and the importance of comity are relevant but, in the present
circumstances, are overwhelmed by the circumstance of vexation and oppression
involved in the maintenance of the civil proceedings in Dubai by Sunland and its
consequent undermining of the integrity of the processes of this court. In my view
this is correct and, further, comity issues do not weigh heavily given the issues of
vexation and oppression arising from the maintenance of the foreign proceedings, as
discussed and because the effect of the grant of the relief sought in the Dubai civil
proceedings will be minimised, going only to an aspect of the part played by one of
many parties, Sunland, and then only with respect to its claim or claims.
53 Having regard to the nature of the Dubai criminal and civil proceedings, the lack of
any juridical advantage or “legitimate interest” for or in Sunland taking or pursuing
the civil proceedings in Dubai and the absence of any assets of Prudentia, Reed or
Joyce in Dubai the principles applicable to the grant of anti-suit injunctions as sought
by the applicants do, in my opinion, favour the grant of such relief. This follows
because in all the circumstances there is nothing to balance the vexation and
oppression arising from the maintenance of the foreign proceedings.
54 In concluding these reasons I do stress that nothing contained in them is intended as
any comment or reflection on the courts of Dubai, their practices and procedures or
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in any other respect, comparatively or otherwise – nor, of course, on the laws of
Dubai or, more broadly, the UAE. Any such comment or reflection would be quite
impertinent and entirely inappropriate.69 As the authorities indicate, consistently
with this position, courts should not restrain a party proceeding in a foreign
jurisdiction on the basis of their own, domestic, perceptions of the fairness or
unfairness of the foreign proceeding.
Conclusions and orders
55 For the preceding reasons, I am of the view that the application the subject of the
summonses should be granted. I will, accordingly, hear the parties in relation to the
appropriate form of orders and in relation to the question of costs.
56 The delivery of these reasons for judgment does not affect the operation according to
its terms of the undertaking given by Sunland on 19 December 2011.70
69 And see Aratra Potatoe Co Ltd v Egyptian Navigation Co (‘The El Amria’) [1981] 2 Lloyd’s Rep 119 (CA),
at 126-7 (Sir Stanley Rees, Stephenson LJ concurring, at 129); Amin Rasheed Shipping Corporation v
Kuwait Insurance Co [1984] AC 50 at 67 (Lord Diplock, Lords Roskill, Brandon and Brightman
concurring at 72-73; Lord Wilberforce made similar remarks at 72); Al-Bassam v Al-Bassam [2004]
EWCA Civ 857, at [46] (Chadwick LJ; with Sir Andrew Morritt VC and Carnwath LJ concurring).
70 See above, paragraph 5.