Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation Ltd

[1991] FCA 94

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) NO. G 339 of 1987

GENERAL DIVISION 1

Between: BURGUNDY ROYALE

INVESTMENTS PTY LTD h ORS

Applicants/Cross Respondents

RECEIVED M and: WESTPAC BANKING - A-...

CUWUKArIUN LIPLLTKU h UKa

19MAR 1991

FEDERAL COURT OF Respondents/Cross Claimant

AUSTRALIA PRINCIPAL REGISTRY

EX TEWORE JUDGMENT

Einfeld J Svdney 12 March 1991

On 28 February 1991, following a hearing on 5 October 1990 of a notice of motion dated that day, I held that the Court has jurisdiction to entertain an application for declarations or orders that there was a retainer agreement between Datuk Wong Chik Lim and Baker and McKenzie and as to what the terms of the retainer were. The reasons for judgment given on that occasion set out the necessary facts and I will not repeat them now. Formal rulings have not yet been made. The notice of motion involved was brought by Baker & McKenzie. Inter alia it sought such declarations.

application referred to. The purpose of all this litigation

There is before the Court this morning a notice of motion by Datuk Wong for leave to appeal from those reasons. I will assume for present purposes that consequen+ upon my reasons of 28 February, I made an order or declaration appropriate to give expression to the conclusions then reached. An appropriate declaration would be something of the kind that

the Court had jurisdiction and power to deal with the

is to determine whether Baker and McKenzie may present to an appropriate officer a bill of costs against Datuk Wong in respect of fees for work performed in matter number G339 of 1987 in which Baker and McKenzie were the solicitors for the applicants.

The motion for leave to appeal brought by Datuk Wong is dated 7 March 1991 and is supported by an affidavit of Timothy Glenn, a partner of the firm of his solicitors, dated the same date. In substance, the affidavit in its written form put as the argument for the grant of leave to appeal on the issue of jurisdiction that the evidentiary aspects of the matter of the retainer and the nature of any contract between Datuk Wong and Baker and McKenzie would involve substantial hearing time and costs. There was mention in Court of at least 2 witnesses from overseas and several from Sydney.

In effect, it was being put in the affidavit that the jurisdiction of the Court to deal with this matter is a

circumstances that it be tested on appeal before the

separate and discreet issue and that it was appropriate in the

expenditure of a considerable amount of time and money on the hearing of evidence. I was attracted by this proposition. I agree that the matters dealt with in my reasons for judgment on 28 February 1991 are appropriate for determination on appeal. Further, it seemed to me that in balancing the issue of whether one part of a case should go on appeal before the rest of the case is finalised, should be determined in favour

of the appeal proceeding on the jurisdictional aspect first. If the Full Court is of a different opinion to me on jurisdiction, costs and court time would then not be wasted.

However, during the course of argument, counsel for Datuk Wong indicated that it was his client's intention only to contest the jurisdictional issue in Baker and McKenzie's motion. He stated that he did not wish to read the part of M r Glenn's affidavit dealing with the costs and length of the hearing on the substantive issues, and that the new ground of his

application for leave to appeal was that the jurisdictional

issue ought not to be tangled up with an appeal on other
issues when and if they are determined.

It strikes me that this approach makes a significant change to the circumstances before the Court today. If Baker and McKenzie are going to be permitted to proceed ex parte on the issue of whether there was a retainer between themselves and Datuk Wong, and if so what it was, who were the parties, and

what was the nature of the contract between them, the	remainder of this hearing will be very short.
Indeed, judging from what counsel has said in court, I am inclined to think that I could dispose of the evidence in half a day at the most, perhaps even half an hour, probably some time within the next seven to ten days. If that assessment is correct, it seems to me that the question of leave to appeal from the orders or declarations which I would now make in consequence of the reasons delivered on 28 February might with advantage to all concerned be delayed until the remainder of the hearing takes place. As a very general statement, it is undesirable to have appeals on parts of cases. Counsel for Datuk Wong has quoted High Court authority today that suggests that the jurisdictional determination, although an apparent final disposal of an issue in the current proceedings, is nonetheless an interlocutory judgment. Without passing on the matter in any authoritative way, I am prepared to assume for the present purposes that this argument is correct.
That being the case, leave to appeal to a Full Court of this Court would be necessary. In the event that one or other party wished to litigate the Full Court's decision in the High Court, in substance special leave would have to be sought on what the High Court has, on the assumptions on which I am proceeding, held to be an interlocutory matter. This seems to me to be an unsatisfactory way to litigate what on all accounts is a matter of some seriousness and substance on
which at present there is no authority other, apparently, than my judgment in this case. It would be a matter of some
injustice to Baker and McKenzie if Datuk Wong were successful before the Full Court and Baker and McXenzie then had to seek special leave of the High Court in a circumstance where special leave may be refused on the ground that the matter before the Court was interlocutory. On the other hand, of course, if the Full Court held there was no jurisdict~on, it would be hard to see how the matter would remain interlocutory. In these circumstance, if there is a reasonably available option to the Court to dispose of the litigation in total, it seems to me that it should be accepted and adopted. However, counsel for Baker and McKenzie contends that Datuk Wong has changed direction in this matter for a tactical reason.
Because there is no evidence of this before me, I merely state that counsel has described the change as being from the original proposal set out in Mr Glenn's af fidavit (that leave to appeal should be granted on financial and practical grounds) to the relatively amorphous approach that the jurisdictional issue should be hived off and dealt with separately for largely unstated conceptual reasons. He says that this is in fact a tactic motivated by the reason that if Datuk Wong does not participate in the hearing on the merits, there would be difficulty under Hong Kong law in Baker and KcKenzie enforcing any judgment of this Court as to the payment of the costs. This is said to be because Hong Kong Courts may not enforce certain orders of foreign courts
arising from undefended proceedings.
I have said that there is no evidence to support this contention by Baker and McKenzie. Counsel says that this is because the matter was not raised in Mr Glenn's affidavit and that his clients were misled into believing that, when they came here today, the cost and length of hearing were going to be the only matters argued. With that approach having been dropped, and the alternative argument put, counsel for Baker and McKenzie says that he has been caught by surprise and wishes an adjournment of the motion in order to deal with the new ground upon which the motion is being pressed.
I think that that application should be sustained. When I read Mr Glenn's affidavit, it was clear to me what the basis of the argument on the motion was going to be. The withdrawal of that argument has meant that the matter is very much more doubtful. Indeed, as I sit here now, I am not even sure that I can crystallise in easy language the precise basis on which the leave to appeal now is sought.
Cn what I do understand of his argument, I agree with counsel for Datuk Wong that the argument is not easily express~ble in an affidavit. Nonetheless, it does have to be understood, the more so because it is quite clear that this litigation is not going to stop here. Appellate courts are entitled to know the basis upon which the argument was put below, and the rulings of the trial judge on those arguments.
motion to permit a crystallisation of the matters now in issue For those reasons I propose to grant the adjournment of the
between the parties; in particular, to permit Baker and McKenzie to place before the Court any material on which they wish to argue against the grant of leave to appeal at this stage.
In order to protect all partles, I will therefore refrain from pronouncing a declaration at this stage, although I make clear
- as must be obvious - that it is in my mind to pronounce a
declaration of the kind to which I earlier referred. In order to clarify precisely the basis upon which Datuk Wong is now proceeding in his notice of motion of 7 March, I direct that by not later than 4 pm on Thursday 14 March, there be filed and served the argument now put by him in support of the motion, in particular the argument as to why a Full Court should be convened to deal with the jurisdictional issue separately from all the other issues in the context where a hearing and final determination can be arranged of those other issues before the end of this month.
I further direct that Baker and McKenzie file and serve the evidence and argument upon which they wish to rely in opposing the motion of Datuk Wong of 7 March by not later than 4 pm on Monday 18 March. Any evidence or argument in reply is to be filed and served by not later than 12 noon on Wednesday 20
March. By "filing", I mean filing affidavits in the registry and supplying the submissions/argument and a copy of the
affidavits to my associate directly. If more convenient, the material may be faxed to me on the number which my associate will provide.
At that time the parties are to notify my associate whether it is desired to have oral argument in addition to the written material, and whether any cross-examination is desired either of M r Glenn on his present affidavit, or of the deponents of any evidence introduced by Baker and McKenzie. I note that counsel for Datuk Wong has expressly denied the so-called tactical reason advocated by Baker and McKenzie as the explanation for counsel's adoption of the current procedure and announcement of the current intentions of his clients.
This is an issue that might have to be resolved. One reason is that the Court is unlikely to lend itself to procedures which are designed to avoid the effects of their rulings by such sinister activity as is suggested. It may therefore be necessary to test the respective contentions by cross-examination of oral evidence.
If so, I can list the oral argument and cross-examination for Friday 22 March, and in a moment I will discuss with counsel whether that is a convenient date to them personally. At the same time, I will wish to be advised as to whether the hearing on the remaining issues can take place in the week commencing
March 25, on a date which is convenient to those who wish to be present at that hearing. I will require at some stage that
the parties submit short minutes of the orders/declarations which should be made to give effect to my reasons of 28 February 1991. This should be, for the present, fixed for 22 March, but this date may be changed by arrangement to accord with developments.
[ Discussion ]
By 10 am on 21 March the parties are to notify my associate as to whether the hearing on the 22nd is required. I formally stand over the motion of Baker and McKenzie of 5 October 1990 and the motion of Datuk Wong of 7 March 1991 to 9.30 am on Friday 22 March.
I understand that counsel may have some difficulty at some time on that day, although 9.30 should be convenient at least to mention the matter, and I will try and hold some time available later in the day to meet with counsel's convenience, if that is necessary.
[ Discussion ]
I stand over matter number G466 of 1990 to the same time.
In the event that the parties do not need the oral hearing on
22 March I will make some orders in Chambers about what should
happen to all these various proceedings and not~fy the partles
of the orders that have been made. They will just be orders
that fix a further return date for the various proceedings.
[ Discussion ]
I reserve the question of costs for today.

r .

I, certify that th~s and the 8

preceding pages are a true copy of the
Reasons for Judgment herein of h13 Honour

Justice E:nfeld

Dated l 2 bt)C1Z Iq q f