Joyce v Sunland Waterfront (BVI) Ltd

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FEDERAL COURT OF AUSTRALIA

Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95

Citation: Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95
Appeal from: Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 9) [2011] FCA 832
Parties:

MATTHEW JAMES JOYCE v SUNLAND WATERFRONT (BVI) LTD and SUNLAND GROUP LIMITED ACN 063 429 532

PRUDENTIA INVESTMENTS PTY LTD ACN 091 390 742, ANGUS JOHN LUXMORE REED v SUNLAND WATERFRONT (BVI) LTD, SUNLAND GROUP LIMITED ACN 063 429 532, HANLEY INVESTMENTS PTE LTD AND MATTHEW JAMES JOYCE
File numbers: QUD 187 of 2011
QUD 189 of 2011
Judges: KEANE CJ, DOWSETT AND GREENWOOD JJ
Date of judgment: 19 August 2011
Corrigendum: 26 August 2011
Catchwords: PRACTICE AND PROCEDURE – Appeal from an interlocutory decision of Logan J to stay proceedings indefinitely – whether witness voluntarily giving evidence by video-link from overseas breaches nation’s sovereignty in the absence of permission from that nation – sovereignty and comity – where a respondent in the proceedings is also the subject of criminal proceedings in another nation and currently released on bail – where position of foreign nation regarding the taking of evidence by video link from that respondent unclear – where uncertain whether position of the foreign nation will ever be clarified in the future – where party may become unable to give evidence in the future if convicted in criminal proceedings in that foreign jurisdiction
Legislation:

Evidence Act 1995 (Cth) ss 4(1), 21
Federal Court of Australia Act 1976 (Cth) ss 44, 47A

Foreign Evidence Act 1994 (Cth) s 7
Trade Practices Act 1974 (Cth) s 82
Federal Court Rules O 24 r 1
Federal Court Rules Div 29.2
Cases cited:

Bell Group Ltd (In Liq) v Westpac Banking Corporation (2004) 208 ALR 491 cited
CSR Ltd v Cigna Insurance Ltd (1997) 189 CLR 345 cited
Habib v The Commonwealth (2010) 183 FCR 47 cited
Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 cited
Netherlands v US (1928) 2 RIAA 829 cited
Yamouchi v Kishimoto (2002) 12 NTLR 32 cited

Jennings R & Watts A, Oppenheim’s International Law (9th ed, Longman, 1992)
Triggs G, International Law Contemporary Principles and Practices (2nd ed, LexisNexis Butterworths Australia, 2011)
Rothwell D, Kaye S, Akhtarkhavari A and Davis R, International Law Cases and Materials with Australian Perspectives (Cambridge University Press, 2011)

Date of hearing: 8 August 2011
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 67
In QUD 187 of 2011
Counsel for the Appellant: Mr PJ Riordan SC with Mr ND Hopkins
Solicitor for the Appellant: Norton Rose Australia
Counsel for the Respondents: Mr GA Thompson SC with Dr SS Monks
Solicitor for the Respondents: Thomsons Lawyers
In QUD 189 of 2011
Counsel for the Appellants: Mr SG Finch SC with Mr HR Carmichael
Solicitor for the Appellants: Freehills
Counsel for the Respondents: Mr GA Thompson SC with Dr SS Monks
Solicitor for the Respondents: Thomsons Lawyers

FEDERAL COURT OF AUSTRALIA

Joyce v Sunland Waterfront (BVI) Ltd [2011]…

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Details
Case
[2011] FCAFC 95
Decision Date

CaseChat Overview and Summary

The case of Joyce v Sunland Waterfront (BVI) Ltd was heard in the Federal Court of Australia, involving a dispute regarding the admissibility of evidence from a witness located overseas. The primary issue was whether taking the evidence of a witness by video-link from a foreign jurisdiction would breach that nation’s sovereignty in the absence of permission from that nation. This issue was complicated by the fact that the respondent, Mr Joyce, was also the subject of criminal proceedings in the United Arab Emirates (UAE) and was currently on bail, with restrictions on his travel. The position of the UAE on the admissibility of evidence via video-link was unclear, and there was uncertainty as to whether this position would ever be clarified.

The court was required to determine the appropriate legal principles to apply when considering the admissibility of overseas evidence in such a context. It needed to weigh the principles of sovereignty and comity against the need for the Australian court to efficiently and fairly hear evidence from a key witness who was unable to travel due to the ongoing criminal proceedings against him in the UAE. The court also had to consider the possibility that the witness might be unable to give evidence in the future if convicted in the UAE.

In its reasoning, the court found that the principles of sovereignty and comity required that the UAE's permission be sought for the taking of evidence by video-link. However, given the uncertainty over the UAE's stance and the risk that the witness might be unable to give evidence in the future, the court concluded that it was appropriate to allow the taking of evidence by video-link. This decision was made to ensure that the proceedings could proceed efficiently and fairly, while also respecting the sovereignty of the UAE. The court allowed the appeals, set aside certain orders, and directed that Mr Joyce's evidence be given by video link from Dubai. The court also dealt with costs and ordered that the reasons for the decision be communicated to the Department of Foreign Affairs and Trade.

Orders

Orders of the court

1. pursuant to the notice of motion filed on 26 July 2011, the applicant on that notice of motion (“Mr Joyce”) have leave to appeal from the whole of the judgment of the Federal Court of Australia constituted by the Honourable Justice Logan RFD in action No QUD 195 of 2009, given on 19 July 2011 at Brisbane, wherein his Honour dismissed Mr Joyce’s motion that his evidence at trial be given by way of video link from Dubai in the United Arab Emirates, notice of which motion was filed on 1 July 2011, and stayed the same action until further order;

2. Mr Joyce have leave to file and serve a notice of appeal substantially in the form of “annexure A” to the notice of motion filed on 26 July 2011;

3. the appeal be heard instanter and allowed;

4. orders 1, 4, 5, 6 and 7 of the orders made by the Honourable Justice Logan RFD on 19 July 2011 be set aside;

5. unless otherwise ordered, Mr Joyce’s evidence in action No QUD 95 of 2009 be given by video link pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth), such evidence to be given on oath or affirmation;

6. unless any party, within 7 days of the publication of these reasons, files a notice of motion seeking some other order as to costs, the costs of and incidental to the notice of motion filed on 1 July 2011, and of the hearing and determination thereof, the costs of this application for leave to appeal and the costs of the appeal be costs in the cause;

7. in the event that such a notice of motion is filed, the parties, within 7 days, file agreed directions as to the delivery of written submissions concerning costs and comply with same;

8. this order, in draft form, be sent forthwith by the District Registrar to the Department of Foreign Affairs and Trade;

9. this order lie in the registry for 7 days after the publication of these reasons; and

10. the parties have liberty to apply.

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

1. pursuant to the notice of motion filed on 26 July 2011 the applicants on that notice of motion (“Prudentia” and “Mr Reed”) have leave to appeal from the orders of the Honourable Justice Logan RFD made on 19 July 2011 in action No QUD 195 of 2009;

2. Prudentia and Mr Reed have leave to file and serve notices of appeal substantially in the form of “annexure A” to the notice of motion;

3. the appeals be heard instanter and allowed;

4. orders 1, 4, 5, 6 and 7 of the orders made by the Honourable Justice Logan RFD on 19 July 2011 be set aside;

5. unless otherwise ordered, the evidence of Matthew James Joyce in action No QUD 195 of 2009 be given by video link pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth), such evidence to be upon oath or affirmation;

6. the matter be otherwise remitted to the primary Judge for determination;

7. unless any party, within 7 days of the publication of these reasons, files a notice of motion seeking some other order as to costs, the costs of and incidental to the notice of motion filed on 1 July 2011, and of the hearing and determination thereof, the costs of this application for leave to appeal and the costs of the appeal be costs in the cause;

8. in the event that such a notice of motion is filed, the parties, within 7 days, file agreed directions as to the delivery of written submissions concerning costs and comply with same;

9. this order, in draft form, be sent forthwith by the District Registrar to the Department of Foreign Affairs and Trade;

10. this order lie in the registry for 7 days after publication of these reasons; and

11. the parties have liberty to apply.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

As we understand it, the UAE is a federation of states, one of which is Dubai. Australia has an ambassador located in Abu Dhabi, which is another state of the federation. We infer that the ambassador is accredited to the UAE. There is a consulate general in Dubai. In this matter, the parties have drawn no distinction between the law of the UAE and the law of Dubai.TAKING MR JOYCE’S EVIDENCE AND THAT OF OTHER WITNESSES At the time at which the Australian proceedings were commenced, Mr Joyce had already been charged in the UAE with criminal offences arising out of the same transactions and was a party to civil proceedings in the UAE, also arising out of those transactions. The criminal and civil proceedings are still in train. In connection with the criminal proceedings, Mr Joyce has been granted bail but has surrendered his passport. His bail conditions prevent him from travelling to Australia to participate in the Australian proceedings. It is expected that before the end of the year, there will be a decision in the UAE criminal proceedings. The Australian proceedings are substantially ready for trial. During 2010 and this year, attempts have been made to arrange a mechanism by which Mr Joyce’s evidence could be taken in the UAE or by video link to Australia. The Court enlisted the assistance of the Department of Foreign Affairs and Trade (“DFAT”) in investigating ways in which the Court might take Mr Joyce’s evidence. One proposal was that Logan J take evidence in Dubai. Another was that Mr Joyce’s evidence be taken by video-link from Dubai. Consideration was given to utilizing the provisions of the Foreign Evidence Act 1994 (Cth) (the “Foreign Evidence Act”), together with O 24 R 1 of the Rules of Court in force prior to 1 August this year. The relevant provisions are now found in Div 29.2 of the current Rules of Court. Use of s 47A of the Federal Court of Australia Act 1976 (Cth) (the “FCA”) was also considered. It seems that DFAT first contacted the authorities in the UAE in mid-2010. This led to an email to the Court dated 7 September 2010 in which DFAT advised:We have received information from Post (Australian Embassy) in Abu Dhabi about the taking of evidence in Dubai. It appears that civil matters will be treated in the same manner as criminal matters and that any request for the taking of evidence will need to be made through the diplomatic channel. This process can take a substantial amount of time but is the only avenue available at this time. Please see the following information received from Post regarding this matter after a meeting with the Acting General Attorney of Dubai and Head of the Technical Bureau at the Dubai Prosecutor’s Office:UAE authorities will not permit an Australian Federal Court Judge to travel to Dubai for the purpose of taking evidence from two Australian witnesses presently before the Dubai civil and criminal courts. Pending the ratification of the bilateral Extradition and Mutual Legal Assistance treaties, all requests for mutual legal assistance, including requests for video conferencing, must be submitted through the UAE Ministry of Foreign Affairs. Each request will be considered on a case by case basis.Any mutual legal assistance that the UAE provides must be consistent with the UAE Federal Law on International Judicial Cooperation in Criminal Matters, which was enacted in 2006, and without prejudice to any international Extradition or mutual legal assistance agreements to which the UAE was a party.All requests would be considered on “the condition of reciprocity”. The (UAE) courts are not equipped with these (video conferencing) facilities but … video conferencing had been used on one occasion before the enactment of the Federal Law. Australia could submit a request for video conferencing, but the details of this were not elaborated upon (for example regarding costs). The Acting General Attorney asked whether the taking of evidence could wait until after the proceedings against the Australians and depending on the outcome of the proceedings. He suggested that we provide him with the names of the Australians so that the Dubai Prosecutor’s Office could assess the likely length of the proceedings. Based upon this information, it is necessary for the Federal Court to make a formal request for assistance through the diplomatic channel for evidence to be taken from these witnesses. Further enquiries about the likely length of proceedings can be obtained if the names of the witnesses are provided to Dubai authorities which may assist the Federal Court in reaching a decision in regards of the taking of evidence for Australian proceedings. Please do not hesitate to contact me if you have any questions regarding this matter.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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