FEDERAL COURT OF AUSTRALIA
Shaw v Singh [2021] FCA 1207
File number(s): QUD 127 of 2021 Judgment of: COLLIER J Date of judgment: 7 October 2021 Catchwords: PRACTICE AND PROCEDURE – application for temporary stay – similar proceedings in Federal Court in another matter where judgment currently reserved – significant overlap of issues – common sub-stratum of facts – exercise of discretion – section 23 and 37M Federal Court of Australia Act 1976 (Cth) – relevant principles for Court to consider in determining whether to order temporary stay – interests of justice – undesirability of multiplicity of proceedings Legislation: Federal Court of Australia Act 1976 (Cth) ss 23, 37M Cases cited: Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745
Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Oswal [2011] FCA 424
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) [2011] FCAFC 117
Porter, in the matter of Slater (No 2) [2020] FCA 1547
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287; [1992] FCA 72
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 28 Date of hearing: 6 October 2021 Solicitor for the Applicant: The applicant appeared in person Counsel for the Respondents: Mr C Brown Solicitor for the Respondents: MinterEllison ORDERS
QUD 127 of 2021 BETWEEN: JOHN SHAW
Applicant
AND: AVTAR SINGH
First Respondent
DIPEN MITRA
Second Respondent
SHAUN ROWLAND (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
7 OCTOBER 2021
THE COURT ORDERS THAT:
1.The proceedings be stayed pending the determination of proceedings NSD 1690 of 2019.
2.The proceedings not proceed until such time as the Court grants leave.
3.The applicant pay the costs of the respondents of and incidental to the interlocutory application filed on 30 August 2021, such costs to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
This is an interlocutory application filed on 30 August 2021 by the respondents in the substantive proceedings. The respondents seek the following orders:
1.An order pursuant to rule 1.32 of the Federal Court Rules 2011 and/or section 23 of the Federal Court of Australia Act 1976 that:
a.the proceedings be stayed pending the determination of proceedings NSD 1690 of 2019; and
b.the proceedings may not proceed until such time as the Court grants leave.
2. The Applicant pay the Respondents’ costs of and incidental to the application.
3. Such further or other orders as this Honourable Court thinks fit.
The applicant was declared bankrupt on 11 June 2014 as a result of a sequestration order made in proceeding VID1371/2013. The Official Trustee in Bankruptcy, a body corporate created under the
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- Case
- [2021] FCA 1207
- Decision Date
CaseChat Overview and Summary
The court considered the relevant principles for determining whether to order a temporary stay, including the interests of justice, the undesirability of multiplicity of proceedings, and the efficient use of court time. The court noted that the proceedings in NSD 1690 of 2019 were more advanced and involved similar issues, and that a stay would avoid unnecessary duplication of costs and time. The court also noted that there was no prejudice to the applicant in staying the proceedings, as his grievances concerning similar issues had already been canvassed before the Court in NSD1690/2019. The court concluded that the interests of justice and the efficient use of court time favoured a temporary stay of the proceedings pending the determination of the proceedings in NSD 1690 of 2019.
The court granted the respondents' application for a temporary stay of the proceedings, and ordered that the proceedings be stayed pending the determination of proceedings in NSD 1690 of 2019. The court also ordered that the proceedings not proceed until such time as the Court grants leave, and that the applicant pay the costs of the respondents of and incidental to the interlocutory application filed on 30 August 2021. These orders are in line with the principles of the efficient use of court time and the undesirability of multiplicity of proceedings. The court's decision ensures that similar issues are not revisited in multiple proceedings, and that court resources are used efficiently.
Orders
Orders of the court
1. The proceedings be stayed pending the determination of proceedings NSD 1690 of 2019.
2. The proceedings not proceed until such time as the Court grants leave.
3. The applicant pay the costs of the respondents of and incidental to the interlocutory application filed on 30 August 2021, such costs to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In summary the applicant submitted:·He has a genuine dispute and has sought to engage in discussions with the respondents, however they have refused.·In his view it would now be preferable to put the proceedings in NSD1690/2019 “on hold” and complete the present proceeding as the actions of the individual respondents would be relevant in the other matter.·The respondents are wrong in submitting that the proceedings in NSD1690/2019 will determine relevant facts.·The hearing before Justice Wigney is only the first stage of a two-stage statutory judicial review of the conduct of the Official Trustee.·The respondents have not yet identified the facts and evidence they claim are the same in both proceedings.·The present interlocutory application is premature and ill founded, based on speculation gleaned by simply comparing the statements of claim in each case.·Counsel for the respondents has a conflict of interest as he is also counsel in NSD1690/2019.·There is evidence of misconduct and cover up of systemic abuse of accountability standards.·If Justice Wigney finds in the applicant’s favour, it would be beneficial to finalise this proceeding first.CONSIDERATION In Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Oswal [2011] FCA 424 (Burrup) McKerracher J observed as follows:8.The Court has a general power to control its own proceedings pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth). The general power enables the Court to order temporary stay of proceedings in various circumstances including where a proceeding is pending in another court and it is desirable that such earlier proceeding proceed to its conclusion before the Federal Court proceeding is determined.9.The parties advance arguments by reference to a list of considerations collected in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72; (1992) 34 FCR 287. A number of cases in this Court and others have followed the approach taken by Lockhart J in Sterling Pharmaceuticals. Sterling Pharmaceuticals concerned litigation in New Zealand similar to that subsequently commenced in Australia between related parties. The New Zealand litigation had included the dismissal of an application for an interim injunction. Lockhart J noted that ‘extensive affidavit evidence was filed’ in the New Zealand proceeding. This included a significant number of expert affidavits from witnesses from various countries. Seven interlocutory applications had been heard subsequent to the application for interim injunction relief. Discovery by exchange of lists of documents had occurred and the New Zealand proceeding was expected to occupy some 21 days of hearing and expected to take place before the end of that year. (The application for a stay was heard at the end of February). A stay of the Australian proceeding was sought.10. Lockhart J noted (at 291):In my opinion relevant considerations to be taken into account in the present case include the following:•Which proceeding was commenced first.•Whether the termination of one proceeding is likely to have a material effect on the other.•The public interest.•The undesirability of two courts competing to see which of them determines common facts first.•Consideration of circumstances relating to witnesses.•Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.•The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.•How far advanced the proceedings are in each court.•The law should strive against permitting multiplicity of proceedings in relation to similar issues.•Generally balancing the advantages and disadvantages to each party.11.Although resolution of the issues in New Zealand or Australia would not have given rise to an issue estoppel in the other country, his Honour observed that it:... would be quite unreal to regard companies from the same international group as if they were totally independent of each other such that the success or reversal of one of them in proceedings in one country would not materially, as a practical matter, affect the conduct of their associates in another country where the proceedings involve similar issues.12.The issues in the New Zealand case were not identical with the Australian case but his Honour was satisfied that the basic issue was the same in each proceeding. His Honour noted that resolution of issues in the New Zealand case, unless there was some serious deficiency in the evidence of the unsuccessful party in the New Zealand proceeding, should determine the issues in the Australian proceeding.