Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (No 2) - [2011] FCA 206

FEDERAL COURT OF AUSTRALIA
Uganda Telecom Limited v Hi-Tech Telecom Pty Ltd (No 2) [2011] FCA 206

Citation: Uganda Telecom Limited v Hi-Tech Telecom Pty Ltd (No 2) [2011] FCA 206

Parties: UGANDA TELECOM LIMITED v HI-TECH TELECOM PTY LTD (ACN 098 008 587); HI-TECH TELECOM PTY LTD (ACN 098 008 587) v UGANDA TELECOM LIMITED)

File number: NSD 171 of 2010

Judge: FOSTER J

Date of judgment: 11 March 2011

Catchwords: ARBITRATION – international arbitration – whether, in Australia, the appropriate way of recognising and enforcing a foreign monetary arbitral award pursuant to s 8 of the International Arbitration Act 1974 (Cth) is to make declarations as to the binding nature of the award and as to the claimant’s entitlement to have the award recognised and enforced and to give a money judgment for the amount awarded – declarations made and money judgment given

Legislation: Federal Court of Australia Act 1976 (Cth) ss 52(1), 52(2)(a), 53
International Arbitration Act 1974 (Cth) s 8(1), s 8(3)
Federal Court Rules O 35 r 8

Cases cited: Uganda Telecom Limited v Hi-Tech Telecom Pty Ltd [2011] FCA 131 related
Altain Khuder LLC v IMC Mining Inc [2011] VSC 1 cited
BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd(No 4) (2009) 263 ALR 63 applied
FG Hemisphere Associates LLC v Democratic Republic of Congo [2010] NSWSC 1394 cited
IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation (2005) 2 Lloyd’s Rep 326 cited
Miliangos v George Frank (Textiles) Ltd [1976] AC 443 applied
Norsk Hydro ASA v State Property Fund of Ukraine [2002] EWHC 2120 (Comm) cited
Westpac Banking Corporation v “Stone Gemini” [1999] FCA 917 applied
Xiadong Yang v S & L Consulting Pty Ltd [2008] NSWSC 1051 cited

Date of hearing: Decided on the papers

Date of last submissions: 4 March 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 21

Counsel for the Applicant/Cross-Respondent: Mr CP Carter

Solicitor for the Applicant/Cross-Respondent: Curwoods Lawyers

Counsel for the Respondent/Cross-Claimant: Mr A Cheshire

Solicitor for the Respondent/Cross-Claimant: Goldrick Farrell Mullan

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 171 of 2010

BETWEEN:
UGANDA TELECOM LIMITED
Applicant/Cross-Respondent

AND:
HI-TECH TELECOM PTY LTD (ACN 098 008 587)
Respondent/Cross-Claimant

JUDGE:

FOSTER J

DATE OF ORDER:

11 MARCH 2011

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:
1.Pursuant to s 8(1) of the International Arbitration Act 1974 (Cth) (the Act), the award dated 29 April 2009 made by Mr Robert Kafuko Ntuyo in arbitration proceedings in Uganda (No 23 of 2008) between the applicant and the respondent (the Award), a certified copy of which is annexed to the affidavit of Patrick Alunga Alvarez sworn on 17 February 2010 and filed herein and marked with the letter “O”, is binding for all purposes upon the applicant and the respondent.
2.Pursuant to s 8(3) of the Act, the applicant is entitled to have the Award recognised by this Court and to enforce the Award in this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FCA 206
Decision Date: 11 March 2011

CaseChat Overview and Summary

The case of Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (No 2) involved a dispute over the recognition and enforcement of a foreign monetary arbitral award. Uganda Telecom Ltd, the applicant, sought declarations as to the binding nature of the award and the claimant's entitlement to have the award recognised and enforced, as well as a money judgment for the amount awarded. Hi-Tech Telecom Pty Ltd, the respondent, did not oppose the making of the declarations but disagreed with the form of the money judgment sought by the applicant. The case was before the Federal Court of Australia.

The primary legal issue the court had to address was the appropriate way of recognising and enforcing a foreign monetary arbitral award in Australia under section 8 of the International Arbitration Act 1974 (Cth). The court needed to determine whether making declarations as to the binding nature of the award and the claimant's entitlement to have the award recognised and enforced, and giving a money judgment for the amount awarded, was the correct approach. Additionally, the court had to consider whether it should grant leave to register the award as a final judgment in Australia, which was no longer required under the Act.

The court concluded that making declarations in the terms sought by the applicant was appropriate. It found that a foreign arbitral award does not need to be registered under the International Arbitration Act 1974 (Cth) before it can be enforced, and registration is not a relevant concept in this context. The court therefore declined to make an order for leave to register the award as a final judgment. The court also ordered a money judgment for the amount awarded in the arbitral award, adjusted for currency fluctuations, and dismissed the application in all other respects. The respondent was ordered to pay the applicant's costs of and incidental to the application. Furthermore, the court directed that the cross-claimant file an Amended Cross-Claim and the cross-respondent file a Defence to Cross-Claim, with the Cross-Claim to be listed for directions. The parties were granted liberty to apply on three days' notice.

Orders

Orders of the court

3. There be judgment in favour of the applicant against the respondent in the amount of Seven Hundred and Sixty-Two Thousand Eight Hundred and Eighty-Three Dollars and Seventy-Three Cents in United States currency (USD762,883.73).

4. The Application otherwise be dismissed.

5. The respondent pay the applicant’s costs of and incidental to the Application.

6. The applicant may tax its costs forthwith.

THE COURT DIRECTS THAT:

7. The cross-claimant (Hi-Tech Telecom Pty Ltd) file and serve by 22 March 2011 an Amended Cross-Claim in such form as it may be advised.

8. The cross-respondent (Uganda Telecom Limited) file and serve by 5 April 2011 its Defence to Cross-Claim.

9. The Cross-Claim be listed for directions before Foster J at 9.30 am on 7 April 2011.

THE COURT ALSO ORDERS THAT:

10. The parties have liberty to apply on three days’ notice.

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

On 22 February 2011, I delivered Reasons for Judgment in this matter (Uganda Telecom Limited v Hi-Tech Telecom Pty Ltd [2011] FCA 131) (the first judgment). On that day, I ordered that:1.Within seven (7) days of the date of these Orders, the parties file and serve an agreed set of declarations, orders and directions designed to give effect to these Reasons for Judgment. 2.In the event that agreement cannot be reached within the timeframe specified in Order 1 above, each party file and serve within ten (10) days of the date of these Orders its version of the declarations, orders and directions which it submits that the Court should make, together with a brief Written Submission of no more than three pages in length in support of its version. 3.The form of relief will thereafter be determined on the papers. The parties have been unable to agree on the terms of the declarations and orders which should be made in order to give effect to the Reasons for Judgment which I delivered on 22 February 2011. Each party has submitted a draft of the declarations and orders which it considers are appropriate and has supported that draft with brief Written Submissions. These Reasons for Judgment determine all questions relating to the relief to be granted to the applicant (UTL). I will also make directions in the Cross-Claim brought by the respondent (Hi-Tech) against UTL. Although the parties have agreed on the directions to be made in the Cross-Claim, I will not make all of the agreed directions. At this stage, I intend only to deal with the pleadings and then to review and, if necessary, case manage the Cross-Claim at directions hearings once the pleadings are closed. CONSIDERATION UTL submitted that I should make declarations declaring the binding nature of the Award and UTL’s entitlement to enforce that Award. Hi-Tech agreed with that submission. Hi-Tech also agreed with the terms of the declarations suggested by UTL. I propose to make declarations substantially in the terms sought by UTL. UTL also claims an order in the following terms, namely, that:Leave be granted to the Applicant to register the Award as a Final Judgment in the Commonwealth of Australia pursuant to section 8 of the International Arbitration Act, 1974 (Cth). There is now no requirement that a person seeking to enforce a foreign arbitral award in Australia obtain the leave of this or any other court (see [6] to [9] of the first judgment). Furthermore, a foreign arbitral award does not have to be and cannot be registered under the International Arbitration Act 1974 (Cth) (the Act) before it can be enforced. Registration is simply not a concept which is relevant to the enforcement of such an award. I therefore decline to make an order in the terms of the order extracted at [4] above. UTL also seeks orders that: 2.Pursuant to the Award, judgment [be] entered for the Applicant against the Respondent in the amount of seven hundred and sixty thousand nine hundred and fifty three US dollars and ninety-three cents (USD760,953.93). 3.The respondent pay the applicant’s costs of the proceedings to date, as agreed or taxed, forthwith.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Uganda Telecom Limited v Hi-Tech Telecom Pty Ltd (No 2) [2011] FCA 206
Parties:		UGANDA TELECOM LIMITED v HI-TECH TELECOM PTY LTD (ACN 098 008 587); HI-TECH TELECOM PTY LTD (ACN 098 008 587) v UGANDA TELECOM LIMITED)
File number:		NSD 171 of 2010
Judge:		FOSTER J
Date of judgment:		11 March 2011
Catchwords:		ARBITRATION – international arbitration – whether, in Australia, the appropriate way of recognising and enforcing a foreign monetary arbitral award pursuant to s 8 of the International Arbitration Act 1974 (Cth) is to make declarations as to the binding nature of the award and as to the claimant’s entitlement to have the award recognised and enforced and to give a money judgment for the amount awarded – declarations made and money judgment given
Legislation:		Federal Court of Australia Act 1976 (Cth) ss 52(1), 52(2)(a), 53 International Arbitration Act 1974 (Cth) s 8(1), s 8(3) Federal Court Rules O 35 r 8
Cases cited:		Uganda Telecom Limited v Hi-Tech Telecom Pty Ltd [2011] FCA 131 related Altain Khuder LLC v IMC Mining Inc [2011] VSC 1 cited BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd(No 4) (2009) 263 ALR 63 applied FG Hemisphere Associates LLC v Democratic Republic of Congo [2010] NSWSC 1394 cited IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation (2005) 2 Lloyd’s Rep 326 cited Miliangos v George Frank (Textiles) Ltd [1976] AC 443 applied Norsk Hydro ASA v State Property Fund of Ukraine [2002] EWHC 2120 (Comm) cited Westpac Banking Corporation v “Stone Gemini” [1999] FCA 917 applied Xiadong Yang v S & L Consulting Pty Ltd [2008] NSWSC 1051 cited
Date of hearing:	Decided on the papers
Date of last submissions:	4 March 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Applicant/Cross-Respondent:	Mr CP Carter
Solicitor for the Applicant/Cross-Respondent:	Curwoods Lawyers
Counsel for the Respondent/Cross-Claimant:	Mr A Cheshire
Solicitor for the Respondent/Cross-Claimant:	Goldrick Farrell Mullan

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 171 of 2010

BETWEEN:	UGANDA TELECOM LIMITED Applicant/Cross-Respondent
AND:	HI-TECH TELECOM PTY LTD (ACN 098 008 587) Respondent/Cross-Claimant

JUDGE:	FOSTER J
DATE OF ORDER:	11 MARCH 2011
WHERE MADE:	SYDNEY