Wickham Point Development Pty Ltd v Commonwealth of Australia (No 4) - [2019] NTSC 17

CITATION:Wickham Point Development Pty Ltd v Commonwealth of Australia & Ors (No 4) [2019] NTSC 17
PARTIES:WICKHAM POINT DEVELOPMENT PTY LTD
v

COMMONWEALTH OF AUSTRALIA

AND

TREPANG SERVICES PTY LTD

AND

SERCO AUSTRALIA PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:25 of 2017 (21715635)
DELIVERED:  19 March 2019
HEARING DATE:  7 February 2019
JUDGMENT OF:  Luppino AsJ
CATCHWORDS:

Practice and Procedure – Stay of proceedings – Temporary stay pending appeal in a related matter – Stay previously granted pending the hearing of the related matter at first instance – Second stay sought pending the appeal – Principles applicable to the grant of a stay – Application of the principles to the facts of the case.
Supreme Court Rules (NT) rr 11.02, 11.12(b), 63.72(9)(a).
Wickham Point Development Pty Ltd v Commonwealth of Australia (No 3) [2018] NTSC 63.
Commonwealth of Australia v Trepang Services Pty Ltd [2018] NTSC 90. Hunter v Chief Constable of West Midland Police [1982] AC 529.
Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256.
Rozenblit v Vainer & Anor [2018] HCA 23.
Gao v Zhang (2005) 14 VR 380.
Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16.
Voth v Manildra Flour Mills Pty Ltd & Anor (190) 171 CLR 538.
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345.
Thoday v Thoday (1964) All ER 341.
Chamberlain v. The Deputy Commissioner of Taxation (1988) 164 CLR 502.
Port of Melbourne Authorityv Anshun Pty Ltd (1981) 147 CLR 589.
Jackson v Goldsmith (1950) 81 CLR 446.
Egri v DRG Australia Pty Ltd (1988) 19 NSWLR 600.
Commissioner For Railways (New South Wales) v Cavanough (1935) 53 CLR 220.
REPRESENTATION:
Counsel:
Plaintiff:N Christrup SC
Defendant:B Ilkovski
First Third Party:  N Christrup SC
Second Third Party:  Not represented on the application
Solicitors:
Plaintiff:HWL Ebsworth
Defendant:Clayton Utz
First Third Party:  HWL Ebsworth
Second Third Party:  Ward Keller
Judgment category classification:    B
Judgment ID Number:  Lup1901

Number of pages: 11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Wickham Point Development Pty Ltd v
Commonwealth of Australia & Ors (No 4)
[2019] NTSC 17
No. 25 of 2017 (21715635)

BETWEEN:
WICKHAM POINT DEVELOPMENT PTY LTD

Plaintiff
AND:
COMMONWEALTH OF AUSTRALIA

Defendant
AND:
TREPANG SERVICES PTY LTD
First Third Party
AND
SERCO AUSTRALIA PTY LTD
Second Third Party

CORAM: Luppino AsJ
REASONS

(Delivered 19 March 2019)

I previously granted the Defendant a stay of its Third Party proceedings (the “First Third Party Claim”) against the First Third Party (“Trepang”) for the reasons set out in Wickham Point Development Pty Ltd v Commonwealth of Australia & Ors (No 3)[1] (“Wickham Point No 3”). That stay was granted pending determination of the Defendant’s Originating Motion against Trepang, filed 1 May 2018, seeking orders for production of certain documents (“the Originating Motion Proceedings”). In those proceedings the Defendant asserted an entitlement to the documents on the basis of a contractual right provided for in a certain agreement between the Defendant and Trepang. There are no factual disputes in those proceedings and the matter turns entirely on the interpretation of the relevant terms of that contract.
The current proceedings are related to the Originating Motion Proceedings. The Defendant says that it commenced those proceedings as it requires the documents sought to plead its case on the First Third Party Claim. As the Third Party Notice commencing the First Third Party Claim is endorsed with a Statement of Claim,[2] presumably therefore an amendment to that Statement of Claim is contemplated.
The Originating Motion Proceedings were finally heard by Kelly J on 27 August 2018. Her Honour delivered her decision on 18 December 2018.[3] Her Honour found in favour of Trepang. The Defendant has filed an appeal against that decision and has made the current application, by summons filed 22 January 2019, seeking another stay of the First Third Party Claim pending the outcome of that appeal. The appeal was heard by the Court of Appeal on 5 March 2019 and the decision has been reserved.
I discussed the authorities[4] relevant to the grant of a stay in Wickham Point No 3. I will not repeat the principles here in detail save to succinctly note that the grant of a stay is discretionary, that it is not an order that is lightly made and that the balance of convenience, alone at least, is not sufficient to support the grant of a stay.
Before applying the relevant principles to the circumstances of this case, I will deal with the argument of the Plaintiff and Trepang in respect of res judicata and issue estoppel. Succinctly, the Plaintiff and Trepang argue that on the authorities,[5] as there has now been a final hearing in the Originating Motion Proceedings, the Defendant has no proper basis for a stay as the question has been finally decided. Essentially the submission is that the Defendant cannot now claim that it may be entitled to documents from Trepang in the event that it is successful on appeal.
Taken to its logical extreme that argument would mean that, at common law at least, it would be futile for an unsuccessful party to appeal a decision at first instance. That cannot be correct. Although it is correct to say that, unless a decision is overturned on appeal, the principles of res judicata and/or issue estoppel mean that the decision or findings, as the case may be, made in the decided proceedings are binding and cannot be the subject of further litigation, it is wrong to apply that in a way which prevents an appeal from the decision at first instance.
Mr Christrup, Senior Counsel for the Plaintiff, seemed to accept that but argued that the current case is distinguishable firstly, on the basis that the stay is sought in separate and different proceedings. However, there is nothing in the authorities that I was referred to which supported that and I do not agree in any case. I think the authorities equally apply to cases such as the current application where the stay is sought in respect of separate proceedings.
Secondly, on the basis that the stay will only operate against the execution of the judgment, not the judgment itself. I cannot see that this should make a difference and there is nothing in the authorities to support that.
Overall therefore I do not agree that the principles of res judicata and issue estoppel deny the Defendant a basis for the grant of the stay that it seeks. I do agree that as long as the decision in the Originating Motion Proceedings stands, the Defendant cannot re-litigate the issue, but an appeal does not amount to re-litigating for that purpose.
However I do agree that the completion of the Originating Motion Proceedings at first instance remains a relevant factor to be taken into account in the exercise of the discretion as the claim has been heard and decided. Notwithstanding the appeal, her Honour’s decision is to be taken as correct unless and until overturned on appeal. Other than that, the decision at first instance has no greater relevance in respect of the exercise of the discretion.
Dealing now with the substantive application, the Defendant submitted firstly, that the time likely to be taken by the Court of Appeal to hand down its decision will only minimally and adversely impact on the case management and progress of the current proceedings due to the influence of other factors. The submission is predicated on the basis that the Originating Motion Proceedings are solely a question of contractual interpretation without any dispute of facts, presumably meaning that a decision in a relatively short period of time is likely.
Some guidance as to the time likely to be required for the Court of Appeal to hand down a decision was sought to be taken from the time taken by Kelly J to hand down her decision at first instance. However, I do not consider that is any guide at all. Usually a decision of the Court of Appeal, except in respect of glaring errors at first instance, almost invariably results in greater time being taken between argument and decision than was the case at first instance. In any case, what is pertinent is that the required time is difficult to accurately predict and that adversely impacts on the Defendant’s submission.
On its own that would make it difficult to assess the full impact of that on the management of the current proceedings, which is at the core of the Defendant’s submission. Leaving aside the difficulty of predicting when the Court of Appeal will deliver its decision for the moment, what the Defendant relies on to support its submission is firstly, the recent completion of discovery in the current proceedings and the time likely to be required by the parties to review the thousands of documents which have been discovered. I was also told, and this was largely confirmed by the Plaintiff, that the Plaintiff intends to challenge a claim to be made by the Defendant for public immunity privilege in respect of approximately 100 cabinet documents discovered by the Defendant. If so, clearly that will take some time to be heard and determined.
Further, the Defendant relied on the effect of the Second Thirty Party (“Serco”) having recently been given leave to serve a Third Party Notice against the Plaintiff (“the Third Third Party Claim”). That in turn means that the First Third Party Claim proceedings overall are at a relatively early stage.
I was also told that delay will also be occasioned if Trepang counterclaims against the Defendant in respect of the First Third Party Claim. Such a counterclaim appears likely and if that does eventuate, that will mean that the primary proceedings will be delayed in any case.
Arguing against a further stay, the Plaintiff and Trepang rely on the likelihood of the amendment of the Statement of Claim in the First Third Party Claim if the current appeal is successful. That would in turn delay the primary proceedings. I think it is common ground that if the Defendant is successful on appeal, delay would occur as a result of the time required for the subject documents to be produced, then reviewed and then for any required amendments to be made. However there is a certain irony in the Plaintiff and Trepang relying on that as, if the appeal is successful, essentially that means the Defendant was entitled to the production of the documents from the outset. Therefore the delay from approximately May 2018 when the Defendant first sought the subject documents from Trepang, could be justifiably attributed to Trepang, a party in the same camp as the Plaintiff, for resisting the Defendant’s initial request for production of the documents.
The countering argument of the Defendant in respect of this factor is that if there is to be an amendment, the stay operates favourably in that it saves resources, time and expense. Although probably correct, that does depend on the ultimate result on the appeal. The corollary of course is that if the stay pending appeal is granted and the Defendant is unsuccessful on appeal, then the time until the conclusion of the appeal, over and above any delay which will occur due to the other delaying factors discussed above, will have been wasted.
The Plaintiff and Trepang also argue that the risk of the fracturing of the proceedings, i.e., necessitating the hearing the First Third Party Claim separately because it has lagged behind the primary proceedings, is now far greater than when the first stay application was heard. A similar argument was put in Wickham Point No 3. What this refers to is the possibility of an order that a Third Party claim is to be separately determined.[6] As I said in my reasons in Wickham Point No 3, generally such an order should be avoided.[7] It is not ideal to determine a Third Party claim separately from the primary proceedings in the usual case. Such an order could result in duplication and runs counter to the objective of achieving finality of all issues between all concerned parties on all related issues. The possibility of the stay resulting in that situation therefore is a relevant consideration.
There was considerable comment in the course of argument regarding the effect of the Defendant’s Third Party Notice against the Serco (“the Second Third Party Claim”). I think this is a factor in favour of the grant of the stay as it indirectly impacts on the issue of fracturing argument. That is so by reason of the Third Third Party Claim. An order for separate determination of the Third Third Party Claim is less likely to be made as it is a claim back against the Plaintiff in the primary proceedings. In conjunction with that, the relative infancy of the Second Third Party Claim and the Third Third Party Claim means that those claims will cause a procedural delay to the primary proceedings overall in any event. In turn, and to the extent of the contemporaneity of any stay which may be ordered, that could minimise the adverse effect of the stay.
The Plaintiff and Trepang also submitted that procedural delays in the Third Party claims will not likely be significant because of the factual overlaps. I cannot accept that particularly given the relative infancy of the Second Third Party Notice Claim and the Third Third Party Notice Claim. I am of the view that both are likely to delay the matter overall.
The Plaintiff and Trepang also pointed out that the stay would result in delay to the discovery process in the First Third Party Claim. That there will be a delay to that discovery process is clearly apparent. Although I expect there will be some overlap in discovery between the primary proceedings between the Plaintiff and the Defendant and the First Third Party Claim, it is not possible to predict the extent of that overlap at this stage. I have little to guide me with respect to that at present. Adding to the uncertainty is the possibility of Trepang’s counterclaim back against the Defendant. I know little about the nature of that counterclaim and cannot predict how long that may further delay the discovery process or the progress of the case overall but I think it is likely to be significant. It is therefore a relevant factor.
In Wickham Point No 3, I was satisfied on the available evidence that the possibility of an order for separate determination of the Third Party Notice was minimal given the expected duration of the stay. I felt able to sufficiently predict the likely date of decision by her Honour. I granted the stay because I was confident with that estimate coupled to the stage of the primary proceedings at that time. In respect of the latter I had regard to firstly, that discovery between the Plaintiff and the Defendant was still incomplete and was likely to take beyond the date of her Honour's decision. Secondly, the impact on the primary proceedings overall of the Second Third Party Claim. I was then of the view that the impact of the stay in terms of delaying the current proceedings would be minimal, and when balancing this against the possible benefits of avoiding unnecessary procedural steps, I concluded that the efficient case management favoured the grant of a stay.
A different situation now presents. Although it seems likely that the factors discussed above mean that a stay of a few months, possibly longer, might not unduly delay the proceedings overall, the difference now is that I am unable to confidently predict when the Court of Appeal decision will be delivered.
Overall I think the position now is very finely balanced. If a stay is granted and the Defendant is unsuccessful on the appeal then all the time that the stay was operational will have mostly been wasted. On the other hand if the Defendant succeeds on the appeal then the Defendant will likely need to amend its’ pleading. That will consequently result in amendments of subsequent pleadings and possibly the review of the discovery. Therefore if the stay is refused and the appeal is decided in favour of the Defendant then much of the costs and resources applied to the primary proceedings in the interim will have been wasted.
Taking all relevant matters into account, recognising the principles from the authorities referred to and particularly the need to exercise the power of granting a stay with caution, recognising that the Defendant may be unsuccessful on the appeal, coupled with the uncertain time that will be required for a decision on the appeal to be delivered, I think that swings the balance against a stay.
The Defendant’s application is therefore refused. As the matter is finely balanced and as my decision depends largely on the time that will be required for the Court of Appeal to deliver its decision, I am prepared to give the Defendant liberty to apply on short notice if that decision is delivered within a set period of time and if it is in favour of the Defendant. As I said above, I do not expect that a stay of up to four months will unduly delay the proceedings overall and therefore I set that period of time at two months from today.
I will hear the parties as to ancillary orders and costs. Subject to any submissions that the parties may make, my preliminary view is that the default order under Rule 63.18 should apply namely, the costs should be costs of the proceedings. In addition I am prepared to certify the hearing as fit for counsel pursuant to Rule 63.72(9)(a).

[1] [2018] NTSC 63.

[2] As required by Rule 11.02 of the Supreme Court Rules.

[3] Commonwealth of Australia v Trepang Services Pty Ltd [2018] NTSC 90.

[4]Hunter v Chief Constable of West Midland Police [1982] AC 529; Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; Rozenblit v Vainer & Anor [2018] HCA 23; Gao v Zhang (2005) 14 VR 380; Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16; Voth v Manildra Flour Mills Pty Ltd & Anor (190) 171 CLR 538; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345.

[5]Thoday v Thoday (1964) All ER 341; Chamberlain v. The Deputy Commissioner of Taxation (1988) 164 CLR 502; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Jackson v Goldsmith (1950) 81 CLR 446; Egri v DRG Australia Pty Ltd (1988) 19 NSWLR 600; Commissioner For Railways (New South Wales) v Cavanough (1935) 53 CLR 220.

[6] Rule 11.12(b).

[7]Wickham Point Development Pty Ltd v Commonwealth of Australia (No 3) [2018] NTSC 63 at paragraph 46.