Wikeley v Kea Investments Ltd [No 2]
[2024] QCA 111
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Wikeley v Kea Investments Ltd [No 2][2024] QCA 111
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Wikeley v Kea Investments Ltd [No 2][2024] QCA 111
Wikeley v Kea Investments Ltd [No 2][2024] QCA 111
SUPREME COURT OF QUEENSLAND
CITATION: | Wikeley v Kea Investments Ltd [No 2] [2024] QCA 111 |
PARTIES: | KENNTH DAVID WIKELEY (appellant/applicant) v KEA INVESTMENTS LTD (respondent) |
FILE NO/S: | Appeal No 13868 of 2023 SC No 4338 of 2023 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application to Stay Proceedings |
ORIGINATING COURT: | Supreme Court at Brisbane – [2023] QSC 79 (Cooper J) |
DELIVERED EX TEMPORE ON: | 13 June 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 June 2024 |
JUDGES: | Mullins P |
ORDERS: |
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CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where the primary judge had made ex parte interim injunctions against the appellant (the injunctions) in support of the New Zealand proceeding brought against the appellant by the respondent in which similar injunctions had been made – where the respondent brought an application for contempt against the appellant for breach of the injunctions – where the primary judge refused to set aside the injunctions and stay the contempt proceeding – where the appellant appealed against that refusal – where the appellant had obtained an adjournment of the appeal for four months when his lawyers withdrew – where the appellant had appealed the final primary judgment in the New Zealand proceeding and the decision of the New Zealand Court of Appeal was reserved – where the appellant applied for a stay of the hearing of the appeal until after the judgment was given by the New Zealand Court of Appeal – where the appellant was mistaken that the proceedings in Queensland would collapse if his appeal in New Zealand succeeded – where the contempt proceeding in the Trial Division was not being pursued while the appeal in Queensland was outstanding – where the appellant was self-represented but had the benefit of the outlines for the appeal prepared by his original lawyers – whether it was in the interests of justice to further delay the hearing of the appeal Uniform Civil Procedures Rules 1999 (Qld), r 5 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50, cited |
COUNSEL: | The appellant/applicant appears on his own behalf P K O'Higgins KC, with S A Noble, for the respondent |
SOLICITORS: | The appellant/applicant appears on his own behalf Colin Biggers and Paisley for the respondent |
- [1]MULLINS P: The appellant applies for a stay of the hearing of the appeal in this matter until after the judgment is given by the New Zealand Court of Appeal in respect of the appellant’s appeal against the judgment of Gault J given on 17 November 2023: Kea Investments Ltd v Wikeley Family Trustee Limited (in interim liquidation) [2023] NZHC 3260 (NZ final primary judgment). The hearing of the appeal against the NZ final primary judgment was heard on 20 May 2024 and the decision was reserved.
- [2]The appeal in this Court was originally listed for hearing on 19 and 20 March 2024. I heard a security for costs application on 12 December 2023 and made orders granting security: Wikeley v Kea Investments Ltd [2023] QCA 255 (security for costs reasons).
- [3]In the security for costs reasons, I summarised the proceedings before the Trial Division of this Court and gave brief details of the proceedings in Kentucky and New Zealand. I will not repeat the summary but refer to the history of that litigation between the parties, as it is relevant to dealing with the appellant’s application for a stay of the appeal to this Court.
- [4]The lawyers who were originally representing the appellant in the appeal to this Court had filed the outline of submissions on behalf of the appellant on 5 December 2023. The respondent’s outline was filed on 19 January 2024 and the appellant’s submissions in reply prepared by his lawyers were filed on 16 February 2024. Subsequent to that, the appellant’s lawyers ceased acting for him. He applied for an adjournment of the appeal that was listed in March 2024. Morrison JA adjourned the appeal to a date to be fixed by the Registry and noted that, subject to any order of the Court, the date that is set for the hearing of the appeal will not be the subject of “further deferment”. That warning by Morrison JA does not preclude the appellant’s current application for a stay (or an adjournment) of the hearing of the appeal but reflects the overriding philosophy of rule 5 the Uniform Civil Procedures Rules 1999 (Qld) to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. A notice that the appellant was acting in person was filed on 27 March 2024. The appeal was relisted for a one day hearing on 22 July 2024.
- [5]The respondent opposes the appellant’s application for a stay of the appeal or any adjournment of the hearing of the appeal that is listed for 22 July 2024.
- [6]The NZ final primary judgment was delivered after a “formal proof hearing”, as the appellant did not appear to oppose the final relief sought by the respondent in the New Zealand proceeding.
- [7]For the purpose of the stay application the appellant sought to rely on the transcript of the hearing before the New Zealand Court of Appeal on 20 May 2024 (which I made exhibit 1 on the stay application) and five affidavits (which I made exhibits 2 to 6 on the stay application) in respect of which he sought leave to adduce into evidence before the New Zealand Court of Appeal that endeavoured to explain why he had acted on legal advice not to contest the merits of the respondent’s claims against him in the New Zealand proceeding but to rely on the question of jurisdiction and also went to the merits of his defence of the respondent’s claims. Those exhibits were received on this stay application for the purpose of showing the extent of the issues before the New Zealand Court of Appeal and not as the truth of the facts asserted before the New Zealand Court of Appeal by the appellant or in the affidavits which he seeks leave to adduce before the New Zealand Court of Appeal.
- [8]The appellant has not sworn any affidavit in support of his application for the stay. He has included evidentiary matters in his written submissions received by the Court on 10 June 2024 in support of the stay and also in his oral submissions.
- [9]There is no concrete plan on the appellant’s part that he will have legal representation for the appeal in this Court, whether it is heard on 22 July 2024 or at a later date. His submissions are put before the Court as a self-represented litigant. He expresses a hope that if he succeeds in the New Zealand Court of Appeal “things might have improved” to enable him to re-engage the junior counsel who assisted in the preparation of the outlines for this appeal but at this stage that appears to be speculation.
- [10]The assumption that underpins the appellant’s application for the stay is that the case against him in Queensland collapses, if he wins the appeal in New Zealand. That is a misunderstanding of the nature of the proceedings in Queensland and New Zealand.
- [11]If the appellant succeeds in his appeal against the NZ final primary judgment, the judgment of Gault J given on 17 November 2023 (and the subsequent costs judgment given on 5 December 2023) will be set aside but the New Zealand proceeding will remain on foot and there will be the opportunity for those proceedings to proceed to a contested hearing. It is not inevitable that the New Zealand proceeding will fail, if the appellant has some success in the New Zealand Court of Appeal. Mr Deighton who is the respondent’s solicitor in the proceedings in this Court deposes that if the New Zealand Court of Appeal allows the appellant’s appeal to that Court, it is likely that the respondent will also seek interim orders restraining the appellant similar to those it obtained from the Trial Division of this Court in April 2023 pursuant to the Trans-Tasman Proceedings Act 2010 (Cth) (in support of the New Zealand proceeding). That was, in fact, foreshadowed in the argument before the New Zealand Court of Appeal by the respondent’s counsel.
- [12]Apart from that misconception on the appellant’s behalf as to the effect of a successful appeal in New Zealand, there is the extant contempt application in the Trial Division which is not being pursued while the appeal to this Court remains outstanding. The appeal in this Court is, in substance, about the correctness of the orders made by Cooper J in April 2023 in support of the New Zealand proceeding and the interim orders that had been made in New Zealand. Even if the appellant is ultimately successful in either New Zealand or Australia in showing that the injunctive relief granted on an interim basis in New Zealand was in excess of jurisdiction, the fact remains that there were orders in both New Zealand and Australia to which the appellant was subject that the respondent asserts were breached by him and the contempt proceeding in the Trial Division of this Court would continue. See Ross v Lane Cove Council (2014) 86 NSWLR 34 at [17].
- [13]The appellant has the benefit of considered and extensive outlines prepared by lawyers on his behalf for the purpose of the appeal that assert that the Supreme Court of Queensland was a plainly inappropriate forum and that it exceeded its jurisdiction in making an anti-enforcement injunction against the appellant.
- [14]It is a matter of public interest that contempt proceedings be resolved in a timely way. The appellant has already been given one adjournment of the hearing of the appeal in this Court. Particularly as any further delay in the hearing of the appeal on 22 July 2024 is not assured of making any difference to the appellant obtaining legal representation and the appellant has the benefit of the outlines prepared by the lawyers who had acted for him originally in the connection with the appeal, the interests of justice do not favour further delaying the hearing of the appeal on 22 July 2024.
- [15]The application to stay the hearing of the appeal on 22 July 2024 is refused. I’m proposing to reserve the costs. They can just be dealt with on the hearing of the appeal. Did you wish to say anything about that?
…
- [16]Even though the respondent has sought a costs order in respect of the stay application, I consider that it is convenient to make an order that costs are reserved and they will be disposed of by the outcome of the appeal, or can be the subject of specific submissions made in connection with the appeal.