I. Introduction
On March 26, 2024, the Federal Court of Australia (the Court) issued a judgement for the case of Bolin Technology Co Ltd v BirdDog Technology Ltd [2024] FCA 286 (this case), in which it addressed critical issues related to the exercise of jurisdiction in parallel proceedings. This paper will analyze the parties’ arguments and the Courts’ consideration in making the decision, contributing to the literature by reflecting the implications of the Court’s decision and the HCCH Jurisdiction Project. Ultimately, this paper is an attempt to explore the solutions to the problem of exercising jurisdiction in parallel proceedings.
A. Overview of the Australian Court System
Australia is “a federal jurisdiction with six states, two Commonwealth Territories (Northern Territory and Australian Capitol Territory) and three external territories (Norfolk Island, Christmas Island, and Cocos (Keeling) Islands.”[1] The Federal Court of Australia and the Family Court of Australia are the superior courts of the Commonwealth.[2] The Federal Court of Australia hears cases in its original jurisdiction, as prescribed by legislation, and also hears appeals from single judges of that court.[3]
In this case, the First Respondent, BirdDog Technology Limited (BirdDog Technology), is incorporated in Australia, listed on the Australian Securities Exchange, and has its principal place of business in Victoria.[4] The Second Respondent, BirdDog Australia Pty Ltd (BirdDog Australia), is a wholly owned subsidiary of BirdDog Technology, which also has its principal place of business in Victoria.[5] Therefore, the Court has its original jurisdiction in this case.
B. US Proceeding
Before the proceeding was brought in the Court, on November 7, 2023, the Respondents (Birddog) in this case initiated a proceeding for breach of contract by Applicant Bolin Technology Co., Ltd (Bolin) in the US District Court for the Central District of California.[6]
C. Australian Proceeding
On January 24, 2024, Bolin initiated a proceeding against BirdDog. Before the Federal Court of Australia are competing interlocutory applications by Bolin and BirdDog, each filed on February 22, 2024, concerning the appropriate venue for those proceedings.[7]
Bolin seeks orders restraining BirdDog from continuing the US Proceeding (anti-suit injunction) and the continuation of an order to restrain BirdDog from making a threatened application to a US Court to restrain this proceeding (anti-anti-suit injunction).[8] BirdDog seeks a permanent stay or, alternatively, a temporary stay of the proceeding in this Court pending the determination of the US Proceeding.[9]
II. BirdDog’s Application: Stay of Federal Court Proceeding
A. Summary of the legal arguments presented
BirdDog submits that the Court is a “clearly inappropriate forum” for the resolution of the parties’ dispute. Therefore, the proceeding in the Court ought to be permanently stayed, and the originating application filed on January 24, 2024 set aside.[10]
Specifically, BirdDog argues that:
(1) there is a significant connection between California and the subject matter of the dispute;
(2) by reason of the nexus between California and the subject matter of the Contracts, the US Proceeding (and in this proceeding in the event it is not stayed) that the Contracts are governed by Californian law;
(3) there is no juridical advantage to Bolin litigating its claim in Australia;
(4) the US Proceeding is based on the same sub-stratum of fact, and in respect of which there is a significant potential of conflicting findings;
(5) the US Proceeding was commenced before this proceeding, and the parties have already committed significant resources to pursue it in the US Court.[11]
BirdDog also applies for this proceeding to be temporarily stayed pending the determination of the US Proceeding.[12]
Bolin submits that BirdDog cannot satisfy its heavy onus that Australia is a “clearly inappropriate forum.” Australia is clearly the appropriate forum for this proceeding and, as a consequence, BirdDog’s interlocutory application for a permanent stay should be refused.[13]
B. Analysis of the Court in deciding whether to grant a stay
The Court finds that BirdDog bears the onus of establishing that Australia is a “clearly inappropriate forum.”[14] In determining whether Australia is a “clearly inappropriate forum,” the focus is “upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum.”[15] In determining whether Australia is a “clearly inappropriate forum,” the Court may take into account relevant “connecting factors” and “legitimate personal or juridical advantage[s].”[16] Where different issues are involved in local and foreign proceedings but the different proceedings arise out of the same sub-stratum of fact, the question is whether, in the context of the whole controversy, the proceedings are “vexatious or oppressive.”[17] The Court then analyzed the following aspects:
(1) the written contracts in evidence establish a prima facie connection between Australia and the subject matter of the dispute in this proceeding;
(2) the subject matter of the dispute in this proceeding has a significant connection with Australia which does not exist with the United States;
(3) the events which took place after the dispute between the parties arose reveal a connection between Bolin in Shenzhen and BirdDog in Melbourne;
(4) there is a prima facie case that the substantive law of Australia is the lex causae in this proceeding;
(5) the entities comprising BirdDog – namely, BirdDog Technology and BirdDog Australia – are Australian companies with a close connection to this Court’s jurisdiction;
(6) there is a real risk that the US Court does not have jurisdiction to hear Bolin’s ACL claim, or the US Court will decline to hear that claim as a matter of discretion.
Therefore, the Court reaches the conclusion that BirdDog has not established on the evidence that this Court is a “clearly inappropriate forum” for the hearing and determination of this proceeding, nor has it established that this proceeding is “vexatious or oppressive.”[18] Further, the Court refused to grant a temporary stay of this proceeding pending the determination of the US Proceeding for the same reasons that it has refused BirdDog’s application for a permanent stay.[19]
C. The implications of the Court’s decision
The Court’s decision shows that when the respondent has filed proceedings in another country’s court and seeks either a permanent or temporary stay of the proceeding on the basis that this court is a clearly inappropriate forum, the application is dismissed after considering the presence of connecting factors and legitimate personal or juridical advantages to commencing the proceeding in Australia.
In fact, in Australia, “there is a statutory power for all courts to stay, by order, any proceedings before the court, either permanently or until a specified day: CPA s 67.”[20] The Supreme Court has inherent power to stay proceedings which are an abuse of process based on Jago v District Court of NSW (1989) 168 CLR 23. As is shown in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, the decision regarding whether to exercise the power in s 67 is not discretionary in the sense relevant to the applicable standard of appellate review. Therefore, although the Court in this case recognizes its power to grant a permanent or temporary stay, it adopts a narrow approach and avoid granting the stay in the end.
Similarly, in the UK, “the court is empowered under the Civil Procedure Rules (CPR) to stay proceedings in part or in whole, either indefinitely or until a specified date or event.”[21] The court has the authority to pause legal proceedings under particular conditions outlined in various statutes. When proceedings are stayed, they are halted at their current stage, except for any actions permitted by the CPR or the terms of the stay. Additionally, the court can enforce a suspension on the outcomes of an action, like delaying the enforcement of lower court orders during an appeal process. If the stay is lifted, proceedings can resume.[22]
To conclude, the Court’s ruling underscores the thorough evaluation of stay requests, especially in cases concerning forum appropriateness. Although laws in Australia and the UK allow courts to pause proceedings, such determinations are approached with careful consideration. Elements like connections to the jurisdiction and the advantages of initiating proceedings in specific locales are meticulously assessed. While courts recognize their ability to grant stays, they often exercise caution, as evidenced in this case. This highlights the importance of comprehending the intricate legal criteria governing stay decisions in both jurisdictions.
III. Bolin’s Application (1): Anti-Anti-Suit Injunction
A. Summary of the legal arguments presented
On February 22, 2024, Stewart J made an anti-anti-suit injunction ex parte to restrain BirdDog from making a threatened application to a US Court to restrain this proceeding.[23]
Bolin submits that that order should be continued pending the determination of Bolin’s claims.[24] BirdDog resists the continuation of the anti-anti-suit injunction for the same reasons relied upon by it in support of its application for a permanent stay or alternatively a temporary stay pending the determination of the US Proceeding.[25]
B. Analysis of the Court in deciding whether to grant an anti-anti-suit injunction
The Court finds that an anti-anti-suit injunction may be granted where foreign proceedings “interfere with or have a tendency to interfere with proceedings pending in that
Court.”[26] The Court further concludes that the anti-anti-suit injunction ordered by Stewart J should be continued pending the determination of Bolin’s claims in this proceeding as it finds that there is a real possibility that Bolin may not be able to bring its claims under s 18 of the ACL in the US Proceeding because the US Court does not have jurisdiction to hear the ACL claim or the US Court may decline to hear the ACL claim as a matter of discretion.[27]
C. The implications of the Court’s decision
The Court’s decision shows that when the applicant seeks an anti-anti-suit injunction to restrain the anti-suit application in another country, the application is granted due to the real possibility that the applicant may not be able to bring its claims under the Australian Consumer Law in another country.
Some scholars have criticized the anti-anti-suit injunction.[28] For example, in patent litigation, they argue that the inability to acquire ASIs would permit forum shopping and deny defendants a legal mechanism to counteract the rent-seeking actions of patent holders.[29] Moreover, they point out that ASIs help evade excessive defense costs while averting conflicting judgments.[30] However, considering that the cause of action in this case is breach of contract, the criticisms are not applicable here. Nonetheless, the decision emphasizes the intricate challenges of reconciling the interests of parties in diverse jurisdictions within a complex global legal framework.
IV. Bolin’s Application (2): Broader Anti-Suit Injunction
A. Summary of the legal arguments presented
Bolin submits that the Court should not only continue the anti-anti-suit injunction restraining BirdDog from taking any further step in the United States to restrain this proceeding, but should also grant a broader anti-suit injunction restraining BirdDog from continuing the US Proceeding, pending the determination of Bolin’s claims in this proceeding.[31] Bolin sets out two reasons:
(1) the US Proceeding will interfere with this proceeding and Bolin’s right to make claims against BirdDog under s 18 of the ACL;[32]
(2) an anti-suit injunction is justified by this Court’s equitable jurisdiction to restrain unconscionable conduct because the US Proceeding is “according to the principles of equity, vexatious or oppressive.”[33]
B. Analysis of the Court in deciding whether to grant a broader anti-suit injunction
The Court finds that the power of this Court to grant an anti-suit injunction may be exercised when necessary for the protection of the Court’s own proceedings or processes.[34] It also has power, deriving from its equitable jurisdiction, to restrain unconscionable conduct or the unconscientious exercise of legal rights.[35] One category of case in which an injunction may be granted in the exercise of the Court’s equitable jurisdiction is that involving a proceeding in a foreign court, which is, according to the principles of equity, vexatious or oppressive.[36]
Finally, the Court rejects Bolin’s arguments that the Court should grant an anti-suit injunction because the US Proceeding will interfere with the proceeding in this Court or the US Proceeding is vexatious or oppressive.[37]
C. The implications of the Court’s decision
The Court’s decision shows that when the applicant seeks a broader anti-suit injunction to restrain the respondents from continuing the proceeding in another country, the application is dismissed as the injunction is deemed unnecessary for the protection of the Federal Court proceeding, and the proceeding in another country is not found to be vexatious or oppressive.
Globally, the position of retaining a global royalty FRAND rate, as notably observed in the English case law,[38] has sparked assertions for anti-suit injunctions.[39] However, in Turner v. Grovit Case C-159/02 [2004] 2 Lloyd’s Rep. 169, the Court of Justice of the European Union (CJEU) holds that broader anti-suit injunctions violate the Brussels Convention of September 27, 1968 (subsequently replaced by Regulation 44/2001 of December 22, 2000), due to the encroachment they represent on the jurisdiction of a foreign court. Furthermore, the right to a fair trial as guaranteed by Article 6 of the ECHR appears to be compromised, as the anti-suit injunction results in a denial of access to the judiciary.
Considering the disadvantages of broader anti-suit injunction, the Court’s decision reflects the careful scrutiny that is widely applied in other jurisdictions.
V. HCCH Jurisdiction Project
In 1992, the Hague Conference on Private International Law (HCCH) commenced work on two key aspects of private international law in cross-border litigation in civil and commercial matters: the international jurisdiction of courts; and the recognition and enforcement of foreign judgments (the Judgments Project).[40] In 2005, it concluded the Convention of 30 June 2005 on Choice of Court Agreements (2005 Choice of Court Convention).[41] In 2019, it concluded the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Judgments Convention).[42] After the successful conclusion of the 2019 Judgments Convention, one important aspect of the HCCH Jurisdiction Project is on which grounds can a State exercise jurisdiction in civil and commercial matters.[43]
In HCCH’s Report on the Jurisdiction Project, the Expert’s Group “reached consensus in including recognition and enforcement of a judgment as a relevant, but not always a determinative, factor to consider when developing rules on parallel proceedings.”[44] Generally speaking, a court of a Contracting State is more likely to exercise jurisdiction if it is apparent that the judgment which will be rendered by a court of another Contracting State will not be recognized and enforced in the Contracting State.
Although this factor is not directly considered by the Court in this case, the Court’s consideration about whether Bolin will be able to bring its claims in the US court reflects a similar concern about the accessibility of legal remedies in different jurisdictions.
VI. Conclusion
The Court’s ruling in Bolin Technology Co Ltd v BirdDog Technology Ltd [2024] FCA 286 highlights the challenges of navigating exercising jurisdiction in parallel proceedings. The decision, which denied a stay of the Federal Court proceeding, continued an anti-anti-suit injunction, and denied a broader anti-suit injunction, reflects the Court’s commitment to balancing forum appropriateness and access to justice. While broader global legal developments, such as the case law concerning stays of proceedings in Australia, as well as the positions taken by the CJEU and UK courts on anti-suit injunctions, offer context, the Court’s decision underscores the complexities of determining jurisdiction in parallel proceedings.
Furthermore, the significance of this judgment is heightened by its relevance to ongoing discussions within the HCCH Jurisdiction Project, which seeks to address the exercise of jurisdiction in parallel proceedings in a global scale. Ultimately, this judgment makes a substantial contribution to these conversations and sets a precedent for future cases in this field.
Bibliography
1. Jago v District Court of NSW (1989) 168 CLR 23.
2. GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32.
3. Turner v. Grovit Case C-159/02 [2004] 2 Lloyd’s Rep. 169.
4. High Court ([2017] EWHC 2988 – Patent) upheld by the Court of Appeals ([2018] EWCA Civ 2344; [2018] RPC 20) and the Supreme Court ([2020] UKSC 3).
Bolin Technology Co Ltd v BirdDog Technology Ltd [2024] FCA 286
[1] Jerome Hall Law Library, The Law of Australia: Case Law, https://law.indiana.libguides.com/c.php?g=253037&p=1727270 (last visited Apr. 22, 2024).
[2] Id.
[3] Federal Court of Australia Act 1976 (Cth) ss 19(1), 24(1)(a); Judiciary Act 1903 (Cth) s 39B(1A)(c), https://www.legislation.gov.au/C2004A01586/asmade/1976-12-09/text/original/epub/OEBPS/document_1/document_1.html; http://www5.austlii.edu.au/au/legis/cth/consol_act/ja1903112/s39b.html; https://www.fedcourt.gov.au/?a=19422 (last visited Jun. 22, 2026).
[4] Judgment, para. 7.
[5] Judgment, para. 8.
[6] Bolin Technology was later added as a defendant on January 12, 2024. Judgment, para. 1.
[7] Judgment, para. 2.
[8] Judgment, para. 3.
[9] Id.
[10] Judgment, para. 41.
[11] Judgment, para. 40.
[12] Judgment, para. 85.
[13] Judgment, para. 42.
[14] Judgment, para. 45.
[15] Judgment, para. 46.
[16] Id.
[17] Judgment, para. 47.
[18] Judgment, para. 49.
[19] Judgment, para. 86.
[20] Judicial Commission of New South Wales, Civil Trials Bench Book — Stay of pending proceedings, https://www.judcom.nsw.gov.au/publications/benchbks/civil/stay_of_pending_proceedings.html#:~:text=There%20is%20a%20statutory%20power%20for%20all%20courts,District%20Court%20of%20NSW%20%281989%29%20168%20CLR%2023 (last visited Jun. 22, 2026).
[21] N. Peters & M. Kluyver, Parallel Civil Litigation: The UK Perspective, Gloabl Investigations Review (Jan. 4, 2023), https://globalinvestigationsreview.com/guide/the-practitioners-guide-global-investigations/2023/article/parallel-civil-litigation-the-uk-perspective.
[22] Id.
[23] Judgment, para. 95.
[24] Id.
[25] Judgment, para. 96.
[26] Judgment, para. 99.
[27] Judgment, para. 100.
[28] M. Dhenne, Anti-suit or anti anti-suit injunctions? That is the question, Kluwer Patent Blog (Dec. 15, 2020), https://patentblog.kluweriplaw.com/2020/12/15/anti-suit-or-anti-anti-suit-injunctions-that-is-the-question/.
[29] E. Bonadio & L. McDonagh, Paris Court Grants an SEP Anti-Anti-Suit Injunction in IPCom v Lenovo: A Worrying Decision in Uncertain Times?, 15 J. Intell. Prop. L. & Practice 149 (2020).
[30] J. Contreras & M. Eixenberger, The Anti-Suit Injunction – A Transitional Remedy for Multi-Jurisdictional SEP Litigation, in J. Contreras (ed.), The Cambridge Handbook of Technical Standardization Law – Antitrust, Competition and Patent Law, Chapter 27 (Cambridge University Press, 2017).
[31] Judgment, para. 102.
[32] Judgment, para. 103.
[33] Judgment, para. 104.
[34] Judgment, para. 106.
[35] Id.
[36] Id.
[37] Judgment, paras. 111&112.
[38] High Court ([2017] EWHC 2988 – Patent) upheld by the Court of Appeals ([2018] EWCA Civ 2344; [2018] RPC 20) and the Supreme Court ([2020] UKSC 3).
[39] Supra note 28.
[40] HCCH, Jurisdiction Project, https://www.hcch.net/en/projects/legislative-projects/jurisdiction (last visited Jun. 22, 2026).
[41] Id.
[42] Id.
[43] Id.
[44] HCCH, Report on the Jurisdiction Project, Prel. Doc. No 3 of February 2021, https://assets.hcch.net/docs/5fbec58b-d14f-49c6-8719-b1fb68fd6d5b.pdf (last visited May 4, 2024).