AustLII Home | Databases | WorldLII | Search | Feedback

High Court of Australia Transcripts

You are here:  AustLII >> Databases >> High Court of Australia Transcripts >> 1996 >> [1996] HCATrans 258

Database Search | Name Search | Recent Documents | Noteup | LawCite | Help

CSR America, Inc v Cigna Insurance Australia Ltd & Ors M58/1996 [1996] HCATrans 258 (21 June 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S46 and S47 of 1996

B e t w e e n -

CSR LIMITED

Applicant

and

CIGNA INSURANCE AUSTRALIA LIMITED and those entities set out in Schedule A hereto

First Respondents

THE GENERAL INSURANCE COMPANY OF TRIESTE AND VENICE and those entities set out in Schedule B hereto

Second Respondents

CSR AMERICA, INC

Third Respondent

Office of the Registry

Sydney Nos S57 and S58 of 1996

CSR AMERICA, INC

Applicant

and

CIGNA INSURANCE AUSTRALIA LIMITED and those entities set out in Schedule A hereto

First Respondents

THE GENERAL INSURANCE COMPANY OF TRIESTE AND VENICE and those entities set out in Schedule B hereto

Second Respondents

CSR LIMITED

Third Respondent

Applications for special leave to appeal

DAWSON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 21 JUNE 1996, AT 10.19 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR J.C. KELLY, SC, for the applicant, CSR Limited. (instructed by Freehill Hollingdale & Page)

MR D.M.J. BENNETT, QC: If the Court pleases, I appear for the applicant, CSR America, Inc. (instructed by Allen Allen & Hemsley)

MR R.R. STITT, QC: May it please your Honours, in each of those matters I appear with my learned friend, MR J.T. GLEESON, for the first respondents. (instructed by Phillips Fox)

DAWSON J: Yes, Mr Jackson.

MR JACKSON: Your Honours, the essential contention which we seek to make concerns the approach to be taken by courts of this country to applications for injunctions to restrain a party from instituting or prosecuting proceedings in the courts of another country. The principle for which we contend is that it should only be in rare, perhaps exceptional cases, a concept which I will attempt to define in just a moment - - -

DAWSON J: Mr Jackson, before you develop your argument can I raise one problem with you? These applications are applications for special leave to appeal against the refusal of the New South Wales Court of Appeal to grant leave to appeal against the orders made by Justice Rolfe?

MR JACKSON: Indeed, your Honour.

DAWSON J: If the applications were granted, would not the only proper course be to set aside the orders made by the Court of Appeal refusing leave and to grant leave to appeal to that court, so that the matters would go back for the appeal to be heard by that court?

MR JACKSON: Not necessarily, your Honour.

KIRBY J: That is not what happened in the Canadian case, I think. I think the Supreme Court substituted the correct exercise of discretion.

DAWSON J: Can we do that in this case?

MR JACKSON: There is no reason why not, your Honour. What can be done is an order, assuming special leave were granted, that the appeal to this Court be allowed, the order of the Court of Appeal refusing leave to appeal be set aside, leave to appeal accordingly treated as having been granted, and - - -

DAWSON J: That is the step, but why should we take that step?

MR JACKSON: Because the issue is one of importance - I will come to that later - but it is a matter with which the Court of Appeal itself should have dealt and the issue, the nature of the issue is such that it is appropriate for this Court to deal with it.

DAWSON J: Why? We do not have the benefit of the Court of Appeal judgments.

MR JACKSON: I appreciate that, and that is why we would alternatively put the matter on what I think is the third basis set out in our summaries of argument, that it is a case where the Court should deal with it because the way in which the matter was dealt with by the Court of Appeal was sufficiently unsatisfactory to merit this Court's intervention.

DAWSON J: Maybe that was the way in which it dealt with the application for leave, but that is what it dealt with. It did not hear the matter on the basis that the hearing of the application was the hearing of any appeal and, of course, in criminal cases that is almost inevitably the situation so that you can deal with the matter as you suggest we should do it here. But why should this Court proceed without the benefit of the judgments of the Court of Appeal, eliminating a step which was a necessary step in the procedure - you can answer that question and this one. Had you sought leave to appeal, and there was no reason why you should not, from the orders made by Justice Rolfe, then the situation may have been different.

MR JACKSON: If we had done that the situation may have been less warm, our reception, if I may say so with respect.

DAWSON J: I am not sure about that.

MR JACKSON: That was a possible course to adopt. However, it was equally, we would submit, open to us to apply to the Court of Appeal for leave to appeal to that court.

KIRBY J: That would be the ordinary course and, indeed, there are principles I think in this Court, are there not, that say you should ordinarily take that course.

MR JACKSON: Indeed, your Honour.

KIRBY J: So that we have the benefit, but the problem is that the Court of Appeal of New South Wales has a practice in some sittings that they do not really give effective reasons when refusing leave, and that makes it difficult then for us to get a full reasoned judgment. That cannot put you out of court.

MR JACKSON: The fundamental problem, in a sense, with what was done by the Court of Appeal was that the Court of Appeal treated the matter as one which it should not entertain because it was interlocutory. Our contention is that, in relation to that, really two things. The first is the whole basis of the argument for which we contend is that orders of this kind should not be made, whether they be interlocutory or final, and that that is the issue with which the court should have dealt. The second thing about it, your Honours - - -

DAWSON J: And therefore, if it should have dealt with it, the proper order is to send it back and have it deal with it. However, do not dwell too much because you have got limited time, Mr Jackson. I just raised the problem.

MR JACKSON: Your Honours, could I perhaps revert to what I was saying before and say what we say the principle should be, and that is this, that it should only be in rare or perhaps exceptional cases - and I will seek to define what that is - that a court would grant an injunction, whether interlocutory or final, of this kind in circumstances where the applicant for the injunction had not first applied for, and failed to obtain, a stay of the proceedings in the other jurisdiction. Could I say three things about the principle before I move to the arguments which are mounted against us.

The first is that a notion of this general nature is referred to by the Supreme Court of Canada in Amchem Products Inc v British Columbia (Workers' Compensation Board) (1993) 1 SCR 897. Could I take your Honours very briefly to three passages in that. The first is at page 904 at the bottom of the page in the left column. Your Honours will see - - -

DAWSON J: Do you have a copy? We do not seem to have copies, Mr Jackson.

KIRBY J: I read it last night. It is a single judgment by Justice Sopinka on behalf of the court.

MR JACKSON: Your Honours, here they are.

KIRBY J: Is there a House of Lords decision on this point?

MR JACKSON: There is, your Honour, but not on the precise point with which I am dealing.

KIRBY J: He points out in his reasons that the High Court of Australia has not addressed the issue.

MR JACKSON: That is so, your Honour. Your Honours, I will not take your Honours to the summary of the cases in other jurisdictions that is contained, but may I just refer to three passages. The first is page 904 in the left column and if your Honours look through the two paragraphs there are two features to which I would refer. The first is the relevant importance that is referred to in the last paragraph, the second is the fact that the injunction in that case, as your Honours will see at the opening of the reasons, was itself interlocutory.

The second thing, your Honours, is this: at page 912, in a passage commencing in the left column, the last paragraph, there is a reference to the two forms of remedy and then four or five lines from the bottom of the page, "The second is the anti-suit injunction", described as the "more aggressive remedy", and then your Honours will see at page 913 in the left column a discussion, particularly in the paragraph starting "Although", of the relevance to comity of injunctions of this kind. It is that paragraph and towards the bottom of the page.

Finally, your Honours, at pages 930 and 931 a discussion of the appropriate approach and what is said, if I could take the narrowest part of it, at the top of page 931, your Honours will see the first six or eight lines on that page.

DAWSON J: There is no doubt there is an important question but the question perhaps is why should we deal with it at this stage?

MR JACKSON: Because one does have a situation, your Honour, where not only has there been the anti-suit injunction but a similar approach has been - which prevents us from proceeding in the United States at the moment, and any further injunction would have the same effect. The second feature about it is - - -

DAWSON J: We do not know at this stage whether a further injunction has been made, do we?

MR JACKSON: No, your Honour, but if the approach taken is the same as the approach taken in this case, the probability, one would think, is that such an injunction would be likely to be granted.

DAWSON J: But would not the case turn upon the principles governing the grant of an interlocutory injunction rather than the principles which would govern, if any appeal - - -

MR JACKSON: Final judgment.

DAWSON J: Yes, were allowed.

MR JACKSON: Your Honour, it is undoubtedly true that at the hearing of a final injunction the principles apposite to a final injunction would be applied. But at the same - - -

DAWSON J: We have not got to that stage yet.

MR JACKSON: No, your Honour.

KIRBY J: But the nature of these proceedings is that normally they will be interlocutory and you will have hovering over you problems under the Rules which are said to present a difficulty for you, that you have got to make an election pretty quickly.

MR JACKSON: Indeed, your Honour. And in addition to that, it is not just a question of us being restrained from proceeding in the United States. Of course there is a second element and that is the refusal of our application to stay the proceedings in this country. So that the practical result is that the proceedings in this country, the proceedings in New South Wales, go ahead on the one hand, and the proceedings in the United States cannot go ahead, the result being that as a practical matter the practicality of our ultimately proceedings in the United States becomes less and less likely and begins to disappear.

DAWSON J: You are suggesting that there was a misapplication of the Voth test in relation to the stay application?

MR JACKSON: Yes, your Honour.

DAWSON J: A misapplication because of - may I put it this way - that you cannot consider the application of the Voth test without looking at the anti-suit injunction, is that the way in which you put it?

MR JACKSON: I would perhaps put it slightly differently from that, that the two are related. What we seek to say about them is that if one is talking about a situation where there is litigation in being in another jurisdiction - there was not, of course, in Voth - but if there was litigation in being in another jurisdiction, then in determining the question whether there should or should not be a stay of the proceedings in the Australian jurisdiction, a relevant factor and, indeed, a factor of as much significance to that application as to anti-suit injunction, is the question whether the party who seeks to proceed in the Australian proceedings has or has not endeavoured to obtain a stay of the proceedings in the other country through it.

DAWSON J: In other words, if there had not been proceedings in the United States and the proceedings had been commenced in this country, if they could have been and had been, it would be a different case.

MR JACKSON: Yes, your Honour.

DAWSON J: And it would be very hard to say that the Voth test was not satisfied.

MR JACKSON: That is so, your Honour.

DAWSON J: But what you say is you have to apply the test in the circumstances which did prevail, which were different.

MR JACKSON: Yes, and of course the institution of the proceedings here was a response to the institution of the proceedings in the United States.

GUMMOW J: A week later, or something like that.

MR JACKSON: Yes. And although there is not a complete overlapping of the claims, much of the claim in this country is a claim by the respondents for matters which are the obverse of the claims made by us in the United States.

KIRBY J: What is so inconvenient to you to having the plaintiff's action litigated in the United States and the insurance question litigated here where it has natural connections? Because the suggestion is that you are dragging the insurer to the United States in order to put pressure to settle the matter.

MR JACKSON: Your Honour, quite a few of them are there already. Quite a few of the insurers are United States companies or companies that have no particular relationship to Australia. There are a very large number of insurers.

KIRBY J: Yes, we saw that.

MR JACKSON: And the other thing about it, your Honour, is that one of the claims that we seek to make, successfully or unsuccessfully ultimately, is a claim in relation to the various insurers, including American insurers, under the Sherman Act.

DAWSON J: Yes, that presents problems. I mean the whole thing is not entirely satisfactory because, of course, you accept the Court here cannot determine the validity of those claims, but then it is a problem which arises the other way round too.

MR JACKSON: It can be, your Honour, but that is where one sees, even in relation to the stay, if I could just go on to that for a moment, that a very curious approach was adopted by the primary judge, with respect, in that he determined what in effect was the ambit of the controversy by looking only at the claim made in the Australian case.

DAWSON J: Yes, that is what I meant, that you can look at it the other way.

MR JACKSON: Your Honour, it may be that if one looked at the controversy in the ordinary sense of doing so, the kind of thing one usually sees, say, in determining what a matter is for the purpose of federal jurisdiction, that you look at the whole of the claim. So that seems to be exactly what was said in Voth.

DAWSON J: Mr Jackson, I think perhaps we have heard enough from you at this stage. Mr Stitt. That means we have not heard from you, but do not need to at this stage, Mr Bennett.

MR BENNETT: If the Court pleases.

MR STITT: If your Honours please, there are two matters which are determinative of these applications. The first is that the applicants have not demonstrated any sufficiently clear error of principle and, secondly, they have not demonstrated any sufficiently grave prejudice to show that the Court of Appeal should have granted leave in March and that this Court should now grant leave, hear an appeal and, at best, remit the matter to the Court of Appeal to reconsider its decision - - -

KIRBY J: Why would we not take the course similar to the Supreme Court of Canada and substitute our - - -

MR STITT: Because your Honours are not sufficiently seized of the facts. This is a matter which has been decided at this stage only on an interlocutory basis.

GUMMOW J: And after a lot of time spent in hearing it.

MR STITT: There is, your Honour, but it was being heard on an interlocutory basis.

GUMMOW J: I mean this is not an interlocutory injunction on the run, this is an interlocutory injunction that took days.

KIRBY J: Four days.

DAWSON J: And perhaps the facts which are important in relation to the principle which is applicable here are the facts which were available to the judge at first instance, and we know those.

MR STITT: Yes, your Honour, but you know those on an interlocutory basis.

DAWSON J: Perhaps that is enough for present purposes.

MR STITT: That is a somewhat doubtful proposition, with respect.

DAWSON J: Because what we are concerned with is the propriety of granting relief at that stage on those facts.

MR STITT: Yes, your Honour, but what he did was merely to grant an interlocutory injunction to maintain the status quo on the basis that there would be a final determination and that there would be a proper hearing on full evidence on a final basis.

KIRBY J: Did I understand that that final hearing would not come off until next year? Is that a proper understanding?

MR STITT: That is difficult to answer at the moment because of the state of the commercial list, but it was anticipated by Mr Justice Rolfe earlier that this matter would be heard this year. Now, whether his Honour's list has moved on since then I cannot answer, but it is anticipated - - -

KIRBY J: Do you.....interlocutory injunction that the present applicants do not have to enter an appearance in the Supreme Court of New South Wales?

MR STITT: I am sorry, I did not hear your Honour.

KIRBY J: Do you concede that they do not have to enter an appearance?

MR STITT: That is the position that we have adopted to this point, yes, your Honour.

KIRBY J: But if, in fact, Justice Rolfe would not come, or the Commercial Division of the Supreme Court of New South Wales would not come to this matter until some time next year, then that is, I think, a further reason why this Court may be able to provide some early attention to the matter that might be of great assistance to the trial court.

MR STITT: But, your Honour, the applicants have not been able to demonstrate any prejudice and put no prejudice to Mr Justice Rolfe by the granting of the injunction. That is part of the difficulty that they have. What we want to have determined - - -

KIRBY J: They say their prejudice is that you did not, as you should have, made first application in the United States.

MR STITT: But that is a misstatement, with respect, of the Amchem principle. Could I come to what we say about Amchem? In order to understand the way in which this matter arises it is necessary to go firstly to page 63 of the application book. At page 63 CSR and CSR America set forth their position and it was the basis upon which this matter proceeded. It starts at line 10. Mr Bathurst was senior counsel for CSR and Mr Douglas adopted the submissions. There is set out the three bases upon which CSR asked Mr Justice Rolfe to determine the matter. I will not read them out but they are there:

(i) if there was an admitted contract not to sue.....there is no difficulty.....

(ii) if there is a disputed contract, allegedly containing a covenant not to sue, and litigation is brought in a foreign court, the principle this Court should invoke is to decide whether there is a serious issue to be tried and, if there is, whether the balance of convenience favours.....

(iii) other discretionary matters, which would be relevant, will include whether it is appropriate to take the exceptional step of restraining proceedings in a foreign court.

Now, that was the way CSR asked the trial judge to decide the matter. This point, this Amchem point, was never raised and never put. It has only been erected after his Honour decided the case after all the evidence was led and after the matter was submitted by CSR that that was the appropriate process.

If your Honours look at page 89 in the way in which the trial judge dealt with the question of balance of convenience, which is directly relevant to the question which his Honour Justice Kirby put to me, he said this, firstly:

I am satisfied there are two serious issues to be tried: firstly, whether CSR agreed with the insurers it would not sue on the policies of insurance for the indemnity now sought; and secondly, whether by suing in New Jersey CSR and CSR America are acting vexatiously and oppressively such as to constitute unconscionable conduct. In the first issue I include whether CSR entered into the contract on behalf of CSR America. The question then is whether the balance of convenience favours the granting of an interlocutory injunction pending the final hearing of the injunction proceedings. In my view it does. I have come to that conclusion for the following reasons:

And his Honour then sets out the reasons, five of those reasons, over to page 90, as to why the interlocutory injunction should be granted. Those facts, those reasons, have not been challenged in this application and it is most important to have regard to his Honour's finding at line 55 on page 89:

(iii) There is no suggestion that any delay in the final hearing of the injunction proceedings will prejudice CSR and CSR America or of any other prejudice to them. In any event in this Court there will be little delay-

So that there was no prejudice demonstrated, there was no prejudice found, and this Court ought not to substitute its view of prejudice in the face of those findings which are not challenged in these applications.

GUMMOW J: Mr Stitt, I have some recollection that on the application that was made to me as a single Judge there was some material from Mr Jackson's side controverting the notion that at first stage in the Supreme Court there was no reference to Amchem. It may not much matter at the end of the day - - -

MR STITT: But it was not raised as a point, your Honour, and I have read the way in which CSR and CSR America put its case and that is at page 63.

GUMMOW J: My recollection is the other side got rather angry at that suggestion and put forward material to suggest that it had been before the court. It is probably getting angry again now.

MR STITT: The basis, I think, of what your Honour had in mind is to be found at page 42 of the application books, line 25, but that seems to be the totality of it, your Honour.

Could I come to deal with Amchem? The applicants submit that no interlocutory injunction should have been granted because, following Amchem, the respondents should have applied first to New Jersey. Our submissions in response to that are, firstly, that this point was not argued before Mr Justice Rolfe, the trial judge, and that this application is an inappropriate vehicle therefore to deal with these principles.

KIRBY J: But it is either a fact that you did or you did not; it is not a complex fact. And if you had, then I think courts would have been told you had, so I think we can assume you did not. The question is whether you should have or whether you must.

MR STITT: The question is whether or not Amchem or an application of Amchem suggests or requires that that was what we ought to have done. But on a true analysis of Amchem, in our submission, it does not say that; it merely says that its preferable, it does not state - - -

DAWSON J: You should now take us to where you get that from that case.

MR STITT: Yes, your Honour.

KIRBY J: I can see a reason for softening the principle because assume it is the courts of Libya in which the proceedings have been brought, you may hesitate to lay down a rule that you must first go to Libya and seek a stay there. I say that without disrespect to Libya.

MR STITT: I am sure that that would be so, your Honour. Could I take your Honours to Amchem at page 930. The proposition starts in the left-hand column in the final paragraph:

First, it is useful to discuss some preliminary aspects of procedure with respect to anti-suit injunctions. As a general rule, the domestic court should not entertain an application for an injunction if there is no foreign proceeding pending. While quia timet injunctions are granted by the courts, that is done only if the applicant establishes that some threatened action by the defendants will constitute an actionable civil wrong. In general, an injunction is a remedy ancillary to a cause of action. In this respect the anti-suit injunction is unique in that the applicant does not have to establish that the assumption of jurisdiction by the foreign court will amount to an actionable wrong. Moreover, although the application is heard summarily and based on affidavit evidence, the order results in a permanent injunction which ordinarily is granted only after trial. In order to resort to this special remedy consonant with the principles of comity, it is preferable that the decision of the foreign court not be pre-empted until a proceeding has been launched in that court and the applicant for an injunction in the domestic court has sought from the foreign court a stay or other termination of the foreign proceedings and failed.

So that the way this application is put it proceeds on the basis as though Amchem has stated as an absolute rule - - -

KIRBY J: Let it be a preferable rule. This is big litigation; it is an important case; the issue of the principles for anti-suit injunction are important for Australia. As Justice Sopinka pointed out, this Court has not spoken on them. These anti-suit injunction suits are quite common nowadays and stating those principles for Australian courts would seem to me, at least at the moment, to be an important task for this Court.

MR STITT: Undoubtedly that is so, your Honour, but the question - - -

KIRBY J: It is a matter of principle, not whether it is a big case or not, that is the operative factor.

MR STITT: I understand that. But the question which this Court has to answer and determine at this stage is whether this is an appropriate vehicle to make that determination. What will this Court do? Will it bring it up, make the statement of principle and then remit the matter back to the Court of Appeal or back to Mr Justice Rolfe? This matter is in full flight. Mr Justice Rolfe is yet to determine matters that relate to substantial issues between these parties. Nobody even suggests that the New Jersey proceedings are capable of resolving all of those parties. The New Jersey proceedings will inevitably fragment these disputes between the parties. The Australian - - -

GUMMOW J: All the more necessary to get the ground rules right at the beginning.

MR STITT: All the more necessary to get the ground rules right, based on a proper finding of fact which, at this stage, has not occurred. If Amchem is to be raised, my learned friends can raise it in front of Mr Justice Rolfe and it can be dealt with where there will be evidence from experts from both sides of the record, where his Honour will make findings of fact dealing with matters that are relevant on a final basis.

KIRBY J: But on the point that has been argued, it is not a complex fact. You either did commence proceedings first in New Jersey or you did not. The suggestion is you did not. That is not complicated.

MR STITT: But, your Honour, Amchem is a case about balance of convenience. This is a case where we have a contractual right not to be sued and Amchem is not apposite, really, to this case. We have, and his Honour has found, two findings of fact in our favour. The first is that there is a serious question to be tried as to whether or not there is a contract not to be sued, and that relates to the events and matters and circumstances that occurred in Sydney, New South Wales that gave rise to the agreement that is evidenced in the two letters from the Deputy Managing Director of CSR. His Honour has said that is a serious issue to be tried. Undoubtedly that should be tried in New South Wales. In those situations where there is an equity or a contract not to be sued, Amchem really is not applicable. Amchem is talking about the balance of convenience, but this is not a case just about the balance of convenience, and my learned friends simply cannot ignore the fact, which his Honour has found to a prima facie level, that there is a contract not to be sued.

KIRBY J: Is it your point that the applicants could take the Amchem proceedings in New Jersey point in the final suit before Justice Rolfe and that no prejudice is done by their appearing in the Supreme Court of New South Wales and that following determination of the final suit where this point that was not argued is determined, if they are discontented they can then go through the appellate process?

MR STITT: Precisely, and that was precisely what was put to them in the Court of Appeal, and they were invited to demonstrate prejudice to the Court of Appeal as to why that course would be inappropriate and they were unable to do so.

KIRBY J: Does that course cause problems for the United States litigation which is pending?

MR STITT: No.

KIRBY J: Was it suggested that it did?

MR STITT: No, it was not suggested that it did. That is why I read to you a moment or two ago those findings of the trial judge where no prejudice could be demonstrated and no prejudice was in fact found by the trial judge if there was to be a delay. This case, in our submission, because it is complex and because it does involve an enormous amount of facts and law, is a matter that ought to be put on a proper basis. Now, this is not the way, in our submission, for it to proceed. It should not proceed at this level on an interlocutory finding. The Amchem principle will not be denied to them. They can argue that, put their evidence before Mr Justice Rolfe. The matter can then go, if it is to be on appeal, to the Court of Appeal and, if necessary, it can then be brought up to this Court. And that, in our submission, is the proper way in which it should be determined.

KIRBY J: Justice Gummow, in his decision on the stay application, suggested there might be some doubt about the New South Wales Supreme Court Rules concerning the obligation in these circumstances for the applicants to appear.

MR STITT: Your Honour, my recollection is that we have said, I think twice, that we would not take that point.

GUMMOW J: It was hedged, I thought, Mr Stitt.

KIRBY J: Justice Gummow's point was that it was hedged, and my question was, "Is it a point-

MR STITT: I do not believe that it is hedged, but - - -

KIRBY J: Is it a point going to jurisdiction of the Supreme Court of New South Wales?

MR STITT: The point was not taken. We did not take that point.

KIRBY J: The Court must satisfy itself of its own jurisdiction.

MR STITT: Yes, your Honour, but it is somewhat unusual, let us say, to have CSR asserting that it is not amenable to the jurisdiction of the Supreme Court of New South Wales.

Could I just come to a couple of other matters about Amchem? Amchem specifically did not deal with the case where the assumption of jurisdiction by the foreign court did or could amount to an actionable wrong. So that Amchem does not apply to this case. That is the passage that I read to your Honours. Amchem dealt with questions of competing convenience and it did not deal with a case where there was a proven intention on the part of the plaintiff in the foreign court to commence those proceedings for an improper purpose. And one must not lose sight of the fact that Mr Justice Rolfe has made a finding on an interlocutory basis that the proceedings in New Jersey were commenced for an improper purpose.

The decisions of the Angelic Grace and the Apple Corps Cases are contrary to the Amchem principle and there is no suggestion in any prior case that a stay must be sought from the foreign court before the contract can be enforced by injunction.

GUMMOW J: That is what we would have to sort out, I suppose.

MR STITT: Except, your Honour, Amchem does not speak about contracts, and to raise Amchem is, in our submission, to raise a false issue because, on its true analysis, Amchem is talking of balance of convenience and does not deal with an equity based on a contract not to sue.

But there is still the discretionary question of whether, ultimately, the injunction will or will not lie and that is a matter, ultimately, for the trial judge.

DAWSON J: Except it does raise questions of a peculiar nature in this situation, or in this peculiar situation, because what is done at the interlocutory stage will largely determine what happens subsequently. So that the principles to be applied at the interlocutory stage here are important.

MR STITT: Your Honour, that is only true if the anti-suit injunction is granted on a final basis and Mr Justice Rolfe's refusal to grant a stay does not prevent the Sherman Act claim being pursued in the United States. That is only one of the factors which the trial judge would have to take into account in the exercise of his discretion.

I see that my time has expired.

DAWSON J: We have your written submissions, Mr Stitt.

MR STITT: Your Honour, the stay raises separate questions - - -

DAWSON J: Yes. If we need to come to that we will, Mr Stitt.

The Court need not trouble you further, Mr Jackson, and the Court need not trouble you at all, Mr Bennett. There will be a grant of special leave in these matters.

Now, that does raise the question of the stay. We need not trouble you, Mr Jackson. The Court is inclined merely to continue the stay that was granted by Justice Gummow until the hearing or determination of the appeals. Do you wish to speak against that?

MR STITT: Yes, I do. Your Honours, that, in our submission, ought not to be the order of the Court for the following reasons: the insurers ought to be allowed to prosecute their actions that are on foot before Mr Justice Rolfe. He considered at great length, after a hearing, the question of a stay and he declined to grant the stay to CSR. If the stay is continued, the matter will simply come to a halt.

DAWSON J: That is right.

MR STITT: It ought not to, in our submission, because there is a considerable amount to be done. The matter will lose priority in the Commercial List of New South Wales which is an extremely congested and busy list, and we would want to be in a position to ask Mr Justice Rolfe to list the matter and give it a hearing date which will be some time ahead, with relevant directions, so that those issues which are undoubtedly going to be heard in New South Wales in any event, such as the question of the New South Wales claims, the Australian claims, claims in other parts of the world apart from the United States of America, so that they can all be heard and determined. If the stay is simply prolonged - - -

DAWSON J: But the point is that they should be heard and determined in the correct circumstances.

MR STITT: But nobody suggests at all that the New South Wales proceedings cannot deal with those matters. They are no part at all of the American proceedings. The US proceedings do not even purport to deal with the Australian - there is more money involved in the Australian claims and claims outside the United States than the US claims. So that those matters, ultimately, have to be heard and determined and they ought to be allowed to continue, with respect, otherwise we will suffer grave delay and injustice by that delay if we are prevented from taking any further step at all.

KIRBY J: I thought I read that the applicants before us gave an undertaking, first, that they would co-operate in every way to have the matter heard by this Court as quickly as possible and co-operate in that endeavour; and secondly, that they would offer an undertaking as to any damages you suffer by reason of the delay. Is that correct?

MR STITT: I am not sure, your Honour, whether that is still the position.

KIRBY J: I thought I read that in one of the affidavits.

DAWSON J: That was said. That still prevails, does it, Mr Jackson?

MR JACKSON: Yes, your Honour.

DAWSON J: Mr Bennett?

MR BENNETT: Yes, your Honour.

MR STITT: But, your Honours, I am unable to ascertain when this Court would be likely to hear this appeal and what - - -

DAWSON J: I am afraid we are not able to assist you with that here, but that is a matter for you to take up or Mr Jackson - - -

MR STITT: If your Honours were minded to grant a stay, would it be on the basis that there would be some expedition?

DAWSON J: No, this Court can give no such undertaking, but you can take the matter up and, if necessary, make an application in relation to the matter. We are just not in a position to give any such undertakings.

MR STITT: If your Honour pleases.

DAWSON J: If there is undue delay, of course the parties can always approach the Court again.

We need not trouble you, Mr Jackson.

MR JACKSON: We give the undertakings we gave before your Honour Justice Gummow on the application for a stay and ask that the orders be continued until the hearing of the appeal or earlier order.

DAWSON J: Yes. Mr Bennett?

MR BENNETT: Yes, your Honour, I give a corresponding undertaking.

DAWSON J: Very well. The stay granted by Justice Gummow in these matters will be continued until the hearing and determination of these appeals or further order.

Is there any other matter, gentlemen?

AT 11.00 AM THE MATTER WAS CONCLUDED


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/1996/258.html