Mackellar Mining Equipment Pty Ltd and Dramatic Investments Pty Ltd t/as Partnership 818 & Anor v Thornton & Ors [2019] HCATrans 188 (13 September 2019)

Last Updated: 18 September 2019

[2019] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S171 of 2019

B e t w e e n -

MACKELLAR MINING EQUIPMENT PTY LTD ACN 010 398 428 AND DRAMATIC INVESTMENTS PTY LTD ACN 059 863 204 T/AS PARTNERSHIP 818

First Applicant

JANET ELIZABETH WRIGHT AS REPRESENTATIVE OF THE ESTATE OF LESLIE ARTHUR WRIGHT (DECEASED)

Second Applicant

and

TRAD THORNTON

First Respondent

SHANE URQUHART

Second Respondent

ELIZABETH URQUHART

Third Respondent

FIONA NORRIS

Fourth Respondent

MIMIA WHAP

Fifth Respondent

GLENDON WOOSUP

Sixth Respondent

DEREECE WHAP

Seventh Respondent

TABUA WOOSUP

Eighth Respondent

RITA WHAP

Ninth Respondent

RAMSLEY WOOSUP

Tenth Respondent

OLIVE JOYCE BAGIE

Eleventh Respondent

DANIEL HUDSON

Twelfth Respondent

FLORENCE KEPA

Thirteenth Respondent

BETINA KEPA

Fourteenth Respondent

LEON BOWIE

Fifteenth Respondent

RENIA BOWIE

Sixteenth Respondent

SOLOMON BOWIE

Seventeenth Respondent

FRED BOWIE

Eighteenth Respondent

KALIS KEPA

Nineteenth Respondent

ERRIS ESELI

Twentieth Respondent

ANNIE BOWIE

Twenty-First Respondent

STEPHEN ROPEYARN

Twenty-Second Respondent

LUCY ROPEYARN

Twenty-Third Respondent

FRANCIS BOWIE

Twenty-Fourth Respondent

JOHNNY TAMWOOY

Twenty-Fifth Respondent

DALE BOWIE

Twenty-Sixth Respondent

FLOSSIE BOWIE

Twenty-Seventh Respondent

ELIZABETH STEPHEN

Twenty-Eighth Respondent

MARYANNE MIRIAM STEPHEN

Twenty-Ninth Respondent

CAROLINE THOMASINA STEPHEN

Thirtieth Respondent

RUBY GLORIA ROSEANNE STEPHEN

Thirty-First Respondent

FANNY MALETA FLORA NORA STEPHEN

Thirty-Second Respondent

EMMIA FRANCES NOBBY HELENA STEPHEN

Thirty-Third Respondent

FREDRICKA LOUISA KRIS

Thirty-Fourth Respondent

RIM THOMAS JOE NATAPUI STEPHEN

Thirty-Fifth Respondent

WANAKI MOOKA

Thirty-Sixth Respondent

PADIALA KRIS

Thirty-Seventh Respondent

EMAIMA KRIS

Thirty-Eighth Respondent

EMILY KEPA

Thirty-Ninth Respondent

SEBASTIAN BILLY

Fortieth Respondent

JOSEPH BILLY

Forty-First Respondent

KATRINA BILLY

Forty-Second Respondent

GORDON SOLOMON

Forty-Third Respondent

GLORIA SOLOMON

Forty-Fourth Respondent

LIONEL SOLOMON

Forty-Fifth Respondent

BESSIE BILLY

Forty-Sixth Respondent

GILLIAN HURST

Forty-Seventh Respondent

TAMLIN HARRIS

Forty-Eighth Respondent

MARY GREEN

Forty-Ninth Respondent

KERRI SONTER

Fiftieth Respondent

JANET MAREE LEWIS

Fifty-First Respondent

STEVEN LEWIS

Fifty-Second Respondent

BEN LEWIS

Fifty-Third Respondent

MELISSA BRADY

Fifty-Fourth Respondent

JOHN HOTCHIN

Fifty-Fifth Respondent

JANE HOTCHIN

Fifty-Sixth Respondent

GREGORY ROBERT HOTCHIN

Fifty-Seventh Respondent

DENISE J. KALIN

Fifty-Eighth Respondent

ROGER DOWN

Fifty-Ninth Respondent

MARY ESELI

Sixtieth Respondent

LEONARD ROBERT HOTCHIN

Sixty-First Respondent

Application for special leave to appeal

BELL J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2019, AT 10.06 AM

Copyright in the High Court of Australia

____________________

MR J.T. GLEESON, SC: May it please the Court, I appear with MR T.J. BRENNAN for the applicants. (instructed by Norton White)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR G.R. MULLINS for the respondents. (instructed by Cleary & Lee Pty Ltd)

BELL J: Yes, Mr Gleeson.

MR GLEESON: Your Honours, our proposed special leave questions are at page 84 of the book. Could I say something about them at a general level of principle? We take as governing the statement of principle in this Court in CSR v Cigna – we do not seek to challenge that case. We do seek to say that in the application of CSR v Cigna, in particular, in determining what is vexatious and oppressive, considerable tension has opened up between the approach adopted by, say, Justice Brereton in the Moose decision and the two courts here.
The first question raises that neatly because this is a case where we obtained a finding of fact on the balance of probabilities that if the matter proceeded in Missouri Australian law would govern on all issues – liability and damages. That finding of fact was obtained after a contest. We called the only expert witness and the trial judge considered the evidence and found that Australian law would apply in Missouri.

Our contention then was that where one has parallel proceedings and where everything can be done in Australia which can be done in Missouri, and where Australian law would govern in either court that is a strong factor pointing in favour of the foreign proceedings being vexatious and oppressive.

GORDON J: Does the continuation aspect play a part in that?

MR GLEESON: It does, your Honour. Had we not had American defendants and cross‑claims back against us, this would have been a straightforward anti‑suit case in 2007, because everything was Australian.

GORDON J: So is it the argument really that the approach undertaken by Justice Sofronoff at [54] in application book 67 was the wrong question?

MR GLEESON: Yes. Paragraph [54] is a troublesome paragraph because – it is page 67 – the previous paragraph, [53], has put our case as fairly as it can be put. That is our entire case for vexation and oppression. His Honour has reasoned in [54] that the problem with our argument is that the proceeding always had those characteristics and he then says, at about line 20:

However, if the Missouri proceeding was neither vexatious nor oppressive –

up until that date:

I do not see how the proceedings gained that character thereafter.

What we submit is his Honour has really found that you will never be able to find a proceeding vexatious or oppressive in its continuation where there has been a material change in circumstance from the outset of the case. Why that seems to be important in principle is this. In effect, you can have an Australian case in every respect. If you can add a non‑colourable foreign element - go to a foreign court and resist anti‑suit relief because of that non‑colourable element – if that element is then removed, as occurred here, you will never be able to get anti‑suit relief. That is what the President has found and we submit that is not a correct application of Cigna.

Your Honours will see in that [54] finding a notion also in [55] of preference and his Honour seems to have found, in anti‑suit jurisprudence, if I prefer to litigate an Australian proceeding under Australian law in a foreign court I must be permitted to do so. I can never be vexatious and oppressive. His reason for that, as best we can see, comes later.

Your Honours know that from paragraphs [57] and following, he has moved into the reopening application, but it appears in the middle of the reopening application at paragraph [72], last few sentences in paragraph [73], he comes back to this notion of preference and he appears to be enunciating a proposition of law that in anti‑suit jurisprudence it is simply invidious or objectionable for the Australian court to, in any way, cast doubt upon the ability of the Missouri Court to pronounce upon Australian law.

He says the law of nations and the conflict of laws require that approach. The flipside in [73] is that – near the end – if you prefer to litigate in a foreign jurisdiction, even on Australian law, that cannot be vexatious and oppressive. That is a large proposition. We would wish to submit that the correct approach is the exact opposite, which is that if the case is Australian in character and it is Australian law that is a strong pointer in favour of it being vexatious and oppressive to have it litigated in a foreign forum simply because you prefer that.

Now, that does not require Australia to say that the courts of Missouri or some other place are inferior in deciding Australian law but it does say that where it is a matter of Australian law, federal law, ordinarily it is heard here and ordinarily the parties have the benefit of the appellate system in Australia and ordinarily the matter could end up by grant of leave here.

What has happened in the present case, absent the injunction, is that an important question about the products liability provision of the Trade Practices Act and a novel question of the common law of negligence, which is whether you owe a duty of care when you inspect an aircraft to passengers who may later fly on it under someone else’s ownership, have been left to the Missouri court system. They will end up in the Supreme Court of Missouri at best. That is our second point, your Honours, and I could just briefly ‑ ‑ ‑

BELL J: Moving on to paragraph [74], if I may do so ‑ ‑ ‑

MR GLEESON: Yes.

BELL J: ‑ ‑ ‑ for clarification, his Honour seems to reason that at the point Lambert drops out of the proceedings and with the third party claims also disappearing, since the statute of limitations has cut in it could not be said at that point to be vexatious.

MR GLEESON: Yes.

BELL J: As I understand his Honour’s analysis, it might be a different matter if, at that point, the applicants had approached the respondents and indicated that they would not raise a defence under the limitations legislation.

MR GLEESON: Yes, and that is way one way in which it would have been vexatious had they rejected that. But what his Honour has not addressed, with respect, is what actually happened here which is the applicants promptly – as soon as it was clear Missouri was a live function again – started the proceeding in Queensland which covered all issues. In that proceeding, all questions of liability were joined and there was an opportunity for a cross‑claim. Then what the applicants did, promptly, was to offer the very undertaking which his Honour speaks of ‑ ‑ ‑

GORDON J: Is that at paragraph [107]?

MR GLEESON: Of the primary judgment?

GORDON J: Yes.

MR GLEESON: Yes. So they offered the undertaking as to the statute of limitations and then they offered an undertaking to protect against certain other matters.

GORDON J: Did that include that what had happened in Missouri would be brought over ‑ ‑ ‑

MR GLEESON: Yes, so everything could be used. At appeal Mr Walker put a powerful rhetorical submission which was if we have to prove vexation and oppression we have to show when they put on the “black hat” – that is the way he called it. Our criticism of paragraphs [74] and [75] – it has not quite addressed when we say the vexation crystallised. It crystallised after we had a proceeding here which was capable of providing complete relief in the controversy, as per Cigna, after we gave them the appropriate protections, after the judge made directions - they could put on a cross‑claim – they then had a choice. At that point they chose actively to pursue Missouri and we said for what purpose – for what purpose?

GORDON J: So is that the point that is to be assessed?

MR GLEESON: Yes.

GORDON J: Is that the point ‑ ‑ ‑

MR GLEESON: That is the continuance point. It is that point. At that point there are only two possibilities. The first is they are continuing in Missouri to get Australian law governing an aircraft crash in Queensland determined in the Missouri court system. That, we submit, is vexatious and oppressive. The only alternative, which is what they put more clearly before the trial judge – less so before the Court of Appeal – was they are going to Missouri to try and persuade a Missouri court to reach a conflict of laws finding which is contrary to what the Australian court has found on the evidence and lead the Missouri court to such a finding, get before a Missouri jury, try and get additional damages out of a jury they cannot get under Australian law. If that is the aim, we submit that is also vexatious and oppressive – whichever way, same conclusion.

Your Honours, our final question is brief but important and it really follows from what I have said about our rights under the appellate system. What we lose if we do not get the anti‑suit is the ability to have the matter determined ultimately through the appellate system of Australia to ‑ ‑ ‑

GORDON J: This is ground 3?

BELL J: Yes.

MR GLEESON: This is ground 3 – and to this Court by leave. The way we put that was simply that that guarantee of federal jurisdiction, while it does not mean you always get an anti‑suit in federal jurisdiction, it simply is an indication of the legitimate juridical advantage a party has when they say “We seek to have a matter under Australian law determined through our court system”. Your Honours, those are our submissions.

BELL J: Yes, Mr Walker.

MR WALKER: May I start with proposed ground 3 first? It says there is a guarantee but elides the question of a guarantee to whom and about what. Nothing in section 73 or other parts of Chapter 3, or the federal structure, has ever suggested there is a guarantee to litigants in foreign courts who have determined something according to lex causae which is Australian – at least in part – can invoke the jurisdiction of this Court pursuant to special leave. That is too silly for words.

So the guarantee is not a guarantee free floating around the globe with respect to the High Court of Australia being, at least in principle, available for every case decided with an Australian lex causae. Well, who is it a guarantee to, then? Equally, it follows from what I have just said, that it cannot be a guarantee to litigants who have either invoked or had invoked against them in a foreign court or foreign arbitral proceeding access to the High Court concerning the correctness of an understanding of Australian law.

TCL makes it clear that with arbitral proceedings correctness of a finding according to Australian law casts no doubt upon the integrity and enforceability of arbitration agreements notwithstanding that thereby one is denied, of course, access to the High Court to pass upon the correctness of the adjudication arbitrarily of Australian law.

So the content, and the parties, too, and the consequences of the supposed guarantee is, in our submission, overblown for the purposes of this special leave application. Properly understood, section 73 does what section 73 says. With respect to courts in the Australian judicature there will be the guarantee, if one must apply that rhetorical flourish, of ultimate possible access to this Court.

It produces its own controversies such as can a court get rid of the interference of your Honours by abolishing Supreme Courts, as referred to in section 73, to which your Honours have given the tart answer, no. There may be some more work to be worked out in that regard, but nobody has ever suggested that the room to move doctrinally with respect to section 73 is referenced to the Supreme Court of States or to such other federal courts, et cetera – has ever suggested that it applies to anything regularly exercised by way of foreign jurisdiction, by foreign tribunal, including foreign courts.

So, ground 3 – notwithstanding the gloss, or glamour with which it is presented by the applicants here – does not present, in fact, any substantial matter for this Court to consider. So we come back to what my learned friend, with respect, frankly acknowledges to be a case in which no point of principle is to be taken. CSR v Cigna is the law.

BELL J: Save, perhaps, this issue about the continuation.

MR WALKER: Yes, quite so.

BELL J: That is the crux of it, I think.

MR WALKER: With great respect, yes. I am going to try and refrain from what my friend dangerously praises – that is, dangerous for me – praises as rhetoric below – but simply point out that on any view of it the case for which special leave is sought does not involve the proposition that the proceedings commenced in Missouri at commencement were a fit object of an anti‑suit injunction there and then.

GORDON J: That is common ground, I think.

MR WALKER: And has to be common ground because the whole of the weight of the case, which has been argued twice already – the whole of the weight of the case for the applicants is that something has happened. One thing we can put to one side immediately, it is – as my learned friend neatly recognised in one of his last remarks this morning – one of the things about Missouri is that there may be more remedy given than would be available in Queensland. It is not the case, therefore, that there is the neat parallel or reflex in Missouri, of what might be done in Queensland or vice versa.

Your Honours will recall among the passages to which our learned friend took you there are references to, of course, her Honour at first instance finding that although there was, as we have pointed out in our written submission, a probability in accordance with the professor’s evidence, opinion how the Missouri court would proceed with respect to choice of law, this was a matter for the Missouri court and could not be certain.

Furthermore, there were, as my friend points out, matters of remedy – particularly the Missouri equivalent of what we might call Lord Campbell’s Act damages – and for what heads of suffering either by the deceased or by the survivors – they might be available. These are matters of difference.

That means in terms of what, in another context might be called legitimate juridical advantage, there really can be no doubt that at the time of commencement there was nothing unmeritoriously tactical and at whatever juncture thereafter that continuation is a sensible label to apply to the activities of the parties in Missouri. One cannot say that there was an attempt to keep someone in Missouri for no good reason, bearing in mind that everything obtainable in Missouri was also obtainable in Queensland.

So much is conceded not to be true. Rather, what is asserted is the vast bulk of what is available in Missouri would be available in Queensland – with a large asterisk footnote – provided that we perform an undertaking with respect to not only the expenditure on preparation for trial in Missouri in terms of the product of that work but also limitations questions.

BELL J: But the undertaking has been offered, has it not?

MR WALKER: That is the point I want to come to. So by this means – by somebody ironing out, through their undertaking in the Australian court, a difference which would have rendered an anti‑suit injunction unthinkable – by that means they have turned our conduct of continuous into something vexatious and oppressive. I have to be careful how I next put the point or it might become interesting. But, in our submission, this is highly particular facts. These are very odd, unusual facts.

We are not talking about a pattern of behaviour that this Court can contemplate as usefully obtaining a decision on these facts so as to allow people to arrange their affairs, including globalised litigation. It is not likely that that extraordinary combination of events, namely, long failure, repeated failure combined with intermittent inaction by our opponents in Missouri with respect to bringing those proceedings to an end under Missouri law, together with such a long expiry of time that limitations periods mean that the spectacle of different justice in Missouri and Queensland is so large that you could not even think of an anti‑suit injunction in Queensland without giving an undertaking, this is highly peculiar – factual situation where special leave, therefore, would appear to need something over and above a desire to have a second appeal.

We know that it is not principle in what I will call general or comprehensive terms – CSR v Cigna is not challenged, notwithstanding anything that may have been thought to have occurred in the jurisprudences of this Court concerning litigation of so‑called foreign torts.

GORDON J: Can I ask you about paragraph [54] then of the President’s reasons for decision?

MR WALKER: Yes. That is the continuance point and in relation to the ‑ ‑ ‑

GORDON J: I should say it also seemed to sit with [74] as well.

MR WALKER: I am so sorry, it is ‑ ‑ ‑

GORDON J: Paragraphs [54] and [74] seem to go together.

MR WALKER: Quite so. Both of them zero in on that issue, I accept. The question is what is fit about it for special leave? Can I pull it apart this way? It seems to be common ground. Very obviously, tactically, it must be advanced by the applicants against us that we did nothing wrong in the eyes of the law by commencing proceedings in Missouri.

Your Honours might be forgiven for thinking that at various points there was a flirting with a different approach but it was firmly rejected, we think. The different approach that might have been flirted with was why is it appropriate, prima facie, for a foreign court to be seized of an issue which will involve what I will call generically Australian law.

That is not a rhetorical question, alas. There are many answers to that, including for the same reasons it is appropriate for Australian courts to be seized of dispute resolution concerning relations between parties – voluntary or involuntary – contract or tort – that would be governed by another country’s law.

It is for those reasons, in our submission, that one then says commencement was fine and the circumstance that is said to render vexatious and oppressive is one which can exist only by the voluntary act, not of us but of them. The voluntary act of artificially – I do not mean not effectively – I mean by an artifice – I do not mean a trick - I mean it is an ad hoc technical step taken to change the body of rules in Australia which governs the outcome of the dispute between us. The body of rules that, in the absence of such an artifice, governs between us is that some of us will not be able to sue. It will be too late – either the cause of action will be extinguished or, at least, we cannot maintain the proceedings.

They changed that and then say by reason of that – and I think that is how my learned friend, frankly, indicates it today – by reason of that and at that moment our continuance becomes vexatious or oppressive. That, ironically, is to privilege a preference of theirs. Of course, parties’ preferences are scarcely the beginning and cannot be the end of an inquiry as to whether it is vexatious or oppressive for one of them to maintain what I will call foreign proceedings, any more than it would be with respect to the correlative question where there is a stay sought of Australian proceedings as to whether it is plainly inappropriate to continue proceedings in Australia.

In our submission, therefore, there is nothing which, as a matter of principle, proceeds beyond the particular facts of this case thrown up by this notion of continuation. The President does not say there can be no case where properly commenced proceedings will ever be subject to an anti‑suit injunction. What he does say is where all that is shown about the so‑called point of continuance is what the facts of this case throw up how could it be said that something properly commenced ceases to be properly continued?

It is for those reasons, in our submission, that this is simply an inappropriate vehicle to consider the existence and application, or extent and limits of a supposed principle that there can be an anti‑suit injunction, almost ex debito justitiae, when there is a point reached, in properly commenced proceedings, where it can be seen that Australian law is now sought to be applied in foreign proceedings. It is for those reasons that, in our submission, it is simply an inappropriate vehicle.

As an alternative to that argument which is for a rejection of the application for special leave, in our submission, if there is anything about
this case it is only the question as to whether continuance is a matter which requires the attention of this Court concerning the application of otherwise well‑established principles and special leave ought to be limited accordingly. May it please the Court.

BELL J: Thank you. Yes, thank you, Mr Walker. Mr Gleeson, ground 3 is not your strong point.

MR GLEESON: I am in reply on grounds 1 and 2, if I might? Mr Walker slipped in at the end that if ground 2 was an appropriate ground, you should limit it to ground 2. Could we vigorously resist that? Grounds 1 and 2 are a package. They go together and we need 1 to make 2 work. So, the main thing I would seek to say in reply is that we would press 1 and 2 as a package, your Honours.

BELL J: Yes. There will be a grant of special leave confined to grounds 1 and 2 in the application. What is the estimate, Mr Gleeson?

MR GLEESON: One day, your Honour.

BELL J: Yes, very well. If those who instruct you would collect the standard directions from the Registry, thank you.

MR GLEESON: May it please the Court.

AT 10.32 AM THE MATTER WAS CONCLUDED