CSR Ltd v Cigna Insurance Australia Ltd

High Court of Australia|1997-08-05|Before: Brennan CJ, Kirby JJ, Rolfe J

The application for anti-suit injunctions was made on several grounds, only two of which remain relevant. The main contention, and the one on which the respondents primarily relied in this Court, was that CSR's letter of 17 March 1992 and its subsequent letter of 28 April 1992 evidence or constitute a promise not to renew the 1991 claims, including the American asbestos claims, and, thus, evidence or constitute a promise not to bring any action for indemnity with respect to those claims. However, that does not seem to be an argument which can be raised by Cigna Corporation or raised against CSR America, they apparently not having been parties to the transaction effected or evidenced by those letters.

The second contention which was relied upon before Rolfe J and which remains relevant is that the US proceedings are vexatious and oppressive, in the sense that their institution was contrary to equity and good conscience.

The appellants' stay applications were dismissed on the basis that they, the appellants, had not satisfied the test laid down by this Court in Voth v Manildra Flour Mills Pty Ltd [38] . More particularly, they were dismissed because it was held that they had not established that New South Wales is a clearly inappropriate forum for the determination of the issues involved.

The appellants' primary argument in relation to the interlocutory anti-suit injunctions is that, either by reason of a general rule to that effect or by reason of the particular circumstances of this case, the injunctions should not have been granted without the respondents having first made an application for a stay of the US proceedings. The respondents contend that there is no rule to that effect. They also contend that there is nothing in the circumstances of this case which requires that course. Further, they claim that that course was not urged at first instance. On that last account, they argue that, to the extent that these appeals are concerned with the anti-suit injunctions, special leave to appeal should be revoked. A consideration of the written and oral submissions of the appellants before Rolfe J and the Court of Appeal suggests that the point was taken. However, and as will later appear, it is not necessary to decide whether, in fact, it was.

In addition to their primary argument, the appellants contend and the respondents deny that Rolfe J adopted a wrong approach to the grant of the interlocutory anti-suit injunctions. In this regard, the appellants argue that his Honour should not have followed the course generally applicable to interlocutory injunctions but should have first considered whether to stay the NSW proceedings on forum non conveniens grounds.

So far as the stay applications are concerned, the appellants contend that the Voth test was incorrectly applied. In particular, they argue that Rolfe J failed to have proper regard to the fact that proceedings were on foot in the United States as required by the decision in Henry v Henry [39] , a decision delivered by this Court some two months after the stay applications were dismissed and almost a month after the appellants' applications for leave to appeal were dismissed by the Court of Appeal. On the other hand, the respondents contend that, even when due regard is had to the fact that proceedings are pending in the United States, the Supreme Court of New South Wales is not a clearly inappropriate forum.

It is convenient at this stage to deal with the respondents' application for the revocation of special leave to appeal.

The proper approach to the resolution of jurisdictional conflict between Australian and foreign courts is a matter of considerable importance. Moreover, and as noted by the Privy Council in Société Nationale Industrielle Aerospatiale v Lee Kui Jak [40] , the potential for jurisdictional conflict has increased significantly in recent years. Given these considerations and given, also, the absence of any reasoned judgment from the Court of Appeal, it is appropriate that the various questions of law raised in these appeals be fully considered whether or not they were raised before Rolfe J. Thus, in our view, special leave should not be revoked.

[1987] AC 871 at 894. See also In re Maxwell Communications Corporation Plc [No 2] [1992] BCC 757 at 770; Gau Shan Co Ltd v Bankers Trust Co (1992) 956 F 2d 1349 at 1354; Amchem Products Inc v Workers' Compensation Board [1993] 1 SCR 897 at 911-912; 102 DLR (4th) 96 at 104-105.

Principles governing stay of proceedings on forum non conveniens grounds and the grant of anti-suit injunctions

The question whether a dispute as to legal rights should be litigated in the courts of one country or those of another is one that permits of resolution, if resolution is possible, by one court staying its proceedings in favour of the other or by it granting an anti-suit injunction restraining a person amenable to its jurisdiction from commencing or continuing proceedings in that other country [41] . The phrase "anti-suit injunction" is now in common use and, at least in some instances, resembles an injunction granted to protect the legal or equitable rights of the plaintiff or a common injunction to protect the processes of the Chancery Court against interference by the processes of other courts. However, it should be borne in mind that the term "injunction" in the parlance of equity has no fixed definition and that it is legal usage which decides which court orders are to be identified as injunctions [42] .

Steps short of a permanent stay or anti-suit injunction may be appropriate in a particular case. In Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) Pty Ltd (1992) 34 FCR 287 at 292, the Federal Court stood the Australian action out of the list pending the determination in a New Zealand action of concurrent issues on the footing that, even if both parties did not accept the New Zealand findings, the Federal Court might give directions which reduced the scope of evidentiary issues remaining in the Australian proceeding. 2. Millett J pointed this out in ISC Technologies Ltd v Radcliffe (unreported; High Court of Justice (Chancery Division); 7 December 1990) at 10-12, when deciding that neither an order for an account and payment nor an order to restore a fund to the party entitled was an injunction within the meaning of the relevant rule of court. See also Doulton Potteries Ltd v Bronotte [1971] 1 NSWLR 591 at 596, where Hope J held that an order for return of a specific chattel was not a form of injunction.

Because stay orders and anti-suit injunctions are the remedies by which actual or potential conflict is resolved, there has been a tendency, at least in the United Kingdom, to view both measures as governed by the same legal principles [43] . That tendency has now been corrected, it having been pointed out by the Privy Council in Société Aerospatiale that the principles are not the same [44] .

See, eg, Castanho v Brown & Root (UK) Ltd [1981] AC 557 at 574; Smith Kline & French Laboratories Ltd v Bloch [1983] 1 WLR 730 at 743; [1983] 2 All ER 72 at 82; Metall und Rohstoff AG v ACLI Metals (London) Ltd [1984] 1 Lloyd's Rep 598 at 602. 2. Société Nationale [1987] AC 871 at 896. See also In re Maxwell Communications Corporation Plc [No 2] [1992] BCC 757 at 771-772.

Although stay orders and anti-suit injunctions are not governed by the same principles, it will later become apparent that, in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings. And it will also become apparent that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed.

The test which, in this country, governs a stay of proceedings in favour of proceedings in another country is as stated in Voth v Manildra Flour Mills Pty Ltd [45] . In that case, this Court declined to adopt the more appropriate forum test laid down by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd [46] and accepted, instead, the test propounded by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay [47] , namely, that a stay is only to be granted if the Australian court is a clearly inappropriate forum.

(1990) 171 CLR 538. See also Henry v Henry (1996) 185 CLR 571. 2. [1987] AC 460. 3. (1988) 165 CLR 197 at 242, 248, 251-255.

It was pointed out in the joint majority judgment in Voth that it was common ground in the judgments of the majority in the earlier case of Oceanic Sun [48] that "the traditional power to stay proceedings on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice in the particular case" [49] .

(1988) 165 CLR 197. 2. Voth (1990) 171 CLR 538 at 554.

It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words "oppressive", "vexatious" and "abuse of process" in Voth, in Oceanic Sun and in the earlier cases considered in Oceanic Sun, including St Pierre v South American Stores (Gath & Chaves) Ltd [50] , that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice [51] .

[1936] 1 KB 382. 2. See Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 617, 639-640; Hamilton v Oades (1989) 166 CLR 486 at 502; Jago v District Court (NSW) (1989) 168 CLR 23 at 25, 74; Williams v Spautz (1992) 174 CLR 509 at 518; Walton v Gardiner (1993) 177 CLR 378 at 392-393; Ridgeway v The Queen (1995) 184 CLR 19 at 60, 74-75.

The counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion [52] . And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if "an estate is being administered or a petition in bankruptcy has been presented or winding up proceedings have been commenced an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets" [53] . Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v Sentry Corporation [54] , a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.

See, eg, with respect to the power to grant a Mareva injunction, Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 619, 621, 639; Witham v Holloway (1995) 183 CLR 525 at 535. See also Ridgeway v The Queen (1995) 184 CLR 19 at 60. 2. Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 892. See also Bank of Tokyo Ltd v Karoon [1987] AC 45 at 60, per Robert Goff LJ, and the cases there cited; Allstate Ltd v ANZ Banking Group Ltd [No 1] (1996) 64 FCR 1 at 26, and the cases there cited. 3. (1989) 22 FCR 209 at 232. See also, eg, Laker Airways Ltd v Sabena, Belgian World Airlines (1984) 731 F 2d 909 at 927; Re Siromath Pty Ltd [No 3] (1991) 25 NSWLR 25 at 29-30.

The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories [55] . Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes.

See Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 639, and the cases there cited. See further Hamilton v Oades (1989) 166 CLR 486 at 502; Jago v District Court (NSW) (1989) 168 CLR 23 at 25-26, 74; Ridgeway v The Queen (1995) 184 CLR 19 at 60, 75.

Quite apart from the inherent power of a court to protect its own processes, a court may, in the exercise of the power deriving from the Chancery Court, make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights. If the bringing of legal proceedings involves unconscionable conduct or the unconscientious exercise of a legal right, an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings [56] no matter where they are brought [57] .

See generally Story, Commentaries on Equity Jurisprudence, 13th ed (1886), vol 2, pp 209-213. See also British Airways Board v Laker Airways Ltd [1985] AC 58 at 81, 95; South Carolina Co v Assurantie NV [1987] AC 24 at 40; National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 232. 2. See generally Carron Iron Co v Maclaren (1855) 5 HLC 416 at 439 [10 ER 961 at 971]: "if the circumstances are such as would make it the duty of the Court to restrain a party from instituting proceedings in this country, they will also warrant it in restraining proceedings in a foreign court."

In some cases, the equitable jurisdiction to restrain unconscionable conduct may be exercised in aid of legal rights. Thus, as the respondents correctly contend, if there is a contract not to sue, an injunction may be granted to restrain proceedings brought in breach of that contract, whether brought here or abroad [58] . Similarly, an injunction may be granted in aid of a promise not to sue in a foreign jurisdiction constituted, for example, by an agreement to submit to the exclusive jurisdiction of the courts of the forum [59] .

See, eg, Lett v Lett [1906] 1 IR 618; Apple Corps Ltd v Apple Computer Inc [1992] RPC 70. See also British Airways Board v Laker Airways Ltd [1985] AC 58 at 81. 2. See, eg, Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588; [1994] 2 All ER 540. See further, eg, Pena Copper Mines Ltd v Rio Tinto Co Ltd (1911) 105 LT 846 and Aggeliki Charis Compania Maritima (SA) v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyd's Rep 87, where proceedings in foreign jurisdictions were restrained by reason of agreement to submit to arbitration in England.

One well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive [60] . Thus, it was said in Carron Iron Co v Maclaren [61] that "[w]here [there is] pending a litigation here, in which complete relief may be had, [and] a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings".

See, eg, Story, Commentaries on Equity Jurisprudence, 13th ed (1886), vol 2, p 211; In re Connolly Brothers Ltd [1911] 1 Ch 731 at 747. As to foreign proceedings, see McHenry v Lewis (1882) 22 Ch D 397; Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225; Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 893; National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 232. 2. (1855) 5 HLC 416 at 437 [10 ER 961 at 970], per Lord Cranworth. See also Wedderburn v Wedderburn (1840) 4 My & Cr 585 [ 41 ER 225]; McHenry v Lewis (1882) 22 Ch D 397.

In Société Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Co v Bockwoldt [62] , have continuing significance for the grant of anti-suit injunctions [63] . Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression [64] . In particular, Peruvian Guano establishes that "double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]" [65] does not amount to vexation or oppression.

(1883) 23 Ch D 225. 2. Société Aerospatiale [1987] AC 871 at 893-894. 3. See McHenry v Lewis (1882) 22 Ch D 397; Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225; Hyman v Helm (1883) 24 Ch D 531; Cohen v Rothfield [1919] 1 KB 410; Ionian Bank Ltd v Couvreur [1969] 1 WLR 781; [1969] 2 All ER 651. 4. Peruvian Guano Co (1883) 23 Ch D 225 at 234.

More recently, in Bank of Tokyo Ltd v Karoon [66] , Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co , if "complete relief" [67] is available in the local proceedings.

[1987] AC 45 at 60. 2. Carron Iron Co (1885) 5 HLC 416 at 437 [10 ER 961 at 970].

Given that, in England, the power to grant injunctions has for many years been conferred by statute [68] , it is not surprising that the cases decided in that country in recent years do not make a clear distinction between injunctions granted in exercise of the inherent power and those granted in the exercise of equitable jurisdiction. However, the older cases referred to in Société Aerospatiale make it abundantly clear that the power to stay foreign proceedings which are vexatious or oppressive, in the sense already described, is a power which derives from equity.

See South Carolina Co v Assurantie NV [1987] AC 24 at 39-40; Supreme Court Act 1981 Eng, s 37(1). Note that s 37(1) of the Supreme Court Act 1981 Eng is similar to provisions in earlier English legislation, namely, s 45(1) of the Supreme Court of Judicature (Consolidation) Act 1925 Eng and s 25(8) of the Supreme Court of Judicature Act 1873 Eng.

Because the power to grant injunctions in respect of foreign proceedings which are vexatious or oppressive, in the sense described, derives from equity, it is not to be confined to the examples found in the decided cases. Rather, it is a power the limits of which are determined by the dictates of equity and good conscience. Thus, for example, it may be that the bringing of proceedings with respect to one claim is properly to be seen, in the circumstances of the case, as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct such that it would be unconscionable for that other claim to be pursued [69] or for proceedings to be commenced in another jurisdiction. In cases of that kind an injunction may issue in restraint of the subsequent proceedings.

cf Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 noting, however, that the judgments in that case do not proceed by reference to the ordinary principles of estoppel. See also British Airways Board v Laker Airways Ltd [1985] AC 58 at 81.

It may be that some of the older cases concerned with vexation and oppression, in the sense in which those terms are understood in equity, are properly to be understood as grounded in principles of estoppel. Whether or not that is so, the equitable power to grant injunctions in restraint of litigation exists to serve equity and good conscience. It is not a power which involves a determination that proceedings instituted in a foreign court are vexatious or oppressive in the sense that they are an abuse of that court's processes or, even, in the sense that they should be stayed by the foreign court on forum non conveniens grounds.

The US proceedings are not vexatious or oppressive according to the principles of equity

It is to be remembered that CSR and CSR America have instituted but one set of proceedings, namely, the US proceedings. Neither principle nor authority supports the view that the institution of foreign proceedings is, of itself, vexation or oppression according to the principles of equity. Similarly, neither principle nor authority supports the view that foreign proceedings become vexatious or oppressive in accordance with those principles in the event that the party against whom they are brought later commences proceedings with respect to the same subject matter in this country.

Moreover, the fact that CSR seeks treble damages under the Sherman Act in the US proceedings - relief which is not available in the NSW proceedings or, at least, not shown to be available in those proceedings - is sufficient to take the US proceedings outside that category of case in which the co-existence of foreign proceedings is properly to be viewed as vexation or oppression for the purposes of equity.

It follows that there is no proper basis for viewing the US proceedings as vexatious or oppressive, in the sense that those terms are used in the equitable jurisdiction, and that Rolfe J erred in holding that, on that issue, there was a serious question to be tried. If the interlocutory anti-suit injunctions are to stand, it can only be by reference to the respondents' contention that CSR's letters of 17 March and 28 April 1992 constitute or evidence an agreement not to sue in respect of the American asbestos claims. However, the terms of the third paragraph of CSR's letter of 17 March do not indicate that that is clearly so. And as already pointed out, it seems that neither CSR America nor Cigna Corporation are parties to that agreement.

Practice with respect to interlocutory anti-suit injunctions

The cases concerned with injunctions in restraint of proceedings in foreign courts recognise that, although an injunction of that kind operates in personam, it nevertheless interferes with the processes of the foreign court and may well be perceived as a breach of comity by that court [70] . Comity, relevantly, was explained by the Supreme Court of the United States in Hilton v Guyot [71] in the following terms:

"Comity", in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws. For this reason, the cases also emphasise that the power to grant injunctions in restraint of foreign proceedings should be exercised with caution. And that is so whether the injunction is sought in the exercise of the inherent or equitable jurisdiction. 1. See, eg, British Airways Board v Laker Airways Ltd [1985] AC 58 at 95; Compagnie des Bauxites de Guinea v Insurance Co of North America (1981) 651 F 2d 877 at 887 (affirmed on other grounds (1982) 456 US 694); Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 892; In re Maxwell Communications Corporation Plc [No 2] [1992] BCC 757 at 773. See also Hartley, Comity and the Use of Antisuit Injunctions in International Litigation, The American Journal of Comparative Law, vol 35 (1987) 487. 2. (1895) 159 US 113 at 163-164.

The appellants argue that, in the case of interlocutory anti-suit injunctions, caution is not enough. Instead, they contend that, as a general rule, an interlocutory anti-suit injunction should not be granted unless the applicant has moved for a stay or dismissal of the foreign proceedings. Their argument is based on the observation in Amchem Products Inc v Workers' Compensation Board [72] that "[i]n order to resort to [the] special remedy [of an interlocutory anti-suit injunction] 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" [73] . It should be noted that this was said by the Supreme Court of Canada in a context in which the defendants to an action commenced in Texas had sought unsuccessfully a stay from the Texas court on the grounds of forum non conveniens and then sought, as plaintiffs, an anti-suit injunction from the British Columbia court. There appears to have been no pending proceeding brought by the defendants in British Columbia for a negative declaration. The framework of that litigation thus differs from that in the present case.

[1993] 1 SCR 897; 102 DLR (4th) 96. 2. Amchem Products Inc [1993] 1 SCR 897 at 931; 102 DLR (4th) 96 at 118-119. See also observations to the same or similar effect in Bank of Tokyo Ltd v Karoon [1987] AC 45 at 65; Metall und Rohstoff AG v ACLI Metals (London) Ltd [1984] 1 Lloyd's Rep 598 at 613-614; Allstate Ltd v ANZ Banking Group Ltd [No 1] (1996) 64 FCR 1 at 25.

The different circumstances in which interlocutory injunctions may be granted in restraint of proceedings in a foreign court are such that they do not permit of a general rule of the kind for which the appellants contend. The proposed rule serves no purpose in cases where an injunction is sought to protect the integrity of the proceedings or the processes of the court concerned. Nor does it serve any purpose where foreign proceedings clearly constitute conduct entitling the applicant to equitable relief; for example, where the proceedings are a clear breach of contract.

There may be cases - for example, cases based on contentious or novel claims of unconscionable conduct - in which it is appropriate or desirable that an anti-suit injunction not be granted until an application has been made for a stay or dismissal of the foreign proceedings. However, that course is neither appropriate nor desirable if the application can be determined without that step being taken. And for reasons shortly to be stated, that step need not be taken with respect to the US proceedings in this case.

Relationship between interlocutory anti-suit injunctions and stay applications

It will generally be the case that, where an anti-suit injunction is sought in the exercise of equitable jurisdiction, the matters relied upon for the grant of the injunction will or can be raised as issues for determination in the foreign proceedings in respect of which the injunction is sought. Because that is so, an interlocutory anti-suit injunction is vastly different from other forms of interlocutory relief.

Ordinarily, an interlocutory injunction preserves the subject matter of a proceeding pending its final adjudication. Where, however, the issue is whether a matter should be litigated in the courts of one country or of another and application is made for an interlocutory anti-suit injunction by reference to considerations which will or may fall for determination in proceedings in that other country, the injunction, if granted, operates with the consequence that the matter in question is heard and determined in the court granting the injunction. Certainly that is so with respect to that aspect of the matter advanced in support of the injunction. Thus, an interlocutory anti-suit injunction is effectively a final determination as to where the matter or some particular aspect of it is to be litigated.

In a case in which an anti-suit injunction is sought on equitable grounds, the central question is whether the court to which application is made or some other court should hear and determine the matter in issue or, at least, that aspect of it involved in the application for injunction. And where the courts concerned are, respectively, an Australian court and a court of another country, there is involved in that question the further question whether the Australian court is an appropriate forum, in the Voth sense of it not being clearly inappropriate, for the determination of that matter. The fact that there is that further question, the preclusive nature of an interlocutory anti-suit injunction and the importance of comity combine to require an Australian court to consider whether it is appropriate, in the sense that it is not clearly inappropriate, for it to determine the matter in issue before granting an anti-suit injunction.

If the Australian court decides that it is clearly an inappropriate forum, that will be the end of its involvement and the occasion for considering whether to grant an anti-suit injunction or other relief will not arise. If the Australian court reaches the opposite conclusion, namely, that it is not a clearly inappropriate forum, then it must go on to determine whether to require the applicant to seek a stay or dismissal of the foreign proceedings or to grant an anti-suit injunction. As we have indicated, this sequence was not followed by the Supreme Court in the present litigation.

It is theoretically possible that there will be cases in which the matter urged in support of the grant of an anti-suit injunction in the exercise of equitable jurisdiction cannot be raised in the foreign proceedings in respect of which the injunction is sought. Should a case of that kind occur, it would be our view that comity requires that, even in a case of that kind, an Australian court consider whether it is an appropriate forum for the resolution of the matter urged in support of the injunction before making interlocutory orders.

As already indicated, the considerations to which reference has been made, namely, comity and the preclusive effect of an interlocutory anti-suit injunction, require that an injunction not be granted by an Australian court in the exercise of equitable jurisdiction if it is a clearly inappropriate forum. If it is not a clearly inappropriate forum, it may be expedient to require the applicant to seek a stay or dismissal of the foreign proceedings. However, if that step is not considered expedient or desirable or if it is taken without success, the court must proceed in accordance with the practice which ordinarily applies with respect to interlocutory relief. In other words, it must then determine whether there is a serious issue to be tried and, if so, whether the balance of convenience favours the grant of an interlocutory injunction.

In cases where anti-suit injunctions are sought to protect the proceedings or processes of a court, no question arises whether that court is an appropriate forum for the resolution of that issue: it is the only court with any interest in the matter. Subject to that consideration, the appellants are correct in their contention that, before granting an interlocutory anti-suit injunction, an Australian court should consider whether it is an appropriate forum, in the Voth sense, for the resolution of the matter in issue or, if there be a difference, the matter advanced in support of the injunction.

A reading of the transcript of argument in the Court of Appeal suggests that that Court may not have appreciated the final or preclusive nature of an interlocutory anti-suit injunction. Whether or not that is so, the importance of the issues involved and the fact that, as Rolfe J was exercising equitable jurisdiction, he should have considered whether New South Wales was a clearly inappropriate forum before granting anti-suit injunctions dictate the conclusion that the Court of Appeal should have granted leave to appeal with respect to the decision and orders granting the injunctions.

Ordinarily, the conclusion that the Court of Appeal should have granted leave to appeal with respect to the anti-suit injunctions would result in the appeals being allowed and the matter being remitted to the Supreme Court for it to consider whether New South Wales is an appropriate forum. However, that is the precise question raised with respect to the stay applications and, thus, must be determined by this Court. And for reasons soon to be stated, it is convenient for this Court to consider not merely whether Rolfe J erred in his approach to that question but, also, whether the NSW proceedings should now be stayed.

Forum non conveniens considerations when there are proceedings pending here and abroad

It was held by this Court in Henry v Henry [74] that, where proceedings are pending both in an Australian court and in a court of another country, it is necessary for the Australian court to have regard to the existence of the foreign proceedings in determining whether to stay its own proceedings on forum non conveniens grounds. In reaching that conclusion, the majority pointed out that, although it is not necessarily vexatious or oppressive to bring proceedings in different countries, "the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words" [75] .

(1996) 185 CLR 571. 2. Henry v Henry (1996) 185 CLR 571 at 591.

The situation involved in the present case is not precisely the same as that considered in Henry v Henry. In that case, the parties were identical and the same subject matter, namely, the parties' marital relationship, was involved in both proceedings. There is not the same correspondence of subject matter in this case. As already indicated, the NSW proceedings, but not the US proceedings, extend to the Australian asbestos claims as well as the American asbestos claims. More importantly, the US proceedings, but not the NSW proceedings, involve claims for damages against Cigna Corporation. And the parties accept that one of those claims, namely, the claim for statutory treble damages under the Sherman Act, cannot be pursued in the NSW proceedings.

If the question whether New South Wales is a clearly inappropriate forum were to be answered solely by reference to the issues involved in the NSW proceedings, there would be strong considerations pointing in favour of the view that it is not. In the first place, it would seem that the questions whether CSR's letters of 17 March and 28 April 1992 constitute or evidence an agreement not to sue in respect of the 1991 claims and, if not, whether CSR is entitled to indemnity under the policies issued by the respondents are governed by Australian law [76] . In this regard, it is sufficient to note that the letters were sent and received and the relevant insurance policies issued in Australia without, in either case, any stipulation that the resulting relationship was to be governed by the law of any other place. Moreover, the main protagonists, CSR and Cigna Australia, are Australian companies which carry on business in this country and all the other parties, save perhaps CSR America [77] , are amenable to or have submitted to the jurisdiction of the Supreme Court of New South Wales. In these circumstances, little, if any, significance would attach to the fact that the insurance policies were issued for CSR's operations worldwide, that some of the lead and excess layer insurers carry on business in other countries and that there is a question as to the respondents' liability with respect to the American asbestos claims.

As to the significance of the law to be applied, see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 556, referring to what was said in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 266, per Gaudron J. 2. It is not clear whether CSR America is amenable to the jurisdiction of the Supreme Court of New South Wales and, if not, whether it has submitted to it for any purpose other than to seek a stay of proceedings.

Notwithstanding that they involve issues as to CSR's entitlement to indemnity which, presumably, will be determined in accordance with Australian law, the US proceedings are in a quite different position. They involve the further issue whether Cigna Corporation is liable for breach of the Sherman Act. Given that it is apparently common ground that that claim cannot be pursued in New South Wales, it can readily be said that New South Wales is a clearly inappropriate forum for the litigation of the issues raised in the US proceedings.

The respondents argued that too much attention should not be paid to the availability of treble damages under the Sherman Act. Their contention was that any claim under that Act depended upon the existence of a contract, induced by coercion or duress, and that relief in such circumstances was available in Australia under the Trade Practices Act 1974 Cth and by actions for economic torts. Even if they are correct in this contention, the proceedings brought in the United States District Court, in addition to alleging torts of an economic nature, rely expressly upon s1 of the Sherman Act and seek the "statutory damages" available under that Act. That entitlement is not available in this country.

In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are "productive of serious and unjustified trouble and harassment" or "seriously and unfairly burdensome, prejudicial or damaging" [78] .

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247, per Deane J, whose test was subsequently adopted by the majority in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

At first instance, Rolfe J gave little, if any, weight to the fact that the US proceedings involve an issue which, apparently, cannot be litigated in New South Wales. Moreover, his Honour appears only to have considered whether New South Wales is an appropriate forum for the litigation of the issues involved in the NSW proceedings and not whether, having regard to the controversy as a whole, the NSW proceedings are vexatious or oppressive, in the Voth sense of those terms. In these respects, his Honour was in error.

Given the errors to which reference has just been made and given, also, the importance of the issues involved, the Court of Appeal erred in refusing leave to appeal with respect to the stay applications. That conclusion is sufficient to dispose of these appeals. However, as the cases which have been decided in this country with respect to forum non conveniens have not been concerned with circumstances of the kind involved in these appeals, it is preferable that the question whether the NSW proceedings should now be stayed be decided by this Court and not remitted to the Supreme Court of New South Wales.

There can be no doubt that the central purpose of the respondents in instituting the NSW proceedings was to prevent the continuation of the US proceedings. Those proceedings, so far as appears from the materials before this Court, were regularly instituted by the appellants in pursuit of remedies available to them under the law of the United States, not all of which could or can be pursued in New South Wales. In particular, it would seem that CSR could not pursue any remedy against Cigna Corporation in New South Wales unless it submitted to the jurisdiction, which only occurred on the commencement of the NSW proceedings. And as has already been pointed out, these appeals have been conducted on the basis that, even though Cigna Corporation has now submitted to the jurisdiction of the Supreme Court of New South Wales, CSR cannot pursue its claim for statutory damages under the Sherman Act in the NSW proceedings.

Proceedings which are brought for the dominant purpose of preventing another party from pursuing remedies available in the courts of another country and not available in this country are "seriously and unfairly prejudicial [and] damaging". They are, thus, oppressive in the Voth sense of that word.

It was suggested in argument that the purpose of Cigna Australia and its co-insurers in bringing the NSW proceedings was to secure a negative declaration to the effect that they are not liable to indemnify the appellants in respect of the Australian asbestos claims. However, given that there is nothing to suggest that CSR maintains that it is entitled to be indemnified in respect of those claims and given, also, that the terms of its letter of 17 March 1992 suggest that those claims may stand in a somewhat different position from the American asbestos claims, the claim for a negative declaration has the appearance of one brought in the hope of concealing that the dominant purpose of the NSW proceedings is to prevent CSR from pursuing its claim for statutory damages for breach of the Sherman Act in the US proceedings.

Even if the claim for a negative declaration in respect of the Australian asbestos claims is a claim in respect of a matter genuinely in dispute, it is not, in our view, a matter which is or can be decisive in this case. The claim that Cigna Australia and its co-insurers are not liable to indemnify CSR in respect of the Australian asbestos claims is but an aspect of a larger controversy in which CSR claims that it is entitled to a remedy in the US proceedings which is not available to it here. Conversely, there is nothing to suggest that the relief which the respondents seek in the NSW proceedings, including a declaration that Cigna Australia and its co-insurers are not liable to indemnify CSR in respect of the Australian asbestos claims, is not available to them by way of cross-claim in the US proceedings. In these circumstances, to allow the fact that a negative declaration is sought in the NSW proceedings with respect to the Australian asbestos claims to have a decisive influence would, in colloquial terms, be to allow the tail to wag the dog.

The facts indicate that the respondents' dominant purpose in instituting the NSW proceedings was to prevent the appellants from pursuing remedies available in the US proceedings but not in the NSW proceedings. It follows that the NSW proceedings are oppressive, in the Voth sense, and should be stayed. The appropriate course is for them to be stayed pending the outcome of the US proceedings with liberty to the parties to apply on seven days notice if circumstances so require.

The appeals should be allowed with costs. The orders of the Court of Appeal should be set aside. In lieu thereof, the applications for leave to appeal to that Court should be granted, appeals to that Court allowed, the orders of Rolfe J set aside and, in lieu of those orders, it should be ordered that the applications for anti-suit injunctions be dismissed and the NSW proceedings be stayed pending the outcome of the US proceedings. The parties should have liberty to apply to the Supreme Court to lift or vary the stay on seven days notice. The appellants should have their costs of the proceedings before Rolfe J and in the Court of Appeal [79] .

Schedules A and B to the judgment have been omitted from this report. Brennan CJ.

What I am about to say represents the judgment of the members of the Court other than the Chief Justice.

The first and second respondents seek to vacate the judgment handed down and the orders made by the Court on 5 August 1997. They do so on the ground that they were afforded no opportunity of being heard on the question of the dominant or central purpose of those respondents in instituting proceedings in New South Wales. The complaint of the first and second respondents focuses on two passages in the judgment of the majority [80] . I read those two passages. The first is:

There can be no doubt that the central purpose of the respondents in instituting the NSW proceedings was to prevent the continuation of the US proceedings. The second passage reads: The facts indicate that the respondents' dominant purpose in instituting the NSW proceedings was to prevent the appellants from pursuing remedies available in the US proceedings but not in the NSW proceedings. It follows that the NSW proceedings are oppressive, in the Voth sense, and should be stayed. In the view of the majority of the Court, the purpose of the institution of the proceedings in New South Wales, whether it be described as central or dominant, was a live issue in the appeal to this Court as appears from the material to which the attention of the Court was directed in argument, both from the courts below and in connection with the proceedings in this Court. In those circumstances it cannot be said that the first and second respondents were deprived of the opportunity to address the question identified in the passages of the judgment of the majority to which reference has been made. It follows that the motion should be refused with costs, but not on an indemnity basis. 1. (1997) 189 CLR 345 at 401, 402. Brennan CJ.

As my dissenting judgment in the case reveals, I attribute to the respective proceedings a character different from the character attributed to them by the majority. Approaching the question raised by the notice of motion from a different viewpoint, I see greater force in the respondents' submissions than that found by the majority. I have not come to a final view on the question raised by the motion but there is no purpose in declining to give effect immediately to the opinion of the majority. The result of the motion turns solely on the conduct of the case. In those circumstances the order of the Court is that the motion be dismissed with costs, but not on an indemnity basis.

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ Brennan CJ Toohey, Gaudron, McHugh, Gummow and Kirby JJ CSR Ltd v Cigna Insurance Australia Ltd (FC 97/028) [1997] HCA 33

Société Aerospatiale v Lee Kui Jak [1987] AC 871 at 895-896. 2. Société Aerospatiale v Lee Kui Jak [1987] AC 871 at 893, 896. 3. Société Aerospatiale v Lee Kui Jak [1987] AC 871 at 892.

The approach has to be cautious because an injunction restraining a person within the jurisdiction of the English court from pursuing a remedy in a foreign court where, if he proves the necessary facts, he has a cause of action is, however disguised and indirect, an interference with the process of justice in that foreign court. Caution is needed even in a "forum conveniens" case, ie, a case in which a remedy is available in the English as well as in the foreign court. Caution is clearly very necessary where there is no remedy in the English court in respect of the cause of action which, if the facts be proved, is recognised and enforceable by the foreign court. 1. Castanho v Brown & Root [1981] AC 557 at 573, per Lord Scarman. 2. [1985] AC 58 at 95. See also Monticelli v McTiernan (1995) 120 FLR 82 at 102.

Count VI, par 57 of the complaint in the United States District Court. 2. Count III, par 46 of the complaint in the United States District Court. 3. See British Airways Board v Laker Airways Ltd [1985] AC 58 at 79-80.

[1986] QB 689. 2. [1985] AC 58. 3. [1986] QB 689 at 714-715.

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Cases Cited (24)