[2025] TASSC 23

Appeal and New Trial - Procedure - Powers of court - Generally - Where the matter is also being heard in a foreign jurisdiction - Where substantially same claim - Judge at first instance ordered permanent stay on Tasmanian proceedings - Judge at first instance found this Court an inappropriate forum for the dispute - Proceedings vexatious, oppressive and egregious example of forum shopping - Reliance on court's inherent jurisdiction and legislation to prevent abuse of processes - A matter of judicial discretion - Impact of case management - Court should not disturb the decision of an Associate Judge unless clearly attended by error - Ground dismissed.

Supreme Court Rules 2000 (Tas)

Supreme Court Civil Procedure Act 1932 (Tas)

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575

Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Spiliada Maritime Corporation v Cansulex Limited [1986] UKHL 10; [1987] AC 460

UBS AG v Tyne [2018] HCA 45, 265 CLR 77

Voth v Manildra Flour Mills [1990] HCA 55; (1990) 171 CLR 538

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Appeal and New Trial - Interference with discretion of court below - Admission of evidence - Matter had two hearing dates in court below - Second hearing date was to determine whether stay orders made at first hearing date were temporary or permanent - Affidavit made available after first hearing - Appellants submit affidavit would influence decision made at second hearing - Judge at first instance refused to admit any further evidence at second hearing - Determined affidavit would have made no difference to outcome of Tasmanian proceedings - Decision to bring proceedings in foreign jurisdiction a deliberate forensic choice - Ground dismissed.

Competition and Consumer Act 2010 (Cth)

Supreme Court Civil Procedure Act 1932 (Tas)

Poulton v Conrad [2025] TASFC 7

Judgment Number: [2026] TASCCA 3

GARD MARINE & ENERGY LTD, MOLSLINJEN A/S, ADRIATIC FAST FERRIES LIMITED, PROVENTUS CAPITAL PARTNERS III AB (PUBL) v EVERLLENCE SE

GARD MARINE & ENERGY LTD, MOLSLINJEN A/S, ADRIATIC FAST FERRIES LIMITED, PROVENTUS CAPITAL PARTNERS III AB (PUBL) v EVERLLENCE SE

1. The appellants commenced proceedings against the respondent in this Court by endorsed writ filed 28 June 2023 in action 1655 of 2023 ("Tasmanian proceedings"). On 31 July 2021, almost two years earlier, the first appellant, on behalf of itself and the other appellants, had served a statement of claim on the respondent commencing proceedings in the District Court of Augsburg, Germany ("Augsburg proceedings").
2. Both sets of proceedings sought relief as a result of the failure of connecting rods, manufactured by the respondent, fitted in engines made for a catamaran fast ferry "MV Express 2" a vessel operated and registered in Denmark. The respondent manufactured the four main engines of the vessel in 2012 and 2013, including the connecting rods in all cylinders, which the respondent supplied to the builder, Incat Tasmania Pty Ltd of Hobart, Tasmania in Australia, for installation in the vessel.
3. The first appellant, Gard Marine and Energy Ltd of Arendal Norway, is the insurer for the vessel's hull and machinery and loss of hire. The second appellant, Molslinjen AS Færgevej 7A, DK 8000 Aarhus C in Denmark, is the operator of the vessel and registered in the Danish register of ships as a "bareboat charterer" of the vessel operating a ferry service in the Baltic Sea from Denmark. The third appellant is the owner of MV Express 2 and is based in the Isle of Man. The fourth appellant is the mortgagee of MV Express 2 and also insured the vessel. It is based in Stockholm, Sweden. It is patent that whilst there is a Tasmanian context to the dispute over the failure of the vessel's connecting rods, the parties are exclusively based in Europe. The MV Express 2 was operating in the Baltic Sea on 28 June 2017 and 8 February 2018 when the failures of the connecting rods occurred.
4. The Tasmanian proceedings by the appellants (plaintiffs), including by the first appellant on behalf of the second, third and fourth appellants, asserted claims against the respondent (defendant) for misleading and deceptive conduct under the Australian Consumer Law ("ACL") and breach of a duty of care said to be owed by the respondent to the second and third appellants. The relief claimed included damages pursuant to s 236 of the ACL and damages for breach of the alleged duty of care. Similarly, the Augsburg proceedings invoked Australian law, including the same legal bases for relief as deployed in the Tasmanian proceedings.
5. In its defence in the Augsburg proceedings, the respondent asserted that the appellants' claims in that jurisdiction were required to be arbitrated and could not be litigated. This led to a second proceeding in Germany commenced by the respondent in Munich on 25 September 2023 in which it sought a declaration that the appellants' claims in the Augsburg proceedings could only be pursued by way of arbitration.
6. The Augsburg proceedings were stayed and the application removed to the Higher Regional Court of Berlin ("Berlin proceedings"). The Berlin proceedings were determined on 20 March 2025. The record of those proceedings provided to Daly AsJ was AI generated and the Associate Judge determined that the record produced should be entirely ignored. Otherwise, there was a dispute between the parties as to what had been decided in the Berlin proceedings and their effect. It appears that there is an appeal from the decision of 20 March 2025 initiated by the first appellant on 16 April 2025, see the appellants' (plaintiffs') submissions dated 22 May 2025 at [5.1]. However, to the extent that observation relies on the Third Affidavit of James Henry Melvin, dated 13 May 2025, it is noted that affidavit was filed but not read (transcript of 24 July 2025 at pp 17-18) .
7. The respondent accepted that if it's contention in the Berlin proceedings that the appellants had to resolve the dispute by arbitration was rejected, then the court in the Augsburg proceedings did have jurisdiction to determine the claims in that litigation following resumption. That necessarily included the appellants claims invoking Australian law, albeit on the basis that those claims were prosecuted in the Augsburg proceedings in pursuit of rights assigned to the first appellant by the second, third and fourth appellants. Any claims brought by the first appellant in the Augsburg proceedings, being claims brought on its own behalf, appear to be based on rights subrogated under a policy or policies of insurance (see [22]-[23] below).

1. Daly AsJ ordered that the Tasmanian proceedings be permanently stayed.
2. The Associate Judge's decision was made in two parts. The first is set out in his written reasons dated 11 April 2025 (having heard the parties on 10 April 2025) ("Reasons 1"), after which the matter was adjourned so that the parties could be heard on the form of relief, ie whether the Court ordered a temporary or permanent stay (Reasons 1, [37]). The second part followed upon the Court hearing the parties (for that purpose) on 24 July 2025, after which Daly AsJ made his decision to permanently stay the Tasmanian proceedings and gave oral reasons on 24 July 2025 ("Reasons 2"). Formal orders giving effect to his decision were entered on 4 August 2025 ("Orders"). It is this composite decision which is the subject of this appeal. The ultimate hearing of 24 July 2025 should not be confused with the initial hearing over a year earlier on 22 July 2024.
3. The primary attack in the notice of appeal is on Reasons 2 (which were delivered orally and are set out in the transcript of 24 July 2025). I now set out the determinative passages from Reasons 2:

"... I accept the approach contained in the defendant's submissions, that in light of the findings by this Court as set out in my reasons of 11 April 2025, it's appropriate to permanently stay these proceedings. I accept that a temporary stay of proceedings will not cool the vexation or oppression which were the subject of the particular findings as summarised in paragraph 9 of the defendant's submissions filed on 16 May 2025. I also accept the defendant's submissions at paragraphs 11, 12 and 16 of its written submissions.

There is merit in the defendant's submission that, where vexation and oppression are found, the approach of the courts appears to be reasonably consistent that an order will be made that the proceedings be permanently stayed. I accept Ms Young's submission, however that - as is demonstrated at page 291 of Lockhart J's reasons in Sterling Pharmaceuticals, that a range of circumstances is to be considered in determining whether I should order a temporary or permanent stay or have taken into account all of those facts and circumstances referred to in my reasons as being applicable to the disposition of the defendant's application.

I have had regard to the submissions made by the plaintiffs in support of a temporary stay including the written submissions filed on 22 May 2025, particularly the first two reasons at paragraphs 3 to 13 inclusive.

The third was abandoned on the basis of the Court's rejection of the proposition that the parties could present further evidence at this stage. There was little more to say than to refer to the findings already made in relation to the plaintiff's submissions as to whether or not to grant a permanent or temporary stay. My view is that it is appropriate to order a permanent stay of the Tasmanian proceedings. The proceedings in matter 1655 of 2023 in the Tasmanian Supreme Court are permanently stayed ...".

1. In order to appreciate the nature of the composite decision below, I now reproduce [9]-[12] and [16] of the respondent's (defendant's) submissions, dated 13 May 2025 (filed on 16 May 2025, references to reasons in those submissions refer to Reasons 1):

"[9] The Court accepted the defendant's submissions that the oppressive or vexatious features of this proceeding include:

(a) the fact that the first plaintiff (on behalf of all plaintiffs) elected to commence the Augsburg Proceedings in 2021, almost two years prior to commencing the Tasmanian Proceedings, and on the specific basis that Australian law applied (Reasons at [26], [31]);

(b) the expected duplication of costs and resources in circumstances where significant costs have already been incurred in the course of several rounds of "elaborate and detailed" pleadings undertaken in the Augsburg Court, and in relation to the defendant's defence of the German proceedings more generally (Reasons at [25], [34]);

(c) the further costs involved in defending proceedings in Tasmania that would not arise in Germany, including evidence from European witnesses (Reasons at [12]); and

(d) the defendant's objection to the jurisdiction of the Augsburg court is based on the application of arbitration clauses (Reasons at [22]). That issue was the subject of the Berlin Proceedings. It is inevitable that an identical issue would arise, leading to further duplication of costs, if the Tasmanian Proceedings are permitted to continue (Reasons at [20(iv)].

[10] A temporary stay to allow the final determination of the German proceedings, after which time there can be an assessment of any viability of the local proceedings (Reasons [37]) will not cure this vexation or oppression.

[11] First, if a temporary stay is ordered until the 'resolution' of the Augsburg Proceedings, it is inevitable that the first plaintiff will resolve the Augsburg Proceedings by discontinuing them. The plaintiffs have said that is what they want to do.2 ... [fn 2 See, eg, the undertaking set out at Reasons [32]] ... This would lead to precisely the duplication of costs and issues in this proceeding that gives rise to the relevant vexation - the defendant would first raise the arbitration clause (duplicating the Berlin Proceedings), and if that failed would have to defend the proceeding on its merits (duplicating the Augsburg Proceedings).

[12] Second, a temporary stay could not be crafted to avoid this outcome. It would not be feasible for the Court to order - and supervise compliance with - a mandatory injunction compelling the first plaintiff to pursue all aspects of the Augsburg Proceeding, and any arbitration, to their completion. There is no sensible way of ensuring that the issues raised in the Augsburg Proceedings are "resolved" in a full and final way.

[16] In 2021, the plaintiffs made a decision about where to commence proceedings. They commenced them in Germany, pleading Australian (and other) law. The defendant met them on that territory. Significant time, costs and resources have been spent on that basis. The plaintiffs made their election, and the consequence is that this Court is a clearly inappropriate forum. The only just means of giving effect to that consequence, and to prevent the potential continuation of proceedings that are vexatious or oppressive, is to order a permanent stay of proceedings."

1. In respect of the Associate Judge's reference to the appellants' (plaintiffs') submissions dated 22 May 2025, it is noted that the three matters arising at paragraphs [3]-[13] of those submissions may be summarised as:

"(i) the grant of a permanent stay would be premature as the power is to be exercised with great care and caution and if a permanent stay was granted it would be in circumstances where the full facts were not known about the proceedings in Germany given the first plaintiff has appealed (16 April 2025) the decision of the Berlin Court and the Augsburg proceedings are continuing to evolve;

(ii) weighing the competing prejudice to the parties supports the grant of a temporary, not a permanent stay, because the plaintiffs (appellants) would be permanently foreclosed from invoking the jurisdiction of this Court in circumstances where a viable cause of action exists that is not disposed of by the Germany proceedings and where were a temporary stay granted the defendant (respondent) would have to take no steps or incur any costs in respect of the Tasmanian proceedings, and

1. The Associate Judge noted in Reasons 2 that of these three matters, the third was abandoned because he would not permit the parties to adduce any further evidence on the hearing on 24 July 2025. For the reasons given below, the reading of the Sixth Maxwell Affidavit would not have assisted the appellants in any event (see [39]-[52] below).
2. The basis for the decision to grant a permanent stay were the findings made by Daly AsJ in Reasons 1, and the findings relied upon are highlighted in the passages at [9] of the respondent's submissions, dated 13 May 2025, reproduced at [11] above.
3. In addition, Daly AsJ concluded (Reasons 1, [34]) that the appellants' forensic choices in commencing and seeking to conduct the Tasmanian proceedings having earlier instituted the Augsburg proceedings with regard to the same dispute, and involving the same parties were oppressive, vexatious, and "an egregious example of forum shopping". His Honour also found (Reasons 1, [35] and [37]) that "the Supreme Court of Tasmania is a clearly inappropriate forum for the determination of the disputes between the parties". He agreed (Reasons 1, [34]) with the respondent's submission below that the Tasmanian proceedings, "entirely overlaps the Augsburg proceedings which have been on foot for years". Further, referring to the Augsburg proceedings, that "there is no circumstance relevant to any juridical advantage of the Tasmanian proceedings that should outweigh or mitigate the vexation or oppression caused by those proceedings". It was to give effect to those reasons that the Associate Judge gave the parties the opportunity to be heard on the form of final relief.

1. The first ground of appeal contended that Daly AsJ, in ordering a permanent stay relied upon a concession by the appellants that the claims made in the Tasmanian proceedings were made on the same legal basis as the claims made in the Augsburg proceedings when no such concession had been made by the appellants, or (in any event) that there could be no certainty that the Augsburg proceedings would resolve the matters the subject of the Tasmanian proceedings. Whilst the appellants made no direct attack on the Associate Judge's findings as to oppression, vexation and that the Tasmanian proceedings were "an egregious example of forum shopping" (Reasons 1 at [34]), it was contended that if the appeal was allowed those findings must fall.
2. The second ground of appeal engaged the Associate Judge's refusal to admit any evidence upon the hearing of 24 July 2025, where the appellants contended that the affidavit of Michael James Maxwell, dated 22 May 2025 ("Sixth Maxwell Affidavit"), was fresh evidence which should have been read and accepted by the Court as relevant to whether the Augsburg proceedings would resolve the matters the subject of the Tasmanian proceedings.

1. The Associate Judge found that there was no issue taken by the parties in respect of the following: (i) "It is not in dispute that the claims made in the principal proceedings in this Court are the same as those made in the proceedings in Germany." (Reasons 1 [9]); (ii) "The plaintiffs accept that the subject matter of the Tasmanian and Augsburg proceedings are identical: see the plaintiffs' submissions filed 16 July 2024, par 21. The plaintiffs also accept that in both the principal proceedings in this Court and in the Augsburg proceedings, they advance their claims on the same legal basis" (Reasons 1 [12]).
2. It is noted that the reference to phrases such as "proceedings are identical" or "the same legal basis" may not involve reference to the capacity in which parties bring their claim (ie whether on the basis of assigned rights or otherwise by subrogation), but rather by reference to the legal principles upon which relief is sought or other integers, their meaning is a matter of context. Also, whether proceedings are "identical", "brought on the same legal basis" or not, they may still be directed at substantially the same claim (see [70] et seq below).
3. To provide some context the appellants (plaintiffs) at [4] of their submissions dated and filed 24 May 2024, described the Augsburg proceedings in the following terms:

"In the Augsburg proceedings, the plaintiffs assert that Australian law is applicable to the claim because the four main engines manufactured by the defendants and alleged to contain faulty connecting rods were delivered by the defendant to Incat's shipyard in Tasmania, installation of the engines into the Vessel also took place there, and the Vessel was placed on the market in Tasmania. Liability under Australian law is pleaded to arise under tort, and also under the provisions of the Australian Consumer Law in conjunction with the Competition and Consumer Act 2010 (Cth)." (Footnotes omitted.)

1. Ground 1(a) must be dismissed because there was no express concession relied upon by the Associate Judge. He relied upon the relevant integers arising from the factual material and submissions before him, matters which he brought to account in the necessary calculus to determine whether a permanent stay should be ordered, and which are discussed below. Many of the integers upon which he relied and his treatment of them remain unchallenged. The relevant findings are made in Reasons 1, albeit Daly AsJ adopted a summary of those findings set out at [9(a)]-[9(d)] of the respondent's (defendant's) submissions dated 13 May 2025, reproduced at [11] above. Essentially the imposition of a permanent stay rested on Daly AsJ's determination that a temporary stay would not cure the vexation and oppression arising as a result of those matters.
2. In the alternative to ground 1(a), the appellants contended by ground 1(b) that "there could be no certainty that the German proceedings would resolve the matters the subject of the Tasmanian proceedings". The requisite test for a permanent stay engages parallel proceedings that engage substantially the same claim. There is no need to establish that one set of proceedings will resolve every matter that might be pursued in parallel proceedings. In this instance the material that the appellants seek to reply upon, being annexures "MJM-66" and "MJM-67" to the Sixth Maxwell Affidavit, being submissions made by their opponents to the Berlin and Augsburg courts respectively, suggest that in regard to the first appellant's Augsburg claim the third and fourth appellants have suffered no damage. Further, the decision by the Berlin court is that any claim on behalf of the second appellant is subject to arbitration, an issue which would arise in any proceedings between the parties (in any jurisdiction) as a result of damage to the connecting rods. The basis of the first appellant's claim on its own behalf in Augsburg is set out in the translation of the Augsburg statement of claim annexed to the affidavit of James Melvin, affirmed 24 May 2025 at "JM 1" - which affidavit was one of four affidavits read without objection at the hearing before the Associate Judge on 22 July 2024 (transcript 8-9) and confirms that it is brought by the first appellant in its capacity as the "hull insurer", ie by subrogation. Subrogation is a doctrine by which (A) becomes entitled to exercise the rights of (B). It applies to a variety of legal relationships that includes indemnity insurance. By subrogation (not assignment) an insurer (A) is entitled to exercise, in the name of the insured (B), any rights of the insured against third parties that relate to the subject matter of the contract of insurance, the exercise of which may reduce the loss of the insured.
3. It was put on appeal that the argument as to the lack of congruence between the Augsburg proceedings and the Tasmanian proceedings was made good by the affidavit of Michael James Maxwell, dated 22 May 2025 evidence sought to be led by the appellants on 24 July 2025. On 24 July 2025 the Associate Judge refused to accept evidence from either party (see transcript 24 July 2025 at 3-4 and 17).
4. For the reasons set out below at [39]-[52], had the Associate Judge admitted that affidavit into evidence, it would have made no difference. Further, this Court is not in a position, based on the material put before it, to speculate on the nature or effect of the Augsburg or Berlin proceedings. In the later regard, the material that may have been adduced had the Associate Judge admitted the Sixth Maxwell Affidavit does not assist the appellants. Ground 2 must be dismissed.

The question of leave to argue the issue of assigned rights as a point of difference

1. No express submission was put to the Associate Judge by the appellants on 11 April 2025 or 24 July 2025 that because the Augsburg proceedings were brought on the basis of rights assigned to the first appellant by the other three appellants, those proceedings, to the extent that they sought to agitate any cause of action based on s 236 of the Australian Consumer Law, were necessarily legally different to the Tasmanian proceedings. As is noted below it is hard to imagine how the first appellant, as the primary mover in the Augsburg proceedings, and as an insurer would be acting on any basis other than subrogated, rather than assigned, rights (see [52] below) but that is not a matter that was the subject of submission in the appeal. It is unclear in what sense the appellants seek to use the expression "assigned rights" when describing the Augsburg proceedings.
2. It is not for the Associate Judge, especially in a high traffic process court, to intuit what a party relies upon; matters must be expressly brought to his attention. No submission on this basis was made at the hearing on 24 July 2025 as a basis for admitting the Sixth Maxwell Affidavit and which was sought to be read by the appellants at that time (the subject of ground 2 of this appeal). Had the point been within the contemplation of the appellants at that hearing, that would have been the time to raise it on the basis it went to the form of the relief to be granted. It was not.
3. The basis for the Associate Judge's refusal to admit the Sixth Maxwell Affidavit was that he would not allow either party to admit further evidence because the purpose of the hearing was merely to determine the form of relief on the basis of the factual findings in Reasons 1, which he had delivered and would not allow the parties to re-open matters of fact.
4. It was conceded by Senior Counsel for the appellants in the course of the appeal that the proposition that the Augsburg and Tasmanian proceedings were different because the Augsburg proceedings only dealt with assigned rights was not directly raised before the Associate Judge. That being the case, the language employed by Daly AsJ in Reasons 1 and Reasons 2 should not be artificially construed by reference to a proposition that was not before him. The Associate Judge merely acted upon the manner in which the appellants chose to put and argue their case below.
5. When asked to identify where the point relied upon was put at its highest point in proceedings before the Associate Judge, Senior Counsel for the appellants nominated a submission by the respondent (not the appellants). That it was the other side that put the proposition at its highest below is evocative of the lack of the emphasis placed on the issue by the appellants.
6. I have previously considered the basis upon which litigants can seek to raise new points for argument on appeal in circumstances where a matter relied upon was not argued at first instance: Poulton v Conrad [2025] TASFC 7. This Court's power to grant leave to do so is found at s 47 of the Supreme Court Civil Procedure Act 1932, ie:

"On the hearing of any appeal a Full Court, if it is satisfied that no injustice will thereby be done, may allow any party to raise any point of law which was not raised at the trial, and may determine the appeal on any such point." (Italics added.)

1. Thus leave is required to raise that matter now. For my part, to the extent that leave is required, I would grant that leave. However, for the reasons that follow, the point does not assist the appellants.

Are the Augsburg and Tasmanian proceedings different and, if so, how?

1. The appellants, on appeal, contended that the Augsburg and Tasmanian proceedings were not the same because, to the extent the Augsburg proceedings embraced proceedings analogous to those brought in Tasmania under s 236 of the Australian Consumer Law, the Augsburg proceedings were brought on the basis of rights assigned by the second, third and fourth appellants to the first appellant, not actions brought on behalf of each appellant individually. It was submitted (appellants' written submissions on the appeal at [7]):

"In contrast the ... [Augsburg] ... proceedings are brought by the first appellant ... only, advancing claims for s 236 damages under the ACL, but which, at law, Gard Marine can only be doing on its own behalf and not on behalf of the other appellants."

1. When reference is made to the first appellant (an insurer) bringing proceedings on its own behalf it is assumed that any rights arising would be those of an insurer arising under a policy of insurance, ie by subrogation not assignment. If there is a distinction being drawn here by the appellants between the first appellant (Gard Marine) commencing proceedings on its own behalf pursuant to a policy of insurance as compared to "assigned rights", then that in turn suggests a distinction being drawn between rights subrogated under a policy of insurance and assigned rights. In any event, the terms of the endorsement in the Tasmanian proceedings contemplated claims on both bases, ie claims based on either assigned rights or proceedings brought on an individual basis, see the chapeau at paragraph [14] of the endorsement:

"For which breaches the plaintiffs claim, including by the first plaintiff on behalf of the second, third and fourth plaintiffs ...".

1. Further, the first appellant - whatever the procedural rules applicable in the Augsburg proceedings - must necessarily have brought proceedings on its own behalf in the Augsburg proceedings (being the primary litigant) as well as proceedings on the basis of assigned rights (rights assigned by the other appellants), and to that extent at least the first appellant's proceedings on its own behalf in Augsburg were necessarily overlapping any Tasmanian proceedings. Further, it is hard to imagine what claim that the first appellant could have which was not based on rights consequent, or reliant, upon the relevant insurance policy.
2. The decision to commence proceedings in Augsburg was a forensic decision by the appellants and the appellants are all jointly legally represented implying a unity of interest. That forensic choice was one of the matters upon which Daly AsJ relied, see [9(a)] of the respondent's (defendant's) submissions dated 13 May 2025. If the second, third and fourth appellants were unable to bring proceedings on their own behalf in respect of the claim for damages pursuant to s 236 of the ACL in the Augsburg proceedings, the manner in which they chose to proceed in Augsburg involved a deliberate forensic choice. It appears from the material in the Sixth Maxwell Affidavit (had it been read) that those choices may have been driven by the absence of any relevant damage suffered by the third and fourth defendants, and the issue whether the second appellant was precluded from pursuing such litigation by an arbitration clause.
3. In the absence of clarity in this regard it is simply not possible to measure any injustice or detriment that the appellants may suffer in the context of imposing a permanent stay. Whilst the respondent must bear the ultimate burden on its application for a permanent stay the appellants have an evidential burden as to any of the circumstances in the Augsburg or Berlin proceedings upon which they wish to rely.
4. The respondent in its submissions on this appeal (at [1]) observed, (emphases not reproduced), "On 11 April 2025, the Court handed down its reasons for judgment in this proceeding (Reasons) and invited the parties to make submissions on the form of final orders." That much may readily be accepted. There was no indication given by his Honour in Reasons 1 that submissions on those matters would include the right to adduce additional evidence other than to state that the parties would be heard on the form of orders to be made (Reasons 1, [37]).
5. Indeed, having made findings of fact all that was left were orders shaping the ultimate disposition. The Associate Judge established that neither party wished to re-open the factual issues before him before hearing the parties on 24 July 2025 (transcript 24 July 2025 at 17). There was no basis for the parties to assume that the right to be heard as to the form of remedy included a fiat to adduce additional evidence, albeit leave could always be sought. For example, there appears to have been an acceptance that the legal basis for the claims was the same, ie the causes of action to the extent that they evoked Australian law were based on the same principles, and that the proceedings were in respect of the same parties and the same dispute. It is in that light that the decision below is to be understood, see for example Reasons 1 at [9]:

"9 It is not in dispute that the claims made in the principal proceedings in this Court are the same as those made in the proceedings in Germany. To date, the dispute as outlined above has resulted in the commencement of three relevant sets of legal proceedings:

(i) The first proceedings were commenced by the first plaintiff on behalf of the other plaintiffs in July 2021 in Augsburg, Germany (the Augsburg proceedings).

(ii) The second proceedings were commenced by the defendant on 25 September 2023 in Munich and were then removed to the Higher Regional Court of Berlin, in which the defendant sought an (sic) declaratory relief that the plaintiffs' claims can only be validly pursued by way of arbitration (the Berlin proceedings).

(iii) The third proceedings were filed in this Court on 28 June 2023 but only notified to the defendant by the plaintiffs in late 2023 (the Tasmanian proceedings)."

Should evidence have been admitted at the hearing on 22 July 2025?

1. Had the Associate Judge entertained a submission as to the difference between the Augsburg and Tasmanian proceedings on the basis that the former involved only assigned rights (which was not directly advanced), and allowed the Sixth Maxwell Affidavit to be read, it would have made no difference to the outcome.
2. Mr Maxwell is a partner in HWF Australia and has the conduct of the Tasmanian proceedings on behalf of the appellants (plaintiffs). He deposes in the Sixth Maxwell Affidavit at [6] that he is instructed on behalf of the appellants in the Tasmanian proceedings by Mr Axel Salander of Salander Law, the appellants' solicitor in Germany. Here it is important to note that the appellants in this appeal are the "respondent" in the Berlin proceedings and are represented in those proceedings by Mr Salander. It is the respondent in this appeal that is the moving party in the Berlin proceedings represented by Lebuhn & Puchta.
3. The Sixth Maxwell Affidavit at [7] exhibit "MJM-66" is said to be a certified translation of the respondent in this appeal's submissions dated 28 November 2024, filed in the Berlin Court. Also exhibited is "MJM-67" is said to be a certified translation of the respondent to this appeal's application dated 24 March 2025, to lift the stay in the Augsburg proceedings. The purpose of exhibiting "MJM-66" and "MJM-67" to the Sixth Maxwell Affidavit appears to be the deposition by Mr Maxwell at [9] to the effect (here I note that the respondent in this appeal, the moving party in the Berlin proceedings, is referred to in this passage as the defendant because the affidavit was filed in the Tasmanian proceedings):

"I have been informed by Mr Salander, and verily believe to be true that:

(a) on 11 December 2024, the defendants filed submissions in the Berlin Court in which they stated that there was no original liability claim the subject of the legal dispute before the Regional Court of Augsburg and that the first plaintiff acts exclusively on the basis of assigned rights 'MJM-66' (see p 17 para 3);

(b) it was the defendant that applied to lift the stay in the Augsburg proceedings by application dated 24 March 2025; and

(c) in response to the defendant's application to lift the stay in the Augsburg proceedings the plaintiffs ...[appellants in this appeal, and respondent in the Berlin proceedings] ... have indicated that they will, in due course, make submissions on the allegation that they have not disclosed a cause of action with respect to the claims of the third and fourth plaintiffs once the appeal has been decided ... [Note: italics added, the reference to an appeal being an apparent reference to the appeal by the first appellant on 16 April 2025 from the decision of the Berlin Court referred to at [12(i)] above]."

1. The Sixth Maxwell Affidavit would have made no difference below because to the extent that the appellants seek to rely upon the nature of the Augsburg proceedings, they bear an evidential burden to establish the salient features of that process. However, the Sixth Maxwell Affidavit deposes to the submissions made by the respondent to this appeal (not the appellants) in the Berlin proceedings (through their lawyers Lebuhn & Puchta) as to the legal effect of the Augsburg proceedings. Other than to reveal the respondent's legal position, that takes the legal nature of the Augsburg proceedings no further. The statement that it was the respondent that applied to lift the stay in the Augsburg proceedings again does not go to the point of the submission upon which ground 1 of the appeal relies.
2. Exhibit "MJM-66" to the Sixth Maxwell Affidavit appears to be a submission by lawyers (Lebuhn & Puchta) for the respondent in this appeal to the Berlin Court. In "MJM-66" at p 17 at paragraph 3 there is a reference to the "Respondent" in the Berlin proceedings, which is a unitary reference to the four appellants in this appeal. That paragraph is ambiguous but suggests that the appellants in this appeal have only sought to agitate an original product liability claim under the ACL in the Augsburg proceedings from 28 November 2024 (see also [9(a)] in the body of the Sixth Maxwell Affidavit), and that the respondent in this appeal has made a submission in the Berlin proceedings that the "Respondent" (the appellants in this appeal) "acts exclusively on the basis of assigned rights."
3. First, these are merely submissions and need to be engaged on that basis. The value of such submissions, made by the respondents in the Berlin proceedings to establish the nature and effect of the Augsburg proceedings, may be doubted and they can do more than reveal the nature of the submissions made in one Court by another party about the nature of the Augsburg proceedings.
4. Second, in any event, the characterisation of the Augsburg proceedings by the respondent to this appeal suggests that there was no barrier to the appellants raising an ACL claim in those proceedings - whenever it was raised and on whoever's behalf it was raised, ie one or more of the four appellants.
5. Third, to the extent that the first appellant might be seeking relief under the ACL in the Augsburg proceedings (and that matter is unclear), it must be doing so in its own right as the moving party in those proceedings, and that such rights (as an insurer) would likely be subrogated under a relevant policy of insurance. Thus, the first appellant would not be acting solely on the basis of assigned rights in those proceedings. The nature of the claim made in the Augsburg proceedings, as between each of the appellants, is obfuscated by their choice to join in the Augsburg and Berlin proceedings as a unitary party with a community of interest.
6. Exhibit "MJM-67" also appears to be a submission, again by Lebuhn & Puchta, but to the Augsburg court on behalf of the respondent in this appeal. That document suggests that the decision in the Berlin proceedings in respect of the second appellant's assigned rights from Incat was to the effect that the matter must be arbitrated (see p 2 first quote). The further submission (also on p 2) was to the effect that the third and fourth appellants, on the appellants' complaint in the Augsburg proceedings, did not suffer any damage and there is an extract from the appellants' complaint to that effect. In the absence of any claimed damage by the third and fourth appellants it is hard to see what basis there would be for an award under s 236 of the ACL wherever that claim is brought.
7. The point which the appellants seek to rely upon is that claims under the ACL cannot be legally assigned, and thus cannot be pursued in the Augsburg proceedings and thus they would be denied access to those remedies if the parallel Tasmanian proceedings are permanently stayed.
8. However, to the extent that such remedies are pursued in the Augsburg proceeding they cannot be pursued by the second appellant if the dispute is found to be subject to arbitration, and cannot be pursued by any party not suffering any damage, ie the third and fourth appellants. To the extent they might be pursued by an insurer, such as the first appellant, one imagines they would be pursued under rights of subrogation not assignment. It is hard to see how the rights relied upon by the appellants in Augsburg could be pursued differently in any parallel Australian proceedings. Thus, whilst it is unclear how one party's submissions could be such as to raise any point to support the appellants' position with regard to the contention underlying ground 1, even were the premises therein accepted they do not assist the appellants on the question of a temporary versus permanent stay which was the only issue before the Associate Judge.
9. In respect of "MJM-68" which certifies the translation of the document from German to English, it is unclear to this Court whether the documents exhibited to the Sixth Maxwell Affidavit are AI generated. I have dealt with them, for argument's sake, as accurate translations. In any event, a closed source small language model, such as a translation programme, is likely to be more reliable than other specie of AI.
10. There would have been no additional evidence before the Court as to the nature of the Augsburg proceedings themselves as compared to the Tasmanian proceedings which was not to be derived from one party's legal submissions had the Sixth Maxwell Affidavit been read. With respect, that is of little assistance in seeking to better understand the context and rights of the parties to bring different specie of actions in the Augsburg court, being proceedings brought by four parties with a single primary litigant.
11. However, it seems clear that any of the appellants who have not suffered damage could not seek damages under s 236 of the ACL. Equally, an appellant bound to resolve a dispute through arbitration could not litigate a claim under s 236 of the ACL. The position of the first appellant in the absence of access to any relevant policy of insurance remains opaque.
12. In any event, whether any of the appellants could have brought proceedings in the Augsburg proceedings in their own right or pursuant to rights of subrogation, the decision to proceed as they did in the Augsburg proceedings was a deliberate forensic choice. It was also unclear whether proceeding on the basis of subrogated or assigned rights in the Augsburg proceedings (first and/or second appellants) would give the third and fourth appellants access to any relief awarded therein and on what basis? The submissions did not clarify the first appellant's position in the Augsburg proceedings. In other words it was entirely unclear what substantive difference the pursuit of relief through the mechanism of subrogated or assigned rights would make in the Augsburg proceedings as compared to the Tasmanian proceedings.

The nature of the proceedings and the role of the decision-maker

1. Turning back to general principles and the role of the Associate Judge in these type of proceedings. It is important that the nature of the decision below be considered in its context.
2. The significance of case management principles in high traffic process courts has been repeatedly recognised in the context of decisions concerning abuse of process, including when parties lose the opportunity to litigate in a particular court. In UBS AG v Tyne [2018] HCA 45, 265 CLR 77 Gordon J at 124, [125], observed:

"Over the last 20 years, there has been a 'culture shift' in the conduct of civil litigation. The legal system has faced, and continues to face, great challenges in providing appropriate mechanisms for the resolution of civil disputes. Cost and delay are long standing challenges. The courts and the wider legal profession have an obligation to face and meet these and other challenges. Failure to respond creates (or at least exacerbates) hardship for litigants and potentially results in long-term risks to the development, if not the maintenance, of the rule of law."

1. The importance of the role of the trial judge in determining whether one forum is more appropriate than another was emphasised by Lord Templeman in Spiliada Maritime Corporation v Cansulex Limited [1986] UKHL 10; [1987] AC 460 at 465.
2. The reference to a decision to the appropriate forum directs attention to the nature of the questions before the Associate Judge and the power sought to be invoked by the appellants. That is because the respondent's applications heard by Daly AsJ were brought on alternative grounds, ie invoking r 147C of the Supreme Court Rules 2000 (Tas) ("Rules") or, in the alternative, the inherent jurisdiction of the Court.

1. The first application before the Court was an amended interlocutory application filed on 14 June 2024 by the respondent (then MAN Energy Solutions SE - its name was later amended on 4 August 2025 to "EVERLLENCE SE"), applying for an order pursuant to r 147C, or in the inherent jurisdiction of the Court, inter alia that the proceeding in Tasmania be dismissed or permanently stayed.
2. The second application was by letter received 12 April 2024 in which the appellants sought orders seeking to extend time and renew the writ by which the Tasmanian proceedings had been commenced.
3. Rule 147C provides:

"Court's discretion whether to assume jurisdiction

(1) On application by a person on whom an originating process has been served outside of Australia, the Court may dismiss or stay the proceeding or set aside service of the originating process.

(2) Without limiting subrule (1), the Court may make an order under this rule if satisfied -

(a) that service of the originating process is not authorised by these rules; or

(b) that the Courtis an inappropriate forum for the trial of the proceeding; or

(c) that the claim has insufficient prospects of success to warrant putting the person who has been served outside of Australia to the time, expense and trouble of defending the claim."

1. Whilst the Associate Judge specifically found (Reasons 1, [35]) that this Court is a clearly inappropriate forum for the determination of the disputes between the parties, his findings that the proceedings were also vexatious, oppressive and an "egregious example of forum shopping" suggest reliance not only on r 147C but also an invocation of the Court's inherent jurisdiction to prevent an abuse of its processes.
2. The Court's inherent jurisdiction to stay subsists even if the impeached process otherwise accords with a literal application of its rules: UBS AG v Tyne per Keifel CJ, Bell and Keane JJ at 83, [1].
3. The Court's power under r 147C(2)(b) confers a discretion to be exercised judicially. Findings that proceedings have been commenced in circumstances where they are oppressive, vexatious and an egregious example of forum shopping are relevant to the exercise of the power at r 147C(2)(b) but also provide the foundation for the exercise of the Court's inherent jurisdiction.

1. The precise nature of the power invoked by the Associate Judge, ie whether he relied on r 147C or the Court's inherent jurisdiction for his decision is, with respect, a little unclear on his Reasons, albeit the ultimate iteration of his decision under the heading "Disposition" (Reasons, [37]) refers only to the conclusion that this Court "is a clearly inappropriate forum for the determination of the plaintiffs' claims as set out in the writ filed on 28 June 2023".
2. This suggests at least primary reliance upon r 147C. Daly AsJ's findings of oppression, vexation and forum shopping, however, provide the basis for acting under either head of power.
3. In exercising the inherent power of the Court it is to be emphasised that, "court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening then some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist": see Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 per Mason CJ, Dawson, Toohey and McHugh JJ citing with approval Lord Evershed at 623-624 in Re Marjory [1955] Ch 600. The High Court of Australia has identified the conditions that enliven the power to permanently stay proceedings:

"Either of two conditions enlivens the power ... [(1)]... where the use of the court's procedures occasions unjustifiable oppression to a party, or [(2)] ... where the use serves to bring the administration of justice into disrepute."

How the power to permanently stay is to be exercised?

1. The exercise of the power at r 147C is to be consistent with the Rules and the Supreme Court Civil Procedure Act 1932: see s 6(1) of the Supreme Court Civil Procedure Act:

"(1) Except as is otherwise provided by this Act, all the jurisdiction, whether original or appellate, which immediately before the commencement of this Act was vested in or capable of being exercised by the Court, or by any one or more of the judges thereof sitting in court or chambers, or elsewhere when acting as judges, or a judge by, under, or by virtue of any Imperial Act or the Charter of Justice or any Act of the Parliament of Tasmania, shall be exercised (so far as regards procedure and practice) in the manner provided by this Act and the Rules of Court; but where no provision, or no appropriate provision, as to the exercise of any such jurisdiction is contained in this Act or in the Rules of Court such jurisdiction shall be exercised as nearly as may be in the same manner as the same might have been exercised if this Act had not passed." (Italics added.)

1. The Rules provide for case management in respect of classes of cases nominated by the Chief Justice as cases to which case management principles apply, r 414(a). Those cases are identified in Practice Direction No 11 of 2005.
2. Case Management principles apply to proceedings commenced by writ other than personal injury cases, and in this matter applied to the Tasmanian proceedings. The purpose of the case management regime at Part 14 of the Rules is set out at r 414A:

"The overarching purpose of case management is to ensure that proceedings are conducted and resolved justly and efficiently."

1. Kiefel CJ, Bell and Keane JJ, in UBS AG v Tyne at [38] cite a now long standing thread of authority recently relied upon by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority (NSW) (2006) CLR 256 at [14]:

"The timely, cost effective and efficient conduct of modern litigation takes into account wider public interests than those of the parties to the dispute."

1. Thus, raising a claim in the Tasmanian proceedings that might have been brought in the Augsburg proceedings might be an abuse of process. Where findings are made that proceedings are oppressive, vexatious and "an egregious example of forum shopping" they are pregnant with the conclusion that the proceedings are, themselves, an abuse of process. Equally, in those circumstances, the forum chosen for the latter proceedings is an inappropriate forum for resolution of the parties' dispute.
2. "The pursuit of substantially the same claim by serial proceedings conducted by different entities under common control is no less obviously an abuse of process" (italics added): see Kiefel CJ, Bell and Keane JJ, in UBS AG v Tyne at [46]. In this appeal, and in the proceedings below, the appellants were represented by the same lawyers indicating a unity of interest. In the Augsburg proceedings it is the first appellant that is the primary litigant (likely acting under rights of subrogation and otherwise pursing assigned rights). It is noted that the premise of the principle espoused in UBS AG v Tyne is not that proceedings are identical but rather that they express "substantially the same claim".
3. The power to permanently stay proceedings is, like the final disposition of any matter, to be exercised carefully whatever the basis relied upon for its exercise. The appellants relied upon a passage from Voth v Manildra Flour Mills [1990] HCA 55; (1990) 171 CLR 538 per the plurality at 554 that "the jurisdiction to grant a stay or dismiss the action is to be exercised 'with great care' or 'extreme caution'". That much must be so. Of some importance, however, is that this is only the third of the three principles enunciated by the plurality in this passage in Voth.
4. The first of the three principles acknowledged by the plurality was that "a plaintiff who has regularly invoked the jurisdiction of a court has prima facie the right to insist upon its exercise". Of course, as demonstrated by UBS AG v Tyne, decided 28 years later, that proposition is clearly now expressly conditioned by case management concerns, as was the task before the Associate Judge.
5. The second of the three principles in Voth was that "the traditional power to stay proceedings which have been regularly commenced, 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 of the exercise of the power to stay is the avoidance of injustice between the parties in the particular case".
6. A number of matters arise from this account of Voth.
7. First, the impact of case management principles is to be factored into the analysis adopted in that case. The broader interests identified in UBS AG v Tyne substantially erode the right referred to in the first principle discussed above. That is acknowledged by Kiefel CJ, Bell and Keane in their reasons at [38] when they observed, discussing case management principles, that "These considerations inform the rejection in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 of the claimed right of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim".
8. Second, the approach set out in the second of the three principles in Voth, mirrors the approach taken by the Associate Judge. It was only upon making findings of oppression, vexation and egregious forum shopping that the Associate Judge exercised the power under r 147C.
9. The respondent submitted that the permanent stay should be imposed because there were two actions commenced in relation to the same subject matter by what should be regarded as the same plaintiffs. In Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, Gleeson CJ, McHugh, Gummow and Hayne JJ observed at 604, "Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata [Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446], issue estoppel [Blair v Curran [1939] HCA 23; (1939) 62 CLR 464], and what has come to be known as Anshun estoppels [Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589], all find their roots in that policy. ... Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel."
10. This Court should not disturb the decision of an Associate Judge unless clearly attended by error.
11. In this case the appellant failed to identify any such error, or to clearly identify any irredeemable injustice emerging from his Honour's orders. As Estcourt J put it, in the course of argument actual prejudice is something different from prospective prejudice.
12. The appeal must be dismissed.

GARD MARINE & ENERGY LTD and ORS v EVERLLENCE SE

GARD MARINE & ENERGY LTD and ORS v EVERLLENCE SE