F. Consideration
62 The "necessary to protect integrity" and "unconscionable conduct" limbs in CSR are distinct but whether either limb is enlivened often involves common or overlapping considerations. In my view, the Care A2 respondents have not established that the interim anti-suit injunction should remain in place or that any anti-suit injunction should be granted by way of final relief with respect to the Anticipated Florida Proceedings. I do not accept that the grant of an anti-suit injunction is necessary to protect the integrity of this Court and its processes or to restrain any unconscionable conduct or unconscientious exercise of legal rights by Gensco Pharma.
63 First, I do not accept that I should infer, that because the applicants commenced the Australian Proceedings in this country, that the purpose of the Anticipated Florida Proceedings is to harass the officers and directors of Care A2 with the cost and inconvenience of defending or appearing as witnesses in parallel proceedings.
64 The reliance by the Care A2 respondents on Morris is misconceived. In that case, the Court was able to draw such an inference because of, inter alia, (a) a statement in an email that "I suggest we keep pushing him to have to spend funds", (b) the party that had commenced the Hong Kong proceeding was not domiciled in the Hong Kong Special Administrative Region, and (c) the extremely brief nature of the indorsement on the writ in the Hong Kong proceeding suggested little effort had been put into it: at [19]. There is no equivalent statement in the evidence that was adduced before me at the hearing on 17 August 2023. Gensco Pharma is domiciled in Florida and the Draft Complaint is extensively pleaded.
65 Second, I accept that there is likely to be a substantial overlap in the evidence deployed in the Australian Proceedings and the Anticipated Florida Proceeding given the common factual background to the two proceedings. Further, I accept, given the number of references to Mr Bugno, Mr Loader and Mr Galati in the SOC in the Australian Proceedings, that it is likely that each will ultimately be required to give evidence in both proceedings. I note that to some extent, the risk of conflicting credit and other findings might be expected to be reduced because the applicants have elected in the Draft Complaint for a jury trial in the Anticipated Florida Proceedings.
66 I also accept that it would have been possible, had the applicants chosen to do so, to have joined Mr Bugno, Mr Loader and Mr Galati as parties to the Australian Proceedings, and pursued at least misleading or deceptive conduct claims against each of them and sought similar relief, other than with respect to punitive damages. At the same time, it must also follow that the pursuit of different causes of actions in the Anticipated Florida Proceedings against persons likely to be witnesses in the Australian Proceedings with respect to the same factual matters is going to add materially to the cost and effort required to resolve the disputes that have arisen between the Care A2 respondents and Gensco.
67 I do not accept, however, that the Court can infer from the existence of a substantial overlap in the factual background to the Australian Proceedings and the Anticipated Florida Proceeding, that the proposed commencement of the Anticipated Florida Proceeding could relevantly be vexatious or oppressive, or the restraining of those proceedings would be necessary to protect the Court's own proceedings and processes. The likely inefficiencies and additional costs to be incurred if the Anticipated Florida Proceedings are pursued is not sufficient to be productive of "serious and unjustified trouble and harassment" or be "severely and unfairly burdensome, prejudicial or damaging".
68 I am not satisfied that the proposed commencement of the Anticipated Florida Proceedings is for the dominant purpose of preventing the continuation of the Australian Proceedings. Any risk of interference in the efficient conduct of the Australian Proceedings cannot rise above mere speculation. The causes of action are distinct, the proceedings are to be pursued against different defendants and there is no reason to expect that any practical difficulties in securing witnesses to give evidence could not be avoided by ensuring the two proceedings were not listed for hearing on the same dates.
69 Third, Gensco Pharma has expressly raised, in both the 6 June 2023 letters and the 4 August 2023 email, its intention to seek punitive damages against Mr Bugno, Mr Loader and Mr Galati in the Anticipated Florida Proceedings. The foreshadowed claim to be made for punitive damages in the Anticipated Florida Proceedings provides a compelling basis to conclude that there is something substantive that might be gained by Gensco from the Anticipated Florida Proceedings and that the "complete relief" that the applicants seek cannot be obtained in the Australian Proceedings.
70 The relevant issue is what is being sought by way of relief, not the precise factual or juridical basis on which a claim for relief is to be advanced or its prospects for success. Those are matters for the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida (Florida Court). Gensco has advanced evidence that establishes that Gensco Pharma intends to seek punitive damages in the Anticipated Florida Proceedings and that punitive damages can be sought in Florida. The Care A2 respondents have not suggested that the Gensco's evidence on these matters should not be accepted.
71 In my view, the foreshadowed claim for punitive damages can readily be characterised as something that can be gained "over and above what may be gained" in this Court.
72 Fourth, the civil conspiracy, fraud and negligent misrepresentation claims to be advanced in the Anticipated Florida Proceedings against Mr Bugno, Mr Loader and Mr Galati are materially different to the misleading or deceptive conduct and breach of contract claims pursued in the Australian Proceedings against the respondents in the Australian Proceedings. The fraud claims proposed to be advanced in the Anticipated Florida Proceedings include allegations that Florida law imposed on the defendants a duty to disclose information to Gensco about "whether Care A2's infant product could be distributed and sold in the U.S." and that the defendants breached that duty in that they "omitted, concealed, and even affirmatively misrepresented to Gensco material facts about Care A2's ability to produce, market and distribute the product in the U.S.". The risk of any interference with the Australian Proceedings is significantly reduced because the Florida Court is to determine different claims against different defendants. At the same time, the pursuit of different causes of action based on civil conspiracy, fraud and negligent misrepresentation militates against any inference that the Anticipated Florida Proceedings is proposed to be commenced for the central or dominant purpose of preventing the continuation of proceedings in this Court.
73 Further, the parties to be pursued in the Anticipated Florida Proceedings are not parties to the Australian Proceedings. In that respect, I note that although Ms Hyland is named as a defendant in the Draft Complaint, the applicants have provided an undertaking to the Court that Gensco will not commence any proceedings against Ms Hyland in the United States while she remains a party to the Australian Proceedings.
74 Fifth, I do not accept that the bringing of the Australian Proceedings constituted an election not to proceed with another claim in another jurisdiction, giving rise to an estoppel by conduct such that it would be unconscionable for that other claim to be pursued: see CSR at 394. The principle upon which estoppel by conduct is founded is that the law should not permit an unjust departure by a party from an assumption of fact which they have caused another party to adopt or accept for the purpose of their legal relations: Grundt v The Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641; [1937] HCA 58 at 674-676 (Dixon J). There is no evidence that the commencement of the Australian Proceedings caused the respondents to the Australian Proceedings or the proposed defendants to the Anticipated Florida Proceedings, to assume that no other proceedings would ever be brought in another jurisdiction. To the contrary, Gensco's Florida counsel warned the proposed defendants on 6 June 2023, prior to the commencement of the Australian Proceedings, of its intention to pursue the Anticipated Florida Proceedings if it did not receive US$3,360,000 and if the defective products supplied by Care A2 were not "taken off of Gensco's hands".