(8) Where "an antisuit injunction is sought on equitable grounds, the central question is whether the court in 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." Further, where the courts concerned are 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." It is only if the Australian court concludes "that it is not a clearly inappropriate forum", that it may "go on to determine whether to require the applicant to seek a stay or dismissal of the foreign proceedings or to grant an antisuit injunction." (At 397-398.)
25 Their Honours concluded that the proceedings brought by Cigna in this Court were oppressive because their "central purpose … was to prevent the continuation of the US proceedings" where there were remedies available to CSR in the US proceedings that would not have been available to it in this Court. This conclusion was not affected because the claims for declarations may have been "a claim in respect of a matter genuinely in dispute" (at 402): it was "the … dominant purpose … to prevent the appellants from pursuing remedies available in the US proceedings but not in the NSW proceedings" which dictated that the proceedings in this Court were oppressive and should be stayed.
26 There are very significant differences between the facts in CSR and the facts in this case. CSR (including in that expression both CSR Ltd and related corporations) had commenced proceedings against Cigna (including in that expression both Cigna Insurance Australia Ltd and related corporations) in the United States District Court for the District of New Jersey. They sought declarations as to their entitlement to indemnity with respect to certain asbestos claims; and (for some only of the plaintiffs) damages both at common law and under statute, including treble damages. As the High Court pointed out, that relief would not have been available to CSR in proceedings in New South Wales.
27 Cigna commenced proceedings in this Court seeking permanent antisuit injunctions to restrain CSR from taking further steps in the US proceedings, and declarations including that they were not liable to indemnify CSR.
28 Cigna sought interlocutory antisuit injunctions and CSR sought a stay of the proceedings in this Court. The High Court concluded that the interlocutory antisuit injunctions granted at first instance (an application for leave to appeal was dismissed) should be set aside, and that the proceedings in this Court should be stayed pending the outcome of the US proceedings.
29 The majority concluded at 395 that the US proceedings were not vexatious or oppressive, so that there was no serious question to be tried on that issue. Their Honours also concluded that there was no agreement not to sue, so that the antisuit injunction could not be sustained on that basis.
30 In the present case, the antisuit injunction is not sought to protect the integrity of this Court's processes. It is sought in the exercise of equitable jurisdiction, and in aid of what are said to be legal rights established by cls 27.1 and 41 of the licence agreement.
31 Neither Mr Levingston nor Mr Kidd put submissions on the issue identified by the High Court as arising in that circumstance, namely whether this Court is, in the Voth sense, the appropriate forum - ie, not clearly an inappropriate forum - for the resolution of the disputes between the parties. But on Zcorp's case, that question might be thought to arise. Further, it might seem to be a question that should be answered adversely to Zcorp. That is because it is Zcorp's case that the disputes between it and Locator should be resolved pursuant to cl 27.1: ie, by negotiation and mediation (which it says have been completed) followed by arbitration.
32 However, what the majority said on this point in CSR needs to be considered in context. That context included that Cigna's proceedings in this Court did not seek only injunctive relief. Cigna sought also declaratory relief; the declarations sought, if granted, would have established that the Cigna companies were not liable to the CSR companies in respect of at least some of the causes of action pressed by the CSR companies in the US proceedings. Thus, in principle, one central issue - the liability of the Cigna companies to indemnify the CSR companies in respect of the asbestos claims - could have been determined in either court.
33 What the majority said in CSR at 400-401, under the rubric Nature of the test when issues are not the same, suggests that the relevance of the "clearly inappropriate forum" point is limited. Their Honours said that, where different issues were involved in the local and foreign proceedings, the question was not whether the Australian court was a clearly inappropriate forum for the litigation of the issues raised in it. The question was whether the Australian proceedings were vexatious or oppressive, in the sense explained in Voth: "namely, that they are 'productive of serious and unjustified trouble and harassment or seriously and unfairly burdensome, prejudicial or damaging …'." I see no reason why it could not be vexatious or oppressive, in the sense explained by the majority, to bring proceedings in breach of an agreement to submit disputes to arbitration, or in breach of an exclusive jurisdiction clause. The effect, in either case, is to subject the party having the benefit of the relevant promise to the burden, expense and inconvenience of defending proceedings that, either at all or as to jurisdiction, it had contracted to avoid.
34 Thus, I conclude, the question, whether this Court is a clearly inappropriate forum, does not arise. That is for two reasons. The first is that the issues being litigated in this Court are not the issues that Locator seeks to litigate in Victoria. The second (and this may be no more than another way of expressing the first), is that the only question for this Court is whether, having jurisdiction so to do (by virtue of cl 41), it should enforce Zcorp's contractual rights by appropriately framed injunctive relief. That relief, if granted, acts in personam on Locator. It does not deny the jurisdiction of the County Court, but enforces the contractual obligations binding Locator not to invoke that jurisdiction. When so analysed, it is clear that there is no reason for this Court to consider whether it is a clearly inappropriate forum. Any other view would stifle, if not negate entirely, the power of a superior court to grant relief in cases such as this.
Locator's actions justify grant of relief
35 I therefore conclude that there is no reason why this Court cannot grant Zcorp the antisuit relief sought. I think that Zcorp has made out an entitlement to this relief, both in relation to cl 27.1 and in relation to cl 41, for two reasons: first, to restrain Locator's breach of contract; and second, and to the extent that it may be necessary so to find, because the actions of Locator, in bringing proceedings in the County Court of Victoria in breach of both cl 27.1 and cl 41, are vexatious or oppressive.
36 As to the first ground: Locator's actions, bringing proceedings in the County Court, amount to a breach of cls 27.1 and 41. It may have some prima facie right (if the question be considered without reference to the terms of the licence agreement) to have its claim heard in the jurisdiction of its choice. I am prepared to assume that, leaving aside cls 27.1 and 41 of the licence agreement, the County Court of Victoria is either an appropriate forum or not clearly an inappropriate forum to hear Locator's claim. (For reasons that will become clear later, I do not think it necessary to express a concluded view on this point; indeed, I think it undesirable that I should do so.) But the question cannot be considered without paying due regard to the terms of the licence agreement. Locator sought to take what, no doubt it considered, was the benefit of that agreement. I think it is unconscionable for Locator to seek to retain (and indeed, through a claim for damages, to enforce) that benefit without accepting the burden. I think that, on this ground alone, Zcorp has made out its claim for relief by way of antisuit injunction.
37 It is unclear whether it is necessary to go further, and to characterise Locator's actions, in instituting and seeking to prosecute proceedings in the County Court of Victoria, as vexatious or oppressive. The majority in CSR at 392 suggest that it may not always be necessary to go so far: where their Honours refer to "the equitable jurisdiction to restrain unconscionable conduct" as one which "may be exercised in aid of legal rights, including by the grant of an injunction, 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." Thus it may not be necessary to consider whether Locator's conduct is vexation or oppressive. But if it were necessary for me to consider this question, I would conclude that it should be answered in favour of Zcorp. Locator contracted to give Zcorp the benefit of those promises. Clearly, Zcorp sought to have any dispute resolved by negotiation or mediation and, failing that, by arbitration (a private and often informal method of dispute resolution) rather than litigation. Further, it sought to have any disputes resolved in the courts of its home State. The advantages, in terms of costs and convenience, are clear.
38 I think that it is vexatious and oppressive, in the relevant sense, for Locator now, in breach of contract, to seek to deprive Zcorp of those benefits. Equally, I think, it is vexatious and oppressive for Locator to submit (as it has done) that Zcorp can avail itself of alternative remedies when, as I conclude later, to require Zcorp to do so necessarily deprives it of a substantial part of the benefits for which it contracted. Locator has not offered any explanation of its decision to proceed by litigation in the County Court of Victoria, save that, it submitted, it has terminated the licence agreement because of Zcorp's breach. For the reasons that I give below, I do not think that this is an adequate reason.
39 It may perhaps be open to conclude that Locator, in commencing its proceedings in the County Court of Victoria in breach of cls 27.1 and 41, sought to put Zcorp to the inconvenience and expense of defending them in Victoria, and thereby to maximise the prospects of a favourable settlement, dictated more by a desire to avoid those consequences than by a realistic reflection of the merits of Zcorp's position. But it is not necessary to express a concluded view on this; it is sufficient to say that, regardless of explanation and motive, the commencement of proceedings in breach of contract is of itself, in the circumstances of this case, vexatious or oppressive in the relevant sense because, by depriving Zcorp of its contractual entitlement, it is imposing an unfairly burdensome, prejudicial or damaging obligation on Zcorp.
Second issue: clause 27.1
40 There is no doubt that this Court may enforce, by appropriate relief, an arbitration agreement. Thus, where the contract between the parties makes reference to arbitration a precondition to litigation, this Court may stay proceedings commenced in breach of the arbitration agreement. That this Court has jurisdiction to do so in the present case (as between Zcorp and Locator) is confirmed by cl 41 of the licence agreement.
41 In the present case, the parties appear to have assumed that cl 27.1 was capable of enforcement in this manner. Because no submissions were addressed to me on the point, I am prepared to proceed on this basis. However, it does not follow that this Court should exercise the power that, I am prepared to assume, it has.