HNOE Limited v Angus & Julia Stone Pty Ltd

Background

1. The Plaintiffs (Respondents in this Court) are Angus Stone, Julia Stone, "Angus & Julia Stone Pty Ltd" (collectively, the Stones), and three other companies of which Mr Stone and Ms Stone are directors (the related companies). Mr Stone and Ms Stone are Australian musical performers who resided in New South Wales and Victoria respectively during the relevant period: PJ [115].
2. On 14 August 2015, the Stones entered into a management agreement (the Management Agreement) with HNOE Limited (HNOE) which is the first defendant in the proceedings and, together with MMM and Mr Manton, are the defendants to the Commercial List proceedings and the Applicants in this Court. HNOE is a London-based talent agency incorporated under the laws of England and Wales: PJ [2]. The Management Agreement was executed in California.
3. The related companies were not parties to the Management Agreement, nor were MMM and Mr Manton although Mr Manton is referred to in it. He is an artist manager, residing in New South Wales and the sole director of MMM, a company incorporated in Australia: PJ [6].
4. The Management Agreement provided that:

• HNOE would be the sole and exclusive manager of Angus and Julia Stone in respect of their worldwide entertainment activities: cl 1.
• The Stones would make commission payments to HNOE in the sum prescribed by the Management Agreement, which varied depending on the activity performed by the Stones: PJ [4].
• HNOE must ensure that Mr Manton would provide management services for the Stones, at HNOE's own cost: cl 3.6.

1. The Management Agreement also contained cl 12.11 which was in the following terms: "It is agreed between us that this agreement shall be subject to English Law and the High Court of Justice, Strand, London shall be the sole court of competent jurisdiction."
2. Nixon J held that the second half of this clause was in the nature of an exclusive jurisdiction clause or exclusive choice of court clause, as such clauses are sometimes described: Angus & Julia Stone Pty Ltd v HNOE Limited [2024] NSWSC 627 at [176] (primary judgment or PJ). There was no challenge to this characterisation of cl 12.11.
3. Prior to the Management Agreement being entered into, on 4 October 2013, MMM and HNOE entered an agreement (the MMM Agreement) whereby MMM undertook for Mr Manton to provide "artist management services as the lead manager of Angus & Julia Stone": PJ [7]. In return, MMM was entitled to invoice HNOE for 50% of commissions received by HNOE with respect to the Stone parties: PJ [59]. The Stones were not parties to this agreement and neither MMM nor Mr Manton was a party to the Management Agreement.
4. There was evidently an earlier agreement between Julia Stone and "Julia Stone Pty Ltd" (the Third and Sixth Plaintiffs) and Mr Manton made on or about 12 March 2013 by which Mr Manton was appointed the exclusive manager of the Third and Sixth Plaintiffs' activities in the music industry (the Manton Julia Agreement). No reference was made to this agreement in the original CLS, filed on 31 January 2024, although it was referred to in subsequent iterations of the CLS although in none of those iterations was it alleged to have been breached nor is it alleged that any commission payments were made under it.
5. The "Nature of the Dispute" as described by the Plaintiffs in the original CLS was said to be as follows: "1 On 14 August 2015, the First, Second and Third Plaintiffs and the First Defendant entered into a Management Agreement by which the Plaintiffs agreed to appoint the First Defendant as the exclusive manager of the Plaintiffs' activities in the music and entertainment industry (Management Agreement). 2 The Second and Third Defendants provided management services to the Plaintiffs, including pursuant to the Management Agreement. 3 Pursuant to the Management Agreement, the Plaintiffs were obliged to, and did, make payments by way of commission to the Defendants. 4 The Management Agreement was terminated on about 2 June 2023. 5 The Plaintiffs contend that the Defendants have charged, and received, commission pursuant to the Management Agreement which is greater than their entitlement under that agreement, and in excess of the statutory cap imposed by Entertainment Industry Act 2013 (NSW) (EI Act), and have thereby breached that that agreement and the EI Act. 6 The Plaintiffs contend that they are entitled to damages, or restitution, against the Defendants arising from their breaches of the Management Agreement and the EI Act."
6. Paragraph 31 of the original CLS was to this effect: "By reason of the breaches by HNOE of Clause 4.4 of the Management Agreement, and the overcharging of commission by the Defendants, the Plaintiffs have suffered loss and damage, including loss of at least $2,780,778.33 in the period between November 2015 and the date of these proceedings."
7. Notwithstanding that the Stones had commenced the Commercial List proceedings against HNOE in breach of the exclusive jurisdiction clause in the Management Agreement, the proceedings included parties (plaintiffs in the form of the related companies and defendants in the form of MMM and Mr Manton) who were not parties to the exclusive jurisdiction clause or the Management Agreement although it may be observed that what claims the related companies had, and what claims lay against MMM and Mr Manton, did not emerge from the description of the nature of the dispute in the original CLS.
8. The existence of these other claims and parties, however, was why the summary dismissal/strike out aspect of the notice of motion was strategically so important for, if the claims against MMM and Mr Manton were summarily dismissed or struck out, there would have been a powerful case for granting a permanent stay of proceedings by reason of the exclusive jurisdiction clause, in accordance with well established authority: see Karpik v Carnival plc [2023] HCA 39; (2023) 98 ALJR 45 at [66] (Karpik); Akai Pty Ltd v People's Insurance Company Ltd (1996) 188 CLR 418 at 427-429, 445; [1996] HCA 39 (Akai); Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 224, 259; [1988] HCA 32 (Oceanic); Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWCA 196; (2010) 79 ACSR 383 (Global Partners); Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [76]-[78] (Hive). The summary dismissal of the breach of statutory duty claims, especially those against Mr Manton and MMM, would have significantly diminished the existence of any "strong countervailing reasons" (Karpik at [66]) for not giving effect to the exclusive jurisdiction clause by a stay of the proceedings.
9. The primary judge was confronted with something of a moving feast. The notice of motion attacked the original CLS. In the course of the hearing of the notice of motion on 1 May 2024, it became tolerably clear, as will be explained below, that a key component of the Plaintiffs' claims alleging a breach of s 11 of the Entertainment Industry Act 2013 (NSW) (EI Act) disclosed no cause of action. Further evidence (in the form of the MMM Agreement) and submissions were filed by the Plaintiffs on 6 May which attached a proposed amended CLS (Draft ACLS) which sought to introduce a claim for breach of statutory duty, the relevant statute being the EI Act. The Draft ACLS also introduced a reference to the Manton Julia Agreement but did not allege that it had been breached and in [29], being the claim for breach of statutory duty, the only particulars of commissions charged in respect of which damages or restitution was sought were commissions charged by HNOE.
10. The Stones' submissions and the Draft ACLS were the subject of responsive submissions by the Defendants on 10 May and a further reply by the Plaintiffs on 14 May 2024. His Honour, with admirable despatch, delivered reasons on 24 May 2024.
11. In the event, the primary judge dismissed the notice of motion seeking a stay of proceedings but held that there were deficiencies in the Plaintiffs' claims in the CLS and Draft ACLS. As such, his Honour ordered that the Plaintiffs "file any application for leave to amend the Summons and/or the Commercial List Statement by 7 June 2024": PJ [186(1)]. As to the Manton Julia Agreement, the primary judge held at PJ [98] that it was: "difficult to determine whether there is any viable claim in respect of the Manton Julia Agreement in circumstances where that claim is not raised by the existing CLS, and is foreshadowed in the Draft ACLS but in a rudimentary way, without any material facts pleaded regarding the term of the agreement, or regarding the amounts demanded or paid under the agreement and the dates on which those demands and payments were made"
12. An amended form of CLS, filed in accordance with his Honour's orders and differing from the Draft ACLS, was placed before this Court on the hearing of the application for leave to appeal even though it had not been before the primary judge. It is convenient to refer to it as the Filed ACLS. It represented a further iteration of the proposed pleading by the Plaintiffs and reference will be made to it in considering whether a stay should be granted on the re-exercise of discretion if it be the case that error be found in the approach of the primary judge, and in particular the failure summarily to dismiss the breach of statutory duty aspect of the claim which was at the heart of the argument in this Court.
13. Mr Flynn SC who, with Mr Beshara, appeared for the Applicants submitted that the Filed ACLS must be taken to represent the Plaintiffs' best attempt to formulate their breach of statutory duty claim after full argument at first instance. It would not have been in keeping with s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) to remit the matter to the primary judge to consider the Filed ACLS in circumstances where argument had been fully prepared for the purposes of this application for leave to appeal. A similar pragmatic approach was adopted by Wood CJ at CL, hearing an appeal from a decision of Master Harrison refusing to strike out an action for breach of statutory duty, in Preston v Star City Pty Ltd [1999] NSWSC 1273 at [2]-[3] (Preston).
14. At the heart of the argument in this Court was the primary judge's refusal to strike out or summarily dismiss the Stones' claims of breach of statutory duty. Importantly, the primary judge noted (at PJ [154]) that: "since the question whether a claim for breach of statutory duty is available depends on the interpretation of the statute, it will not be affected by any evidence that may be led at trial, and that the Court therefore presently has all of the information it requires to determine this issue. Further, since each question of law has only one correct answer (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30), it follows that the assertion that a claim for breach of statutory duty is available in respect of a contravention of the EI Act is, as a matter of law, either right or wrong."
15. Before turning to the primary judge's reasoning, it is necessary to set out some key provisions of the EI Act.

The Entertainment Industry Act

1. Section 11(1) which was at the heart of the Plaintiffs' claims provides: 11 Fees of performer representatives (1) A performer representative must not demand or receive a fee or other remuneration from a performer under an entertainment industry agreement that exceeds the capped amount, unless the agreement is an entertainment industry managerial agreement and the additional services under the agreement are provided. Maximum penalty--100 penalty units.
2. "Performer" is defined in s 4 of the EI Act as "any actor, singer, dancer, acrobat, model, musician or other performer of any kind who enters an entertainment industry agreement with a performer representative". An "entertainment industry agreement" is defined in s 4 as "an agreement between a performer and a performer representative to provide one or more of the services referred to in section 5".
3. Section 5 of the EI Act defines "performer representative" and the relevant services as follows: Performer representative In this Act, a performer representative means a person who, for financial benefit, provides or agrees to provide one or more of the following services to a performer (whether or not the agreement also provides for other services to be provided) - (a) seeking or finding work opportunities for the performer, (b) negotiating terms of an agreement for, and the conditions of, a performance, (c) finalising arrangements relating to the payment of the performer, (d) negotiating arrangements relating to the attendance of the performer at a performance, (e) administering the agreement between the performer and an entertainment industry hirer, (f) making arrangements for publicity attendances and related publicity responsibilities of the performer, but does not include a person who does so solely as an employee of any such representative.
4. As noted above, s 11(1) of the EI Act prohibits performer representatives from charging performers under an "entertainment industry agreement" rates which exceed the "capped amount", subject to the exception set out in the balance of the provision.
5. The "capped amount" is defined by s 9(1)(a) of the EI Act as "the percentage, prescribed by the regulations, of the total amount payable to the performer for any performance in respect of which the performer representative provided services under an entertainment industry agreement".

The EI Act claim

1. Paragraph 29 of the original CLS was in the following terms: "To the extent that HNOE, MMM and Manton have received in excess of 10% of the total amount payable to the Plaintiffs for any performances in respect of which HNOE, MMM and Manton provided services under the Management Agreement, HNOE, MMM and Manton: a. have been in breach of ss 9 and 11 of the EI Industry Act; b. have been in breach of their obligations pursuant to s 6 of the EI Act to establish a trust account for the benefit of the Plaintiffs; c. is obliged to account, or provide restitution, to the Plaintiffs for the amounts received by HNOE and MMM in excess of 10% of the total amount payable to the Plaintiffs for any such performances, being (at least) $1,670,880.09. Particulars Schedule C hereto contains the summary of all of the commissions charged by HNOE, excluding the Back Catalogue commissions accounted for in Schedule B, which are in excess of 10% of the total amount payable to the Plaintiffs"
2. Reliance on ss 6 and 9 of the EI Act was abandoned.
3. The Draft ACLS addressed deficiencies in the way the claim in relation to the EI Act was pleaded by reframing it as a tortious claim for breach of statutory duty. Thus the "re-pleaded" [29] of the proposed Draft ACLS was in these terms: "To the extent that HNOE, MMM and Manton have received in excess of 10% of the total amount payable to the Plaintiffs for any performances in respect of which HNOE, MMM and Manton provided services under the Manton Julia Agreement, HNOE Management Agreement, or the MMM Agreement, HNOE, MMM and Manton: a. have been in breach of ss 9 and 11 of the EI Act and the statutory duty imposed by that section; b. have been in breach of their obligations pursuant to s 6 of the EI Act to establish a trust account for the benefit of the Plaintiffs; c. is are obliged to pay damages for breach of statutory duty, or to account, or provide restitution, to the Plaintiffs for the amounts received by HNOE, Manton and MMM in excess of 10% of the total amount payable to the Plaintiffs for any such performances, being (at least) $1,670,880.09."
4. In the Filed ACLS, [29] was further amended as follows: "To the extent that HNOE, MMM and Manton have received in excess of 10% of the total amount payable to the Plaintiffs for any performances in respect of which HNOE, MMM and Manton provided services under the Manton Julia Agreement, HNOE Management Agreement, or the MMM Agreement, HNOE, MMM and Manton: a. have been in breach of ss 9 and 11 of the EI Act and the statutory duty imposed by that section; b. have received payments which were made pursuant to a mistake of law and, or in the alternative, demands which were made in breach of statutory duty and contrary to public policy and therefore were unlawful; c. have been in breach of their obligations pursuant to s 6 of the EI Act to establish a trust account for the benefit of the Plaintiffs; d. is are obliged to pay damages for breach of statutory duty, or to account, or provide restitution, to the Plaintiffs for the amounts received by HNOE, Manton and MMM in excess of 10% of the total amount payable to the Plaintiffs for any such performances, being (at least) $1,670,880.09."

The primary judgment in relation to the EI Act claims

1. The now Applicants advanced a number of arguments at first instance and on appeal attacking the Respondents' EI Act claims. These included that these claims were not available against MMM and Mr Manton because neither of them was a party to the Management Agreement or indeed any agreement with the Stones so that they could not have been in breach of s 11 of the EI Act, still less have committed the tort of breach of statutory duty, because s 11 required a demand or receipt of a fee or other remuneration from a performer under an entertainment industry agreement.
2. The Applicants also argued that the EI Act was not engaged because neither demand nor receipt of commissions occurred in New South Wales, and the EI Act was not intended to have extra-territorial operation. Reference was made in this context to this Court's decision in DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242.
3. The more fundamental argument advanced by the Applicants, however, and one that, if correct, supplied a complete answer to the claims made for breach of statutory duty against all Defendants including HNOE was that, on the proper construction of the EI Act, no such private law action for breach of statutory duty was available.
4. The primary judge noted the following principles in respect of the Court's power summarily to dismiss proceedings:

• the power must be exercised with caution (PJ [20]): Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24] (Spencer);
• the Court must be satisfied that it has the necessary material and assistance from the parties to reach a "definite and certain conclusion that the lack of a cause of action is clearly demonstrated" (PJ [22]): General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1964] HCA 69 (General Steel);
• "[t]here is greater scope for summary determination where the viability of a cause of action depends on a question of law, and no factual questions are involved": PJ [25];
• if there exists a "real question to be determined, whether of fact or law" which the parties' rights depend upon, the Court cannot dismiss the action as "frivolous and vexatious and an abuse of process" (PJ [23]): Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1; and

Consideration

1. It will have been observed that there were two strands to his Honour's reasoning. The first was set out in PJ [157], namely his Honour's view that, having regard to the parties' competing contentions, there was a debatable question of law.
2. In General Steel, Barwick CJ said at 130 that: "Although I can agree… that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." (emphasis added)
3. The emphasised portion of this passage was quoted with approval by Gummow and Hayne JJ, albeit in dissent on the facts, in Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [35] (Jackamarra). Referring to the issue of whether a matter was "arguable", their Honours had said that: "If it means no more than that counsel, acting responsibly, can formulate an argument which can properly be advanced in support of the appeal, the test is too loose; if it is clear that that argument will fail, the appeal should not proceed. To permit it to proceed is to subject the respondent to the many costs of litigation needlessly and is to occupy the courts when they could be occupied more productively."
4. This aspect of their Honours' judgment was referred to in Boensch v Pascoe (No 2) [2017] FCA 146 at [27]-[30] per Gleeson J, in Longreach Family Living (Vic) Pty Ltd v Simonds Homes Melbourne Pty Ltd [2013] VSCA 274 at [56] and in in de Braekt v Legal Profession Complaints Committee [2016] WASCA 220 at [43]-[44].
5. In Spencer at [55], Hayne, Crennan, Kiefel and Bell JJ, having referred to General Steel, said that "the test to be applied was one of demonstrated certainty of outcome".
6. In Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155 at [96]-[99], Payne and McCallum JJA agreed with the following observations made by me in that case: "[96] The first point to be made is that, in an appropriate case, and recognising the need for due caution, a legal question, even one involving some complexity, may be disposed of in a summary fashion. As Barwick CJ said in a well- known passage in General Steel…: '… I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.' [97] Accordingly, to the extent that the first and second grounds of appeal complained that the matter was dealt with on a summary basis and that the construction posited by the applicant was not obviously untenable and was 'reasonably arguable', these arguments need to be assessed with Barwick CJ's observations in General Steel in mind. They also need to take into account the matter candidly conceded by Ms Whittaker that I have noted at [64] above, namely that the issue was essentially a question of construction. As Isaacs J said in Harrington v Browne (1917) 23 CLR 297 at 307; [1917] HCA 36, there can be only one construction given to a contract. See also Life Insurance Company of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; [1925] HCA 18. [98] In the circumstances of the present case, it was both open and appropriate, in my opinion, for the primary judge to dispose of the matter on a summary basis. The primary judge's construction was, in my opinion, correct."

The action for breach of statutory duty

1. The EI Act confers no relevant express private cause of action for breach of s 11(1) of the Act. That is the necessary starting point for the analysis. Accordingly, if such a cause of action is available, it can only arise by a process of implication from the subject matter, scope and context of the Act.
2. Where no private right of action has been created, the legislature not having expressed any intention on the subject, Sir Owen Dixon observed that "an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy": O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 477-478; [1937] HCA 18 (O'Connor) (emphasis added). So much was reaffirmed by Gummow J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at [157]. See also Porter v OAMPS Ltd [2005] FCA 232; (2005) 215 ALR 327 at [110].
3. Dixon J in O'Connor, having pointed to some cases in this area which he politely suggested were informed by "… very general considerations without either the authority of any general rule of law or the application of any definite rule of construction", went on to attempt to formulate his understanding of the true nature of the principle. Thus, he said at 478 that: "Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on."
4. Two matters may be observed about this passage. First, it may be doubted that any "wider rule" has been deduced in the almost 90 years since O'Connor apart, perhaps, from Kitto J's observation in Sovar which focussed the interpretative inquiry on what may be inferred from the nature, scope and terms of the statute. Secondly, an important aspect of Dixon J's formulation was that any implied statutory duty would generally exist adjacent to an existing common law duty of care. Kitto J emphasised this aspect in his decision in Sovar at 404-405; see also Anderson v Mackellar County Council (1968) 69 SR (NSW) 444 at 448 per Jacobs JA; Pask v Owen [1987] 2 Qd R 421 at 427 per Andrews CJ; Jane Doe v Fairfax Media Publications Pty Limited [2018] NSWSC 1996 at [117], [138] (Jane Doe) per Fullerton J. Pausing there, in relation to the present case, no pre-existing duty of care was said to be owed by a promoter to an artist in relation to the charging of commission, that traditionally being a matter determined contractually. This tends against the existence of any statutory duty: Askin v Knox [1989] 1 NZLR 248 at 253; Willis v Castelein [1993] 3 NZLR 103 at 113; Field v Dettman [2013] NSWCA 147 at [44] (Field); see also C Sappideen et al, Fleming's The Law of Torts (11th ed, 2024) at [16.20].

No action for breach of statutory duty available

1. Applying these principles, it seems to me to be clear that no common law claim for breach of statutory duty was intended to be created by the legislature when passing the EI Act or indeed its predecessor Act.
2. Any such intention would need to be divined from the scope and context of the EI Act. Far from providing any support for the existence of such a duty, the provisions of the Act point strongly against it.
3. Perhaps the most prominent such provision is s 20, reproduced at [30] above. The existence of potential relief from the Industrial Relations Commission puts the present case on extremely close footing to both Martin and Josephson, and brings the case into the general rule enunciated by Jordan CJ in Martin, as discussed above at [66].
4. This conclusion is only reinforced, however, when other remedial features of the EI Act are considered. Thus, as was emphasised by Mr Flynn, ss 21 and 22 provide for the acceptance and enforcement of undertakings for suspected breaches; ss 24 and 25 of the EI Act provide a show cause mechanism which operates where a performer representative has engaged in unlawful conduct (defined in s 4 as a breach of the code of conduct or of a provision of the Act) which may result in entertainment industry prohibition orders being obtained from the Supreme Court. Importantly, s 25(3) provides that: "The Supreme Court may also, if the Court is satisfied that a person has sustained loss or damage as a result of the unlawful conduct of the person against whom the order is made, order the person to compensate the other person for the loss or damage."
5. This analysis is fortified by the fact, already mentioned, that the statute did not supplement any pre-existing duty of care, as to which see the authorities referred to in [63] above.
6. Next, there is also s 43 of the Act providing for civil penalties. Mr Philips, who appeared for the Respondents, correctly pointed out that that section does not include a breach of s 11 of the Act (for which a criminal penalty is prescribed). It does, however, apply to a breach of the code of conduct, cl 2(8) of which imposes an obligation on a performer representative to use best endeavours to ensure that employees comply with the Act and the code of conduct.
7. The only other textual argument advanced by Mr Philips in support of the contention that a breach of s 11 generated a common law right of action was s 43(5), to the effect that "[e]vidence given in proceedings for the recovery of money is not admissible in proceedings for a civil penalty". His submission was that this was a legislative indication that the legislature contemplated an action for breach of s 11. I disagree.

The restitution claims

1. Before turning to a re-exercise of the discretion, it is necessary to say something at this point in relation to the Stones' claims for restitution, raised in ground 2(e) of the draft notice of appeal.
2. As against HNOE, whatever other difficulties the restitution claims may face (a matter which was the subject of specific submissions by the Applicants), the claim for restitution against HNOE fell within the scope of the exclusive jurisdiction clause. That clause, it will be recalled, relevantly provided that "the High Court of Justice, Strand, London shall be the sole court of competent jurisdiction".
3. There is a degree of ellipsis in this clause in that it is silent in terms of its subject matter scope, that is to say, it does not take the familiar form of such clauses which use relational or connective phrases such as "all disputes arising out of or connected to this contract shall be determined in the courts of …". That, however, does not mean that it should be narrowly construed. To the contrary, the established approach in both Australia and England to the construction of such clauses is to accord them a liberal, broad or generous interpretation, giving effect to the "rational assumption of reasonable people by giving liberal width and flexibility where possible to elastic and general words of the contractual submission to [jurisdiction], unless the words in their context should be read more narrowly": Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170 at [167]. As Spigelman CJ observed in Global Partners at [67], in identifying the rationale for the broad construction of arbitration and exclusive jurisdiction clauses: "A significant purpose of an exclusive jurisdiction clause is to ensure that all disputes are determined in a coherent manner by a single jurisdiction. There is a clear commercial interest in minimising the possibility of a dispute being determined by multiple tribunals, with the consequent prospect of divergent findings. Furthermore, the parties, in advance, have determined that a particular jurisdiction is acceptable to them, both in terms of the speed and efficacy of its civil dispute resolution procedures and for the competence and skill of its judges and lawyers."
4. The generally broad approach taken to the construction of the scope of jurisdiction clauses was considered at some length in Inghams Enterprises Pty Limited v Hannigan [2020] NSWCA 82; (2020) 379 ALR 196 at [53]-[67]. In Nyunt v First Property Holdings Pte Ltd [2022] NSWCA 249; (2022) 408 ALR 277, I noted that the jurisdiction clause in the Joint Venture Agreement in that case contained an ellipsis in the sense that, by that clause, both parties submitted to the jurisdiction of the Courts of Singapore but the clause was silent in respect of the scope or extent of that submission: at [95]. At [98], I held that "[w]here, as in the present case, the parties did not seek to delimit the scope of their submission to jurisdiction by specifying any nexus at all, it may readily be inferred that their intention was to cast the net very broadly indeed". See also Qantas Airways Ltd v Rohrlach [2021] NSWCA 48; (2021) 304 IR 218 at [60]-[67].

Re-exercise of discretion

1. Error having been established bearing upon the exercise of the primary judge's discretion, that discretion falls to be re-exercised.
2. The relevant principles bearing upon the exercise of the discretion in a case such as the present have been set out in cases such as Global Partners and Hive. These and many other cases emphasise the important role that exclusive jurisdiction clauses play in commercial agreements. In Hive at [76], I observed that: "It is scarcely surprising that common law courts have traditionally supported such arrangements by manifesting a strong disposition towards the enforcement of such clauses whilst never accepting that private parties can "oust" the court's jurisdiction by such agreements. In Australia, this approach is based upon a series of decisions of the High Court (see Huddart Parker Ltd v The Ship "Mill Hill" (1950) 81 CLR 502; [1950] HCA 43 (Huddart Parker); Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577; [1954] HCA 62; Akai at 427-9 and 445), and a similar robust approach to the enforcement of such clauses is readily discernible in other jurisdictions, at least where such clauses are between commercial parties dealing with each other at arm's length: see, for example, Donohue v Armco Inc [2001] UKHL 64; [2002] 1 Lloyd's Rep 425 (Donohue v Armco) (England); Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] SGCA 65 at [112] (Vinmar) (Singapore); Pompey Industrie v ECU-Line NV [2003] 1 SCR 450 (Canada); M/S Bremen v Zapata Off-Shore Co, 407 US 1 (1972) (United States); Kidd v van Heeren [1998] 1 NZLR 324 (New Zealand)."
3. I indicated in Hive at [78] that the case law discloses not so much a "test" for or governing the exercise of discretion in this area but rather an approach which begins with a "firm disposition in favour of maintaining [the] bargain unless strong reasons be adduced against a stay" which has been described as a "prima facie position": Akai at 445.
4. The position is more complicated where claims by or against non-parties to the exclusive jurisdiction agreement are also included in the proceedings. Hive was just such a case as was Global Partners. The presence of such claims may, but not necessarily will, provide strong reasons against the grant of a stay of proceedings by reference to an exclusive jurisdiction clause between some but not all of the parties to the litigation. In Hive at [90], I indicated that: "The importance of holding parties to their bargain is a very powerful consideration but is not one that should be elevated or given some special status in the hierarchy of factors where not all parties to the dispute are parties to the exclusive jurisdiction clause."

Conclusion and orders

1. I propose the following orders: 1. Grant leave to appeal. 2. Appeal allowed with costs. 3. Set aside the orders of the primary judge and in lieu thereof, order that: 1. the proceedings be stayed; 2. the plaintiffs be ordered to pay the costs of the notice of motion filed on 15 March 2024.
2. LEEMING JA: I agree with Bell CJ for the reasons that his Honour gives that this Court should intervene, allow the appeal and stay the proceedings. As the Chief Justice explains, that is principally because the claim for damages for breach of statutory duty is bad in law, while the restitutionary claims for recovery against HNOE fall within the scope of the exclusive jurisdiction clause. Without detracting from the comprehensive reasons of the Chief Justice, I would add the following.
3. The passage in Barwick CJ's reasons, sitting in the original jurisdiction of the High Court, in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130; [1964] HCA 69 is familiar but also, with respect, somewhat opaque as to its application in any particular case: in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.
4. More recently, the joint judgment in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] observed that "[t]he test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." The joint judgment in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [46] cautioned that the statements in General Steel should not be given "canonical force". In Shaw v State of New South Wales [2012] NSWCA 102 at [32], Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) enunciated the test thus: The question is ... whether the claims in question are so obviously untenable or groundless that there is "a high degree of certainty" that they will fail if allowed to go to trial; and whether this is one of the "clearest of cases" in which the court may accordingly intervene to prevent the claims being litigated.

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