Applicable Principles
22Section 67 of the Civil Procedure Act 2005 confers the Court with a discretion to stay proceedings subject to the rules of the Court. It follows that any such application stands to be determined by reference to the facts, matters and circumstances peculiar to it.
23There are however, some basal principles which bear on an application such as this, namely:
(1)a party who has regularly invoked the jurisdiction of a competent Court has a prima facie right to insist upon its exercise and to have his claim heard and determined; [ RSL Com Personal Communications Pty Ltd v Mobile Tron Pty Ltd [2001] NSWSC 819 at [6]];
(2)a mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action (in a Court of its choice) if it is otherwise properly brought; [ St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 at 398]
(3)in order to justify a stay:
(a)The defendant must satisfy the Court that the continuance of the action would work an injustice because it would be oppressive or vexatious or would be an abuse of process of the Court in some other way; and
(b)The stay must not cause an injustice to the plaintiff. [ St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 at 398];
(4)the mere co-existence of proceedings in different countries does not constitute vexation or oppression; it is necessary to show that an abuse of process would stem from the prosecution of litigation in a clearly inappropriate forum [ CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 389-393];
(5)the discretion is not exercised simply by an inquiry as to which is the more appropriate forum [ Keenco v South Australia & Territory Air Service Ltd (1974) 23 FLR 155 at 162-3.] ;
(6)it is not sufficient for a defendant/applicant relying upon lis alibi pendens ground to point out that there are two proceedings being taken with reference to the same subject matter. It is necessary to go further and demonstrate vexation in the sense that there is no necessity for "harassing the defendant by double litigation". It does not apply to cases where the plaintiff (in the local jurisdiction) is the defendant in a foreign Court because there is no question of his commencing double litigation so as to harass [ The Hagen [1908] P 189];
(7)a plaintiff is, prima facie, entitled to retain his status as dominus litis and the advantage of control over the conduct of the litigation [ The Hagen [1908] P 189] ;
(8)it is incumbent upon the defendant/applicant to show that the party instituting the proceedings sought to be stayed can gain no advantage from it and the existence of some motive other than a bona fide desire to determine the dispute [ Cohen v Rothfield [1919] 1 KB 410 at 414] ;
(9)where the plaintiff has not himself commenced both proceedings the case against interference is strong [ Cohen v Rothfield [1919] 1 KB 410 at 444] ;
(10)whether the involvement of a third party would mean that an injunction would generate a multiplicity of proceedings [ Sokana Industries Inc v Freyre & Co Inc [1994] 2 Lloyd's Rep 57] ;
(11)the burden of proof is on the defendant/applicant [ St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 at 398; Environmental Group Ltd & Anor v Croudace & Crodace Holdings Pty Ltd (per Santow J, Supreme Court of New South Wales, 7 August 1998,unreported)] .
24There is a further principle which is apposite to proceedings in the Commercial List of the Equity Division. It is best summarised by reference to my own decision in Rexam Australia Pty Ltd v Optimum Metallising Pty Ltd & Anor [2002] NSWSC 916 where I said at [29]-[30]:
"The Commercial List proceedings have comprised the regular invoking by parties to a commercial contract of the jurisdiction of the Commercial List which operates upon the basis of the speedy determination of commercial proceedings in the interest of the commercial community and of all parties to commercial contracts. Speed is very often of the essence in these proceedings and the Commercial List endeavours to case manage and determine proceedings in its list with the expedition necessary, but always consistent with the interests of justice, in order to ensure that no party to a commercial contract will, if this can be avoided, suffer by dint of delay in the fixing of a final hearing and in the production of a relatively speedy judgment.
...the continued stay of the Commercial List proceedings over an extended period of time, comprise as it seems to me, an overwhelming consideration in favour of not justifying the stay. Whilst it is of course possible that prior to the determination of these proceedings, the Industrial Relations Commission proceedings could conceivably lead to orders setting aside or varying the very contract upon which these proceedings are based, in a case such as this that circumstance is only one of the circumstances to be taken into account..."
25To pull these threads together, the basal propositions seem to be :
(1)A party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon its exercise and to have his claim heard and determined;
(2)The onus lies on the applicant to establish a reason why this prima facie right should be displaced. The generally accepted relevant considerations are set out by Lockhart J in Sterling Pharmaceuticals Pty Ltd v Boots & Co (Aust) (1992) 34 FCR 287;
(3)An important concern of the Court is to prevent a situation of issue estoppel, where two Courts may be asked to determine the same matter;
(4)My own judgment in Rexam affirms the above principles and notes a particular although by no means absolute reluctance to stay matters in the commercial list.