Submissions and Consideration
12 Both parties agreed that I had power to make the order sought and the Court was referred to CSR Limited v Cigna Insurance Australia Limited & Ors (1996-1997) 189 CLR 345 at 389 ff. It was also common ground that if the Court were to grant an anti-suit injunction, it would not be exercising its inherent power to protect its own processes but would be exercising a power deriving from equitable principles to make orders in restraint of unconscionable conduct or to restrain proceedings in a foreign court which were vexatious or oppressive. That agreement was appropriate since it is clear that the Fiji proceedings do not prevent this matter proceeding in this Court in the normal way.
13 The plaintiff submitted that the proceedings in this Court and those before the High Court of Fiji were essentially the same. There would be a considerable overlap of factual matters. He submitted that there was nothing to be gained by the first defendant from the Fiji proceedings over and above what might be gained by it in the proceedings in this Court.
14 The plaintiff submitted that the central question to be decided by the High Court in Fiji was whether the plaintiff's loss was caused by the first defendant's "actual fault or privity". If the plaintiff's loss were so caused then there would be no limitation of the first defendant's liability under the International Convention. If the plaintiff's loss was not so caused, the High Court of Fiji could determine the limit of the first defendant's liability to the plaintiff under the International Convention. The plaintiff submitted that since the tort occurred in Fiji, the law of Fiji would apply and in the proceedings before this Court, it would be open to the first defendant to raise by way of defence the limitation of its liability under the International Convention. In that way the same issue would be before the High Court of Fiji as would be before this Court.
15 The significance of the concept of "actual fault or privity" emerges from the decision of Heerey J in Alstergren v Owners of the Ship "Territory Pearl" (1992) 112 ALR 133. The words appear to draw a distinction between vicarious liability - in this case the negligence of the first defendant's employee who placed the corrosive substance in an unmarked bottle next to the plaintiff - and direct liability for which the first defendant would be responsible such as a failure to supervise or instruct that employee in correct safety procedures.
16 The defendant submitted that the proceedings in this Court and in the High Court of Fiji were fundamentally different. The proceedings in this Court were based on contract and tort and sought the recovery of unliquidated damages. The proceedings in Fiji were brought pursuant to the Marine Act 1986 (Fiji) pursuant to which the first defendant sought a declaration that its liability in relation to the incident was limited by virtue of the provisions of the Marine Act which adopt the International Convention limiting the liability of owners of sea-going ships.
17 In addition the first defendant submitted that if it were successful in the Fiji proceedings, it could obtain a relief which was not available in these proceedings. The relief sought by the first defendant in the Fiji proceedings includes the establishment of a limitation fund that would limit its liability to all potential claimants arising from the incident. This would include not only claims by the plaintiff but also claims by other persons such as the plaintiff's wife. The first defendant submitted that it was not without significance that the agreements (exhibits A and B) for the payment of monies arising out of the incident were made not only with the plaintiff but also with his wife. The first defendant submitted that although only hypothetical at this time, the plaintiff's wife may well have a claim against the first defendant for nervous shock and interference with her holiday.
18 The first defendant submitted that since the proceedings were fundamentally different and there was a remedy available to the first defendant in the Fiji proceedings which was not available in these proceedings an anti-suit injunction should not be granted against it. The first defendant relied upon CSR Limited and TS Production LLC v Drew Pictures Pty Ltd [2008] FCAFC 194.
19 The defendant also submitted that the continuation of the Fiji proceedings was relevant to any enforcement of a judgment obtained in this Court. Relying upon paragraph 14 of the affidavit of Mr Apted, the defendant submitted that if the first defendant were successful in obtaining its declaration in the Fiji proceedings, the Courts of Fiji might well decline to register the judgment of this Court on public policy grounds.
20 In CSR Limited the High Court held that "the mere co-existence of proceedings in different countries does not constitute vexation or oppression". It cited with approval the following extract from Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225:
"Double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum] does not amount to vexation or oppression."
21 Implicit in that statement of principle is a rejection of the proposition that just because additional expense will be incurred if an action is proceeding in another jurisdiction, does not of itself amount to vexation or oppression (see also TS Production LLC at [57]-[58]).
22 CSR Limited identified that which gave rise to vexation or oppression as follows:
"That foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co , if "complete relief is available in the local proceedings." (p 393-4)
23 I agree with the submission by the first defendant that different issues are involved in these proceedings and the Fiji proceedings, albeit both arise out of a common substratum of facts. It is also clear as the first defendant submitted that a remedy is available to the first defendant in the Fiji proceedings which is not available in these proceedings, i.e. the establishment of a fund from which all claims arising from this incident can be paid. That latter consideration was decisive in CSR Limited (the availability of triple damages in the US) and inferentially in Garsec v His Majesty the Sultan of Brunei [2008] NSWCA 211 (the immunity from suit of the Sultan in Brunei).
24 The extent to which the first defendant could raise the Marine Act (Fiji) and through it the International Convention in its defence in these proceedings is controversial. Certainly the first defendant could not bring an action under the Marine Act (Fiji) in New South Wales. Accordingly, it is not clear that the issue raised for decision in the Fiji proceedings would necessarily be decided in these proceedings.
25 Finally, as TS Production LLC made clear, there is the question of comity:
"[59] As a matter of law, a more restrictive approach is implicitly mandated by the High Court's statement in CSR that the mere co-existence of parallel foreign proceedings will not justify an anti-suit injunction …
[60] Imagine if courts in other jurisdictions took the contrary approach (ie that foreign proceedings ought to be stayed where there is a partial overlap of issues giving rise to additional cost due to duplication of effort). Under that rule, what would then stop the Illinois court in this case from enjoining the Australian proceedings on the basis that it would be inefficient to allow them to proceed? Should the rule be that the first party to have an anti-suit application heard and determined ought to prevail? The only way out of the chaos that would follow from such a state of affairs is to recognise the importance of the principle of comity (although a precise definition of comity is elusive, it is in many ways a restatement of the Golden Rule of "do unto others as you would have done unto you": See Black's Law Dictionary, 261-262 (7th ed 1999) and due respect for judicial proceedings regularly instituted in a foreign jurisdiction. That is to say, adopting the restrictive approach is necessary to avoid jurisdictional disputes and decisions based solely on an arbitrary consideration (ie who was first in the race to the courthouse) rather than on a point of principle such as completeness of relief, protection of the court's jurisdiction, and so forth."
26 As the above analysis demonstrates, the plaintiff has not satisfied the tests for the issuing of an anti-suit injunction set out in CSR Limited. It follows that the plaintiff has not persuaded me that he is entitled to the relief which he seeks in the motion. The orders which I make are as follows: