Plaintiff v Defendants

2 In making the application, the plaintiffs rely on the affidavit of Maurice Thompson dated 18 February 2026.

3 A writ was filed on 15 December 2023. The evidence discloses that the writ was filed on that date to avoid the operation of potentially applicable limitation periods. The writ was not served, as was the plaintiff's right, until a year later in December 2024. A statement of claim was filed on 28 January 2025. It is authored by senior counsel and is 46 paragraphs long.

4 The pleading focuses on what are defined as the 'Project Pani' agreements, which are said to comprise: a Memorandum of Understanding dated 6 October 2011; a second Memorandum of Understanding dated 7 August 2012; and an Amendment and Accession Agreement dated 11 October 2012.

5 The allegations of breach concerning the Project Pani agreements involve acts undertaken between at least May 2015 and 2018. The allegations that are maintained against the presently active defendants - being the first, third and fourth defendants - are allegations of inducement of breach of contract. That requires the plaintiffs to plead and establish awareness, in the relevant sense, of the agreements and the matters giving rise to their breach.

6 Put simply, the pleading therefore requires proof of knowledge of matters that are now between at least eight and eleven years ago. The claims are alleged - at least according to the affidavit material of Mr Thompson - to be worth at least USD 50 million. There is no differentiation presently made between the liability, in quantitative terms, of the corporate defendant and the two individuals.[1]

7 Following the service of the statement of claim, the parties agreed to consent orders made on 2 June 2025 providing that: the plaintiff would give security for the active defendants' costs up to and including mediation in the amount of $350,000; that the proceeding would be stayed pending payment of that security; and the pleading would be dismissed if security was not provided on or before 15 December 2025.

8 Very shortly prior to the deadline for the provision of security, security was paid into court. I was informed by counsel for the plaintiff that it was paid into court in cash. Therefore, other than the filing of the statement of claim and the provision of security, no other steps have been taken in the litigation. At this directions hearing, the active defendants seek orders for the filing of a defence, a reply, the provision of critical documents and the setting down of the matter for mediation.

9 As I have indicated, the plaintiffs rely on the affidavit of Maurice Thompson dated 18 February 2026. I have taken that affidavit into account, and particularly the matters deposed to by Mr Thompson at paragraphs 9, 11 and 13 to 23. I have set out those matters below:

1. On 22 April 2025, the Plaintiff formally engaged me to seek to secure litigation funding and 'after the event' (ATE) insurance for the matter.

...

1. However, by the time I was engaged to seek litigation funding, my options were more limited by the fact that the previous attempt had already exhausted most of the locally based litigation funding companies as options.

...

1. While the two litigation funding companies with Australian operations declined interest, the USA based litigation funding company engaged deeply on the brief over a period of about 5 weeks and confirmed they were interested in providing funding. Unfortunately, no sooner than that was communicated, the funder's head office in the USA instituted a world-wide policy to increase the level of damages required of a case before they would invest, to AUD$100m. As that figure exceeded the quantum likely to be sought in this matter, the indicative interest was withdrawn.

2. On 11 August 2025, I engaged the services of specialist litigation funding and ATE insurance brokerage company Vie Legal Insurance Pty Ltd (Vie Legal) to assist in seeking to secure litigation funding and ATE insurance for the matter. Vie Legal is Sydney based but with senior management also located in London.

3. Vie Legal identified three further litigation funding companies who were Australian based, but approaches to them did not yield much interest and ultimately all declined.

4. In September 2025, Vie Legal identified a Hong Kong based multi-strategy investment manager for a large international private equity entity who expressed some interest in potentially funding the matter.

5. To assist the Hong Kong entity to consider its appetite to provide litigation funding for the matter, Vie Legal has formally approached several insurers as to the availability of ATE insurance in connection with the matter.

6. A challenge in securing offers for ATE insurance is that the Plaintiff is an Indonesian based company and as a consequence, there are certain regulatory matters that must be satisfied as to market availability of ATE insurance in Indonesia before a foreign ATE insurance provider may step in and offer such insurance. I am informed by Vie Legal and believe that Indonesian law provides that insurance must be purchased from locally authorised insurers unless:

(a) no insurer licensed in Indonesia has the ability to retain or manage the insurance; or

(b) no insurer licensed in Indonesia is willing to provide insurance.

1. In order to satisfy either exception, I am informed by Vie Legal and believe that a buyer must show proof to the Indonesian regulator that they have approached the Indonesian insurance market exhaustively and have not found any locally licensed insurance company able or willing to provide the proposed insurance.
2. The Plaintiff is being assisted in dealing with these regulatory matters by global insurance brokers Howden, with the Chairman of Howden Australia personally assisting to drive the process to a conclusion as quickly as possible.
3. Vie Legal has informed me, and I believe, that they are confident they will be able to price suitable ATE cover. If that can be done, then that ATE cover would provide the Hong Kong funding entity with the confidence that it would not be exposed to any claim made against the Plaintiff for adverse costs. Accordingly, if Vie Legal can obtain offers for ATE cover, I am much more likely to secure funding.
4. With this in mind, I remain confident that suitable litigation funding arrangements for this matter can be secured. However, I require more time to do so and respectfully seek the Court's indulgence of an adjournment of a period of 6 months.
5. I am instructed by the Plaintiff that unless suitable litigation financing arrangements can be put in place that would both fund the conduct of this matter and secure insurance or a funder's indemnity for the Plaintiff against adverse costs risk beyond that already secured, the Plaintiff will not be able to continue with the matter as its financial position would not permit it to fund the prosecution of its claim or take on further adverse costs risk.

10 I have also taken into account s 7(1) of the Civil Procedure Act 2010 (Vic), which requires the facilitation of the just, efficient, timely and cost-effective resolution of the real issues in dispute.

11 Turning then to Aon Risk Services Australia Ltd v Australian National University,[2] it is appropriate to recognise that 'undue delay can undermine confidence in the rule of law.'[3]

12 In Sali v SPC Ltd[4] Justices Brennan, Deane and McHugh stated:

What might be perceived as an injustice to a party when considered only in the context of an action between parties, may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.

The observations made in the two joint judgements in Sali were linked to the particular knowledge that a judge or court called upon to exercise a discretion to adjourn, would have of the state of the court's lists. However, the mischief engendered by unwarranted adjournment and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur.

14 At paragraph 98 of the judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ in AON, their Honours referred to rule 21 of the Court Procedure Rules 2006 (ACT).[6] Those rules capture similar concepts of justice, efficiency and speed in the resolution of commercial disputes to those now enshrined in the Civil Procedure Act 2010 (Vic). Their Honours identified that: 'a just resolution of proceedings is to be understood in light of the purposes and objectives stated. Speed and efficiency in the sense of minimum delay and expense are seen as essential to the just resolution of the proceeding.'[7] It is also appropriate to reiterate and apply that which was said by Justice Heydon in AON concerning the requirements of speedy and efficient litigation in the conduct of commercial life and the impact of litigation on commercial participants.[8] His Honour stated as follows:[9]

The character of the litigation commenced. The litigation thus commenced was commercial litigation. While in general it is now seen as desirable that most types of litigation be dealt with expeditiously, it is commonly seen as especially desirable for commercial litigation. Its claims to expedition may be less than those of proceedings involving, for example, extraordinary prejudice to children; or the abduction of children; or a risk that a party will lose livelihood, business or home, or otherwise suffer irreparable loss or extraordinary hardship, unless there is a speedy trial. But commercial litigation does have significant claims to expedition. Those claims rest on the idea that a failure to resolve commercial disputes speedily is injurious to commerce, and hence injurious to the public interest. As Rogers J stated in Collins v Mead:

"For example, if banks are unable to collect overdue loans from borrowers speedily, if small traders cannot recover moneys owed to them speedily the commercial life of the [c]ommunity is detrimentally [a]ffected. The consequences of delay in the hearing of a commercial dispute ... will impact not just on the two or three persons or companies who are the immediate parties, but may have an effect on the creditors of the business, on employees, and perhaps on other traders unrelated to the immediate dispute."

Commercial life depends on the timely and just payment of money. Prosperity depends on the velocity of its circulation. Those who claim to be entitled to money should know, as soon as possible, whether they will be paid. Those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay. In each case that is because it is important that both the claimants and those resisting claims are able to order their affairs. How they order their affairs affects how their creditors, their debtors, their suppliers, their customers, their employees, and, in the case of companies, their actual and potential shareholders, order their affairs. The courts are thus an important aspect of the institutional framework of commerce. The efficiency or inefficiency of the courts has a bearing on the health or sickness of commerce.

15 The time period in question in this litigation is significant and delay in the prosecution and determination of this litigation in circumstances where there are allegations of knowledge concerning events a decade ago is a particularly material factor. For that reason, I have had regard to the judgment of Justice McHugh in Brisbane South Regional Health Authority v Taylor,[10] where, in the context of the identifying the rationale behind limitation periods, his Honour noted that a focus on 'the effect of delay on the quality of justice is required.'[11] His Honour stated that:

Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists.[12]

16 Applying McHugh J's observations in the present context, I consider that further delay in the advancement of this proceeding will prejudice the active defendants having regard to the historic nature of the allegations made.

17 The evidence of Mr Thompson discloses that, in Mr Thompson's assessment, six months will offer a period in which litigation funding may be secured. I observe that six months, on the evidence, really offers no certainty and no precision. I further observe that there has been no satisfactory explanation as to why from the time it was decided to take action in this case - which I infer was prior to December 2023 - no meaningful step was taken to investigate overseas litigation funding until mid-2025.

18 Moreover, I do not accept that the plaintiff can take no steps in this litigation for a period of six months. The plaintiff can produce documents briefed to counsel for the purpose of drawing the statement of claim or key documents identified in the various attempts to 'pitch' this matter to litigation funders. I also consider that the plaintiff can 'cut its cloth' in respect of the pleadings. At this stage, the plaintiff will only be required to file a reply as counsel for the defendant identified that no counterclaim was presently contemplated.

19 Contrary to the oral submissions of the plaintiff on instructions, I do not consider that the necessity of updating litigation funders with respect to any defence, or the content of a defence, has a meaningful or proper effect on the timing of obtaining litigation funding. Any rational litigation funder would know that the defence will be filed in due course in this proceeding and will potentially be assisted by the early presentation of that defence. That cannot be an influential factor.

20 I accept that a mediation in the present case is premature. It would be likely a fruitless mediation if ordered now because it would either be conducted in circumstances where litigation funding was uncertain, or in circumstances where a litigation funder required advice on the critical documents produced by the defendants.

21 In the circumstances, I will make the following orders:

1. By 4:00pm on 10 April 2026, the first, third and fourth defendants are to file and serve a defence containing full particulars.

2. By 4:00pm on 8 May 2026, the plaintiff is to file and serve any reply containing full particulars.

3. By 4:00pm on 5 June 2026, to the extent there has not already been compliance, the parties are to disclose to each other the existence of all documents that are or have been in that party's possession, custody or control, of the kind referred to in s 26 of the Civil Procedure Act 2010 (Vic), save that the Plaintiff's obligation is confined to disclosing only those documents of which its solicitors and counsel are presently aware.

4. The proceeding is listed for a directions hearing at 10:00am on 12 June 2026.

[1] The second defendant is deregistered.

[4] [1993] HCA 47; [1993] 67 ALJR 841, 844.

[6] AON, 213 [98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[10] (1996) 186 CLR 541.