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The transactions of concern

4. In the first transaction, Mr Prakash complains CommSec applied an illegitimate margin, in circumstances where they had failed to make a full and proper disclosure of all of the charges applying to his account, resulting in a reduction in the value of the account in the order of $2,000,000. In the second transaction, Mr Prakash complains of the application of an illegitimate margin by CommSec and the subsequent placement of restrictions on his account which stopped him from opening new trading positions and prevented him from rolling over existing trading positions. He asserts a further loss as a consequence of the second transaction. That loss is not clearly particularised. Connection with the Territory

5. Mr Prakash lives in Queensland (Qld) and CommSec has its registered office in New South Wales (NSW). All of the relevant events occurred in the context of the operation of an online trading account. There is no suggestion of any substantive connection with the Territory in the material before me, although I note Mr Prakash previously lived in Canberra for more than 15 years, working in various public service positions.

The relevant provisions

6. Rules 40 (1) (a) and (e) provide: 40 Setting aside originating process etc (1) The court may— (a) declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or … (e) set aside an originating process; or …

7. Rule 1147 states: 1147 Summary judgment—for defendant (1) A defendant may apply to the court for summary judgment against a plaintiff at any time after filing a notice of intention to respond or defence. (2) The court may give judgment for the defendant against the plaintiff for the plaintiff’s claim for relief (or part of it) if satisfied— (a) that the claim (or part of it) is frivolous or vexatious; or (b) that there is a good defence to the claim (or part of it) on the merits; or (c) that the proceeding should be finally disposed of summarily or without pleadings. (3) The court may make any other order it considers appropriate. Example stay the proceeding

8. In relation to the applications for a stay, the Court is specifically empowered to stay a proceeding pursuant to rule 40 (1) (g). Summary dismissal - submissions and principles

9. The primary ground upon which CommSec relies for dismissal of Mr Prakash’s claim is that he currently has proceedings on foot against the same defendant in NSW which are in virtually identical terms to these proceedings. The same subject matter is traversed in two sets of proceedings commenced by Mr Prakash in Qld, each of which was summarily dismissed by the Supreme Court of Queensland on 21 November 2025. Accordingly, CommSec contends that the ACT proceedings are vexatious and an abuse of process. That the ACT and NSW proceedings relate to the same subject matter is not in contention. In Mr Prakash’s application in proceeding, he seeks the following order: I, Arjun Prakash, Plaintiff request Stay in proceedings as the same matter is filed in Supreme court of NSW and has reached default judgment accepted stage. Accepted but yet entered in NSW. [SIC]

10. A copy of the NSW statement of claim is annexed to the affidavit of Ms Zahra. The relief claimed in those proceedings is the payment of damages, compensation, interest and costs amounting to $5,110,000. A comparison of the ACT and NSW form of pleading confirms that they are in almost identical terms.

11. In relation to summary dismissal, CommSec acknowledges it bears a heavy onus. CommSec submits, in the absence of a satisfactory explanation, the commencement of two proceedings concerning identical subject matter constitutes a proper basis for summary dismissal: Rinehart v Rinehart [2020] NSWSC 68 at [587], [597] (Ward CJ in Eq). The commencement of separate proceedings, each relating to the same subject matter and seeking the same relief is on its face also vexatious. The separate proceedings are likely to result in unnecessary costs, are contrary to the goal of efficient and timely resolution of proceedings, and they carry the risk of conflicting judgments: Henry v Henry [1996] HCA 51; 185 CLR 571 at [35] (Dawson, Gaudron, McHugh and Gummow JJ), and Rinehart at [583]-[599].

12. CommSec says the commencement of serial proceedings where later claims could, with due diligence, have been ventilated in the earlier proceedings is a clear example of an abuse of process, relying on UBS AG V Tyne [2018] HCA 45; 265 CLR 77 at [46] (Kiefel CJ, Bell and Keane JJ).

13. Notwithstanding the seeking of an alternative order in the form of a stay, it is CommSec’s position this constitutes a clear case of proceedings that are an abuse of process and vexatious, thus warranting summary dismissal. In this regard, CommSec relies upon the observations of McWilliam J in Findex Group Limited v McKay [2022] ACTSC 192 at [50], [67]-[68].

14. Mr Prakash says, in the absence of a filed defence, the ACT proceedings should be maintained, albeit subject to a stay. The only basis for a stay offered by Mr Prakash is “the same matter is filed in Supreme Court of NSW”.

15. In his written submissions Mr Prakash confirms he seeks a stay pending the outcome of the related proceedings in NSW. He notes those proceedings have already reached default judgment stage. Ms Zahra confirms an application seeking to set aside the default judgment is scheduled for hearing on 23 April 2026, together with CommSec’s application to strike out the NSW claim.

16. Mr Prakash readily acknowledges that he has commenced the same proceedings in the ACT and in NSW. He says that he has a strong claim, as evidenced by CommSec’s failure to lodge a defence in each of the ACT and NSW proceedings. He seeks a stay to enable him to finalise the NSW proceedings, already at default judgment stage. In the event of a positive outcome in the NSW proceedings, he has no intention of persisting with the ACT claim.

The authorities

17. Accepting there is a very high threshold to be met in an application for summary dismissal of a claim, and recognising the need to approach such an application with exceptional caution, cases such as this one in which a party seeks to prosecute that which is the subject of, or, has already been determined in other proceedings, sit in a distinct category. In addressing that category in Walton v Gardiner [1993] HCA 77; 177 CLR 378 at [23] Mason CJ, Dean and Dawson JJ observed: …proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. (Citations omitted.)

18. In Henry v Henry [1996] HCA 51; 185 CLR 571 at [35], Dawson, Gaudron, McHugh and Gummow JJ, in dealing with the issue of proceedings in another jurisdiction, said: It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words. (Citations omitted.)

19. In Rinehart, Ward CJ in Eq identified as one of the instances of an abuse of process where the plaintiff bringing “second proceedings may obtain complete relief in the first” (at [587]).

20. There are circumstances in which a prima facie indication of an abuse of process in the form of the institution of separate proceedings for a single claim may be explained in a satisfactory way so as to avoid summary dismissal. For example: (1) The service of a notice of demand coinciding with an action in court in relation to the same debt may not be an abuse as the purpose of the demand may be to take advantage of the court processes and to show an event of insolvency: Mala Pty Ltd v Johnston (1994) 13 ACLC 100 at 102 (Master Adams). (2) The filing of a winding up summons in circumstances of parallel contract proceedings for non-liquidated damages on foot that are yet to be tried and damages yet to be ascertained: Roy Morgan Research Centre Pty Ltd v Wilson Market Research Pty Ltd (1996) 39 NSWLR 311 at 316 (Santow J). (3) An application for winding up and a proposed cross-claim in separate proceedings each concerning the same arrears of rent, but where the cross-claim for rent was only subsidiary to the primary claim and the money sum sought was severable from the primary cross-claim: Guardian Group Pty Ltd v Lu [2005] NSWSC 1299 at [58] (Brereton J).

Are these proceedings an abuse of process warranting summary disposal?

21. Mr Prakash readily acknowledges the subject matter of the proceedings in the ACT are the same as those already commenced in NSW. The remedy Mr Prakash seeks in these proceedings is identical to the remedy he seeks in the NSW proceedings. If Mr Prakash is successful in the proceedings in NSW, the outcome in those proceedings will provide a complete relief in relation to the cause of action that is the subject of these proceedings. In the circumstances, the only conclusion available to me is that these proceedings are an abuse of process and the appropriate remedy is that the proceedings are set aside.

Orders:

22. I therefore make the following orders: (1) The originating claim and statement of claim filed on 14 October 2025 are each set aside. (2) The plaintiff is to pay the defendant’s costs of the proceedings.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller.

Associate: M.G. Malouf Date: 27 March 2026