City of Swan v McGraw-Hill Companies Inc

In City of Swan v McGraw-Hill Companies Inc, the plaintiff, City of Swan, sought to sue McGraw-Hill Companies Inc for damages in a second proceeding, after having failed to join another party in the first proceeding. The plaintiff argued that the defendant in the first proceeding had not established the non-party as a concurrent wrongdoer, and that section 12GU of the Australian Securities and Investments Commission Act 2001 (Cth) permitted it to bring fresh proceedings against the non-party. The defendant argued that the plaintiff was estopped from bringing the second proceeding due to findings made in the first proceeding, and that the second proceeding was an abuse of process.

The court held that the plaintiff was not estopped from bringing the second proceeding, and that section 12GU did not prevent the plaintiff from suing the non-party in the second proceeding. The court found that the plaintiff or defendant had the onus of proving whether the non-party was a concurrent wrongdoer, and that a claim that a defendant or non-party was a concurrent wrongdoer was not a defence to the plaintiff's claim. The court also found that the plaintiff or defendant did not have the onus of proving that the non-party was not a concurrent wrongdoer. The court further held that the risk of inconsistent judgments did not preclude the plaintiff from bringing the second proceeding, as the second proceeding had a reasonable prospect of success.

The court further held that the ex parte order granting leave to serve the non-party outside of jurisdiction should not be set aside, as there was no relevant non-disclosure, and the non-party had submitted to the Court's jurisdiction. The court found that the affidavit required of belief in good cause of action in support of the ex parte application was not necessary, as the high standard of candour and responsibility required where a party seeks an ex parte order had been met.

The court dismissed the respondents' interlocutory application and ordered that the respondents pay the applicants' costs of the interlocutory application. The court held that the proceedings must be re-listed promptly for directions as to the filing of a defence and their future conduct.