Commonwealth of Australia v Cockatoo Dockyard Pty Ltd

[2003] NSWCA 192

CITATION:	Commonwealth of Australia v. Cockatoo Dockyard Pty. Ltd. [2003] NSWCA 192
HEARING DATE(S):	5 May 2003
JUDGMENT DATE:	14 July 2003
JUDGMENT OF:	Hodgson JA at 1; Santow JA at 35; McColl JA at 36
DECISION:	Application for leave to appeal dismissed with costs.
CATCHWORDS:	DUST DISEASES - Dust diseases legislation - Dust Diseases Tribunal - Exclusive jurisdiction - Jurisdiction of Supreme Court to hear ancillary or related matters - PROCEDURE - Abuse of process - Application for stay - Associated proceedings between same parties in different courts - Further proceedings involving another party raising issue raised in subject proceedings - Whether stay should be granted - Role of case management
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 ss.10, 11
CASES CITED:	Amaca Pty. Ltd. v. CSR Ltd. (2001) 51 NSWLR 476 Australian Dairy Corp. v. Murray Goulburn Co-op Ltd. (1990) VR 355 Australian Mid-Eastern Club Ltd. v. Elbakht (1988) 13 NSWLR 697 Bryanston Finance v. De Vries (No.2) [1976] 1 Ch. 63 CFMEU v. Commonwealth of Australia [1999] FCA 1571 Clarke v. Darley (1898) 14 WN(NSW) 129 Hearn v. Commonwealth (2000) 21 NSWCCR 203 Henry v. Henry (1976) 185 CLR 571 Hughes Motor Services Pty. Ltd. v. Wang Computer Pty. Ltd. (1978) 35 FLR 346 James Hardie & Coy. Pty. Ltd. v. Barry (2000) 50 NSWLR 357 L & W Developments Pty. Ltd. v. Della [2003] NSWCA 140 Logan v. Bank of Scotland (No.2) [1906] 1 KB 141 Maple v. David Syme & Co. Ltd [1975] 1 NSWLR 297 Maple v. David Syme & Co. Ltd. [1974] 1 NSWLR 290 McHenry v. Lewis (1883) 22 Ch. 397 Moore & Ors. V. Inglis (1976) 50 ALJR 589 Oceanic Sunline Special Shipping Co. Inc. v. Fay (1988) 165 CLR 197 Peruvian Guano Co. v. Bockwoldt (1883) 23 Ch.D. 225 Petro v. Kno 91918) 35 WN(NSW) 32 Port of Melbourne Authority v. Anshun Pty. Ltd. (1981) 147 CLR 589 Rexam Aust. Pty. Ltd. v. Optimum Metallising Pty. Ltd. [2002] NSWSC 916 Reynolds v. Reynolds [1977] 2 NSWLR 295 Seltsam Pty. Ltd. v. Energy Australia (1999) 17 NSWCCR 720 Southern cross Exploration NL v. Fire & All Risks Insurance Co. Ltd.[No.2] (1990) 21 NSWLR 200 State of Queensland v. J.L. Holdings Pty. Ltd. (1997) 189 CLR 146 Sterling Pharmaceuticals Pty. Ltd. v. Boots & Co. (Aust) Pty. Ltd. (1992) 34 FCR 287 White v. Grogan [1972] 2 NSWLR 347 Williams v. Hunt [1905] 1 KB 512 Williams v. Spautz (1992) 174 CLR 509
PARTIES :	Commonwealth of Australia - appellant Cockatoo Dockyard Pty. Limited - respondent
FILE NUMBER(S):	CA 40581/02
COUNSEL:	Mr. R. Burbidge QC with Mr. P.T. Taylor for appellant Mr. G. Parker with Mr. B. Katekar for respondent
SOLICITORS:	Australian Government Solicitor for appellant Allens Arthur Robinson, Sydney for respondent

LOWER COURTJURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC50165/01
LOWER COURT JUDICIAL OFFICER :	Bergin J

CA 40581/02
SC 50165/01

HODGSON JA
SANTOW JA
McCOLL JA

Monday 14 July 2003

COMMONWEALTH OF AUSTRALIA V. COCKATOO DOCKYARD

PTY. LIMITED

Judgment

1 HODGSON JA: On 13 June 2002, Bergin J in the Commercial List of the Equity Division dismissed an application brought by the claimant (the Commonwealth) against the opponent (Codock) for a stay of proceedings brought in that list by Codock against the Commonwealth. The Commonwealth seeks leave to appeal from that interlocutory decision. The leave application has been argued on the basis that, if leave is granted, the appeal will be decided without further argument.

CIRCUMSTANCES

2 Codock carried on the business of ship building, ship repair and general engineering, at Cockatoo Island Dockyard in Sydney Harbour, from 1933 to 1992. The Dockyard was owned by the Commonwealth, and Codock operated it under a series of agreements and leases with the Commonwealth.

3 Since the late 1980s, Codock has been the subject of asbestos-related personal injury claims by former employees and by others working at the Dockyard.

4 Codock has alleged and continues to allege against the Commonwealth that, as a result of such claims, it has incurred costs attributable to its work at the Dockyard. In relation to employees, these allegations have been in respect of payments responding to the claims, to the extent that they are not covered by insurance, excess payable on claims covered by insurance, and the costs of administering and defending the claims. In relation to claims brought by others, notably employees of contractors, Codock alleges it has incurred the same costs as in the case of employees, and in addition, costs of insurance litigation.

5 Codock has alleged and continues to allege that, pursuant to its agreements with the Commonwealth, the Commonwealth is liable to reimburse to it overhead costs incurred from 1 July 1987, less a certain credit, plus a fee of 7.5%; and that the various categories of costs specified above are such overhead costs.

6 In December 1992, a Notice of Dispute was served in relation to various claims by Codock, including claims for reimbursement of costs associated with asbestos claims against Codock by various persons. These claims, and also a claim by the Commonwealth against Codock, were arbitrated before John West QC, over 179 hearing days. On 8 December 1995, there was an interim award generally in favour of Codock, including an award in respect of costs associated with asbestos claims up to 31 October 1995.

7 The present proceedings claim reimbursement of costs incurred by Codock since 31 October 1995 in respect of claims by 28 former employees and nine former employees of contractors. All 37 claims have given rise to proceedings in the Dust Diseases Tribunal, and in all of them, Codock has issued or (it would seem) intends to issue cross-claims against the Commonwealth, and in some cases against other parties.

8 In all cross-claims, indemnity or contribution is sought under s.5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. Six of the cross-claims assert a contractual liability in the Commonwealth to indemnify Codock, based on two alleged implied contractual terms, although Codock has indicated that it does not intend to pursue that aspect of the cross-claims and is prepared to undertake to seek leave to withdraw them. It seems that the Commonwealth has also put on some cross-claims against Codock in some of those proceedings.

9 Some of the proceedings in the Dust Diseases Tribunal have been settled with the plaintiff or have proceeded to judgment. In such cases, it has been the practice of Codock and the Commonwealth to make a contribution towards settlement or judgment provisionally, generally on a 50/50 basis, on the understanding that the cross-claims would be stood over. It seems that, where there have been other defendants contributing to the judgment or settlement, those defendants have generally contributed their share on a final rather than a provisional basis. Neither Codock nor the Commonwealth has proceeded further with any of these cross-claim proceedings.

10 In 1999, Codock commenced proceedings in the Commercial List against various insurers and insurance brokers in respect of the nine actions by employees of former contractors, seeking an indemnity or damages in respect of its costs incurred and payments made in relation to those proceedings. These proceedings, called by the primary judge the insurance proceedings, have not yet been heard.

11 The proceedings in which the present application is brought were commenced in 2001, claiming costs associated with the 37 claims paid since 31 October 1995, plus the profit margin of 7.5%.

12 In its Notice of Grounds of Defence dated 18 March 2002, the Commonwealth relied on many defences, including the following:

22. In further answer to the Plaintiff's contentions, the Defendant says:
(a) costs incurred prior to the award dated 8 December 1995 in the previous arbitration were properly a matter belonging to the previous arbitration proceedings;
(b) the Plaintiff sought an award in respect of those costs in the previous arbitration proceedings;
(c) those costs were the subject of an award dated 8 December 1995 in the previous arbitration proceedings;
(d) in the circumstances, the Plaintiff is estopped from claiming those costs in these proceedings on the basis of res judicata or alternatively Anshun principles.

23. In further answer to the Plaintiffs Contentions the Defendant says:
(a) the Plaintiffs claim for reimbursement for personal injury claim costs incurred from October 1995 was put forward by the Plaintiff for determination in the previous arbitration proceedings between the parties;
(b) the Plaintiff by its Counsel abandoned the claim during the final submissions in the previous arbitration proceedings;
(c) in the circumstances the Plaintiff is estopped from claiming in these proceedings reimbursement for personal injury claim costs incurred from October 1995 onwards on the basis of Anshun principles.

…

26. In further answer to the Plaintiffs Contentions the Defendant does not admit that the expenses listed in the Schedule to the Summons:-
(a) were incurred by the Plaintiff;
(b) were not reimbursed by an insurer of the Plaintiff;
(c) are not liable to be reimbursed by an insurer of the Plaintiff;
(d) are appropriately described in the Schedule.

…

29. In further answer to the Plaintiffs Contentions the Defendant says:-
(a) the costs claimed by the Plaintiff in the Summons arise out of the failure by the Plaintiff to exercise appropriate standards of skill and care at the Dockyard, in not providing a safe system of work at the Dockyard;
(b) the costs claimed by the Plaintiff in the Summons arise out of a failure by the Plaintiff to use appropriate skill, care and efficiency at the Dockyard in that the Plaintiff failed to ensure there was adequate insurance cover against personal injury claims;
(c) the Plaintiff and the Defendant agreed that the Defendant would not be responsible for any costs arising out of the failures pleaded in (a) and (b) above
PARTICULARS
Sub-clause 7(4) of the 1963 Agreement; see also sub-clause 3.11 of the 1984 Standard Conditions.

13 In its reply, Codock sought to rely on an issue estoppel arising from the arbitration proceedings, as follows:

7. It was determined in previous arbitration proceedings that:
(a) It was a term of the 1972 Trading Agreement, as varied by the Substituted Mode of Performance and the Advance Agreement, that the Defendant would reimburse to the Plaintiff, plus a fee of 7.5%, all indirect costs whether incurred before or after 31 December 1992 attributable to cost plus work undertaken by the Plaintiff in the course of its occupation of the Dockyard ('Overhead Costs') less a credit calculated by reference to commercial work undertaken by the Plaintiff in the course of its occupation of the Dockyard.
(b) Workers' Compensation Costs (within the meaning of paragraph 24 of the Plaintiffs Contentions) were and are Overhead Costs.
(c) The Plaintiff had a contractual entitlement to reimbursement of all Workers' Compensation Costs plus 7.5%.
PARTICULARS
Reasons and Interim Award of Mr John West QC, dated 8 December 1995.

8. Consequently, by reason of the- previous arbitration proceedings:
(a) the Defendant is estopped from denying paragraphs 26 and 27 of the Plaintiffs Contentions; and
(b) the denial and non-admission, in paragraph 16 of the Defence (as that paragraph relates to paragraph 27 of the Plaintiffs Contentions) and the denial in paragraph 21 of the Defence of any subsisting contractual obligations and the pleas in paragraphs 24, 25, 27, 28, 29 and 30 of the Defence are not maintainable.

14 On 12 June 2002, the Commonwealth filed a Notice of Motion seeking an order that the summons in these proceedings be stayed. This application was heard and determined by Bergin J on 13 June 2002.

15 The Commonwealth’s contention before the primary judge was that bringing these proceedings was an abuse of process, and that the proceedings should be stayed pending the outcome of the cross-claims in the Dust Diseases Tribunal and/or the insurance proceedings. Mr. Burbidge QC for the Commonwealth relied on Sterling Pharmaceuticals Pty. Ltd. v. Boots & Co. (Australia) Pty. Ltd. (1992) 34 FCR 287 at 291. He submitted that it was an abuse to bring actions in two courts involving substantially the same issues, and that Codock had first brought the proceedings in the Dust Diseases Tribunal. He referred to the undesirability of two courts competing to see which determination of common facts occurred first. He also submitted that in these proceedings Codock was seeking costs which could fall within the claims made against the defendants in the insurance proceedings.

16 The primary judge referred to submissions by Mr. Parker concerning the lateness of the application and the incurring of costs in these proceedings, and also a submission that, if Codock recovered in these proceedings amounts covered by insurance, it would have to reimburse the Commonwealth for such amounts.

17 The primary judge concluded:

It seems to me that the Tribunal is a specialist jurisdiction and of course the Cross-Claims may proceed before it but at the moment that is not happening. It is clear that these proceedings, from the very clear and concise defence that has been pleaded, have certainly proceeded further than the Cross-Claims in the Tribunal. The issues raised on the pleadings in these proceedings are certainly matters that fit well within the Commercial List and if one goes to the issues likely to arise in the Notice of Grounds of Defence it is clear that the defendant maintains that this Court will be required to decide the terms of the contractual arrangements between the plaintiff and the defendant over the period between 1933 and to date.

The matters set out in paras 2 through to 32 are issues that seem to me to be exquisitely placed in the Commercial List of this Court. That does not mean to say that other judges of other courts would not or could not decide these issues, but they are issues propounded by the defendant as it has in fact come to the jurisdiction by the filing of the Notice of Grounds of Defence.

I should also refer to Practice Note 100 which requires that the proceedings be heard promptly. There is also reference in that Practice Note to a resistance by the Commercial List judges to hearing applications of this nature, that is for the former order sought that the Summons be dismissed summarily.

In any event, I am satisfied that it is in the public interest that the Tribunal is freed up for the very obvious and urgent business with which it is involved which is the hearing of plaintiffs' claims suffering dust diseases. It seems to me that the proceedings in this Court may go forward in circumstances where the defendant's rights in respect of other proceedings are protected. I am not satisfied that these proceedings are an abuse of process. In respect of any matter that may amount to serious prejudice which has not been established today which becomes a problem during the course of these proceedings, the defendant, of course, can make any relevant application it wishes.

18 The Commonwealth seeks leave to appeal on the following grounds:

1. Her Honour Bergin J erred in that she failed to give any or any proper consideration to the circumstances that in proceedings SC No 50130/99 ("the Insurance proceedings") the plaintiff seeks an indemnity and costs in respect of expenses the subject of claims in the instant proceedings.

2. Her Honour erred in failing to give any or any proper consideration to the submission of the Appellant that the Respondent ought as a condition of continuing the instant proceedings, be required to bring all disputes concerning expenses, which it seeks to recover in the instant and in other proceedings, to be heard in the instant proceedings (at p.8.8).

3. Her Honour erred in failing to take into consideration, alternatively to deal with the cost of preparing a trial in respect of claims for losses which losses are contingent upon the outcome of the Insurance proceedings in this Court.

4. Her Honour erred in failing to deal with the submission that allowing the instant proceedings to continue will result in two or more lengthy hearings in respect of the same subject matter, at which the same witnesses will give evidence and the same legal arguments will be advanced.

5. Her Honour erred in determining the matter on a mistaken assumption (p 2.2) that the Appellant had ceased to make payments of costs contrary to an Arbitrator's award.

6. Her Honour erred in determining the matter on the mistaken assumptions (pp 4.9-5.1) that the parties had joined issue in the Arbitration on the subject matter of the claim before her, and (pp 5.9-6.1) that the subject matter of the instant proceedings had already been the subject of findings by the Arbitrator.

7. Her Honour erred in determining the matter on an assumption that the instant proceedings were more advanced than the cross-claims in the Dust Diseases Tribunal (“the DDT”) (pp 4.8, 9.1).

8. Her Honour erred in taking into consideration and relying upon a perceived public interest that the DDT ought be freed up to deal with other plaintiffs' claims (pp 9.9-10.1) when-

(a) there was no evidence of the DDT's workload, and
(b) her Honour's orders did not affect the necessity or time required for the DDT to hear the proceedings between the Appellant and the Respondent.

9. Her Honour erred in holding (p 4.6) that the Supreme Court can control the proceedings in the DDT.

10. Her Honour erred in accepting (pp 6.5-6.9) a submission that the Respondent in the instant proceedings may be relied upon to credit the Appellant after final judgment should it subsequently recover in the Insurance proceedings or the DDT proceedings amounts which it recovers in the instant proceedings.

SUBMISSIONS

19 Before this Court, Mr. Burbidge took us to particulars provided by Codock in its claim against the Commonwealth, and particulars provided in the insurance proceedings, and pointed out that, in relation to the nine claims by employees of former contractors, Codock was claiming the same amounts in respect of its contribution to the settlement of some of those claims and costs incurred in relation to them. He pointed to a statement by Codock in a letter of an intention to assert against the Commonwealth in the present proceedings its “… contractual right to be reimbursed … together with a profit margin … to the extent that it is not covered by insurance, contribution or costs orders …”. Nevertheless, he submitted, Codock was proposing to have the present proceedings determined before the insurance proceedings, albeit with an intent to refund to the Commonwealth sums recovered by it from the Commonwealth in the present proceedings if they were recovered from its insurers or brokers in the insurance proceedings. Mr. Burbidge submitted that the policies on which Codock sues in the insurance proceedings were to provide indemnity to Codock in respect of claims by third parties, but did not require any payment to Codock of any sum which it has not lost. Were Codock to recover from the Commonwealth the costs which it was claiming in relation to the nine proceedings, it would have neither incentive nor any legal basis to pursue its claims against the insurers and brokers.

20 Mr. Burbidge submitted that, while the primary judge adverted obliquely to this issue by referring to some submissions by Mr. Parker, she never addressed the issue herself or gave any reasons in relation to it.

21 Turning to the Dust Diseases Tribunal proceedings, Mr. Burbidge submitted that the issues in the present proceedings were so relevant to the issues in the Dust Diseases Tribunals cross-claims that it was unreasonable for them not to be brought forward there and relied on there. He submitted that those cross-claims would require determination of relative culpabilities between Codock, the Commonwealth, suppliers and manufacturers of asbestos and various employers during time periods on a just and equitable basis; and the relative responsibilities of Codock and the Commonwealth under the contractual relations between them will fall to be determined as part of these issues. The present proceedings would not dispose of any cross-claim, should Codock’s claim here fail. There would be a real likelihood of inconsistent judgments being reached in the Dust Diseases Tribunal, in consequence of differing considerations which there fell for decision.

22 Mr. Burbidge submitted that, although Codock was indicating an intention not to pursue the claims of a contractual entitlement in the Dust Diseases Tribunal, those claims were still on foot, and leave of the Tribunal would be required to withdraw them.

23 Mr. Burbidge also referred to ss.10 and 11 of the Dust Diseases Tribunal Act 1989, which are in the following terms:

10(1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12.
(2) The Tribunal has such other jurisdiction as may be conferred on it by or under any other Act.
(3) The Tribunal has, wherever sitting, jurisdiction throughout New South Wales.
(4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court.
(5) Subject to sections 13 (6) and 14, a decision of the Tribunal has the same effect as, and may be enforced in the same way as, a decision of the Supreme Court.
(6) The following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the provisions of sections 471B and 500 (2) of that Act:
(a) proceedings under section 11 of this Act,
(b) proceedings transferred under section 12 of this Act,
being proceedings that, but for this subsection, could not be commenced or proceeded with without the leave of the Court referred to in section 471B or 500 (2) of the Corporations Act 2001 of the Commonwealth.
(7) Proceedings to which subsection (6) refers are declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to sections 471B and 500 (2) of the Corporations Act 2001 of the Commonwealth as if a reference in those sections to the Court were a reference to the Tribunal.

11(1) If:
(a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition, and
(b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and
(c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death,
proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal.
(2) In subsection (1), a reference to a duty includes a reference to a duty imposed by statute as well as a duty imposed under the common law.
(3) If the cause of action giving rise to proceedings to be brought under subsection (1) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered.
(4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) may also be included in those proceedings.
(5) In subsection (1) (c), the reference to a person claiming through a person who is or was suffering from a dust-related condition includes a reference to a relative for whose benefit an action may be brought under the Compensation to Relatives Act 1897.

24 He submitted that the cross-claims attracted the exclusive jurisdiction of the Dust Diseases Tribunal, and this meant that the Supreme Court had no jurisdiction in relation to claims made by Codock for contribution or indemnity in relation to the claims in respect of which the cross-claims had been lodged, at least in those cases where the cross-claims were based on contract as well as the Law Reform (Miscellaneous Provisions) Act. He referred to Seltsam Pty. Ltd. v. Energy Australia (1999) 17 NSWCCR 720 at [19], [41], [53] and [60]; James Hardie & Coy. Pty. Ltd. v. Barry (2000) 50 NSWLR 357 at [61], [62]; and Amaca Pty. Ltd. v. CSR Ltd. (2001) 51 NSWLR 476 at [23], [30]-[37]. He submitted that the view of Fitzgerald JA at [60] in the first of those cases was to be preferred to that of Bergin J in the third of them.

25 Mr. Parker for Codock submitted that some of the costs sought to be recovered in these proceedings could not be recovered either in the insurance proceedings or in the cross-claims, for example the costs of generally administering claims, including such things as the costs of storage of large quantities of documents. He accepted that it could be desirable to have the insurance proceedings determined first, but submitted that this was a matter for case management of both proceedings in the Commercial List, not for a general stay of these proceedings as sought by the Commonwealth. As regards the Dust Diseases Tribunal proceedings, Mr. Parker submitted that the question of stay was, at best for the Commonwealth, a matter for discretion, and the primary judge’s discretion had not miscarried. The arbitration had proceeded despite the Dust Disease Tribunal cross-claims, and the Commonwealth had not brought this stay application until after the pleadings in these proceedings had been completed.

26 On the matter of alleged exclusive jurisdiction, Mr. Parker noted that this had not been raised before the primary judge, and that the intention to raise this argument had been notified only last week. Mr. Parker said he was not ready to argue this matter fully, beyond relying on the decision of Bergin J in Amaca v. CSR.

DECISION

27 In relation to the insurance proceedings, there is some unclarity in the pleadings in the present proceedings as to whether Codock is claiming only in respect of payments made to claimants against Codock which are not covered by insurance, or whether Codock is claiming to be reimbursed by the Commonwealth even if such payments are covered by insurance, on the basis that if insurance recovery occurs later, an appropriate refund will be made to the Commonwealth. However, it does seem clear that Codock is claiming in respect of the costs of dealing with such claims, even though those costs may be covered by insurance.

28 In any event, the possibility that amounts being claimed by Codock may be covered by insurance, and that Codock has brought claims in respect of these amounts against insurers and brokers, does not appear to me to be a sufficient ground to grant a stay of these proceedings. If Codock is entitled to recover such payments as overhead costs, without first proving that those costs are not covered by insurance, and in circumstances where Codock has pending proceedings against the insurers and brokers, then Codock can make and succeed on such a claim. If Codock is not entitled to recover payments in those circumstances, then the Commonwealth has a good defence, and again there does not appear to be a ground for staying the proceedings.

29 On the other hand, it could turn out in these proceedings that there is a real issue as between Codock and the Commonwealth as to whether certain costs are or are not covered by insurance, and possibly an issue as to where the onus of proof lies. Codock does have a claim pending against insurers and brokers in which that very issue will be fought out by the parties which are most directly interested in it and which are in the best position to make out a case for the competing positions. In those circumstances, it would seem preferable, other things being equal, that these issues be fought out between Codock and insurers and/or brokers before they need to be fought out between Codock and the Commonwealth.

30 However, it seems to me that that consideration would be a matter for case management of the two sets of proceedings in the Commercial List, rather than a stay of the present proceedings. It would not be a basis for staying these proceedings in so far as they relate to the 28 claims as to which there is no insurance issue; while on the other hand, if there was a stay of only part of the present proceedings, that would result in a undesirable proliferation of hearings.

31 Turning to the Dust Diseases Tribunal proceedings, on the view I take, it is not necessary to make a concluded decision as to whether the decision of Bergin J in Amaca v. CSR was correct. Even accepting, in favour of the Commonwealth, that it was not correct, the Commonwealth is not assisted by an allegation of exclusive jurisdiction in this case. Even if, contrary to the decision in Amaca v. CSR, the Dust Diseases Tribunal has exclusive jurisdiction in respect of the whole of the proceedings before it, including the cross-claims, that exclusive jurisdiction cannot extend beyond the claims actually made in the cross-claims: cf James Hardie v. Barry at [61]-[63]. Thus, jurisdiction of the Dust Diseases Tribunal would be exclusive only as regards the claims for contribution between tortfeasters, and (unless or until they are withdrawn) claims in contract that are quite different from the contractual claims made in the present proceedings. Although those proceedings, over which on the assumption I have made the Dust Diseases Tribunal would have exclusive jurisdiction, may raise issues that overlap issues in these proceedings, the Dust Diseases Tribunal is not given exclusive jurisdiction in respect of issues, but only in respect of proceedings.

32 Certainly, it is desirable that proceedings that overlap substantially be heard altogether by one tribunal. However, it is also desirable that, where a tribunal is given exclusive jurisdiction in respect of certain tort claims, that tribunal should also dispose of claims for contribution between tortfeasers in respect of those torts. On the other hands, the Dust Diseases Tribunal is not an ideal tribunal for resolving complex contractual disputes between parties like Codock and the Commonwealth, while the Commercial Division of this Court is ideally suited to resolving that kind of dispute. Thus, there are competing considerations at play here, some pointing towards resolution of all issues by one tribunal, and others pointing towards the resolution of them by the tribunals most suited to resolution of particular issues. Furthermore, even if it were to be considered an abuse of process to have the two sets of proceedings in different tribunals, that does not necessarily mean that it is the proceedings commenced later that must be stayed: there may be good reasons for allowing the later proceedings to go to conclusion, with the moving party in those proceedings taking the risk that completion of those proceedings may preclude it from later pursuing the other proceedings, on the basis of Anshun estoppel.

33 In my opinion, all these considerations confirm that the question of grant of a stay was a discretionary decision, with the conclusion reached by the primary judge being one that was well open to her. I do not consider there was any error shown in the reasons of the primary judge, or any deficiency of reasons.

34 In those circumstances, this is a case of an interlocutory decision, with no case being made out for appellate interference. In my opinion, the application for leave to appeal should be dismissed with costs.

35 SANTOW JA: I agree with Hodgson JA.

36 McCOLL JA: The question Bergin J was required to consider was whether it was appropriate for her to stay proceedings commenced in 2001 in the Commercial List by Cockatoo Dockyard Pty Limited (“Codock”) against the Commonwealth of Australia (the “Commonwealth”) seeking reimbursement for costs incurred by it since 31 October 1995 arising from thirty-seven asbestos related personal injury claims paid by Codock plus a profit margin of 7.5% (the “Reimbursement Proceedings”). Codock’s entitlement to reimbursement was said by it to arise from contractual arrangements with the Commonwealth dating back to 1933 whereunder it operated Cockatoo Island Dockyard.

37 The Commonwealth asked her Honour to stay the Reimbursement Proceedings pursuant to SCR Part 13 r 5(1)(c) as constituting an abuse of process. The abuse of process was said to arise from the inter-relationship between the Reimbursement Proceedings and other proceedings Codock had commenced prior to 2001, one in the Commercial List of this Court and cross claims Codock has filed, or intends to file, in the Dust Diseases Tribunal against the Commonwealth and possibly other parties.

38 The background to this matter has been set out in Hodgson JA’s judgment which I have had the benefit of reading.

39 The Commonwealth submitted Codock’s commencement of the Reimbursement Proceedings constituted an abuse of process because of the objective effect of Codock maintaining concurrent proceedings, in this Court and in the Dust Diseases Tribunal and two in the Commercial List of this Court in circumstances where, according to the Commonwealth there was an overlapping of issues between the various proceedings. It did not assert that any of the proceedings had been commenced for an improper purpose.

The Dust Diseases Tribunal Proceedings

40 The Commonwealth submitted that the issues raised in the Reimbursement Proceedings were fully encompassed within, or should properly be brought as part of, the cross claims which had been commenced in the Dust Diseases Tribunal (the “DDT Proceedings”) prior to the commencement of the Reimbursement Proceedings. In particular, it submitted that:

(a) the relief sought in each set of proceedings was substantially the same;
(b) the refusal of a stay had resulted in the real likelihood of the same lengthy and complex issues being tried in the Supreme Court and the Dust Diseases Tribunal;
(c) the issues in the Reimbursement Proceedings were so relevant to the subject matter of the DDT Proceedings that it was unreasonable for them not to have been brought forward and relied upon in the Dust Diseases tribunal. It referred to Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 602. It said there was a real risk of inconsistent judgments being subsequently reached in the DDT because of the differing considerations which fell for decision in that Tribunal;
(d) once any proceedings were commenced in the Dust Diseases tribunal, the Tribunal had exclusive jurisdiction to hear all matters ancillary to such proceedings which would include Codock’s claim for matters claimed to arise from the various contracts it had with the Commonwealth.

41 Further the Commonwealth complained that Bergin J was in error in taking into consideration and relying upon a perceived public interest that the Dust Diseases Tribunal ought to be freed up to deal with other plaintiffs’ claims. It asserted that this conclusion was made in circumstances where there was no evidence of the Dust Diseases Tribunal’s workload and her Honour’s orders did not affect the necessity or time required for the Dust Diseases Tribunal to hear the proceedings between the claimant and the opponent.

The Insurance Proceedings

42 The Commonwealth also complained about the commencement of the Reimbursement Proceedings having regard to proceedings between Codock and various insurers and insurance brokers in which Codock sought to recover outgoings in relation to nine claims by employees of former contractors who worked on Cockatoo Island (the “Insurance Proceedings”). The Commonwealth put its case two ways:

(a) It submitted that the Reimbursement Proceedings must fail insofar as they claimed expenses and costs the subject of a successful claim in the Insurance Proceedings. It submitted it was an abuse of process to commence proceedings doomed to failure;
(b) Alternatively, it submitted it would be an abuse of process if Codock recovered in the Reimbursement Proceedings amounts it might otherwise be entitled to recover in the Insurance Proceedings, because, once those sums were recovered from the Commonwealth, Codock would have “neither incentive or legal basis” to pursue its claims against the insurers.

43 Finally the Commonwealth relied upon the fact that both the DDT and Insurance Proceedings were commenced before the Reimbursement Proceedings. It submitted the earlier proceedings should be heard first.

44 Codock submitted that the proceedings were interlocutory in nature and involved questions of practice and procedure. In accordance with settled practice, this Court would not interfere with Bergin J’s decision unless there was a clear error or matters of significant principle were at stake: see Southern Cross Exploration NL v Fire & All Risks Insurance Company Limited [No 2] (1990) 21 NSWLR 200 at 216 – 218; White v Grogan [1972] 2 NSWLR 347 at 351; Australian Dairy Corp. v Murray Goulburn Co-op. Limited (1990) VR 355 at 364. Codock submitted that Bergin J’s decision was within the proper limits of her discretion.

45 Codock also submitted that there was no absolute or fixed rule that a party could not maintain two separate proceedings in two different courts in circumstances where there was a degree of factual overlap. Nor, it submitted, was there any absolute rule that the proceedings commenced later in time must be stayed. At the end of the day it was always a question of discretion and sensible case management in the circumstances.

46 Codock also submitted that the issues in the Reimbursement Proceedings were not a subset of the issues in the DDT Proceedings. The DDT proceedings concerned claims for tortfeasor contribution whereas the Reimbursement Proceedings were pursuant to the contracts which had been in place between the Commonwealth and it dating back to the early thirties. While it conceded that it could have included the matters the subject of the Reimbursement Proceedings in the DDT Proceedings, it had not taken that course because “this did not appear to be the most efficient course, nor the most efficient use of DDT resources.”

47 It also said the DDT Proceedings were inactive, a proposition with which the Commonwealth agreed, and that the hearing before Bergin J was conducted on the basis that the DDT Proceedings had been stood over generally. In contrast, Codock submitted the Reimbursement Proceedings were well advanced. It pointed out that the Commonwealth did not seek a stay for more than six months after the Reimbursement Proceedings were commenced. During this period the Commonwealth had filed its defence in the Reimbursement Proceedings and Codock had filed its Reply.

48 Further it said the Commonwealth had long been on notice that Codock proposed to separate its tortfeasor contribution claims from the contractual reimbursement claim and had not raised any objection to that course until it sought the stay.

49 Insofar as the Insurance Proceedings were concerned, Codock submitted there could be no abuse of process in maintaining those proceedings concurrently with the Reimbursement Proceedings when they involved different parties and no application had been made by the Commonwealth to be joined in those proceedings.

Principles of Law

50 In The Law & Practice in Injunctions in Equity and at Common Law (Stevens & Haynes, 1872, Vol II at 1053) W Joyce explained Equity’s jurisdiction to stay proceedings as resting on the proposition that:

Wherever a party by fraud, accident, or otherwise, has an advantage in proceeding in a Court of ordinary jurisdiction, which must necessarily make that Court an instrument of injustice, and it is therefore against conscience that he should use the advantage; in such cases, to prevent a manifest wrong, Courts of Equity interpose by restraining the party whose conscience is thus bound from using the advantage he has improperly gained.”

51 A long line of authorities reflects the anxious consideration which courts, asked to exercise the power to stay proceedings as constituting an abuse of process, have given to the competing propositions that litigants should not lightly be turned away from their door but, also, that courts should not be used as instruments of injustice. The jurisdiction to stay proceedings on the basis that they constitute an abuse of process has been exercised cautiously, reflecting the paramountcy given to a litigant’s right to have access to justice. Thus in Oceanic Sunline Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 252, Deane J said:

It is a basic tenet of our jurisprudence that, where jurisdiction exists, access to the courts is a right. It is not a privilege which can be withdrawn otherwise than in clearly defined circumstances.

52 The balancing exercise which must be undertaken can be seen in Williams v Spautz (1992) 174 CLR 509 at 518 - 520 in the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ where their Honours said:

It is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. The existence of that jurisdiction has long been recognised by the House of Lords. The jurisdiction extends to both to civil and criminal proceedings. As Lord Morris of Borth-y-Gest observed in Connolly v Director of Public Prosecutions :
[A] Court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction … a court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.

… It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceedings, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it. … As Lord Scarman said in Reg. v Sang , every court is ‘in duty bound to protect itself against an abuse of its process’.

53 As the extract from The Law & Practice in Injunctions in Equity and at Common Law set out above makes clear, the jurisdiction to stay proceedings as constituting an abuse of process has a long history. In McHenry v Lewis (1883) 22 Ch 397, the first case relied upon by the Commonwealth, the Court considered when it might exercise its jurisdiction to stay an action brought in England on the ground that the applicant for the stay was a party to substantially the same proceedings brought in America although there were additional and important parties to the American proceedings. In considering the source of the power to restrain litigation on foot in two different countries the Court considered the general jurisdiction to stay proceedings.

54 Jessel MR (at 399) treated the Court’s jurisdiction to consider granting a stay in such circumstances as “part of the general jurisdiction of the Court to prevent a defendant being improperly vexed by legal procedure.” Insofar as local proceedings were concerned he said, albeit as dicta, (at 400):

In this country, where the two actions are by the same man in Courts governed by the same procedure, and where the judgments are followed by the same remedies, it is prima facie vexatious to bring two actions where one will do. … This has been recognised … for ages by the practice of the old Court of Chancery, which always put a Plaintiff to his election by an order of course if he was suing for the same cause of action both at Law and Equity.

55 Bowen LJ (at 408) made it clear that the jurisdiction to stay proceedings should not be narrowly confined, saying:

… I would much rather rest on the general principle that the Court can and will interfere whenever there is vexation and oppression to prevent the administration of justice being perverted for an unjust end. I would rather do that than attempt to define what vexation and oppression mean; they must vary with the circumstances of each case. … Where there is more than one suit being carried on in the Queen’s Courts, it is obvious that …. [t]he remedy and the procedure are the same, and a double action on the part of the Plaintiff would lead to manifest injustice.

56 Within two months of the decision in McHenry v Lewis the question of whether or not a stay of proceedings should be granted where there were proceedings between the same parties in different countries, in this occasion in England and France arose again. In Peruvian Guano Company v Bockwoldt (1883) 23 Ch D 225 at 233 Bowen LJ, after observing a plaintiff who came into an English Court seeking justice should not be confronted with difficulties, pointed out, however, that the courts would always interfere “to prevent a plaintiff under colour of asking for justice from harassing others.” This was because “the prosecution of the actions simultaneously appears to the Court to be necessarily attended with injustice.”

57 In Peruvian Guano Jessel MR illustrated what might constitute vexatious proceedings. “Pure vexation” according to his Lordship (at 230) were proceedings which were “so utterly absurd that the Judge sees it cannot possibly succeed, and that it is brought only for annoyance …”. The alternative was “the plaintiff not intending to annoy or harass the defendant, but thinking he would get some fanciful advantage, sues him in two Courts at the same time and under the same jurisdiction – two of the Queen’s Courts. That is vexatious, because, whatever the intention of the plaintiff may be he cannot get any benefit in that way, and the defendant is harassed by two suits.”

58 In Williams v Hunt [1905] 1 KB 512 the plaintiff, a mortgagee, had commenced an action by writ issued in the Chancery Division claiming an account of sums due under the mortgage deed, payment of the sum found to be due and, in default, sale or foreclosure. She subsequently commenced proceedings in the Kings Bench Division claiming principal and interest under the covenant in the mortgage deed. The relief claimed in the Kings Bench Division proceedings could have been sought in the Chancery Division proceedings. The court held that it was an abuse of process to divide a remedy where there was a complete remedy in the court in which the suit was first started. A year later, in Logan v Bank of Scotland (No 2) [1906] 1 KB 141 Sir Gorell Barnes P said (at 150):

[I]in this country, where two actions are brought by the same person against the same person in different courts governed by the same procedure, and where the judgments are followed by the same remedies, it is prima facie vexatious to bring two actions where one will lie; ...

59 McHenry v Lewis and Williams v Hunt were applied in Maple v David Syme & Co Limited [1975] 1 NSWLR 297 by Begg J in upholding a decision by Master Cantor QC in Maple v David Syme & Co Limited [1974] 1 NSWLR 290 that the commencement of defamation proceedings in relation to the same publication both in Victoria and in New South Wales constituted an abuse of process where there was a complete remedy in the Victorian Court. The plaintiff refused to undertake to stay the Victorian proceedings if permitted to proceed in New South Wales in respect of both publications. Master Cantor QC had concluded:

I must assume that it is the plaintiff's intention to proceed in separate actions in Victoria and in New South Wales against the same defendant for the publication of an identical article in the same newspaper in Victoria and in New South Wales respectively. Prima facie this seems to me to be the very conduct which is described in the authorities as an abuse of process or as vexatious.

60 In Reynolds v Reynolds [1977] 2 NSWLR 295 at 306 Waddell J treated it as “well established that the maintenance of proceedings in two courts, in each of which the relief sought may be granted, may be an abuse of process.” He referred to McHenry v Lewis and Williams v Hunt as respectively supporting the proposition that the existence of proceedings in two courts in the one country and of two proceedings in two divisions of the one court is “considered prima facie vexatious, and the court will generally, as of course, put the plaintiff to his election and stay one of the proceedings, or it may … stay the proceedings which it considers to be inappropriate”.

61 In that case Waddell J granted a stay of proceedings commenced in the Equity Division by a wife seeking a declaration concerning a partnership between herself and her husband in circumstances where subsequent to the commencement of those proceedings her husband had filed an application for dissolution of the marriage and an application for property settlement in the Family Court of Australia. In his Honour’s view there was a strong prima facie case for a stay because the questions the Equity Division proceedings raised might be determined in a manner which could preclude the Family Court from exercising its powers under s 79 of the Family Court Act. While his Honour remarked (at 307) that it was ordinarily the commencement of the second proceedings which would be regarded as an abuse of process he could not see why, as a matter of principle, continuance of the proceedings commenced first should not be capable of being considered an abuse of process.

62 In Moore & Ors v Inglis (1976) 50 ALJR 589 (upheld on appeal (1976) 51 ALJR 207), Mason J held that it was vexatious and oppressive or an abuse of the process of the High Court warranting the grant of a stay for the plaintiff to commence proceedings in the High Court of Australia when there were earlier commenced proceedings in the Supreme Court of the Australian Capital Territory. The only differences between the two actions were that in the Supreme Court there was one allegation of conspiracy against five defendants whereas in the High Court the plaintiff alleged five separate conspiracies but the object of the conspiracies was identical in both actions. Different relief was sought in that in the Supreme Court action the plaintiff sought damages only whereas in the High Court proceedings she sought relief by way of declaration and injunction but not damages. The parties in the two actions varied to a minor extent. In granting the stay his Honour acknowledged (at 593) that the power to stay on the ground that the commencement and continuation of an action in the High Court was vexatious and oppressive and an abuse of its process was one which should be exercised with caution.

63 Moore & Ors v Inglis was referred to in the joint judgment of Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry (1976) 185 CLR 571 at 591 as authority for the proposition that “[i]t 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.”

64 The Commonwealth referred to Hughes Motor Services Pty Limited v Wang Computer Pty Limited (1978) 35 FLR 346 (“Hughes”) and Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287 (“Sterling Pharmaceuticals”) in support of the proposition that a factor to take into account in determining whether or not to grant a stay is the practical effect of making, or declining to make, an order staying one or other of the proceedings.

65 In Hughes, Bowen CJ considered the circumstances in which proceedings properly brought in the Federal Court of Australia seeking relief pursuant to the Trade Practices Act might be stayed. The allegations made in the proceedings were substantially identical to those made in proceedings which had been earlier commenced in the Supreme Court of New South Wales, however the Trade Practices Act relief could not be obtained in the New South Wales proceedings. His Honour derived some assistance for the source of power to grant a stay from O 63 r 1 of the High Court Rules which governed the Federal Court’s procedure in 1978. That rule conferred a general power to stay proceedings as to the whole or part, but did not indicate the principles upon which that discretion would be exercised. To the extent that O 63 r 2 explained the ambit of O 63 r 1, it provided for an application to be made to stay proceedings on the conventional bases of want of a reasonable or probable cause of action, or that the proceedings were vexatious, oppressive or an abuse of process. His Honour concluded the proceedings could not be characterised as within any of those categories as they had been conventionally interpreted.

66 His Honour held nevertheless (at 351), that relief could be granted pursuant to the Court’s general power to control its own proceedings, a view for which he said O 63 r 1 gave comfort. He concluded that the question of the exercise of the discretion should take into account the advantage to the plaintiff compared to the disadvantage to the defendant as well as the following factors:

· Circumstances relating to witnesses

· The possibility that preparation done for the second case might be wholly or partly thrown away due to the creation of an issue estoppel arising from the earlier proceedings.

· Principles against double recovery of damages.

67 His Honour was also of the view (at 353) that public interest issues should be considered in determining, in effect, whether two cases which were substantially the same, save as to the relief which was sought, should be allowed to proceed simultaneously in the State and Federal systems with the possibility of “tactical manoeuvres in which the appearance might well be presented to the public of two court systems competing to see who determined the common facts first.” Taking into account the advanced state of the Supreme Court proceedings as well as the desirability that there should be a practical end to litigation and that the law should strive against permitting multiplicity of proceedings in relation to similar issues, the Chief Justice (at 355) moulded orders which granted a temporary stay of the Federal Court proceedings pending determination of the Supreme Court proceedings.

68 In Sterling Pharmaceuticals, Lockhart J considered the question whether a stay of proceedings should be granted in relation to proceedings brought in the Federal Court of Australia by a subsidiary of a US company (Sterling US) against the respondent, a subsidiary of a UK company (Boots UK) in circumstances where the New Zealand subsidiary of Sterling US had already commenced proceedings against a New Zealand subsidiary of Boots UK in the High Court of New Zealand. The New Zealand action was brought under the Fair Trading Act 1986 (NZ) and relied on sections equivalent to the Trade Practices Act (1974) (Cth) and was based on facts similar to the Australian case. The New Zealand proceedings had been commenced approximately one year before the Australian proceedings.

69 Lockhart J (at 291) saw the Federal Court’s power to grant a stay as being found in O20 r 2 of the Federal Court Rules as well as the Court’s status as “a superior court of record [which] may control its own proceedings including, where appropriate, the exercise of a power to grant a stay.” He referred to the guidance to be drawn from Hughes and listed a number of considerations he thought might relevantly be taken into account on the question whether a stay should be granted, including:

· “Which proceeding was commenced first.

· Whether the termination of one proceeding is likely to have a material effect on the other.

· The public interest.

· The undesirability of two courts competing to see which of them determines common facts first.

· Consideration of circumstances relating to witnesses.

· Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.

· The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.

· How far advanced the proceedings are in each court.

· The law should strive against multiplicity of proceedings in relation to similar issues.

· Generally balancing the advantages and disadvantages to each party.”

70 His Honour accepted (at 294) that “a party who has properly invoked the jurisdiction of an Australian court is prima facie entitled to have his case heard and determined by that court notwithstanding that he institutes proceedings in a foreign court.” Nevertheless, taking into account the substantial connection between the parties in Australia and New Zealand (in the sense that each of them came from the same “corporate family”), the substantial identity of the issues in the two proceedings, the undesirability of the resources of the Federal Court and those of the High Court of New Zealand both being called upon in relation to the final hearing of issues substantially common to both proceedings, his Honour was of the view that the interests of justice were best served by standing the Australian proceedings out of the list while the New Zealand matter proceeded.

71 The jurisdiction of this Court to grant a stay where there are two proceedings concerning substantially the same factual substratum, one commenced in the Industrial Relations Commission pursuant to s 106 of the Industrial Relations Commission Act and the other commenced in this Court has been considered in a line of authorities most recently discussed in L & W Developments Pty Limited v Della [2003] NSWCA 140. In that case Mason P (with whom Giles and Santow JJA agreed), in upholding Gzell J’s grant of a stay of the Supreme Court proceedings pending determination of the Industrial Relations Commission’s matter, emphasised the quintessentially practical nature of the stay remedy. He ([at 57]) listed the following factors as relevant to the stay:

· The fact that the IRC proceedings were commenced earlier than the Supreme Court proceedings in a genuine invocation of the Commission’s jurisdiction.

· The fact that the Supreme Court lacked jurisdiction to grant the relief sought in the IRC proceedings.

· The progress of the IRC proceedings.

· The effect the Commission’s avoidance or variation of the relevant contract, or some aspect of it, could have upon any damages recoverable in the Supreme Court proceedings.

· The fact that work done to date in relation to the two sets of proceedings would not be wasted.

· The fact that permitting both proceedings to continue risked wasteful duplication of judicial resources and inconsistent judicial determinations.

· The fact that to refuse a stay would “result in an unseemly race to judgment between the two sets of proceedings in circumstances which would generate substantial further legal costs and impose unnecessary hardship upon the parties.”

72 The Commonwealth relied upon two authorities in support of its submission that the Reimbursement Proceedings constituted an abuse of process because, to the extent they claimed expenses and costs the subject of Insurance Proceedings, they were doomed to failure to whatever extent the Insurance Proceedings succeeded. The first of those cases, Clarke v Darley (1898) 14 WN (NSW) 129 was a case in which a stay of a second action was granted on the basis that it was vexatious because the plaintiff was seeking to set up a cause of action which was identical to one in which he had already recovered judgment. That is not this case. The second, Petree v Kno (1918) 35 WN (NSW) 32 does not support this submission. In Petree, Ferguson J refused to grant a stay of a second action where it was impossible to say that the issues raised in the second action were the same, or substantially the same, as those in the first, where the evidence necessary to establish the causes of action in each case would be different as, too, would be the questions of law and the measure of damages.

73 The issue of when proceedings might be stayed on the basis that they constituted an abuse of process because they were doomed to failure was considered in Bryanston Finance v De Vries (No 2) [1976] 1 Ch 63 at 78 where Buckley LJ observed:

It has long been recognised that the jurisdiction of the Court to stay an action in limine as an abuse of process is a jurisdiction to be exercised with great circumspection and exactly the same considerations must apply to a quia timet injunction to restrain commencement of proceedings. These principles are, in my opinion, just as applicable to a winding up petition as to an action. The right to petition the Court for a winding up order in appropriate circumstances is a right conferred by statute. A would-be petitioner should not be restrained from exercising it except on clear and persuasive grounds.

74 Bryanston was referred to with approval by Kirby P in Australian Mid-Eastern Club Limited v Elbakht & Ors (1988) 13 NSWLR 697 at 706 where his Honour also referred to this Court’s emphasis “in a series of cases, [of] the economy with which relief against alleged abuse of process will be provided by the Court.”

Consideration

75 This review of the authorities demonstrates the cautious approach the Courts take when asked to stay proceedings as constituting an abuse of process. A clear case is required before such an order will be granted.

76 Although there is a line of authority dating back, at least, to McHenry v Lewis recognising that it is prima facie vexatious to bring two actions where one would suffice, the authorities also demonstrate that notwithstanding there being two concurrent actions, the identity of the parties, the factual substratum in each case and the legal bases of the respective claims brought forward in order must be closely scrutinised to determine whether a stay is warranted.

77 Such scrutiny is essential where the Court’s consideration of whether or not a stay ought be granted turns on what, at times, may require a delicate balancing exercise between the competing rights of the parties, as well as consideration of the public interest in the proper application of scarce judicial resources. The authorities also show that in cases falling short of abuse of process, orders may be moulded to cure difficulties falling short of abuse.

78 In refusing to grant a stay, Bergin J took into consideration the necessity to balance the advantages and disadvantages to each party, the fact that the Reimbursement Proceedings were more advanced than the DDT Proceedings, the fact that the evidence did not disclose that a great deal of work had been done on the DDT Proceedings, the fact that if Codock recovered amounts in the Insurance Proceedings which it had already recovered in the Reimbursement Proceedings it would reimburse or credit those amounts to the Commonwealth, the fact that Codock had to commence the Reimbursement Proceedings to avoid being barred by limitation periods as well as the suitability of the issues raised in the Reimbursement Proceedings for determination in the Commercial List. Her Honour also took into account “the public interest that the Tribunal is freed up for the very obvious and urgent business with which it is involved which is the hearing of plaintiffs’ claims suffering dust diseases.” Finally she observed that if serious prejudice subsequently emerged, the defendant could make “any relevant application it wishes”.

79 She also referred to the “undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues”, but pointed out that that was “a matter that can be controlled by the Court irrespective of whether it allows one particular matter to go forward or not.”

80 In my view the Commonwealth has not demonstrated that Bergin J erred in refusing to stay the Reimbursement Proceedings.

81 The summons in the Reimbursement Proceedings makes clear the labyrinthine contractual history upon which Codock relies to assert its right to reimbursement. It is hardly surprising that over such a lengthy period of time Codock acquired rights and incurred liabilities which might be manifested in different ways.

82 Thus, for example, Codock did not commence the proceedings in the Dust Diseases Tribunal. It was taken to that Tribunal by the commencement of the thirty-seven asbestos related personal injury claims which it has paid since 31 October 1995. In order, in turn, that it could reserve its full panoply of legal rights, it was necessary for it to commence the cross-claims in the Dust Diseases Tribunal seeking tortfeasor contribution. In the ordinary course, the Dust Diseases Tribunal would not, have been the most appropriate forum for the resolution of disputes arsing from the contractual relationship between the Commonwealth and Codock. Indeed, as might be expected, the contracts required disputes to be referred to arbitration.

83 Having commenced the DDT Proceedings, Codock has permitted them to lie fallow while the Reimbursement Proceedings have been pursued. Commonwealth did not complain about that course. In effect, by both parties permitting the DDT Proceedings to lie dormant, the sort of temporary stay granted in Hughes has effectively been achieved. What this underlines, too, is that this is not a case where the Commonwealth is fighting the same battle on two different fronts.

84 Further, as Codock submits, this is not a case where the Reimbursement Proceedings are “merely a subset of the DDT Proceedings” as the Commonwealth submits. This is not a case like Williams v Hunt, Maple v David Syme & Co Limited and Moore & Ors v Inglis where the proceedings stayed were either identical to, or not substantially dissimilar from, earlier proceedings so that the defendant could truly be said to be harassed by two suits. Here there is no doubt that Codock is entitled to pursue its contractual right to reimbursement. Indeed, the Commonwealth does not dispute that fundamental entitlement. The only issue raised by the Commonwealth’s application was the proper forum for those proceedings. The Commonwealth says, that rather than have Codock’s contractual entitlement determined with the efficiency which the Commercial List can provide, Codock should pursue its contractual entitlement to reimbursement in thirty-seven individually constituted cross-claims in the Dust Diseases Tribunal because, among other matters, those cross-claims were commenced first.

85 Her Honour was correct to take into account the promptness with which the Reimbursement Proceedings would come to hearing in the Commercial List. It would ordinarily be thought that speedy disposition of a case would be to the advantage of both parties. Here, it is clear that it is highly desirable that the Reimbursement Proceedings be disposed of expeditiously.

86 As Hodgson JA has pointed out Codock’s claims, including claims for reimbursement of costs associated with earlier asbestos personal injury claims against Codock by various persons have already been the subject of a 179-day arbitration which resulted in an interim award generally in favour of Codock including an award in respect of the costs associated with those asbestos claims up to 31 October 1995. Notwithstanding that arbitration, the Commonwealth disputes its liability to reimburse Codock for the costs incurred by it subsequent to 31 October 1995 in respect of the thirty-seven asbestos related personal injury claims in the Dust Diseases Tribunal. That issue should be resolved speedily and with as little as possible cost to both parties. In my view it could hardly be thought to be a more efficient or, indeed just, manner of disposing of the issues concerning Codock’s contractual entitlement to reimbursement of the costs associated with those claims to require it to litigate that entitlement in thirty-seven separate proceedings in the Dust Diseases Tribunal.

87 The waste of the parties’ resources which that proposal entails is self-evident. The waste of the judicial resources which would be involved is no less self-evident. I venture to suggest that no contemporary court would accede to such a proposition.

88 The Commonwealth submitted that a finding by the Dust Diseases Tribunal in respect of contribution would appear to preclude a further hearing in respect of an alleged contractual indemnity in accordance with Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. Leaving aside the improbability, having regard to their dormancy, of the DDT Proceedings being heard first, the question whether the Anshun principle applies will always turn upon a close scrutiny of the circumstances in which a party to litigation determined not to bring forward in a first action a matter upon which it later seeks to rely: see Port of Melbourne Authority v Anshun Pty Limited, supra at 602 – 603 per Gibbs CJ, Mason and Aickin JJ at 602 – 603. Here, the point is not so clear-cut as would attract the exceptional exercise of the power to grant a stay in circumstances where both actions are pending.

89 Further, there could be no doubt that Codock is alert to the Anshun issue. It wrote to the Commonwealth explaining why, in its view, its claim for reimbursement should be determined in the Commercial List rather than in the individual cross-claims in the DDT Proceedings. I will not comment on whether the matters upon which it relies will, in due course, protect it from any Anshun point the Commonwealth may later seek to raise. Suffice to say Codock is clearly a sophisticated commercial litigant which has embarked on its current course with eyes wide open.

90 The Commonwealth argued that the DDT had exclusive jurisdiction to deal with claims made by Codock for contribution or indemnity, at least in those cases where the cross claims were based on contract as well as tortfeasor contribution. This point was not raised before Bergin J. I agree with Hodgson JA (para [31]) that that exclusive jurisdiction could not extend beyond the claims actually made in the cross claims.

91 I also agree with Bergin J that it is in the public interest that the Tribunal should be able to deal with the urgent business with which it is involved in hearing the claims of plaintiffs suffering dust diseases and that the issues raised in the Reimbursement Proceedings were best dealt with in the Commercial List of the Supreme Court. The proper application of judicial resources was an appropriate factor for her Honour to take into consideration: see Hughes, Sterling Pharmaceuticals and L & W Developments.

92 The priority which the legislature has seen fit to vest in the Dust Diseases Tribunal to be able to deal with the urgent business with which it is involved in hearing the claims of plaintiffs suffering dust diseases, was highlighted in the remarks made by the learned President of the Tribunal, O'Meally J, in Hearn v Commonwealth(2000) 21 NSWCCR 203 at 207 - 208:

It may be appropriate to recite, even though it might well be recognised, that the Tribunal, which was created in 1989 specifically to deal expeditiously with the cases of people suffering dust diseases, has adopted practices and been granted statutory procedures to enable it effectively to discharge the functions for which it was created. The Tribunal is well accustomed to hearing cases in which people suffer mesothelioma and other asbestos related diseases. Cases of mesothelioma and other forms of cancer are each treated as urgent. This is because the Tribunal's experience confirms that the health of a person with mesothelioma or cancer may change suddenly and with little or no warning. Subject to the readiness of the parties to litigation the Tribunal will sit at any time and in any place in Australia to hear the cases of plaintiffs which are properly before it and who are unable to travel to Sydney.

93 These observations amply justify a conclusion that the specialist jurisdiction exercised by the Dust Diseases Tribunal to dispose of cases concerning persons suffering from dust diseases as expeditiously as possible should, to the greatest extent possible, be untrammelled by the burden of hearing thirty-seven individual cross claims concerning the liability of the Commonwealth to reimburse Codock for costs arising from the asbestos related personal injury claims brought by the 28 former Codock employees and the nine former employees of Codock contractors.

94 The advantage of resolving commercial disputes in the Commercial List was conveniently exposed recently by Einstein J in Rexam Australia Pty Ltd v Optimum Metallising Pty Ltd & Anor [2002] NSWSC 916 at [29]:

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 a speedy determination of commercial proceedings in the interests 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.

95 Insofar as the Reimbursement and the Insurance Proceedings are concerned the Commonwealth’s concern arises from the apparent overlap between the issues raised in each. In essence the abuse is said to arise from the consequences of which proceedings are heard first. If the Insurance Proceedings are heard first and Codock is found to be entitled to recover from insurers some of the moneys it also claimed in the Reimbursement Proceedings then, as I understand the Commonwealth’s submissions, to that extent the Reimbursement Proceedings are said to be doomed to failure.

96 Alternatively if the Reimbursement Proceedings proceed to determination prior to the Insurance Proceedings and lead to recovery by Codock against the Commonwealth, the Commonwealth says Codock would have neither the incentive or legal basis to prove its claim against its insurers and brokers.

97 I have already referred to the authorities which make it clear that a very clear-cut case is required before a Court will exercise its power to grant a stay on the basis that the proceedings are doomed to failure. In my view, a clear case warranting such relief was not made out in relation to the Insurance Proceedings before her Honour. It may be that there is an element of duality in the manner in which Codock seeks to pursue its relief against its insurers and the Commonwealth, but its entitlement to pursue its rights against the Commonwealth and its insurers respectively is one which this Court should not deny unless it is clear that it is turning the Court into an instrument of injustice. I cannot accept that the manner in which Codock is pursuing its rights in the Insurance Proceedings and the Reimbursement Proceedings involved an abuse of the Court’s processes.

98 In the course of argument the Court suggested to counsel for the Commonwealth that it would be desirable, to the extent that there was any degree of overlap between the Reimbursement Proceedings and the Insurance Proceedings there be a consolidated hearing or that a question might be identified which was common to the Reimbursement and the Insurance Proceedings. Counsel for the Commonwealth resisted those suggestions on the basis both of the complexity of the issues as well as, on the basis that the simplest course would be that the Insurance Proceedings be heard first.

99 Counsel for Codock accepted that the situation was complicated and that it might be desirable to have the Insurance Proceedings determined first or simultaneously with the Reimbursement Proceedings in circumstances where there may be a dispute as to whether or not the particular reimbursement claimed was or was not the subject of Insurance. He pointed out that the Commonwealth’s attitude had always been that the entire Reimbursement Proceedings should be stayed. He said, however, that if there were an application for the proceedings to be heard together then Codock would consider such an approach. It would also consider the proposition that there be a separate hearing involving the Insurers and the Commonwealth on a commonly identified question. These were, however, he submitted, matters for sensible case management before a judge in the Commercial List rather than a basis for a blanket stay of the proceedings.

100 I agree. As North J said in CFMEU v Commonwealth of Australia [1999] FCA 1571 at [31] where “the same court has control over both proceedings and can make orders for consolidation, or joint or consecutive trials of the two proceedings, and thereby mitigate the main detriments said to constitute the abuse of process” there is less force in an application to stay based on an allegation of abuse of process.

101 In circumstances where both sides of the record acknowledge the considerable complexity of the issues in a case where the contractual relationship between the parties can be traced back to 1933, justice and commonsense cry out for the application of a practical rather than a legalistic approach to the efficient resolution of the issues.

102 It is also necessary, in my view, to take into account the requirement that court proceedings be resolved with the upmost expedition that in accordance with the Overriding Purpose of the Supreme Court Rules “to facilitate the just, quick and cheap resolution of the real issues in such proceedings” (SCR Part 1 r 3 (1)). Approaching the proceedings on this basis does not mean losing sight of the fact that, in the final analysis, delivering justice to the individual litigants is the paramount consideration: The State of Queensland & Anor v J L Holdings Pty Limited (1997) 189 CLR 146 at 154 per Dawson, Gaudron & McHugh JJ.

103 Bergin J pointed out that the Commonwealth could make any application in respect to any matter which it regarded as amounting to “serious prejudice”. Without wishing to usurp the function of any judge before whom such an application might be made, it would certainly be one way to resolve the potential problem of which the Commonwealth complains concerning the disposition of the Reimbursement Proceedings prior to the Insurance Proceedings for the parties to each piece of litigation to cooperate to seek to identify a question which can sensibly be determined jointly then relevantly brought to bear in the consideration of the remainder of the proceedings. The issue which stands out for isolation in this case would be the question of whether or not Codock was covered for insurance in relation to the nine former employees of contractors, the overhead costs of whose claims before the Dust Diseases Tribunal are common to the determination of both the Reimbursement and the Insurance Proceedings.

104 If no such common issue can be identified then, I agree with Hodgson JA ([para 29]) that the Insurance Proceedings would, preferably, be determined first. These, however, as his Honour has observed, are considerations for case management rather than a stay. It would not, as his Honour pointed out, be sensible only to stay the Reimbursement Proceedings to the extent that they relate to the nine claims in which there is an insurance issue but not the twenty-eight as to which no such issue arises.

105 I agree with Hodgson JA that the application for leave to appeal should be dismissed with costs.

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Last Modified: 07/15/2003