CSR Ltd v Cigna Insce Aus Ltd

[1997] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S120 of 1996

B e t w e e n -

CSR LIMITED

Appellant

and

CIGNA INSURANCE AUSTRALIA LIMITED and those entities set out in Schedule A hereto

First Respondents

THE GENERAL INSURANCE COMPANY OF TRIESTE AND VENICE and those entities set out in Schedule B hereto

Second Respondents

CSR AMERICA, INC

Third Respondent

Office of the Registry
  Sydney  No S124 of 1996

CSR AMERICA, INC

Appellant

and

CIGNA INSURANCE AUSTRALIA LIMITED and those entities set out in Schedule A hereto

First Respondents

THE GENERAL INSURANCE COMPANY OF TRIESTE AND VENICE and those entities set out in Schedule B hereto

Second Respondents

CSR LIMITED

Third Respondent

Applications to vary costs order

BRENNAN CJ
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 SEPTEMBER 1997, AT 11.23 AM

Copyright in the High Court of Australia

________________________

MR R.V. GYLES, QC:   If the Court pleases, I appear with my learned friends, Messrs MR J.T. GLEESON and MR A.S. BELL for the applicant respondent.  (instructed by Phillips Fox)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR J.C. KELLY, SC for CSR Limited in each of these matters.  (instructed by Freehill Hollingdale & Page)

MR D.M.J. BENNETT, QC:   If the Court pleases, I appear for CSR America Incorporated in each matter.  (instructed by Allen Allen & Hemsley)

BRENNAN CJ:   Yes, Mr Gyles.

MR GYLES:   If your Honours please, the issue turns upon a finding of the court in the judgment below, the judgment not having been entered, and our application be that the judgment should be recalled.  I am not sure whether your Honours would prefer to have reference to the judgment as it appears in our book at tab I or in the Australian Law Report version, in tab I, to the affidavit in support of the application. 

BRENNAN CJ:   I think the preference is for the ALR reference.

MR GYLES: Yes, thank you, your Honour. the decision is reported in 146 ALR 402, and the relevant finding, your Honours, is at the foot of 441, line 48:

The facts indicate that the respondent’s dominant purpose in instituting the NSW proceedings was to prevent the appellants from pursuing remedies available in the US proceedings but not in the NSW proceedings. 

Your Honours, that is the ultimate finding of fact and reflects what had appeared earlier on that page.  Could I make a couple of points about that finding before going on to look at the procedural history of the matter.  It will be observed, your Honours, that the finding is in terms of purpose and, indeed, dominant purpose.  Next, it relates to instituting and not continuing proceedings.  Thirdly, it relates not to preventing the appellants pursuing the US proceedings as such but from pursuing remedies available in the US proceedings and not in the New South Wales proceedings.  For practical purposes, your Honours, that means the Sherman Act claim in the United States.  So they are three points to be borne in mind when that finding is recalled.  Your Honours, that is a factual finding and we were not heard upon it.  That is the narrow basis upon which this jurisdiction ought be exercised.

GAUDRON J:   It is not a question of whether you were not heard; it is a question of whether you were not given an opportunity to be heard.

MR GYLES:   With respect, your Honour, I accept that that ultimately is right.  The first point is that we were not heard.  One then must ask:  why were you not heard?  That brings me immediately to a point probably of even greater significance in the administration of justice, and that is that the point was not available to the appellant on the notice of appeal.  For my learned friends to put this point on behalf of their client, if they had - and we submit they did not - they would have needed an amendment to the notice of appeal.  If I may anticipate just for a moment, your Honours ‑ ‑ ‑

GAUDRON J:   Did they not have a ground of appeal that the proceedings were oppressive?

MR GYLES:   Yes, your Honour, but there was no ground of appeal which took up the central factual issue upon which this case was decided.

GAUDRON J:   Is it your submission that it should have been decided without reference to the facts?

MR GYLES:   Not at all, your Honour.  On the contrary, what occurred here was that there was no - if I may just anticipate a little.  If there were an application to amend the notice of appeal to raise this issue, that would have been, in our submission, doomed to failure for various reasons, the first of which is that it would be far too late to take up an attack upon the way in which the trial was conducted because this factual issue either was raised before the trial judge and rejected ‑ ‑ ‑

GUMMOW J:   It was not really a trial.

MR GYLES:   Well, your Honour, with respect, it is the first instance.  May I qualify what I said by saying the first instance hearing.

GUMMOW J:   Yes.

MR GYLES:   Either the point was taken there and pursued and rejected - and we submit that is the proper conclusion from the facts - or, alternatively, it was not taken up at that point.

Now, in either event, your Honours, it is simply not possibly now - or it would be a breach of most of the wel- known rules - to permit on appeal a factual issue to be raised without at least a four‑square attack upon the trial judge’s approach to it.  If, upon a proper understanding of what happened below, the point had not been taken then, of course, it cannot be taken thereafter, because it is a factual issue.  The authorities of this Court have made that every plain and, indeed, the same point was made in the Henry v Henry decision which - - -

GAUDRON J:   There is a difficulty in cases such as this, though, is there not, where what one is talking about is the notion of oppression, which is a compendious expression which is there to encompass a variety of factual situations?

MR GYLES:   Yes, your Honour, but in this case - - -

GAUDRON J:   And that was a matter that seemed not to have been particularly well understood by the judge at first instance, who did not seem, in many respects, if one analyses the judgment, to have really related many of the issues that did arise to the questions of principle.

MR GYLES:   Your Honour, it is not my purpose here to get back into a defence of the judge at first instance.

GAUDRON J:   Well, I think you have to, though.

MR GYLES:   But I am prepared to, your Honour, and we will do so in so far as that is necessary.  My point at the moment is a relatively straightforward one, and that is that the finding is a factual finding and it was simply not made below.  Indeed, we say it was rejected below.  But even if not rejected, it was not - - -

GAUDRON J:   But even so, it is surely a matter from inference, and an inference which arises once the notion that was advanced in this Court was rejected, namely, that the purpose of the proceedings was to enable ventilation of the Australian and American claims in the one proceeding.

MR GYLES:   But your Honour is, with respect, putting the cart before the horse.  This Court has decided that, and it has decided it, in our submission, without giving us the opportunity of dealing with it and in the teeth of the facts.  I mean, that is the problem.

GAUDRON J:   We will come to “without the opportunity” because in this Court a purpose was advanced by counsel for the insurer’s interests, if I can use that compendious term, and it was said time and time and time again by counsel in this Court, for the interests that you now represent, that the purpose of the proceedings was to enable the litigation in the one proceedings, and it could only be in Australia, of the Australian claims and the American claims.

MR GYLES:   Yes.

GAUDRON J:   Now once that was rejected, and it was in this Court, it was advanced seriously by counsel as the purpose, once that was rejected, it was purely a matter of inference from the other facts that were largely uncontested.

MR GYLES:   Your Honour, to answer that proposition I need to go back, I think, with respect, to the course of events below and here.  The judgment of Mr Justice Rolfe is to be found, your Honours, behind tab J amongst our materials.  At page 40 - perhaps if I go to page 38, your Honours see the setting; page 38 of that judgment.  There is a reference by his Honour to the first submission and the first submission is set out between lines 40 and lines 55 on that page.  His Honour deals with it in various ways and then, your Honours, at the foot of page 39, said this:

In deciding whether there is oppression or vexation, in the manner in which those words have been construed in Voth, I consider the close connection with New South Wales, in the way to which I have referred, demands an answer that the conduct does not amount to that.  This conclusion is re-inforced by the requirement stated in Voth that one must have regard to the objective effect, “on balance”, of the continuation of the proceedings in this Court rather than providing a description of “the conduct of the plaintiff in selecting or persisting with” that forum.

And, with respect, his Honour is quite correct in saying that is what Voth did say.  His Honour said:

Thus the subjective issue, which underlies certain of Mr Bathurst’s submissions, seems to be put to one side.

That is by Voth.

Even if it is not I am not satisfied that the insurers’ action in bringing the proceedings has been actuated by any mala fides or illegitimate ulterior motive.

If your Honours then go back to page ‑ ‑ ‑

GAUDRON J:   I do not know what his Honour was - perhaps you would wnt to.

MR GYLES:   Could I come back to something else in just ‑ ‑ ‑

GAUDRON J:   Because I would not have thought that the purpose found in this Court would be described as one infected with mala fides or illegitimate ulterior purpose.  It would be simply a question of making a factual finding relevant to what was a fairly novel application, at least for the courts of this country, of the relevant principles.

MR GYLES:   Your Honour, I respectfully submit that whatever else it is, it is a finding of purpose, and a purpose - - -

GAUDRON J:   Not necessarily, not of mala fides or illegitimate ulterior motive.

MR GYLES:   Perhaps so, your Honour, although if that is so, it is difficult to see how it plays any part of the case but I will have to develop that later.  If I can ask your Honours to go back to page 21 of the judgment between lines 25 and 40 and, again, it is a question as to what precisely is meant here:

Mr Bathurst, whose submissions were adopted by Mr Douglas, submitted that the oppression was the more so when the proceedings in this Court seek negative declarations, and are brought forward to forestall proceedings in a United States Court, “which is seen to be anti-insurers”.  I should say immediately that there is no evidence before me that the District Court of new Jersey is “anti‑insurer”, or that the Court would not decide the proceedings before it in accordance with the law.  Nor is there any evidence that the insurers have been motivated to bring the proceedings in this Court for the reasons suggested by Mr Bathurst.

Now, your Honours, I have drawn attention to those two passages because they are the two passages in which the trial judge dealt with any issue of purpose and in so far as purpose is referred to, he rejects the attack.  That is our first point.

Our second point is that there is no finding of purpose, of the purpose which is found by this Court or anything like it.  Now, as I said earlier, either the submission was made or it was not.  If it was, it is rejected, either expressly in the passages to which I refer ‑ ‑ ‑

GAUDRON J:   Well, I would not have read them that way, I must say.

MR GYLES:   If your Honour pleases, or implicitly, by the absence of any such finding.  If the submission was - - -

GAUDRON J:   It is hard to put that second submission in a context in which there was not an elucidation of the relevant principle ultimately applied.

MR GYLES:   Your Honour, I submit that is not a fair reading of his Honour’s judgment, but may I limit myself to the thread of my argument which is that there was no such finding of fact made by the judge.  Now, if he erred in any way in not making that finding, it was the duty of the appellant to bring that forward so that the appellate court could consider, for itself, the factual material and the legal significance of any such finding.  Your Honours will not find any such submission anywhere in these papers.

Your Honours, the starting point, so far as the materials before the Court at the moment are concerned, is in the third volume of the appeal book which was before this Court which is part of the materials now before the Court.  Your Honours will find at page 784 the summons for leave to appeal in the Court of Appeal.  Your Honours will, of course, bear in mind that the matter before this Court was an appeal from the refusal by the Court of Appeal to grant leave to appeal in relation to what were the equivalent, in substance, of a discretionary judgment below.  A judgment ‑ ‑ ‑

GAUDRON J:   I am not too sure that that is right and I do not know that it advances the matter at all.  It does not advance the matter if there was an error of principle in the exercise of that discretion.

MR GYLES:   Quite, your Honour.  But that is the nature of the proceeding.  It was an appeal from a refusal of leave from the sort of application it was which, whether technically discretionary or not, in substance, it amounts to the balancing exercise.  And an exercise ‑ ‑ ‑

GAUDRON J:   I am not too sure that that is right.

GUMMOW J:   In accordance with principle.

MR GYLES:   Yes, your Honour, and we are not here to ‑ ‑ ‑

GUMMOW J:   That is why special leave was granted.

MR GYLES:   Quite.

GUMMOW J:   We seem to be rehearsing that at the moment.

MR GYLES:   No, your Honour.  We will be, your Honour, but not in relation to this point.  We are not here, your Honour, to seek to reargue those points which we have lost before this Court.  There is a finding that his Honour erred in principle in relation to the stay proceedings and we cannot and do not challenge that.  The question is, what should happen?  We say what should happen is that the matter either be returned to the Court of Appeal or the first instance judge or this Court for itself take on the responsibility.

Your Honours, at page 784 of the appeal book before this Court, your Honours will find the summons for leave to appeal which is filed, I think, in February 1996.

If your Honours go to page 787, question 2 at least gets somewhat close to the point.  I say “somewhat close to” because it does not really put the matter that this Court found.  It relates to continuation, and correctly in that respect, we say.  It does not limit itself to the special American aspect of the case but puts the proposition more widely and, we submit, differently.  However, your Honours will observe that this paragraph simply assumes the purpose without taking on board the responsibility for attacking the absence of such a finding by the judge below or explaining the absence of such a finding below.  In the narrative which had preceded it, there is nothing which would assist.

GAUDRON J:   You did not dispute in this Court that that claim could not be heard in the New South Wales proceedings?  That was accepted?

MR GYLES:   No.  There are special reasons for that which I will come to, your Honour.

GAUDRON J:   But it was accepted in this Court?

MR GYLES:   It was accepted.  The question involved there, although it does not agitate the relevant question which was “What finding of fact should the trial judge have made?”, at least gets somewhat close to the target.  The written submissions before the Court of Appeal, if your Honours would go to volume 1 of the appeal book before your Honours, commencing at page 233, your Honours will find ‑ ‑ ‑

BRENNAN CJ:   What page is this, Mr Gyles?

MR GYLES:   Volume 1 of the appeal book, page 233, your Honour.  That is the revised outline of submissions of the present appellant in support of the application for leave.  The stay application argument commences at page 240, line 30, there having been a general introduction between pages 233 and 237.

GUMMOW J:   These are written submissions that were before the New South Wales Court of Appeal?

MR GYLES:   Yes, and I should perhaps refer to page 236, your Honours, because this is the sort of general wrap‑up in the introduction of the essential questions raised by the application.  If your Honours read 1.8, it is certainly innocent of any argument about the purpose which has been found as a fact by this Court.  The argument on stay commenced, your Honours, at page 240 and ran through to 243, and part of those submissions are under the heading “Parallel Proceedings” at the foot of page 241, paragraph 3.9 and following.  Now, if there were to be the sort of argument that is now advanced pursued, one would have expected to find it developed there - that is, in 3.9 to 3.13 - and it is not.

GAUDRON J:   I am sorry, could you say that again?

MR GYLES:   Yes.  If the argument which would lead to the finding of fact which this Court has made were to be pursued, or was to be pursued before the Court of Appeal, one would have expected it to be developed under the heading “Parallel Proceedings”.

GAUDRON J:   It is hard to know what was developed in a context where the Court of Appeal was obviously not giving the matter any detailed consideration, did not entertain detailed oral submissions.  I mean, one of the terrible things which, in this area, is - where you are exploring the application of principle to a new situation, the truth of the matter is that written submissions are simply inadequate.  It may be part of the problem that confronts us now.  But written submissions are made on assumptions and bases which may not marry up with what must be the ultimate question of principle.

MR GYLES:   Your Honour, that may be so, but here the appellants did put written submissions, pursuant to the directions of the court, and I am making the point that in the argument they developed they did not ever raise the question or develop an argument as to why the finding of - - -

GAUDRON J:   But there was evidence about purpose.  I mean, in a sense this is an absurd argument.  We know that the proceedings were brought to stop the continuation of the American proceedings.  That was the relief you asked - the exact relief you asked in the anti‑suit injunctions.  So, that was a purpose, there can be no doubt about that.

MR GYLES:   Your Honour, I must come back to that.  I appreciate what your Honour is putting to me and I must deal with it.  I would, however, wish to put before the Court the procedural history because it makes clear beyond doubt that this point was simply not taken in this Court and it was not available to be taken.  Now that may give rise to special problems or issues which were never faced up to when the matter was disposed of, I would respectfully submit.

Your Honours, I should refer to the fact that in those written submissions under the heading “The Present Case” at page 245 paragraph 4.2(b), although it has not been developed earlier, what we do find here is an enunciation of something again which might be seen as being in the general area of purpose.  Your Honours will see that that is a Walton v Gardiner submission.  He erred in refusing the stay in the following general respects and then an argument is advanced, which I again submit is wider and different from the finding that this Court made, but it might be thought gave rise fairly and squarely to a question of purpose, a factual question of purpose.

We know, of course, that the Court of Appeal regarded the matter as interlocutory and refused leave at that stage, saying, in effect, come back when we know the final result of the anti‑suit injunction.

KIRBY J:   Did they really say that?  Justice Mahoney simply said that it is not the practice to give reasons.

MR GYLES:   I am sorry, your Honour, except they said the reasons appear from the argument, I think.  Deducing it as best one can, that is the approach that was taken.  But I am again here, your Honour, not - and I do not want to reagitate those issues - but the position that the appellant was then in was that it had not had its application looked at, if you like, on the merits, whatever the merits may be in such an application.  So it sought to bring the matter to this Court by way of a special leave application. 

I think your Honours may now have the application for special leave to appeal, and the grounds of a statement in support, and your Honours will see, if I could take your Honours to the grounds on which the judgment below is sought to be challenged, in the statement in support of the application for special leave to appeal, this being dated 28 March 1996.

Your Honours, again, ground 2(a) is not apt to raise the point because as with the ground of appeal which came to this Court, the gravamen of that point was the absence of an application being made to the American court.  That was the Amchem point.  When your Honours go then, however, to 3, “Specific questions of law”, in 3(c) there is an issue or a statement of a question of law which, again, raises the question of purpose; not precisely the purpose precisely found by this Court but a purpose, and a purpose - - -

GAUDRON J:   It was very close.

MR GYLES:   Yes.

GAUDRON J:   Certainly the purpose found would be within the ambit of that.

MR GYLES:   If this had been in the notice of appeal, everybody would have been warned the purpose was a critical matter.  Now, the next document your Honours should have is the - - -

BRENNAN CJ:   Mr Gyles, is it necessary to go through all of these, or simply to identify each document accompanied by the proposition that “it does not” raise the point that you say the case turned on?

MR GYLES:   Does or does not?  The reason I need to do it, your Honour, is some of them do.  I am almost finished, your Honour.  The next document is the applicant’s summary of argument on the special leave application and that is, your Honour, dated 6 June 1996 and there is no hint in this document of the matter which was concluded in 3(c) of the earlier statement of grounds, bearing in mind those who were involved in drafting this argument, that would have been no omission or error.

Of course, when your Honours look back in due course your Honours will see why that would have been done, because to make good that point would involve explaining, or having the High Court look at the facts which were before the primary judge and come to a finding about - on a Gardiner issue.  One could imagine that would be seen as pretty much a hopeless cause, where the trial judge had heard the witnesses - the judge at first instance had heard the witnesses and so on.

In any event, those counsel, experienced counsel, who prepared the applicant’s summary of argument omitted this issue.  Your Honours, we have looked at the transcript of the argument before this Court and there was certainly, on the special leave application, no mention of it.  Therefore, when one comes to the notice of appeal - which, your Honour, is tab A of our submissions - if there were to be an abuse of process purpose attack, bearing in mind that the appellant had shown itself able to articulate that in the documents to which I have referred - - -

GAUDRON J:   I do not know that it is a abuse of process attack as such.  I do not know that that is an apt description of what we are concerned with in this issue, in this case, unless you wish to define it more specifically.

MR GYLES:   Perhaps if I restrict myself at the moment, your Honour, to putting the submission that it is a factual finding of dominant purpose, which led to the finding of oppression.  The notice of appeal, your Honours, does not raise this issue.  2(a), as I have said, the gravamen of 2(a) was the argument which formed the basis of the special leave application, in large measure, and the argument before the Court, which was the Amchem principle and its extended operation into the stay field.  That is that you should not commence in the local court without making your application to the foreign court.  That is what 2(a) is about, your Honours, that is not a ground of appeal which is directed to the question of finding a subjective purpose.

Your Honours, in those circumstances, if we are right about that - and we submit we are - it was, in accordance with authorities of this Court and recent authorities, not possible to contend that this Court should make a finding of fact which was either, on one view, contrary to that of the trial judge or, on another, a finding of fact which the trial judge did not make without fair warning to everybody and without an amendment of the notice of appeal.  Arkel?, your Honours, makes that abundantly clear, and Arkell - of course, that applied to an intermediate court of appeal, but it is no different there. 

Your Honours, Coulton v Holcombe, Moustakas and a whole line of authority makes clear that, on appeal, the appellate court cannot enter upon questions of fact which might have been affected by evidence, and certainly cannot do so without giving to us the opportunity of putting a whole number of submissions as to why that finding of fact (a) was not available, (b), even if available, would not be decisive of the issue with which the Court was actually concerned.

So, our basic reopening point, if I could put it that way, is a combined natural justice issue, as far as we are concerned, and an issue as to the ability, in any event, of the Court to entertain the point on the notice of appeal as it stood.

GAUDRON J:   Well, it is a matter of inference.

MR GYLES:   Now, we are quite prepared, your Honours, to enter upon the argument as to what would have happened.

GAUDRON J:   I do not know why it was necessary for the grounds of appeal to raise anything more than to say that they erred in not considering the question.

MR GYLES:   But, your Honour, that has been found.

GAUDRON J:   Yes.

MR GYLES:   Your Honours have found that - - -

GAUDRON J:   But I would have thought that that, in itself, would have opened up the whole ambit.

MR GYLES:   But, your Honours, a factual finding by the High Court, absent a finding below, and perhaps contrary to a finding below, is a very special situation and, if it is not included in the grounds of appeal, it is simply not open and certainly, as a matter of ordinary principles of justice, we were entitled to fair warning that that was to be found.  I mean, at least to be able to put the argument it was not open on the notice of appeal as it stood, and then to argue that an amendment would be refused.  Now, we have never been given that opportunity, your Honours.

Your Honours, we move on from there to the conduct of the appeal.  Now, one thing is perfectly clear and that is that there was no submission on our part on this issue at all.  That is the first point that is clear - oral or written.  The second point that is clear is that - - -

GAUDRON J:   I am not too sure that that is right, because my recollection is that your counsel did assert a purpose in bringing the New South Wales proceedings, and asserted it more than once, asserted a single purpose, which this Court rejected, which was rejected in the majority judgment.  But my recollection is that it was asserted to be the sole purpose - the purpose - for bringing the proceedings.

MR GYLES:   Your Honour, may I put there submission?  There was not one word put by us, written or oral, to meet this argument; an argument, namely, that the purpose found by the High Court might be found, or its consequences.

GAUDRON J:   There was an assertion by counsel in your interests of the purpose in bringing the proceedings in New South Wales, and it was a single purpose, and it was a purpose which was ultimately rejected.

MR GYLES:   Yes.  May I come back to that, your Honour, because I appreciate I will need to deal with?  But my argument is that - - -

GAUDRON J:   And it was clear beyond doubt, in the course of argument, that purpose was a relevant consideration.

MR GYLES:   Well, may I come back to that, your Honour?  There was no argument addressed by us to meet this argument, and there was no question asked by any member of the Court which would give any hint that this finding was to be made.  We have searched the transcript and there was no hint of that possibility.

Now, your Honours, my learned friend in his submission - he may be developing them - claims that by parsing and analysing very carefully what was said at various points, this issue was flagged.  We have dealt with that in our written reply.  We submit that that is, on his part, a hopeless task.  He did not put that this Court should make this finding of fact and, indeed, virtually all of the discussion about these issues were on the anti‑suit injunction point.  There was no debate about the insurer’s purpose in commencing the proceedings.  There was quite a bit of debate ‑ ‑ ‑

GAUDRON J:   You might infer that one reason was to get an anti‑suit injunction because that was the very next step taken.

MR GYLES:   Your Honour, I must come back, I agree, with respect ‑ ‑ ‑

GAUDRON J:   It is an inference which really is all but inescapable - that was one purpose.

MR GYLES:   Yes, your Honour.  I must deal with that and I know I am putting off the day but I wish to go through what actually happened and then come back to the point your Honour is putting to me.

I respectfully submit that where we do not respond to the point and where no member of the Court puts the point and where my learned friend cannot point either to a notice of appeal, a grant of appeal which goes to the point - really goes to the point, or any submission of his which goes to the point, in the true sense, one cannot say we were at fault in not addressing the issue.  The cases which have recently been analysed in De L and so on ‑ ‑ ‑

GAUDRON J:   The question is whether you had an opportunity.

MR GYLES:   Your Honour, it is more than that.

GAUDRON J:   That is a question, whether you had an opportunity and purpose was being debated.

MR GYLES:   It is certainly a question, your Honour, and we say there was no opportunity to deal with the point which was never adverted to or never put in terms or even close to it.  Now, your Honour, that is a basic question of natural justice and your Honours will either be persuaded or not about that.

Your Honours’ recollection of that purpose - I am not quite sure what sparked it - but there was quite a bit of debate about the purpose of CSR in pursuing the American proceedings in the way they did.  There was certainly quite a bit of debate about the effect upon CSR of the orders which were made, principally in relation to the anti suit injunction.

GAUDRON J:   And on the application of the insurers.  We must assume that the insurers wanted the orders that they asked for, must we not?

MR GYLES:   Yes, quite.  Now, your Honours, to sum up, it was never put to us, either by my learned friends or any member of the Bench, that the Court was considering going on to find that the dominant purpose was to prevent CSR obtaining the remedies only available in the US.

Your Honours, if we are correct in that, it does not matter that this Court could properly make that finding and that is, I think, what is being put to me.  It does not matter that the Court could have properly made that finding, we were entitled to be heard about it.

GAUDRON J:   You were entitled to have an opportunity to be heard.

MR GYLES:   Yes, your Honour.  Fairly ‑ ‑ ‑

GAUDRON J:   That is a different matter, Mr Gyles.

MR GYLES:   Fairly put, your Honour.  But it follows, does it not, that if we were not invited, we were not given any hint that this finding was to be made, then one cannot say we were given the opportunity and after all, it is not a negligence case, your Honour, it is not a negligence test.

GAUDRON J:   No, it is a procedural matter at the end of the day.  We are concerned with the matter of practice and procedure really.

MR GYLES:   Practice and procedure, your Honours, which have a fundamental effect upon this litigation.  Now, your Honours, let it be assumed for a moment that this Court was free to consider this question for itself, without regard, without any analysis of ‑ ‑ ‑

GAUDRON J:   I thought we had got to the point where that was conceded, subject to natural justice.

MR GYLES:   Sorry, your Honour.

GAUDRON J:   I thought you had conceded that, subject to natural justice, the Court could determine the matter.

MR GYLES:   No, no, on the contrary.  The notice of appeal prevented it, your Honour, and if there had been an application to amend the notice of appeal there would have been a number of weighty arguments against it.  But, assuming that, for the purposes of the exercise, the High Court were able to consider the matter, what appears to be implicit in what your Honour has put to me and what appears in the judgment, is that it goes without saying that the dominant purpose was as stated in the Court’s judgment.  Can I go back to it, your Honours?  The dominant purpose, it is said, in instituting the New South Wales proceedings, was to prevent the appellants from pursuing remedies available in the US proceedings but not in the New South Wales proceedings. 

Your Honours, it is, of course, obvious and let me come to grips with it immediately.  Where a party commences New South Wales proceedings and contemporaneously seeks an anti‑suit injunction one can readily conclude that that party wishes, if you like, has the purpose of having the proceedings heard in New South Wales.  That, your Honours, is the case every time there are proceedings in different places, presumably each party would wish to have its proceedings heard where they have commenced them.

Could I remind your Honours about Henry v Henry which is a much clearer case and I will take your Honours back to it in a moment, but in Henry v Henry it was a much clearer case.  The husband in Henry v Henry clearly wished to have the dispute heard in Australia, not in Monaco.

Your Honours, there is nothing illegitimate about that purpose.  It is not oppressive and it is not vexatious of itself.  That is plain from Voth, from Henry and, indeed, all the other cases.  The mere fact that you start in New South Wales wishing to have your matter heard in New South Wales is not oppressive at all.  It may be, your Honours, that there is a Walton v Gardiner argument that says if you start in New South Wales not intending to pursue your case in New South Wales, merely as a device, then there might be some room in legal principle to consider that argument.  That was not the finding of the judge below, it was not the finding with respect to this Court, and that is the problem.  Indeed, it would be in the teeth of the evidence.

The anti‑suit injunction has now failed; that has gone.  We have proceedings in New South Wales which we genuinely wish to pursue.  That is not to be criticised without doing the objective balancing test about inappropriateness which Voth says is mandatory.  It is no substitute for that to say, as, with respect, Justice Gaudron has been putting to me, that merely because we bring anti‑suit proceedings in conjunction with our New South Wales proceedings shows we have a purpose of stopping not the American proceedings as a whole but those parts of it which cannot be pursued here.

Your Honours, a moment’s consideration would show that cannot be right.  At the moment, assume the stay goes.  The New South Wales proceedings will continue without any Sherman Act claim and the US proceedings - there is no anti‑suit; that has gone.  It proceeds along and the US proceedings involving the Sherman Act proceed.  There are all sorts of solutions to what might happen then.  Your Honours, it would take me a little more time than perhaps I have at the moment to explore those solutions.  It would involve going back into a close analysis of what those two cases involve but, for example, it may very well be that the US court will strike out the Sherman Act claim.  That is one possibility which is on the evidence.

Another possibility is that they will say, “Look, the basis of this Sherman Act claim is a ‑ ‑ ‑

GAUDRON J:   And you have liberty to apply.

MR GYLES:   Perhaps so, your Honour, but at the moment we are stayed.  What I was going on to say was this:  it may well be that the American court will say, “Your Sherman Act claim, CSR, depends upon it being held against you that the policies were in force but that you, by your contractual agreement, agreed not to pursue those claims”.  It is that foundation which is necessary for the Sherman Act claims.

It is agreed on all hands, your Honours, that that topic, I would venture to submit even your Honours’ judgment, indicates that that topic is probably best decided here rather than there, the validity and the effect of those letters between CSR situated in O’Connell Street, and the insurance companies situated wherever they are in Sydney.  It may very well be that the American court will say, “The best method of proceeding here is to go ahead, let that argument be decided in New South Wales.”  If the insurance company’s argument does not succeed, then the Sherman Act claim is without foundation.  That is just one possibility, your Honour, amongst a range of possibilities which would - - -

GAUDRON J:   In which event, you have liberty to apply.

MR GYLES:   But, your Honour, there would be nothing to apply because the action is stayed.

GAUDRON J:   There is liberty to apply to the Supreme Court of New South Wales to lift or vary the stay on seven days notice.

MR GYLES:   Yes.  But your Honours, the American court at the moment, all they know is that the action is stayed.  Now, we cannot go there and say, “Let the New South Wales court decide this, it would be very sensible”.

GAUDRON J:   You can show them, surely, the Court’s order, this Court’s order.

MR GYLES:   But the Court’s judgment says that these proceedings are oppressive, your Honours, that that there is a purpose, a dominant purpose, which makes them oppressive.

GAUDRON J:   The order says the parties have liberty to apply to lift or vary the stay on seven days notice.

MR GYLES:   Well, your Honours, the short point is this.  Why should I not have an argument; why should I not, on behalf of my client, have a full and proper opportunity of exploring the complexities which will arise if this argument is correct; why should my client not have the opportunity of putting fully before this Court why this finding of fact is not open as a mater of fact; and why it should not be now permitted to be taken; and, indeed, why it does not assist in resolving the dispute?

We have never had the opportunity of confronting those issues, your Honour.  What has happened is that this Court has said, no anti‑suit injunction.  We normally would have sent it back for consideration below but we will not in this case because the same issues arise on the stay proceedings.

When we come to the stay proceedings, the Court says, error in principle by the trial judge, did not consider the whole of the dispute, normally would go back, but to go back to do what?  To consider the balancing process and the inter-related considerations process which Voth, the objective process which Voth says is required and a process which this Court has said in Voth should not be an extended process.  It should be a matter of the trial judge, or the judge at first instance, assessing all these things in a fairly summary fashion.  But the Court said, we will not do that, there will not be the objective weighing of the factors as per Voth.  Why?  Because we, for the first time, have made a finding of fact about purpose which precludes that, a dominant purpose which precludes that exercise taking place.

Your Honours, we would wish to put arguments as to where - at the end of the day, this is all rooted in the Sherman Act claim.  There are very powerful reasons, your Honours, why if the dominant purpose argument goes and you are left with a Voth objective indicators test, your Honours have indicated that there are good grounds for thinking, if you look at the New South Wales proceedings, New South Wales is not inappropriate, and we would wish to make a strong attack upon the Sherman Act argument of my learned friends, on a number of bases, not the least of which is the other public policy aspects of it, which are not dealt with at all in your Honours’ judgments because your Honours in the majority did not ever come to do the exercise. 

The Sherman Act is an exorbitant jurisdiction.  We put a public policy argument to Justice Rolfe that - there is no difficulty about a foreign statutory claim being brought in New South Wales, as a matter of principle, the difficulty lies in the Sherman Act ‑ ‑ ‑

GAUDRON J:   These are American companies, or American related companies, applying about the exorbitant jurisdiction of the United States courts.  It is not the way those arguments are usually put.

MR GYLES:   Cigna Australia is an Australian company, your Honour, but ‑ ‑ ‑

GAUDRON J:   But I said “American related companies”.

MR GYLES:   But I do not think, your Honour, that the stars and stripes obliges one to maintain a company line on everything.  It may be unusual, but this is the situation, your Honour.  We would wish to put arguments going beyond the ‑ ‑ ‑

GAUDRON J:   Is it right to say it is an exorbitant jurisdiction when it relates to competition in the United States - when the gist of the action relates to competition in America?

MR GYLES:   Your Honour, we say that is not the fact in the present case.  All of the circumstances took place in Australia, and your Honours in the majority never had to consider all these questions.  This is, in effect, one single insurance policy.  To talk about American claims and Australian claims and Dutch claims and so on was really, in a sense, a red herring.

GAUDRON J:   I think it was raised by your interests.

MR GYLES:   I do not know about that, your Honour.

GAUDRON J:   That is the reason for the ‑ ‑ ‑

MR GYLES:   No, I think no, your Honour, with respect.  Many of the insurers are not US insurers, incidentally.

GAUDRON J:   No, but the separate nature of the claims, I think, was raised by - the Australian claims and the American claims, I think they were issues that were raised by your client.

MR GYLES:   Your Honour, our position was, and remains, this is, in effect, one policy, or series of policies, which cover claims wherever they arise, and the issues as to the existence of the policies: their continuance, their cover and the agreement not to pursue, are all to do with an Australian insurance policy.  The fact that you have some US claimants as third party claimants is a relevant factor, but it is pretty small on the scale, we would be respectfully submitting.

Now, there is nothing to stop the US court hearing the Sherman Act claim, subject to, of course, all the arguments which would be advanced to them by way of defence.  Your Honours, with respect, the majority have not entered upon the difficult task of assessing a transnational transaction in these circumstances, where there is this exorbitant claim.  It simply has not been done.

McHUGH J:   But is it relevant at all?  Because in the passage at 441, why the New South Wales proceedings were stayed was because of a finding that your dominant purpose was to prevent the appellants from pursuing remedies available in the US proceedings, but not in New South Wales.  Now, if you fail on that - - -

MR GYLES:   That is precisely my point, your Honour.  If we fail on that, and if that is a separate ground, then one never gets to the balancing exercise.  My point is this:  if we are correct in thinking that that was not an available finding, then the Court would be back to Voth, and looking at all of the factors.  I am saying, if one got to that level, there are - - -

GAUDRON J:   Or Henry.

MR GYLES:   Or Henry, indeed.  Your Honours, perhaps can I go back to Henry?

BRENNAN CJ:   But you are not engaged, at this stage, in arguing that point, Mr Gyles.

MR GYLES:   No, I appreciate that.

BRENNAN CJ:   Your point is that there is some deficiency in the Court’s judgment which warrants it being set aside.

MR GYLES:   Yes, your Honour.

BRENNAN CJ:   The point that you are now minded to address, as I understand it, is that which follows if your motion is allowed.

MR GYLES:   Yes, your Honour.

BRENNAN CJ:   Well, do we need to go into that?

MR GYLES:   No, your Honour, except that I have been asked questions which indicate that - - -

BRENNAN CJ:   Yes.  Well, answer the questions, by all means.

McHUGH J:   My question was really put to you to forestall you pursuing it.

MR GYLES:   Yes, I understand that, your Honour.  I mean, either I succeed in persuading your Honours that that finding should not have been made at that time, or I do not.

BRENNAN CJ:   Yes.

MR GYLES:   I think I was wishing to answer questions and indicated in so doing that this is not an idle application; that, if we succeed, there are a number of weighty matters to be considered which should not be done on the run.  But, your Honours, I did refer to Henry v Henry 185 CLR 571.

BRENNAN CJ:   What is the purpose of this reference, Mr Gyles?

MR GYLES:   It was, your Honour, to, I think, indicate that the argument which was found here, although not put, was expressly put by counsel in Henry v Henry on much stronger facts, and not dealt with in the judgments.  Indeed, in Henry v Henry what happened was that the matter went back to the courts below.

At 573 point 9, Mr Broun put in a variation of this theme and that was not - in circumstances where the correspondence between the parties and the issues was much closer than the present case and yet the Court did not accept that or did not deal with that argument but, rather, sent the matter back to the court below for an assessment of the balancing of the various factors.  Your Honours, of course, I am reminded, there was no debate at the hearing about the consequences of a finding of this sort which, in my submission, is an indicator that it was not a matter which was before the Court, and I mention, and I know one can only get so much out of this, that the Chief Justice in his dissenting judgment did not notice this argument.  If it were an argument of such power, an argument which was central to the resolution of the case, it is at least odd that it was not referred to at all by his Honour in his dissenting judgment.

I mean, the effect of the decision, when one understands the facts, your Honours, is that each time a party confronted with a foreign proceeding, no matter what the merits of it commencing were, will be held to be oppressive if you start your own proceedings and bring an anti-suit injunction, because that is all the foundation was for this factual finding. Your Honours, that is in the teeth of Henry v Henry and Voth and Oceanic and, we submit, every other authority on the point.

BRENNAN CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I deal first with the argument of our learned friends about what the findings are or might have been.  In that regard what I wanted to deal first with is the argument that was put that there either were findings, those being the ones at pages 21 and 40 which were germane, and on the other hand, the argument that if there were not, then the Court should not have entered upon the making of those findings.

Your Honours, could I just say in the first place before going to those things that, as your Honours will appreciate, this was a case where there had been a decision by a primary judge but when an appeal was sought to be brought to the Court of Appeal, leave was refused.  So that the court was in a sense in a position where it was being asked to do - and I will come to the detail of that in just one moment - in a sense what in one respect might have been done by the Court of Appeal had that court entertained the matter.

Could I come then to the underlying findings that are said to be relied on.  They are the ones referred to in our learned friend’s submissions in paragraph 11 - that is their submissions in‑chief.  If I could take your Honours to the two passages that are referred to.  I need to refer to our learned friend’s submissions in‑chief, paragraph 11, submissions on this motion.  What your Honours will see is that in paragraph 11 there are two passages referred to.  My learned friend has taken your Honours to both those this morning.

What your Honours will see from the first of them, which, if your Honours are looking at page 40 of Mr Justice Rolfe’s reasons, what he simply says is that he was not satisfied that the insurer’s action in bringing the proceedings was actuated by any mala fides or illegitimate ulterior motive.  If one goes from that to the other passage at page 21, lines 25 to 40, it is plain enough, in our submission, that what his Honour is speaking about there is that he is dealing with the submission that what he describes as the District Court of New Jersey was a court that was seen to be anti‑insurers.

That is all that his Honour was dealing with in that passage.  If, contrary to that submission, his Honour was in fact making a finding of the kind that is asserted in paragraph 11 of our learned friend’s submissions, it is manifest, we would submit with respect, that his Honour was in error because to say that there was no evidence of the insurer’s motivation was quite wrong.

There was, in fact, evidence and that evidence was the evidence of their solicitor, Mr O’Brien, but the evidence that your Honours will see, and this was referred to at the hearing and I will take your Honours to that in a moment, it would have been quite wrong because Mr O’Brien’s evidence, your Honours will see in volume 3 of the record in two passages, one at page 589 and your Honours will see at paragraph 13 on page 589 and it is the particular passage quoted from the transcript, “Was the purpose” et cetera, and he answered, “Yes, I believe so.”

And then, at page 659 your Honours will see - I am sorry, your Honours, I have lost that passage.  Perhaps I should have said page 660 lines 30 to 40.  Your Honours, so the position was first of all - and these passages were referred to the court in the earlier hearing - but if one were looking at subjective purpose then the position was pretty apparent from that evidence.  If one were looking at objective purpose it supported the view that was taken by the Court, and which was really not contradicted anywhere, that that was the purpose of institution of the proceedings.  Could I come then, your Honours, to ‑ ‑ ‑

BRENNAN CJ:   What are the claims that were referred to by the questioner in those places?

MR JACKSON:   Your Honour, the particular claim that was being referred to in that context, I think, was all the claims being brought in the New South Wales proceedings.

GAUDRON J:   In particular, the negative injunctions.

MR JACKSON:   Yes, your Honour, because your Honours will see, if I could just say, that on a very significant number of occasions ‑ ‑ ‑

GAUDRON J:   Negative declarations I should have said, sorry.

MR JACKSON:   Thank you, your Honour.  Your Honours will see on a very significant number of occasions that our submissions, grounds of appeal, whatever, all refer to the negative declaration aspect of the case, and it was in that context that the observations were made.  Your Honours, if I could turn then to the proceedings that were here.  It will be appreciated, we would submit, that the notice of appeal sought orders that this Court stay or dismiss the New South Wales proceedings.  Your Honours will see that in the notice of appeal in paragraph 3(c).  If your Honours have volume 3, it is at 809.  It sought, the order, that the proceedings “be stayed or dismissed”, and then alternative orders were sought, including, for example, 3(e), “that the appeal be remitted to the Supreme Court of New South Wales”.

Your Honours, if I could just pause there to say something about that.  It was manifest, in our submission, that the claim that the proceedings be determined by this Court, whether acceded to or not, put in issue the question whether there should be a stay of the New South Wales proceedings, and a respondent, reading the notice of appeal, must be taken, in our submission, to have understood that the order made by Mr Justice Rolfe was being put in issue and that a stay was being sought and that, your Honours, the whole notion of that relief involved a consideration of the issue of oppression in, if I could use the words of the majority in the relevant part of the decision in this case - it was twice used by the Court in the passages referred to by my learned friend, “oppression in the Voth sense”.

Now, your Honours, when one comes to look to see what is meant by “oppression in the Voth sense”, what is made apparent, in our submission, is that that can be seen by looking at what was said by four Justices in Voth 171 CLR 538 at page 564 - your Honours, could I just pause to say that what demonstrates, and I will take your Honours to the passages in a moment, in our submission, is that one is looking at the position in the objective sense.

Could I take your Honours to Voth 171 CLR at page 564, and at the bottom of page 564 what your Honours will see is that it said that the principles to be applied are those stated by Justice Deane in the Oceanic Sun.  Your Honours, one goes from Voth to Oceanic Sun Line 165 CLR 197 and the relevant passage that is referred to there, in particular, at page 248, about half-way down, what your Honours will see is a passage in the reasons of Justice Deane where he says that:

Once it is accepted that the adjectives “oppressive” and “vexatious” are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation o the proceedings rather than the conduct of the plaintiff in continuing them, the continuation of proceedings -

et cetera, and your Honours, that is what is being looked at.  Your Honours, what one has to bear in mind is the argument being advanced on behalf of the respondent in these proceedings, is to say the Court has made a finding of subjective purpose.  But if one looks at what the majority said in this case, the expression “oppressive” is used in the Voth sense, the words appear there.  Your Honours, there is no reason why the Court should say that the - I am sorry, your Honours, I am putting it badly.  That is what the Court, in our submission, meant.

Could I come then, your Honours, back to the notice of appeal, at page 807 of volume 3?  Now, your Honours, if one goes to the - I have taken your Honours to the relief that was sought in it, but what we would submit, your Honours - and this is contrary to our learned friend’s submission - is that the grounds do make it absolutely clear that the Court was being asked to hold that the insurer’s conduct was relevantly oppressive.  If one goes to ground 2(a) on page 807, that is, your Honours, this case, and what it speaks about are the circumstances of this case; that is, it says that the ground:

That it is vexatious and oppressive and/or an abuse of the processes of the Australian court where proceedings are first commenced in a foreign court but no application is made in that court for a stay of those proceedings for proceedings to be commenced in the Australian court -

and so on.  Now, your Honours, what it describes - perhaps excessively wordly - but what it describes is the very contention that was made in relation to the facts of this case.

GUMMOW J:   Which paragraph was that, Mr Jackson?

MR JACKSON:   2(a), your Honour, page 807.

GUMMOW J:   Thank you.

MR JACKSON:   Now, your Honours, there also, if I may say so, could be no doubt whatsoever, once the written submissions were received, that the point was being made.  The problem, in our submission, that the insurers faced was that there was not much of an answer to it and, your Honours - and I will seek to develop this in a moment - the course adopted, no doubt wisely by those conducting the case at the time, was to keep the head down on the point and say nothing about it, or say not much about it.  Now, your Honours, we deal, in our written submissions, and our written submissions on this application, in paragraphs 4.7 to 4.10, with this aspect of the matter.  May I take your Honours to those, and I will endeavour to do so briefly.

Your Honours, page numbered 5 of those submissions, paragraph 4.7, and what we say, your Honours, is that if one goes to the written submissions which we made to the Court on the 25 October 1996, it is quite plain that this point was specifically raised.  If your Honours wish to look at the original of that document, as your Honours will see it is Exhibit C to
Mr Price’s affidavit, and your Honours will see that paragraph 37 said, as a submission, that his “views in relation to ‘vexation and oppression’” and your Honours will see then the submission put the bottom of page 5 and the top of page 6 and the passages to which reference is made there are passages to which I think I have taken your Honours already this morning, or some of them, that is the evidence that was given by Mr O’Brien.

Now, your Honours, that submission, if your Honours look at the terms of it, it put in the clearest possible fashion the fact that this matter was put in issue.  Your Honours will see also reference to, in paragraph 4.9 to paragraph 41 of those submissions - I will not read it out - and we would refer your Honours also to paragraphs 43 and 44.  The one thing that appears, your Honours, and perhaps I should take your Honours to the actual submissions which, as I said a moment ago, are Exhibit C to Mr Price’s affidavit in support of this application, is that your Honours will see in paragraph 47 of those submissions at page 17, that reference was made to the effect of the grant of the anti‑suit injunction and refusal to stay being summaried in the outline are in the outline of submissions to the Court of Appeal.  It was said in paragraph 48 that those submissions were relied on but not repeated.

Your Honours, could I just say in relation to those that if one goes to the actual document where they appear, you will see them in the first volume of the appeal book.  At page 235 could I take your Honours to paragraph 1.7.

Your Honours, I will not go through the whole of it, but could I just isolate for example, paragraph 1.7(7) which is on page 236 where one of the propositions advanced was that the effect of the judgment was to:

shut out CSR from the only jurisdiction -

et cetera, and your Honours will see subparagraph (8) and so on.  Your Honours, if one goes from that further over to page 237, the next page, your Honours will see in paragraph 1.10 the issue being raised and, in paragraph 1.11:

To the extent that the effect of the anti‑suit injunction and the refusal of the stay -

and so on, then, your Honours, it ends up saying:

it is just to permit that result to obtain.

Finally, your Honours, if I could go to page 245, and this is a passage to which my learned friend took your Honours this morning.  At paragraph 4.2 your Honours will see both paragraph (a) and paragraph (b) raise directly the question of the correctness of the primary judge’s finding.  Your Honours will also see, if I could go back to our written submissions, in paragraph 4.11, there was a reference to the passage of oral argument at page 55 and your Honours will see there what I said and we said, specifically:

that the proceedings.....were instituted because of our proceedings in the US and.....to prevent the issues in that action being litigated in the United States.

Your Honour, Mr Justice McHugh at 131 line 5:

there are strong arguments for saying that New South Wales was not a clearly inappropriate forum and I have got some doubts as to whether you are going to have much luck with a stay application in the United States, having regard to their jurisdiction, so the problem is that you may well have two parallel sets of proceedings, but why should there be an anti-suit injunction?

Your Honour, the same thing had been effectively put by Justice Gummow at line 25 of the previous page.  So Mr Stitt, with very great respect, was not being alerted to this possibility at all.

GAUDRON J:   There were two appeals, were there not?  I mean, sorry, there were two orders ‑ ‑ ‑

MR GYLES:   Two issues.

GAUDRON J:   Yes, there were always two issues.

MR GYLES:   Anti-suit and stay.

GAUDRON J:   Yes.

MR GYLES:   Now, this, your Honour - what your Honour said was in relation to stay, what His Honour the Chief Justice said was in relation to stay.  The two passages I have now pointed to are certainly relevant to
anti-suit and I suggest they are the only sorts of passages which your Honours may have had in mind in an imperfect recollection of this transcript. 

Now, it is certain that Mr Stitt was saying, in other passages, that he was defending Mr Justice Rolfe when he said that CSR were vexatious in bringing their proceedings in the way they did.  But that is a very different point.  So that, your Honours, there is no support for the proposition that
Mr Stitt was alerted to this by what happened during the oral argument or that he, in some way, opened up this area, quite to the contrary.

Your Honours, both my learned friends have referred to the evidence of Mr O’Brien and they have referred to, I think, three questions and answers. Your Honours, Mr O’Brien filed an affidavit in the proceedings, which is not in the main appeal books but was in an ancillary appeal book, which, in great detail, traced all of the issues and explained the approach of his client.

To sum it up, the client took the view that the connection with New South Wales meant that New South Wales was the appropriate place to hear the case and, initially, they had sought to have an anti‑suit injunction and a negative injunction in relation to the Sherman Act but that was dropped before he gave evidence.  He was then cross‑examined, your Honours, between pages 447 and 474 of the transcript in the appeal books and, your Honours, in that 30 pages of cross‑examination again made it clear that his client’s position was that it wished to have the matters litigated in New South Wales and, if the consequence of that was, either as a result of the anti‑suit injunction or otherwise, that meant that the American proceedings would not go ahead in whole or part, so be it.

Your Honours, my friends have referred to three questions and answers.  They do not endeavour to address the substance of Mr O’Brien’s evidence or his questions and answers at 467 and 468 and nor did this Court.  There is simply no examination of the primary evidence on the point and to pick out one question and answer and say that decides the case is not the way, with respect, the Court did - there was no reference to his evidence and, I submit, that if his evidence were tendered it would show a bona fide approach by the client to say, “We want these cases, which have substantial connections with New South Wales, as your Honours know, heard in New South Wales.”  That is not, we submit, any problem so far as Voth is concerned. 

I refer to the fact, your Honours, that there was an abandonment, we would put it, of the initial grounds in the special leave application.  Mr Bennett went back to refer to them.  Our point this morning was yes, when they filed their application they enunciated the point.  When they came to the argument that was actually addressed to this Court on the special leave application, written and oral, they had abandoned it and did not reinstate it at any stage.  Experienced solicitors, experienced counsel had awfully good reasons why they might have taken that tactical decision.

Your Honours, the liberty to apply - may we refer to that because I answered that on the run - it seems to us, with respect, that the liberty to apply has these difficulties.  First of all, there are no Australian proceedings to go ahead and the United States court can only assume that there will be no Australian proceedings and furthermore, both the ‑ ‑ ‑

GAUDRON J:   There are proceedings but they are stayed.

MR GYLES:   Yes, your Honour.  But furthermore - - -

GAUDRON J:   Subject to leave to apply to lift the stay if circumstances require.

MR GYLES:   Your Honour, I am not here to narrow the stay basis, of course.  But I am just pointing out the possible difficulties; that, so far as the American court is concerned and, indeed, any judge of first instance here, is confronted with 441 of the ALR and they say, “Look, it does not matter about the balancing.  It does not matter about convenience.  It does not matter about the proper form.  The High Court have said you have got this dominant subjective purpose and you are out of Court.”  So, they are going to say, surely, are they not, it does not matter what happens hereafter, you can never be in a better position because of that.

Now, may I say this?  If your Honours could make clear that there should be no such inhibition upon any application, well, of course that would be some crumb of comfort for all of us, your Honours.  But we submit it is not really an answer to the problem that we have put.  Your Honours, our argument goes well beyond the adjective that my learned

friend, Mr Jackson, put, picking up, perhaps, some matters that have been put to him.  Our argument, your Honour, is, of course, the dominant purpose, or finding of a dominant purpose, is significant because that picks up the words of Williams v Spautz.  But our point is not so much whether it is dominant, or sole, or anything else; we say purpose is subjective, and any finding of purpose is not a finding within Voth, and is not a finding sought by my learned friends.  It is not a finding sought in the notice of appeal and is not a finding which was open to them.  If your Honours please.

BRENNAN CJ:   Thank you, Mr Gyles, the court will adjourn ‑ ‑ ‑

MR JACKSON:   May I have leave to say two things in response to matters raised by my learned friend?  One was that he said that the observations we made in paragraph 37(d) of our submissions, where something was said orally, related only to the anti‑suit injunction provision.  It is clear, your Honours, that that is not so.  That appears from page 49 of the transcript, at about line 29.  If I could come then to the question of the stay - and I am referring to page 15 of our submissions, paragraph 39 and following - I say that:

I suspect that in passing I have dealt with a number of these matters already.

And then, your Honours, go on at page 55 to the passage commencing at line 6, which goes through to line 20, to which I referred this morning and your Honours will see, between lines 15 and 20 on that page, that the issue is specifically raised and put.  Your Honours, that is the first thing.  The second thing is that our learned friend’s arguments in reply, if I may say so with respect, go rather beyond reply into a second go.

BRENNAN CJ:   The Court will adjourn in order to consider what course it will take.

AT 3.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.14 PM:

BRENNAN CJ:   I will ask Justice Toohey to deliver the first judgment.

TOOHEY J:   What I am about to say represents the judgment of the members of the Court other than the Chief Justice. 

The first and second respondents seek to vacate the judgment handed down and the orders made by the Court on 5 August 1997. They do so on the ground that they were afforded no opportunity of being heard on the question of the dominant or central purpose of those respondents in instituting proceedings in New South Wales. The complaint of the first and second respondents focuses on two passages in the judgment of the majority as reported in 146 ALR 402 at page 441. I read those two passages. The first is:

There can be no doubt that the central purpose of the respondents in instituting the NSW proceedings was to prevent the continuation of the US proceedings.

The second passage reads:

The facts indicate that the respondents’ dominant purpose in instituting the NSW proceedings was to prevent the appellants from pursuing remedies available in the US proceedings but not in the NSW proceedings.  It follows that the NSW proceedings are oppressive, in the Voth sense, and should be stayed.

In the view of the majority of the Court, the purpose of the institution of the proceedings in New South Wales, whether it be described as central or dominant, was a live issue in the appeal to this Court as appears from the material to which the attention of the Court was directed in argument, both from the courts below and in connection with the proceedings in this Court.  In those circumstances it cannot be said that the first and second respondents were deprived of the opportunity to address the question identified in the passages of the judgment of the majority to which reference has been made.  It follows that the motion should be refused with costs, but not on an indemnity basis.

BRENNAN CJ:   As my dissenting judgment in the case reveals, I attribute to the respective proceedings a character different from the character attributed to them by the majority.  Approaching the question raised by the notice of motion from a different viewpoint, I see greater force in the respondents’ submissions than that found by the majority.  I have not come to a final view on the question raised by the motion but there is no purpose in declining to give effect immediately to the opinion of the majority.  The result of the motion turns solely on the conduct of the case.  In those circumstances the order of the Court is that the motion be dismissed with costs, but not on an indemnity basis.

AT 3.18 PM THE MATTER WAS CONCLUDED