Independent Trustee Services Ltd v Anthony John Morris

[2010] NSWSC 847

CITATION:	Independent Trustee Services Ltd v Anthony John Morris [2010] NSWSC 847
HEARING DATE(S):	29 July 2010
JUDGMENT DATE :	4 August 2010
JUDGMENT OF:	Ball J
DECISION:	1. Order that the time for compliance with orders 8(a) and 8(b) of the orders made by Pembroke J on 15 July 2010 be extended to 21 July 2010. 2. Otherwise, dismiss the defendant's amended notice of motion dated 27 July 2010 with costs.
CATCHWORDS:	PRACTICE AND PROCEDURE - forum non conveniens - subject matter of proceedings already subject of proceedings in England where judgment was obtained in plaintiff's favour - whether proceedings in New South Wales would cause hardship - New South Wales Supreme Court appropriate venue - no hardship to defendant.
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Evidence Act 1995 (Cth) Foreign Judgments Act 1991 (Cth) Uniform Civil Procedures Regulations (NSW)
CATEGORY:	Procedural and other rulings
CASES CITED:	CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Davis v Turning Properties Pty Ltd (2005) 222 ALR 676; [2005] NSWSC 742 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 White v Verkouille [1990] 2 Qd R 191
PARTIES:	Independent Trustee Services Limited (as Trustee of the Pension Schemes Listed in Annexure "A") (Plaintiff) Anthony James Morris (Defendant)
FILE NUMBER(S):	SC 2010/236266
COUNSEL:	G Parker SC (Plaintiff) A R Zahra(Plaintiff) G Laughton SC (Defendant) S Kettle (Defendant)
SOLICITORS:	Clayton Utz (Plaintiff) Finn Roache Lawyers (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

4 AUGUST 2010

2010/236266 INDEPENDENT TRUSTEE SERVICES LTD v ANTHONY JOHN MORRIS

JUDGMENT

1 CORAM: JudgmentOn 15 July 2010 the plaintiff, who is the trustee of a number of English pension schemes, commenced proceedings against the defendant for various orders in connection with the payment out of those funds of a total amount of ₤52,000,000. The orders are essentially of two types. First, the plaintiff seeks orders in aid of or to give effect to orders of the High Court of Justice of England and Wales made by Peter Smith J on 1 and 2 July 2010 in proceedings between the plaintiff and the defendant (among others). Alternatively, the plaintiff seeks judgment against the defendant in the sum of ₤52,000,000 together with ancillary orders. At the time the summons was filed, the plaintiff also sought and was granted an ex parte freezing order by Pembroke J.

2 On 21 July 2010 the defendant filed a motion seeking an order that the proceedings be dismissed or stayed. That motion was amended with leave on 27 July 2010 to seek three additional orders. Two orders sought by the defendant concerned extensions of time in which to provide information disclosing his assets in accordance with paragraph 8 of the freezing order made by Pembroke J. Those orders were not opposed by the plaintiff. A third order sought an order that the defendant had, in fact, complied with one of the disclosure orders made by Pembroke J. In my opinion, an order in those terms is inappropriate and I decline to make it.

3 The defendant initially raised various bases on which he sought dismissal or a stay of the proceedings. However, as Mr Parker, who appeared for the plaintiff, pointed out, the defendant has not yet filed an appearance. In those circumstances, without leave, he is not entitled to take any step in the proceedings except, relevantly, to make an application under UCPR r 12.11 for an order that the court decline to exercise jurisdiction in the proceedings on forum non conveniens or related grounds. Although I initially expressed a willingness to deal with the other grounds on which the defendant sought a stay or dismissal of the proceedings, neither party suggested that this was an appropriate matter to give leave to the defendant to raise those grounds in the absence of an appearance. In those circumstances, I have proceeded on the basis that the only issue to be determined is whether the proceedings should be stayed under UCPR r 12.11.

4 The defendant essentially relies on four matters in support of his application for a stay under that rule.

5 First, the defendant says that the subject matter of these proceedings is already the subject of proceedings in England in which a judgment has been given against him in the plaintiff’s favour by Peter Smith J and in which worldwide freezing orders were made against him on 4 and 25 November 2008.

6 Secondly, the defendant points to what is said to be advantages in having the matter determined in England. The principal advantage raised by the defendant was that the moneys in question were paid through the trust account of lawyers in Gibraltar and the lawyer involved could be a critical witness in the proceedings.

7 Thirdly, and this point is really connected to the first, the defendant says that he would face considerable hardship as a result of the duplication of effort in dealing with the proceedings both in England and here. That hardship was exacerbated by the fact that the freezing orders in England prevented the defendant from paying any amount in legal fees in defending these proceedings.

8 Fourthly, the defendant says that he will be prejudiced because he will not be entitled to rely in the English proceedings on any certificate granted to him under either s 87 of the Civil Procedure Act 2005 or s 128 of the Evidence Act 1995. Those sections permit, or in the case of s 128 in some cases compel, a party to civil proceedings to answer questions that may tend to incriminate him or her. However, if the person does answer the questions, the provisions require the court to give a certificate preventing the answers from being used in criminal proceedings.

9 In my opinion, none of these matters provides a basis for staying the proceedings.

10 There is no doubt about the applicable principles. The existence of parallel proceedings does not of itself establish that the proceedings within the jurisdiction should be stayed on the ground that they are vexatious or oppressive. As the High Court said in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393:

“Those cases [ie various cases decided in the nineteenth century including Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225] established that the mere coexistence of proceedings in different countries does not constitute vexation or oppression. In particular, “ Peruvian Guano established as that “double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]” does not amount to vexation or oppression.” (footnotes omitted)

The court should only stay proceedings on forum non conveniens grounds if it is satisfied that it is a clearly inappropriate forum: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

11 In this case, the defendant did not appear in the proceedings in England and the orders made by Peter Smith J were made in the defendant’s absence. The defendant admits that he has not complied with those orders.

12 As Mr Parker points out, one consequence of the fact that the defendant did not appear in the English proceedings is that the orders made by Peter Smith J if registered here could be set aside under s 7 of the Foreign Judgments Act 1991 because, for the purposes of that section, the English Court did not have jurisdiction to make the orders it did against defendant in the absence of an appearance by him: see s 7(3).

13 In those circumstances, there is clearly something to be gained by the proceedings in New South Wales – that is, the fact that the defendant is amendable to the jurisdiction of the courts in New South Wales because this is where he resides; and, consequently, this court is in a position to make effective orders against him whereas the courts of England and Wales are not.

14 Mr Laughton, who appeared for the defendant, submitted that New South Wales was clearly an inappropriate forum because proceedings here would involve the duplication of effort in circumstances where the proceedings in England were far more advanced and provided a more appropriate forum having regard to the nature of the case. The extent to which there will be duplication of effort depends, of course, on the nature of the proceedings here. The primary position of the plaintiff is that it is entitled to relief in aid of proceedings in a foreign jurisdiction in accordance with principles stated in cases such as White v Verkouille [1990] 2 Qd R 191 and Davis v Turning Properties Pty Ltd (2005) 222 ALR 676; [2005] NSWSC 742. If that is correct, there will not be a substantial duplication of effort. However, even if it is not correct and the plaintiff must seek to obtain a judgment here in similar terms to the judgment it obtained in England, I do not think that that alters the position. The duplication of effort will largely be on the part of the plaintiff, not the defendant. That duplication arises from the fact that the defendant did not appear in the English proceedings and has refused to comply with the orders made against him in those proceedings. The duplication, of course, could be avoided if the defendant submitted to the orders of Peter Smith J, which is something he has refused to do. In those circumstances, the duplication that may occur can hardly be a basis for staying the proceedings here.

15 I do not think that the other matters raised by Mr Laughton alter the position. The critical feature which makes New South Wales an appropriate forum is that this is the jurisdiction in which the defendant resides. The fact that one or more potential witnesses reside outside the jurisdiction does not alter that fact. Similarly, the fact that the subject matter of the proceedings may have a greater connection with England cannot alter the appropriateness of New South Wales as a forum given that the defendant resides here. Any hardship the defendant suffers as a consequence of proceedings here is of his own making because of his failure to file an appearance in the English proceedings. Moreover, as Mr Parker points out, the fact that the defendant is prevented by orders made in England from expending money on legal fees is not a reason for staying the proceedings here. The fact that a defendant is impecunious does not mean that the proceedings against him are oppressive.

16 Mr Laughton’s point about the privilege against self-incrimination is not easy to follow. The Civil Procedure Act does not prevent the defendant from relying on the privilege. Nor does the Evidence Act, since, under that Act, the court may not require a defendant to give evidence unless it is satisfied that the evidence does not tend to prove that he has committed an offence or is liable to a civil penalty under the law of another country: see s 128(4). It is true that, in circumstances where the defendant may face the possibility of criminal proceedings overseas, the value of a certificate to him may be limited and, for that reason, he may choose not to give the evidence to which it would apply. In that sense, it could be said that the defendant is at a disadvantage. However, that disadvantage arises from the possibility that criminal proceedings will be brought against him in England. It does not arise from the fact that civil proceedings are brought against him here.

17 For these reasons I decline to make the orders sought in paragraphs 1 to 5 of the notice of motion. As I have said, the plaintiff does not oppose orders in terms of paragraphs 6 and 7 of the notice of motion. I make those orders. The defendant should pay the plaintiff’s costs of the motion.

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