FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kim v Naum BBQ Pty Ltd [2024] FedCFamC2G 1418
File number: MLG 289 of 2023 Judgment of: JUDGE SYMONS Date of judgment: 19 December 2024 Catchwords: INDUSTRIAL LAW – application in proceeding for relief in the nature of an anti-suit injunction – where first and second applicants commenced proceeding in this Court alleging breaches of the Fair Work Act 2009 (Cth) in connection with their employment by the first respondent in a Korean restaurant – where first applicant later commenced proceeding in the County Court of Victoria against the second respondent alleging breaches of a business and loan agreement relating to the establishment and operation of the Korean restaurant – whether Court has power to make orders that would restrain the first applicant from taking steps in the County Court proceeding – whether the two proceedings concern the same justiciable controversy – whether, in circumstances where the County Court proceeding is listed for trial imminently, it would be in the interests of justice to grant injunction – application in proceeding dismissed Legislation: Fair Work Act 2009 (Cth), s 566
Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 10, 140
Fair Work Regulations 2009 (Cth)Cases cited: Beattie v Digga Excavations and Demolition Pty Ltd [2023] FedCFamC2G 337
Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12
Mackellar Mining Equipment Pty Ltd v Thornton (2018) 341 FLR 226; [2018] QSC 186Pegasus Leasing Limited v Cadoroll Pty Limited (1996) 59 FCR 152; [1996] FCA 64
Verity Shipping SA v NA Nvnorexa [2008] EWHC 213 (Comm); [2008] 1 Lloyd’s Rep 652
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submissions: 12 December 2024 Date of hearing: 12 December 2024 Place: Melbourne Solicitor advocate for the Applicants Mr A Jenshel, Mann Lawyers Counsel for the Respondents Mr J Fetter Solicitor for the Respondents Murati Lawyers ORDERS
MLG 289 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JUNGHUN KIM
First Applicant
JIHYUN KYE
Second Applicant
AND: NAUM BBQ PTY LTD (ACN 628 027 850)
First Respondent
BYOUNGHWA LEE
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The respondents’ application in a proceeding filed 22 November 2024 be dismissed.
2.Costs be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
On 23 February 2023, Mr Junghun Kim (first applicant) and Ms Jihyun Kye (second applicant) filed an application and statement of…
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- Case
- [2024] FedCFamC2G 1418
- Decision Date
CaseChat Overview and Summary
The court considered the principles for granting an anti-suit injunction, including the protection of the administration of justice and the court's exclusive right to control proceedings once a claim is brought before it. The court also noted that an injunction would be granted only where the interests of justice so required. The court concluded that it was not in the interests of justice to restrain Kim from proceeding further in the County Court proceeding, as the trial was imminent and the FCFCOA proceeding was still at an embryonic stage with ongoing applications and potential further amendments to pleadings. The court emphasized that an anti-suit injunction acts in personam against the parties but is, in substance and effect, an interference with the process of another court, which must be weighed in the balance.
The court dismissed the application for an anti-suit injunction, finding it not to be in the interests of justice given the imminent trial in the County Court proceeding and the more advanced stage of that proceeding compared to the FCFCOA proceeding. The court noted that the FCFCOA proceeding had not yet crystallised, with ongoing applications and potential further amendments to pleadings, and that the interests of justice dictated against granting the injunction. The court's decision was based on the need to weigh the interference with the process of another court against the interests of justice in this specific context.
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Background
Background to the litigation
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Ratio Decidendi
Legal Principle Established
The applicants submit that it cannot be in the interests of justice in these circumstances to subordinate the CCV proceeding to the proceedings in this Court. CONSIDERATIONLegal principles An application of a similar kind to that now before the Court was considered in Beattie v Digga Excavations and Demolition Pty Ltd [2023] FedCFamC2G 337. At [22]-[24] Judge Mansini helpfully summarised the principles applying to the grant of an anti-suit injunction, which I reproduce below and adopt: 22. A statutory anti-suit injunction lies to protect the administration of justice and the Court’s own processes, the Court gaining exclusive right to control the proceeding once a claim is brought before it: CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345 and Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460. Such remedy in the equitable jurisdiction also lies to restrain the vexatious, oppressive, unconscionable or unconscientious exercise of legal rights and conduct which tends to interfere with due process of the court: National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209.23. It is established on the authorities that the interests of justice are the paramount consideration: Pegasus Leasing Limited v Cadoroll Pty Limited (1996) 59 FCR 152 at [156]:Foreign proceedings may be restrained, not only when they are vexatious, in the sense of frivolous or useless, but also where they are oppressive. However, vexation or oppression should not be regarded as the only grounds on which the jurisdiction is to be exercised. See Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 894…The fundamental requirement is that an injunction will be granted only where the interests of justice so require.24. In the context of an application for an anti-suit injunction, the focus is on the “foreign” proceedings, and whether those proceedings are vexatious or oppressive from the forum perspective. More precisely, the focus is on the conduct of the party pursuing the foreign proceedings, and the impact on the other litigant: Allstate Life Insurance Co v ANZ Banking Group Ltd (No 2) (1996) 64 FCR 44 at [52].Disposition I am not persuaded that it is in the interests of justice to make orders that would restrain Mr Kim from proceeding further in the CCV proceeding. As I observed during the hearing of the application in a proceeding, the commencement of the trial of the CCV proceeding is imminent. It is the case that aside from the preparation of a court book, there are no extant procedural steps to be taken. I am instructed that counsel for Mr Kim has commenced their preparations for trial. The FCFCOA proceeding, on the other hand, is at a more embryonic stage, reflecting various applications made and resisted since the matter commenced and amendments to pleadings. Indeed, pleadings have not yet closed, and further amendments are foreshadowed. The case in this forum has not yet crystallised. In Pegasus Leasing Limited v Cadoroll Pty Limited (1996) 59 FCR 152, the Full Federal Court (Lee and Tamberlin JJ) observed at 157 that:It must be borne in mind that although an anti-suit injunction, such as the present, only acts in personam against the parties it is, in substance and effect, an interference with the process of another court and this must be weighed in the balance. See Laker at 95 and Metall and Rohstoff AG v ACLI Metals (London) Ltd [1984] 1 Lloyds Rep 598 at 613.