Lederer & Hunt

FAMILY COURT OF AUSTRALIA

LEDERER & HUNT

[2007] FamCA 55

APPEAL – APPLICATION FOR LEAVE TO APPEAL – ANTI-SUIT INJUNCTION – Applicants granted leave to appeal – Where trial Judge issued interim anti-suit injunction directed to proceedings in Supreme Court of New South Wales against husband and nine third party companies – Whether trial Judge erred in not approaching the matter in the manner dictated by, or applying applicable principles as outlined in, CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345 – Consideration of principles relevant to grant of anti-suit injunction as discussed by High Court in CSR - Conceded by applicants same principles relevant to domestic court restraining proceedings in a foreign court were applicable between two domestic courts - Anti-suit injunction granted pursuant to implied power of a court to protect own processes and proceedings distinguished from anti-suit injunction granted in exercise of equitable jurisdiction to restrain proceedings which are, according to principles of equity, vexatious or oppressive - Trial Judge in granting anti-suit injunction did so on the two bases identified in CSR - Asserted errors on part of trial Judge would only be relevant to exercise of equitable jurisdiction as explained in CSR – Trial Judge’s order also based on exercise of implied power – No error involved in trial Judge’s exercise of implied jurisdiction to grant anti-suit injunction.

Whether trial Judge failed to consider important issue of comity between Family Court and Supreme Court – That trial Judge did not expressly refer to comity not fatal to exercise of discretion - Whether trial Judge failed to take into account that respondent had not applied for stay of proceedings in Supreme Court – No general rule an anti-suit injunction will not be granted unless applicant for injunction has sought a stay.

Whether Family Court a clearly inappropriate forum – Appellants conceded that so far as principal third party company was concerned the Family Court was an appropriate forum - Position of other third party companies considered – Injunction granted by trial Judge affected these companies – Trial Judge found these companies controlled and owned in various forms by same parties as principal third party company - Given this finding, could not be said Family Court a clearly inappropriate forum.

Trial Judge’s discretion did not miscarry – Appeal dismissed.

COSTS – COSTS OF APPEAL – Both counsel agreed costs should follow event – Appellants to pay respondent’s costs.

Family Law Act 1975 (Cth)
Corporations Act 2001 (Cth)

Baba and Jarvinen (1980) FLC 90-882
Beecham (Aust) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1
CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Dobson and Van Londen (2005) FLC 93-225

Fayad [2005] FamCA 1320

Savage and Hodgson (1982) FLC 91-281

Schaeffer [2005] FamCA 934
Voth v Manildra Flour Mills (1990) 171 CLR 538

APPLICANT/ APPELLANTS:	Paul Lederer Primo Meats Pty Limited
RESPONDENT:	Marie Therese Hunt
FILE NUMBER:	SYF 5099 of 2003
APPEAL NUMBER:	EA 104 of 2005
DATE DELIVERED:	9 February 2007

PLACE DELIVERED:	Canberra
JUDGMENT OF:	Bryant CJ, Finn and Boland JJ
HEARING DATE:	10 February 2006
LOWER COURT JURISDICTION:	Family Court of Australia
LOWER COURT JUDGMENT DATE:	8 August 2005
COUNSEL FOR THE APPLICANT/APPELLANTS: SOLICITOR FOR THE APPLICANT/ APPELLANTS:	Mr Hammerschlag SC with Mr Livingstone Landerer & Company
COUNSEL FOR THE RESPONDENT:	Mr Higgs SC with Mr Beaumont
SOLICITOR FOR THE RESPONDENT:	Briggs & Associates

Orders

That the appellants be granted leave to appeal Order 1 (in its amended form) of the orders made by the Honourable Justice O’Ryan on 8 August 2005.
That the appeal be dismissed.
That the appellants pay the respondent’s costs of and incidental to the appeal with such costs to be assessed under the Family Law Rules 2004 in default of agreement.

FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER: EA 104 of 2005

FILE NUMBER: SYF5099 of 2003

Paul Lederer
Primo Meats Pty Limited

Applicant/ Appellants

And

Marie Therese Hunt

Respondent

REASONS FOR JUDGMENT

This is an application for leave to appeal and, if leave be granted, an appeal by Paul Lederer and Primo Meats Pty Limited against Order 1 of orders made by O’Ryan J on 8 August 2005. That order in its final consolidated form following amendments made on 9 September 2005 and 11 November 2005, read:
1.Each of the husband, Paul Lederer and Primo Meats Pty Limited… be restrained pending the final determination of all proceedings in Suit No. SYF5099 of 2003 in the Family Court of Australia at Sydney (including the determination of any appeal) from taking any step in Proceedings No. 3630 of 2005 in the Equity Division of the Supreme Court of New South Wales other than:
1.1 adjourning or discontinuing; and/ or
1.2seeking an order for the transfer of the Corporations Act proceedings to the Family Court of Australia at Sydney under S.1337H of the Corporations Act 2001 (Cwlth) and that the wife be and [is] hereby restrained from taking any steps to oppose such transfer application.
The reference in the order to “the husband” is to John William Hunt who is the former husband of Marie Therese Hunt (“the wife”) on whose application the order was made. It should be noted that the husband does not seek to appeal the order. The appellants are only Paul Lederer and Primo Meats Pty Limited.
The order sought in the notice of appeal in the event that leave to appeal is granted and the appeal is allowed, is that “order 1 made 8 August 2005 be dismissed”, or that in the alternative “order 1 be set aside in so far as that order affects the appellants”.

leave to appeal

In support of the application for leave to appeal the order in question, which is in effect an anti-suit injunction, Counsel for the applicant/ appellants relied on the dictum of the High Court in CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 397) that an interlocutory anti-suit injunction “is effectively a final determination as to where the matter or some particular aspect of it is to be litigated”.
Given that as a matter of practical effect, the order in question is final, which was a point conceded in the written summary of argument of the respondent wife (paragraph 22, footnote 27), we consider that the applicant/ appellants should be granted leave to appeal the order.

relevant background

The husband and the wife separated in late 1998 after some 18 years of marriage. On 24 October 2003 the wife commenced proceedings against the husband in the Family Court of Australia for orders for property settlement under s 79 of the Family Law Act 1975 (Cth) (“the Act”).
At the time when the wife commenced the s 79 proceedings, the husband was, and had been since 1984, a director of, and shareholder in, a company involved in the meat trade, known as Primo Meats Pty Limited (“Primo Meats”). The other two directors and shareholders in that company were Andrew Lederer and his nephew, Paul Lederer. There were 1,500,003 issued ordinary shares in the company, with each of the three directors holding 500,001 of those shares. Andrew Lederer also held one “A” class management share which gave him control of ordinary and special resolutions of the company. The articles of association of the company provided pre-emption rights in favour of the other shareholders in the event of one shareholder wishing to dispose of his shares.
On 20 April 2004 Andrew Lederer died. By his will he bequeathed his ordinary shares and the management share to Paul Lederer. Shortly after Andrew Lederer’s death and before probate of his will was granted, the shares were registered (allegedly by administrative error) in the names of the executors of his estate (being Paul Lederer, Richard Slazenger and Douglas James Hamilton).
Following the grant of probate in September 2004 both the ordinary shares and the management share were registered in the name of Paul Lederer.
On 20 December 2004 the wife filed an amended application for property settlement in which (as recorded by O’Ryan J in paragraphs 35 and 36 of his reasons for judgment of 8 August 2005) she sought various orders including payment of $50 million and the transfer to her of a number of real properties.
In the alternative to the payment of $50 million the wife sought, pursuant to s 106B of the Act, that the transfer of the ordinary shares and management share in Primo Meats from the estate of Andrew Lederer to Paul Lederer be set aside; that the estate comply with the articles of Primo Meats; and that upon an offer of 50 per cent of the shareholding held by the estate in Primo Meats being made by the executors of the estate to the husband in compliance with the articles, the husband accept the offer and pay all moneys necessary to the estate to meet the husband's obligations in accordance with the articles.
It appears that in a separate application also filed on 20 December 2004, the wife sought orders that Paul Lederer, Primo Meats and the executors of the estate of Andrew Lederer be joined as parties to the property settlement proceedings, and that on 15 February 2005 O’Ryan J made such order or orders by consent, although subsequently on 26 May 2005 a response objecting to jurisdiction was filed on behalf of those joined parties.
In so amending her application for property settlement and in seeking to join Paul Lederer, the company and the executors of the estate, the wife contended (according to O’Ryan J in paragraphs 37 and 38 of his reasons for judgment of 8 August 2005) that as a consequence of the pre‑emptive rights contained in the articles of the company, Paul Lederer was not entitled to take a transfer of the ordinary shares registered in the name of Andrew Lederer as a consequence of the terms of the will without those shares first being offered on a pro rata basis to all ordinary shareholders, including the husband, at a value to be determined in accordance with the articles. The wife therefore sought orders compelling compliance with the articles, such that the husband and Paul Lederer would each hold 50 per cent of the issued ordinary shares.
In relation to the one management share held by the late Andrew Lederer, it was the wife’s contention (again according to O’Ryan J’s reasons for judgment) that as a consequence of the executors having become the registered holders of that share, the articles operate to irrevocably convert the management share into a preference share.
On 24 June 2005 Primo Meats and eight other companies, (being A & A Lederer Pty Ltd; Cordine Pty Ltd; Dirluck Pty Ltd; Imposete Pty Ltd; Kahula Pty Ltd; P & M Quality Smallgoods Pty Ltd; Yigg Pty Ltd; and 7 William Street Pty Ltd) filed originating process in the Equity Division of the Supreme Court of New South Wales, in which they made application under s 175 of the Corporations Act 2001 (Cth) for correction of the register of members of each of the nine plaintiff companies in relation to the shares previously held in each company by the late Andrew Lederer.
Importantly for present purposes, O’Ryan J found in paragraph 49 of his judgment of 8 August 2005, that each of the nine plaintiff companies “were, prior to the death of Andrew Lederer, controlled and owned in various forms by Andrew Lederer, Paul Lederer and the husband”.
It is also important for present purposes to note that in paragraph 48 of his judgment, O’Ryan J recorded that on 23 and 24 June 2005 the husband and wife had attended an unsuccessful mediation which Paul Lederer had also attended and that his Honour further found in paragraph 52 of his judgment that:
By letter dated 24 June 2005 the solicitors for the plaintiffs wrote to the solicitors for the wife and advised that the mediation failed and that this afternoon the various corporations instituted proceedings under the Corporations Act. Further, that it was intended to effect service on the wife of the originating process. A request was made for advice as to service on the wife of the originating process.
The order in relation to the register of members of Primo Meats as it was sought in an amended originating process filed on behalf of the nine plaintiff companies on 20 July 2005, was in the following terms:
7.an order that the register of members of Primo Meats Pty Ltd ACN 002 727 166 be corrected by:
a.the deletion of the following entries as and from 20 April 2004 to 22 October 2004 inclusive:
i.Douglas James Hamilton, Paul Lederer and Richard Slazenger as Trustee for Estate Late Andrew Lederer as the holder of one (1) Management Share;
ii.Douglas James Hamilton, Paul Lederer and Richard Slazenger as Trustee for Estate Late Andrew Lederer as the holder of 500,001 Ordinary Shares.
b.the deletion of the following entries as and from 22 October 2004 to November 2004 inclusive:
i. Paul Lederer as the holder of one (1) Management Share;
ii. Paul Lederer as the holder of 500,001 Ordinary Shares.
c.the replacement of the deleted entries in Orders 7.a and 7.b with the following entries as and from 20 April 2004 to 10 November 2004 inclusive:
i.Andrew Lederer (deceased) as the holder of one (1) Management Share, then disposed of to Paul Lederer on 10 November 2004;
ii.Andrew Lederer (deceased) as the holder of 500,001 Ordinary Shares, then disposed of to Paul Lederer on 10 November 2004.
On 4 July 2005 the wife filed a further amended application in her property settlement proceedings in which (again according to the reasons for judgment of O’Ryan J of 8 August 2005) she sought that pursuant to s 106B of the Act, the instrument comprising a resolution of Primo Meats relating to the transfer of the shares of the late Andrew Lederer, signed by Paul Lederer on 22 October 2004, and the husband on 25 October 2004, be set aside.
The wife also sought a declaration that the management share held by the late Andrew Lederer has been converted to and remains a preference share, and a declaration that the directors of Primo Meats acted ultra vires the constitution of the company in approving the transfer of ordinary shares from the estate of the late Andrew Lederer to Paul Lederer, and that the resolution was invalid.
On 15 July 2005 the wife filed a further application in which she sought an order that each of the husband, Paul Lederer, and Primo Meats “be restrained, pending the final determination of all proceedings in suit No.SYF5099 of 2003 in the Family Court of Australia at Sydney (including the determination of any appeal) from taking any step in proceedings No.3630 of 2005 in the Equity Division of the Supreme Court of New South Wales, other than adjourning or discontinuing those proceedings, without the consent in writing of the wife being first obtained”.
In addition to naming the husband as the first respondent, Paul Lederer as the second respondent, and Primo Meats as the third respondent, this application by the wife also named as the fourth respondent Paul Lederer, Richard Slazenger and Douglas James Hamilton as executors of the estate of the late Andrew Lederer.
This latest application by the wife (filed 15 July 2005) was heard by O’Ryan J on 2 August 2005. On 8 August 2005 his Honour delivered reasons for judgment and made orders which included as Order 1 an order in the exact terms sought in the wife’s application filed on 15 July 2005.
However, as we mentioned at the outset, the terms of the order were subsequently amended on 9 September 2005 and 11 November 2005. It will be useful here to repeat the terms of the consolidated amended order:
1.Each of the husband, Paul Lederer and Primo Meats Pty Limited… be restrained pending the final determination of all proceedings in Suit No. SYF5099 of 2003 in the Family Court of Australia at Sydney (including the determination of any appeal) from taking any step in Proceedings No. 3630 of 2005 in the Equity Division of the Supreme Court of New South Wales other than:
1.1 adjourning or discontinuing; and/ or
1.2seeking an order for the transfer of the Corporations Act proceedings to the Family Court of Australia at Sydney under S.1337H of the Corporations Act 2001 (Cwlth) and that the wife be and [is] hereby restrained from taking any steps to oppose such transfer application.
On 13 September 2005 Paul Lederer and Primo Meats filed both an application for leave to appeal Order 1 of the orders made on 8 August 2005 and a notice of appeal against that order; this application and/ or appeal are the subject of this judgment.

reasons for judgment of o’ryan j of 8 august 2005

In the introductory section of his judgment his Honour explained the basis of the application before him in the following terms:
17The wife seeks an anti-suit injunction in respect of the Supreme Court proceedings. She contends that the existence of the entitlement of Paul Lederer, to be registered as the owner of the shares of the late Andrew Lederer, contrary to the obligation to follow the rights of pre-emption in the articles, is the very controversy that is at the heart of the proceedings before the Family Court. It is contended that complete relief is available to the plaintiffs in the Family Court in respect of all relief sought by them in the Supreme Court proceedings as a consequence of the Family Court being vested with jurisdiction under the Corporations Act in civil proceedings. Both the Family Law proceedings and the Supreme Court proceedings will involve questions of interpretation of the articles of Primo Meats Pty Ltd and determination of the consequence of the registration of the estate of Andrew Lederer as the holder of the management share.
His Honour then set out in considerable detail the factual and procedural history of the case. He also referred to much of the evidence relied on before him.
Having cited at some length the observations of the High Court majority in CSR Limited v Cigna Insurance Australia Ltd (supra) at 389-394, his Honour set out the principles which he apparently drew from that judgment. We will later set out those principles as stated by his Honour.
His Honour next referred to the following observations of the High Court majority in Henry v Henry (1996) 185 CLR 571 at 590-591 and of Mason J in Moore v Inglis (1976) 9 ALR 509 at 513:
75In Henry v Henry (1996) 185 CLR 571, Dawson, Gordon [sic], McHugh and Gummow JJ. at 590-591 in relation to multiple proceedings with respect to the same subject matter in different courts in Australia, approved the remarks of Dixon J. in Union Steamship Company of New Zealand Ltd v “The Caradale” (1937) 56 CLR 277 at 281, that:
"..[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration."
76In Henry the majority went on to say at 591:
"It 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. (Citing Moore v Inglis (1976) 9 ALR 509)
77In Moore v Inglis, at 513, Mason J. approved the reference by Bowen LJ. in McHenry v Lewis (1882) 22 Chancery Division 397 at 408 to:
"The general principle that the court can and will interfere whenever there is vexation and oppression to prevent the administration being perverted for an unjust end."
78Mason J then referred to the passage by Sir Gorel Barnes in Logan v The Bank of Scotland (No.2) (1906) 1 King's Bench 141 at 150 that:
"For instances…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."
and held that the principle applied even where the second set of proceedings involves some different parties, and sought different relief because both proceedings were on the same subject matter.

Against the background of the authorities to which he had referred and the principles which he had apparently drawn from them, his Honour expressed his conclusions in relation to the present case in the following terms:
80The second to fourth respondents commenced proceedings in the Supreme Court seeking rectification of the register of members of Primo Meats Pty Ltd in relation to the shares held in that company by the late Andrew Lederer. Those proceedings were commenced when the second to fourth respondents were already parties to proceedings in the Family Court of Australia, in which the wife is seeking relief in relation to the same shares.
81In the Family Court proceedings the wife is contending that at least half of the ordinary shares of the late Andrew Lederer should be acquired by the husband, and that only a preference share, and not a management share, should be transferred by the estate of the late Andrew Lederer to Paul Lederer.
82I accept the submissions on behalf of the wife that the Supreme Court proceedings were commenced in response to the proceedings in the Family Court of Australia. The Supreme Court proceedings were commenced at least six months after the proceedings were commenced in the Family Court, and when attempts to mediate a settlement of those proceedings failed.
83The second to fourth respondents invited the wife to participate in the Supreme Court proceedings, and readily acknowledged that she was a contradictor in those proceedings.
84The second to fourth respondents are seeking relief pursuant to s 175 of the Corporations Act. The second to fourth respondents could have and, in fact, still can seek such relief in the Family Court of Australia. In my view, they can seek complete relief in the Family Court.
85The wife contends that the refusal of the husband to insist on his rights of pre emption, point to collusion between he and Paul Lederer to defeat the claims of the wife in the Family Court proceedings to property to which the husband would otherwise be entitled.
86It is contended that quite apart from available statutory relief under the Family Law Act, the conduct of the husband and Paul Lederer may be liable to be set aside in equity as constituting equitable fraud.
87The wife also does not accept the contention of the husband and the second to fourth respondents that the records of ASIC are in error.
88I therefore accept that there is a common substratum of fact and a single controversy. In my view, the proceedings in the Supreme Court relate to the subject matter already in the course of litigation in the Family Court.
89It is submitted on behalf of the wife, which I accept, that if the wife did not or could not fully agitate the issues in the Supreme Court proceedings, then the respondents would seek to raise one or more of a res judicata (Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508) based on a decision in that court that Paul Lederer was entitled to be registered as the holder of the shares of the late Andrew Lederer, an issue estoppel (Blair v Curran (1939) 62 CLR 464 at 531-533) or an Anshun estoppel (Port of Melbourne Authority v Anshun (1981) 47 CLR 589 at 602-903 [sic]).
90I reject the submissions made on behalf of the second to fourth respondents in relation to this issue. The claim for relief in the Supreme Court may pre empt the very issues that the wife seeks to agitate in the Family Court; namely that Paul Lederer is not entitled to be registered as the holder of the ordinary shares of the late Andrew Lederer without the pre emptive requirements of the articles first being obtained, and that the husband is obliged to take up those rights.
91In the circumstances of this case, I am satisfied that an injunction is appropriate to protect the processes of the Family Court and also prevent vexation and oppression to the wife.
92I am satisfied that there is a serious question to be tried. I am also satisfied that the balance of convenience favours granting the injunction.
93There is a serious question as to the shares in Primo Meats Pty Ltd held by the late Andrew Lederer and whether the husband should exercise the pre emptive rights under the article and acquire one half or whether they should be transferred to Paul Lederer, in accordance with the will of the late Andrew Lederer.
94The wife could suffer irreparable loss unless the injunction was granted, if the Supreme Court proceedings continued, and if the wife could not agitate the matters that she relies upon in the Family Court proceedings.
95In my opinion, there is no prejudice to the respondents, amongst other things, because they can obtain complete relief in the Family Court of Australia. I note that the wife is prepared to give an undertaking as to damages.

Scope of the Appeal

Although the notice of appeal contained some ten grounds of appeal, Counsel for the appellant informed us at the commencement of the hearing of the appeal that the only matters which he wished to argue were the matters contained in a brief, revised written outline of argument which he provided to us.
As the scope of the appellant’s challenge to the order in question is thus defined (as we understand it) by Counsel’s revised outline rather than by the grounds of appeal, we will set out the submissions contained in that document which are directed to the appeal (as opposed to the application for leave to appeal):

· The principles governing the grant of anti suit injunctions which are to be derived from CSR (supra) either directly or indirectly are:

a)       the touchstone of the power to grant anti suit injunctions is protection of the court’s own processes and proceedings (CSR at p392.3);
b)      co existent proceedings are to be viewed as vexations or oppressive only if there is nothing which can be gained from them over and above what may be gained from local proceedings (CSR at p393.9);
c)       the equitable power to grant injunctions in restraint of litigation exists to serve equity and good conscience (CSR at p394.10);
d)      considerations of comity with the court whose processes are interfered with is a relevant consideration (CSR 395.9). It follows that the power to grant anti suit injunctions falls to be exercised sparingly. This is a fortiori in the case of two Australian domestic courts;
e)       a failure to seek a stay in the other court may be a relevant circumstance (CSR 396.3 and 398.4).

· The ultimate question which was required to be considered by O’Ryan J was whether the equity proceedings were vexatious or oppressive in the sense used in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; CSR at 401.
· This involves a two step test:

a) the court must determine whether it is clearly an inappropriate forum for determination of the matter in issue. If it is, then the injunction fails and the co-relative proceedings proceed;
b) if the court is not clearly an inappropriate forum, then the court examines whether having regard to the above principles, the anti suit injunction should be granted (CSR at 397.9 to 398.1).

· His Honour fell into error by not approaching the matter as dictated by the precepts in CSR and then by either not applying or incorrectly applying the applicable principles.
· The following are the errors of principle into which his Honour fell:

a)       his Honour did not consider the first step in CSR with respect to the First to Sixth, Eighth and Ninth Plaintiffs (that is all the plaintiff companies other than Primo Meats Pty Ltd) in the Supreme Court proceedings who seek rectification of their statutory registers. In respect of them, this court is clearly an inappropriate forum. The relief ordered inhibits parties, namely the First to Sixth, Eighth and Ninth Plaintiffs in Supreme Court proceedings from obtaining relief in the appropriate forum which they could not independently sought in this court. The matter can be tested simply by positing a separate application by each. Such an application could not have been brought here;
b)      in respect of those parties, if his Honour had considered the forum appropriateness issues, his Honour would then have been required to consider whether permitting those parties to proceed in Equity produced “serious and unjustified trouble and harassment” or was “seriously and unfairly burdensome, prejudicial or damaging”. That test could not have been satisfied with respect to those parties;
c)       moreover, there is no prejudice to the wife, and nor was any found by his Honour with respect to those parties. The question of the wife losing any rights does not arise;
d)      as to Paul Lederer and Primo Meats, his Honour incorrectly accepted (apparently as being a critical consideration) that there was a common substratum of facts and “a single controversy” (para 88). The applicable test, in relation to foreign proceedings (which applies here) is that they are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings (CSR at 393.9). What is to be gained by them is rectification of their public registers upon which third parties may rely;
e)       it is not a relevant consideration that there is no prejudice to the Respondents as found by his Honour at paragraph 95 (AB33). In any event there is prejudice by reason of being able to participate in wide ranging proceedings involving numerous issues not affecting them;
f)       the wife is not a party to the Supreme Court proceedings and there would not by rectification of the registers be any res judicata or Anshun estoppel against her. Permitting rectification of the registers could not denude the wife of any right or interest pre-existing for so long as the relevant shares were held by Paul Lederer. The appropriate relief, if any, would be to restrain the disposal of the shares of the late Andrew Lederer not inhibit rectification of the statutory registers;
g)       a principal question in the proceedings will be the construction and operation of the articles of Primo Meats Pty Ltd. That is an issue which in any event might be separately and conveniently dealt with in Equity, for example by way of a separate determination of the issue under Part 31 Rule 2 of the Supreme Court Rules (or its successor). His Honour did not consider questions of comity and the minimum relief necessary to protect the wife;
h)       his Honour also did not consider that the wife did not apply for any stay in the Supreme Court proceedings [Footnotes omitted].

relevant principles

There was no issue before O’Ryan J or before us that in the appropriate circumstances the Family Court has the power to make the anti-suit injunction which the wife sought in this case (that is, an anti-suit injunction directed to proceedings in another Australian superior Court), nor that the source of such power was, as his Honour explained (in paragraph 34 of his reasons), either s 34 of the Act or the inherent (or, we would add, implied) jurisdiction of the Family Court “to make orders which are necessary and appropriate to avoid injustice”. (See in relation to anti-suit injunctions directed to proceedings in a foreign court Dobson and Van Londen (2005) FLC 93-225 (Paragraph 42), which was the subject of an unsuccessful application for special leave to the High Court specifically in relation to an anti-suit injunction made by this Court in relation to proceedings in the Netherlands).
As to the principles which govern the grant by one Australian court of an anti-suit injunction in relation to proceedings pending in another Australian court, it was the submission of the appellants that those principles are the same, or substantially the same, as the principles which govern the grant of an anti-suit injunction by an Australian court directed to proceedings in a foreign court. We understood Counsel for the respondent to agree with this submission, and we also agree with it (at least as presently advised).
However, Counsel for the appellants emphasised in his oral submissions that, having regard to the observations of members of the New South Wales Court of Appeal in Beecham (Aust) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1 (at 3 and 6), it would be a very unusual step for one Australian court to restrain proceedings in another Australian court, but that if it was to be done, considerations of comity would be important.
Again we agree with this proposition, and in relation to it we draw attention to the decision of Nygh J in Baba and Jarvinen (1980) FLC 90-882 where having referred to an earlier decision of his own and to decisions of the Full Court, his Honour said:
This does not, of course, dispose of the question of whether I should issue an injunction restraining the wife from proceeding with her summons in Equity. In Esmore and Esmore (1979) FLC 90-711… I held that I had jurisdiction to do so, even though I did not doubt then that the jurisdiction in Equity had been validly invoked, if it was necessary to prevent the rights of a party under the Family Law Act from being defeated.
In Smith and Saywell (1980) FLC 90-856, the jurisdiction of this Court to make an order restraining a party from proceeding in another court was sustained. This Court can only take such an extreme step when it is absolutely essential and I would respectfully agree with the statement of the Full Court in Tansell and Tansell (FLC at p.76,633…) that the Family Court ought to avoid making orders which in terms restrain a party from continuing with proceedings validly instituted in another court. However, I read that statement not as implying that it shall never be done, but that it ought to be avoided, if possible.
We note that in Baba and Jarvinen (supra) “[c]onsiderations of justice and judicial comity” ultimately led Nygh J to the conclusion that he should dismiss the application for an order restraining proceedings in the New South Wales Equity Division. (See also the decision of the Full Court in Savage and Hodgson (1982) FLC 91-281 and the earlier decisions there cited; and the decisions of O’Ryan J in Fayad [2005] FamCA 1320 and Rose J in Schaeffer [2005] FamCA 934).
As to the substance of the principles which govern the grant of an anti-suit injunction (be it directed to proceedings in a foreign court or in another Australian court), it will have been seen that Counsel for the appellants endeavoured in his revised outline to extract the substance of those principles as they are to be found in the High Court majority decision in CSR (supra). However, we consider with respect that that summary may be somewhat oversimplified at least for purposes of the present case. We say this because on our analysis of the discussion of anti-suit injunctions in the majority decision in CSR, that discussion is concerned with the grant of anti-suit injunctions in two separate situations with the same considerations not necessarily applying to both situations.
In CSR under the heading “Principles governing stay of proceedings on forum non conveniens grounds and the grant of anti-suit injunctions” (at 389-390) the majority explained that:
[t]he question whether a dispute as to legal rights should be litigated in the courts of one country or those of another is one that permits of resolution, if resolution is possible, by one court staying its proceedings in favour of the other or by it granting an anti-suit injunction restraining a person amenable to its jurisdiction from commencing or continuing proceedings in that other country[,]
and:
[a]lthough stay orders and anti-suit injunctions are not governed by the same principles, … in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings…[a]nd … that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed.
Their Honours then went on to explain that the test which in this country governs a stay of local proceedings in favour of proceedings in another country is as stated in Voth v Manildra Flour Mills (supra), being that “a stay is only to be granted if the Australian court is a clearly inappropriate forum” (at 391).
Having observed “… that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice”, their Honours then explained that:
[t]he counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions.
The following examples of the use of anti-suit injunctions for the protection of the integrity of a court’s own processes were then given, but it was made clear that they were only examples, and that such injunctions are available when necessary for the protection of the court’s own proceedings:
Thus, for example, if "an estate is being administered ... or a petition in bankruptcy has been presented ... or winding up proceedings have been commenced ... an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets". Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v The Sentry Corporation, a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.
The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes. [Footnotes omitted; Emphasis added].
Relevantly for present purposes, their Honours then proceeded to explain that apart from the inherent power of a court to issue an anti-suit injunction for the protection of its own processes, a court can also, in the exercise of an equitable jurisdiction, restrain proceedings which involve unconscionable conduct or the unconscientious exercise of a legal right (at 392):
Quite apart from the inherent power of a court to protect its own processes, a court may, in the exercise of the power deriving from the Chancery Court, make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights. If the bringing of legal proceedings involves unconscionable conduct or the unconscientious exercise of a legal right, an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings no matter where they are brought. [Emphasis added].
A number of examples were then discussed (at pages 392 – 4) as categories of cases in which an injunction may be granted in the exercise of the equitable jurisdiction including in relation to proceedings in a foreign court “which are, according to the principles of equity, vexatious or oppressive”. Because of the reliance placed by Counsel for the appellants, and it would seem by O’Ryan J, on certain of the observations made by the High Court in this discussion of the exercise of the equitable jurisdiction to grant an anti-suit injunction, and because also of the distinction drawn in the discussion between an anti-suit injunction granted in the exercise of the inherent power and one granted in the exercise of the equitable jurisdiction, it will be useful for us to set out that discussion in full:
One well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive. Thus, it was said in Carron Iron Company v Maclaren that "[w]here [there is] ... pending a litigation here, in which complete relief may be had, [and] a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings."
In Société Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Company v Bockwold, have continuing significance for the grant of anti-suit injunctions. Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes 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.
More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Company, if "complete relief" is available in the local proceedings.
Given that, in England, the power to grant injunctions has for many years been conferred by statute, it is not surprising that the cases decided in that country in recent years do not make a clear distinction between injunctions granted in exercise of the inherent power and those granted in the exercise of equitable jurisdiction. However, the older cases referred to in Société Aerospatiale make it abundantly clear that the power to stay foreign proceedings which are vexatious or oppressive, in the sense already described, is a power which derives from equity.
Because the power to grant injunctions in respect of foreign proceedings which are vexatious or oppressive, in the sense described, derives from equity, it is not to be confined to the examples found in the decided cases. Rather, it is a power the limits of which are determined by the dictates of equity and good conscience. Thus, for example, it may be that the bringing of proceedings with respect to one claim is properly to be seen, in the circumstances of the case, as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct such that it would be unconscionable for that other claim to be pursued or for proceedings to be commenced in another jurisdiction. In cases of that kind an injunction may issue in restraint of the subsequent proceedings.
It may be that some of the older cases concerned with vexation and oppression, in the sense in which those terms are understood in equity, are properly to be understood as grounded in principles of estoppel. Whether or not that is so, the equitable power to grant injunctions in restraint of litigation exists to serve equity and good conscience. It is not a power which involves a determination that proceedings instituted in a foreign court are vexatious or oppressive in the sense that they are an abuse of that court's processes or, even, in the sense that they should be stayed by the foreign court on forum non conveniens grounds. [Footnotes omitted; Emphasis added].

Then, having made some reference to the facts in CSR, their Honours returned to the general discussion of the power to grant anti-suit injunctions and, in particular, the need for caution in the exercise of that power because of considerations of comity. We have already made some reference to that matter and will return to it in due course. At this point it is only necessary to note that in the course of discussion of the issue of comity, the High Court majority again made clear that there are two separate jurisdictions in which anti-suit injunctions may be granted and in relation to which different principles may apply when they said (at 396):
…the cases also emphasis that the power to grant injunctions in restraint of foreign proceedings should be exercises with caution. And that is so whether the injunction is sought in the exercise of the inherent or equitable jurisdiction. [Emphasis added].
Then under the headings “Relationship between interlocutory anti-suit injunctions and stay applications” (at 397) and “Course to be adopted with respect to the appeals” (at 398), their Honours made a number of observations concerning the approach to be adopted where an anti-suit injunction is sought, including the need for an Australian court to satisfy itself that it is not clearly an inappropriate forum. However, in our view, a careful reading of the passage in question shows that the remarks contained in it were limited to the exercise of the equitable jurisdiction to grant an anti-suit injunction, and indeed the question of the inappropriateness of the Australian forum is said not to arise where the anti-suit injunction is sought to protect the proceedings or processes of the court:
Relationship between interlocutory anti-suit injunctions and stay applications
It will generally be the case that, where an anti-suit injunction is sought in the exercise of equitable jurisdiction, the matters relied upon for the grant of the injunction will or can be raised as issues for determination in the foreign proceedings in respect of which the injunction is sought. Because that is so, an interlocutory anti-suit injunction is vastly different from other forms of interlocutory relief.
…Thus, an interlocutory anti-suit injunction is effectively a final determination as to where the matter or some particular aspect of it is to be litigated.
In a case in which an anti-suit injunction is sought on equitable grounds, the central question is whether the court to which application is made or some other court should hear and determine the matter in issue or, at least, that aspect of it involved in the application for injunction. And where the courts concerned are, respectively, an Australian court and a court of another country, there is involved in that question the further question whether the Australian court is an appropriate forum, in the Voth sense of it not being clearly inappropriate, for the determination of that matter. The fact that there is that further question, the preclusive nature of an interlocutory anti-suit injunction and the importance of comity combine to require an Australian court to consider whether it is appropriate, in the sense that it is not clearly inappropriate, for it to determine the matter in issue before granting an anti-suit injunction.
If the Australian court decides that it is clearly an inappropriate forum, that will be the end of its involvement and the occasion for considering whether to grant an anti-suit injunction or other relief will not arise. If the Australian court reaches the opposite conclusion, namely, that it is not a clearly inappropriate forum, then it must go on to determine whether to require the applicant to seek a stay or dismissal of the foreign proceedings or to grant an anti-suit injunction. As we have indicated, this sequence was not followed by the Supreme Court in the present litigation.
It is theoretically possible that there will be cases in which the matter urged in support of the grant of an anti-suit injunction in the exercise of equitable jurisdiction cannot be raised in the foreign proceedings in respect of which the injunction is sought. Should a case of that kind occur, it would be our view that comity requires that, even in a case of that kind, an Australian court consider whether it is an appropriate forum for the resolution of the matter urged in support of the injunction before making interlocutory orders.
As already indicated, the considerations to which reference has been made, namely, comity and the preclusive effect of an interlocutory anti-suit injunction, require that an injunction not be granted by an Australian court in the exercise of equitable jurisdiction if it is a clearly inappropriate forum. If it is not a clearly inappropriate forum, it may be expedient to require the applicant to seek a stay or dismissal of the foreign proceedings. However, if that step is not considered expedient or desirable or if it is taken without success, the court must proceed in accordance with the practice which ordinarily applies with respect to interlocutory relief. In other words, it must then determine whether there is a serious issue to be tried and, if so, whether the balance of convenience favours the grant of an interlocutory injunction.
In cases where anti-suit injunctions are sought to protect the proceedings or processes of a court, no question arises whether that court is an appropriate forum for the resolution of that issue: it is the only court with any interest in the matter. Subject to that consideration, the appellants are correct in their contention that, before granting an interlocutory anti-suit injunction, an Australian court should consider whether it is an appropriate forum, in the Voth sense, for the resolution of the matter in issue or, if there be a difference, the matter advanced in support of the injunction.
Course to be adopted with respect to the Appeals
A reading of the transcript of argument in the Court of Appeal suggests that that Court may not have appreciated the final or preclusive nature of an interlocutory anti-suit injunction. Whether or not that is so, the importance of the issues involved and the fact that, as Rolfe J was exercising equitable jurisdiction, he should have considered whether New South Wales was a clearly inappropriate forum before granting anti-suit injunctions dictate the conclusion that the Court of Appeal should have granted leave to appeal with respect to the decision and orders granting the injunctions. [Emphasis added]

the application of principles to the present case

Although in argument before us Counsel for the appellants addressed first the specific issue of the effect of O’Ryan J’s order on the eight companies which were in addition to Primo Meats as plaintiffs in the Supreme Court, we propose first to consider what might be termed the more general complaints in relation to the making of his Honour’s order.
We begin this consideration by saying that when his Honour decided to grant the anti-suit injunction directed to the Supreme Court proceedings, it appears clear that he regarded himself as doing so both pursuant to the inherent power to protect the Court’s own proceedings or processes and also pursuant to the equitable jurisdiction to restrain unconscionable conduct or the unconscientious exercise of legal rights (as those two jurisdictions were identified in the majority judgment in CSR).
That this is so appears clear not only from paragraph 91 of his Honour’s reasons, where he expressed himself satisfied that in the circumstances of this case “an injunction is appropriate to protect the processes of the Family Court and also prevent vexation and oppression to the wife”, but also from the following earlier paragraphs of his reasons where, having cited certain passages from CSR (at 389 – 394), he said:
72The exercise of the power to grant an anti suit injunction is not restricted to defined or closed categories. It is to be exercised when the administration of justice requires, or where necessary for the protection of the court's own proceedings or process. The power may also be exercised to avoid an injustice. The approach to be taken, however, in considering whether to grant an application for an anti suit injunction is not the same as that taken to an application for a stay on the basis that the local jurisdiction is an inappropriate forum.
73One category of case in which it may be appropriate that the power be exercised, is where the proceedings in another court are according to principles of equity, vexatious or oppressive. This is what senior counsel for the wife described as a basal principle. However, it does not mean vexatious or oppressive in the sense that the proceedings in the other court are an abuse of the processes of that court, or in the sense that they should be stayed by the other court on forum non convenience grounds.
74In relation to this category of case, the circumstances which give rise to the principles of equity include where there is pending litigation in the Local Court in which complete relief can be obtained and a party to the proceedings commences or seeks to continue proceedings in another jurisdiction.
An alleged error on the part of his Honour which received considerable emphasis in the submissions of Counsel for the appellants was that his Honour had failed to consider the important issue of comity between this Court and the Supreme Court of New South Wales, and thus failed to have taken into account in that context the fact that the wife had not applied for a stay of the proceedings in the Supreme Court. We understand the submissions in this regard to rely first on the following passage in the judgment of the High Court majority judgment in CSR where the issue of comity is discussed (at 395-6):
The cases concerned with injunctions in restraint of proceedings in foreign courts recognise that, although an injunction of that kind operates in personam, it nevertheless interferes with the processes of the foreign court and may well be perceived as a breach of comity by that court. Comity, relevantly, was explained by the Supreme Court of the United States in Hilton v Guyot [159 US 113 at 163-164 (1895)] in the following terms:
"'Comity', in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws."
For this reason, the cases also emphasise that the power to grant injunctions in restraint of foreign proceedings should be exercised with caution. And that is so whether the injunction is sought in the exercise of the inherent or equitable jurisdiction.
The appellants argue that, in the case of interlocutory anti-suit injunctions, caution is not enough. Instead, they contend that, as a general rule, an interlocutory anti-suit injunction should not be granted unless the applicant has moved for a stay or dismissal of the foreign proceedings. …
The different circumstances in which interlocutory injunctions may be granted in restraint of proceedings in a foreign court are such that they do not permit of a general rule of the kind for which the appellants contend. The proposed rule serves no purpose in cases where an injunction is sought to protect the integrity of the proceedings or the processes of the court concerned. Nor does it serve any purpose where foreign proceedings clearly constitute conduct entitling the applicant to equitable relief; for example, where the proceedings are a clear breach of contract. [Footnotes omitted; Emphasis added].
It will thus be seen that not only is there no general rule that an anti-suit injunction will not be granted unless the applicant for the injunction has sought a stay in the “foreign jurisdiction”, but more significantly for present purposes, that the High Court majority considered that such a rule would serve no purpose in cases where an injunction is sought to protect the integrity of the proceedings or the processes of the court concerned. As we have already pointed out, one of the bases for the injunction which was granted in this case was to protect this court’s proceedings and processes.
A second passage from the majority judgment in CSR (at 398) which was relied on by the appellants in support of their contention that consideration should have been given to the wife’s failure to seek a stay of the New South Wales proceedings was included in our earlier analysis of that judgment, but for convenience is here repeated (emphasis added):
As already indicated, the considerations to which reference has been made, namely, comity and the preclusive effect of an interlocutory anti-suit injunction, require that an injunction not be granted by an Australian court in the exercise of equitable jurisdiction if it is a clearly inappropriate forum. If it is not a clearly inappropriate forum, it may be expedient to require the applicant to seek a stay or dismissal of the foreign proceedings. However, if that step is not considered expedient or desirable or if it is taken without success, the court must proceed in accordance with the practice which ordinarily applies with respect to interlocutory relief. In other words, it must then determine whether there is a serious issue to be tried and, if so, whether the balance of convenience favours the grant of an interlocutory injunction.
In cases where anti-suit injunctions are sought to protect the proceedings or processes of a court, no question arises whether that court is an appropriate forum for the resolution of that issue: it is the only court with any interest in the matter. …
A number of things can be said regarding the appellants’ reliance on this passage to establish error on the part of his Honour. First it might be said that since one of the purposes for which the anti-suit injunction was sought was to protect the processes of the Family Court, no question of the appropriateness of the forum and hence of the stay could arise.
Secondly, if the matter is considered purely from the standpoint of the equitable jurisdiction which his Honour apparently considered he was also exercising, with the result that he should have considered the appropriateness of the forum, it was effectively conceded before us by Counsel for the appellants that so far as Primo Meats was concerned the Family Court was an appropriate forum.
So far as the other eight plaintiff companies, we do not agree with Counsel for the appellants that the Family Court was an inappropriate forum for reasons which we will later give. Thus, again no question of a requirement on the wife to seek a stay of the Supreme Court proceedings could arise.
It can be observed in passing in connection with the passage from the majority judgment in CSR presently under consideration, that his Honour did consider and satisfy himself in paragraphs 92 to 94 of his reasons (which we have earlier set out) that there was a serious question to be tried in this case (which was also a matter conceded on behalf of the appellants for purposes of the appeal), and that the balance of convenience favoured the grant of the injunction.
It can also be observed in this context that apart from the issue of the eight plaintiff companies (other than Primo Meats) the challenge to his Honour’s injunction essentially was that he had failed to follow the principles or approach required by CSR. However, and leaving to one side for a moment issues surrounding comity, it seems to us that all the asserted errors in approach or principle (if they could be established) would only be relevant to the exercise of the equitable jurisdiction as explained in CSR. As we have already pointed out, his Honour’s order was also based on an exercise of the inherent power to protect the court’s own proceedings and processes, and no error has been shown in the exercise of that discretion insofar as that discretion was explained in CSR.
In other words, and again leaving to one side the issue of comity, it is our view that even if his Honour’s order could in some way be impugned as an exercise of the equitable jurisdiction, it has not been established that there was any error involved in his exercise of the inherent jurisdiction to grant an anti-suit injunction to protect the processes or proceedings of this Court.
We return now briefly to the issue of comity and the caution which the decision in CSR, as well as the authorities in the Court earlier referred to, establish must be exercised in making an order which effectively restrains proceedings in another court (particularly an Australian court). We accept that his Honour did not expressly refer to the need for caution in the interests of comity in making the order which he did. But, in our view, it is not necessarily fatal to his exercise of the discretion, that he did not expressly refer to these matters. Rather, and again in our view, it is for this Court in its supervisory appellate role to be satisfied that the circumstances of the case justified such an extreme order.
For our part we are satisfied, having considered carefully the matters which his Honour set out in the conclusion to his judgment (in paragraphs 80 to 95), that he was justified in making the order which he did, at least insofar as it was directed to Primo Meats. We turn now to the position of the other eight companies which are subject to the order.

the position of the plaintiff companies other than primo meats

In considering this issue of the position of the plaintiff companies other than Primo Meats, it is to be noted that in the written submissions which were put to his Honour on behalf of the wife in support of her application, it was made clear that the injunction sought was to affect all nine plaintiff companies in the Supreme Court proceedings, and that such relief was being sought because of the relationship between each of those companies and Primo Meats and/ or the husband and/ or Paul Lederer. We refer in this regard to the following passages in those submissions:
Each of the plaintiff companies are either subsidiaries of Primo or are owned and controlled by the husband and [Paul Lederer] (and previously during his lifetime [Andrew Lederer]) either directly or through their respective alter ego corporations. (Submissions p2 AB 274)
…
On 15 February 2005 the [sic] Primo and [Paul Lederer] became parties to these proceedings [in the Family Court]….
This background leads to the conclusion that when they instituted the Supreme Court proceedings on 23 June 2005 (and through other companies directly or indirectly controlled) they were already parties to the proceedings in the Family Court; could [sic] have obtained the entire relief sought in the Supreme Court proceedings in the current Family Court proceedings and in those circumstances acted so vexatiously and oppressively as to give rise to a proper basis for this court to make an order for an anti suit injunction. It will then be entirely open for them to seek the same relief in the Family Court proceedings, should they choose to. (Submissions p5 AB 277).
Further, the written submissions provided to his Honour on behalf of Paul Lederer and Primo Meats in opposition to the wife’s application for the anti-suit injunction, reveal that those parties certainly understood that the injunction being sought was directed not only to the rectification of the register of Primo Meats but also to the rectification of the registers of those other companies who were described in those submissions as the “non-parties”.
Moreover, the transcript of the hearing before O’Ryan J on 2 August 2005 shows that the issue of whether the anti-suit injunction which was being sought should include the eight companies other than Primo Meats was certainly an issue raised before his Honour.

The injunction then granted by his Honour included the eight companies. However, in his reasons for judgment, his Honour’s only reference to those companies was in paragraph 47 where after naming them, he went on to make what can be regarded as a finding of fact being that each of the companies “were prior to the death of Andrew Lederer, controlled and owned in various forms by Andrew Lederer, Paul Lederer and the husband”.
We do not understand it to be disputed that by virtue of s 1337C of the Corporations Act 2001 (Cth) there would be jurisdiction in the Family Court to make the orders which are sought by the plaintiff companies in the Supreme Court. Whether it would be appropriate for the Family Court to exercise that jurisdiction where no related family law proceedings were on foot, is not a matter we need to consider. We say this because in the present case O’Ryan J made the clear finding in paragraph 47 of his judgment that each of the eight companies in question “were, prior to the death of Andrew Lederer, controlled and owned in various forms by Andrew Lederer, Paul Lederer and the husband”. We did not understand any challenge to that finding ultimately to be pursued before us. Given that finding, it could not be said that the Family Court was clearly an inappropriate forum, and that his Honour had erred in not finding that the Family Court was a clearly inappropriate forum (if indeed such conclusions were essential to support his Honour’s order given the dual jurisdiction on which he relied).
Furthermore, given the existence of his finding of ownership and/ or control, we consider that his Honour was entitled to consider the eight companies as effectively being in the same position for the purposes of the application before him as Primo Meats. The significance of the letter written on 24 June 2005 to the wife’s solicitors by the solicitors for all nine companies also cannot be overlooked in the present context.
We acknowledge that it might have been preferable had his Honour explained his reasoning in relation to the eight companies more fully. But in the context of an interlocutory application and of the submissions made to him in support of and in opposition to that application, he was not wrong to adopt the approach which he did.
We also appreciate that it seems, at least on the material before us, that the wife did not seek any orders in her property settlement proceedings directed to any of the eight companies. But given his Honour’s findings in paragraph 47 of his judgment concerning the ownership and control of those companies, and given also the assertions in the submissions made to his Honour on behalf of the wife, we cannot discount the possibility that the ultimate value of the shares in Primo Meats may depend on arrangements concerning the eight companies.

conclusion

We are thus not persuaded that his Honour’s discretion miscarried when he granted the anti-suit injunction which he did. The appeal must therefore be dismissed.

costs

When invited to make submissions in relation to the costs of the appeal, both Counsel agreed that “costs ought follow the event”.
Accordingly, we will order that the appellants pay the respondent’s costs of and incidental to the appeal, with such costs to be assessed in default of agreement.

I certify that the preceding seventy-one [71] paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate:

Date:

[2007] FamCA 55

9 February 2007