Re AWB Limited No 10

Case [2009] VSC 566


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

CORPORATIONS LIST

No 9938 of 2009

RE AWB LIMITED (ACN 081 890 459)

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS  COMMISSION Plaintiff
v
ANDREW ALEXANDER LINDBERG Defendant

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JUDGE:

ROBSON  J

WHERE HELD:

Melbourne

DATE OF HEARING:

23, 24, 25, 26 and 27  November 2009

DATE OF JUDGMENT:

9 December 2009

CASE MAY BE CITED AS:

Re AWB Limited No 10

MEDIUM NEUTRAL CITATION:

[2009] VSC 566

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CORPORATIONS – civil penalty proceedings - abuse of process – application to permanently stay second proceeding – second proceeding raises similar issues to proceeding already part heard between the same parties - rationale underlying double jeopardy - factors relevant to abuse of process - Anshun estoppel – whether Anshun estoppel available where two proceedings both on foot – relevant tests for Anshun estoppel - court’s inherent jurisdiction – stay ordered as second proceeding constitutes an abuse of process – r 23.01 Supreme Court (General Civil Procedure) Rules 2005

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr M J Colbran QC with
Mr N J O'Bryan SC,
Ms M S Wall and
Mr C H Truong
The Australian Securities and Investments Commission
For the Defendant Mr D G Collins SC with
Mr K J A Lyons and  
Ms M Tittensor
Galbally & O’Bryan Solicitors

Aon Risk Services Australia Limited v Australian National University (2009) 258 ALR 14

Australian Securities and Investments Commission v Lindberg [2009] VSCA 235

AWB Limited (No 1) [2008] VSC 473

AWB Limited (No 2) [2009] VSC 70

AWB Limited (No 3) [2009] VSC  209

AWB Limited (No 4) [2009] VSC 315

AWB Limited (No 5) [2009] VSC 258

AWB Limited (No 6) [2009] VSC 330

AWB Limited (No 7) [2009] VSC 413

AWB Limited (No 8) [2009] VSC 469

AWB Limited (No 9) [2009] VSC 485

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256

Blair v Curran (1939) 62 CLR 464

Branir Pty Ltd v Wallco Pastoral Co Pty Ltd [2006] NTSC 70

Clorox Australia Pty Ltd v International Consolidated Business Pty Ltd [2005] FCA 1135

Davern v Messel (1984) 155 CLR 21

Gibbs v Kinna [1999] 2 VR 19

Gill v Walton (1991) 25 NSWLR 190

Green v United States (1957) 355 US 184

Henderson v Henderson (1843) 3  Hare

Hunter v Chief Constable of West Midland Police [1982] AC 529

Jago v District Court (NSW) (1989) 168 CLR 23

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 260 ALR 34

Johnson v Gore Wood & Co [2002] 2 AC 1

Lidden v Composite Buyers Ltd (1996) 139 ALR 549

Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210

Moevao v Department of Labour [1980] 1 NZLR 464

Moore v Inglis (1976) 9 ALR 509

PNJ v R (2009) 252 ALR 612

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198

Rogers v R (1994)…

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AGLC
Re AWB Limited No 10 [2009] VSC 566
Case
[2009] VSC 566
Decision Date

CaseChat Overview and Summary

In this case, the Australian Securities and Investments Commission brought civil penalty proceedings against AWB Limited in the Federal Court. The Commission alleged that AWB Limited had contravened the Corporations Act by making a false or misleading statement in relation to its wheat export monopoly. AWB Limited commenced a proceeding in the Supreme Court of New South Wales against the Australian Competition and Consumer Commission, where it sought declarations that it had not contravened the Australian Consumer Law. The Commission then sought to permanently stay the second proceeding on the basis that it raised issues similar to those in the proceeding already part heard between the same parties. The Supreme Court considered whether the second proceeding constituted an abuse of process and whether the Anshun estoppel was available in these circumstances.

The legal issues before the court included whether the second proceeding constituted an abuse of process and whether Anshun estoppel applied to prevent the second proceeding. The court noted that the rationale underlying double jeopardy was relevant to the question of abuse of process, and that factors such as the length of time between proceedings, the degree of overlap in issues, and the extent to which the party seeking to relitigate the issues had contributed to the situation, were relevant to the abuse of process inquiry. The court also considered whether Anshun estoppel was available where two proceedings were both on foot, and whether the relevant tests for Anshun estoppel were met.

The court found that the second proceeding constituted an abuse of process and ordered it be permanently stayed. The court held that the Anshun estoppel was not available in these circumstances, as it was not necessary to prevent unfairness or unmeritorious litigation. The court exercised its inherent jurisdiction to prevent the abuse of process and made orders under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2005. The court held that the second proceeding was an abuse of process because it raised issues similar to those already part heard, and the party seeking to relitigate those issues had contributed to the situation by delaying the first proceeding.

The court ordered that the second proceeding be permanently stayed, and that the costs of the application be paid by the party that sought to bring the second proceeding. The court held that the abuse of process was sufficiently serious to warrant the exercise of its inherent jurisdiction, and that the stay was necessary to prevent unfairness and unmeritorious litigation. The court also noted that the Anshun estoppel was not available in these circumstances, as it was not necessary to prevent unfairness or unmeritorious litigation. The orders made by the court reflected the court’s finding that the second proceeding was an abuse of process and that it should be permanently stayed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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