FEDERAL COURT OF AUSTRALIA
Tyne (Trustee) v UBS AG (No 2) [2017] FCAFC 5
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- Case
- [2017] FCAFC 5
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the appellants' recommencement of their claims in the Federal Court constituted an abuse of process, and if so, whether the primary judge's decision was correct. The court also needed to consider whether the appellants' conduct, including the delay and duplication of proceedings, amounted to an abuse of process. Furthermore, the court had to assess whether the primary judge's findings on the merits of the appellants' claims were correct, and whether there was any manifest unfairness or oppression in the recommencement of the proceedings.
The Full Court found that the primary judge's decision was correct. The court held that the recommencement of the proceedings in the Federal Court amounted to an abuse of process, as it unnecessarily extended the time taken to resolve the dispute and caused duplication of process. The Full Court emphasised that even a meritorious claim may be dismissed as an abuse of process if it causes unfairness or brings the administration of justice into disrepute. The court also noted that the appellants had delayed the resolution of their claims against UBS by not participating in the Supreme Court proceedings, which contributed to the abuse of process. The Full Court concluded that the primary judge's findings on the merits of the appellants' claims were not in error and that there was no manifest unfairness or oppression in the recommencement of the proceedings.
The appeal was allowed, and the orders made by the primary judge were set aside. In lieu thereof, the interlocutory application was dismissed, and the respondent was ordered to pay the appellants' costs of the appeal, the application for leave to appeal, and the interlocutory application, as agreed or taxed.
Orders
Orders of the court
1. The appeal be allowed.
2. Orders 1 and 2 made on 8 January 2016 be set aside.
3. In lieu thereof, it be ordered that:
(a) The interlocutory application dated 15 December 2014 be dismissed.
(b) The respondent pay the appellants’ costs of the appeal, the application for leave to appeal and the interlocutory application, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The decision in Batistatos demonstrates that even the prosecution of a meritorious claim may create manifest unfairness, or be likely to bring the administration of justice into disrepute. Hence it must be accepted that even a meritorious case may be dismissed as an abuse of process. In the present case the primary Judge proceeded upon the basis that the appellants’ case might well have merits. See his Honour’s remarks at [423] and [424].RELEVANT CONSIDERATIONS It would be unwise to seek to identify limits to the circumstances in which proceedings may be characterized as an abuse of process, or to seek to identify factors as being more or less likely to lead to such a conclusion. Hence I doubt the utility of seeking to identify limits beyond which the cases have not previously gone. For example, it may not help to say that there is no case in which, absent an earlier determination on the merits, a stay has been granted. After all, Batistatos was such a case. The abuse in that case was brought about by delay, causing unfairness to the defendant. Although the present case is complicated by the prior proceedings it is also, in part, about delay. In failing to participate in the Supreme Court proceedings, both the Trust and Ms Marks have delayed the resolution of their claims against UBS. In Batistatos, the delay was brought about by the plaintiff’s incompetence. In both cases, the focus is on the effect of such conduct upon the other party. The focus in some of the cases upon the “right” of a litigant to discontinue, and later commence fresh proceedings is inconsistent with modern views as to case management. The courts are now more inclined to infer prejudice to one party where conduct by the other has unnecessarily extended the time taken to resolve a dispute, or necessitated the duplication of process. Section 37M of the Federal Court of Australia Act1976 (Cth) (the “Federal Court Act”) now requires that disputes be resolved as quickly, inexpensively and efficiently as possible. To allow a party to discontinue, and then re‑commence proceedings will not generally be conducive to the achievement of that goal. The older cases must be seen in light of that provision. As I have said, it seems to be accepted that Mr Tyne directed the conduct of the Supreme Court proceedings. The primary Judge inferred that it was he who caused the amendment of the relevant summons, by virtue of which he and the Trust were effectively removed as parties to those proceedings. There is no doubt that as trustee of the Trust, he now controls the conduct of its proceedings in this Court. There is reason to infer that Mr Tyne also has the carriage of this matter on behalf of Ms Marks. The affidavits at first instance, and on the application for leave to appeal were filed on behalf of both the Trust and Ms Marks. It seems that he, but not she appeared at first instance. In this appeal, the appellants have filed joint submissions. Further, Ms Marks wrote to the Court as follows:I am unable to attend court in person this morning. My attendance would hardly be of assistance. I have no legal training. However, I should like to be represented by Mr. Tyne as my “McKenzies friend”, should the court be inclined to grant leave to that end. Failing that, I rely upon my written submissions and ask that the Court determine this matter having regard to them.