Tyne v UBS AG

Mr Tyne and Ms Marks sought leave to appeal the decision of Greenwood J, which permanently stayed their proceedings on the ground of abuse of process. The Full Court of the Federal Court of Australia, comprising Mansfield, Gilmour, and Edelman JJ, considered the grounds for leave to appeal and the appropriate conditions to attach to any grant of leave. The primary judge had relied on the discontinuance of substantially similar proceedings in a different court as a dominant factor in finding the proceeding to be an abuse of process. The applicants argued that this was not sufficient to constitute an abuse of process. The Full Court held that the decision was attended by sufficient doubt to warrant reconsideration by the Full Court and that substantial injustice would result from a refusal of leave to appeal. The Full Court concluded that the decision to grant leave to appeal was one made in all the circumstances and that the notion of "sufficiency" was one made in all of the circumstances. The Full Court granted leave to appeal on the condition that the applicants provide security for the costs of UBS in the event the appeal was unsuccessful. The Full Court reserved the costs of and incidental to the application for leave to appeal for determination by the Full Court.