Case: Moore v Inglis (1976) 9 ALR 509
Outcome: distinguished
In the facts leading to the judgment of Mason J in Moore v Inglis (1976) 9 ALR 509, the plaintiff had commenced a proceeding in the Supreme Court of the Australian Capital Territory alleging conspiracy, and seeking damages. While those proceedings were pending, the plaintiff commenced a proceeding in the original jurisdiction of the High Court alleging, in a reformulated way, what was essentially the same conspiracy, or series of conspiracies. In the High Court, the plaintiff sought declarations and injunctions only, not damages. The parties in the two actions were different. Mason J granted the defendants a perpetual stay upon the principle that it was prima facie vexatious to sue concurrently in different courts for the same thing, relying in this regard upon Logan v Bank of Scotland (No 2) [1906] 1 KB 141, 150; Slough Estates Ltd v Slough Borough Council [1968] Ch 299, 314-5; and Re Christiansborg (1885) 10 PD 141, 148. His Honour considered it inconsequential that the plaintiff sought different kinds of relief in the two proceedings: the Supreme Court of the ACT had jurisdiction to grant relief by way of declarations and injunctions, should the plaintiff choose to seek that, either in substitution for, or in addition to, her existing claim for damages (9 ALR at 514-5). Mason J continued at 515: "Any difficulty which the plaintiff may encounter in securing appropriate amendments to the proceedings in the Supreme Court will stem, not from jurisdictional limitations, but from the manner in which the plaintiff has presented her case to date and from the insufficiency of the matters upon which she relies to ground the relief which she claims. However, these difficulties do not provide a reason for allowing the plaintiff to maintain a second proceeding in this Court relating to the subject matter already in course of litigation in the Supreme Court." On the subject of different parties, Mason J noted that, if a proper case were made out, the Supreme Court proceeding could be amended so as to add or remove parties. With respect to this and other potential amendments, his Honour said (at 515): "Although I acknowledge that the plaintiff may not secure all the amendments which she desires it is neither just nor fair that she should, after commencing one action which is about to come to issue on the pleadings, bring another action on the same subject matter, making minor alterations only to the substantive allegations and to the parties. She must make up her mind once and for all as to how she is going to present her case." His Honour held that the commencement and continuation of the action in the High Court was vexatious and oppressive, and constituted an abuse of the process of the Court. 38 Turning to the motion before the Court, it is necessary to examine the applicant's respective causes of action in the Victorian proceeding, and here. In the Victorian proceeding, aside from the defences that the respondents raised, the applicant would have been required to establish that &#8226; the respondents were directors of Mactec at the time it incurred the debt to the applicant; &#8226; Mactec was insolvent at that time, or became insolvent by incurring the debt; &#8226; there were reasonable grounds for suspecting that Mactec was insolvent, or would become insolvent by incurring the debt; &#8226; the respondents were aware, or a reasonable person in a like position in a company in Mactec's circumstances would have been aware, that there were reasonable grounds for so suspecting; &#8226; the respondents failed to prevent Mactec from incurring the debt; &#8226; because of Mactec's insolvency, the applicant suffered loss or damage; &#8226; the debt was wholly or partly unsecured; and &#8226; Mactec was being wound up. In the present proceeding (as pleaded by the applicant, and again putting aside any defences that might be raised), the applicant would be required to establish that &#8226; Mactec was a trading corporation; &#8226; Mactec represented to the applicant, at or prior to entering into the loan agreement, that the waste supply agreement was executed and in place and/or that Mactec could repay the $500,000 loan before 23 May 2000; &#8226; the representations were misleading or deceptive either in fact (ie, as the case requires, that the waste supply agreement was not executed or in place or that Mactec could not repay the $500,000 loan before 23 May 2000) or in the statutory sense that, when made, its maker or makers had no reasonable grounds for believing that Mactec could repay the loan, on account of Mactec's insolvency; &#8226; the applicant relied on the representations in advancing the amount of the loan to Mactec; &#8226; the respondents were involved in the making of the representations within the meaning of s 75B of the Trade Practices Act ; and &#8226; the applicant suffered loss or damage. 39 There are several obvious differences between the causes of action, and the factual elements that would be required to be established, as between the Victorian proceeding and this proceeding. Section 588M of the Corporations Act involves no element of conduct by company directors: it is concerned with their knowledge, or constructive knowledge, as to the state of the company's solvency; and, of course, with the objective fact of solvency. Under s 52 of the Trade Practices Act , by contrast, conduct is everything, whereas the company's condition of solvency or otherwise is not, at least directly, relevant; and the respondents' ignorance of the falsity of the representations made by Mactec may not be fatal to the applicant's case. The waste supply agreement, and the questions of whether it was executed at the relevant time, of what representations were made about it, and the like, will constitute very significant elements of the applicant's case in the present proceeding, whereas, it does not appear that such matters would have been agitated in the Victorian proceeding. 41 The cases to which I have most recently referred above, especially Moore v Inglis , show that the question whether a later proceeding is an abuse of process because of similarity with an earlier, extant, proceeding is not concluded in the negative merely because the parties, the causes of action, the specific relief sought, or even the forensic issues which may arise, are not identical. In that case Mason J held that the later proceeding was abusive notwithstanding that, to accommodate all its elements, some amendments to the earlier proceeding might be required. The important, perhaps critical, point was that the court in which the earlier proceeding was commenced had jurisdiction to deal with everything raised in the later proceeding and there was no reasonable justification, based on legitimate considerations of convenience, cost or the like, for commencing the second proceeding rather than seeking to amend the earlier. One sees the same underlying values as to the requirements of a fair and efficient system for the administration of justice here as are to be seen, in a different but analogous context, in Anshun . 42 In the present case, were it not for one factor to which I shall turn next, I would consider that the commencement of the present proceeding was an abuse of process in the sense of being a course preferred by the applicant over what I would regard as the more obvious, more convenient, less costly and less vexing expedient of seeking to make the necessary amendments to the pleadings in the Victorian proceeding. The applicant was, as plaintiff in the Victorian proceeding, suing to achieve compensation for the very loss around which this proceeding is constructed. It was suing the same parties as are respondents here. Broadly speaking, it was putting the same series of transactions in 2000 into controversy. Had the Victorian proceeding still been on foot when this proceeding was commenced, I would have regarded the present case as covered by Williams v Hunt and Moore v Inglis . 43 However, the Victorian proceeding was dismissed on 9 February 2006 the very day on which the present proceeding was commenced as a result of the operation of the self-executing order which Mandie J had made in September 2005. This takes the present situation, in my view, out of the Moore v Inglis line of authority. The evil with which the principle in such cases is concerned arises where a plaintiff tries to have a foot in each camp, as it were, by keeping more than one proceeding alive at the same time. I am not aware of any instance in which the same or an analogous principle has been applied to a situation of successive, rather than concurrent, proceedings. In the case of successive proceedings, it may be that the plaintiff in the later proceeding will be met by a successful plea of res judicata or of Anshun estoppel; or it may be shown, on the facts, that the commencement of the later proceeding revealed a contumacious disregard for the authority of the court, or of another court. But, absent any of these situations, there is no established basis upon which I should regard the commencement of a later proceeding making the same or similar claims as those previously, or even contemporaneously, disposed of in an earlier proceeding by a self-executing order as necessarily amounting to an abuse of process. 45 The circumstances before Hargrave J on 3 March 2006 were, of course, different from those now confronting me. His Honour had before him an application which, if granted, would have kept alive two proceedings covering essentially the same things. It was a conventional Moore v Inglis situation. His Honour, quite correctly in my respectful view, recognised the objective of the then plaintiff as involving an abuse of process. He would not allow it. He refused to keep the Victorian proceeding alive, the result of which is that that proceeding was finally terminated on 9 February 2006 and the present proceeding remains the only relevant one which the respondents are obliged to defend. 46 For the above reasons I shall dismiss so much of the respondents' motion as seeks that the proceeding be dismissed or stayed as an abuse of process.