Case: CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345
Outcome: applied
The following principles can be derived from decisions of the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 , Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345. (a) Where an anti-suit injunction is sought in an Australian court in relation to proceedings in another country, the court should first consider whether it is appropriate for it to determine the matter in issue before deciding whether to grant the injunction. (b) A stay is only granted if the Australian court is a clearly inappropriate forum. (c) The onus is on the party seeking a stay to satisfy the court that the continuation of the case would be oppressive or vexatious to the party having regard to the existence an appropriate tribunal in another country. (d) The power to stay proceedings is discretionary, in that it involves a subjective balancing process in which the comparative weight to be given to the particular factors in the circumstances of the case, and the decision whether the power should be exercised, are matters for individual judgment and, to a significant extent, matters of impression. (e) Relevant connecting factors include the law that is to be applied, whether the proceeding has a substantial connection with the law of Australia or the foreign jurisdiction, whether the relevant acts or omissions took place in Australia or the foreign jurisdiction, the parties' places of residence, the location of witnesses and the relative ease of access to sources of proof. (f) If the Australian court is clearly an inappropriate forum, that is the end of the matter, and the considerations going to whether anti-suit relief should be granted do not arise. (g) If the Australian court is not clearly an inappropriate forum, the court may require the applicant to seek a stay or dismissal of the foreign proceeding, or may proceed to determine whether an anti-suit injunction should be granted. (h) Where there is litigation in an Australian court in which complete relief may be had, the institution by a party to that suit of proceedings abroad will generally be vexatious or oppressive, because there is nothing that can be gained by the party over and above what may be gained in the local proceeding. (i) Where the proceeding abroad will give other or additional remedies beyond those available in the Australian court, the foreign proceeding will not be vexatious or oppressive. (j) Where different issues are involved in the local and foreign proceedings, albeit that the two proceedings arise out of the same substratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceeding. Rather it is whether, having regard to the controversy as a whole, the Australian proceeding is vexatious or oppressive, namely that they are productive of serious and unjustifiable trouble and harassment to the other party. 73 The respondents contend that the Illinois court is able to make an award of damages or loss of profits by reference to infringements occurring outside the United States. Reliance is placed on the decision of the Court of Appeals for the Second Circuit in Sheldon v Metro-Goldwyn Pictures Corporation 106F 2d 45 (1939). The respondents rely, by analogy, on CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 , where an influential factor in holding that the New South Wales proceeding was oppressive was that CSR could not there pursue its claim for statutory damages under the Sherman Act . However no expert gave evidence here that the Illinois court could make an award of damages or loss of profits by reference to infringements occurring outside the United States. Accordingly I am not at liberty to act in reliance on Sheldon . This is the more so because one of the commentaries to which I was referred spoke only of "sporadic cases" adopting the Sheldon approach, which the authors say is a doctrine invoked "relatively infrequently", and which "many cases ignore": Nimmer on Copyright (2007) SS14-05. Accordingly I have not taken into account this possible advantage to the respondents.