How do we end the fight on multiple fronts?
Defending litigation in one jurisdiction is expensive and time-consuming. Defending in two jurisdictions can be worse. Where you face similar claims in multiple countries, you need to consider tools to quickly end parallel proceedings to keep costs down and focus fighting on one front.
The Court has a number of tools to end parallel proceedings, but those tools generally focus on:
- The nature of the claim, eg. are the claims exactly the same? Are the same remedies available in both forums?
- The claimant's conduct, eg. have they agreed not to sue or only sue in one place?
- The defendant's prejudice, eg. what is the burden on the person being sued? Is it a well-resourced defendant with legal teams in both places?
Our example considers an "abuse of process" application for international parallel proceedings that looks at a number of factors including:
- the subject-matter of the foreign proceedings is the same;
- the foreign jurisdiction offers some remedy or benefit not available in the domestic forum; and
- the maintenance of multiple proceedings would be unjustifiably oppressive to the defendant.
Different subject-matter
It is not oppressive for a plaintiff to sue the same defendant in different jurisdictions in respect of different subject matter. The relevant question here is whether there are "common material facts". A simple overlap of contextual evidence will be insufficient.
Remedy or benefit not available in domestic forum
It is not in itself oppressive to bring parallel proceedings with respect to the same matter in different countries, so long as the foreign jurisdiction offers a remedy or benefit not available in the domestic forum. A "benefit or remedy" will be interpreted widely, and examples include where the defendant:
- has real property in the foreign jurisdiction but none in the domestic; and
- has engaged with the merits of the foreign proceedings but not the domestic.
Unjustifiable oppression
While "unjustifiable oppression" is not defined, in the context of parallel proceedings, it likely includes where there is:
- undue delay;
- undue cost;
- injustice by tactical manoeuvring; and/or
- being required to deal with claims that should have been dealt with earlier (UBS AG v Tyne (2018) 265 CLR 77).
Parties should note there is no exhaustive test as to what constitutes circumstances that are "unjustifiably oppressive", and the court may consider other factors it deems relevant.
The example in Wong v Star [2021] QCA 277
In February 2019, Star Casino sought to recover $43 million from a Singaporean high roller (Dr Wong) owed from a week-long gambling spree while on a line of credit. They filed parallel proceedings in the Queensland Supreme Court and the High Court of Singapore, seeking the same remedy on the same bases.
Dr Wong engaged with the merits of the Singapore claim, but disputed the jurisdiction of the Queensland Supreme Court.
Dr Wong argued that Star's conduct constituted oppressive hardship, and that by proceeding in Singapore then also in Queensland, they were trying to "hedge their bets".
The Court of Appeal sided with Star and allowed the Queensland proceedings to continue. Importantly, the Court noted that Singapore offered a remedy or benefit not available in Queensland, as the Appellant had real property in Singapore and had engaged with the merits of the Singapore proceedings. While it agreed that living overseas presented a greater burden to Dr Wong in defending the Queensland proceedings, he had offered no evidence of any specific "burden, prejudice, damage, trouble or harassment which would come from the present proceeding."
Key takeaways for parallel proceedings
- Wherever possible, deal with "choice of forum" issues through a well-drafted choice of law clause or in your terms and conditions. Ensure you review those clauses regularly to make sure they continue to reflect where you would want claims fought.
- Begin with the subject-matter of the two disputes. If the proceedings do not share a "common material facts", the Court is unlikely to end the parallel proceeding.
- The availability of a remedy overseas (commonly, assets in that jurisdiction) can be a powerful basis not to end the parallel proceedings.
- It is not enough to refer to the general inconvenience of defending a claim in two forums. The fact that you live or are based in one city is insufficient. You should gather direct, clear evidence of how you expect to run the litigation and the specific disadvantages you face from defending two sets of proceedings.