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Key decisions

  • UBS AG v Scott Francis Tyne as Trustee of the Argot Trust [2018] HCA 45
  • Johnson v The Queen [2018] HCA 48
  • McPhillamy v The Queen [2018] HCA 52
  • Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions; Donald Galloway (a pseudonym) v Commonwealth Director of Public Prosecutions; Edmund Hodges (a pseudonym) v Commonwealth Director of Public Prosecutions; Rick Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53
  • Comptroller General of Customs v Zappia [2018] HCA 54

ABUSE OF PROCESS

Practice and procedure – permanent stay – abuse of process

In UBS AG v Scott Francis Tyne as Trustee of the Argot Trust [2018] HCA 45 (17 October 2018) the High Court considered the power of courts to permanently stay proceedings as an abuse of process, where related proceedings were brought in another jurisdiction.

The respondent, Mr Tyne, started proceedings in the Federal Court in his capacity as trustee of the Argot Trust. The proceedings concerned representations made by UBS to Mr Tyne and, through him, related entities, including the former trustee (ACN 074) and an investment company (Telesto Investments Limited). At all times, Mr Tyne was the controlling mind of these entities. ACN 074, Telesto and Mr Tyne (in his personal capacity) had previously brought proceedings in the NSW Supreme Court arising out of the same facts and making essentially the same claims. In addition, UBS had earlier brought proceedings in Singapore against Telesto and Mr Tyne for default on credit facilities. Mr Tyne and the Trust ultimately discontinued their claims in the NSW proceedings. The NSW proceedings were then permanently stayed on the basis that Telesto was trying to re-litigate causes of action that had been determined in the Singapore proceedings. UBS applied to have the Federal Court proceedings stayed as an abuse of process. The claims in the Federal Court arose out of the same facts, and were essentially the same claims, as those in the NSW proceedings. The primary judge made the stay, because the Trust could and should have brought its claims in the NSW proceeding. A majority of the Full Federal Court allowed an appeal, in part because the Trust’s claims had not been decided on the merits.

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