CSR Ltd v Cigna Insurance Australia Ltd

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

CSR LIMITED v. CIGNA INSURANCE AUSTRALIA LIMITED (and those entities set out in Schedule A hereto), THE GENERAL INSURANCE COMPANY OF TRIESTE AND VENICE (and those entities set out in Schedule B hereto) AND CSR AMERICA, INC (Matters No. S 119 and S 120 of 1996); CSR AMERICA, INC v. CIGNA INSURANCE AUSTRALIA LIMITED (and those entities set out in Schedule A hereto), THE GENERAL INSURANCE COMPANY OF TRIESTE AND VENICE (and those entities set out in Schedule B hereto) AND CSR LIMITED (Matters No. S 123 and S 124 of 1996)
Private international law

(1997) 146 ALR 402

5 August 1997
Private international law

Private international law—Anti-suit injunctions—Principles governing grant of interlocutory anti-suit injunctions restraining proceedings in foreign courts—Nature and sources of jurisdiction to grant anti-suit injunctions—Whether proceedings instituted in foreign court vexatious or oppressive according to principles of equity—Whether prior application for stay or dismissal of foreign proceedings necessary—Relationship between interlocutory anti-suit injunctions and stay of proceedings on forum non conveniens grounds—Whether necessary to consider first whether to grant a stay of local proceedings on forum non conveniens grounds—Whether principles governing grant of interlocutory injunctions applicable to interlocutory anti-suit injunctions. Private international law—Stay of proceedings on forum non conveniens grounds—Relevant considerations when proceedings are pending in Australia and abroad—Nature of test when issues in local and foreign proceedings are not the same—Local proceedings brought for dominant purpose of preventing other party from pursuing remedies available only in foreign proceedings—Whether, having regard to the controversy as a whole, the local proceedings are vexatious or oppressive.

Orders

ORDER

1. Appeals allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales in each appeal and in lieu thereof, order that:

(i) the applications for leave to appeal to that Court be granted;

(ii) the appeals to that Court be allowed;

(iii) the orders of Rolfe J be set aside and in lieu thereof, order that the applications for anti-suit injunctions be dismissed and the proceedings stayed pending the outcome of the proceedings commenced by the appellants in the United States District Court for the District of New Jersey.

3. The parties have liberty to apply to the Supreme Court of New South Wales to lift or vary the stay on 7 days notice.

4. The respondents pay the appellants' costs of the proceedings before Rolfe J and in the Court of Appeal.

Decision

BRENNAN CJ

Proceedings are currently pending in the Supreme Court of New South Wales and in the United States District Court in the District of New Jersey between the respondents Cigna Insurance Australia Limited ("Cigna Australia") and certain other insurers on the one hand, and the appellants CSR Limited ("CSR") and CSR America, Inc ("CSR America") on the other. Cigna Australia's parent corporations, Cigna Corporation Inc ("Cigna") and Insurance Company of North America ("INA") are defendants in the proceedings in the United States District Court and have joined Cigna Australia and other insurers as plaintiffs in the Supreme Court proceedings. Both sets of proceedings relate to the liability of the insurers to indemnify CSR and CSR America in respect of claims for asbestos-related damage allegedly suffered by third parties. CSR and CSR America filed their Complaint in the United States District Court on 23 June 1995. Cigna Australia and a number of insurers issued their summons out of the Supreme Court on 19 July 1995 joining CSR and CSR America as defendants and, as third defendants, a number of other insurers. The plaintiff insurers were the lead insurers under policies covering CSR and, in some instances, CSR subsidiaries under policies of insurance issued during a period stated in the further amended summons filed on 13 December 1995 as "2 November 1978 to 1985". The insurers who were third defendants have now joined as plaintiffs. They were excess layer insurers. The interests of Cigna Australia and the interests of all insurers in resisting the claims for indemnity under the relevant policies coincide. A decision by the Supreme Court of New South Wales on the lead insurers' liability will bind the excess layer insurers, not all of whom are parties to the proceedings in the United States District Court.

In the Supreme Court, Cigna Australia applied for an injunction to restrain CSR and CSR America taking any further steps to prosecute the proceedings then pending in the United States District Court. On 15 August 1995, Rolfe J granted an interlocutory "anti-suit" injunction restraining CSR and CSR America from further prosecuting the proceedings in the United States District Court. Subsequently, his Honour heard applications by CSR and CSR America for orders permanently staying the proceedings commenced by Cigna Australia in the Supreme Court on forum non conveniens grounds. On 18 April 1996, his Honour dismissed those applications. The New South Wales Court of Appeal refused leave to appeal from his Honour's orders and these appeals are brought by special leave from that Court's orders. It is both convenient and logical first to consider whether the proceedings in the Supreme Court ought to have been stayed permanently.

1. Stay of proceedings in the Supreme Court

The majority judgment of this Court in these appeals describes the parties, the course of proceedings and many of the relevant facts. There are, in my respectful opinion, some further facts to be considered but the principal point of departure between this judgment and the judgment of the majority lies in differing analyses of the issues raised in the proceedings in the Supreme Court and in the United States District Court.

(i) The contractual liability of Cigna Australia and the other insurers

Cigna Australia's summons in the Supreme Court seeks a declaration that the insurers are not liable for third party asbestos-related claims and raises three issues: first, the terms of relevant policies; second, the insurers' right to rectification of those policies, if necessary, to include exclusions relating to asbestos-related claims; and, third, an agreement (to be more fully described below) having the effect of excluding the insurers' liability to CSR and its subsidiaries in respect of asbestos-related claims or estopping CSR and its subsidiaries from asserting or suing to enforce such a liability against the insurers. Cigna Australia's summons pleaded that, by the agreement, CSR and its subsidiaries were bound "not [to] make any further claims or commence litigation under the policies in relation to US Asbestos Claims or Australian Asbestos Claims or other asbestos claims".

The Complaint filed in the United States District Court by CSR and CSR America ("an indirect wholly owned subsidiary of CSR") cited not only Cigna Australia and some other insurers as defendants but also Cigna and INA (which, with Cigna Australia, were described as the "Cigna Organization"). Cigna is a Delaware corporation and INA a Pennsylvania corporation. Cigna Australia was said to be "the mere alter ego and/or successor" of INA and both were said to be "controlled by Cigna and operated as Cigna's agents and/or mere instrumentalities for the purpose of carrying on Cigna's worldwide insurance activities". Liability for breach of insurance policies issued by Cigna Australia was sought to be sheeted home to Cigna as "the alter ego and/or principal of Cigna Australia and INA". CSR and CSR America pleaded that the policies issued by Cigna Australia provided "coverage for asbestos-related claims against CSR 'anywhere in the world'", that CSR and/or CSR America had spent more than $20 million in settlement of more than 2,000 asbestos-related claims in the United States and that CSR America had been sued for CSR's alleged torts in more than 2000 asbestos-related claims in the United States. They sought a declaration that the insurers were bound to defend and indemnify them "with respect to the asbestos-related claims that have been and will continue to be filed against them in New Jersey and elsewhere in the United States" ("the American claims"). Further, they claimed damages for breach of contract in failing and refusing "to provide coverage for any of the Asbestos claims".

The chief issues on which the insurers' contractual liability depends are common to both proceedings. It is common ground or not disputed that the relevant policies were negotiated in Australia, issued in Australia by insurers carrying on business in Australia, covering the risks of claims made against an Australian company and certain of its subsidiaries and governed by Australian law; that the right to rectification depends on events that occurred in Australia and on Australian law; and that the facts on which the insurers rely to establish a contract or to ground an estoppel excluding or preventing the assertion of the insurers' liability for asbestos-related claims ("the release") occurred in Australia, their effect being primarily a question for determination under Australian law. However, if the validity of the release were to be determined in the United States District Court, the effect of the Sherman Act[1] might affect the question.

A determination of the issues relating to contractual liability raised by the insurers in the Supreme Court will resolve the insurers' liability in respect of all asbestos-related claims whether arising in the United States, in Australia or elsewhere. A determination of the same issues by the United States District Court would resolve the insurers' liability in respect of the American claims only. The asbestos-related claims made against CSR or CSR America in the United States are more numerous than those made in Australia, although the amounts paid on the Australian claims exceed the amounts thus far paid on the American claims. Of course, there are subsidiary issues that arise in respect of particular claims: the liability of CSR or a CSR subsidiary to a third party, the quantum of that liability and, possibly, breach by CSR of policy conditions governing the particular claim (for example, non-notification or unauthorised settlement). The subsidiary issues arise in respect of particular third party claims against CSR or CSR subsidiaries. In whichever jurisdiction the contractual liability of the insurers is determined, the subsidiary issues would not be determined until the chief issues affecting contractual liability are resolved. The subsidiary issues in relation to American claims would turn largely on evidence to be obtained in the United States.

However, in earlier litigation, CSR had itself commenced proceedings in the Supreme Court of New South Wales against another insurer, New Zealand Insurance Company Limited ("NZI"), seeking indemnity in respect of asbestos-related claims under policies issued by NZI. All the American asbestos-related claims which had been made up to that time were included in CSR's claim for indemnity against NZI. Those proceedings were settled but the same asbestos-related claims are included in the American claims which are referred to in the proceedings in the United States District Court, the latter proceedings encompassing third party claims made since February 1995.

Rolfe J helpfully set out a summary of the factors relevant to the determination of CSR and CSR America's application for a stay of the proceedings in the Supreme Court. I repeat that summary and his Honour's conclusion in extenso:

"(a) CSR is within the jurisdiction of [the Supreme Court of New South Wales] and undoubtedly amenable to it.

(b) The lead insurer is in the same position.

(c) The contracts of insurance were entered into in Australia and, at the request of CSR, the insurers agreed, with one exception which would seem to be susceptible of rectification, to submit any claims under the policies to the decision of a competent Court in Australia. This provides the advantage that if the liability of the lead insurers is established the excess layer insurers are liable without more and need not be sued.

(d) The contract not to sue, upon which the insurers rely, was entered into in New South Wales by parties within New South Wales and the witnesses on this issue reside either in New South Wales or Australia.

(e) In so far as it is alleged the insurers engaged in tortious conduct in relation to the entry into the contract not to sue it is agreed that that conduct took place in New South Wales, and that as between New South Wales and New Jersey the law to be applied in determining the issue of such tortious conduct is the law of New South Wales.

(f) In so far as it is alleged it is burdensome for CSR to be required to fight these cases in Australia, having regard to the fact that CSR is seeking indemnification, in the main, in respect of claims made against it by persons in the United States the following matters are relevant:-

(i) When CSR decided to sue NZI, in circumstances relevantly the same, it did so in New South Wales and, thereby, undertook the burden of proving its entitlement to indemnification for the claims made against it in America in New South Wales. This is tempered, although to a very limited degree in my view, by the subsequent attempt by CSR to have the claims litigated in New Jersey.

(ii) All the documentation current as at about February 1995 in relation to claims has been brought to Australia for the purpose of giving discovery in the CSR v NZI litigation.

(iii) Whilst a network of solicitors has been set up in the United States to contest asbestos-related claims, the evidence establishes that instructions are received from Mr Ian Mutton, or other CSR personnel, in Sydney, and that CSR in Sydney is kept informed of all claims made and steps taken in relation to them. Special units have been established by CSR in Sydney to deal with all asbestos-related claims.

(g) It is not in issue that the law to be applied to a determination of the existence of the contract not to sue, to the construction of that contract and the policies of insurance, and to the alleged tortious conduct of the insurers is New South Wales law. Accordingly if these issues are litigated in New Jersey evidence as to the New South Wales law in these respects will have to be called there.

(h) Both sides, in preparing for the CSR v NZI litigation, have instructed solicitors, who have formed teams to handle the litigation, and, accordingly, have become familiar with the issues. While there is a network of solicitors throughout America dealing with various claims, that is at the level of the asbestos-related claims qua persons suffering disease and illness from alleged asbestos inhalation, and not in relation to insurance claims. Accordingly, if the proceedings are not heard in New South Wales much of what has been learnt so far will have to be replicated in the United States.

(i) It was not suggested by CSR that the bringing of further documents, in relation to claims brought since February 1995, to New South Wales will amount to any undue burdens, which would justify the granting of a stay.

(j) In so far as CSR America is involved the evidence is that all claims against it have so far been resisted successfully and the anticipation is that will continue. The evidence suggested that CSR America was merely joined as one of the 'CSR companies' and that it has been established in various jurisdictions in the United States that CSR America is not in any way liable in relation to asbestos-related claims. Accordingly, its claim against the insurers is confined to legal costs incurred in defending those proceedings. The significance of this is that although CSR America is incorporated in Georgia the relatively small role it plays is unlikely to have such significance in the litigation as to make New South Wales a clearly inappropriate forum.

(k) Much of the evidence in relation to the alleged liability of the insurers to CSR and CSR America is in Australia.

(l) Although it is clear that most effective case management procedures are available in the District Court of New Jersey, it has not been suggested that they are any different from the somewhat stringent case management procedures adopted in the Commercial Division of [the Supreme Court of New South Wales].

(m) It is highly probable that case management will require the determination of issues such as whether on a proper construction of the policies, whether rectified or not, they respond to the claims; whether they should be rectified; and whether there was an agreement not to sue; followed by matters such as non-disclosure and a consideration of other general policy provisions, before the Court has to consider the underlying claims.

(n) Case management will also require, in all probability, that the insurers in their witness statements identify with precision, in the event of it becoming necessary to consider the underlying claims, the matters the insurers put in issue.

(o) It would seem that before the matter can proceed in New Jersey there will be applications for a stay based on forum non conveniens and, in relation to the Sherman Act claim, a motion to dismiss it on the ground that the Complaint does not disclose a cause of action. Further, unless there is a Federal claim the Federal Court will not, pursuant to its supplementary or pendant jurisdiction, investigate the insurance coverage and the asserted contract not to sue.

When all these matters are considered, so the insurers submit, it is plain, that CSR and CSR America have not established that New South Wales is a clearly inappropriate forum. Against those matters it is submitted that:-

(a) CSR America is an American company;

(b) the indemnity sought relates, essentially, to claims brought in the United States by persons resident there;

(c) there is a quantity of relevant documentation and a number of witnesses in the United States;

(d) CSR and CSR America will have the juridical advantage of being able to rely on the American anti-trust legislation; and

(e) the New Jersey Court has the power to make far more wide-ranging declarations than [the Supreme Court of New South Wales]. It is not suggested that the New Jersey Court, assuming it undertook jurisdiction, would determine the claims in other parts of the world, including Australia.

CSR and CSR America rely, of course, on their right to institute proceedings where they wish. However, in the end, I must focus on whether it can be said, in all the circumstances, that this Court is a clearly inappropriate forum. When one lays out all the matters showing the connection between the policies and the proceedings to this State, I do not consider such a view can be formed."

With respect, I see no error either in the recitation of the relevant factors or in his Honour's conclusion. Leaving aside for the moment issues of liability for non-contractual damages, there are no substantial grounds for holding that the Supreme Court of New South Wales is a "clearly inappropriate forum"[2] in which to determine the contractual liability of the insurers under the relevant policies. As the decision in Voth v Manildra Flour Mills Pty Ltd shows[3] and as Rolfe J pointed out, even in negligence proceedings where damage is the gist of the action, the courts of the place where the causative act or omission occurred rather than the courts of the place where the damage was suffered may be the most appropriate forum. In the present case, asbestos-related claims which are said to have been covered by the relevant policies arose in Australia, the United States and perhaps elsewhere. All the events which are said to give rise to the contractual liability to indemnify which CSR and CSR America seek to sheet home to the insurers occurred in Australia save the events relating to the American third party claims. The Supreme Court of New South Wales, applying the law of New South Wales to facts that occurred in New South Wales, is clearly the natural forum to determine the chief issues relating to the contractual liability of the insurers in respect of asbestos-related claims.

There is no reason why CSR and CSR America cannot cross-claim in the Supreme Court, if they so wish, to seek precisely the same relief from the Supreme Court as they claim in Counts I and II of their Complaint in the United States District Court[4]. In the Supreme Court proceedings, CSR and CSR America can pursue, if they wish, not only the insurers but also Cigna and INA. The subsidiary issues relating to the American claims might be more easily litigated in the United States but the history of the litigation against NZI prevents that factor from looming too large in determining whether the Supreme Court is a forum that is clearly inappropriate.

Objection was taken to the negative form of the relief sought by the insurers in the Supreme Court. In substance, they sought declarations of non-liability in respect of each of the several counts raised against them in the United States District Court. To appreciate the significance of the objection, it is necessary to trace briefly the events relating to the alleged release of Cigna Australia in 1992 from possible liability under the relevant policies for asbestos-related claims. The release was said to be contained in or evidenced by two letters written by CSR to Cigna Australia in March and April 1992. Those letters are more fully discussed below. Their significance for the relief claimed in the Supreme Court proceedings by the insurers in respect of their contractual liability was stated by Rolfe J as follows:

"After the correspondence in March and April 1992 neither CSR nor CSR America made any claim on the insurers under any of the policies in which I include a failure to seek to join the insurers in the CSR v NZI proceedings. Prior to the institution of the New Jersey proceedings no notice was given to the insurers that any such claim was to be made. ...

The significance of the absence of notice, in the context of these proceedings, is two-fold. Firstly, until the insurers were put on notice that CSR and CSR America intended to claim against them there was no real or live issue and for them to have approached a Court for declaratory relief of the type now sought would have led, almost inevitably, to its being rejected on the grounds that it was hypothetical and not responsive to any justiciable issue between the parties. Secondly, the only real relief available to the insurers, once they were aware that CSR and CSR America intended to assert a claim under the policies, is declaratory relief of the type now sought. Thus the available relief had to be responsive to a claim and declaratory in terms."

If the proceedings in the United States District Court sought no relief other than the enforcement of the insurers' liability under the relevant policies to "respond" to the American asbestos-related claims, in my respectful opinion, an application to stay the Supreme Court proceedings in order to allow the United States District Court to determine the insurers' contractual liability would be unarguable.

However, in the United States District Court, CSR and CSR America seek wider relief than a declaration of entitlement under the policies and damages for their breach. These wider claims have their origin in the transactions which resulted in the 1992 release. Gratefully I take the facts relating to those transactions from the findings made by Rolfe J.

(ii) The non-contractual liability of Cigna Australia, Cigna and INA

The starting point is a letter of 29 November 1991 written by Mr Mutton, a solicitor employed in the Legal Department of CSR, to Cigna Australia in relation to "Asbestos Related Claims" made by third parties upon CSR and its subsidiaries. The letter stated CSR had received counsel's advice that it may be entitled to indemnity from its insurers in respect of compensation paid or to be paid in future by it and its subsidiaries to persons suffering asbestos-related conditions as a result of the inhalation of asbestos fibres. The letter enclosed two schedules. The first schedule set out the policies issued by Cigna Australia "which may respond". The second schedule set out a list of claims made against CSR and Midalco Limited[5] in the United States, by employees of Midalco at Wittenoom, by Wittenoom residents, by contractors to Midalco, by dockside employees and Main Roads Department employees, and by users of asbestos products or employees of subsidiaries manufacturing asbestos products. The letter stated: "We formally notify you of these claims." These are the "1991 claims". Mr Mutton set out the way in which the United States claims had been processed and, under the heading "Indemnity", continued:

"CSR's insurance cover for the period 1955 to date is complex, having a multiplicity of insurers and varying policy terms.

This company does not suggest that your company is the only insurer which may be liable to indemnify it in respect of the claims.

Although your company was not necessarily our insurer at the dates the claimants inhaled the fibres, medical evidence shows that injury to the lungs does not necessarily occur on inhalation (and indeed may never occur). It may in fact occur on a later date.

We seek an admission from your company that it was our insurer under the policies listed in the schedule and a formal indication as to whether it (in conjunction with other insurers):

(a) will indemnify CSR Limited (and each of its subsidiaries) in respect of claims now completed and paid by it;

(b) will assume conduct of the defence of all current claims and provide indemnity to CSR Limited in respect of those claims;

(c) assume conduct of the defence of any future claims and provide indemnity to CSR Limited in respect of those claims."

The letter requested a reply within twenty-eight days "setting out the grounds upon which you have based your decision".

On 20 February 1992, Mr Scotford of Messrs Ebsworth & Ebsworth replied on behalf of Cigna Australia (including INA and another company, Monarch) and Cigna Australia's co-insurers in various layers of CSR's liability insurance programme between 1979 and 1988. Referring to a number of letters dated 29 November 1991 written to insurers of CSR's liability insurance programme, Mr Scotford noted that those letters were the first notification of those claims to the underwriters. Having regard to "the great passage of time", the insurers reserved "all their rights to rely on the policy conditions which deal with the obligations of the insured to give notice of circumstances or occurrences". Mr Scotford wrote that no admissions would be made and that the insurers "are not prepared to grant indemnity to CSR or any relevant subsidiaries, importantly Midalco, in respect of the claims that have been paid (without the knowledge or consent of Underwriters), or in respect of claims currently being defended or which may arise". The letter stated CSR and its subsidiaries should act accordingly as uninsured in relation to those claims and any future claims. The letter contained these paragraphs:

"5. Underwriters say, without equivocation, that the policies of insurance to which you refer, do not and were never intended to respond to the claims which you have identified in the correspondence and the attached schedule. We are instructed that this has always been made plain to and accepted by CSR.

6. From time to time proposal forms have been submitted to Cigna for the umbrella liability insurance, these having been signed by CSR's Group Risk Manager. We take it that CSR would not resile from the information it provided year after year in utmost good faith in relation to its insurance requirements, in particular, reference to the fact that residual or contingent liability from CSR's operation at the Blue Asbestos Mine in Wittenoom was specifically excluded from the liability program.

7. You will be well aware of, and we do not need to set out in this correspondence, the terms of the policy exclusions that have been introduced to deal specifically with the Wittenoom Mine and asbestos-related personal injury claims."

The letter stated that if CSR or any of its relevant subsidiaries persisted in their claims the insurers:

"... will be obliged to consider further their respective positions and may well be obliged to avoid pre 1986 policies ab initio for non disclosure and/or misrepresentation or to refuse to pay the claims on the basis of non disclosure and/or misrepresentation in accordance with the provisions of the Insurance Contracts Act (1984)."

The letter stated that the insurers had always contended the policies did not respond to asbestos-related claims and -

"CSR and its brokers have taken a similar position in proposing for liability insurance by stating that the only claims which may affect the proposed insurances were those set out in loss experience schedules, none of which as CSR will readily know, has any connection with asbestos-related claims. Underwriters contend that in these circumstances CSR and its subsidiaries are estopped from now making these claims."

The letter concluded that the insurers were not prepared to make the admissions and said "that they are not prepared to indemnify or assume conduct of the defence of claims as requested".

On 12 March 1992 Mr Mutton replied to Mr Scotford's letter and referred to a meeting at the offices of Messrs Ebsworth & Ebsworth on 5 March 1992 which, he said, he left with the broad understanding that he would provide "a briefing note concerning all asbestos matters that were the subject of the notification previously given" and "would submit a proposal for the 'management' of the matter". At that time, the policies issued by Cigna Australia were shortly to expire and extension of the current insurance programme was under consideration. Mr Mutton wrote:

"This week I have been advised indirectly through CSR Limited's insurance broker that Cigna has expressed a position with respect to this matter whereby it will not entertain a proposal for the renewal of the insurance program until a resolution of the asbestos issue is achieved. From this I gather that Cigna's suggestion concerning an extension of the current insurance program, albeit very tentative at the time it was raised, is now considered totally out of court."

The letter added:

"As I have understood the matter the fundamental objection taken by Cigna rests on a view that the Wittenoom exclusion was intended to appear in all post-1979 policies of insurance. Our copies of the policies do not contain this exclusion for all of the policy periods in question. I believe that if this is the only issue CSR Limited would concede the matter by accepting that the Wittenoom Exclusion should be deemed to have been incorporated in all policies now under consideration. As a consequence of such acceptance by CSR Limited it would be necessary to withdraw the notification previously given. You will appreciate that a review of the matter may give rise to a need to give another notification which accorded with the policy terms as conceded." (Emphasis added.) The letter requested a confirmation of Mr Mutton's understanding and said:

"If my understanding is correct or an agreement is reached on the correction that is provided it seems to me that the only possible issue that will remain will be on the interpretation of the words.

I am sure that your clarification of this point would enable this matter to be progressed."

It was not suggested that this letter was written under any duress or coercion.

On 17 March 1992 Mr W A Bennett, the Deputy Managing Director of CSR, wrote to Cigna Australia. He referred to the correspondence of 29 November 1991 and 20 February 1992 and said:

"I now wish to state on behalf of CSR that

1. all claims' notifications and requests for indemnity referred to in the correspondence of 29 November 1991 are hereby withdrawn unconditionally.

2. CSR acknowledges that its liability insurance cover between the years 1979 and 1988 pursuant to the policies referred to in that correspondence and thereafter, does not and was not intended to extend to asbestos related claims with respect to the operation of the Wittenoom mine and/or the sale of asbestos mined at Wittenoom.

3. CSR notes the underwriters assertion as to their rights under the liability policies referred to above, and as set out in Ebsworth and Ebsworth's letter of 20 February, 1992, are being fully maintained including the assertion by the underwriters that the said policies do not and were not intended to extend to asbestos related claims with respect to any activities whatsoever associated with the manufacture, processing, transportation, distribution, storage, handling and supply by any person of any asbestos materials or products."

I do not read par 3 of this letter as excepting the claims therein referred to from the claims withdrawn by par 1 or from the exclusion of cover acknowledged by par 2. Rather, by par 3 CSR accepts that the underwriters had not elected whether to "avoid pre 1986 policies ab initio" and continued to assert a right to rectification of the post-1979 policies of insurance to include what Mr Mutton had described as "the Wittenoom exclusion". Rolfe J noted that neither Mr Mutton nor Mr Bennett gave evidence and there was no suggestion either was unavailable.

It would not be possible, nor would it be right, to determine the present appeals by finally ascribing a particular meaning or effect to Mr Bennett's letter. It must be sufficient for the purpose of determining an application to stay the proceedings in the Supreme Court that there is a reasonable basis for the insurers' contention that the Bennett letter contains or evidences an agreement by CSR not to sue to enforce the claims which are sought to be enforced in the United States District Court proceedings "in consideration of the insurers' agreeing to extend the policy for one month from 30 March 1992 to 30 April 1992, and/or not issuing immediately a s 58 Notice[6], and/or not exercising rights in relation to the existing policies". The insurers further contend that, if no agreement bound CSR and its subsidiaries not to sue, they are nevertheless estopped from denying that the relevant policies excluded asbestos-related claims.

On 28 April 1992 Mr Bennett wrote another letter to Cigna headed "CSR Liability Program". The letter referred to that of 17 March 1992 and stated CSR was "happy" for the asbestos exclusions in the liability policy to be re-drafted. The letter referred to certain claims, which had been made and details of which Mr Mutton was able to supply if required, and continued:

"As you can imagine, we have read and reread the proposed exclusion a multitude of times. I believe that as an attempt to exclude all 'asbestosis' coverage it could be more simply reworded.

We acknowledge that the clause relative to asbestos contained in the expiring program excludes 'any liability in respect of personal injury or property damage resulting from asbestos and/or related disease directly caused by or contributed to the manufacturing, mining, processing, removal transport, distribution and/or storage of asbestos, asbestos products or use of any product containing asbestos'."

A qualification on the policies to 31 March 1989 was noted. The same contentions are advanced by the insurers in respect of this letter as are advanced in respect of the letter of 17 March 1992.

Having received these letters, Cigna Australia and the insurers renewed CSR's insurance programme. Rolfe J found that, if a contract not to sue were to be found in the CSR letters in the circumstances in which they were written, consideration could be found in the insurers' bona fide consideration of the renewal of CSR's policies for the current year and subsequent renewal of that insurance. His Honour found support for this conclusion in evidence that, in early March 1992, the obtaining of alternative liability public risk and product liability cover for CSR and its subsidiaries at short notice would have been extremely difficult and that there were few alternative insurers available.

For its part, CSR and CSR America relied on the difficulty of obtaining alternative cover in March 1992 to found their non-contractual claims. In the Complaint filed in the United States District Court, CSR alleged, inter alia, that -

" 38. In response to the threat that CSR would -- within weeks -- be left without necessary general and products liability insurance, and in reliance on the Cigna Organization's false representations about CSR's earlier coverage, the then-Deputy Managing Director of CSR executed, under duress and coercion, a letter in a form provided by Cigna's lawyers, purportedly withdrawing the 1991 Claims ('The Coerced Withdrawal letter')."

This allegation is central to the pleading of the causes of action set out in Counts III to VII of the Complaint: tortious interference with CSR's contractual relations and prospective economic advantage, misrepresentation of the coverage provided by the relevant policies in breach of Cigna Australia's duty of good faith and fair dealing and violation by the Cigna Organization of the Sherman Act and the New Jersey anti-trust law.

However, the allegation of duress and coercion did not lead CSR to seek either the setting aside of any agreement constituted or evidenced by the CSR letters of March and April 1992 or to avoid the estoppel which the insurers seek to raise to exclude liability for asbestos-related claims. The position taken by CSR was stated by Rolfe J as follows:

" CSR and CSR America submitted the letter of 17 March 1992 was obtained by coercion or duress, but they do not seek to have it set aside. Rather, CSR is claiming damages in the New Jersey proceedings of the type to which I have referred. In these circumstances, it seems to me, it is not necessary to consider further whether the letter of 17 March 1992 was brought about as a result of coercion or duress as, in effect, derogating from the question to be answered as to the existence of the contract not to sue. Mr Bathurst [senior counsel for CSR] did not seek to put a submission to that effect. In fact Mr Bathurst deliberately took a different approach. He submitted that if there was only an action for damages [in the United States District Court], which did not seek to challenge the contract, the insurers could not obtain an injunction [in the Supreme Court] to restrain the proceedings [in the United States District Court] on the basis there was an agreement not to sue, because the cause of action being pleaded in the foreign jurisdiction was extraneous to the contract, being based upon actions in the nature of coercion, duress or misrepresentation. He submitted that the claim for misrepresentation is a claim for damages, which is extraneous to the contract, and that CSR and CSR America do not seek to set the contract aside. In these circumstances it is clear, if Mr Bathurst's basic submission that there was no contract not to sue failed, that he was not relying on any conduct entitling his clients to have it set aside. Rather, so he submitted, there was a different cause of action which was 'extraneous' to the contract, and which CSR wished to pursue in New Jersey."

The position adopted by CSR before Rolfe J was consistent with, if not dictated by, its pleading in the United States District Court. The Complaint filed in that Court alleged[7] that Cigna -

"directed or persuaded Cigna Australia (i) not to provide coverage for the 1991 Claims, (ii) to misrepresent to CSR the nature of its historical coverage, (iii) not to renew CSR's general and products liability coverage for 1992-1993 unless CSR withdrew the 1991 claims, and (iv) to gather the support of Other Underwriters in refusing to provide such coverage unless the 1991 Claims were withdrawn."

Count III of the Complaint seeks damages against Cigna for "intentionally and maliciously interfer[ing] with CSR's contractual relations with Cigna Australia and Other Underwriters, and depriv[ing] CSR of the economic advantages to which it was entitled and which it reasonably expected to obtain in the future from its agreements with Cigna Australia and Other Underwriters". But that relief was sought only "[i]f coverage for the 1991 Claims is barred in whole or in part by The Coerced Withdrawal Letter". Then, repeating the allegation, Count IV of the Complaint seeks damages against Cigna and Cigna Australia for "interfer[ence] with CSR's reasonable expectation of economic advantage from potential agreements with insurers who, in the absence of interference from the Cigna Organization, would have provided general and products liability insurance to CSR without requiring withdrawal by CSR of the 1991 Claims"[8]. Again, the claim under Count IV is expressed to be made only "[i]f The Coerced Withdrawal Letter operates to bar coverage in whole or in part". Assuming that, in making these allegations, the Complaint pleads causes of action actionable in the United States District Court (presumably under the pendent rather than the original federal jurisdiction of that Court), the litigation of the issues raised by Counts III and IV must await the determination of the effect of the "Coerced Withdrawal Letter" on the contractual rights of CSR and CSR America. If that letter had no effect - either because, apart from the effect of the letter, the insurers were under no liability in respect of the American asbestos-related claims under the relevant policies or because that liability was not barred by the letter - the causes of action in Counts III and IV of the Complaint do not arise. Further, unless "CSR's contractual relations with Cigna Australia and Other Underwriters" made Cigna Australia and the other underwriters liable to CSR or its subsidiaries in respect of the American asbestos-related claims, it cannot be said that Cigna's directions to its subsidiary Cigna Australia to refuse coverage for the 1991 claims was wrongful.

The same observation may be made about Count V which alleges that: "In order to coerce CSR to drop its valid 1991 Claims, Cigna and/or Cigna Australia deliberately and intentionally misrepresented the coverage it provided in the 1978-1986 policies."

Thus the possibility of recovering damages under Count III, Count IV or Count V depends on (i) a finding that Cigna Australia and the other insurers were liable to indemnify CSR and its subsidiaries in respect of the 1991 claims or at least in respect of the American 1991 claims; (ii) (for the purposes of Counts III and IV) the enforcement of that liability was barred by the CSR letter written by Mr Bennett on 17 March 1992; and (iii) Mr Bennett was coerced into writing the letter or (for the purposes of Count V) was induced to do so by misrepresentation as to the liability of Cigna Australia and the other insurers.

Counts VI and VII allege conduct engaged in by the Cigna Organization as set out in pars 57, 58 and 59:

" 57. With the purpose of forcing CSR to withdraw the 1991 Claims, and as part of a scheme to limit coverage for asbestos claims in the United States, the Cigna Organization pressured insurers in the London market and elsewhere to refuse collectively to write new insurance for CSR so long as CSR was pursuing claims for the 1991 Claims under earlier Cigna Organization policies.

58. As a result of the Cigna Organization's wrongful conduct, CSR was unable to procure general and products liability coverage for the year 1992-1993 without signing, under duress and coercion, a letter drafted by the Cigna Organization providing for the abandonment by CSR of its 1991 Claims.

59. The Cigna Organization's wrongful conduct forced CSR to capitulate to the Cigna Organization's demands that it withdraw the 1991 Claims, forego its legitimate claims for coverage under the Policies, and defend Asbestos Claims in New Jersey and elsewhere throughout the U.S. without the benefit of the insurance for which it had contracted."

This conduct is said to be an agreement in restraint of trade under both s 1 of the Sherman Act (Count VI) and a New Jersey statute Ann ' 56:9-3 (Count VII). The Clayton Act[9] provides that triple damages for injury to business or property may be awarded for violation of the Sherman Act.

Some of the issues raised by Counts III to VII are raised by the insurers' summons in the Supreme Court of New South Wales. Common to both proceedings are the issues of the true terms of the relevant policies, their coverage of the American claims and the effect of the CSR letters of March and April 1992 on those questions. The conduct of Cigna and INA, some of the conduct attributed to Cigna Australia (particularly conduct engaged in outside Australia) and other elements of liability in tort (Counts III, IV and V) under the Sherman Act and the New Jersey anti-trust statute (Counts VI and VII) are in issue only in the United States District Court. The issue of damages under Counts III to VII must also be confined to the United States District Court. It is curious that CSR, despite its pleading of duress and coercion inducing the writing of the March 1992 letter and its pleading that the letter was written because CSR was "forced ... to capitulate", does not seek to avoid the release of the right to indemnity that is said to have been effected by the CSR letters of March and April 1992.

However that may be - and it is a matter which, in my view, is a significant factor affecting the application for an anti-suit injunction - CSR and CSR America rely on the fact that some of the issues between them and the insurers are not issues in the proceedings in the Supreme Court and neither of the Counts under the Sherman Act or the New Jersey statute could be determined in the Supreme Court proceedings. Accordingly, they submit that the Supreme Court of New South Wales is a clearly inappropriate forum for litigation between them and the insurers, even litigation of the common issues. Further, CSR and CSR America rely on the commencement of the proceedings in the United States District Court before the commencement of the proceedings in the Supreme Court. The significance of these considerations will appear more clearly after a discussion of the anti-suit injunction granted by Rolfe J.

2. The Anti-suit Injunction

Although a domestic court may hold that it is not a clearly inappropriate forum to determine a controversy between parties, it does not follow that it should exercise a jurisdiction to enjoin a party from commencing or prosecuting proceedings in a foreign court which has jurisdiction to determine the same controversy[10]. There must be an equity which entitles one party as against the other to an injunction to restrain the other from proceeding in the foreign court. It is not possible to define in advance the circumstances that give rise to such an equity[11], except to say that it arises when it would be unconscionable for the party enjoined to proceed in the foreign tribunal. The jurisdiction to issue an anti-suit injunction is not directed against the foreign court but against the party who would invoke that Court's jurisdiction[12].

The jurisdiction of a domestic court to enjoin a party from proceeding in a foreign court is exercised "where it is appropriate to avoid injustice"[13] but the approach to the exercise of the jurisdiction where the foreign court is the only court with jurisdiction is different from the approach when both courts have jurisdiction. In British Airways v Laker Airways[14],Lord Scarman said:

"The approach has to be cautious because an injunction restraining a person within the jurisdiction of the English court from pursuing a remedy in a foreign court where, if he proves the necessary facts, he has a cause of action is, however disguised and indirect, an interference with the process of justice in that foreign court. Caution is needed even in a 'forum conveniens' case, ie, a case in which a remedy is available in the English as well as in the foreign court. Caution is clearly very necessary where there is no remedy in the English court in respect of the cause of action which, if the facts be proved, is recognised and enforceable by the foreign court."

The present case has elements of each of those categories of case. Both the Supreme Court and the United States District Court have jurisdiction to determine, albeit within different limits, the controversy as to the insurers' contractual liability under the relevant policies to respond to the American asbestos-related claims made against CSR and CSR America. It may be that both Courts have jurisdiction to determine whether Cigna, INA and Cigna Australia are, or any of them is, liable in tort for damages in respect of their alleged conduct in procuring, or in order to procure, the withdrawal by CSR of the 1991 claims. But only the United States District Court has jurisdiction to determine CSR's entitlement against the Cigna Organization under the Sherman Act and under the New Jersey anti-trust statute.

In some cases, it would not be appropriate to divide the matters in controversy in order to consider whether an anti-suit injunction should issue and, if issued, the form and scope of the injunction. In some cases, the fact that the foreign court could determine all the matters in controversy while the jurisdiction of the domestic court was limited to the determination of some only of those matters would be a powerful consideration telling against the issue of an injunction. That fact could, depending on the circumstances, show the domestic court to be a clearly inappropriate forum to determine the limited matters in dispute. These considerations are relevant when an application for an anti-suit injunction depends on no more than the relative advantages of the foreign and domestic fora in determining the entire controversy between the parties. But each case turns on its own facts.

The question whether to issue an injunction to restrain the commencement or prosecution of proceedings in a foreign forum and the form of any such injunction depends upon the application to the particular facts of the general principle that an injunction issues only when restraint of the commencement or prosecution of the foreign proceedings is necessary to avoid injustice. Two categories of injustice that will support the grant of an injunction can be gleaned[15] from what was said by Lord Diplock in British Airways v Laker Airways[16]:

"A right not to be sued upon a particular cause of action in a particular foreign court by the person against whom the injunction is sought may be contractual in origin. A common example of this is an exclusive jurisdiction clause in a contract. Furthermore, if under English law a defence would be available to the injunction-seeker, that defence may be given anticipatory effect as a right not to be sued that is enforceable by injunction in an action for a declaration of non-liability."

The first category encompasses an agreement not to bring the proceedings that are brought in the foreign jurisdiction. It is unconscionable for a party to bring those proceedings if that party has agreed not to do so or is estopped from asserting an entitlement to do so. The second category encompasses conduct engaged in in the law area of the domestic court which is lawful where and when it occurs but which is unlawful in the law area of the foreign court where it founds a claim for damages. If a party engages in conduct at a time and in a place in which that party is free to engage in that conduct without incurring liability, or the risk of liability, for the consequences, a domestic court of that place which is the natural forum for determining the legal effect of the conduct may treat it as unconscionable for another party to sue the first party in the courts of another country to enforce a liability that attached to the conduct under the laws of the other country. The rule cannot be stated in absolute terms for the necessary or intended result of conduct may be effected in the other country and make it appropriate and just that the courts of that country determine the legal consequences of the conduct according to its laws. But a jurisdiction to enjoin the prosecution of proceedings in the other country may be exercised in order to preserve the integrity of the domestic legal system. That is to say, the domestic court will prevent a distortion by foreign statute of a policy of the domestic law.

If Cigna Australia's contention be right that, by its letters in March and April 1992, CSR was bound not to sue or was estopped from suing on the relevant policies in respect of asbestos-related claims, Counts I and II of its Complaint in the United States District Court come squarely within Lord Diplock's category. It is common ground that the effect of the 1992 letters should be determined by applying the law of New South Wales to the facts that occurred in New South Wales and CSR does not seek to have any agreement constituted or evidenced by those letters set aside. This is not a case in which CSR challenges the validity of any contract which, if valid, would bar its contractual claims. In that respect the case is distinguishable from Settlement Corporation v Hochschild[17].

If Cigna Australia is entitled, by virtue of the letters of March and April 1992, to restrain the prosecution of Counts I and II in the United States District Court, the prosecution of those counts in the United States District Court is vexatious and oppressive in the relevant sense[18]. Provided Cigna Australia established, as in my view it did, a strong case for holding that, if there were any antecedent contractual liability upon the insurers, there was a valid release by reason of the March and April 1992 letters, the insurers were entitled to an interlocutory injunction until the Supreme Court, the natural forum, finally determines whether CSR is bound, either by contract or estoppel, not to sue on those counts. And, as the effect of the 1992 letters is but part of the general issue of the insurers' liability under the relevant policies, I would hold it to be vexatious and oppressive for CSR to sue on Counts I and II until the chief issues of contractual liability are finally determined in the Supreme Court of New South Wales.

Counts III to VII appear to come within Lord Diplock's second category. Counts III, IV and V are claims in tort based on conduct which allegedly caused damage to CSR. The location of the conduct is not specified in the Complaint but, having regard to the nature of the transactions which culminated in the writing of the CSR letters in March and April 1992, it appears to be conduct which occurred in Australia. Clearly enough, the alleged misrepresentations that are relied on to found the misrepresentation count - Count V - are representations made in correspondence (and perhaps in oral exchanges) between the parties in Australia. There is, however, an allegation in Count VI (the Sherman Act count) that "the Cigna Organization pressured insurers in the London market and elsewhere"[19]. It may be that the conduct complained of in Counts III, IV and V (including the "gather[ing of] support of Other Underwriters in refusing to provide ... coverage [for CSR and its subsidiaries] unless the 1991 Claims were withdrawn"[20]) occurred in London as well as in Australia. At all events, the Complaint does not allege that any of the conduct complained of occurred in the United States. Nor is there any allegation that the conduct was unlawful in Australia or in England, although the alleged misrepresentation would be tortious here. Indeed, in so far as the conduct consisted of the making of agreements for the predominant purpose of defending the business interests of Cigna, INA and Cigna Australia, that conduct would be lawful at common law in Australia and in England[21].

The principle applicable to an injunction restraining the prosecution of the non-contractual counts was stated in Midland Bank v Laker Airways[22] in which the liquidator of Laker Airways proposed to commence proceedings in the United States under the Sherman Act and the Clayton Act against the Midland Bank. In an earlier case, British Airways v Laker Airways[23], the House of Lords had held that it was not unconscionable for the liquidator of Laker Airways to take proceedings under those Acts in the United States against airline companies which were said to have conspired in the United States to restrain and monopolise United States foreign trade and commerce with the object of eliminating competition from Laker Airways. In Midland Bank, the bank, with knowledge of the alleged airline conspiracy, had withdrawn financial support from Laker Airways and the liquidator proposed to take proceedings in the United States under the Sherman Act and the Clayton Act alleging the Bank to be liable for damages under those Acts. The difference between British Airways and Midland Bank was that the conduct of Midland Bank had occurred only in England. In Midland Bank [24]Neill LJ said:

"[I]t is legitimate to look very closely at the suggestion that a resident in country A who has a series of dealings in country A with another resident of country A and who conducts his dealings in accordance with and subject to the law of country A is at the same time exposing himself to a potential liability in country B because the way in which he conducts the dealings may offend some law in country B.

This question may arise in many different situations, often in fields far removed from antitrust legislation. Where the question does arise, then, in my judgment, the court has jurisdiction to consider whether it is just and equitable for the party affected to be brought before the courts of country B. The jurisdiction can, of course, only operate in personam and can therefore only be exercised where the other party to the foreign proceedings is amenable to an order of the court of country A."

Counts VI and VII seek "statutory damages", that is, triple damages for alleged violations of the Sherman Act and the New Jersey anti-trust statute. That is not the policy of the law of Australia. So far as the policy of Australian law is opposed to commercial anti-competitive conduct, it is contained in the Trade Practices Act 1974 (Cth) and other relevant laws of the Commonwealth and of the State or Territory in which the relevant elements of the conduct occurred. The consequences of the conduct alleged in Counts III to VII are prima facie to be determined by the law of the place where the conduct occurred. Those consequences may be prescribed by, inter alia, the Trade Practices Act if the conduct occurred in Australia, not by the Sherman Act. It is prima facie unjust and oppressive for a party to invoke a foreign law to fix another party with liability under that law in respect of conduct that is either innocent or subject to particular consequences prescribed by the law of the place where the conduct occurred. And that is especially so when the foreign law imposes on local conduct a liability for penal damages. It may be that, by American law, violations of the Sherman Act can be found in conduct that is purely extra-territorial and triple damages can be awarded to a complainant in a federal court who establishes loss caused by that conduct. But by Australian law, as by English law[25], the Sherman Act is "purely territorial in its application". Unless the conduct relied on to support Counts VI and VII occurred in the United States - and, with one possible exception, there is nothing in the Complaint or in the findings by Rolfe J to suggest that the conduct relied on did occur in the United States - CSR should be restrained from prosecuting the claims made in those counts. The exception is that Cigna and INA, being based in the United States, may have initiated there communications with Cigna Australia or with London underwriters. But it must be the transmission to and receipt by the recipients of those communications which constitutes the relevant conduct, not the internal consideration by Cigna or INA.

If the conduct of Cigna Australia, Cigna or INA caused loss or damage to CSR or CSR America, the remedy, if any, must be found in Australian law (whether in tort or under the Trade Practices Act). It is unconscionable for CSR to proceed under American law with a view to recovering damages for which none of the Cigna Organization was liable in the place where the conduct occurred. The relevant principle is stated by Lawton LJ in Midland Bank[26]:

" It ... remains to consider whether the threatened antitrust suit if instituted would be unconscionable conduct on the part of the liquidator. What he is trying to do is to make the plaintiff banks liable to the heavy financial penalties which can be awarded in a United States antitrust suit for acts done in England and intended to be governed by English law and in respect of which he has no claim at all in England. In my judgment, this would be unjust and, in consequence, unconscionable; and the more so when, so far as can be seen from an English Bench, the liquidator has not, by English standards, got the beginnings of a case to justify a charge of combination or conspiracy against the plaintiff banks. In my judgment, the weakness of the evidence is a factor which can be taken into account, together with the other more weighty factors, in deciding whether conduct is unconscionable."

As to the strength of the Sherman Act claims, there was evidence from Professor Lowenfeld, an expert witness called by CSR that there might well be a "problem" for CSR in maintaining Count VI because of a decision of the Supreme Court of the United States in Copperweld Corporation v Independence Tube Corporation[27] which held that a parent corporation and its wholly-owned subsidiary were not legally capable of conspiring with each other under s 1 of the Sherman Act. If Count VI were to fall at the outset of the proceedings in the United States District Court, it seems that that Court would be unlikely to proceed on other counts. Whatever difficulties there may be in the way of a successful prosecution by CSR and CSR America of the proceedings in the United States District Court, it is unconscionable for them to invoke American laws to impose liability upon the defendants to those proceedings for conduct which was not engaged in in the United States and which (except for misrepresentation) by the laws of the place or places where the conduct was engaged in, was not attended with the risk of the liability which the proceedings in the United States District Court are calculated to enforce. In those circumstances, it would be unjust to proceed in that Court solely on the claim for misrepresentation when the Supreme Court of New South Wales is the natural forum for determining the issues on that claim.

The facts indicate that the respondents' dominant purpose in instituting the NSW proceedings was to prevent the appellants from pursuing remedies available in the US proceedings but not in the NSW proceedings. It follows that the NSW proceedings are oppressive, in the Voth sense, and should be stayed. The appropriate course is for them to be stayed pending the outcome of the US proceedings with liberty to the parties to apply on 7 days notice if circumstances so require.

Orders

The appeals should be allowed with costs. The orders of the Court of Appeal should be set aside. In lieu thereof, the applications for leave to appeal to that Court should be granted, appeals to that Court allowed, the orders of Rolfe J set aside and, in lieu of those orders, it should be ordered that the applications for anti-suit injunctions be dismissed and the NSW proceedings be stayed pending the outcome of the US proceedings. The parties should have liberty to apply to the Supreme Court to lift or vary the stay on 7 days notice. The appellants should have their costs of the proceedings before Rolfe J and in the Court of Appeal.

SCHEDULE A

FEDERAL INSURANCE COMPANY; CIGNA CORPORATION; INSURANCE COMPANY OF NORTH AMERICA; GRE INSURANCE LIMITED; QBE INSURANCE LIMITED; PRESERVATRICE INSURANCE AUSTRALIA LIMITED; PRESERVATRICE SKANDIA INSURANCE LIMITED; AMERICAN INTERNATIONAL UNDERWRITERS (AUSTRALIA) PTY LIMITED; VIGILANT INSURANCE COMPANY; CGA FIRE AND ACCIDENT COMPANY LIMITED; ZURICH AUSTRALIA INSURANCE LIMITED; KEMPER INSURANCE COMPANY LTD; COMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LIMITED; MONARCH INSURANCE COMPANY LIMITED; SUN ALLIANCE AND ROYAL INSURANCE AUSTRALIA LIMITED (formerly known as ROYAL INSURANCE AUSTRALIA LIMITED); MMI GENERAL INSURANCE LIMITED (formerly known as ALLIANZ INSURANCE CO LTD); CHRISTOPHER MARK SWINBANK on behalf of VARIOUS LLOYDS UNDERWRITERS; PRUDENTIAL ASSURANCE COMPANY LIMITED; ASSICURAZIONI GENERALI S.P.A.; EXCESS INSURANCE COMPANY LIMITED; COMPAGNIE D'ASSURANCES MARITIMES AERIENNES ET TERRESTRES; DELVAQ LUFTFAHRTVERSICHERUNGS AKTIENGESELLSCHAFT PER CAMOMILE UNDERWRITING AGENCIES LIMITED; AEGON NV AS SUCCESSOR IN INTEREST TO ENNIA INSURANCE COMPANY (UK) LIMITED; SOVEREIGN MARINE & GENERAL INSURANCE CO LTD; TOKIO MARINE & FIRE INS CO (UK) LIMITED; TAISHO MARINE & FIRE INSURANCE COMPANY (UK) LIMITED; ALLIANZ INTERNATIONAL INSURANCE COMPANY; STOREBRAND INSURANCE COMPANY (UK) LIMITED PER WILLIS FABER (UNDERWRITING MANAGEMENT) LIMITED; STRONGHOLD INSURANCE COMPANY LIMITED; TRIDENT GENERAL INSURANCE COMPANY LIMITED; VESTA (UK) INSURANCE COMPANY; CHIYODA FIRE AND MARINE INSURANCE COMPANY LIMITED, PER TRIDENT GENERAL INSURANCE COMPANY LIMITED; THE ELIZABETHAN MARINE AND GENERAL INSURANCE COMPANY LIMITED; CNA REINSURANCE OF LONDON LIMITED; ASSOCIATED INSURANCE MANAGEMENT LIMITED; COLONIA VERSICHERUNG AG; ABEILLE PAIX REASSURANCES; SOCIETA REALE MUTUA DI ASSICURAZIONI; THE CONTINENTAL INSURANCE (UK) LIMITED; LANDMARK INSURANCE COMPANY (UK) LIMITED; SUN ALLIANCE AND LONDON INSURANCE GROUP; ROYAL REINSURANCE COMPANY LIMITED; HARBOUR ASSURANCE CO OF BERMUDA LTD AS SUCCESSOR IN INTEREST TO HARBOUR ASSURANCE COMPANY (UK) LIMITED; FRANKONA RUCK-UND MITVERSICHERUNGS AG; MINSTER INS CO LTD N/K/A GAN MINSTER INS CO LTD; GAN INCENDIE ACCIDENTS CAMPAGNIE FRANCAISE D'ASSURANCE a/k/a GAN INCENDIE ACCIDENTS; THE KYOEI MUTUAL FIRE & MARINE INS CO; LOMBARD INS CO (UK) LTD; HIGHLANDS U/W AGENTS (HIGHLANDS INS CO); ECONOMIC INS CO LTD; LOMBARD ELIZABETHAN INSURANCE PLC; COPENHAGEN REINSURANCE COMPANY (UK) LTD; CHURCH AND GENERAL INSURANCE COMPANY 100% PER ENNIA UNDERWRITING AGENCIES (UK) LIMITED; HIH CASUALTY AND GENERAL INSURANCE LTD; UIC INSURANCE COMPANY LIMITED; ASSISTALIA - L'ASSICURAZIONI D'ITALIA F/K/A L'ASSICURAZION D/ITALIA; TORO ASSICURAZIONI SPA; SUN INSURANCE OFFICE LIMITED; CIGNA INSURANCE COMPANY OF EUROPE S.A. - N.V., ON BEHALF OF HOME INSURANCE COMPANY AS A MEMBER OF AFIA; THE 1976 EAGLE INSURANCE COMPANY S.A.; GERLING-KONZERN VERSICHERUNGS BETEILIGUNGS-AKTIENGESELLSCHAFT AS SUCCESSOR IN INTEREST TO GERLING-KONZERN GENERAL INSURANCE COMPANY PER GERLING INSURANCE SERVICE COMPANY LIMITED.

SCHEDULE B

CNA MANAGEMENT CO LTD AS SUCCESSOR IN INTEREST TO THE CONTINENTAL INSURANCE COMPANY OF LONDON LIMITED; WINTERTHUR SWISS INS CO AS SUCCESSOR TO REPUBLIC INSURANCE COMPANY (UK) LIMITED; RUCKVERSICHERUNGS-GES AS SUCCESSOR IN INTEREST TO UNION ATLANTIQUE DE REASSURANCES SA; ALLIANZ VERSICHERUNGS AG; COMPAGNIE EUROPEENNE DE REASSURANCES; CONTINENTIAL ASSURANCE CO LONDON LTD (CAL) and certain other companies or entities subscribing to or underwriting portions of the risks insured by the aforementioned policies whose current identities are unknown to the first and second defendants and who are named herein as JOHN DOES 1-250.


FOOTNOTES

[1] 15 USC ' 1, s 1.
[2] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.
[3] (1990) 171 CLR 538 at 570.
[4] Supreme Court Act 1970 (NSW), ss 78, 63. See Supreme Court Rules 1970 (NSW), Pt 6.
[5] A CSR subsidiary which conducted an asbestos mine in Wittenoom.
[6] That is a notice under s 58 of the Insurance Contracts Act 1984 (Cth) which is required before an insurer declines renewal of a policy of general insurance.
[7] par 46.
[8] par 50.
[9] 15 USC ' 12, s 4.
[10] Société Aerospatiale v Lee Kui Jak [1987] AC 871 at 895-896.
[11] Société Aerospatiale v Lee Kui Jak [1987] AC 871 at 893, 896.
[12] Société Aerospatiale v Lee Kui Jak [1987] AC 871 at 892.
[13] Castanho v Brown & Root [1981] AC 557 at 573 per Lord Scarman.
[14] [1985] AC 58 at 95. See also Monticelli v McTiernan (1995) 120 FLR 82 at 102.
[15] See the Privy Council's reference to useful guidance from earlier cases in Société Aerospatiale v Lee Kui Jak [1987] AC 871 at 896.
[16] [1985] AC 58 at 81.
[17] [1966] Ch 10.
[18] That is, the sense discussed in Société Aerospatiale v Lee Kui Jak [1987] AC 871 at 893-896.
[19] Count VI, par 57 of the Complaint in the United States District Court [AB205].
[20] Count III, par 46 of the Complaint in the United States District Court [AB203].
[21] See British Airways v Laker Airways [1985] AC 58 at 79-80.
[22] [1986] QB 689.
[23] [1985] AC 58.
[24] [1986] QB 689 at 714-715.
[25] British Airways v Laker Airways [1985] AC 58 at 79.
[26] [1986] QB 689 at 700.
[27] 467 US 752 (1984).
[28] (1996) 185 CLR 571.
[29] (1996) 185 CLR 571 at 593.
[30] [1987] AC 871 at 894.
[31] (1883) 23 Ch D 225 at 233.
[32] In some cases there are several other co-defendants.
[33] In some cases appeals are still pending.
[34] Note that some of the policies exclude from cover any operations that CSR may undertake in the USA or Canada. That exclusion does not apply to liabilities arising when, in certain specified circumstances, CSR merely sells its products in the USA or Canada.
[35] There is a provision in some policies binding the excess layer insurers in the event that claims against the lead insurers are litigated in Australia.
[36] It may be that there were earlier statements to CSR's insurance brokers to this effect.
[37] 15 USC SSSS 1-7. Section 1 provides: " Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding one million dollars if a corporation, or, if any other person, one hundred thousand dollars, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court."
By SS 15 of 15 USC (SS 4 of the Clayton Act), it is provided that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws [which includes the Sherman Act by virtue of SS 12 of 15 USC (SS 1 of the Clayton Act)] may sue therefor ... without respect to the amount in controversy, and shall recover threefold the damages by him sustained".
[38] Cigna Australia and its then co-plaintiffs had earlier moved successfully for ex parte interim orders preventing CSR and CSR America from seeking any orders in the US proceedings which would have the effect of preventing Cigna Australia and its then co-plaintiffs from pursuing their claim for anti-suit injunctions in New South Wales. The interim orders, which were referred to in these proceedings as anti-anti-suit injunctions, have since been dissolved.
[39] (1870) LR 6 QB 1 at 28-29. That test requires that for a wrong committed abroad to be actionable in this country, two conditions must be fulfilled. First, "the wrong" must be of such a character that it would have been actionable if committed here; secondly, "the act" must not have been justifiable by the law of the place where it was committed. That test has been modified in the case of acts done within Australia. See, for example, McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 39; Stevens v Head (1993) 176 CLR 433 at 463.
[40] This situation may be contrasted with that where an action is brought under a statute of the forum which creates a cause of action in respect of acts or omissions outside the forum.
[41] (1990) 171 CLR 538.
[42] (1996) 185 CLR 571 at 591.
[43] [1987] AC 871 at 894. See also Re Maxwell Communications Corp plc (No 2) [1992] BCC 757 at 770; Gau Shan Co Ltd v Bankers Trust Co 956 F 2d 1349 at 1354 (1992); Amchem Products Inc v British Columbia (WCB) [1993] 1 SCR 897 at 911-912.
[44] Steps short of a permanent stay or anti-suit injunction may be appropriate in a particular case. In Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287 at 292, the Federal Court stood the Australian action out of the list pending the determination in a New Zealand action of concurrent issues on the footing that, even if both parties did not accept the New Zealand findings, the Federal Court might give directions which reduced the scope of evidentiary issues remaining in the Australian proceeding.
[45] Millett J pointed this out in ISC Technologies Ltd v WK Radcliffe unreported, English High Court of Justice, Chancery Division, 7 December 1990 at 10-12, when deciding that neither an order for an account and payment nor an order to restore a fund to the party entitled was an injunction within the meaning of the relevant rule of court. See also Doulton Potteries Ltd v Bronotte [1971] 1 NSWLR 591 at 596 where Hope J held that an order for return of a specific chattel was not a form of injunction.
[46] See, for example, Castanho v Brown & Root (UK) Ltd [1981] AC 557 at 574; Smith Kline & French Laboratories Ltd v Bloch [1983] 1 WLR 730 at 743; [1983] 2 All ER 72 at 82; Metall und Rohstoff AG v ACLI Metals (London) Ltd [1984] 1 Lloyd's Rep 598 at 602.
[47] [1987] AC 871 at 896. See also Re Maxwell Communications Corp plc (No 2) [1992] BCC 757 at 771-772.
[48] (1990) 171 CLR 538. See also Henry v Henry (1996) 185 CLR 571.
[49] [1987] AC 460.
[50] (1988) 165 CLR 197 at 242, 248, 251-255.
[51] (1988) 165 CLR 197.
[52] (1990) 171 CLR 538 at 554.
[53] [1936] 1 KB 382.
[54] See Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 617, 639-640; Hamilton v Oades (1989) 166 CLR 486 at 502; Jago v District Court (NSW) (1989) 168 CLR 23 at 25, 74; Williams v Spautz (1992) 174 CLR 509 at 518; Walton v Gardiner (1993) 177 CLR 378 at 392-393; Ridgeway v The Queen (1995) 184 CLR 19 at 60, 74-75.
[55] See, for example, with respect to the power to grant a Mareva injunction, Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 619, 621, 639; Witham v Holloway (1995) 183 CLR 525 at 535. See also Ridgeway v The Queen (1995) 184 CLR 19 at 60.
[56] Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 892. See also Bank of Tokyo Ltd v Karoon [1987] AC 45 at 60 per Robert Goff LJ and the cases there cited; Allstate v ANZ Banking Group (No 1) (1996) 64 FCR 1 at 26 and the cases there cited.
[57] (1989) 22 FCR 209 at 232. See also, for example, Laker Airways Ltd v Sabena, Belgian World Airlines 731 F 2d 909 at 927(1984); Re Siromath Pty Ltd [No 3] (1991) 25 NSWLR 25 at 29-30.
[58] See Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 639 and the cases there cited. See further Hamilton v Oades (1989) 166 CLR 486 at 502; Jago v District Court (NSW) (1989) 168 CLR 23 at 25-26, 74; Ridgeway v The Queen (1995) 184 CLR 19 at 60, 75.
[59] See generally Story, Commentaries on Equity Jurisprudence,13th ed (1886), vol 2 at 209-213. See also British Airways Board v Laker Airways Ltd [1985] AC 58 at 81, 95; South Carolina Co v Assurantie NV [1987] AC 24 at 40; National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at 232.
[60] See generally Carron Iron Co v Maclaren (1855) 5 HLC 416 at 439 [10 ER 961 at 971]: "if the circumstances are such as would make it the duty of the Court to restrain a party from instituting proceedings in this country, they will also warrant it in restraining proceedings in a foreign court".
[61] See, for example, Lett v Lett [1906] 1 IR 618; Apple Corps Ltd v Apple Computer Inc [1992] RPC 70. See also British Airways Board v Laker Airways Ltd [1985] AC 58 at 81.
[62] See, for example, Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588; [1994] 2 All ER 540. See further, for example, Pena Copper Mines Ltd v Rio Tinto Company Ltd (1911) 105 LT 846 and Aggeliki Charis Compania Maritima (SA) v Pagnan SpA (The "Angelic Grace") [1995] 1 Lloyd's Rep 87 where proceedings in foreign jurisdictions were restrained by reason of agreement to submit to arbitration in England.
[63] See, for example, Story, Commentaries on Equity Jurisprudence,13th ed (1886), vol 2 at 211; In re Connolly Brothers Limited [1911] 1 Ch 731 at 747. As to foreign proceedings, see McHenry v Lewis (1882) 22 Ch D 397; Peruvian Guano Company v Bockwoldt (1883) 23 Ch D 225; Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 893; National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at 232.
[64] (1855) 5 HLC 416 at 437 [10 ER 961 at 970] per Lord Cranworth. See also Wedderburn v Wedderburn (1840) 4 My & Cr 585 [41 ER 225]; McHenry v Lewis (1882) 22 Ch D 397.
[65] (1883) 23 Ch D 225.
[66] [1987] AC 871 at 893-894.
[67] See McHenry v Lewis (1882) 22 Ch D 397; Peruvian Guano Company v Bockwoldt (1883) 23 Ch D 225; Hyman v Helm (1883) 24 Ch D 531; Cohen v Rothfield [1919] 1 KB 410; Ionian Bank Ltd v Couvreur [1969] 1 WLR 781; [1969] 2 All ER 651.
[68] (1883) 23 Ch D 225 at 234.
[69] [1987] AC 45 at 60.
[70] (1885) 5 HLC 416 at 437 [10 ER 961 at 970].
[71] See South Carolina Co v Assurantie NV [1987] AC 24 at 39-40; Supreme Court Act 1981 (UK), s 37(1). Note that s 37(1) of the Supreme Court Act 1981 (UK) is similar to provisions in earlier English legislation, namely, s 45(1) of the Supreme Court of Judicature (Consolidation) Act 1925 (UK) and s 25(8) of the Supreme Court of Judicature Act 1873 (UK).
[72] cf Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 noting, however, that the judgments in that case do not proceed by reference to the ordinary principles of estoppel. See also British Airways Board v Laker Airways Ltd [1985] AC 58 at 81.
[73] See, for example, British Airways Board v Laker Airways Ltd [1985] AC 58 at 95; Compagnie des Bauxites de Guinea v Insurance Company of North America 651 F 2d 877 at 887 (1981) (affirmed on other grounds 456 US 694 (1982)); Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 892; Re Maxwell Communications Corporation plc (No 2) [1992] BCC 757 at 773. See also Hartley, "Comity and the Use of Antisuit Injunctions in International Litigation", (1987) 35 The American Journal of Comparative Law 487.
[74] 159 US 113 at 163-164 (1895).
[75] [1993] 1 SCR 897.
[76] [1993] 1 SCR 897 at 931. See also observations to the same or similar effect in Bank of Tokyo Ltd v Karoon [1987] AC 45 at 65; Metall und Rohstoff AG v ACLI Metals (London) Ltd [1984] 1 Lloyd's Rep 598 at 613-614; Allstate v ANZ Banking Group (No 1) (1996) 64 FCR 1 at 25.
[77] (1996) 185 CLR 571.
[78] (1996) 185 CLR 571 at 591.
[79] As to the significance of the law to be applied, see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538at 556, referring to what was said in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 266 per Gaudron J.
[80] It is not clear whether CSR America is amenable to the jurisdiction of the Supreme Court of New South Wales and, if not, whether it has submitted to it for any purpose other than to seek a stay of proceedings.
[81] Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247 per Deane J, whose test was subsequently adopted by the majority in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.