23 October 2018

High Court outmanoeuvres litigants seeking another bite at the cherry

This article was written by Travis Toemoe, Alexandra Swifte and Mitchell Cox.

Last Wednesday the High Court delivered a further decision concerning the overarching ability of Courts to manage the business before them in a timely, cost effective and efficient manner. The decision in UBS v Tyne [2018] HCA 45 is, in many ways, a continuation of the approach taken by the High Court in 2009 in Aon v ANU to modern case management.

Specifically, the High Court’s decision concerns the power to prevent tactical discontinuances and “jurisdiction shopping” through permanently staying proceedings as an abuse of process of the court. 


Scott Tyne, in his capacity as trustee of the Argot Trust, (the Trustee) commenced proceedings in the Federal Court of Australia (FCA) against UBS AG (UBS) in circumstances where the previous trustee of the Trust (an entity controlled by Mr Tyne) had previously commenced proceedings in the Supreme Court of New South Wales (NSWSC) alleging the same or substantially the same claims. 

The Trust had discontinued its NSWSC proceedings before they were determined. The NSWSC proceedings were continued by the remaining plaintiff (another Tyne entity) before being permanently stayed because the remaining plaintiff was seeking to re-litigate causes of action which in substance had previously been determined in the High Court of Singapore, and which had given rise to a res judicata estoppel.

The Trust then commenced new proceedings in the FCA in the Brisbane registry in essentially the same terms as the discontinued NSWSC proceedings. UBS applied to permanently stay the proceedings as an abuse of process. Greenwood J at first instance granted a permanent stay. 

Tyne appealed to the Full Court of the FCA which overturned the decision of Greenwood J. UBS appealed to the High Court and a majority allowed the appeal, overturning the Full Court decision and reinstating the decision of Greenwood J.

High Court reasoning

The High Court held that the primary judge was correct to stay the proceedings as an abuse of process because permitting the Trust’s claim to proceed would otherwise subject UBS to unjustifiable oppression.

The High Court found that the whole of the dispute in the FCA had been before the NSWSC. The core of UBS’ oppression was the vexation of being required to deal again with claims that should have been resolved in the earlier NSWSC proceedings. This is in addition to the oppression caused by the significant delay in the resolution of the dispute and increased costs that UBS was incurring.

The fact that the Trust had discontinued the NSWSC proceedings was not of itself determinative of UBS’ oppression. The conduct which amounted to an abuse of process consisted of the “tactical manoeuvring” by Mr Tyne. In this regard, the High Court did not accept Mr Tyne’s explanations for the Trust’s earlier discontinuance, finding instead that he had done so to obtain forensic advantage and with a view to pursuing the Trust’s claim in separate proceedings at a later stage if the remaining plaintiff was unsuccessful in the NSWSC proceedings. The High Court considered this conduct to be an abuse of process and contrary to the overarching duty imposed on parties to civil litigation in the NSWSC and the FCA to conduct proceedings as quickly, inexpensively and efficiently as possible.


The decision is a further deterrent to litigants seeking to take a second bite of the cherry and a reminder that courts will not indulge parties who engage in tactical manoeuvring that impedes the “just, quick and efficient” resolution of litigation. It also suggests that when agreeing to a discontinuance, a party should consider imposing conditions on the discontinuance (e.g. that similar proceedings not be commenced) to make it easier to avoid later having to defend the same allegations. The decision can be accessed here.

Note: Travis Toemoe and other members of KWM’s Sydney dispute resolute team acted for the successful appellant in this matter.

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