Queensland Judgments


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Mackellar Mining Equipment Pty Ltd & Ors v Thornton & Ors

Unreported Citation: [2018] QSC 186

This case involved an application for an ‘anti-suit injunction’ to restrain the respondents from continuing proceedings in Missouri (in the United States), which were instituted in 2008. The proceedings arose out of a plane crash in North Queensland. It was argued that continuing the proceedings in Missouri was oppressive and vexatious as it was an inappropriate forum. However, in dismissing the application, Lyons SJA noted that the test for an anti-suit injunction required there to be no advantage in pursuing the foreign proceeding – but Missouri offered the potential benefits of a jury trial, no risk of an award of costs, and more generous damages. Further, the significant delay in bringing this application also justified its dismissal.

Lyons SJA

23 August 2018


In 2005 an aircraft operated by Transair crashed on approach to Lockhart River aerodrome in North Queensland, tragically killing all 15 people on board. In 2008, the 61 respondents to this application, who are all relatives of the deceased persons, commenced proceedings in Missouri (in the United States) against the applicants and a number of US corporations. [1].

The applicants owned the aircraft and were representative of the estate of the former Manager of Transair. [9], [47]. In the Missouri proceedings, it was alleged that they owed a duty of care to the respondents, which was breached by their failing to discover (or if they knew, to correct) a number of alleged defects of the aircraft. [26]. The US corporations were no longer involved in the Missouri proceedings. [2].

In this application, the applicants sought an ‘anti-suit injunction’ requiring the respondents to have their claims in Missouri dismissed or terminated. [3]. The key argument was that the Missouri proceedings were vexatious or oppressive because they were in a clearly inappropriate forum. The applicants emphasised that all the current parties are Australian based, and argued that Queensland law will apply in the Missouri proceedings. [3], [106].

Requirements for an anti-suit injunction

Lyons SJA noted that the relevant principles are set out by the leading decision of CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345. In that case the High Court indicated that an anti-suit injunction may be granted where proceedings in another court, including a foreign court, are vexatious or oppressive. However, “the mere co-existence of proceedings in different countries does not constitute vexation or oppression”. Instead (at [100]):

“foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings.”

Finally, the power should be exercised with caution, particularly since it may operate to interfere with the processes of a foreign court, and may therefore “be perceived as a breach of comity”. [101].

Choice of law

The applicants argued that “all factors of relevance point to Queensland as the clearly appropriate forum”. [106]. In developing this argument, it was contended that nothing could be gained by the Missouri proceedings over and above what could be gained in local proceedings, because choice of law principles would require the Missouri Court to apply Queensland law. [106].

Her Honour considered the expert evidence of a US Professor of Law, who reported that, in Missouri, the rights and liabilities of the parties in respect of an issue of tort are to be determined by the local law of the state which has ‘the most significant relationship’ to the occurrence. [69]. Two decisive factors are the place of the injury and the place of the relevant conduct. [85]. In this case Queensland was the place of both of those factors, as well as the place of domicil of almost all of the parties. [86]. The only connection to Missouri was the storage and inspection of the aircraft there prior to sale. [68]. In the Professor’s view, in determining the substantive issue of liability, the Missouri court would likely apply Queensland law. [69], [76].

However, with respect to procedural issues, the same test does not apply – instead, the Professor reported that the laws of Missouri would likely apply. [77]. Significantly, that would mean that the trial “would very likely be a jury trial”. [78].  Additionally, in Missouri damages are determined by the jury. It was unclear whether this was a matter of substantive or procedural law, but Lyons SJA relevantly concluded that it was “certainly arguable” that the Missouri law on damages would be applied, which includes heads of damage not compensable in Queensland. [120]. Finally, in Missouri there are no orders for costs. Accordingly, “[i]f the plaintiff was unsuccessful in Missouri, they would not have to pay the other side’s attorney’s fees”. [98].

In conclusion, there was no exact correspondence between what could be gained in local as compared to foreign proceedings. There was an advantage that could be gained in the Missouri proceedings. Accordingly, the test set out in CSR Limited v Cigna Insurance (discussed above) was not satisfied. [120]-[121], [124].

Discretionary considerations

Lyons SJA also concluded that delay was a “significant factor” justifying refusal of the application. [125], [136]. Her Honour considered that the appropriate time for this application to have been brought was in 2010, after a forum non conveniens application had been refused in Missouri (and upheld on appeal). [134]. Also, in December 2017 the Missouri court, of its own motion, listed the matter for a three-week trial, scheduled to begin in July 2019. [37]. Her Honour said she was led to the inference that “this application was instituted for the dominant purpose of preventing the decade long Missouri proceedings from proceeding to a conclusion, just at the point it had entered its final phase.” [122].

Further, the delay was prejudicial to the respondents, who had expended considerable time and resources in the litigation. [130].

Accordingly, the application was dismissed. [137].

W Isdale