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.
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.
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 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" 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 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. 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 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, 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 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". 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 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. 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, 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.
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" 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, 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 from what was said by Lord Diplock in British Airways v Laker Airways:
"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.
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. 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". 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") 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.
The principle applicable to an injunction restraining the prosecution of the non-contractual counts was stated in Midland Bank v Laker Airways 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, 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  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, 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:
" 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 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.
Cigna Australia, relying on the letters of March and April 1992, is able to show a substantial prima facie case that the insurers are not liable under the relevant policies to indemnify CSR or CSR subsidiaries for their liability in respect of asbestos-related claims. That being so, Cigna Australia can base its objection to the prosecution of Counts I and II on either of two grounds. The first ground is that CSR bound itself by the letters not to sue, assert or enforce any liability under the relevant policies which would respond to asbestos-related claims. The second ground is that, although the CSR letters of March and April 1992 purported to acknowledge that CSR is not entitled to enforce such liability, it is now seeking to enforce that liability in the United States District Court, which is not the natural forum for determining the chief issues affecting contractual liability and is thus acting vexatiously and oppressively. On either basis Cigna Australia is entitled to an interlocutory injunction to restrain the prosecution of those Counts. The balance of convenience is strongly in favour of the grant of an interlocutory injunction until the Supreme Court of New South Wales determines finally whether CSR is contractually bound not to sue in the United States District Court to enforce the alleged contractual liability of the insurers. And, as Cigna Australia has shown that the natural forum for determining the chief issues relating to the insurers' contractual liability is the Supreme Court of New South Wales, no stay order should be made preventing the Supreme Court of New South Wales from determining the chief contractual issues. It is only on the determination of those issues that it can be known whether there were any and what damages suffered by CSR or any of its subsidiaries.
The loss in respect of which damages are claimed, or triple damages are claimed, in Counts III to VII are not stated in the Complaint but the loss can be inferred from the condition on which Counts III and IV depend, namely, the barring of "coverage" by the "Coerced Withdrawal Letter". Whether there was any loss and, if so, the quantum of the loss cannot be known until the effect of CSR's 1992 letters is determined. Although Counts III to VII are distinct from Counts I and II, they cannot be determined before the chief issues governing the contractual liability of the insurers are determined.
So far as the pleadings in both proceedings and the evidence adduced before Rolfe J show, the conduct of Cigna Australia, Cigna and INA upon which CSR and CSR America rely to found the claims under Counts III, IV, VI and VII occurred in Australia or in London and was apparently lawful at common law in the place and at the time when that conduct was engaged in or else was subject to the provisions of local competition law. The conduct alleged in Count V (misrepresentation) appears to be Australian conduct which, if any damage was caused thereby, was damage caused in Australia by inducing the writing of the March 1992 letter which barred coverage under the relevant policies. Leaving Count V to one side for the moment, in my opinion Cigna Australia has shown a strong prima facie case that it has an equity to restrain the prosecution of the proceedings in the United States District Court. And, as to Count V, the Supreme Court of New South Wales is the natural forum for determining the issues arising in relation to that Count and should proceed to do so if a cross-claim raising those issues is made in that Court and should proceed to do so if a cross-claim raising those issues is made in that Court.
In the light of this discussion, it can be seen that the commencement of proceedings in the United States District Court before the commencement of the proceedings in the Supreme Court of New South Wales is of little relevance either to the question whether the Supreme Court is a clearly inappropriate forum or to the question whether an interlocutory anti-suit injunction should issue. In Henry v Henry, where proceedings for dissolution of marriage were commenced in both Monaco and Australia, the existence of parallel proceedings necessarily established that one of them was, in the strict sense, vexatious and oppressive. As the Monegasque proceedings were on foot when the Australian proceedings commenced, that fact was a most material consideration in determining whether the Australian Court was a clearly inappropriate forum.
In the present case, although the Supreme Court of New South Wales is the natural forum for determining whether CSR was under a contractual liability in respect of asbestos-related claims or had bound itself, by agreement or estoppel, not to sue the insurers to assert or to enforce such a liability, CSR and CSR America's proceeding in the United States District Court seeks to assert and to enforce that alleged liability. CSR and CSR America commenced that proceeding without seeking to set aside any agreement not to sue or any estoppel against suing arising from the 1992 letters. Moreover, they commenced the proceeding without prior demand for indemnity in respect of the American claims, much less any qualification of the terms of the 1992 letters, and joined claims for damages and triple damages if the insurers should raise and prove that CSR had bound itself not to assert or enforce a claim for that indemnity.
In these circumstances, the commencement of proceedings in the United States District Court before the commencement of proceedings in the Supreme Court of New South Wales creates no preference in favour of the earlier forum. To the contrary, the absence of any prior demand and the addition of the claims for damages or triple damages if a defence based on the 1992 letters should be successfully raised stamps the earlier commencement of proceedings in the United States District Court as unjust and oppressive. The advantage which CSR and CSR America obtain by making the non-contractual claims in the United States District Court does not depend on a defendant's conduct that is pleaded to be unlawful in the place where it occurred (other than under Count V) but on conduct that the insurers were free to engage in in that place without incurring a risk of liability for damages save under local laws. In my view, the commencement and continuance of proceedings in the United States District Court was and is unjust and oppressive.
In Société Aerospatiale, Lord Goff of Chieveley delivering the opinion of the Privy Council, speaking of proceedings that are oppressive in the circumstances of the particular case, said:
"Their Lordships refer, in particular, to the fact that litigants may now be encouraged to proceed in foreign jurisdictions, having no connection with the subject matter of the dispute, which exercise an exceptionally broad jurisdiction and which offer such great inducements, in particular greatly enhanced, even punitive, damages, that they may tempt litigants to pursue their remedies there. In normal circumstances, application of the now very widely recognised principle of forum non conveniens should ensure that the foreign court will itself, where appropriate, decline to exercise its own jurisdiction, especially as the existence of any particular advantage to the plaintiff in that jurisdiction (eg availability of assets for execution within the jurisdiction) can usually be protected, if thought appropriate, by granting a stay upon terms. But a stay may not be granted; and if, in particular, the English court concludes that it is the natural forum for the adjudication of the relevant dispute, and that by proceeding in the foreign court the plaintiff is acting oppressively, the English court may, in the interests of justice, grant an injunction restraining the plaintiff from pursuing the proceedings in the foreign court. As Bowen LJ said in Peruvian Guano Co v Bockwoldt , the court will interfere when a party is acting under colour of asking for justice 'in a way which necessarily involves injustice' to others."
As it appears that American law would require the United States District Court to assert its jurisdiction under the Sherman Act in relation to conduct that occurs outside the United States and as that view is antithetical to the law of this country, it would be inappropriate to require the insurers first to apply to the United States District Court for an order that it hold itself to be a forum non conveniens. It was therefore appropriate for the Supreme Court to grant an interlocutory injunction directed to CSR and CSR America to prohibit the continued prosecution of the proceedings in America.
If this were a majority judgment, I would consider whether it is necessary to limit the injunction granted by Rolfe J to permit the making of applications to the United States District Court for the amendment of the Complaint or the extension of the allegations therein and whether it is necessary to make any further order to permit CSR and CSR America to apply to dissolve the injunction in the event of an amendment of the Complaint or an extension of the allegations therein to allege conduct occurring within the United States founding a claim for damages or triple damages. As this is a minority judgment, it is sufficient to say that I would dismiss the appeals against both the order granting the injunction and the order refusing a stay of the proceedings in the Supreme Court of New South Wales.
DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ
These appeals are brought from decisions and orders of the Court of Appeal of the Supreme Court of New South Wales dismissing applications by the appellants, CSR Limited ("CSR") and CSR America, Inc ("CSR America"), for leave to appeal from decisions and orders of Rolfe J. The first set of applications was for leave to appeal from anti-suit injunctions granted by his Honour restraining each of the appellants from taking further steps in proceedings which they had earlier commenced against the respondents to these appeals in the United States of America ("the US proceedings"). The second set of applications was for leave to appeal from his Honour's refusal to stay or adjourn the proceedings in which the injunctions were granted ("the NSW proceedings") on forum non conveniens grounds. In neither case did the Court of Appeal deliver detailed reasons for refusing leave to appeal. Accordingly, this judgment necessarily focuses on the reasons for decision of Rolfe J.
The NSW proceedings were brought by Cigna Insurance Australia Limited ("Cigna Australia"), Cigna Corporation Inc ("Cigna Corporation") and certain insurance companies (together referred to as "the plaintiffs") which, with Cigna Australia, insured CSR at various periods between 1978 to 1993. They were brought against CSR, CSR America and other companies which insured CSR over that period. Those other companies later became co-plaintiffs in the action and are now respondents to these appeals.
CSR is a company incorporated in Australia carrying on business in this and other countries. Its head office is in Sydney. CSR America is a company incorporated and carrying on business in the United States of America. It is a wholly owned subsidiary of CSR Investments Overseas Limited which, in turn, is a wholly owned subsidiary of CSR.
Cigna Corporation is a company incorporated and, apparently, carrying on business in the United States of America. There is nothing to indicate that it carries on business in this country. Either Cigna Corporation or a company related to it is the parent company of Cigna Australia, the first respondent to these appeals. Cigna Australia, formerly known as Insurance Company of North America (Australia) Limited, is an insurance company which is incorporated and carries on business in Australia.
The respondents set out in Schedule A to this judgment, other than Cigna Corporation, were, with Cigna Australia, lead insurers for CSR for various periods between 1978 and 1993. Cigna Australia or, until 1984, Insurance Company of North America (Australia) Limited, was a party to all lead policies issued in the relevant period, but its co-insurers changed from time to time. The General Insurance Company of Trieste and Venice and the respondents set out in Schedule B to this judgment are excess layer insurers who provided cover over and above that provided by the lead insurers.
Between 1948 and 1966 CSR acted as sales agent for its subsidiary, Midalco Pty Limited ("Midalco"), which was formerly known as Australian Blue Asbestos Pty Limited. Midalco mined and processed blue asbestos at Wittenoom in Western Australia. As Midalco's agent, CSR sold raw asbestos fibre to various companies in the United States, including Johns-Manville International, a manufacturer of asbestos products in New Jersey. CSR America was incorporated in 1981. It is said that it has not at any stage been involved in the sale or distribution of asbestos fibre either in the United States or elsewhere.
Claims have been made and proceedings brought in the United States against CSR and, in some cases, CSR America by persons who have suffered injury in consequence of the inhalation of asbestos fibres ("the American asbestos claims"). The materials indicate that more than 40,000 claims have been made, including claims arising out of or relating to the manufacturing operations of Johns-Manville International in New Jersey. Around 2,000 of the claims have been settled or have proceeded to verdict. CSR claims to have paid in excess of $20 million in settlement of these claims, of which $18 million is said to be referable to claims made with respect to asbestos processing in New Jersey or asbestos products manufactured in that State.
Asbestos claims have also been made against CSR in this country, both for personal injury and for property damage ("the Australian asbestos claims"). It appears from the materials that fewer claims have been made here than in the United States but that they have resulted in payments which, in total, greatly exceed the amount thus far paid in settlement of the American asbestos claims.
So far as is relevant, the policies pursuant to which CSR was insured between 1978 and 1993 are public risk and product liability policies. Generally speaking, they were issued in respect of CSR's operations worldwide. Except for one set of policies, they permit but do not require claims to be made and litigated in Australia unless CSR so requests. In the case of the remaining set of policies, there is a clause by which the insurers agree to submit to the jurisdiction of the courts of the United States if so requested by CSR. However, the insurers concerned assert that this is a mistake and are seeking rectification in the NSW proceedings.
Claims for indemnity
On 29 November 1991, CSR wrote to Cigna Australia and other insurers at risk at various times between 1979 and 1988 seeking indemnity from them in respect of the American asbestos claims and, also, the Australian asbestos claims (together referred to as "the 1991 claims"). Cigna Australia and the other insurers denied liability.
Apparently, there were negotiations between CSR and its insurers with respect to the 1991 claims until at least February 1992. On 20 February 1992, Ebsworth & Ebsworth Solicitors wrote to CSR "on behalf of CIGNA (including INA and Monarch) and CIGNA's co-insurers in various layers of [CSR's] insurance program between 1979 and 1988". They, Ebsworth & Ebsworth, informed CSR that the "[u]nderwriters [were] not prepared to grant indemnity to CSR or any relevant subsidiaries, importantly Midalco, in respect of the [asbestos] claims that [had] been paid ... or in respect of claims ... being defended or which [might] arise in the future." They also said that if CSR or its subsidiaries persisted in the 1991 claims, the underwriters would consider, amongst other things, whether "to avoid pre 1985 policies ab initio for non disclosure and/or misrepresentation".
On 12 March 1992, CSR replied to the letter from Ebsworth & Ebsworth stating that CSR had been informed that "CIGNA ... [would] not entertain a proposal for the renewal of the insurance program until a resolution of the asbestos issue [was] achieved". CSR claims that it was not able to arrange other insurance cover and that, in consequence, it wrote to Cigna Australia on 17 March 1992 in these terms:
"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."
It seems that, in consequence of that letter, Cigna Australia renewed CSR's insurance for 1992-1993, subject to certain agreed exclusions set out in a letter from CSR of 28 April 1992.
It is necessary to note one matter with respect to CSR's letter of 17 March, namely, that a fair reading of its last paragraph suggests that, whatever the position with respect to claims arising out of the operation of the Wittenoom mine or the sale of asbestos mined at Wittenoom, there was no agreement between CSR and its insurers with respect to claims "associated with the manufacture, processing, transportation, distribution, storage, handling and supply ... of any asbestos materials or products". If that is correct, it would seem to follow that the first paragraph does not constitute a promise not to renew claims of that kind. However, this is not something that calls for determination in these proceedings.
The US proceedings
In June 1995, the appellants filed a complaint against their insurers and, also, against Cigna Corporation in the United States District Court for the District of New Jersey. By that complaint, CSR and CSR America seek declarations that they are entitled to indemnity with respect to the American asbestos claims from CSR's insurers and, also, from Cigna Corporation, as the alter ego of Cigna Australia. It may be that the view was taken by CSR that the American asbestos claims are claims of the kind specified in paragraph 3 of its letter of 17 March which, as already indicated, appears to mark out an area in which no agreement was reached with its insurers. Whether or not that is so, no claim has been made in the US proceedings for indemnity with respect to the Australian asbestos claims.
In addition to its claim for indemnity, CSR, but not CSR America, seeks damages in the US proceedings against Cigna Corporation. It is pleaded in the complaint that if CSR's letter of 17 March 1992 operates, to any extent, to bar its claim for indemnity, Cigna Corporation is liable in damages for tortious interference with its, CSR's, contractual relations, for tortious interference with its prospective economic advantage and for misrepresentation. It is also pleaded that Cigna Corporation is liable for statutory damages for violation of SS 1 of the Sherman Act and for violation of NJ Stat Ann SS 56:9-3. Apparently, the latter Act is the State counterpart of the Sherman Act.
CSR founds its various claims for damages on allegations made in par 46 of the complaint in these terms:
" In the event CIGNA [Corporation] is not the alter ego of [Cigna Australia and Insurance Company of North America] ... CIGNA [Corporation], with the purpose of forcing CSR to withdraw [its] 1991 Claims, and as part of a scheme to limit coverage for asbestos claims in the United States, 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 [a number of other insurers] in refusing to provide such coverage unless the 1991 Claims were withdrawn."
The NSW proceedings
In response to the US proceedings, Cigna Australia, Cigna Corporation and a number of insurers who are respondents to these appeals commenced the present proceedings against CSR, CSR America and other insurance companies in the Supreme Court of New South Wales, Commercial Division. As already mentioned, the other insurance companies later became co-plaintiffs.
By their further amended summons, Cigna Australia and its co-plaintiffs, the respondents to these appeals, seek permanent anti-suit injunctions restraining CSR and CSR America from taking further steps in the US proceedings. Cigna Australia and its co-insurers also seek negative declarations to the effect that they are not liable to indemnify CSR or CSR America in respect of the 1991 claims. Cigna Corporation seeks a declaration that it did not issue any of the policies the subject of the NSW proceedings and is not liable to the appellants "in respect of any of the US Asbestos Claims whether under the policies or otherwise". All respondents seek a declaration to the effect that they were not involved in any conspiracy or unlawful conduct to force CSR to withdraw the 1991 claims. As well, they seek damages for false and misleading conduct allegedly constituted by CSR's letter of 17 March 1992. There are claims for other and ancillary relief.
When served with the initiating process, CSR and CSR America each filed notices of motion returnable on 21 July 1995 seeking orders staying or adjourning the NSW proceedings on forum non conveniens grounds. On the return date, Cigna Australia and its co-plaintiffs filed a notice of motion returnable on 26 July 1995 seeking interlocutory anti-suit injunctions restraining CSR and CSR America from taking any further step in the US proceedings. For reasons which are not at all clear, the application for interlocutory anti-suit injunctions was heard separately from and prior to any consideration of the stay applications. Interlocutory anti-suit injunctions were granted by Rolfe J on 15 August 1995.
The appellants' stay applications were not heard until 4 December 1995, apparently because of an intervening application by them to vary the terms of the interlocutory anti-suit injunctions and, also, because of their applications for leave to appeal from the decision granting those injunctions. The latter applications were stood over pending the outcome of the stay applications which were dismissed by Rolfe J on 20 February 1996.
CSR and CSR America separately applied to the Court of Appeal for leave to appeal from the order of Rolfe J dismissing their applications to stay or adjourn the NSW proceedings. The applications were heard on 18 March 1996 in conjunction with their earlier applications for leave to appeal from the decision granting interlocutory anti-suit injunctions. Without giving reasons beyond those which were said to have been made apparent in the course of argument, the Court of Appeal dismissed both sets of applications. CSR and CSR America now appeal to this Court.
Differences between the US proceedings and the NSW proceedings
There are two distinct differences between the US proceedings and the NSW proceedings. First, the US proceedings are concerned solely with the American asbestos claims. On the other hand and notwithstanding that, since its letter of 17 March 1992, CSR has apparently not sought indemnity with respect to the Australian asbestos claims, the NSW proceedings relate to those claims as well as the American claims.
The second point of difference concerns CSR's claim for statutory damages under the Sherman Act. Although it seems that CSR could not itself have brought proceedings in New South Wales against Cigna Corporation, it also seems likely that it can now cross-claim against it in the NSW proceedings for damages of the kind it seeks in the US proceedings for interference with its contractual relations and for misrepresentation. However, these appeals have been conducted on the basis that, even if CSR can otherwise pursue its claim for damages against Cigna Corporation in the NSW proceedings, it cannot pursue its claim under the Sherman Act. It would seem that an action for damages under that Act would fail the first limb of the test laid down in Phillips v Eyre and, thus, not be actionable in this country. The point, at least in part, turns upon the application of the phrase "the wrong must be of such a character" in the first limb to "statutory torts" which have no precise counterpart in the lex fori.
The decisions at first instance
The application for anti-suit injunctions was made on several grounds, only two of which remain relevant. The main contention, and the one on which the respondents primarily relied in this Court, was that CSR's letter of 17 March 1992 and its subsequent letter of 28 April 1992 evidence or constitute a promise not to renew the 1991 claims, including the American asbestos claims, and, thus, evidence or constitute a promise not to bring any action for indemnity with respect to those claims. However, that does not seem to be an argument which can be raised by Cigna Corporation or raised against CSR America, they apparently not having been parties to the transaction effected or evidenced by those letters.
The second contention which was relied upon before Rolfe J and which remains relevant is that the US proceedings are vexatious and oppressive, in the sense that their institution was contrary to equity and good conscience.
Rolfe J proceeded to determine the application for interlocutory anti-suit injunctions on the basis generally applicable to interlocutory injunctions. His Honour held that there was a serious question to be tried as to whether CSR had contracted not to bring proceedings for indemnity in respect of the 1991 claims and, also, as to whether, by bringing the US proceedings, the appellants were "acting vexatiously and oppressively such as to constitute unconscionable conduct". His Honour further held that the balance of convenience favoured the grant of interlocutory anti-suit injunctions pending a final hearing and determination of those issues.
The appellants' stay applications were dismissed on the basis that they, the appellants, had not satisfied the test laid down by this Court in Voth v Manildra Flour Mills Pty Ltd. More particularly, they were dismissed because it was held that they had not established that New South Wales is a clearly inappropriate forum for the determination of the issues involved.
Arguments in the Appeals
The appellants' primary argument in relation to the interlocutory anti-suit injunctions is that, either by reason of a general rule to that effect or by reason of the particular circumstances of this case, the injunctions should not have been granted without the respondents having first made an application for a stay of the US proceedings. The respondents contend that there is no rule to that effect. They also contend that there is nothing in the circumstances of this case which requires that course. Further, they claim that that course was not urged at first instance. On that last account, they argue that, to the extent that these appeals are concerned with the anti-suit injunctions, special leave to appeal should be revoked. A consideration of the written and oral submissions of the appellants before Rolfe J and the Court of Appeal suggests that the point was taken. However, and as will later appear, it is not necessary to decide whether, in fact, it was.
In addition to their primary argument, the appellants contend and the respondents deny that Rolfe J adopted a wrong approach to the grant of the interlocutory anti-suit injunctions. In this regard, the appellants argue that his Honour should not have followed the course generally applicable to interlocutory injunctions but should have first considered whether to stay the NSW proceedings on forum non conveniens grounds.
So far as the stay applications are concerned, the appellants contend that the Voth test was incorrectly applied. In particular, they argue that Rolfe J failed to have proper regard to the fact that proceedings were on foot in the United States as required by the decision in Henry v Henry, a decision delivered by this Court some two months after the stay applications were dismissed and almost a month after the appellants' applications for leave to appeal were dismissed by the Court of Appeal. On the other hand, the respondents contend that, even when due regard is had to the fact that proceedings are pending in the United States, the Supreme Court of New South Wales is not a clearly inappropriate forum.
Non-revocation of special leave
It is convenient at this stage to deal with the respondents' application for the revocation of special leave to appeal.
The proper approach to the resolution of jurisdictional conflict between Australian and foreign courts is a matter of considerable importance. Moreover, and as noted by the Privy Council in Société Nationale Industrielle Aerospatiale v Lee Kui Jak, the potential for jurisdictional conflict has increased significantly in recent years. Given these considerations and given, also, the absence of any reasoned judgment from the Court of Appeal, it is appropriate that the various questions of law raised in these appeals be fully considered whether or not they were raised before Rolfe J. Thus, in our view, special leave should not be revoked.
Principles governing stay of proceedings on forum non conveniens grounds and the grant of anti-suit injunctions
The question whether a dispute as to legal rights should be litigated in the courts of one country or those of another is one that permits of resolution, if resolution is possible, by one court staying its proceedings in favour of the other or by it granting an anti-suit injunction restraining a person amenable to its jurisdiction from commencing or continuing proceedings in that other country. The phrase "anti-suit injunction" is now in common use and, at least in some instances, resembles an injunction granted to protect the legal or equitable rights of the plaintiff or a common injunction to protect the processes of the Chancery Court against interference by the processes of other courts. However, it should be borne in mind that the term "injunction" in the parlance of equity has no fixed definition and that it is legal usage which decides which court orders are to be identified as injunctions.
Because stay orders and anti-suit injunctions are the remedies by which actual or potential conflict is resolved, there has been a tendency, at least in the United Kingdom, to view both measures as governed by the same legal principles. That tendency has now been corrected, it having been pointed out by the Privy Council in Société Aerospatiale that the principles are not the same.
Although stay orders and anti-suit injunctions are not governed by the same principles, it will later become apparent that, in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings. And it will also become apparent that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed.
The test which, in this country, governs a stay of proceedings in favour of proceedings in another country is as stated in Voth v Manildra Flour Mills Pty Ltd. In that case, this Court declined to adopt the more appropriate forum test laid down by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd and accepted, instead, the test propounded by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay, namely, that a stay is only to be granted if the Australian court is a clearly inappropriate forum.
It was pointed out in the joint majority judgment in Voth that it was common ground in the judgments of the majority in the earlier case of Oceanic Sun that "the traditional power to stay proceedings ... on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice ... in the particular case".
It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words "oppressive", "vexatious" and "abuse of process" in Voth, in Oceanic Sun and in the earlier cases considered in Oceanic Sun, including St Pierre v South American Stores (Gath & Chaves) Ltd, that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice.
The counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if "an estate is being administered ... or a petition in bankruptcy has been presented ... or winding up proceedings have been commenced ... an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets". Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v The Sentry Corporation, a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.
The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes.
Quite apart from the inherent power of a court to protect its own processes, a court may, in the exercise of the power deriving from the Chancery Court, make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights. If the bringing of legal proceedings involves unconscionable conduct or the unconscientious exercise of a legal right, an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings no matter where they are brought.
In some cases, the equitable jurisdiction to restrain unconscionable conduct may be exercised in aid of legal rights. Thus, as the respondents correctly contend, if there is a contract not to sue, an injunction may be granted to restrain proceedings brought in breach of that contract, whether brought here or abroad. Similarly, an injunction may be granted in aid of a promise not to sue in a foreign jurisdiction constituted, for example, by an agreement to submit to the exclusive jurisdiction of the courts of the forum.
One well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive. Thus, it was said in Carron Iron Company v Maclaren that "[w]here [there is] ... pending a litigation here, in which complete relief may be had, [and] a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings."
In Société Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Company v Bockwoldt, have continuing significance for the grant of anti-suit injunctions. Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes that "double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]" does not amount to vexation or oppression.
More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that 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. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Company, if "complete relief" is available in the local proceedings.
Given that, in England, the power to grant injunctions has for many years been conferred by statute, it is not surprising that the cases decided in that country in recent years do not make a clear distinction between injunctions granted in exercise of the inherent power and those granted in the exercise of equitable jurisdiction. However, the older cases referred to in Société Aerospatiale make it abundantly clear that the power to stay foreign proceedings which are vexatious or oppressive, in the sense already described, is a power which derives from equity.
Because the power to grant injunctions in respect of foreign proceedings which are vexatious or oppressive, in the sense described, derives from equity, it is not to be confined to the examples found in the decided cases. Rather, it is a power the limits of which are determined by the dictates of equity and good conscience. Thus, for example, it may be that the bringing of proceedings with respect to one claim is properly to be seen, in the circumstances of the case, as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct such that it would be unconscionable for that other claim to be pursued or for proceedings to be commenced in another jurisdiction. In cases of that kind an injunction may issue in restraint of the subsequent proceedings.
It may be that some of the older cases concerned with vexation and oppression, in the sense in which those terms are understood in equity, are properly to be understood as grounded in principles of estoppel. Whether or not that is so, the equitable power to grant injunctions in restraint of litigation exists to serve equity and good conscience. It is not a power which involves a determination that proceedings instituted in a foreign court are vexatious or oppressive in the sense that they are an abuse of that court's processes or, even, in the sense that they should be stayed by the foreign court on forum non conveniens grounds.
The US proceedings are not vexatious or oppressive according to the principles of equity
It is to be remembered that CSR and CSR America have instituted but one set of proceedings, namely, the US proceedings. Neither principle nor authority supports the view that the institution of foreign proceedings is, of itself, vexation or oppression according to the principles of equity. Similarly, neither principle nor authority supports the view that foreign proceedings become vexatious or oppressive in accordance with those principles in the event that the party against whom they are brought later commences proceedings with respect to the same subject-matter in this country.
Moreover, the fact that CSR seeks treble damages under the Sherman Act in the US proceedings - relief which is not available in the NSW proceedings or, at least, not shown to be available in those proceedings - is sufficient to take the US proceedings outside that category of case in which the co-existence of foreign proceedings is properly to be viewed as vexation or oppression for the purposes of equity.
It follows that there is no proper basis for viewing the US proceedings as vexatious or oppressive, in the sense that those terms are used in the equitable jurisdiction, and that Rolfe J erred in holding that, on that issue, there was a serious question to be tried. If the interlocutory anti-suit injunctions are to stand, it can only be by reference to the respondents' contention that CSR's letters of 17 March and 28 April 1992 constitute or evidence an agreement not to sue in respect of the American asbestos claims. However, the terms of the third paragraph of CSR's letter of 17 March do not indicate that that is clearly so. And as already pointed out, it seems that neither CSR America nor Cigna Corporation are parties to that agreement.
Practice with respect to interlocutory anti-suit injunctions
The cases concerned with injunctions in restraint of proceedings in foreign courts recognise that, although an injunction of that kind operates in personam, it nevertheless interferes with the processes of the foreign court and may well be perceived as a breach of comity by that court. Comity, relevantly, was explained by the Supreme Court of the United States in Hilton v Guyot in the following terms:
"'Comity', in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws."
For this reason, the cases also emphasise that the power to grant injunctions in restraint of foreign proceedings should be exercised with caution. And that is so whether the injunction is sought in the exercise of the inherent or equitable jurisdiction.
The appellants argue that, in the case of interlocutory anti-suit injunctions, caution is not enough. Instead, they contend that, as a general rule, an interlocutory anti-suit injunction should not be granted unless the applicant has moved for a stay or dismissal of the foreign proceedings. Their argument is based on the observation in Amchem Products Inc v British Columbia (WCB) that "[i]n order to resort to [the] special remedy [of an interlocutory anti-suit injunction] consonant with the principles of comity, it is preferable that the decision of the foreign court not be pre-empted until a proceeding has been launched in that court and the applicant for an injunction in the domestic court has sought from the foreign court a stay or other termination of the foreign proceedings and failed." It should be noted that this was said by the Supreme Court of Canada in a context in which the defendants to an action commenced in Texas had sought unsuccessfully a stay from the Texas court on the grounds of forum non conveniens and then sought, as plaintiffs, an anti-suit injunction from the British Columbia court. There appears to have been no pending proceeding brought by the defendants in British Columbia for a negative declaration. The framework of that litigation thus differs from that in the present case.
The different circumstances in which interlocutory injunctions may be granted in restraint of proceedings in a foreign court are such that they do not permit of a general rule of the kind for which the appellants contend. The proposed rule serves no purpose in cases where an injunction is sought to protect the integrity of the proceedings or the processes of the court concerned. Nor does it serve any purpose where foreign proceedings clearly constitute conduct entitling the applicant to equitable relief; for example, where the proceedings are a clear breach of contract.
There may be cases - for example, cases based on contentious or novel claims of unconscionable conduct - in which it is appropriate or desirable that an anti-suit injunction not be granted until an application has been made for a stay or dismissal of the foreign proceedings. However, that course is neither appropriate nor desirable if the application can be determined without that step being taken. And for reasons shortly to be stated, that step need not be taken with respect to the US proceedings in this case.
Relationship between interlocutory anti-suit injunctions and stay applications
It will generally be the case that, where an anti-suit injunction is sought in the exercise of equitable jurisdiction, the matters relied upon for the grant of the injunction will or can be raised as issues for determination in the foreign proceedings in respect of which the injunction is sought. Because that is so, an interlocutory anti-suit injunction is vastly different from other forms of interlocutory relief.
Ordinarily, an interlocutory injunction preserves the subject-matter of a proceeding pending its final adjudication. Where, however, the issue is whether a matter should be litigated in the courts of one country or of another and application is made for an interlocutory anti-suit injunction by reference to considerations which will or may fall for determination in proceedings in that other country, the injunction, if granted, operates with the consequence that the matter in question is heard and determined in the court granting the injunction. Certainly that is so with respect to that aspect of the matter advanced in support of the injunction. Thus, an interlocutory anti-suit injunction is effectively a final determination as to where the matter or some particular aspect of it is to be litigated.
In a case in which an anti-suit injunction is sought on equitable grounds, the central question is whether the court to which application is made or some other court should hear and determine the matter in issue or, at least, that aspect of it involved in the application for injunction. And where the courts concerned are, respectively, an Australian court and a court of another country, there is involved in that question the further question whether the Australian court is an appropriate forum, in the Voth sense of it not being clearly inappropriate, for the determination of that matter. The fact that there is that further question, the preclusive nature of an interlocutory anti-suit injunction and the importance of comity combine to require an Australian court to consider whether it is appropriate, in the sense that it is not clearly inappropriate, for it to determine the matter in issue before granting an anti-suit injunction.
If the Australian court decides that it is clearly an inappropriate forum, that will be the end of its involvement and the occasion for considering whether to grant an anti-suit injunction or other relief will not arise. If the Australian court reaches the opposite conclusion, namely, that it is not a clearly inappropriate forum, then it must go on to determine whether to require the applicant to seek a stay or dismissal of the foreign proceedings or to grant an anti-suit injunction. As we have indicated, this sequence was not followed by the Supreme Court in the present litigation.
It is theoretically possible that there will be cases in which the matter urged in support of the grant of an anti-suit injunction in the exercise of equitable jurisdiction cannot be raised in the foreign proceedings in respect of which the injunction is sought. Should a case of that kind occur, it would be our view that comity requires that, even in a case of that kind, an Australian court consider whether it is an appropriate forum for the resolution of the matter urged in support of the injunction before making interlocutory orders.
As already indicated, the considerations to which reference has been made, namely, comity and the preclusive effect of an interlocutory anti-suit injunction, require that an injunction not be granted by an Australian court in the exercise of equitable jurisdiction if it is a clearly inappropriate forum. If it is not a clearly inappropriate forum, it may be expedient to require the applicant to seek a stay or dismissal of the foreign proceedings. However, if that step is not considered expedient or desirable or if it is taken without success, the court must proceed in accordance with the practice which ordinarily applies with respect to interlocutory relief. In other words, it must then determine whether there is a serious issue to be tried and, if so, whether the balance of convenience favours the grant of an interlocutory injunction.
In cases where anti-suit injunctions are sought to protect the proceedings or processes of a court, no question arises whether that court is an appropriate forum for the resolution of that issue: it is the only court with any interest in the matter. Subject to that consideration, the appellants are correct in their contention that, before granting an interlocutory anti-suit injunction, an Australian court should consider whether it is an appropriate forum, in the Voth sense, for the resolution of the matter in issue or, if there be a difference, the matter advanced in support of the injunction.
Course to be adopted with respect to the Appeals
A reading of the transcript of argument in the Court of Appeal suggests that that Court may not have appreciated the final or preclusive nature of an interlocutory anti-suit injunction. Whether or not that is so, the importance of the issues involved and the fact that, as Rolfe J was exercising equitable jurisdiction, he should have considered whether New South Wales was a clearly inappropriate forum before granting anti-suit injunctions dictate the conclusion that the Court of Appeal should have granted leave to appeal with respect to the decision and orders granting the injunctions.
Ordinarily, the conclusion that the Court of Appeal should have granted leave to appeal with respect to the anti-suit injunctions would result in the appeals being allowed and the matter being remitted to the Supreme Court for it to consider whether New South Wales is an appropriate forum. However, that is the precise question raised with respect to the stay applications and, thus, must be determined by this Court. And for reasons soon to be stated, it is convenient for this Court to consider not merely whether Rolfe J erred in his approach to that question but, also, whether the NSW proceedings should now be stayed.
Forum non conveniens considerations when there are proceedings pending here and abroad
It was held by this Court in Henry v Henry that, where proceedings are pending both in an Australian court and in a court of another country, it is necessary for the Australian court to have regard to the existence of the foreign proceedings in determining whether to stay its own proceedings on forum non conveniens grounds. In reaching that conclusion, the majority pointed out that, although it is not necessarily vexatious or oppressive to bring proceedings in different countries, "the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such ... that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words".
The situation involved in the present case is not precisely the same as that considered in Henry v Henry. In that case, the parties were identical and the same subject-matter, namely, the parties' marital relationship, was involved in both proceedings. There is not the same correspondence of subject-matter in this case. As already indicated, the NSW proceedings, but not the US proceedings, extend to the Australian asbestos claims as well as the American asbestos claims. More importantly, the US proceedings, but not the NSW proceedings, involve claims for damages against Cigna Corporation. And the parties accept that one of those claims, namely, the claim for statutory treble damages under the Sherman Act, cannot be pursued in the NSW proceedings.
If the question whether New South Wales is a clearly inappropriate forum were to be answered solely by reference to the issues involved in the NSW proceedings, there would be strong considerations pointing in favour of the view that it is not. In the first place, it would seem that the questions whether CSR's letters of 17 March and 28 April 1992 constitute or evidence an agreement not to sue in respect of the 1991 claims and, if not, whether CSR is entitled to indemnity under the policies issued by the respondents are governed by Australian law. In this regard, it is sufficient to note that the letters were sent and received and the relevant insurance policies issued in Australia without, in either case, any stipulation that the resulting relationship was to be governed by the law of any other place. Moreover, the main protagonists, CSR and Cigna Australia, are Australian companies which carry on business in this country and all the other parties, save perhaps CSR America, are amenable to or have submitted to the jurisdiction of the Supreme Court of New South Wales. In these circumstances, little, if any, significance would attach to the fact that the insurance policies were issued for CSR's operations worldwide, that some of the lead and excess layer insurers carry on business in other countries and that there is a question as to the respondents' liability with respect to the American asbestos claims.
Notwithstanding that they involve issues as to CSR's entitlement to indemnity which, presumably, will be determined in accordance with Australian law, the US proceedings are in a quite different position. They involve the further issue whether Cigna Corporation is liable for breach of the Sherman Act. Given that it is apparently common ground that that claim cannot be pursued in New South Wales, it can readily be said that New South Wales is a clearly inappropriate forum for the litigation of the issues raised in the US proceedings.
The respondents argued that too much attention should not be paid to the availability of treble damages under the Sherman Act. Their contention was that any claim under that Act depended upon the existence of a contract, induced by coercion or duress, and that relief in such circumstances was available in Australia under the Trade Practices Act 1974 (Cth) and by actions for economic torts. Even if they are correct in this contention, the proceedings brought in the United States District Court, in addition to alleging torts of an economic nature, rely expressly upon SS 1 of the Sherman Act and seek the "statutory damages" available under that Act. That entitlement is not available in this country.
Nature of the test when issues are not the same
In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are "productive of serious and unjustified trouble and harassment" or "seriously and unfairly burdensome, prejudicial or damaging".
At first instance, Rolfe J gave little, if any, weight to the fact that the US proceedings involve an issue which, apparently, cannot be litigated in New South Wales. Moreover, his Honour appears only to have considered whether New South Wales is an appropriate forum for the litigation of the issues involved in the NSW proceedings and not whether, having regard to the controversy as a whole, the NSW proceedings are vexatious or oppressive, in the Voth sense of those terms. In these respects, his Honour was in error.
Given the errors to which reference has just been made and given, also, the importance of the issues involved, the Court of Appeal erred in refusing leave to appeal with respect to the stay applications. That conclusion is sufficient to dispose of these appeals. However, as the cases which have been decided in this country with respect to forum non conveniens have not been concerned with circumstances of the kind involved in these appeals, it is preferable that the question whether the NSW proceedings should now be stayed be decided by this Court and not remitted to the Supreme Court of New South Wales.
The NSW proceedings are oppressive
There can be no doubt that the central purpose of the respondents in instituting the NSW proceedings was to prevent the continuation of the US proceedings. Those proceedings, so far as appears from the materials before this Court, were regularly instituted by the appellants in pursuit of remedies available to them under the law of the United States, not all of which could or can be pursued in New South Wales. In particular, it would seem that CSR could not pursue any remedy against Cigna Corporation in New South Wales unless it submitted to the jurisdiction, which only occurred on the commencement of the NSW proceedings. And as has already been pointed out, these appeals have been conducted on the basis that, even though Cigna Corporation has now submitted to the jurisdiction of the Supreme Court of New South Wales, CSR cannot pursue its claim for statutory damages under the Sherman Act in the NSW proceedings.
Proceedings which are brought for the dominant purpose of preventing another party from pursuing remedies available in the courts of another country and not available in this country are "seriously and unfairly ... prejudicial [and] damaging". They are, thus, oppressive in the Voth sense of that word.
It was suggested in argument that the purpose of Cigna Australia and its co-insurers in bringing the NSW proceedings was to secure a negative declaration to the effect that they are not liable to indemnify the appellants in respect of the Australian asbestos claims. However, given that there is nothing to suggest that CSR maintains that it is entitled to be indemnified in respect of those claims and given, also, that the terms of its letter of 17 March 1992 suggest that those claims may stand in a somewhat different position from the American asbestos claims, the claim for a negative declaration has the appearance of one brought in the hope of concealing that the dominant purpose of the NSW proceedings is to prevent CSR from pursuing its claim for statutory damages for breach of the Sherman Act in the US proceedings.
Even if the claim for a negative declaration in respect of the Australian asbestos claims is a claim in respect of a matter genuinely in dispute, it is not, in our view, a matter which is or can be decisive in this case. The claim that Cigna Australia and its co-insurers are not liable to indemnify CSR in respect of the Australian asbestos claims is but an aspect of a larger controversy in which CSR claims that it is entitled to a remedy in the US proceedings which is not available to it here. Conversely, there is nothing to suggest that the relief which the respondents seek in the NSW proceedings, including a declaration that Cigna Australia and its co-insurers are not liable to indemnify CSR in respect of the Australian asbestos claims, is not available to them by way of cross-claim in the US proceedings. In these circumstances, to allow the fact that a negative declaration is sought in the NSW proceedings with respect to the Australian asbestos claims to have a decisive influence would, in colloquial terms, be to allow the tail to wag the dog.
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.
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.
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.
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.