The Federal Court of Australia (Moshinsky J) has recently handed down two important decisions on conflict of laws in the multi-billion dollar Greensill litigation.
In Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited [2024] FCA 1193 Moshinsky J considered an ex parte application brought by Greensill Bank AG (GBAG) for an anti-anti suit injunction, in circumstances where the English High Court had already granted an anti-suit injunction against GBAG in favour of one entity (Marsh Limited) but had declined to make an order in favour of another entity (Marsh Pty Ltd). At [36]-[43], Moshinsky J summarised the principles relevant to the grant of an anti-anti suit injunction. In light of considerations of comity, Moshinsky J declined to grant relief against Marsh Limited: [54]-[59]. However, His Honour found the same considerations did not apply in relation to Marsh Pty Ltd and, accordingly, granted an anti-anti suit injunction against it: see [60].
In Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited (No 2) [2024] FCA 1308, Moshinsky J considered an application by GBAG for a declaration that, in bringing the anti-suit application in the English Court, Marsh Limited and Marsh Pty Ltd breached the Hearne v Street obligation (also known as the Harman undertaking) owed to the Federal Court of Australia. Specifically, His Honour was required to consider: (1) whether the use of documents to prepare for and support an anti-suit application was a collateral purpose to the purpose for which documents were disclosed, (2) whether the duty of ex parte disclosure owed to a foreign court was a “curial process” to which the Harman undertaking yielded, and (3) whether a retrospective release should be granted for the use of the documents. His Honour again found in favour of GBAG, making the declaration sought, and declining to grant a retrospective release. His Honour also observed that the declaration amounted to a contempt of court.
Vanessa Whittaker SC, Christopher Mitchell, and Hannah Robinson appeared for GBAG in both applications. They were instructed by Michelle Fox of Quinn Emanuel. Cameron Moore SC appeared for Marsh.
