Federal Court of Australia

Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited [2024] FCA 1193

ORDERS

THE COURT NOTES THAT:

A.    The following ten proceedings (together, the Greensill Proceedings) are being case managed together:

i.    White Oak Commercial Finance Europe (Non-Levered) Limited v Insurance Australia Limited (NSD 1039 of 2021) (White Oak Matter);

ii.    Credit Suisse Virtuoso SICAV-SIF in respect of the sub-fund Credit Suisse (Lux) Supply Chain Finance Fund v Insurance Australia Limited (NSD 106 of 2022) (Catfoss Matter);

iii.    Credit Suisse Virtuoso SICAV-SIF in respect of the sub-fund Credit Suisse (Lux) Supply Chain Finance Fund v Insurance Australia Limited (NSD 110 of 2022) (NMC Matter);

iv.    Credit Suisse Virtuoso SICAV-SIF in respect of the sub-fund Credit Suisse (Lux) Supply Chain Finance Fund v Insurance Australia Limited (NSD 169 of 2023) (Credit Suisse Global Matter);

v.    Greensill Bank AG v Insurance Australia Limited (NSD 1216 of 2021) (EHG Matter);

vi.    Greensill Bank AG v Insurance Australia Limited (NSD 173 of 2023) (Atlantic 57 Matter);

vii.    Greensill Bank AG v Insurance Australia Limited (NSD 174 of 2023) (Bluestone Matter);

viii.    Greensill Bank AG v Insurance Australia Limited (NSD 175 of 2023) (Liberty Commodities Matter);

ix.    Greensill Bank AG v Insurance Australia Limited (NSD 177 of 2023) (SIMEC Matter); and

x.    Greensill Bank AG v Insurance Australia Limited (NSD 602 of 2023) (Liberty Delta Matter).

B.    Greensill Bank AG gives the usual undertaking as to damages.

THE COURT ORDERS THAT:

1.    Greensill Bank AG (GBAG) and Dr Frege have leave to file the interlocutory application dated 3 October 2024, the affidavit of Michelle Fox affirmed 3 October 2024 and the affidavit of Michelle Fox affirmed 9 October 2024 in Court (subject to paragraph 11 below).

2.    The application for interim orders be returnable instanter.

3.    Marsh Pty Ltd is joined to these proceedings (NSD 106 of 2022) for the purpose of responding to relief sought in the interlocutory application.

4.    Until 5.00 pm (AEDT) on 18 October 2024, or further order of the Court, Marsh Pty Ltd be restrained from taking any steps to initiate or bring or renew any claim against GBAG and/or Dr Frege in England and Wales for anti-suit relief in relation to the Greensill Proceedings in this Court.

5.    For the purposes of hearing the interim relief application, pursuant to Rule 17.04 of the Federal Court Rules 2011 (Rules), the Court dispenses with the requirement for service as specified in Rule 17.01(2) of the Rules.

6.    Subject to paragraph 11 below, GBAG and Dr Frege are to serve on Marsh Limited a copy of these orders, the interlocutory application and material relied upon at the ex parte hearing by 9.00 pm on 11 October 2024.

7.    Pursuant to Rule 10.48 of the Rules, documents referred to in paragraph 6 above be deemed to have been served on Marsh Limited upon sending a copy of the documents to Marsh Limited’s legal representatives in the Greensill Proceedings, by email to “Richard.jowett@hfw.com”.

8.    Subject to paragraph 11 below, pursuant to Rule 17.03(b) of the Rules, GBAG and Dr Frege are to serve on Marsh Pty Ltd a copy of these orders, the interlocutory application and material relied upon at the ex parte hearing by 9.00 pm on 11 October 2024.

9.    Pursuant to Rule 10.23 of the Rules, documents referred to in paragraph 8 above be deemed to have been served on Marsh Pty Ltd upon sending a copy of the documents to Marsh Pty Ltd’s legal representatives in the Anti-Suit Application by email to “christopher.foster@hfw.com” and “richard.jowett@hfw.com”.

10.    The matter be listed at 9.30 am on 18 October 2024 for the further hearing of the interlocutory application insofar as it concerns interim relief and case management of the balance of the interlocutory application.

11.    GBAG and Dr Frege have leave to file and serve a redacted version of Exhibit MXF-1, with the documents said to be subject to the implied undertaking redacted.

12.    There be liberty to apply.

13.    Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    By interlocutory application dated 3 October 2024, Greensill Bank AG (in administration) (GBAG) and Dr Michael Frege (in his capacity as Insolvency Administrator of GBAG) (the Insolvency Administrator) seek a form of anti-anti-suit injunction against Marsh Limited (a company registered in England) and Marsh Pty Ltd (a company registered in Australia).

2    The interlocutory application seeks both interim orders and final orders (set out later in these reasons). The application for interim orders was the subject of an ex parte hearing before the Court yesterday, 10 October 2024. These reasons deal with that part of the application.

3    There are ten proceedings before this Court (the Greensill Proceedings or the Australian Proceedings) in which the applicants seek judgment against Insurance Australia Limited (IAL) in respect of amounts alleged to be payable under insurance policies purportedly issued by BCC Trade Credit Pty Ltd (BCC) as authorised representative of IAL to GBAG and Greensill Capital Pty Limited (in liquidation) (GCPL). The claimed losses total approximately AUD 7 billion. Those claimed losses relate to debts owed to Greensill Capital (UK) Limited (in administration) (GCUK) by its customers under various purported supply chain or accounts receivable finance facilities. The applicants in the Greensill Proceedings invested in the finance programs set up by GCUK.

4    The applicants in the Greensill Proceedings also bring alternative claims against BCC and its former Head of Trade Credit, Greg Brereton, seeking damages and compensation for misleading or deceptive conduct, false or misleading representations and breach of warranties of authority under the general law with respect to the authority to enter into the policies. The applicants also claim that IAL and/or Tokio Marine & Nichido Fire Insurance Co Ltd are responsible for BCC and Mr Brereton’s conduct as Australian financial services licensees under the Corporations Act 2001 (Cth).

5    One of the Greensill Proceedings is brought by White Oak Commercial Finance Europe (Non-Levered) Limited.

6    Three of the Greensill Proceedings are brought by Credit Suisse entities in respect of particular sub-funds (the Credit Suisse Proceedings). These three proceedings are referred to by the parties as the Catfoss, NMC and Credit Suisse Global Matters. In these proceedings, the applicants bring a claim against Marsh Limited (but not Marsh Pty Ltd) seeking damages and compensation for misleading or deceptive conduct and in negligence.

7    Six of the Greensill Proceedings are brought by GBAG and the Insolvency Administrator (the GBAG Proceedings). Neither Marsh Limited nor Marsh Pty Ltd is a party to these proceedings. However, IAL, BCC and Mr Brereton allege (in the alternative to other defences) that certain entities, including Marsh Limited and Marsh Pty Ltd, are concurrent wrongdoers under the proportionate liability provisions of Australian legislation.

8    The Greensill Proceedings are being managed together in this Court and have been set down for trial on 1 March 2026 on a provisional estimate of three to four months.

9    On 29 July 2024, Marsh Limited and Marsh Pty Ltd applied to the High Court of Justice of England and Wales (Commercial Court) (the English Court) for ex parte interim anti-suit injunctions against GBAG and the Insolvency Administrator (proceeding CL-2024-000433) (the Anti-suit Application). On 30 July 2024, a hearing took place in the English Court before the Honourable Mrs Justice Cockerill DBE. GBAG and the Insolvency Administrator were given about two hours’ informal notice of the application and hearing, and did not appear. At the conclusion of the hearing, the English Court made interim orders restraining GBAG and the Insolvency Administrator from taking any steps to initiate or bring any claims against Marsh Limited in Australia in relation to certain engagements and any non-contractual obligations arising out of or in connection with those engagements (the Interim Orders) (set out below). However, the English Court refused the application for anti-suit relief in relation to Marsh Pty Ltd.

10    The Interim Orders are to be the subject of an inter partes hearing in the English Court on 20 and 21 November 2024. The Interim Orders have been extended until 21 November 2024.

11    If the Interim Orders are extended following the hearing on 20 and 21 November 2024, there would then be a final hearing on a later date in relation to the anti-suit relief.

12    GBAG and the Insolvency Administrator contend that, in bringing the application to the English Court, Marsh Limited and Marsh Pty Ltd used documents, and information derived from documents, that had been produced by GBAG and the Insolvency Administrator to Marsh Limited by way of discovery in the Credit Suisse Proceedings that had not gone into evidence. GBAG and the Insolvency Administrator contend that Marsh Limited and Marsh Pty Ltd thereby breached the implied undertaking referred to in Harman v Secretary of State for the Home Department [1983] 1 AC 280 and Hearne v Street [2008] HCA 36; 235 CLR 125 at [96] (the implied undertaking). The implied undertaking may be summarised as follows. Where one party to litigation is compelled, whether by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence or appears in a transcript or judgment: see Heydon, JD, Cross on Evidence (13th ed, Aust, 2021) at [25055]. The principle applies to (among other things) discovered documents. It is common to speak of the relevant obligation as flowing from an “implied undertaking” to the Court.

13    In these circumstances, GBAG and the Insolvency Administrator seek a form of anti-anti-suit injunction against Marsh Limited and Marsh Pty Ltd to address the alleged breach.

14    The interlocutory application has been made in the Catfoss Matter (proceeding NSD 106 of 2022), this being one of the proceedings in which the relevant documents were produced by way of discovery.

15    The interim and final orders sought by GBAG and the Insolvency Administrator in the interlocutory application are as follows:

Interim Orders Sought

THE COURT ORDERS THAT:

1.    GBAG and Dr Frege have leave to file the interlocutory application and the affidavit of Michelle Fox affirmed 3 October 2024 in Court.

2.    The application for interim orders be returnable instanter.

3.    Marsh Pty Ltd is joined to these proceedings (NSD 106 of 2022) for the purpose of responding to relief sought in the interlocutory application.

4.    Until further order of the Court, Marsh Limited and Marsh Pty Ltd are restrained from taking any steps, either directly or indirectly, by themselves or through their subsidiaries or affiliates or agents, in the High Court of England and Wales or any other court:

a)    to restrain or seek to restrain the hearing of the interlocutory application whether by way of seeking to amend the terms of the Interim Anti-Suit Injunction or by making a fresh application for an injunction or seeking any other form of relief against either or both of GBAG and Dr Frege;

b)    to otherwise interfere with the hearing of GBAG and Dr Frege’s claims for relief in the interlocutory application before this Court including by attempting to expedite the interim or final hearing of the Anti-Suit Application in the High Court of England and Wales so as to defeat the purpose of this application; and

c)    to otherwise interfere with GBAG and Dr Frege’s pursuit of relief against either or both of Marsh Limited and Marsh Pty Ltd in the Greensill Proceedings.

5.    For the purposes of hearing the interim relief application, pursuant to Rule 17.04 of the Federal Court Rules 2011, the Court dispenses with the requirement for service as specified in Rule 17.01(2) of the Federal Court Rules.

6.    GBAG and Dr Frege are to serve on Marsh Limited a copy of these orders, the interlocutory application and material relied upon at the ex parte hearing by 5.00 pm on the [date of these orders].

7.    Pursuant to Rule 10.48 of the Federal Court Rules, documents referred to in paragraph 6 above be deemed to have been served on Marsh Limited upon sending a copy of the documents to Marsh Limited’s legal representatives in the Greensill Proceedings, by email to “richard.jowett@hfw.com”.

8.    Pursuant to Rule 17.03(b) of the Federal Court Rules, GBAG and Dr Frege are to serve on Marsh Pty Ltd a copy of these orders, the interlocutory application and material relied upon at the ex parte hearing by 5.00pm on the [date of these orders],

9.    Pursuant to Rule 10.23 of the Federal Court Rules, documents referred to in paragraph 8 above be deemed to have been served on Marsh Pty Ltd upon sending a copy of the documents to Marsh Pty Ltd’s legal representatives in the Anti-Suit Application by email to “christopher.foster@hfw.com” and “richard.jowett@hfw.com”.

10.    The matter be listed before the Hon. Justice Moshinsky at [earliest available date from the date of these orders] for case management of the hearing as to the continuation of order 2 and the final relief.

11.    These orders be entered forthwith.

12.    Costs reserved.

Final Orders Sought

THE COURT:

13.    Declares that Marsh Limited and Marsh Pty Ltd have relied upon documents and information discovered in the Greensill Proceedings in support of the Anti-Suit Application, in breach of their implied undertaking to this Court not to use discovered documents or discovered information for any purpose other than that for which it was given unless it is received into evidence, without leave of this Court.

14.    Orders Marsh Limited and Marsh Pty Ltd to take immediate steps to have removed from the file maintained by the High Court of England and Wales for the EHC Proceeding the documents identified in paragraphs 94 and 96 of the Michelle Fox Affidavit affirmed 3 October 2024.

15.    Orders that Marsh Limited and Marsh Pty Ltd are permanently restrained from taking any steps, either directly or indirectly, by themselves or through their subsidiaries or affiliates or agents, in the High Court of England and Wales or any other court (other than the Federal Court of Australia):

a)    to pursue or seek to renew their claims for relief in the Anti-Suit Application in the EHC Proceeding;

b)    to restrain or seek to restrain GBAG and Dr Frege from initiating or bringing any claim(s) against either or both of Marsh Limited and Marsh Pty Ltd in Australia in relation to services provided by either or both of Marsh Limited and Marsh Pty Ltd in connection with the policies of insurance at issue in the Greensill Proceedings, whether by making of a fresh application for an injunction or seeking any other form of relief against GBAG and Dr Frege, including an anti-anti-anti suit injunction.

16.    Marsh Limited and Marsh Pty Ltd are to pay GBAG and Dr Frege’s costs of and incidental to the Interlocutory Application.

16    In support of the interlocutory application, GBAG and the Insolvency Administrator rely on two affidavits of Michelle Fox, a partner of Quinn Emanuel Urquhart & Sullivan, the solicitors acting for GBAG and the Insolvency Administrator in the Greensill Proceedings, dated 3 October 2024 and 9 October 2024. In advance of the hearing on 10 October 2024, GBAG and the Insolvency Administrator filed detailed written submissions.

Background facts

17    I will now outline some additional background facts, based on the material currently before the Court.

18    On 5 September 2023, GBAG, the Insolvency Administrator, Marsh Limited and Marsh Pty Ltd entered into a confidential Standstill Deed to toll limitation periods in respect of certain claims that GBAG and the Insolvency Administrator may have against Marsh Limited and Marsh Pty Ltd, including claims relating to the GBAG Proceedings (the Standstill Deed).

19    On 7 November 2023, the applicants in the Credit Suisse Proceedings filed an amended statement of claim joining Marsh Limited as a respondent.

20    On 2 July 2024, Ms Fox wrote to Christopher Foster of Holman Fenwick Willan LLP (HFW) London, terminating the Standstill Deed and communicating GBAG and the Insolvency Administrator’s intention to join Marsh Limited to the GBAG Proceedings.

21    As indicated above, on 29 July 2024, Marsh Limited and Marsh Pty Ltd brought the Anti-suit Application in the English Court, seeking an urgent ex parte interim anti-suit injunction and a final prohibitory injunction to restrain GBAG and the Insolvency Administrator from bringing proceedings in Australia against Marsh Limited and Marsh Pty Ltd in relation to certain engagements and any non-contractual obligations arising out of or in connection with their engagements.

22    The Anti-suit Application was largely based on an English exclusive jurisdiction clause that appears in engagement agreements between Marsh Limited and GCUK. GBAG is not a party to the engagement agreements but it was contended by Marsh Limited and Marsh Pty Ltd that GBAG was bound by the exclusive jurisdiction clause in those agreements as an affiliate of GCUK. In her first affidavit at paragraph 4(i), Ms Fox states that GBAG and the Insolvency Administrator dispute that claim.

23    As indicated above, on 30 July 2024, Marsh Limited obtained the Interim Orders. Marsh Pty Ltd did not succeed in obtaining any interim orders. The Interim Orders included:

3.    Until the Return Date or further Order of this Court, the Defendants [i.e. GBAG and the Insolvency Administrator] and each of them shall refrain from taking any steps to initiate or bring any claim(s) against the First Claimant [i.e. Marsh Limited] in Australia, in relation to the Engagements contained in or evidenced by Letters of Engagement dated 3 March 2017 and/or 27 March 2018 and/or 18 April 2018 and/or 27 March 2019 and/or 1 March 2020 and any non-contractual obligations arising out of or in connection with those Engagements, whether by commencing fresh proceedings or by joining the First Claimant to existing proceedings in Australia, particularly by joining the First Claimant to any of the following proceedings which are currently underway in the Federal Court of Australia (collectively, the “Australian Proceedings”):

a.    Greensill Bank AG & Anor. v Insurance Australia Limited & Ors., Federal Court of Australia, court reference NSD 1216/2021 (the “EHG proceeding”);

b.    Greensill Bank AG & Anor. v Insurance Australia Limited & Ors., Federal Court of Australia, court reference NSD 173/2023 (the “Atlantic 57 proceeding”);

c.    Greensill Bank AG & Anor. v Insurance Australia Limited & Ors., Federal Court of Australia, court reference NSD 174/2023 (the “Bluestone proceeding”);

d.    Greensill Bank AG & Anor. v Insurance Australia Limited & Ors., Federal Court of Australia, court reference NSD 175/2023 (the “LCL proceeding”);

e.    Greensill Bank AG & Anor. v Insurance Australia Limited & Ors., Federal Court of Australia, court reference NSD 177/2023 (the “Simec proceeding”);

f.    Greensill Bank AG & Anor. v Insurance Australia Limited & Ors., Federal Court of Australia, court reference NSD 602/2023 (the “Liberty Delta proceeding”).

24    The material before the Court includes the transcript of the hearing on 30 July 2024 before the Honourable Mrs Justice Cockerill DBE. Her reasons for not granting the application in relation to Marsh Pty Ltd included (transcript, p 45):

I am not going to grant the injunction in relation to C2 [i.e. Marsh Pty Ltd]. The brief reasons for that, just so that you know where any judgment for the purposes of appeal would go, is you are in a position where you are not able to say that there is a clause as such and, therefore, there is no breach. You are also in a position at the moment where there is no explicit threat, which is very different to the position in relation to C1 [i.e. Marsh Limited] and it is arguable that the standstill agreement remains in place.

25    As indicated above, GBAG and the Insolvency Administrator contend that, in seeking (and preparing to seek) ex parte interim relief before the English Court, Marsh Limited and Marsh Pty Ltd used documents and information that were disclosed by GBAG to Marsh Limited by way of discovery in the Credit Suisse Proceedings. GBAG and the Insolvency Administrator contend that the relevant documents and information were (and are) subject to the implied undertaking.

26    Ms Fox states in her first affidavit that HFW (solicitors for Marsh Limited and Marsh Pty Ltd) have confirmed that they reviewed over 14,000 documents in preparation for the Anti-suit Application, a significant proportion of which Ms Fox believes were disclosed to Marsh Limited by GBAG by way of discovery in the Credit Suisse Proceedings.

27    Ms Fox states in her first affidavit that, given that Marsh Pty Ltd is not a party to any of the Greensill Proceedings, it appears that Marsh Limited provided GBAG’s discovered documents to Marsh Pty Ltd for the purpose of Marsh Pty Ltd preparing to seek, and seeking, ex parte interim anti-suit relief before the English Court. Ms Fox states that GBAG and the Insolvency Administrator take the position that, by receiving GBAG’s discovered material, Marsh Pty Ltd itself became subject to the same substantive obligations underpinning the implied undertaking as Marsh Limited.

28    The material before the Court on the present application includes the Skeleton Argument for the Claimants (i.e. Marsh Limited and Marsh Pty Ltd) in support of the Anti-suit Application (the Skeleton Argument) and the first witness statement of Mr Foster (dated 26 July 2024) in support of that application (Foster Witness Statement). It appears that 15 documents that were discovered by GBAG to Marsh Limited in the Credit Suisse Proceedings were specifically referred to by Marsh Limited and Marsh Pty Ltd in the Skeleton Argument or the Foster Witness Statement or both. For example:

(a)    At paragraph 27 of the Foster Witness Statement, reference is made to three service level agreements between GCUK and GBAG. It appears from Ms Fox’s affidavit that these are discovered documents (i.e. documents discovered by GBAG to Marsh Limited in the Credit Suisse Proceedings). These documents are relied on in the Skeleton Argument at paragraphs 17.1, 72.3 and 74.3.

(b)    At paragraph 66 of the Foster Witness Statement (specifically, in sub-paragraphs (a), (b), (c), (e), (f) and (g)), six documents are referred to that Ms Fox states are discovered documents. It appears that these documents were relied on in support of the proposition (articulated in the first sentence of paragraph 66 of the Foster Witness Statement) that the existence of a broker-client relationship between Marsh Limited and GBAG had been consistently acknowledge by GBAG. See also the Skeleton Argument at paragraph 19.4.

29    Ms Fox states in her first affidavit that neither Marsh Limited nor Marsh Pty Ltd sought or obtained a release from the implied undertaking, or the leave of this Court, before using GBAG’s discovered documents and information in their ex parte application to the English Court; nor did they disclose to the English Court the provenance of the discovered documents used in the Anti-suit Application or that there may be a controversy about whether a release was required, or would be granted, before their use in that application.

30    Ms Fox states in her affidavit (based on correspondence between the parties) that Marsh Limited and Marsh Pty Ltd deny that they breached the implied undertaking or their duty of full and frank disclosure on the ex parte application. In summary, Marsh Limited and Marsh Pty Ltd say that they were obliged to make proper inquiries about the matters contained in documents discovered in Australia and to bring various matters contained in them to the English Court’s attention to ensure the full and frank disclosure obligation was complied with (including by using the relevant documents); Marsh Limited and Marsh Pty Ltd say that the implied undertaking yields to their obligations to the English Court on an ex parte application and also to the requirements of the English Court’s practice note in that regard.

31    GBAG and the Insolvency Administrator have sought to agitate their position as to Marsh Limited’s and Marsh Pty Ltd’s alleged breaches of the implied undertaking and alleged material non-disclosure before the English Court. On 23 August 2024, GBAG and the Insolvency Administrator sought a bifurcated hearing with a view to first ventilating their position as to the alleged non-disclosure, but the request for bifurcation was not granted.

32    As indicated above, the Anti-suit Application has been listed for a return hearing on 20 and 21 November 2024 (the Return Date Hearing) for the determination of whether the Interim Orders should continue until the final hearing. Ms Fox states in her first affidavit that the Return Date Hearing will likely involve consideration of three principal issues:

(a)    whether Marsh Limited and Marsh Pty Ltd have breached their obligations of full and frank disclosure by not disclosing the provenance of the discovered documents and the potential controversy around their use;

(b)    whether Marsh Limited and Marsh Pty Ltd can establish to the necessary “high degree of probability” that there is a jurisdiction agreement binding on GBAG that governs the dispute; and

(c)    if the English Court is satisfied as to (b), whether there are “strong reasons” why the Court should not otherwise restrain the commencement of proceedings in breach of the English exclusive jurisdiction clause.

33    As indicated above, if Marsh Limited and Marsh Pty Ltd are successful at the Return Date Hearing, there would need to be a final hearing for a permanent anti-suit injunction on a date that is yet to be set. Ms Fox states in her first affidavit that this is unlikely to occur until early 2026 (given current indications as to lead times in the English Court).

34    Ms Fox states in her first affidavit that GBAG and the Insolvency Administrator have likely been irreparably prejudiced by Marsh Limited’s and Marsh Pty Ltd’s conduct. She summarises this in paragraph 4(u) of her first affidavit (references in the affidavit to “Marsh” cover both Marsh Limited and Marsh Pty Ltd):

Although GBAG and the Insolvency Administrator will seek to ventilate the issues around the Harman undertaking at the Return Date Hearing in England, they have likely been irreparably prejudiced by Marsh’s conduct. That prejudice can be summarised this way:

(i)    By electing not to seek a release of Harman obligations, Marsh ensured that GBAG and the Insolvency Administrator would not have sufficient warning or notice of the Anti-suit Application to seek anti-anti-suit relief in Australia prior to the Interim Orders being made in England. According to the Foster Witness Statement, Marsh’s advice was that there was a substantial risk of such relief being granted.

(ii)    The consequence is that GBAG and the Insolvency Administrator are currently precluded from seeking to join Marsh Limited to the GBAG Proceedings.

(iii)    There is a real risk that Marsh will succeed in extending the Interim Orders on 20 November 2024, and may succeed in obtaining permanent anti-suit relief against GBAG and the Insolvency Administrator.

(iv)    If that occurs there is a real risk that GBAG and the Insolvency Administrator will be precluded from ventilating a claim for misleading or deceptive conduct against at least Marsh Limited under Australian Law.

35    Ms Fox further explains the reasons for the present application in the following paragraphs of her first affidavit:

5.    Furthermore, if the position of GBAG and the Insolvency Administrator is correct, Marsh and its solicitors have obtained information and knowledge from a substantial volume of documents disclosed by GBAG, and used that information and knowledge for a collateral purpose, which cannot be undone or unknown. In continuing to advance their position on the Anti-suit Application, Marsh are benefiting from the knowledge and information that has been improperly used.

6.    GBAG now brings this application to remedy its prejudice by precluding the use of the impugned documents and information and restraining both Marsh entities from further pursuing any anti-suit relief in the English Court (or any other court), in effect, in light of the breaches of the Harman undertaking and the obligations to the Court, GBAG and the Insolvency Administrator seek an anti-anti-suit injunction based largely on the protection of the Court’s processes. If an anti-anti-suit order is not granted, there is a real risk that GBAG and the Insolvency Administrator will be enjoined from bringing proceedings against the Marsh entities in Australia, such injunction being premised on a breach of the Harman undertaking.

Applicable principles

36    GBAG and the Insolvency Administrator’s written submissions contain a helpful summary of the applicable principles relating to anti-suit injunctions (and, by extension, anti-anti-suit injunctions). Drawing on these submissions, the applicable principles may be summarised as follows.

37    An anti-suit injunction is an in personam remedy enjoining a party from commencing or continuing proceedings in a foreign court: see Jones v Treasury Wine Estates Ltd [2016] FCAFC 59; 241 FCR 111 at [21]. An anti-anti-suit injunction is an order that a party not seek anti-suit injunctive relief in another forum in relation to proceedings in the original forum: see Davies, M, Bell, A, Brereton, P, and Douglas, M, Nygh’s Conflict of Laws in Australia (LexisNexis, 10th ed, 2020) at [9.17]. There are limited Australian authorities addressing anti-anti-suit injunctions, although those that do suggest that the same principles apply as with anti-suit injunctions: see Home Ice Cream Pty Ltd v McNabb Technologies LLC [2018] FCA 1033; Bolin Technology Co Ltd v BirdDog Technology Ltd [2024] FCA 129; Bolin Technology Co Ltd v BirdDog Technology Ltd [2024] FCA 286.

38    The leading authority on anti-suit (and by extension anti-anti-suit) injunctions in Australia is CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; 189 CLR 345 (CSR). In CSR, the High Court held by a six to one majority that the Supreme Court of New South Wales had erred (leave to appeal to the Court of Appeal having been refused) in granting an anti-suit injunction in respect of proceedings in the United States and in failing to order a stay of the proceedings. The central reason for CSR’s success was that certain statutory remedies were only available in the United States, and not in NSW. In those circumstances, and having regard to the entire controversy, the NSW proceedings were oppressive, being brought to prevent the additional remedies being sought overseas.

39    CSR remains the leading authority on anti-suit injunctions, although subsequent authority illuminates several issues. What CSR and subsequent cases make clear is that there are two distinct bases on which anti-suit relief may be granted.

40    The first arises in what is known as the Court’s implied jurisdiction (sometimes referred to as its “inherent” jurisdiction) and engages the Court’s power to protect the integrity of its processes. In some cases, protection of the Australian Court’s own processes will authorise the grant of an anti-suit injunction. The power is to be exercised when the administration of justice so demands as being necessary for the protection of the Court’s own proceedings or processes: see Herold v Seally (No 2) [2017] FCA 543 (Herold) at [34(7)].

41    The second arises in the Court’s equitable jurisdiction. Here, the Court makes orders to restrain unconscionable conduct or the unconscientious exercise of a legal right. Thus, if bringing or continuing proceedings elsewhere has that character, the equitable jurisdiction may be exercised to restrain them from being advanced no matter where they are brought: Herold at [34(8)].

42    A well-established category of case in which an injunction may be granted is when foreign proceedings are, according to principles of equity, “vexatious or oppressive”. In CSR, the High Court quoted with approval the test in Carron Iron Co v Maclaren (1855) 5 HLC 416 at 437 to the effect that where there are pending local proceedings in which “complete relief may be had”, commencing subsequent proceedings abroad may generally be considered as “a vexatious harassing of the opposite party” and the Court will restrain the continuation of the foreign proceedings: Herold at [34(10)].

43    However, the “mere co-existence of proceedings in different countries does not constitute vexation or oppression”, especially if the other proceedings give “other or additional remedies beyond those attainable” in Australia: CSR at 393, 395. Foreign proceedings are to be viewed as vexatious or oppressive “only if there is nothing to be gained by them over and above what may be gained in local proceedings”. They will be regarded as vexatious or oppressive if there is a “complete correspondence between the proceedings” or if “complete relief” is available in the local proceedings: Herold at [34(11)] and [43].

Consideration

44    The gravamen of GBAG’s and the Insolvency Administrator’s complaint is that, to formulate and support their application to the English Court, Marsh Limited and Marsh Pty Ltd used documents, and information derived from documents, that had been produced by GBAG and the Insolvency Administrator to Marsh Limited by way of discovery in the Credit Suisse Proceedings and which have not been put into evidence. GBAG and the Insolvency Administrator submit that Marsh Limited and Marsh Pty Ltd did so without:

(a)    seeking a release from the implied undertaking;

(b)    otherwise seeking the leave of the Australian Court to use the discovered documents and information in an anti-suit application in a foreign court;

(c)    disclosing to the English Court the provenance of the discovered documents and discovered information used to formulate and support the Anti-suit Application;

(d)    disclosing to the English Court that the discovered documents and discovered information were received by Marsh Limited subject to a substantive obligation owed to the Australian Court not to use them for any purpose other than the Australian Proceedings (until received into evidence); or

(e)    disclosing to the English Court that there may be a controversy about whether a release from the implied undertaking was required, or would be granted, before the discovered documents and discovered information could be used in the Anti-suit Application.

45    GBAG and the Insolvency Administrator submit that it seems uncontroversial that thousands of discovered documents, and the information derived from them, were utilised by Marsh Limited and Marsh Pty Ltd. It is submitted that some 14,000 discovered documents are said by Marsh Limited’s and Marsh Pty Ltd’s solicitors to have been reviewed in preparation for the Anti-suit Application and the use to which specific documents were put during the ex parte hearing is evident from the face of the record.

46    GBAG’s and the Insolvency Administrator’s position is that Marsh Limited and Marsh Pty Ltd breached their substantive obligations to the Australian Court by using the discovered documents without a release or leave. Further, it is contended that Marsh Limited and Marsh Pty Ltd breached their obligations of disclosure to the English Court by not disclosing the provenance of the documents and information used, and the likelihood of controversy about their use.

47    GBAG and the Insolvency Administrator submit that, by not seeking a release of their implied undertaking obligations, and by not disclosing to the English Court the potential controversy around use of the discovered documents and discovered information, Marsh Limited and Marsh Pty Ltd ensured that GBAG and the Insolvency Administrator would not have sufficient notice of the Anti-suit Application to seek anti-anti-suit relief in Australia prior to the interim injunction being ordered in England; Marsh Limited’s and Marsh Pty Ltd’s solicitor in the Anti-suit Application gave evidence that Marsh Limited’s and Marsh Pty Ltd’s advice was that there was a substantial risk of the Australian Court granting such relief; that concern was the very justification for the Anti-suit Application being made ex parte.

48    GBAG and the Insolvency Administrator submit that Marsh Limited and Marsh Pty Ltd breached their substantive obligations to this Court and in so doing avoided being exposed to the risk of injunctive relief being ordered against them; that has brought about the current circumstances in which GBAG and the Insolvency Administrator are precluded from joining Marsh Limited to the GBAG Proceedings and there is a real risk that permanent injunctions will be ordered by the English Court in favour of both Marsh Limited and Marsh Pty Ltd, such that GBAG and the Insolvency Administrator will be prevented from agitating a misleading or deceptive conduct claim under Australian law against Marsh Limited and Marsh Pty Ltd; this consequence was expressly referred to by Marsh Limited and Marsh Pty Ltd on 30 July 2024 (transcript p 40).

49    GBAG and the Insolvency Administrator submit that it would be unjust for GBAG and the Insolvency Administrator to be so enjoined when the injunction was premised on a breach of the implied undertaking. Further, they submit that it would be unjust for Marsh Limited and Marsh Pty Ltd to be permitted to continue to benefit from information and documents the subject of implied undertaking obligations by advancing the Anti-suit Application in the English Court.

50    GBAG and the Insolvency Administrator submit that the anti-anti-suit injunction now sought by GBAG and the Insolvency Administrator is directed towards ameliorating this situation; they seek initial ex parte relief to enable this application to be ventilated without Marsh Limited and Marsh Pty Ltd being able to apply to the English Court to restrain the bringing of this application. GBAG and the Insolvency Administrator also seek an expedited inter partes hearing of their application for final relief with a view to having that determined prior to the scheduled interim hearing date listed before the English Court on 20 and 21 November 2024.

51    GBAG and the Insolvency Administrator submit that they are entitled to an anti-anti-suit injunction on two bases:

(a)    First, in the exercise of the Court’s implied jurisdiction, to protect the integrity of the Australian Proceedings and associated processes.

(b)    Secondly, in the exercise of equity’s exclusive jurisdiction, because the English proceeding is vexatious and oppressive.

52    GBAG and the Insolvency Administrator submit that there is a serious question to be tried with respect to each of these bases, and the balance of convenience favours the making of orders on both bases.

53    I will deal first with the aspect of the present application that relates to Marsh Limited; I will deal subsequently with the aspect concerning Marsh Pty Ltd.

54    In my view, insofar as the present application relates to Marsh Limited, considerations of comity constitute a strong discretionary consideration against making the interim orders that are sought by GBAG and the Insolvency Administrator.

55    First, I note that the question whether Marsh Limited (and Marsh Pty Ltd) breached the implied undertaking is capable of being considered and determined by the English Court as part of the hearing on 20 and 21 November 2024. Although the issue is one of Australian law, and concerns an undertaking to this Court, there is no reason why the issue is not capable of determination by the English Court.

56    Secondly, the orders that are sought by GBAG and the Insolvency Administrator in the interlocutory application in relation to Marsh Limited (in particular, paragraphs 4(c) and 15(a)) would, in my opinion, interfere with the Interim Orders that have been made by the English Court (and remain in place pending the Return Date Hearing on 20 and 21 November 2024) contrary to principles of comity as discussed, for example, by the High Court in CSR at 395-396. The inconsistency between the orders that are sought in the present interlocutory application and the Interim Orders is most plainly seen in paragraph 15(a) of the interlocutory application (noting that the Court is not being asked to make such an order at this stage). By that paragraph, GBAG and the Insolvency Administrator relevantly seek an order that Marsh Limited be permanently restrained from taking any steps in the English Court “to pursue or seek to renew their claims for relief in the Anti-Suit Application in the [English] Proceeding”. If this order were made, Marsh Limited would not be able (for example) to file submissions or further material in support of the continuation of the Interim Orders at the Return Date Hearing on 20 and 21 November 2024. This would, in my view, constitute an interference with the English proceeding such that considerations of comity would provide strong reasons why the Court would not make such an order. For these reasons, I do not consider there to be any realistic prospect of the Court making such an order at a further hearing. I therefore do not consider it necessary or appropriate to make interim orders to hold the status quo pending a further hearing in respect of such an order. Further and in any event, I consider that the order sought in paragraph 4(c) of the interlocutory application (insofar as it relates to Marsh Limited) would interfere with the English proceeding. While such an order is only sought for a short period of time, it would nevertheless during that period of time preclude Marsh Limited taking further steps (such as filing submissions and further material) in support of the continuation of the Interim Orders at the Return Date Hearing on 20 and 21 November 2024.

57    GBAG and the Insolvency Administrator referred to authorities supporting the proposition that comity is not a reason to decline to exercise jurisdiction conferred on the Court by Parliament: see, eg, Joyce v Sunland Waterfront (BVI) Ltd [2021] FCAFC 95; 195 FCR 213 at [59]. In the present case, the relevant statutory jurisdiction is that arising from the misleading or deceptive conduct provisions in s 18 of the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)), s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) and/or s 1041H of the Corporations Act 2001 (Cth) (having regard to the draft pleading that is in evidence on the interlocutory application). But considerations relating to the public policy of those statutes do not, in my view, override the considerations of comity that I have identified, in the circumstances of the present case, where the interference with the English Court’s processes would be direct and substantial, in that the anti-anti-suit injunction sought in paragraph 15(a) of the interlocutory application (if granted) would in practical terms negate the effect of the existing anti-suit injunction.

58    Insofar as GBAG and the Insolvency Administrator seek, by paragraph 13 of the interlocutory application, a declaration that Marsh Limited (and Marsh Pty Ltd) breached the implied undertaking, it does not appear necessary for the interim orders to be made in order for that relief to be pursued in this Court. (I note that it may be possible for that aspect of the application to be heard and determined by this Court before the Return Date Hearing in the English Court on 20 and 21 November 2024.)

59    For these reasons, I do not consider it appropriate to make the interim orders sought insofar as they concern Marsh Limited.

60    I now turn to consider the part of the application that concerns Marsh Pty Ltd. There is no anti-suit injunction in place in relation to Marsh Pty Ltd. In these circumstances, the considerations of comity to which I have referred above do not appear to apply. There appears (at this stage) to be a serious question to be tried (as outlined in GBAG’s and the Insolvency Administrator’s submissions) and the balance of convenience appears to favour the making of an interim anti-anti-suit injunction (in other words, an injunction restraining Marsh Pty Ltd from making an application (or renewing its application) for an anti-suit injunction) to hold the status quo pending a further hearing on an inter partes basis. There is an appreciable risk that Marsh Pty Ltd may make an application (or renew its application) for an anti-suit injunction.

61    As discussed at the hearing, if an injunction were to be made against Marsh Pty Ltd, it is preferable for this to be expressed more directly as an anti-anti-suit injunction (as outlined above) rather than in the terms of the interim relief set out in paragraph 4 of the interlocutory application. The order would be made on an interim basis, pending a further hearing on an inter partes basis.

62    For these reasons, I will make an anti-anti-suit injunction in relation to Marsh Pty Ltd to the following effect:

Until 5.00 pm (AEDT) on 18 October 2024, or further order of the Court, Marsh Pty Ltd be restrained from taking any steps to initiate or bring or renew any claim against GBAG and/or Dr Frege in England and Wales for anti-suit relief in relation to the Greensill Proceedings in this Court.

63    It is also appropriate to make orders substantially in the terms of paragraph 1, 2, 3, 5, 6, 7, 8 and 9 of the interlocutory application. I will also make an order that the matter be listed at 9.30 am on 18 October 2024 for the further hearing of the interlocutory application insofar as it concerns interim relief and case management of the balance of the interlocutory application.

64    As indicated above, insofar as GBAG and the Insolvency Administrator seek, as part of their final relief, a declaration that Marsh Limited and Marsh Pty Ltd breached the implied undertaking, it may be possible for this issue to be dealt with before the Return Date Hearing in the English Court on 20 and 21 November 2024. This is a matter that can be discussed at the case management hearing.

Associate:

Dated:    15 October 2024

SCHEDULE OF PARTIES