Federal Court of Australia

Pain v Lombe (liquidator), in the matter of Babcock & Brown Ltd (in liq) [2024] FCA 1338

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be permanently stayed.

2.    The applicants are to pay the respondent’s costs of the interlocutory application filed on 15 July 2024 and the proceeding generally.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    The respondent, David Lombe, in his capacity as the liquidator of Babcock & Brown Limited (in liquidation) (ACN 108 614 955) (Babcock & Brown) seeks a permanent stay of this proceeding.

2    The applicants, Malcom Douglas Pain and 312 other applicants (Pain applicants) acquired shares in Babcock & Brown. Pursuant to the originating application filed on 14 November 2018, the Pain applicants seek a declaration that Babcock & Brown failed to disclose material information to the Australian Securities Exchange (ASX) at the time that they purchased their shares, and orders pursuant to s 1321 of the Corporations Act 2001 (Cth) (Corporations Act) that the decision of the respondent to reject the Pain applicants’ formal proofs of debt be reviewed, reversed or modified, and that the proofs be admitted. The Pain applicants also seek, in the alternative, leave pursuant to s 471B of the Corporations Act to commence proceedings against Babcock & Brown, and ancillary relief, including compensation pursuant to s 1325 of the Corporations Act.

3    The proceeding is funded and pursued by a litigation funder, Bookarelli Pty Ltd (Bookarelli). Bookarelli also funded and pursued other proceedings against the respondent on behalf of applicants who had acquired shares in Babcock & Brown.

4    The issue for determination is whether there is a relevant connection or sufficient identification between the Pain applicants and the applicants in the other proceedings funded and pursued by Bookarelli to make it unreasonable for the Pain applicants not to have brought their claims forward in the other proceedings.

5    For the reasons that follow, I have concluded that in all the circumstances it was unreasonable for the Pain applicants not to have brought forward their claims in other proceedings funded and brought by Bookarelli against the respondent and the proceeding should be permanently stayed as an abuse of process.

6    In this proceeding the parties have been referred to as “applicants” and “plaintiffs”, as well as “respondent” and “defendant” interchangeably. Consistently with the originating application filed by the Pain applicants, notwithstanding that this proceeding is a claim made pursuant to the Corporations Act and should have been commenced by way of an originating process, I have referred to the parties as “applicants” and “respondent” in these reasons for judgment.

B.    Evidence

B.1    Respondent

7    The respondent relied on an affidavit of Joseph Scarcella, a partner of Johnson Winter Slattery, who is responsible for the defence of this proceeding and other proceedings brought by Bookarelli against the respondent as the liquidator of Babcock & Brown.

8    Mr Scarcella gave evidence as to the institution and conduct of the various proceedings brought by shareholders of Babcock & Brown against the respondent and the impact of those proceedings on the winding up of the company.

9    Mr Scarcella also gave evidence of the extensive involvement of Bookarelli in both this proceeding and other proceedings brought by shareholders of Babcock & Brown against the respondent, including the extent to which Paul Riik and Richard Kurland were personally involved as relevant decision makers for Bookarelli.

10    Further, Mr Scarcella gave evidence of the steps taken and the investigations undertaken by the respondent since 24 December 2021 for the purpose of determining the extent to which Bookarelli controlled this proceeding on behalf of the Pain applicants and proceedings brought by other shareholders of Babcock & Brown against the respondent. He gave evidence that these steps and investigations culminated in the production by Bookarelli of some 27,000 pages of material and the public examinations of four of the Pain applicants on 6 December 2023 and 9 February 2024 (noting that five persons were examined because Walter and Lesly Beavis were jointly the 128th applicant).

11    Mr Scarcella was not cross examined.

B.2.    Pain applicants

12    The Pain applicants relied on an affidavit from Mr Riik, a director and company secretary of Bookarelli and two affidavits from Marcel Joukhador, the solicitor for the Pain applicants in this proceeding.

13    Mr Riik gave evidence that he had been informed by five of the Pain applicants that they would not have purchased shares in Babcock & Brown had various matters relevant to the true financial position of the company been disclosed to them. Mr Riik also gave evidence that he spoke to other shareholders and creditors of Babcock & Brown who wished to lodge claims for compensation. He was not cross examined.

14    Mr Joukhador gave evidence regarding his involvement in the conduct of various proceedings brought by shareholders of Babcock & Brown, communications with the respondent, the commencement of this proceeding, and further proofs of debt sought to be admitted by shareholders. Mr Joukhador also gave evidence on conversations that he had with Mr Riik and Mr Kurland as to Bookarelli’s reasons for not commencing this proceeding until 2018.

15    Mr Joukhador was cross examined. I address the evidence given by Mr Joukhador below at [35]-[37], [44]-[45], [57], [60] and [116]-[117].

C.    Factual Circumstances

16    On 24 August 2009, an order was made for the winding up of Babcock & Brown, and the respondent and Simon Cathro were jointly appointed as liquidators. On 9 August 2011, Mr Cathro resigned as liquidator of Babcock & Brown.

17    In 2011 and 2012, the respondent called for proofs of debt in its reports to creditors and in the Australian Securities and Investments Commission (ASIC) Gazette.

18    By November 2011, Bookarelli had commenced searching for shareholders willing to make claims against Babcock & Brown. On 17 November 2011, Bookarelli wrote to Babcock & Brown shareholders (on the letterhead of “Babcock & Brown Recoveries”) with a proposal that it would prove their claim against Babcock & Brown, pay all costs, and in return it would take a 50% share of any recoveries. Shareholders were asked to sign an authority giving Bookarelli control of their claim, as well as an agreement, and to complete a questionnaire about their investment (Bookarelli Documents).

19    The 17 November 2011 letter offered to pursue claims for compensation on the shareholders’ behalf against the respondent and to oppose attempts by the respondent to prioritise distributions to noteholders of funds that had become available as a result of a settlement reached between the respondent and the former directors and auditors of Babcock & Brown. The letter concluded:

The Liquidator has now called for Proofs of Claim. There is a limited window of opportunity for the next two weeks to lodge claims. We cannot overemphasise the need for you to proceed as a matter of urgency.

20    Throughout 2011 and 2012, Bookarelli lodged proofs of debts for shareholders. Those were rejected on or about 27 November 2012.

21    On 11 December 2012, Bookarelli commenced legal proceedings in this Court in the name of Andrew Grant-Taylor and other applicants challenging the respondent’s rejections of their proof of debts (Grant-Taylor Proceeding).

22    It was alleged in the Grant-Taylor Proceeding that the respondent had improperly rejected the proofs of debt because Babcock & Brown had contravened s 674 of the Corporations Act and ASX Listing Rule 3.1 by failing to disclose prior to 13 March 2009 that final dividends had not been paid out of profits in the 2005, 2006 and 2007 financial years and the company had become or was likely to become insolvent at the latest, by on or about 29 November 2008. It was alleged that as a result of those contraventions, the share price of Babcock & Brown’s shares was higher than it would have been, had the alleged contraventions not occurred, and therefore the applicants had suffered loss. The loss was alleged to be an indirect “market based” loss, that is, the difference between the price paid for the shares and the price had the impugned matters been disclosed. It was not contended that any applicant would not have acquired shares in Babcock & Brown had the impugned matters been disclosed.

23    During 2013 and 2014, Bookarelli lodged further proofs of debt for shareholders. Those proofs of debt were rejected on or about 2 December 2013 and 5 September 2014.

24    On 13 December 2013, Bookarelli commenced and funded legal proceedings in this Court in the name of Michael Masters and other applicants challenging the respondent’s rejections of their proof of debts on or about 2 December 2013 (Masters Proceeding).

25    On 19 September 2014, Bookarelli commenced and funded legal proceedings in this Court in the name of Bruce Broome and other applicants challenging the respondent’s rejections of their proof of debts on or about 5 September 2014 (Broome Proceeding).

26    On 4 March 2015, judgment was delivered in the Grant-Taylor Proceeding and orders were made dismissing the application: Grant-Taylor v Babcock & Brown Ltd (in liq) (2015) 104 ACSR 195; [2015] FCA 149.

27    On or about 25 March 2015, a notice of appeal was filed in the Grant-Taylor Proceeding.

28    On 6 May 2015, Bookarelli commenced and funded legal proceedings in this Court in the name of Sarah Wilhelm and other applicants challenging the respondent’s rejections of their proof of debts on or about 20 April 2015 (Wilhelm Proceeding).

29    On 24 and 25 August 2015, the appeal in the Grant-Taylor Proceeding was heard by a Full Court comprising Allsop CJ, Gilmour and Beach JJ.

30    On 17 December 2015, Foster J ordered that each of the Masters Proceeding, the Broome Proceeding and the Wilhelm Proceeding, be listed for final hearing together (Combined Proceedings).

31    On 21 April 2016, the Full Court dismissed the appeal in the Grant-Taylor Proceeding: Grant-Taylor v Babcock & Brown Ltd (in liq) (2016) 245 FCR 402; [2016] FCAFC 60.

32    On 27 June 2016, Mr Riik wrote to the respondent, stating:

We have been instructed to lodge proofs of claim for the Shareholder/Creditors referred to in Annexure A for compensation for the loss and damage sustained by them arising out of the purchase of shares in [Babcock & Brown] from 11 August 2008 to 7 January 2009.

We shall provide you with proofs of claim for the said Shareholder/Creditors when the Masters, Broome and Wilhelm proceedings are successful.

33    Annexure A listed 299 of the 313 applicants in this proceeding.

34    By a letter dated 28 June 2016, the respondent advised Bookarelli:

Please note that, for dividend purposes, I cannot accept claims other than in the form prescribed by the Corporations Act 2001 (Cth). Until such time as a Formal Proof of Debt is received in the Liquidation, no consideration can be given to informal, unquantified claims.

35    In his first affidavit sworn on 26 August 2024, Mr Joukhador gave evidence that he had a conversation with Mr Riik and Mr Kurland at the time he received the 28 June 2016 letter. Mr Joukhador deposed that in the conversation either or both of Mr Riik and Mr Kurland said to him words to the following effect:

Mr Lombe knows that we have some shareholder PODs, so if he wants us to lodge the Proof of Debts now, he would say so.

36    In his second affidavit sworn on 11 October 2024, Mr Joukhador gave evidence that in the course of that conversation with Mr Riik and Mr Kurland, either or both of Mr Riik and Mr Kurland also said words to the effect that Bookarelli:

did not want to incur the cost of having to lodge the shareholder PODs, receive rejections and then commence fresh proceedings or take any other proceedings in respect of the rejections.

37    It became readily apparent in Mr Joukhador’s cross examination, however, that he had no present recollection of the purported words that he claimed to have recalled in “words to the effect” at the time that he swore his two affidavits, notwithstanding that the affidavits had been only recently sworn. Nor was Mr Joukhador able to provide any coherent explanation for why he may have not included in his first affidavit the additional recollection that he purported to have at the time that he swore his second affidavit of what was said to him by Mr Riik and Mr Kurland in June 2016.

38    On or about 11 July 2016, the applicants in each of the Combined Proceedings filed further amended pleadings. The amended pleadings were identical in all material respects.

39    By 20 July 2016, all of the Pain applicants had signed an authority, giving Bookarelli control over their claims.

40    Bookarelli did not lodge any proofs of debt, commence proceedings or seek to have the Pain applicants’ claims determined in the Combined Proceedings. I note, however, that inadvertently or otherwise, 20 of the 313 Pain applicants were also applicants in the Broome Proceeding, the Wilhelm Proceeding, or both the Broome and the Wilhelm Proceedings. Bookarelli has stated that the claims made in this proceeding by these 20 applicants will be discontinued.

41    On 12 October 2016, an application for special leave to appeal the decision of the Full Court in the Grant-Taylor Proceeding was refused by the High Court.

42    Between 10 and 13 October 2016, the Combined Proceedings were heard by Foster J, following which judgment was reserved.

43    On or about 3 October 2018, Bookarelli lodged proofs of debt for each of the Pain applicants which were rejected by the respondent on or about 31 October 2018.

44    Mr Joukhador also gave evidence in his second affidavit that at the time he received an email from the chambers of Foster J dated 28 September 2018 that notified the parties that judgment delivery would be delayed as his Honour was unwell, he was “given instructions to the effect” that steps would be taken to lodge the Pain applicants’ proofs of debt because Bookarelli was:

concerned that his Honour will pass away and there will be no judgment, so we need to get the process started again and lodge these Proofs.

45    Mr Joukhador then stated that as far as he was aware, there:

was no other reason for lodging the Proofs and, but for that concern expressed above, they might not have been lodged until the High Court decision of 8 April 2022 and then lodged only on the basis of the Fourth and Fifth Non-Disclosures.

46    On 14 November 2018, Bookarelli commenced this proceeding challenging the respondent’s rejections of the Pain applicants’ proofs of debt.

47    By a letter dated 12 December 2018, the respondent advised the Pain applicants that the claims made in this proceeding and the claims advanced in the Combined Proceedings were virtually identical, the Pain applicants and Bookarelli could and should have brought their claims in a timely manner in any of the Combined Proceedings, and requested that the Pain applicants confirm that if the respondent were successful in the Combined Proceedings, this proceeding would be discontinued. The respondent also foreshadowed a potential summary judgment application on the basis that the claims in this proceeding are identical to the claims in the Combined Proceedings that had already been heard and a potential strike out application on the basis that this proceeding was an abuse of process. The respondent otherwise suggested the proceeding should be adjourned until the determination of the Combined Proceedings.

48    At a case management hearing in this proceeding before Gleeson J on 7 March 2019, Mr Scarcella, appearing for the respondent, raised the prospect of a strike out or stay application but submitted that (a) nothing appropriate could be done until the primary judge delivered judgment in the Combined Proceedings, (b) the respondent as the liquidator of a company in liquidation was concerned about incurring unnecessary costs, and (c) bringing a strike out application before the determination of the Combined Proceedings would not be appropriate as it would effectively lead to a re-litigation of exactly the same issues as were currently the subject of reserved judgment in the Combined Proceedings.

49    On 19 September 2019, the respondent served his defence to this proceeding. The respondent’s solicitors stated in their covering letter:

It remains our client’s position that the present matter could have been brought in a timely manner in proceedings NSD947/2014 (Broome), NSD2525/2013 (Masters) or NSD501/2015 (Wilhelm).

It is our client’s position that the Applicants in these proceedings should agree to either:

1.    abide the outcome of proceedings Masters, Wilhelm and Broome proceedings; or

2.    be joined to any of the Masters, Wilhelm and Broome proceedings and thus be bound by the judgment in those proceedings.

If your clients do not take up one of the above courses, please explain why not.

50    The solicitors for the Pain applicants did not respond to the covering letter.

51    On 18 October 2019, Foster J delivered judgment in the Combined Proceedings: Masters v Lombe (Liquidator); In the Matter of Babcock and Brown Limited (In Liq) [2019] FCA 1720. His Honour found that Babcock & Brown did not contravene s 674 of the Corporations Act in regard to five alleged non-disclosures arising between August 2008 and December 2008.

52    On 23 October 2019, this proceeding was adjourned generally, by consent, pending the final determination of the Combined Proceedings.

53    On or about 20 November 2019, a notice of appeal was filed in the Combined Proceedings.

54    On 16 and 17 November 2020, the appeal in the Combined Proceedings was heard by a Full Court comprising Middleton, Beach and Colvin JJ.

55    On 3 September 2021, the appeal in the Combined Proceedings was dismissed by the Full Court: Masters v Lombe (in his capacity as liquidator of Babcock & Brown Ltd (in liq) (2021) 154 ACSR 612; [2021] FCAFC 161 (Full Court Decision). The Full Court agreed with the primary judge that there were no contraventions of s 674 of the Corporations Act concerning the first, second and third non-disclosure cases. At [241], however, the Full Court rejected the findings made by the primary judge that the alleged fourth and fifth non-disclosures made to the market on 8 November 2008 and 8 December 2008 respectively, did not involve a contravention of s 674(2) of the Corporations Act (Fourth and Fifth Non-Disclosures). The Full Court, nonetheless, found no causation or loss was established for all non-disclosure cases and the appeal was dismissed.

56    On 8 April 2022, an application for special leave to appeal the Full Court Decision to the High Court was refused.

57    Mr Joukhador gave evidence that Mr Riik had instructed him in 2022, that the Pain applicants only wanted to pursue their claims in this proceeding on the basis of the findings made in the Full Court Decision concerning the Fourth and Fifth Non-Disclosures, and to prove causation and loss solely on the basis that they would not have purchased shares in Babcock & Brown had “proper disclosures” been made.

58    In the course of 2024, Bookarelli received a further six authorities from shareholder creditors of Babcock & Brown to lodge proofs of debt based on claims with respect to the Fourth and Fifth Non-Disclosures.

59    On 12 July 2024, the respondent lodged an interlocutory application seeking a permanent stay of this proceeding, that was accepted for filing on 15 July 2024.

60    Mr Joukhador gives evidence in his second affidavit that he has now been instructed to make an application pursuant to s 90-15 and s 90-20 of the Insolvency Practice Schedule (Corporations), being Sch 2 of the Corporations Act (IPS), to seek directions and orders, including an abridged process for accepting claims of shareholder creditors.

D.    Relevant Legal Principles

61    The jurisdiction to order a permanent stay of a proceeding should only be exercised in exceptional cases or sparingly with utmost caution: Kermani v Westpac Banking Corporation (2012) 36 VR 130; [2012] VSCA 42 at [97] (Robson AJA, Neave and Harper JJA agreeing); GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32 at [3] (Kiefel CJ, Gageler and Jagot JJ); CBRE (V) Pty Ltd v Trilogy Funds Management Ltd (2021) 107 NSWLR 202; [2021] NSWCA 316 at [10] (Bell P).

62    An applicant for a permanent stay will ordinarily be required to establish that the continuation of the proceeding would be vexatious or oppressive in the sense that it would be “seriously and unfairly burdensome, prejudicial or damaging”: CBRE at [10].

63    It is not necessarily an abuse of process to raise a matter that could have been raised in earlier proceedings: Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31 (Bingham LJ), 59 (Millett LJ); Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33 at [3]-[4] (Allsop P).

64    In considering whether to grant a stay because of an abuse of process, the Court undertakes a weighing process involving a broad merits-based judgment, which considers both the public and private interests involved: Kermani at [97]; South Townsville Developments Pty Ltd (in liq) v Lauvan Pty Ltd [2019] FCA 666 at [53]-[54] (Stewart J).

65    The Court’s power to order a permanent stay of a proceeding as an abuse of process is enlivened when the use of the Court’s procedures would lead to unjustifiable oppression of a party or the abuse would serve to bring the administration of justice into disrepute: UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1] (Kiefel CJ, Bell and Keane JJ).

66    In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [26] (French CJ, Bell, Gageler and Keane JJ) the plurality stated that abuse of process was an inherently broader and more flexible doctrine than estoppel and observed:

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

(Footnotes omitted.)

67    In Robinson v Deep Investments Pty Ltd [2018] FCAFC 232, Jagot and Colvin JJ observed at [115]:

There is in [[45]-[46] of UBS AG] a focus upon concerns about tactical behaviour by parties. Later, their Honours refer to the ‘forensic advantage’ that Mr Tyne perceived in holding back a claim by the trust of which he was trustee: at [55]. The significance of that conduct for whether there had been an abuse of process was then viewed through the lens of the duty to conduct proceedings in a way that was consistent with the overriding purpose of timely, effective and efficient conduct of modern litigation that takes account of wider public interests. Hiving off the claim was found to be ‘the antithesis of the discharge of the duty’ to give effect to that purpose. At [58] it was concluded that the oppression that resulted: ‘At its core is the vexation of being required to deal again with claims that should have been resolved in [the earlier proceedings]’.

68    More specifically relevant for present purposes is the decision of Brereton J in Re HIH Insurance Ltd (in liq); De Bortoli Wines (Superannuation) Pty Ltd v McGrath (2014) 101 ACSR 1; [2014] NSWSC 774. His Honour stated at [59]:

…a person who was not party to earlier proceedings may nonetheless be precluded from maintaining later proceedings in respect of substantially the same subject matter, even though not in privity in the strict sense with the unsuccessful party in the earlier proceedings, if the person is sufficiently identified with a party to the earlier proceedings, and it was unreasonable to stand by and allow the earlier proceedings to be determined without intervening. In my view, in Australia these cases are best explained as a sub-species of Anshun estoppel; such that where a given matter becomes the subject of litigation and adjudication, the court requires not only the parties to bring forward their whole case, but other persons with a sufficient interest also to do so. Short of privity in the strict sense, there will be sufficient identification where there is control of one by the other - because it is offensive to the efficient administration of justice for a party who could have caused others with a similar interest to join in the proceedings to refrain from doing so and then seek indirectly to relitigate the issue through a controlled entity. In addition, the requisite relationship will be taken to exist where there has been what Lord Hobhouse called an "order for the marshalling of litigation", because where a court has put in place arrangements to facilitate the quick, just and inexpensive resolution of complex related litigation, it is offensive to the administration of justice that a person involved in those arrangement subsequently be able to circumvent them [cf Ashmore, 348H-349A]. However, the existence of the requisite identification is not of itself enough; as with the more familiar form of Anshun estoppel, a non-party will be precluded from later litigating the issue only where it was unreasonable to stand by without intervening in the earlier proceedings.

69    The issue before the Court in HIH Insurance was essentially the same issue that is raised in this proceeding.

70    In HIH Insurance, the applicants were challenging a liquidator’s rejection of or refusal to adjudicate proofs of debt and/or claims. A related entity of the applicants, De Bortoli Wines Pty Ltd (DBWines) had previously unsuccessfully brought proceedings challenging the liquidators’ rejection of its proof of debt (DBWines proceeding). DBWines had claimed it had paid more for its shares than it otherwise would have because of misleading statements made by HIH Insurance. Justice Brereton was required to determine whether the two applicants in the proceedings before him (referred to as DBSuper and Aabrofay) were relevantly identified with DBWines, such that their claims were precluded by Anshun estoppel or an abuse of process.

71    His Honour found at [69]-[73] that, as to Aabrofay, (a) its five directors comprised five of the six directors of DBWines and Mr De Bortoli was the managing director of both DBWines and Aabrofay, (b) DBWines had a financial interest in Aabrofay’s claim and its original proof of debt, (c) its claim had been lodged with the liquidator well before the hearing of the DBWines proceedings, and (d) it was unreasonable for Aabrofay not to have sought early adjudication of its claims prior to the determination of the DBWines proceeding and for DBWines not to have caused Aabrofay to join in the DBWines proceeding.

72    Significantly, his Honour also emphasised at [71], that all the circumstances:

… must be viewed in the context of the corporate liquidation and scheme administration of the HIH group, where the liquidators and administrators are faced with multiple claims, and it is highly desirable to avoid unnecessary duplication of effort and cost, in order to maximise returns, so that the efficiency of management of claims is at a premium …

73    Further, Brereton J considered that it did not matter that the question of whether the contravening conduct caused loss to Aabrofay was a different question to whether it caused loss to DBWines (including because Aabrofay advanced an indirect causation case). His Honour stated at [72]:

[G]iven the common circumstances and timeframe of the acquisitions by both companies, and the common agency of Mr De Bortoli, Aabrofay’s case would require the liquidators to defend, a second time, a case founded on purchases of HIH shares by Mr De Bortoli during the relevant period in indistinguishable circumstances.

74    His Honour also stated at [73] that it was similarly of no consequence that analogous claims from unrelated persons would not be precluded and would proceed.

75    His Honour then observed at [75]:

The judgment in the DBWines case determined, albeit negatively, that HIH’s contravening conduct did not cause loss to DBWines. That concluded the question of causation, however it might be put, so far as concerns DBWines. It would not now be open to DBWines to mount a new case based on “indirect causation”; such a case had to be raised, if at all, in the earlier proceeding. Moreover, it would be an abuse of process by way of collateral attack on the decision in the DBWines case, although HIH was the only defendant, for DBWines to bring an accessorial liability claim against the subsidiaries.

76    After concluding that DBSuper was not controlled by, and did not control DBWines and neither had any financial or beneficial interests in each other, Brereton J then found at [80]:

Aabrofay, on the other hand, is controlled by DBWines. DBWines as a shareholder has a financial interest in Aabrofay’s claim. Aabrofay’s principal claim, which had not been adjudicated, was against HIH, which corresponded with the DBWines claim. DBWines had included Aabrofay’s claim in its original proof. Aabrofay had been reinstated, and its claim lodged in its own name, prior to the hearing of the DBWines proceedings. Evidence pertaining to the Aabrofay acquisitions of HIH shares was given in the DBWines proceedings. There appears to have been no such agitation on the part of Aabrofay for early adjudication prior to determination of the DBWines proceedings as there was in the case of DBSuper. DBWines could have caused Aabrofay to seek leave to proceed against HIH in tandem with the DBWines proceedings, but instead tacitly acquiesced in the utilisation of the DBWines case as the vehicle for determining the issue of causation. In those circumstances, it would bring the administration of justice — particularly in the context of the HIH liquidation and scheme administration — into disrepute to permit the causation issue to be relitigated by Aabrofay, albeit on a different basis. It was unreasonable for Aabrofay not to raise the issue, if it was ever to raise it, by intervening in the DBWines proceedings.

77    The observations made by Brereton J in HIH Insurance at [59] have been cited with approval or applied in the following cases: Sheraz Pty Ltd v Vegas Enterprises Pty Ltd (2015) 48 WAR 93; [2015] WASCA 4 at [110] (Murphy JA, Buss JA and Chaney J agreeing); Angeleska (Known as Slaveska) v Victoria (2015) 49 VR 131: [2015] VSCA 140 at [204] (Warren CJ, Tate JA and Ginnane AJA); Legal Profession Complaints Committee v Rayney (2017) 51 WAR 142; [2017] WASCA 78 at [150] (Martin CJ, Murphy JA and Corboy J agreeing); Patrick Jeeb as trustee for Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121 at [113] (Vaughan J); Ganesh v Dobrowolski [2019] VSC 577 at [38] (Daly AsJ); Lianos v Order of AHEPA NSW Inc (No 4) [2021] NSWCA 159 at [23] (Macfarlan, Meagher JJA and Emmett AJA).

78    Although Brereton J characterised the doctrine precluding later claims by different parties as Anshun estoppel, his Honour’s observations have also been cited in the context of an abuse of process. Abuse of process is a more apt doctrine to apply where the parties to the different proceedings are not privies. In any event, the same result would follow regardless of which principle was applied.

79    The relevant principles were recently summarised by the Court of Appeal of the New South Wales Supreme Court in Lianos in the following terms at [21]-[23]:

Thus, a person who was not a party to earlier proceedings may nonetheless be precluded from maintaining later proceedings in respect of substantially the same subject matter, even though not a privy in the strict sense of a party in the earlier proceedings. If the person is sufficiently identified with a party to the earlier proceedings and it was unreasonable to stand by and allow the earlier proceedings to be determined without intervening, the person may be prevented from relitigating the question. The principle will apply in any proceedings if the subsequent litigant conducted, controlled or managed the earlier proceedings or the other party to the proceedings was induced to believe that the suit was sufficiently constituted by the subsequent litigant. That is to say, where a given issue is raised in litigation for adjudication, the parties ought to bring forward the whole of their case and, if one of them fails to do so, in circumstances where it was unreasonable not to do so, the person may thereafter be estopped from raising the issue in later proceedings.

If a person stands by and waits to see the outcome of a case in which that person has a distinct interest and does not seek to become a party, any attempt to relitigate an issue may be an abuse of process. Thus, it is an abuse of process to initiate proceedings in a court for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff that has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

It is contrary to the efficient administration of justice for a party who could have caused others with a similar interest to join in proceedings to refrain from doing    so and then seek, indirectly, to relitigate the issue through another entity controlled by the person. It is contrary to the quick, just and inexpensive resolution of litigation and offensive to the administration of justice for a person to circumvent such principle by, in effect, suing through a different controlled entity. The question depends upon reasonableness. On the other hand, merely attempting to relitigate the question does not necessarily constitute an abuse of process. Some additional element is required such as a collateral attack on a previous decision, dishonesty or successive actions amounting to unjust harassment.

(Footnotes omitted.)

80    In Angeleska, the Court of Appeal of the Victorian Supreme Court observed at [155]-[157]:

The authorities make clear that abuse of process principles may be invoked to prevent the re-litigation of cases which have been disposed of by previous proceedings. In this respect, there is a degree of conceptual overlap with the doctrine of Anshun estoppel. It is clear, however, that the Court’s power to prevent an abuse of its process can be exercised even where no estoppel arises. …

The focus of an abuse of process analysis is ultimately the substance of proceedings, rather than their form. As a result, in appropriate circumstances, litigation may be regarded as an attempt at re-litigation notwithstanding that it is brought by a different party to the earlier proceeding.

In such a case there must, however, be some relevant connection between the applicants or other special factor rendering the attempted re-litigation an abuse of process. This need not be a subjective intention to misuse the court’s procedures. …

(Footnotes omitted.)

81    In Legal Profession Complaints Committee, Martin CJ quoted Brereton J’s observations in HIH Insurance at [59], [77]-[78] and then stated at [151]:

These cases establish that, notwithstanding the additional breadth and flexibility of the principles relating to abuse of process when compared to the principles relating to estoppel, a 'broad merits‑based judgment' to the effect that proceedings commenced by one party give rise to an abuse of process because of the conduct of another party in earlier proceedings cannot be made unless there is a 'relevant connection' or 'sufficient identification' between the two parties. Consistently with the approach taken by the High Court in each of Tomlinson and Timbercorp, generally speaking such a connection or identification will be established if one party controls, or is controlled by, the other, such that it would be unreasonable for the second party to fail to intervene in or direct the earlier proceedings, or vice versa.

82    It is clear that the analysis is directed at substance, not form. As Handley AJA observed in Champerslife at [114]:

Earlier proceedings by one litigant could not make later proceedings by another an abuse of process unless there was a relevant connection between the litigants. Since the issue was abuse of process realities must be relevant. The “broad merits-based judgment” excluded any narrow or artificial approach.

83    Those observations of Handley AJA were cited with approval in Legal Profession Complaints Committee at [149] and Angeleska at [157].

E.    Submissions

E.1.    Respondent

84    The respondent advances the following principal submissions in support of his application for a permanent stay.

85    First, Bookarelli controlled and managed the claims of the applicants in the Combined Proceedings and the Pain applicants in this proceeding.

86    Second, it was unreasonable and contrary to the administration of justice for the Pain applicants not to bring forward their claims in the Combined Proceedings. The claims brought in this proceeding and the Combined Proceedings are substantially the same and are founded on identical non-disclosures. The slight differences between this proceeding, including as to causation, are of no significance and Bookarelli could have brought the Pain applicants’ claims as part of the Combined Proceedings.

87    Third, although it is not necessary to prove any intentional misuse of the Court’s processes, the only cogent explanation for Bookarelli’s failure to advance the Pain applicants’ claims in the Combined Proceedings is that it wanted to progress their claims after the outcome in the Combined Proceedings was known in order to improve its claims. The respondent submits that Bookarelli, as the controller of the claims advanced by the Pain applicants, intended either to obtain the benefit of the Combined Proceedings if they were successful or if the outcome of the Combined Proceedings was “not to its liking”, to relitigate the issues with a view to achieving a different outcome.

88    Fourth, unless the proceeding is permanently stayed, Bookarelli’s decision not to advance the Pain applicants’ claims earlier will have serious adverse consequences on the liquidation of Babcock & Brown, including further delaying the already extended liquidation and reducing funds available to proven creditors of the company.

E.2.    Pain applicants

89    The Pain applicants advance the following principal submissions in opposition to the respondent’s application for a permanent stay.

90    First, they submit that a barrier to the respondent obtaining a permanent stay is that the respondent has rejected their proofs of debt and that decision cannot stand given the findings made in the Full Court Decision with respect to the Fourth and Fifth Non-Disclosures.

91    Second, they submit that this proceeding and the Combined Proceedings differ in material respects because they seek to advance a “no transaction” causation case in this proceeding, that is, they would not have purchased shares in Babcock & Brown had they been informed of the matters the subject of the non-disclosures. In contrast, they submit, the causation case in the Combined Proceedings was limited to a “market based” causation theory, that is, the difference between what the applicants paid for their Babcock & Brown shares and the share price had the disclosures been made.

92    Third, they submit that this proceeding could be conducted more cheaply and expeditiously than the Combined Proceedings. The calculation of loss and damage is unlikely to require expert evidence and they seek to rely on observations made by Beach J in TPT Patrol Pty Ltd v Myer Holdings Ltd (2019) 293 FCR 29; [2019] FCA 1747 at [1671], a s 674(2) non-disclosure case, that causation might be established in the vast majority of cases by a simple statutory declaration or ticking boxes in a verified questionnaire after judgment on the common issue.

93    Fourth, they submit that there could be no privity of interest with respect to shareholders who have recently approached to join this proceeding or with respect to the 2,902 persons or entities who acquired Babcock & Brown shares after the Fourth Non-Disclosure made to the market on 8 November 2008 who have not yet lodged a proof of debt with the respondent.

94    Fifth, and relatedly, they submit that a countervailing consideration is that it was open to the respondent to have sought a negative declaration or other ancillary relief such as an order under s 90-15 of the IPS to impose deadlines for lodging claims or commencing proceedings. They submit that this would have the effect of barring all future claims from shareholders, but the respondent chose not to pursue that course.

95    Sixth, they submit that they did not consciously take advantage of the Combined Proceedings. Rather, they submit that the evidence of their solicitor, Mr Joukhador, is that the commencement of this proceeding was accelerated because of concerns about the health of Justice Foster. Nor, they submit, did they unreasonably stand by, without intervening in the Combined Proceedings.

96    Seventh, they submit that this is not a case in which the respondent has arranged his affairs in any particular way following the dismissal of the Combined Proceedings.

97    Finally, they submit that two other matters bear on case management considerations, namely, the respondent has failed to move with promptitude and the respondent has accepted in a report issued pursuant to s 439A of the Corporations Act that Babcock & Brown was insolvent no later than the Fourth and Fifth Non-Disclosures and the board of Babcock & Brown should have, inter alia, suspended trading and considered placing the company into voluntary administration at that time.

F.    Consideration

98    I am satisfied that the application of a broad merits-based judgment to the respondent’s stay application dictates that the proceeding should be permanently stayed as an abuse of process.

99    First, it was common ground between the parties that the authorities obtained by Bookarelli gave them control over the claims advanced by the applicants in each of the Grant-Taylor Proceeding, the Combined Proceedings and the claims advanced by the Pain applicants in this proceeding (together, the Bookarelli Proceedings). Indeed, senior counsel for the Pain applicants at the hearing of the stay application conceded that Bookarelli is a funding entity that has funded and controlled the bringing of each of the Bookarelli Proceedings in this Court against the respondent.

100    Second, the respondent in the context of a significant corporate liquidation has been faced with multiple overlapping and repetitive claims by applicants advanced by Bookarelli over a period of more than 12 years, as summarised at [16] to [57] above. It is highly desirable, as Brereton J observed in HIH Insurance at [71] that unnecessary duplication of effort and cost is avoided in order to maximise returns to creditors.

101    Third, the issues raised in the Combined Proceedings and in this proceeding are substantially identical. In each proceeding it is alleged that Babcock & Brown contravened s 674(2) of the Corporations Act on the same five occasions between August and December 2008 by failing to disclose material information concerning its actual earnings, forecast earnings and forecast net profit after tax. A differently framed s 674(2) non-disclosure case was also advanced in the Grant-Taylor Proceeding.

102    The only differences between the Combined Proceedings and this proceeding are that (a) the Pain applicants advance an alternative “no transaction” causation case, (b) the Pain applicants purchased shares in Babcock & Brown between 11 August 2008 and 7 January 2009, compared with the period 11 August 2008 and 13 March 2009 for the applicants in the Combined Proceedings, and (c) the Pain applicants also allege Babcock & Brown caused the Pain applicants to have a financial detriment or disadvantage, or gained a financial advantage, by deception or dishonesty in contravention of the Crimes Act 1900 (NSW) or other equivalent State legislation, or engaged in misleading and deceptive conduct.

103    For present purposes, the “no transaction” causation case is the only material point of distinction. The “no transaction” causation case was advanced in this proceeding as an alternative causation theory following the hearing of the Combined Proceedings, but before the delivery of judgment at first instance. The causation theory advanced before Foster J in the Combined Proceedings, and subsequently before the Full Court, was limited to a “market based” causation theory. This theory depended on the Court accepting expert evidence as to the likely Babcock & Brown share price on the assumption that the relevant non-disclosures had in fact been made to the market. A “market based” causation theory was also exclusively advanced in the Grant-Taylor Proceeding.

104    There would have been no impediment to the applicants in the Combined Proceedings also advancing an alternative “no transaction” causation case. In that respect, the present position is relevantly indistinguishable from that considered by Brereton J in HIH Insurance.

105    In that case his Honour concluded that it was not open to a common controlled entity to mount a new causation case against a liquidator in circumstances where the issue of causation had been adversely determined in previous proceedings brought by another common controlled entity: at [72]-[75].

106    Fourth, Bookarelli did not seek to obtain from the applicants in the Combined Proceedings and the Pain applicants at the time that it obtained the Bookarelli Documents any information as to whether they would or would not have purchased shares, including by not specifically asking them for that information in the questionnaire. I infer that Bookarelli made a forensic decision in both the Grant-Taylor Proceeding and each of the Combined Proceedings not to pursue a “no transaction” causation case. The advantage of the “market based” causation theory is that causation can readily be inferred. The theory simply proceeds on the basis that each applicant would still have purchased shares in Babcock & Brown, but that the shares would have been less valuable had the impugned non-disclosures been made. The theory thus depends on expert evidence as to the value of the shares if the disclosures had been made, not evidence from each shareholder as to whether or not they would still have acquired shares in Babcock & Brown.

107    It was only after the hearing of the Combined Proceedings before Foster J that a decision appears to have been made by Bookarelli to include in the alternative a “no transaction” causation case in its latest iteration of the proceedings that it has commenced against the respondent, namely in this proceeding.

108    Then, following the decision of the Full Court in the Combined Proceedings, Bookarelli has now made plain, as reflected in the instructions given to its solicitor, Mr Joukhador, referred to at [57] above, that it wants to take advantage of the findings made by the Full Court by confining the Pain applicants’ claims to the Fourth and Fifth Non-Disclosures, not to pursue its “market based” causation theory and to advance only its alternative “no transaction” causation case.

109    Armed with the Bookarelli Documents from each of the Pain applicants by no later than 20 July 2016, in materially identical terms to the documents obtained from the applicants in the Combined Proceedings, Bookarelli stood by and allowed the hearing of the Combined Proceedings to proceed before Foster J without seeking to litigate an alternative “no transaction” case. In those circumstances, consistently with the statements made by the Court of Appeal of the New South Wales Supreme Court in Lianos at [21]-[23], it was contrary to the efficient administration of justice for the “no transaction” causation case not to have been advanced in the Combined Proceedings.

110    Fifth, contrary to the submissions of the Pain applicants, I do not accept that the determination of the “no transaction” causation case could be resolved expeditiously and with limited cost. It is possible that a similar or equivalent approach to that adopted by Beach J in TPT Patrol might be able to be adopted. Irrespective of whatever approach that the Pain applicants might seek to pursue to establish causation, the Court would have to receive evidence and then determine whether it is satisfied that the evidence advanced was sufficient to establish for each of the Pain applicants that they would not have purchased shares in Babcock & Brown had they known of the matters the subject of the Fourth and Fifth Non-Disclosures. This would likely require consideration of their individual circumstances, in particular, their appetite for financial risk, their financial experience and the extent of their reliance on financial advisers. It may also raise issues more generally of the market’s knowledge of Babcock & Brown’s financial position, an issue that would be expected to overlap substantially with the expert evidence sought to be relied upon in the Combined Proceedings to establish the “market based” causation theory.

111    Sixth, I accept that if the proceeding is not permanently stayed it will have serious adverse impacts on the liquidation of Babcock & Brown. The respondent has already expended more than $4.2 million in legal costs in the Combined Proceedings. Further, in the Grant-Taylor Proceeding, the respondent only recovered some 44% of these costs by agreement with the Grant-Taylor applicants. It is not possible to estimate with any precision the costs of defending the claims advanced by the Pain applicants in this proceeding but they are likely to be substantial. Further, if the proceeding is not stayed it will in all likelihood further delay by some years the finalisation of a liquidation that commenced more than 15 years ago. The prejudice to creditors in a further material delay in obtaining any return in the liquidation weighs heavily in favour of a stay given that essentially identical issues, other than the “no transaction” causation theory, have already been litigated and lost at first instance, on appeal to the Full Court (other than with respect to the Fourth and Fifth Non-Disclosures as explained above) and where special leave to appeal to the High Court was refused.

112    I accept that Bookarelli has identified a further six shareholders for which they have recently obtained authorities and who would not be impacted by a permanent stay of this proceeding and it is at least theoretically possible that further shareholders may emerge. This has the necessary consequence that the respondent may not be able to proceed immediately to finalise the liquidation of Babcock & Brown if the proceeding is permanently stayed. Nevertheless, the prospect of the respondent being able to resolve claims advanced by six shareholders would appear to be significantly greater than attempting to resolve claims advanced by the 313 Pain applicants.

113    Seventh, I do not accept that the respondent can relevantly be characterised as an “architect of his own misfortune”. The 27 June 2016 letter from Bookarelli inextricably linked any claims that might be advanced by the Pain applicants to the result of the Combined Proceedings. The respondent then made plain to Bookarelli, in a letter of 12 December 2018, after this proceeding had been commenced in November 2018, that he considered that the proceeding was an abuse of process, and then in September 2019 requested that the Pain applicants agree to abide by the outcome of the Combined Proceedings or agree to be joined to the Combined Proceedings.

114    Nor do I accept that the fact that there has been any delay in bringing this application weighs heavily against the grant of a permanent stay. A permanent stay is an exceptional remedy and it was both prudent and appropriate for the respondent to issue orders for production to Bookarelli and Mr Riik, and conduct examinations of four of the Pain applicants, to determine the extent of the control Bookarelli had over the claims brought by the applicants in each of the Bookarelli Proceedings, before making an application for a permanent stay of the proceeding. It is also significant that little, if any, substantive steps were being undertaken in the proceeding during the period in which these investigations were being conducted.

115    Eighth, a further and additional reason for concluding that the proceeding should be stayed as an abuse of process, is that I infer that the decision made by Bookarelli not to bring forward the claims by the Pain applicants to be determined concurrently with the Combined Proceedings was a deliberate forensic decision to gain an advantage.

116    The explanations given by Mr Joukhador in his affidavit of what he might have been told as to the delay in the commencement of this proceeding cannot rise above hearsay evidence as to the motivations of Bookarelli. Mr Joukhador was not a relevant decision maker for Bookarelli. Mr Joukhador gave evidence that he received instructions from Mr Riik and Mr Kurland. Mr Scarcella gave evidence that Mr Riik introduced Mr Kurland to him as a director of Bookarelli but he does not appear to have ever formally been appointed as a director. An ASIC company search of Bookarelli obtained by Mr Scarcella records that Mr Riik was appointed as a director of Bookarelli on 9 September 2014 and for the period since 13 October 2014, was the only director of the company, except for the period between 15 November 2018 and 16 December 2019 during which a person called Carolyn Lorna Vincent was also recorded as a director.

117    Further, as Mr Joukhador acknowledged in cross examination, at least in some cases, it was fairly common in his experience in dealing with Bookarelli that they made decisions without his input “based upon their experience and expertise in shareholder claims”.

118    In making findings as to Bookarelli’s motivations, I have therefore relied on the objective circumstances and the apparent logic of events rather than the unsatisfactory and hearsay evidence given by Mr Joukhador. Mr Joukhador’s evidence was given independently of any contemporaneous notes of discussions alleged to have occurred many years ago. Further, I am satisfied from the inconclusive and contradictory evidence that he gave in cross examination that he no longer has any genuine recollection of the gist, expressed in words to the effect, of the conversations to which he purports to give evidence in his affidavits.

119    By the time Bookarelli filed the final form of their claims in the Combined Proceedings on 8 July 2016, Bookarelli had signed authorities from 310 of the 313 Pain applicants. Given the essentially identical claims sought to be advanced with respect to the Pain applicants it is unlikely, if not inconceivable, that the respondent would have opposed an application for the Pain applicants to be included in the Combined Proceedings. It was objectively very much in the interests of the respondent that all claims should be heard and determined together, as demonstrated by the respondent’s decision to proceed with the concurrent hearing of the Combined Proceedings and his subsequent request in September 2019 that the Pain applicants either abide by the outcome of the Combined Proceedings or apply to become parties to the Combined Proceedings.

120    It is readily apparent from the 27 June 2016 letter that at a minimum, an advantage that Bookarelli was seeking to gain from the Combined Proceedings was that in the event of a successful outcome, the Pain applicants’ foreshadowed proofs of debt would be accepted without the need for them to be joined to existing proceedings or bring their own proceedings.

121    The decision to lodge the proofs of debt for the Pain applicants on or about 3 October 2018 and to commence this proceeding on 14 November 2018 was inconsistent with that objective but appears to be explicable on the basis that Bookarelli was concerned that the primary judge, for health reasons, might not be able to deliver judgment in the Combined Proceedings.

122    In any event, any inference that Bookarelli’s motivation in not advancing this proceeding was limited to saving costs, and subsequently only displaced by fears that there might not be a judgment in the Combined Proceedings, would be inconsistent with Bookarelli’s refusal to accept the respondent’s proposal in September 2019 that the Pain applicants agree to abide by the outcome of the Combined Proceedings or be joined to those proceedings.

123    It is implausible that Bookarelli would not have appreciated that an additional benefit, and motivation, not to advance the Pain applicants’ claims until the resolution of the Combined Proceedings was the flexibility to reformulate and advance new claims for the Pain applicants if the applicants in the Combined Proceedings were not successful. I do not accept that it is plausible, given its experience and relative sophistication as a litigation funder, that Bookarelli simply assumed it would succeed in the Combined Proceedings and did not turn its mind to what options it might have if the applicants in the Combined Proceedings were unsuccessful.

124    It is an inference that I can more comfortably draw pursuant to the principle in Jones v Dunkel given the unexplained absence of evidence from the two Bookarelli decision makers as to the delay in lodging proofs of debt and commencing proceedings to advance the claims of the Pain applicants. I do not accept the submission by the Pain applicants’ counsel that I should not draw a Jones v Dunkel inference on the basis that Mr Joukhador was involved in the relevant discussions and processes, and gave evidence. As noted above at [111], Mr Joukhador gave evidence that Mr Riik and Mr Kurland made decisions without his input “based upon their experience and expertise in shareholder claims”. Both Mr Riik and Mr Kurland are clearly in the camp of the Pain applicants by reason of the authorities given to Bookarelli and both of whom could be expected to give evidence as to Bookarelli’s motives in delaying the commencement of this proceeding.

125    Mr Riik’s affidavit was limited to evidence of the discussions he had with five of the Pain applicants as to whether they would have acquired shares in Babcock & Brown had the true financial position of the company been disclosed to them at the time they acquired their shares. It was an obvious enquiry to have made and it is inexplicable that it was not made at the time that the Bookarelli Documents were collected by Bookarelli from the Pain applicants, unless a deliberate forensic decision had been made at that time that only an indirect “market based” causation theory would be advanced for the Pain applicants. This is a decision, I infer, that was only revisited after the hearing of the Combined Proceedings before the primary judge when an alternative “no transaction” causation case was included when this proceeding was ultimately commenced in November 2018.

126    Given my conclusion that the proceeding should be permanently stayed as an abuse of process it is not necessary to consider the alternative contention advanced by the respondent that the proceedings should be permanently stayed because they are estopped by Anshun estoppel.

G.    Disposition

127    An order is to be made permanently staying this proceeding as an abuse of process and the Pain applicants (indemnified by Bookarelli) are to pay the respondent’s costs.

Associate:

Dated:    21 November 2024

SCHEDULE OF PARTIES