City of Swan v McGraw-Hill Companies Inc. [2014] FCA 442

FEDERAL COURT OF AUSTRALIA

City of Swan v McGraw-Hill Companies Inc. [2014] FCA 442 Citation: City of Swan v McGraw-Hill Companies Inc. [2014] FCA 442

Parties: CITY OF SWAN (ABN 21 086 180 442) and MOREE PLAINS SHIRE COUNCIL (ABN 46 566 790 582) v MCGRAW-HILL COMPANIES, INC. (A COMPANY INCORPORATED IN NEW YORK), STANDARD & POOR'S FINANCIAL SERVICES LLC (A COMPANY INCORPORATED IN DELAWARE) and STANDARD & POOR'S INTERNATIONAL LLC (A COMPANY INCORPORATED IN DELAWARE)

File number: NSD 656 of 2013

Judge: RARES J

Date of judgment: 7 May 2014

Catchwords: STATUTORY INTERPRETATION – national proportionate liability legislation – Subdiv GA of Div 2 of Pt 2 of Australian Securities and Investments Commission Act 2001 (Cth) – whether non-party in first proceedings brought by plaintiff found not to be concurrent wrongdoer can be sued by same plaintiff in second proceedings for same damage or loss – whether s 12GU permits plaintiff to bring fresh proceedings against non-party where defendant in earlier proceedings failed to establish non-party was concurrent wrongdoer –whether a claim that a defendant or non-party is concurrent wrongdoer a defence to plaintiff's claim – whether plaintiff or defendant has onus of proof that non-party is or is not concurrent wrongdoer ESTOPPEL – whether finding or order in first proceeding that non-party not a concurrent wrongdoer under proportionate liability legislation, including SubDiv GA of Div 2 of Pt 2 of Australian Securities and Investments Commission Act (2001) (Cth), creates res judicata or issue estoppel precluding plaintiff from later suing same non-party to recover same damage or loss as claimed in first proceedings – whether s 12GU permits plaintiff to bring second proceeding when non-party not joined in first proceedings – whether second proceeding an abuse of process – whether risk of inconsistent judgments – whether second proceedings have reasonable prospect of success PRACTICE AND PROCEDURE – ex parte application – material non-disclosure – high standard of candour and responsibility required where party seeks ex parte order – whether ex parte order granting leave to serve outside of jurisdiction should be set aside where non-disclosure that respondent was a non-party to earlier proceedings in which finding or order made that non-party was not concurrent wrongdoer in respect of claimed damage or loss – whether affidavit required of belief in good cause of action in support of ex parte application to serve party outside the jurisdiction PRACTICE AND PROCEDURE – submission to jurisdiction – where foreign respondent applies for greater relief than just setting aside service on it – where foreign respondent sought dismissal of proceedings in addition to setting aside service on it Held: s 12GU of Australian Securities and Investments Commission Act 2001 (Cth) preserved applicants' rights to sue current respondents to recover amount not exceeding damage or loss applicants sustained – no relevant non-disclosure – respondents submitted to the Court's jurisdiction