FEDERAL COURT OF AUSTRALIA Bell Group NV v Insurance Commission of Western Australia [2016] FCA 1493 File number: NSD 2079 of 2016 Judge: MCKERRACHER J Date of judgment: 9 December 2016 Catchwords: CORPORATIONS – insolvency – reasons for discharge of anti-anti-suit injunction Date of hearing: 8 December 2016 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 5 Counsel for the Applicant: Mr N O'Bryan SC with Mr S Foreman Solicitor for the Applicant: Lipman Karas Counsel for the Respondent: Mr G Rich SC with Mr PD Evans Solicitor for the Respondent: State Solicitor's Office ORDERS NSD 2079 of 2016 BETWEEN: BELL GROUP NV (IN LIQUIDATION) ARBN 073 576 502 Applicant AND: INSURANCE COMMISSION OF WESTERN AUSTRALIA Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 8 december 2016 THE COURT ORDERS THAT: 1. Order 4 of the orders of the Hon. Justice Flick dated 2 December 2016 be dissolved or vacated. 2. These proceedings be adjourned sine die. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCKERRACHER J: 1 I made orders yesterday discharging an injunction ordered in this proceeding on 2 December 2016 following an urgent interlocutory hearing. These are my reasons. The applicant sought and obtained an interim 'anti-anti suit injunction' against the respondent (ICWA) to restrain it from commencing an anti-suit injunction application in extant proceedings in the Supreme Court of Western Australia. That foreshadowed application was to restrain the applicant from continuing certain proceedings in this Court in WAD 191 of 2016 Bell Group NV (in liquidation) v Bell Group Finance Pty Ltd and others. The orders secured by the applicant were a deal broader than that, but that was the main purpose and intent. The applicant proceeded ex parte and without notice. ICWA contends that it did so without full disclosure, but it is unnecessary to decide that point. ICWA also contends that it could not seek the relief it seeks in this Court because it is not yet a party to WAD 191 and its non-federal cause of action is based in contract (albeit on a common factual substratum). I do not necessarily accept either of those contentions, but I do accept the reminder of the points ICWA has made. 2 Essentially the trigger to the ex parte application was a letter of 1 December 2016 from ICWA to the applicant which, in substance, gave notice of its intention to issue the anti-suit application unless an undertaking was given by 5 December 2016 to discontinue the proceeding in this Court in WAD 191. A short timeframe was given and in circumstances where WAD 191 had been on foot for some period before the Supreme Court proceedings were commenced. Nonetheless, an invitation to confer was also extended. There was no suggestion that such application in the Supreme Court would be ex parte. One can understand that receipt of this letter came as a shock given that ICWA was and is seeking to be joined in WAD 191. 3 No steps were taken by the applicant to confer, notwithstanding the invitation to do so. This approach, rather than picking up the phone, was unfortunate. This was explained on the basis that the issuing of the anti-suit application was seen as an imminent threat. There was no reasonable basis for construing the letter for ICWA in that manner. Moreover, and contrary to the applicant's submission, nothing said in another letter the same day from ICWA through different solicitors exacerbated the threat. 4 The reality is that the greatest prejudice to which the applicant was to be exposed and could now be exposed is and was the requirement to argue its position in the Supreme Court as to why the relief which ICWA was foreshadowing should not be granted. It has now done that twice in any event, as a result of the steps it took in seeking the injunction ex parte and subsequently defending that course and seeking that the injunction be extended until further order. This also needs to be seen against a background in which ICWA was not joined in WAD 191 and there is clearly opposition by the applicant to ICWA being joined, at least other than on certain terms. Given that approach, it is not particularly surprising that the broader proceedings in the Supreme Court might be seen (at least by ICWA) as being the appropriate vehicle to resolve the disputes which are presently to be dealt with in this Court. That does not need to be resolved at present. It is relevant only to observe the reasonableness of the steps taken by ICWA. 5 The interim relief was granted by Justice Flick on the suggestion of an imminent threat. The matter being argued ex parte, his Honour did not have the opportunity to hear the other side of the story. There is no threat as such and the orders made should be discharged, as his Honour undoubtedly contemplated may well occur when ICWA was heard. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 9 December 2016