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