Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd

1. [1]

   BATHURST CJ AND LEEMING JA: We agree with Bell P’s reasons and proposed orders. What follows is by way of elaboration rather than qualification and presupposes familiarity with the President’s judgment.

2. [2]

   The proposed grounds of appeal disclose errors of a kind not infrequently seen in this Court where an attempt is made to appeal from an interlocutory decision based on the exercise of a discretion, to which the principles of restraint in House v The King (1936) 55 CLR 499; [1936] HCA 40 apply.

3. [3]

   Proposed ground 1(a) alleged error on the part of the primary judge “by imposing too high a test” in order not to give effect to the exclusive jurisdiction clause. But even if that were established, this Court will if possible itself re-exercise the discretion which has miscarried. It thus becomes essential for an appellant (a) to formulate the correct test to be applied, and (b) to demonstrate that when that test is applied, it will generate a different outcome, such that the alleged error is one that is material. This reflects two basal principles. The first is that the right of appeal invoked by Sanitarium and Rebel in s 101 of the Supreme Court Act 1970 (NSW) is from a judgment or order of the Court in a Division, and not the reasons given for that judgment or order. The second is that ordinarily only errors which are material in the sense that they deprive the party of the possibility of a successful outcome will warrant appellate intervention: see Nobarani v Mariconte [2018] HCA 36; 92 ALJR 806 at [37]-[38]. At no time did Sanitarium or Rebel articulate what they maintained was the correct test.

4. [4]

   Proposed ground 1(b) alleged error on the part of the primary judge by “fundamentally mistaking the facts” by “finding that [Rebel] should have been aware of the [RTA] (to which it was not a party) and was, in effect, to blame and so should bear the risk of being required or forced to litigate in a foreign jurisdiction” and by “failing to find that it was [Emirat] that was or should have been aware of the terms of the Promotion Agreement”. This formulation discloses a difficulty of a different kind.

5. [5]

   The primary judge was called upon to exercise discretionary powers to stay the proceedings, or alternatively to authorise service out of the jurisdiction. A deal of evidence was adduced to inform the exercises of discretion for which each party contended. It is ordinarily incumbent on a party contending on appeal that a discretion has miscarried to demonstrate that the judge’s attention was drawn to the particular matter of which complaint was made. “[W]hen a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters, at least unless they are fundamental and obvious”: Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120]. But Mr Pike SC frankly acknowledged that the primary judge was not asked by any party to make the findings to which proposed ground 1(b) was directed (transcript, 8 March 2019, 32.29-36). Neither of those findings is so “fundamental” or “obvious” that the making or failure to make the finding discloses appellable error.

6. [6]

   What is more, this proposed ground does not fairly capture the reasons given by the primary judge. The finding of which complaint is made is found in [45] of his Honour’s reasons, which relevantly provided:

7. [7]

   The evaluative conclusion in the first sentence is explained by the three sentences which follow. The second sentence is incontrovertibly true. The third and fourth sentences do not amount to a finding that Rebel was aware, or should have been aware, of the terms of the RTA. Still less is there a finding of blameworthiness. Rather, there is a nuanced approach which identifies both possibilities as to Rebel’s knowledge of the exclusive jurisdiction clause in the RTA, and applies either alternative to downplay or perhaps to negate the discretionary considerations Rebel had invoked. In short, proposed ground 1(b) does not do justice to the careful evaluative approach undertaken by the primary judge.

8. [8]

   Passing over proposed ground 1(c), proposed ground 2 picks up the closing words of the formulation of principle in House v The King. This ground was not sought to be developed orally, save for the statement that “We also rely upon ... what I’ll call the last limb of House v The King, which is the unjust or plainly unreasonable [ground] and I always refer to it as the Wednesbury unreasonableness [ground]”. Taking those words in isolation may lead to error.

9. [9]

   It is one thing for the reasons given by the primary judge to disclose appellable error. If so, that is addressed by the formulations of principle in the first half of the passage from House v The King. That is not an end of the matter. There may be cases where the reasons do not disclose why the impugned orders were made. In such cases, even though no error of principle or other well recognised basis for appellate intervention may be discerned on the face of the reasons, an appellate court may nonetheless intervene. The reason is that it may be inferred in light of the result that there was appellable error in the unstated reasons which led to the order. This is plain from the passage when read as a whole:

10. [10]

    It is wrong to seek to apply the references to “unreasonable or plainly unjust” in that passage in isolation. The premise of this aspect of the test in House v The King is that the reasons do not explain the result reached.

11. [11]

    On no view was there any inadequacy in the reasons given by the primary judge for granting the limited stay. Sanitarium and Rebel did not submit that there was. It is revealing that their written submissions were confined to a submission that the primary judge had erred “either imposing too high a test, or materially mistaking the facts” (submissions dated 6 November 2018, paragraph 13) and made no attempt to elaborate proposed ground 2. The written submissions were right to ignore proposed ground 2. Either the reasons of the primary judge disclose appellable error or they do not. There is no occasion for resorting to the drawing of an inference as explained in the second half of the passage from House v The King because the result, described by the primary judge as finely balanced, is unexplained. A similar mode of reasoning was rejected by this Court in Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission [2016] NSWCA 298 at [52]-[53], where it was observed that taking these words in isolation tended to dilute the test.

12. [12]

    In oral submissions, a further attack was made invoking a different line of authority. These submissions arguably went beyond the proposed grounds of appeal, but no such point was taken by the respondent. It was said that it was sufficient to establish appellable error if it be shown that the primary judge failed to take into account or gave insufficient weight to some relevant matter. True it is that that is how this Court expressed the necessary requirements of establishing House v The King error in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] and [78]-[83], which was restated in identical terms in Young v Hones (No 2) [2014] NSWCA 338 at [15]. Those were the two decisions to which senior counsel referred, although the same statements may be found in a number of other decisions of this Court. Quite commonly, although not invariably, the proposition that there may be appellate review of a discretionary decision where there has been a “failure to give sufficient weight to some relevant matter” is juxtaposed with the proposition that it is insufficient that the appellate court concludes that it would have exercised the discretion differently: see for example Certain Lloyds Underwriters v Kathy Giannopoulos; Certain Lloyds Underwriters v Marlene Giannopoulos [2009] NSWCA 56 at [89]-[90]; Duong v Tran [2010] NSWCA 280 at [31]. Indeed, Heydon JA, with whom Sheller JA and Studdert AJA agreed, himself restated that qualification in Micallef v ICI Australia immediately after identifying the various bases on which appellate intervention might occur.

13. [13]

    The language employed in Micallef and other cases on which the oral submissions made on behalf of Sanitarium and Rebel were based needs to be recognised for what it is. On the one hand, appellate intervention in the exercise of a discretion may be available where insufficient weight has been given to something relevant. On the other hand, it is fundamental that deference is to be given by an appellate court to the discretionary decisions of judges at first instance, insofar as it is insufficient for the appellant merely to persuade the appellate court that it would have decided the matter differently. Statute has given a right of appeal to a disappointed litigant, and committed a process known as an appeal to the appellate court. Statute has not conferred a right to a hearing de novo. This is the point made by Heydon JA in Micallef immediately following his Honour’s observation that it is insufficient that the appellate court might itself exercise the discretion differently: “The law committed the exercise of the discretion to Garling DCJ.”

14. [14]

    It is always important to read the words in reasons for judgment in context, and as a whole. It is wrong to take part of the formulation of when an appellate court will intervene in the exercise of a discretion in isolation, as if it were sufficient in every case merely to establish that insufficient weight had been given to a matter. It is necessary to apply the nuanced formulation of principle as a whole.

15. [15]

    It was in that context that Aickin J said in Gronow v Gronow (1979) 144 CLR 513 at 537; [1979] HCA 63 that:

16. [16]

    This has long been clear law. In sentencing appeals, it is well established that merely claiming that insufficient weight, or excessive weight, was given to one factor is normally not a proper ground. As Spigelman CJ said in R v Baker [2000] NSWCCA 85 at [11], the circumstances in which matters of “weight” will justify intervention by an appellate court are narrowly confined. That was a Crown appeal, but the same principle has regularly been applied in other appeals against sentence: see for example Vaiusu v R [2017] NSWCCA 71 at [29] and the cases there cited.

17. [17]

    In civil appeals, it was made clear by Mason P, with whom Stein and Giles JJA agreed, in Idoport Pty Ltd v National Australia Bank Ltd & Ors; Idoport Pty Ltd v Argus; Idoport Pty Ltd v National Australia Bank Ltd & Ors [2002] NSWCA 271 at [30]:

18. [18]

    Kitto J returned to the matter in Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627; [1953] HCA 25, saying:

19. [19]

    What was said by Kitto J in Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52 and Australian Coal and Shale Employees’ Federation v The Commonwealth has been followed in this Court in Vines v Australian Securities and Investment Commission [2007] NSWCA 126 at [12]-[13] (Spigelman CJ), Gillfillan v Australian Securities & Investments Commission [2012] NSWCA 370 at [176] (Sackville AJA, Beazley and Barrett JJA agreeing); M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [9] (Basten, Barrett JJA and Bergin CJ in Eq) and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [29] (Gleeson JA, Macfarlan and Payne JJA agreeing).

20. [20]

    The point of the foregoing is to reiterate that error will be avoided if the statements of principle (which concededly are sometimes, when nothing turns on it, referred to elliptically) are read as a whole and in their context, and it is steadily borne in mind that it is insufficient merely to establish that insufficient weight has been given to a relevant matter. The nature of the process is that of an appeal, one element of which is deference to the tribunal at first instance.

21. [21]

    For those reasons, and as the President has explained, it was entirely appropriate for prominence to be given in oral submissions to proposed ground 1(c), being the only proposed ground not attended by the difficulties referred to above.

22. [22]

    On the way in which the discretion was to be exercised, we would add only the following to what has been said by the President. There is a degree of similarity in the principles governing anti-suit injunctions and stays, insofar as both remedies may be founded upon an exclusive jurisdiction clause. In particular, there is the “strong bias” in favour of holding parties to their promise, to which Dixon J referred in Huddart Parker Ltd v The Ship “Mill Hill” (1950) 81 CLR 502 at 509; [1950] HCA 43. (Incidentally, the approach taken to such clauses is a paradigm example of the inaptness of some all-embracing doctrine of “efficient breach”, dispatched in this country by Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 at [13]. It is not merely the availability in appropriate cases of equitable remedies such as injunctions and specific performance, but also the vindication of such clauses in the exercise of discretion in granting a stay or setting aside of service, that renders it quite wrong to describe a contracting party as having a choice either to abide by its promise or else to pay damages.)

23. [23]

    But that similarity should not disguise the quite different character of what is occurring. In the case of an anti-suit injunction based on an exclusive jurisdiction clause, a party is seeking injunctive relief, to prevent an actual or apprehended breach of a contract by its counterparty, from a court which has personal jurisdiction over both parties. Damages may be an inadequate remedy, but even so relief may nonetheless be refused on equitable grounds (for example, delay or unclean hands, as noted by Lord Bingham in Donohue v Armco Inc [2001] UKHL 64; [2002] 1 All ER 749 at [24]) or else given only on terms. Further, the exercise of jurisdiction may interfere with the processes of a foreign court, and is to be exercised in accordance with comity in the sense described in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 395-396; [1997] HCA 33.

24. [24]

    On the other hand, a party seeking to stay proceedings commenced in the face of a promise to litigate elsewhere will be seeking relief from a court which, quite commonly, will not have personal jurisdiction over that party. Indeed, the moving party will, quite commonly, be utilising a procedure (such as a conditional appearance) enabling such an application to be made without submitting to the court’s jurisdiction. Whether or not that is so, that party will usually be seeking a stay or the setting aside of service, rather than injunctive relief flowing directly from its rights in contract. Further, those contractual rights are qualified, because it is well established that a contractual provision could not (absent statute) oust or lessen the jurisdiction of the courts of the Crown: Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577 at 582, 585-587, 589; [1954] HCA 62.

25. [25]

    Lord Bingham was conscious in Donohue v Armco Inc of the differences between the equitable relief of an anti-suit injunction, as opposed to the application for a stay (noting at [24] that “I am mindful that the principles governing the grant of injunctions and stays are not the same”). Lord Goff, delivering the advice of the Privy Council in Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 896 expressed the same view. One author has recently emphasised the desirability of precision in identifying the basis on which the jurisdiction is exercised, and the subtle distinctions which may apply: M Douglas, “Anti-Suit Injunctions in Australia” (2017) 41(1) Melbourne University Law Review 66 at 87-89. However, those differences ought not to distract, in the present case, from the significance to be attached in both cases to upholding a promise to litigate in a particular forum.

26. [26]

    BELL P:

Introduction

1. [27]

   This application for leave to appeal involves “litigation about where to litigate”, to paraphrase Lord Templeman in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 464. Unlike that famous case, which marked a seminal turning point in the law relating to forum non conveniens in England, the four parties in the present case adverted to questions of forum in their contractual arrangements. As shall be seen, however, there were two relevant contracts with two different jurisdiction clauses, one of which was exclusive and one of which was not; and not every party to the litigation was a party to both of these contracts.

2. [28]

   Leave to appeal is sought from the decision of McDougall J (Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2018] NSWSC 1236) to enforce an exclusive jurisdiction clause for the courts of England contained in one of these contracts with the result that the proceedings against one of the two defendants in the Supreme Court of New South Wales were stayed. The case against the remaining defendant remains on foot in New South Wales. There may therefore be concurrent proceedings in two jurisdictions although this is not presently the case.

3. [29]

   Whether the primary judge erred in principle in the exercise of his discretion to stay part of the proceedings is the important question raised in the present case.

Background

1. [30]

   Australian Health & Nutrition Association Ltd (Sanitarium) is a well-known Australian company associated with, inter alia, the “UP&GO” and “Weet-Bix GO” products. In 2017, Sanitarium conducted a promotion (the Promotion) whereby, during the promotion period, purchasers of UP&GO and Weet-Bix GO could obtain $5 and $10 gift vouchers for redemption at Rebel Sports stores operated by Rebel Sport Ltd (Rebel).

2. [31]

   By a Risk Transfer Agreement (the RTA) entered into on 27 March 2017 between Sanitarium, Emirat Ltd (Emirat) and Hive Marketing Group Pty Ltd (Hive), Sanitarium agreed to pay Emirat $649,874.52 plus GST in return for Emirat assuming all financial liability for redemptions of the gift vouchers up to but not exceeding $14,186,000. The commercial effect of this was that Emirat assumed the risk of the promotion being more successful than the amount of $649,874.52. This amount may be characterised as a premium for a particular form of commercial insurance. In the RTA, Hive was described as the local agent for Emirat assisting it in the provision of the Services, the Services being in effect the undertaking by Emirat to underwrite the Promotion.

3. [32]

   Some seven weeks after the RTA had been entered into, Rebel and Sanitarium entered into a separate agreement with Hive (the Promotion Agreement) which, inter alia, made provision for the reimbursement of Rebel by Hive of the value of the vouchers redeemed at Rebel stores.

4. [33]

   It may at once be observed that although the commercial enterprise involving the Promotion involved four participants – Sanitarium, Rebel, Hive and Emirat – Rebel was not a party to the RTA and Emirat was not a party to the Promotion Agreement. This was the case even though, as shall be seen, Rebel was referred to in the RTA and Emirat was referred to in the Promotion Agreement.

5. [34]

   The potential complexity arising from the absence of a single contract in relation to the Promotion and its financing to which each participant was a party was compounded by the fact that the RTA was governed by English law and contained an English exclusive jurisdiction clause whilst the Promotion Agreement was governed by New South Wales law and contained a non-exclusive jurisdiction clause for the courts of New South Wales.

6. [35]

   A dispute in relation to the reimbursement of Rebel (which had honoured some $1.67 million worth of vouchers which had been presented to it for redemption during the promotion period) gave rise to proceedings in the Commercial List of the Equity Division of the Supreme Court of New South Wales in which Sanitarium and Rebel were plaintiffs and Hive and Emirat defendants. As Emirat has no presence in the jurisdiction (being incorporated in the United Kingdom) and did not appear, it was necessary for it to be served with process pursuant to r 11.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

7. [36]

   Rule 12.11 of the UCPR allows a party served with process outside of the jurisdiction to apply to the Court for a range of orders, including a stay or dismissal of proceedings and the setting aside of service. Moreover, r 12.11(3) allows such an application to be made by a party served outside the jurisdiction without that party being required to enter an appearance so long as the notice of motion seeking the relevant relief is filed within the time that would otherwise apply in relation to the entry of an appearance. Rule 11.8AA(1) also makes provision for a plaintiff who or which has served a defendant outside of the jurisdiction to seek leave to proceed against that defendant in circumstances where it has not entered an appearance.

8. [37]

   Emirat took advantage of its ability to file a notice of motion pursuant to r 12.11 without entering an appearance and sought the stay or dismissal of the proceedings against it and the setting aside of service on it. This motion was heard simultaneously with a notice of motion filed on behalf of Sanitarium and Rebel seeking leave to proceed against Emirat.

9. [38]

   The primary judge granted Emirat the relief sought in its notice of motion and dismissed Rebel and Sanitarium’s motion for leave to proceed against Emirat.

10. [39]

    The result of these orders is that the Commercial List proceedings brought by Sanitarium and Rebel remain on foot solely against Hive. Rebel and Sanitarium seek leave to appeal from this interlocutory decision.

11. [40]

    Although Hive supported the position advanced by Rebel and Sanitarium at first instance, it has entered a submitting appearance on the leave application in this Court (other than as to costs) and does not seek to advance any submissions either in support of or against the grant of leave to appeal. The Commercial List proceedings have been held in abeyance pending the determination of this application.

12. [41]

    An application for leave to appeal in this Court generally requires the applicant to establish that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[38]; Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48.

13. [42]

    Before turning to consider the primary judge’s decision and the case for leave, it is necessary to consider in a little more detail the terms of the respective agreements and the way in which the dispute arose and how it is articulated in the Commercial List Statement.

The Risk Transfer Agreement

1. [43]

   The Recitals to the RTA provided that:

2. [44]

   Clause 2, entitled “Provision of Services”, provided as follows:

3. [45]

   The services to be provided by Emirat were set out in Schedule 1 to the RTA as follows:

4. [46]

   Hive’s duties and responsibilities were described as follows:

5. [47]

   As is noted in [31] above, by cl 7.1 of the RTA, Sanitarium agreed to pay Emirat $649,874.52 plus GST.

6. [48]

   The terms of cl 5.4, headed “Material Facts”, should also be noted. That clause provided that:

7. [49]

   Material Facts were defined in the RTA as meaning:

8. [50]

   Finally, for present purposes, cl 20 of the RTA was in the following terms:

9. [51]

   This is an extremely broadly drawn exclusive jurisdiction clause, the contractual drafting employing language which has attracted generous and liberal interpretation by both English courts (see, for example, Fiona Trust & Holding Corp v Privalov [2007] UKHL 40; [2008] 1 Lloyd’s Rep 254) and Australian courts: Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 at [164]-[165]. Strictly speaking, the construction of the exclusive jurisdiction clause is for the proper law of the contract but, if and to the extent there is any difference in approach between Australian and English law in this regard (as to which, see Rinehart v Welker (2012) 95 NSWLR 221; [2012] NSWCA 95 at [122] per Bathurst CJ), any such difference is of no significance in the present case.

The Promotion Agreement

1. [52]

   The Recitals to the Promotion Agreement relevantly provided that:

2. [53]

   The “Gift” referred to in the Recitals was a Rebel voucher awarded in the form of an E-Gift Card redeemable at participating Rebel stores or online (Item 3 of Schedule 1). Customers of specially marked packets of UP&GO or Weet-Bix GO could submit a unique code to receive a Rebel voucher online having a value of $5 or $10 depending on the product purchased.

3. [54]

   Key commercial terms of the Promotion Agreement were set out in Item 4 of Schedule 1. These included the following:

4. [55]

   Consistent with these terms, Item 9 of Schedule 1 of the Promotion Agreement also relevantly provided:

5. [56]

   Clause 10.3 of the Promotion Agreement provided that:

Dispute as to payment and commencement of proceedings

1. [57]

   Rebel issued invoices to Hive with an aggregate value of $1,670,079 in the period 4 May 2017 to 5 February 2018. Hive paid the first two of these invoices which were for $100,000 each. None of the remaining invoices has been paid.

2. [58]

   By letter of 13 July 2017, Emirat purported to suspend the provision of its services under cl 5.4.2 of the RTA for alleged breaches of that agreement, resulting, inter alia, in an alleged over-run of Facebook promotional material and an over-printing of “on-pack” stickers which alone was alleged to have increased the financial risk of the promotion to Emirat by $890,130.

3. [59]

   By letter dated 25 August 2017, Emirat purported to terminate the RTA with immediate effect complaining that “the Promotional Website was not sufficiently programmed or secure to prevent manipulation and circumvention of the Promotional terms” and that this constituted a material breach of the RTA.

4. [60]

   The Commercial List proceedings were commenced on 31 May 2018. In those proceedings:

   1. (1)

      both Sanitarium and Rebel sought a declaration that the Promotion Agreement remained in full force and effect;

   2. (2)

      Sanitarium sought orders against Hive and Emirat that the RTA remained in full force and effect and that the purported suspension and termination of that agreement was of no force or effect;

   3. (3)

      Rebel sought an order that Hive pay it the amount of $1,470,079 together with interest calculated from 14 days after the date of each unpaid invoice; and

   4. (4)

      in the alternative to (3) above, Sanitarium sought an order that Emirat pay it $1,470,079 plus interest.

5. [61]

   By its Commercial List Response, Hive denied that its refusal to pay the unpaid invoices was wrongful and in breach of the Promotion Agreement. This denial does not disclose why Hive maintains it is not liable to Rebel. However, in Part A of its Commercial List Response, Hive asserts that Emirat’s termination of the RTA brought to an end Hive’s obligations under the Promotion Agreement and the RTA. Under Part B of that Response, dealing with “Issues Likely To Arise”, Hive identifies as relevant issues:

   1. (1)

      the entitlement of Emirat to suspend and terminate the RTA; and

   2. (2)

      whether any moneys are payable by Hive to Rebel under the Promotion Agreement “when it was [Emirat] who indemnified the financial risk of the promotion pursuant to the Risk Transfer Agreement.”

6. [62]

   Hive has foreshadowed a cross-claim against Emirat but has held off filing any such cross-claim in the New South Wales proceedings (or bringing such a claim in England) pending the outcome of the notices of motion before the primary judge and the application for leave to appeal from the primary judge’s decision.

7. [63]

   The following observations may be made in relation to the above:

   1. (1)

      Hive does not contend that the Promotion Agreement has been suspended or terminated;

   2. (2)

      Rebel seeks no monetary or declaratory relief against Emirat;

   3. (3)

      Sanitarium seeks no monetary relief against Hive;

   4. (4)

      Sanitarium’s monetary claim against Emirat is made in the alternative to Rebel’s monetary claim against Hive; and

   5. (5)

      any cross-claim brought by Hive against Emirat would fall within the scope of the exclusive jurisdiction clause (cl 20) of the RTA.

Proceedings before the primary judge

1. [64]

   At first instance, Sanitarium and Rebel (which were jointly represented despite being unrelated entities and having different contractual rights and obligations) led evidence to the effect that the likely cost of conducting the dispute in the Supreme Court of New South Wales would be in the order of $300,000 whereas the cost of conducting the same dispute in the High Court of England and Wales would be in the order of £462,000 to £662,000.

2. [65]

   Hive’s evidence was also to the effect that it would be expensive and onerous for Hive to litigate in England, and Hive made the (factually correct) point that the Promotion was solely conducted in Australia, was only open to Australian residents and was governed (as between Sanitarium, Rebel and Hive) by New South Wales law.

3. [66]

   The contentions advanced on behalf of Rebel and Sanitarium were reasonably straightforward, and commenced with the fact that Rebel, not being party to the RTA, was not a party to the English exclusive jurisdiction clause contained within it. It was then submitted that the staying of proceedings against Emirat would fracture the litigation in the sense of generating a multiplicity of proceedings with the spectre of inconsistent findings where there was one overall transaction that gave rise to related issues arising out of the same underlying facts and a single commercial enterprise.

4. [67]

   It was also submitted, as recorded by the primary judge at [30], that it would be:

5. [68]

   This last submission, at least insofar as it was made on behalf of Sanitarium as opposed to Rebel, sat most uncomfortably with Sanitarium’s agreement to the English exclusive jurisdiction clause in the RTA, given that the matters relied upon were either known or capable of being known by it when the exclusive jurisdiction clause was entered into. This was not a matter lost on the extremely experienced primary judge.

6. [69]

   As against the stance taken by Rebel, Sanitarium and Hive, the vanilla submission made on behalf of Emirat was that it had bargained for the exclusive jurisdiction of the English courts, and that the claims sought to be made against it fell squarely within the terms of that exclusive jurisdiction clause. As such, it was contended that effect should be given to that contractually negotiated bargain by dismissing or staying the proceedings against Emirat.

7. [70]

   The primary judge acceded to Emirat’s argument in a decision that was accepted by senior counsel for the applicants on the leave application to involve the exercise of a discretion. In reaching his decision, his Honour referred to the decision of the High Court in Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418; [1996] HCA 39 (Akai), the decision of this Court in Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWCA 196; 79 ACSR 383 (Global Partners), the decision of Allsop J (as his Honour then was) in Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; [2004] FCA 698 (Incitec) and the decision of Brandon J (as his Lordship then was) in The Eleftheria [1970] P 94.

8. [71]

   The essence of the primary judge’s reasoning was as follows:

Draft notice of appeal

1. [72]

   Two substantive grounds are sought to be raised by Rebel and Sanitarium in their draft notice of appeal. They are that:

2. [73]

   The principal focus in the course of oral submissions was on ground 1(c). Bearing in mind the discretionary and interlocutory nature of the decision the subject of the application for leave, that was entirely appropriate. The applicants recognised the difficulty of establishing ground 2 in light of the principles associated with House v The King (1936) 55 CLR 499; [1936] HCA 40 and ground 1(b)(ii), being expressed in terms of a failure to find certain facts, is problematic in circumstances when it is not apparent that a finding in these terms was sought from the primary judge: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120].

3. [74]

   No argument was made in the present case that, at least where the stay application turns on the construction of multiple jurisdiction clauses, an appellate court should be more prepared to intervene or interfere with a first instance discretionary decision to grant a stay of proceedings than would be the case in relation to a stay based upon pure forum non conveniens style discretionary considerations: cf the discussion by Beatson LJ in Trust Risk Group SpA v AmTrust Europe Ltd [2015] EWCA Civ 437; [2015] 2 Lloyd’s Rep 154 at [31]-[43] (Trust Risk Group); see also at [72]-[76] per Christopher Clarke LJ, and compare in the context of appellate review of a “clearly more appropriate forum” stay (or, in Australia, as per Voth Manildra Four Mills Pty Ltd (1990) 171 CLR 538, a “not clearly inappropriate forum” stay) VTB Capital plc v Nutritek International Corp [2013] UKSC 5; [2013] 2 AC 337 at [69], [97]-[98] and [156].

Analysis

1. [75]

   Whenever a dispute arises between parties based in different jurisdictions, or even between parties from the same jurisdiction but where the dispute has a connection with another jurisdiction, there is the scope for either jurisdiction to become involved in the resolution of that dispute, and, as such, the possibility arises of a multiplicity of suits between the same parties in relation to, or arising out of, the same dispute. It is this very possibility that often leads commercial parties to make provision in their contractual arrangements for the courts of a particular nominated forum to have exclusive jurisdiction to resolve disputes arising out of, or having a connection with, the parties’ contract. Such a forum may be neutral or, as was the case with cl 20 of the RTA in the present matter (see [50] above), the “home” forum of one of the parties.

2. [76]

   It is scarcely surprising that common law courts have traditionally supported such arrangements by manifesting a strong disposition towards the enforcement of such clauses whilst never accepting that private parties can “oust” the court’s jurisdiction by such agreements. In Australia, this approach is based upon a series of decisions of the High Court (see Huddart Parker Ltd v The Ship “Mill Hill” (1950) 81 CLR 502; [1950] HCA 43 (Huddart Parker); Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577; [1954] HCA 62; Akai at 427-9 and 445), and a similar robust approach to the enforcement of such clauses is readily discernible in other jurisdictions, at least where such clauses are between commercial parties dealing with each other at arm’s length: see, for example, Donohue v Armco Inc [2001] UKHL 64; [2002] 1 Lloyd’s Rep 425 (Donohue v Armco) (England); Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] SGCA 65 at [112] (Vinmar) (Singapore); Pompey Industrie v ECU-Line NV [2003] 1 SCR 450 (Canada); M/S Bremen v Zapata Off-Shore Co, 407 US 1 (1972) (United States); Kidd v van Heeren [1998] 1 NZLR 324 (New Zealand). (A somewhat less robust approach to the enforcement of such clauses in the context of consumer contracts has developed in Canada: Douez v Facebook Inc [2017] 1 SCR 751).

3. [77]

   Where a commercial dispute only involves contracting parties, respect for party autonomy and holding parties to their bargain (“pacta sunt servanda”) will usually result in courts giving effect to exclusive jurisdiction agreements either by staying or restraining (by anti-suit injunction) proceedings commenced in a forum other than that nominated in the exclusive jurisdiction clause or agreement: in addition to the cases referred to in the previous paragraph, see FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 559 for an example of the grant of a stay of New South Wales proceedings where proceedings were commenced in the face of a foreign exclusive jurisdiction clause; for an example of an anti-suit injunction being granted to restrain a party from proceeding abroad in the face of a local exclusive jurisdiction clause, see The Angelic Grace [1995] 1 Lloyd’s Rep 87; and see generally Alex Mills, Party Autonomy in Private International Law (2018, Cambridge University Press); Peter Nygh, Autonomy in International Contracts (1999, Oxford University Press).

4. [78]

   The case law discloses not so much a “test” for or governing the exercise of discretion in this area but rather an approach which begins with a “firm disposition in favour of maintaining [the] bargain unless strong reasons be adduced against a stay”: Akai at 445. This has been described as a “prima facie position”. In Donohue v Armco at [25], Lord Bingham said that:

5. [79]

   In Global Partners, Spigelman CJ observed (at [89]) that:

6. [80]

   The relatively straightforward nature of enforcement of such clauses by the remedy of a stay of proceedings or an anti-suit injunction becomes more complex in a number of different situations. One is where the party commencing proceedings in the face of an exclusive jurisdiction clause seeks to take advantage of what is or may be a mandatory law of the forum (Akai being a case in point where the Insurance Contracts Act 1984 (Cth) was engaged; see also Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320 where a claim under the Trade Practices Act 1974 (Cth) was in issue). Another situation is where not all parties to the litigation are parties to the relevant exclusive jurisdiction clause (Global Partners and Incitec being examples of this phenomenon; see also Mobis Parts Australia Pty Ltd v XL Insurance Co SE [2016] NSWSC 1170 (Mobis); Royal Bank of Scotland plc v Babcock & Brown DIF III Global Co-Investment Fund LP [2017] VSCA 138 (Royal Bank of Scotland); V Black and SGA Pitel, ‘Forum-Selection Clauses: Beyond the Contracting Parties’ (2016) 12 Journal of Private International Law 26). As has already been noted, the present case is a further example of this second type of case.

7. [81]

   In such cases, two very powerful policy considerations may be in play and, depending on the facts, in tension. They are, on the one hand, the desire to and importance of holding commercial parties to their bargain, and, on the other hand, trying to ensure that all aspects of a dispute between all parties (including, relevantly, non-contracting parties) be resolved in one place at the one time, the rationale for this being not only judicial “tidiness” and “efficiency” but, perhaps more profoundly, the high desirability of minimising the possibility or prospect of different courts reaching different decisions (whether as to the facts or the law or both) in relation to the same dispute, a consequence apt to undermine confidence in the rule of law were it to materialise.

8. [82]

   These competing policy considerations loomed large in the decision of Allsop J in Incitec. The second of the policy concerns I have identified above was characterised by his Honour, in the context of a review of a number English decisions, as “the deep and strong antipathy of courts for the promotion of circumstances allowing for inconsistent curial approaches to the same dispute”: at [53]. His Honour also referred to the then recent decision of the House of Lords in Donohue v Armco. That case concerned the propriety of the grant of an anti-suit injunction to give effect to an English exclusive jurisdiction clause in circumstances where the consequence of that injunction being granted, in the context of a multi-party dispute, would have been to generate litigation both in England and New York, New York proceedings having been commenced first and involving defendants who were not party to the English exclusive jurisdiction clause the enforcement of which was sought to be achieved through the mechanism of an anti-suit injunction.

9. [83]

   Lord Bingham (with whom Lords Mackay, Nicholls and Hobhouse agreed) observed (at [33]-[34]) that:

10. [84]

    His Lordship concluded (at [36]) that:

11. [85]

    This decision has been explained as having been made on the basis that there was no other way to prevent an unjustifiable fragmentation of the litigation: Adrian Briggs, Agreements on Jurisdiction and Choice of Law (2008, Oxford University Press) at [6.67]. Professor Briggs observed that “if this meant that a non-contractual tail was being allowed to wag the contractual dog, that was simply a consequence of the doctrine of privity and its inability to impose burdens on strangers to the agreement”. In the United States, the purity of privity of contract has been attenuated in this area by the emergence of the “closely-related” entity doctrine (see, for example, Hugel v Corp of Lloyd’s, 999 F 2d 206 (7th Cir, 1993); Marano Enterprises of Kansas v Z-Teca Restaurants LP, 254 F 3d 753 (8th Cir, 2001); ComJet Aviation Management LLC v Aviation Investors Holdings Ltd 303 AD 2d 272 (NY App Div, 2003); Freeford Ltd v Pendleton, 53 AD 3d 32 (NY App Div, 2008); Aguas Lenders Recovery Group LLC v Suez SA, 585 F 3d 696 (2nd Cir, 2009); Adams v Raintree Vacation Exchange LLC, 702 F 3d 436 (7th Cir, 2012)) which has been considered in Canada (see Aldo Group Inc v Moneris Solutions Corp (2013) 118 OR (3d) 81 at [50] (Ontario Court of Appeal)) and resonances of which may be discernible in the decision of Spigelman CJ in Global Partners at [79] and, in particular, in his Honour’s reference to certain “non-parties” to the relevant agreement who were “so closely connected” with its implementation that they should have the benefit and burden of the exclusive jurisdiction clause.

12. [86]

    Four observations may be made in relation to the passages extracted above from Lord Bingham’s speech in Donohue v Armco. First, the concern to minimise or avoid a multiplicity of suits was expressed to be a matter of “weight” in the exercise of the Court’s discretion. True it is that the discretion involved in that case related to the grant of an anti-suit injunction and not a stay of proceedings but, subject only perhaps to considerations of comity in this context (cf The Angelic Grace [1995] 1 Lloyd’s Rep 87 at 96 per Leggatt LJ; at 96 per Millett LJ), I see no relevant point of distinction in that regard, his Lordship’s reference to the need to show “strong reasons” not to enforce the anti-suit injunction echoing the language of Sir Owen Dixon in Huddart Parker at 508-509 (and see the various formulations collected by Spigelman CJ in Global Partners set out in [79] above). Secondly, his Lordship’s reference in the final sentence of [36] of his speech to the “qualification” to his exercise of discretion not to grant the injunction translated into an undertaking being extracted from the Armco parties not to enforce against Mr Donohue and two other parties any multiple or punitive damages awards whether pursuant to the Federal Racketeer Influenced and Corrupt Organization Act (18 USC §1962) or awarded at common law. This was the price for the dissolution of the anti-suit injunction that had been granted in the Court of Appeal. Thirdly, the result of the decision of the House of Lords did not in fact guarantee a single set of proceedings insofar as it contemplated the possibility of a subsequent claim in England by Mr Donohue for damages for breach of the exclusive jurisdiction clause. Fourthly, the nature of the dispute in Donohue v Armco was far more complex and the number of parties far greater than in the present case before this Court.

13. [87]

    Whereas Donohue v Armco involved a decision not to grant an anti-suit injunction in order not to fracture or fragment litigation in a complex transnational dispute, some 15 years earlier, in Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 (Aerospatiale), the Privy Council granted an anti-suit injunction with a view to corralling all parties to a dispute into one forum in circumstances where the continuation of an aspect of the litigation in Texas as opposed to Brunei, where proceedings were on foot, would work oppressive consequences upon the party seeking anti-suit relief.

14. [88]

    The decision of the High Court of Australia in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33 (CSR) to stay New South Wales proceedings when there were concurrent proceedings on foot in New Jersey (to which Cigna Corporation was a party, it not being a party to the New South Wales proceedings, and which involved a claim under the Sherman Act (15 USC §1), which was not in issue in the New South Wales proceedings) may also be seen as being actuated, in part at least, by a desire to avoid a multiplicity of suits. So much can be seen by the focus on “the controversy as a whole” (at 400 and 401) and the Court’s reference (at 399) to its earlier decision in Henry v Henry (1996) 185 CLR 571 at 591; [1996] HCA 51.

15. [89]

    Although none of Aerospatiale, CSR or Henry v Henry involved exclusive jurisdiction clauses, these cases all highlight the law’s concern to avoid or minimise the prospect of concurrent proceedings. It should be noted, however, that just as the decision of the House of Lords in Donohue v Armco did not foreclose the possibility of some future litigation in England (see [86] above), the stay of New South Wales proceedings ordered by the High Court in CSR was expressly stated to be “pending the outcome of the US proceedings” (at 402). And, even with the best will in the world, it will not always be possible to achieve a situation where parallel or concurrent or overlapping proceedings (or the possibility thereof) can be avoided. The decision of the Full Court of the Federal Court in TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433 is a case in point, as is that Court’s decision in Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1, where the existence of an arbitration clause in a charterparty and the requirements for a mandatory stay under s 7(2) of the International Arbitration Act 1974 (Cth) of any claim falling within the scope of that clause meant that an aspect of the overall dispute between two of the three parties had to be separately determined.

16. [90]

    In cases such as the present, when not all parties to the proceedings are party to an exclusive jurisdiction clause, the court should not, in my view, start with a prima facie disposition in favour of a stay of proceedings, which is the default starting point where the litigation only involves parties who are bound by the exclusive jurisdiction clause (cf the various formulations collated by Spigelman CJ in Global Partners set out at [79] above). In the passage from Lord Bingham’s speech in Donohue v Armco, which I have cited at [78] above, his Lordship was careful to qualify his observations with the phrase “and the interests of other parties are not involved”. The importance of holding parties to their bargain is a very powerful consideration but is not one that should be elevated or given some special status in the hierarchy of factors where not all parties to the dispute are parties to the exclusive jurisdiction clause.

17. [91]

    The decision of the primary judge in the present case involved, as Rebel and Sanitarium accept, the exercise of a judicial discretion. His Honour was alive to and indeed adverted to the desirability of avoiding a multiplicity of suits. His reasoning made it plain that he gave great weight in his deliberations to that consideration, but the case law does not require that a stay of proceedings always be granted, nor that a stay be granted presumptively, where there is the possibility of a multiplicity of proceedings or even of inconsistent decisions, as undesirable as that possibility may be. That would be to apply “too broad and indiscriminate a brush” to the “parties’ careful selection of palette”: Credit Suisse First Boston (Europe) Ltd v MLC (Bermuda) Ltd [1999] 1 Lloyd’s Rep 767 at 777 per Rix J (as his Lordship then was).

18. [92]

    The discretion is ultimately to be exercised by reference to the facts of the particular case and a careful consideration, in light of those facts, of the nature and complexity of the matters in issue, the degree of risk of inconsistent decisions and the weight to be attributed to that possibility as against the weight to be attributed to the consequences of one party losing the real benefit of an exclusive jurisdiction clause for which it bargained and secured as part of the overall commercial arrangement between the parties.

19. [93]

    How that balance is struck will often be a delicate and difficult matter as both of the broad policy considerations referred to in [81] above are powerful. Those considerations are not such, however, that one will always or necessarily trump the other. Neither is determinative: Global Partners at [84]. Everything will depend upon the facts and circumstances of the particular case. I have already observed that the facts and nature of the dispute in the present case are far less complex than those in Donohue v Armco. Further, as Beatson LJ observed in Trust Risk Group at [49]:

20. [94]

    The court’s discretionary judgment may also be influenced by the particular construction given in a particular case to the competing jurisdiction clauses, where more than one is potentially in play: see, for example, Sebastian Holdings Inc v Deutsche Bank AG [2010] EWCA Civ 998; [2011] 1 Lloyd’s Rep 106 at [42]-[49] per Thomas LJ, a case that involved no less than eight interrelated agreements; UBS AG v HSH Nordbank AG [2009] EWCA Civ 585; [2009] 2 Lloyd’s Rep 272 per Collins LJ (as his Lordship then was). Equally, where there is only one exclusive jurisdiction clause but not all parties to the litigation are parties to it, the nature of their corporate connection with a party who is may dictate that the forum nominated in the exclusive jurisdiction clause is or becomes that in which all aspects of the dispute should be heard. This was the result brought about by the stay of New South Wales proceedings granted in Global Partners. The later decision of the Victorian Court of Appeal in Royal Bank of Scotland illustrates the verity, however, that in this area, each case and each exercise of discretion involved necessarily turns upon the individual facts of the particular case: see especially at [136] per Whelan JA.

21. [95]

    In the present case, there is no guarantee that there will be a multiplicity of proceedings. If Rebel succeeds in its claim against Hive, there will be no necessity for Sanitarium to pursue Emirat in England (unless Hive is not sufficiently solvent to satisfy the judgment debt). If Rebel fails in its claim against Hive, it has no cause of action against Emirat (or at least no cause of action that it has thus far articulated) and thus no reason to complain about the proceedings against Emirat being stayed. Further, any failure by Rebel against Hive will not preclude Sanitarium from pursuing Emirat in England under the RTA, and it is difficult to see what benefit there is to Sanitarium in taking an active role in the New South Wales proceedings as it seeks no monetary relief against Hive.

22. [96]

    The refusal to grant a stay of the New South Wales proceedings against Emirat would also not necessarily have brought about a situation in which all aspects of the dispute between all parties would be resolved in the one forum, viz New South Wales. That is because, although this Court would have jurisdiction in respect of the claims brought against Emirat pursuant to Schedule 6 of the UCPR, there would be no guarantee that Emirat would participate in such proceedings and, if it did not, any money judgment obtained against it would probably not be enforceable in the United Kingdom by reason of s 32 of the Civil Jurisdiction and Judgments Act 1982 (UK), headed “Overseas judgments given in proceedings brought in breach of agreement for settlement of disputes”, and which provides:

23. [97]

    Further, notwithstanding the approach taken in Donohue v Armco, there could not be any guarantee that an English court would not grant an anti-suit injunction restraining Sanitarium from continuing any claim in New South Wales against Emirat even if this Court granted leave to appeal and upheld the appeal and lifted the stay obtained by Emirat in the proceedings below. The decision of Thomas J (as his Lordship then was) in Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90 is a striking precedent for that outcome, the anti-suit injunction granted in that case restraining Akai Pty Ltd from continuing with its proceedings in New South Wales, notwithstanding that the High Court of Australia had lifted the stay of proceedings that the People’s Insurance Company had originally obtained.

24. [98]

    In my opinion, the approach of the primary judge involved the careful exercise of the discretion he undoubtedly possessed, and was not attended by any error in principle.

25. [99]

    I should also add that I do not consider that the decision of the primary judge gives rise to any injustice to Rebel or that the primary judge should be taken to have “forc[ed] an innocent third party to the foreign exclusive jurisdiction clause … to litigate in a foreign jurisdiction when it never agreed to do so and has validly commenced proceedings in [New South Wales]”, to pick up the language of the draft notice of appeal (see [72] above). The only monetary remedy that Rebel seeks in the proceedings is against Hive, and that claim remains on foot and available to Rebel in New South Wales. It is governed by New South Wales law, it is capable of being dealt with in New South Wales and, given the expeditious rate of disposition of matters in the Supreme Court’s Commercial List, will be heard and determined within a short period of time after the parties are ready for hearing. Further, the only declaratory relief that is or could be sought by Rebel is in relation to the Promotion Agreement. That claim, too, is not affected by the stay of proceedings against Emirat.

26. [100]

    If, notwithstanding these matters, Rebel (as opposed to Sanitarium) still considers the possibility that an English court may differ from a New South Wales court as to whether Emirat was entitled to terminate the RTA and is genuinely concerned about that possibility, as the primary judge observed, it lies in its power to avoid that possibility by bringing its claim in England. But in no sense, as I have said, is it being forced to do so.

27. [101]

    Turning to Sanitarium, it ill behoves it (or Hive, as it did at first instance) to point to the geographical centre of gravity of the dispute in New South Wales, the likely preponderance of witnesses here (although, as with most commercial disputes, its disposition is likely to be largely by reference to documents) or the relativities of cost of litigation in England as opposed to New South Wales in circumstances where each of Sanitarium and Hive had unambiguously agreed that, as between themselves and Emirat, all disputes arising out of or related to the RTA were to be heard exclusively in the English courts. The same point was made by Allsop J in Incitec where his Honour said (at [49]) that:

28. [102]

    Similar observations were made by Waller J (as his Lordship then was) in British Aerospace plc v Dee Howard Co [1993] 1 Lloyd’s Rep 368 at 376 (British Aerospace), who said:

29. [103]

    These observations, with which I agree, diverge to a certain extent from Brandon J’s identification in The Eleftheria at 100 of factors of geographical connection, relative convenience and expense of trial and governing law as relevant considerations in cases involving the enforcement of exclusive jurisdiction clauses. To the extent of that difference, the views expressed by Allsop J in Incitec and Waller J in British Aerospace are, in my opinion, to be preferred. See also Global Partners at [91]; Mobis at [37]; Euromark Ltd v Smash Enterprises Pty Ltd [2013] EWHC 1627 at [17]; Vinmar at [72] and [112].

Conclusion

1. [104]

   It was open to the primary judge to grant a partial stay of proceedings on Emirat’s application and to refuse Rebel and Sanitarium leave to proceed against Emirat in the face of an exclusive jurisdiction clause to which Sanitarium was a party and of which Rebel must have been aware at least immediately prior to the commencement of proceedings (if not earlier) as Rebel and Sanitarium were represented by the same firm of solicitors. No error of principle or relevant injustice has been identified.

2. [105]

   Because the issues that the current application has presented are of some importance, I would grant leave to appeal but dismiss the appeal with costs.