Proctor : February 2019
35 PROCTOR | February 2019 High Court casenotes High Court High Court Abuse of process – practice and procedure – permanent stay – abuse of process In UBS AG v Scott Francis Tyne as Trustee of the Argot Trust  HCA 45 (17 October 2018) the High Court considered the power of courts to permanently stay proceedings as an abuse of process, where related proceedings were brought in another jurisdiction. The respondent, Mr Tyne, started proceedings in the Federal Court in his capacity as trustee of the Argot Trust. The proceedings concerned representations made by UBS to Mr Tyne and, through him, related entities, including the former trustee (ACN 074) and an investment company (Telesto Investments Limited). At all times, Mr Tyne was the controlling mind of these entities. ACN 074, Telesto and Mr Tyne (in his personal capacity) had previously brought proceedings in the NSW Supreme Court arising out of the same facts and making essentially the same claims. In addition, UBS had earlier brought proceedings in Singapore against Telesto and Mr Tyne for default on credit facilities. Mr Tyne and the Trust ultimately discontinued their claims in the NSW proceedings. The NSW proceedings were then permanently stayed on the basis that Telesto was trying to re-litigate causes of action that had been determined in the Singapore proceedings. UBS applied to have the Federal Court proceedings stayed as an abuse of process. The claims in the Federal Court arose out of the same facts, and were essentially the same claims, as those in the NSW proceedings. The primary judge made the stay, because the trust could and should have brought its clams in the NSW proceeding. A majority of the Full Federal Court allowed an appeal, in part because the trust’s claims had not been decided on the merits. A majority of the High Court allowed the appeal, reinstating the stay. The majority held that “timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute”. In this case, the time to agitate the factual issues underlying the trust’s claim were the NSW proceedings. After the final determination of those proceedings, UBS was entitled to think the dispute was at an end. It was an abuse of process for the Federal Court to allow for staged conduct of what is factually one dispute prosecuted by related parties under common control, with all the duplication, vexation and waste of resources that followed. Kiefel CJ, Bell and Keane JJ jointly; Gageler J separately concurring; Nettle and Edelman JJ jointly dissenting; Gordon J separately dissenting. Appeal from the Full Federal Court allowed. Criminal law – evidence – context evidence – propensity evidence – uses of evidence Johnson v The Queen  HCA 48 (17 October 2018) concerned the admission of historical evidence of sexual misconduct other than the conduct charged for purposes of “context”. The appellant was tried and convicted of five counts of historical sexual offences against his sister. Count 1 concerned an indecent assault when the appellant was 11 or 12, and he was presumed doli incapax. At trial, to rebut the doli incapax presumption and to provide context of the relationship between the appellant and his sister, the Crown relied on evidence from the complainant about the appellant’s other sexual misconduct against her, including one that occurred in a bath. The Court of Criminal Appeal quashed the verdicts on charges 1 and 3, but rejected a contention that joinder of those counts with the others had occasioned a miscarriage of justice. The High Court unanimously held that the whole of the evidence except for the evidence about the bath incident was admissible in respect of the remaining counts. The evidence was relevant context of the appellant’s highly dysfunctional family background. Its probative value outweighed its prejudicial effect. Although evidence of the bath incident should not have been adduced, its wrongful admission did not lead to a miscarriage of justice in light of jury directions and other relevant evidence. Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ jointly. Appeal from the Supreme Court of South Australia dismissed. Criminal law – evidence – tendency evidence – significant probative value McPhillamy v The Queen  HCA 52 (orders 9 August 2018, reasons 8 November 2018) concerned the admission of evidence of previous acts of sexual misconduct as tendency evidence. The appellant was charged and convicted of six sexual offences against ‘A’ said to have taken place in 1995 and 1996. At the time of the alleged offending, A was an 11-year-old altar boy under the supervision of the appellant, an acolyte. The appellant’s case was that A had made up the allegations to get compensation from the Catholic Church. A had previously admitted to making false statements about part of the alleged offending in his compensation application. At trial, the Crown led evidence (over objection) from two men who alleged to have been the victims of sexual misconduct of the appellant in 1985. The evidence was led to show that the appellant had a sexual interest in male children in their early teenage years under his supervision. The evidence of the two men was not challenged at trial. The issue on appeal was whether the evidence had “significant probative value”. A majority of the Court of Criminal Appeal held that the evidence strongly supported the Crown case and was rightly admitted. The High Court held that the evidence was capable of showing that the appellant had a sexual interest in young teenage boys (the first step of assessing the probative value of tendency evidence). However, there was no evidence to show that the tendency had manifested in the 10 years prior to the present charges (that is, that the appellant had acted on the sexual interest) and the previous conduct occurred in different circumstances. The evidence was not capable of significantly affecting the assessment of the likelihood of the appellant committing the offences alleged by A (the second step in assessing probative value). Kiefel CJ, Bell, Keane and Nettle JJ jointly; Edelman J separately concurring. Appeal from the Court of Criminal Appeal (NSW) allowed. with Andrew Yuile Andrew Yuile is a Victorian barrister, phone 03 9225 7222, email firstname.lastname@example.org. The full version of these judgments can be found at austlii.edu.au.