Natch v Stennson Pty Ltd

The Court permanently stayed proceedings as an abuse of process where the plaintiffs had discontinued substantially the same claims against the same defendant partway through a Federal Court trial, then recommenced in the Supreme Court of Victoria four years later without paying costs ordered as a condition of discontinuance and without providing a reasonable excuse for not proceeding to a merits determination. The Court held that a temporary stay pending payment of outstanding costs (the 'outstanding costs principle') was insufficient where the cumulative circumstances — including the loss of the defendant's cross-claims against third parties, the absence of notice of intention to recommence, and the lack of any reasonable explanation for the discontinuance — meant that the oppression and vexation could not be remedied by lesser relief. The Court declined to find that the proceeding was commenced for the collateral purpose of avoiding bankruptcy, holding that the plaintiff obtained no clear advantage by commencing in the Supreme Court rather than the Federal Court given the operation of s 40(1)(g) of the Bankruptcy Act.