Private international law, practice & procedure, equity
Implied and equitable jurisdiction of the Federal Court to issue anti-anti-suit injunctions
The decision in Greensill Bank AG v Insurance Australia Ltd (Anti-Anti-Suit Injunction Application) [2025] FCA 1241 (10 October 2025) (Thawley J) concerned an application for an anti-anti-suit injunction following the collapse of the Greensill group in 2021, which led to claims of about $7 billion in various Federal Court proceedings. Six of the proceedings were brought by Greensill Bank AG and the insolvency administrator (collectively, GBAG).
In July 2024, GBAG gave notice of its intention to join insurance broker Marsh Ltd as a party to the proceedings. Shortly after, both Marsh Ltd and Marsh Pty Ltd (collectively, Marsh) applied for an anti-suit injunction in High Court of England and Wales (English Court) to prevent GBAG from pursuing Marsh in Australia, arguing that GBAG was contractually bound by exclusive jurisdiction clauses (at [28]). The English Court initially granted Marsh Ltd (but not Marsh Pty Ltd) an ex parte interim anti-suit injunction.
In October 2024, the Federal Court granted GBAG an ex parte interim anti-anti-suit injunction against Marsh Pty Ltd, following which Marsh Pty Ltd was joined to the six GBAG Proceedings (at [7]).
In November 2024, the English Court declined to continue the interim anti-suit injunction it had granted Marsh Ltd (at [8]). Marsh Ltd was then also joined as a party to the six GBAG proceedings in the Federal Court (at [10]). GBAG also initiated a seventh proceeding against Marsh, seeking damages for misleading or deceptive conduct and negligence.
Having been joined as parties to the Australian proceedings, in April 2025, Marsh amended its claim in the English proceeding to include a claim for a mandatory injunction to require GBAG to stay the Australian proceedings (at [53]). GBAG sought and obtained an interlocutory ex partes anti-anti-suit injunction against Marsh Ltd to preserve the status quo until an inter partes hearing (at [59]), which is the subject of Thawley J’s reasons.
Thawley J noted that, apart from its statutory jurisdiction under s23 of the Federal Court of Australia Act 1976 (Cth), the Court has an implied (inherent) and equitable jurisdiction to grant anti-anti-suit relief (at [13]).
His Honour concluded the case warranted exercise of the Court’s implied jurisdiction to protect proceedings regularly before it by granting anti-anti-suit relief (at [88]), because the English proceeding had a “tendency to interfere” with the determination of those claims (at [94]). It also warranted exercise of the Court’s equitable jurisdiction. While commencement of foreign proceedings is not necessarily vexatious if there is a legitimate advantage unavailable domestically (at [119]), in this instance, the English proceeding was pursued for the purpose of preventing GBAG from making statutory misleading conduct claims, in circumstances where those claims could not be pursued in England and complete relief was only available in Australia (at [135]).
His Honour also found that Australia was not “a clearly inappropriate forum” (at [140]) and that, while comity requires caution (at [67(a)], [144], [147]), it did not require refusal of relief (at [157]).
Applying the ordinary principles regarding interlocutory relief (at [161]), Thawley J found a prima face case (at [162]) and that the balance of convenience favoured granting the injunction (at [177]). Accordingly, the anti-anti-suit injunction was granted, with Marsh being restrained from taking any steps in any court other than the Federal Court until the final determination of GBAG’s claims.
Civil penalty
Contraventions of the National Disability Insurance Scheme Act 2013 (Cth), where failures were fatal for one participant and where the respondent was in liquidation
In Commissioner of the NDIS Quality & Safeguards Commission v Aurora Community Care Pty Ltd (in liq) (No 2) [2025] FCA 1237 (10 October 2025) (Abraham J), the applicant (Commissioner) sought civil penalties against the respondent (Aurora), a registered National Disability Insurance Scheme (NDIS) provider, whose contraventions of ss73J and 73V of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) had fatal consequences.
Mr Gupta was a man aged 38 years, with intellectual and other disabilities, in Aurora’s care. He required active 2:1 support, 24 hours a day, seven days a week (at [3]). On 17 March 2023 at about 1:45am, Mr Gupta died having been struck by a vehicle after leaving the residence alone and without the knowledge of his support workers. One of his support workers had fallen asleep, while the other had heard Mr Gupta open the back door but did not investigate.
The contraventions for which penalties were sought included multiple contraventions by Aurora of s73J of the NDIS Act by failing to comply with conditions of registration, and contraventions of s73V of the NDIS Act by failing to comply with the NDIS Code of Conduct Rules 2018.
For a 12-month period prior to the fatality, Aurora received funding in the amount of $6,799,049 (at [22]). Shortly after proceedings were initiated, Aurora ceased trading and went into voluntary liquidation. The Court granted leave to the Commissioner to proceed against Aurora pursuant to s500(2) of the Corporations Act 2001 (Cth) (at [1]).
The Commissioner sought summary judgment, imposition of civil penalty and the making of various declarations (at [8]). In circumstances where the liquidator did not intend to take any steps in the proceedings, Abraham J considered the application was to be determined by reference to the material and evidence tendered by the Commissioner (at [13]). Her Honour was satisfied on that evidence that the Commissioner had established a prima facie case and that summary judgment ought to be entered (at [24]).
The Court found that Aurora was aware of Mr Gupta’s behaviours that gave rise to an immediate and serious risk of harm to himself and others and of approvals to use restraints subject to reporting conditions (at [26], [27]). However, during Mr Gupta’s life:
- support workers were found sleeping while on duty and not watching Mr Gupta (at [28]–[29]),
- chemical restraints were used on at least 52 occasions without their use being reported to the Commissioner (at [30])
- other unapproved restraints were used on at least 15 occasions (at [31]–[32]).
Aurora also “knew they were to provide active 2:1 support for Mr Gupta 24 hours a day, which on some occasions they did not. There were multiple breaches of this on the night Mr Gupta died. Aurora failed to adequately supervise Mr Gupta which resulted in Mr Gupta being able to leave the premises alone, which led to his death” (at [42]).
In determining the appropriate pecuniary penalty, Her Honour reviewed ss82–85 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (at [44]–[46]) and the relevant authorities on civil penalties (at [46]–[51]). Her Honour described the contraventions as of “the utmost seriousness” (at [78]) and found Aurora had “displayed an ongoing and flagrant disregard for its legal obligations” (at [89]). Other relevant factors included that Aurora’s sole director, shareholder and company secretary, Mohamed Issak, was aware of Aurora’s obligations (at [71]) and did not cooperate in the Commissioner’s investigation (at [72]).
Although Aurora was in liquidation, the penalty was imposed to recognise the gravity of the contraventions and fulfil the important role of general deterrence (at [89]). Abraham J determined the appropriate penalty to be $2.2 million based on the relevant principles and the factual bases of the contraventions (at [89]). Her Honour cautioned against calculating the penalty with reference to percentages of the maximum and reducing the evaluative exercise to a mathematical one (at [80]).
Her Honour also ordered declaratory relief considering the public interest in the subject matter, Mr Gupta’s vulnerable position and the nature of consequences of the failures (at [92]).
Administrative law
Disability requirements under the NDIS Act
In National Disability Insurance Agency v Lampard [2025] FCAFC 139 (10 October 2025) (Bromwich, Neskovcin and Vandongen JJ), the Full Court of the Federal Court upheld an appeal that focused on the disability requirements set out in s24(1) of the NDIS Act.
To be eligible for the NDIS, s24(1)(a) requires a prospective participant to “have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or that they have one or more impairments to which a psychosocial disability is attributable” (at [19]). Eligibility also requires meeting ss24(1)(b) to (d), the focus of which is on the permanency and severity of the impairments (at [21]), and s24(1)(e), which is that the person will likely require support under the NDIS for their lifetime.
The respondent (Ms Lampard) had been diagnosed with, inter alia, human papilloma virus (HPV) and irritable bowel syndrome (IBS). The former Administrative Appeals Tribunal (AAT) assessed Ms Lampard as meeting the eligibility criteria in s24(1) of the NDIS Act. The Full Court determined that the AAT erred in its application of s24(1) across three crucial aspects.
First, the AAT failed to identify the impairment (s24(1)(a)). The AAT had repeatedly used the term “condition”, which does not appear in the statutory language of s24 (at [24]). The Court opined that “maintaining a conceptual distinction between a disability or a condition on the one hand, and an impairment on the other, is crucial to enable a higher degree of specificity to be achieved in assessing a person’s level of function” (at [27]). The AAT did not specifically identify the impairments attributable to any disabilities, focusing instead on Ms Lampard’s conditions (at [56]).
Second, the AAT misapplied the permanence test set out in s24(1)(b) of the NDIS Act, which is addressed by r5.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).
The Full Court clarified:
“The substance of that rule is that an impairment cannot be found to be permanent unless the decision-maker is satisfied that it is unlikely to be able to be remedied … meaning more than just relief or improvement, but rather something approaching a removal or cure of the impairment. That is, there had to be a positive finding as to a negative – that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy an identified impairment” (at [81]). Here, there was no such evidence because the impairment had not been correctly identified (at [82]).
Third, the Full Court found that the AAT had erred in concluding that Ms Lampard had “substantially reduced functional capacity” in relation to one of the activities listed in s24(1)(c), being “social interaction”, because it had focused not on her capacity to interact socially but on her willingness to do so (at [89]–[91]).
The AAT’s decision was set aside, and the matter was remitted to the Administrative Review Tribunal for redetermination.
