Home Ice Cream Pty Ltd v McNabb Technologies LLC (No. 2) [2018] FCA 1093

Facts: Home Ice Cream (HIC; Pl; QLD company) commenced proceedings against McNabb Technologies (D; South Dakota company) in FCA for misleading and deceptive conduct under AU law. The contract included an exclusive jurisdiction clause (EJC) for Cook County, Illinois. P sent OP and SoC, and a few days later D notified P of an action commenced in Court of Cook County, Illinois, highlighting the EJC. Pl sought an anti-suit injunction (ASI) from FCA (to restrain D from continuing the claim in Illinois). D could make the same argument in Illinois in the FCA (as a cross claim). However, P would not have been able to bring the claim under the ACL in Illinois (established by evidence from an Illinois lawyer).

Held: ASI awarded despite EJC. Even though there was an EJC, that didn’t mean that an ASI should be issued because the claims in the FCA couldn’t be brought in Illinois. To grant an ASI would deprive the applicant of rights and entitlements to remedial orders should the applicant make good its claim of misleading or deceptive conduct.