Hi-Fert Pty Ltd & Anor v Kiukiang Maritime Carriers Inc & Anor [1998] FCA 558

Hi-Fert Pty Ltd & Anor v Kiukiang Maritime Carriers Inc & Anor [1998] FCA 558

The orders staying the proceedings and referring the parties to arbitration under the International Arbitration Act 1974 (Cth) are interlocutory orders, as such orders do not finally determine the rights of the parties (given the possibility the stay may be lifted), and thus no appeal lies as of right from such orders; leave to appeal is required.

Jurisdiction
Australia
Judgment Date
26 May 1998
Procedural Posture
Practice & Procedure; Commercial Arbitration; Admiralty / Full Court Decision on Competency of Appeal From Stay Orders; Appeals (after Primary Judge Ordered Stay and Ordered Referral to Arbitration; Appeal and Leave to Appeal Issues)
Outcome
Appeal dismissed as incompetent; costs orders made against applicants
Legal Topics
['interlocutory Vs Final Orders' 'stay of Proceedings' 'enforcement of Arbitration Agreements' 'convention on the Recognition and Enforcement of Foreign Arbitral Awards (new York Convention)' 'leave to Appeal' 'forum Non Conveniens']
['arbitration' 'admiralty' 'trade Practices' 'civil Procedure'] ['interlocutory Vs Final Orders' 'stay of Proceedings' 'enforcement of Arbitration Agreements' 'convention on the Recognition and Enforcement of Foreign Arbitral Awards (new York Convention)' 'leave to Appeal' 'forum Non Conveniens']

Case Brief

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Procedural Posture

Practice & Procedure; Commercial Arbitration; Admiralty / Full Court Decision on Competency of Appeal From Stay Orders; Appeals (after Primary Judge Ordered Stay and Ordered Referral to Arbitration; Appeal and Leave to Appeal Issues)

Legal Issues

  1. 1 ['Whether orders granting stays and referring proceedings to arbitration under International Arbitration Act 1974 (Cth) are interlocutory or final' 'Whether appeal lies as of right from such stay orders or leave to appeal is required' 'Construction of International Arbitration Act 1974 (Cth), s 7' 'Implications of Carriage of Goods by Sea Act 1991 (Cth), s 11(2) for arbitration agreements' 'Circumstances justifying lifting a stay or if an arbitration agreement becomes null and void, inoperative or incapable of being performed']

Ratio Decidendi

The orders staying the proceedings and referring the parties to arbitration under the International Arbitration Act 1974 (Cth) are interlocutory orders, as such orders do not finally determine the rights of the parties (given the possibility the stay may be lifted), and thus no appeal lies as of right from such orders; leave to appeal is required.

Court Disposition

Appeal dismissed as incompetent; costs orders made against applicants

Orders

  • ['The appeal be dismissed as incompetent.' 'Hi-Fert Pty Limited and Cargill Fertilizer Inc to pay the costs of Kiukiang Maritime Carriers Inc and Western Bulk Carriers (Australia) Ltd of and incidental to the notices of motion dated 6 March and 10 March 1998.' 'The respective parties have liberty to restore this...