Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCA 1246

Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCA 1246

Leave to appeal should be granted because the usual criteria were satisfied, but it was just to condition leave on Comandate Marine Corp taking steps to discharge the foreign restraining orders because those orders had been obtained in aid of an arbitration which the Court had held was not operative, their continuation would be inconsistent with that determination and oppressive to Pan, and there was no evidence of tangible prejudice to Comandate Marine Corp if they were vacated. The condition operated in personam on Comandate Marine Corp and did not interfere with the jurisdiction of the United States or English courts. A stay was refused because the conditional grant of leave adequately...

Jurisdiction
Australia
Judgment Date
01 September 2006
Procedural Posture
Application for Leave to Appeal and Stay Concerning an Anti Anti Suit Injunction, Arbitration Proceedings, and Foreign Restraining Orders / Interlocutory Leave to Appeal and Stay Application Before Rares J
Outcome
Leave to appeal granted on conditions; applications for stay refused; defendant's name changed to Comandate Marine Corp in NSD 1130 of 2006.
Legal Topics
['leave to Appeal' 'conditions on Leave to Appeal' 'stay of Proceedings' 'anti Anti Suit Injunction' 'foreign Freezing and Attachment Orders' 'london Arbitration']
['practice and Procedure' 'international Arbitration' 'civil Procedure'] ['leave to Appeal' 'conditions on Leave to Appeal' 'stay of Proceedings' 'anti Anti Suit Injunction' 'foreign Freezing and Attachment Orders' 'london Arbitration']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Stay Concerning an Anti Anti Suit Injunction, Arbitration Proceedings, and Foreign Restraining Orders / Interlocutory Leave to Appeal and Stay Application Before Rares J

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from orders made on 22 June 2006, 13 July 2006 and 22 August 2006.' 'Whether the grant of leave to appeal should be conditioned on Comandate Marine Corp taking steps to discharge foreign restraining orders obtained in the United States and England in support of the London arbitration.' 'Whether imposing such a condition would improperly interfere with the jurisdiction of the foreign courts.' 'Whether the orders made on 13 July 2006 and 22 August 2006 should be stayed pending the appeal or pending an application for special leave to appeal to the High Court of Australia.']

Ratio Decidendi

Leave to appeal should be granted because the usual criteria were satisfied, but it was just to condition leave on Comandate Marine Corp taking steps to discharge the foreign restraining orders because those orders had been obtained in aid of an arbitration which the Court had held was not operative, their continuation would be inconsistent with that determination and oppressive to Pan, and there was no evidence of tangible prejudice to Comandate Marine Corp if they were vacated. The condition operated in personam on Comandate Marine Corp and did not interfere with the jurisdiction of the United States or English courts. A stay was refused because the conditional grant of leave adequately...

Court Disposition

Leave to appeal granted on conditions; applications for stay refused; defendant's name changed to Comandate Marine Corp in NSD 1130 of 2006.

Orders

  • ['Leave to appeal was granted to Comandate Marine Corp pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) from the orders made on 22 June 2006, 13 July 2006 and 22 August 2006, subject to conditions.' "Comandate Marine Corp was required to provide security for Pan Australia Shipping Pty Ltd's...