Hi-Fert Pty Ltd v United Shipping Adriatic Inc & Anor [1998] FCA 1426

Hi-Fert Pty Ltd v United Shipping Adriatic Inc & Anor [1998] FCA 1426

There is a serious question to be tried as to whether section 11 of the Carriage of Goods by Sea Act 1991 (Cth) renders ineffective the arbitration clause requiring the plaintiff to arbitrate in London. The balance of convenience favours restraining the first defendant from prosecuting the foreign arbitration and related court proceedings pending final determination in Australia, as proceeding in London poses a risk of irreparable harm to the plaintiff's interests by potential issue estoppel, and any damage or delay to the defendant can be compensated by the usual undertaking as to damages.

Jurisdiction
Australia
Judgment Date
03 November 1998
Procedural Posture
Civil / Interlocutory Application for Orders Restraining Prosecution of Foreign Arbitration and Foreign Court Proceedings Pending Final Determination
Outcome
Interlocutory injunction granted restraining the first defendant from taking steps in the London arbitration and UK High Court until final determination or further order.
Legal Topics
['anti Suit Injunctions' 'jurisdiction Under Carriage of Goods by Sea Act 1991 (cth)' 'arbitration Agreements in Bills of Lading' 'competing Jurisdiction and Forum Selection' 'stay of Proceedings in Favour of Arbitration' 'vexation and Oppression in Parallel Litigation']
['commercial Law' 'international Arbitration' 'shipping Law'] ['anti Suit Injunctions' 'jurisdiction Under Carriage of Goods by Sea Act 1991 (cth)' 'arbitration Agreements in Bills of Lading' 'competing Jurisdiction and Forum Selection' 'stay of Proceedings in Favour of Arbitration' 'vexation and Oppression in Parallel Litigation']

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Procedural Posture

Civil / Interlocutory Application for Orders Restraining Prosecution of Foreign Arbitration and Foreign Court Proceedings Pending Final Determination

Legal Issues

  1. 1 ['Whether the plaintiff is entitled to an interlocutory injunction restraining the first defendant from prosecuting foreign arbitration proceedings and foreign court proceedings' 'Whether an arbitration clause in a bill of lading is rendered ineffective by section 11 of the Carriage of Goods by Sea Act 1991 (Cth)' 'Whether the balance of convenience favours interlocutory injunctive relief' 'Whether delay or unclean hands disentitle the plaintiff to relief']

Ratio Decidendi

There is a serious question to be tried as to whether section 11 of the Carriage of Goods by Sea Act 1991 (Cth) renders ineffective the arbitration clause requiring the plaintiff to arbitrate in London. The balance of convenience favours restraining the first defendant from prosecuting the foreign arbitration and related court proceedings pending final determination in Australia, as proceeding in London poses a risk of irreparable harm to the plaintiff's interests by potential issue estoppel, and any damage or delay to the defendant can be compensated by the usual undertaking as to damages.

Court Disposition

Interlocutory injunction granted restraining the first defendant from taking steps in the London arbitration and UK High Court until final determination or further order.

Orders

  • ['Upon the usual undertakings as to damages, the first defendant is restrained until final determination from taking steps in the arbitration in London, other than to apply for adjournment and give effect to this order.' 'The first defendant is restrained until final determination from taking steps in the UK High...