Amcor Packaging (Australia) Pty Ltd v Baulderstone Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Amcor Packaging (Australia) Pty Ltd v Baulderstone Pty Ltd [2013] FCA 253

Citation: Amcor Packaging (Australia) Pty Ltd v Baulderstone Pty Ltd [2013] FCA 253
Parties: AMCOR PACKAGING (AUSTRALIA) PTY LTD (ACN 004 275 165) v BAULDERSTONE PTY LTD (ACN 002 625 130), RICHARD PETER TURCHINI, DAVID XAVIER LOUGHER and IAN MERLYN LUCK
File number: VID 108 of 2013
Judge: MARSHALL J
Date of judgment: 27 March 2013
Catchwords:

ARBITRATION – whether arbitration agreement – dispute resolution clause – interpretation –  application for stay of proceeding – misleading and deceptive conduct –
s 52 Trade Practices Act 1974 (Cth) – breach of contract – proposed proceeding stayed

PRACTICE AND PROCEDURE – application for preliminary discovery – application stayed without an adjudication of the merits – inappropriate to determine  
Legislation: Commercial Arbitration Act 2010 (NSW) s 8
Commercial Arbitration Act 2011 (Vic) ss 7, 8
Judiciary Act 1903 (Cth) s 79
Trade Practices Act1974 (Cth) s 52
Federal Court of Australia Act1976 (Cth) s 22, 23, 37M
Federal Court Rules 2011 (Cth) r 7.23
Cases cited:

Casaceli v Natuzzi SpA [2012] FCA 691; (2012) ALR 143

Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45
Dowell Australia Ltd v Trident Contractors Pty Ltd [1982] 1 NSWLR 508
Incitec Ltd v Alkimos Shipping Corporation (2004) 138 FCR 496
Lightsource Technologies Australia Pty Ltd v Pointsec Mobile Technologies AB [2011] ACTSC 59
R v Isaac & Ors; Ex parte Transport Workers Union of Australia (1985) 159 CLR 323
Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332
Date of hearing: 8 March 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 49
Counsel for the prospective Applicant: Mr J Burnside QC with Ms L Kirwan
Solicitor for the prospective Applicant: Corrs Chambers Westgarth
Counsel for the prospective Respondents: Mr P Jopling QC with Mr D Thomas
Solicitor for the prospective Respondents: King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 108 of 2013
BETWEEN:

AMCOR PACKAGING (AUSTRALIA) PTY LTD (ACN 004 275 165)
Prospective Applicant
AND:

BAULDERSTONE PTY LTD (ACN 002 625 130)
Prospective First Respondent

RICHARD PETER TURCHINI
Prospective Second Respondent

DAVID XAVIER LOUGHER
Prospective Third Respondent

IAN MERLYN LUCK
Prospective Fourth Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

27 MARCH 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

On the prospective respondents’ application dated 5 March 2013, the following orders are made:

1.The proposed proceeding, as between the prospective applicant and the prospective first respondent is stayed pursuant to s 8 of the Commercial Arbitration Act 2011 (Vic) and s 23 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”).

2.The proposed proceeding, as between the prospective applicant and the prospective second, third and fourth respondents is stayed pursuant to s 23 of the Federal Court Act.

3.The prospective applicant pay the prospective respondents’ costs of the interlocutory application dated 5 March 2013.

On…

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Details
Case
[2013] FCA 253
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Amcor Packaging (Australia) Pty Ltd brought an application against Baulderstone Pty Ltd for preliminary discovery of documents. The dispute arises from Amcor's request for documents related to its claim against Baulderstone, which has not been fulfilled. The central legal issue before the Court was whether the Court should stay the proceeding and the application for preliminary discovery due to the existence of an arbitration agreement between the parties. Baulderstone argued that the Court must refer the parties to arbitration under section 8 of the Commercial Arbitration Act 2011 (Vic). It contended that clause 31 of the Project Development Proposal Agreement (PDPA) between the parties constituted an arbitration agreement. Conversely, Amcor maintained that the dispute was not covered by the PDPA but rather by a proposed Goods Manufacturing Proposal (GMP) contract and that the proposed personal respondents could not be parties to an arbitration agreement under the PDPA.

The Court examined whether an arbitration agreement existed between Amcor and Baulderstone that would trigger the mandatory referral to arbitration under the Arbitration Act (Vic). The Court noted that clause 31 of the PDPA required the parties to attempt to resolve disputes through a defined dispute resolution process before initiating court proceedings. However, the Court held that the existence of an arbitration agreement was not automatically determinable based on the language of clause 31 alone. The Court considered whether the arbitration agreement applied to the specific dispute at hand, which Amcor claimed was related to the GMP contract rather than the PDPA. The Court concluded that there was no clear evidence that the GMP contract incorporated the PDPA's dispute resolution clause or that the proposed personal respondents were bound by it. Thus, the Court found no basis to stay the proceeding or the application for preliminary discovery.

The Court determined that the arbitration agreement, if any, did not apply to the current dispute and that the application for preliminary discovery should proceed. The Court found that the arbitration agreement, if it existed, did not encompass the specific dispute concerning the GMP contract and the proposed personal respondents. Consequently, the application for preliminary discovery was not stayed, and the Court allowed it to proceed. The Court did not make any final orders regarding the substantive dispute between the parties but permitted the preliminary discovery application to continue.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Amcor has sought copies of relevant documents from Baulderstone, without success. It is in that context that it brings its application for preliminary discovery. The arbitration issue Baulderstone submits that the Court is required to stay the proposed proceeding, including the application for preliminary discovery, because of the operation of s 8 of the Commercial Arbitration Act 2011 (Vic) (“the Arbitration Act (Vic)”). Section 8(1) of the Arbitration Act (Vic) provides:A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party’s first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. In the alternative, Baulderstone relies on s 8 of the Commercial Arbitration Act 2010 (NSW), which is in the same terms as s 8 of the Arbitration Act (Vic). There is no issue between the proposed parties about the application of the Arbitration Act (Vic) or the fact that it is picked up and applied for current purposes by s 79 of the Judiciary Act 1903 (Cth). Section 79(1) of that Act provides:The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. Section 7(1) of the Arbitration Act (Vic) defines “arbitration agreement” as:…an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. The first question to be determined on this aspect of the matters before the Court is whether there is an “arbitration agreement” to which two or more of the prospective participants in the proposed proceeding in the Court are parties. Baulderstone says that cl 31 of the PDPA evidences a relevant arbitration agreement. Amcor counters by saying that the conduct about which it complains does not arise out of or in connection with the PDPA, but in connection with the proposed GMP contract. It also says that the proposed personal respondents could not be parties to an arbitration. The PDPA is a written agreement signed by Amcor and Baulderstone to which they are the only parties. Its purpose was to set out the terms and conditions on which Baulderstone would provide its skill, knowledge and expertise to develop and complete a proposal for the delivery of the B9 Project. Clause 31 of the PDPA is headed “Dispute Resolution”. It provides in cl 31.1 that:A Party must not start court proceedings (except proceedings seeking interlocutory relief) or any other available form of dispute resolution in respect of a Dispute unless it has complied with this Clause 31.