WESTERN BULK CARRIERS (AUSTRALIA) PTY LIMITED SECOND RESPONDENT
JUDGES:
BEAUMONT, BRANSON AND EMMETT JJ.
DATE OF ORDER:
18 DECEMBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The appeal be allowed in part.
The orders made by the trial Judge on 12 December 1997 be set aside, and in lieu thereof:
(a)order that the first respondent’s notice of motion dated 25 October 1996 be dismissed; order that the appellants pay the first respondent’s costs of the separate constitutional issue; otherwise order that the first respondent pay the appellants’ costs of the motion; costs to be set off.
(b)on the condition stated in para (c) below, order that so much of the proceedings as involves the determination of the matters alleged in para 22 and 25 to 29 inclusive of the amended statement of claim filed on 6 February 1997 be stayed and that the parties be referred to arbitration in respect of those matters.
(c)the condition referred to in para (b) above is that any arbitration in respect of the matters referred to in para (b) be adjourned until after the determination of these proceedings against both respondents including any appeal.
(d)order that otherwise the second respondent’s notice of motion dated 25 October 1996 be dismissed.
(e)order that the appellants pay the second respondent’s costs of the separate constitutional issue; otherwise order that the second respondent pay the appellants’ costs of the motion; costs to be set off.
The appellants pay the respondents’ costs of the argument of the constitutional issue on the appeal; otherwise the respondents pay the costs of the appeal; costs to be set off.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 575 of1998
BETWEEN:
HI-FERT PTY LIMITED FIRST APPELLANT
CARGILL FERTILIZER INC SECOND APPELLANT
AND:
KIUKIANG MARITIME CARRIERS INC FIRST RESPONDENT
WESTERN BULK CARRIERS (AUSTRALIA) PTY LIMITED SECOND RESPONDENT
JUDGES:
BEAUMONT, BRANSON AND EMMETT JJ.
DATE:
18 DECEMBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT (NO. 2) (ON COSTS)
THE COURT:
Since the publication of our reasons for judgment on 24 November 1998, we have had the benefit of written submissions on the question of costs.
In our view, the exercise of our judicial discretion in this area should reflect the following material circumstances: First, that on the separate constitutional issue the appellants failed both at first instance and before us; and secondly, that on the other issues, the appellants were entirely successful as against the first respondent, and substantially successful as against the second respondent.
In those circumstances we have concluded that the respondents should be awarded the costs of the argument of the separate constitutional question before the trial Judge and before us; but that otherwise the appellants should have their costs both at first instance and on appeal; and that costs be set-off.
I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Court
Acting Associate:
Dated: 18 December 1998
Counsel for the Appellant:
R B S Macfarlan QC with P E King
Solicitor for the Appellant:
Withnell Hetherington
Counsel for the First Respondent:
J L B Allsop SC with G J Nell
Solicitor for the First Respondent:
James Neill
Counsel for the Second Respondent:
N C Hutley SC with A S Bell
Solicitor for the Second Respondent:
Ebsworth & Ebsworth
Counsel for the Attorney-General:
D M J Bennett QC, Solicitor-General for the Commonwealth with C J Horan
Hi-Fert Pty Ltd, along with its directors, sought legal recourse against Kiukiang Maritime Carriers Inc and another party, arising from a dispute involving the carriage of fertiliser. The case was heard in the Supreme Court of Queensland, where the primary issue revolved around the enforceability of an arbitration clause contained within a charter party agreement. The trial judge had ruled in favour of the respondents, dismissing Hi-Fert's claims and referring the dispute to arbitration. Hi-Fert appealed against this decision.
The court was required to determine whether the arbitration clause was valid and enforceable under the circumstances. The primary legal question centred on the enforceability of the arbitration clause and whether the trial judge was correct in his decision to refer the dispute to arbitration. Hi-Fert argued that the arbitration clause was not enforceable as it was not properly incorporated into the charter party agreement. The respondents contended that the arbitration clause was indeed valid and enforceable, and the trial judge's decision to refer the dispute to arbitration should stand.
The court found that the arbitration clause was valid and enforceable, but differed with the trial judge on the appropriate course of action. The court held that the arbitration clause was properly incorporated into the charter party agreement, and that the trial judge's decision to refer the dispute to arbitration was premature. The court allowed the appeal in part and set aside the orders made by the trial judge, substituting new orders that dismissed the respondents' notices of motion, and referred certain matters to arbitration subject to specific conditions. The court also ordered that the parties bear their own costs in various aspects of the proceedings.
Orders
Orders of the court
1.
The appeal be allowed in part.
2.
The orders made by the trial Judge on 12 December 1997 be set aside, and in lieu thereof:
(a) order that the first respondent’s notice of motion dated 25 October 1996 be dismissed; order that the appellants pay the first respondent’s costs of the separate constitutional issue; otherwise order that the first respondent pay the appellants’ costs of the motion; costs to be set off.
(b) on the condition stated in para (c) below, order that so much of the proceedings as involves the determination of the matters alleged in para 22 and 25 to 29 inclusive of the amended statement of claim filed on 6 February 1997 be stayed and that the parties be referred to arbitration in respect of those matters.
(c) the condition referred to in para (b) above is that any arbitration in respect of the matters referred to in para (b) be adjourned until after the determination of these proceedings against both respondents including any appeal.
(d) order that otherwise the second respondent’s notice of motion dated 25 October 1996 be dismissed.
(e) order that the appellants pay the second respondent’s costs of the separate constitutional issue; otherwise order that the second respondent pay the appellants’ costs of the motion; costs to be set off.
3.
The appellants pay the respondents’ costs of the argument of the constitutional issue on the appeal; otherwise the respondents pay the costs of the appeal; costs to be set off.