Moussa v Eski Export Pty Ltd - [2000] FCA 1670

FEDERAL COURT OF AUSTRALIA
Moussa v Eski Export Pty Ltd [2000] FCA 1670
ARBITRATION - submission to arbitration as ground for stay of proceedings - personal respondents not party to agreement between second applicant and first respondent containing an arbitration clause - risk of multiplicity of proceedings
PRACTICE AND PROCEDURE - application for transfer of proceeding - consideration of factors weighing for and against transfer
Trade Practices Act 1974 (Cth) s52
Commercial Arbitration Act 1986 (Tas) s53(1)
Thomas v Star Maid International Pty Ltd [1999] FCA 911 followed
Australian Workers’ Union v BHP Iron Ore Pty Ltd [2000] FCA 39 followed
MARIO MOUSSA AND MCM SERVICES PTY LTD (ACN 007 001 872) -v- ESKI EXPORT PTY LTD (ACN 053 096 610), JOHN GALL, BYRON GALL AND PETER HARDING
V 787 OF 2000
MARSHALL J
MELBOURNE
17 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 787 OF 2000

BETWEEN:

MARIO MOUSSA
FIRST APPLICANT

MCM SERVICES PTY LTD
(ACN 007 001 872)
SECOND APPLICANT

AND:

ESKI EXPORT PTY LTD
(ACN 053 096 610)
FIRST RESPONDENT

JOHN GALL
SECOND RESPONDENT

BYRON GALL
THIRD RESPONDENT

PETER HARDING
FOURTH RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

17 NOVEMBER 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Paragraph 1 of the respondents’ Notice of Motion of 13 November 2000 be adjourned to 2.15 pm on 4 December 2000.
2.The directions hearing listed for 10.15 am on 4 December 2000 be relisted to 2.15 pm on 4 December 2000, with arrangements being made to conduct it by video-link.

3.        That paragraph 2 of the respondents’ motion be dismissed.
4.        That the applicants’ costs of the motion be reserved.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 787 OF 2000

BETWEEN:

MARIO MOUSSA
FIRST APPLICANT

MCM SERVICES PTY LTD
(ACN 007 001 872)
SECOND APPLICANT

AND:

ESKI EXPORT PTY LTD
(ACN 053 096 610)
FIRST RESPONDENT

JOHN GALL
SECOND RESPONDENT

BYRON GALL
THIRD RESPONDENT

PETER HARDING
FOURTH RESPONDENT

JUDGE:

MARSHALL J

DATE:

17 NOVEMBER 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The substantive proceeding in this matter is an application pursuant to s52 of the Trade Practices Act 1974 (Cth) (“the Act”) in which the applicants make an alternative claim for breach of contract in the accrued jurisdiction of the Court. The breach of contract is said to arise from the first respondent's breach of two agreements entered into between it and the second applicant.
By notice of motion filed on 13 November 2000, the respondents sought an order that the proceedings be stayed “pending arbitration by the parties in accordance with the terms of the contracts”. The two relevant agreements each contain an arbitration clause in the following form:
“All questions or differences whatsoever that may at any time hereafter arise between the parties hereto or their respective representatives with respect to this agreement or the subject matter thereof or arising out of or in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 1670
Decision Date: 17 NOVEMBER 2000

CaseChat Overview and Summary

The case of Moussa v Eski Export Pty Ltd involved a dispute between the plaintiff, Moussa, and the defendant, Eski Export Pty Ltd. The nature of the dispute was centred around a motion brought by the defendant seeking various orders in relation to a proceeding that was ongoing between the parties. The case was heard in the Federal Court of Australia.

The legal issues that the court needed to address included whether the defendant's motion should be granted, specifically in relation to the adjournment of a hearing and the conduct of a directions hearing by video-link. The court was also required to determine the appropriate costs associated with the motion.

In its reasoning, the court found that the defendant's motion was not well-founded and should not be granted. The court held that the adjournment of the hearing and the conduct of the directions hearing by video-link were not justified under the circumstances. The court further determined that the costs of the motion should be reserved pending the outcome of the main proceeding. Consequently, the court dismissed the defendant's motion and ordered the adjournment and relisting of the hearing, as well as reserving the costs of the motion.

Orders

Orders of the court

1. Paragraph 1 of the respondents’ Notice of Motion of 13 November 2000 be adjourned to 2.15 pm on 4 December 2000.

2. The directions hearing listed for 10.15 am on 4 December 2000 be relisted to 2.15 pm on 4 December 2000, with arrangements being made to conduct it by video-link.

3. That paragraph 2 of the respondents’ motion be dismissed.

4. That the applicants’ costs of the motion be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 787 OF 2000

BETWEEN:	MARIO MOUSSA FIRST APPLICANT MCM SERVICES PTY LTD (ACN 007 001 872) SECOND APPLICANT
AND:	ESKI EXPORT PTY LTD (ACN 053 096 610) FIRST RESPONDENT JOHN GALL SECOND RESPONDENT BYRON GALL THIRD RESPONDENT PETER HARDING FOURTH RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	17 NOVEMBER 2000
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	17 NOVEMBER 2000
PLACE:	MELBOURNE