Pan Australia Shipping Pty Ltd v The Ship ‘Comandate'

Pan Australia Shipping Pty Ltd sought to extend an ex parte injunction against the owners of the vessel Comandate, restraining them from seeking relief in the English High Court of Justice or any other court to restrain the continuation of these proceedings. The writ for arrest of the vessel was issued on 9 June 2006, claiming $2.5 million in damages, interest, arrest of the ship and an order for the return or cancellation of a standby letter of credit. The writ was supported by an affidavit from Ms Wilmshurst, who provided evidence of various breaches of the charter party between the owners of the ship and the plaintiff. The parties had agreed to the release of the ship upon the provision of a letter of guarantee. The owners had elected to appear unconditionally in the proceedings, acknowledging the court's jurisdiction under the Admiralty Act 1988 (Cth). Ms Wilmshurst supported the application for an extension of the injunction, citing the owners' intention to seek relief in the English High Court of Justice based on a clause in the charter party.

The court was required to determine whether to extend the ex parte injunction, preventing the owners from taking any steps in the English High Court of Justice or any other court to restrain the continuation of these proceedings. The court considered the evidence provided by Ms Wilmshurst and the potential consequences of allowing the Australian proceedings to proceed. The court also referenced the judgment of Thomas J in Akai Pty Ltd v Peoples Insurance Co Limited, where his Lordship concluded that parties should not be deprived of the results of their freely bargained choice of law and jurisdiction clauses. The court needed to balance the need to protect the plaintiff's rights with the potential impact on the owners' rights under the charter party.

The court granted the application to extend the injunction, subject to certain conditions. The owners were restrained from taking any steps in the English High Court of Justice or any other court to restrain the continuation of these proceedings or seeking to restrain the plaintiff in these proceedings from taking any step in them, including the filing of an in personam claim. The court also extended the time for filing any statement of claim and provided for the hearing of the defendant's amended notice of motion. The costs of the hearing were reserved.

ORDERS:
1. Leave be granted to the defendant to file an amended appearance.
2. Leave be granted to file the affidavit of Danella Ann Wimshurst sworn 22 June 2006 in Court.
3. Leave be granted to the defendant to file its Notice of Motion in Court.
4. Paragraph 1 of that Notice of Motion be returnable instanter.
5. The hearing of paragraphs 2-5 of that Notice of Motion be deferred to a date to be determined at a later stage.
6. Subject to Order 2, up to and including 13 July 2006, Comandate Marine Corporation, by itself, its servants and agents, be restrained from taking any step, either directly or indirectly, in the English High Court of Justice or any other court seeking to restrain the continuation of proceedings NSD 1130 of 2006 of this Court, or seeking to restrain the plaintiff in this proceeding from taking any step in this proceeding, including the filing of an in personam claim in accordance with the Admiralty Rules 1988 (Cth).
7. Leave be granted to the defendant to file and serve on or before 5 pm 23 June 2006 an amended notice of motion seeking, as it may be advised, a stay under s 7 of the International Arbitration Act 1974 (Cth).
8. The time for filing of any statement of claim under Order 22 of the Admiralty Rules 1988 (Cth) be extended to 12 noon on 5 July 2006.
9. The matter be stood over for directions at 9.30 am on 7 July 2006.
10. The hearing of the amended notice of motion of the defendant to be filed pursuant to Order 2 be provisionally fixed before Rares J at 10.15 am on 13 July 2006.
11. The costs of today be reserved.