Rockwell Graphic Systems Limited v Fremantle Terminals Limited

[1991] HCATrans 147

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P9 of 1991

B e t w e e n -

ROCKWELL GRAPHIC SYSTEMS

LIMITED

Applicant

and

FREMANTLE TERMINALS LIMITED

Respondent

Application for special leave

to appeal

MASON CJ

DAWSON J

McHUGH J

Rockwell 1 7/6/91

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 7 JUNE 1991, AT 11.08 AM

Copyright in the High Court of Australia

MR W.W. CALDWELL, QC: If it please the Court, I appear with

my learned friends, MR M.W. ODES and MR D. COLVIN,

for the applicant. (instructed by Parker & Parker)

MR A.C. ARCHIBALD, QC: If it please the Court, I appear

with MR N.D.C. DILLON for the respondent.

(instructed by Mallesons Stephen Jaques)

MASON CJ: Yes, Mr Archibald. We might ask you, in the

first instance, to persuade us why a grant of

special leave should not be made.

MR ARCHIBALD:  If the Court pleases. May we hand to the

members of the Court an outline of submissions we

have prepared to facilitate argument?

MASON CJ: Yes, Mr Archibald.

MR ARCHIBALD: If the Court pleases, the question of law

identified by the applicant, which appears at page

78 of the application book, is:

Whether the respondent as stevedore is

entitled to avail itself of the benefits of

the exemptions ..... after the goods had been
discharged and the carrier's obligations

thereunder had ceased.

That is in substance what is called, in the New

York Star case, the capacity point, perhaps

somewhat inappositely phrased but a convenient

appellation. Now, ultimately, that is a question

of construction of the provisions of the bill of

lading in question. When one looks at the bill

here in issue, we say that it is clear that there

is no cesser of the carrier's obligations when the

goods pass over the ship's rail. The obligation to deliver persists and the bill is rather in the form

that was before this Court in the Nissho Iwai case

rather than the form which was before the Court in

the New York Star.

A distinction must be made, having regard to

the expressed and explicit terms of the bill,

between discharge and delivery. The majority of

this Court in the New York Star concluded, having

regard to the provisions of the bill there in

issue, that discharge and delivery were

contemporaneous. We say that that is not the

conclusion to be reached here and plainly not to be

reached having particular regard to the provisions

of clause 17(4) of the bill. That provision is set
out at page 18 of the application book and

provides, relevantly, that:

If the delivery of goods is not taken by the

merchant at the time and place when and where

Rockwell 2 7/6/91

the carrier is entitled to call upon the

merchant to take delivery ..... the carrier

shall be entitled ..... to store the goods

ashore -

and the clause then continues -

Such storage shall constitute due delivery

hereunder and thereupon the liability of the

carrier in respect of the

goods ..... stored ..... shall wholly cease -

Now, we would submit that a provision in those

terms plainly distinguishes the moment of discharge from the vessel with the occurren6e of delivery and

in those circumstances this case is far removed

from the kind of provision with which the New York

Star was concerned. So that we submit that

irrespective of any appeal to considerations of the

kind considered by the Privy Council in the New

York Star case, the conclusion of the court below

in this case is clearly correct.

Might we take the Court briefly to the Nissho

Iwai case which is in a folder of authorities and materials marked "B", under tab 4. We would refer

the Court to the passage appearing at pages 230 to
231 where the Court there dealt with the terms of
clause 19 of the bill there in issue and its

provisions in relation to delivery. In the last

complete paragraph on the page the Court said:

With great respect, however, we can see

nothing in the bill of lading which supports the notion that "delivered or made available ... at the place of delivery" meant discharged

from the ship.

A little further down:

The clause preserved the obligation of the

carrier to deliver the goods, defined that	obligation and made provision for the
circumstances in which that obligation was to
be fully discharged -

The provisions of clause 19(3) of the bill were set out which provided that:

delivery ..... "at the Carrier's terminal or
elsewhere designated by the Carrier at or in
the vicinity of the place of delivery as

provided in sub-clause 19(1) shall constitute complete and final discharge of the Carrier's

obligations hereunder and the Carrier's

liability and responsibility -

Rockwell 3 7/6/91

And then the Court made the observation which, we

submit, is apposite in the instant case:

These provisions fall far short of providing that discharge of the goods from the ship

amounts to delivery and are inconsistent with

that proposition.

Now, it is our respectful submission that that

conclusion is dictated in the instant case by the

terms of clause 17(4) of the bill. The bill is

therefore plainly to be construed as meaning that

delivery does not necessarily occur at the time at

which the goods pass over the ship's rail.

"Carriage" is expressly defined in the bill to

constitute a larger concept. The definition is at

page 1 of the application book, in clause 1 of the

bill:

Carriage" means the whole of the operations and services undertaken by the carrier in respect of the goods.

Now, so understood, in our submission, this

case cannot properly be said to raise directly the question of the correctness of the view adopted by

the Privy Council in the New York Star case.	It is
a case which is a wholly susceptible decision,
incorrect decision, upon the clear terms of the

bill aided, if need be, by this Court's decision in

the Nissho Iwai case. So that the concept of

carriage is, in the instant case, expressly
extended to embrace activity after the moment of
the passage of the goods over the ship's rail.

In circumstances in which the stevedore is entitled to the benefit of exemption provisions in

respect of carriage the stevedore is therefore

clearly entitled to the benefit of those provisions

during his activities that form part of the

carriage.	The circumstances of the present case
show that the damage to the cargo occurred during

the carriage; the cargo in question fell from a

trailer on the way to the storage location.	So
that those circumstances, in our submission,

indicate that the conclusion of the courts below is

not attended by any doubt even if one accepts, for

the purposes of argument, that there may be some

question in relation to the decision in the New

York Star.

The sample bills which are exhibited to the recent affidavits filed on behalf of the applicant

tend to confirm, in our submission, that modern

bills tend to have clauses which differentiate the
present case from the situation obtaining in

relation to the bill, the subject of consideration

Rockwell 4 7/6/91

by the courts in the New York Star. So that the

first submission we make is that the case in

respect of which leave is sought truly depends upon
the construction of the particular terms and

express terms of the bill and raises no question

directly in respect of the principles expounded by

the Privy Council in the New York Star.

We would then submit next that the appeal to

questions of public policy by the applicant do not

avail it, in the instant case. The public policy

considerations referred to were those dealt with by

Justice Stephen at pages 258 to 259 in the New York

Star case and embraced by Justice Murphy at

page 285. But those considerations, in our

submission, are directed not in any respect to the

capacity point but to the separate question - not

raised below as an issue in this case - as to

whether the benefit of the contractual exemption

was capable at all of being bestowed upon the

stevedore. So it raised the contract question

which included the consideration point. That is

the point that was being addressed by Their Honours in the New York Star and it was in respect of those matters that the public policy considerations were

adverted to.

Those matters were not raised, in our

submission, and cannot sensibly be raised in

relation to the capacity point which is concerned
rather with the question whether accepting that the

contractual entitlement to the benefit of

exemptions has been bestowed upon the stevedore.

That advantage persists when the activity of the

stevedore goes beyond carriage and concerns its

activities in the capacity of bailee.

Now, in those circumstances, in our

submission, there is nothing in the appeal to the

public policy issue that should occasion the grant of special leave in this case. That consideration

was a factor in the grant of special leave by the

Court in the Nissho Iwai case but there was there a

direct question as to the ambit of the contractual

exemptions which were bestowed by the bill of

lading in that case.	And there was the separate
President of the Court of Appeal in relation to the role of a bill of lading as a document of title.	point which arose from observations by the submission, are of no assistance to the applicant here.

We then submit that, in any event, the

circumstances of the desirability of certainty and

protection of commercial transactions militate

strongly against the disturbance or any

Rockwell 7/6/91

consideration of disturbance of the principles

determined by the New York Star. The case has been

followed in a number of decisions that we have

mentioned at 4.2 of our outline. The New York

Star, in turn, builds upon other cases such as The

Eurymedion and goes back to Scruttons Limited v

Midland Silicones Limited, all of which authorities

are of long standing and, in our submission, have

long been relied upon in the commercial community.

There is the further circumstance of the

desirability of uniformity especially in matters

involving international trade.

McHUGH J:  Your real point is that clause 17(4) of the bill

of lading contains the words "or to store the goods

ashore".

MR ARCHIBALD:  And thereupon liability ceases. Yes, we say

that is clear and compelling.

McHUGH J:  The contractual affirmation of the New York Star.

MR ARCHIBALD: It is a contractual provision with the - - -

MASON CJ: Well, an express affirmation of what some people

took to be implicit in New York Star.

MR ARCHIBALD:  We might venture to say, a protection against

the possibility that someone would one day wish to

agitate the correctness of the New York Star, but

having an insurance policy there in the meantime.

So that we say that that is really the short answer

in the present case. It seems that there are some

proposed new grounds that are sought to be raised

by the proposed notice of appeal. We would say

that those new grounds do not raise any questions

of general importance. We would say that they are

not open because the case below was conducted upon

the footing of expressed concessions; that apart

from the capacity point the contention of the

plaintiff would fail;	and there is nothing, in our
applicant now being allowed to raise points	submission, which discloses a basis for the
conceded below. There is no exceptional
circumstance, in our submission, which would
incline the Court to allow that course to be
adopted.

Even if issues such as the consideration point

were to be opened in the field of general

principle, the common law principles, they would

necessarily not allow the applicant to succeed here

because it is accepted, in this case, that Western

Australian law is the proper law of the contract
and section 11 of the Western Australian Property

Law Act provides a statutory foundation for a third

Rockwell 6 7/6/91

party to enforce a contract which is expressly for

its benefit, which must be the case here. So that

even if those further issues were to be agitated

they would not, in our submission, lead to an
alteration in the outcome of this case. For those
reasons, if the Court pleases, we submit that

special leave ought not be granted in this case.

MASON CJ:  Thank you, Mr Archibald. Yes, Mr Caldwell.

MR CALDWELL:  If the Court please. May I hand up four

copies of an outline and also four copies of a

bundle of cases and texts to which some reference

may need to be made.

MASON CJ: Yes.

MR CALDWELL:  Your Honours, in relation to the first

question framed, that is the rule of construction

that should be applied, we would submit that the

Privy Council in the New York Star appears to have applied an approach to construction that departs

from what has more recently been accepted as the

acceptable formulation in this Court, and perhaps I

could direct Your Honours' attention to the

Privy Council decision appearing in the bundle.

There is a reference to it in paragraph 2(b) of the

opening where that approach is adverted to. It is

at page 62 of the bundle, where Their Lordships,

before they commenced to review the various

arguments raised in the appeal, at page 62 referred

to:

the significance of Satterthwaite's case -

this is at the bottom third of that page - page 304

of the Commonwealth Law Report. It is important: not so much in the establishment of any new

legal principle, as in the finding that in the

normal situation involving the employment of

stevedores by carriers, accepted principles

enable and require the stevedore to enjoy the

benefit of contractual provisions in the bill

of lading.

And then over the page, after citing a passage from

the decision in this Court:

for fine distinctions which would diminish the general applicability, in the light of

the decision does not support, and

established commercial practice, of the

principle.

Rockwell 7/6/91

And then Their Lordships went on to consider the

points, including the construction of the bill and

the capacity point.

Now, there is no indication that Their Lordships, in the opinion, regarded what must at

least have been an ambiguity raised by the majority

opinion in this Court, and then construed the bill, contra proforens as they would normally be required

by the current rule of interpretation, and we would

submit that indicated a special approach,

benevolent to carriers and their subcontractors,

which calls for review in this Court, particularly

in the light of the public policy matters adverted

to by Justices Stephen and Murphy in that decision.

Your Honours, could I then deal with the

particular matter raised by my learned friend on the construction of the bill. He suggested that the New York Star bill of lading was, in effect,

less specific in providing for an obligation to

continue after discharge than the current standard

form of bill, an example of which we find here, but

it is our submission that the reverse is the case

and perhaps I should firstly take Your Honours to

particular provisions of this bill, in the early
pages of the application book, to emphasize on

page 1 the definition of "carriage":

the operations and services undertaken by the

carrier in respect of the goods.

We would submit that the ordinary meaning of that

expression is the operations and services

contractually undertaken by the terms of this bill.

Then, on the second page, the subcontracting and

indemnity clause. Subclause (1) entitles the

carrier:

to sub-contract on any terms the whole or any

part of the carriage -

as defined, that is the services contractually

undertaken by the carrier. Then:

The merchant undertakes that no claim or

allegation shall be made against any servant,

agent or sub-contractor of the carrier -

Pausing there, we would submit that subcontract.or has the meaning given to it above, namely a person

to whom the whole or part of the carriage has been

sub contracted. Then the description goes on:

or any other person whomsoever by whom the
carriage or any part of the carriage is

performed or undertaken -

Rockwell 8 7/6/91

That reinforces, we would submit, the limitation of

the persons referred to by this subclause and that

qualification, that is:

by whom the carriage or any part of the

carriage is performed or undertaken -

we would submit, applies logically to all of the

nouns preceding, including "servant, agent or

sub-contractor", or at least there is an ambiguity

as to its qualifying all of them. And if one goes

on, it purports to prevent action in respect of any

liability whatsoever in connection with the goods.

Now, in our submission, in the context, that means

any type of legal liability, whether in tort or
bailment, arising in respect of acts in performance

of the carriage or part of it, construing the

clause as a whole.

Then, Your Honours, on the following page at

the conclusion of clause 4, there is the exclusion

of any liability on the part of the carrier -

in any circumstances whatsoever ..... for any

loss of, or damage to the goods howsoever

caused, occurring ..... after they are

discharged at the ocean vessel's rail at the

port of discharge.

So we have a complete exclusion of any

responsibility or any liability after discharge.

Now, my learned friend took Your Honours to

part of clause 17. That, we would submit, or
subclause (4) is to be looked at in the context of

1 and 2, which are designed not to add to any

responsibility or liability, but to exclude it.

The carrier is at liberty to commence discharging

without notice and in subclause (2), about line 25:

The merchant shall take delivery of the goods

upon discharge. All expenses incurred by

reason of the merchant's failure to take

delivery of the goods as aforesaid shall be

for the merchant's account.

So, at the time that these goods were damaged, the

respondent cargo terminal was doing an operation

which was for the merchant's account. It was after

discharge and the expense in relation to the

movement after discharge is expressly for the

consignee's account rather than the carriers, and

it was therefore, in accordance with the assumption

made by the majority in this Court, which was

disagreed with by the Privy Council in the

New York Star.

Rockwell 9 7/6/91

Then subclauses (4) and (5) deal with what the

carrier, or we would submit, are there not to

create any responsibility or liability beyond that

as previously described, but to limit or exclude

any liability that might otherwise arise, not by

reference to acts performed or undertaken by this

contract, but independently, existing by virtue of

a bailment, merely by possession of the goods, and

it was that distinction which permitted - - -

MASON CJ: But how can you say that, when at the top of

page 19 it says:

Such storage shall constitute due delivery

hereunder -

MR CALDWELL: 

There is no obligation assumed by the terms of

the bill to deliver, except - this is on the part
of the carrier, Your Honour - to discharge the

goods over the ship's rail, at which time the

consignee is obliged to accept them. So, we would

submit, that this clause does not create any

obligation to deliver or store beyond discharge.
It is merely there to limit any obligation that

might arise by virtue of a bailment assumed by

retention of possession and,  Your Honours, far

from this reference to storage being more specific

in creating an obligation after discharge by

comparison with the New York Star, there is a
clause that the Privy Council had regard to there

which went the other way.  Could I take

Your Honours to page 66 of the bundle handed up,

where the clauses are there set out in the opinion
of the Privy Council, at page 308 of the report.

Your Honours see that clause 5 is reproduced and

the first sentence deals with the responsibility
and then the second sentence says:

Any responsibility of the Carrier in respect

of the goods attaching prior to such loading

or continuing after leaving the ship's tackle

as aforesaid, shall not exceed that of an

ordinary bailee.

Now that clause, which was regarded by the majority

in this Court as not defeating the distinction

between liability before and after discharge, was

regarded as very significant by Their Lordships and

was emphasized on the following pages, particularly

at the top of page 310 of the report, or perhaps

commencing to read at the bottom of page 309 of the

report, where Their Lordships say:

He cannot after all dump them on the wharf and

leave them there. So to suppose would be

commercially unreal and is not contemplated by

the bill of lading. Clause 5 in. terms

Rockwell 10 7/6/91

attributes responsibility to the carrier as

bailee and defines the period in express terms

as "continuing after leaving the ship's

tackle". There is nothing in the latter part

of clause 8 that is inconsistent with this.

And so on.	And the last sentence of that
paragraph:

But this leaves open the option not to insist on delivery ex ship's rail, and leaves, to be

governed by clause 5, his responsibility if he

does not.

And then, towards the end of the following

paragraph:

It is made clear by clause 5 that,

irrespective of the period of carriage defined

by the contract, the immunity of the carrier

is not coextensive with this period but

extends both before and after it. The

stevedore's immunity extends, by virtue of

clause 2, over the same period.

Now we would submit that the absence in the current

bill of any clause the equivalent of clause 5 would

enable Your Honours to distinguish the New York

Star favourably to the applicant, and if not that,

it at least avoids the argument, put by my learned

friend, having any reason for refusing leave and we

would submit that, far from it being the same, as

Their Lordships concluded, namely that a carrier

cannot after all dump them on the wharf and leave

them there, it is apparent that on the terms of

this bill, that is precisely what the carrier is

permitted to do, without liability or

responsibility thereafter.

Your Honours, could I then go to the questions of public policy. Those were referred to by the

court in Nissho Iwai and were the basis of a grant

of leave, but it was not necessary for the Court to

consider those reasons in the course of dismissing

that appeal. We would submit that the same reasons

apply in this case for calling for their

reconsideration, particularly in the light of the

emphasis given to those matters of public policy in

the Interstate Commissions Report on Waterfront

Investigation in March of 1989. Do Your Honours

have the affidavit which annexes the extract from

that report?

MASON CJ: Yes.

MR CALDWELL:  The affidavit of Deborah Colvin of 5 June. It

is the bulky affidavit and the first annexure to

Rockwell 11 7/6/91

that affidavit includes extracts from volume 1 of

that report of the Interstate Commission. The

first page of the extract refers to the "task" and

the "strategy" of the Commission:

the elimination of waterfront-related
transport impediments to Australia's trade and

the achievement of reliable, cost-effective

transport for exporters and importers.

And the third page of the extract included,

numbered 12 at the bottom. The section is headed:

A Better Deal for Shippers -

and particularly on page 13, the Commission

referred to the submissions of shippers and:

one stevedoring company saw merit in the

proposition that a person is likely to be more

careful with goods if he or she is liable for

their loss or damage.

Referring to implications for freight and insurance the Commission endorsed:

the movement towards exposing stevedoring

companies and carriers to greater liability,

such as that inherent in present discussions

relating to whether Australia should become a

party to the draft International Convention on

the Liability of Operators of Transport

Terminals.

The following page extracted, page 345, refers to

the Himalaya clause specifically in the second
paragraph and the result of that in the liability

of stevedores and a similar endorsement is repeated

at the foot of the page and over on to page 346.

And that is an up-to-date indication, Your Honours,

of the concern as to public policy expressed by

Justices Stephen and Murphy in the New York Star

case.

MASON CJ:  So you are really asking us to review

Salmond & Spraggon in this Court, in effect.

MR CALDWELL:	Yes, Your Honour.
MASON CJ:	And displace the majority judgment in this Court

by adopting the minority judgments.

MR CALDWELL:  I am sorry, it is the other way around,

Your Honour. The - - -

MASON CJ: Is it? Well you will recall that in

Salmond & Spraggon in this Court, one of the major

Rockwell 12 7/6/91

questions was whether somebody who was not a party

to the bill of lading could rely on the protection

which it offered. The pre-existing decision of the

Privy Council in the Eurymedion held that that

protection was available to somebody not a party to

the bill of lading for stevedores. Now, by a

majority of three to two, this Court followed the

Eurymedion. Mr Justice Stephen and

Mr Justice Murphy dissenting expounded the policy

arguments why the Eurymedion should not be adopted

in this country.	Now, what is your submission on
that point, if any?

MR CALDWELL:	Your Honours, could I say that my reference to the public policy questions was in support of the
first argument as to construction - - -
MASON CJ:	I see.
MR CALDWELL:	- - - on what has been called the "capacity"

point. However, we do make a submission, and it is

referred to in paragraph 9 of the outline, that it

would be appropriate that Your Honours review the

Eurymedion, distinguishing it from the New York

Star, on the basis of - - -

MASON CJ: Well it would also involve overruling the

decision in Salmond & Spraggon in this Court on

that point.

MR CALDWELL:  I accept that, Your Honour. However, the

Court has not reviewed the Eurymedion since the
Court ceased to be bound by the decisions of the

Privy Council. Mr Justice Stephen particularly, we

would submit, expressed persuasively the reasons

why the Eurymedion should not be followed.

MASON CJ: But we were not bound to follow the Eurymedion in

Salmond & Spraggon.

MR CALDWELL:  Yes, Your Honour, but Your Honours were -

MASON CJ:  And that is the very basis of the dissenting

judgments of Justices Stephen and Murphy.

MR CALDWELL:	We would submit that, however, since the Court has ceased to be bound by the Privy Council, it
does cast the decision in a new light and, given
the public policy consideration - - -

MASON CJ: There was no reluctance on the part of the Court

at that time to depart from Privy Council

decisions, or there may have been a reluctance, but

there was no inhibition in terms of legal capacity.

MR CALDWELL:  Your Honours, we would submit that, given the public policy considerations and their recent

Rockwell 13 7/6/91

ventilation by the Interstate Commission and the

fact that since the Court has ceased to be bound by

the Privy Council in respect of its own decisions,

and it has not reviewed the matter since then, that

it would be appropriate for Your Honours to

undertake a review, but we would submit that, if
leave be granted in respect of the capacity point,
the public policy considerations have equal

relevance, applicability, both to that point and to

the question of whether Eurymedion should be

followed at all, and we would submit that it would

be appropriate for the Court to undertake a review

of that decision.

McHUGH J: But you are now putting the case in quite a

different way from the way it was put by counsel

for the appellant before the Full Court, are you

not?

MR CALDWELL:  Yes. There was no suggestion that the

Eurymedion itself would not bind Australian courts

below, I accept that.

Could I move then quickly, Your Honours, to

the ground referred to in paragraph l0(a) of the

outline.

McHUGH J: But this is another new argument, is it not?

MR CALDWELL:  It is, Your Honour. The ground referred to in

paragraph l0(a) was adverted to by

Mr Justice Murphy at the conclusion of his judgment

in Salmond & Spraggon and it appears at page 56 of

the bundle, where His Honour set out section 9(2)

of the Sea-Carriage.of Goods Act:

"Any stipulation or agreement, whether made in
the Commonwealth or elsewhere, purporting to
oust or lessen the jurisdiction of the Courts
of the Commonwealth or of a State in respect

of any bill of lading or document relating to

Australia to any place in Australia shall be the carriage of goods from any place outside illegal, null and void and of no effect."

Your Honours appreciate that in Salmond & Spraggon a 12-month time bar was being looked at, not an

undertaking not to make a claim, as has been

enforced in this case. We would submit that the

substance of clause 3(2) of this bill is to require

that the courts not permit a consignor or a

consignee to make a claim against subcontractors

and therefore that in substance that clause

purports to oust the jurisdiction of the courts.

MASON CJ: But it is not an ouster clause, is it? It is a

limitation of liability provision.

Rockwell 14 7/6/91

MR CALDWELL: It does not, we would respectfully submit,

limit liability. It may have the effect of

excluding liability by depriving the merchant of

the right to commence an action and we would submit

that that is, in substance, an ouster of

jurisdiction. It is a requirement that the court,

if a claim is brought, dismiss that claim and, we

would submit, has the same effect as a clause

saying that no court shall entertain such a claim,

which would clearly by an ouster, and the approach

to - - -

McHUGH J: But it is a long way removed from the sort of

clause dealt with in a case like Dodds v National

Bank, is it not?

MR CALDWELL: Well, that is what we would rely upon,

Your Honour. That was an agreement that the bank's

certificate, as to the amount owing under a

guarantee, should be accepted as conclusive

evidence. That relates merely to an evidentiary

matter and it was held that that was not an ouster

provision, but in discussion of the sorts of

provisions that would be void at common law, and

that is without having any specific provision of
this kind, both in a joint judgment of the Court

comprising Justices Rich, Dixon, Evatt and

McTiernan and Justice Starke, referred to the need

to look at the effect of the clause. We have

included Dodds in the bundle and the relevant
passages, Your Honour, are at pages 247 and 251 of

the bundle, particularly in the joint judgment,

where the distinction is drawn:

between negative restrictions upon the right

to invoke the Jurisdiction of the Courts -

It is about point 2, point 3, on the page 247 of

the bundle. This is clearly a negative restriction

on the right to invoke the jurisdiction of the

Court, we would submit. Then further down:

It has never been the policy of the law to

discourage the latter.

That is having an award by an arbitrator.

The former have always been invalid. No

contractual provision which attempts to

disable a party from resorting to the Courts

of law was ever recognized as valid.

Then in the judgment of Mr Justice Starke at

page 356 of the report, 251 of the bundle, at about

point 2:

Rockwell 15 7/6/91

An agreement not to sue on a contract would

doubtless be void, and so, I should think,

would be a stipulation in a contract that no

proceedings at law or in equity should be
brought in respect of matters referred to

arbitration.

Now, we would submit that, given the terms of

section 9(2), that the undertaking not to make a

claim clause is covered by it.

For those reasons we would submit, Your Honours,

that matters of public importance are raised and
matters of sufficient substance to warrant grant of

leave.

MASON CJ:  The Court will take a short adjournment to

consider this matter.

AT 12.01 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.14 PM:

MASON CJ:  The question sought to be raised in this

application is one of construction of a bill of

lading and as such raises no question of general

principle. The application has been brought to

this Court principally because the applicant sought

a reconsideration of the decision of the

Privy Council in the New York Star (1980) 144 CLR
300. However, the bill of lading in this case, by

reason of the provisions of clause 17(4), differs

significantly and in a material respect from the

bill of lading in the New York Star. There is

therefore no basis for a reconsideration of the

decision in that case.

To the extent to which the applicant's

argument invited the Court to depart from the

decision in the Eurymedon [1975] AC 154, we are not

persuaded that special leave should be granted with

a view to a reconsideration of the judgment of this

Court in Port Jackson v Salmond & Spraggon (1978)

139 CLR 231, which applied the Eurymedon.

Otherwise no point warranting the grant of special

leave to appeal was raised.

The application is therefore refused.

MR ARCHIBALD:  We ask for an order for costs?

Rockwell 16 7/6/91

MR CALDWELL:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 12.15 PM THE MATTER WAS ADJOURNED SINE DIE

Rockwell 17 7/6/91