SPC International Pty Ltd v Olympic 2000 Homeswest Pty Ltd

[1996] FCA 34

CATCHWORDS

PROCEDURE - motion for stay of arbitration proceedings - whether urgent

Rules of the Federal Court of Australia, O35

SPC INTERNATIONAL PTY LIMITED v OLYMPIC 2000 HOMESWEST PTY LIMITED and ORS
NO WAG 129 OF 1995

JUSTICE R D NICHOLSON
PERTH
29 JANUARY 1996

IN THE FEDERAL COURT OF AUSTRALIA   )   LIMITED DISTRIBUTION

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION                   )    NO. WAG 129 OF 1995

B E T W E E N:              SPC INTERNATIONAL PTY LIMITED

Applicant

and

OLYMPIC 2000 HOMESWEST PTY LIMITED and ORS

Respondent

CORAM:JUSTICE R D NICHOLSON

DATE:29 JANUARY 1996

PLACE:PERTH

REASONS FOR JUDGMENT

This matter arises by way of notice of motion for a stay of arbitration proceedings pursuant to the Rules of the Federal Court of Australia ("FCR"), O35.  It is not disputed that this order provides the appropriate authority for such an order.

The motion is supported by two affidavits.  In the substantive affidavit the deponent solicitor for the applicant swears that there is a considerable overlap between an action brought in this Court between the applicant and the four respondents and the arbitration brought before an arbitrator between the first respondent and the applicant, the first respondent appearing as claimant in the latter proceedings.  It is further sworn that as a consequence of the overlap there would be an inconvenience to the applicant in proceeding with the arbitration with a probable duplication of costs for each party involved and the possibility of estoppel issues applying.

In addition, it is asserted in argument that the arbitrator would not be able to determine whether there have been contraventions of the Trade Practices Act 1974, although that argument is contested on behalf of the first and second

respondents.  In addition, it is a fact that the second to fourth respondents are not parties to the arbitration.  The motion seeks that the arbitration proceedings be stayed until the proceedings in this Court are finally determined.

In the second accompanying affidavit in support of the motion it is sworn that the matter is one of urgency.  In particular, there is a hearing before the arbitrator set for tomorrow.  Examination of the affidavit material shows that in a transmission to the solicitors for the applicant and others, dated 24 January 1996, the arbitrator, in convening the conference tomorrow, has set the agenda to include:-

"A revised schedule of remaining pleadings and hearing date.

Paymentof outstanding securities and legal opinion account."

In its terms the matters listed for resolution do not include a substantive hearing.  The reference to the fixing of a hearing date is supportive of that. 

Before me it is said on behalf of the first and second respondents that the position which they will maintain before the arbitrator tomorrow is that the arbitration should proceed, subject to the resolution by the arbitrator, of a request for an adjournment made on behalf of the applicant following the filing by it of an affidavit in accordance with the opportunity to do so provided by the arbitrator.  Therefore, the position is that at the hearing tomorrow, the arbitrator will either grant an adjournment or dismiss the application for an adjournment and decide to proceed with the arbitration. 

The significance of the arbitration proceeding is touched upon in one of the affidavits in which the solicitor for the applicant states that:

"Although required to be delivered by 15 November 1995 the first respondent's points of claim before the arbitrator were not received until 4 December 1995.  The applicant's points of defence and counter-claim were therefore delivered on 16 January 1996 following the obtaining of detailed and lengthy instructions from the applicant's representative who resides in Singapore."

Discovery and inspection have, as a consequence, not been given by either party nor has a reply to the defence or a defence to counter-claim been filed.  No agreed bundle of documents has been delivered to the arbitrator at least 7 days before the commencement of the hearing.  It is these matters which it appears the applicant will rely upon in seeking an adjournment.

It has not been necessary for me to hear substantive argument on these matters or on the stay proceedings because I consider that the application fails to demonstrate appropriate urgency.  It is apparent that if the arbitrator accedes to the motion of adjournment there will be no urgency.  The applicant, possessed of an adjournment would be able to consider its position and to take what steps were then considered appropriate in the preparation of its case.  It is not for this Court to presume that the arbitrator will necessarily refuse the application for adjournment nor is it for this Court to assume that the arbitrator will not weigh most carefully the submissions made in favour of the application for an adjournment together with the arguments made against it.  Therefore, the application fails on the point of urgency.

The question then arises whether the motion should be dismissed or adjourned.  I have outlined the affidavit material because I consider that it demonstrates that the claim for a stay is based upon material which goes beyond the outcome of the arbitration hearing tomorrow.  As a consequence, I consider that the motion should not be dismissed but should be adjourned.  Whether it is necessary
for the motion to be pursued is a matter which can be determined by the applicant.  If it does not pursue it immediately it can be dealt with at the next directions hearing which has been fixed for 16 February. 

For these reasons, I consider that the Court should decline to make any orders on this application but that the motion should be adjourned. 

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date:

APPEARANCES

Counsel for the Applicant:       Mr W J Millar

Solicitors for the Applicant:      Chan Galic

Counsel for the Respondent:      Mr C D Raymond

Solicitors for the Respondent:    James Ride

Date of Hearing:                 29 January 1996

Date of Judgment:                29 January 1996