Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd

[2005] FCA 1327

FEDERAL COURT OF AUSTRALIA

Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1327

WALTER RAU NEUSSER OEL UND FETT AG v CROSS PACIFIC TRADING LTD AND ORS
NSD 432 of 2005

ALLSOP J
19 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 432 of 2005

BETWEEN:

WALTER RAU NEUSSER OEL UND FETT AG
APPLICANT

AND:

CROSS PACIFIC TRADING LTD
FIRST RESPONDENT

PATRICK SHUNG WONG
SECOND RESPONDENT

WILLEM JOHAN VAN VLYMEN
THIRD RESPONDENT

ORBIS COMMODITIES PTY LIMITED
FOURTH RESPONDENT

INTERNATIONAL COMTRADE & SHIPPING LIMITED
FIFTH RESPONDENT

RUSSELL ISLAND PLANTATION ESTATES LIMITED
SIXTH RESPONDENT

KAY LITTLE JOHN
SEVENTH RESPONDENT

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
EIGHTH RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

19 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the respondents to file and serve a notice of motion seeking to strike out the amended statement of claim;

2.that notice of motion stand over to a date to be fixed.

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	NSD 432 of 2005

BETWEEN:

WALTER RAU NEUSSER OEL UND FETT AG
APPLICANT

AND:

CROSS PACIFIC TRADING LTD
FIRST RESPONDENT

PATRICK SHUNG WONG
SECOND RESPONDENT

WILLEM JOHAN VAN VLYMEN
THIRD RESPONDENT

ORBIS COMMODITIES PTY LIMITED
FOURTH RESPONDENT

INTERNATIONAL COMTRADE & SHIPPING LIMITED
FIFTH RESPONDENT

RUSSELL ISLAND PLANTATION ESTATES LIMITED
SIXTH RESPONDENT

KAY LITTLE JOHN
SEVENTH RESPONDENT

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
EIGHTH RESPONDENT

JUDGE:	ALLSOP J
DATE:	19 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter I have delivered a number of interlocutory judgments.  The primary concern of the parties at the moment is a body of argument reflected in reasons and orders that I made on 15 August 2005 concerning whether or not the proceedings or any part of them should be stayed by reference to the terms of the International Arbitration Act 1974 (Cth) and by reference to general law principles consequent upon the application of the International Arbitration Act.  I do not set out in these extempore reasons what I did on the resolution of those motions.

2. However, I refused to stay the whole of the proceedings.  I was prepared to stay part of the proceedings but only on terms.  Each side being dissatisfied with the orders has sought leave to appeal and I have given leave to appeal to both sides to fully agitate the arguments they wish to raise in relation to the International Arbitration Act.  Those arguments or at least some of them are matters of considerable importance both as to how arbitration clauses should be interpreted by judges of this Court and in relation to the operation of a most important piece of Federal law in relation to international commerce.

3. The argument was dealt with before me on the basis of an unfiled amended statement of claim, the parties if I may say so perfectly sensibly took the view that if they were the matters which the applicant wished to raise the stay application should be dealt with on that basis.

4. After handing down my reasons and making my orders in relation to those stay applications I took the view that the record should be formalised in relation to that application to amend and I made orders that leave be given to amend the statement of claim in the form of the document which had provided the foundation for the stay arguments.  It seemed to me that that accorded with bringing the file and the proceedings into good order.

5. However, I made it clear in the terms of my orders and in the terms of my reasons that the respondents were to be fully protected should they wish in due course to seek to strike out any part of that filed document and that in any such application, they should be and be regarded as being in the position of a party opposing the request for leave rather than a party seeking to strike out a document for which leave had been given.

6. There is in all likelihood very little functional difference between the two positions.

7. However to the extent that it could be said that there was any such difference I wanted the respondents fully protected and they are.  Mr Jacobs today has renewed an application made by his solicitors in correspondence that court time be set aside for the hearing of a notice of motion by the respondents striking out the latest version of the statement of claim which I gave leave to file in circumstances I have just discussed.

8. He says that that would neaten up the proceedings prior to the callover before the appeals Judge, Moore J.  I do not think it will.  The parties in these proceedings are now engaged in a debate or are about to be engaged in debate in the Full Court as to the correctness or otherwise of the orders I made concerning the stay of the proceedings.  If the Full Court is persuaded by Mr Jacobs' arguments that the whole proceeding should be stayed that is the end of the matter, the whole proceedings will be stayed and the matter will go off to arbitration before a Federation of Oils Seeds and Fats Associations (FOSFA) arbitrator pursuant to the arbitration provision and FOSFA rules.

9. If the Full Court is of the view that I was correct or substantially correct such that proceedings should be and are to be proceeded with in this Court, depending upon what the Full Court says, it may be necessary then to analyse what the terms of the pleading of the applicant are and whether they are defective in some way.

10. If the matter is not stayed fully it will come back to me and I will deal with the pleadings in due course.  Any notice of motion may be filed, however I do not propose to hear any such notice of motion until after the resolution of the appeals concerning the stay applications in relation to the arbitration clauses and the operation of the International Arbitration Act.  Therefore I grant leave to the extent leave is necessary to the respondents to file and serve a notice of motion seeking to strike out the amended statement of claim in its latest form, however that notice of motion will stand over to a date to be fixed for hearing after the resolution of the appeals on the arbitration questions raised by the International Arbitration Act.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            19 September 2005

Counsel for the Applicant:	Mr N Owens
Solicitor for the Applicant:	Ebsworth & Ebsworth
Counsel for the Respondent:	Mr M S Jacobs QC
Solicitor for the Respondent:	Alexander & Associates
Date of Hearing:	19 September 2005
Date of Judgment:	19 September 2005