Case: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425
Outcome: applied
similar view as to the power of a stay was expressed in applying what Lord Diplock had said by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 428 [7] - [9] . I am of opinion that the continuation of the foreign restraining orders would reflect a juridicial basis which is inconsistent with the position that I have found, and would create an alteration of the position that the arbitration agreement is inoperative. I am of opinion that in crafting orders, conditioning the grant of leave so as to obviate the necessity for Pan to litigate both in the United States and England to set those restraining orders aside and to provide that they can, in effect, be automatically reinstated, will mean that the institution of the appeal will not be able to be seen as being unduly vexatious or oppressive, within the meaning of the authorities to which I have referred. Right-thinking people would regard it as very odd that the appellate processes of the court could be invoked by one party who says a decision is wrong, which held it had no right to arbitrate, who on the other hand, asserts that it can keep in place ex parte orders obtained in aid of that arbitration from courts overseas. It does not seem right that Comandate Marine can pursue an appeal in this jurisdiction leaving Pan to pursue litigation overseas to secure the benefit of its result here, in circumstances where one is dealing with commercial litigation. In the present case appropriate protective orders can be made and there is no evidence before, me despite an invitation to identify any, to show that there is any prejudice to Comandate Marine in this result. Doing the best I can to balance the rights of both of the parties, I am of opinion that it is appropriate to impose a condition on the grant of leave that Comandate Marine give up its current orders in aid of the arbitration. It seems to me that those orders currently, other than requiring Pan not to dissipate its assets otherwise than in the ordinary course of business which it is obliged to do under Australian law in any event, on the evidence before me, do not actually secure any real right of Comandate Marine or give it a benefit. So, I do not consider that it will suffer some substantial prejudice by being required to adhere to the position that there is no arbitration currently on foot by reason of the determination that I made on 22 August 2006. This is an application to commence an appeal in commercial litigation which ought be approached commercially in the exercise of discretions attending a grant of leave. I am of opinion that where the court is in a position to give an urgent hearing of the appeal, as will occur, and where there is no practical prejudice, on the evidence, suffered by the vacation of the two orders that have been obtained only for the purposes of the arbitration, I ought to require Comandate Marine to take steps to discharge them. Comandate Marine argued that that was interfering with the jurisdiction of the United States District Court and the High Court of Justice of England and Wales.