mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl-ing Burkhardt GmbH [2001] 1 Qd R 461
Outcome: cited
Marine argued that the making of a choice between having disputes determined by arbitration or curially was not an election by a party to an arbitration agreement. It relied on what Austin J had said in ACD Tridon v Tridon Australia [2002] NSWSC 896 at [58] , [68]-[69]. He held that mere delay in invoking a reference to arbitration by a party to an arbitration agreement, who had been sued by the other party in curial proceedings, was not an election or waiver: see too Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl-ing Burkhardt GmbH [2001] 1 Qd R 461 at 469 [25]. But that is quite distinct from the position, here, where the party asserting the binding obligation to arbitrate later initiated the Boomerang I 's arrest without, at that time, seeking or foreshadowing a claim for curial assistance in those proceedings in enforcing the arbitration agreement. Ordinarily, an arbitration agreement will give rise to the Court holding the parties to an exclusive procedure to be followed by both parties for the resolution of any dispute to which the agreement applies: PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 312-313 per Brennan CJ, Gaudron and McHugh JJ. There is no reason why the parties cannot agree afterwards to use litigation, rather than follow the arbitration agreement in which case the agreement, becomes 'inoperative' within the meaning of s 7(5) of the International Arbitration Act 1974 (Cth) : Australian Granites Ltd v Eisenwerk Hensel Bayreuth Depl.-ing Burkhardt GmbH [2001] 1 Qd R 461 at 466-467 [15]-[16] per Pincus JA with whom Thomas JA and Shepherdson J agreed; Zhang v Shanghai Wool and Jute Textile Co Ltd [2006] VSCA 133 at [12] - [13] per Chernov JA with whom Ashley JA and Bongiorno AJA agreed.
Case: Berowra Holdings Pty Ltd v Gordon [2006] HCA 32
Outcome: cited
Marine also relied on what Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said concerning 'waiver' in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 of [38]-[39]. In particular they said: 'It is one thing to speak of the waiver of a legal, equitable or statutory right or privilege. However, once it is appreciated that the court has jurisdiction and that its procedural rules have been engaged, concepts such as "waiver" (and acquiescence and estoppel) are confusing and imprecise. This was pointed out by Dawson J in Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 at 456) and Lord Browne-Wilkinson in Roebuck v Mungovin ([1994] 2 AC 224 at 235-236. See also Giumelli v Giumelli [1999] HCA 10 ; (1999) 196 CLR 101 at 122 [38] ). The conduct of pending proceedings by a party is relevant upon an application by that party for the exercise in its favour of a power of the court. The outcome of such an application depends not upon the exercise of the right of a litigant or upon its denial, but upon the exercise of a discretionary power given to the court. The decision of the court often will depend upon many different factors (see Ketteman v Hansel Properties [1987] AC 189 at 220 per Lord Griffiths). An outcome favourable to one party cannot be described adequately in terms of the waiver of the legal, equitable or statutory rights of the unsuccessful party.' (emphasis added) Again, their Honours were dealing an argument about waiver by a defendant to proceedings which, at the first opportunity, had not taken a point open to it to say that the proceedings were incompetent. As the words emphasised show, the issue there was as to the legal consequence of conduct of a party in proceedings which were already pending, as distinct from the consequences which might result the conduct of from a person who exercises a choice by commencing curial proceedings.
Case: Caltex Oil (Australia) Pty Limited v The Dredge 'Willemstad' [1976] HCA 65 ; (1976) 136 CLR 529
Outcome: followed
Pan appeared unconditionally as defendant in those proceedings on 24 June, it submitted to the jurisdiction of the Court and waived any irregularity. As Gibbs J noted in Caltex Oil (Australia) Pty Limited v The Dredge 'Willemstad' [1976] HCA 65 ; (1976) 136 CLR 529 at 539, only a defendant can enter an appearance. He said that in an action in rem, the persons who may become defendants, if they choose to appear, are the owners and others interested in the ship, including charterers (see too: Republic of India v India Steamship Co Ltd (No 2) [1998] AC 878 at 908B-909A, 909F-910F per Lord Steyn with whom Lords Browne-Wilkinson, Hoffmann, Cooke of Thorndon and Hope of Craighead agreed and s 31 of the Admiralty Act 1988 (Cth)).
Case: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305
Outcome: followed
can be no doubt that Comandate Marine knew of the provisions of cl 45(b) requiring all disputes arising out of the contract to be arbitrated at the time of the issue of its writ in rem. By seeking only the relief which it did in the writ in rem, Comandate Marine communicated, unequivocally, in my opinion, a choice that it was litigating in this Court an action for damages for breach of the charter party. Of course, the Court could give relief in that action. No relief was sought in aid of the arbitration. In the classic judgment of Parker J in Matthews v Smallwood [1910] 1 Ch 777 at 786-787 (in a passage approved by Knox CJ, Isaacs and Starke JJ in Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305 at 325 (their Honours' emphasis)) said: 'It is also, I think, reasonably clear upon the cases that whether the act, coupled with the knowledge, constitutes a waiver is a question which the law decides , and therefore it is not open to a lessor who has knowledge of the breach to say 'I will treat the tenancy as existing, and I will receive the rent, or I will take advantage of my power as landlord to distrain; but I tell you that all I shall do will be without prejudice to my right to re-enter, which I intend to reserve.' That is a position which he is not entitled to take up. If, knowing of the breach , he does distrain, or does receive the rent, then by law he waives the breach, and nothing which he can say by way of protest against the law will avail him anything.'
Case: Immer (No 145) Pty Limited v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27 ; (1993) 182 CLR 26
Outcome: followed
consequences of an election may well be serious to the party electing, and in particular, election involves the abandoning of a right that is available: Immer (No 145) Pty Limited v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27 ; (1993) 182 CLR 26 at 39 per Deane, Toohey, Gaudron and McHugh JJ. Their Honours held that a party can be only held to have elected if it had so communicated its election to the other party in clear and unequivocal terms. An election arises when a party is confronted with and makes a choice between the exercise of alternative and inconsistent rights. The party is not obliged to elect at once, but when it takes a step which is consistent only with one of those rights the law attributes to it an election to abandon the other right (182 CLR at pp 38-39). It is necessary, however, for the party alleged to have elected, to have been aware at least of the facts giving rise to the two courses of action (182 CLR at 40). As their Honours pointed out (182 CLR at 41): 'The true nature of election is brought out in this sentence from the seminal work of Spencer Bower and Turner, The Law Relating to Estoppel by Representation (3 rd ed (1977) p 313): "It is of the essence of election that the party electing shall be 'confronted' with two mutually exclusive courses of action between which he must, in fairness to the other party, make his choice."'
Case: Khoury v Government Insurance Office (NSW) [1984] HCA 55 ; (1984) 165 CLR 622
Outcome: applied
is commonly a term used to describe 'election': Khoury v Government Insurance Office (NSW) [1984] HCA 55 ; (1984) 165 CLR 622 at 633 per Mason, Brennan, Deane and Dawson JJ, but, as their Honours say 'election' or 'waiver' in the sense of a choice between inconsistent rights is different to the concept of estoppel. 'An election, unlike estoppel is concerned with what a party does and not what he causes the other party to do' (165 CLR 622 at 633). No prejudice need be shown by the party seeking to hold the other to an election. Comanate Marine argues that by bringing its in rem proceedings it invoked the Admiralty jurisdiction of the Court, including all its powers under s 29 of the Admiralty Act 1988 (Cth). It says that the arrest of the Boomerang I has been set aside, and so no question now arises about an order under s 29 in the proceedings which it commenced. But it says that had the vessel remained under arrest, the court could have granted a stay and made orders for security under s 29.
Case: Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223
Outcome: followed
addition, it is a principle of private international law that a foreign plaintiff, not otherwise subject to the jurisdiction of the Court, who brings proceedings in the Court submits itself, by necessary implication, to any counterclaim which would operate as a defence to the proceeding or could be relied on as a set off or a cross claim arising out of the same subject matter which would reduce or extinguish the plaintiff's claim. That submission to jurisdiction extends to a cross claim founded on or arising directly out of the same subject matter, even if it may result in a judgment against the plaintiff on the cross claim, where that ought be tried to do justice between the parties ( Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 at 232B-233A per Hope JA, Clarke and Meagher JJA agreeing applying National Commercial Bank v Wimbourne (1979) 11 NSWLR 156 at 174E-G per Holland J; see too Wool International v Sedgwick Ltd (No 4) (unreported FCA 1172 October 1997 per Beaumont J at 10-11)).
Case: National Commercial Bank v Wimbourne (1979) 11 NSWLR 156
Outcome: followed
addition, it is a principle of private international law that a foreign plaintiff, not otherwise subject to the jurisdiction of the Court, who brings proceedings in the Court submits itself, by necessary implication, to any counterclaim which would operate as a defence to the proceeding or could be relied on as a set off or a cross claim arising out of the same subject matter which would reduce or extinguish the plaintiff's claim. That submission to jurisdiction extends to a cross claim founded on or arising directly out of the same subject matter, even if it may result in a judgment against the plaintiff on the cross claim, where that ought be tried to do justice between the parties ( Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 at 232B-233A per Hope JA, Clarke and Meagher JJA agreeing applying National Commercial Bank v Wimbourne (1979) 11 NSWLR 156 at 174E-G per Holland J; see too Wool International v Sedgwick Ltd (No 4) (unreported FCA 1172 October 1997 per Beaumont J at 10-11)).
Case: PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301
Outcome: cited
an arbitration agreement will give rise to the Court holding the parties to an exclusive procedure to be followed by both parties for the resolution of any dispute to which the agreement applies: PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 312-313 per Brennan CJ, Gaudron and McHugh JJ. There is no reason why the parties cannot agree afterwards to use litigation, rather than follow the arbitration agreement in which case the agreement, becomes 'inoperative' within the meaning of s 7(5) of the International Arbitration Act 1974 (Cth) : Australian Granites Ltd v Eisenwerk Hensel Bayreuth Depl.-ing Burkhardt GmbH [2001] 1 Qd R 461 at 466-467 [15]-[16] per Pincus JA with whom Thomas JA and Shepherdson J agreed; Zhang v Shanghai Wool and Jute Textile Co Ltd [2006] VSCA 133 at [12] - [13] per Chernov JA with whom Ashley JA and Bongiorno AJA agreed.
Case: Republic of India v India Steamship Co Ltd (No 2) [1998] AC 878
Outcome: applied
Pan appeared unconditionally as defendant in those proceedings on 24 June, it submitted to the jurisdiction of the Court and waived any irregularity. As Gibbs J noted in Caltex Oil (Australia) Pty Limited v The Dredge 'Willemstad' [1976] HCA 65 ; (1976) 136 CLR 529 at 539, only a defendant can enter an appearance. He said that in an action in rem, the persons who may become defendants, if they choose to appear, are the owners and others interested in the ship, including charterers (see too: Republic of India v India Steamship Co Ltd (No 2) [1998] AC 878 at 908B-909A, 909F-910F per Lord Steyn with whom Lords Browne-Wilkinson, Hoffmann, Cooke of Thorndon and Hope of Craighead agreed and s 31 of the Admiralty Act 1988 (Cth)).
Case: Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634
Outcome: followed
both his Lordship and the High Court used the term 'waiver', the concept to which they were referring has been treated in later cases as an election, as was made clear in Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634 at 642, 646 per Stephen J (with whom McTiernan ACJ agreed), per Mason J at 656-657. Comandate Marine's answer to this was to say that the presence of s 29 in the Admiralty Act 1988 (Cth) forms part of the jurisdiction of the Court which it had invoked by commencing its writ in rem. That is so. However, at that time it did not seek relief under s 29 and, quite contrary to its contractual promise that it would arbitrate all disputes arising under the charter party in London, it sought relief from this Court by way of the award of damages.
Case: The ' Andria' now renamed ' Vasso' [1984] QB 477 
Outcome: considered
Marine relied upon two authorities, one English and one in this Court in support of its position. In The ' Jalamatsya' [1987] 2 Lloyd's Rep 164, Sheen J held that a party to arbitration proceedings which had already been commenced could apply to the Court for the arrest of a vessel in order to obtain security for the arbitration. His Lordship noted that s 26 of the Civil Jurisdiction and Judgments Act 1982 (UK), which is in relevantly similar terms to s 29 of the Admiralty Act 1988 (Cth) for present purposes, envisaged just such a course. He relied on obiter dicta by Robert Goff LJ, giving the judgment of himself, Waller and Slade LJJ in The ' Andria' now renamed ' Vasso' [1984] QB 477; [1984] 1 Lloyd's Rep 235 to that effect. Sheen J said that s 26 had been enacted: '... to enable claimants (I use a neutral expression) to obtain security if they proceeded by way of arbitration rather than by action. In my judgment s 26 applies whether or not an arbitration has already been commenced. It follows that if an arbitration has been commenced, and if the claimants in the arbitration have not obtained security for any possible award, then they can quite properly issue a writ in rem if they know that a ship belonging to the respondents in the arbitration is coming within the jurisdiction, and they may arrest that ship in order to obtain security.' ([1987] 2 Lloyd's Rep at 165) What s 29 is referring to is the question whether the dispute should be determined by arbitration in the sense that that is the appropriate method whereby the dispute between the parties is to be resolved. There is an issue about that in this case. In The ' Andria' now renamed ' Vasso' [1984] QB 477 at 490, Waller, Slade and Robert Goff LJJ said, that in English law as it stood prior to the enactment of s 26: '... the Court's jurisdiction to arrest a ship in an action in rem should not be exercised for the purposes of providing security for an award which may be made in arbitration proceedings. That is simply because the purpose of the exercise of the jurisdiction is to provide security in respect of the action in rem, and not to provide security in some other proceedings, for example, arbitration proceedings. The time may well come when the law on this point may be changed: see s 26 of the Civil Jurisdiction and Judgments Act 1982, which has however not be brought into force. But that is not yet the law. It follows that, if a plaintiff invokes the jurisdiction of the Court to obtain the arrest of a ship as security for an award in arbitration proceedings, the Court should not issue a warrant of arrest.'
Case: The 'Bazias 3' [1993] QB 673 
Outcome: cited
The 'Bazias 3' [1993] QB 673, Lloyd LJ (with whom Ralph Gibson and Butler-Sloss LJJ agreed) granted a stay of proceedings brought in admiralty in order to enable arbitration to proceed but continued the arrest of two vessels under s 26 in order to provide security for any award in the arbitration. Significantly, his Lordship recited that the proceedings in rem sought security for the plaintiff's counterclaim in the arbitration proceedings (see [1993] QB at 678G-H and see also the recital of facts at 675C-D).
Case: The 'Cap Bon' [1967] 1 Lloyd's Rep 543 
Outcome: considered
their Lordships identified the issue as arising in the context of an argument about jurisdiction and abuse of process. They rejected the contention that if the purpose of a plaintiff in seeking the arrest of a ship in an action in rem was simply to obtain security for an award in arbitration proceedings, the court had no jurisdiction ([1984] QB at 488E-G). Rather they held that in such a case, before s 26 came into force, the plaintiff's conduct was an abuse of process ([1984] QB at 490E-G), but said, obiter dicta , that once s 26 came into force it would be a permissible course. They also cited ([1984] QB at 490B) Brandon J's decision in The 'Cap Bon' [1967] 1 Lloyd's Rep 543 (see at 548) as authority for the proposition that a party who actively pursued proceedings in respect of the same claim both in the Court and in arbitration, could be required by the Court, in the exercise of its inherent power, to elect in which forum it would pursue its claim because the Court proceedings could be regarded as vexatious or an abuse of process. Brandon J observed that the plaintiff had a right to do either ([1967] 1 Lloyd's Rep at 548: see too: The 'Tuyuti' [1984] QB 838 at 850 where Robert Goff LJ referred to this approach as a principle of law). Neither the Lords Justices, nor Brandon J, considered the question of whether the party by so acting may have elected between or waived its right to pursue one rather than the other course.
Case: The 'Jalamatsya' [1987] 2 Lloyd's Rep 164 
Outcome: discussed
Marine relied upon two authorities, one English and one in this Court in support of its position. In The ' Jalamatsya' [1987] 2 Lloyd's Rep 164, Sheen J held that a party to arbitration proceedings which had already been commenced could apply to the Court for the arrest of a vessel in order to obtain security for the arbitration. His Lordship noted that s 26 of the Civil Jurisdiction and Judgments Act 1982 (UK), which is in relevantly similar terms to s 29 of the Admiralty Act 1988 (Cth) for present purposes, envisaged just such a course. He relied on obiter dicta by Robert Goff LJ, giving the judgment of himself, Waller and Slade LJJ in The ' Andria' now renamed ' Vasso' [1984] QB 477; [1984] 1 Lloyd's Rep 235 to that effect. Sheen J said that s 26 had been enacted: '... to enable claimants (I use a neutral expression) to obtain security if they proceeded by way of arbitration rather than by action. In my judgment s 26 applies whether or not an arbitration has already been commenced. It follows that if an arbitration has been commenced, and if the claimants in the arbitration have not obtained security for any possible award, then they can quite properly issue a writ in rem if they know that a ship belonging to the respondents in the arbitration is coming within the jurisdiction, and they may arrest that ship in order to obtain security.' ([1987] 2 Lloyd's Rep at 165)
Case: Tisand v The 'Cape Morton' [2004] FCA 1191 ; (2004) 141 FCR 29 
Outcome: followed
would not be inconsistent for a party to an arbitration agreement seeking to enforce its rights in an arbitration to commence in rem proceedings in which it claimed relief under s 29 of the Admiralty Act 1988 (Cth) so as to have security available to satisfy any arbitral award. And, as Allsop J has remarked, it is important to recognize that impediments should not be placed in the path of the free use of the in rem procedure under the Admiralty Act 1988 (Cth): Tisand v The 'Cape Moreton' [2004] FCA 1191 ; (2004) 141 FCR 29 at 38 [44] . In the present case, where the arbitration has commenced and Comandate Marine wishes to enforce the obligations of the parties to arbitrate, it could have commenced in rem proceedings seeking an order under s 29 that they be stayed or dismissed on the ground that Pan was bound to arbitrate in London after Pan provided security. Comandate Marine invoked the jurisdiction of the Court to hear and determine a case for damages for breach of the charter party by seeking in its writ in rem only the arrest and damages and made no claim for security or to enforce the obligation to arbitrate. Indeed, Comandate Marine submitted that while its dominant purpose in commencing its proceedings in rem was to obtain security for the arbitration, it also intended to pursue the relief it claimed in that writ of stay of Pan's proceedings were refused. That submission sought to keep all Comandate Marine's options open without prejudice. Comandate Marine also pointed to Art 9 of the UNCITRAL Model Law on International Commercial Arbitration which by force of s 16(1) and the International Arbitration Act 1974 (Cth) has the force of law in Australia. The Model Law is set out in Sch 2 of that Act. Article 9 of the Model Law provides: 'It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.'
Case: Tropical Traders Ltd v Gonnan [1964] HCA 20 ; (1964) 111 CLR 41
Outcome: followed
Honours said that the confrontation which, in turn, produces the necessity of making a choice can also involve the concept that one affirms an agreement and abandons the right to rescind. Abandonment can be more readily inferred in certain circumstances than others (182 CLR at 42). And, as Kitto J commented in Tropical Traders Ltd v Goonan [1964] HCA 20 ; (1964) 111 CLR 41 at 55: 'Not that election is a matter of intention. It is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other.' (see too at 182 CLR at 42)
Case: Wool International v Sedgwick Ltd (No 4) (unreported FCA 2 October 1997
Outcome: followed
addition, it is a principle of private international law that a foreign plaintiff, not otherwise subject to the jurisdiction of the Court, who brings proceedings in the Court submits itself, by necessary implication, to any counterclaim which would operate as a defence to the proceeding or could be relied on as a set off or a cross claim arising out of the same subject matter which would reduce or extinguish the plaintiff's claim. That submission to jurisdiction extends to a cross claim founded on or arising directly out of the same subject matter, even if it may result in a judgment against the plaintiff on the cross claim, where that ought be tried to do justice between the parties ( Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 at 232B-233A per Hope JA, Clarke and Meagher JJA agreeing applying National Commercial Bank v Wimbourne (1979) 11 NSWLR 156 at 174E-G per Holland J; see too Wool International v Sedgwick Ltd (No 4) (unreported FCA 1172 October 1997 per Beaumont J at 10-11)).