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Papua New Guinea Law Reports |
[1965-66] PNGLR 381 - Delta Constructions Pty. Ltd. v Administration of the Territory of Papua and New Guinea
[1965-66] PNGLR 381
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
DELTA CONSTRUCTIONS PTY. LTD.
V.
ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA
Port Moresby
Ollerenshaw J
25-27 October 1966
1 November 1966
ARBITRATION - Application for stay of action on building contract - Scope of arbitration clause - Onus of proof - Inherent jurisdiction of the Supreme Court to grant a stay - Arbitration Ordinance 1951, s. 8 (1)(2) - Courts and Laws Adopting Ordinance 1888, s. 10 - Supreme Court Act (Queensland) 1867, ss. 21, 34.
In a building contract, a damages clause provided that:
“If the Contractor fails to complete the Works by the date stated in the Appendix to these Conditions or within any extended time fixed under Clause 22 of these Conditions and the Director [of Public Works of the Administration of the Territory of Papua and New Guinea] certifies in writing that in his opinion the same ought reasonably so to have been completed, the Contractor shall pay or allow to the Administration such sum (calculated at the rate stated in the Appendix by way of Liquidated and Ascertained Damages for the period during which the said Works shall so remain or have remained incomplete) as in the opinion of the Director is proper to be paid or allowed, and the Director shall be entitled, in issuing any certificate under the provisions of clause 28 hereof, to deduct such sum from the amount otherwise payable under such certificate.
“In the event of no further moneys being payable to the Contractor or in the event of such sum as aforesaid exceeding the amount payable to the Contractor, the Administration shall be entitled to recover the same, or any such excess, as a debt due by the Contractor to the Administration.”
An arbitration clause in the contract provided that:
“Subject to the provisions of Clause 19 hereof in the event of any dispute or difference arising between the parties hereto, either during the progress of the works or after the determination, abandonment or breach of the contract, or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith, then either party shall give to the other notice in writing of such dispute or difference and at the expiration of seven days (unless it shall have been otherwise settled), such dispute or difference shall be submitted to arbitration by two arbitrators, one to be appointed by each party thereto, and such arbitration shall be deemed to be a submission under the ‘Arbitration Ordinance’ 1951.
“If it be reasonably possible, work under the contract or any variation thereto shall continue during arbitration proceedings, and no payment due or payable by the Director shall be withheld on account of the arbitration proceedings unless (sic) authorised by the Contractor.”
On certain works not being completed in time by the contractor a dispute arose as to whether further time should be allowed, and as to whether payment should be made by the Administration to the contractor. The Administration sought to invoke the damages clause which would have rendered the contractor liable for a sum greater than that claimed by the contractor as being due for work done. On the Administration’s refusal to pay the sum claimed, the contractor commenced an action by writ of summons endorsed with a statement for claim for moneys due. On the Administration’s motion for a stay of proceedings:
Held:
(1) The damages clause did something more than entitle the Director to deduct a sum for damages for delay in completion. In the events that had happened it created an obligation on the part of the contractor to pay or allow to the Administration the sum of such damages as prescribed in the agreement once the Director had certified in writing that in his opinion the works ought reasonably to have been completed by the date stipulated in the contract.
(2) The Administration was not merely refusing to pay the contractor’s claim. While it admitted the claim it maintained that it had a counterclaim that exceeded the amount of the contractor’s claim.
Both these claims arose under the contract and the dispute, at the date when the writ was issued, in reality was as to whether or not the Administration owed anything under the contract to the contractor and this was a dispute arising under the contract within the meaning of the arbitration clause.
(3) Once an applicant for a stay of proceedings has established that a dispute falls within an arbitration clause, the modern tendency of the courts is to stay the action unless the party opposing the stay can show cause to the contrary.
(4) It is within the inherent jurisdiction of the Supreme Court to grant a stay but the principles governing an application under the inherent jurisdiction are the same as those applicable to an application under s. 8 of the Arbitration Ordinance 1951. The exercise of the inherent or “parallel” jurisdiction is necessary only where the agreement between the parties is to submit disputes and the like to a body such as a foreign tribunal.
Cases Referred To:
Heyman v. Darwins Limited, [1942] A.C. 356; Government of Gibraltar v. Kenney, [1956] 2 Q.B. 410; Kaaten v. British Traders Insurance Ltd. (1937), 54 W.N. (N.S.W.) 34; London and North Western and Great Railways v. Billington, [1898] UKLawRpAC 62; [1899] A.C. 79; London & North Western Railway Company v. Jones, [1915] 2 K.B. 35; Bede S.S. & Co. Ltd. v. Bunge & Born Ltd. (1927), 43 T.L.R. 374; Racecourse Betting Control Board v. Secretary of State for Air, [1944] Ch. 114; Hanessian v. Lloyd Triestino Socieata Anonima di Navigazione (1951), 68 W.N. (N.S.W.) 98; Wilson v. Compagnie Des Messageries Maritime (1954), 54 S.R. (N.S.W.) 258.
Application for Stay of Action for Breach of Contract.
The facts appear sufficiently from the judgment.
Counsel:
Croft, for the applicant.
Bayliss, for the respondent.
1 November 1966
OLLERENSHAW J: This was an application for a stay of proceedings by the Administration of the Territory of Papua and New Guinea (hereinafter called the applicant), the defendant in an action brought against the applicant by the plaintiff, Delta Constructions Pty. Ltd. (hereinafter called the respondent), commenced by a writ of summons, issued on the 11th day of October, 1966, and endorsed with a statement of claim in these terms:
“The Plaintiff’s claim is for moneys due by the Defendant to the Plaintiff and wrongfully deducted by the Defendant from Progress Certificate Number 10 dated on or about the 31st day of August 1966 and relating to certain contracts for the Minj/ Banz Road and Bridges and full particulars have been supplied to the Defendant and are in the knowledge of the Defendant And the Plaintiff claims the sum of $13,520.00.”
The relevant facts are that on the 2nd day of April, 1965, the parties entered into a lump sum contract, evidenced by an agreement and schedule of conditions annexed thereto and what are called the “specifications”, incorporated therewith, for the construction by the respondent of the road and bridges mentioned in the statement of claim for the reward to be paid by the applicant as provided in the contract. It was also provided by or in pursuance of the contract that this work was to be completed by the 11th day of March, 1966. In due course the consulting engineers, who had been nominated for relevant purposes under the contract by the Director of Public Works (hereinafter called the Director), issued to the respondent the Progress Certificate Number 10, mentioned in the statement of claim. It is dated the 31st day of August, 1966, and was issued in respect of work completed to the 26th day of August, 1966.
At the foot of a list of particulars this certificate sets out the value of work completed, from which is deducted retention money and previous payments, leaving a balance payable to the respondent of $12,628, from which is made a further deduction of $13,520 for liquidated damages, so that under the final item of “Money now payable” there is shown a minus sum of $892.00. It is addressed to the District Works Engineer, Public Works Dept., Mount Hagen, and certifies that the contractor is entitled to receive the sum of “Nil dollars and nil cents”.
Upon receipt of this certificate the respondent invoked the arbitration clause in the contract, which is clause 26 in the conditions annexed to it and clause 33 in the “Specifications” incorporated with it, and served upon the applicant a notice requiring arbitration dated the 5th day of September, 1966. In this notice the respondent denied that the deduction made in the progress certificate on account of liquidated damages had been duly or properly made in that it was made in respect of the respondent’s failure to complete the work by the day stipulated and the Director had not certified in writing pursuant to clause 23 of the “Specifications” that in his opinion the works-the construction of the road and bridges-ought reasonably so to have been completed. By this notice requiring arbitration the plaintiff required that at the expiration of seven days from the delivery thereof the dispute or difference so arising be submitted to arbitration as provided by the contract.
Thereupon, on the 6th day of September, 1966, the Director did certify, in pursuance of clause 23, that the works ought reasonably to have been completed by the stipulated date and by letter of the 6th September he informed the respondent that his certificate was available for inspection at his office. Subsequently, he conceded in writing that on the 31st August, 1966,-the date of the progress certificate-the sum of $13,520 could not be deducted from moneys due and payable to the respondent because he had not then signed a certificate under clause 23. He also suggested, in effect, that the arbitration required by the respondent’s notice of the 5th day of September had been rendered superfluous by this concession and by letter of the 23rd day of September the respondent’s solicitor confirmed that it was discontinued.
In the meantime by its notice dated the 13th day of September, 1966, the respondent again had invoked the arbitration clause, clause 33, alleging a dispute or difference within its meaning, arising from a request that the respondent had made on the 18th day of February, 1966, in pursuance of clause 22 of the “Specifications”, for an extension of the time within which to complete the works and the Director’s certificate of the 6th September, to which I have already made sufficient reference, and which, in effect, denied the request for extension of time. By this notice the respondent alleged that an extension of time for completion ought to be allowed upon the grounds, supported by the particulars, therein set forth and, failing settlement of the dispute within seven days, required it to be submitted to arbitration.
On the 11th day of October, 1966, and after its solicitor had demanded payment of the said sum of $13,520 and the Director had declined to pay it, the respondent issued the writ of summons, to which I have referred, and on the 19th day of October the applicant filed a notice of motion seeking a stay. The application was heard by me at such times as were available on the 25th, 26th and 27th days of October and on the last mentioned date, having come to a firm conclusion, I made an order in the following terms:
“That all further proceedings in this action be stayed until the expiration of seven days after the publication of the Award of the arbitrators appointed in pursuance of the Respondent’s Notice Requiring Arbitration, dated the 13th day of September, 1966, or until such other time as may be fixed by an order of this Court And that either party be at liberty to apply upon two clear days notice in writing to the other party and to the Registrar generally and particularly as to the duration of the stay of proceedings hereby ordered.”
The circumstances then existing, particularly that the hearing of the arbitration, to which my order referred, was about to be resumed on the following day, seemed to require the making of an order, one way or the other, forthwith, although there was not then time to publish my reasons, which I said I would do later.
The application was made under s. 8 of the Arbitration Ordinance No. 46 of 1951, in the following, not unusual, terms:
“8(1) If a party to a submission, or a person claiming through or under him, commences legal proceedings in any court against another party to the submission or a person claiming through or under him, in respect of a matter agreed to be referred, any party to those legal proceedings may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to that court to stay the proceedings.
(2) If the court to which application is made under the last preceding sub-section is satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, it may make an order staying the proceedings.”
Counsel for the applicant also relied upon the inherent power of the court to stay proceedings so that parties may be required to abide by their contract in its relation to the tribunal to determine disputes between them.
The matters upon which a court must be satisfied before granting a stay under s. 8 appear clearly enough from the section itself and they are stated and discussed at pp. 24 et seq. of vol. 2 of Halsbury’s Laws of England, 3rd ed., to which counsel for the respondent referred. See also Hudson’s Building and Engineering Contracts, 8th ed., at pp. 488 et seq., and Walker’s Supreme Court Practice (N.S.W.), 3rd ed., at pp. 418 et seq.
The court must be satisfied that the following conditions have been fulfilled:
(1) That there is a valid arbitration agreement covering the question in dispute;
(2) that the applicant is a party to the agreement, or claims through such a party;
(3) that the applicant has entered an appearance in the action and has taken no step in it thereafter;
(4) that the applicant is, and was at the commencement of the action, ready and willing to do everything necessary for the proper conduct of the arbitration; and
(5) that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the agreement.
It was established before me, largely by documents exhibited to the affidavit filed on behalf of the respondent and the admissions that fairly and generously were made by its counsel and that put the application on its feet, that there was a valid arbitration agreement between the parties contained in clause 33 of the “Specifications”, that the applicant had entered an appearance to the writ in this action and had taken no other step therein, that arbitrators, before whom arbitration proceedings had commenced, had been appointed by the parties in pursuance of the respondent’s notice requiring arbitration of the 13th day of September, 1966, that written submissions had been delivered to the arbitrators by both parties and oral submissions would be addressed to them by the parties on Friday the 28th day of October, 1966, that at the time this action was commenced the applicant was and that it remained ready and willing to do all things necessary to the proper conduct of the arbitration and that both the applicant and the respondent had taken all steps necessary to facilitate the speedy determination of the arbitration.
I had some difficulty in understanding a number of the submissions made by counsel for the respondent in argument in opposition to the application and it is only in deference to the vigour with which he did oppose it that I mention them.
He dwelt upon the fact that when the consulting engineers issued the progress certificate of the 31st August, 1966, there was no authority to include the deduction therein made on account of delay in completion against moneys then due to the respondent because the Director had not then issued his certificate under clause 23 of the “Specifications”, and, he read and referred to the affidavit filed on behalf of the respondent with its implication that the Director was influenced in giving his certificate, which did authorize a deduction on account of delay, by questions asked of him, and his answer thereto in the House of Assembly on the 2nd day of September, 1966, and he said that for this reason the applicant did not come into court with “clean hands”.
I do not consider that I am concerned with what it was that inspired the Director to exercise his right under clause 23. The works had not been completed on time and he had a prima facie right to certify as he did. Whether or not his opinion that the works ought reasonably to have been completed by the date stipulated was justified is another matter that, in effect, has been submitted by the respondent to the arbitrators in the arbitration now pending.
Counsel for the respondent referred me to the passage in para. 46 at p. 18 of the 2nd vol. of Halsbury’s Laws of England, 3rd ed.: “It follows that when an arbitration for any reason becomes abortive the court may take upon itself any burden placed by an arbitration agreement on the arbitrators in order to help the parties out of their impasse.” He maintained that this action was brought not in respect of a matter the subject of the arbitration now pending but in respect of the subject of the arbitration contemplated by the respondent’s notice requiring arbitration of the 5th September, an arbitration rendered, to use his word, “abortive” by the Director’s concession, to which sufficient reference has already been made. It is clear to me that the fact that the arbitration first sought became unnecessary because of the Director’s concession is irrelevant to this application and it is manifest that the pending arbitration-and that is the relevant one for the purpose of the passage cited by counsel-has not become abortive. I will refer later to the submission that this action relates only to the subject of the firstly required arbitration and not to the subject matter of the pending arbitration.
Counsel for the respondent also submitted that by reason of certain correspondence between the Director and him, to the contents of which I do not think that I need allude, the applicant had waived its right to a stay. I did not think that there was the slightest support for this submission.
Before I come to the more substantial questions that required my consideration I should go back to the statement of claim and refer to the applicant’s attitude to it. It is clear that the statement of claim, in its expressed terms, discloses no cause of action and that an application to strike it out might have been made. It is equally clear that the amount claimed should not have been the amount of the deduction mentioned in the statement of claim, namely $13,520, and that the amount claimed should have been the balance shown in the progress certificate as payable to the respondent, namely $12,628, before the deduction was made. However, the applicant by its counsel was prepared to read the statement of claim, for the purposes of this application, as if it were amended to claim $12,628 for, e.g., money payable by the applicant to the respondent for work done and materials provided by the respondent for the applicant at its request and to regard it as if the particulars of this claim had been set out properly.
To such claim it was said for the applicant that the applicant may have a defence or defences arising under the contract and that, certainly, at the date the writ was issued, it had a defence by way of counter-claim for liquidated damages in the sum of $13,520 in pursuance of clause 23 of the specifications and the Director’s certificate thereunder. It may be that the applicant has such a defence or defences but what they are was not made out or indicated to me and I accepted the progress certificate as showing that at the 31st day of August, 1966, the sum of $12,628 was payable to the respondent as the balance of the progress payments to which it was entitled under the contract, subject to any proper deduction for liquidated damages for delay in completion. The applicant by its Director had conceded that no deduction properly could have been made at that date but the applicant claimed that at the date of the issue of the writ it had the counter-claim to which I have referred. This seemed to me plainly to be right and why the counter-claim had not been pleaded was not made clear to me. It was suggested that although the amount for which the applicant could counterclaim at the date of the writ was, and still was the sum of $13,520, this amount may have to be decreased, if it does not altogether disappear, as a result of the pending arbitration. This also seemed right to me. Although I thought that the applicant could have protected its position, as was seen for it, by putting in its counter-claim for the full amount to which it could be entitled, namely $13,520, it chose to make this application, which fell to be considered according to what I conceived to be the proper principles.
I have already set out the relevant conditions upon which a stay may be granted and what was clearly established in satisfaction thereof and I have mentioned some of the submissions of counsel for the respondent in opposing the application.
I must now come to the more substantial questions that called for my consideration and required a closer examination of clause 23 and clause 33. Clause 23 is in these terms:
“Damages.
Clause 23.
If the Contractor fails to complete the Works by the date stated in the Appendix to these Conditions or within any extended time fixed under Clause 22 of these conditions and the Director certifies in writing that in his opinion the same ought reasonably so to have been completed, the Contractor shall pay or allow to the Administration such sum (calculated at the rate stated in the Appendix by way of Liquidated and Ascertained Damages for the period during which the said Works shall so remain or have remained incomplete) as in the opinion of the Director is proper to be paid or allowed, and the Director shall be entitled, in issuing any certificate under the provisions of clause 28 hereof, to deduct such sum from the amount otherwise payable under such certificate.
In the event of no further moneys being payable to the Contractor or in the event of such sum as aforesaid exceeding the amount payable to the Contractor, the Administration shall be entitled to recover the same, or any such excess, as a debt due by the contractor to the Administration.”
Clause 28, to which reference is made in this clause 23, is the clause providing for the issue of interim certificates for progress payments, in pursuance of which the Director’s nominees issued the certificate of the 31st day of August, 1966, and it is not necessary to set it out because there was no dispute in this application that, subject to the deduction complained of, it was properly issued. However, counsel for the respondent relied upon his uncontested submission that clause 23 did not authorize the inclusion in the certificate issued under clause 28 of a deduction, the authority for which was not in existence at the date of the issue of the certificate, and he pressed upon me that the subject of this action was the deduction which the respondent challenged in its first notice requiring arbitration. That he saw it this way was clear from the terms of the respondent’s statement of claim, which I have set out. It was clear to me that the subject of this action is a claim for work done and materials provided, particulars of which may be seen in the progress certificate, to which repeated reference has been made in these Reasons and which is described in the statement of claim. It was equally clear to me that clause 23 did something more than entitle the Director or his nominee, in issuing a certificate under clause 28, to deduct a sum calculated as provided in clause 23, for damages for delay in completion. In the events that had happened it created an obligation on the part of the respondent to pay or allow to the applicant the sum of such damages as so calculated once the Director had certified in writing, as he did on the 6th day of September, 1966, that in his opinion the works ought reasonably to have been completed by the date stipulated in the contract. The position, therefore, was that at the date of the issue of the writ the respondent had a claim under the contract for the sum of $12,628 and the applicant had a claim under the contract for the sum of $13,520.
As I have indicated, I considered that in this application I should assume that at the date of the issue of the writ the respondent’s claim was not in dispute and that it remained undisputed when I heard the application. Likewise the existence, at the relevant time, of the applicant’s claim was undisputed in the sense that it stood unless and until the award of the arbitrators in the pending arbitration destroyed it or required a reduction in the amount thereof.
This brings me to what seemed to me to be the substantial question: were the proceedings commenced by the writ in respect of a matter agreed to be referred to arbitration? The answer to this question depends upon clause 33 in these terms:
“Arbitration.
Clause 33.
Subject to the provisions of clause 19 hereof in the event of any dispute or difference arising between the parties hereto, either during the progress of the works or after the determination, abandonment or breach of the contract, as to the interpretation or construction of the contract, or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith, then either party shall give to the other notice in writing of such dispute or difference and at the expiration of seven days (unless it shall have been otherwise settled), such dispute or difference shall be submitted to arbitration by two arbitrators, one to be appointed by each party hereto, and such arbitration shall be deemed to be a submission under the ‘Arbitration Ordinance’ 1951.
If it be reasonably possible, work under the contract or any variation thereto shall continue during arbitration proceedings, and no payment due or payable by the Director shall be withheld on account of the arbitration proceedings unless (sic) authorised by the Contractor.”
This clause is similar in terms to many that have come before the courts in applications of this kind, made under legislation in the terms of s. 8 of the Arbitration Ordinance, and it is irrelevant that it neither attempts to oust the jurisdiction of the court nor expressly makes an award a condition precedent to an action.
To my mind the real question was: Was there a dispute or difference between the parties as to any relevant matter or thing arising under the contract or in connexion therewith? By relevant I mean that was the subject of this action.
I did not find any direct assistance from the cases cited by counsel for the applicant, such as Heyman v. Darwins Ltd[cccxcv]1; Government of Gibraltar v. Kenney[cccxcvi]2; and Kaaten v. British Traders Insurance Ltd.[cccxcvii]3
It is established that the failure to pay a claim for a debt to which no defence has been disclosed is a mere refusal to pay and not a dispute: see London and North Western and Great Railways v. Billington[cccxcviii]4; London & North Western Railway Company v. Jones[cccxcix]5; and Bede S.S. & Co. Ltd. v. Bunge & Born Ltd.[cd]6
However, I do not think that it could be said that the applicant merely was refusing to pay the respondent’s claim. While it admitted the claim, it maintained that it had a counter-claim that exceeded the amount of the respondent’s claim. Both these claims arose under the contract and the dispute, at the date when the writ was issued, in reality was as to whether or not the applicant owed anything under the contract to the respondent and this I considered to be a dispute arising under the contract within the meaning of clause 33. The respondent issued its writ claiming that the applicant did owe it the sum mentioned and this I considered was in respect of a dispute arising under the contract. It is nothing to the point that it was unnecessary to submit to arbitration the respondent’s undisputed claim-unnecessary because the question of the counter-claim and ultimate indebtedness would be resolved as a result of the arbitration that the respondent had sought and needed for the purpose of avoiding the counter-claim. Rather does this support the view that there was a dispute between the parties arising under the contract within the terms of clause 33.
I should refer now to the submission of counsel for the respondent that its claim was covered by the last paragraph of clause 33, that it was for a “payment due or payable by the Director” being withheld on account of the arbitration proceedings. I could not accede to this argument because I considered that the moneys claimed were not being withheld “on account of the arbitration proceedings” but on account of the applicant’s counter-claim and that it was irrelevant to this submission that in the arbitration proceedings the respondent sought an award that would avoid or reduce the counter-claim.
The respondent did not show any of the usual matters that induce the court to exercise its discretion against a stay, such as the existence of a charge of fraud against the person objecting to a stay or a question of law being involved and so on: see, e.g., Hudson’s Building and Engineering Contracts, 8th ed., pp. 494 et seq.
I was satisfied that there was no sufficient reason why the matter should not be referred to arbitration in accordance with the agreement as indeed, in the view I have taken, it had been, and that this was a proper case for the exercise of the discretion in favour of a stay.
I should, perhaps, refer to the question of onus that was discussed by counsel. Counsel for the applicant maintained that the onus was upon the respondent to show why it should not be bound by its agreement to submit the dispute to arbitration and he relied upon a passage in Walker’s Supreme Practice (N.S.W.), 3rd ed., at p. 419, to this effect. Counsel for the respondent submitted that the onus was upon the applicant and he relied upon the passage in para. 60, at p. 2, of vol. 2 of Halsbury’s Laws of England, 3rd ed.: “Finally the court must be satisfied that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the agreement.” It is to be observed that this was one of the conditions that the learned author of the title “Arbitration” considered should be fulfilled in order that a stay may be granted and that in para. 55 at p. 24 of this volume he says: “If the conditions are fulfilled, then it is for the party who wishes the matter to be litigated in court instead of being referred to arbitration to show that the matter is one which ought not to be referred, and unless he can show that an order to stay will be made.” I was satisfied affirmatively that there was no sufficient reason why the matter should not be referred to arbitration in accordance with the submission in the contract and, indeed, that there was good reason why it should be so referred, as, in effect, it had been. It is therefore unnecessary for me to attempt to resolve any conflict between these approaches if, indeed, there is a conflict. I would mention here that I think that it is true to say: “Once an applicant has established that a dispute falls within an arbitration clause, the modern tendency of the courts will be to stay the action unless the party opposing the stay can show cause to the contrary”: Hudson’s Building and Engineering Contracts, 8th ed., at p. 494, and Heyman v. Darwins Limited[cdi]7, there cited.
Finally, I would mention counsel for the applicant’s invocation of the inherent jurisdiction to grant a stay. Counsel for the respondent conceded that this court had such a jurisdiction and upon this I think that both counsel were right. By virtue of s. 10 of the Courts and Laws Adopting Ordinance of 1888, this court, in civil cases, has the like jurisdiction as the Supreme Court of Queensland. The Supreme Court of Queensland has this inherent jurisdiction: see ss. 21 and 34 of the Supreme Court Act 1867 of that State and Racecourse Betting Control Board v. Secretary of State for Air[cdii]8; Hanessian v. Lloyd Triestino Socieata Anonima di Navigazione[cdiii]9 and Wilson v. Compagnie Des Messageries Maritime[cdiv]10. However, counsel for the respondent submitted that if the applicant in this application could not bring itself within ‘s. 8 of the Arbitration Ordinance, 1951, in pursuance of clause 33 of the contract, it had no case to attract the inherent jurisdiction. I apprehend that the principles governing an application under the inherent jurisdiction are the same as those applicable to an application under the Ordinance and so I agree with this submission. The exercise of the inherent and what I may call the “parallel” jurisdiction is necessary only where the agreement between the parties is to submit disputes and the like to, e.g., a foreign tribunal or otherwise is not apt to be regarded as a submission within the terms of the Ordinance: see Wilson v. Compagnie Des Messageries Maritime[cdv]11.
I made no order as to the costs of the application. I gave my reasons for depriving the successful applicant of its costs when I made the order staying proceedings in this action and I see no good purpose to be served by repeating them here: there is some, and only some suggestion of them earlier in these reasons.
Stay of action.
Solicitor for applicant: S. H. Johnson, Crown Solicitor.
Solicitor for respondent: Colin Bayliss.
[cccxcvii](1937) 54 W.N. (N.S.W.) 34.
[cccxcviii][1899] A.C. 79.
[cccxcix][1915] 2 K.B. 35.
[cd](1927) 43 T.L.R. 374.
[cdi][1942] A.C. 356.
[cdii] [1944] Ch. 114, at p. 126.
[cdiii](1951) 68 W.N. (N.S.W.) 98.
[cdv](1954) 54 S.R. (N.S.W.), at p. 260.
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