Full Court Minute Books

Case B32/2023

Carmichael Rail Network Pty Ltd as Trustee for the Carmichael Rail Network Trust v. BBC Chartering Carriers Gmbh & Co. Kg & Anor

Case No.

Case no B32/2023

Case Information

Lower Court Judgment

12/10/2022 Federal Court of Australia (Rares, SC Derrington and Stewart JJ)

[2022] FCAFC 171


Shipping and navigation – Bill of lading – Arbitration clause – Application for stay of proceedings in favour of arbitration – Anti-suit injunction – Where Art 3(8) of Hague-Visby Rules (given effect in Australia, with some modifications, in Sch 1A of Carriage of Goods by Sea Act 1991 (Cth) ("Australian Hague Rules")) relevantly provides any clause, covenant, or agreement in contract of carriage relieving carrier or ship from liability for loss or damage to, or in connexion with, goods arising from negligence, fault, or failure in duties and obligations or lessening such liability otherwise than as provided in Rules, shall be null and void and of no effect – Where applicant consignee of domestic shipment of hardened steel rails from Whyalla to Mackay, under bill of lading drafted and issued by first respondent – Where applicant also entered into contracts with second respondent to supply rails, and to load them onto second respondent's ship – Where, on arrival at Mackay, members of first respondent's crew observed collapse had occurred, and steel rails damaged and unfit for use – Where bill of lading provided that any dispute arising thereunder shall be referred to arbitration in London – Where first respondent gave notice that it commenced arbitral proceedings seeking declaration it not liable for damage suffered by applicant, and inviting applicant to nominate arbitrator – Where applicant applied for anti-suit injunction restraining first respondent from taking further steps in purported arbitration – Where Full Court Full Court held arbitration clause contained in clause 4 of bill of lading valid – Proper test to apply to anti?suit injunction based on putatively invalid arbitration clause under Article 3(8) of the Australian Hague Rules – Whether for foreign jurisdiction clause to be held void as contrary to Art 3(8) of the Australian Hague Rules, shipper must prove conduct of foreign proceeding would be such as to lessen liability of carrier.


09/06/2023 Hearing (SLA, Canberra and by video-connection)

21/06/2023 Notice of appeal

28/07/2023 Written submissions (Appellant)

28/07/2023 Chronology (Appellant)

25/08/2023 Written submissions (First Respondent)

25/08/2023 Written submissions (Second Respondent)

14/09/2023 Reply

17/10/2023 Hearing (Full Court, Canberra) (Audio-visual recording)

17/10/2023 Outline of oral argument (Appellant)

17/10/2023 Outline of oral argument (First Respondent)

16/10/2023 Outline of oral argument (Second Respondent)

14/02/2024 Judgment (Judgment summary)