Freedom Foods Pty Ltd v Blue Diamond Growers 2021 FCA 172 - 5 March 2021
THE COURT NOTES THAT: the respondent (BDG) by its counsel has provided the following undertakings:
- BDG will consent to the second applicant (FF Ingleburn), the third applicant (FF Trading) and the fourth applicant (Pactum) joining the arbitration in California commenced by BDG against the first applicant (FFPL) on or about 25 September 2020 (the Californian Arbitration);
- in the Californian Arbitration, BDG will accept that:
- insofar as those provisions are applicable to the conduct of BDG alleged by the applicants, ss 18 and 21 of the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)) are mandatory laws that the arbitrator must apply; and
- Australian law is to be applied by the arbitrator in determining the applicants’ claims under those provisions; and
- BDG will discontinue the proceeding against FFPL in the United States District Court, Eastern District of California (with a view to bringing the claims in the Californian Arbitration).
THE COURT ORDERS THAT:
- Pursuant to s 7(2) of the International Arbitration Act 1974 (Cth), the proceeding be stayed.
- BDG’s interlocutory application dated 15 December 2020 otherwise be dismissed.
- The applicants’ interlocutory application dated 20 November 2020 be dismissed.
- Within 14 days, the parties file any agreed minute of order as to the costs of the interlocutory applications and of the proceeding.
- If the parties cannot reach agreement:
- within 21 days, each party file a written submission (of no more than two pages) as to costs; and
- within 28 days, each party file a responding submission (of no more than two pages) as to costs.
ARBITRATION - international arbitration - arbitration agreement - application for stay of the proceeding pursuant to s 7(2) of the International Arbitration Act 1974 (Cth) - where the contract between the parties contained an arbitration agreement requiring disputes to be arbitrated in California - where the respondent sought a stay of the proceeding pursuant to s 7(2) - where the applicants contended that the arbitration agreement was invalid or of no effect by virtue of cl 21 of the Franchising Code of Conduct
CONSUMER LAW - franchise - Franchising Code of Conduct - where the first applicant and the respondent entered into a License Agreement for the manufacture, distribution and sale of certain almond milk products in Australia - whether the License Agreement constituted a “franchise agreement” for the purposes of the Franchising Code of Conduct