Cantarella Bros Pty Ltd v Barilla Alimentare SPA [1999] FCA 592

FEDERAL COURT OF AUSTRALIA

CANTARELLA BROS PTY LTD v BARILLA ALIMENTARE S.P.A. [1999] FCA 592 PRACTICE & PROCEDURE - respondent seeking a stay of proceedings until the finalisation of proceedings in Italy – stay not granted Trade Practices Act 1974

Voth v Manildra Flour Mills Proprietary Limited and Another (1990) 171 CLR 538 distinguished

CANTARELLA BROS PTY LIMITED v BARILLA ALIMENTARE S.p.A NG 1187 OF 1998 MATHEWS J

27 APRIL 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1187 OF 1998

BETWEEN: CANTARELLA BROS PTY LTD

Applicant

AND: BARILLA ALIMENTARE S P A

Respondent

JUDGE: MATHEWS J

DATE OF ORDER: 27 APRIL 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The orders sought in the notice of motion be refused.

2. The respondents pay the applicant's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1187 OF 1998

BETWEEN: CANTARELLA BROS PTY LTD

Applicant

AND: BARILLA ALIMENTARE S P A

Respondent

JUDGE: MATHEWS J

DATE: 27 APRIL 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application pursuant to a notice of motion brought by the respondents to these proceedings. For the sake of convenience, I shall refer to the respondents in the main proceedings as "Barilla" and to the applicant as "Cantarella". The notice of motion seeks that the proceedings against Barilla be stayed either permanently or pending final determination of certain proceedings between Barilla and Cantarella, commenced in the Court of Parma, Italy, Civil Division, in February 1998. 2 The proceedings in Australia were commenced by statement of claim, filed in this Court on 5 November 1998, alleging breaches by Barilla of various provisions of the Trade Practices Act 1974. The relationship between the parties goes back to 1992 when a distribution agreement was entered into between Cantarella and the first respondent, Barilla Alimentare S.p.A ‑ an Italian company. In general terms, the distribution agreement provided for the supply by Barilla of foodstuffs to Cantarella for distribution in various Australian retail outlets. 3 Clause 2 of the contract provided that either party was entitled to terminate the agreement upon the giving of certain notice. In the event of Barilla terminating the agreement without notice, Cantarella was entitled to receive compensation to be determined according to a formula relating to the net profit on sales over a 12 month period. 4 In September 1997, Barilla terminated the contract without notice, thereby, it is acknowledged, activating the compensation provisions referred to above. 5 Article 12 of the contract provided that the agreement is to be governed by the Italian Civil Code, and continued: For any possible controversy arising from the execution and/or interpretation and/or termination of this agreement the parties elect the competency of the Court of Parma. 6 In about February 1998, Barilla commenced proceedings against Cantarella in the Court of Parma in Italy, seeking what is described in an affidavit of Stephen Howard Klotz, dated 25 February 1999, as: 9.1 a declaration that Cantarella's claim is inconsistent with a proper construction of Article 2 of the Agreement and invalid;