South Australian Consolidated Acts South Australian Consolidated Acts55—Effect of Scott v Avery clauses
(1) Where it is
provided (whether in an arbitration agreement or some other agreement, whether
oral or written) that arbitration or an award pursuant to arbitration
proceedings or the happening of some other event in or in relation to
arbitration is a condition precedent to the bringing or maintenance of legal
proceedings in respect of a matter or the establishing of a defence to legal
proceedings brought in respect of a matter, that provision, notwithstanding
that the condition contained in it has not been satisfied—
(a)
shall not operate to prevent—
(i)
legal proceedings being brought or maintained in respect
of that matter; or
(ii)
a defence being established to legal proceedings brought
in respect of that matter; and
(b)
shall, where no arbitration agreement relating to that matter is subsisting
between the parties to the provision, be construed as an agreement to refer
that matter to arbitration.
(2)
Subsection (1) does not apply to an arbitration agreement unless all the
parties to the agreement are domiciled or ordinarily resident in Australia at
the time the arbitration agreement is entered into.
(3)
Subsection (2) does not apply to an arbitration agreement that is treated
as an arbitration agreement for the purposes of this Act by virtue only of the
operation of section 3(4)(a).