Victorian Consolidated Legislation

Commercial Arbitration Act 1984 - SECT 55

Effect of Scott v. Avery clauses

55. 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).

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