ALVARO -v- AMARAL [2013] WASCA 16

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 16
Court:	THE COURT OF APPEAL (WA)	Published:	31/01/2013
Case No:	CACV:130/2012	Heard:	10 JANUARY 2013
Coram:	PULLIN JA	Delivered:	10/01/13
No of pages:	5	Judgment Part:	1 of 1
Result:	Application for stay dismissed
Category:	B
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Parties:	ROCCO DOMENIC ALVARO ROSS AMARAL CHARMAINE AMARAL DAVID SCOTT ELLIS
Catchwords:	Practice and procedure Application for stay of order refusing leave to appeal Turns on own facts
Legislation:	Civil Judgments Enforcement Act 2004 (WA), s 15(3) Commercial Arbitration Act 1985 (WA), s 38(2)
Case References:	Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALVARO -v- AMARAL [2013] WASCA 16 CORAM : PULLIN JA HEARD : 10 JANUARY 2013 DELIVERED : 10 JANUARY 2013 PUBLISHED : 31 JANUARY 2013 FILE NO/S : CACV 130 of 2012 BETWEEN : ROCCO DOMENIC ALVARO

Appellant

AND

ROSS AMARAL

CHARMAINE AMARAL

First Respondents

DAVID SCOTT ELLIS

Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : ARB 7 of 2012

(Page 2)

Catchwords:

Practice and procedure - Application for stay of order refusing leave to appeal - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15(3)

Commercial Arbitration Act 1985 (WA), s 38(2)

Result:

Application for stay dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D J Garnsworthy

First Respondents : Ms D de Blank

Second Respondent : No appearance

Solicitors:

Appellant : David Garnsworthy

First Respondents : MDS Legal

Second Respondent : No appearance

Case(s) referred to in judgment(s):

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

(Page 3)

1 PULLIN JA: The appellant made an application for a stay of an order made by Master Sanderson on 24 October 2012. The order made by Master Sanderson was to dismiss an application by the appellant for leave to appeal against an interim award by an arbitrator. The application for leave made to the Master was made pursuant to s 38(2) of the Commercial Arbitration Act 1985 (WA). After hearing oral submissions, the application was dismissed with reasons to be published later. These are the reasons.

2 A court may only grant a stay or make a suspension if there are special circumstances that justify doing so. See s 15(3) of the Civil Judgments Enforcement Act 2004 (WA) and Eastland TechnologyAustralia Pty LtdvWhisson [2003] WASCA 307; (2003) 28 WAR 308.

3 Usually, special circumstances are shown by establishing that if a stay or suspension order is not granted by this court, the appeal will be rendered nugatory or practical difficulties will be created regarding relief that may be granted on appeal. Even if that is shown, a stay or suspension order will still be refused if there are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alvaro v Amaral

Details

AGLC: Alvaro v Amaral [2013] WASCA 16
Case: [2013] WASCA 16
Decision Date

CaseChat Overview and Summary

The case of Alvaro v Amaral was heard by Pullin JA in the Court of Appeal of Western Australia. The appellant, Rocco Dominic Alvaro, sought a stay of an order by Master Sanderson that dismissed an application for leave to appeal against an interim award made by an arbitrator. The appellant argued that the arbitrator erred in finding that he had jurisdiction over the matter. The first respondents were Ross Amaral and Charmaine Amaral, and the second respondent was David Scott Ellis. The respondents argued that the appeal should not be heard because there were no reasonable prospects of success and that the balance of convenience favoured dismissing the application for a stay.

The court considered the legal issues involved in determining whether a stay or suspension of the order could be granted. The court noted that a stay could only be granted if there were special circumstances that justified it, and that these circumstances would usually involve a showing that the appeal would be rendered nugatory or practical difficulties would be created regarding relief that may be granted on appeal. The court also noted that even if these circumstances were shown, a stay or suspension order would still be refused if there were no reasonable prospects of success. Finally, the balance of convenience had to be considered. If the balance of convenience favoured the dismissal of the application for a stay or suspension order, then the court could dismiss the application.

The court found that the appellant had not shown any special circumstances that justified a stay of the order. The court noted that the arbitrator's decision on jurisdiction was not manifestly erroneous, and that even if there was an error, it was not so significant as to warrant a stay. The court also noted that the appellant's appeal against the Master's decision was unlikely to succeed, and that a stay would not prevent the arbitration from continuing. The court concluded that the application for a stay was dismissed.

The court did not make any final orders in the case, as the appeal against the Master's decision was still pending. However, the court's decision not to grant a stay meant that the arbitration proceedings could continue while the appeal was being heard.

Orders