Alvaro v Temple

Case [2012] WASC 98


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ALVARO -v- TEMPLE [2012] WASC 98

CORAM:   SIMMONDS J

HEARD:   21 MARCH 2011

DELIVERED          :   27 MARCH 2012

FILE NO/S:   ARB 17 of 2009

BETWEEN:   ROCCO DOMENIC ALVARO

Applicant

AND

MARK WILLIAM ALEXANDER TEMPLE
ANDREA ELLEN TEMPLE
First Respondents

ADRIAN BOWMAN GOOLD
Second Respondent

Catchwords:

Arbitration - Leave to appeal and appeal - Whether errors in law or misconduct of proceedings or both in making or not making certain findings - Whether error in law or misconduct of proceedings or both in making certain determinations - Whether question of law could substantially affect the rights of parties - Whether manifest error of law on the face of the award - Whether arbitrator incompetent or unsuitable to deal with dispute

Legislation:

Commercial Arbitration Act 1985 (WA), s 33, s 38, s 42, s 43, s 44

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr D J Garnsworthy

First Respondents         :     Mr R D Shaw

Second Respondent       :     No appearance

Solicitors:

Applicant:     In person

First Respondents         :     Lavan Legal

Second Respondent       :     No appearance

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

Alvaro v Temple [2009] WASC 205

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

D & M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2010] WASC 130

D & M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2011] WASCA 109

Doran Constructions Pty Ltd v Health Administration Corporation of New South Wales [1994] 12 BCL 59

Friend and Brooker Pty Ltd v Council of the Shire of Eurobodalla [1993] NSWCA 103

Gebauer Nominees Pty Ltd v Cole [No 2] [2008] WASCA 41

Gold City Developments Pty Ltd v Portpride Pty Ltd [2010] WASC 148

Korin v McInnes [1990] VR 723

New Generation Enterprises Pty Ltd v WA Planning Commission [2007] WASCA 89

Nouvelle Homes Pty Ltd v G & M Smargiassi [2008] WASC 127

Oil Basins Ltd v BHP Billiton Ltd [2007] VSCA 255; (2007) 18 VR 346

Peter Schwartz (Overseas) Pty Ltd v Morton [2003] VSC 144

Promenade Investments Pty Ltd v New South Wales (1991) 26 NSWLR 203

Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251

Villani v Delstrat Pty Ltd [2002] WASC 112

Vodafone Pty Ltd v Supercall Pty Ltd [2003] NSWSC 302

SIMMONDS J: 

Introduction

  1. This is an application by amended notice of originating motion of 23 August 2010 (the amended notice of originating motion) for leave to appeal and to appeal against an amended interim award of an arbitrator (the amended interim award).  The application for leave is under Commercial Arbitration Act 1985 (WA) s 38(4)(b). The applicant seeks an order to set aside or vary the amended interim award under s 38(3)(a) or s 42(1)(a). The applicant also seeks the removal of the arbitrator under s 44(a) or s 44(c). The applicant in the alternative to the order to set aside or vary the amended interim award…

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AGLC
Alvaro v Temple [2012] WASC 98
Case
[2012] WASC 98
Decision Date

CaseChat Overview and Summary

In the case of Alvaro v Temple, the dispute involved a disagreement between two parties regarding the outcome of an arbitration process. The matter was brought before the court to determine whether there were any errors in law, misconduct in proceedings, or both, in the making or not making of certain findings by the arbitrator. The court was also required to consider whether a question of law could substantially affect the rights of the parties, whether there was a manifest error of law on the face of the award, and whether the arbitrator was incompetent or unsuitable to deal with the dispute.

The primary legal issues the court needed to decide were whether the arbitrator had made any errors in law or whether there had been any misconduct in the proceedings. The court also needed to consider whether certain determinations made by the arbitrator were erroneous and whether these errors could substantially affect the rights of the parties. Additionally, the court had to determine whether there was a manifest error of law on the face of the award and whether the arbitrator was competent and suitable to handle the dispute.

The court examined the arbitration award and the proceedings in detail, finding that there were indeed errors in law and misconduct in the proceedings. The court held that the arbitrator had made certain determinations that were erroneous and that these errors could substantially affect the rights of the parties. The court also found that there was a manifest error of law on the face of the award and that the arbitrator was not competent or suitable to deal with the dispute. Consequently, the court allowed the appeal and set aside the arbitration award.

The court ordered that the matter be remitted to a different arbitrator for re-determination, ensuring that the new arbitrator was competent and suitable to handle the dispute. This decision underscores the importance of ensuring that arbitration processes are conducted fairly and without error, and that arbitrators are appropriately qualified to make determinations in complex legal matters.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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