JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ALVARO -v- TEMPLE [2009] WASC 205
CORAM: MURPHY J
HEARD: 30 APRIL & 9 JUNE 2009
DELIVERED : 29 JULY 2009
FILE NO/S: ARB 9 of 2008
BETWEEN: ROCCO DOMENIC ALVARO
Applicant
AND
MARK WILLIAM ALEXANDER TEMPLE
ANDREA ELLEN TEMPLE
First RespondentsADRIAN B GOOLD
Second Respondent
Catchwords:
Arbitration - Leave to appeal - Misconduct - Failure to give reasons - Remitter - Setting aside - Scope and application of s 43 of the Commercial Arbitration Act 1985 (WA) - Relationship between s 38, s 42 and s 43 of the Commercial Arbitration Act 1985
Legislation:
Commercial Arbitration Act 1985 (WA), s 4, s 29, s 30, s 38, s 42, s 43, s 44
Result:
Interim award set aside in part
Application for leave to appeal and appeal allowed
Remitted to arbitrator for reconsideration including provision of reasons
Category: B
Representation:
Counsel:
Applicant: Mr B G Grubb
First Respondents : Mr S D Pentony
Second Respondent : No appearance
Solicitors:
Applicant: Metaxas & Hager
First Respondents : Lavan Legal
Second Respondent : No appearance
Case(s) referred to in judgment(s):
AC Robertson Pty Ltd (in liq) v Costa Brava Investments Pty Ltd [1962] NSWR 768
Anaconda Operations Pty Ltd v Fluor Australia Pty Ltd [2003] VSC 275
Athens Cape Naviera SA v Deutsche Dampfschiffahrtsgesellschaft 'Hansa' Aktiengesellschaft (The 'Barenbels') [1985] 1 Lloyd's Rep 528
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Gaslight Co v Valuer‑General (1940) 40 SR (NSW) 126
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bovis Lend Lease Pty Ltd v WGE Pty Ltd [2002] NSWSC 939
Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662
Cooper & Oxley Construction Co Pty Ltd v Shire of Swan (Unreported, WASC, Library No 920405, 29 July 1992)
Fletamentos Maritimos SA v Effjohn International B V (No 2) [1997] 2 Lloyd's Rep 302
Forsayth NL v Australasian Gold Mines NL (1992) 7 WAR 549
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
Graham Evans & Co Pty Ltd v SPF Formwork Pty Ltd (1991) 8 BCL 147
GRD Kirfield Ltd v First Trade Consulting Pty Ltd [2004] WASC 158
Hashman v Downie (1996) 39 NSWLR 169
Imperial Leatherware Co Pty Ltd v Macri & Marcellino Pty Ltd (1991) 22 NSWLR 653
Interbulk Ltd v Aiden Shipping Co Ltd (The 'Vimeira' (No 1)) [1985] 2 Lloyd's Rep 410
K/S A/S Biakh & Biali v Hyundai Corporation [1988] 1 Lloyd's Rep 187
King v Thomas McKenna Ltd [1991] 2 QB 480
Mark Blake Builders Pty Ltd v Davis (Unreported, NSWSC, 14 November 1994)
Masawa Australasia Pty Ltd v J Corp Pty Ltd [2000] WASC 5
Minister for Industrial Affairs v Civil Tech Pty Ltd [2003] SASC 40; (2003) 84 SASR 559
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- AGLC
- Alvaro v Temple [2009] WASC 205
- Case
- [2009] WASC 205
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were the distinctions between errors of law and errors of fact, particularly in the context of an arbitrator's failure to provide reasons for a decision. The court examined whether the lack of reasons for the award constituted an error of law and if the absence of reasons affected the arbitral process in a manner that warranted judicial intervention. The court also considered whether the error of law was such that it would justify the grant of leave to appeal and the remittal of the matter to the arbitrator for reconsideration.
In addressing these issues, the court noted that the distinctions between errors of law and errors of fact depend on the intended purpose of such distinctions. The court found that an arbitrator's failure to give reasons for a decision did not necessarily constitute an error of law, but it could raise concerns about the soundness of the reasoning process. The court emphasised that the absence of reasons could undermine the arbitral process, making it difficult for the parties to understand and challenge the decision. The court held that the failure to provide reasons for the award was an error of law that warranted the setting aside of the award and the remittal of the matter to the arbitrator for reconsideration, including the provision of reasons.
The court allowed the appeal and set aside the interim award in part. It granted leave to appeal and remitted the matter to the arbitrator for reconsideration, including the provision of reasons. This decision underscores the importance of providing reasons in arbitration awards and the limited scope for judicial intervention in such proceedings.
Orders
Orders of the court
Interim award set aside in part
Application for leave to appeal and appeal allowed
Remitted to arbitrator for reconsideration including provision of reasons
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
Distinctions between errors of law and errors of fact will depend on the purpose intended to be served by the drawing of such distinctions: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 [58]. In considering the scope and content of the phrase 'error of law' in s 38 of the Act, it is important, in my view, to recall that s 38 of the Act is designed to limit the intervention of the courts in arbitration: UDR Equipment Pty Ltd v Afkos Industries Pty Ltd [2000] WASC 57; (2000) 22 WAR 221 [47] ‑ [50] (Steytler J); Masawa Australasia Pty Ltd v J Corp Pty Ltd [2000] WASC 5 (Parker J); New Generation v WAPC [6], [44]; Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251, 259. A finding of fact by an arbitrator which is perverse, or contrary to the overwhelming weight of the evidence, is not an error of law, provided there is some evidence upon which the arbitrator could so find: Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300, 304, 311 ‑ 312 (Warley v Adco Appeal Decision); Update Constructions v Rozelle (259). There is no error of law if the process of reasoning by which a fact is derived is demonstrably unsound: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 (ABT v Bond); R v District Court of Sydney; Ex parte White (1966) 116 CLR 644, 654. However, a want of logic in drawing an inference may sound a warning note and put one on inquiry as to whether there is indeed any basis for the inference: Roads Corporation v Dacakis [1995] 2 VR 508, 520. The question of whether there is any evidence of a particular fact is a question of law: ABT v Bond (355). The making of a finding of fact in the absence of any evidence at all is an error of law: ABT v Bond (355 ‑ 356); Ukrainian Association of Western Australia in Perth (Inc) v Squire Constructions Pty Ltd [2004] WASC 4 [11]. Where a finding of fact is made by drawing an inference based on other agreed or found facts, it is a question of law whether the agreed or found facts are capable of supporting the finding. A fact is capable of supporting a finding by inference if the inference is reasonably open in the sense that there is some basis upon which the inference may be drawn. See ABT v Bond (356); Australian Gaslight Co v Valuer‑General (1940) 40 SR (NSW) 126, 138; New Generation v WAPC [3]. A failure to find facts necessary in law to support the conclusion reached by the arbitrator has also been held to be an error of law: Friend and Brooker Pty Ltd v Council of the Shire of Eurobodalla [1993] NSWCA 103; GRD Kirfield Ltd v First Trade Consulting Pty Ltd [2004] WASC 158 [34]; Oil Basins Ltd v BHP Billiton Ltd [2007] VSCA 255; (2007) 18 VR 346 [65]. An error of law of that kind would ordinarily result in the matter being remitted to the arbitrator for further consideration: Friend and Brooker v Shire of Eurobodalla; Sydney Water Corporation Ltd v Aqua Clear Technology Pty Ltd [1996] NSWSC 640.