Arbitration Act 1891 (SA)

ANNO QUINQUAGESIMO QUARTO ET QUINQUA-

GESIMO QUINTO

A.D. 1891.

No. 510.

An Act for amending and consolidating the Law relating

to Arbitration.

[Assented to, October rgth, 1891.1

E it Enacted by the Governor of the Province of South Aus- Council and House of Assembly of the said province, in this present	B tralia, by and with the advice and consent of the Legislative
Parliament assem bled, as follows:

References by Consent out of Court.

1, A submission, unless a contrary intention is expressed therein, Submission to be mevocable and to

shall be irrevocable, except by icavc of the Court or a Judge there- h ave effect of an

of, and shall have the same effect in a,ll respects as if it had been order of Court.

made an order of Court.

2, A submission, unless a contrary intention is expressed therein, Provisions implied in

shall be deemed to include the provisions set forth in the First 'Ubm"Ons.

Schedule to this Act, so far as they are applicable to the reference

under the submission,

3. If any party to a submission, or any person claiming through Power to stay p m ceedings where there

or under him, commences any legal procccdings in any Court against i,,

,,bmisaiOnm

any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time, before taking any step in the proceedings, apply to that Court to stay the proceedings; and that Cowt, or a Judge or Special Magistrate thereof, if satis- fied that there is no eufficient reason why the matter should not be

A-610 referred

54" & 55" VICTORIE, No. 510.

Arbitration A c t. 1 8 9 1.

referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceed-

, ings.

Power for the Court	4.	In any of the following cases-
in certain cases to
appoint an arbitrator,

umpire, or third (a) Where a submission provides that the reference shall be to a

arbitrator.,

single arbitrator, and all the parties do not, after differences

have arisen, concur in the appointment of an arbitrator:

( b ) If an appointed arbitrator refuses to act, or is incapable of acting, or dies, and the submission does not show that 'it was intended that the vacancy should not be supplied, and the parties do not supply the vacancy:

(c) Where the parties or two arbitrators are at liberty to appoint an umpire, or third arbitrator, and do not appoint him:

Id) Where an appointed umpire or third arbitrator refuses to act,

or is incapable of acting, or dies, and the submission doee not show that it was intended that the vacancy should not be supplied, and the parties or arbitrators do not supply the vacancy:

any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator.

If the appointment is not made within seven days after the service

of the notice, the Court or a Judge thereof may, on application by

the party who gave the notice, appoint an arbitrator, umpire, or third arbitrator, who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties.

Power for partie6 in

certain came to supply 5, Where a submission provides that the reference shall be to

vaaanc y.

two arbitrators, one to be appointed by each party, then, unless the

submission expresses a contrary intention-

(a) If either of the appointed arbitrators refuses to act, or is

incapable of acting, or dies, the party who appointed him

may appoint a new arbitrator in his place:

( b ) If, on such a reference, one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and hia award shall be binding on both parties, as if he had been appointed by

Cohaent,

Provided

54' & 55" VICTORIA, No. 510.

Arbitration A c t. 1 8 9 1.

Provided the Court or a Judge thereof may set aside any appoint- ment made in pursuance of this section.

6, The arbitrators or umpire shall, unless the submission expresses Power8 of arbitrator.

a contrary intention, have power-

(a) To administer oaths to or take the affirmations of the parties

and witnesses appearing; and

( b ) To state their award as to the whole or part thereof in the

form of a special case for the opinion of the Court; and

( c ) To correct in an award any clerical mistake or error arising

from any accidental slip or omission.

7, The time for making an award may from time to time be Power to enlarge time

enlarged by order of the Court or a. Judge thereof, whether the fOrmakhgaward.

time for making the award has expired or not.

8. (1) In all cases of reference to arbitration the Court or a Power toremit award.

Judge thereof may, from time to time, remit the matters referred, or any of them, to the reconsidemtion of the arbitrators or umpire.

' (2) Where an award is remitted, thc arbitrators or umpire shall,

"unless the order otherwise directs, tnake their or his award within

three months after the date of the order.

Q. (1) Where an arbitrator or umpire has misconducted himself, Power t~ remove aside arbitrator award. and aet

the Court may remove him.

(2) Where an arbitrator or umpire has misconducted himself, or

an arbitration or award has been improperly procured, the Court

may set the award aside.

10. An award on a submission may, by leave of the Court or a, Enforcing award.

Judge thereof, be enforced in the same manner as a judgment or order to the same effect.

References under Order o f Court.

11, (1) Subject to rules of Court and to any right to have Referenceforreport.

particular cases tried by a jury, the Court or a Judge thereof may refer any question arising in any action, cause, or matter (other than a criminal proceeding) for inquiry or report to any special referee,

(2) The report of a special referee upon such reference may be

adopted wholly or partially by the Court or a Jndge thereof, and if so adopted may be enforced as u judgment or order to the same effect.

12, In any action, cause, or matter (other than a criminal pro- Power to refer in

ceeding ) - certain W a r

(a) If all the parties interested, who are not under disability

consent: or

( b ) If

Arbitration Act.-1891.

( h ) If the action, cause, or matter requires any prolonged examina- tion of documents, or any scientific or local investigatioh, which cannot in the opinion of the Court or a Judge con- veniently be made before a jury or conducted by the Court through its other ordinary officers: or

(c) If the question in dispute consists wholly or in part of matters

of account:

the Court or a Judge thereof may at any time order the whole action, cause, or matter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an officer of the Court.

Powers of referees

and arbitratore. 13. (1) In all cascs of reference to a special referee or arbitrator

under an order of the Court or ca Judge in any action, cause,

,	or matter, the special referee or arbitratorushall be heemed to be an officer of the Court, and shall have such authority, and shall conduct the reference in such manner, as may be prescribed by rules of Court, and subject thereto as the Court or a Judge thereof may direct.
(2) The report or award of any special referee, arbitrator, or officer shall, unless set aside by the Court or a Judge thereof, be equivalent to the verdict of a jury.

Remuneration. (3) The remuneration to be paid to any special refcrec or srbi- trator, to whom any matter is rcferrpd under order of the Court or a '

Judge, shall bc determined by the Conrt or a Judge thereof.

Genera 7.

Proceeding0 to be

continued in mme 14, After any application or olhcr proceeding shall haw been

court.	madc or taken in any Court, all future proceedings in respect to
the same arbitration shall be talren and made in the same Court.
costa not recover-	15, No party taking proceedings in the Supreme Court which might have been taken before a Local Court shall recover the cost

. able.

I

of such proceedings.

Proceedings may be

removed from Local 16. Thc Supreme Court and a Judge thereof shall have the same

-

colut to Bupreme	power to remove any proceedings from n, Local Court into the
court.	Supreme Court, and to remit any matter in any proceedings for trial in a Local Court, as if such proceedirrgs were an action for the subject-matter of the arbitration.

Appeals frornorder of 17,

'Every order and decision of a Local Court or Special Magistrate (whether in an action or in the rnatter of an arbitration upon tt submission) upon an :kpplication--

~ o c a l court.

(a) To appoint an arbitrator or umpire:

( b ) To set aside the appointment of any arbitrator to act as sole

arbitrator:

(6) To

Arbitration Act.-1891.

(c) To remove an arbitrator or umpire:

(d) To set aside an award: or

( e ) To remit matters to the reconsideration of the arbitrators or

umpire:

shall be subject to the like appeal as a judgment in an action in

respect of the subject-matter of the arbitration.

18. The Court or a Judge shall, as to references under order of court to have powers

a Court or Judge, have all the powers which are by this Act con- ,,,,,,,

aa in references by

ferred on the Court or Judge respectively as to references by consent

out of Court.

19. (1) Any party to a reference or arbitration, whether under a Witneslles map. be

submission or an order of a Court or Judge, may sue out a writ of BummOnea.

subpoena ad testilfica~zdum or a writ of sub p n a duc~s t~cum, or a

summons to witnesses (according to the Court having jurisdiction),

but no person shall be cornpclled under any such writ to produce

any document which he could not be compelled to produce oil the

trial of an action,

(2) The Court or a Judge thereof may order that a writ of Power to orderhahear 'O

habeas corpus ud testifcandum shall issue, or may (according to the Court having jurisdiction) make an order, under section 249 of the " Local Courts Act, 1886," t u bring up a prisoner for examination

before a special referee, or before any arbitrstor or umpire.

20, Any referee, arbitrator, or umpire may, at any stage of thc proceedings under a reference, and shall, if so directed by the Court or a Judge, state, in the form of a special case for the opinion of the Court, any question of law arising in the course of the reference, except as hereinbefore provided.

21, Any order made under this Act may be made on such terms Costs*

as to costs, or otherwise, as the authority making the order thinks

just,

22. Any person who wilfully and corruptly gives Mse evidence Penalty for p e i u v.

before any referee, arbitrator, or umpire shall be guilty of perjury, as if the evidence had been given in open Court, and may be dealt with, prosecuted, and punished accordingly.

23. This Act shall apply to every arbitration under any Act' Application o f ~ o t to

passed before or after the commencement of this Act as if the ,,tutovpwer8-	references under
arbitration were pursuant to a submission, except in so far as this Act is inconsistent with the Act regulating the arbitration or with
any rules or procedure authorised or recognised by that Act.

commencement of this Act, but shall apply to any arbitration arbitratione. 24, This Act shall not affect any arbitration pending at the Savh~fDrpendiw

commenced

54" & $5" VICTORIE, No. 510.

Arbitration Act.-- 1891.

commenced after the commencement of this Act under any agree-

ment or order made before the commencement of this Act.

25. (1) Upon the passing of this Act the Acts of the Imperial Parliament of Great Britain described in the first part of the Second Schedule to this Act shall, to the extent in the said schedule mentioned, ccase to be in force in the Province of South Australia.

(2) The Acts of the Parliament of South Australia described in the second part of the Second Schedule to this Act are hereby repealed to the extent therein mentioned.

(3) Nothing contained in this section shall affect anything done or suffered, or any right acquired or duty or liability imposed or incurred, before the commencement of this Act, or the institution or prosecution to its termination of any legal proceeding or- other remedy for ascertaining or enforcing ally such liability.

(4) Any Act or instrument referring to any Act described in the Second Schedule to this Act shall be construed as referring to this Act.

26. Rules of Court may be made for carrying this Act into effect.

~ u l e s map be -ae.

Deflnitiom.	27, In this Act, unless the contrary intention appears-
uXubmission" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is

named therein or not.

" Court "-

(a) In the application of this Act to any action and proceeding

in any Court, means such last-mentioned Court;

( b ) In the application of this Act to every arbitration pursuant

to a submission where i t shall appear by the submission	or be proved that the matters in dispute are within the
jurisdiction of a Local Court, means and includes- (1) The Supreme Court of South Australia; or

(3) The Local Court having jurisdiction to the amount or value of property in dispute nearest to the place where the arbitration is being con- ducted; or

(3) The Local Court which would have had jurisdic- tion in an action in respect of the subject- matter of the arbitration if such action were brought by the party taking proceedings in

the matter of the reference:

(c) In the application of this Act to every other case, means the

Supreme Court of South Australia.

Judge "

54" & 55" VICTORIE, No. 510.

Arbitration Act.-1891.

"Judge " means and includes a Judge of the Supreme Court of

South Australia, and the Special Magistrate of a Local Court.

Rules of Court" means and includes rules of the Supreme Court made by the proper authority under the Supreme Court Act, 1878," and rules made by the proper authority under section 28 of the G Local Courts Act, 1886."

28. This Act may be cited as the Arbitration Act, 1891." short title,

I n the name and on behalf of Her Majesty, I hereby assent to

this Bill.

KINTORE, Governor.

54' & 55" VICTORIW, No. 510.

S C H E D U L E S.

THE FIRST SCHEDULE.

Provisions to be Implied i n Submissions.

First Sabedule. a. If no other mode of ,reference is provided, the reference shall be to a single arbitrator,

b. If the reference is to two arbitrators, the two arbitrators may appoint an umpire

at any time within the period during which they have power to make an award.

c. The arbitrators shall make their award in writing within three months after entering on the reference, or after having been called on to act by notice in writing from any party to the submission, or on or before any later day to which the arbitra- tors, by any writing signed by them, may from time to time enlarge the time for making the award.

d. If the arbitrators have allowed their time or extended time to expire without making an award, or have delivered to any party to the submission, or to the umpire

a notice in writing, stating that they cannot agree, the umpire may forthwith enter

on the reference in lieu of the arbitrators.

e. The umpire shall make his award within one month after the original or

extended time appointed for making the award of the arbitrators has expired, or on

or before any later day to which the umpire by any writing signed by him may from

time to time enlarge the time for making his award.

f. The parties to the reference, and all persons claiming through them respectively,

shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the rnatter~ in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire all books, deeds, papers, accounts, writings, and documents within their possession or power respectively which may be required or called for, and do all other things which during the proceedings on the reference the arbitrators or umpire may require.

g. The witnesses on the reference shall, if the arbitrators or umpire think fit, be

examined on oath or affirmation.

I

A. The award to be made by the arbitrators or umpire shall be final and binding

on the parties and the persons claiming under them respectively.

i. The costs of the reference and award shall be in the discretion of the arbitrators

or umpire, who may direct to and by whom and in what manner those costs or any

part thereof shall be paid, and may tax or settle the amount of costs to be so paid or

any part thereof, and may award costs to be paid as between solicitor and client.

..

THE

VICTORIE, No. -510.

THE SECOND SCHEDULE.

Acts Repealed.

- - - - - - -. Seaond Schedule.

fession and Chapter of Imperial

Act, and Year m d Number	Title or Short Title.	Extent of Repeal.
of South Australian Act.

FIRST PART.

9 Will. 111. c. 15.. .. .. . An Act for determining differences The whole Act.

by arbitration.

3 & 4 Will. IV. c. 42... ,, An Act for the further amendment Sections thirty-nine to forty-one,

of the law and the better advance- both inclusive.

ment of Justice.

SECOND PART.

The Supreme Coin% Procedure Act, Sections two to eleven, both in-

1866. clusive.

The Equity Act, 1866. Sections one hundred and nineteen to ono hundred and twenty-two, both inclusive.

1878, No. 116 ... . .. .... Supreme Court Act, 1878. Sections twenty-six, twenty-seven,

and twent eight.

1886, No. 386 .... .,..,. Local Courts Act, 1886. Sectiona one%;ndred and twenty-

one and one hundred and	twenty-
two.

Adelaide: B y authority, C. E. Brras~ow, Government Printer, North-terrace.