Arbitration Act 1892 (NSW)

No. XXXII.

An Act to amend and consolidate the law re-

1 ating* to Arbitration.	[31st March, 1892.]
Most Excellent Majesty, by and with the advice and consent of the	WHEREAS it is expedient to amend and consolidate the law relating to Arbitration : Be it therefore enacted by the Queen's
Legislative Council and legislative Assembly of New South "Wales in Parliament assembled, and by the authority of the same, as follows :—•

References by Consent out of Court.

1. A submission, unless a contrary intention is expressed therein, shall be irrevocable, except by leave of the Court or a Judge, and shall have the same effect in all respects as if it had been made an order' of Court.
2. A submission, unless a contrary intention is expressed therein,: shall be deemed to include the provisions set forth in the Eirst Schedule'' to this Act, so far as they are applicable to the reference under the submission.

i 3.

3. If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any Court against 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 after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that Court to stay the proceedings, and that Court or a Judge thereof if satisfied that there is no sufficient reason why the matter should not be 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 proceedings.

4. In any of the following cases:—

(a)	Where a submission provides that the reference shall be to a 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 :
(d)	Where an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies, and the submission docs 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 clear days after the service of the notice, the Court or a Judge 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.

5. Where a submission provides that the reference shall be to 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, cither originally or by way of substitution as aforesaid, for seven clear 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 his award shall be binding on both parties as if he had been appointed by consent:

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

6. The arbitrators or umpire acting under a submission shall, unless the submission expresses a contrary intention, have power—

(a)	to administer oaths to or take the affirmations of the parties and witnesses appearing; and
(b)	to state an award as to the whole or part thereof in the form of a special case for the opinion of the Court; and

to

(c) to correct in an award any clerical mistake or error arising from any accidental slip or omission.

7. Any party to a submission may sue out a writ of subpoena

ad testificandum, or a writ of subpoena duces tecum, but no person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action: Provided that every person wdiose attendance is so required shall be entitled to the like conduct money and payment for expenses as upon a trial in the Court.

8. The time for making an award may from time to time be enlarged by order of the Court or a Judge, whether the time for making the award has expired or not.
9. (i) In all cases of reference to arbitration the Court or a .Judge may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire.

(II) Where an award is remitted, the arbitrators or umpire shall, unless the order otherwise directs, make their award within three months after the date of the order.

10. (I) Whore an arbitrator or umpire has misconducted himself,

the Court may remove him.

(II) Where an arbitrator or umpire has misconducted

himself, or an arbitration or award lias been improperly procured, the

Court may set the award aside.

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

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

llefcrences tinder Order of Court.

12. In any cause or matter (other than a criminal proceeding

by the Crown),—

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

(6) If the cause or matter requires any prolonged examination of documents or any scientific or local investigation which cannot, in the opinion of the Court or a Judge, conveniently 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 may at any time order the whole cause or matter,

arbitrator agreed on by the parties, or before a referee appointed by	or any question or issue of fact arising therein, to be tried before an
t h e Court or a Judge for the purpose.
13. (I) In all cases of reference under an order of the Court or a Judge in any cause or matter, the referee or arbitrator shall be
deemed to be an officer of the Court, a n d shall have such authority, and shall conduct the reference in such manner, as m a y be prescribed
by Pules of Court, and subject thereto as the Court or a Judge may direct.
(II) The report or award of any referee or arbitrator on any such reference shall, unless set aside by the Court or a Judge, be equivalent to the verdict of a jury.
(III) The remuneration to be paid to any referee or arbitrator to whom any matter is referred under order of the Court or a Judge shall bo determined by the Court or a Judge.
14. The Court or a Judge shall, as to references under order of the Court or a Judge, have all the powers which are by this Act conferred on the Court or a Judge as to references by consent out of Court.

General.

General.

15. (I) The Court or a Judge may order that a writ of subpoena ad testificandum or of subpoena duces tecum shall issue to compel the attendance before a referee, or before any arbitrator or umpire, of a witness wherever he may be within the jurisdiction.

(II) The Court or a Judge may also order that a writ of

habeas corpus ad testificandum shall issue to bring up a prisoner for

examination before a referee, or before any arbitrator or umpire.
16. Any referee, arbitrator, or umpire may at any stage of the 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.
17. The Judges of the Supreme Court, or any two of them, may, from time to time, make general rules and orders for carrying the purposes of this Act into effect.

18. I n all cases of reference to arbitration under any authority whatsoever it shall be lawful for the Court, or a Judge thereof, to make an order or issue a commission for the examination of any party to such reference, or any witness whose evidence, by reason of absence or intention to depart from the Colony, or illness, age, distance of residence, or other cause, would otherwise be liable to be lost, and to give all such directions as to the time, place, and manner of examina­ tion and other matters connected therewith as such Court or Judge shall think fit. And every such order or commission may be made or issued in like manner as orders are made or commissions issued for the examination of witnesses in any cause in the said Court in its common law jurisdiction, or as near thereto as may be : Provided further that any person authorized to take the examiuation of parties or witnesses under any such order or commission shall take the evidence upon oath, or on affirmation in cases where affirmation is allowed by law to be administered in an action.

19. No person shall be compelled under any such order or by any arbitrator to answer any question he would not be compelled to answer at a trial.
20. All evidence taken under any such order or commission shall be received by the arbitrators, saving all just exceptions, in like manner as evidence taken under any order or commission made or issued by the Court or a Judge in a cause pending therein is received at the trial of such cause.

21. Any order made under this Act may be made on such terms

as to costs, or otherwise, as the authority making the order thinks just.
22. Any person who wilfully and corruptly gives false evidence
before any referee, arbitrator, or umpire shall bo 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 any arbitration to which the Government of the Colony is a party.

21. This Act shall apply to every arbitration under any Act

passed before or after the commencement of this Act as if the arbitra­ tion 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 authorized or recognized by that Act.
25. This Act shall not affect any arbitration pending at the commencement of this Act, but shall apply to any arbitration com­ menced after the commencement of this Act under any agreement or order made before the commencement of this Act.

26. (i) The enactment described in the Second Schedule to this

Act is hereby repealed, but this repeal shall not affect anything done

or

or suffered, or any right acquired or duty imposed or liability 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 any such liability.

(n) Any enactment or instrument referring to any enact­

ment repealed by this Act shall be construed as referring to this Act.

27. I n this Act, unless the contrary intention appears,—

"Submission" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not ;

" Cour t" means the Supreme Court, or a Judge thereof ;

" J u d g e " means a Judge of the Supreme Court;

" Rules of Court" means Rules made as hereinbefore provided.

28. This Act may be cited as the " Arbitration Act, 1892."

SCHEDULES.

T H E F I E S T S C H E D U L E .

PROVISIONS TO BE IMPLIED IN SUBMISSIONS.

a. I f no o ther mode of reference is provided, t he reference shall be to a single

arb i t ra tor .

b. I f t he re ference is to two a rb i t r a to r s , t he two arb i t ra tors may appoint an

umpi r e a t any t ime within t he period dur ing which they have power to make an award.

c. The a rb i t ra tors shall make the i r award in wr i t ing wi thin t h r ee mon ths af ter

en te r ing on the reference, or after having been called on to act by notice in wri t ing from a n y pa r ty to t he submission, or on or before any la ter day to which the arb i t ra tors , by any wri t ing signed by them, may from t ime to t ime enlarge t he t ime for making the award.

d. I f t he a rb i t r a to r s have allowed the i r t ime or ex tended t ime to expire wi thout

making an award, or have delivered to any pa r ty to the submission, or to the umpi re a not ice in wri t ing, s ta t ing tha t they cannot agree, t he umpi re may for thwi th en t e r on the

re ference in lieu of the a rb i t ra tors .

e. The umpi re shall make his award within one mon th after the original or ex tended t ime appointed for making the award of the a rb i t r a to r s has expired, or on or before any la ter day to which the umpi re by any wr i t ing signed by him may from t ime to t ime en la rge the t ime for making his award.

f. The par t ies to t he reference, and all persons claiming th rough them respect ively,

shall, subject to any legal objection, submi t to be examined by t h e a rb i t ra tors or umpi re , on oa th or affirmation, in re la t ion to t h e ma t t e r s in dispute , and shall, subject as afore­ said, produce before t he arbi t ra tors or umpi re , all books, deeds, papers , accounts , wri t ings, and documents wi th in the i r possession or power respectively which may be required or called for, and do all o ther th ings which dur ing the proceedings on the reference t he

a rb i t r a to r s or umpi re may require .

g. T h e witnesses on the reference shall, if t he a rb i t ra tors or umpi re th inks fit, be examined on oath or affirmation.

h. T h e award to be made by the a rb i t r a to r s or u m p i r e shall bo final and b ind ing

on the par t i es and the persons claiming under them respectively.

i. The costs of t he reference and award shall bo in the discretion of t he a rb i t ra tors or umpi re , who n a y direct to and by whom a n d in wha t manner those costs or any p a r t thereof shall be paid, and may tax or set t le t he amoun t of costs lo be so paid or any pa r t thereof, and may award costs to be paid as be tween solicitor and client.

T H E S E C O N D S C H E D U L E .

ENACTMENT.

Year and

Number of Act. Title of Act. Extent of Repeal.

S I Vic. N o . 15 ... j \ n Ac t to make Arbi t ra t ion more effectual The whole Act .

No. X X X I I I .