No. XV.
An Act to make Arbitrations more effectual.
Exce l l en t Majesty by and wi th t h e advice and consent of t h e LegislaWH E R E A S more effectual Be i t therefore enacted by t h e Queen ' s Mos t
| it is expedient to r ender references | to | Arb i t r a t ion |
t ive Counci l a n d Legislat ive Assembly of N e w South Wales in Par l ia
m e n t assembled a n d by t h e au thor i ty of t h e same as follows :—
| 1. The word R u l e in th i s Ac t | appl ied to a R u l e of Cour t shall |
| be t a k e n | to include any Order m a d e by a J u d g e | of t he | same Cour t |
| The word U m p i r e shall be | t aken to | m e a n | equal ly | a | t h i rd | Arb i t r a to r |
where t h e reference in ques t ion is to th ree Arb i t r a to r s A n d unless t h e contex t requires a different const ruct ion the word A w a r d shall also be t aken to inc lude a n U m p i r a g e and the word Arbi t ra tors to m e a n
| equal ly | a n | U m p i r e | or single Arb i t r a to r | A n d every power | by th is | A c t |
given to t h e Sup reme Cour t m a y be exercised by any J u d g e thereof subject to appeal to t he Cour t as in t h e ordinary case of an Order
| 2. | The au thor i ty of Arb i t r a to r s | appointed | in pu r suance of any |
R u l e of any Cour t hav ing competent jur isdic t ion or in pu r suance of any i n s t r u m e n t in wr i t ing whe the r a l ready or hereafter made whereby
| t h e par t ies or | any of t h e m agree | t h a t any differences | be tween | t h e m |
shall be referred to Arb i t ra t ion shall n o t unless such R u l e or i n s t r u m e n t otherwise provides be revocable by any p a r t y w i thou t leave of t h e Cour t by which such R u l e was m a d e or by t h e Supreme Cour t and t h e Arb i t r a to r s shall proceed wi th t h e reference no twi ths t and ing any such revocat ion and m a k e an award a l though the person revoking shal l n o t
| 3 . | W h e n e v e r t h e | par t ies to | any such | i n s t r u m e n t | have | agreed |
as aforesaid and any of t h e m or any person c la iming unde r t h e m shall nevertheless commence an action or suit agains t t he o ther par t ies or any of t h e m or against any person c la iming u n d e r t h e m in respect of
| a n y m a t t e r | agreed to be referred i t shall be lawful for t h e | Supreme |
| Cour t on appl icat ion by t h e defendant | upon be ing satisfied t h a t no |
| sufficient | reason exists why t h e m a t t e r ough t no t to be referred to |
Arb i t r a t ion according to such agreement a n d t h a t t he defendant is ready to concur in all acts necessary for caus ing such m a t t e r s so to be decided to m a k e a R u l e s taying all proceedings in such action or suit on such t e rms as to costs and otherwise as to such Cour t m a y seem fit Prov ided t h a t any such R u l e m a y a t any t ime be discharged or var ied
| as jus t ice | m a y | requ i re . |
| 4 . | I f | i n any case of | Arb i t r a t ion t h e document au thor iz ing | t h e |
reference provides t h a t i t shall be to a single Arb i t r a to r a n d all t h e par t ies do no t after differences have arisen concur in t he appo in tmen t of one or if where t h e par t ies or two Arb i t r a to r s m a y appoin t a n
| U m p i r e t hey do not appoint one t h e n any p a r t y may serve t he | remain |
| ing par t ies or t he Arb i t ra to rs | as t h e | case m a y | be wi th a not ice | to |
concur in appoin t ing or to appoin t as t h e case m a y be a n Arb i t r a to r or U m p i r e and if wi th in fourteen days after service of such not ice no Arb i t r a to r or U m p i r e be appoin ted it shall be lawful for a J u d g e of
| t h e Sup reme Cour t | to | appoint | a n Arb i t ra to r | or U m p i r e | as | t he | case |
| m a y be who shall have t h e l ike power to act in t h e reference | a n d |
| m a k e an award as if he had been appointed by all par t ies | A n d the |
| l ike not ice | m a y be | served | a n d t h e | l ike | appo in tmen t | by | a J u d g e be |
| m a d e where | any | appointed Arb i t r a to r | or | U m p i r e | shall die or refuse |
to ac t or become incapable of ac t ing unless t he document au thor i z ing the reference shews t h a t in such case t he vacancy was not m e a n t to be supplied.
| 5. W h e n any reference is to two Arb i t r a to r s | one appointed | by |
each pa r ty i t shall be lawful for e i ther pa r ty in case of t h e dea th refusal to act or incapaci ty of any Arb i t r a to r appointed by h i m to subs t i tu te a new Arb i t r a to r unless t h e document au thor iz ing t h e reference shews t h a t t he vacancy was not m e a n t to be supplied and if on such a reference one pa r ty fails to appoint an Arb i t r a to r e i ther originally or by way of subs t i tu t ion for fourteen days after t he other pa r ty shall have appoin ted an Arb i t r a to r and have served the p a r t y so fail ing wi th not ice to m a k e an appo in tmen t t he one Arb i t r a to r appoin ted may act alone in t h e reference and an award m a d e by h i m shall be b ind ing on bo th par t ies Provided t h a t t he Supreme Cour t
| m a y allow the failing p a r t y to m a k e | an | appo in tmen t | no twi ths t and ing |
the expira t ion of the fourteen days on such t e rms as shall seem jus t .
6. W h e n any reference is t o two Arb i t r a to r s and the document
au thor iz ing it does no t exclude an U m p i r e or provide otherwise for t h e appo in tmen t of one t he two Arb i t r a to r s m a y appoint an U m p i r e a t any t i m e wi th in t he period du r ing which t h e y have power to m a k e an award unless called upon by notice as aforesaid to m a k e t h e appo in tmen t sooner A n d where a reference is t o th ree Arb i t r a t o r s t h e award (unless the document au thor iz ing i t provides otherwise) m a y be m a d e by any two of t h e m no twi ths t and ing any dissent by t h e
| t h i r d | Arb i t r a to r . |
| 7. Arb i t r a to r s shall in every case make their award (unless t h e document u n d e r which t hey act l imits a different | t ime) | wi th in | t h r ee |
m o n t h s after t hey shall have been appointed a n d have entered on t h e reference or shall have been called upon to act by not ice in wr i t ing from any pa r ty Provided t h a t t h e par t ies m a y by consent in wr i t ing enlarge t he t e r m and where no period is s ta ted for such en la rgemen t t he period shall be deemed one m o n t h and in every case where an U m p i r e is appointed it shall be lawful for h im to en te r on t he refer ence in l ieu of t he Arb i t r a to r s if t he la t te r have allowed the i r t ime or ex tended t i m e to expire wi thou t m a k i n g an award or shall have
| delivered to h i m a notice in wr i t ing | s ta t ing t h a t | they canno t | agree . |
| 8. I t shall be lawful for t he Supreme Cour t in all cases what soever of reference to Arb i t ra t ion | from t ime to t i m e as occasion | m a y |
| requ i re to en large t h e t ime for m a k i n g any award | for any | sufficient |
| cause | A n d upon any such en la rgement be ing so made the t ime for |
| m a k i n g t h e award shall be en larged | accordingly. |
9. W h e n any award directs tha t possession of any land or tene ment shall be delivered to any pa r ty ei ther for thwi th or a t any fu ture t i m e or declares t h a t any pa r ty is en t i t led to t h e possession of any l and or t enemen t it shal l be lawful for t h e Supreme Cour t to order any pa r ty to t he reference in possession of such land or t e n e m e n t or any person in possession c la iming u n d e r h i m to deliver possession of the same to t h e pa r ty ent i t led the re to p u r s u a n t to t he award and t h e order to deliver possession shall have t he effect of a j u d g m e n t in ejectment agains t such pa r ty or person a n d execut ion m a y issue and possession be delivered by the Sheriff accordingly.
| 10. Eve ry reference | to | Arb i t ra t ion | by consent in wr i t i ng m a y |
| be m a d e a R u l e of t h e | Supreme Cour t on | t he applicat ion of a n y |
| p a r t y | unless | t he | agreement | contains words p u r p o r t i n g | t h a t | t he | par t ies |
| in t end | t h a t | t h e | submission | should | not | be so m a d e | Provided t h a t i t |
| shal l no t be necessary in any case to m a k e t h e Order of a J u d g e | a |
| R u l e | of Cour t | b u t t h e l ike proceedings may be t a k e n upon any such |
Order as m i g h t be t aken on a R u l e of Cour t of t h e same tenor .
| 1 1 . | I n all cases of reference to Arb i t r a t ion unde r any | au thor i ty |
whatsoever it shall be lawful for t he Supreme Cour t to m a k e an Order or issue a Commission for t h e examina t ion of any p a r t y to such reference or any witness whose evidence by reason of absence or in ten t ion to depar t from the Colony or illness age dis tance of residence or o the r cause would otherwise be liable to be lost and to give all such direct ions as to t h e t i m e place a n d m a n n e r of examina t ion and o the r m a t t e r s connected therewi th as such Cour t shall t h i n k fit A n d every such Order or Commission may be m a d e or issued in l ike m a n n e r as Orders are m a d e or Commissions issued for t h e examina t ion of witnesses in any cause in t h e said Cour t in i ts Common Law
| jur i sd ic t ion or as near there to as m a y | be. |
12. I t shall also be lawful for t h e Supreme Cour t in any case of
| reference | to Arb i t r a t ion | to m a k e | an | Order | ex parte | d i rec t ing | any |
p a r t y or witness to a t t end before t h e Arb i t r a to r s or before any person author ized to t ake his evidence a t any reasonable t ime a n d place and t h e n and t he r e to be examined and produce documents t ouch ing t h e
| m a t t e r s | of t h e reference | A n d t h e | said | Cour t m a y | give | all | such |
| direct ions as to all ma t t e r s connected the rewi th as such Cour t | shall |
| t h i n k fit | A n d every such Order m a y be enforced and disobedience |
the re to pun i shed b y t h e Cour t in l ike m a n n e r as in t h e case of an Order m a d e in a cause depending the re in and any p a r t y or witness disobeying wi thou t lawful excuse shall also be liable to damages in an act ion a t t h e suit of t he p a r t y requ i r ing his a t t endance in l ike m a n n e r as persons subpoenaed as witnesses in a cause pend ing in t h e said Cour t and disobeying the i r subpoenas are liable Provided t h a t every person
| whose a t t endance is so requi red | shall be ent i t led to t he l ike conduct |
money a n d p a y m e n t for expenses as upon a t r ia l in t he said Cour t .
| 1 3 . | I t shall be lawful | for t h e Arb i t r a to r s in any reference and for |
every person author ized to t ake t he examinat ion of par t ies or witnesses u n d e r a n y such Order or Commission to t a k e t h e evidence of t he par t ies a n d witnesses upon oa th or on affirmation in cases where affirmation is al lowed by law to be adminis te red in an ac t ion A n d if upon such oa th or affirmation any person shall wilfully give any false evidence he shal l be deemed gui l ty of per jury.
14. Provided a lways t h a t no person shall be compelled unde r any such Order or by any Arb i t r a to r s to answer a n y quest ion or p roduce a n y document t h a t he would no t be compelled to answer or p roduce a t a t r i a l or t o a t t end a n d be examined on more t h a n two
| 15 . Al l evidence t aken u n d e r any such Order or Commission |
| shal l be received by t h e Arb i t r a to r s | saving all j u s t | except ions in | l ike |
m a n n e r as evidence t a k e n u n d e r any Order or Commission m a d e or issued by the said Cour t in a cause pend ing there in is received a t t he t r ia l of such cause.
| 16. | I n | every case of reference to Arb i t r a t ion | howsoever |
au thor ized in which an appl ica t ion is m a d e to t h e Supreme Cour t to set aside t he award the Cour t shall have power a t any t ime to remi t such award a n d t h e m a t t e r s referred or any of t h e m to t h e recon siderat ion and rede te rmina t ion of t h e Arb i t r a to r s upon such t e rms as to costs and otherwise as to t h e said Cour t m a y seem proper A n d t h e Arb i t r a to r s shall t he r eupon have power wi th in t h e t ime
| l imi ted by t h e Cour t if any and if | none be l imi ted | t h e n wi th in th ree |
m o n t h s n e x t following to reopen t h e ma t t e r s so remi t ted a n d to m a k e a n e w award or supplement or otherwise amend t h e award previously
| m a d e | as t hey | shal l t h i n k | r igh t . |
17. The A c t t h i r d Victor ia n u m b e r four and sections two to e ight inclusive of t h e Common Law Procedure Act of 1857 are hereby repealed.