ASADA v 34 Players and One Support Person

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
ARBITRATION LIST

S CI 2014 06387

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AUSTRALIAN FOOTBALL LEAGUE (ACN 004 155 211)	Applicants
v
34 PLAYERS AND ONE SUPPORT PERSON	Respondents

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 10, 11 & 12 December 2014
DATE OF JUDGMENT:	19 December 2014
CASE MAY BE CITED AS:	ASADA v 34 PLAYERS AND ONE SUPPORT PERSON
MEDIUM NEUTRAL CITATION:	[2014] VSC 635

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ARBITRATION – Application for subpoena requiring attendance for examination before AFL Anti-Doping Tribunal – Commercial Arbitration Act, s 27A – Supreme Court (Chapter II Arbitration Amendment) Rules 2014, r 9.14 - Supreme Court (General Civil Procedure) Rules 2005, O 42 - Characteristics of an arbitration - Re Carus-Wilson and Greene (1886) 18 QBD 7 – Age Old Builders Pty Ltd v Swintons Pty Ltd [2003] VSC 307 – Swintons Pty Ltd v Age Old Builders Pty Ltd [2005] VSCA 217 – Walkinshaw v Diniz [2000] 2 All ER (Comm) 237 – England and Wales Cricket Board v Kaneria [2013] EWHC 1074 (Comm) - Whether AFL Anti-Doping Tribunal is an arbitral tribunal – AFL Player Rules, rr 4.1, 4.9, 42.1, 42.3, 42.4, 42.7 – Whether AFL Anti-Doping Tribunal proceedings comprise domestic arbitration – Whether AFL Anti-Doping Tribunal proceedings comprise commercial arbitration – Nobes v Australian Cricket Board (Unreported, Supreme Court of Victoria, Marks J, 16 December 1991) – R v Judges of the Federal Court of Australia; Ex parte The Western Australian Football League (Incorporated) (1979) 143 CLR 190 – Adamson v New South Wales Rugby League Limited (1991) 31 FCR 242 – Hearn v O’Rourke (2003) 129 FCR 64.

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APPEARANCES:	Counsel	Solicitors
For the CEO of ASADA	Mr D. Star with Mr T. Goodwin	Australian Government Solicitor
For the AFL	Ms R. Enbom	Counsel for the AFL
For 32 of the 34 Players	Mr D. Grace QC Mr B. Ihle	Tony Hargraves
For 2 of the 34 Players	Mr S. Norton	Story & Associates
For Mr N. Alavi-Moghadam	Mr A. Rodbard-Bean with Mr B. Mason	Marsh & Maher

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Jurisdiction of the Court................................................................................................................... 2

Characteristics of an arbitration at common law........................................................................ 17

Application of principles with respect to the Tribunal............................................................. 22

It is a characteristic of arbitration that the parties should have a proper opportunity of presenting their case..................................................................................................... 26
It is a fundamental requirement of an arbitration that the arbitrators do not receive unilateral communications from the parties and disclose all communications with one party to the other party................................................................................................................................. 28
The hallmarks of an arbitral process are the provision of proper and proportionate procedures for the provision and for the receipt of evidence..................................................... 29
The agreement pursuant to which the process is, or is to be, carried on (“the procedural agreement”) must contemplate that the tribunal which carries on the process will make a decision which is binding on the parties to the procedural agreement................ 30
The procedural agreement must contemplate that the process will be carried on between those persons whose substantive rights are determined by the
tribunal............................................................................................................................ 36
The jurisdiction of the tribunal to carry on the process and to decide the rights of the parties must derive either from the consent of the parties, or from an order of the court or from a statute, the terms of which make it clear that the process is to be an arbitration 36
The tribunal must be chosen, either by the parties, or by a method to which they have consented........................................................................................................................ 37
The procedural agreement must contemplate that the tribunal will determine the rights of the parties in an impartial manner, with the tribunal owing an equal obligation of fairness towards both sides........................................................................................................ 38
The agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law............................................................................... 39
The procedural agreement must contemplate a process whereby the tribunal will make a decision upon a dispute which is already formulated at the time when the tribunal is appointed........................................................................................................................ 41

A domestic arbitration?................................................................................................................... 41

A commercial arbitration?............................................................................................................... 43

Other matters..................................................................................................................................... 52

Are the applicants a party to the arbitration agreement?..................................................... 52
Has permission been granted by the Tribunal?..................................................................... 53
Is the scope of the subpoenas sought appropriate?.............................................................. 53

Basis upon which subpoenas are sought.................................................................................... 54

NAD scheme – a statutory arbitration?......................................................................................... 56

Conclusions and orders.................................................................................................................. 61

HIS HONOUR:

Introduction

By an Originating Application which was filed on 2 December 2014, the first Applicant (“ASADA”) seeks orders for the issue of subpoenas requiring Mr Shane Charter (“Charter”) and Mr Nima Alavi-Moghadam (“Alavi”) to attend for examination before the AFL Anti-Doping Tribunal (“the Tribunal”) during a forthcoming hearing before the Tribunal which is now listed for five days in December 2014, being 15, 18, 19, 22 and 23 December 2014. Following a break from the Christmas period, the hearing before the Tribunal will resume on 12 January 2015. The issue of subpoenas is also sought requiring four corporate entities to produce documents to the Tribunal.[1] Submissions in support of the application have been made by the applicants and in opposition by Alavi and Charter.[2] Both ASADA and the AFL are parties to the application so any issue with respect to the standing of ASADA to bring such an application – even if it were to be resolved against such standing – does not affect the basis of the application in terms of the standing of a party to bring it.[3] There is no suggestion that the other applicant, the AFL, does not have standing. The AFL adopts ASADA’s submissions in support of the application.
[1]These subpoenas are sought requiring production of various documents by:
(i)Medical Rejuvenation Clinic Pty Ltd (ACN 152 761 923);
(ii)Medical Rejuvenation Clinic Australia Pty Ltd (ACN 160 478 366);
(iii)Medical Rejuvenation Clinic Bondi Pty Ltd (ACN 162 941 273); and
(iv)Institute of Cellular Bioenergetics Pty Ltd (ACN 129 848 760).
[2]ASADA made written submissions (3 December, 5 December 2014 and a corrigenda email of 7 December 2014), and Alavi made written submissions (received 9 December 2014) (“Alavi submissions”) and supplementary submissions (10 December 2014) (“Alavi supplementary submissions”) and Charter adopted the Alavi submissions generally (email dated 7 December 2014).
[3]See Alavi submissions, [78]-[84].

The issue of the subpoenas is sought by the Applicants pursuant to s 27A of the Commercial Arbitration Act 2011 (“the Act”) and pursuant to r 9.14 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, as amended by the Supreme Court (Chapter II Arbitration Amendment) Rules 2014 (“the Arbitration Rules”). Reliance was also placed, to the extent necessary, on O 42 of the Supreme Court (General Civil Procedure) Rules 2005 (“the General Rules”). In any event, no proper basis for reliance upon this rule was indicated by the Applicants having regard to r 42.02, which makes clear that the power to issue a subpoena under this order is for the purpose of ordering the addressee to give evidence or to produce documents in any proceeding in the Court. The provisions of O 42 do not empower the issue of subpoenas ordering a person to give evidence or to produce documents in some other forum, such as an arbitral tribunal. This is the very reason for provisions such as s 27A of the Act.

In summary, the Tribunal hearing is to determine whether 34 current and former players (“the Players”) and one former support person (“the Support Person”) at the Essendon Football Club violated the AFL Anti-Doping Code (“the AFL Code”) and, if so, what sanctions should be imposed. The Tribunal is conducted in accordance with the Code and the AFL Player Rules (“the AFL Rules”).

Jurisdiction of the Court

The Applicants rely, for the purposes of their Application, on s 27A of the Act, which makes provision for the issue of a subpoena for the purpose of arbitration proceedings, in the following terms:

27A Parties may obtain subpoenas
(1) The Court may, on the application of any party, and subject to and in accordance with rules of court, issue a subpoena requiring a person—
(a)to attend for examination before the arbitral tribunal; or
(b)to produce to the arbitral tribunal the documents specified in the subpoena; or
(c)to do both of those things.

(2) A party may only make an application to the Court under subsection (1) with the permission of the arbitral tribunal.
(3) A person must not be compelled under any subpoena issued in accordance with subsection (1) to answer any question or produce any document that the person could not be compelled to answer or produce in a proceeding before the Court.
Note
There is no equivalent to this section in the Model Law.

For present purposes, s 2 of the Act defines “the Court” as the Supreme Court. Also, for present purposes, it is sufficient to note that the word “party” is defined in s 2 of the Act as meaning “a party to an arbitration agreement”. There are further, inclusive, provisions to this definition which are not relevant in the present circumstances.

The scope of application of the Act is the subject of s 1, in the following terms:

1. Scope of application (cf Model Law Art 1)
(1) This Act applies to domestic commercial arbitrations.
Note
The International Arbitration Act 1974 of the Commonwealth covers international commercial arbitrations and the enforcement of foreign arbitral awards.
…
(3) An arbitration is domestic if—
(a)the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in Australia; and
(b)the parties have (whether in the arbitration agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled by arbitration; and
(c)it is not an arbitration to which the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) applies.

(4) For the purposes of subsection (3)—
(a)if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; and
(b)if a party does not have a place of business, reference is to be made to the party’s habitual residence.

(5) This Act does not affect any other Act by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Act.
(6) Subject to subsection (5), this Act applies to arbitrations provided for in any other Act as if—
(a)the other Act were an arbitration agreement; and
(b)the arbitration were pursuant to an arbitration agreement; and
(c)the parties to the dispute which, by virtue of the other Act, is referred to arbitration were the parties to the arbitration agreement—

except in so far as the other Act otherwise indicates or requires.
Model Law note
The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail or road.
Note
This section differs from the Model Law to the extent necessary to apply Art 1 as incorporated in this Act to domestic commercial arbitrations. Section 1AD contains provisions that also relate to the application of this Act.

The term “arbitration” is defined in s 2 of the Act as meaning “… any domestic commercial arbitration whether or not administered by a permanent arbitral institution”. The expression “arbitration agreement” is defined in s 2 of the Act by reference to the provisions of s 7 of the Act, which are as follows:
7. Definition and form of arbitration agreement (cf Model Law Art 7)
(1) An arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
(3) The arbitration agreement must be in writing.
(4) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.
(5) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained in it is accessible so as to be useable for subsequent reference.
(6) In this section—
data message means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy;
electronic communication means any communication that the parties make by means of data messages.

(7) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.
(8) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.
Note
This section is substantially the same as Option 1 set out in Art 7 of the Model Law.

There is some controversy as to whether the proceedings before the Tribunal are – if characterised as proceedings before an arbitral tribunal, in other words arbitration proceedings - “domestic” for the purposes of sub-s 1(3) of the Act. For the reasons which follow,[4] I am of the view that the proceedings would, if properly characterised as arbitration proceedings, most probably be “domestic” for the purposes of the Act; though in submissions on behalf of Alavi, some possible difficulties in this respect are highlighted in relation to the international recruitment of players. Nevertheless, and critically, the question whether the AFL Code and the AFL Rules provide an “arbitration agreement” for the purposes of the Act is an intrinsically related question because unless they do provide an arbitration agreement, there will be no basis for any arbitration. This is unless, of course, the arbitration is one which is not consensual but which is mandated by the provisions of another act which meets the requirements of sub-s 1(6) of the Act for the purpose of applying the provisions of that other act. Speaking generally, it would seem that provisions such as sub-s 1(6) of the Act would, if its provisions are to be enlivened for the purposes of a statutory arbitration, require in the arbitration mandating act, to use a descriptive but not particularly elegant expression, something along the lines of provisions which appeared in the Retail Tenancies Act 1986. This legislation established a compulsory arbitration procedure conducted under the provisions of the then domestic arbitration legislation, the Commercial Arbitration Act 1984. In this respect, the provisions of the Retail Tenancies Act provided:

References to arbitrators.
21. (1) Any dispute between a landlord and a tenant arising under a retail premises lease, other than a claim by the landlord solely for the payment of rent or a dispute which is capable of being determined by a registered valuer under section 10, 11 or 13, must be referred to arbitration in accordance with this Part.
…
(4) Despite anything to the contrary in the Commercial Arbitration Act 1984 or any other Act, a dispute which is capable of being referred to arbitration under this section is not justiciable in any court or tribunal.
Arbitration.
22. (1) Subject to sub-section (2) and to section 21, an arbitration under section 21 must be conducted in accordance with, and subject to the provisions of, the Commercial Arbitration Act 1984.
[4]See below, [44]-[49].

The complementary provisions of the Commercial Arbitration Act 1984 then in force, in effect, deemed arbitrations provided for in any other act to be an arbitration agreement for the purposes of the then commercial arbitration legislation, the 1984 Act, as follows:
3. Repeal, transitional and application provisions
…
(4) Subject to this section, this Act shall apply to arbitrations provided for in any other Act as if:
(a)the other Act were an arbitration agreement,
(b)the arbitration were pursuant to an arbitration agreement, and
(c)the parties to the dispute which, by virtue of the other Act, is referred to arbitration were the parties to the arbitration agreement,

except in so far as the other Act otherwise indicates or requires.

There is an argument advanced by ASADA that the provisions of the Australian Sports Anti-Doping Authority Act 2006 (Cth) (“the ASADA Act”), together with the provisions of the National Anti-Doping Scheme (“the NAD scheme”) provided for under the ASADA Act and the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) (“the ASADA Regulations”), produces machinery analogous to that discussed with respect to the former retail tenancies legislation. ASADA contends that this follows on the basis of the provisions of sub-s 1(6) of the Act. However, for reasons which follow, I am of the opinion that this may overlook the operation of the preceding sub-section, s 1(5) of the Act, and in any event does not have regard to the lack of something analogous to the arbitration mandating provisions contained in ss 21 and 22 of the Retail Tenancies Act, to which reference has been made.

Before moving to consider in detail issues which arise as to whether the Tribunal is to be regarded as an arbitral tribunal for the purposes of the Act by reference to the documents said to constitute the “arbitration agreement” and the nature of its processes, reference should be made to some critical elements arising out of the provisions of the Act.[5] In this respect, s 1 of the Act merits particular attention, particularly, on the basis of its terms, which are based on the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law (“UNCITRAL”) on 21 June 1985, as amended by the United Nations Commission on International Trade Law on 7 July 2006) (“the Model Law”).[6] The international provenance and the requirement that the provisions of the Act be interpreted having regard to that provenance was emphasised recently by the Court of Appeal in Subway Systems Australia Pty Ltd v Ireland.[7] It follows that in interpreting the effect of the provisions of s 1 of the Act in the present circumstances, regard must be had to the international provenance of these provisions, namely, the Model Law, particularly with reference to the meaning of “arbitration” and the meaning of “commercial” as these two words are used in the expression “commercial arbitration”. Having regard to the provisions of s 1, it follows that the provisions of the Act will not apply where a dispute resolution process is either not an arbitration at all or, if it is an arbitration, is one which is not “commercial”.
[5]Noting that an arbitration agreement may arise in and as a result of the interplay of the provisions of a suite of documents: see Raguz v Sullivan (2000) 50 NSWLR 236.
[6]See Commercial Arbitration Act 2011, s 2(1); and see the Second Reading Speech of the Attorney-General on the Commercial Arbitration Bill 2011 (Legislative Assembly, 17 August 2011).
[7][2014] VSCA 142; see also TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; and see the Alavi submissions, [15]-[20].

The UNCITRAL Working Group, which developed the provisions of the Model Law, considered at some length whether to attempt to develop and include a comprehensive definition of “arbitration” in the Model Law. For a variety of reasons, the Working Group considered that this was not desirable. Thus, the provisions of Article 2 of the Model Law provide, in the context of definitions and rules of interpretation, the following definition:

‘arbitration’ means any arbitration whether or not administered by a permanent arbitral institution.[8]

[8]Model Law, Article 2(a).

The deliberations of the UNCITRAL Working Group are helpfully summarised in the commentary to Article 2 of the Model Law in the highly authoritative magnum opus by [Judge] Howard M. Holtzmann and Joseph E. Neuhaus, being A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (“Holtzmann and Neuhaus”).[9] The particularly relevant part of the Holtzmann and Neuhaus commentary on Article 2 is as follows:[10]

Article 2 provides three ‘definitions’ – actually points of clarification rather than comprehensive explanations of meaning – and three rules of interpretation. These provisions apply, with certain exceptions that are indicated in two of them, throughout the Model Law. There are other definitions elsewhere in the Law, notably of the term ‘arbitration agreement’ in Article 7 and of the expression ‘international’ in Article 1. The present section provides the legislative history of the provisions that are included in Article 2 of the final text, as well as of several defining provisions that ultimately were not included in the Model Law. The most important of these unincluded provisions was a proposed definition of the term ‘award’.
‘Arbitration.’ As noted, the definition of ‘arbitration’ is not a definition at all, but rather simply a clarification that the Model Law covers both ad hoc and institutional arbitration. The First and Second Drafts of the Law[11] contained a fuller version of this provision, based loosely on the scope-of-application article of the European Convention on International Commercial Arbitration (Geneva 1961).[12] That draft provision was also not a definition per se, but essentially a ‘table of contents’ that listed elements included in the term ‘arbitration’: arbitration agreements, the preparation and conduct of arbitration proceedings, and arbitral awards. The Working Group deleted the provision because it was regarded as superfluous and because it was feared that any elements left out of the list might be regarded as outside the scope of the Law.[13] As the Secretariat noted, the term ‘arbitration’ is widely used in national statutes and international conventions, but commonly is not defined.[14] In these circumstances, the Working Group and the Commission felt that it was safest not to attempt to provide a comprehensive definition of the term in the Model Law either.
Ultimately, all that was retained of the original proposals was the notation that the Model Law covered both ad hoc and institutional arbitrations. This was initially placed in the provision defining the arbitration agreement – Article 7(1) in the final text. The Commission moved the provision to its present place in Article 2, presumably because it logically related to the Law as a whole and not only to the arbitration agreement.[15]
Although the Working Group declined to include a fuller definition of the term ‘arbitration’, its deliberations provide some useful guidance on the intended scope of the term. The Working Group decided at the outset that the Model Law should have a wide scope of application, and that it should cover all forms of arbitration.[16] At the same time, the Working Group was agreed that certain nonjudicial mechanisms for third-party resolution of disputes, mechanisms that are sometimes labeled ‘arbitration’, should not be governed by the Model Law. In particular, it was felt that the Model Law was designed for consensual arbitration – i.e., arbitration based on the voluntary agreement of the parties – and that ‘compulsory arbitration’ – required by statute – should fall outside its scope.[17] In addition, the Working Group considered that the Model Law should not apply to various types of ‘free arbitration’ – such as the arbitrato irrituale in Italian law, the Dutch bindend advies, and the German Schiedsgutachten – which, according to the Secretariat, are procedures that often determine questions only of fact and not of law and commonly result in decisions that are binding only as contractual provisions and not as arbitral awards.[18]
The Working Group concluded, however, that such limitations need not be expressed in the Law, apparently in part because it was thought to be difficult to draw a clear and comprehensive distinction between various forms of ‘free arbitrations’ and arbitrations covered by the Law.[19] The Working Group noted, however, that States could incorporate such limitations where necessary when adopting the Model Law.[20] This point was not repeated in the Commission’s deliberations or its Report, but it would seem that national legislatures could exclude any nonarbitral procedures that are provided for by their law and for which they considered the Model Law to be inappropriate.[21]
[9]Kluwer Law and Taxation Publishers, Deventer – Boston, and TMC Asser Instituut, The Hague, 1994; and see Alavi submissions, [21]-[26].
[10]Holtzmann and Neuhaus, 150-152.
[11]First Draft, A/CN.9/WG.11/WP.37, Art. 1(B)(2), p. 157 infra, and Second Draft, A/CN.9/WG.11/WP.40, Art. 1(2), p. 159 infra.
[12]484 U.N.T.S. 349, Art. 1(1) of that Convention provides that the Convention applies to certain defined types of arbitration agreements in international trade and to “arbitral procedures and awards based on [such] agreements”.
[13]Third Working Group Report, A/CN.9/233, paras. 50-51, pp. 159-60 infra.
[14]Second Secretariat Note, A/CN.9/WG.11/WP.35, para. 10, p. 156 infra.
[15]See Summary Record, A/CN.9/SR.307, paras. 59-62, p. 172 infra; Commission Report, A/40/17, para. 46, p. 181 infra.
[16]First Working Group Report, A/CN.9/216, para. 16, p. 157 infra.
[17]Id. Para. 17, p. 157 infra. See also First Secretariat Note, A/CN.9/207, para. 39, appearing in the section on Article 7, pp. 268-69 infra (suggesting that arbitration that is compelled by statute be explicitly excluded from the Model Law).
[18]See First Working Group Report, A/CN.9/216, para. 17, p. 157 infra; First Secretariat Note, A/CN.9/207, para. 29, p. 155 infra.
[19]See Second Secretariat Note, A/CN.9/WG.11/WP/35, para. 10, p. 156 infra.
[20]First Working Group Report, A/CN.9/215, para. 17, p. 157 infra.
[21]A related question that was discussed by the Working Group was whether the assistance of third parties in adapting or supplementing contracts – the so-called “gap-filling” functions – constituted arbitration, and if so, whether they should be dealt with in the Model Law. The materials on these discussions appear in the section on Matters Not Addressed in the Final Text, pp. 1123-36 infra.

The legislative history of Article 2 is also extracted by Holtzmann and Neuhaus,[22] but of most relevance in the present context is the extract from the First [UNCITRAL] Secretariat Note on Possible Features of a Model Law, as follows:[23]
[22]Holtzmann and Neuhaus 155-182.
[23]First Secretariat Note – Possible Features of a Model Law (A/CN.9/207 (14 May 1981), [29] and [30]); set out in Holtzmann and Neuhaus, 155-6.
1. ‘Arbitration’
29. As to the first element, i.e. “arbitration”, it would seem desirable to define that term since it expresses the “heart of the subject-matter” or activity governed by the model law. Such definition would have to cover institutional and ad hoc arbitration. Also, it would in some way have to indicate that arbitration is a dispute settlement procedure outside the court system. Beyond that, however, a major difficulty will be to distinguish precisely between arbitration as regulated in the model law and those procedures which, sometimes even labeled arbitration, are similar to arbitration such as the Italian “arbitrato irrituale”, the Dutch “bindend advise” and the German “Schiedsgutachten”.
30. While certain common features of these three examples of “free arbitration” can be detected (e.g. determination of questions of fact rather than law and decision merely binding like a contract provision), these procedures are not identical and there are yet other such procedures in other legal systems. Thus it will not be an easy task to draw the line in a sufficiently clear manner. At the very least, one should envisage an appeal to States adopting the model law to list any procedure akin to arbitration but excluded from its scope of application.

It will be seen immediately from the Holtzmann and Neuhaus commentary and from the reference to the legislative history that the UNCITRAL Working Group did direct its mind to the exclusion of compulsory arbitration required by statute and also so-called “free arbitration”[24] which, in various jurisdictions, produced decisions that are binding only as contractual provisions and not as arbitral awards. The issue of statutory compulsory arbitration does, as indicated previously arise in the present circumstances, but is considered later in these reasons. Also of significant importance, however, is the distinction to be drawn between processes which may, in terms of the processes themselves, have many of the apparent attributes of arbitration, but which do not produce decisions which would be regarded as arbitral awards. This important distinction marks the boundary, indistinct at times though it might be, between domestic or private tribunals which operate under, often quite complex, rules to which the parties are contractually bound and which produce decisions binding on those parties under those contractual provisions. Often, these tribunals exist within incorporated and unincorporated associations, under the auspices of those associations or within or involving other entities. There is a great deal of law in relation to decision-making in such tribunals and it is not suggested that they are, merely because of the manner in which the proceedings of those tribunals is conducted, within the reach of arbitration legislation, such as the provisions of the Act.[25]

[24]See also Binder, International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, (3^rd ed, Sweet and Maxwell, Thompson Reuters, (2010)), 21-2 [1-047]-[1-049].

[25]See, for example, Forbes, Justice in Tribunals (4^th ed, The Federation Press, 2014); and see Alavi submissions, [49]-[62].

Developing this thread further, Williams and Kawharu emphasise the preclusive effect of an arbitral award which, akin to the effect of a court judgment, triggers the application of principles of res judicata and estoppel:[26]

One of the fundamental objectives of arbitration is to provide a final and binding resolution of disputes. The binding nature of arbitration is the corollary of party autonomy and consent. There are two aspects to the enforceability of arbitral proceedings: first, an agreement to arbitrate is an enforceable agreement to refer a particular dispute to arbitration; and secondly, arbitral awards are binding and have a preclusive effect in the same way that court judgments do by virtue of the principles of res judicata and estoppel. The power to make a binding decision distinguishes arbitration from other dispute resolution procedures such as mediation and conciliation, which aim to arrive at a negotiated settlement [footnotes omitted].

The preclusive nature of arbitration proceedings as identified by Williams and Kawharu is also quite consistent with Victorian authority.[27]

[26]Williams and Kawharu, Williams & Kawharu on Arbitration (LexisNexis, Wellington, 2011), 5, [1.1.3].

[27]See Age Old Builders Pty Ltd v Swintons Pty Ltd [2003] VSC 307; and see Swintons Pty Ltd v Age Old Builders Pty Ltd [2005] VSCA 217; and below, [15].

The other important aspect with respect to the application of the Act is the requirement that if there is an arbitration, then it must be “commercial”. Again, the international provenance of the provisions of the Act, based as they are on the provisions of the Model Law, are relevant; the dictionary definition of the word being rather broad and unhelpful in the present circumstances.[28] It is clear from the Holtzmann and Neuhaus commentary on the Model Law that although it was intended that the word “commercial” would have a wide interpretation – a matter made clear in the “Model Law note”[29] to s 1 of the Act – the word is not “boundless” in its meaning.[30] The Holtzmann and Neuhaus commentary helpfully summarises the position reached by the UNCITRAL Working Group in the development and drafting of the Model Law:[31]
[28]Cf Alavi submissions, [47], [48].
[29]This note, which is appended to s 1 of the Act, reproduces, in the same terms, the footnote to the word “commercial” where it appears in the context of the expression “commercial arbitration” in Article 1 [scope of application] of the Model Law.
[30]Holtzmann and Neuhaus, 32-35 and, with particular reference to the legislative history, pp, 40-95.
[31]Holtzmann and Neuhaus, 32-35.

(ii) ‘Commercial’. In the early stages of drafting the Model Law, the Working Group recognized the difficulties of defining the term ‘commercial’.[32] Various suggestions were advanced, including use of the words ‘trade’, ‘commerce’, ‘economic transaction’, or ‘business’,[33] but no comprehensive definition of the term was found. As the Secretariat noted in its commentary on the Working Group’s final draft, conventions on international commercial arbitration do not define the word.[34] The view appears to have been that the compound term ‘commercial arbitration’ is widely used and has acquired a sufficiently clear meaning.[35]
[32]First Working Group Report, A/CN.9/216, para. 19, pp. 45-46 infra.
[33]Id.; Second Working Group Report, A/CN.9/232, para. 32, pp. 48-49 infra; see also First Draft, A/CN.9/WG.11/WP.37, Art. 1(3), Alt. B, p. 47 infra (“commercial” refers to disputes “arising in the context of any commercial transaction [or similar economic relationship]”); Second Draft, A/CN.9/WG.11/WP.40, Art. 1(3), p. 50 infra (“any [defined legal] relationship of a commercial [or economic] nature”). (Brackets indicate language that was still under consideration or was offered as an alternative).
[34]Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 16, p. 70 infra.
[35]See First Secretariat Note, A/CN.9/207, para. 31, p. 41 infra.
…
The footnote itself states that the term ‘commercial’ was to be given a wide interpretation, and this call is repeated throughout the legislative history.[36] In particular, the Commission and Working Group reports emphasize that the term is not to be construed in accordance with national law definitions of ‘commercial’ in certain civil law countries, some of which include only those relationships dealt with in the commercial code or only transactions between ‘commercial persons’ (i.e., merchants).[37] This concern arose out of experience with the provision in the New York Convention that allows States to restrict the Convention to awards arising out of ‘legal relationships … which are considered as commercial under the national law of the State’ making the restriction.[38] The view was that this proviso had resulted in an excessively narrow interpretation.[39]
[36]E.g., First Working Group Report, A/CN.9/216, para. 19, pp. 45-46 infra; Second Working Group Report, A/CN.9/232, para. 30, p. 48 infra; Third Working Group Report, A/Cn.9/233, para. 52, p. 51 infra; Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 18. pp. 70-71 infra.
[37]E.g., Commission Report, A/40/17, paras. 22, 26, pp. 94, 95 infra; Fifth Working Group Report, A/CN.9/246, para. 158, p. 58 infra; Third Working Group Report, A/CN.9/233, para. 52, p. 51 infra; First Working Group Report, A/Cn.9/216, para. 19, pp. 45-46 infra; see also Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 19. P. 71 infra.
[38]Article 1(3).
[39]See First Secretariat Note, A/Cn.9/207, para. 31 & n. 13, p. 41 infra.
In both the Working Group and the Commission, attempts were made to make explicit in the Law this intent not to limit ‘commercial’ to transactions with merchants. Amendments to the footnote were offered that would have stipulated that the Law applied ‘irrespective of whether the parties are “commercial persons” (merchants) under any given national law’ or, in another version, ‘regardless of the nature or character of the parties’.[40] Some delegations feared, however, that such a provision might be interpreted as touching upon the question of State or sovereign immunity.[41] It was widely agreed that the Law is not intended to confer immunity on States that have waived it under the applicable rules (such as by engaging in non-governmental activities or signing arbitration clauses), nor to lift that immunity where it has not been waived.[42] In the end, the Commission found that the footnote expressed sufficiently clearly that the ‘commercial’ nature of a relationship for purposes of the Model Law did not depend on the nature of the parties, and that view was further stipulated in the Report of the session.[43]
[40]See Third Working Group Report, A/CN.9/233, paras. 52, 56. pp. 51, 52 infra; Third Draft, A/CN.9/WG.11/WP.45. Art. 1, n. *. P. 53 infra; Summary Record, A/CN.9/SR.306, para. 20. pp. 76-77 infra.

[41]See Fifth Working Group Report, A/CN.9/246, para. 158. p. 58 infra; Summary Record, A/CN.9/SR/306. Paras. 31, 39. pp. 78, 80 infra; Commission Report, A/40/17. Para. 22. p. 94 infra.
[42]See the sources cited in the preceding footnote and Summary Record, A/CN.9/SR.319, para. 36. P. 91 infra; Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 20. p. 71 infra. See also the commentary on Article 7, p. 259 & n. 5 infra, and sources cited therein; Secretariat Comments on AALCC Proposal, A/CN.9/127/Add. 1, paras. 10-13. p. 1165 infra; 1977 Commission Report, A/32/17, Annex II, paras. 32-33, p. 1169 infra.
[43]Commission Report, A/40/17, paras. 5, 22, 26, pp. 94-95 infra.
The list of examples of commercial relationships is, by its terms, not exhaustive; it is intended merely to illustrate that the term is to be interpreted broadly. The Secretariat noted, for example, several relationships that were not included in the list, but should be considered to be ‘commercial’ within the meaning of Article 1, including arrangements to supply electrical energy or to transport liquefied gas via pipeline, and ‘non-transactions’ such as claims for damages arising in a commercial context.[44] This is not to say that the term ‘commercial’ is boundless. The legislative history also provides examples of relationships that were not meant to be included in the term, in particular, labor and employment disputes and ordinary consumer claims.[45] In addition, Article 1(5) of the Law places an additional limitation on the scope of relationships that are subject to the Law: no matter may be submitted to arbitration under the Model Law if it is not arbitrable under municipal law or if it may be submitted to arbitration only under other provisions of law. See the discussion of Article 1(5), pages 38-39 infra.
[44]Seventh Secretariat Note, A/CN.9/264, Art 1, para. 18, pp. 70-71 infra.
[45]Id.; Second Working Group Report, A/CN.9/232, para. 32, pp. 48-49 infra; see also First Secretariat Note, A/CN.9/207, para. 31, p. 41 infra (family law matters also excluded).

The position is put somewhat more strongly with respect to the exclusions by Fouchard Gaillard Goldman on International Commercial Arbitration[46] as follows:
[46]Gaillard and Savage (Kluwer Law International, 1999) 36-37, [62]-[63]; to which reference is made in the Alavi submissions, [38].
62. – The fact that this wording is contained in a footnote, suggesting that it is merely a guide to interpretation, is of little consequence because legislators of countries wishing to adopt the Model Law are at liberty to implement the Model Law as they see fit. Thus, for example, in the 1986 arbitration statute enacted by the Canadian province of British Columbia, which is almost identical to the Model Law, Article 1, paragraph 6 contains and reclassifies most of the examples listed in the footnote to the Model Law.
63. – If one ignores its tautologies and redundancies, this footnote clearly conveys the idea that all exchanges of property, services or assets will be commercial. In other words, the definition includes all economic relations the object of which is the production, transformation or circulation of goods, or services associated with those goods, or financial and banking activities. The status of the parties is not taken into consideration, although the list does make it fairly clear that the Model Law does not apply to consumer or labor law disputes. On the other hand, there is no reference to whether or not the parties are merchants (‘commerçants’), as the Model Law is aimed at legal systems which draw no distinction between merchants and non-merchants as well as those which maintain that distinction. Finally, this wide definition of the term ‘commercial’ only applies to the scope of the Model Law, without prejudice to that of the arbitration itself, which is a matter to be determined by the arbitrators or the courts, as the case may be. [Footnotes omitted].

As will be seen from these commentaries, and the references to the legislative history, it is clear that some relationships were not meant to be included within the meaning of the expression “commercial”, particularly labour and employment disputes and ordinary consumer claims. In this respect, it is observed that Marks J in Nobes v Australian Cricket Board[47] said, in the context of restraint of trade issues in that case, that:
The principles of law are long established but it may well be that only in recent years money rewards in sport have led the courts to confirm that professional sportspersons enjoy an analogous right to those of employees and other professionals.

In any event, the possible sports dimension of labour and employment disputes in the present context is considered in the reasons which follow.[48]

[47]Unreported, Supreme Court of Victoria, Marks J, 16 December 1991, p 20.

[48]See below, [52] to [58].

Dr Binder also provides a commentary on the definition of “commercial” in similar, though more brief, terms and, in so doing, makes observations with respect to the inclusion, or non-inclusion, of the footnote to the Model Law with respect to the term “commercial”. He does so with reference to Californian legislation, does give some “flavour”, at least, to the meaning of the term as adopted in a similar common law jurisdiction:[49]
[49]Binder, International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, (3^rd ed, Sweet and Maxwell, Thompson Reuters, 2010), 22-24, [1-019]-[1-024] – the quoted passage being from 23-24, [1-022]-[1-024]; cf Born, International Commercial Arbitration (2^nd ed, Walters Kluwer, 2014), 309, § 2.03[B]:
“Despite its breadth, the Model Law’s footnote omits express reference to certain types of transactions, including specifically consumer contracts and employment contracts [A negative inference is arguably applicable to the definition’s omission of particular types of contracts or relations. As discussed below, consumer and employment contracts are frequently the subject of either nonarbitrability or invalidity rules of national law. See §§6.04[G]-[H]. See alsoBorowski v Heinrich Fiedler Perforiertechnik GmbH, (1994) 158 A.R. 213 (Alberta Q.B.) (employment relations not commercial); Spanish Arbitration Act, 2011, Art. 1(4) (employment disputes excluded)]. Equally, the Model Law’s definition refers, albeit unclearly, to “trade” transactions, arguably connoting involvement by traders or merchants, as distinguished from consumers or employees [See UNCITRAL Model Law, Art. 1(1) n.2.].
Nonetheless, the Model Law’s list of examples of commercial relations is non-exclusive (“include, but are not limited to”), making it difficult to draw conclusions from the exclusion of particular types of transaction from the Law’s footnote [See UNCITRAL Model Law, Art. 1(1) n.2. See Report of the Secretary-General on the Analytical Commentary on Draft Text of A Model Law on International Commercial Arbitration, U.N. Doc. A/CN.9/264, Art. 1, ¶¶18 et seq. (1985).]. It is also noteworthy, however, that the Model Law’s footnote extends expressly to “carriage of … passengers” and “consulting”, which very arguably include at least certain consumer or employment relations – raising the question why other types of consumer and employment relations are any less “commercial” or more appropriately excluded entirely from the Model Law’s coverage [Alternative approaches, discussed below, are to apply more specifically-tailored rules of validity or nonarbitrability to particular types of transactions or claims. See UNCITRAL Model Law, Art. 1(5); §§6.03[C][1]-[2].]. The better view, therefore, is that the Model Law includes within its coverage both consumer and employment matters, subject to any specific nonarbitrability rules adopted in particular states pursuant to Article 1(5) of the Law [See UNCITRAL Model Law, art. 1(5); §6.03[C][1].]. There are contrary decisions in Model Law jurisdictions, but they are difficult to reconcile with the text of Article 1(5)’s footnote and the objectives of the Model Law [See, e.g., Ross v Christian & Timbers, Inc, (2002) 18 C.P.C.5^th 348 (Ontario Super. Ct.) (employer/employee relationship, as opposed to independent contractor relationship, was non-commercial); Borowski v Heinrich Fiedler Perforiertechnik GmbH, (1994) 158 A.R. 213 (Alberta Q.B.) (same). See also Patel v Kanbay Int’l Inc, [2008] ONCA 867 (Ontario Ct. App.) (claim for wrongful dismissal and tort of negligent misrepresentation was held not to satisfy “commercial” requirement).].

At the outset of drafting the Model Law it was held that a provision binding the term ‘commercial’ to national laws, as is done by the New York Convention, was not desirable, mainly because prior difficulties due to a narrow interpretation of this provision of the New York Convention arose.[50] To underline this fact, a draft version of the Model Law contained the footnote wording:
[50]A/CN.9/168, para.11.
‘The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, irrespective of whether the parties are “commercial persons” (merchants) under any given national law’.

Nevertheless, it was feared that this wording could be interpreted as dealing with the highly sensitive issue of state immunity, which was not intended to be touched by the Model Law:
‘There was general agreement that the Model Law should not deal with questions of State immunity. The reason for this decision was that the issue of State immunity in the context of arbitration was regarded as but a part of a more general and complex problem having an obviously political and public international law character.’[51]
[51]A/CN.9/216, para.29.

Eighteen of the 80 adopting jurisdictions directly inserted the Model Law’s ‘commercial footnote’ into their national arbitration statutes. It is submitted, however, that those remaining jurisdictions which adopted the Law verbatim without the footnote would be well advised to interpret the term ‘commercial’ accordingly in order to remain in line with the Model Law. Section 1297.16 of the Californian Code of Civil Procedure shows how the footnote can be incorporated into the text of the law and it also adds the further commercial situation of ‘professional services’:
‘§1297.16. Commercial agreements; nature of relationships
An arbitration or conciliation agreement is commercial if it arises out of a relationship of a commercial nature including, but not limited to, any of the following:
(a)A transaction for the supply or exchange of goods or services.
(b)A distribution agreement.
(c)A commercial representation or agency.
(d)An exploitation agreement or concession.
(e)A joint venture or other related form of industrial or business co-operation.
(f)The carriage of goods or passengers by air, sea, rail or road.
(g)Construction.
(h)Insurance.
(i)Licensing.
(j)Factoring.
(k)Leasing.
(l)Consulting.
(m)Engineering.
(n)Financing.
(o)Banking.
(p)The transfer of data or technology.
(q)Intellectual or industrial property, including trademarks, patents, copyrights and software programs.
(r)Professional services.’

Again, labour and employment disputes and ordinary consumer claims do not appear.
Characteristics of an arbitration at common law

A commonly cited definition of an arbitration, and one that has been cited with approval by Australian courts,[52] was provided by Lord Esher MR in Re Carus-Wilson and Greene:[53]

If it appears from the terms of the agreement by which a matter is submitted to a person’s decision, that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquiry, and hear the respective cases of the parties, and decide upon evidence laid before him, then the case is one of an arbitration. The intention in such cases is that there shall be a judicial inquiry worked out in a judicial manner. On the other hand, there are cases in which a person is appointed to ascertain some matter for the purpose of preventing differences from arising, not of settling them when they have arisen, and where the case is not one of arbitration but of a mere valuation. There may be cases of an intermediate kind, where, though a person is appointed to settle disputes that have arisen, still it is not intended that he shall be bound to hear evidence or arguments. In such cases it may be often difficult to say whether he is intended to be an arbitrator or to exercise some function other than that of an arbitrator. Such cases must be determined each according to its particular circumstances.

[52]See, eg, Shoalhaven City Council v Firedam Civil Engineering Pty Limited (2011) 244 CLR 305 at [25] (French CJ, Crennan and Kiefel JJ); Re Fenwick v Port Jackson Co-operative Steamship Co (1898) 14 WN(NSW) 85 at 87 and Norths Ltd v McCaughan Dyson Chapel Cure Ltd (1988) 12 ACLR 739 at 747-8. To similar effect see the approach of Debelle J, with whom Cox and Prior JJ agreed, in Santos Ltd v Pipelines Authority SA (1996) 66 SASR 38.

[53](1886) 18 QBD 7 at 9.

As submitted by ASADA, a more detailed definition identifying suggested essential attributes of arbitration is to be found in Mustill and Boyd’s text, Commercial Arbitration:[54]
[54]Mustill and Boyd, The Law and Practice of Commercial Arbitration in England (2^nd ed., Butterworths, London and Edinburgh, 1989), 41-42.

In spite of these difficulties, it is possible to suggest a list, almost certainly incomplete, of those factors which are material to the question whether a particular process qualifies as an arbitration. This list may be divided into two parts. First, those qualities which are necessary, although not in themselves sufficient,[55] if the process is to be considered an arbitration. Second, certain other considerations which are relevant to the question, although not conclusive upon it.
[55]In Sutcliffe v Thackrah [1974] 1 Lloyd’s Rep 318, [1974] AC 727 and Arenson v Casson, Beckman, Rutley & Co [1976] 1 Lloyd’s Rep 179, [1977] AC 405, various factors were considered and rejected as indicia of that type of process which attracts for the tribunal the judicial immunity of an arbitrator. This did not mean that the Law Lords considered the factors to be irrelevant to the questions whether the tribunal was immune, and whether the process was an arbitration; merely that the possession of a particular quality did not ipso facto make the process an arbitration. For example, the question whether the tribunal has to act fairly as between the parties is not irrelevant; on the contrary, it is crucial. If answered in the negative, the process cannot be an arbitration. But an affirmative answer does not mean that it is an arbitration.
(a) Attributes which must be present
(i)   The agreement pursuant to which the process is, or is to be, carried on (“the procedural agreement”) must contemplate that the tribunal which carries on the process will make a decision which is binding on the parties to the procedural agreement.
(ii) The procedural agreement must contemplate that the process will be carried on between those persons whose substantive rights are determined by the tribunal.
(iii) The jurisdiction of the tribunal to carry on the process and to decide the rights of the parties must derive either from the consent of the parties, or from an order of the court or from a statute the terms of which make it clear that the process is to be an arbitration.
(iv)          The tribunal must be chosen, either by the parties, or by a method to which they have consented.
(v) The procedural agreement must contemplate that the tribunal will determine the rights of the parties in an impartial manner, with the tribunal owing an equal obligation of fairness towards both sides.
(vi)          The agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law.
(vii) The procedural agreement must contemplate a process whereby the tribunal will make a decision upon a dispute which is already formulated at the time when the tribunal is appointed.
(b) Other factors which are relevant[56]
[56]In the first edition, this list had included as a relevant factor the question whether the procedural agreement conferred the right to call for a decision by the tribunal on both parties or upon one alone. This factor, inserted in deference to views expressed in Baron v Sunderland Corpn [1966] 2 QB 56, 64, has now been deleted in the light of Pittalis v Sherefettin [1986] QB 868.
(i)   Whether the procedural agreement contemplates that the tribunal will receive evidence and contentions, or at least give the parties the opportunity to put them forward.
(ii) Whether the wording of the agreement is consistent or inconsistent with the view that the process was intended to be an arbitration.
(iii) Whether the identity of the chosen tribunal, or the method prescribed for choosing the tribunal, shows that the process was intended to be an arbitration.
(iv)          Whether the procedural agreement requires the tribunal to decide the dispute according to law.

As the text and footnotes to this Mustill and Boyd passage indicate, anything in the nature of a comprehensive and prescriptive definition of “arbitration” is extremely difficult. As these authors comment in Commercial Arbitration – 2001 Companion Volume to the Second Edition, the answer lies, at the very least, in considering all the particular circumstances of the dispute resolution process under consideration:[57]
The questions raised in the text remain today as important and difficult as they have always been. Even the masterly conspectus of the Arbitration Act 1996 does not begin where one would expect. If this is an Act about arbitration, what is an arbitration? The English Act does not attempt an answer, any more than legislation in other jurisdictions, or the Model Law, or similar assemblies of arbitration law and practice. In the absence of guidance, the question must in the end be answered intuitively. Except on the margins, it is easy to distinguish an arbitration from some other process: always provided that the definition does not involve a circular process on the lines of, “If it is an arbitration, it must have the following consequences”, and “If it has the following consequences, it must be an arbitration”.

Thus, in some cases the answer might be clear, and in others, as Mustill and Boyd indicate, the answer may need to be reached intuitively.

[57]Mustill and Boyd, The Law and Practice of Commercial Arbitration in England – 2001 Companion Volume to the Second Edition, (Butterworths, London, 2001).

Subject to the limitations indicated by Mustill and Boyd, some guidance is, nevertheless, provided by the authorities. Thus, in Age Old Builders Pty Ltd v Swintons Pty Ltd, Osborn J said:[58]

Whilst Hammond v Wolt has been overruled or distinguished on other points,[59] the proposition that arbitration involves an inquiry in the nature of a ‘judicial inquiry’ continues to be applied in more recent authority; see Goldflax Pty Ltd v Reefield Pty Ltd[60] where Jones J had to answer the ‘threshold question’ of whether the process there in issue was an arbitration and Santos Ltd v Pipelines Authority of South Australia[61] where Debelle J stated ‘it is well established that an arbitration involves an inquiry in the nature of a judicial inquiry’ and set out some indicia of such an inquiry:
(a)the parties have the right to be heard if they so desire;
(b)the parties are each entitled to see and hear the evidence advanced by their respective opponents;
(c)the parties have the right to give evidence if they so desire;

(d)each party is entitled to test by cross-examination or by other appropriate means the opposing case and to answer the opposing case.

[58][2003] VSC 307, [63]; and see Swintons Pty Ltd v Age Old Builders Pty Ltd [2005] VSCA 217.

[59]For example Manningham City Council v Dura (Australia) Constructions Pty Ltd [1999] 3 VR 13; PMT Partners Pty Ltd (In Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301.

[60]Supreme Court of Queensland, unreported decision, 6 September 1999.

[61](1996) 66 SASR 35 at 46-47.

In Walkinshaw v Diniz,[62] Thomas J considered, though not strictly necessary for his Lordship’s decision, whether a reference to the “Contracts Recognition Board” established by the Formula 1 1997 Concorde Agreement between Formula 1 racing teams, drivers and the Federation Internationale de l’Automobile constituted a reference to arbitration. Thomas J adopted the features identified by Mustill and Boyd as characteristic features of an arbitration[63] and added three additional factors, namely, that it is, first, a characteristic of arbitration that the parties should have a proper opportunity of presenting their case; secondly, it is a fundamental requirement of an arbitration that the arbitrators do not receive unilateral communications from the parties and disclose all communications with one party to the other party; and, thirdly, the hallmarks of an arbitral process are the provision of proper and proportionate procedures for the receipt of evidence.[64]
[62][2000] 2 All ER (Comm) 237.
[63][2000] 2 ALL ER (Comm) 237 at 254; referring to the passage from Mustill and Boyd set out above, [14].
[64][2000] 2 All ER (Comm) 237 at 255.

In a more recent case in the English High Court, Cooke J in England and Wales Cricket Board v Kaneria[65] applied the criteria set out by Thomas J in Walkinshaw[66] for the purpose of characterising the nature of the proceedings before the appeal panel of the England and Wales Cricket Board Limited (“the ECB”). In Kaneria, the plaintiff sporting authority applied to the court for the issue of a summons to a third party under the English Arbitration Act 1996. The purpose of the summons was to compel the third party to give evidence before the England and Wales Cricket Board Appeal Panel. On the basis of the Walkinshaw criteria, Cooke J concluded that the Appeal Panel was an arbitral body and that the proceedings before it were arbitration proceedings. It followed, as it was accepted that the witness in question was a central witness whose presence was desirable for justice to be done, that he should issue the witness summons. In the course of the judgment, Cooke J made reference to arguments that the English Court of Appeal decision in Stretford v The Football Association Ltd[67] was the governing authority. His Lordship did not accept that submission and, in any event, it is clear from the judgment of the Court of Appeal that one of the relevant rules considered in that case contained an agreement to arbitration.[68] It is also important to observe, in the present context, that prior to embarking on considering the nature of the proceedings before the ECB appeal panel, Cooke J stressed the fundamental feature which characterises arbitration proceedings; namely, their judicial nature, in the relevant sense, and their preclusive effect:[69]

28.In Walkinshaw, to which I have already referred, Thomas J, as he then was, set out the fact which he considered relevant when considering whether or not the body with which he was concerned in that case was an arbitral body and whether the proceedings were therefore arbitration proceedings. He referred to a dictum of Hirst LJ in an earlier decision where the latter stated:
‘To my mind the hallmark of the arbitration process is that it is a procedure to determine the legal rights and obligations of the parties judicially, with binding effect, which is enforceable in law, thus reflecting in private proceedings the role of a civil court of law.’

Without this ingredient, the preclusive effect, the “mixture” might well look and seem much like arbitration – but that will not be the case and the proper characterisation will be of a procedure before something in the nature of a domestic contractual tribunal – disciplinary or otherwise.

[65][2013] EWHC 1074 (Comm).

[66][2013] EWHC 1074 (Comm), [28]-[41]. For convenience, I will refer to these ten criteria as the “Walkinshaw criteria” in the reasons which follow.

[67][2007] EWCA Civ 238.

[68][2013] EWHC 1074 (Comm), [49]-[53].

[69][2013] EWHC 1074 (Comm), [28].

In considering the position in this case, it is helpful, in my view, to approach the characterisation of proceedings before the Tribunal by reference to the Walkinshaw criteria; as did Cooke J in Kaneria. Before doing so, I should observe, in relation to these English decisions, that the English arbitration legislation under consideration, the Arbitration Act 1996, is not legislation based on the Model Law, hence the interpretation of its provisions do not require reference to the international provenance of the Model Law, a matter of relevance and importance in the interpretation of the arbitration legislation applicable in Victoria, domestically the Act. Moreover, neither do the provisions of the English Arbitration Act, as with the Victorian legislation, limit its operation in terms of “commercial” arbitration. Thus, the English legislation is clearly applicable to arbitration at large, commercial or otherwise.

Application of principles with respect to the Tribunal

ASADA contends, on the basis of the definition of arbitration in Re Carus v Wilson and Greene,[70] that proceedings in the Tribunal would definitely constitute an arbitration. More particularly, it is contended that:

(1)matters relating to anti-doping are submitted to the Tribunal “for hearing and determination” (which is a “sporting tribunal” under clause 1.05 of the NAD scheme);[71]
(2)the Tribunal conducts an inquiry which is akin to a judicial inquiry;[72]
(3)the AFL Rules provide for hearings whereby “any person whose interests will be directly and adversely affected by its decision, a reasonable opportunity to be heard”;[73] and
(4)the AFL Rules require the Tribunal to adopt a procedure for a “proper consideration of the matters before it”[74] and provides for the determination of “the matter before the [Tribunal] in an unbiased manner”.[75]

Moreover, ASADA submits that there is no need for any express reference to the word “arbitrator” or “arbitration” in order for an arbitration agreement to arise, referring to the judgment of Cooke J in Kaneria.[76] Clearly, this is the position established in numerous authorities and equally so that the description which parties give to a particular form of dispute resolution is not determinative of its characterisation, as an arbitration or some other creature.[77]

[70](1886) 18 QBD 7 at 9 (Lord Esher MR); set out, above, [13].

[71]AFL Code, clause 13(a); and see also footnote 73, below, and the material set out with respect to the powers of ASADA and the AFL.

[72]AFL Rules, r 42.10(e); the Disciplinary Tribunal Counsel calling and examining witness and addressing the tribunal before “any final submissions by any representative of a person charged or otherwise appearing to be dealt with” by the Tribunal.

[73]AFL Rules, r 42.4(a)(i); and under the AFL Code the powers of the AFL and ASADA of some relevance in this respect are set out or provided for as follows:

4.Powers of AFL and ASADA

(a)under the ASADA Act and the NAD Scheme established under that Act, ASADA has the legislative authority to:

(i)investigate possible violations of the anti-doping rules under the ASADA Act and the NAD Scheme for Players and Officials under the jurisdiction of the AFL;

(ii)make findings in relation to such investigations;

(iii)notify the Player, Official and the AFL of its findings and its recommendations as to the consequences of such findings; and

(iv)present its findings and its recommendations as to consequences at hearings of the AFL Tribunal, the AFL Appeals Board or CAS, either at the AFL’s request or on its own initiative.

Clause 4.13 of the NAD Scheme is a provision for the purposes of s 13(k) of the ASADA Act, which authorises the presentation of cases before various bodies (including a “sporting tribunal” such as the Tribunal) in the following terms:

4.13Presentation of cases

(1)For paragraph 13(1)(k) of the Act, the CEO may present at a hearing of the Court of Arbitration for Sport or another sporting tribunal:

(a)a finding that has been entered on the Register; or

(b)a recommendation by the CEO in relation to a finding.

(2)With the approval of the CEO, a sporting administration body may present a finding on the Register to the Court of Arbitration for Sport or another sporting tribunal.

(3)Giving an approval under subclause (2) does not prevent the CEO from appearing before, or giving information to, the sporting tribunal.

Clause 20 of the Code expressly acknowledges the powers of ASADA in this and other respects – by each Player, Club, Officer and Official.

[74]AFL Rules, r 42.3(b)(i).

[75]AFL Rules, r 42.4(a)(ii).

[76][2013] EWHC 1074 (Comm), at [50].

[77]And see England and Wales Cricket Board Limited v Kaneria [2013] EWHC 1074 (Comm) at [58].

Before turning to more specific matters, it is helpful to make reference to matters which ASADA contends indicate a Tribunal hearing is in the nature of a judicial enquiry. In so doing, ASADA refers to various provisions of Rule 42 of the AFL Rules and the NAD scheme, as follows (with some context added in the provisions of Rule 42.1, 42.3 and 42.4):

42. Disciplinary Tribunal
42.1 Establishment
(a)Appointment and Definitions
(i)The General Counsel may from time to time appoint persons to a disciplinary Tribunal to be known as the Disciplinary Tribunal.
(ii)In this Rule, ‘Disciplinary Matter’ means any matter with which the Disciplinary Tribunal is empowered to deal other than a Reportable Offence.

(b)Functions
The function of the Disciplinary Tribunal shall be to deal with Disciplinary Matters in accordance with the AFL Rules and Regulations.
(c)Members of Disciplinary Tribunal
The Disciplinary Tribunal shall consist of:
(i)a Chairman being a person who is a senior member of the legal profession (‘Chairman’);
(ii)a Deputy Chairmen being a person who is a senior member of the legal profession (‘Deputy Chairman’);
(iii)a panel of persons who in the opinion of the General Counsel have appropriate qualifications to act as panel members as required under these Rules (‘Disciplinary Tribunal Panel Members’).

(d)Qualifications
Save and except where the General Counsel otherwise determines, a person shall not be appointed to the Disciplinary Tribunal if that person:
(i)has been a member of a Board of Directors of a Club; or
(ii)has been a Coach or assistance or specialty Coach of a Club; or
(iii)has been a Player of a Club

in the twelve months preceding the appointment.
…

42.3 Procedure and Evidence
(a)Regulate own Procedure
Subject to the further matters set out in this Rule, the Disciplinary Tribunal may regulate any proceedings brought before it in such manner as the Chairman thinks fit.
(b)Conduct of Hearing
(i)General

Any hearing by the Disciplinary Tribunal shall be conducted with as little formality and technicality and with as much expedition as a proper consideration of the matters before it permits.
(ii)Chairman
The Chairman shall determine all questions of law, evidence or procedure and give such directions in such manner as the Chairman thinks fit. Without limitation, the Chairman may give directions as to the length, form and nature of submissions, the reception of evidence, amendment of a report, adjournment of hearings and all other matters of procedure including those referred to in Rule 42.3(g). The Chairman may give directions to any person appearing before the Disciplinary Tribunal and to the Disciplinary Tribunal Panel Members prior to or during any deliberation on any question of fact.
(iii)Disciplinary Tribunal Panel Members
Whenever the Disciplinary Tribunal is to deal with a Disciplinary Matter, the Disciplinary Tribunal Panel Members shall decide questions of fact and law.

(c)Rules of Evidence
The Disciplinary Tribunal is not bound by the rules of evidence or by practices and procedures applicable to Courts of record, but may inform itself as to any matters in any such manner as it thinks fit.
…
(f)Matters Referred Under AFL Anti-Doping Code
Where a matter is referred to the Disciplinary Tribunal for an alleged contravention of the AFL Anti-Doping Code or the AFL Illicit Drugs Policy, this Rule shall be read in conjunction with the provisions of the AFL Anti-Doping Code or the AFL Illicit Drugs Policy as the case may be, provided that to the extent of any inconsistency, the provisions and guidelines contained in the AFL Anti-Doping Code or the AFL Illicit Drugs Policy shall respectively prevail.
…

42.4 Obligations of Disciplinary Tribunal
(a)Natural Justice and Other Obligations
The Disciplinary Tribunal shall:
(i)provide any person whose interest will be directly and adversely affected by its decision, a reasonable opportunity to be heard;
(ii)hear and determine the matter before it in an unbiased manner; and
(iii)make a decision that a reasonable Disciplinary Tribunal could honestly arrive at.

Reference is also made to Rules 42.10 and 42.12 of the AFL Rules which provide for examination and cross-examination of witnesses and the making of submissions (under the former sub-rule) and for representation before the Tribunal, in person or by a barrister, solicitor or agent, on such terms as the Chairman directs (under the latter sub-rule). Additionally, ASADA make reference to various provisions of the AFL Code which go to procedural matters – namely, burden and standard of proof (clause 15.1); methods of establishing facts and presumptions (with provision for drawing adverse inferences in certain circumstances) (clause 15.2); and rights of appearance (in slightly different terms from the provisions of Rule 42.12 of the AFL Rules) (clause 16(c)). The relationship between the provisions of the AFL Code and the AFL Rules is provided for in Rule 42.3(f) (which is set out above), in favour of the operations of the provisions of that code over those rules.

Against this landscape of the AFL Rules and the AFL Code, it is convenient now to turn to the specific matters raised in the Walkinshaw criteria: the ten criteria of arbitration identified in that case which were applied by Cooke J in Kaneria. As the nature of the specific matters indicates, submissions as to what may or may not have occurred in Tribunal hearings are not likely to be helpful and, in any event, there is no material before the Court which suggests otherwise.[78]

(i) It is a characteristic of arbitration that the parties should have a proper opportunity of presenting their case

[78]Cf Alavi submissions, [39]-[46].

ASADA contends that the terms of the AFL Code and Rules satisfy this criterion. In particular, ASADA points to a variety of provisions of the AFL Code and also the AFL Rules. Thus, a person alleged to have committed an Anti-Doping Rule Violation (“an ADRV”) is entitled to appear in person or to be represented at a hearing of the Tribunal;[79] a person alleged to have committed an ADRV must be given a reasonable opportunity to be heard;[80] the AFL General Counsel gives the person the infraction notice and refers the matter to the Tribunal for hearing and determination;[81] the AFL has the burden of establishing that that an ADRV has occurred;[82] the AFL General Counsel appoints the Disciplinary Tribunal Counsel, who may be barristers or, alternatively, solicitors to present the evidence;[83] and the Disciplinary Tribunal Counsel “shall” present the evidence in support of the charge or matter on behalf of the AFL and may respond to any matters put in defence and address the Tribunal at any hearing.[84]
[79]AFL Code, clause 16(c): see CC-4 to the Canning Affidavit.
[80]AFL Rules, rule 42.4(a)(i): see CC-9 to the Canning Affidavit.
[81]AFL Code, clause 13(a): see CC-4 to the Canning Affidavit.
[82]AFL Code, clause 15.1.
[83]AFL Rules, rule 42.10: see CC-9 to the Canning Affidavit.
[84]AFL Rules, rule 42.10: see CC-9 to the Canning Affidavit.

In respect of these procedures, ASADA contends that they are typical of arbitrations and satisfy the criterion that each party has a proper opportunity to present their case. Whilst I am prepared to accept that these provisions should provide a party with a proper opportunity to present their case, I am by no means satisfied that these procedures are typical of arbitration rules or procedures, other than in this respect. Rather, in my view, these rules and procedures are indicative of a domestic disciplinary tribunal established under rules of an association (incorporated or unincorporated) to which members or participants in that association are contractually bound. Moreover, comparison with the provisions of well accepted arbitration rules operating in domestic arbitral tribunals in this country, such as the rules of Australian Centre for International Commercial Arbitration (“ACICA”) and the rules of the Institute of Arbitrations and Mediators Australia (“IAMA”) would indicate otherwise. The same applies to well-established international commercial arbitration rules, in relation to which there is no relevant procedural distinction – such as the rules of the International Chamber of Commerce, International Court of Arbitration (“ICC”) and, closer to home, the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”).

(ii) It is a fundamental requirement of an arbitration that the arbitrators do not receive unilateral communications from the parties and disclose all communications with one party to the other party

ASADA makes reference to r 42.10 of the AFL Rules, which allows the AFL General Counsel to appoint a Disciplinary Tribunal Counsel. The functions of the Disciplinary Tribunal Counsel do not confer any right to provide unilateral communications to the Tribunal or to unilateral access to the Tribunal or any of its members. There are, it is said, ways in which the Tribunal can receive communications from parties to the Tribunal in a manner that shields the Tribunal from ex parte communications and ensuring that all communications are disclosed to all parties. An example in this respect is given by reference to r 42.1(h) under which a secretary can be appointed to have this function (as directed under r 42.1(i)(v)).

Clearly, communications between one party in the absence of the other in circumstances where the other party is unaware of the communication and has no opportunity to respond to it by appearing before the arbitral tribunal at the same time as the other party seeking to communicate or at least having a chance to respond to that communication would generally be regarded as unacceptable in arbitration proceedings. This does not, however, represent the whole picture with respect to arbitral procedure, a matter which is illustrated by the following passage in Russell on Arbitration:[85]

Whilst there is no absolute rule against the arbitrator having unilateral discussions with one party only, an arbitrator should avoid doing so as it can lead to removal for failure to conduct the proceedings properly[86] or for a reasonable apprehension of bias,[87] especially if discussions are intentional or frequent, go beyond administrative matters or are not promptly disclosed to the other party.[88] In practice unilateral communications frequently occur between an arbitrator and the legal representatives of his appointing party in the context of both his own appointment and consideration of potential candidates for appointment as the third arbitrator.[89] This practice is unobjectionable provided the discussion does not stray into the substance of the dispute and both parties are made aware that the discussions are taking place.[90]

For the preceding reasons, I accept that both applicants, ASADA and the AFL, are part of the framework or web of contractual provisions to which reference has been made in some detail previously, and that it follows that they are both parties in a relevant sense to proceedings before the Tribunal. It would follow, in my view, that were the proceedings before the Tribunal characterised as arbitral proceedings, then the applicants would be regarded as parties to those proceedings for the purposes of s 27A of the Act. Nevertheless, for the preceding reasons, I do not characterise proceedings before the Tribunal as other than domestic disciplinary tribunal proceedings and therefore these issues with respect to s 27A of the Act do not arise.

Has permission been granted by the Tribunal?

The applicants contend that the Tribunal granted permission to both ASADA and to the AFL to make application to the Court for the orders sought by the application under s 27A of the Act.[151] It is not suggested that this permission is other than sufficient for the purposes of s 27A of the Act, in the event that this section were applicable.
[151]See CC-13 to Canning Affidavit, which contains a copy of a document entitled “Permission to the Chief Executive Office of the Australian Sports Anti-Doping Authority to apply to the Supreme Court of Victoria for a subpoena under s 27A of the Commercial Arbitration Act 2011 (Vic).”

Is the scope of the subpoenas sought appropriate?

It has not been suggested by any of the persons or corporations to whom it is proposed to issue the subpoenas that their scope is in any way objectionable or other than something in the usual course of subpoenas which the Court would issue under its own rules, namely O 42.

Basis upon which subpoenas are sought

Having regard to the international provenance of the Act, particularly the provisions of the Model Law, it is, in my view, clearly inappropriate for the Court, in an application under s 27A of the Act by a party to obtain subpoenas, to embark upon a process which would, in effect, “second guess” the arbitral tribunal which has already given permission for the application to obtain a subpoena under these provisions.[152] It is quite clear from the provenance of this legislation, internationally and domestically, that the emphasis sought to be achieved by the legislature is court assistance and support for arbitral processes, and not “heavy handed” intervention or, in effect, duplication of the functions of the arbitral tribunal. Long gone are the evils of the case stated procedure under the Victorian Arbitration Act 1958 and its equivalents in other jurisdictions. Since the Commercial Arbitration Act 1984 in Victoria, the trend in legislative developments and court decisions has been to constrain merits appeals and the consequent cost and delay that flows from duplication of the proceedings in this process. This is not to say, however, that a provision such as s 27A of the Act is to be treated lightly by the courts. The sanctions for a breach of a court issued subpoena are potentially very serious indeed. Consequently, the basis upon which these powers are sought to be invoked must be established to the satisfaction of the court. Nevertheless, this process should, naturally, occur as expeditiously and cost effectively as possible; but it must be balanced against the seriousness associated with subpoenas and their possible breach. A fundamental prerequisite to invocation of powers such as those conferred by s 27A is, patently, that there must be an arbitration, an arbitral tribunal, in support of which any subpoena is issued under these provisions.
[152]And see Alinta Sales Pty Ltd v Woodside Energy Ltd [2008] WASC 304 (Beech J).

The basis upon which these subpoenas are sought is helpfully set out in the ASADA submissions, as follows:[153]
[153]Written submissions of the first applicant (3 December 2014), [51]-[58].

51.Subject to the Court’s power to set a subpoena aside in certain circumstances, any party is typically entitled upon their request to have a subpoena issued.[154] The Court should not be overly prescriptive in setting out criteria for the grant of a subpoena, and it will usually be sufficient that the evidence sought will be of some apparent potential relevance.[155]
[154]See Raymond v Tapson (1882) 22 CH D 430.
[155]Australian Gas Light Company v Australian Competition and Consumer Commission (2003) ATPR 41-956 at [8] (French J (as he was then)).
52.The power to issue a subpoena in the context of an arbitration is granted to the Court by s 27A of the Act. The above principles remain applicable.[156]
[156]See Alinta Sales Pty Ltd v Woodside Energy Ltd [2008] WASC 304 at [20]-[29]; Queensland Power Trading Corporation v Xstrata Queensland Ltd [2005] QCA 477 at [17].
53.In regards to the two witnesses, the Canning Affidavit sets out the relevance of calling Mr Charter[157] and Mr Alavi[158] as witnesses before the Tribunal. Both are alleged to have been involved in dealing with the substance at the centre of possible Anti-Doping Rule Violations. The Canning Affidavit establishes that Mr Charter and Mr Alavi are both material witnesses.
[157]Canning Affidavit, [28].
[158]Canning Affidavit, [32].
54.It is clear that the attendance of both Mr Charter and Mr Alavi at the Tribunal hearing is not assured.[159] Mr Charter himself has made comments to the media that he does not intend to cooperate with the Tribunal or attend the hearing.[160]
[159]Canning Affidavit, [29]-[31] and [33]-[34]; CC-14 to the Canning Affidavit.
[160]Canning Affidavit, [31]; CC-15 to the Canning Affidavit.
55.In regards to the corporate entities, from which subpoenas are sought to compel the production of documents, the Canning Affidavit sets out the relevant background at paragraphs [35] to [37]. The Support Person (a party to the proceeding) was a director of the four entities at the relevant time being considered by the Tribunal. In regards to the Support Person’s possible Anti-Doping Rule Violation, the CEO contends that the companies hold documents relevant to the proceeding in the Tribunal. Disclosure notices have been served on the directors of the company.[161] No documents have been provided thus far.
[161]Canning Affidavit, [36].
56.Paragraph 2 sufficiently narrows the class of documents sought by the CEO in its terms to that compliance with the subpoenas would not create an unreasonable burden.[162] The Court should take note that the companies are associated with a party to the proceeding (the Support Person) and therefore are not strangers to the arbitration.[163]
[162]Transfield Philippines Inc v Luzon Hydro Corporation [2002] VSC 215 at [19].
[163]Transfield Philippines Inc v Luzon Hydro Corporation [2002] VSC 215 at [19].
57.Based on the evidence in the Canning Affidavit, and the submissions set out above, it is appropriate that the Court issue:
57.1.the subpoenas sought in paragraph 1 of the Application to each of Mr Charter and Mr Alavi; and
57.2.the subpoenas to the corporate entities in the form of paragraph 2 of the Application.

58.The urgency of this Application is self evident as the Tribunal hearing is due to commence on 15 December 2014.[164] To avoid prejudice to the two witnesses sought to be subpoenaed, efforts were made to put both individuals on notice of this Application.[165]

There is some suggestion in the Alavi written and oral submissions to the contrary,[166] but I do not regard the points made as either persuasive or as raising matters requiring further examination by the Court in an application under s 27A of the Act.

[164]Affidavit of Cherie Bernadette Canning (2 December 2014), [38].

[165]Affidavit of Cherie Bernadette Canning (2 December 2014), [42]-[43].

[166]And see Alavi submissions, [1]-[2].

It has not been suggested by the respondents or any person or corporation to whom or which it is sought to direct the subpoenas that the submissions set out above do not disclose a real basis for their issue or that they would create an unreasonable burden. For these reasons, had I determined that the Tribunal was an arbitral tribunal conducting arbitration proceedings, then I would not have hesitated to exercise the power under s 27A of the Act. Nevertheless, for the preceding reasons, that is not the case and, accordingly, the provisions of s 27A of the Act cannot be invoked by the applicants.

NAD scheme – a statutory arbitration?

Following its earlier submissions, ASADA provided supplementary submissions in which it is contended that the proceedings before the Tribunal are being conducted pursuant to the ASADA Act and therefore fall within the description – though in the singular – of “arbitrations provided for in any other Act” for the purposes of sub-s 1(6) of the Victorian domestic arbitration legislation, the Act. These provisions have been set out previously, together with some examples of provisions in earlier Victorian legislation providing for arbitration and, in turn, directing that the statutorily mandated arbitration be conducted under the provisions of the domestic arbitration legislation.[167]
[167]See above, [4]-[10].

In relation to the NAD scheme, ASADA submits that it is established under the provisions of the ASADA Act, namely, Part 2 of that Act (ss 9 to 19). Particular reference is made in these submissions to s 13D(3), which provides:

(3)To avoid doubt, proceedings (however described) before a sporting administration body or the Court of Arbitration for Sport or other sporting tribunal that relate to sports doping and safety matters are proceedings in connection with this Act or the regulations.

Reference is then made to sub-s 13(1)(k), which provides that:
(1)The NAD Scheme must:
…
(k) authorise the CEO [of ASADA] to present:
(i)findings on the register mentioned in paragraph (i); and
(ii)additional information;
at hearings of the Court of Arbitration for Sport and other sporting tribunals, either:
(iii)at the request of a sporting administration body; or
(iv)on the CEO’s own initiative;

These provisions are, it is contended, also to be read with clause 4.13 of the NAD scheme. Clause 4.13 of that scheme provides as follows:
4.13 Presentation of cases
(1)For paragraph 13(1)(k) of the Act, the CEO may present at a hearing of the Court of Arbitration for Sport or another sporting tribunal:
(a)a finding that has been entered on the Register; or
(b)a recommendation by the CEO in relation to a finding.

(2)With the approval of the CEO, a sporting administration body may present a finding on the Register to the Court of Arbitration for Sport or another sporting tribunal.
(3)Giving an approval under subclause (2) does not prevent the CEO from appearing before, or giving information to, the sporting tribunal.

Reference is also made to clause 1.05, which defines the expression “sporting tribunal” as follows:
sporting tribunal means CAS or a body approved by the CEO that convenes from time to time to hear allegations of anti-doping rule violations against athletes, support persons and other persons in order to:
(a)determine whether an anti-doping rule violation has occurred; and
(b)determine appropriate sanctions where an anti-doping rule violation is found to have been committed; or
(c)hear appeals.

Finally, reference is made to r 2.04(k), which is as follows:
2.04 Sporting administration body rules
A sporting administration body must:
…
(k)allow the CEO to present anti-doping cases at hearings unless the CEO has approved the sporting administration body presenting its own case; and
…

Critically, in terms of these supplementary submissions, and the issues now before the Court, none of the provisions of the ASADA Act or the ASADA Regulations with respect to the NAD scheme to which ASADA has referred make any reference to the procedure before the tribunal, or under the NAD scheme, as being an arbitration of any kind. Neither have either of the applicants, ASADA or the AFL, pointed to any other provision in the ASADA Act or the ASADA Regulations which provide that the NAD scheme is an arbitration scheme of any kind.[168] Consequently, on the face of these provisions, the ASADA Act does not constitute an Act which could be said to create a position that proceedings before the Tribunal are an arbitration or arbitrations “provided for” for the purposes of sub-s 1(6) of the domestic Victorian arbitration legislation, the Act. The position is, in my view, that the provisions of the ASADA Act and the ASADA Regulations with respect to the NAD scheme leave matters in the same position as considered previously. It is necessary to consider the nature of the proceedings and, for the preceding reasons, they are not properly characterised as arbitration proceedings.[169] An example has been given previously in these reasons where the legislature clearly intended a statutory arbitration regime to be the subject of the provisions of the domestic commercial arbitration legislation.[170]
[168]Including those referred to in the ASADA further supplementary submissions (11 December 2014) – Summary of “The Arbitration,” [1], particularly; and see Alavi supplementary submissions (10 December 2014), [6]-[9].
[169]And see Alavi supplementary submissions (10 December 2014), [10] and, in any event, as submitted by Alavi as set out in [11]-[15] of those submissions, the proceedings before the Tribunal are not being conducted under the ASADA Act.
[170]See above, [6].

ASADA also made further submissions in relation to whether the ASADA Act is to be regarded as “any other act” for the purposes of sub-s 1(6) of the Victorian domestic arbitration legislation, the Act.[171] In my view, were it necessary to decide this question – having decided that the ASADA Act is not “any other act” for the purposes of the domestic arbitration legislation, the Act - the contentions of ASADA in this respect are correct for the reasons advanced and on the basis of the material upon which they rely; save with respect to the further question.[172] The further question addressed in those submissions is whether a statutory arbitration under s 1(6) of the Act must be a “commercial” arbitration. In my opinion, the additional requirement that the arbitration must be “commercial” does apply with respect to the operation of the provisions of sub-s 1(6) of the Act. This is because those provisions use the word “arbitration”, though in the plural, which is, as indicated previously, a defined term in sub-s 2(1) of the Act by reference to the further definition in that sub-section of “domestic commercial arbitration”, which has the effect of applying the provisions of s 1 of the Act for the purposes of this definition. In my opinion, reading these provisions together, it is clear that if the arbitration “provided for in any other Act” is not also a “commercial” arbitration, then the provisions of sub-s 1(6) do not have the effect of applying to a “statutory arbitration” of this kind, no matter what its character.[173] Consequently, for the preceding reasons, even if ASADA were correct in seeking to invoke the application of the Act with respect to the NAD scheme under sub-s 1(6), the Act would, nevertheless, not apply, as the character of the NAD scheme does not change the nature of the proceedings before the Tribunal which, as I have found for the preceding reasons, are not “commercial” in nature, even if they were to be characterised as arbitration proceedings. Consequently, neither the Act, nor particularly s 27A of the Act, would be available to the applicants.
[171]Asada supplementary submissions, (5 December 2014), [4]-[6]. For ease of reference, these submissions are set out as follows:
4.Thus, s 1(6) picks up (and, necessarily, modifies) the definition of “arbitration” in s 2 of the CAA.
5.The CEO submits that the ASADA Act is within the meaning of “any other Act” in s 1(6) of the CAA.
5.1The CAA purports to bind the Crown in right of the Victoria and, insofar as the legislative power of the Victorian Parliament permits, the Crown in all its other capacities: s 1AD. Accordingly, the CAA is capable of binding the Crown in right of the Commonwealth.
5.2The reference to “any other Act” may mean “any other Act of the Victorian Parliament”: see the presumption by s 48(b) of the Interpretation of Legislation Act 1984 (Vic) (Interpretation Act). However the presumption in s 48 is subject to a contrary intention.
5.3There is a contrary intention in the CAA such that the expression “any other Act” in s 1(6) should not be limited to only Victorian Acts.
(a)Sub-sections 1AC(3) and (4) of the CAA indicate that, with the exception of s 356 of the Interpretation Act, other provisions of the Interpretation Act should not intrude on the achievement of the paramount object of the CAA as stated in s 1AC(1) – being “to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense”.
(b)The achievement of that purpose is best served by interpreting “any other Act” as meaning any Act in force in Australia which makes provision for an arbitration which is, in fact, conducted in Victoria.
(c)Such an interpretation keeps faith with the principal purpose of provisions such as s 48 of the Interpretation Act: that is, to guard against inadvertent extra-territorial operation of State legislation. Given that s 1(2) of the CAA provides that, subject to immaterial exceptions, the provisions of the CAA only apply if “the place of arbitration is in Victoria”, there is little warrant (if any) for interpreting “any other Act” as excluding the ASADA Acct. Indeed, given the fact that the Tribunal is adjudicating in Victoria, the terms of s 1AC(3) of the CAA lend strong support to an expansive approach to s 1(6).
(d)An expansive approach is also consistent with the general principle that the subject-matter with which an Act deals may displace the operation of provisions such as s 48 [See O’Connor v Healey (1961) 69 SR (NSW) 111 at 114; and Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405.]. Here, the local connotation is ordained by the stipulation that the CAA only applies to arbitrations conducted in Victoria: s 1(2). That substantial connection having been established, there is much to be said for the CAA applying to all arbitrations conducted in Victoria – whether conducted pursuant to arbitration agreements or statute (consistent with the interpretive requirement in s 1AC(3) of the CAA). Such an approach leads to no confounding of relations between legislatures because the concluding words of s 1(6) ensure consistency.
(e)It is also to be noted that s 54 of the Interpretation Act acknowledges that references to an “Act” in Victorian legislation may include Imperial and/or Commonwealth Acts. Section 54(3) also defines the word “Act” in s 54 to include Commonwealth Acts (this being the effect of s 59 of the Evidence (Miscellaneous Provisions) Acct 1958 (Vic)).
(f)The CCA is uniform legislation in all States across Australia and the Northern Territory and each has s 1(6) in identical terms. It would produce anomalous and absurd results if the uniform legislation was construed in a manner such that:
· all Commonwealth statutes were outside the reach of each State’s CAA; and/or
· each State legislation excluded arbitrations under interstate legislation that occurred within a State’s jurisdiction.
If the words “any other Act” s 1(6) include an Act of another State there is no basis for these words not to also pick up a Commonwealth Act.
5.4For the above reasons, proceedings before the Tribunal in which ASADA is presenting a case are a deemed “arbitration” to which the CAA applies. This is the case irrespective to whether the proceedings are conducted pursuant to an arbitration agreement.
6.A question arises as to whether the deemed statutory “arbitration” under s 1(6) must be a commercial arbitration. Section 1(6) does not, in terms, refer to a commercial arbitration. Having said that, the CAA is directed to resolution of “commercial” disputes: see s 1AC(1) referred to in 5.3(a) above. In any event, any necessary commerciality is present here: see [42]-[46] in the Submissions. In addition, the commerciality is shown by the fact that the CEO approved the code which is incorporated into “professional” player contracts [As to the breadth of “commercial transaction” in a legislative context, see PT Garuda Indonesia Ltd v ACCC(2012) 247 CLR 240 at [42] and [72].].
[172]Cf Alavi supplementary submissions (10 December 2014), [16]-[20].
[173]And see Alavi supplementary submissions (10 December 2014), [4], [5].

Conclusions and orders

For the preceding reasons, the applicants are not able to avail themselves of the provisions of s 27A of the Act in order to obtain the subpoenas as sought. The application must therefore be dismissed.

At the conclusion of the hearing of this application, there was discussion as to whether I should reserve my decision and deliver reasons and make orders on the basis of those reasons during the week commencing 15 December 2014 – that date being the Monday after the conclusion of the hearing the previous Thursday. Having considered matters, I was of the view that it was important that parties knew the position with respect to the application to enable them to prepare properly and to put their respective cases to the Tribunal at the commencement of the hearing on 18 December 2014. Accordingly, I delivered judgment on the application on Friday 12 December 2014, and read the following notes in Court in so doing:
Judgment
1.For the detailed reasons which will be published on a date to be advised next week, the Originating Application which was filed on 2 December 2014 by both ASADA and the AFL fails in all respects.
2.Briefly, the Application thus fails for a variety of reasons which flow from a number of findings I make, including that –
(1)Proceedings before the AFL Anti-Doping Tribunal are not properly characterised as arbitration proceedings;
(2)If, which in my opinion is not the case, these proceedings were properly characterised as arbitration proceedings, they are not properly characterised as “commercial” arbitration proceedings to which the Commercial Arbitration Act 2011 (“CAA”) applies; and
(3)There are no proceedings which are either expressly provided for under any other legislation (namely the Australian Sports Anti-Doping Act 2006 (Cth) or the regulations under that Act), or proceedings which are properly characterised as arbitration proceedings under such legislation which would attract the operation of sub-s 1(6) of the CAA.
3.Consequently, it follows that the provisions of the CAA do not apply to proceedings before the AFL Anti-Doping Tribunal, hence the provisions of s 27A of the CAA – which are relied upon in support of the Application for the issue of subpoenas – has no application.
Other issues
4.Other issues will be addressed in the published reasons – but which it is not necessary to address now as their determination will not affect the outcome.
5.The question of costs is reserved, subject to further submissions.
6.The applicants are to bring in orders to give effect to this judgment.

Following delivery of judgment and the reading of these notes, there was discussion and submissions on the question of costs. As a result of that discussion, costs on a standard basis were awarded against ASADA and the AFL in favour of the 34 players (separately represented as to 32 of the 34 and 2 of the 34) and Alavi. Alavi also sought a special costs order against the applicants. The issue of a special costs order as sought was reserved and arrangements made for the provision of short written submissions and determination of the issue on the papers. Orders were made accordingly with respect to those matters, on 12 December 2014.

[2014] VSC 635

19 December 2014