JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: D & M (AUSTRALIA) PTY LTD -v- CROUCH DEVELOPMENTS PTY LTD [2011] WASCA 109
CORAM: MARTIN CJ
NEWNES JA
MURPHY JA
HEARD: 8 APRIL 2011
DELIVERED : 2 MAY 2011
FILE NO/S: CACV 65 of 2010
CACV 66 of 2010
BETWEEN: D & M (AUSTRALIA) PTY LTD
Appellant
AND
CROUCH DEVELOPMENTS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :BLAXELL J
Citation :D & M (AUSTRALIA) PTY LTD -v- CROUCH DEVELOPMENTS PTY LTD [2010] WASC 130
File No :GDA 2 of 2009, ARB 8 of 2009
Catchwords:
Arbitration - Application for leave to appeal award - Whether manifest errors of law on the face of the award - Whether implied term was inconsistent with express terms of contract - Turns on own facts
Arbitration - Technical misconduct by the arbitrator in finding an implied term which had not been pleaded - Whether matter should have been remitted to the arbitrator - Discretionary decision - Need to demonstrate error
Legislation:
Commercial Arbitration Act 1985 (WA), s 38, s 42(1), s 43
Supreme Court Act 1935 (WA), s 60(1)(f)
Result:
Leave to appeal refused
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P G McGowan
Respondent: Mr B P Wheatley
Solicitors:
Appellant: Lavan Legal
Respondent: Mossensons
Case(s) referred to in judgment(s):
Agropol Trading Praha sro v Podex sro [1997] EWCA 3246
Allmark v Mossensons (a firm) [2006] WASCA 127
BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40; (1977) 180 CLR 266
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337
D & M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2010] WASC 130
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303
IOOF Building Society Pty Ltd v Foxeden Pty Ltd [2009] VSCA 138; (2009) 23 VR 536 [133]
Lamac Developments Pty Ltd v Devaugh Pty Ltd [2002] WASCA 245; (2002) 27 WAR 287
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Masawa Australasia Pty Ltd v J Corp Pty Ltd [2000] WASC 5
Monteleone v Owners of the Old Soap Factory [2007] WASCA 79
New Generation Enterprises Pty Ltd v Western Australian Planning Commission [2007] WASCA 89
O'Keefe v Williams [1910] HCA 40; (1910) 11 CLR 171
Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1970) 1 BLR 111
Peters (WA) Ltd v Petersville Ltd [2001] HCA 45; (2001) 205 CLR 126
Promenade Investments Pty Ltd v State of New South Wales (1992) 26 NSWLR 203
Rapid Building Group Ltd v Ealing Family Housing Association…
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- AGLC
- D & M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2011] WASCA 109
- Case
- [2011] WASCA 109
- Decision Date
CaseChat Overview and Summary
The court held that an error of law would be considered manifest if it was evident or obvious rather than merely arguable. The court considered the legislative intent that leave to appeal should not be readily given and that court intervention should be strictly limited. The court found that the alleged implied term was not pleaded, and therefore the arbitrator’s finding on the implied term was a manifest error of law. However, the court noted that procedural unfairness amounting to a substantial miscarriage of justice was required to warrant setting aside the award and remitting the matter back to the arbitrator.
The court determined that while the arbitrator’s procedural misconduct was evident, it did not amount to a substantial miscarriage of justice that would warrant the court setting aside the award and remitting the matter back to the arbitrator. The court declined to exercise its discretion to remit the matter back to the arbitrator for reconsideration, and thus dismissed the application for leave to appeal.
The court did not make any orders for costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
An error of law will be 'manifest' when there are 'powerful reasons for considering on a preliminary basis, without any prolonged adversarial argument, that there is on the face of the award an error of law': New Generation Enterprises Pty Ltd [4]. The error must be evident or obvious rather than merely arguable: New Generation Enterprises Pty Ltd [48]; Promenade Investments Pty Ltd v State of New South Wales (1992) 26 NSWLR 203, 225. The underlying legislative intention is that leave to appeal should not readily be given, and that the intervention of the court should be strictly limited: Vodafone Pty Ltd v Supercall Pty Ltd [2003] NSWSC 302 [64]. The owner, in this appeal, alleges that:Having found that the arbitrator misconducted the arbitration, the Learned Judge erred by failing to set aside the award and remit the matter back to the arbitrator for reconsideration pursuant to the terms of sections 42(1) and 43 of the Commonwealth Arbitration Act 1985 (WA). In Shirley Sloan Pty Ltd v Merril Holdings Pty Ltd [2000] WASC 99 [27] ‑ [28], Steytler J said:...in Thiess Contractors Pty Ltd v Water Corporation of Western Australia, unreported; SCt of WA; Library No 970561; 28 October 1997 ... Parker J ... said (at 37 ‑ 38):'It is well settled that in contexts such as s 42 of the Act, misconduct may include a mistake in procedure which has, or may have, unjustly prejudiced a party: Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570 at 587, 588. The consideration of what constitutes misconduct for these purposes by Marks J in Gas and Fuel Corporation of Victoria v Wood Hall Ltd [1978] VR 385 at 391 ff has received wide acceptance. The analysis by Marks J was relied on by each of the judges in Doran Constructions Pty Ltd v Health Administration Corporation of New South Wales (1994) 12 BCL 59, particularly at 62 per Cole JA, Gleeson CJ agreeing and at 63 per Kirby P (as he then was). In that case, as Kirby P pointed out at 63, the term "misconduct":"may not, by the authorities, amount to much more than such a mishandling of the arbitration as to be likely to amount to a substantial miscarriage of justice".The learned President referred to Williams v Wallis and Cox [1914] 2 KB 478 at 485. There was also acceptance of the decision of ... [Staughton J] in Edible Oil Products (Malaysia) ... [Bhd] v Jayant Oil Mills Private Ltd [1982] 2 Lloyds Rep 95 at 97 for the proposition:" ... the mere failure to put a party on notice of an argument as to a point which might be decided ... may not, in the context of an arbitration, necessarily amount to misconduct."From this brief identification of relevant authority, I would for present purposes accept that procedural unfairness may amount to misconduct, but that is not necessarily the case. What is to be discerned is that the procedure has, or may have, unjustly prejudiced a party in some respect material to the outcome. The notion bears much similarity to procedural unfairness amounting to a substantial miscarriage of justice.'There is no question as to the proposition that breach of the rules of natural justice amounts to 'misconduct' for the purposes of s 42(1)(a) of the Act. That is the effect of the definition of that term in s 4 thereof. The real question is whether, where there is misconduct of that kind, it is such as should attract an exercise of the discretion which s 42(1) affords to the court, on the application of a party to the arbitration agreement, to set aside the award either in whole or in part. It is unlikely that a court would exercise its discretion in that way, even in the case of a denial of natural justice, unless the denial was such as (to use the words of Isaacs J in Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570 at 588) 'has or may have unjustly prejudiced a party' in a respect material to the outcome of the arbitration (cf Doran Constructions Pty Ltd v Health Administration Corporation (NSW) (1994) 12 BCL 59 at 62 - 63 and Van Dongen v Cooper [1967] WAR 143 at 145).