Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd

In the case of Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd, the parties were engaged in an arbitration proceeding in the Supreme Court of Western Australia. The applicant, Eastern Metropolitan Regional Council, sought orders regarding the conduct of the arbitration process. The respondent, Four Seasons Construction Pty Ltd, opposed these orders. The primary legal issue before the court was whether it should intervene in the arbitration process to ensure its proper conduct. This question hinged on the interpretation of Sections 14 and 47 of the Commercial Arbitration Act 1985. Section 14 grants broad discretion to the arbitrator in conducting the arbitration, while Section 47 allows the court to make interlocutory orders to ensure the arbitration proceeds properly. The court considered that while it had supervisory powers, it should not supplant the arbitrator's discretion but rather intervene only in clear cases where the arbitration's proper conduct was at risk.

Master Sanderson reasoned that the court should exercise its powers under Section 47 in a supervisory capacity, stepping in only when necessary to prevent the arbitration from proceeding in a manner likely to lead to an application to set aside the award. The court noted the tension between Sections 14 and 47 but concluded that the court should only act in clear cases. It was inappropriate for the court to substitute its judgment for that of the arbitrator. The court acknowledged the applicant's concerns about the arbitration's progress and the need for the arbitrator to address the primary legal question in a manner similar to a court. However, it emphasised that the applicant should first approach the arbitrator with its concerns and seek directions. Only if the arbitrator's response was unsatisfactory should the court consider making supervisory orders. On this basis, the court adjourned the application for a period to allow the applicant to engage with the arbitrator.