Elspan International Limited & Ors v Aerospatiale Holdings Australia Pty Limited

The applicants, Elspan International Limited and others, sought a stay of a reference order from Gaudron J in the High Court of Australia. They were seeking special leave to appeal a decision of the Court of Appeal of New South Wales. The respondents were Aerospatiale Holdings Australia and Eurocopter International, and Anthony Grieve Pty Limited.

The primary legal issue before the High Court was whether the Court of Appeal erred in refusing leave to appeal a decision concerning the privacy of an arbitration. The applicants argued that their fundamental right to privacy in arbitration had been sacrificed for commercial expediency, and that this sacrifice was wrongly permitted under either Part 72 or section 47 of the Commercial Arbitration Act. They contended that the Court of Appeal should have granted them leave to raise this issue.

Gaudron J considered the applicants' submissions regarding the Court of Appeal's refusal to grant leave. The applicants acknowledged a correction regarding the practice of the New South Wales Court of Appeal in not ordinarily giving reasons for granting or refusing leave to appeal. However, they maintained their substantive point that they were denied the right to a private arbitration and that the Court of Appeal was wrong in law to refuse them leave to argue this. The Court noted that even if special leave to appeal were granted, it would be unusual for the High Court to hear the substantive merits of the case, which would typically be referred back to the Court of Appeal.

The application for a stay of the reference order was being heard. The applicants also sought to address an issue of waiver, submitting that their participation in the arbitration had been expressly without prejudice and under reservation of rights, as evidenced by written submissions placed before the arbitrator/referee.