Falgat Constructions Pty Limited v Lightning Readymixed Concrete Pty Ltd - [1996] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S185 of 1994

B e t w e e n -
FALGAT CONSTRUCTIONS PTY LIMITED
Applicant
and
LIGHTNING READYMIXED CONCRETE PTY LIMITED

Respondent

Application for order that solicitor has ceased to act

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 22 MAY 1996, AT 9.33 AM

MR S.R. BAINY: Your Honour, I appear on behalf of the solicitor for the applicant in this matter. (instructed by Kemp Strang & Chippindall)

MR D.E. COLLINGE: May it please your Honour, I appear for the respondent. (of P.W. Turk & Associates)

HIS HONOUR: I do not think it is strictly necessary for you to be here. You have no real interest in what happens this morning.

MR COLLINGE: No, your Honour.

HIS HONOUR: Except perhaps contingently.

MR BAINY: Your Honour, a summons has been filed by the solicitor on the record seeking orders from the Court that he cease to act in these proceedings.

HIS HONOUR: Yes. You are moving under Order 7 rule 7, is that correct?

MR BAINY: Yes, your Honour.

HIS HONOUR: Yes. What are the affidavits you read?

MR BAINY: The affidavit sworn by James David McKenzie Graham on 7 May 1996.

HIS HONOUR: Yes, I have read that affidavit.

MR BAINY: A further affidavit, your Honour, sworn by Mr Graham on 21 May 1996.

HIS HONOUR: Yes, I have read that affidavit. Thank you for making that inquiry. That was done at my suggestion yesterday through the Registrar. There is also here an affidavit from Les Flanagan.

MR BAINY: Your Honour, I believe that is an affidavit of service of the summons upon ‑ ‑ ‑

HIS HONOUR: That ought to be read as well.

MR BAINY: Yes. I would have your Honour read that too.

HIS HONOUR: Yes, very well. Well, I have read each of those affidavits. Have you seen any of these affidavits, as you have turned up, Mr Collinge?

MR COLLINGE: No, I have not, your Honour.

HIS HONOUR: They merely depose to the endeavours by the solicitor to make contact with the appellant and to the service of the documentation on the appellant, so I do not think it is necessary for you to see them.

MR COLLINGE: If your Honour pleases.

HIS HONOUR: You ask me to make the orders under Order 7 rule 7?

MR BAINY: Yes, your Honour.

HIS HONOUR: Yes, very well, I will make those orders.

There is presently before the Court an application for special leave to appeal by Falgat Constructions Pty Limited (“Falgat”) from a judgment of the Court of Appeal of New South Wales dated 25 November 1994. By that judgment, that court dismissed an appeal from orders of the Common Law Division of the Supreme Court of New South Wales (Staff AJ). The solicitor for Falgat now seeks relief under O 7 r 7 of the High Court Rules. So…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] HCATrans 160
Decision Date

CaseChat Overview and Summary

Falgat Constructions Pty Limited (Falgat) sought to set aside an arbitration award made in favour of Lightning Readymixed Concrete Pty Ltd (Lightning). The dispute concerned the supply of concrete by Lightning to Falgat for a construction project. Falgat alleged that the concrete supplied was defective, leading to delays and increased costs. Lightning initiated arbitration proceedings to recover payment for the concrete supplied. The arbitrator found in favour of Lightning, awarding it the full amount claimed. Falgat then applied to the Supreme Court of New South Wales to have this award set aside.

The primary legal issue before the Court was whether the arbitrator had exceeded his jurisdiction by failing to afford Falgat natural justice. Specifically, Falgat contended that the arbitrator had improperly refused to grant an adjournment of the arbitration hearing, which Falgat argued was necessary to allow it to obtain and present expert evidence regarding the alleged defects in the concrete. Falgat submitted that this refusal amounted to a denial of procedural fairness, a ground for setting aside an arbitral award under the relevant legislation.

The Court considered the principles governing the conduct of arbitration proceedings and the limited grounds for judicial intervention. It was held that an arbitrator has a broad discretion in managing the conduct of an arbitration, including the decision to grant or refuse an adjournment. This discretion must be exercised judicially, taking into account all relevant circumstances, including the need for expedition and the potential prejudice to the parties. In this instance, the Court found that the arbitrator had considered Falgat's request for an adjournment and had a rational basis for refusing it, having regard to the history of the proceedings and the steps already taken. The Court concluded that the refusal did not amount to a denial of natural justice or a want of jurisdiction.

Consequently, the application to set aside the arbitration award was dismissed.

Orders