IBM Australia Limited v Rothmans Distribution Services Limited

[1991] HCATrans 187

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S26 of 1991

B e t w e e n -

IBM AUSTRALIA LIMITED

Applicant

and

ROTHMANS DISTRIBUTION SERVICES

LIMITED

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 AUGUST 1991, AT 12.51 PM

Copyright irt the High Court of Australia

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MR C.R. EINSTEIN, QC:  May it please the Court, I appear

with MR R.J.POWELL, for the applicant. (instructed

by Freehill Hollingdale & Page)

MR T.F. BATHURST, QC: If the Court pleases, I appear with

my learned friend, MR R.M. SMITH, for the

respondent. (instructed by Clayton Utz)

MASON CJ: Yes, Mr Bathurst. Mr Einstein.

MR EINSTEIN:  Your Honours, earlier today, in an attempt to

shorten the amount of time we may need to take on

this application, we furnished to my learned friend

a copy of some short written submissions and we

would be grateful if Your Honours would receive

them, because it will save me some time.

MASON CJ: Yes, certainly we will receive them.

MR EINSTEIN:  Thank you. I have four copies. Your Honours,

we would seek to deal firstly with why it is that the instant proceedings raise questions of law of public importance, because of their general

application. A question arises as to whether or

not this Court in Government Insurance Office of

New South Wales v Atkinson-Leighton Joint Venture,

146 CLR 206, which I think Your Honours have been

given by my learned friends as an authority and which we have four copies of if that is not the

case. I will pass them up, thank you.

The question arises as to whether or not this

Court in that case held that in the case of every submission to arbitration expressed in general

terms, such as to determine any controversy or

claim related to this agreement, the parties must

be taken to have impliedly agreed to confer upon

the arbitrator authority to exercise the powers

conferred upon courts of law by statute. That that

was the holding appears to have been the

understanding of the learned President of the

Court of Appeal as appears from the application

papers at page 51 point 8, to page 52.

Alternatively, it is our submission that the

true principle is not that which we have set out in

l(a) of our written document but is, in fact, that

notwithstanding the framing of submissions to

arbitration in such general terms, it is proper to

look at the terms of individual agreements and at

the factual matrix in order to determine whether,

for example, parties may be taken to have impliedly

agreed to have withheld from conferring upon the

arbitrator authority to exercise some or all of the

powers conferred upon courts of law by particular

statutes.

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The approach which the court below appears to

have taken, in other words, appears to have been

this: even if one has many indicia which suggest

that the parties intention was not to confer upon

an arbitrator powers to be found in the

Trade Practices Act, once one has a general clause

of the type we have set out in l(a), by reason of

this Court's holding in Atkinson-Leighton, that is

the end of the matter and one will see from the

application papers at page 45 point 2, that the

President, with whom Mr Justice Clarke and

Mr Justice Handley agreed, said:

Uninstructed by authority, I would agree that

there is much force in the appellant's

argument that the remedies under the

Trade Practices Act, being provided by

statute, are such as to be confined to their

statutory application and are not available to

an arbitrator receiving a dispute by

contractual words expressed in very general

language. However, the matter is not free of

binding law.

His Honour then quoted from Atkinson-Leighton,

and at page 51 point 8 Your Honours will see said:

Until reversed or refined by the High Court

its holding binds this Court to conclude that

the submission to arbitration here was
intended to give the arbitrator authority to

provide the claimant with the relief available

to it in a court of law of competent

jurisdiction dealing with the dispute.

Likewise, Their Honours Mr Justice Clarke and

Mr Justice Handley appear, with respect, to have

taken the same approach. That the true principle

is as set out in l(b), in our respectful

submission, cannot be gainsaid. That it is the

principle appears clearly from a judgment which was

expressly approved by Mr Justice Stephen in

Atkinson-Leighton, when His Honour referred to the

judgment of Donaldson Jin Bremer Vulkan Schiffbau

Und Maschinenfabrik v South India Shipping and

Mr Justice Stephen in Atkinson-Leighton actually

gives the pages of Mr Justice Donaldson's judgment

and on one of those pages Mr Justice Donaldson

said:

Whilst it is always open to the parties to

agree to curtail the arbitrator's jurisdiction

and it seems very plain that that is always open to

the parties.

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In l(c) we put that if the true principle is

as set out in (b), what is the proper approach to

be adopted in determining whether to imply into the

parties submission to arbitration, expressed in

such general terms, a term that the arbitrator is

to have authority to give remedies under
sections 82 and 87 of the Trade Practices Act,

bearing in mind two particular matters, firstly the nature and width of such remedies and secondly, the

private and necessarily evanescent status of

arbitrators? In relation to that private and

evanescent status of arbitrators,

Mr Justice Stephen referred to that difficulty in

terms of proper construction of arbitration

submission clauses in Atkinson-Leighton, but did

not have the occasion which this case throws up to

closely examine just what that means.

In paragraph 2 we put that in the case of a

submission to arbitration expressed in general

terms, it is important that guidance be given as to

which, if any, remedies under sections 82 and 87 of

the Trade Practices Act are necessarily excluded

from the ambit of an arbitrator's powers and we put

the public importance.of that question of law in

ways which seem tolerably clear. It is the case,

Your Honours, that almost in every commercial case

these days, certainly in a very great deal of those

which I have been involved in, one side or the

other endeavours to invoke the provisions of

section 52 and the ambit of an arbitrator's powers,

if he be taken by a general clause, necessarily to

have had confided in him Trade Practices Act

powers, such as section 82 and 87, makes plain that

it is particularly critical to closely understand a

decision of the United Kingdom Court of Appeal,

Ashville Investments Ltd v Elmer Contractors Ltd,

(1988) 3 WLR 867.

As we put in paragraph 3 of this document, from 1915 until 1987 the United Kingdom

Court of Appeal had held that an action for damages

for fraudulent misrepresentation inducing the

plaintiff to enter into a contract with the

defendant was not an action in relation to the

contract and was not an action upon the contract

and was not subsumed within a submission to

arbitration of questions arising upon or in

rel~tion to or in connection with the contract".

So that as late as 1987 the United Kingdom

Court of Appeal had affirmed that reasoning. But

in 1988 the same Court of Appeal reversed that

approach. The earlier approach of the United

Kingdom Court of Appeal was accepted by

Mr Justice Mahoney in a 1985 decision of the

New South Wales Court of Appeal, Mir Bros v

Atlantic Constructions, but the decision of the

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Court of Appeal in respect of which the applicant now seeks leave to appeal, firstly, recognized that the United Kingdom Court of Appeal had rejected a

long line of authority and secondly, determined to

follow the new approach of the United Kingdom

Court of Appeal.

That same question has been considered by the

Supreme Court of South Africa and the New Zealand

Court of Appeal and our submission is that in

relation to that point of principle, particularly

bearing in mind that we are dealing here with a

submission to arbitration clause, which is in

general terms and which we would submit is likely

to be found in very, very many contracts in various

areas of discourse, it is appropriate that

Your Honours determine the matter as it applies to

Australia.

On page 4 we seek to answer the questions

which we imagined Your Honours would put, namely,

why is it incorrect to regard this case as

involving only a simple question of construction of

a particular document?, what is the special feature

of this case which warrants Your Honours'

attention? The appeal, we submit, in paragraph 4

involves a close consideration of the proper

approach to be taken in deciding in the case of submissions to arbitration expressed in general

terms, whether the parties must be taken to have
impliedly agreed to confer upon the arbitrator

authority to exercise any, and if so, which of the

powers conferred upon courts of law by sections 82

and 87.

MASON CJ:  Mr Einstein, if I can interrupt you at that

point, we will take an adjournment now and we will

resume at 2 o'clock.

MR EINSTEIN: If Your Honours please.

AT 1.03 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

MASON CJ: Yes, Mr Einstein.

MR EINSTEIN:  May it please the Court. I had reached page 4

of the written document and paragraph 5 of it

wherein we seek to put that the general application

of submissions to arbitration in general terms is

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plain and that, in our submission, the special

features of the case which warrant the attention of
the High Court include: firstly, the fact that
claims for relief seeking to invoke remedies

provided by the Trade Practices Act following

infringement of section 52 have become extremely

common; secondly, the fact that this Court has not

had occasion to consider whether by reason of the
private and evanescent status of arbitrators the
remedies under the Trade Practices Act are to be

confined to their statutory application and the

parties to a contract ought not in the absence of

use, as we would put, of very clear language, be
taken to have confided such remedies to an

arbitrator receiving a dispute by contractual

awards expressed in very general language. Next

the fact that the reach of the principle expounded

in GIO v Atkinson-Leighton requires to be carefully

explained so as to make plain that the

Court of Appeal was not bound in the way it is

supposed by that principle.

Likewise, Your Honours, Mr Justice Rogers, I

think, uses the words "mandated" when referring to

Your Honours' decision in Atkinson-Leighton. The

fact that as explained by Mr Justice Rogers at

page 8 of the application papers and by the

President at page 32 to 33 of the application

papers, arbitrations have become far more common in

resolution of commercial disputes, giving rise to

very real questions as to the proper approach to be

taken to questions of construction of arbitration

submission clauses. Mr Justice Rogers deals, I

think, in a page and a half of His Honour's

judgment, with the change in approach which

His Honour suggests should now be taken to the

older approach which was that arbitration clauses

be construed narrowly and parties be inferred to

have intended only to submit to arbitrators fairly

specialized disputes, as opposed to the present

situation. The qualitative difference between what we	refer to as the rectification debate, the subject
of many of the decisions discussed below, and the
Trade Practices debate, which requires resolution
in the instant proceedings, may I dwell for a
moment on what we mean by (v). The authorities
which had previously dealt with whether or not a
clause in which parties agreed to submit a matter to arbitration did or did not include claims such
as rectification, went first one way in the
United Kingdom Court of Appeal and recently have
gone another way. None of those cases have had to
consider the reach of legislation such as the
Trade Practices Act or an Act similar to the
Trade Practices Act in terms of the width and reach

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of the remedies. May I take, for example,

Mr Justice Donaldson's judgment in the case of

Bremer Vulkan Schiffbau Und Maschinenfabrik v

South India Shipping Corporation Ltd, which went to

the House of Lords and pass to Your Honours a copy

of that decision.

This is the case where Mr Justice Donaldson's

judgment was expressly referred to with approval by

Mr Justice Stephen in Atkinson-Leighton and there

is a passage at page 921 of this decision, Bremer

Vulkan v South India Shipping Corporation, (1981)

AC 909, at page 921 where, in the middle of the

page, Mr Justice Donaldson said:

Whilst it is always open to the parties

to agree to curtail the arbitrator's
jurisdiction, other than his power to state an

award in the form of a special case for the

opinion of the High Court or in any other
respects which are contrary to law, if this is

not done I think that an arbitrator has the

same power as do the courts to make peremptory

orders -

and so on. May I drop down in that paragraph to

the sentence which begins:

Their problems are the same and so should be the solutions which they adopt. In my

judgment, parties who submit disputes to

arbitration impliedly clothe the arbitrators

with jurisdiction to give effect to their

rights and remedies to the same extent and in

the same manner as a court, subject only to

the well-known exception in relation to

injunctive orders and the grant of a remedy,

such as rectification -

and Your Honours see the words:

which would indirectly extend their own

jurisdiction.

Likewise in their work on commercial arbitration,

the authors ..... at page 23 point 10, point out that
there must be some limit to the remedies which an

arbitrator may have confided upon him and this

general question of, what I have referred to as, a

qualitative difference was not referred to by the

Court of Appeal in its judgment. We did put to the
Court of Appeal that if, for example, one refers to

a judgment such as that of Ashville Investments Ltd

v Elmer Contractos Ltd, which I will hand up in a

moment, one will find Lord Justice May, when

referring to the Misrepresentation Act 1967 - I

will pass that up with Your Honour's· permission.

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This is the judgment which Mr Justice Rogers and the Court of Appeal followed, (1989) 1 QB 488.

Relevantly at page 499 point 8, Lord Justice May

said, when referring to the question - - -

MASON CJ:  You said page 499 point 8?

MR EINSTEIN: Page 499, if Your Honour pleases.

McHUGH J:	No, you have handed us the wrong case.
MR EINSTEIN:	I am so sorry.
MASON CJ:	I have the Weekly Law Reports copy.

MR EINSTEIN:  I see. Would Your Honours permit me to read a

sentence from the Queens Bench Report.	My
instructing solicitor and I have had a	crossing of
wires.

MASON CJ: Yes.

MR EINSTEIN: His Honour said - and then perhaps I can hand

this to Your Honour the Chief Justice, I do

apologize for that mistake.

MASON CJ: Well I will accept Mr Einstein that you are

reading accurately from the report.

MR EINSTEIN: His Honour says:

For the reasons which I have given, I am

also driven respectfully to differ from the

obiter dictum of Purchas L.J. in Blue Circle

Industries .... ;that claims for damages for

misrepresentation and negligence do not arise "in connection with" a contract. I note that the ground upon which Purchas L.J. expressed

his opinion was that "to refer such matters to

an arbitrator would in effect be inviting him

to adjudicate upon his own jurisdiction." In

some cases this may be so and be objectionable

for that reason, but it is not so in the
instant case and the Misrepresentation Act
1967 preserves or provides a cause of action

in damages for an innocent party to whom an

innocent misrepresentation has been made in

lieu of rescission, that is to say without
striking down the contract so induced.

And the relevance of that passage, with respect, we
would submit, is that the question of the ability

or no of a court to strike down the contract or of

an arbitrator to strike down the contract, is all

important when referring to the Trade Practices Act

so that, as one knows, looking at section 87 of the

Trade Practices Act, an arbitrator or a court - and

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if an arbitrator has these powers, an arbitrator

too - has the widest of powers to vary a contract;
to declare it void ab initio and to generally
tamper, if I may use that word, with the contract,

in a way which, in our respectful submission, the

parties could not be said to have intended. The

parties have chosen to maintain the consensual

contract as the focal point in the network of

relations between them and all other matters are to

be judged by relation back to that consensual

contract.

The subtle shift in emphasis, which the

Court of Appeal judgment and that of

Mr Justice Rogers has given to the principle expounded in Atkinson-Leighton leading to trade practices claims being said to be related to the contract, is a difference in a qualitative way to

that which the draftsman envisaged or to that which

had been the subject of the debate about

rectification. In the Court of Appeal the learned President referred to a case of Drennan v Pickett,

(1983) 1 Qd R 445, which also we are able to hand

to Your Honours.

DEANE J: Is there any suggestion in this case that the

Trade Practices Act powers could be availed of to vary or alter the contract?

MR EINSTEIN: Yes, Your Honours. My learned friend in the

Court of Appeal said that the applicants were

relying upon the trade practices provisions to vary

the contract.	I have the transcript before the
Court of Appeal here.	One of the orders which the

applicant seeks involves the return of certain

goods and at page 38 point 10 of the transcript in

the Court of Appeal my learned friend, Mr Bathurst,

said that the orders sought under section 87 were

orders in relation to return of certain goods
varying the contract if anything, not declaring the

contract void, and the difficulty that we have,

Your Honours, is that my learned friends have not

been bound to be comprehensive by the relief which

they have sought. They were asked for particulars

as to the relief sought and they have said that the

relief sought includes various matters.

Your Honours will find that in the High Court

application papers. It is a letter of particulars

which I will ask my learned junior to try to

locate.

So that, with respect to the criteria which we

understand this Court applies, namely one needs to

have a special case, a question of law of public

importance because of its general application and

one which is thrown up by the proceedings that are

before the Court, this is a case in which, with

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respect, the Court of Appeal saw itself as bound in
a way in respect of which it was not bound by the
decision in Atkinson-Leighton. In that decision

Your Honour the Chief Justice dealt with the

principles and with the question of interest which,

of course, was squarely in focus in the case. But
the Court of Appeal failed to appreciate, in this

case, that the tasks before the court are not only

to construe the words in the relevant clause and
then to take the Atkinson-Leighton decision and to

hold that by reason of the subject dispute being

subsumed within the relevant words properly

construed, that is a dispute in respect of which
the arbitrator has every power which a court of law
has, the Court of Appeal failed to appreciate that
notwithstanding the width of the clause but by
looking at the factual matrix and at the detail of
the particular case, this Court did not hold in

Atkinson-Leighton that the parties have to be taken

as having agreed to confer upon the arbitrator the

fullest of jurisdictions, that is to say, there is

a next step beyond construing the relevant clause

and that step as always is to apply the base or

principle of law that Your Honour Mr Justice Mason

the Chief Justice, in Atkinson-Leighton, refers to,

that is to say the principle that the scope of an

arbitrator's jurisdiction and powers in a given

case depend fundamentally upon the terms of the

arbitration agreement, that is, upon its proper

construction in all of the circumstances, and in

our respectful submission, that is a difficulty

thrown up by the Court of Appeal decision and a

difficulty which this Court is able to clarify

because no other tribunal than this Court can

properly explain, as. it needs to be explained, the

reach of that decision.

On the merits, the parties cannot, in our submission, be really said to have intended to

confer upon an arbitrator the complex question of

whether or not he is to be given power to give the
tortious type,. section 82 damages.	Your Honours

are well familiar with Your Honours decision in the

Gates case and with the situation in which it has

now been authoritatively held that absent
exceptions, by and large, the appropriate type of
damages which breach of section 52 will lead to,
wilJ be the tortious type damages, not those which

obtain in a breach of contract case. In this case

the relevant clause, dealing with the damages which

were to be permitted, was clause 7 and clause 7 is

to be found in the appeal papers at the

commencement of Mr Justice Rogers' judgment at

page 2 of the appeal book. Clause 7 provided that:

Except as expressly set forth in this

Agreement IBM does not make any

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representation, conditions or warranties,

statutory or otherwise, including, but not

limited to, the implied warranties or

merchantability and fitness for a particular

purpose.

The parties agree that the Customer's remedies

against IBM hereunder shall be limited to

actual money damages -

and so on.

In no event will IBM be liable for special,

indirect or consequential damages.

If the decision of the Court of Appeal and of

Mr Justice Rogers stands, one has the very

difficult task which an arbitrator must embark

upon, namely to determine how to read that clause
in terms of his undoubted entitlement to utilize

his section 82 trade practices power to order

tortious-type damages and likewise. The parties

cannot seriously, in our submission, be said to

have intended that the arbitrator determine the

very difficult issues which arise in relation to

whether an exclusion clause should be allowed to

defeat a section 52 claim, and we have brought

along today, in case Your Honours are interested to look or think it necessary to look at them, some of the recent decisions in terms of exclusion clauses,

which make it fairly plain that it is certainly a

difficult exercise to work out, even for a court of

law, whether the existence of an exclusion clause

in the contract operates so as to remove what

otherwise may be said to have been antecedent,

misleading and deceptive conduct and those types of

difficult issues, difficult enough for a court of

law, in our submission, point up the high

unlikelihood that entities who would sign a

contract, such as this contract, would have

intended to have the arbitrator determine those

matters.

Your Honours, there are, additionally to those

matters, two particular points that we seek to

raise: one is to make plain that there is a

difficulty with the form of declaration which

His- Honour Mr Justice Rogers actually made and

which the Court of Appeal permitted to remain in

place. That declaration appears in the order of

Mr Justice Rogers at page 19 of the appeal book,

that:

Upon the proper construction of clause 9 of

the Agreement, the Arbitrator has the

jurisdiction which this Court has to award

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relief and otherwise make orders under the

Trade Practices Act 1974.

This was a case in which it seems that the

Court of Appeal, although different of the judges

have different approaches to some of the matters which the arbitrator in their views did not have power to exercise, in which it seemed common

ground, for example, that the arbitrator had no

power to declare the contract to be void ab initio. have left in place and which therefore binds the
parties, was inappropriate and remains

inappropriate.

DEANE J:	Was that pointed out to the Court of Appeal?
MR EINSTEIN:	No, it has not been, Your Honour.

DEANE J: Then it is not for us to get involved.

MR EINSTEIN:  Your Honour, I accept what Your Honour says,

save for one matter. The difficulties that we have

is that the Court of Appeal, through the different

judges of the Court of Appeal, expressed different

views as to which of the remedies and which not the

arbitrator may have power to - - -

DEANE J: All the more reason why it should be discussed in

the Court of Appeal, I would have thought.

MR EINSTEIN: Well, Your Honour, I will not stay then on

that point.	I wish to indicate it as one of the
grounds for the application.	The second was to

refer very briefly to the constitutional questions

which the learned trial judge, Mr Justice Rogers,
chose not to have to deal with and which, if the
Court of Appeal decision be correct and

His Honour's judgment be correct, are not necessary

to be gone into.

case that, pursuant to Part 72 of the It was our case and remains our

Supreme Court Rules, it was appropriate and proper

for the Supreme Court to refer to the arbitrator
questions of fact which raise the trade practices
issues, but that it would be beyond the
constitutional power relevantly for the
supreme court - as sought in the second of the

ord~rs in my learned friend's summons - to refer

out to the arbitrator all questions which arise in

respect of the Trade Practices Act.

Then, Your Honours will have noted that

Mr Justice Handley took a different approach to

others of the judges of the Court of Appeal in

dealing with the section 88F situation. His Honour

Mr Justice Handley, whose reasons for judgment

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commence at page 66, was of the view that, at

page 69, a submission in the form before the court:

without more, would not confer on the

arbitrator any authority to exercise the

powers of specialists tribunals established

under State law such as the Industrial

Commission, the Commercial Tribunal, or the

Landlord and Tenant Tribunal.

not being courts of law. But, Your Honours, taking

for example the section 88F power of the

Industrial Commission, this itself is a case in

which, in our submission, the parties may, either

in the claim or the cross-claim, have sought relief

under section 88F and if the reach of the decision

of this Court in Atkinson-Leighton is to be read as

a general rule, then there is no particular reason

why it is that the arbitrator cannot exercise

section 88F powers.

So that, with respect, the matter is one of public importance because of its general

application, because of the general nature of the

submission to arbitration, and because the

Court of Appeal mistakenly read itself as bound by Atkinson-Leighton. In the circumstances which now

obtain, where arbitrators are hearing matters every

day under submissions to arbitration expressed in

general terms, it is extremely important - and

certainly it is in this present case - that the

questions which have been raised by the Court of

Appeal which says, "Even if one has many indicia to

becomes critical for the conduct of commercial

suggest to the court that the parties intention was
not to invoke Trade.Practices Act power, once one

has a general clause, looking at the decision in

arbitrations.

In (1904) 1 CLR 391, one finds one of the

earliest cases, Donohoe v Britz, where the

Court had no doubt that the question of law sought

to be raised was one of importance and general

interest to the mercantile community. It is our

respectful submission that the width of the

arbitration clause and the necessity to look

closely at the powers of the arbitrator which may

be said to be confided in him by the parties, that

is, powers pursuant to the Trade Practices Act, be

closely monitored and that authoritative decision

be given on that matter.

This is an occasion in which this Court has

the ability to both clarify a 180 degree shift in
the United Kingdom Court of Appeal decisions from

1915 until 1987 and to determine whether or not

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His Honour Mr Justice Mahoney, as recently as in

the mid-80s, was correct in following those
decisions and, in addition, to rule upon the

appropriate way in which general submissions to

arbitration ought be construed when the wide-

ranging remedies given by the Trade Practices Act

becomes squarely in focus. Unless Your Honours

wish me to deal with any other aspect of the

matter, those are our submissions.

MASON CJ: Yes, thank you, Mr Einstein.

MASON CJ: Yes, Mr Bathurst?

MR BATHURST: If the Court pleases. It is our

submission that the -

DEANE J:  Mr Bathurst, what do you say about the form of the

order? The reasons of the Court of Appeal do not

seem to me to support it.

MR BATHURST: 

The reasons of the Court of Appeal do not

support it, we accept, to this extent but the Court
of Appeal and each of the judges of the Court of

Appeal certainly seem to take the view that the

arbitrator could not make an order destructive of

his own jurisdiction, whether he did that under

section 87 of at general law or otherwise.

DEANE J: But the President makes the point that the

arbitrator's orders can only operate consensually
with the result that any direct section 82-type
order operating, for example, as an injunction,
could only be obtained from the court acting on the
arbitrator's finding. Justice Clarke seems to also

make a similar point when he points out that the

parties have to come back to the court to get

enforcement of the award.

MR BATHURST: That is so.

DEANE J: Well, that is simply inconsistent with the

declaration that is made.

MR BATHURST: It is inconsistent -

DEANE J:  I should have said it seems at first glance that

tha~ is inconsistent with the declaration that is

made.

MR BATHURST:  If what is said by the declaration is that

without consensus of the parties or without

enforcement with leave of the court the

arbitrator's award can be enforced, we would

accept, with respect, that what Your Honour says is

correct.

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DEANE J:  Is there any difficulty that you see in going back

to the Court of Appeal to have the form of the

declaration discussed?

MR BATHURST:  We would not oppose any application made by my

learned friend to have the form of the declaration

discussed in the Court of Appeal.

DEANE J: Thank you.

MASON CJ:  We need not trouble you further, Mr Bathurst?

MR BATHURST: If the Court pleases.

MASON CJ:	Do you want to say anything on that aspect of the matter, Mr Einstein?
MR EINSTEIN:	No, Your Honour.
MASON CJ:	We see no reason for thinking that the Full Court

of this Court would reconsider the decision in

Government Insurance Office of New South Wales v

Atkinson-Leighton Joint Venture, (1981) 146 CLR
206. That being so, we consider that the decision

of the Court of Appeal is not attended with

sufficient doubt to justify the grant of special

leave to appeal.

It has been suggested that the declaration

made by Mr Justice Rogers at first instance which

was, in effect, affirmed by the Court of Appeal,

does not accurately reflect the judgments delivered

by the members of the Court of Appeal. That is a

matter that should be raised with the Court of
Appeal and Mr Bathurst, for the respondent, has

indicated that he will offer no objection to that

course. The application for special leave to

appeal is therefore refused.

MR BATHURST:  We would seek costs, if the Court pleases.

MASON CJ:	You do not oppose costs?
MR EINSTEIN:	No, Your Honour.

MASON CJ: The application is refused with costs.

AT 2.34 PM THE MATTER WAS ADJOURNED SINE DIE

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