JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: LAMAC DEVELOPMENTS PTY LTD -v- DEVAUGH PTY LTD [2002] WASCA 245
CORAM: MALCOLM CJ
MURRAY J
ANDERSON J
STEYTLER J
MATHEWS AJ
HEARD: 18 & 19 JULY 2002
DELIVERED : 4 SEPTEMBER 2002
FILE NO/S: FUL 172 of 2001
BETWEEN: LAMAC DEVELOPMENTS PTY LTD (ACN 009 337 213)
Appellant
AND
DEVAUGH PTY LTD (ACN 008 792 265)
Respondent
Catchwords:
Arbitration - Appeal - Leave to appeal - Whether right of appeal to Full Court from refusal of leave to appeal - Whether Full Court could grant leave to appeal where leave refused by a single Judge
Legislation:
Commercial Arbitration Act 1985 (WA) s 38(4)(b)
Supreme Court Act 1935 (WA) s 58(1)(b), s 60(1)(f)
Result:
Application for leave to appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr J C Curthoys & Mr G J Dunne
Respondent: Mr C B Edmonds SC & Mr J D Finlay
Solicitors:
Appellant: Slee Anderson & Pidgeon
Respondent: J D Finlay & Co
Case(s) referred to in judgment(s):
Aden Refinery Co Ltd v Ugland Management Co [1986] 3 WLR 949; [1986] 3 All ER 47
Aintree Holdings Pty Ltd v Corderoy (1996) 16 WAR 416
Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262
Casella v Bradshaw Judd & Collins Pty Ltd, unreported; FCt SCt of WA; 22 October 1997
Commonwealth v Rian Financial Services and Development Pty Ltd (1992) 36 FCR 101
Costain Australia Ltd v F W Nielsen Pty Ltd [1988] VR 235
D'Esterre v Ausplat Minerals NL (In Liq) (1991) 4 WAR 548
Electric Light & Power Supply Corporation Ltd v Electricity Commission (NSW) (1956) 94 CLR 555
Energy Brix Australia Corp Pty Ltd v National Logistics Coordinators (Morwell) Pty Ltd [2002] VSCA 113
Fairstar Pty Ltd v Milson, unreported; FCt SCt of WA; Library No 990014; 16 December 1998
Gosford City Council v Timbs, unreported; NSWCA 31; 21 July 2000
House v The King (1936) 55 CLR 499
Leighton Contractors Pty Ltd v South Australian Superannuation Fund Investment Trust (1995) 12 BCL 38
Licul v Corney (1976) 180 CLR 213
Metcalf v Permanent Building Society (1993) 10 WAR 145
Minister for Industrial Affairs v Civil Tech Pty Ltd (1997) 69 SASR 348
Natoli v Walker, unreported; NSWCA 40351/93; 26 May 1994
New South Wales v Coya (Construction) Pty Ltd, unreported; CA, 4 August 1995
Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203
Re Housing of the Working Classes Act 1890; Ex parte Stevenson [1892] 1 QB 609
Re Warden Calder; ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Roberts v Roberts (1992) 8 WAR 170
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 75 ALJR 1342
Sanofi v Parke Davis Pty Ltd (1981) 149 CLR 147
SCM Chemicals Ltd v Saipem Australia Pty Ltd (1991) 4 WAR 569
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- AGLC
- Lamac Developments Pty Ltd v Devaugh Pty Ltd [2002] WASCA 245
- Case
- [2002] WASCA 245
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the Full Court could grant leave to appeal where a single Judge had already refused it. Additionally, the Court had to consider the criteria for granting leave to appeal under the Commercial Arbitration Act, including whether the question of law raised had a substantial impact on the rights of the parties and the certainty of commercial law. The Court also needed to determine if there was a manifest error of law on the face of the arbitrator's award or if there was sufficient evidence to demonstrate that the award was affected by an error of law.
The Court concluded that the Full Court could not grant leave to appeal if it had already been refused by a single Judge. The decision to grant leave to appeal was a matter of discretion, and the Court had to consider the policy behind requiring the grant of leave to reduce appeals from interlocutory orders. The Court found that the appellant had not demonstrated that Roberts-Smith J had erred in refusing to grant leave, considering the criteria laid down in the Commercial Arbitration Act. The Court also found that the matter regarding the repayment of interest was clear and that the respondent was obligated to make a provisional payment on account only, with any disputes over the amount to be settled later.
The Court dismissed the appeal, affirming the decision of Roberts-Smith J and upholding the refusal of leave to appeal.
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
Established by: MURRAY J
In case that should be the view of the Court, the appellant moved for leave to appeal. The making of an application for leave is not just a matter of form, particularly I think in this case, having regard to the evident policy of the Commercial Arbitration Act. Generally speaking, the Court will approach the question of the exercise of its discretion to grant leave to appeal from the point of view that the purpose of requiring the grant of leave is to reduce, so far as possible, appeals from interlocutory orders. Generally speaking, the question which it is sought to ventilate on the appeal needs to be of some particular importance and the decision below needs to be established to be clearly wrong or at least attended by sufficient doubt to warrant the intervention of the appellate court. In addition it needs to be the case that substantial injustice would be done by leaving the decision unreversed: Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 per Malcolm CJ at 54 – 57. In the context of this legislation, it seems to me that that requirement increases substantially the difficulty of the task of a prospective appellant from the refusal of leave to appeal from an arbitrator's award, when one considers that such leave may only be granted in the circumstances specified in the Commercial Arbitration Act, s 38(5). Not only is it necessary that the question of law raised may have a substantial impact upon the rights of the parties to the arbitration agreement, but it must be one the resolution of which may have a wider impact by adding substantially to the certainty of commercial law. In Promenade Investments Pty Ltd v NSW (1992) 26 NSWLR 203 Sheller JA, with whom Meagher JA agreed, said at 222:"A determination which adds substantially to the certainty of commercial law may be a determination of a question of the construction of a contract in standard terms rather than the construction of a one‑off clause."At 226, as to the need to demonstrate a manifest error of law on the face of the award, his Honour said that the error ought to be clearly apparent:"There should, in my opinion, before leave is granted be 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."If that did not appear, then it should be possible to demonstrate clearly by evidence that the arbitrator's award is affected by an error of law, although the error does not appear on its face. Again at 226 his Honour said that there must be demonstrable by evidence, "what might otherwise be called on the leave application a strong prima facie case …". In this case therefore it must be demonstrated that Roberts‑Smith J was in error in refusing to grant leave having regard to the criteria laid down in s 38(5) and in circumstances which this Court feels would require it to intervene by the grant of further leave to appeal. As to the merits of the appellant's contention that Roberts‑Smith J erred in that way, I respectfully agree with all that Mathews AJ has written. As to the question of the repayment of interest, having regard to the terms of the contract, it seems to me that the matter is abundantly clear and the question will sustain little debate. In the circumstances of this case, there being no main contractor's representative appointed and therefore no payment certificate, by cl 42.1 the respondent was obliged to "pay the amount of the [appellant's] claim" but that was a provisional payment "on account only" and the clause provided:"A payment made pursuant to this Clause shall not prejudice the right of either party to dispute under Clause 47 whether the amount so paid is the amount properly due and payable and on determination whether under Clause 47 or as otherwise agreed of the amounts so properly due and payable, the Main Contractor or Subcontractor, as the case may be, shall be liable to pay the difference between the amount of such payment and the amount so properly due and payable."