McD Asia Pacific LLC v Swancom Pty Ltd

McD Asia Pacific LLC (the applicant) sought to set aside an arbitral award made in favour of Swancom Pty Ltd (the respondent) by an arbitrator, Nicholas Smith. The dispute concerned a contract for the supply of telecommunications equipment and services. The applicant alleged that the arbitrator had misconducted himself in the proceedings, rendering the award invalid.

The primary legal issue before the court was whether the arbitrator had misconducted himself by failing to afford the applicant a fair hearing, specifically in relation to the admission of certain evidence. The applicant contended that the arbitrator improperly admitted evidence that was not disclosed in accordance with the agreed timetable for the arbitration, and that this prejudiced their ability to present their case.

The court considered the principles of natural justice and the arbitrator's discretion in managing proceedings. It was held that while parties are entitled to a fair hearing, an arbitrator has broad discretion to control the conduct of proceedings, including the admission of evidence. The court found that the applicant had not demonstrated that the admission of the disputed evidence was so unfair as to amount to misconduct. The arbitrator had provided reasons for admitting the evidence, and the applicant had not been denied an opportunity to respond to it. Therefore, the applicant's application to set aside the award was dismissed.