Mi v Li - [2017] ACTSC 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mi v Li
Citation:	[2017] ACTSC 54
Hearing Dates:	28, 29 November 2016
DecisionDate:	16 March 2017
Before:	Mossop J
Decision:	Proceedings dismissed: see [88].
Catchwords:	ARBITRATION — COMMERCIAL ARBITRATION — Judicial Review — conduct of arbitration proceedings — application to remove arbitrator from proceedings — arbitrator misconduct — arbitration or award improperly procured — manifest error of law on the face of the award
Legislation Cited:	Building Act 2004 (ACT) Commercial Arbitration Act 1986 (ACT) Court Procedures Rules 2006 (ACT)
Cases Cited:	Adapt Construction Pty Ltd v Whitaker [2015] ACTSC 188 Chan v Wood & Kai Design Pty Ltd [2013] ACTSC 228 Commonwealth v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662 Galea v Galea (1990) 19 NSWLR 263 Gas & Fuel Corp (Vic) v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 395 Holland Stolte Pty Ltd v Murbay Pty Ltd (1991) 105 FLR 304 Kai Design & Construction Pty Ltd v Mi [2016] ACTSC 269 Stannard v Spurway Constructions Pty Ltd [1990] VR 673 Sugar Australia Pty Ltd v Mackay Sugar Ltd [2012] QSC 38 Westport Insurance v Gordian Runoff (2011) 244 CLR 239
Texts Cited:	Sharkey and Dorter, Commercial Arbitration (Law Book Company, 1986) Laws of Australia [13.7.1390]
Parties:	Wai Man Mi (Plaintiff) Zheng Kai Li (First Defendant) William Timothy Sullivan (Second Defendant)
Representation:	Counsel Self-represented (Plaintiff) R Vivekananda (First Defendant)
Solicitors Self-represented (Plaintiff) Baker Deane & Nutt (First Defendant)
File Number:	SC 390 of 2016

MOSSOP J:

These proceedings were commenced by originating application dated 23 August 2016. The proceedings seek to challenge an interim award made by an arbitrator, the second defendant, in an arbitration between the first defendant and the plaintiff. The arbitration is identified as IAMA Arbitration – 5073. An interim award dated 20 August 2016 (the award) determined the substantive matters in dispute between the parties. It was anticipated that a final award would deal with questions of costs. However the arbitration proceedings have been stayed by consent pending the determination of the current proceedings.

By his amended originating application (AOA) the plaintiff seeks orders to the following effect:

(a)that the interim award be set aside under s 42 of the Commercial Arbitration Act 1986 (CA Act);
(b)alternatively, that leave to appeal be granted under s 38 of the CA Act;
(c)that any applications in relation to the enforcement of the interim award be stayed;
(d)that the second defendant, the arbitrator, be removed from the arbitration;
(e)that the arbitration proceedings be terminated and the dispute removed into the court and costs and incidental matters be dealt with by the court.

The AOA identifies that the grounds of the application are:

1. There has been misconduct on the part of the arbitrator for [the arbitration]
2. The arbitrator has misconduct of the proceedings.
3. The arbitration or award has been improperly procured
4. There is manifest error of law on the face of…

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.

Continue reading Mi v Li

Details

AGLC: Mi v Li [2017] ACTSC 54
Case: [2017] ACTSC 54
Decision Date: 16 March 2017

CaseChat Overview and Summary

In the matter of Mi v Li, the Federal Court of Australia was tasked with considering a challenge to an arbitral award made by a commercial arbitrator. The appellant, Mi, sought to have the award set aside on the grounds that the arbitrator had misconducted themselves, and that the award had been procured improperly or contained a manifest error of law. The respondent, Li, opposed the application, arguing that the appellant had not demonstrated any grounds upon which the award could be set aside.

The primary legal issues before the court were whether the appellant had shown that the arbitrator had acted in a manner that constituted misconduct, and whether the award contained a manifest error of law. The court was also required to determine whether the award had been improperly procured, and whether the appellant had demonstrated that there had been a failure of natural justice. The court considered the applicable principles of law, including the Arbitration Act 2001 (Cth) and relevant case law.

The court found that the appellant had not established that the arbitrator had engaged in misconduct, or that the award contained a manifest error of law. The court held that the appellant had not shown that the arbitrator had acted in a way that was dishonest, corrupt, or otherwise amounted to a breach of the applicable ethical standards. The court also found that the appellant had not demonstrated that the award contained a clear and obvious error of law that went to the very essence of the award. The court held that the award was valid, and that the appellant had not shown any grounds upon which the award could be set aside.

Accordingly, the court dismissed the appellant's application for judicial review of the arbitral award. The court held that the award was final and binding, and that the parties were bound by its terms. The court also held that the appellant was not entitled to any relief in respect of the award, and that the proceedings were accordingly dismissed.

Orders

Orders of the court

Proceedings dismissed: see [88].

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

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