JUDGE:	DODDS-STREETON J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5, 7, 10, 11, 12, 14, 17, 18, 19, 21, 24, 25, 27, 28 November 2003 and 2, 3, 4, 5, 8 and 9 December 2003
DATE OF JUDGMENT:	23 February 2004
CASE MAY BE CITED AS:	Mond and Mond v Dayan Rabbi Isaac Dov Berger
MEDIUM NEUTRAL CITATION:	[2004] VSC 45	Revised 15 April 2004

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COMMERCIAL ARBITRATION ACT (VIC) - Arbitration agreement to refer all claims and counterclaims existing between named parties for decision by three judges of Jewish law - Arbitration agreement and award governed by law of Victoria - Misconduct determined under Victorian law - Court will set aside or decline to enforce award where breach of the fundamental requirements of natural justice, although permitted under procedure agreed to by the parties - Misconduct pursuant to s. 42 of the Commercial Arbitration Act 1984 (Vic) on basis of comments by arbitrators giving rise to reasonable apprehension of bias - right to object not lost due to failure to make application to tribunal where plaintiffs withdrew from hearing - Misconduct not established in relation to arbitrators' handling of unauthorised departure of witness - Related misstatement in award not in itself misconduct but taken in context part of a pattern or trend suggesting lack of impartiality - Misconduct of proceeding established by reason of award’s inclusion of a matter not within the terms of the arbitral reference and not within jurisdiction - Misconduct established by reason of arbitrators' delegation of power to a third party - Associated failure to determine issue referred for decision constituted misconduct - Meaning of ‘award’, ‘interim award’, ‘partial award’, ‘interlocutory award’, "provisional award" considered - Award not provisional but final - Purported reservation of jurisdiction to determine or enforce future matters or disputes arising from the award ineffective - Commercial Arbitration Act 1984 (Vic); London Export Corporations Ltd v Jubilee Coffee Roasting Co Ltd [1958] 1 W.L.R. 27; Webb v The Queen (1993-1994) 181 C.L.R. 41; Livesey v New South Wales Bar Association (1983) 151 C.L.R. 288; Grassby v The Queen (1989) 168 C.L.R. 1; Gascor t/as Gas & Fuel v Ellicott, Esso Australia Resource Ltd & BHP Petroleum (NW Shelf) Pty Ltd [1997] 1 V.R. 332; Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] V.R. 385; Imperial Leatherware Co Pty Ltd v Macri & Marcellino Pty Ltd (1991) 22 N.S.W.L.R. 653; Soleimany v Soleimany [1999] Q.B. 785; Cubillo v Commonwealth (2000) 174 C.L.R. 97; R v Magistrates’ Court at Lilydale Ex parte Ciccone (1973) V.R. 122; Hayden Merrett v the Director of Public Prosecutions and His Honour Judge Dyett No. 6362 of 1986 S.C.V. O’Bryan J, 18 October 1996; Vakauta v Kelly (1989) 167 C.L.R. 568; In the Marriage 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 Mond & Mond v Berger

Details

AGLC: Mond v Berger [2004] VSC 45
Case: [2004] VSC 45
Decision Date: 23 February 2004

CaseChat Overview and Summary

The case of Mond & Mond v Berger involved a dispute between the parties, Mond & Mond and Berger, that was subject to an arbitration agreement under the Commercial Arbitration Act 1984 (Vic). The arbitration was conducted under the principles of Jewish law, with the decision to be made by three judges of Jewish law. The case reached the Supreme Court of Victoria, where the plaintiffs sought to set aside or refuse enforcement of the arbitral award on various grounds, including misconduct by the arbitrators. The central legal issues before the court were whether the conduct of the arbitrators amounted to misconduct and whether the award could be set aside on the basis of such misconduct.

The court examined several aspects of the arbitrators' conduct, including comments made during the arbitration, the handling of an unauthorised departure of a witness, and the inclusion of matters outside the terms of the arbitral reference. The court found that the comments made by the arbitrators did give rise to a reasonable apprehension of bias, which constituted misconduct under the Act. Additionally, the court determined that the award included matters not within the jurisdiction of the arbitrators, which also constituted misconduct. The court found that the arbitrators had improperly delegated their power to a third party and failed to determine the issues referred for their decision, further establishing misconduct in the proceedings.

In conclusion, the court held that the arbitral award was invalid due to the misconduct of the arbitrators and set aside the award. The court also ruled that the purported reservation of jurisdiction by the arbitrators to determine or enforce future matters arising from the award was ineffective. The final orders of the court included the setting aside of the arbitral award and the refusal to enforce it, as well as a declaration that the purported reservation of jurisdiction by the arbitrators was ineffective.

Orders