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nearmap Ltd v Spookfish Pty Ltd

nearmap Ltd v Spookfish Pty Ltd

Case [2014] NSWSC 1790 15 December 2014

Arbitration Agreement

Preliminary Discovery

Stay of Proceedings

Civil Litigation & Procedure

Commercial Law

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Supreme Court

New South Wales

Medium Neutral Citation: nearmap Ltd v Spookfish Pty Ltd [2014] NSWSC 1790
Hearing dates: 28 October 2014
Decision date: 15 December 2014
Jurisdiction: Equity Division - Commercial List
Before: Bergin CJ in Eq
Decision:
Application for stay/referral to arbitration dismissed

Catchwords:
[COMMERCIAL ARBITRATION] - where commercial arbitration agreement to refer certain disputes to arbitration - whether arbitral tribunal has power under s 17 of the Commercial Arbitration Act 2012 (WA) or s 17 of the Commercial Arbitration Act 2010 (NSW) to make an order for preliminary discovery of the kind in Uniform Civil Procedure Rules 2005

[PRELIMINARY DISCOVERY] - whether an application for preliminary discovery is a "dispute" within the meaning of the commercial arbitration agreement - whether parties should be referred to arbitration under s 8 of the Commercial Arbitration Act 2012 (WA) or s 8 of the Commercial Arbitration Act 2010 (NSW)
[PRACTICE & PROCEDURE] - application for a stay of application for preliminary discovery
Legislation Cited: Arbitration (Foreign Awards and Agreements) Act 1974 (Cth)
Commercial Arbitration Act 2010 (NSW)
Commercial Arbitration Act 2012 (WA)
Corporations Act 2001 (Cth)
International Arbitration Act 1974 (Cth)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Airservices Australia v Transfield Pty Ltd (1999) 164 ALR 330
Amcor Packaging (Australia) Pty Ltd v Baulderstone Pty Ltd [2013] FCA 253
Ausgrid v Redbank Project Pty Ltd [2013] NSWSC 1596
Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99
Brazis v Rosati [2014] VSC 385
Erutuf Pty Limited v Westpac Banking Corporation Limited [2014] NSWSC 1679
Ferris v Plaister (1994) 34 NSWLR 474
Flakt Australia Ltd v Wilkens & Davies Construction Co Ltd [1979] 2 NSWLR 243
Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd [2014] VSCA 166
Gilgandra Marketing Co-Operative Ltd v Australian Commodities & Marketing Pty Ltd [2010] NSWSC 1209
Laing O'Rourke (BMC) Pty Ltd v Transport Infrastructure Development Corp [2007] NSWSC 723
Newport Quays Pty Ltd v Urban Renewal Authority [2012] SASC 84
Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Ltd [2014] WASC 10
Rinehart v Welker [2012] NSWCA 95
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 287 ALR 315
Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38
Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332
Timoney Technology Ltd v ADI Ltd [2007] VSC 402
United Group Rail Services Ltd v Rail Corp (NSW) (2009) 74 NSWLR 618
Texts Cited: Doug Jones Commercial Arbitration in Australia (2nd ed 2013, Thomson Reuters)
Category: Interlocutory applications
Parties: nearmap Ltd (1st Plaintiff)
Ipernica Holdings Pty Ltd (2nd Plaintiff)
nearmap Australia Pty Ltd (3rd Plaintiff)
Spookfish Pty Ltd (1st Defendant)
Simon John Cope (2nd Defendant)
Michael John von Bertouch (3rd Defendant)
Guy Perkins (4th Defendant)
Representation: Counsel:
AP Coleman SC/NE Furlan (Plaintiffs)
JC Giles/H Mann (Defendants)
Solicitors:
Kemp Strang (Plaintiffs)
Fletcher Law (Defendants)

File Number(s): 2014/264962
Publication restriction: Nil

Judgment

The plaintiffs, nearmap Ltd (nearmap), Ipernica Holdings…

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 nearmap Ltd v Spookfish Pty Ltd

Details

AGLC: nearmap Ltd v Spookfish Pty Ltd [2014] NSWSC 1790
Case: [2014] NSWSC 1790
Decision Date: 15 December 2014

CaseChat Overview and Summary

Nearmap Ltd initiated legal proceedings against Spookfish Pty Ltd, seeking a declaration that a specific agreement between the parties did not mandate the referral of a particular dispute to arbitration. The dispute was heard in the Supreme Court of Western Australia. The primary legal issue was whether an arbitral tribunal had the authority under section 17 of the Commercial Arbitration Act 2012 (WA) or section 17 of the Commercial Arbitration Act 2010 (NSW) to order preliminary discovery as outlined in the Uniform Civil Procedure Rules 2005. Additionally, the court needed to determine if an application for preliminary discovery constituted a "dispute" under the commercial arbitration agreement, which would necessitate referral to arbitration under section 8 of the respective acts.

The court analysed the language of the arbitration agreement and relevant statutory provisions. It concluded that an application for preliminary discovery did not constitute a "dispute" that should be referred to arbitration. The court further held that the arbitral tribunal did not have the power to make an order for preliminary discovery under the relevant sections of the acts, as this power was not expressly conferred by the legislation. The court granted a stay of the application for preliminary discovery, pending the outcome of the arbitration.

No final orders were made in this part of the proceedings, as the matter was stayed pending the outcome of the arbitration. The court's decision hinged on a detailed interpretation of the arbitration agreement and the statutory provisions, leading to the conclusion that the application for preliminary discovery did not fall within the scope of the arbitration agreement and that the tribunal lacked the authority to order such discovery.

Orders