North Sydney Council v Plater

NEW SOUTH WALES COURT OF APPEAL

CITATION: North Sydney Council v Pamela Plater [2002] NSWCA 225 revised - 23/08/2002

FILE NUMBER(S):
40506/01

HEARING DATE(S): 08/07/2002

JUDGMENT DATE: 23/08/2002

PARTIES:
North Sydney Council v Pamela Plater

JUDGMENT OF: Handley JA Giles JA Foster AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2923/99

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

COUNSEL:
Mr F. McAlary QC with Mr M. Morris - Appellant
Mr R Parsons - Respondent

SOLICITORS:
Phillips Fox - Appellant
Peters Crompton Worrall - Respondent

CATCHWORDS:
Appeal against orders made pursuant to the slip rule, in substitution for orders previously made.

LEGISLATION CITED:
District Court Act 1973
Arbitration (Civil Actions) Act 1983
District Court Rules
Interpretation Act 1987
Arbitration (Civil Actions) Amendment Bill
Supreme Court Act 1970
Local Courts (Civil Claims) Act 1970

DECISION:
1. Grant leave to amend the summons to the form of summons annexed to the claimant's supplementary written submissions filed on 14 February 2002
2. Grant leave to appeal and direct that the notice of appeal be filed within 7 days
3. Appeal allowed
4. Set aside the orders made by Ainslie-Wallace DCJ on 13 February 2002 and in lieu thereof order -
(a) that the arbitrator's award dated 18 July 2000 be reinstated modified to an award that there be a verdict and judgment for the defendant and the plaintiff pay the defendant's costs
(b) that the plaintiff pay the defendant's costs of the rehearing

There will be no order as to the costs of the parties in this Court but the respondent is to have a certificate under the Suitors Fund Act.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40506/01
DC 2923/99
HANDLEY JA
GILES JA
FOSTER AJA

Friday, 23 August, 2002

NORTH SYDNEY COUNCIL v PAMELA PLATER

Judgment

HANDLEY JA: I agree with Giles JA.
GILES JA: On 23 September 1996 the opponent was injured when she fell on stairs in the claimant’s multi-storey car park. By a statement of claim filed in the District Court on 22 April 1999 she claimed damages from the claimant, alleging that her injury was caused by its negligence.
An order was made under s 63A(1) of the District Court Act 1973 referring the opponent’s action for determination pursuant to the Arbitration (Civil Actions) Act 1983 (“the Act”) by an arbitrator. On 18 July 2000 the arbitrator made an award in which he found the claimant liable to the opponent and assessed the opponent’s damages at $29,527, and ordered that the claimant pay the opponent’s costs.
The claimant applied for a rehearing of the action. The application was not before us, but it was apparent that it was an application for a rehearing on the issue of liability alone. In September 2000 an order for a limited rehearing was made whereby the rehearing was as to liability but not damages.
The rehearing took place before Ainslie-Wallace DCJ on 30 May 2001. On 15 June 2001 her Honour published reasons in which, having said that the hearing was “on the basis that liability alone was to be determined”, she held that the claimant was liable to the opponent. Her Honour ordered that there be a verdict for the opponent and that the claimant pay the opponent’s costs.
On 2 October 2001 the claimant filed a summons applying for leave to appeal from “the decision of Judge Ainslie-Wallace in giving a verdict for the Opponent … “. The summons came before this Court on 31 January 2002. In the course of the hearing a question arose as to the orders from which the claimant was seeking leave to appeal. The application was adjourned.
It seems that it was recognised that the orders made on 15 June 2001 were not in accordance with the Act. On 13 February 2002 they were revoked and in substitution therefore orders were made -
“1.Order that the Arbitrator’s award dated 18 July 2000 and sent by [sic: to?] the Court on 21 July 2000 be reinstated including the award as to costs;
2.Order that the Defendant pay the Plaintiff’s costs of the re-hearing.”
The claimant’s summons came before this Court again on 8 July 2002. The claimant applied to amend the summons to seek leave to appeal “from the order of Ainslie-Wallace DCJ dated 13 February 2002 consequent upon the decision of Ainslie-Wallace DCJ in giving a verdict for the opponent … on 16 June 2001”. The amendment was not opposed, and should be allowed.
The hearing of the summons was conducted on the basis that if leave were granted the appeal would be determined on the submissions then made without a further hearing.
The questions before this Court were first, whether an appeal lies at all; secondly, if it does whether leave to appeal should be granted; and thirdly, if it should whether the appeal succeeds.
Appeal
In s 3(1) of the Act “referred action” is defined as -
“ … an action the subject of an unrevoked reference to an arbitrator under section 76B of the Supreme Court Act 1970, section 63A of the District Court Act 1973 or section 21H of the Local Courts (Civil Claims) Act 1970“.
By s 4 of the Act, where an action has been referred to an arbitrator under one of the provisions last mentioned -
“ … the provisions of the Act under which it is referred, cease, except to the extent provided by this Act, to apply to or in respect of the action.”
The jurisdiction conferred on the arbitrator in relation to a referred action is part of the jurisdiction of the court by which the action was referred (s 7(1)), and the arbitrator has and may exercise in relation to a referred action all the powers and authorities of that court (s 7(1A)) but only for the purpose of determining the issues in dispute and making an award and for related purposes (s 7(1C)). Subject to the Act, a tribunal other than the arbitrator (which will include the referring court, see s 7(3)) has no jurisdiction in respect of an issue in dispute in the action “while it is before the arbitrator” (s 7(2)).
By s 15(1) of the Act, the issues in dispute in a referred action before an arbitrator shall be determined by the arbitrator on the evidence before the arbitrator, and the arbitrator shall record the determination -
“ … by an award in writing signed by the arbitrator which shall, to the extent provided by the rules, specify the arbitrator’s reasons for the award and shall be forthwith transmitted by the arbitrator to the court by which the action was referred to the arbitrator”.
Section 63A(5) of the District Court Act provides -
“(5) Except in the case of an action in respect of which an order for rehearing has been made under section 18 of the Arbitration (Civil Actions) Act 1983, the award of an arbitrator in relation to an action referred to the arbitrator under subsection (1) shall, after the expiration of the time prescribed by the rules for the purposes of this subsection, be deemed to be a judgment or order of the Court.”
The District Court Rules provide for the Registrar to send copies of the award to the parties. The time prescribed by the rules runs essentially from the date of sending the copies. It may be extended even though the award has become enforceable as a judgment of the Court (El Ali v Government Insurance Office of New South Wales (1988) 15 NSWLR 303). At an earlier time the order for rehearing was made under s 18 of the Act, but it is now made under s 18A. This apparent anomaly is of no consequence in the present case.
Rehearing is dealt with in Part 3 (ss 18-18E) of the Act. It is necessary to refer only to some of these provisions.
Section 18 provides -
“18. Application for rehearing
(1) A person aggrieved by an award of an arbitrator may apply for a rehearing of the action concerned.
(2) The applicant may (but need not) in the application request that the rehearing be a full or a limited rehearing.”
By s 18A(1) to (3) an order for rehearing must be made if the application is made before the arbitrator’s award becomes enforceable as a judgment of the court, save that the order cannot be made if a money or value threshold is not passed and need not be made if the applicant for the rehearing failed without good cause to attend the hearing before the arbitrator. By s 18A(4) and (5) -
“(4) The court or registrar may in an order for rehearing direct that the rehearing be a full or a limited rehearing as the court or registrar thinks appropriate. In the absence of such a direction, the rehearing is to be a full rehearing. This subsection has effect regardless of whether the applicant requested that the rehearing be a full or a limited rehearing or made no such request.
(5) In making an order for a limited rehearing, the court or registrar is to specify in the order the aspects that are to be the subject of the rehearing. The aspects may be described by reference to specific issues in dispute, specific parties to the dispute, or otherwise.”
Section 18B provides -
“18B Rehearing
(1) If an order is made for a full rehearing, the award ceases to have effect and the action is to be heard and determined in the court concerned as if it had never been referred to an arbitrator.
(2) If an order is made for a limited rehearing:
(a) the award is suspended and the aspects ordered to be dealt with at the limited rehearing are to be heard and determined in the court concerned as if they had not been dealt with in the arbitration, and
(b) the court may reinstate the award with such modifications (if any) as the court thinks appropriate after the rehearing.”
Appellate rights are constrained by ss 16A and 17.
Section 16A of the Act provides that “Except to the extent that s 17 and Pt 3 otherwise provide, an award of an arbitrator made under this Act is final and conclusive and not liable to be called in question”.
Section 17 specifically excludes certain appellate and other relief or remedies, save for limited prerogative relief -
“17. Judicial supervision of arbitrator
(1) No relief or remedy lies:
(a)under section 69 or 101 of the Supreme Court Act 1970,
(b)by way of declaratory judgment or order,
(c)by way of injunction,
(d)under section 126, 127 or 128 of the District Court Act 1973, or
(e)under section 69 of the Local Courts (Civil Claims) Act 1970,
in relation to proceedings under this Act on a referred action.
(2)Subsection (1) does not apply where the relief or remedy is sought on the ground of a lack of jurisdiction or a denial of natural justice.”
It will be noted that, in accordance with s 18B(2)(b) of the Act, the first of the substituted orders made by Ainslie-Wallace DCJ on 13 February 2002 was in terms of reinstatement of the arbitrator’s award. The notion of reinstatement of the award was at the heart of the question whether an appeal lies.
The right of appeal from the District Court to this Court is found in s 127 of the District Court Act. There may be appeal from a “judgment or order in an action”. Accordingly, and subject to s 17(2), by force of s 17(1)(d) of the Act there is no right of appeal to this Court “in relation to proceedings under this Act on a referred action”. Section 17(2) is not material in the present case, as the claimant’s grounds of appeal did not include lack of jurisdiction or a denial of natural justice.
If an order is made for a full rehearing, by s 18B(1) the arbitrator’s award will cease to have effect and the action will be heard and determined in the original court as if it had never been referred to an arbitrator. It was common ground that this will take the court’s order on the rehearing outside the finality in s 16A and outside the negation of appellate relief or remedy in s 17. The action will be treated as an ordinary action in the court, with any attendant appellate rights. The court’s order will be taken outside the finality in s 16A because there will no longer be an award of an arbitrator. Why as a matter of language it will be taken outside the negation of appellate relief or remedy in s 17 is not so clear. The reason must be found in the words “in relation to proceedings under this Act on a referred action”. The action remains a referred action, since it is still the subject of an unrevoked reference to an arbitrator. But an appeal from the court’s order will not be in relation to proceedings under the Act on a referred action, because the proceedings will be determined in the court’s exercise of its jurisdiction, not in the arbitrator’s exercise of the court’s jurisdiction. The court’s jurisdiction remains because the action is relevantly not before the arbitrator (see s 7(2) of the Act).
The opponent submitted that it is otherwise for an order for a limited rehearing. She pointed to the different language in s 18B(2). The arbitrator’s award does not cease to have effect, but is suspended. The action is not heard and determined in the original court as if it had never been referred to an arbitrator, but the aspects ordered to be dealt with at the limited rehearing are heard and determined in the original court as if they had not been dealt with in the arbitration. And the result of the court’s hearing and determination is not a judgment of the court but reinstatement of the award. In the result, the opponent submitted, there is an award of an arbitrator, within the finality stated in s 16A (albeit it may not be the award originally made by the arbitrator), and the action is determined as proceedings under the Act on a referred action within s 17.
The different treatment in s 18B of a full rehearing and a limited rehearing is readily understandable. Where there is a limited rehearing, those aspects of the award not challenged must be preserved. The award is not put aside, but awaits the determination in the limited rehearing, and the equivalent in s 18B(2) to the action being heard and determined in the court concerned as if it had never been referred to an arbitrator is that the aspects ordered to be dealt with at the limited rehearing are to be heard and determined in the court concerned as if they had not been dealt with in the arbitration. The determination may mean that the preserved aspects of the award fall away, and the reference to reinstatement with modification must encompass an award for the defendant when previously there had been an award for the plaintiff or vice versa. Unusual though this may be, I see no escape from the possibility of modification to a completely different result.
Thus the notion of reinstatement of the award is misleading. There may be nothing left of the arbitrator’s award. Further, the so-called reinstated award must be in a different position from the initial awards. It would be nonsense if the reinstated award were “an award of an arbitrator” within s 18(1), so that application could be made for another rehearing.
The reinstated award is the product of two decisions (or sets of decisions). One decision is the arbitrator’s decision, on all aspects, expressed through the award. The other decision is the court’s decision on the aspects the subject of the limited rehearing, expressed through the order reinstating the award with or without modifications. In the end the so-called reinstated award may be wholly the result of the court’s decision, or partly the result of the court’s decision and partly the result of the arbitrator’s decision. It will be the result either of the court’s exercise of its jurisdiction, or of the court’s exercise of its jurisdiction in part and the arbitrator’s exercise of the court’s jurisdiction in part.
In the present case the claimant wishes to appeal from the order of Ainslie-Wallace DCJ of 13 February 2002, that is, from the court’s order and not from the arbitrator’s award. The court’s decision was not by making an award. It was by an order reinstating the award (as it happens without modification, but the decision could have involved modification to an award in favour of the claimant). That order is not caught by s 16A, because it is not an award of an arbitrator made under the Act. Nor in my opinion is an appeal from that order under s 127 of the District Court Act properly described as in relation to proceedings under the Act on a referred action, since in the same manner as for a full rehearing the proceedings on the aspects the subject of the limited rehearing were determined in the court’s exercise of its jurisdiction and not in the arbitrator’s exercise of the court’s jurisdiction.
The purpose behind the Act of providing an alternative, hopefully speedier and less costly, dispute resolution procedure is clear enough. The application of the provisions of the referring courts’ acts is generally excluded, but it is not wholly excluded. It may be accepted that it is intended that appeal or other forms of review of an arbitrator’s decision should be excluded. But in place of such review the legislation gives a right to a rehearing in the original court, and the application of the provisions of that court’s act is thereby retained.
To the extent to which the arbitrator’s award is not challenged by an application for a rehearing, other review is excluded. The rehearing can be full or limited. Plainly in the event of full rehearing the normal appellate or other review entitlements with respect to the court’s decision are to remain, and it would make no sense that the court’s decision on those aspects challenged by a limited rehearing should not be in the same position. I do not think the Act has that consequence. I reach my conclusion without regard to the heading to s 17 of the Act; if regard were to be had to it pursuant to s 35(2) of the Interpretation Act 1987, the words “Judicial supervision of arbitrator” (emphasis added) would only assist that conclusion.
Leave
Leave is required because the damages awarded were less than $100,000, see s 127(2)(c) of the District Court Act. (It was faintly suggested that leave was also required because the appeal should be regarded as from an interlocutory order, see s 127(2)(a): it is not necessary to decide this.) The claimant submitted that the damages were not insignificant, and that it had a sound case of error on the part of Ainslie-Wallace DCJ. It submitted that leave was warranted in the interests of the integrity of justice, and because of the importance to the claimant of exposing error least the error be repeated in other claims to which the claimant and others were exposed, each not of great magnitude but cumulatively significant. The opponent submitted that the amount at stake told heavily against a grant of leave, and that because the decision of Ainslie-Wallace DCJ was correct there could be no injustice to the claimant from refusing leave to appeal.
The submission last mentioned rather invited consideration as if on appeal. Apart from that, however, for the reasons which follow I consider that Ainslie-Wallace DCJ was in error, and that the nature of her error should be indicated in order that the claimant and similar bodies be assisted in knowing where they stand and that guidance be provided for like cases which, from experience, can confidently be anticipated. In combination with the amount at stake, which although well below the $100,000 in s 127(2)(c) of the District Court Act is not a small amount, these considerations persuade me that leave to appeal should be granted.
Liability
The opponent parked her car on the middle of three levels of the car park. A stairway extended from the upper level to an exit at street level. The stairway was enclosed, with a door from a landing at the middle level giving access to the parking area at that level. It was raining, and there was water in the vicinity of the stairway extending onto the landing and running down the stairs from the upper level.
The opponent went through the door onto the landing and to the top of the descending stairs. She put out her hand to grasp the rail of the stairs and stepped out with her left foot. She said -
“Q. Did it [the left foot] make contact when you stepped out?
A. Very briefly.
Q. What did it make contact with?
A. The first step.
Q. Is that the first step just for clarity in a downward direction or in some other direction?
A. Downwards yes.
Q. When it made contact what happened then?
A. My foot went out from under me and I fell onto my bottom.
Q. Could you repeat that please?
A. My foot went out from under me and I fell onto my bottom.
Q. Do you know at that stage which part of your bottom you fell onto?
A. Towards my right, yes.
Q. Just for the sake of clarity again which foot is it that you say went from under you?
A. My left foot.
Q. What happened from there, you fell onto your bottom and what happened from there?
A. I bounced down the steps and I flung my arm out to try and stop the fall and I went all the way down to the bottom.
Q. In general terms in what part of you was contacting the stairs as you went down the stairs having slipped as you said?
A. My backside.”

In cross-examination the opponent agreed that she could not say what part of her foot touched the step or where exactly on the step her foot touched, and that it was possible that her foot touched the nose of the step and then slipped. She agreed that all she really knew was that she put her foot out, it touched the step very briefly, and she fell down the stairs.
The stairs were of concrete. They had been constructed in the late 1960’s or early 1970’s, and complied with all relevant ordinances and standards at the time of their construction. Each step had two strips of carborundum material placed towards its nose. Ainslie-Wallace DCJ found that the opponent fell “because her foot landed on the nosing which did not offer her sufficient friction”, and that the carborundum strips provided no assistance to her “because her foot would not come to rest on the strips on the tread”.
There was expert evidence directed specifically to the friction offered by the steps. Putting aside the carborundum strips, the co-efficient of friction of the steps complied with the current Australian standard in both wet and dry states. The friction testing did not specifically relate to the nose of the steps. There was general evidence that over time the nose of a step would wear and become more smooth, but nothing specific about time, extent of wear or consequent lessening in the co-efficient of friction. Nor was there specific evidence as to wear on the nose of the steps, save that from a photograph her Honour concluded that the nose was worn. The photograph was most indistinct.
The opponent had used the stairway once or twice a week over a period of 13 to 14 years prior to this occasion, so far as the evidence went without incident. There was no evidence of other persons slipping or falling on the stairs prior to the opponent’s fall.
Notwithstanding this, the claimant was found to have been negligent. The negligence found was stated by her Honour -
“On balance I am satisfied that the defendant would have known that there was likely to be water present on the stairs and that it ought to have taken care to ensure that they offered as much friction at the nose as possible. The stairs, as they were at the date of the fall, were not adequate for this purpose. The water on the stairs together with the relatively worn nosings created a surface which was slippery and caused the plaintiff to slip and fall.
I find that the defendant was thus negligent.”
The claimant was not obliged to take care to ensure that the stairs offered as much friction at the nose as possible. It was required to take reasonable care for the safety of users of the stairway. From the evidence of the opponent’s prior usage without incident, and the lack of evidence of other slips or falls, the stairs fulfilled that requirement. From the expert evidence of the friction offered, they met that requirement, and there was no evidence on which it could properly have been found that the surface at the nose of the steps was unreasonably slippery. As has been said on a number of occasions, no stairs are perfectly safe (see for example Baulkham Hills Shire Council v Pascoe (1999) NSWCA 431), and the opponent’s description of her fall did not point to any deficiency. I do not think that her Honour’s finding that the claimant was negligent was properly open to her.
It is necessary to recall what was said by Brownie AJA in Baulkham Hills Shire Council v Pascoe at [12] -
“It seems that there is a school of thought to the general effect that if a stairway or something else is not perfectly safe, then a plaintiff who is injured in connection with that lack of safety has prima facie some cause of action. It seems too that it is an area of law where people are more prone to error than otherwise.”
The need to correct the school of thought, and the tendency to error, contributed to the grant of leave to appeal in that case. So also, in my view, in this case.
Orders
I propose the orders -
1.Grant leave to amend the summons to the form of summons annexed to the claimant’s supplementary written submissions filed on 14 February 2002.
2.Grant leave to appeal and direct that the notice of appeal be filed within 7 days.
3.Appeal allowed.
4.Set aside the orders made by Ainslie-Wallace DCJ on 13 February 2002 and in lieu thereof order -
(a)that the arbitrator’s award dated 18 July 2000 be reinstated modified to an award that there be a verdict and judgment for the defendant and the plaintiff pay the defendant’s costs;
(b)          that the plaintiff pay the defendant’s costs of the rehearing.
5.**     Opponent pay the claimant’s costs of the summons and the appeal and have a certificate under the Suitors Fund Act if qualified.
**          (By reason of an application made when judgment was delivered, this order was not made. After further submissions the order was made that "5. There will be no order as to the costs of the parties in this Court but the respondent is to have a certificate under the Suitors Fund Act."
**********
FOSTER AJA: This is an application for leave to appeal by the claimant, North Sydney Council (“the Council”), from the orders in favour of the opponent, Pamela Plater (“Ms Plater”) made by Ainslie-Wallace DCJ on February 2002. Those orders were made, pursuant to the slip rule, in substitution for orders that her Honour had previously made on 16 June, 2001.
Her Honour’s earlier orders were that there be a verdict for Ms Plater against the Council and that the Council pay Ms Plater’s costs.
The substituted orders were that:
1.The Arbitrator’s Award dated 18 July 2000 and sent by the Court on 21 July 2000 be reinstated, including the award as to costs, and
2. That the defendant pay the plaintiff’s costs of the rehearing.
The defendant referred to was the Council and the plaintiff was Ms Plater.
The substitution of the latter orders was necessary, having regard to the nature of the hearing before her Honour and of the decision that she gave. The previous orders had failed to reflect those essential matters, a problem which had been realised when this application was before this Court on a previous occasion. This had led to an adjournment of the proceedings, so that application could be made to her Honour for correction of the previous orders.
It is the contention of Ms Plater before this Court that, because of the nature of the hearing and the decision, this Court has no jurisdiction to entertain this application, as no appeal lies to it. It is necessary, therefore, to consider the proceedings before her Honour.
Ms Plater had suffered injury and loss as the result of having a slipping accident on 23 September 1996. On that day she had slipped and fallen on the stairs leading from the top floor to the ground level of a carpark situated at Crows Nest and operated by the Council. She brought proceedings in the District Court, by ordinary Statement of Claim dated 23 April 1999, alleging that her slipping on the stairs was occasioned by negligence, particularised in various ways, on the part of the Council in relation to its permitting the stairs to be in an unsafe condition. The Council defended those proceedings, denying negligence as alleged and pleading contributory negligence on the part of Ms Plater.
The proceedings were referred to arbitration pursuant to an order made under s 63A of the District Court Act 1973 (“the District Court Act”) and were, thereafter, heard and determined by an arbitrator pursuant to the provisions of the Arbitration (Civil Actions) Act 1983 (“the Act”). The arbitrator found in favour of Ms Plater and made an award of damages in her favour.
The Council, being, within Part 3 s 18 of the Act, a person aggrieved by the arbitration award, applied for a rehearing pursuant to s 18A(1) of the Act. It is accepted that this was an application for a limited rehearing, in that it was restricted to the question of the Council’s liability in negligence. It appears that the Registrar of the District Court, in September 2000, ordered such a rehearing pursuant to s 18(4) of the Act, which provides (inter alia) that “the court or registrar may in an order for rehearing direct that the rehearing be a full or limited rehearing as the court or registrar thinks appropriate.”
Her Honour, having, pursuant to this order, reheard the question of liability, found in favour of Ms Plater. Her corrected orders reflect this finding and the fact that the rehearing was so limited. In making those orders she acted pursuant to powers given by s 18B(2), in Part 3 of the Act, which provides as follows:-
“(2) If an order is made for a limited rehearing:
(a)the award is suspended and the aspects ordered to be dealt with at the limited rehearing are to be heard and determined in the court concerned as if they had not been dealt with in the arbitration; and
(b)the court may reinstate the award with such modifications (if any) as the court thinks appropriate after the rehearing.”
The effect of this sub-section is to be contrasted with that of sub-section 18B(1) in Part 3, which provides that:
“(1)If an order is made for a full rehearing, the award ceases to have effect and the action is to be heard and determined in the court concerned as if it had never been referred to an arbitrator.”
It is submitted, on behalf of Ms Plater, that her Honour’s orders set out in paragraph 3 hereof, whether they be final or interlocutory in nature, are not amenable to appeal to this Court pursuant to s 127 of the District Court Act and, there being no other avenue of appeal, this appeal must be dismissed for want of jurisdiction. In order to decide this question, it is necessary to consider the effect of a number of statutory provisions.
Section 63A of the District Court Act, being the section under which power is given to refer an action in the District Court to an arbitrator or arbitrators for determination pursuant to the Act, provides, by sub-section 5, that:
“Except in the case of an action in respect of which an order for rehearing has been made under section 18 of the Arbitration (Civil Actions) Act 1983, the award of an arbitrator in relation to an action referred to the arbitrator under subsection (1) shall, after the expiration of the time prescribed by the rules for the purposes of this subsection, be deemed to be a judgment or order of the Court.”
It is accepted that, pursuant to Pt 51A r 10(b) of the District Court Rules that the relevant period is 28 days from the date of the award. It is not necessary, in these proceedings, to decide whether the reinstatement of an award pursuant to s 18B(2) of the Act requires that the award speak from the date of its reinstatement or from its original date. The making of her Honour’s orders was not held in abeyance, pending this application nor have they been stayed by order of this Court or the District Court. Accordingly, by effluxion of time, the reinstated award must now, in my opinion, be deemed to be a judgment of the District Court.
Once the order for referral was made, Ms Plater’s District Court action was governed by the provisions of the Act. Section 4(2) produced this result. It, relevantly provides as follows:-
“4. Independent operation of Act
(2)          Where an action has been referred to an arbitrator under:
(a)          …………..
(b) section 63A of the District Court Act 1973, ..
(c)          ……………
the provisions of the Act under which it is referred cease, except to the extent provided by this Act, to apply to or in respect of the action.”
Ms Plater’s action also became a “referred action” within the meaning of s 3(1) of the Act being “an action the subject of an unrevoked reference to an arbitrator under s 63A of the District Court Act 1973”.
Apart from the continuing application to the action of the rules made under the District Court Act 1973, by virtue of the definition of “rules” and “this Act” in s 3 of the Act, the District Court, after the making of the referral order, subject to the provisions of Pt 3 of the Act, to which reference will be made, retained no power to determine any issue in the action, provided, of course, that the referral order was not revoked.
In my opinion, it is possible to discern quite clearly that the legislative policy underlying s 63A of the District Court Act and given effect to in the Act itself was to provide, through the utilisation of arbitrators, for the “just quick and cheap disposal of …proceedings.” (See s 63A(2)(c).
The achievement of this policy was assisted by a number of sections of the Act. By s 9 the arbitrator was to use “his or her best endeavours to bring the parties to the action to a settlement acceptable to all of them.” By s 10, subject to any directions given with the referral order, the procedure at the arbitration was to be determined by the arbitrator, who was, subject to compliance with the rules of evidence, to “act according to equity, good conscience and the substantial merits of the case without regard for technicalities or legal forms.” In addition, various powers were given to the arbitrator, to which it is unnecessary to make reference, other than to indicate that they were clearly intended to provide for the expeditious and efficient disposal of the arbitration.
The finality of the arbitrator’s award was provided for in s 16A of the Act, as follows:-
“ 16A Except to the extent that section 17 and Part 3 otherwise provide, an award of an arbitrator made under this Act is final and conclusive and not liable to be called in question.”
Subject to the exceptions mentioned, it was, in my view, the plain intention of the legislature that the award, once made, should, upon the expiry of the period prescribed by the rules of the District Court, become a judgment of the Court, which could not be subject to appeal. This was in conformity with the underlying policy of the legislation.
I come, then, to consider the exceptions and their effect.
Section 17, so far as relevant, and including its heading, provides as follows:-
“17 Judicial supervision of arbitrator
(1)          No relief or remedy lies:
(a)          ………..
(b)          by way of declaratory judgment or order.
(c)          by way of injunction.
(d)under section 126, 127 or 128 of the District Court Act 1973, or
(e)          ……………
in relation to proceedings under this Act on a referred action.
(2)Subsection (1) does not apply where the relief or remedy is sought on the ground of a lack of jurisdiction or a denial of natural justice.”
Some attention was given in argument in this case to the heading to s 17 and its possible effect upon the provisions of the section. I am satisfied that, pursuant to s 35 of the Interpretation Act 1987, it is not to be taken as part of the Act, although, pursuant to s 34 it may be used in the interpretation of the section, if it is “capable of assisting in the ascertainment of (its) meaning”. I do not find it to be of any such assistance. Sections 126, 127 and 128 of the District Court Act 1973 do not, expressly or impliedly, refer to proceedings before, or awards of, arbitrators. They are concerned only with curial proceedings, verdicts, orders and judgments. In my opinion, the reference in s 16A of the Act to s 17 is intended to apply only to the retention, by s 17(2), of an available attack upon an arbitral award, on the basis that the arbitrator lacked jurisdiction or had denied natural justice. Neither of these questions arise in the present case. I consider, however, that s 17(1)(d) has relevance, in part, to the role of the District Court judge in a “referred action”. I shall refer to this later. I do not consider that the heading to the section prevents this consideration.
It is necessary, now, to consider the effect of the provisions of Part 3 on the finality of an award made under the Act. It may be noted that Part 3 deals with ‘Rehearings” and commences with s 18 which provides that:-
“(1)A person aggrieved by an award of an arbitrator may apply for a rehearing of the action concerned.
(2)The applicant may (but need not) in the application request that the rehearing be a full or a limited rehearing.”
Part 3 was not always in the form in which it presently appears. It has attained that form as a result of successive amendments to the Act. Attempts had been made to attack arbitrators’ awards made under the Act by the taking of proceedings in the Supreme Court. This tactic had the potential to subvert the policy of the Act by rendering the resort to arbitration considerably less speedy and more expensive. It was determined that appropriate amendments to the Act should be made to remove these problems in its operation.
On 25 March 1987, in his Second Reading Speech in respect of the Arbitration (Civil Actions) Amendment Bill, the Attorney-General said:
“….a basic element of the system is the provision of a right to a rehearing by the referring Court…It is essential that this rehearing be the only method of challenging an arbitrator’s award; otherwise, this attempt to provide quicker and cheaper hearings will only introduce further and more expensive steps in the proceedings. …and The Act needs a little tightening to make it abundantly clear that the way, and the only way, to challenge an award is to proceed in the referring Court as though the award had not been made. The Bill will provide this tightening.”
On 5 May, 1987 the Government Leader in the Legislative Council said in respect of the Bill:-
“Second, there has been argument that an arbitrator’s award is subject to an appeal to the Supreme Court. That was never the intention of the Act. An essential feature of the system is that the right to a re-hearing in the referring Court is the only re-dress a party has when he finds an award unacceptable. After a re-hearing, of course, the parties have the same appeal rights as apply to any hearing in the Court. That gives the parties quite adequate protection. It removes the temptation to a party to use the legislation to add further expensive steps to the litigation; and it frees the arbitrator from what would often be the intolerable burden of having to state a case. On a re-hearing, the action proceeds as though the arbitration had never occurred…”
There is no need to have recourse to the provisions of the Bill. It is clear that these remarks were directed to legislation in the form of the present s 18B(1).
Section 18B(2), together with other sections in Pt 3 of the Act, to which I shall make reference later, were, introduced by way of amendments in 1998.
I am satisfied that the present structure of Pt 3 of the Act provides, in effect, for two separate appellate regimes, depending upon whether a full or limited rehearing of the referred action has been ordered, pursuant to s 18A. I consider that the comments in the Second Reading Speeches, referred to above, related to the regime in respect of a full rehearing and do not apply to the present regime in respect of limited rehearings.
The wording of s 18B(1) has been set out above. It is no doubt possible that the section could have been expressed in clearer terms. However, I am quite satisfied that the words chosen satisfactorily demonstrate a legislative intention that, where a full rehearing is ordered, the effect is not only the total abolition of the award that has been made, but also the nullification, ab initio, of the whole arbitral proceedings. Both are deemed never to have existed. The result is that the rehearing becomes the hearing of the action by a District Court judge, in every respect, as if the order for referral under s 63A of the District Court Act had never been made. That being so, the decision of the District Court judge, on the rehearing, becomes a decision which is, in every respect, amenable to appeal to this Court pursuant to s 127 of the District Court Act 1973. This result was clearly envisaged in the Second Reading Speeches. Moreover, the action necessarily ceases to be a “referred action” within the meaning of s 3(1) of the Act, and is outside the ambit of s 17.

In my view, the same cannot be said in respect of a “limited rehearing” pursuant to s 18B(2). Upon the making of an order for such a hearing, the arbitrator’s award is not abolished. It is merely suspended in its operation, pending the hearing by a judge of the referring Court of those aspects of it which are the subject of the rehearing order. The judge hears and determines those matters “as if they had not been dealt with in the arbitration”. It is to be observed that this hearing and determination, even if the resulting findings are different from those of the arbitrator, do not occur in circumstances where the award has ceased to exist. At the end of that hearing and determination, the judge does not render a decision, as in an ordinary District Court action. The original award remains in existence and, in accordance with the judge’s determination, will either be reinstated by his or her order in the same form or, in a different or modified form. The result of the Court’s intervention, pursuant to the order, is not a curial verdict but the bringing out of suspension of the award of the arbitrator, albeit, perhaps, with significant changes.
Although “modification” may not be a wholly appropriate word, I am satisfied that it is the legislative intention that, in a case such as the present, where the limited rehearing relates to liability, a contemplated “modification”, would be a reversal of that finding.
Other sections in Pt 3, in my opinion, also demonstrate the essential difference between the nature and effect of full and limited rehearings. Thus s 18C(1) empowers the Court when it “hears and determines an action on a full rehearing”, not only to make an order for costs under the District Court Act 1973 but also to “make a like order for the payment of costs in respect of the hearing before the arbitrator”. Plainly, such a power would be necessary as, without it, a cost order made by the arbitrator in respect of the arbitration would have become a nullity with the ceasing of the award. Also, no power would otherwise exist for the making of any costs order, in circumstances where the arbitration was deemed never to have occurred at all.
Conversely, s 18C(2) provides for the empowering of the Court, in a limited rehearing, to “make such an order for the payment of costs under the relevant Act (here the District Court Act 1973) as it thinks fit, as if those aspects constituted an action and may, in addition, make a like order for the payment of costs in respect of the hearing before the arbitrator involving those aspects”. These provisions clearly contemplate that the limited rehearing by the judge, unlike the full rehearing, does not constitute an ordinary proceedings in the Court, and, thus does not attract the usual power to order costs. Hence, the need for special provision.
I am satisfied that under s 18B(2) the Court, pursuant to the order for limited rehearing, is required to make a judicial determination in respect of “the aspects ordered to be dealt with” and that, once this determination is made, it is required to deal with the award in light of its determination. The award may be reinstated (i.e. brought out of suspension) either in full or with “modifications” required by the Court’s determination. The end result is still an arbitral award made pursuant to a referred action within the meaning of the Act. As such, it has the finality accorded to it by s 16A of the Act and its immunity from the provisions of s 127 of the District CourtAct, necessarily conferred by s 4(2) of the Act. Such a result is, in my opinion, in conformity with the legislative policy referred to. Where only part of an award is attacked, only one appeal procedure is permitted.
I am also of the view that the same result is achieved by the application of s 17. I am satisfied that proceedings under s 18B(2) are relevantly “proceedings under this Act on a referred action”. This is necessarily so because the mere suspension of the award involves the continuance on foot of the arbitral proceedings, the subject of the original referral order under s 63A of the District CourtAct. This is in direct contrast to the position under s 18B(1), where the making of the order for a full rehearing results in the deemed abolition not only of the arbitral award but also of the whole of the arbitral proceedings, including the reference.
The result of the application of s 17 in the present case is, in my opinion, the prevention of the application of s 127 of the District Court Act to the orders made by her Honour, which are the subject of this application for leave to appeal.
It follows from what I have said that I am of the view that s 127 of the District Court Act does not apply to this application and, there being no other basis for jurisdiction in this Court, it should be held that this Court has no jurisdiction to deal with this matter.
Accordingly, I propose that the application be dismissed with costs.

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LAST UPDATED: 23/08/2002

[2002] NSWCA 225

23 August 2002