North Sydney Council v Plater - [2002] NSWCA 225

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…

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.

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Details

Case: [2002] NSWCA 225
Decision Date: 23 August 2002

CaseChat Overview and Summary

This matter concerned an appeal to the Supreme Court of New South Wales against orders made by the District Court of New South Wales, purportedly made pursuant to the slip rule, which substituted earlier orders. The parties involved were North Sydney Council and Ms Plater.

The primary legal issue before the Supreme Court was whether the District Court retained jurisdiction to set aside or modify an arbitrator's award after an action had been referred to arbitration under section 63A of the *District Court Act 1973* (NSW). This involved determining the interplay between the *District Court Act* and the relevant arbitration legislation, particularly concerning the finality of an arbitrator's award and the limited grounds for judicial intervention.

The Court reasoned that once an action is referred to an arbitrator under section 63A of the *District Court Act*, the provisions of the governing arbitration Act apply, and the District Court's power to determine issues in the action ceases, unless the referral order is revoked. The legislative policy underpinning this framework was the "just quick and cheap disposal of proceedings" through arbitration. The Court emphasised that an arbitrator's award, made under the Act, is generally final and conclusive, not liable to be called in question, except to the extent provided by specific sections, such as section 17. Section 17 limits judicial supervision, with exceptions only for grounds of lack of jurisdiction or denial of natural justice.

The Supreme Court allowed the appeal, setting aside the District Court's orders. It reinstated the arbitrator's award, modified to reflect a verdict and judgment for the defendant (North Sydney Council), with the plaintiff (Ms Plater) to pay the defendant's costs of the rehearing.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.”