Raguz v Sullivan

Case [2000] NSWCA 240
Reported Decision: 50 NSWLR 236

New South Wales


Court of Appeal

CITATION: ANGELA RAGUZ v REBECCA SULLIVAN & ORS [2000] NSWCA 240
FILE NUMBER(S): CA 40650/00
HEARING DATE(S): 22, 23 August 2000
JUDGMENT DATE:
1 September 2000

PARTIES :
ANGELA RAGUZ v REBECCA SULLIVAN, THE JUDO FEDERATION OF AUSTRALIA INC, THE JUDO FEDERATION OF AUSTRALIA INC APPEAL TRIBUNAL, THE COURT OF ARBITRATION FOR SPORT PTY LTD
JUDGMENT OF: Spigelman CJ at 1; Mason P at 1; Priestley JA at 120
COUNSEL: Plaintiff: R G McHugh
1st Defendant: R McColl SC/M Irving
2nd & 3rd Defendant: I Pike
4th Defendant: (22/8) B Walker SC/A Bell
(23/8) T L'Estrange
SOLICITORS: Plaintiff: Murphy's Lawyers
1st Defendant: Slater & Gordon
2nd & 3rd Defendant: Rigby Cooke, Melb
4th Defendant: Allen Allen & Hemsley
CATCHWORDS: Arbitration - award - appeal based on error of law - Commercial Arbitration Act 1984, s40 - "exclusion agreement" - "domestic arbitration agreement" - multipartite agreement based on reading series of documents together - seat or place of arbitration contrasted with place of hearing - Court of Arbitration for Sport - D
DECISION: Proceedings dismissed



THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

                            CA 40650/00

                                SPIGELMAN CJ
                                MASON P
                                PRIESTLEY JA
                        Friday 1 September 2000

    Angela RAGUZ v Rebecca SULLIVAN & ORS


The application related to a dispute about which of two judokas should be nominated as the Australian representative for the Olympic Games in the women’s under-52kg category. That dispute was resolved against the plaintiff in favour of the first defendant by an Award of a Panel of the Court of Arbitration for Sport. The plaintiff challenged that award in the Supreme Court by seeking leave to appeal on a question of law arising out of the award (cf Commercial Arbitration Act 1984 s38(4)). The proceedings were removed into the Court of Appeal. The first defendant and the Court of Arbitration for Sport submitted that the Supreme Court’s jurisdiction was precluded by the existence of an exclusion agreement within s40 of the Act.

At the conclusion of the hearing the proceedings were dismissed. The Court now publishes its reasons.

HELD
(per Spigelman CJ, Mason P and Priestley JA):

1 Various documents signed by the two athletes and the Judo Federation of Australia constituted an interlocking arbitration agreement to submit potential disputes about nomination exclusively to arbitration, including appellate arbitration before the Court of Arbitration for Sports in accordance with the Code of Sports-Related Arbitration.

2 The Supreme Court’s jurisdiction to grant leave to appeal under s38(4) of the Commercial Arbitration Act was here excluded by an “exclusion agreement” operative under s40.

3 The exclusion agreement did not relate to a “domestic arbitration agreement” because the agreed juridical “seat” or “place” of arbitration was Switzerland.

Discussion of the arbitral role of Court of Arbitration for Sport; the concept of the juridical “seat” or “place” of arbitration as distinct from the place of hearing of an arbitration; and changing attitudes of the common law towards arbitration. Scott v Avery

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AGLC
Raguz v Sullivan [2000] NSWCA 240
Case
[2000] NSWCA 240
Decision Date

CaseChat Overview and Summary

Raguz v Sullivan concerned an appeal from an arbitral award made by the Court of Arbitration for Sport. The appellant, Mr Raguz, sought to appeal the award on the grounds of an alleged error of law, pursuant to section 40 of the *Commercial Arbitration Act 1984* (NSW). The respondent, Mr Sullivan, contended that the appeal was barred by an "exclusion agreement" within the meaning of the Act.

The central legal issue before the Court of Appeal was whether the arbitration agreement, which was contained within a series of documents, constituted a "domestic arbitration agreement" for the purposes of the *Commercial Arbitration Act 1984*. If it was a domestic arbitration agreement, then section 40 of the Act would permit an appeal on a question of law, provided there was no exclusion agreement. Conversely, if it was not a domestic arbitration agreement, or if an exclusion agreement was found to exist, the appeal would be barred.

The Court considered the nature of the arbitration agreement, noting that it arose from a multipartite agreement evidenced by a reading of several documents. It distinguished between the "seat" or "place" of arbitration, which determines the curial law governing the arbitration, and the "place of hearing," which is merely a geographical location for the conduct of proceedings. The Court found that the parties had agreed to an arbitration conducted under the rules of the Court of Arbitration for Sport, which, in the context of the agreement, indicated a seat of arbitration outside of Australia. This determination meant the arbitration was not a "domestic arbitration" as defined by the Act, and therefore section 40 did not apply.

Consequently, the Court of Appeal held that it lacked jurisdiction to entertain an appeal on a question of law. The proceedings were dismissed.

Orders

Orders of the court

Proceedings dismissed

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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