ROCCI & ANOR -v- DIPLOMA CONSTRUCTION PTY LTD [1999] WASC 195

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 195
Case No:	ARB:16/1999	Heard:	10 SEPTEMBER 1999
Coram:	MILLER J	Delivered:	19/10/99
No of pages:	18	Judgment Part:	1 of 1
Result:	Application and appeal dismissedLeave to cross-appeal dismissed
PDF Version

Parties:	DAVID ROCCI NAOLI ROCCI DIPLOMA CONSTRUCTION PTY LTD
Catchwords:	Arbitration Appeal Misconduct of proceedings Leave to appeal Turns on own facts
Legislation:	Commercial Arbitration Act 1985, s 38, s 42
Case References:	Antaios Compania Naviera SA v Salen Rederierna AB [1984] 3 WLR 592 Edwards v Bairstow [1956] AC 14 Gas & Fuel Corporation (VIC) v Wood Hall Ltd & Anor [1978] VR 385 Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570 Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 Varley v Spatt [1955] VLR 403 Bellgrove v Eldridge (1954) 90 CLR 613 Bulk Oil (Zug) AG v Sun International Ltd (1984) 1 Lloyd's Rep 531 Minenco Pty Ltd v Abigroup Contractors Pty Ltd WA [1900-91] 4 WAR 336 Pettitt v Dunkley [1971] 1 NSWLR 376

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ROCCI & ANOR -v- DIPLOMA CONSTRUCTION PTY LTD [1999] WASC 195 CORAM : MILLER J HEARD : 10 SEPTEMBER 1999 DELIVERED : 19 OCTOBER 1999 FILE NO/S : ARB 16 of 1999

ARB 17 of 1999

BETWEEN : DAVID ROCCI

NAOLI ROCCI

Applicants (Claimants & Cross Respondents)

AND

DIPLOMA CONSTRUCTION PTY LTD

Respondent (Respondent & Cross Claimant)

Catchwords:

Arbitration - Appeal - Misconduct of proceedings - Leave to appeal - Turns on own facts

Legislation:

Commercial Arbitration Act 1985, s 38, s 42

Result:

Application and appeal dismissed

Leave to cross-appeal dismissed

(Page 2)

Representation:

Counsel:

Applicants (Claimants & Cross Respondents) : Mr R Godecke

Respondent (Respondent & Cross Claimant) : Mr A Metaxas

Solicitors:

Applicants (Claimants & Cross Respondents) : Griffiths & Godecke

Respondent (Respondent & Cross Claimant) : Arthur Metaxas

Case(s) referred to in judgment(s):

Antaios Compania Naviera SA v Salen Rederierna AB [1984] 3 WLR 592
Edwards v Bairstow [1956] AC 14
Gas & Fuel Corporation (VIC) v Wood Hall Ltd & Anor [1978] VR 385
Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570
Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724
Varley v Spatt [1955] VLR 403

Case(s) also cited:

Bellgrove v Eldridge (1954) 90 CLR 613
Bulk Oil (Zug) AG v Sun International Ltd (1984) 1 Lloyd's Rep 531
Minenco Pty Ltd v Abigroup Contractors Pty Ltd WA [1900-91] 4 WAR 336
Pettitt v Dunkley [1971] 1 NSWLR 376

(Page 3)

1 MILLER J: In ARB 16 of 1999 the applicants seek leave to appeal a number of aspects of an interim award of Arbitrator A B Goold dated 31 May 1999. In the alternative, in relation to a number of aspects of that award, the applicants contend that the arbitrator misconducted the proceedings and that the award should therefore be…

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: [1999] WASC 195
Decision Date

CaseChat Overview and Summary

The applicants, David Rocci and Naoli Rocci, sought leave to appeal certain aspects of an interim arbitration award dated 31 May 1999 by Arbitrator A B Goold. They contended that the arbitrator had misconducted himself by engaging in irregular and incorrect procedures. Alternatively, they sought leave to appeal on the ground that the arbitrator had made an error of law by misapplying the contract between the parties. In addition, the respondent, Diploma Construction Pty Ltd, sought leave to appeal on the basis of errors of law in the interpretation of cl 17(e) of the building contract. The Court was required to determine whether the arbitrator had misconducted himself and whether leave should be granted to appeal on the basis of an error of law. The Court found that the arbitrator had not misconducted himself and that there was no manifest error of law on the face of the award. The Court also found that the respondent had effectively abandoned its contention that it was entitled to be discharged under cl 17(e) of the contract, and that the matter was not properly before the arbitrator. The Court refused leave to appeal and found no misconduct on the part of the arbitrator.

Orders