Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq)

Sapphire (SA) Pty Ltd, trading as River City Grain, brought an appeal against Barry Smith Grains Pty Ltd, in liquidation, concerning a dispute arising from a commercial arbitration. The central issue was whether leave to appeal to the Supreme Court should be granted on questions of law emanating from a commercial arbitration award. The appeal hinged on the threshold requirements set out in section 38(5) of the Commercial Arbitration Act 1984 (NSW). These requirements involve determining whether the resolution of the relevant questions of law could substantially affect the rights of one or more parties to the arbitration agreement and whether there is either a manifest error on the face of the award or strong evidence that the Tribunal made an error of law. If these conditions are met, the determination of that question may add or be likely to add substantially to the certainty of commercial law.

The court meticulously examined whether the appeal met the criteria outlined in section 38(5). It considered whether there was a manifest error on the face of the award or strong evidence of an error of law that could affect the commercial law's certainty. The court determined that the appeal satisfied the threshold requirements as the determination of the questions of law could substantially affect the parties' rights and potentially add to the certainty of commercial law. Therefore, the court exercised its discretion to grant leave to appeal concerning one specific question of law. Additionally, the court addressed the application of the Home Office v Harman implied undertaking, which concerns the use of documents obtained during another arbitration in the subject arbitration or these proceedings.