Thoroughvision Pty Ltd v Sky Channel Pty Ltd

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

LIST C

No. 206 of 2010

THOROUGHVISION PTY LTD (ACN 100 040 033)

Plaintiff

v

SKY CHANNEL PTY LIMITED (ACN 009 136 010)

TABCORP HOLDINGS LIMITED (ACN 063 780 709)

First Defendant

Second Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 29 March 2010
DATE OF JUDGMENT:	22 April 2010
CASE MAY BE CITED AS:	Thoroughvision Pty Ltd v Sky Channel Pty Limited & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 139

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ARBITRATION – Arbitration under the Commercial Arbitration Act 1984 (Vic) – Judicial review of awards – Application for leave to appeal an award – s 38 of the Commercial Arbitration Act 1984 (Vic) – Meaning of “manifest error of law on the face of the award” – Reference to arbitration of the question of construction of a document – Anaconda Operations Pty Ltd v Fluor Australia Pty Ltd [2003] VSC 275 – Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570 – Thiess Pty Ltd v ConnectEast Nominee Company Pty Ltd [2008] VSC 287

ARBITRATION – Arbitration under the Commercial Arbitration Act 1984 (Vic) – Application to set aside the award – s 42 of the Commercial Arbitration Act 1984 (Vic) – Meaning of “misconduct” – s 29(1)(c) of the Commercial Arbitration Act 1984 (Vic) – Requirement for Arbitrator to give reasons – Standard of reasons required – Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 346 – Gordian Runoff Limited v Westport Insurance Corporation [2010] NSWCA 57

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N.J. Young QC with Mr P.H. Solomon and Ms K. Foley Lowe	Clayton Utz
For the Defendants	Mr A.C. Archibald QC with Mr P.J. Brereton SC and Ms R.C.A. Higgins	Freehills

HIS HONOUR:

Background

1. The parties entered into a Deed of Arbitration dated 25 November 2009 engaging the Honourable Peter Heerey QC as arbitrator (“the Deed of Arbitration”).  The learned arbitrator is a recently retired judge of the Federal Court of Australia (who is referred to, for convenience, as “the Arbitrator”).

1. The Deed of Arbitration was entered into for the purposes of the dispute resolution provisions of clause 8 of a Memorandum of Understanding made between the parties, dated 1 February 2007 (“the MOU”).

1. The Deed of Arbitration recites that various disagreements had arisen between the defendants, Sky Channel Pty Ltd and Tabcorp Holdings Limited (“the Sky parties”) and the plaintiff, Thoroughvision Pty Ltd (“TVN”).  The Deed also recites that the Sky parties and TVN had attempted to resolve their disagreements without success and, in these circumstances, agreed to submit to a binding arbitration in relation to the issues remaining in dispute between them.[1]  The MOU makes provision for arbitration of this nature in Clause 8.[2]

   [1]Deed of Arbitration, Recital 4.

   [2]See Clause 8(d) which provides: “The Expert will first attempt to mediate between the Notifying Party and each Other Party but if such mediation is unsuccessful the…