Decision Standard of review Justice Croft noted at [25] that there was a lack of Australian authority on the nature of the review by a court under Article 16 of the Model Law or section 16(9) of the new uniform domestic arbitration Acts, and that the Model Law neither prescribed nor expressly resolved the question of the standard of judicial review of jurisdictional rulings.[2] His Honour then surveyed the law in Singapore, Hong Kong, England and New Zealand, and the views expressed in the major commentaries.[3] Two approaches are available. First, the “de novo” review approach, which involves the court (at the seat) determining the jurisdictional question afresh based on the evidence before the arbitral tribunal.[4] Alternatively, “appellate-type” review, which involves finding some fault in the arbitral tribunal’s approach or conclusion in its ruling on jurisdiction. His Honour noted that the de novo review approach was generally adopted in the common law jurisdictions surveyed by him, and that to allow the arbitral tribunal to be the final arbiter of its own jurisdiction is a “classic case of pulling oneself up by one’s own bootstraps”.[5] His Honour concluded (at [40]): “On the basis of these authorities and commentaries, the position is, in my view, that a hearing de novo is the correct standard of review to be applied under s 16(9) of the CAA. Deference should duly be given to the cogent reasoning of the arbitral tribunal but the Court is the final "arbiter” on the question of jurisdiction. As has been observed, this is an aspect of court assistance and support of arbitral processes and is not at odds with the policy of minimal court intervention or "interference”.
Was the DBCA engaged? Section 54 of the DBCA relevantly provides that a domestic building dispute is a dispute arising between a builder and a subcontractor in relation to the carrying out of domestic building work. “Domestic building work” is defined in section 3 as any work referred to in section 5 that is not excluded from the operation of the Act by section 6. Section 5 states that the Act applies to the erection or construction of a home, including any associated work. Section 6 provides that the Act does not apply to any work that any regulations (made under the Act) state is not building work to which the Act applies. Regulation 7 of the Domestic Building Contracts Regulations 2017 (Vic) relevantly provides that if work is to be carried out under a contract for only a single type of work, (relevantly, in this case, plastering), such work is not building work to which the DBCA applies. Finally, section 14 effectively provides: "Any term in a domestic building contract or other agreement that requires a dispute under contract to be referred to arbitration is void." The definition of “domestic building contract” in section 3 expressly excludes a contract between a builder and a subcontractor. Croft J observed (at [9]): “The DBCA, if it applies to this dispute, clearly excludes the possibility of arbitration”. His Honour later observed (at [15(b)]: “if the DBCA applies, section 14 will render the arbitration agreement void…”