Ultimately, Croft J held that the DBCA was not engaged. Therefore it was not strictly necessary for him to consider the second question. In the end result, Croft J’s views on the operation of section 14 were strictly obiter. While it may have been the overwhelming policy of the DBCA to create a “one stop” for the resolution of domestic building disputes (as observed by Croft J at [17]), that is not to say that Parliament intended, by enacting section 14, to take the drastic step of depriving builder and subcontractors of their contractual freedom to resolve their disputes in any manner they see fit.
End Notes
[1] The Victorian Civil and Administrative Tribunal (VCAT) is a statutory tribunal established in Victoria in 1998. [2] Citing GB Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014), 1108. [3] Including GB Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014); HM Holtzman and JE Neuhaus, A Guide To The UNCITRAL Model Law On International Commercial Arbitration (Kluwer Law International, 2015); P Binder, International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions (Thomson Reuters, 3rd ed, 2010); DAR Williams and A Kawharu, Williams & Kawharu on Arbitration, (LexisNexis, 2011). [4] Or even, perhaps, with additional evidence that was not adduced in the arbitration. [5] Citing Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2010] UKSC 46, [2011] AC 763, [159] (Lord Saville). [6] “Insulating” was a separate type of work listed in Regulation 7. [7] Which was not given in the arbitration. [8] Compare Doyle v Hornsby Shire Council [2018] NSWLEC 45, where an expert witness has a pecuniary or other direct or indirect interest in the outcome of the proceedings, his or her evidence may be excluded. [9] Referring to AQZ v ARA [2015] SGHC 49 per Prakash J. [10] Doug Jones, Commercial Arbitration in Australia (Lawbook Co, 2011), [6.210]). [11] Which turned on whether Regulation 7 was engaged.
ABOUT THE AUTHOR
Albert Monichino QC
Albert practises as a barrister, arbitrator and mediator, and is based in Melbourne, Australia. He has over 25 years’ experience. He is a Chartered Arbitrator and is accredited as an advanced mediator. He was appointed Senior Counsel in 2010.
He has a general commercial litigation practice in the superior Court of Australia, and also in commercial arbitrations (domestic and international).
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