ReSolution Issue 10 August | Page 13

According to his Honour, if the Builder required more time to deal with the new point, it could have sought an adjournment. But it could not afford to simply ignore the point, which it did to its peril. Moreover, section 18 did not require the Arbitrator to warn the parties in relation to his proposed findings. It was sufficient for the point to have been raised in the Builder’s reply submissions.

Croft J noted that while the “unable to present case” and “public policy” grounds in section 34 and 36 are conceptually different, they were practically indistinguishable as applied to the facts of the case.

His Honour also noted that while the new Commercial Arbitration Acts do not (unlike the International Arbitration Act – see sections 8(7a) and 19) expressly provide that a breach of natural justice in connection with the making of an award will constitute a breach of “public policy”, this may be inferred and that the Commonwealth provisions were inserted to “avoid doubt”.

Comment

Whether a party has been afforded a reasonable opportunity to present its case is a question of fact and degree. The case in question is a borderline one. The arbitration had been conducted on the basis that one or other party had validly terminated the contract. Whether the contract had been mutually abandoned and the legal consequences of mutual abandonment (in terms of relief) had not been fully explored.

It is unfortunate that the Arbitrator did not squarely raise the new point at the final oral hearing (or indeed, thereafter) before deciding the case. It is not good arbitral practice for an arbitrator to decide a case on a particular basis without squarely giving the losing party an opportunity to address it. Be that as it may, it is a separate question whether an award should be set aside, or its enforcement resisted, on the basis that the losing party has not been afforded a reasonable opportunity to present its case. This decision demonstrates that the objecting party must be able demonstrate real practical unfairness before it can succeed on this ground.

AUTHOR PROFILE

B.Ec, LLB (Hons), LLM, Grad Dip Intell Prop

Albert practises as a barrister, arbitrator and mediator practicing in Australia. He has over 20 years experience. He is a Grade 1 arbitrator and is accredited as an advanced mediator. He was appointed Senior Counsel in 2010.

Albert is a principal arbitrator and mediator with NZDRC. For more on Albert Monichino QC CLICK HERE

- Albert Monichino QC