ReSolution Issue 14, August 2017 | Page 29

Mangatu then sought leave to appeal to the Court of Appeal against that judgment, on grounds including that the judgment failed to identify any error of law in the damages award, and wrongfully concluded that the arbitrator had pre-determined damages. Mangatu also sought permission to adduce further evidence relating to the arbitrator’s actions following the previous damages appeal decision, in support of its application for leave to appeal.
Decision
In reaching his decision to dismiss the application for appeal, Heath J considered the legal principles in relation to granting leave to appeal. Given arbitration is a consensual process designed to enable parties to obtain a binding decision on a dispute[4], Heath J observeded that generally speaking, no challenge may be made to an arbitrator’s factual findings, and that there are limited circumstances in which arbitral awards may be challenged in the High Court.
His Honour went on to reiterate that Forest Holdings’ first appeal was heard following the grant of leave to appeal on a question of law under clause 5(1)(c) of the Second Schedule to the Arbitration Act 1996 (Act). Further, that Clause 5(5) of the Second Schedule of the Act confers jurisdiction on the High Court to determine whether leave should be granted to appeal to the Court of Appeal.
Heath J considered the Court of Appeal’s approach to the application of clause 5(5) in Cooper v Symes (No 2).[5] citing Randerson J’s summary at para [12]:
“(a) The appeal must raise some question of law . . . capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.
(b) Upon a second appeal, the Court of Appeal is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below.
(c) Not every alleged error of law is of such importance either generally or to the parties as to justify further pursuit of litigation that has been twice considered and ruled upon by a Court.”
In determining whether there was any need for him to consider the additional evidence proposed by Mangatu to determine whether there was a qualifying question of law fit for submission to the Court of Appeal for decision[6], His Honour referred to Wylie J’s discussion of jurisdiction to admit further evidence in Fresh Direct Ltd v JM Batten & Associates in which Wylie J admitted some evidence relevant to the importance of the question arising on the application for leave to appeal, but ruled other evidence inadmissible: