Part 5 Arbitration of proceedings
(cf Act No 43 1983, section 3)
In this Part:arbitrator means an arbitrator appointed under section 36.
award means an arbitrator’s award under section 39.
referred proceedings means proceedings the subject of an unrevoked reference to an arbitrator under section 38.
referring court, in relation to referred proceedings, means the court by which the proceedings have been referred.
36 Appointment to office as arbitrator
(cf Act No 43 1983, section 5)
(1) The senior judicial officer of the court may appoint suitable persons to be arbitrators to hear and determine referred proceedings.(2) A person is not eligible to be appointed as an arbitrator unless the person is a former judicial officer, a barrister nominated by the Bar Council or a solicitor nominated by the Law Society Council.(3) The senior judicial officer concerned may, and if the nominating body so requests in writing must, revoke an appointment under this section.(4) An appointment, or revocation of appointment, of an arbitrator is to be made by instrument in writing signed by the senior judicial officer.(5) An arbitrator may resign office by instrument in writing delivered to the senior judicial officer.(6) An arbitrator is entitled to such remuneration as the Minister may from time to time determine.(7) An arbitrator’s remuneration is to be paid out of money provided by Parliament.
(cf Act No 43 1983, section 7)
(1) The jurisdiction conferred on an arbitrator by this Part in relation to referred proceedings is part of the jurisdiction of the court by which the proceedings were referred.(2) Subject to this Part, but without limiting the specific powers and authorities of an arbitrator under this Part, an arbitrator has and may exercise, in relation to referred proceedings, all of the functions of the court by which the proceedings were referred.(3) Subsection (2) does not confer on an arbitrator functions of the court which are the same as, or similar to, the functions conferred by sections 52 and 53 or any other functions in respect of contempt.(4) The functions conferred on an arbitrator may be exercised only:(a) for the purpose of determining the issues in dispute in referred proceedings, and(b) for the purpose of making an award in referred proceedings, and(c) for related purposes.(5) Subject to this Part, a tribunal (other than the arbitrator to whom proceedings have been referred for determination) has no jurisdiction in respect of any issue in dispute in the proceedings while those proceedings are before the arbitrator.(6) In subsection (5), tribunal means any court, tribunal, board or other body, or any person, empowered by an Act or by agreement of parties to determine by litigation, arbitration, conciliation or otherwise any issue that is in dispute.
(cf Act No 52 1970, section 76B; Act No 9 1973, section 63A; Act No 11 1970, section 21H)
(1) The court may order that proceedings before it:(a) in respect of a claim for the recovery of damages or other money, or(b) in respect of a claim for any equitable or other relief ancillary to a claim for the recovery of damages or other money,be referred for determination by an arbitrator.(2) Before making such an order in relation to any proceedings, the referring court:(a) is to consider the preparations made by the parties for the hearing of the proceedings, and(b) is, as far as possible, to deal with all matters that may be dealt with by the court on application to the court before the hearing of the proceedings, and(c) is to give such directions for the conduct of the proceedings before the arbitrator as appear best adapted for the just, quick and cheap disposal of the proceedings.(3) The referring court may not make such an order in relation to any proceedings if:(a) no issue in the proceedings is contested or judgment in the proceedings has been given or entered and has not been set aside, or(b) rules of court provide that such an order may not be made in relation to proceedings of that kind, or(c) cause is otherwise shown why the proceedings should not be so referred.(4) At any time before the making of an award in relation to referred proceedings, the referring court may revoke an order under this section and give directions for the subsequent conduct of the proceedings and directions as to any costs incurred before the revocation of the order.(5) This section does not limit any other power of the court to refer a matter to arbitration.
39 Determination by arbitrator
(cf Act No 43 1983, section 15)
(1) The issues in dispute in referred proceedings are to be determined by the arbitrator on the evidence adduced before the arbitrator.(2) The arbitrator must record the arbitrator’s determination of the proceedings, and the reasons for the determination, by an award in writing signed by the arbitrator.(3) The arbitrator must immediately send the award to the referring court.(4) An arbitrator may not make a determination that could not have been made had the proceedings been heard and determined by the referring court.(5) Despite subsection (4), an award does not fail to have full effect, and may not be called in question, by reason only that the amount awarded exceeds the amount claimed in the proceedings to which the award relates.
40 Award taken to be judgment of court
(cf Act No 43 1983, section 16A; Act No 52 1970, section 76B (5); Act No 9 1973, section 63A (5); Act No 11 1970, section 21H (5))
Subject to section 41 and Division 3, an award is final and conclusive, and is taken to be a judgment of the referring court:(a) if it is expressed to be made by consent of all the parties, on the date on which it is received by the referring court, or(b) in any other case, at the expiry of 28 days after it is sent to all of the parties.
41 Judicial supervision of arbitrator
(cf Act No 43 1983, section 17)
(1) No relief lies:(a) under section 69 or 101 of the Supreme Court Act 1970, or(b) by way of declaratory judgment or order, or(c) by way of injunction, or(d) under section 126, 127 or 128 of the District Court Act 1973, or(e) under section 39 or 40 of the Local Court Act 2007,in relation to proceedings under this Act on referred proceedings.(2) Subsection (1) does not apply if the relief is sought on the ground of a lack of jurisdiction or a denial of natural justice.
(cf Act No 43 1983, section 18)
(1) A person aggrieved by an award may apply to the referring court for a rehearing of the proceedings concerned.(2) The application may (but need not) request that the rehearing be a full rehearing or limited rehearing.(3) The award is suspended from the time the application is made until an order for rehearing is made.
(cf Act No 43 1983, section 18A)
(1) The referring court must order a rehearing of proceedings the subject of an award if an application for rehearing is made before the award takes effect.(2) An order for rehearing may not be made unless the amount claimed in the proceedings, or the value of the property to which the proceedings relate, exceeds the jurisdictional limit of the Local Court when sitting in its Small Claims Division.(3) An order for rehearing need not be made if it appears to the court that the applicant failed to attend a hearing before an arbitrator without good reason.(4) In an order for rehearing, the referring court may direct that the rehearing be a full rehearing or a limited rehearing, as the court thinks appropriate, and may do so regardless of whether the applicant requested a full rehearing or a limited rehearing or made no such request.(5) In the absence of a direction under subsection (4), the rehearing is to be a full rehearing.(6) An order for a limited rehearing must specify the aspects that are to be the subject of the rehearing, whether by reference to specific issues in dispute, specific parties to the dispute or otherwise.(7) The referring court may amend an order for rehearing at any time before or during a rehearing.
(cf Act No 43 1983, section 18B)
(1) If an order is made for a full rehearing, the award ceases to have effect and the proceedings are to be heard and determined in the referring court as if they had never been referred to an arbitrator.(2) If an order is made for a limited rehearing:(a) the award is suspended from the time the order is made until the proceedings are determined, and(b) the aspects ordered to be dealt with at the limited rehearing are to be heard and determined in the court concerned as if they had not been dealt with in the arbitration, and(c) following the rehearing, the court may reinstate the award with such modifications (if any) as the court thinks appropriate, and(d) the award, as reinstated, is final and conclusive, and is taken to be a judgment of the referring court.(3) Subject to this Division, this Act and the uniform rules apply to proceedings on a rehearing in the same way as they apply to any other civil proceedings.
45 Discontinuance of rehearing
(cf Act No 43 1983, section 18D)
(1) A rehearing may be discontinued, but only with the consent of all parties or by leave of the court.(2) If a rehearing is discontinued, the court is to reinstate the award from which the rehearing has arisen.(3) An award that is reinstated under this section:(a) is final and conclusive, and(b) is taken to be a judgment of the referring court, and(c) unless the court otherwise orders, is taken to have had effect as such a judgment as from the date on which it would have taken effect under section 40 (b) had no application for a rehearing been made under this Division.Note. Under section 40 (b), the award would have taken effect at the expiry of 28 days after it was sent to all of the parties.
(cf Act No 43 1983, section 18C)
(1) A court that hears and determines proceedings on a full rehearing:(a) may make an order for costs in respect of the rehearing, and(b) may, in addition, make an order for costs in respect of the hearing under Division 2.(2) A court that hears and determines any aspect of proceedings on a limited rehearing:(a) may make an order for costs in respect of the rehearing as to that aspect, and(b) may, in addition, make an order for costs in respect of the hearing as to that aspect under Division 2.(3) This section applies to proceedings in respect of which a rehearing is discontinued under section 45 in the same way as it applies to proceedings that are heard and determined on a rehearing.
47 Subpoena at rehearing against arbitrator
(cf Act No 43 1983, section 18E)
A subpoena for the giving of evidence or the production of documents at a rehearing is not to be issued against the arbitrator to whom the proceedings concerned were referred just because the evidence or documents relate to the arbitration.
(cf Act No 43 1983, section 8)
A party to referred proceedings before an arbitrator has the same rights as to:(a) representation by a barrister or solicitor, or otherwise, and(b) examination and cross-examination of witnesses,as the party would have in relation to proceedings before the referring court.
(cf Act No 43 1983, section 10)
(1) Subject to this Act and any directions given by the referring court, the procedure at an arbitration is to be determined by the arbitrator.(2) Subject to the rules of evidence, an arbitrator must act according to equity, good conscience and the substantial merits of the case without regard for technicalities or legal forms.
(cf Act No 43 1983, section 11)
A referring court has the same powers with respect to:(a) ordering persons to attend as witnesses at referred proceedings or to attend and produce documents at referred proceedings, and(b) enforcing compliance with any such orders,as it would have had in respect of the proceedings had they been heard and determined by the court.
(cf Act No 43 1983, section 13)
(1) Subject to the uniform rules, evidence in referred proceedings before an arbitrator is to be given and received in the same way as it would be given and received before the referring court.(2) Subsection (1) does not require any such evidence to be recorded.(3) An arbitrator may administer an oath or take an affidavit for the purposes of referred proceedings.(4) Referred proceedings are taken to be judicial proceedings for the purposes of section 327 (Offence of perjury) of the Crimes Act 1900.
52 Refusal or failure to take oath etc
(cf Act No 43 1983, section 12)
(1) If, at any hearing of referred proceedings, a witness:(a) refuses or fails to take an oath when required by the arbitrator to do so, or(b) refuses or fails to answer a question that the witness is required by the arbitrator to answer,the arbitrator or a party to the proceedings may apply to the referring court for an order that the witness attend before the court for examination.(2) Unless satisfied that there was a reasonable excuse for the refusal or failure of the witness to take the oath or answer the question, the referring court must make the order applied for.(3) A court before which a witness attends and gives evidence pursuant to such an order may order the transmission to the arbitrator of the transcript of evidence.(4) Any such evidence is taken to have been given at the hearing before the arbitrator.(5) Failure to comply with an order under this section constitutes a contempt of the referring court, committed in the face of the court.
(cf Act No 43 1983, section 14)
(1) A person must not:(a) wilfully insult an arbitrator while the arbitrator is hearing referred proceedings or proceeding to or from such a hearing, or(b) wilfully insult a person in attendance at such a hearing or proceeding to or from such a hearing, or(c) wilfully misbehave during the hearing of referred proceedings, or(d) wilfully and without lawful excuse interrupt the hearing of referred proceedings, or(e) assault or wilfully obstruct an arbitrator or other person during the hearing of referred proceedings, or(f) without lawful excuse, disobey a lawful direction given to the person by an arbitrator during the hearing of referred proceedings.(2) An arbitrator may direct a person who contravenes subsection (1) to leave the sitting of the arbitrator at which the contravention occurs and the person to whom the direction is given must immediately comply with the direction.(3) Failure to comply with such a direction constitutes a contempt of the referring court, committed in the face of the court.
(cf Act No 43 1983, section 16)
(1) An arbitrator may make orders with respect to the payment, as between the parties, of the costs of referred proceedings.(2) An arbitrator has the same powers in relation to an order for costs under subsection (1) as the referring court would have had if the hearing before the arbitrator had been a hearing before the court.(3) This section does not limit the power of the referring court to make orders under section 98 with respect to the costs of referred proceedings.
55 Protection from liability for arbitrator
(cf Act No 43 1983, section 6)
An arbitrator to whom the court refers proceedings has, in the exercise of his or her functions as an arbitrator in relation to those proceedings, the same protection and immunity as a judicial officer of the court has in the exercise of his or her functions as a judicial officer.