ENERGY BRIX AUSTRALIA CORPORATION PTY LTD v NATIONAL LOGISTICS COORDINATORS (MORWELL) PTY LTD and Others

5 VR 353·Winneke P, Ormiston, Phillips, Buchanan and Vincent JJA
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5 VR 353
ENERGY BRIX AUSTRALIA CORPORATION PTY LTD v NATIONAL LOGISTICS COORDINATORS (MORWELL) PTY LTD and Others SUPREME COURT OF VICTORIA Winneke P, Ormiston, Phillips, Buchanan and Vincent JJA 17, 18 June, 08 August 2002 [2002] VSCA 0113 Arbitration and awards — Appeal — Appeal from decision of arbitrator — To judge of the Supreme Court — Appeal by leave — Upon demonstrating “manifest error of law on the face of the award” — Whether judge should state reasons for granting or refusing leave — Appeal from decision of judge refusing leave — Whether appeal lies to Court of Appeal — Whether right of appeal expressly excluded by statute — Commercial Arbitration Act 1984 (No 10167) s 38 — Supreme Court Act 1986 (No 110) ss 17(2), 17A..

Section 17(2) of the Supreme Court Act 1986 provided that “unless otherwise expressly provided by this or any other Act” an appeal lay to the Court of Appeal from determinations of judges of the Trial Division of the Supreme Court. Section 38 of the Commercial Arbitration Act 1984 provided, in part:

  • (a)with the consent of all the other parties to the arbitration agreement; or
  • (b)subject to section 40, with the leave of the Supreme Court.
  • (a)having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and
  • (b)there is —
    • (i)a manifest error of law on the face of the award; or
    • (ii)strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law.”

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