Allen v Henry [1999] VSC 238

Supreme Court of Victoria|1999-06-30|Before: O'Bryan J

For the reasons applicable to Error 1, I am of the opinion that it was within the discretion conferred by s.14 of the Act for the Arbitrator to determine the order or manner in which he would consider the issues and no manifest error of law is shown.

(i) "The Arbitrator erred in law in concluding that, subject only to the question of Henry's authority to have ACA join in the ICC arbitration, there would seem to be no reason why ACA should not be free to pursue those claims regardless of the allegations in paragraph 26 of the points of the claim.

Mr Archibald submitted that the Arbitrator looked at the question of Henry's exercise of authority under Article 5 of the Partnership Agreement to permit ACA to become a party to the ICC Arbitration too narrowly as an authority issue and he ignored the question whether the exercise of authority, if empowered by Article 5, was in breach of fiduciary duties arising out of or under the partnership agreement.

In my opinion, the Arbitrator identified the two questions as separate issues and properly exercised his discretion to postpone the fiduciary duty issue for the reasons I gave earlier. No manifest error of law is shown.

(I) proceeding to consider whether he should stay consideration of issues before the ICC Arbitration until such time as they have been resolved in those proceedings whilst simultaneously recognising that he was not concerned with a stay;

(II) alternatively, if the hearing was also concerned with the question of a stay, by finding that he was not concerned with the ordering of any stay and declining to consider whether or not he had the power to order a stay".

Mr Archibald's argument simply supported the matters stated above.

In my opinion, once the Arbitrator found that both limbs of the dispute fell within Article 39 of the ACA partnership agreement he was compelled to consider whether he could, and should, entertain the paragraphs in the Points of Claim which related to the ICC claims and their consequences. The overlap between matters in issue in the Australian arbitration and the ICC arbitration was obvious from a reading of the Points of Claim in each reference.

The alleged "Error 4" in my opinion, is not a manifest error in law.

"(1) The Arbitrator erred in law in finding that if there were evidence to support a suggestion that the Arbitration had been initiated so as to prevent ACA from continuing the ICC Arbitration that would itself strongly suggest that proceedings before the Arbitrator were vexatious. (2) The Arbitrator erred in law in concluding that it was oppressive to seek to have determined the issue of whether or not as between ACA and AAA the ICC claims had no prospect of success."

Mr Archibald submitted that the applicants do not conceal that their aim is to prevent ACA from continuing in the ACA arbitration.

The observations of the Arbitrator to which exception is taken in Error 5 have been misunderstood, I consider. Upon a fair reading of the paragraph on page 12 I believe the Arbitrator meant that, if the claimants capriciously initiated the arbitration in Australia, the proceedings would be vexatious. However, no finding that the Australian arbitration is vexatious was made by the Arbitrator.

No error of law can arise out of the Arbitrator's conclusion expressed in sub-paragraph (2) above. Comity between courts, tribunals and arbitrators will not permit one court to determine in the proceeding before it that a claim of a similar kind in another jurisdiction has no prospect of success.

(i) "The Arbitrator erred in law in concluding that he should defer until the outcome of the ICC Arbitration any consideration of the issues which are also before it for adjudication. (ii) The Arbitrator erred in law in concluding that the paragraphs of the Points of Claim which are not to be considered were matters which fell within the scope of the ICC Arbitration. (iii) The Arbitrator erred in law in confining the scope of the Arbitration to only the issues raised in paragraphs 1 to 25, 33(a) and 34(a), (b) and (c)."

In my opinion, when the Arbitrator concluded that the breach of fiduciary duty issue be stayed because the allegations that supported the issue fell within the scope of the current ICC Arbitration, he had no option but to exercise his discretion the way he did, namely, to confine the Australian arbitration to the issues raised in paragraphs 1 to 25, 33(a) and 34(a), (b) and (c) of the Points of Claim.

"The arbitrator erred in law in concluding that the ICC Arbitrator had only declined jurisdiction in any dispute confined narrowly to Henry's power under Article 5."

This is a catch-all allegation and does not show a manifest error of law.

In my opinion, the application for leave to appeal the Interim Award should be refused.

It is open to the claimants to apply to amend the Points of Claim when the hearing of the Australian arbitration resumes so as to confine the fiduciary duty issue to the ACA Partnership Agreement.

Leave to appeal the Interim Award pursuant to s.38 is refused. The Summons is dismissed with costs.

Arbitration Act 1984

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