Island Industries Pty Limited v Administrator of Norfolk Island - [2004] FCAFC 49 - FCAFC 1996 case summary — Zoe

CTHFCAFC

Island Industries Pty Limited v Administrator of Norfolk Island

[2004] FCAFC 49

Federal Court of Australia (Full Court)|1996-05-29|Before: Bainton J, Lander J, Lander JJ, Gray J

View original source

At a glance

Source facts

Court

Federal Court of Australia (Full Court)

Decision date

1996-05-29

Before

Bainton J, Lander J, Lander JJ, Gray J

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

REASONS FOR JUDGMENT GRAY J: 1 The central question in this appeal from a judgment of a judge of the Supreme Court of Norfolk Island ('the NI Supreme Court') relates to the jurisdiction of that court. It is whether, by a combination of s 5(1) of the Supreme Court Act 1960 (NI) ('the Supreme Court Act') and s 56 of the Commercial Arbitration Act 1986 (ACT) ('the Arbitration Act'), the Supreme Court of Norfolk Island has jurisdiction to order that leave be granted to enforce the award of an arbitrator, to whom the parties have submitted their dispute by agreement, in the same manner as a judgment of the NI Supreme Court. 2 I have read in draft form the reasons for judgment of Lander J, in which his Honour sets out at length the facts, the history of proceedings between the parties to the appeal and the issues. I need not repeat them. I agree with his Honour that, for the reasons he gives, the appeal should be allowed and the orders of the learned primary judge should be set aside. For those orders, there should be substituted orders that the motion the subject of the notice of motion filed by the respondents to this appeal in proceeding number SC11 of 2002 be dismissed and that the respondents pay the appellant's costs of that proceeding. There should also be an order that the respondents pay the appellant's costs of this appeal. 3 I wish only to add to the reasons given by Lander J some short remarks of my own about three matters. 4 The first of those matters concerns the central question in the appeal. In its terms, s 56 of the Arbitration Act confers jurisdiction on the Supreme Court of the Australian Capital Territory ('the ACT Supreme Court'). It provides: 'Jurisdiction to hear and determine applications and appeals under this Act [the Arbitration Act] is vested in the Supreme Court [the ACT Supreme Court].' 5 The existence of such a grant of jurisdiction to the ACT Supreme Court brings into question in the present case s 5(1) of the Supreme Court Act, which provides that, subject to the Supreme Court Act, the NI Supreme Court: 'has the same jurisdiction in and in relation to the Territory [Norfolk Island] as the Supreme Court of the Australian Capital Territory has in and in relation to the Australian Capital Territory.' 6 There must be a real question whether such a provision should be construed as importing into Norfolk Island statutory provisions, not otherwise in force in Norfolk Island, but in force in the Australian Capital Territory ('the ACT'). The answer may lie in the words 'in and in relation to', used in relation to both Norfolk Island and the ACT in s 5(1) of the Supreme Court Act. 7 Various sections of the Arbitration Act make provision for applications of a number of kinds in relation to arbitrations conducted under the Arbitration Act. The learned primary judge selected from among those applications the one that his Honour believed was appropriate to the proceeding before him, namely that found in s 33(1) of the Arbitration Act. That subsection provides: 'An award made under an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect, and where leave is so given, judgment may be entered in terms of the award.' 8 It is difficult to see how, if the power given by s 33(1) of the Arbitration Act can become a power of the NI Supreme Court, by a combination of s 56 of the Arbitration Act and s 5(1) of the Supreme Court Act, the same would not apply to all of the other powers conferred on the ACT Supreme Court by the Arbitration Act. These would include the power to: appoint a new arbitrator or umpire to fill a vacancy in certain circumstances (s 10); appoint an arbitrator or umpire when one has been removed by the court (s 11); issue a subpoena or summons to require attendance before an arbitrator or umpire for examination or to produce documents (s 17); compel the attendance before the court of a person who does not attend before an arbitrator or umpire in response to a subpoena or summons (s 18); consolidate arbitration proceedings (s 26); correct clerical mistakes, errors arising from accidental slips or omission, miscalculations of figures or mistakes of description, or defects of form (s 30); tax the fees and expenses of an arbitrator or umpire (s 35); make orders in relation to the costs of a failed arbitration (s 36); hear appeals on questions of law arising out of awards (s 38); determine any question of law arising in the course of an arbitration (s 39); set aside an award for misconduct on the part of an arbitrator or umpire or where the award has been improperly procured (s 42); remove an arbitrator or umpire for misconduct, undue influence, incompetence or unsuitability (s 44); terminate arbitration proceedings or prohibit their commencement where there has been undue delay (s 46); make interlocutory orders for the purposes of and in relation to arbitration proceedings (s 47); extend times (s 48); stay proceedings in a court when there is an agreement to arbitrate (s 53); and, where there is an interpleader, direct the issue to be determined in accordance with an arbitration agreement (s 54). Each of these powers, like that given by s 33(1), can be exercised on application to the ACT Supreme Court. Many of them would be deprived of real meaning without the importation of other provisions of the Arbitration Act, particularly those relating to the powers of arbitrators. 9 Plainly, the importation into Norfolk Island of all of these powers would involve a substantial augmentation of the law of Norfolk Island. Parties to arbitration agreements, and in some circumstances arbitrators and umpires, would be able to apply to the NI Supreme Court for the exercise of these powers, many of which would not be otherwise available. To make sense of many of the provisions conferring court powers, it would be necessary to import other provisions of the Arbitration Act. The effect would be to treat the Arbitration Act as having been enacted, at least to a substantial extent, in Norfolk Island when, in fact, it has not. 10 A construction of s 5(1) of the Supreme Court Act according to its purpose would not lead to such a result. Section 5(1) deals with the extent of the judicial power of the NI Supreme Court. It is not directed at all to the legislative power of Norfolk Island. It is not intended to bring into operation in Norfolk Island all, or a substantial part, of every enactment in force in the ACT, which confers jurisdiction on the ACT Supreme Court, but which is not otherwise in force in Norfolk Island. 11 In my view, the effect of the primary judge's conclusion that the NI Supreme Court had the power given by s 33(1) of the Arbitration Act was beyond the terms of s 5(1) of the Supreme Court Act. His Honour's conclusion has the result of giving to s 56 of the Arbitration Act an operation beyond 'in and in relation to' Norfolk Island. Section 56 could only have been operative in relation to the NI Supreme Court 'in and in relation to' Norfolk Island if there had been in operation in Norfolk Island statutory provisions identical to, or at least similar in substance to, those of the Arbitration Act. In the absence of such statutory provisions operating in Norfolk Island of their own force, s 56 of the Arbitration Act must be regarded, from the point of view of the NI Supreme Court, as a grant of jurisdiction empty of any substance. It could not operate 'in and in relation to' Norfolk Island in any meaningful way. 12 For these reasons, additional to those given by Lander J, I am of the view that the NI Supreme Court did not have power, derived from the application of s 33(1) of the Arbitration Act, to make the order made by the primary judge, granting leave to the second and third respondents to enforce the arbitrator's award in the same manner as a judgment or order of the NI Supreme Court. 13 The second matter about which I wish to say something is the history of this litigation. The subject matter of the litigation is an award of the sum of $76 000 in favour of the second and third respondents. Already, the costs incurred in the two proceedings in the NI Supreme Court, and the costs incurred in this appeal, must be out of proportion to the total sum involved. Yet counsel for the appellant gave the Court to understand that the appellant had defences it proposed to raise if it were to succeed in the appeal and the respondents were compelled to sue for breach for contract, as a means of obtaining judgment for the sum awarded. In the light of the fact that the appellant failed in its attempts to set aside the award in proceeding number SC 4 of 2002 in the NI Supreme Court, and has not appealed from that judgment, it would be surprising if there were any issue left to raise about the award. If the appellant had any right to impugn the award it was incumbent on the appellant to pursue that right in proceeding number SC 4 of 2002. To the extent that it has not done so, as well as to the extent that it has, its rights have merged in the judgment in that proceeding. I am unable to see why the doctrine of estoppel by res judicata would not operate to prevent the appellant relying by way of defence, on matters that it could have put in the earlier proceeding. See the analysis by Brennan J in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 611 - 612 of what Dixon J said in Blair v Curran (1939) 62 CLR 464 at 532. 14 Finally, I wish to record a more general observation. The provision still found in s 5(1) of the Supreme Court Act dates from an era when the Commonwealth of Australia had power, by means of ordinances, to determine what should be the statute law of both Norfolk Island and the ACT. Both territories now have legislatures. The ACT is self-governing, so that its legislature can decide, among other things, what jurisdiction is to be conferred on the ACT Supreme Court under statutes operating in the ACT. The powers of the Norfolk Island legislature are perhaps more limited, but are significant. The uncertainty giving rise to the present appeal, about whether the specific conferral of jurisdiction on the ACT Supreme Court by the Arbitration Act had the effect of importing provisions of the Arbitration Act into the law of Norfolk Island, must prompt the question whether some change to s 5(1) of the Supreme Court Act is necessary. Because the Administrator of Norfolk Island is the first respondent to this appeal, this question will no doubt come to the attention of the Administration of Norfolk Island. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

[5]

The Licence 20 The licence contained the following preamble: 'WHEREAS - A. Island Industries Ltd by leases, licences and authorisations granted between 29 October 1970 and 15 October 1997 under the Crown Lands Ordinance 1913 (NI) (repealed) and the Crown Lands Act 1996 (NI) occupied and used an area of Crown Land on Norfolk Island known as Portion 48C (the Land) to operate a basalt rock crushing plant. B. The last such licence granted to Island Industries Ltd expired on 15 October 1998 and, although no further rock crushing has taken place on the land, Island Industries Ltd has not vacated the land. C. Stocks and supplies from crushed rock products on Norfolk Island are virtually exhausted and there is an urgent need for the temporary resumption of rock crushing. D. The rock crushing plant previously operated by Island Industries Ltd on the Land is the only immediate source of supply of crushed rock products for Norfolk Island and the Administration has recommended that the Administrator issue a short term licence to Island Industries Ltd to satisfy the need.' 21 The licence contained a term which provided for rehabilitation of the land. Clause 7 of the licence provided: '7.1 The Licensee must, at it [sic] own cost and expense, and to the satisfaction of the Administrator: (a) remove all structures from the Land; (b) rehabilitate the Land; (c) rehabilitate all areas within the Ball Bay Reserve damaged by the Licensee's activities, whether during the term of this Licence or a previous lease, licence or authorisation. 7.2 The Licensee must: (a) rehabilitate the adjacent properties at its own cost and expense and to the reasonable satisfaction of the owners concerned for all damage caused thereto by the Licensee's activities, whether during the term of this Licence or a previous lease, licence or authorisation; or (b) at the election of an owner, provide the owner with a reasonable sum of money, in lieu of such rehabilitation, to enable such rehabilitation to be carried out by contractors of the owner's choice. 7.3 In the event of a dispute over the cost, type or extent of rehabilitation required by subclauses 7.1 and 7.2, a party to the dispute may give the other party or parties thereto notice in writing of a dispute. If the dispute is not resolved within 20 working days of such a notice, a party to the dispute may by notice in writing served on the other party or parties require the dispute to be resolved by the determination of an independent arbitrator nominated in writing by the Administrator, or if the Administrator is a party to the dispute, by the Chief Magistrate or by an independent person nominated in writing by the Chief Magistrate. The cost of obtaining arbitration shall be borne as the arbitrator directs. The decision of the arbitrator shall be final and binding on the parties and no appeal shall lie therefrom. 7.4 The Licensee must complete all activities required under subclauses 7.1 and 7.2 within 2 months of the expiry or sooner termination of the Licence or by such later time as may be authorised in writing by Administrator. 7.5 If, in the opinion of the Administrator, the Licensee: (a) has not commenced any activities required by subclauses 7.1 or 7.2 at such time that will not lead to their satisfactory completion by the date required under the Licence, (b) is conducting such activities in a manner that will not lead to their satisfactory completion by the date required under the Licence, or (c) has not completed any activities required by subclauses 7.1 or 7.2 by the date required under the Licence. then the Administrator may, by notice in writing to the Licensee, direct the Licensee to undertake such works and activities, and comply with any such time limits, as may be specified in that notice. 7.6 If the Licensee fails to comply with a notice issued under this Licence, the Administrator may, by notice in writing, authorise the Administration or a third party to undertake or complete any or all of the activities which are considered necessary by the Administrator to be carried out as a result of a failure of the Licensee to so comply. 7.7 The costs of carrying out any activities undertaken by the Administration or a third party pursuant to subclause 7.6 shall be a debt payable by the Licensee to the Administrator and the Licensee must pay any such amount upon notice of demand for the same being given to the Licensee. 7.8 The undertakings and requirements contained in this clause shall be without prejudice to: (a) any or all other alleged rights and claims by the owners in respect to suits and actions by them arising out of the Licensee's activities on the Land under this Licence or a previous lease, licence or authorisation; and (b) the Licensee's own rights and the rights of its insurers under any Public Risk Liability Insurance as to subrogation or any other relevant consideration.' 22 The parties to the licence were the Administrator and Island Industries Pty Ltd. Two Directors of Island Industries Ltd were also guarantors and to that limited extent were parties to the licence. 23 The second and third respondents, of course, were not parties to the Licence so those respondents were not entitled to any contractual rights arising out of the issue of the licence. 24 Clause 7.2 referred to 'adjacent properties'. The licence defines adjacent properties as land in the ownership of Mr and Mrs Howard Pitcher and Mr and Mrs David Pitcher (the Pitchers). 25 Clause 7.2 required the appellant to rehabilitate the properties owned by the Pitchers. Rehabilitation was defined in clause 1.1 of the licence in the following terms: '"rehabilitate" or "rehabilitation" includes: (a) the removal of debris, rubbish, run off, offensive and unsightly material, or contaminants; (b) the repair or replacement of roads, paths, fences and boundary pegs; (c) the planting of suitable native trees and vegetation; (d) landscaping; (e) earthworks to reduce or prevent soil erosion or slippage; and (f) works to reduce the amount of, or improve the quality of, stormwater released onto or from the land'. 26 The land, of course, was the land subject to the licence, Crown land portion 48c. 27 The appellant was not only contractually obliged to rehabilitate 'the adjacent properties' but it was also obliged to do so pursuant to clause 7.2(a) of the licence to the reasonable satisfaction of the owners 'for all damage caused … whether during the term of this Licence or a previous lease, licence or authorisation'. 28 It follows therefore that, as licensee, the appellant had an obligation to rehabilitate the adjacent properties for damage caused prior to the issue of the licence. Of course, its obligation was only to rehabilitate the properties for damage caused by its own activities. 29 Clause 7.3 provides for the submission of any dispute in relation to the rehabilitation obligations in clauses 7.1 and 7.2 to arbitration. Clause 7.1 contemplates that the Administrator might be a party to dispute and therefore cl 7.3, in its terms, distinguishes between a party to a dispute under cl 7.1 and a party to a dispute under cl 7.2. If the dispute is between a party who has rights under cl 7.2 and the appellant, then the Administrator is empowered to nominate an independent arbitrator. Clause 7.3 provides for the costs of the arbitration and for the decision of the arbitrator to be final and binding on the parties 'and no appeal shall lie therefrom'. 30 Clause 7.3 does not address a dispute which might arise under cl 7.2 and where the parties (the appellant or the Pitchers) refuse to join in an arbitration. The Pitchers had no contractual right to require the appellant to arbitrate. However nothing turns on that omission. It merely highlights the absence of any contractual rights and obligations arising to the Pitchers under the licence. 31 Clause 8 of the Licence Agreement allowed the Administration of Norfolk Island ('the Administration') to retain 25 per cent of the purchase price paid by the Administration to the appellant in respect of each and every sale of crushed metals or rock by the appellant to the Administration. 32 Clause 8.4 provides: 'The Licensee agrees that moneys retained under subclauses 8.1 and 8.2 shall be placed by the Administration and by the Commonwealth, as the case may be, in a separate bank account and, subject to the Administrator's prior written authorisation, shall not be used for any purposes other than: (a) to make good any failure by the Licensee to comply with the terms and conditions of this Licence; or (b) to meet any or all of the costs or debts referred to in clauses 2 or 7.' 33 The Administrator saw this clause as authorising him to pay to the second and third respondents the sum held pursuant to this clause. Whether it did or not does not matter. The appellant has not complained of the Administrator's action in that regard. 34 Clause 12.1 of the licence provided: 'This licence is governed by the laws in force in the Territory as applied by the Act.' 35 The Territory is defined, in the licence, as having the meaning given to in the Norfolk Island Act 1979 (clause 1.1) which, of course, is Norfolk Island: s 4 Norfolk Island Act 1979.

[7]

The Preliminary Conference 39 On 15 September 2000 the arbitrator held a preliminary conference at which Mr Adrian Cook QC appeared for the second and third respondents, and Mr John Brown, a director of the appellant, who was also the appellant's solicitor, appeared for the appellant. 40 Apparently on the same day a document was signed and submitted to the Administrator. The primary judge said in his reasons: 'On that same day, Mr Cook and Mr Brown signed a document that was submitted to the Administrator. It read: "David and Michelle Pitcher are in dispute with Island Industries P/L in relation to paragraph 7.3 of the Licence Agreement dated 15.3.99 between the Administrator of Norfolk Is. And Island Industries Pty Ltd. David and Michelle Pitcher and Island Industries Pty Ltd agree to submit the dispute to arbitration."' 41 This Court was not supplied with a copy of that document. I assume that his Honour has referred to the whole of the document or at least all of its relevant parts. 42 I shall refer to that document as the 15 September Agreement. 43 During the preliminary conference, the arbitrator presented the parties with a document which is headed 'Arbitrator's Draft Agenda/Minutes Commercial Arbitration Act 1990' which was apparently issued by the Institute of Arbitrators for use in domestic arbitration agreements. 44 The contents of the document show that the document was prepared to be used at a preliminary conference of the parties to the dispute by the arbitrator as a check list, and for recording matters which the parties to the dispute had previously agreed or agreed at that preliminary conference. The document contained a number of discrete topics for the purpose of identifying the arbitration agreement on which the arbitration would proceed, the nature of the proceedings, the costs of the arbitration and general matters relating to the conduct of the arbitration. The parties signed the document which they agreed was a true record of the conference. One topic is particularly important. The document provided the following questions and answers under the heading 'Arbitration Agreement': 'ARBITRATION AGREEMENT (a) Is agreement in writing? Yes/No (b) Is agreement in fact agreed between the parties? Yes/No (c) Type of contract/subcontract: As per deed between Resp. and Administrator. Licence Ag't. (d) Arbitration Clause No? 7.3 Law applying? Commercial Arbit'n Act 1990. (e) Single arbitrator/co-arbitrators/umpire Yes/No (f) Any separate agreement existing? Yes/No If yes, are its terms acceptable? Yes/No (g) Do agreement(s) and nomination(s) appear in order? Yes/No (h) Is it clear that the Commercial Arbitration Act 1990 applies? Yes/No (i) Does arbitrator appear to have jurisdiction? Yes/No (j) Amount of deposit paid: $ to by (k) Does agreement give power to direct (further) security? Yes/No (l) Any objection to nominee(s)? Yes/No' 45 That part of the document shows that the arbitrator and the parties were under some fundamental misapprehensions. 46 First, the licence could not constitute the arbitration agreement. It was not a contract between the parties to the arbitration. If there was an arbitration agreement it had to be an agreement separate from the licence. Notwithstanding the arbitrator's record of the preliminary conference which the parties confirmed was correct, the arbitration must have been conducted pursuant to an arbitration agreement. 47 In my opinion the arbitration agreement is the 15 September Agreement. That was an agreement or at least evidence of an agreement to submit the dispute to arbitration. 48 There is no evidence of any oral terms, although that does not mean there were no oral terms. Because the parties proceeded upon this misunderstanding they simply may not have addressed that question. The arbitration agreement probably contained implied terms but again that issue has not been addressed. 49 One of the difficulties caused by the failure of the parties to address the arbitration agreement governing the arbitration is finding what the terms of that arbitration agreement were. 50 I think it almost goes without saying that clauses 7.2 and 7.3 of the licence would have been terms of the arbitration agreement. Clause 7.2 gave rise to the subject matter of the arbitration and must have been a term. Clause 7.3 contained terms as to nomination, costs and finality that the parties either must have expressly or impliedly agreed to as terms. 51 It may be that clause 8.4 was also a term of the agreement and authorised the Administrator to pay to the second and third respondents the monies retained. That term may be implied because of its terms. 52 The real question is whether the parties agreed, expressly or by implication, that, in the event the arbitrator made an award in favour of the second and third respondents, the award should be made a rule or order of the Supreme Court of Norfolk Island and should be enforceable as an order of that court. 53 There is no evidence that such a term was part of the arbitration agreement. If it was there is no evidence that it was in writing. 54 Like the parties and the arbitrator, the trial judge assumed that the arbitration agreement was contained in clause 7 of the licence. The judge said in his reasons, without further comment or criticism: 'On 15 September 2000, Ms Symons held a preliminary conference at which Mr Adrian Cook QC appeared for the Pitchers and Mr Brown for Island Industries. Ms Symons filled in a check-list, mainly by circling either the answer "Yes" or "No" to questions. She noted affirmative answers to the questions: "Is agreement in writing?" and "Is agreement in fact between the parties?" The agreement was identified as "Deed between Resp. Administrator Licence Ag't". The Arbitration Clause was shown as "7.3". There were affirmative answers to the questions: "Do agreement(s) and nomination(s) appear in order?" and "Does arbitrator appear to have jurisdiction?"' 55 That assumption is, with respect, for the reasons already given wrong. It may be that the oral or implied arbitration agreement contained the terms provided for in clause 7.3 of the licence and indeed other clauses of the licence but neither party addressed that issue at trial or on appeal. 56 Next the arbitrator recorded that the law applying to the arbitration was the Commercial Arbitration Act 1990 and in answer to the further question in 2(h): '(h) Is it clear that the Commercial Arbitration Act 1990 applies? Yes/No.' 57 During the preliminary conference there was discussion about the appropriate law regulating arbitration on Norfolk Island. The respondents provided the Court with a copy of the transcript of the preliminary conference which records the following exchange: 'Her Worship: Yes, thank you. Mr Cooke: May it please the Court, I think the first document that I should ask you to have regard to in these proceedings is the licence agreement which was entered into on 15 March '99 which was between Island Industries and the Administrator of Norfolk Island and certain guarantors. I have a photostat copy of that, signed by the parties in question, and if Mr Brown has no objection to that, I would formally tender it. While Mr Brown is just checking that, may I ask, so far as the rules under which the arbitration is being held, I understand they are essentially those as provided in the Commercial Arbitration Act 1990 of Queensland, is it? Is that correct, or is there one of the ACT? Her Worship: There is one in the ACT which I have brought with me. Let me just - it is 1986. Mr Cooke: '86, I am sorry. When I received the letter, I thought it was 1990 and that is why I found only the Queensland in my searches. Her Worship: Right. Well, I do not know in what way that it differs but I have certainly got a very much annotated photocopy of the 1986 one for the Territory. Mr Cooke: Yes. I thank you. Thank you, Madam. It is just that if any question arose in the matter, I just want to make sure I had that appropriate proper reference available to me.' 58 The parties were apparently unaware of the uniform domestic arbitration legislation, which was enacted by the States and some Territories between 1984 and 1986, and finally by Queensland in 1990, and the amendments to that legislation following upon enactment of the Queensland legislation. The uniform Australian legislation is in similar form to the Arbitration Act 1979 (Eng). 59 It is not clear from the exchange to which I have referred that the parties agreed that either the Commercial Arbitration Act 1990 (Qld) or the Commercial Arbitration Act 1986 (ACT) should apply in the conduct of the arbitration. I think in the end result all parties assumed that the arbitration was not conducted under either Act. 60 The judge said in his reasons: 'There was also a statement that the relevant law was the Commercial Arbitration Act 1990, this apparently being a reference to a Queensland Act. But that was clearly wrong. As mentioned, the agreement provided for the relevant law to be that of Norfolk Island; the case had nothing to do with Queensland.' 61 As the trial judge said, the Queensland legislation could have no application to a domestic arbitration agreement on Norfolk Island, except I would add, unless the parties agreed to conduct the arbitration under that Act. 62 Because no one has contended otherwise, this Court should proceed on the basis that the parties did not agree to the arbitration being conducted under the Commercial Arbitration Act of any jurisdiction. 63 The arbitrator identified the general nature of the claim: '(1) whether damage caused by R (2) if yes reasonable costs to rehabilitate.' 64 She noted the second and third respondents' claim at $117 313 and the appellant's offer of $2000.

[9]

The Steps taken to enforce the Award 66 On 13 June 2002 the Administrator wrote to the appellant's Director, Mr Brown, in the following terms: 'Dear Mr Brown I refer to the arbitration proceedings between Island Industries Pty Ltd and Mr and Mrs Pitcher concerning the extent of rehabilitation required to the Pitchers' property and to the Arbitrator's order that Island Industries pay $76,000 to the Pitchers by way of compensation. You will recall that the arbitration proceedings were initiated under the Licence issued to Island Industries on 15 November 1999. The Norfolk Island Government has now formally recommended that I issue a notice under clause 7 of the Licence and in the enclosed form directing that the above-mentioned payment be made within seven days. As Administrator, I am bound by that recommendation and have issued the notice accordingly. The original of the notice is enclosed for your information. Please contact the Norfolk Island Government's Legal Unit if you require further information. Yours sincerely A J Messner ADMINISTRATOR' 67 The notice enclosed in the letter was in the following terms: 'NOTICE PURSUANT TO CLAUSE 7 OF LICENCE AGREEMENT DATED 15 NOVEMBER 1999 BETWEEN THE ADMINISTRATOR OF NORFOLK ISLAND AND ISLAND INDUSTRIES PTY LTD ("the Licence") To: The Directors Island Industries Pty Ltd C/- McIntyres (Lawyers) Norfolk Professional Centre NORFOLK ISLAND 2899 On 25 March 2002, an Arbitration Determination was issued in relation to arbitration proceedings between David Kendall Pitcher and Michelle Jan Saal Pitcher ("the Pitchers") and Island Industries Pty Ltd. The proceedings, commenced under sub-clause 7.3, related to a dispute concerning rehabilitation under sub-clause 7.2 of the Licence. The Determination required that Island Industries Pty Ltd pay the sum of $76,000 to the Pitchers by close of business 30 April 2002. No such payment was made. Notice is hereby given that you are required to forward the sum of $76,000 to the Administration of Norfolk Island by no later than 4.30pm on 21 June 2002, failing which the amount owing will be treated as a debt due to the Administrator and all bond monies held will be drawn upon and debt proceedings will be commenced in the Supreme Court for the balance owing. For ease of reference you should ensure that monies paid are accompanied by a copy of this Notice. The Administrator of Norfolk Island Dated: 13 June 2002'

[10]

The Proceedings - SC4 of 2002 68 On 25 September 2002 the appellant commenced proceedings (SC4 of 2002) against the three respondents seeking to have the arbitrator's award set aside on the grounds: '(a) it is erroneous in law; (b) it is erroneous in fact; (c) it is beyond the scope of the terms of the agreement pursuant to which the proceedings were conducted.' 69 Those proceedings were accompanied by a statement of claim in which the appellant referred to the history to which I have already referred and to the arbitrator's award. After reciting that history, the appellant asserted that the licence 'was null, void and of no effect'. Further, the appellant asserted that there was no power in the Administrator to appoint the arbitrator. It further asserted that the arbitration was not conducted pursuant to any statute, ordinance or any other piece of legislation and was therefore not conducted pursuant to any statutory or other power. 70 In par 20 of the statement of claim the appellant claimed: '20. Further and in the alternative, if contrary to the facts and matters asserted above, the appointment of Ms E Symons was valid and the arbitration hearing was validly conducted and the award validly entered, the company says it was only valid by reason of the terms and provisions of 9 and 10 Will III c.15 (Imp) being "An Act for determining differences by arbitration" ("the Imperial Act").' 71 I shall refer to 9 and 10 Will III c.15 (Imp) as the 1698 Imperial Act. 72 The appellant sought the following relief: 'Declarations that: 1. The purported determination of Elizabeth Marjorie Symons dated 22 March 2002 is not final and binding and is null and void and of no effect. 2. Island Industries is not bound by the purported determination of Elizabeth Marjorie Symons dated 22 March 2002. 3. Elizabeth Marjorie Symons erred in law, and in making erroneous findings of fact, in making her purported determination of 22 March 2002. 4. The purported determination of Elizabeth Marjorie Symons dated 22 March 2002 is beyond the scope of the terms of the Agreement, pursuant to which the purported Arbitration proceedings were conducted. Orders that: 1. The purported determination of Elizabeth Marjorie Symons dated 22 March 2002 be set aside. 2. Such further order or orders as the Court deems fit. 3. Costs.'

[11]

The Proceedings - SC11 of 2002 73 On 29 November 2002 the respondents commenced proceedings against the appellant (SC11 of 2002) by way of Notice of Motion in the Supreme Court of Norfolk Island seeking the following orders: '(1) That leave be granted to the Applicants, jointly and severally, to have deemed to be a Judgment of the Court the arbitration award of Elizabeth Symons of 25th March 2002, less bond monies held by the Administration of Norfolk Island and subsequently paid to the second and third Applicants, and that the said judgment be entered as a Judgment of the Court and be enforceable as surety by the Applicants. (2) The Respondent pay the Applicants costs including this motion and any entry of judgment herein.' 74 That Notice of Motion was supported by an affidavit of Graham Charles Rhead, Crown Counsel of Norfolk Island. 75 In that affidavit he deposed to the relevant facts to which I have referred and to the hearing of the arbitration. His deposition continued: '12. By letter of 13 June 2002, the first Applicant notified the Respondent of the requirement to pay the sum of $76,000 pursuant to clause 7 of the licence agreement … 13. The award has not been complied with in so far [sic] as bond monies retained by the Administration of Norfolk Island on behalf of the Administrator, have been released to the Pitchers, the second and third Applicants, in part payment of the award to the extent of $18,320.73 and all that is remaining is $52,679.27 to be paid by the Defendant. 14. Further and in the alternative, if contrary to the facts and matters asserted above, the appointment of Ms E Symons was valid and the arbitration hearing was validly conducted and the award validly entered, the applicants say that it was only valid by reason of the terms and provisions of 9 and 10 will III c.15 (Imp) being "An Act for determining differences by arbitration" ("the Imperial Act"). 15. Having regard to the facts and circumstances of and surrounding the arbitration, the Supreme Court of Norfolk Island as the Superior Court of Record (as so designated by s 52 of the Norfolk Island Act 1979) is the court of record for the purposes of the Imperial Act. 16. The Supreme Court of Norfolk Island has all original and appellate jurisdiction that is necessary to administer, and for the administration of, justice in Norfolk Island, and pursuant to such jurisdiction is entitled to: (a) supervise arbitration proceedings of the kind contemplated by the Imperial Act, including the arbitration proceedings conducted by Ms E Symons; (b) determine whether an arbitration award should be set aside only in accordance with the provisions of the Imperial Act. 17. Further and in the alternative, if contrary to the facts and matters asserted above, by virtue of order 88 rule 9 of the Rules of Court, leave is sought to enforce the award.' 76 Thus the respondents sought leave to have the award deemed to be a judgment of the court pursuant to the 1698 Imperial Act. In the alternative, the respondents relied upon Order 88 rule 9 of the Norfolk Island Supreme Court Rules for leave to enforce the award. 77 Both proceedings were heard together. As can be seen from a reference to the statement of claim in SC4 of 2002, and Crown counsel's affidavit in SC11 of 2002, all parties were contending that the arbitration was conducted in accordance with the provisions of the 1698 Imperial Act, but the parties contended that led to different results. On the one hand the appellant claimed that the arbitration was of no force and effect. On the other hand the respondents contended that because the arbitration had been conducted in accordance with the 1698 Imperial Act, they were entitled to have the award registered as a judgment of the Supreme Court of Norfolk Island.

[12]

The Judge's Reasons in SC4 of 2002 78 The trial judge rejected the appellant's contentions in SC4 of 2002. Specifically, he found that the Administrator had power to enter into the licence; that the licence was valid; that the licence conditions for rehabilitation were valid; that the administrator had power to appoint an arbitrator under clause 7 of the licence; and that the arbitrator had been validly appointed. 79 He then addressed the question as to whether the Supreme Court of Norfolk Island has jurisdiction to supervise arbitrations 'pursuant to an agreement whose governing law is that of Norfolk Island'. 80 The judge addressed the appellant's contention before him: '53. … This jurisdiction is said to extend to review the merits of the arbitrator's decision. Upon that basis, Island Industries seeks to adduce evidence designed to satisfy the Court that the arbitrator erred in both her findings of fact and her assessment of the appropriate amount of the award. It was agreed between the parties that the tender of such evidence should be postponed until the Court rules on the question whether or not this course is open to Island Industries.' 81 In addressing that question his Honour said: '54. Unlike most jurisdictions, Norfolk Island does not have a statute dealing specifically with arbitrations. Consequently, one must be wary in considering cases from other jurisdictions relating to courts' supervisory powers. Many depend upon the terms of a local statute that has no Norfolk Island counterpart. 55. However, Norfolk Island law includes the statute Law of England as in force on 25 July 1828, and the Common Law. The English statutes in force in 1828 include an Act of 1698 (9 and 10 Will II [sic] c.15) short titled "Act for determining differences by arbitration". That Act provided that, from and after 11 May 1698, "it shall and may be lawful for all merchants and traders, and others desiring to end any controversy, suit or quarrel … for which there is no other remedy but by personal action or suit in equity, by arbitration, to agree that their submission of their suit to the award or umpirage of any person or persons should be made a rule of any of His Majesty's courts of record, which the parties shall choose, and to insert such said agreement in their submission, or the condition of the bond or promise, whereby they oblige themselves respectively to submit to the award or umpirage, of any person or persons, which agreement being so made and inserted in their submission or promise, or condition of their respective bonds, shall or may" be enforceable as an order of the court in which the rule is entered.' 82 His Honour was there referring to the 1698 Imperial Act and his opinion was that that Act was in force in Norfolk Island.

[13]

The Law in force in Norfolk Island 83 Section 3 of the Judicature Act 1960 (NI) provides: 'Law in force in Norfolk Island 3. Subject to any Acts, Imperial Acts and Ordinances in force in the Territory and to any laws made under such an Act, Imperial Act or Ordinance - (a) all statutes, and laws made under statutes, in force in England on 25 July 1828, being the date of the passing of the Imperial Act 9 Geo IV, c. 83; and (b) subject to the statutes and laws referred to in paragraph 3 (a), all the principles and rules of common law and equity, are, by force of this Act, so far as they are applicable and mutatis mutandis, in force in the Territory as laws of the Territory.' 84 Section 3 is in similar (but not identical) terms to the Strickland Proclamation of 1913. The Strickland Proclamation and the circumstances surrounding it were considered by the Full Court of this Court in Cook v Administration of Norfolk Island (1992) 39 FCR 297 at 315 - 316: ' By Proclamation made on 24 December 1913, shortly after the enactment of the 1913 Act (assented to on 19 December 1913 but not then in force), Sir Gerard Strickland, the Governor of New South Wales and Norfolk Island, declared that all laws then in force in the Island were repealed, and other laws then specified came into force in the Island, with the proviso that appointments made and other things done under the repealed laws were validated (cl 1). The laws then enacted (cl 2) included the Administration Law 1913 (NI) (to which further reference will be made). By cl 3 of the Proclamation, it was provided: "Subject to the laws hereby enacted and to any laws which may hereafter be made for Norfolk Island, and to any Order of His Majesty in Council, all laws and statutes in force in the realm of England on the 25th day of July, 1828, the date of the passing of the Act 9 Geo IV, c 83, shall be applied in the administration of justice in Norfolk Island, so far as the same can be applied within the said Island" It seems that the laws in force in England as at 25 July 1828 only apply within the Island in so far as they could be applied in 1913, the year in which the Proclamation applying them was made (see Hutley, at p 109; Renfree, at p 757).' 85 Of course, s 3 of the Judicature Act 1960 (NI) itself provides that the law in force is subject to any Acts, Imperial Acts and Ordinances in force in Norfolk Island. 86 The Strickland Proclamation also limits the application of the law in England as at 1828. The Full Court pointed out one limitation. Any subsequent statutes (which would include any acts or ordinances as provided for in s 3) and Orders in Council could also exclude the operation of the law applying in England in 1828, and in particular, the 1698 Imperial Act. 87 None of the parties has contended that the 1698 Imperial Act does not apply in Norfolk Island. His Honour held that the 1698 Imperial Act applied. 88 I agree with his conclusion that the 1698 Imperial Act was in force in Norfolk Island at the time the parties submitted their dispute to arbitration. 89 The 1698 Imperial Act was in the following terms: 'An Act for determining Differences by Arbitration Whereas it hath been found by Experience, that References made by Rule of Court have contributed much to the Ease of the Subject, in the determining of Controversies, because the Parties become thereby obliged to submit to the Award of the Arbitrators, under the penalty of Imprisonment for their Contempt in case they refuse the Submission; Now for promoting Trade and rendering the Awards of Arbitrators the more effectual in all Cases, for the final Determination of Controversies referred to them by Merchants and Traders, or others, concerning Matters of Account or Trade, or other Matters; Be it enacted by the King's most Excellent Majesty, by and with the Consent of the Lords Spiritual and Temporal, and Commons, in Parliament assembled and by Authority of the same, That from and after the eleventh Day of May , which shall be in the Year of our Lord one thousand six hundred ninety-eight, it shall and may be lawful for all Merchants and Traders, and others desiring to end any Controversy, Suit or Quarrel, Controversies, Suits or Quarrels, for which there is no other Remedy but by personal Action or Suit in Equity, by Arbitration, to agree that their Submission of their Suit to the Award or Umpirage of any Person or Persons should be made a Rule of any of his Majesty's Courts of Record, which the Parties shall choose, and to insert such their Agreement in their Submission, or the Condition of the Bond or Promise, whereby they oblige themselves respectively to submit to the Award or Umpirage of any Person or Persons, which Agreement being so made and inserted in their Submission or Promise, or Condition of their respective Bonds, shall or may, upon producing an Affidavit thereof made by the Witnesses thereunto, or any one of them, in the Court of which the same is agreed to be made a Rule, and reading and filing the said Affidavit in Court, be entered of Record in such Court, and a Rule shall thereupon be made by the said Court, that the Parties shall submit to, and finally be concluded by the Arbitration or Umpirage which shall be made concerning them by the Arbitrators or Umpire, pursuant to such Submission; and in case of Disobedience to such Arbitration or Umpirage, the Party neglecting or refusing to perform and execute the same, or any Part thereof, shall be subject to all the Penalties of contemning a Rule of Court, when he is a Suitor or Defendant in such Court, and the Court on Motion shall issue Process accordingly, which Process shall not be stopped or delayed in its Execution, by any Order, Rule, Command or Process of any other Court, either of Law or Equity, unless it shall be made appear on Oath to such Court, that the Arbitrators or Umpire misbehaved themselves, and that such Award, Arbitration or Umpirage was procured by Corruption, or other undue Means. II. And be it further enacted by the Authority aforesaid, That any Arbitration or Umpirage procured by Corruption or undue Means, shall be judged and esteemed void and of none Effect, and accordingly be set aside by any Court of Law or Equity, so as Complaint of such Corruption or undue Practice be made in the Court where the Rule is made for Submission to such Arbitration or Umpirage, before the last Day of the next Term after such Arbitration or Umpirage made and published to the Parties; any thing in this Act contained to the contrary notwithstanding.' [The underlining is mine.] 90 The 1698 Imperial Act thereby made it lawful for parties to agree between themselves that an arbitrator's award should become a rule of 'his Majesty's courts of record', and be enforceable as an order of the court in which the rule is entered. Because the 1698 Imperial Act was in force at the time the parties submitted to arbitration, the parties could have agreed to a term in the arbitration agreement that the award become a rule or order of the court and be enforceable as if an order. 91 Having referred to that Act and the terms to which I have referred, his Honour then said: '56. Clause 7.3 of the licence agreement differs from the clause contemplated by the 1698 Act in that it makes no reference to a court. Consequently, it is difficult to see that Act as a source of jurisdiction to supervise an arbitration.' 92 The licence agreement was not the arbitration agreement and therefore was not the agreement to which reference had to be made for the purpose of determining whether the arbitration agreement did include a clause whereby the parties agreed that the award should be made a rule of the Supreme Court of Norfolk Island and be enforceable as an order of that court. However no one has suggested that the arbitration agreement included such a term. His Honour was therefore right in his conclusion that the 1698 Imperial Act did not govern the award. 93 There was a procedure available in Norfolk Island for the enforcement of an award other than by suing on the award. There was a statutory basis for making the award an order of the court. It was simply not used by the parties. The court had jurisdiction to do what the respondents were seeking but the power was not exercisable under the 1698 Imperial Act, because the parties had not agreed to invest the court with the relevant power.

[15]

The Purposes of the 1698 Imperial Act 95 Whilst I agree that the parties had not invoked the procedure to make the award an order or rule of court I disagree with the second sentence to which I have referred in par 56 of his Honour's reasons. The 1698 Imperial Act was not intended 'as a source of jurisdiction to supervise an arbitration'. It probably had four purposes: Cockatoo Dockyard Pty Ltd v Commonwealth of Australia (unreported, Supreme Court of New South Wales, Bainton J, 29 May 1996). Only two are relevant in this case. The first relevant purpose to which reference has already been made was to make the award enforceable as a judgment of a court of record. It had a second purpose, and that was to allow awards to be set aside if they had been procured by misbehaviour or corruption or other undue means. The 1698 Imperial Act continued after providing for execution on the judgment: '… and the court on Motion shall issue Process accordingly, which Process shall not be stopped or delayed in its execution, by any Order, Rule, Command or Process of any other Court, either of Law or Equity, unless it shall be made appear on Oath to such Court that the Arbitrators or Umpire misbehaved themselves, and that such Award, Arbitration or Umpirage was procured by Corruption, or other undue Means.' 96 The 1698 Imperial Act further provided that if a party satisfied the court that the award was procured by corruption or undue means, the award shall be judged and esteemed void and of no effect. 97 Thus it was that the 1698 Imperial Act had two relevant purposes. One, to provide for means of enforcing an award. The other, to set aside an award which had been procured by misbehaviour or corruption or other undue means. 98 The relevance of the second purpose is that it was not relied upon by the appellant in SC 4 of 2002. 99 The appellant simply proceeded as if it could challenge the award on any basis. The 1698 Imperial Act only allowed for a challenge if the arbitrator had misbehaved herself or the award was procured by corruption, although the common law later established other grounds for setting aside an award including misconduct and error on the face of the award: Kleine v Catara (1814) 2 Gall 60. 100 In any event, his Honour found that the 1698 Imperial Act had no application in this case and for the reasons I have given, I agree with his Honour's conclusion.

[16]

The Inherent Jurisdiction of the Supreme Court of Norfolk Island 101 The respondent contended, on appeal, that the Supreme Court of Norfolk Island had an inherent jurisdiction to make the award an order of the court and to allow the appellant to levy execution upon it. That argument was not put to the primary judge and was not considered by him. It was not made the subject of a notice of contention as it should have been: O 52 r 22(3). 102 The appellant did not object to the respondent's counsel putting the submission and in those circumstances I will address it. The argument was put in the written submissions: 'To the extent, found so far by the learned trial judge (for the reasons referred by him in two judgments relating to the conduct of and consideration of arbitrations and awards of arbitrators (from which no appeal has been brought in either case)), it would be against logic, and offensive to a proper administration of justice to deny, to the Supreme Court the power to ensure by its own enforcement mechanisms that a valid award under a consent arbitration was duly and effectively paid. The inherent jurisdiction of the Court to finalise proceedings over which it has effective control can be added to the application of jurisdiction statutorily derived (as held in Meyer v Leanse already referred to). It cannot be accepted that at the last hurdle, (that it is effective enforcement), the Court could baulk at its obligations to ensure that consent arbitrations are properly and effectively conducted and concluded. The parties in their consent agreement as to arbitration could not "enlarge" the jurisdiction of the Court by giving it powers it did not possess if the contentions of the Appellant are to be accepted. The only way it appears to be suggested that an award could be "enforced" was by an action taken for damages or debt arising out of the failure to meet the obligations of a valid award. Simply to advert to this proposition, at once, to reveal a failure to grasp the appropriate obligations of a Supreme Court to bring to finality, promptly and effectively, a valid award of an arbitrator by allowing such an award to be treated as if it were a judgment of the Court.' 103 I will assume, for the purpose of this argument, that the Supreme Court of Norfolk Island has the same inherent jurisdiction as the superior courts of record in England. That is an assumption which I would have tested if I had reached a different conclusion on the argument. The Supreme Court of Norfolk Island is a statutory creation and it may not have all of the incidents that attach to those English courts: Re Macks; ex parte Saint (2000) 204 CLR 158 per McHugh J at 212; per Hayne and Callinan JJ at 274 - 275. 104 Prior to 1698 parties were entitled, by consent, to obtain a rule of court in the common law courts referring a matter to arbitration. It was usually a condition of that rule of court that the parties fulfil the award. A consequence of a failure to perform the award was attachment. In those cases the submission was made the rule or order of the court. In modern day terminology the procedure might be described as a court referred arbitration. The distinction between an in court arbitration and an out of court arbitration is made clear in Russell, A Treatise on the Power and Duty of an Arbitrator and the law of Submissions and Awards (4th ed) 1870 at 558. 105 The 1698 Imperial Act was designed in part to enable parties to an out of court submission to obtain the benefits that an in court submission offered: New South Wales Law Reform Commission Report 27, Commercial Arbitration, 1976. 106 The 1698 Imperial Act recognised the absence of power in the courts to enforce an out of court arbitration award. Its very enactment recognised the absence of any inherent jurisdiction. 107 After the passage of the 1698 Imperial Act the Courts had power, subject to the parties complying with the 1698 Imperial Act, to aid a party in the enforcement of an arbitration award. In those circumstances there was no need to develop any inherent jurisdiction to do that which the 1698 Imperial Act authorised. 108 I cannot find any authority to support the proposition that the superior courts in England have an inherent jurisdiction to enforce the award of an arbitrator in an out of court submission. There was power, as I have mentioned, to enforce the award of a court ordered arbitration. The power of the court to enforce an out of court award of an arbitration is a statutory one first given in the 1698 Imperial Act and later given in the various Arbitration Acts that followed over the centuries. 109 In re an Intended Arbitration between Smith & Service and Nelson & Sons (1890) 25 QB 545, Nelson had chartered a steamship from Smith and the charter agreement contained an arbitration clause which was in the following terms: 'Should any dispute arise between the owners and the charterers, the matters in dispute shall be referred to three persons, one to be appointed by each of the parties hereto, and the third by the two so chosen, whose decision, or that of any two of them, shall be final; and for the purpose of enforcing any award this agreement may be made a rule of Court.' 110 There was a dispute and the shipowners gave notice that they had appointed an arbitrator. The charterers, however, refused to appoint an arbitrator. The shipowners instituted proceedings to obtain an order from the court compelling the charterers to appoint an arbitrator, and the order was made. The charterers appealed. 111 The appellant argued that the court had no jurisdiction to make the order it did. 112 Lord Esher MR said at 548: 'Difficulties of course frequently arose before the Act of Wm 3 with reference to submissions to arbitration, and there were many powers which the parties could not, by virtue of that mere agreement, exercise against each other. But the Act of Wm 3 recognized the fact that when the parties had got their tribunal fixed, and were proceeding to carry out the agreement to refer, they would want the assistance of the Court, and provided that the submission might be made a rule of Court. What was the effect of that legislation? It gave the Court certain powers by which to assist the parties in the trial of the case before the arbitrators to whom they had submitted their disputes. It gave the Court power to enforce the award of the arbitrators.' 113 The reference to the Act of Wm 3 was, clearly, a reference to 9 & 10 Wm 3, c 15 - ie: the 1698 Imperial Act. 114 As I have said, and Lord Esher MR's reasons show, it was that Act which gave the court power to enforce the awards of arbitrators. It can be inferred that there was not (nor is there now) an inherent jurisdiction in the court to enforce the award of an arbitrator in circumstances where the parties have not agreed that the submission to arbitration may be a rule of court. 115 Lord Esher's statement was obiter. Whilst the case was concerned with the question whether the court had jurisdiction to order a party to appoint an arbitrator pursuant to a submission to arbitration; nevertheless it is authority contrary to the respondent's submission. 116 In Albeck v A.B.Y. - Cecil Manufacturing Co Pty Ltd [1965] VR 342 the parties (A and B) had entered into an agreement for the division of the assets of a business in which they both had interests. There was a dispute whether the agreement applied to certain assets, and therefore whether A was entitled to a share of those assets. The parties submitted the dispute to an arbitration. 117 The two relevant clauses in the submission to arbitration were in the following terms: '1. This agreement shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act 1958 and shall be taken to incorporate the said Act except so far as its provisions are hereby varied.'; and '10. Neither of the parties shall bring or prosecute any action against the other or against the arbitrators or their umpire or either of them for or in respect of the said matters in difference or any or either of them for or in respect of the said award to be made in pursuance of this submission.' 118 The submission provided for the appointment of two arbitrators and required that an award be made on or before 1 December 1960. No award was made before that date. The parties re-executed the deed and the arbitrators, without themselves having been re-appointed under the new deed, purported to re-appoint the umpire. The arbitrators were unable to agree on certain matters and those matters were referred to the umpire. 119 The umpire made an award in favour of A by way of declaration that the earlier agreement applied to the disputed assets and that A was entitled to a share of those assets. A sued claiming that the sum constituting the award was due pursuant to the earlier agreement, and in the alternative, sued for the sum under the award. 120 B argued that 'the submission was not intended by the parties to create any legal rights or obligations between them, but created only a debt of honour'. 121 Dean J rejected that argument. He said (at 349) that 'if such had been the intention, it would be expected that it would have been expressed in clear language so as to overcome the natural inference to be drawn from the rest of the submission'. Dean J found clause 10 to be void, because if it were to have effect, then 'by signing the submission each party has all his legal rights stripped from him despite the many clear indications in the submission that the purpose thereof was to determine those rights and not to destroy them'. 122 It is unclear from the decision whether the 'rights' that clause 10 purported to 'strip' from the parties, were rights to enforce an award pursuant to the relevant provision of the Arbitration Act 1958 (s 13), or rights to have the award enforced by exercise of some inherent jurisdiction in the Supreme Court of Victoria; presumably the former. 123 Smith J considered that the sum was payable pursuant to the earlier agreement but commented nevertheless on the remedies available for an action pursuant to the award. 124 Smith J said, at 358: 'I am also of the opinion that clause 10 of the submission left open as a means of enforcement the old procedure by attachment. Before the introduction, in 1910, of the provisions now contained in the Arbitration Act 1958 it was necessary, before an award could be enforced by attachment, that the submission should have been made a rule of court; for it was the existence of the rule of court that enabled a refusal or neglect to obey the award to be punished as a contempt. … There was indeed, still another legal remedy which clause 10 of the submission did not purport to prohibit, namely, an application to the Court for an order for payment of a sum awarded which the party liable has neglected or refused to pay. This is a remedy of which considerable use was made before the enactment of what is now s 13 of the 1958 Act … and I see no sufficient ground for thinking that it has become unavailable. In order to obtain this remedy it used to be necessary to show that the submission had been made a rule of court, but s 4 of the 1958 Act appears to have made this unnecessary.' 125 Section 4(1) of the 1958 Act provided that: 'A submission unless a contrary intention is expressed therein shall be irrevocable except by leave of the Court or a Judge and shall have the same effect in all respects as if it had been made an order of the Court.' 126 The dicta of Smith J show that there was no inherent jurisdiction to enforce an award unless the submission to arbitration had been made a 'rule of court'. That is, a court could not enforce an award in the absence of an agreement by the parties that the award should have effect as an order of the court.

[17]

The Judge's reasons for the application of the Commercial Arbitration Act 1986 (ACT) 127 Having concluded that the 1698 Imperial Act had no application, his Honour turned his attention to s 5(1) of the Supreme Court Ordinance 1960 (NI). He noted that that section conferred jurisdiction on the Supreme Court of Norfolk Island in the following terms: 'Subject to this Ordinance, the Supreme Court has the same jurisdiction in and in relation to the Territory as the Supreme Court of the Australian Capital Territory has in relation to the Australian Capital Territory.' 128 He noted that s 20(1) of the Supreme Court Act 1993 (ACT) conferred 'all original and appellate jurisdiction that is necessary to administer justice in the Territory' on the Supreme Court of the ACT. 129 Next he addressed the Commercial Arbitration Act 1986 (ACT) which applied to arbitrations conducted pursuant to an arbitration agreement which he noted meant 'an agreement in writing to refer present or future disputes to arbitration'. He said clause 7.3 of the licence agreement fell within that definition. For reasons already given the licence agreement was not the arbitration agreement. 130 He said speaking of the Commercial Arbitration Act 1986 (ACT): '59. Part 2 of the Commercial Arbitration Act deals with the appointment of arbitrators and umpires. Part 3 is concerned with the conduct of arbitration proceedings and Part 4 with awards and costs. Those three parts have no application to the present case; they are not imported into Norfolk Island law.' 60. However, the situation is different in relation to Part 5 of the Commercial Arbitration Act. It is headed "Power of the Court". It confers jurisdiction, in relation to certain aspects of arbitral proceedings, on the Supreme Court of the Australian Capital Territory and in some cases also on the Magistrates Court; see the definition of "court" in s 4(1) of the Act.' 131 Part 4 includes s 33 which provides for the enforcement of an award by leave of the Court. 132 The primary judge noted that s 42 of the Commercial Arbitration Act 1986 (Cth) also conferred jurisdiction on the court to set aside an award but only under limited circumstances. He noted that s 57 gave the court jurisdiction to hear and determine applications and appeals. 133 He said: '64. It seems to me that ss 38, 42 and 57, read together, resolve the issue of this Court's jurisdiction to supervise the award made by Ms Symons. The backdrop to the application of those sections is s5(1) of the Norfolk Island Supreme Court Act which, it will be remembered, confers on this court "the same jurisdiction in and in relation to the Territory [that is, Norfolk Island] as the Supreme Court of the Australian Capital Territory has in and in relation to the Australian Capital Territory". When one goes to the Australian Capital Territory law to ascertain what jurisdiction the Supreme Court of that Territory has in relation to an "arbitration agreement" one finds a provision (s 38) conferring jurisdiction on that Court to entertain an appeal, but only in respect of "any question of law arising out of an award" (s 38(2)). Specifically, the court does not have jurisdiction to set aside, or remit, an award on the ground of error of fact (s 38(1)).' 134 His Honour considered whether the Supreme Court of the Australian Capital Territory has power to set aside an award for misconduct but noted that no suggestion of misconduct had been made in these proceedings. For those reasons his Honour found against the appellant in relation to the appellant's claim that the arbitration award should be set aside. 135 His Honour then dealt with the respondent's application to enforce the award and said: '70. … However, there seems to be no statutory provision, whether of Norfolk Island or the Australian Capital Territory, that would empower the court to make an order in precisely those terms. 71. During the course of submissions I drew attention to s 33 of the Queensland Commercial Arbitration Act 1990. The Australian Capital Territory Act was not then available to me but I suggested that, if it contained a similar provision, this might afford a suitable remedy to the Administrator and the Pitchers. Counsel for the Administrator and the Pitchers agreed and Mr Hay did not suggest otherwise, on behalf of Island Industries. 72. As it happens, the Commercial Arbitration Act of the Australian Capital Territory contains an identical s 33. It reads: "An award made under an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect, and where leave is so given, judgment may be entered in terms of the award." 73. The appropriate course is for me to make an order in terms of s 33. The effect of that order will be that judgment may be entered for the sum determined by Ms Symons less the amount already paid to the Pitchers.' 136 There is an inconsistency in his Honour's reasons. He earlier determined that Part 4 of the Commercial Arbitration Act 1986 (ACT) (which includes s 33) had no application because those parts had not been imported into Norfolk Island law: par 59. However, he has used s 33 as the source of power to make the orders sought by the second and third respondents. 137 His Honour dismissed the appellant's proceedings and entered judgment for the respondents in accordance with the reasons to which I have just referred.

[20]

The Reasons for Allowing the Appellant's Contentions 146 The Supreme Court of Norfolk Island was established by the Norfolk Island Act 1957. It has been continued in existence by s 52 of the Norfolk Island Act 1979(Cth) 'as a superior court of record of the Territory'. 147 Section 59 of the Norfolk Island Act 1979 (Cth) provides that the jurisdiction, practice and procedure of the Supreme Court shall be as provided by or under enactment. 148 Section 5 of the Supreme Court Ordinance 1960 (NI) provides: '(1) Subject to this Ordinance, the Supreme Court has the same jurisdiction in and in relation to the Territory as the Supreme Court of the Australian Capital Territory has in and in relation to the Australian Capital Territory. (2) Without limiting the generality of the provisions of the last preceding sub-section, the jurisdiction of the Supreme Court includes jurisdiction - (a) to hear and determine all causes and matters arising under any law; (b) to deal with and impose punishments in respect of contempt of the Court; (c) to grant probates of wills, and letters of administration of the estates, of persons dying seised or possessed of real or personal property in the Territory; (d) to impose punishments and penalties as provided by any law; (e) on sufficient grounds, to order a new trial; and (f) with such exceptions and subject to such conditions as are provided by any law, to hear and determine appeals from the judgments of inferior courts and tribunals for the Territory. (3) The jurisdiction of the Supreme Court includes jurisdiction conferred on it by a law other than this Ordinance. (4) In the last two preceding sub-sections, "law" means law in force in the Territory. (5) Where, in a law of the State of New South Wales in its application to the Territory, a power or function is expressed to be vested in the Supreme Court of New South Wales, or a Judge of that Court, that power or function shall, in relation to the Territory, be vested in the Supreme Court or the Judge, as the case may be. (6) The Judge has authority to hold persons to security of the peace and for good behaviour in matters cognisable before him.' 149 His Honour referred to s 5(1) which gives the Supreme Court of Norfolk Island the same jurisdiction in and in relation to the Territory as the Supreme Court of the Australian Capital Territory has in and in relation to the Australian Capital Territory. 'Territory', first mentioned in s 5(1), of course, means Norfolk Island: s 4 Supreme Court Ordinance 1960 (NI). 150 It can be seen from s 5(2) that the jurisdiction of the Supreme Court of Norfolk Island includes jurisdiction to hear and determine all causes and matters arising under any law. That means, of course, any law of Norfolk Island: s 5(4). It would not give the Supreme Court of Norfolk Island the jurisdiction to hear and determine all causes and matters relevant to Norfolk Island arising under a law which does not apply in Norfolk Island. The jurisdiction of the Supreme Court is not confined to the same jurisdiction as the Supreme Court of the Australian Capital Territory and the jurisdiction provided for in s 5(2) but also includes any 'jurisdiction conferred on it by a law other than this Ordinance': s 5(3). Again the only law that can confer jurisdiction on the Supreme Court of Norfolk Island is law in force in the Territory: s 5(4). 151 The law which applies in Norfolk Island is the statutes and common law of England in 1828, and any other statute, enactment or ordinance which has been passed by any legislature which has power to pass laws in relation to Norfolk Island. 152 Norfolk Island was accepted as a Territory of the Commonwealth by the Norfolk Island Act 1913 which was 'An Act to provide for the acceptance of Norfolk Island as a Territory under the authority of the Commonwealth, and for the government thereof', which took effect from 1 July 1914. A corresponding Order in Council dated 30 March 1914 by His Majesty King George V, after referring to the Norfolk Island Act 1913 'was pleased … to order that Norfolk Island be placed under the authority of the Commonwealth of Australia'. 153 The 'constitution' of Norfolk Island is to be found in the Norfolk Island Act 1979 (Cth) (the NI Act). The NI Act repealed the Norfolk Island Act 1957 and the Norfolk Island Act 1963: s 3 NI Act. 154 The NI Act provides for an Administrator of the Territory who administers the government of Norfolk Island 'as a Territory under the authority of the Commonwealth': s 5(1). The Administration, which is the Administration or government of Norfolk Island, is a body politic: s 5(2). 155 The Administrator is advised by Executive Council: s 11. The Administrator, on the advice of the Legislative Assembly, appoints members of the Legislative Assembly to Executive Council: s 13. The Legislative Assembly has power, with the assent of the Administrator or Governor General 'to make laws for the peace, order and good government' of Norfolk Island: s 19(1). Depending on the subject matter of the Acts the Administrator or Governor General's consent is necessary: s 20. 156 The Governor General may disallow laws: s 23. The Governor General also has legislative powers: s 27. Section 27 of the NI Act provides a regime whereby the Governor General may make Ordinances with application in Norfolk Island. These Ordinances are also subject to disallowance: s 28. 157 The NI Act provides for the constitution, and membership of the Legislative Assembly and for the election of members. 158 Neither the Legislative Assembly nor the Governor General has repealed the 1698 Imperial Act and, more importantly, enacted a Commercial Arbitration Act in Norfolk Island. The model uniform Act has not been extended to Norfolk Island by any competent legislative authority. 159 The Australian Capital Territory legislature is not one of those bodies which is empowered to make laws in relation to Norfolk Island. 160 Section 56 of Commercial Arbitration Act 1986 (ACT) gives the SupremeCourt of the Australian Capital Territory jurisdiction to hear and determine applications and appeals under that Act. 161 However because s 5(1) of the Supreme Court Act of Norfolk Island speaks of the court having the same jurisdiction as the Supreme Court of the Australian Capital Territory it does not mean to invest it with the actual jurisdiction of the Supreme Court of the Australian Capital Territory. 162 The jurisdiction of the Supreme Court of the Australian Capital Territory is to be exercised by that Court. It will hear and determine applications and appeals under the Commercial Arbitration Act 1986 (ACT). 163 Because the Supreme Court of Norfolk Island has been invested with 'the same' jurisdiction as the Supreme Court of the ACT that does not mean that the Commercial Arbitration Act 1986 (ACT) becomes part of the law of Norfolk Island. More particularly it could never mean that particular parts of the Commercial Arbitration Act 1986 (ACT) became part of the law of Norfolk Island. 164 The Supreme Court of the Australian Capital Territory no doubt has jurisdiction conferred on it by a number of enactments of the Australian Capital Territory. It exercises a crucial jurisdiction conferred on it by the relevant Acts of the Australian Capital Territory. But that does not make the criminal law of the Australian Capital Territory the law of Norfolk Island. 165 Subsection 5(4) of the Supreme Court Act (1960) NI makes it plain that the jurisdiction conferred on the Supreme Court of Norfolk Island is in relation to laws in force in Norfolk Island. No law of the Australian Capital Territory is in force in Norfolk Island because the Supreme Court of Norfolk Island has the same jurisdiction as the Supreme Court of the Australian Capital Territory. 166 If Norfolk Island enacted a model Commercial Arbitration Act the Supreme Court of Norfolk Island would have jurisdiction to hear and determine applications and appeals under that Act. That jurisdiction would vest in the Supreme Court of Norfolk Island by virtue of the Norfolk Island model Commercial Arbitration Act not because the Supreme Court of Norfolk Island had the same jurisdiction as the Supreme Court of the Australian Capital Territory. 167 There was no need, and it was not permissible, to go to an ACT enactment to decide whether the Supreme Court of Norfolk Island had power to deem an award a judgment of the court. 168 The Supreme Court of Norfolk Island had the power if the parties had agreed it should exercise that power. If the parties had acted in conformity with the 1698 Imperial Act and made it a term of the arbitration agreement that the award became a rule of the court then the court could have made it a rule, judgment or order and the respondents could have proceeded to execution. 169 The parties did not do that. The respondents thereby could not rely on that Act. They could not rely on a foreign Act to achieve the same result.

[21]

Order 88 rule 9 170 An alternative agreement was faintly put. The second and third respondents contended that O 88 r 9 of the Supreme Court Rules of the Australian Capital Territory was a source of power for the orders made by the primary judge. 171 Section 18 of the Supreme Court Act 1960 (NI) provides 'that the practice and procedure of the Supreme Court shall be governed by rules of court'. Section 19 empowers the judges of the court to make rules of court. Section 19(4) provides: 'Until, in relation to a matter or class of matters, rules of court are made by the Judge, in pursuance of sub-section (1) of this section, the rules of court of the Supreme Court of the Australian Capital Territory in relation to that matter or class of matters shall, so far as applicable and mutatis mutandis, be the rules of court of the Supreme Court.' 172 For all practical purposes no rules have been made by the judges so the ACT Rules of Court apply in Norfolk Island by force of s 19(4) of the Supreme Court Act 1960 (NI). 173 Order 88 r 9 of the ACT Rules of Court provides: 'Application for leave to enforce award (1) Unless the court otherwise orders, an application for leave under the Arbitration Act, section 33(1) (Enforcement of award) to enforce an award - (a) must be supported by an affidavit that states - (i) the extent to which the award has not been complied with at the date the application is made; and (ii) the usual, or last-known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a corporation, its last-known registered office; and (b) may be made without giving notice to any person. (2) If leave is given, any party to the award may enter judgment in terms of the award.' 174 Order 88 relates only to applications, proceedings and appeals brought under the Commercial Arbitration Act 1986 (ACT): O 88 r 1. 175 Order 88 r 9 only applies in proceedings brought under s 33 of the Commercial Arbitration Act 1986 (ACT). If that Act has no application in Norfolk Island then a Rule of Court passed for the purpose of providing the procedure for enforcement of an award under that Act could also not have application. For the reasons already given the Commercial Arbitration Act (1986) ACT does not apply in Norfolk Island. 176 In my opinion O 88 r 9 has no application in Norfolk Island and will not until Norfolk Island enacts a model Commercial Arbitration Act. Then O 88 r 9 would operate mutatis mutandis. 177 Section 19(4) incorporates the ACT Rules of Court 'so far as applicable and mutatis mutandis'. Those rules passed for the purpose of providing procedures for applications, proceedings and appeals under the Commercial Arbitration Act (1986) ACT are not applicable and could never apply mutatis mutandis because there is no relevant Norfolk Island legislation to which they could attach.

Island Industries Pty Limited v Administrator of Norfolk Island

At a glance

Court

Decision date

Before

Source

Judgment (30 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (4)

Cited By (1)