Jemena Gas Networks (NSW) Ltd v AGL Energy Limited

The application for leave to appeal

1. In its draft notice of appeal, the applicant submitted that the primary judge erroneously: 1. found that cl 30.5(a) did not constitute an arbitration agreement under s 7 of the Commercial Arbitration Act in circumstances where s 7 does not impose those requirements; 2. failed to consider the surrounding circumstances that s 8 of the Commercial Arbitration Act gave primacy to arbitration. The National Gas (NSW) Law provided for arbitration in rules disputes under Chapter 8, Part 5A of the Law and arbitration‑like procedures and access disputes under Chapter 6 of the Law, and the Act provides the jurisdiction and procedural requirements for the conduct of an arbitration; 3. found that there was no critical provision for either party to refer the dispute to arbitration or litigation when each party had a right to have recourse to arbitration by cl 30.5(a); 4. found the reference to "arbitration or litigation" in cl 30.5(a) was given content and utility by reason of the possibility that the parties may agree to arbitration pursuant to cl 30.4 where there was no evidence for that finding and it was speculative and not more likely than not when considered in light of the text of the clause; 5. failed to consider the following in construing cl 30: 1. use of the word "recourse" when prefaced with "each party agrees" indicates a right to turn or resort or refer to arbitration vesting in each party; and 2. it provides procedural requirements for a mediation recognising that no law mandates such requirements.
2. Proposed grounds 3, 4 and 5 address the language of cl 30.5(a); ground 2 identifies a contextual element, and ground 1 is generic.
3. Ordinarily, leave to appeal is granted only in matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear: see Carolan v AMF Bowling Pty Ltd. [4] Where legal error is alleged, it is necessary to demonstrate more than arguable error.
4. It is by no means clear that any issue of principle or matter of general public importance is involved. The key issue in the proposed appeal is whether cl 30.5(a) constitutes an "arbitration agreement" within s 7 of the Act. There is no suggestion that the Agreement is in the standard form or that the terms of s 7 require explication.