ORMISTON J This is an application for leave to appeal from a decision of a judge of this court who granted leave to appeal pursuant to the provisions of s.38 of the Commercial Arbitration Act 1984, which in turn was made applicable to the dispute by reason of the provisions of the Retail Tenancies Act 1986, in particular s.22 thereof.

2. We entertained the application upon the basis that we would hear argument as to the merits, an unusual course and one ordinarily discouraged simply because it would produce, and may produce in many cases, repetition of arguments. On this occasion, however, we were concerned that, if the applicants were right, then their argument would be founded upon a policy of the law, and in particular of the legislature, that disputes conducted by arbitration, that is, pursuant to the Commercial Arbitration Act, or by reference to it, should be brought to an end as soon as practicable, notwithstanding that parties may wish to argue the correctness or otherwise of legal and factual matters before this Court.

3. Notwithstanding some uncertainty as to the meaning of the previous s.38, the amendments to that section made in 1993 make clear that the circumstances under which leave to appeal should be granted are limited, and for that purpose we merely refer, with approval, to the statements made by the Court of Appeal in New South Wales in Promenade Investments Pty. Ltd. v. New South Wales (1991) 26 NSWLR 203 and Natoli v. Walker, a decision of the Court of Appeal of that State, 26 May 1994, apparently presently unreported, and I would in particular refer with approval to the statements of principle made by Sheller JA in the Promenade Investments case, which appears to have received approval both by the members of the court who sat in that case and also those who sat in Natoli v. Walker.

4. As I say, we heard the case because, if the applicants were right, it was desirable to bring the appellate dispute to an end as soon as possible, and we have therefore heard argument at considerably greater length than one would ordinarily do so on an application for leave to appeal.

5. However, the test on an application for leave to appeal is, as has been stated over many years, that it must be shown both that the decision was wrong or at least attended with sufficient doubt to justify granting leave, and also that substantial injustice would be done by leaving the decision unreversed.

6. Some extra time was taken in this case because, unfortunately, the reasons for decision given by the learned trial judge just before Christmas last year, were not transcribed, and it was only during the course of the argument that a further affidavit was filed which indicated that His Honour had accepted the arguments of the applicants for leave (the respondent to the present application) primarily upon the grounds advanced by them, which appeared at least in outline form in a document which was exhibited.

7. I would add that, for myself, if time had not been a constraint, as it presumably was on 20 December last year, where a case involves manifest error, there is, to my way of thinking, good reason for disposing of the matter then and there rather than merely giving leave and putting the matter over. of course, ground (b)(ii) of sub-section (5) of s.38 might require a more detailed argument. But the fact is that leave was given under ground (b)(i), and if this court does not give leave to appeal from that decision, then that matter will be argued before a judge in the civil list in the ordinary way, although no doubt the Listing Master will give it some priority.

8. On the face of it, I was first inclined to think that there was sufficient inelegance in the drafting of the relevant clause of the lease - Clause 9 - for there to be an ambiguity or an equivocation of the kind which meant that it would be very difficult for any party to say that the ultimate decision reached by the arbitrator was attended by manifest error. But, as frequently occurs in these cases, and as is recognised in the cases decided by the New South Wales Court of Appeal to which I have referred, it was necessary to read what is complained about at least once in order to understand the nature of the dispute, and that involved reading the whole of Clause 9 and the apparently related Item 18, and also involved reading the reasons of the arbitrator.

9. What we are required to consider is whether leave should be granted to appeal to this Court. We have listened very carefully to a detailed argument presented by senior counsel on behalf of the respondent, the tenants. In the end, I am not persuaded that this is a case where leave should be granted. It is a case where the test, the two-pronged test, as to leave to appeal has not been satisfied. In particular, I am not satisfied that substantial injustice will be done if the decision is unreversed, for there will be a legal determination of it. But in relation to the decision itself, and as to whether it was attended with sufficient doubt as to justify granting leave, although it is not customary to say anything in detail as to the reasons for deciding an application and in particular one which is refused, perhaps, on this occasion, for the assistance of the judge who ultimately tries it and bearing in mind the absence of a transcript of the reasons of the trial judge, it should be made clear that although the outline of argument referred to an error as to an election to proceed contained in the clause, that is Clause 9, the real error relied upon is that upon a reading of the whole clause it was not contemplated that there would be any decrease in rents and that the only variations in rent would be increases.

10. In my opinion, it is unnecessary to say more than that gives colour and substance to the argument which was based upon the question of election and, in my opinion, upon the accepted grounds for giving leave to appeal, this is not an appropriate case.

11. I should add only that, insofar as the discretion of the trial judge was challenged, I am not satisfied by any of the materials that the test applied in Niemann v. Electronic Industries [1978] VicRp 44; (1978) VR 431, and the other cases, could be satisfied by the applicants in this case and upon the material before this court, and thus I would dismiss the application.

12. The order of the court, therefore, is that the application of the respondents, Dr Martin W. Pratt and Dr John F. Barlow, the applicants for leave to appeal in this court, be dismissed.

13. It is further ordered that the parties, Dr Martin W. Pratt and Dr John P. Barlow, pay the costs of Melbourne VV Pty. Ltd. in relation to this application.