When s38 was first enacted s38(4), (5), (6), (7) and (8) were in the following form:

"(4) An appeal under subsection (2) may be brought by any of the parties to the arbitration agreement-- (a) with the consent of all the other parties to the arbitration agreement; or (b) subject to section 40, with the leave of the Supreme Court. (5) The Supreme Court-- (a) shall not grant leave under subsection (4) (b) unless it considers that, having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more of the parties to the arbitration agreement; and (b) may make any leave which it grants under subsection (4) (b) conditional upon the applicant for that leave complying with such conditions as it considers appropriate. (6) Unless the Supreme Court gives leave, an appeal shall not lie to the Full Court of the Supreme Court from a decision of the Supreme Court to grant or refuse leave under subsection (4) (b). (7) An appeal shall not lie to the Full Court of the Supreme Court from a decision of the Supreme Court on an appeal under subsection (2) unless-- (a) the Supreme Court or the Full Court of the Supreme Court grants leave; and (b) it is certified by the Supreme Court that the question of law to which its decision relates either is one of general public importance or is one which for some other special reason should be considered by the Full Court of the Supreme Court. (8) Where the award of an arbitrator or umpire is varied on an appeal under subsection (2), the award as varied shall have effect (except for the purposes of this section) as if it were the award of the arbitrator or umpire."

Any appeal was restricted to an appeal on a question of law and unless all of the parties to the arbitration agreement consented leave to appeal was required. Leave could not be granted unless the applicant satisfied the matters in s38(5). Unless leave was given no appeal lay to the Full Court. Where leave to appeal was given and the appeal was determined no appeal lay to the Full Court unless the applicant could make out the matters in s38(7).

Clearly enough however the section allowed for a party to seek further leave of the Full Court from a refusal by a single judge to give leave, and allowed an appeal to the Full Court from the determination of an appeal in the circumstances set out in s38(7).

The Commercial Arbitration (Uniform Provisions) Amendment Act 1992 repealed ss (5), (6), (7) and (8) and enacted ss (5), (6) and (7) in their present form and which I have previously set out.

Section 38(5) further limited the circumstances in which an applicant could obtain leave to appeal from an arbitral award. The amendments also deleted any reference to a party obtaining further leave to appeal to the Full Court or a further appeal to the Full Court. The repeal of those subsections and enactment of the new subsections removed the requirement to obtain leave of the Court to appeal from a decision of the Court refusing leave or from a decision of the Court on the appeal.

The amendments therefore restricted the matters for which leave could be granted and removed the further requirements of leave in circumstances where leave to appeal from the arbitral award was refused or from the appeal where leave had been granted and the appeal determined.

Ordinarily where Parliament invests a court with jurisdiction to determine a question "it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so." Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales [1956] HCA 22; (1956) 94 CLR 554 at 560; Stratton v Parn & Ors [1978] HCA 5; (1978) 138 CLR 182 at 192 and Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 at 95-96.

Indeed Parliament when it first enacted this Act did interfere with the normal procedures of the Court by limiting the right of appeal from a refusal of leave and by limiting the right to appeal from a decision of a single Judge given on appeal.

On the face of it s38 in its present form does not appear to limit the ordinary appeal procedures from a refusal to grant leave or from a decision on appeal by a single judge. The section does not apparently limit or vary the ordinary appeal procedures in those circumstances. Hitherto it appears to have been assumed in this State that an appeal or at least one application for leave to appeal would lie: Leighton Contractors Pty Ltd v SASFIT (Full Court (SA) unreported, 24 April 1995, S5006). The same assumption was made in the Court of Appeal in New South Wales in Promenade Investments Pty Ltd v State of NSW (1991) 26 NSWLR 203. The New South Wales Act was then in the form in which the South Australian Act now is: See also State of New South Wales v Coya (Constructions) Pty Ltd (NSW Court of Appeal, unreported, 4 August 1995); Natoli v Walker (supra). The Full Court of the Federal Court also has made the same assumption: Commonwealth of Australia & Anor v Rian Financial Services and Developments Pty Ltd [1992] FCA 239; (1992) 36 FCR 101.

The question of whether a party has a right of appeal from a decision of a judge refusing leave to appeal under s38(4) of the Western Australian Commercial Arbitration Act was considered by the Full Court of the Supreme Court of Western Australia in Aintree Holdings Pty Ltd (Trading as Beaumonde Homes) v Corderoy & Corderoy [Full Court (WA) unreported 25 October 1996].

That Court determined that a purported appeal from a refusal to grant leave was incompetent.

The Commercial Arbitration Act forms part of a uniform national scheme involving the same or similar legislation in all of the Australian States and Territories. An interpretation of that Act by the Full Court of any of the Australian States should be followed by the Courts of the other States unless convinced that that interpretation is plainly wrong. ASC v Marlborough

Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492-493: Trans Pacific Investment Corporation v Rusty Rees Pty Ltd & Ors [1995] FCA 1223; (1995) 129 ALR 326, 329: Della Patrona v DPP (Cth) (No. 2) (1995) 132 ALR 307, 315.

The section with which the Western Australian Full Court was concerned is in similar but not the same terms as the section in the South Australian and New South Wales Acts. I set out the Western Australian s38 as it appears in the report of the case:

"38. (1) Without prejudice to the right of appeal conferred by subsection (2), the Court shall not have jurisdiction to set aside or remit an award on the ground of error of fact or law on the face of the award. (2) Subject to subsection (4), an appeal shall lie to the Supreme Court on any question of law arising out of an award.

(3) On the determination of an appeal under subsection (2), the Supreme Court may by order-- (a) confirm, vary or set aside the award; or

(b) remit the award, together with the Supreme Court's opinion on the question of law which was the subject of the appeal, to the arbitrator or umpire for reconsideration or, where a new arbitrator or umpire has been appointed, to that arbitrator or umpire for consideration,

and where the award is remitted under paragraph (b) the arbitrator or umpire shall, unless the order otherwise directs, make and (sic) award within 3 months after the date of the order.

(4) An appeal under subsection (2) may be brought by any of the parties to the arbitration agreement--

(a) with the consent of all the other parties to the arbitration agreement; or

(b) subject to section 40, with the leave of the Supreme Court.

(a) shall not grant leave under subsection (4) (b) unless it considers that, having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more of the parties to the arbitration agreement; and

(b) may make any leave which it grants under subsection (4) (b) conditional upon the applicant for that leave complying with such conditions as it considers appropriate.

(6) Where the award of an arbitrator or umpire is varied on an appeal under subsection (2), the award as varied shall have effect (except for the purposes of this section) as if it were the award of the arbitrator or umpire."

Subsection (5) is in the same form in which the repealed s38(5) was of the South Australian Act. In that respect an applicant for leave under the Western Australian Act does not have to satisfy the more onerous requirements for leave which have always appeared in the New South Wales Act and now appear in the South Australian Act [s38(5)(b)].

The section, the subject of the Western Australian proceedings, does not have the limitations in relation to an appeal which appeared in the repealed South Australian sections. In that respect it is in similar terms to the present New South Wales and South Australian Acts.

The only material difference between the Acts is that apparently leave to appeal would be more easily obtained under the Western Australian Act because of the absence of the requirement to establish the matters in s38(5)(b) in the New South Wales and South Australian Acts.

Rowland J referred to s28 of the Act which provides:

"Unless a contrary intention is expressed in an arbitration agreement, the award made by the arbitrator or umpire shall, subject to this Act, be final and binding on the parties to the agreement."

He said that s28 must be read subject to s38 which places a limitation on the jurisdiction of the Court to set aside an arbitral award. He said that an appeal only lay on any question of law arising out of an award and then only with leave in the circumstances of s38(5). There can be no argument with His Honour's reasoning to this point. He then said:

"Section 38(6), however, must be given effect. Without that subsection, one might well suppose that the decision of the Judge who decided the appeal, either favourably or unfavourably to the appellant, is subject to the normal appellate jurisdiction of the Full court of the Supreme Court. Subsection (6), however, impinges on this because the decision of the Supreme Court, if it varies the award, places the award as varied "as if it were the award of the arbitrator" and, going back to the earlier provisions of ss28 and 38, there is, of course, no appeal from the award of the arbitrator except by consent or with leave. It would seem to me that, on its proper construction, the appeal rights granted under the Act, and all rights to appeal being creatures of statute, have been exhausted.

In the end, it seems to me that, on its proper construction, the Act gives a right of appeal either by consent or by leave of a Judge of the Supreme Court. If leave is given and the appeal is dealt with by a Judge, that resolution finalises the matter and, as the statute gives no further right of appeal and in fact, on its proper construction, s38(6) would seem to reject any further right of appeal, that must be the end of the matter. It is, in my view, s38(6) which would prohibit any further right of appeal from the decision of a single Judge who in fact had granted leave and decided the merits of the appeal. It is, of course, not necessary for the proper resolution of this application to finally resolve that issue."

With respect I cannot agree that there is anything in s38(6) of the Western Australian Act (Section 38(7) of the South Australian Act) which denies the Full Court of the Supreme Court jurisdiction to hear an appeal from either a refusal to grant leave or from a decision on appeal by a single Judge. Nor in my opinion does s28 coupled with that subsection have that result. Section 28 is subject to the provisions of s38 which allows for the limited right of appeal. I cannot agree that s38(6) of that Act or s38(7) of the South Australian Act in terms deny a right of appeal.

Steytler J and Wallwork J (who concurred with Steytler J) agreed with Rowland J's conclusions that there was no right of appeal and that the appeal was incompetent and should be struck out but expressly disagreed with the reasons of Rowland J in so far as Rowland J reached his conclusions relying on s38(6). I agree, in that respect, with Steytler J.

He argued that there was nothing in the Commercial Arbitration Act which expressly provides for any right of appeal against a refusal of leave by a single Judge under s38(4). If there was such a right Steytler J stated that it could only be found by resort to the provisions of the Supreme Court Act. He also concluded there was nothing in s38 which provides that there should be no appeal to the Full Court from a determination of a single Judge under s38(5).

The learned Judge accepted the principle that when the jurisdiction of an existing court is enlarged, that jurisdiction will be exercised in accordance with its ordinary procedures "including any general right of appeal from its decisions" (5). He referred to Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (supra) at 559 and other authorities before considering whether that was the natural understanding of the legislation.

He determined that the scheme of s38 indicates an intention to limit the involvement of the Supreme Court to a minimum. That intention, coupled with "the discretionary nature of an order granting or refusing leave" led to the conclusion that the refusal of leave amounted to a "final closing of what would, in the absence of consent, be the only door to the appellate jurisdiction of the Supreme Court". (7)

In further support of the conclusion at which he arrived Steytler J relied upon Costain Australia Ltd v Frederick W Nielsen Pty Ltd (Supra).

In that case an applicant sought leave to appeal to the Supreme Court of Victoria in relation to an interim arbitral award. Leave was refused by a single judge. The Commercial Arbitration Act (Vic) then included subsections (6) and (7) in the terms of the South Australian legislation prior to 1992. Section 38(6) and (7) of the Victorian Act provided.

"(6) Unless the Supreme Court gives leave, an appeal shall not lie to the Full Court of the Supreme Court from a decision of the Supreme Court to grant or refuse leave under sub-section (4) (b). (7) An appeal shall not lie to the Full court of the Supreme Court from a decision of the Supreme Court on an appeal under sub-section (2) unless-- (a) the Supreme Court or the Full Court of the Supreme Court grants leave; and (b) it is certified by the Supreme Court that the question of law to which its decision relates either is one of general public importance or is one which for some other special reason should be considered by the Full Court of the Supreme Court."

The applicant, after leave was refused under s38(4)(b) of the Act, sought leave to appeal from the same Judge to the Full Court pursuant to s38(6). The Judge at first instance also refused that application. The applicant then made two applications to the Full Court of Victoria. They were:-

"(1) for leave to appeal against the refusal to grant leave to appeal against the interim award; and (2) for leave to appeal against the refusal to grant leave to appeal to the Full Court."

Both applications were refused as incompetent upon the basis that the plain policy of s38(6) was that a refusal of leave under s38(4)(b) cannot be the subject of appeal unless the primary judge permitted it. That decision is, with respect, unquestionably right. But it has in my respectful opinion little relevance to either the Western Australian Act or the South

Australian Act. Steytler J recognised that the decision was distinguishable on the legislation but believed it provided "powerful support for the argument that the framers of the legislation did not intend that there should be any right of appeal from a refusal of leave under s38(4)(b)" (9). With respect I disagree. Indeed it might be argued that the differences in the then Victorian legislation and the Western Australian legislation led to the conclusion that the Western Australian Parliament did not intend there to be any limitation on an appeal from a refusal to grant leave because otherwise it would have adopted the Victorian (South Australian) model or expressly said there was to be no appeal.

In my opinion Costain Australia Ltd v Frederick W Nielsen Pty Ltd (supra) is not relevant at least in a consideration of a construction of the present South Australian Act: Commissioner of Stamps (South Australia) and Telegraph Investment Company Ltd and Another [1995] HCA 44; (1995) 184 CLR 453 at 463.

Next Steytler J had regard to the fact that the legislation did not give a right of appeal to the Court except by way of leave under s38(4)(b). He decided that s38(4)(b) referred to a single Judge of the Court. With that I agree. [The question has been put beyond doubt in South Australia (R120.07)]. In those circumstances he argued the natural understanding of the legislation was that the decision of a single judge must be conclusive.

I cannot, with respect, agree with that. The requirement to obtain leave from a judge of the Court is to ensure that the appeals which are to be considered by the Court are only those that satisfy the criteria in s38(4)(b). That the jurisdiction for the granting of leave is given to a single judge is consistent with the Act in making the arbitral award as nearly as possible, subject to the matters in s38, final and binding on the parties to the arbitration.

However because the legislature has adopted the less expensive procedure of seeking leave from a single Judge rather than the Full Court is certainly not decisive nor, in my respectful opinion, relevant to a determination of whether the refusal of leave by a single judge or the appeal itself can be called into question by way of appeal.

Lastly Steytler J considered s60(1)(f) of the Supreme Court Act (WA). He said of that section: (12/13)

"In D'Esterre v Austplat Minerals NL (In Liq) (1991) 4 WAR 549 (in which the Full Court of this Court expressed a preference for a construction of s60(1)(f) of the Supreme Court Act which would lead to the consequence that there can be no appeal from the refusal of a Judge or Master to grant leave to appeal from an interlocutory order or judgment given by that Judge or Master) Malcolm CJ, with whom Rowland and Walsh JJ were in agreement, referred with approval to the joint judgment of Fox and Forster JJ in Reid v Nairn (1985) 60 ALR 419 at 421, in which their Honours said (in the context of interlocutory matters) that an appeal from the grant or refusal of leave (before the substantive matter is dealt with) is a thoroughly undesirable addition to legal remedies.

For myself I would have thought that an appeal from the grant or refusal of leave to appeal from the decision of an arbitrator, whether the substantive matter has or has not been dealt with, is likewise a thoroughly undesirable (and unintended) addition to legal remedies in the context of an Act which, as I have said, is designed to provide speedy, informal and comparatively inexpensive relief to litigants and which, as I have also said, is designed to minimise interference by the Supreme Court."

His Honour there did not limit his remarks to an appeal from a refusal to grant leave but also to the granting of leave, which he described as a 'thoroughly undesirable (and unintended) addition to legal remedies in the context of the Act..."

In South Australia, the Court has not recognised that an appeal from a refusal to grant leave is necessarily undesirable. Indeed the Rules provide for such an application (See R94.02).

In a uniform national legislative scheme an interpretation of that legislation by one intermediate Court of Appeal ought to be followed by an intermediate Court of Appeal of another State unless the second Court considers the decision plainly wrong.

In this case there is the further complication that three other Courts of Appeal, viz the Full Federal Court, the Court of Appeal in New South Wales and the Full Court of South Australia, have assumed that an appeal does lie from a refusal to grant leave to appeal under s38(4)(b) and from a determination of an appeal under s38(2). Those decisions were not referred to in the decision of the Full Court of Western Australia.

I would not, with respect, have reached the conclusion of the Western Australian Full Court for any of the reasons given by the members of that Court. Can I say, however, that the decision is plainly wrong?

In Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (supra) the Court, after referring to the assumption that if the legislation does not intend to take the incidents of liability to appeal it will say so, said:

"In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality. "

Section 50(1) of the Supreme Court Act provides for an appeal to lie against every "judgment

... order, or direction of a judge, whether in court or chambers, and also from the refusal of any judge to make any order" except those provided for in the proviso to that sub-section. An appeal from a refusal to grant leave under s38(4)(b) of the Commercial Arbitration Act would therefore lie unless it is a judgment or order which is by statute final or without appeal (s50(1)(i)(c)).

The question then is whether a refusal to grant leave to appeal or a judgment or order on an appeal is, by virtue of the Commercial Arbitration Act, final and without appeal. The answer to the question must lie in the Commercial Arbitration Act itself.

There is no doubt that successive legislative changes, which first occurred in other States but were adopted in this State, demonstrate an intention on the part of the legislature to make, as nearly as possible, an arbitral award final and binding on the parties to the arbitration agreement. The legislature has made it clear enough that commercial arbitration awards ought to stand without being liable to interference by the Courts.

Section 38 now prevents any arbitral award made under the Act being called into question except upon a question of law (s38(2)); and then only with leave of a judge of the Supreme Court (s38(4)(b); R120.07) which leave cannot be granted unless the determination of the question of law could substantially affect the rights of one or more parties; and there is either a manifest error of law on the face of the award or strong evidence that the arbitrator made an

error of law and that the determination of the question may add or be likely to add substantially to the certainty of the commercial law (s38(5)).

Leave will only be granted in the exceptional case where the applicant can make out both limbs of s38(5). The matters in which leave will be granted will necessarily be limited and important because leave cannot be granted unless the parties rights could be substantially affected and there is either a manifest error of law or strong evidence of an error of law and that the determination of that question can add substantially to the certainty of the commercial law. Ordinarily the leave will not be granted except where the matter is important and the error of law obvious in the sense described by Sheller JA in Promenade Investments Pty Ltd v State of New South Wales (supra) at 221/222.

There is nothing on the face of s38 which suggests that such important questions of law must always be decided by a single judge. Indeed I think the section suggests otherwise. Section 385(b)(ii) provides that, if there is not a manifest error of law on the face of the award leave will only be granted if the determination of the question may add, or may be likely to add, substantially to the certainty of the commercial law. I do not think that the decisions of a number of judges at first instance in different States would necessarily add to the certainty of the commercial law. One would think that the certainty of the commercial law would be best ensured by access to intermediate Courts of Appeal and if necessary the High Court.

If a single judge grants leave and determines the appeal there is nothing in s38 to suggest that the unsuccessful party is not entitled to appeal. The unsuccessful party to the appeal will have failed in an appeal on a question of law which could substantially affect the rights of the parties. There is nothing in s38 which suggests that the unsuccessful party is not entitled to appeal to an intermediate Court of Appeal. On a reading of s38 there is no reason to think that applications for leave to appeal ought to be treated, at least so far as access to an appeal court is concerned, any differently from the appeal itself.

To allow parties to seek leave to appeal from a refusal to grant leave to appeal or appeal from a decision given on appeal at first instance would not cut across the scheme of the Act, because necessarily such applications for leave to appeal or appeals would be limited to the narrow class of cases defined in s38(5) of the Act.

In my opinion the assumption made by the Federal Court in Commonwealth of Australia v Rian Financial Services and Developments Pty Ltd (supra), the Court of Appeal in New South Wales in Promenade Investments Pty Ltd v State Bank of New South Wales (supra) and Natoli v Walker (supra) and State of New South Wales v Coya (Construction) Pty Ltd (supra) and the Full Court of South Australia in Leighton Contractors Pty Ltd v SASFIT (supra) that the applicant in those Courts was entitled to seek a review of the decision of the single judge, was right.

Indeed if the decision in the Full Court of Western Australia in Aintree Holdings Pty Ltd v Corderoy & Corderoy (supra) is correct the decisions in Commonwealth of Australia v Rian Financial Services (supra) and Natoli v Walker, where those Courts of Appeal reversed the judge appealed from must be wrong.

In my opinion the decision of the Full Court of Western Australia is plainly wrong, and I decline to follow it.

In my opinion the objection to competency fails and the application for leave to appeal ought to be granted in accordance with the decision of the majority who previously considered that application.

In my opinion the objection to the competence of the appeal fails. I agree with the reasons given by Lander J.

There are good reasons why this Court should follow the decision of the Full Court of another State dealing with legislation in the same terms. Lander J has referred to this, and has explained why in this case he has decided not to follow the decision of the Full Court of the Supreme Court of Western Australia which is in point in the present case. I agree that it is in this case appropriate not to follow that decision. I take that view only because there have been a number of other decisions which have assumed that the view preferred by Lander J is correct. Were it not for that I think that I would have been prepared to follow the decision of the Full Court of the Supreme Court of Western Australia, even though, with all respect, I prefer the reasoning of Lander J.

I agree that the objection to competency fails for the reasons given by Lander J with which I respectfully agree.