New South Wales Racing Pty Limited v TAB Limited

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Thursday 18 July 2002 ex tempore Revised Tuesday 20 August 2002

50084/02 New South Wales Racing Pty Limited v TAB Limited JUDGMENT 1 Proceedings 050084/2002 were commenced by summons filed on 24 June 2002, in which the plaintiff ("NSW Racing") seeks relief in relation to an award made on 30 May 2002 by Mr Tobias QC, acting as an arbitrator. 2 The defendant ("TAB"), by a Notice of Motion filed on 12 July 2002, seeks an order under Part 31 Rule 2 of the Rules that a separate question be determined.

3 TAB and NSW Racing are parties to a racing distribution agreement dated 11 December 1997 ("The RDA"). TAB is responsible for and conducts extensive wagering activities in New South Wales. NSW Racing is the agent for the New South Wales racing industry (comprising statutory authorities responsible for thoroughbred, harness and greyhound racing). The RDA is a complex agreement which apparently governs the relationship between TAB and the racing industry and which includes complex provisions concerning the conduct of racing and betting in New South Wales and the payment of fees by TAB to NSW Racing. The RDA is anticipated to govern that relationship for 99 years, or longer. 4 Clause 24 of the RDA is a dispute resolution clause. If the respective Chief Executive Officers are unable to resolve any dispute ("Dispute") by negotiation in accordance with clause 24.1, the Dispute is referred to an expedited arbitration by clause 24.2. That arbitration is to be conducted in accordance with clause 24.3. Clause 24.4 identifies when it is that a Dispute is resolved and clause 24.5 restricts the rights of the parties to commence court proceedings in the following terms:

"No party may commence court proceedings in relation to a Dispute until the procedures specified in this clause 24 have been followed and in any event, may only do so on the grounds of an error of law by the arbitrator. However, any party may seek urgent interlocutory relief, subject to the limitations and restrictions set out elsewhere in this agreement".

5 A dispute, apparently involving several matters between TAB and NSW Racing, arose. NSW Racing served a document entitled "Dispute Notice No. 2" and, in due course, that dispute was heard by Mr Tobias QC, pursuant to clause 24.3 of the RDA. TAB was successful in that arbitration and obtained an award in its favour. NSW Racing now seeks to appeal. The Commercial Arbitration Act 6 The Commercial Arbitration Act 1984 (NSW) applies to these proceedings. Section 38 of that Act is in the following terms:

"38. Judicial review of awards (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… (4) An appeal under subsection (2) may be brought by any of the parties to an 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 shall not grant leave under subsection (4) (b) unless it considers that: (a) having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and (b) there is: (i) a manifest error of law on the face of the award; or (ii) strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law…" Identifying the separate question 7 The first prayer for relief in the summons is a declaration that by clause 24.5 of the RDA, the parties have consented to an appeal on any question of law being brought under section 38 (2) of the Commercial Arbitration Act. 8 The second prayer for relief is a claim in the alternative, for an order pursuant to section 38 (4) (b) of the Commercial Arbitration Act, that NSW Racing be granted leave to appeal against the award. 9 TAB contends that leave is required and that section 38 (4) (b) of the Commercial Arbitration Act applies. The defendant's submissions assert that if NSW Racing was wholly confident that leave to appeal was not required it would not have sought leave to appeal as an alternative claim and make the point that the existence of prayer 2 in the summons indicates that NSWR accepts that there is at least an argument that there is no appeal as of right and that leave might be required. 10 The proposed question for separate determination is whether the plaintiff is required to obtain leave to appeal in respect of the award of the arbitrator dated 30 May 2002 pursuant to sections 38 (4) (b) and 38 (5) of the Commercial Arbitration Act. 11 If the answer to the separate question is "No", then NSW Racing has a right to appeal on any question of law arising out of the award. The declarations sought by the first prayer for relief, and the summons could then be made. 12 If the answer is "Yes", then NSW Racing must obtain leave to appeal and must satisfy the requirements of section 38 (5). 13 In its written submissions TAB makes clear that it does not dispute that section 38 (5) (a) would be satisfied in this case. TAB makes the point that the requirements in section 38 (5) (b) present a much sterner challenge for NSW Racing. The submission is that to satisfy section 38 (5) (b), NSW Racing must show that this case meets one of the two conditions imposed by sections 38 (5 (b) (i) and 38 (5) (b) (ii). 14 It seems reasonably clear that, as I understand it, there is no issue but that Dispute Notice No. 2 concerned a pure question of construction of the RDA. The RDA, it is said, is a 'one off' contract. The submission of TAB is that it is inconceivable that the appeal could do anything to advance the certainty of commercial law within the meaning of 38 (5) (b) (ii). Accordingly, so TAB submits, leave would only be granted if NSW Racing could persuade a court that there was a "manifest error on the face of the award" within the meaning of section 38 (5) (b) (i). Dealing with the issue 15 The general principles applicable to the separate determination of issues were referred to in some detail in Idoport Pty Limited v National Australia Bank Limited 2000 NSWSC 1215 at paragraphs 7-8. Those paragraphs were in the following terms: "[7] Without examining specific cases in relation to the power conferred on the Court in Part 31, Rule 2, I proceed on the basis of the following principles. (1) The power of the Court to order the separate determination of an issue is a discretionary power which must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 670 per Young CJ and Jenkinson J. (2) In exercising the power under Part 31, Rule 2, the Court is now enjoined to give effect to the overriding purpose of the Supreme Court Rules ; namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings and cannot be stated in a more confined way: Part 1, Rule 3 (1), (2) Supreme Court Rules . (3) The Court begins with the proposition that it is ordinarily appropriate that all issues in a proceeding should be disposed of at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 per Giles CJ in Comm D, Hadid v Australis Media Ltd (unreported, Supreme Court of NSW, 29 March 1996 per Rolfe J). Accordingly, it is for the party who wishes to have a question separately determined to show that it is desirable for that to occur. (4) Without being exhaustive, the separate determination of an issue may prove to be an appropriate procedure in at least the following sets of circumstances: (a) where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy : CBS Productions Pty Ltd v O''Neil [1985] 1 NSWLR 601 at 606 per Kirby P, Dunstan v Simmie & Co Pty Ltd (supra, at 671 per Young CJ and Jenkinson J); (b) where the resolution of that separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation: Tallglen v Pay TV Holdings (supra, at 141 - 142 per Giles CJ in Comm D); (c) where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of witnesses: CBS Productions Pty Ltd v O''Neil (supra, at 606 per Kirby P), Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Rajski v Carson (1988) 15 NSWLR 84 at 88 per Kirby P and Hope JA. (5) Conversely, the separate determination of an issue will rarely be an appropriate procedure where: (a) there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation: Law Society of NSW v Bruce (unreported, Supreme Court of NSW, 23 April 1996, per Rolfe J), Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J). (b) where there is a commonality of witnesses and issues of credit as between the separate issue and other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witness, thus possibly precluding that same judicial officer from again dealing with the matters going to the credit of the common witness in accordance with the decision of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (in liq ) (1992) 26 NSWLR 411 : Story of Sydney Pty Ltd v Ling (unreported, Supreme Court of NSW 15 November 1994, per Rolfe J), Century Medical v THLD Ltd [2000] NSWSC 5; (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J). (c) there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings: Story of Sydney Pty Ltd v Ling (supra), Century Medical v THLD (supra). (6) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Parramatta Stadium Trust v Civil and Civic Pty Ltd (supra), Century Medical v THLD (supra).

[8] As Giles CJ in Comm. D (as his Honour then was) said in Tallglen (supra, at 142): "Part 31, rule 2 of the rules empowers the court to make orders for the decision of any questions separately from any other question, whether before, at or after any trial or for the trial in the proceedings, and for the statement of a case and the question for decision. In the ordinary course, all issues in proceedings should be decided at the one-time, but separate decision of a question may be appropriate where, for example, the decision of the question is critical to the outcome of the proceedings and (at least if decided in one-way) will bring the proceedings to an end. In particular circumstances the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of their dispute is decided or where the decision will obviate unnecessary and expensive hearing of other questions, but such occasions must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of right of appeal is borne in mind) brings delay, expense and hardship - that which the making of an order was intended to avoid. It is often the case that the need to make findings of fact for a decision of the separate question, especially findings which may involve issues of credit, tells strongly against the making of an order because related facts, and renewed issues of credit, will or may arise at a later stage in the proceedings . Experience teaches that it should be able to be seen with clarity that decision of a separate question will be beneficial in the conduct of the proceedings and the resolution of the parties dispute."" [Emphasis added] 16 Clearly, however, each application for a separate determination must be determined upon its own merits. The present application requires to be considered in the light of the legislative history leading to the 1990 amendments to section 38 (5), which has been carefully traced in a number of authorities: See in particular Promenade Investments Pty Limited v State of New South Wales (1992) 26 NSWLR 203, at first instance before Rogers CJ Commercial Division 1991, 26 NSWLR 184, and in the Court of Appeal 1992, 26 NSWLR 203, particularly the judgment of Sheller JA with whose reasons for judgment Meagher JA agreed. See also Natoli v Walker unreported Supreme Court of New South Wales, Court of Appeal, 26 May 1994; Horizons Corporation Pty Limited v Lahey Constructions Pty Limited, unreported, Supreme Court of New South Wales, 27 November 1998. 17 The policy behind the amendment to the Act effected by section 38 (5) was to further limit intervention by the courts in the arbitration process, even beyond the restrictions on the grounds of leave to appeal imposed by the pre 1990 legislation. The policy behind the amendment was:

"...to promote the finality of the arbitral awards even at the price of denying a party its usual entitlement to the determination of the dispute by a court of law i.e. the precise assignment of the party's legal rights after a detailed scrutiny of the relevant facts and application of the relevant law": Kirby P Natoli v Walker, cited in Horizons Corporation in paragraph 19 . 18 Section 38 (5)

"constitutes thresholds which must be surmounted by an applicant before leave to appeal can be granted; a particular type of error of law must first be shown to exist, the effect of section 38 (5) (b) (i) is that an error of law in an award is no longer enough; it must be 'manifest'". 19 As Sheller JA pointed out in Promenade Investments, at 225-226, if an error of law of the statutory type is found to exist, the threshold is surmounted but the gate to appeal remains closed. In short, even if the requirements of section 38 (5) have been satisfied, the question still remains as to whether, as a matter of discretion, leave to appeal should be granted [Natoli v Walker per Mahoney JA, at pages 3-4]. 20 In my view the application for the separate determination of the question sought in the Notice of Motion should be acceded to generally for the reasons given by the applicants in their written submissions, which are adopted and followed. 21 As has already been pointed out, the policy behind, as well as the operation of, section 38 (5) of the Commercial Arbitration Act, has been considered in a number of reported and unreported decisions. Many of those cases address the question of whether there is a manifest error on the face of the award. In Promenade Investments, in the Court of Appeal, the leading case, Sheller JA observed at 226 D:

"However, as McHugh JA pointed out 'manifest', in the context of the subsection, which contemplates the grant of leave before an appeal can be pursued, connotes an error of law that is more than arguable. There should, in my opinion, before leave is granted, be powerful reasons for considering on a preliminary basis, without any prolonged argument, that there is on the face of the award an error of law".

22 That judgment was strongly supported by Kirby P in Natoli. His Honour noted that it must be accepted that very considerable judicial restraint must be exercised where the criterion of 'manifest' obtains, and that it:

"requires swift and easy persuasion and rapid recognition of the suggested error"

"it should not require a great deal of argument. The precondition to curial intervention is the easy demonstration that the primary decision maker was 'clearly wrong'". 23 It is my understanding that although it is not necessarily an invariable practice never to be departed from, it is correct to say that where leave to appeal under sections 38 (4) and 38 (5) is required, the usual practice of the court is to hear the question of leave in advance and not at the same time as the hearing of the substantive appeal. An attempt was made by TAB during the course of submissions to summarise by chart a number of cases to make this point. The practice is, I accept, a sound one. As the defendants point out in their written submissions, at first instance in Promenade Investments, Rogers CJ Commercial Division, commented at 187 E:

"It was intimated that the parties' desired to argue both the application for leave to appeal and the appeal at the same time. I declined to accede to this course because, in my view, it is entirely inimical to the purposes of the Commercial Arbitration Act 1984". 24 His Honour discussed the matter further, in particular at 188. In essence his Honour considered that it was necessary to bring an application for leave to appeal in advance because that was consistent with one of the major objectives of the Commercial Arbitration Act, namely, the minimisation of judicial supervision and review of arbitrations. Further, to hear substantive argument on the merits of an appeal before deciding whether or not to grant leave would leave more awards open for review than was desirable and would detract from the finality of arbitral awards. [See also 192 FF of the judgment] 25 Clearly in the present case, the question of whether leave to appeal is required is a point in issue. It arises squarely on the face of the summons. If the separate question is determined favourably to TAB, then NSW Racing will have to first obtain leave and, if a manifest error on the face of the award can be shown in the manner required by the authorities, the matter will afterwards proceed to a hearing of the appeal on its merits in the proper way. If no manifest error can be shown after brief argument, leave is likely to be declined and the appeal will be at an end. If the separate question is determined favourably to NSW Racing, no question of leave arises and the appeal would be able to be heard on its merits. 26 I accept as correct the defendant's submission that if the separate question is not heard and determined, then at the final hearing there will necessarily arise all of the following questions which will need to be addressed at the same time: 1. Is leave to appeal required?

2. If so is there a manifest error of law on the face of the record applying the proper test?

3. If so, is there a question of law arising out of the proceedings that is properly the subject of appeal? 27 I further accept that in terms of the particular suggested issues which arise in these proceedings, for those questions to be addressed at the same time would be, to use the words of Rogers CJ Commercial Division, "entirely inimical to the purpose of the Commercial Arbitration Act". 28 Prejudice also plays a part in the exercise of the Court's discretion in ordering a separate question to be determined. It does seem to me that there is substance in the defendant's submission that there is a real danger that TAB will be unfairly disadvantaged if there is no separate question determined. If leave to appeal is required, TAB is entitled to have the question of leave determined by the application of principles laid down in the cases such as Promenade Investments. That is the intent of Parliament. Importantly, and as the defendant's submit, it is unreal to suggest that a court could consider the question of error of law on a preliminary basis, and without prolonged adversarial argument, and simultaneously but separately consider the full merits of the matter based on prolonged adversarial argument over material other than the face of the award. 29 Inevitably, as the defendant points out, the latter consideration would influence and detract from the former and, in reality, the two things cannot be separated, as they should be if possible, except by separate hearings. 30 The defendant contends that an additional reason why the separate question should be heard is that the question is very important one to the parties. This is said to be because it is a critical aspect of a dispute mechanism in a contract that is expected to endure until 2097, and beyond. The defendant makes the point that, regrettably, in a contract as complex as the RDA, and given the amount that is controlled by it, disputes are going to be a fact of life and it is important for the parties to understand where they stand on this discrete question. This is one of the matters taken into account in the exercise of the Court's discretion to order the separate question, but seems to me to be of less weight than the other considerations earlier referred to. 31 When and if further issues arise in relation to the particular contract over the next 95 years the approach of the court to the manner in which the curial process is to be enlivened must be determined on an instant specific basis as it seems to me. 32 The written submissions of the plaintiff advanced the following seven reasons for its opposition to the separate determination of the suggested question: "First, absent some compelling reason to warrant departing from the ordinary course, all issues should be determined at a single hearing.

Secondly, the hearing of all issues on the appeal could reasonably be expected to take no more than a day. The entire arbitration lasted 2 days, and that included a separate dispute from which no appeal has been brought. The appeal is confined to questions of law. Thirdly, the Court's ordinary practice is to determine the application for leave and the substantive appeal simultaneously. See for example Doran Constructions Pty Ltd v Health Administration Corporation of NSW (1996) 12 BCL 104. Fourthly, the separation of a preliminary question as sought by TAB guarantees that there will be two hearings, with the consequent additional costs in time and money to the parties and to the Court. On the other hand, if the ordinary course is followed, there is no reason why the hearing of the entire appeal could not occur in the very near future. Fifthly, the separation of a preliminary question carries with it the possibility of an interlocutory appeal. Sixthly, the separation of a preliminary question forces the Court to determine an issue unnecessarily. If NSW Racing's submissions on the merits of the appeal are accepted, then the Arbitrator will be found to have erred is his construction of cl 9.2 of the RDA. It is difficult to see how those errors would not be "manifest errors of law" within the meaning of s38(5)(b). On the other hand, if TAB's submissions on the merits of the appeal are accepted, the Court will find that the construction found by the Arbitrator is correct and unaffected by any error of law, manifest or otherwise. Only if the Arbitrator's award was vitiated by an error of law which was not a "manifest error of law on the face of the award" would the determination of the separate question have any significance. In the particular circumstances of this award, that possibility is scarcely more than theoretical. In short, whichever way the separate question be determined, there is no substantial narrowing of the field of litigious controversy. Seventhly, this is plainly a case where, if leave be necessary and an error of law be established, there are powerful reasons for granting leave. The RDA is an agreement governing the operations of NSW Racing and TAB for 99 years. Compliance by TAB with the RDA is a condition of TAB's statutory licence. The fixed odds sports and race betting the subject of cl 9.2 generates millions of dollars per annum, of which, if the award stands, the plaintiff (representing the NSW Racing Industry) will be deprived. There is no question but that the construction of cl 9.2 substantially affects the rights of both NSW Racing and TAB within the meaning of s38(5)(a)." 33 The first to fifth reasons do not seem to me to be pervasive, in terms of the proper exercise of the discretion to order the separate question in this case. A balancing exercise is needed and the matters raised in those reasons do not carry the day. 34 In relation to the third of those reasons, the suggestion as to the court's ordinary practice being to determine the application for leave and the substantive appeal simultaneously, is rejected. As I have said, although it may not be necessarily an invariable practice never to be departed from, it is correct to say that where leave to appeal under sections 38 (4) and 38 (5) is required the usual practice of the court is to hear the question of leave in advance and not at the same time as the hearing of the substantive appeal. The sixth of those reasons seems to point out the need for a separate question here. 35 The sixth reason simply fails to treat with the unreality which inheres in the proposition that the court could consider the question of error of law on a preliminary basis and without prolonged adversarial argument and simultaneously, but separately consider, the full merits of the matter based on prolonged adversarial argument over material other than the face of the award. 36 As earlier pointed out, the latter consideration would be likely to influence and detract from the former consideration. In reality the two parameters cannot be, as they should where practicable, separated. 37 The seventh suggested reason on examination amounts to no more than an attempt to deal with the merits of whether, if it be necessary to obtain leave, leave should be granted. This, it seems to me, is putting the cart before the horse. 38 The essential burden of the submissions of NSW Racing, advanced by Mr Leeming of counsel, goes to the just, quick and cheap overriding purpose rule and regrettable circumstance that a number of disparate hearings will be necessary if the separate question is ordered. 39 I am clearly of the view, for the reasons already given, that the separate question is a threshold question which, in the particular present circumstances, can and should be isolated from the other issues which arise in the summons and I propose to so order in a moment. Having said that, it is conceivable that if the separate question is answered in the affirmative, so that leave to appeal by the court's decision will be required, it may be that the parties will be content to then proceed with the substantive leave to appeal application before the Judge, in the event of an ex tempore judgment. I accept that this would only be the case if instructions were received not to seek leave to appeal from the decision. The matter will, of course, be dynamic but there is at least, it must be hoped, a real possibility that the trial judge will be in a position, on the separate question, to deliver an ex tempore judgment and to then invite the parties, should they be disposed, to treat with the matter in this fashion, to then proceed with the application for the leave to appeal should the separate question have been answered in the affirmative. 40 For the above reasons the orders sought in the Notice of Motion is to be made, namely, order one.

41 In my view, this having been a contested motion and a contested motion in respect of which the applicant has succeeded, the appropriate order is an order that NSW Racing pay TAB's costs of the motion and I propose to so order. The orders of the court are as follows:

1. I make order one in the Notice of Motion filed on 12 July 2002.

2. I order that the plaintiff pay the defendant's costs of the motion.

I certify that paragraphs 1 - 41 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on Thursday 18 July 2002 ex tempore and revised 20 August 2002

      Susan Piggott
      Associate

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