RIVERLEA CORPORATION PTY LTD -v- BOCOL CONSTRUCTIONS PTY LTD [2007] WASC 317 (20 December 2007)

1. The evidence referred to in paragraph 10 above could easily have been produced by RIVERLEA CORPORATION PTY LTD.
2. The Arbitrator failed to comply with the 'unrepresented litigant guidelines' established/acknowledged in such cases as Marriage of F [2001] FamCA 348; (2001) 161 FLR 189; Brehoi v Minister for Immigration & Multicultural Affairs [2001] FCA 931; Platcher v Joseph [2004] FCAFC 68; Tobin v Todd [2004] WASCA 288; Mentyn v Law Society of Tasmania [2004] TASSC 24; Nagy v Ryan [2003] SASC 37 and Moore-McQuillan v Police (1998) 196 LSJS 488.
3. In the circumstances, the interim award made on 20 October 2006 is the product of a procedural mishap or misunderstanding such that the Court should remit issues of quantum of damage in respect of Claims 1, 2, 4 & 5 to the Arbitrator for a further hearing pursuant to section 43 of the Commercial Arbitration Act 1985 (WA).
4. In the circumstances, the Court should exercise its power under section 30 of the Commercial Arbitration Act 1985 (WA) to correct the interim award made on 20 October 2006 in so far as that interim award did not require BOCOL CONSTRUCTIONS PTY LTD to pay damages to RIVERLEA CORPORATION PTY LTD in respect of Claims 1, 2, 4 & 5.
5. The Arbitrator's failure to comply with the 'unrepresented litigant guidelines' is an error of law in respect of which the Court should grant leave to appeal under section 38(4)(b) of the Commercial Arbitration Act 1985 (WA).

82 Riverlea does draw some support though from Minister for Industrial Affairs v Civil Tech Pty Ltd [2003] SASC 40; (2003) 84 SASR 559:

86 In Bovis Lend Lease Pty Ltd v WGE Pty Ltd [2002] NSWSC 939, Einstein J conducted a review of the authorities in relation to s 43 before saying:

93 The provisions of s 30 were examined recently by Muir J in Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 2) [2005] QSC 46; (2005) 2 Qd R 180. Muir J set out the relevant law at [14] - [18].

102 In Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31, a question arose whether the appellant had adequately proved his damage. The majority (Beazley and Basten JJA agreeing) set out the cases dealing with unrepresented litigants in both civil and criminal proceedings. After quoting Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 Beazley JA continued:

(2001) 161 FLR 189

(1991) 22 NSWLR 653

(2003) 84 SASR 559

(1996) 39 NSWLR 169

(1995) 36 NSWLR 662

(1990) 55 SASR 327

(2005) 2 Qd R 180

(1999) 84 FCR 438