The rules of natural justice and the so-called "no evidence rule"
81 Castel did not argue before the primary judge or on appeal that the finding of a fact without probative evidence may be an error of law, but was not (or could not be here) a breach of the rules of natural justice. That being the case, it is not appropriate to decide this appeal on any different basis. Nevertheless, certain features of the matter make it appropriate to say something as to the contestability of the unargued premise. The approach of TCL is one which may be seen to undermine the object of facilitating the expeditious and fair enforcement of awards in international commercial arbitration. We have already referred to the submission made before the primary judge that he examine all the facts of the case afresh and revisit in full the questions which were before the arbitrators: J[53]. Whilst his Honour rejected this approach, the parties nevertheless spent three days before the primary judge arguing about, essentially, findings of fact. On appeal, TCL effectively renewed those submissions. In argument on the appeal, senior counsel for TCL submitted that any conclusion that factual findings went beyond an available evidentiary foundation could be characterised (to the extent of the asserted impermissible overreach of the factual findings) as made without evidence, and without more, a breach of the rules of natural justice. He submitted that if one side submitted that the evidence permitted only facts 1 to 10 to be found, and the other side submitted that the same evidence permitted facts 11 to 15 also to be found (such further facts being central to the result in the award) there would be, without more, a breach of the rules of natural justice if the arbitrator agreed with the second party, but the reviewing court agreed with the first, even though the arbitral process (including the award) had been conducted scrupulously and impeccably fairly. For the reasons that follow, that submission should be rejected as clearly wrong, and as one likely to be productive, if accepted, of the undermining of the IAA and of the efficacy of international commercial arbitration.
82 There is no doubt that at common law it is an error of law to make a finding of fact for which there is no probative evidence: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at 418 [90]-[91]; McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355. Once there is some evidence that could support a finding, any error can be seen as factual, not legal: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. The distinction had its origins in the division of function between judge and jury. It is also now to be recognised that legal unreasonableness in statutory decision-making may also be an error of law, and a jurisdictional error: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; and FTZK v Minister for Immigration and Border Protection [2014] HCA 26.
83 The question is whether the making of a factual finding without probative evidence is, or may be, a breach of the rules of natural justice in the context of an international commercial arbitration. One can, at the outset, accept without the slightest hesitation, that the making of a factual finding by a tribunal without probative evidence may reveal such a breach. This would be so when the fact was critical, was never the subject of attention by the parties to the dispute, and where the making of the finding occurred without the parties having an opportunity to deal with it. That is unfairness; the parties have not been given an opportunity to be heard. It does not follow, however, that any wrong factual conclusion that may be seen to lack probative evidence (and so amount to legal error) should necessarily, and without more, be characterised as a breach of the rules of natural justice in this context.
84 The common expression of the fundamental structure of the rules of natural justice or procedural fairness is the so-called "bias rule" and the "hearing rule": that a person may not be a judge in his or her own cause; and that a person should be given a fair hearing: J M Evans, de Smith's Judicial Review of Administrative Action (4th ed) at 156; M Aronson and M Groves, Judicial Review of Administrative Action (5th ed) at 398-399; Spackman v Plumstead District Board of Works (1885) 10 App Cas 229 at 240 (Earl of Selborne LC). A notable expression of the matter in an arbitral context is Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Anor [1978] VR 365 at 396 (Marks J).
85 It is essential to recall, however, as the learned authors (Sir Michael Mustill and Mr Boyd) said in The Law and Practice of Commercial Arbitration in England (1982) at p 252, that the expression "natural justice" (and thus the expression "the rules of natural justice") must be approached with caution because the phrase tends to suggest that there exists a package of procedural rules which must always be observed, when, in fact, the requirements of natural justice vary according to the circumstances. This does not deny the ready structure of available rules to guide judgment, but it reminds one that the underlying premise is not one or more black-letter rules, but the notion of fairness: Kioa v West 159 CLR at 583; Wiseman v Borneman [1971] AC at 308, 309 and 320; Bushell v Secretary of State for the Environment [1981] AC 75 at 95.
86 The required content of fairness in any particular case will depend on context: constitutional, statutory and human, on all the circumstances of the case: Salemi v MacKellar (No 2) [1977] HCA 26; 137 CLR 396 at 419. The fairness required relates principally to the procedure employed in dealing with the party in question. That may involve the exercise of state or governmental power over the individual, who may be vulnerable and powerless, or a great corporation. The terms of any statute will be critical. The common element is that, generally speaking, the exercise of power should be fair. That exercise will always have a human context. That is why, as Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 14, fairness is not an abstract concept, but essentially practical. The concern of the law is to avoid practical injustice. Fairness is normative, evaluative, context-specific and relative.
87 The importance of fair procedure, of the fair exercise of power, of not exercising power in a manner that is practically unjust explains why it can be said that there is nothing technical about the rules of natural justice: Salemi at 419 (Gibbs J). Article 18 of the Model Law is not an expression of a technical rule; it is the expression of a fundamental non-derogable requirement of fairness and equality. Articles 12 and 23 (though not non-derogable like Art 18) are similarly fundamental.
88 There are judicial expressions of view that the rules of natural justice are not limited to the two rules referred to above. In a context involving the exercise of state power it has been stated that the failure to respond to a substantial, clearly articulated argument, relying on established fact, was to fail to accord natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at 394 [24] (Gummow and Callinan JJ) and 408 [95] (Hayne J) and that the same characterisation can be ascribed to a decision made other than rationally, not responding to a party's case and not on probative evidence; Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [79]-[92] and [108], [118]-[119]. One illustration of these wider conceptions of procedural fairness focussing upon the adjudication of the matter, rather than the process of reaching the adjudication, is the so-called "no evidence rule" - the requirement to base a decision upon probative evidence.
89 The roots of the so-called "no evidence rule" in England are to be found in the judgments of Willmer LJ and Diplock LJ in Moore at 476 and 487-488. The rule was expressed in terms identical to the traditional error of law test of finding of facts in the absence of relevant probative material. No authority for the characterisation or categorisation of this "rule" as part of natural justice was cited by either of their Lordships. In 1984, speaking for the Judicial Committee of the Privy Council in a New Zealand appeal in Mahon v Air New Zealand [1984] AC 808, Lord Diplock stated that the first relevant rule of natural justice was that the decision must be based on evidence that has some probative value. Not surprisingly, the characterisation has been accepted without question by New Zealand courts: Downer-Hill Joint Venture [2005] 1 NZLR at 570 [83].
90 In Australia, there is no authoritative adoption of this necessary characterisation of an otherwise available ground of error of law. It should perhaps be noted by way of preliminary comment that one important consequence of this characterisation or categorisation would be the placement of the error within the concept of jurisdictional error, and thus within the ambit of the Commonwealth Constitution, s 75(v): see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57. Whilst there are older authorities to the effect that the lack of probative evidence to support a finding of fact or a decision is an error of law but is not a matter of jurisdiction: R v Nat Bell Liquors Ltd [1922] 2 AC 128 at 151 (Lord Sumner); R v Ludlow; Ex parte Barnsley Corporation [1947] KB 634 at 639 (Lord Goddard CJ); and Armah v Government of Ghana [1968] AC 192 at 234B (Lord Reid), the importance of the possible characterisation of the exercise of public or state power without probative material as jurisdictional (and the potential deep unfairness in such an exercise of public power) can be seen in Attorney-General v Ryan [1980] AC 718 at 732.
91 In R v Corporation of the Town of Glenelg; Ex parte Pier House Pty Ltd [1968] SASR 246 ("Glenelg") the Full Court of the South Australian Supreme Court was concerned with the review of a local council's decision under the Local Government Act 1934-66 (SA) to prohibit the building of a private hospital on the grounds that it was "unsuitable" or likely to be detrimental to the health, welfare and comfort of neighbourhood inhabitants. The attack on the decision was an asserted failure to accord natural justice by making a conclusion as to unsuitability in the absence of sufficient evidence to support a bone fide opinion on such grounds. Bray CJ (with whom Travers J agreed on this point) expressed the view that some findings of fact without probative evidence may (not, it should be noted, necessarily did) amount to a breach of the rules of natural justice. At 260, Bray CJ said.
And I think there may be cases where the lack of any evidence at all to support the decision can mean that the decision has been arrived at in violation of the rules of natural justice. I know that it is now settled that where a tribunal acts within its jurisdiction the court cannot go behind the record for the purpose of granting certiorari for error in law on the grounds that there is no evidence to support the decision (R. v. Nat Bell Liquors Ltd [(1922) 2 A.C. 128]; Davies v. Price [(1958) 1 All E.R. 671.]; R. v. Agricultural Land Tribunal [(1960) 2 All E.R. 518.]. And I would agree that this rule cannot be evaded by alleging the lack of evidence as a violation of the rules of natural justice instead. But I think it is necessary to draw a distinction between various types of acting without evidence. There is a distinction between coming to the conclusion that there is no evidence on which a reasonable man could act, a question on which the members of appellate courts frequently differ, and coming to the conclusion that there is no evidence on which a reasonable man could honestly think that he could act. There are cases of acting without evidence so extreme as to afford evidence of lack of bona fides, or, if you like, of bias, meaning by those expressions not necessarily some evil or sinister or wilfully improper motive, but a determination, it may be with the highest motives, to decide the issue by some test other than the one prescribed or thought to be prescribed by law. I think there is authority for the view that in such a case the court will hold that the rules of natural justice have been violated.
92 Some years later, in R v District Council of Berri; Ex parte Eudunda Farmers Cooperative Society Ltd (1982) 31 SASR 342 Zelling J at 345 said in obiter that Glenelg stated the grounds of natural justice too widely. He stated at 345: "[T]here are in my opinion only two [rules of natural justice]: bias and failure to hear the other side".
93 In Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 688-690, Deane J (with whom Evatt J agreed) drew on the United States jurisprudence in relation to due process in the 5th and 14th Amendments and in relation to fundamental concepts in law, as well as the decision of the English Court of Appeal in Moore, to reach the conclusion (at 689) that:
[I]t is an ordinary requirement of natural justice that a person bound to act judicially "base his decision" upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined.
94 The context of Deane J's remarks and their relative character can be seen in a number of places in his judgment. At 688, when discussing the approach of the United States Supreme Court to fundamental standards of fairness inherent in due process, Deane J noted that such standards extend, "at least when issues of the gravity of deportation of an established resident are concerned, to exclude decision on the basis of suspicion and speculation". At 689, after referring to Diplock LJ in Moore, he once again directed his comments to "proceedings before a statutory tribunal involving an issue of the gravity of deportation of an established resident" and in respect thereof said it would be surprising and illogical if the rules of natural justice were restricted to the procedural steps leading to a decision. He said (at 689):
There would be little point in the requirements of natural justice aimed at ensuring a fair hearing … if, in the outcome, the decision maker remained free to make an arbitrary decision. If decision, in such a case, were to be based on mere suspicion or speculation, the rules of procedure aimed at governing the process of making findings of material fact would involve no more than a futile illusion of fairness.
(Emphasis added).
95 Deane J then agreed with Diplock LJ as to the conclusion set out at [93] above, but immediately qualified it by stating that the requirements of natural justice vary according to the nature of the inquiry, and "that conclusion" (being that of Diplock LJ with which he agreed and which is set out at [93] above) "may not be of universal validity in that it may not, for example, apply in respect of some domestic forums". He then stated, however, that "[i]t [the conclusion referred to above] is however of general validity in the case of a statutory tribunal which is bound to act judicially."
96 Thus, while Deane J expressly approved Diplock LJ's views in Moore, it was in the context of public power concerned with a grave question. Further, he equated the breach of the "no evidence rule" with the making of an arbitrary decision that made the apparently fair conduct of the hearing an "illusion of fairness"; and he recognised that the proposition involved in the "no evidence rule" was not of universal validity, but was dependent on context and circumstances.
97 In Bond 170 CLR at 355-356, Mason CJ (with whose reasons Brennan J agreed at 365 and Toohey and Gaudron JJ generally agreed at 387) discussed the nature of error of law in the finding of facts in the absence of probative material, and the difference between that and the error of fact in the demonstrable making of wrong factual findings even by illogical reasoning. At 356-357 Mason CJ also referred to the expression of opinion of Diplock LJ and Deane J in Moore, Mahon, and Pochi and said: "The approach adopted in these cases has not so far been accepted by this Court."
98 This comment of the Chief Justice may have been directed to the question of taxonomical characterisation of making a finding of fact without evidence, as well as the question as to whether the "no evidence rule" was one based on no evidence or no sufficient probative evidence, also involving questions of logical supportive reasoning. It is to be read, in our view, as at least extending to the former.
99 In Bond at 365-369 Deane J restated the views that he had expressed in Pochi. At 366 he said:
These days, it is customary and convenient in this country to avoid references to "acting judicially" or "natural justice" and to speak of the "requirements of procedural fairness" when referring to the fairness and detachment required of a person entrusted with statutory power or authority to make an administrative decision which may adversely and directly affect the rights, interest, status or legitimate expectations of another in his, her or its individual capacity. That evolution of terminology should not, however, be permitted to constrict the content of such an obligation to a mere requirement to observe some surface formalities. A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made. As I pointed out in Minister for Immigration and Ethnic Affairs v. Pochi, it would be both surprising and illogical if such a duty involved mere surface formalities and left the decision-maker free to make a completely arbitrary decision. If the actual decision could be based on considerations which were irrelevant or irrational or on findings or inferences of fact which were not supported by some probative material or logical grounds, the common law's insistence upon the observance of such a duty would represent a guarantee of little more than a potentially futile and misleading facade. If the decision were determined by the toss of a coin or some other arbitrary procedure, the "right" to a hearing would be illusory. If the decision could be based on unreasoned prejudice, the audi alteram partem rule would be pointless.
(Citation omitted.)
100 It is again to be observed that the kind of error or vice to which Deane J was directing these comments was the making of decisions in the exercise of public power that were arbitrary and that would make the hearing rule a "potentially futile and misleading faÇade" or "pointless". This expression of the "no evidence rule" as part of the rules of natural justice includes a necessary quality of unfairness, equivalent to an effective denial of a hearing.
101 In Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 210 CLR 222, Gleeson CJ at 232 [25] approved the statements of Diplock LJ in Moore and Deane J in Bond. He emphasised, indeed cautioned, at 232-233 [26]:
The distinction between judicial review of administrative decision-making upon the ground that there has been an error of law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of an administrative decision, would be obliterated if every step in a process of reasoning towards a decision were subject to judicial correction. The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts.
(Citation omitted.)
See also Kirby J at 251-252 [100]-[101].
102 In Ferguson v Cole [2002] FCA 1411; 121 FCR 402 at 416 [38], Branson J, after referring to Bond, Mahon and Rajamanikkam considered that it may be that in 2002 the law of Australia was reflected in Mahon, though it was unnecessary to decide the question.
103 In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59, Gleeson CJ at 62 [9] again endorsed the views of Deane J in Bond concerning the content of the duty to act judicially.
104 In Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCAFC 88; 195 FCR 318 the Full Court (Keane CJ, Lander and Foster JJ) cited Mahon at 820-821. This, however, was in the specific context of the requirement that persons at risk of adverse findings be given an opportunity to be heard on the finding - an aspect of the hearing rule. The Full Court said at 365 [78]:
… the appellant's entitlement to procedural fairness is measured by the need to ensure that it has an opportunity to place such material before the second respondent as might deter him from making a decision to place the appellant under special administration. [The Court then, in this regard, referred to Mahon.]
105 A number of matters can be said arising out of the above cases and discussion. First, the above cases deal with the exercise of public or state power. The context of international commercial arbitration is the exercise of private power through an arrangement and a tribunal to which the parties have consented under a regime wherein errors of fact or law are not legitimate bases for curial intervention: TCL [2013] HCA 5; 295 ALR 596 at 617 [81].
106 Secondly, until the High Court decides otherwise, this Court should respect the binding character of what was said by Mason CJ in Bond. To the extent that cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 may be seen to encompass in the conception of legal unreasonableness notions referred to by Deane J in Bond, that does not require the conclusion that the characterisation of Diplock LJ in Moore or Deane J in Pochi be adopted. As Gageler J said in Li at 371 [92], procedural fairness is closely linked with reasonableness.
107 Thirdly, Deane J in Pochi saw what Diplock LJ said in Moore as necessary to avoid the procedural aspects of natural justice being reduced to a charade. There was, in everything Deane J said, the necessary presence of unfairness in the impugned decision.
108 Fourthly, the essence of natural justice is fairness - it is its root as a legal conception and it lies at the heart of its operation. Unless there is unfairness, true practical injustice, there can be no breach of any rule of natural justice. That recognition is vital in the distinction made by Gleeson CJ in Rajamanikkam 210 CLR at 232-233 [26] between a conclusion that a decision was not made on evidence and a contest about the proper view of the evidence and the facts; and in the distinction made by Bray CJ in Glenelg at 260. That recognition is also central to an appreciation of what Deane J said in Pochi and Bond, and indeed what Bray CJ said in Glenelg: that in some circumstances the absence of any evidential or material foundation for a decision will betray a decision that had a "futile illusion of fairness" (Deane J in Pochi at 689) or a decision come to without bona fides or with bias or by reference to a test foreign to that proscribed by law (Bray CJ in Glenelg at 260).
109 Fifthly, the relevant context of the placement of the rules of natural justice is international commercial arbitration. The Model Law and the IAA embody a framework of law for the regulation of arbitration. The avowed intent of both is to facilitate the use and efficacy of international commercial arbitration: see Resolution 40/72 of the United Nations General Assembly (11 December 1985), Art 5 of the Model Law and s 2D of the IAA. Basal to the working of the New York Convention, Art V and the Model Law, Arts 34 and 36 was the absence of any ground for the review or setting aside or denial of recognition or enforcement of awards because of errors by the arbitrator in factual findings or in the application of legal principle (as viewed by national courts). The system enshrined in the Model Law was designed to place independence, autonomy and authority into the hands of arbitrators, through a recognition of the autonomy, independence and free will of the contracting parties. The a-national independence of the international arbitral legal order thus created required at least two things from national court systems for its efficacy: first, a recognition that interference by national courts, beyond the matters identified in the Model Law as grounds for setting aside or non-enforcement would undermine the system; and secondly, the swift and efficient judicial enforcement and recognition of contracts and awards. The appropriate balance between swift enforcement and legitimate testing of grounds under Arts 34 and 36 is critical to maintain; essential to it is courts acting prudently, sparingly and responsibly, but decisively when grounds under Arts 34 and 36 are revealed. An important part of that balance is the protection by the courts of the fundamental norms of fairness and equality embodied in the rules of natural justice within the concept of public policy.
110 This balance reflected in international and Australian policy does not carry with it any necessary implied criticism of national courts. Parties in international commerce may choose arbitral dispute resolution for many reasons: Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192: 157 FCR 45 at 95-96 [192]-[193]; that chosen international legal order depends crucially upon reliable curial enforcement and a respect by the courts for the choice and autonomy of the parties and for the delicate balance of the system. A demand for fairness and equality is at the heart of the supervisory balance, as is a recognition that this is not reflected in mechanical technical local rules. The real question is whether an international commercial party has been treated unfairly or has suffered real practical injustice in the dispute and litigation context in which it finds itself. Formalism in the application of the so-called rules is not the essence of the matter: fairness and equality are. How unfairness is revealed or demonstrated in any particular case will depend on the circumstances. The requirement of a fair hearing in an international commercial arbitration has been discussed in many cases. Reference need only be made to the cases cited by the primary judge and referred to at [42] above. As Goff LJ said in The Vimeira [1984] 2 Lloyd's Rep at 74-75, the question is whether the hearing was fair. For a recent example of the relationship between fairness and expedition, see Gujarat NRE Coke Ltd v Coeclerici Asia (Pte) Ltd [2013] FCAFC 109; 304 ALR 468.
111 The above leads one to the conclusion that Arts 34 and 36 should be seen as requiring the demonstration of real practical injustice or real unfairness in the conduct of the reference or in the making of the award. The rules of natural justice are part of Australian public policy. The assessment as to whether those rules have been breached by reference to established principle is not a matter of formal application of rules disembodied from context, or taken from another statutory or human context. The relevant context is international commercial arbitration. No international arbitration award should be set aside for being contrary to Australian public policy unless fundamental norms of justice and fairness are breached. Each of Art 34 and 36 contains a form of discretion or evaluative decision: "may be set aside" (Art 34), "may be refused only" (Art 36). It is not profitable to seek to differentiate between the engagement of public policy under the Articles and a supposedly separate and a later question whether to exercise the discretion; nor is it profitable, but only likely productive of difficulty or error, to read into Arts 34 and 36 any precise notions of required prejudice or other preconditions to the exercise of any discretion. The provisions (ss 8(7A), 19 and Arts 34 and 36) deal with fundamental conceptions of fairness and justice. It suffices to say that no international award should be set aside unless, by reference to accepted principles of natural justice, real unfairness and real practical injustice has been shown to have been suffered by an international commercial party in the conduct and disposition of a dispute in an award. It is likely that real prejudice, actual or potential, would be a consideration in the evaluation of any unfairness or practical injustice.
112 It is unnecessary for present purposes to answer the question whether making a finding of fact without probative evidence should ever be characterised as a breach of the rules of natural justice. It is sufficient to accept without the benefit of argument that it may be; but in this statutory context, such will form the basis of effective review or non-recognition or non-enforcement for breach of the rules of natural justice only if real unfairness or real practical injustice is suffered thereby. Were such question to be addressed, regard would need to be had to the history of the development of natural justice or procedural fairness; to the question whether it is a safeguard of fairness in process or something more directed to fairness of the outcome; to the question whether natural justice is a defining or informing basis for legal unreasonableness; to the works and approaches of scholars and law reformers such as HWR Wade, Administrative Law (2nd ed at pp 194-195, 3rd ed at p 213, 5th ed at p 485, 10th ed at p 435); the Kerr Committee Report in 1973 (Prerogative Writ Procedures: Report of Committee of Review (Cth Parliament 1973)) at [43] where the "no evidence ground" was identified as separate from natural justice, as is now reflected in the Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(a),(h) and 5(3); and M Aronson and M Groves, Judicial Review of Administrative Action (5th ed) at pp 398-405 [7.20]-[7.30]; and, critically, to the influence of context (here, international commercial arbitration) on the fashioning of the proper content and reach of generally expressed rules designed to secure fairness. In this context, it can be readily accepted that, under various legal regimes, courts have been concerned with reviewing arbitral awards made in the absence of probative evidence, especially by reference to the distinction between a trade arbitration before a commercial person chosen for his or her factual experience and an arbitration conducted by someone not chosen with that experience: Wright v Howson (1888) 4 TLR 386 at 387; Mediterranean & Eastern Export Co Ltd v Fortress Fabrics (Manchester) Ltd [1948] 2 All ER 186 at 187-188; Fox v PG Wellfair Ltd [1981] 2 Lloyds Rep 514 at 521-522; Motrix Supplies Pty Ltd v Bonds and Kirby (Victoria Avenue) Pty Ltd (Sup Ct of NSW Commercial Division, 12 September 1990, Giles J, BC9002025) at 21.
113 In most, if not all, cases a party who says that it has suffered such unfairness or practical injustice should be able to demonstrate that without the kind of detailed re-examination of the facts that occurred in this case. Applications involving review, enforcement and recognition under Arts 34, 35 and Art 36 (or Art V of the New York Convention) should not be permitted to be used (or hijacked) to undertake, in substance, a rehearing of factual or legal reasoning under the guise of a complaint about a breach of the rules of natural justice based on the "no evidence rule". Unfairness or practical injustice in the conduct of international commercial arbitration should, if it exists, be able to be expressed shortly and, likewise, demonstrated tolerably shortly. It will not be demonstrated as a result of a detailed factual analysis of evidence regularly and fairly brought forward involving asserted conclusions of facts different to those reached by the arbitrator. If a party can demonstrate that it has been, in essence, denied the opportunity to be heard on an important and material issue as revealed by such a finding made without material, real unfairness or real practical injustice may be shown. That was not the case here.