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Duelling arbitration Acts: Supreme Court untangles applications under Victorian and Queensland legislation

Mitchell Water Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2018] VSC 753

The Victorian Supreme Court recently considered competing applications made under Victorian and Queensland commercial arbitration legislation in Mitchell Water Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2018] VSC 753. The dispute before the court involved:

  • an application by Mitchell Water Australia's Pty Ltd to the Victorian Supreme Court under section 33(5) of the Commercial Arbitration Act 2011 (Vic Act) to correct an initial arbitral award between the parties (on the basis that it failed to address its claim for delay costs);
  • an application by McConnell Dowell Constructors (Aust) Pty Ltd (MacDow) to the Queensland Supreme Court under section 16(9) of the Commercial Arbitration Act 2013 (Qld) challenging the arbitrator's jurisdiction to determine Mitchell Water's claim; and
  • the arbitrator's subsequent award in respect of Mitchell Water's claim.

In response to MacDow's application to set aside the Award under the Qld Act, Mitchell Water applied under section 35 of the Vic Act for enforcement of the Award. In turn, MacDow sought an adjournment of that proceeding on the basis of its ongoing application under section 16(9) of the Qld Act.

To untangle this web of applications and cross-applications, Croft J granted the adjournment sought by MacDow allowing MacDow to pursue its application under the Qld Act. In arriving at this decision, Justice Croft observed that:

  • section 36(2) of the Vic Act is sufficiently broad to "comprehend an application under section 16(9) of the [Qld] Act";
  • the arbitrator's determination that they had jurisdiction to make the Award may not itself constitute an "award", with the result that MacDow was at risk of not being able to challenge that determination in the enforcement proceedings commenced by Mitchell Water; and
  • if the adjournment was not granted and MacDow was required to resist enforcement of the Award in the Victorian Supreme Court, it would involve judicial findings which could conflict with matters in dispute under MacDow's ongoing application under section 16(9) of the Qld Act. This potential for conflicting findings might then prevent MacDow "from prosecuting … its section 16(9) application… on the basis of issue estoppel".

Therefore, to avoid a scenario that would prejudice MacDow's ability to exercise statutory rights under both the Vic and Qld Acts, the Victorian Supreme Court adjourned Mitchell Water's enforcement application.