Westport Insurance Corporation v Gordian Runoff Limited [2011] HCA 37

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HEYDON, CRENNAN, KIEFEL AND BELL JJ

Matter No S110/2010

WESTPORT INSURANCE CORPORATION & ORS APPLICANTS

AND

GORDIAN RUNOFF LIMITED RESPONDENT

Matter No S219/2010

WESTPORT INSURANCE CORPORATION & ORS APPELLANTS

AND

GORDIAN RUNOFF LIMITED RESPONDENT

Westport Insurance Corporation v Gordian Runoff Limited [2011] HCA 37

5 October 2011

S110/2010 & S219/2010

ORDER

Matter No S110/2010

1. Grant special leave to include, as a further ground of appeal in Matter No S219/2010, ground 5 of the applicants' draft notice of appeal.

2. The respondent pay the applicants' costs.

Matter No S219/2010

1. Appeal allowed.

2. Set aside orders 2, 3 and 4 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 1 April 2010 and, in place thereof, order that the appeal to that Court be dismissed with costs.

3. The respondent pay the appellants' costs of the appeal to this Court.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with T M Mehigan for the applicants/appellants (instructed by Allens Arthur Robinson Lawyers)

I M Jackman SC with T M Faulkner for the respondent (instructed by Mallesons Stephen Jaques)

S J Gageler SC, Solicitor-General of the Commonwealth with M J O'Meara appearing as amicus curiae on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

D F Jackson QC with M F Holmes QC and J A Redwood appearing as amici curiae on behalf of the Australian Centre for International Commercial Arbitration Limited & Ors (instructed by Corrs Chambers Westgarth)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Westport Insurance Corporation v Gordian Runoff Limited

Arbitration – Judicial review of awards – Section 38(5) of Commercial Arbitration Act 1984 (NSW) ("Arbitration Act") provided that the Supreme Court shall not grant leave to appeal on any question of law unless it considers that, having regard to all the circumstances, the determination of the question of law could substantially affect the rights of a party to the arbitration agreement (par (a)), and there is a "manifest error of law on the face of the award" (par (b)(i)) – Reinsurance treaties between respondent and appellants included arbitration agreement which required that any dispute arising thereunder be referred to arbitration to be held in accordance with and subject to Arbitration Act – Appellants appealed to Supreme Court on questions of law arising out of award – Whether leave to appeal should have been granted – Whether error of law manifest on face of award.