Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

TESSERACT INTERNATIONAL PTY LTD APPELLANT

AND

PASCALE CONSTRUCTION PTY LTD RESPONDENT

Tesseract International Pty Ltd v Pascale Construction Pty Ltd

[2024] HCA 24

Date of Hearing: 15 November 2023

Date of Judgment: 7 August 2024

A9/2023

ORDER

1. Appeal allowed with costs.

2. Set aside order 1 of the orders made by the Court of Appeal of the Supreme Court of South Australia on 21 October 2022 and, in its place, order that:

The question of law reserved, "Does Part 3 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) and/or Part VIA of the Competition and Consumer Act 2010 (Cth) apply to this commercial arbitration proceeding conducted pursuant to the legislation and the [Commercial Arbitration Act 2011 (SA)]?", be answered "Yes".

On appeal from the Supreme Court of South Australia

Representation

B W Walker SC with T J Margetts KC and L J Connolly for the appellant (instructed by Macpherson Kelley)

F P Hicks SC with W V McManus for the respondent (instructed by Kennedys (Australasia) Partnership and FBR Law (as town agent))

Australian Centre for International Commercial Arbitration appearing as amicus curiae, limited to its written submissions

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

CATCHWORDS

Tesseract International Pty Ltd v Pascale Construction Pty Ltd

Arbitration – Proportionate liability – Where contract for engineering consultancy provided for referral of disputes to arbitration – Where dispute as to performance of contract referred to arbitration – Where arbitration conducted pursuant to Commercial Arbitration Act 2011 (SA) – Where law applicable to substance of dispute is the law of South Australia – Where respondent claims damages for breach of contract, negligence and misleading or deceptive conduct – Where appellant denies liability – Where in alternative appellant contends liability reduced by reference to alleged concurrent wrongdoing of third party in accordance with proportionate liability laws in Pt 3 of Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) ("Law Reform Act") and Pt VIA of Competition and Consumer Act 2010 (Cth) ("CCA") – Where third party not and cannot be required to be party to arbitration – Where respondent denies applicability of proportionate liability laws in arbitration – Where appellant applied to Supreme Court of South Australia for leave to obtain determination of question of law as to applicability of proportionate liability laws in arbitration – Whether proportionate liability laws in Pt 3 of Law Reform Act and Pt VIA of CCA apply in arbitration.