QANTAS AIRWAYS LIMITED v DILLINGHAM CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirByY P, MCHUGH and CLARKE JJA 15 April, 20 May 1988, 25 August 1988 [1988] NSWCA 122 KEY WORDS: JURY — SUB-ORDINATE LEGISLATION — STATUTES — PRACTICE — ARBITRATION — WORDS & PHRASES "cases" JURY — order for trial without a jury — allegations of fraud — large number of documents — primary judge finds that case is complex and (by inference) could not conveniently be conducted with a jury — refers to "luxury" of jury trial and to effect of a prolonged trial on other litigants awaiting trial — whether reasons for exercise of discretion to dispense with jury displayed error warranting disturbance by the Court of Appeal — held: (1)(By the Court) No error shown; — it was open to the trial judge to conclude as he did (2)(per McHugh JA; Clarke JA concurring) Even if error was shown the Court of Appeal should make the same order in the circumstances. The Pambula District Hospital vy Herriman, unreported, CA 5 August 1988 distinguished by Kirby P; The Nominal Defendant vy Cameron & Ors, unreported, CA, 2 August 1988 referred to. SUBORDINATE LEGISLATION Supreme Court Rules — validity of — provision for reference of proceedings to arbitration — Rules provide for any Proceedings in the Court to be referred but not any question to be tried with a jury — whether the Rule is valid within s124(2) of the Supreme Court Act 1970 providing for making rules with respect to "cases" in which the whole of any proceedings etc may be referred held: Rule valid — challenge to reference to arbitration rejected Baker v Gough & Ors (1964) 80 WN (NSW) 1263 distinguished. STATUTES — construction validity of Rules of Court — whether within rule making power — reference by McHugh JA (Kirby P and Clarke JA concurring) to second Reading Speech and explanatory memorandum — reference to general power to refer to arbitration as contemplated by Parliament. PRACTICE Supreme Court — Common Law Division — dispensing with jury in case of fraud allegation — examination of detailed documents required reference to arbitration power upheld. WORDS & PHRASES — "cases" ARBITRATION power of Judge of Supreme Court to refer to arbitration whether Rule providing for power valid as within Act - held: Rule valid. ORDERS 1. Leave to appeal granted. 2. Appeal dismissed with costs. Kirby P I agree in the orders proposed by McHugh JA and generally for the reasons given by him. Dispensing with a jury in a case of fraud In my opinion it was open to Rogers J to Conclude, on the material before him, that a prolonged examination of documents would be required in the resolution of the issues of fact in dispute between the parties in this case, I would also 2 UNREPORTED JUDGMENTS conclude that his Honour impliedly, although not expressly, considered that the issues of fact could not conveniently be tried with a jury. In the circumstances, for the reasons given by McHugh JA, I do not regard this Court as authorised to intervene to disturb the exercise of his Honour's discretion. I do not see in this case a miscarriage of the discretion to order a trial without a jury such as occurred in The Pambula District Hospital v Herriman, unreported, CA 5 August 1988; Estate of the late Anthony Fairburn Williams & Anor v Marshall, unreported, CA 15 July 1988; and Independent Forestry Services Pty. Ltd v Rogers, CA 5 August 1988. The terms in which his Honour expressed the exercise of his discretion are set out in the judgment of McHugh JA. It is true that his Honour made a number of general references to jury trial. But these were ultimately anchored, in this case, in the specific provisions made by Parliament for cases such as the present by s88 and s89(2)(a) of the Supreme Court Act 1970. Ido not think that Parliament was providing for trial otherwise than by jury as a reflection on a supposed "luxury" of jury trial. But I would not infer a miscarriage of his Honour's discretion on the basis of his use of that word alone. Nor do I consider that reference to the claims of other litigants was relevant to the exercise of the discretion in this case. However, in the context in which that reference occurs, I take it to be a passing comment by the judge, not a consideration which ultimately determined the matter. See the comments of Samuels JA in me Nominal Defendant v Cameron & Ors, unreported CA 2 August 1988 discussing Ketteman & Ors v Hansel Properties Limited & Ors [1987] 1 AC 189, 203 (HL). It is clear that the provisions of s88 and s89(2)(a) of the Act recognise certain competing advantages and disadvantages of jury trial. They require the judge, determining which mode of trial shall be had in a case having competing features, to exercise an individual discretion upon the basis of the nature and circumstances of that case, as disclosed in the evidence. This Rogers J did, with reference to his assessment of the complexity of this case. An appellate court, absent error in the exercise of such a discretion, is not authorised to disturb the order of the primary judge. Whether I would myself have made the order which his Honour made is irrelevant. No reason has been shown which authorises me to disturb it. Validity of the Rule for reference to arbitration T acknowledge that the point raised by the appellant in challenge to the validity of Pt72 Rule 2 of the Supreme Court Rules is distinctly arguable, having regard to the terms of s124(2) of the Act. However, I have concluded that subrules (1) and (2) of R2 sufficiently specify the "cases in which the whole of any proceedings...may be referred [to arbitration]". This is a case, as McHugh JA points out, where reference to the explanatory memorandum is permissible. It and the legislative history referred to by Clarke JA in his judgment, are confirmatory of the impression which a reading of the subsection and the sub-rule together suggests. It is not appropriate to impose a narrow construction of the provision of such a beneficial facility to the rule-maker. Nothing in Baker v Gough (1964) 80 WN (NSW) 1262 requires a contrary conclusion for the reasons explained by McHugh and Clarke JJA. Orders I agree that leave to appeal should be granted; but that the appeal should be dismissed with costs. URJ QANTAS AIRWAYS LIMITED v DILLINGHAM CORPORATION (McHugh JA) 3 McHugh JA Qantas Airways Limited seeks leave to appeal against an order that its action for damages for fraud and conspiracy against Dillingham Corporation and another person be tried by the Court and not by a jury. The order was made by Rogers J sitting in the Common Law Division of the Supreme Court. Subsequently, his Honour ordered that the matter be referred to an arbitrator. The validity of that order is also the subject of appeal. The Court heard full argument on the leave application on the basis that, if leave is granted, the Court would determine the appeal without further hearing. The issues in the proceedings are whether Rogers J erred in making an order that the action be tried without a jury and whether Pt72 Rule 1 of the Supreme Court Rules empowering the Court to refer matters to arbitration is a valid exercise of the rule making power conferred by s124(2) of the Supreme Court Act, 1970. The nature of the case In 1972 Qantas entered into a contract with a builder, then named Dillingham Constructions Pty Limited and now called Jennings Constructions Limited, for the erection of Stage One of the Qantas Centre. The building operations were marked by disputes between Qantas and the builder and between the builder and a trade union. At one stage the building operations were halted by reason of what was called the "Dogmens' Strike" which lasted from 5 October 1976 to 31 January 1977. As a result of the disputes between Qantas and the builder, arbitration proceedings were commenced. Ultimately they were compromised in April 1980. In December 1984, the present proceedings were commenced in the Supreme Court, Commercial List. In its present form the Statement of Claim alleges that in November 1972 Qantas entered into a contract with Dillingham Construction Limited the performance of which was guaranteed by the first respondent, Dillingham Corporation, (Dillingham). Paragraph 5 of the Statement of Claim alleges that in or about May 1976 Dillingham Constructions refused to perform its obligations under the contract and induced labour unrest on the job site. Paragraph 7 alleges that Dillingham and one of its officers, knowing of the 1972 contract, intentionally induced Dillingham Constructions to breach the contract, intentionally prevented it from performing its obligations under the contract by inducing labour unrest on the job site, and intentionally interfered with the contractual relationship between Qantas and Dillingham Constructions by procuring the latter to hinder the due performance of work under the contract. Paragraph 9 alleges that Dillingham represented to Qantas that Dillingham Constructions intended to continue to perform its obligations under the contract but that there were difficulties and engineering problems inherent in the building design which made the work under the contract impractical. Paragraph 11 alleges that Qantas, relying upon the said representations and induced thereby, continued to perform its obligations and entered into negotiations with Dillingham Constructions to change the terms of the contract. Paragraph 12 alleges that the representations and each of them were false. Paragraph 15 alleges that the Respondents conspired among themselves and with other persons to injure Qantas by forcing Qantas to accept a cessation of work under the contract and to renegotiate the terms of the contract. The Statement of Claim alleges that, by reason of the fraud and conspiracy, Qantas suffered loss and damage. On 22 November 1985 Rogers J ordered that the proceedings be moved from the Commercial List into the Common Law List. 4 UNREPORTED JUDGMENTS In support of its application that the proceedings should be tried without a jury, Mr Bartlett, the solicitor for Qantas, swore an affidavit, in which he asserted that in the arbitration proceedings between Qantas and the builder, "there were an enormous number of relevant documents" which required a "prolonged examination of a great many of' them. He asserted that in the present proceedings there would be a similar prolonged examination of these documents which were contained in 36 boxes. The dimensions of each box were approximately 40 x 32 x 26 cm. Mr Bartlett also asserted that the hearing of the issues relevant to liability, as distinct from the quantum of damages, could take in excess of six months. He expressed the opinion that evidence concerning the quantum of damages could take about two years. Mr Bartlett was not cross-examined on his affidavit. Nor was his evidence contradicted by other testimony. The reasons of Rogers J His Honour held that the case for Qantas would probably not require any prolonged examination of documents. However, his Honour accepted that the Respondents would find it necessary to resort both to the builder's records and to their own records in order to show the reasons and circumstances of each of the numerous industrial disputes that erupted on the site. His Honour thought that no judge would be able to make orders which would so reduce the extent of scrutiny of documents as to make the task "acceptably within the range of ordinary jury work". In exercising the discretion under s89 of the Supreme Court Act, to order trial without a jury his Honour said: ....I cannot overlook the fact that this Court is simply not in a position to afford the parties the facility of a judge and jury for the period of time for which they would be required. The additional time that would be occupied by having a jury try the issue here in question is quite immeasurable. Parliament has recognised that the provision of juries for trial of common law proceedings is a luxury which the community can no longer afford in all instances by the very amendment that has been made to s89. I have to bear in mind that by providing a jury to this Plaintiff I would at the same time be ensuring that persons making claims for serious injuries in motor car or industrial accidents would be further delayed in having their case come on for hearing. Above all, however, it is my conviction that in a matter as complex as this the average judge or other trained person is a more appropriate trier of fact than the average jury... The exercise of the discretion S88 of the Supreme Court Act 1970 provides: "Proceedings on a common law claim in which there are issues of fact - (a) on a charge of fraud against a party... shall be tried with a jury". However, s89 provides: (1) In any proceedings on a common law claim (except proceedings to which s88 applies), the Court may order, despite s85, s86 and s87 that all or any issues of fact be tried without a jury. (2) In any proceedings to which s88 applies, the Court may order, despite that section, that all or any issues of fact be tried without a jury where - (a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury..." Mr O'Keefe QC, appearing for Qantas, submitted that the evidence did not establish that any prolonged examination of documents was required and that his Honour had not determined whether, if a prolonged examination of documents URJ QANTAS AIRWAYS LIMITED v DILLINGHAM CORPORATION (McHugh JA) 5 was required, it could not conveniently be made with a jury. Further, Mr O' Keefe submitted that his Honour had erred in the exercise of his discretion. Mr O'Keefe submitted that on the issue of liability the case for Qantas depended on admissions contained in documents prepared by or on behalf of Dillingham. These documents demonstrated, he argued, a plan or strategy to provoke or prolong industrial disputation so that Dillingham would be able to renegotiate the building contract on more favourable terms. He submitted that the case for the respondents would not depend upon the material contained in the 36 boxes of documents. It would depend upon the authors of the documents and the other actors who were involved giving oral evidence concerning what they had done and the motivation for their conduct. Standing alone the documents to which Mr O' Keefe drew the attention of the Court are certainly consistent with Dillingham having some plan or strategy in mind for forcing the renegotiation of the building contract. A memorandum dated 7 June 1976 states: *Given the above and the present and continuing exposure to the Corporation which I certainly do not mean to reiterate to you, what should be our strategy and what tactics do we employ to achieve it? The strategy must be Phase Six of my memo of June 18, 1975 - discontinuance. We must force the prompt cessation - not suspension (with its implied restart) of work under the existing contract and cause the reappraisal and redesign of the project...Listed in order of desirability from our stand point, we can: Acquiesce to a Qantas instigated cessation of work and cancellation of contract.. Negotiated cessation instigated by Dillingham. Forced cessation under "Suspension of Work" CL23 of existing contract. Contract by On-Site Action - This would probably be the quickest but messiest method of stopping the job. We should not be deterred from taking it if the above methods do not appear feasible. By forcing a 'contractual dispute' with architects and/or owner over some phase of the documents - relative to say sub-contracting of some of the work or the pumping of concrete would probably do the trick. Certainly 'industrial action' by dismissal of job site union representative, by deletion of over time and/or 6th day work or even by asking the bastards to work would be a quicker way. In a document dated 11 June 1976 and entitled Australia/New Guinea Group 1977-1981 long range plan, appears the entry: "....Qantas Stage 1 - unless there is immediate improvement in the level of assets employed on this project then action is to be taken towards suspending the works or a major renegotiation which would effectively release the assets employed on this project." This document stated that the Qantas project continued to dominate "the financial characteristics of the division because of its scale, high assets employed and the low level of profit achieved or forecast". That passage was contained under the heading "Recommended Plan". It also stated that all "legal alternatives, including suspension of the job, to be thoroughly explored and to be implemented where advantageous". The monthly report for July 1976 for the Australia/New Guinea Group of Dillingham stated that the "principal aim of our current strategy is to achieve a discontinuance of the work within the next two months". 6 UNREPORTED JUDGMENTS Mr O'Keefe pointed out that on 30 September 1976 which was within two months of the July report two dogmen were dismissed by Dillingham Construction. This led to an industrial dispute that lasted for 120 days and closed the job down. He submitted that this occurred at a time when Dillingham Construction was seeking to re-negotiate the contract and was arguing that the building could not be built in accordance with the contract. Prima facie the documents call for an answer, and I think that Mr O' Keefe was correct in arguing that this answer will have to come from the oral evidence of those who authored the documents and those people involved in the industrial dispute and stoppages. But to accept Mr O'Keefe's argument on this aspect of the case does not mean that the 36 boxes of documents will not be relevant. For it seems likely that not only will the Respondents deny the fraud and conspiracy alleged and their implementation, but that they will seek to establish that the disputes and delays were the product of ordinary commercial and industrial events. It requires little imagination to perceive that the documents will be relevant to the Respondent's positive case that the disputes arose because of the work and the contract. As Rogers J said, it will be necessary to resort to the builder's records and Dillingham's own records "in order to show by reference to contemporaneous records and documents, the reasons and circumstances of each of the numerous industrial disputes that erupted on the site". Significantly, the assertion by Dillingham's solicitor that examination of the documents will be necessary was not contradicted and was not the subject of cross-examination. This evidence by itself was enough to justify his Honour considering whether he should make an order under s89(2). Moreover, before the learned judge and before this Court, no attempt was made to analyse the 36 volumes of documents to show that they could have no bearing on the issues. In these circumstance, I am of the opinion that his Honour was correct in holding that a prolonged examination of documents was required and they could not conveniently be made with a jury; for each juror would be required to have a copy of the 36 volumes. During the evidence and addresses each juror would have to refer to every relevant document. The progress of the case therefore would be governed by the capacity of the slowest juror to read and comprehend the documentary material. In a trial without a jury, a judge would frequently inform counsel that it was sufficient to give him a reference to a document without the necessity to read it. This is rarely, if ever, a practicable course with a jury. Mr O'Keefe submitted that, while his Honour had determined that a prolonged examination of documents would be required, he had not made any finding that this could not be made conveniently with a jury. However, I think that his Honour's judgment contains an implied finding to this effect in the passage where he said that no judge would be able to make orders which would so reduce the extent of scrutiny of documents or their mass so as to make the task acceptably within range of ordinary jury work. Mr O'Keefe then submitted that his Honour had erred in the exercise of his discretion in saying that "Parliament has recognised that the provision of juries for trial of common law proceedings is a luxury which the community can no longer afford in all instances by the very amendment that has been made to s89". But his Honour's statement is correct. He was entitled - indeed bound - to bear in mind that jury trials in all civil cases are not appropriate when he determined whether the plaintiffs right to a jury trial conferred by s88 should be taken away. Secondly, Mr O'Keefe submitted that his Honour erred in saying that in a URJ QANTAS AIRWAYS LIMITED v DILLINGHAM CORPORATION (McHugh JA) 7 complex case such as the present one the average judge or other trained person would be a more appropriate trier of fact than the average jury. Mr O'Keefe argued that the result would turn on the assessment of the evidence of witnesses and that it was a classic case for a jury to determine. However, as I have already pointed out, an evaluation of the building, engineering and commercial reasons for the Respondents' conduct and the stoppages will be an issue in the proceedings. Moreover, the argument for Qantas tended to ignore the issue of the quantification of damages where complex accounting, building and engineering issues will undoubtedly arise. It was open to his Honour to hold, therefore, that a judge or other trained person was a more appropriate trier of fact of these issues than the average jury. Finally, Mr O'Keefe contended that his Honour erred in saying that it was simply impossible to accommodate the desire of the Plaintiff for a trial by jury. However, the passage which Mr O' Keefe criticised constitutes the conclusion of his Honours train of reasoning after he had balanced the factors for and against trial by jury. His Honour was not asserting that it was physically impossible for there to be a jury trial. He was saying only that, having regard to the various factors which he had enumerated, it was impossible to accede to the Plaintiff's wishes. Even if I had come to the conclusion that the exercise of his Honour's discretion had erred, I would have nevertheless have upheld his Honour's order. Important as it is that the right of parties to a trial by jury should be maintained where a charge of civil fraud is made, it must be always weighed against the likely length of the proceedings. The latter is a variable factor whose weight will vary from case to case. But when a civil trial involves large numbers of documents and the hearing must extend for a long period, there is usually a sound basis for exercising the power under s89(2) and ordering that the trial be without a jury. In the present case the likely length of the hearing as it appears from Mr Bartlett's evidence, the number of documents involved and the complexities of the issue of liability and damages combine in my opinion to make an almost overpowering case for this action to be heard without a jury. The validity of Pt72 Rule 2(1) After his Honour had made an order under s89(2) ordering that the case be tried without a jury, he exercised the power conferred by Pt72 R2 and ordered that the case be tried by an arbitrator. During the argument in this Court Qantas raised a point of law which had not been raised in the Court below. Mr O' Keefe submitted that the promulgation of Pt72 Rule 2 was an invalid exercise of the rule making power conferred by s124(2) of the Supreme Court Act 1970. S124(2) provides: "The rules may make provision for or with respect to - (a) the cases in which the whole of any proceedings or any question or issue arising in any proceedings may be referred by the Court to an arbitrator or referee for determination or for inquiry and report;" Pt72 Rule 2 provides: "(1) The Court may, in any proceedings in the Court, subject to this rule, at any stage of the proceedings, on application by a party or on its own motion, on terms, make orders for reference to an arbitrator or a referee appointed by the Court (a) for the determination by the arbitrator of; or 8 UNREPORTED JUDGMENTS (b) for inquiry and report by the referee on, the whole of the proceedings or any question arising in the proceedings. (2) The Court shall not make an order under sub-rule (1) in respect of a question to be tried with a jury..." Mr O'Keefe submitted that nothing in R2 specified or identified "the cases in which" a reference might be ordered. Moreover, he argued that Pt72 Rule 2(1) was invalid because it purported to confer a discretion on the Court as to what cases should be referred to arbitration. Accordingly, he contended that the rule made no provision for or with respect to the cases in which a reference to arbitration might be ordered. Mr O' Keefe relied on the decision of Jacobs J in Baker v Gough (1964) 80 WN 1262 in support of his argument. In that case the 21st Constitution in the Schedule to the Church of England Constitutions Act (Amendment) Act of 1902 provided: "The Synod of each Diocese shall have power to determine by ordinance in what cases the licence of a Clergyman licensed within the Diocese may be suspended or revoked. Such licence may be suspended or revoked by the Bishop of the Diocese at a Clergyman's own request or (after an opportunity given to him to show cause) in such of the said cases as Synod shall by ordinance determine..." CL10(b)(ii) of the School Chapels and Chaplains Ordinance 1954 was alleged to be ultra vires the 21st Constitution. It provided: "....Subject as aforesaid a Chaplain or Assistant Chaplain appointed and licensed as aforesaid shall hold office at the pleasure of the Archbishop who shall have power to revoke such power and licence at any time at the Chaplain's or Assistant Chaplain's own request or (after opportunity given him to show cause) in any of the following cases: (i) On any ground for which the licence of a clergyman may be invoked or withdrawn under... (ii) At the discretion of the Archbishop (iii)In any other case where such licence may be revoked in accordance with the twenty-first of the Constitutions contained in the Schedule to the Church of England Constitution Act (Amendment) Act 1902." Jacobs J was of opinion that CL10(b)(ii) was not a valid exercise of the Ordinance making power conferred by the 21st Constitution. His Honour said (at 1270): "...my view is that it is not an expression by Synod of a case in which the licence of a clergyman within the diocese may be suspended or evoked to say that it may be revoked at the will or pleasure of the Bishop. No case is thereby expressed but the power is in effect delegated to the Bishop of the diocese or the Archbishop as the case may be to determine a case in lieu of the Synod itself. I do not think this can be done." However, I do not think that the ratio decidendi in Baker v Gough is applicable to the present case. CL10(b)(ii) gave the Archbishop the power to say in what cases the licence of a clergyman should be revoked. But the 21st Constitution required the Synod of each Diocese by Ordinance to determine in what cases the licence of a clergyman should be revoked. $124(2), however, simply requires the tules to specify or identify the cases in which proceedings may be referred by the Court to an arbitrator or referee. Pt72 Rule 2(1) complies with this requirement because it stipulates that in any proceedings, that is to say in any case before the Court, the proceedings can be referred to arbitration. URJ QANTAS AIRWAYS LIMITED v DILLINGHAM CORPORATION (Clarke JA) 9 During the argument a further ground of possible invalidity was suggested. Mr O'Keefe's argument had laid weight on the phrase "the cases in which". However, weight must also be given to the words "make provision for or with respect to". When that is done, s124(2) appears to assume that, independently of any rule made under it, there exists a power in the Court to refer cases to an arbitrator or referee for determination. On that hypothesis s124(2)(a), therefore, is not a provision which empowers the making of rules for the purpose of determining what cases should be referred to an arbitrator but, on the contrary, only confers a power to make provision for or with respect to cases which may be otherwise referred by the Court to an arbitrator. If the matter was to be determined only on the natural meaning of the words, I would think that the rule was invalid. However, s124(2) was introduced into the Supreme Court Act by the Supreme Court (Commercial Arbitration) Amendment Act, 1984, No 166. The title to that Act was: "An Act to amend the Supreme Court Act 1970, so as to enable rules to be made under that Act with respect to the referral of certain proceedings and questions to an arbitrator or referee and for other purposes." The only provision in Act No 166 which relates "to the referral of certain proceedings and questions to an arbitrator" etc was item (2) in Schedule 1 of the Act which enacted s124(2). Moreover, the Attorney General at the conclusion of his second reading speech "tabled a detailed explanation" of a number of Bills relating to commercial arbitration including the Bill which became Act No 166 of 1984. The explanation of Schedule | of that Bill was: "Item 2 amends the principal Act to provide for rules to be made for referral of matters to arbitration." The provisions of s124(2) are not without their ambiguity. Accordingly, it is legitimate and necessary to take account of the explanatory memorandum: Interpretation Act 1987, s33. That memorandum and the long title to Act No 166 indicate that the purpose of Parliament in enacting s124(2) was to enable rules referring cases to arbitration to be made. Pt72 Rule 2, therefore, is a valid exercise of the rule making power. Orders In my opinion because the case raises matters of importance, leave to appeal should be granted. But as Qantas has failed to demonstrate any error in his Honour's judgment, the appeal should be dismissed with costs. Clarke JA I agree with the orders proposed by McHugh JA for the reasons he hasgiven. I wish only to add some observations on the validity of SCR Pt72 r 2. This rule was made pursuant to the specific power expressed in s124(2) of the Supreme Court Act 1970. this sub-section was introduced into the Act by the Supreme Court (Commercial Arbitration) Act 1984 ("the Act"). Prior to its introduction the Supreme Court Act did not contain any provision enabling the court, or a judge, to refer all or some of the issues which arose in proceedings in the court to arbitration. The court's only power to refer issues arising in proceedings in the court was to be found in s15 of the Arbitration Act 1902. This section provided that the whole of a cause or matter, or any question or issue of fact arising therein, may be referred to arbitration if the parties consented, the cause or matter required 10 UNREPORTED JUDGMENTS prolonged examination of documents, scientific or local investigation (which could not conveniently be conducted in court proceedings), or if the question involved matters of account. That power ceased on the repeal of the Arbitration Act 1902 by the Commercial Arbitration Act 1984. At the time of the passing of this act "the Act" and other cognate acts were also passed. Consequent upon the repeal of the Arbitration Act 1902 the only possible power in the court to refer issues to arbitration is to be found in the rules passed pursuant to s124(2). If that section does not empower the rule making body to pass rules enabling referral then there is simply no power in the court to refer issues to arbitration. That would, in my opinion, be an extraordinary situation given that the Commercial Arbitration Act was introduced as part of an Australia wide scheme to provide uniform legislation dealing with commercial arbitration. Nevertheless s124(2) is in terms which encourage the view that it is concerned solely with procedure. That is, that it empowers the rule making authority to pass rules specifying the procedures to be followed in those cases which are referred to arbitration pursuant to powers granted in other legislation. However the absence of any other legislation authorising the court to refer cases to arbitration completely undermines that interpretation. Accordingly, the alternative construction to the effect that the section authorises the making of rules designating in which cases the court may exercise the power of referral is to be preferred. Support for this view is to be found in a number of areas. Firstly, the title to "the Act", to which reference may be made (34 of the Interpretation Act 1987) and which is set out in the reasons of McHugh JA. Next, the transitional provisions which are set out in s4. They provide that the law concerning referrals in force immediately preceding the introduction of s124(2) continues to apply to referrals which preceded the passing of "the Act" and in the event that rules had not been made under s124(2). This provision is demonstrative of a clear legislative intention that the facility afforded by s15 of the Arbitration Act 1902 should continue to be available until rules under "the Act" have been passed. Such an intention is inconsistent with the notion that the court's powers to refer arbitrations ceased on the passing of the Commercial Arbitration Act 1984. Thirdly, s3(6) of the Commercial Arbitration Act 1984 excepts from the operation of that Act "'an arbitration under the Supreme Court Act 1970". In the circumstances this can only mean an arbitration concerning issues referred pursuant to rules passed under the power granted in s124(2). Accordingly I would construe s124(2) as enabling the rule making authority to make rules designating those cases which could be referred to arbitration as well as providing for the appropriate procedures. Counsel for the appellant accepted that if this were so then the power enabled the making of rules empowering the court to refer specified categories of cases to arbitration. It was said that the generality of the language in s124(2) required that the rules made thereunder specify the particular class or classes of cases which could be referred. But in my opinion there is no basis for confining the meaning of the words in s124(2) so as to exclude the power to make rules enabling the court or judge to refer any case thought appropriate. Baker v Gough, 80 WN 1262 which was relied on by the appellant is distinguishable. The Diocesan Council was empowered to determine by ordinance in what cases the licence of a clergyman may be suspended. Instead of URJ QANTAS AIRWAYS LIMITED v DILLINGHAM CORPORATION (Clarke JA) 11 defining those cases the ordinance granted power to the Archbishop to "revoke such licence at any time". In other words the ordinance simply delegated the power of determining in what cases a licence may be suspended to the Archbishop. Jacobs JA held that the ordinance was invalid because it did not define in which cases suspension could be ordered. This was, with respect, clearly correct. The very terms of the instrument which empowered the Diocesan Council to determine in what cases the licence may be suspended were inconsistent with the notion that the Council could determine that suspension could occur in all cases. In addition the subject matter under consideration, cases which may be appropriate for suspension, provided a context which required that the Council determine the specific categories of cases in which suspension could be ordered. There is, however, nothing about the context of s124(2) which requires the rule making body to determine in what specific category of cases the power to make an order may be exercised. The language used, although lacking clarity, expresses the power in the widest possible terms. In these circumstances I am unable to accept that its generality of expression requires, or even suggests, that the rules define categories of cases or issues in which the power might be exercised. No doubt it was open to the rule making body to pass rules similar in effect to s15 of the Arbitration Act 1902. But it was not, in my opinion, bound to act in that manner. Even if that be incorrect the rules do not in fact empower the court to refer all issues which arise in cases in the court to arbitration. SCR 172(2)(2) specifically denies the court that power in respect of "a question to be tried by a jury". Thus, for instance, the court may not, in the absence of an order under s89 of the Supreme Court Act, refer issues in cases which fall within s88 of the that Act to arbitration. Thus if it is necessary to categorise which cases, or what issues, may be referred the rules do so. Cases to be tried without a jury may, whilst cases which stand to be tried with a jury may not, be referred to arbitration. The fact that the categories are broad is, in this context, of no significance. Because the case raises matters of importance, leave to appeal should be granted. But as Qantas has failed to demonstrate any error in his Honour's judgment, the appeal should be dismissed with costs. Counsel for the Appellant; MR B S J O'KEEFE QC / MR B W WALKER Counsel for the Resident: MR H D SPERLING QC / MR P M BISCOE Solicitors for the Appellant: GRAHAM MINER Solicitors for the Respondent: RUSSELL J BARTLETT