IBM AUSTRALIA LTD v NATIONAL DISTRIBUTION SERVICES LTD [1991] NSWCA 150

IBM AUSTRALIA LTD v NATIONAL DISTRIBUTION SERVICES LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 4 February 1991

[1991] NSWCA 150

Mahoney JA This is an application for expedition of an appeal. The proceeding,I am informed, is before an Arbitrator consequent upon an order made by the Chief Judge of the Commercial Division. The arbitration is, I am informed, to commence on 11 March 1991, there is a period of three weeks set aside for the hearing it.

The question has arisen as to the extent of the powers of the Arbitrator on the arbitration. There are issues which I shall describe compendiously and somewhat inaccurately as common law issues and issues under the Trace Practices legislation.

The question has arisen of whether the facts having been determined, the Arbitrator has power to make a decision so as to give relief as contemplated under the Trade Practices Act.

Iam informed that the general effect of a decision by Rogers CJ Comm D upon that matter has the effect of directing the Arbitrator that he has power to give the relevant kind of relief as under the Trade Practices Act, that is, equivalent to that arising under the Trade Practices Act, because of the terms of the agreement. I have not attempted to state precisely and accurately the effect of the agreement nor of his Honour's decision, but it is sufficient to put the matter in the way I have.

The applicant IBM Australia Limited contends that the Arbitrator has no power to make the kinds of orders sought under the Trade Practices Act legislation and that the agreement in question does not, as it were, by consent, confer upon him the equivalent power. It desires to test the effect of the decision of Rogers CJ Comm D.

In this regard, Mr Collins for the respondent, accepts that the matter is appropriate for expedition. The parties are agreed the matter should take some three hours in argument.