THE COUNCIL OF THE SHIRE OF EUROBODALLA v FRIEND AND BROOKER PTY LTD [1992] NSWCA 250

THE COUNCIL OF THE SHIRE OF EUROBODALLA v FRIEND AND BROOKER PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA, SHELLER JA and Hope AJA 17 February 1992

[1992] NSWCA 250

Mahoney JA. This is an application that time for applying for leave to appeal against the judgment of Brownie J given on 25 June 1991 be extended and it is proposed that if that is done an application will be made for leave to apply against his Honour's judgment.

His Honour's judgment, I state the matter very briefly, was to the effect that an arbitrator's award which came before him was given in circumstances which were not appropriate. His Honour's order was to the effect that another arbitrator should be appointed and the matter should be referred to that arbitrator. His Honour did not, in terms, make an order that the previous award be set aside, he merely referred the matter to the other arbitrator for consideration. It is against that order, the terms of which I have briefly summarised, that the leave to appeal application relates.

The arbitration is now proceeding before another arbitrator. The other arbitrator proposes to continue with the arbitration or, the builder as I should describe the applicant, proposes to ask him to proceed. The question of the applicationfor leave to appeal for extension of time cannot be effectively dealt with today because of the pressure of other business. It is necessary that the application be adjourned to another day to be dealt with. The issue before the court is what order should be made by this court in relation to the continuation or otherwise of the pending arbitration. It would, perhaps, be open to this court to make an order temporarily staying the effect of Brownie J's order upon the understanding that that would suspend the powers of the arbitrator to continue with the arbitration. I do not suggest definitively that that would be the effect of it, but that arguably would be the effect of it.