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. The question is whether such an order should be made. The builder opposes the making of such an order on the basis that the arbitration has been long postponed and (I do not purport to summarise completely what has been said on the builder's behalf) there will be prejudice if the arbitration is not allowed to proceed. It is necessary in the exigency of the listing of the matter for the court to make some form of order. The court would not propose at this stage to make an order staying the effect of Brownie J's order and so the arbitration. It is open to the arbitrator, if in his discretion he thinks it appropriate, to proceed. However, the court takes this view upon the basis that if the arbitrator proceeds he will not make any final award in relation to the matter unless and until the present application has been disposed of and, if necessary, theapplication for leave to be granted has been disposed of. If in fact the arbitrator felt it necessary to proceed to a final award the court would expect that he would allow sufficient time for the parties to apply to the Supreme Court for such order as they may be 2 UNREPORTED JUDGMENTS advised including an order staying the effect of Brownie J's order and (if that be the effect of such a stay) taking away temporarily the power of the arbitrator to proceed further. The substance of the matter is that the court does not itself order a stay but expects that there will be no final order made affecting the rights of the parties without the opportunity to deal with the present matter. The order the court makes in relation to the pending summons before this court is that it stands the matter over to a convenient date which I propose to fix and the matter can then be dealt with by a court as presently constituted or constituted in another way. The costs of the application today are costs in the summons. Orders accordingly.