AMP FIRE and GENERAL INSURANCE Co Ltd v LEIGHTON CONTRACTORS Pty Ltd [1993] NSWCA 6

AMP FIRE and GENERAL INSURANCE Co Ltd v LEIGHTON CONTRACTORS Pty Ltd

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 14 July 1993, 14 July 1993

[1993] NSWCA 6

PRACTICE and PROCEDURE — Supreme Court — reference to referee by Judge of Commercial Division — scope of reference — alteration of pleadings — power by order of reference permits referee to amend the pleading — order for enlargement of pleadings refused by Judge — concern that amendment will interfere in timetable of reference — held: Referee has, by terms of the order of reference, power to amend pleadings — he should do so exercising his own independent judgment.

ARBITRATION — commercial arbitration — reference by Court to referee — definition of matter referred — scope of Practice Note No 58 — scope of order made by referring judge — held: Referee has power by terms of orders of reference — he should do so exercising his own independent judgment — he should not feel bound by the observations of a Judge concerned to avoid interference in timetable of hearing — he should not feel limited by observations of the judge on construction of relevant policies of insurance.

Practice Note No 58 (Supreme Court).

Kirby P This is an application for leave to appeal from interlocutory orders of O'Keefe CJ Comm D in the Commercial Division of the Supreme Court. The application is dismissed.

During the course of the hearing the Court called for the orders of reference made by Cole J on 18 December 1992. By those orders Cole J referred a matter to a referee, Mr Robert Hunter QC. The orders were not originally included in the documents placed before the Court by the parties. When examined, the orders, by their terms, clearly confer on the referee a wide mandate to define with precision the matter which is referred pursuant to O.1 of the orders of Cole J. The referee is ordered to inquire and report on the matter in the schedule to the orders. That schedule defines that matter and reads: