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: "SCHEDULE The whole of the proceedings as pleaded or otherwise amended by the court or the referee." It would usually be sensible to include in an order of reference, at least where the referee is an experienced lawyer, large powers to permit amendment of the pleadings and the issues to be determined in the reference. Such a power is contained in the form of the usual order for reference which is attached to the Practice Note No 58 found at page 8065 of the Supreme Court Practice. In the present case the form of reference did not contain the usual order as stated in the Practice Note. The power of enlargement was set out in a different way as we have indicated above. That fact may explain how the order of reference in its terms, was overlooked by the parties. It would usually be undesirable that an experienced referee should be confined to pleadings as they stood at the time of the reference, irrespective of any developments which might occur during the hearing of the reference. 2 UNREPORTED JUDGMENTS Given the terms of the order of reference, which have never been altered or amended by the Court, it is clear beyond argument that the referee would have full power to grant an amendment of the present pleadings. If his power of enlargement were invoked by a proper application, the referee would have a duty to determine such an application for himself. He would exercise his powers within the unrestricted mandate which the Court has conferred on him. He should not feel confined to opinions earlier expressed in that regard on the application to him by O'Keefe CJ at Comm D, at least to the extent that he disagrees with such opinions. He must exercise his powers independently and give effect to his own judgment. During the course of argument it was suggested that the referee might feel himself bound by conventional deference to the view which O'Keefe CJ at Comm D has expressed. We reject that submission, basically for the reason which has been stated. It does seem to the Court that it is distinctly arguable that O'Keefe CJ Comm D gave undue weight, in deciding the application for the amendment of the proceedings sought by the claimant before him, to the possibility that to permit the application would interfere with the timetable of the reference of Mr Hunter. His Honour's determination not to disturb the timetable of the reference was entirely understandable. However, in the circumstances of this case it does not appear that there was any real prospect that such interference would occur or would become necessary. However that may be, that consideration will obviously be absent from any consideration of a renewed application before the referee. The reference is now under way. The consideration which effectively appears to have determined the matter for O' Keefe CJ Comm D would not be of concern to the referee. He would simply exercise his powers, weighing the matter for himself and determining any application made to him, on the merits as they appear to him at the time. If the referee were to grant any such application in terms acceptable to the claimant, this Court would not be involved in the revision of the orders of the Chief Judge. Those orders are categorised as discretionary in character. They are made in the matter of practice and procedure. The principles which restrain interference in them by this Court are too well known to require elaboration. The claimant and other parties have also expressed concern that O'Keefe CJ Comm D's treatment in his reasons of the pleading will be considered by the referee as a binding ruling that the pleadings, as they stand, do not permit the claimant (or other parties in a like interest) to raise a number of questions of construction of the relevant policies of insurance. We do not so read his Honour's reasons. In any case, the referee will be free to reach his own conclusions on the arguments as they appear to him in the reference which the Court has made to him. His decision may, following report to the Court, give rise in due course to a judgment of the Court with which the parties are content. If they are not they will have rights to appeal. This Court should conserve any intervention on its part to that time. The orders which this Court makes is that the summons is dismissed. The claimant must pay the costs of the opponent, Leighton Contractors Pty Ltd. The other parties will bear their own costs. 1. Summons for leave to appeal dismissed; and 2. The claimant to pay the costs of the opponent. Counsel for the Claimant: MA Pembroke QC / RE Dubler URIP FIRE and GENERAL INSURANCE Co Ltd v LEIGHTON CONTRACTORS Pty Ltd (Kirby P) Instructed by: Phillips Fox Counsel for the Opponent: FS McAlary QC / IE Marshall / MG Rudge Instructed by: Moray and Agnew Counsel for 3 to 9 Defendants: FM Douglas QC / MC Williams Instructed by: Ebsworth and Ebsworth 10 Counsel for B Henderson Pty Ltd: NA Nicholls Instructed by: Dunhill Madden Butler Counsel for C Heath: NC Hutley 15 Instructed by: Minter Ellison Counsel for Kinhill Engineers: RC McDougall QC / F Corsaro Instructed by: Tress Cocks and Maddocks