COMMONWEALTH OF AUSTRALIA v COCKATOO DOCKYARDS PTY LTD [1996] NSWCA 118

COMMONWEALTH OF AUSTRALIA vy COCKATOO DOCKYARDS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P and PRIESTLEY JA 1 July 1996, 15 August 1996

[1996] NSWCA 118

Arbitration — Complex commercial arbitration — Leave to appeal from order by judge to enforce interim award by arbitrator — Unconditional enforcement of arbitrator's award where other claim outstanding — Commercial Arbitration Act 1984 (NSW) s33, s38(4)

Practice — Court of Appeal — Leave to appeal from order by judge to enforce interim award by arbitrator — Reasons for refusal

Application for leave to appeal against order by judge to enforce arbitrator's award — Lengthy arbitration resulting in interim award in respect of commercial claim to Cockatoo Dockyard of $16m — Separate pollution claim by the Commonwealth yet to be determined — Submission by the Commonwealth that if Cockatoo Dockyard obtains unrestricted payment of the award it will dispose of the moneys and leave no amount for payment of a possibly successful claim by the Commonwealth in respect of the pollution claim — Whether arbitrator or judge in error in relation to the refusal to impose restrictions upon the enforcement of the interim award — Court not able to determine with certainty the likelihood of the award of a substantial sum to the Commonwealth on the pollution claim — Whether in an application for leave to appeal the Court should consider the imposition or otherwise of conditions upon any order for enforcement of the interim award — Commercial Arbitration Act 1984, s33, s38(4).

ORDERS Leave to appeal refused with costs.

Mahoney P and Priestley JA This is an application for leave to appeal against a decision of Bainton J given on 29 and 30 May 1996. It arises in relation to an aspect of an ongoing arbitration between the Commonwealth of Australia and Cockatoo Dockyard Pty Ltd ("the Company"). As proceedings are still pending in relation to aspects of that matter the Court has decided to depart from its general practice of not giving reasons for grant or refusal of leave to appeal and will indicate in summary form what has occurred in relation to the present application and why it has decided to refuse leave to appeal.