New South Wales Supreme Court CITATION : Exxon Coal v Chadtech [1999] NSWSC 574 CURRENT JURISDICTION : Equity Division - Construction List FILE NUMBER(S) : 55044/98 HEARING DATE(S) : 30 April 1999 JUDGMENT DATE : 11 June 1999 PARTIES : Exxon Coal Australia Ltd (formerly White Industries Ltd) (Plaintiff) Chadtech Pty Limited (Defendant) JUDGMENT OF : Einstein J COUNSEL : P.R. Callaghan SC (Plaintiff) D.R. Sibtain (Defendant) SOLICITORS : Mallesons Stephen Jaques (Plaintiff) Clayton Utz (Defendant) CATCHWORDS : Administrative law - Arbitration - Application to set aside Award pursuant to section 42 of Commercial Arbitration Act 1984(NSW) - Alleged misconduct of arbitrator in having reached conclusions in respect of matters said not to have been the subject of any claim or submission - Leave to appeal against Interim Award in respect of questions of law said to arise out of the Award - Whether manifest error of law on the face of the Award - Discretion to refuse leave - Whether strong evidence that arbitrator made errors of law and whether determindation of the questions of law may add or be likely to add substantially to the certainty of commercial law. ACTS CITED : Commercial Arbitration Act 1984 (NSW) ss 38(4), 38(5)(a); 38(5)(b)(i) and (ii) Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 Edible Oil Products (Malaysia) BHD v Jayant Oil Mills Private Ltd & Ors [1982] 2 Lloyd's Rep 95 Faghirzadeh v Rudolff Wolff (SA) Pty Ltd [1977] 1 Lloyd's Rep 630 Fox & Ors v P.G. Wellfair Ltd (In Liquidation) [1981] 2 Lloyd's Rep 514 Horizons Pty Ltd v Lahey Constructions Pty Ltd, [Unreported, Supreme Court of NSW, 11 March 1999, Einstein J]. Interbulk Ltd v Aiden Shipping Co Ltd ('The Vimeira') [1984] 2 Lloyd's Rep 66 CASES CITED : Natoli v Walker [Unreported, Court of Appeal, 26 May 1996]. Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1977-78) 139 CLR 231 Promenade Investments Pty Ltd v State of New South Wales (1991) 26 NSWLR 203 Suisse Atlantique Societe d'Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361 Societe Franco-Tunisienne d'Armement-Tunis v Government of Ceylon [1959] 1 WLR 787 Mabanaft GmbH v Consentino Shipping Co SA ('The Achillet') [1984] 2 Lloyd's Rep 191. Thiess Watkins White Construction Ltd (Receivers and Managers Appointed) (In Liquidation) v Commonwealth of Australia, (Unreported, Supreme Court of NSW, 23 April 1992, Giles J) DECISION : Short Minutes to be brought in. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION - CONSTRUCTION LIST EINSTEIN J Sydney 11 June 1999 55044/98: EXXON (AUSTRALIA) LTD (FORMERLY WHITE INDUSTRIES LIMITED) v CHADTECH PTY LTD JUDGMENT 1 HIS HONOUR: There is before the Court a summons filed on 23 October 1998 in which Exxon Coal Australia Limited (formerly White Industries Limited) ('Exxon') seeks orders with respect to an award made by Mr T.M.McDougall ("the Arbitrator") dated 25 September 1998 in respect of a dispute arising out of a subcontract made on 13 August 1987 between Exxon as head contractor and the defendant Chadtech Pty Limited ("Chadtech) as subcontractor. 2 Exxon seeks an order pursuant to s42 of the Commercial Arbitration Act 1984 ('the Act') setting aside Mr McDougall's award. 3 Exxon seeks in the alternative, an order pursuant to s38(4)(b) of the Act granting Exxon leave to appeal from the award in respect of questions of law said to arise out of the award. 4 The subcontract required Chadtech to perform RFI Screening Works ('Screening Works') for the Telecom Resources Management Centre in respect of a number of buildings at St Leonards. Exxon was the construction manager for the project. 5 The subject works involved a common form of screening to screen out certain radio frequencies which are emitted by a range of electrical devices. The subject buildings at St Leonards apparently include Telecom communications equipment. 6 The subcontract included an arbitration agreement [clause 44(b)]. Disputes or differences having arisen between the parties, Chadtech gave Exxon notice in writing of those disputes or differences on or about 14 August 1992. The parties then agreed upon Mr McDougall as the Arbitrator. A preliminary conference was convened on 23 November 1994 and thereafter pleadings were exchanged between the parties and the hearing took place on 13 July 1998. Submissions were advanced in writing to the Arbitrator after the hearing and in due course the award was handed down. 7 The matters raised before the Court require inter alia a close examination of the pleadings and submissions and statements of issues which passed between the parties. They were as follows: (a) Points of Claim dated 20 December 1994 [Tab 45 - see paragraph 8 for an explanation as to the Tab numbers] (b) Points of Defence and Points of Cross-claim dated 23 November 1995 [Tab 46] (c) Reply and Defence to Points of Cross-claim dated 13 December 1995 [Tab 47] (d) Amended Reply and Amended Defence to Points of Cross claim dated 22 February 1996 [Tab 48] (e) Further Amended Reply and Further Amended Defence to Points of Cross- claim dated 29 February 1996 [Tab 49] (f) Amended Points of Defence dated 6 June 1997 [Tab 50] (g) Reply to Amended Points of Defence dated 17 June 1998 [Tab 53] (h) Chadtech's Statement of Issues dated 2 July 1998 [Tab 54] (1) Further Amended Points of Defence dated 8 July 1998 Tab 59] [(there being no later reply following this pleading)] (j) Chadtech's Statements of Facts and Law contended for dated 10 July 1998 [Tab 61] (k) Exxon's Statement of Fact and Law [Tab 62] (l) Exxon's Statement of Issues dated July 1998 [Tab 60] (m) Chadtech's submissions dated 12 August 1998 [Tab 64] (n) Exxon's submissions dated 12 August 1998 [Tab 65] (o) Chadtech's submissions in reply dated 20 August 1998 [Tab 66] (p) Exxon's submissions in reply dated 20 August 1998. [Tab 67] 8 Exhibit PX Volumes 1 to 3 include these documents. The exhibit is divided into segments with the above tab numbers. The tab numbers will be referred to from time to time during this judgment for convenience. 9 Certain sections of the Summons were not pressed, these being the plaintiff's contentions at pars 11, 12(c), 14(f) and 14(g). Exxon's s42 claim 10 In par 12 of the Contentions, Exxon alleges that the Arbitrator misconducted the proceedings by making conclusions in respect of matters that were not the subject of any claim or submission made by Chadtech. In short, Exxon claims to have been denied procedural fairness which is said to have required that no issue not pleaded or otherwise sufficiently raised and dealt with by both parties, be decided by the Arbitrator. 11 The principles which obtain in relation to a claim such that pressed by Exxon are not in doubt. They were expressed by Goff LJ in Interbulk Ltd v Aiden Shipping Co Ltd ('The Vimeira') [1984] 2 Lloyd's Rep 66 at 74 to 75 in a passage later cited by Giles J in Thiess Watkins White Construction Ltd (Receivers and Managers Appointed) (In Liquidation) v Commonwealth of Australia, (Unreported, Supreme Court of NSW, 23 April 1992, Giles J) at pages 14-15. 12 Goff LJ said: "There is plain authority that for arbitrators so to decide a case, without giving a party any warning that the point is one which they have in mind and so giving the party no opportunity of dealing with it, amounts to technical misconduct and renders the award liable to be set aside or remitted … In truth we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been raised in the case without drawing the point to his attention so that he may have an opportunity of dealing with it, either by calling further evidence or addressing argument on the facts or the law to the tribunal". 13 Ackner LJ said: "If an arbitrator considers that the parties or their experts have missed the real point …then it is not only a matter of obvious prudence, but the arbitrator is obliged, in common fairness or, as it is sometimes described, as a matter of natural justice, to put the point to them so that they have an opportunity of dealing with it" (1984) 2 Ll LR at p76 14 As Giles J pointed out in Thiess Watkins, there are a number of cases to the same effect: see Societe Franco-Tunisienne d'Armement-Tunis v Government of Ceylon [1959] 1 WLR 787; Faghirzadeh v Rudolff Wolff (SA) Pty Ltd [1977] 1 Lloyd's.Rep.630; Fox & Ors v P.G. Wellfair Ltd (In Liquidation) [1981] 2 Lloyd's Rep 514 and Edible Oil Products (Malaysia) BHD v Jayant Oil Mills Private Ltd & Ors [1982] 2 Lloyd's Rep.95. 15 In Thiess Watkins, Giles J at p15 made the point that the question is to an extent a question of degree, as is shown by the recognition in Edible Oil Products at 97, that failure to draw attention to a point may not be technical misconduct, and by Mabanaft GmbH v Consentino Shipping Co SA ('The Achillet') [1984] 2 Lloyd's Rep 191. 16 In Mabanaft the following was said at 194: "As Mr Justice Ackner said in Fox v Wellfair at p520 in a judgment upheld on appeal, it must always be a question of fact and degree whether a party has had an adequate opportunity of dealing with any substantive criticism of the claim or defence. In assessing the question of fact or degree the Court will bear in mind both the importance of the point not put, and the likelihood that the result would have been affected. Fox v Wellfair, where the application to set aside succeeded, was a case at one end of the spectrum. This case is at the other". [emphasis added] 17 To those authorities there may be added a reference to the Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298, where at 305 Gaudron J said: "As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity that he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers Industrial Union of Australia; Ex parte Gallagher( 1988) 62 ALJR 81 at 84". 18 Three particular matters are relied on by Exxon in respect of its misconduct case. The Arbitrator's misconduct is said to have involved reaching the following conclusions in respect of matters said not to have been the subject of any claim or submission made by the Chadtech: (a) Exxon directed deviations pursuant to clause 29(b) of the sub-contract by letters dated 22 June and 13 September 1998 (Part G10, G14 and K1 of the Award); (b) The directions issued by Exxon pursuant to clause 29(b) of the sub-contract are extensions of time for completion of the works (Part G5, G7, H18, I6 and K1 of the Award). (d) Chadtech's notice of its intention to claim costs in respect of future delays dated 20 June 1998 was a proper notice pursuant to clause 47 (as amended) of the sub-contract of its intention to make a claim (Part I9) of the Award. [Notice of Contentions paragraph 12, where paragraph 12(c) was not proceeded with.] The Claim made in Notice of Contentions sub-paragraph 12(a) 19 The provisions in the subcontract of central relevance to these proceedings are conveniently to be found in paragraphs C(3), C(4) and C(5) of the Award. Those paragraphs set out on pages 5 to 9 of the Award are appended to this judgment as Appendix "A". 20 Exxon submits that Chadtech's claim was pleaded as one for loss and damage for various breaches of contract and further and in the alternative, for additional costs and expenses for deviations directed by Exxon from the construction programmes. Exxon refers to the Points of Claim at paragraphs 15 and 20; Points of Claim at 8(a), 9, 10-14, 16-19 and to Points of Claim paragraph 8(c), 21-23. 21 Exxon then focuses attention upon the particulars given of the alleged directed deviations in paragraph 21 of the Points of Claim. 22 Paragraph 21 of the Points of Claim was in the following terms: "Further and in the alternative, whilst Chadtech was carrying out the works [Exxon] directed deviations from the construction programme pursuant to clause 29 of the subcontract Particulars of Directions of Deviations (a) Revision 5 of the construction programme dated December 1987 (b) Unnumbered Revision of the construction programme dated approximately August 1988." 23 I interpolate that clause 29(b) of the sub-contract clearly permits Exxon to direct a deviation from a relevant construction programme. 24 Exxon submits that the Arbitrator held that there were also directed deviations arising from letters of 22 June 1988 and 13 September 1988 from Exxon. The letter of 22 June 1988 is referred to in the award at paragraph G9 and the letter of 13 September 1988 is referred to in the award at paragraph G13. 25 It is convenient to further append to this judgment as Appendix B, pages 15 to 25 inclusive of the Award inter alia setting out paragraphs G to K. 26 Exxon's submission is that the deviations said to have arisen from the letters of 22 June and 13 September 1988 were not contended for by Chadtech and are not to be found in its Statement of Issues of 2 July 1988, Statement of Facts and Law of 10 July 1988, Submissions of 12 August 1988 nor Submissions in Reply of 20 August 1988 and were not otherwise raised prior to the Award being handed down. 27 The parties addressed detailed written and then oral submissions to a number of paragraphs in the pleadings and in the statements of issues to which I have referred. Having carefully examined both the pleadings and the issues as well as the particular sections of those documents relied upon by each party in their written and their oral submissions I have come to the very clear view that there is no substance in Exxon's claim of misconduct on the matter. In my view and applying the principles above referred to, it is plain that Exxon received procedural fairness. It was in my view given a reasonable opportunity to present its case. It ought reasonably have apprehended that the issue now said not to have been a live issue and not to have been contended for by Chadtech, was a live issue and was so contended for. Further, I am entirely satisfied that the result would have been unaffected had Chadtech's pleaded particulars given in paragraph 21 of the Points of Claim, extended to expressly recite the so-called 'missing' two letters of 22 June and 13 September 1988. 28 It is plainly necessary to descend into some degree of detail in examination of the pleadings and issues and in giving the Court's reasons for the above expressed view. I turn to that matter. 29 I have already referred to par 21 of the Points of Claim. The paragraph forms part of Section B of the pleading dealing with 'Prolongation Claim'. Section B is structured as follows: Paragraph 8 pleads express terms of the contract. Paragraph 9 pleads implied terms of the contract. Paragraph 10 pleads breaches of the express terms. Paragraphs 11 to 14 pleads breaches of the implied terms. Paragraph 15 pleads loss and damage flowing from these breaches. Paragraphs 16 to 19 plead alternative modes of breach of the implied terms. Paragraph 20 pleads loss and damage flowing from these breaches. Paragraph 21 is set out above. Paragraph 22 pleads that 'by reason of the aforesaid deviations to the construction programme and its compliance with them, Chadtech has incurred additional costs and expenses to which it is entitled [pursuant to clause 29(f); it being asserted in paragraph 8(c) that an express term provided for by clause 29(f) entitled Chadtech' to any extra cost resulting from a deviation from a construction program directed by [Exxon] where the need for the direction or deviation was due to an act, default or omission of the Principal, Superintendent or (Exxon)]. 30 In Chadtech's Reply to the Amended Points of Defence dated 17 June 1998, Chadtech pleaded inter alia as follows: "Chadtech says that … Chadtech gave [Exxon] sufficient and/or proper notice as required under the express terms of the subcontract specified in paragraphs 25(a)(i) and 30(a) of the Amended Points of Defence Particulars (i) Chadtech relies upon and refers to the Statements of Evidence by Messrs Henderson, Davidson and Vercoe served in support of its claim." 31 Fleshing out the pleading, Chadtech was asserting that it gave sufficient and proper notice as required by clause 31(b) and section 2 sub-section 2.2, clause 1(i) of the contract. And with reference to the particulars to this paragraph insofar as they referred to evidence given by Mr Henderson, it is necessary to note that Mr Ian Henderson in his statement of 27 January 1998. [Tab 68 in paragraph 73] had stated as follows: "On 20 June 1988 I forwarded to [Exxon] another extension of time on behalf of Chadtech". 32 In paragraph 74 of his statement, Mr Henderson had referred to Exxon's response of 22 June 1988 to Chadtech, this being one of the alleged missing particulars to paragraph 21 of Chadtech's Points of Claim. 33 In Chadtech's Statement of Issues of 2 July 1998 [Tab 54] Chadtech raised as issue 1(h) the following "What is the proper construction and effect of clause 29". 34 In Exxon's Further Amended Points of Defence dated 8 July 1988 [Tab 59] Exxon at par 25(c) stated: "In further answer to paragraphs 8-20 of the Points of Claim, Exxon did not extend the time for completion of the Works or a separable part of the Works for any delay caused by any of the breaches of Sub-Contract alleged in Points of Claim paragraphs10, 11, 12, 13, 14, 16, 17, 18 or 19". 35 In par 26 of Exxon's Amended Points of Defence dated 8 July 1998, it admitted that it issued the December 1987 Revision 5 and the August 1988 unnumbered Revision but otherwise denied paragraph 21 of the Points of Claim. 36 In par 27 of the further Amended Points of Defence Exxon denied the allegations made in the Points of Claim at paragraphs 22 and 23. 37 Chadtech in its Statement of Facts and Law Contended For of 10 July 1998 [Tab 61] included the following issue "1(h) The proper construction and effect of clause 29 is that where a deviation from the construction programme occurs, then Chadtech is entitled to any extra cost resulting from such a deviation where the deviation is due to an act, default or omission of the principal, superintendent or the contractor." 38 In Exxon's Statement of Fact and Law appearing at Tab 62 the following appears "(8) Clause 29 of the Conditions of Contract generally permits the issuance of programmes to the Respondent during the course of the works. The Respondent admits that it did issue further programmes during the course of the work to the claimant that illustrated different access or possession and completion requirements to that shown in the Annexure to the Contract. (10) Clause 29(d) is an all embracing provision whereby the issuance of a programme would not relieve the claimant from seeking an extension of time from the original contract obligations . If the programme showed completion dates at variance with the original dates, then it fell upon the claimant to seek extensions of time within 14 days from the issuance of such programmes. The claimant did not seek such extensions of time or at all as a result of the issuance of programmes." [emphasis added] 39 As indicated by the passages emphasised above, Exxon's Statement of Fact and Law makes plain that Exxon in fact admitted that it had issued further programmes during the course of the work and raised specifically the question of the interaction of clause 29(d) and clause 31. To my mind as the Award makes plain, the Arbitrator in fact looked closely at and determined as an issue between the parties, the relationship between those two clauses and the question of whether or not a directed deviation amounted to an extension of time in the circumstances. 40 Continuing through the relevant chronology one comes to Exxon's Statement of Issues of July 1998 [Tab 60]. In par 5 of Exxon's Statement of Issues the following appears "Does the issue of programmes by [Exxon] that show delayed possession and completion dates indicate a deviation to the original construction programme or merely reflect delays in possession of the site or sufficient of the site and consequential delays in the completion of the works?" 41 In par 10 of Exxon's Statement of Issues of July 1998 the following appears "Does the force and effect of cl 29(f) require Chadtech to have sought an extension of time to the dates for completion stated in the Third Schedule, notwithstanding that programmes issued to Chadtech by [Exxon] show completion dates beyond those shown in the Third Schedule". 42 In Chadtech's submissions of 12 August 1998 [Tab 64] Chadtech at par 22 submits ". . . that White is in breach of the implied terms pleaded, the obligation to consider properly Chadtech's claims for extensions of time and, thereby, failed to pay to Chadtech the delay costs which it ought to have paid." 43 In Exxon's submissions of 12 August 1998 [Tab 65] one finds at pages 14-19 a detailed analysis of the claims of Chadtech to rely on clause 29. It is convenient to append these pages as Appendix C to this judgment. Of particular importance are the terms of pars 5.34 and 5.35 to Exxon's submissions of 12 August 1998. It is chrystal clear from paragraph 5.35(e) that Exxon litigated the very question now said not to have been litigated, namely whether the issue of the programs constituted acts or omissions within the meaning of clause 31(b). 44 It is clear enough from Exxon's submissions of 12 August 1998 that Exxon admitted the issue of the subject construction programmes and took its stance before the Arbitrator in terms of the proposition that Chadtech's analysis was flawed in that the provision of construction programmes could not amount to a deviation. In this regard I note that the second full paragraph of clause 5.35(g) put that clause 29(d) means that regardless of what any programme might show in respect of completion dates, if the completion date shown on the programme is beyond that shown in the contract, Chadtech was obliged to seek an extension of time pursuant to clause 31 and to lodge a notice pursuant to clause 47. The further significance of the second full paragraph of paragraph 5.35(g) is that the whole question of the suggested clause 31 extension of time requirement was litigated. The Arbitrator'' finding that the subject letters and updated programmes constituted in the alternative, either clause 29(b) directions to deviate or clause 31(e) extensions was clearly open on the facts and on the respective analyses contended for by the parties. 45 Moving on in the chronology, Chadtech's Submissions in Reply of 20 August 1998 [Tab 66] included the following "10. Chadtech submits that in circumstances where White has admitted delays in providing sufficient access to the site then White is not entitled to rely upon a strict interpretation of the contractual regime to avoid granting Chadtech extensions of time and consequently paying delay costs. Chadtech submits that it is fundamentally inequable and a breach of the implied term to act fairly and honestly for White to candidly admit significant and substantial delays in respect to providing sufficient access to the site to enable Chadtech to proceed with the works and yet (a) refuse to exercise its discretion under cl31(e) to grant extensions of time and (b) seek to deny the entitlement of Chadtech to extensions of time and delay costs on the basis of an alleged failure to provide sufficient notice pursuant to clause 31(b) in respect of acts and omissions solely attributable to White and which White admits caused Chadtech to be significantly delayed in the performance of its works". 46 Ultimately the matter was clearly litigated upon the basis that notwithstanding the failure of Chadtech to furnish by way of express particulars in its Points of Claim, the letters of 22 June and 13 September 1998 as constituting in part directed deviations pursuant to clause 29(b), the fact that Chadtech was relying upon this correspondence as part of a course of directed deviations was clear. One only has to look, it seems to me, at the sequence of letters, to see that they form a flow of correspondence each dealing with the position up to that point of time and thereafter, as opposed to being discrete letters the effect of which require to be independently assessed out of context and on the artificial basis that the letters were the only letters ever sent. Further it is quite plain that the answer which Exxon advanced was that any construction programme which was issued was not, and could not have been a deviation, as the construction programmes were meaningless and bearing in mind the submissions advanced by Exxon as to the proper construction of the relevant clauses in the contract and the inter-relationship or lack thereof of such clauses. 47 The plaintiff's claim pressed in the Contentions par 12(a) is rejected. The claim pressed in par 12(b) of the Contentions 48 Exxon's claim here has already in substance, been dealt with. It is closely intertwined with that advanced in relation to Notice of Contentions paragraph 12(a). Exxon contends that 'extensions of time pursuant to clause 31(e) (or at all) were never contended for by [Chadtech]'. [submissions paragraph 5] Exxon submits that it actually pleaded in its Further Amended Points of Defence at Tab 59 paragraph 25(c), that Exxon did not grant any extension of time. Exxon submits that whilst Chadtech replied to that paragraph of the pleading (Points of Reply Tab 53 paragraph 2), Chadtech did not traverse, specifically or generally, that assertion by Exxon. 49 Exxon refers to Chadtech's Submissions in Reply which are said to have conceded [Tab 66 par 10 set out above] that Exxon refused to exercise its discretion under clause 31(e) to grant extensions of time. 50 Exxon also relies upon a letter which the Arbitrator wrote to the parties shortly after the hearing [Tab 63 p 2] in which letter the Arbitrator in referring to clause 31 commented "Again the sub-clause (e) gives the contractor the power to extend by notice, the time for completion, and to do this at any time. From the evidence, no such notice was given by the contractor and the subcontract finished way beyond the date for completion". 51 Exxon submits that notwithstanding these matters, the Arbitrator found that extensions of time had been granted by it and in this regard relies upon the Award at paragraphs G5, G7, G9. H18 and, I6 and K1. 52 It is plain enough that clause 31(e) of the contract was squarely addressed by the parties. Exxon's further Amended Points of Defence at Tab 59 in paragraph 25(a) specifically pleaded several subsections of clause 31 including clause 31(e). And in paragraph 25(c) of the same document, Exxon pleads that it did not extend the time for completion of the works, or a separable part of the works. 53 In its Statement of Facts and Law contended for at 10 July 1998 [Tab 61] at paragraph 1(i)(i)-(iv), Chadtech sets out its contentions as to the proper construction and effect of clause 31 and in particular asserts that "the contractor may, at any time and from time to time and for any reason thought sufficient extend the time for completion of the works notwithstanding the absence of any notice claiming an extension of time". 54 To my mind the Arbitrator did not go outside the matters litigated in his findings sought to be impugned in the manner set out in contentions paragraph 12(b). The inter-relationship of the various clauses was squarely addressed by the parties. The findings attacked by Exxon in par 12(b) of the Contentions were, it seems to me, clearly litigated. 55 Notice of Contentions par 12(d) 56 The letter of 20 June 1998 was clearly relied upon by Chadtech for the purpose of constituting notice. This is plain from Chadtech's Statement of Facts and Law [Tab 61] paragraphs 3(a)(i)(F) and 3(b)(ii). Paragraph 3 is entitled "Notice of Provisions and states inter alia "Chadtech gave sufficient notice of its claims for extension of time and delay costs and refers and relies upon the statements of Ian Henderson, Neville Vercoe and Peter Davidson (b) Chadtech gave notice or sufficient notice of any and/.or all of its claims for extensions of time and delay costs for the purposes of cl 47 in that … (ii) Chadtech relies upon the notice given and identified and Statement reference outlined at 3(a) above." [emphasis added] 57 The relevant reference is to Mr Henderson's Statement of 27 January 1998, paragraph 73 set out above. It will be recalled that Mr Henderson stated that on 20 June 1988 he had forwarded to WIL another extension of time claim on behalf of Chadtech. 58 Further support for this conclusion is to be found in Chadtech's Reply [Tab 53, paragraph 2(a)] already referred to wherein Chadtech had squarely responded to Exxon's Amended Points of Defence [Tab 50]. Chadtech negated the proposition that it had not given Exxon sufficient or proper notice as required under the express terms of the contract which had been pleaded in pars 25(a)(i) and in par 30 of Exxon's Amended Points of Defence.. 59 In the result there is no substance in Exxon's claim contended for in par 12(d) Notice of Contentions. 60 Before leaving Exxon's s 42 Contentions it is appropriate to return briefly to the principles earlier referred to. To my mind this case is a good example of a situation where it is indeed a question of fact and degree whether Exxon had an adequate opportunity of dealing with the matters complained of in Contentions paragraphs 12(a), (b) and (d). Exxon ought to have reasonably apprehended that the matters were the subject of the Arbitrator's holdings now attacked were live issues and to my mind Exxon clearly was given a reasonable opportunity to present its case. In the case of any doubt about the matter raised by the complex of exchanged submissions, Exxon clearly ought to have reasonably apprehended that the matters, the subject of the Arbitrator's holdings now sought to be attacked, might become live issues. As Gaudron J said in Association of Architects [supra], procedural fairness does not require that the tribunal ensure that a party takes the best advantage of the opportunity to which he is entitled. Procedural fairness requires only that a party be given a reasonable opportunity to present its case. Exxon clearly had such a reasonable opportunity. 61 Exxon's 38(4)(b) case 62 Exxon seeks leave to appeal against the award in respect of questions of law arising out of the award pursuant to s38(4) of the Act. As no consent has been given to the bringing of an appeal, the leave of the Court is required for the bringing of the appeal (s 38(4)(b) of the Act). 63 Section 38(5) of the Act provides "The Supreme Court shall not grant leave under section 4(b) unless it considers that (a) having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more of the parties to the arbitration agreement; and (b) there is: (i) a manifest error of law on the face of the award; or (ii) strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law." 64 The principles applicable were generally dealt with in Horizons Pty Ltd v Lahey Constructions Pty Ltd, [Unreported, Supreme Court of NSW, 11 March 1999, Einstein J, - Butterworths Unreported Cases 9807527]. 65 I did not understand either party to dissent from the statements of principle set out in Horizons which repeated statements of the Court of Appeal in Promenade Investments Pty Ltd v State of New South Wales (1991) 26 NSWLR 203; and in Natoli v Walker [Unreported, Court of Appeal, 26 May 1996]. It is unnecessary to repeat what was said in Horizons. 66 Dealing with the Notice of Contentions relevant paragraphs seriatim I turn to the suggested questions of law. The contentions plead as follows: '14. The questions of law arising out of the conclusions of the Arbitrator referred to in paragraph 13 are whether: (a) the Works Program (which was included in the plaintiff's invitation to tender dated 5 May 1987) was meaningless, on the basis that: (i) the Works Program showed: (A) work commencing on 20 July 1987 (Part G1 of the Award); and (B) work proceeding during the period 20 July to 17 August 1987; (ii) the plaintiff awarded the Contract to the defendant by letter of acceptance dated 13 August 1987 (Part A1 and D1 of the Award); (iii) the Contract showed that the anticipated date of commencement of work was 17 August 1987 (Part A1 and D1 of the Award); (iv) the letter of acceptance was issued subject to the Works Program being adjusted to suit the overall co-ordination program; and (v) the Contract required the defendant to submit a construction program within 7 days of the date of the letter of acceptance; (b) the plaintiff's letters dated: (i) 21 December 1987, together with the program enclosed therewith; (ii) 22 June 1988; (iii) 26 August 1988, together with the program enclosed therewith; and (iv) 13 September 1988, were directions pursuant to clause 29(b) of SCNPWC 3 to deviate from the Works Program or any other construction program; (c) the plaintiff's letter dated 11 December 1989 is the certificate of practical completion required by clause 47 (as amended) of SCNPWC 3; (d) the defendant was required to notify the plaintiff pursuant to clause 47 (as amended) of SCNPWC 3 of the defendant's intention to make a claim pursuant to clause 29(f) of SCNPWC 3; . . . (h) the plaintiff's letters dated: (i) 21 December 1987, together with the program enclosed therewith; (ii) 22 June 1988; (iii) 26 August 1988, together with the program enclosed therewith; and (iv) 13 September 1988; were extensions of time for completion of the works; (i) the plaintiff has allowed an extension of time for completion of the works pursuant to clause 31(e) of SCNPWC 3 by not claiming liquidated damages for the delay by the defendant in completing the works; and (j) a notice of intention to claim costs in respect of a future event, circumstance or happening is a proper notice pursuant to clause 47 (as amended) of SCNPWC 3 of an intention to make a claim. 15. The questions of law referred to in paragraph 14 arise out of the Award. 16. The conclusions of the Arbitrator referred to in paragraph 13 involved errors of law, in that the Arbitrator should have concluded that: (a) the Works Program was meaningless; (b) a construction program was not included in the Contract for the purposes of clause 29(b) of SCNPWC 3 and the defendant did not supply a construction program in accordance with the requirements of the Contract; (c) the plaintiff did not direct deviations pursuant to clause 29(b) of SCNPWC 3; (d) the plaintiff's letter dated 11 December 1989 is a certificate of practical completion for the purposes of clause 47 (as amended) of SCNPWC 3; (e) the defendant was required to notify the plaintiff pursuant to clause 47 (as amended) of SCNPWC 3 of the defendant's intention to make a claim pursuant to clause 29(f) of SCNPWC 3; (f) the defendant did not incur any extra cost; (g) the defendant did not provide proper evidence of any extra cost incurred by it and is not entitled to any of the amounts claimed; (h) the defendant did not incur any extra cost as a result of deviations directed by the plaintiff pursuant to clause 29(b) of SCNPWC 3; (i) any directions issued by the plaintiff pursuant to clause 29(b) of SCNPWC 3 are not extensions of time for completion of the works; (j) the plaintiff did not allow an extension of time for the completion of the works pursuant to clause 31(e) of SCNPWC 3 by not claiming liquidated damages for the defendant's delay in completing the works; and (k) the defendant's notice of its intention to claim costs in respect of future delays dated 20 June 1998 was not a proper notice of its intention to make a claim for the purposes of clause 47 (as amended) of SCNPWC 3. 17. The errors of law referred to in paragraph 16 are manifest errors of law on the face of the Award. 18. Alternatively: (a) there is strong evidence that: (i) the Arbitrator made the errors of law referred to in paragraph 16; and (ii) the determination of the questions of law referred to in paragraph 14 may add, or may be likely to add, substantially to the certainty of commercial law; and (b) the determination of the questions of law referred to in paragraph 14 may add, or may be likely to add, substantially to the certainty of commercial law because they: (i) relate to a standard form of contract commonly used in the construction industry; (ii) relate to important provisions of that standard form, which, or the substance of which, are: (A) incorporated in other standard forms of contract commonly used in the construction industry; and (B) included in other contracts commonly used in the construction industry; (iii) arise in circumstances which commonly occur in the construction industry; and (iv) relate to issues which are not yet the subject of any authoritative determination by the courts known to the plaintiff. 19. The determination of the questions of law referred to in paragraph 14 could substantially affect the rights of the parties, in that the plaintiff may not, depending on the determination, have any liability to the defendant.' 67 To my mind, leave to appeal should clearly not be granted for a number of reasons. The first is that no manifest error of law on the face of the Award is exposed. At the highest, Exxon's submissions in certain cases simply point up analyses which may be arguable but are by no means evident or obvious. If, contrary to the views which I have, there are any errors of law exposed of the type that Exxon points out, they were clearly not plain in the sense of being obvious, nor manifest in the sense that there is little or no doubt that error exists. Exxon has in consequence not shown that there is strong evidence that the Arbitrator made an error of law. Finally, I am not satisfied that the determination of any of the matters raised by Exxon may add, or may be likely to add, substantially to the certainty of commercial law. 68 Mr Callaghan SC for Exxon, conveniently dealt with paragraph 14 of the notice of contentions by categorising particular sub-paragraphs. I note that sub-paragraphs (e), (f) and (g) were not pressed. Directed Deviations and Extensions of Time - Notice of Contentions paragraphs 14(b), (h) and (i) 69 These matters revert to so much of Exxon's case under its s 42 head as was treated in Notice of Contention pars 12(a) and (b). 70 Exxon contends that the letters and programmes referred to in par 14(b) of the Summons could not have involved directed deviations and could not be properly construed so as to involve directed deviations. The submission is that a direction to deviate is necessarily a direction to change the order or sequence of the work to be carried out from that shown in the construction programme. The submission is that a direction which merely reflects the fact that work is not being, and cannot be, carried out within the times contemplated by the construction programme because of delays which have occurred to the works or the main contractor works or both is not a direction to deviate within the meaning of clause 29(b) of the contract. The submission is that such a direction is merely a recognition of the prevailing circumstances and is possibly a statement of future expectation. 71 The further submission is that on the basis of the evidence accepted and the conclusions set out by the Arbitrator in Part E of the Award for which a remedy is said to be conferred on Chadtech by clause 31 of the contract, and on the basis of the terms of the plaintiff's letters, those letters cannot be construed as to directions to deviate from the construction programme within the meaning of clause 29(b) of the contract. This is said to be particularly true of the plaintiff's letter of 22 June 1988 which was a circular letter addressed to all subcontractors. 72 In relation to the very same letters and programmes the submission is made that they could not constitute "an automatic extension of time" [Award par H18] on any extension of time situation. The reasons are said to be as follows (i) Clause 29 of the contract does not provide for an extension of time for delay in the construction of the works that may arise from a direction to deviate from a construction programme or a direction to supply a further construction programme. (ii) In fact clause 29 (b) of the contract specifically states that the supply "of a further construction programme under this clause shall not relieve the (defendant) of any of his obligations under this contract". These obligations include the obligation to complete the works within the required time. (iii) The position can hardly be different if the plaintiff directed the defendant to deviate from the construction programme but did not direct the defendant to supply a further construction programme or, having directed the defendant to supply a further construction programme, the defendant failed or refused to supply it to the plaintiff (iv) Clause 31 of the contract is the only provision which deals with delays in the execution of the work. It does so in two different ways (v) First, clause 31(b) confers a right on the defendant to claim an extension of time in certain circumstances. If the claim is justified, clause 31(c) of the contract requires the plaintiff to grant the defendant "such extensions or time to complete the works as the (plaintiff) thinks fit and shall, as soon as practicable after he is granted that extension of time, notify the defendant thereof". ( vi) Secondly, cl 31(e) of the contract confers a discretion on the plaintiff to "at any time and from time to time and for any reason he thinks sufficient, by notice addressed to the(defendant) extend the time for completion of the works by nominating a date specified in the notice as the date for completion of the works". 73 It is said by Exxon that it necessarily follows from the scheme provided by these provisions that clause 29 of the contract "does not give an automatic extension of time for the completion of the works which then gives Chadtech (although albeit it in a somewhat backhand manner), an entitlement what are said in fact to be no more than delay costs (see Part H19 of the Award". 74 Exxon further submits that the two letters of 22 June and 13 September 1988 and the programme of 26 August 1988 were found to constitute extensions of time, notwithstanding that neither of them "nominated a date specified in the notice as the date for practical completion" as required by clause 31(e). 75 To my mind there is no substance in these submissions of Exxon.. The determination of whether the subject letters sent by Exxon to Chadtech were directions to deviate from the contracts works programme under clause 29(b) of the contract involved at least significant questions of fact. There is no dispute that the letters were sent by Exxon and received by Chadtech. Each of the letters concerns the programming of the works. I accept Chadtech's submission that clause 20 of the contract contemplates that a direction includes an extremely broad range of instructions. The findings of the Arbitrator were based on evidence tendered in the Arbitration and here again Exxon did not tender any evidence in the Arbitration in support of its Contention that the letters did not constitute direct deviations under the contract. 76 To my mind there is much to be said for the proposition that clause 29(b) of the contract should not be construed in the limited manner in which Exxon has construed it. The clause I accept properly contemplates directed deviations which lead to the continuation of works beyond the contract completion date. It is clear that there is no express restriction on the right of the contractor to only direct deviations prior to the date of completion under the contract. 77 I accept Chadtech's submission that there is no evidence, or at least no strong evidence, that the delays were the fault of the principal or superintendent as contended for by Exxon. Exxon did not seek in the Arbitration to prove (nor has it sought otherwise to prove) that the principal or the superintendent was to blame for the delays as opposed to Exxon's own management of the works and of its subcontractors. To my mind Exxon has not shown a manifest error of law in relation to this question. If error there was, it was neither plain in the sense of being obvious nor was it manifest in the sense that there was little or no doubt that error it was. 78 To my mind, the reasoning given by the Arbitrator in the sections of the Award which are appended to this Judgment, cannot be said to be obscure or unclear. As Kirby P pointed out in Natoli, what may be 'manifest' to one judicial officer may fail to persuade another. Hence, what Exxon faces in terms of its section 38(5) case is a swift and easy persuasion of the Court and rapid recognition by the Court of the suggested error. Exxon does not succeed in that task and I reject these claims as lacking substance. 79 As to the matter dealt with in contentions paragraph 14(i), this matter may be dealt with fairly shortly. To my mind, Exxon's argument is without substance at least for the reason that it seeks, it seems to me without a proper basis, to suggest that the Arbitrator in the Award gave one and only one basis for holding that there had been an extension of time allowed by Exxon pursuant to clause 31(e). In short, Exxon fixes upon the second sentence of the Award paragraph I6 to first suggest that the Arbitrator determined that there had been an allowance of an extension of time by Exxon pursuant to clause 31(e) because, and only because, the Arbitrator held that Exxon had no claim on Chadtech for liquidated damages. This analysis of the Award is incorrect as the Arbitrator's reasons for concluding that there had been an allowance of an extension of time by Exxon pursuant to clause 31(e) was supported by reasons altogether different from, although in his view corroborated by, Exxon's failure to make a claim for liquidated damages. See in this regard the Award at paragraphs G5, G10 and the second sentence of I6. 80 There is further substance in Chadtech's submission that the determination of whether Exxon allowed an extension of time pursuant to clause 31(e) involved at least as an important element, questions of fact being determined. 81 Clearly the Arbitrator found that the subject letters dated 21 December 1987, 22 June 1988, 26 August 1988 and 13 September 1988 constituted extensions of time pursuant to clause 31(e) of the contract. There was no dispute that those letters had been sent and received. Each of them concerned the programming of the works and delays in the progress of the works. The Arbitrator's finding was based upon a number of facts. First it was based upon the fact that each of those letters constituted directions to deviate from the contract works programme and that if those letters did not have the effect of extending the time for completion, this would lead to an absurdity. Exxon did not tender any evidence in the Arbitration in support of its contention that the letters did not constitute directed deviations under the contract. Secondly, Exxon admitted that the works had been substantially delayed. Thirdly, the fact that Exxon had not claimed liquidated damages supported the conclusion that the plaintiff had allowed an extension of time. 82 I reject the submission that paragraph 14(i) of the contentions raises a manifest error of law on the face of the Award. The Clause 47 Issue - Contentions Paragraph 14(c), (d) and (j) 83 Here again in my view, Exxon's claim to have exposed a manifest error of law on the face of the Award fails. The Arbitrator's reasoning is generally set out in Part H of the Award. It is unnecessary that I repeat that reasoning. The circumstances before the Arbitrator were unusual in the extreme. There was no authority binding the Arbitrator in terms of the interrelationship between clause 29 and clause 47. In Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1977-78) 139 CLR 231, Barwick CJ at 238, as the Arbitrator reminds us in the Award at page 10, dealt with the relevant law as to enforceability of a time limitation clause and cited Suisse Atlantique Societe d'Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361 for the proposition that: '. . . whilst exemption clauses which, for present purposes, can be assumed to include a time limitation such as clause 17, should be construed strictly, they are of course enforceable according to their terms unless their application according to those terms should lead to an absurdity or defeat the main object of the contract or, for some other reason, justify the cutting down of their scope.' [emphasis added] 84 At paragraph H20 and H21, the Arbitrator's holding was effectively that the application of clause 47 according to its terms in the manner contended for by Exxon, led to an absurdity. I see no difficulty with the Arbitrator's reasoning and note the care with which the Arbitrator went back through several authorities from which he discerned the underlying rationale for time limitation clauses such as clause 47. That rationale was to alert the relevant contractor entitled to notice of a proposed claim and to give such a contractor the opportunity to investigate and check such claims. Difficulties of proof might arise from lack of timely notification. 85 To my mind, the Arbitrator's reasoning, treating with Exxon's here having been fully acquainted with the facts and having in fact directed the delay, does not expose any manifest error of law in the requisite sense sufficient to enable Exxon to succeed in its section 38 claim. At its highest, Exxon's submissions raise something which may be arguable but they do not result in a swift and easy persuasion in the Court of the suggested error said to have been made nor a rapid recognition of that error. If error there was, it was neither plain in the sense of being obvious, nor manifest in the sense that there was little or no doubt that error it was. I am by no means persuaded that the Arbitrator should have concluded that Chadtech was required to notify Exxon pursuant to clause 47 of Chadtech's intention to make a claim pursuant to clause 29(f). 86 The section 38(5)(b)(ii) claim fails for the same reasons. 87 That then, it seems to me, disposes of notice of contentions paragraph 14(d). 88 There is no substance in the contentions set out in paragraph 14(c). The document at Tab 51 was a clear concession by Exxon in formal terms to the effect that Exxon did not hold a Certificate of Practical Completion under the head contract. That document was relied upon by the Arbitrator in paragraph H6. The reasoning in paragraph H7 is unexceptional. No manifest error is involved in the Arbitrator's holding that the letter of 11 December 1989 did not constitute a Certificate of Practical Completion. The contra proferentem rule was applied requiring that Exxon comply strictly with its obligations in relation to the notice provision. In any event here again, there is no evident or obvious error of law. At highest, Exxon may have exposed a matter capable of argument. In my view, Exxon has not exposed an obvious nor manifest error of law in the sense that there was little or no doubt that error it was. The section 38(5)(b)(ii) claim fails for the same reasons. 89 In relation to paragraph 14(j) of the contentions, I accept Chadtech's submission that the question propounded by Exxon requires a consideration of the letter of 20 June 1988 from Chadtech to Exxon, which must be viewed in the context of the evidence tendered in the proceedings, including in particular the evidence of Mr Henderson which described in detail the delays which were occasioned in the progress of the works and the correspondence between Exxon and Chadtech regarding those delays. The letter, I accept, cannot be viewed in isolation. Chadtech had made a previous claim for delay on 28 January 1988. Between 2 May 1988 and 20 July 1988, the defendant had no labour on site and during that time apparently attended numerous site meetings in respect of the delay. The letter is said to have been sent in circumstances where Chadtech was off-site and an end to the delays were not within sight. In the circumstances, Chadtech was alerting Exxon to delays which had begun almost eleven months previously and had not improved. In that letter, Chadtech expressed its intention to claim in respect of future delays. 90 I accept Chadtech's submission that the notice given by it could not be described as speculative, as it related to delays which had been continuing for some time and which had not been resolved. I accept that whilst there was a range of delays caused by a range of events (bringing Chadtech within the scope of the relevant clause 47 time limitation), those delays were not unrelated, to the extent that they all concerned access to the site and the progress of other sub-contractors at the site. To this extent, the notice could not be said to be unfairly speculative in the sense that it related to events not within the contemplation of the parties at the time. 91 In this regard to my mind, Exxon has not made good its proposition that there is a manifest error of law on the face of the records. If the Arbitrator erred in relation to the providence of the notice, the error is to my mind not obvious and is at best weakly arguable. 92 The section 38(50(b)(ii) claim fails for the same reasons. Notice of Contentions - Paragraph 14(a) 93 Exxon's submission that the Arbitrator erred in law in that he ought to have concluded that the works programme was meaningless, only has to be stated to be dismissed. Notwithstanding the closely reasoned argument put to the Arbitrator and to the Court with respect to the matter raised in contentions paragraph 14(a), I have no difficulty whatever in accepting the Arbitrator's reasoning, which to my mind, firmly and justifiably rejected as totally misconceived, Exxon's proposition that its formal updated construction programme was meaningless in contractual terms. One only has to read paragraphs 5.13 and following of Exxon's submissions of 12 August 1998 behind Tab 65, to see how empty Exxon's argument is. That argument was to the effect that its construction programmes issued in December 1987, August 1988 and October 1988, were meaningless. The submission that 'in truth there was no deviation from any programme as there was not a meaningful programme to deviate from' only has to be stated to, it seems to me, to be rejected. Far from being persuaded that there was a manifest error of law in the Arbitrator's reasoning in this regard, to my mind the Arbitrator's reasoning was correct. If I be wrong in this regard, Exxon has failed dismally in terms of the very high test which the above described authorities pose for its success under section 38(5). 94 I further accept as correct Chadtech's submission that the determination of whether the works programme was included in the contract was meaningless involved, or involves at least in important degree, the determination of a question of fact. 95 There is plainly evidence that a works programme was included in the programme documents. Hence the finding of the Arbitrator was based on evidence tendered in the Arbitration. The Arbitrator found (in light of the evidence of the issuing of revised construction programmes by Exxon), that this works programme was a programme under the contract. It was common ground that Exxon did not during the Arbitration tender any evidence in support of its contention that it had resiled from or had abandoned the works programme included in the contract as being the works programme. Exxon seeks to rely solely upon the commencement date of the works in support of its contention that the works programme was meaningless. 96 Exxon's central submission is that the works programme was meaningless and should be disregarded by reason of the facts that: (a) the works programme (which was included in the plaintiff's invitation to tender dated 5 May 1987) showed (i) work commencing on 20 July 1987 and (b) work proceeding during the period 20 July to 17 August 1987. (b) Exxon awarded the contract to Chadtech by letter of acceptance dated 13 August 1987 (c) the contract showed that the anticipated date of commencement of work was17 August 1987 (d) section 2 sub-section 2.1 clause 13(2) required Chadtech to submit its construction programme to the plaintiff within 7 days of the letter of acceptance (e) the letter of acceptance was issued subject to the works programme being adjusted to suit the overall co-ordination programme" 97 Exxon's contention is that Chadtech did not (a) adjust the works programme, to suit the overall co-ordination programme as contemplated by the letter of acceptance (b) submit its construction programme to Exxon as required by section 2 sub-section 2.1, clause 13(2) (c) otherwise submit a construction programme to the plaintiff with the result that there was never any construction programme for the purposes of cl 29(b) of the contract. 98 Exxon has not made good the proposition that the Arbitrator erred in relation to his construction and interpretation of the works programme included in the contract. Exxon's claim falls very far short of the requirement that there be error of law in the face of the award by way of something evident or obvious rather than arguable. If error there was at law, it does not seem to me that it was manifest. It was neither plain in the sense of being obvious nor was it manifest in the sense that there was little or no doubt that error it was. 99 The section 38(5)(b)(ii) claim fails for the same reasons. Notice of Contentions - Paragraph 14(e) 100 The determination of whether Chadtech incurred extra cost as a result of deviations directed by Exxon pursuant to clause 29(b) of the Contract involved the determination of a question of fact. 101 The arbitrator found that the letters dated 21 December 1997, 22 June 1988, 26 August 1988 and 13 September 1988 constituted directed deviations from the contract works programme. The arbitrator found that extra cost was incurred by the defendant as a consequence of the delay to the progress of the works: see Part L of the award; the evidence of Mr Blumer; the evidence of Mr Henderson and the evidence of Mr Davidson. It was admitted by the plaintiff that there were substantial delays in the completion of the works. 102 I do not accept that clause 29(f) of the contract should be construed in the limited manner in which the plaintiff has construed it. There is no clear limitation in that clause to the entitlement to extra cost, only in circumstances where the order of the works has been changed. The clause is capable of including costs which are incurred by the delay of works to a later date. 103 If there is any error, there is no manifest error of law. The section 38(5)(b)(ii) claim fails for the same reasons. Discretionary Considerations 104 There is a further discretionary consideration of relevance in relation to the plaintiff's construction claims earlier dealt with. Evidence was given by Mr C.P. Pudig, a partner of Clayton Utz since July 1993 and prior to that, a partner of both Minter Ellison and Morris Fletcher Cross. Mr Pudig has practised almost exclusively in the area of construction law for over sixteen years. 105 Mr Pudig deposed that in his experience, the use of the standard form contract NPWC3 (1981) and its associated sub-contracts SCNPWC3 (1981) throughout the construction industry has diminished to the extent that it is almost no longer in use at all. Mr Pudig deposed that as indicated by its title, the standard form was drafted approximately eighteen years ago. His evidence was that NPWC3 (1981) was a contract that was one of two contracts used predominantly by government instrumentalities in the early to mid-1980s. In Mr Pudig's experience, the standard forms of contract predominantly used in the construction industry today, particularly by government instrumentalities, are AS2124-1986 (with the associated sub-contract AS2545-1987) and AS2124-1992 (with the associated sub-contract AS2545-1993). Further on, Mr Pudig's evidence, AS400-1997 (with the associated sub-contract AS4901-1998) is the most recent edition of the AS series of standard form terms and conditions. 106 Mr Pudig's evidence was that the provisions of the AS series of standard form contracts and sub-contracts relating to the issues which concern the dispute between the plaintiff and the defendant in these proceedings, are significantly different from those which appeared in NPWC3 (1981) and the associated SCNPWC3 (1981). 107 Mr Pudig gave further evidence that another standard form contract used commonly is the JCC (versions D, E and F) 1994. This standard form contract, he said, was developed by the Joint Contract Committee, the constituent bodies of which are : (a) The Royal Australian Institute of Architects, (b) Master Builders of Australia Incorporated, (c) The Building Owners and Managers Association of Australia Limited. 108 Mr Pudig's evidence was that the JCC form of contract (versions D, E and F) have been in use in the construction industry since 1994. His evidence was that the provisions of those standard form of contracts are also significantly different from the provisions relevant to the dispute between the plaintiff and the defendant. 109 In Mr Pudig's view, the meaning of and the relationship between the particular clauses in issue in these proceedings would not add, and was not likely to add, substantially to certainty in the area of construction law. 110 Mr B. Casey, solicitor for the plaintiff in his responsive affidavit, accepted that the NPWC edition 3 and SCNPWC edition 3 are not used as extensively as they were prior to the introduction of Australian Standard 2124-1996, but his evidence was that they are still used in the construction industry. 111 Plainly, each contract must be construed in its terms and subtle variations, may lead to very different interpretations. It seems to me that there is substance in the defendant's submission that an important factor to take into account as a discretionary consideration in rejecting leave to appeal, is that the dispute arises out of a contract entered into now in excess of ten years ago and in relation to which that form is not used anything like as extensively as it had previously been used. A further discretionary consideration which I take into account in refusing leave, concerns the amounts in dispute weighed against the costs of the proceedings. [See transcript of argument pages 78 to 79.] 112 I direct that short minutes of order be brought in and at the same time costs may be argued. Appendices A to C are not included ********** Last Modified: 06/21/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.