Cargill International SA v Peabody Australia Mining Ltd [2010] NSWSC 887

Reported Decision : 78 NSWLR 533

New South Wales Supreme Court

CITATION : Cargill International SA v Peabody Australia Mining Ltd [2010] NSWSC 887

HEARING DATE(S) : 10 June 2010

JUDGMENT DATE : 11 August 2010

JURISDICTION : Equity Commercial List

JUDGMENT OF : Ward J

DECISION : Plaintiff's application dismissed

CATCHWORDS : COMMERCIAL ARBITRATION - application under s 38(4)(b) of Commercial Arbitration Act 1984 (NSW) for leave to appeal from Arbitrator's award on grounds of manifest error of law or strong evidence of error or in the alternative to remit questions of law to Arbitrator under article 34(2)(b)(ii) of Model Law - if former, whether leave to appeal should be granted under Commercial Arbitration Act - if latter whether denial of natural justice under the Model Law - HELD - Model Law applies - referral of dispute under rules of ICC did not operate as an 'opt-out' of Model Law under s 21 of the International Arbitration Act 1974 (Cth) – the decision in Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH v Australian Granites Ltd [2001] 1 Qd R 461 is plainly wrong and should not be followed - referral of dispute to ICC Rules did not indicate that parties intended to opt-out of Model Law to extent it applied as the curial law or lex arbitri - had Commercial Arbitration Act applied, threshold requirements for grant of leave not satisfied - discretion to grant leave would not have been exercised in any event - no denial of natural justice - plaintiff's application dismissed - ADMIRALTY AND MARITIME JURISDICTION - whether dispute was one arising out of a maritime claim - HELD - dispute did arise out of a maritime claim so that exclusion agreement by adoption of article 28(6) of the ICC Rules would not apply