Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd

[2000] WASCA 255

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Arbitration
2. › Commercial arbitration
3. › Conduct of arbitral proceedings
4. › Removal of arbitrator
5. › Technical misconduct
6. › Whether arbitrator adopted procedure causing material prejudice
7. › Whether arbitrator erred in allowing evidence on unpleaded cause of action
8. › Whether arbitrator erred in refusing to rule on admissibility of evidence
9. › Commercial Arbitration Act 1985 (WA), s 44
1. Arbitration
2. › Commercial arbitration
3. › Conduct of arbitral proceedings
4. › Function of pleadings in arbitration
5. › Whether ordinary rules applicable to pleadings apply once arbitrator orders pleadings
6. › Whether rules of evidence distinct from rules of pleading
7. › Commercial Arbitration Act 1985 (WA), ss 14, 19(3)
1. Practice and Procedure
2. › Pleadings
3. › Allegations of dishonesty or impropriety
4. › Requirement to plead fraud and dishonesty with clarity and particularity
5. › Whether allegations of professional impropriety must be specifically pleaded in arbitration proceedings governed by pleadings
1. Practice and Procedure
2. › Counsel's duty
3. › Opening address
4. › Duty not to misinform tribunal
5. › Duty to specify allegations of dishonesty or impropriety in opening
6. › Duty to draw attention of lay arbitrator to relevant legal principles

Quick Take

Where an arbitrator orders pleadings in commercial arbitration, the ordinary rules applicable to pleadings apply, including the requirement that allegations of dishonesty and professional impropriety be pleaded clearly and with particularity. The arbitrator's power under s 19(3) of the Commercial Arbitration Act 1985 (WA) not to be bound by rules of evidence does not relieve the arbitrator of the obligation to follow the rules of pleading. A plea of misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth) does not, without more, allege dishonesty or impropriety. An arbitrator who permits a party to pursue unpleaded allegations of dishonesty causing material prejudice to the other party is guilty of technical misconduct justifying removal.