The test for procedural fairness in arbitrations under the Commercial Arbitration Act 2011 (Vic) is drawn from the statutory text of s 18 itself — whether the parties were treated with equality and each given a reasonable opportunity of presenting their case — and does not invoke common law natural justice principles. The merits of the arbitrator's reasoning are wholly irrelevant to this inquiry. A party that chooses not to address an issue raised however briefly in the arbitration cannot later complain of a denial of procedural fairness. The common law 'surprise and prejudice' test from Rotoaira Forest Trust provides helpful guidance but does not state the relevant test and must be applied with caution.
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