CBI Constructors Pty Ltd & Anor v. Chevron Australia Pty Ltd

Lower Court Judgment

17/01/2023 Supreme Court of Western Australia (Court of Appeal) (Quinlan CJ, Murphy JA, Bleby AJA)

[2023] WASCA 1

Catchwords

Arbitration – Bifurcation of proceedings – Admissibility/jurisdiction dichotomy – Functus officio – Standard of supervisory court review – Where arbitration proceedings arose from contract under which appellants required to provide staff to carry out work at construction sites and respondent required to reimburse appellants for costs of providing staff – Where arbitral tribunal bifurcated proceedings principally on basis that first hearing would deal with liability and second hearing would deal with quantum – Where following first interim award appellants included additional pleading in repleaded case as to staff costs calculation (“Contract Criteria Case”) – Where respondent objected to Contract Criteria Case on basis of res judicata, issue estoppel, Anshun estoppel and Tribunal functus officio in respect of liability – Where Tribunal in second interim award declared appellants not prevented from advancing Contract Criteria Case by any estoppels and Tribunal not functus officio in respect of Contract Criteria Case – Where respondent applied to set aside second interim award pursuant to s 34(2)(a)(iii) of Commercial Arbitration Act 2012 (WA)on ground beyond scope of parties’ submission to arbitration – Where Court of Appeal dismissed appeal – Whether Court of Appeal erred finding arbitral tribunal functus officio with respect to Contract Criteria Case for purpose of s 34(2)(a)(iii) – Whether Court erred finding standard of supervisory court’s review of scope of parties’ submission to arbitration in application to set aside arbitral award under s 34(2)(a)(iii) is de novo review in which supervisory court applies "correctness" standard of intervention.