Tesseract International Pty Ltd v Pascale Construction Pty Ltd

Arbitration – Proportionate liability – Where contract for engineering consultancy provided for referral of disputes to arbitration – Where dispute as to performance of contract referred to arbitration – Where arbitration conducted pursuant to Commercial Arbitration Act 2011 (SA) – Where law applicable to substance of dispute is the law of South Australia – Where respondent claims damages for breach of contract, negligence and misleading or deceptive conduct – Where appellant denies liability – Where in alternative appellant contends liability reduced by reference to alleged concurrent wrongdoing of third party in accordance with proportionate liability laws in Pt 3 of Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) ("Law Reform Act") and Pt VIA of Competition and Consumer Act 2010 (Cth) ("CCA") – Where third party not and cannot be required to be party to arbitration – Where respondent denies applicability of proportionate liability laws in arbitration – Where appellant applied to Supreme Court of South Australia for leave to obtain determination of question of law as to applicability of proportionate liability laws in arbitration – Whether proportionate liability laws in Pt 3 of Law Reform Act and Pt VIA of CCA apply in arbitration.

Words and phrases – "apportionable claim", "arbitrability", "capable of settlement by arbitration", "capable of translation or adaptation", "choice of law", "concurrent wrongdoer", "express or implied choice of law", "joinder", "non arbitrable subject matter", "paramount object of arbitration", "party autonomy", "proportionate liability", "public policy", "rules of law applicable to the substance of the dispute", "solidary liability".

Competition and Consumer Act 2010 (Cth) – Pt VIA.

Commercial Arbitration Act 2011 (SA) – ss 1C, 5, 16, 19, 27J, 28, 34.

Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) – Pt 3.

UNCITRAL Model Law on International Commercial Arbitration (1985) – Arts 5, 16, 19, 28, 34.