A Clayton Utz ‘Project Insight’ is worth a look. It considers whether the proportionate liability schemes around the country have operation in arbitrations. The answer, according to Tasmania’s Supreme Court in Aquagenics Pty Ltd v Break O’Day Council (No 2)  TASSC 89 is — Yes. The reason is that there is an implied term in the arbitration contract that the arbitrator will grant the relief which would be available in a court. As the authors Owen Hayford and Audrey Echevarria point out, the implication of an implied term may be prevented by an inconsistent express term. I am aware of a passing consideration of the matter in Victoria. In Wealthcare Financial Planningn Pty Ltd v Financial Industry Complaints Service Ltd  VSC 7, Justice Cavanough noted:
‘Writing extra-judicially, Byrne J has said that the regime of Part IVAA “does not appear to apply to arbitrations …”. I think that his Honour was referring there to commercial arbitrations, as distinct from industrial arbitration and like processes. I need not and do not decide the very important question whether Part IVAA applies to formal commercial arbitrations, but his Honour’s comment is entirely consistent with the proposition that Part IVAA is inapplicable to a matter before a FICS panel.
 The Hon. Justice David Byrne, “Proportionate Liability: Some Creaking in the Superstructure”, A paper presented to the Judicial College of Victoria, Friday 19 May 2006, p 7, para .
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