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Playing Chicken: Construction of Multi-Tiered Dispute Resolution Clauses ||| MTECC News 20.09

by admin admin

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In Inghams Enterprises Pty Limited v Hannigan [2020] NSWCA 82, the New South Wales Court of Appeal was split as to whether a dispute fell within the obligation to refer disputes to arbitration within a multi-tiered dispute resolution clause. The majority (Meagher and Gleeson JJA) held that the dispute was not referable to arbitration, while Bell P, in the minority, held that the dispute was referable to arbitration.

The dispute concerned a damages claim that was the subject of previous litigation between the parties, relating to Hannigan’s supply of grown chickens to Inghams. The question was whether Hannigan’s claim for damages arising out of that previous dispute was one that “concerns any monetary amount payable and/or owed by either party to the other under this Agreement”.

The majority and minority referred to the well-known authorities governing the construction of dispute resolution clauses, but reached a different result in the application of those authorities. President Bell, in the minority, held that the damages claim was referable to arbitration, whereas the majority, Meagher and Gleeson JJA, held that the dispute was not referable to arbitration. The majority referred to Mann v Paterson Constructions, holding that Hannigan’s claim for unliquidated damages was not governed or controlled by the parties’ agreement, notwithstanding that payment of a monetary amount was an integer of a damages claim.

VCAT enters the digital age

Victorian practitioners will be relieved at the news that VCAT is upgrading its systems to enter the digital age. On 28 April 2020, the Victorian Premier, Daniel Andrews, announced that $5.2 million had been allocated to the upgrades, which will include project management software, software programmers, software licenses, information technology hardware and digitisation and scanning of paper files.

VCAT regulars will be aware of the large bundles of paper lugged by VCAT members and staff and the difficulties with filing documents, especially on tight timelines. VCAT has been discussing updating its systems for some time: the 2014-2017 Strategic Plan identified that ‘plans are underway to modernise [paper-based] systems as quickly as possible.’ The 2018-2022 Strategic Plan repeated this aim, announcing a ‘digitally-enabled VCAT’, and a transformation from paper-based services to digital. One positive to come out of the COVID-19 pandemic is this upgrade, which will improve VCAT’s service delivery when the bulk of the tribunal’s work resumes.

VBA continues Statewide Cladding Audit inspections

The VBA’s inspections of combustible cladding on Victorian buildings has resumed, notwithstanding the COVID-19 pandemic. The VBA released an information sheet to explain that the inspection regime was to continue during the Stage Three restrictions, to protect against the fire-safety risks of combustible cladding. Inspectors will wear additional personal protective equipment, presumably to reduce risks of transmission of COVID-19 to inspectors and conversely to residents of the buildings. Since 2017, the Statewide Cladding Audit has inspected over 2,200 buildings, typically on the hunt for expanded polystyrene, or aluminium-polyethylene composite, cladding.

James Waters

Liability limited by a scheme approved under professional standards legislation

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