reference is a submission to him as arbitrator, in which case his powers and duties are regulated by the terms of the submission and, unless a contrary intention is expressed in the submission, by the provisions of the First Schedule to the Arbitration Act and the various sections of that Act in so far as they relate to submissions by consent out of Court.

9. Special referees to whom actions or questions arising therein are referred.

It should be explained that in s. 14 of the Arbitration Act the words used are "special referee or arbitrator." Why the word "arbitrator" is used in that section is not clear, but whether the person designated in the order is called a special referee or an arbitrator, he is under s. 15 (1) deemed to be an officer of the Court, and as such comes under the powers of the Court, and is subject to the Rules of the Supreme Court and the provisions of the Arbitration Act in so far as they relate to such officers.

As an officer of the Court, the person to whom an action or any question arising therein is referred for report or for trial under s. 13 or 14 has much greater powers than an arbitrator acting under a submission by consent.

The first consideration, therefore, for a person receiving an order of the Court is to examine the terms of the order, for upon them depend the powers of the Court over him, and his powers in relation to the action or question referred to him.

If the person to whom such an order is delivered is a layman, e.g. an engineer, architect, or surveyor, as distinguished from a lawyer, he will almost of necessity have to consult some legal adviser as to his powers and duties, and such adviser will, upon examining the order, ascertain whether it is made under s. 13 or 14 of the Arbitration Act or Order XXXVI. of the Rules of the Supreme Court, or whether it is a consent order for reference of the cause and all matters in difference under the inherent jurisdiction of the Court (see commentary on s. 14, Part II., post).

If the order of the Court is a consent order made under the inherent jurisdiction, the person designated in the order is an ordinary arbitrator acting under a submission, the terms of the submission being evidenced by the order of the Court.

If the order is made under s. 13 or 14 of the Arbitration Act or Order XXXVI. of the Rules of the Supreme Court, the referee is deemed to be an officer of the Court, and the powers of the Court over him, and his powers and duties respectively, may be summarised as follows.

[Note. This subject more properly belongs to Part II. of this work, relating to references under order of the Court, which are really part of the procedure in actions, and are therefore not arbitrations at all.

But, inasmuch as the same class of persons (generally laymen) as sit as arbitrators may be called on to sit as special referees, and the matters referred to them are similar to those which are often referred to arbitration in the proper sense of the term, it has been thought desirable to give this summary here.]

Powers of the Court over special referees.

The Court or a judge (which includes a Master) has under the Arbitration Act:

(1) Power to determine the remuneration to be paid to any special referee or arbitrator (s. 15 (3)).

(2) All the powers which are by the Arbitration Act conferred on the Court or a judge as to references by consent out of Court (s. 16). These powers include power to remit the matters referred or any of them for reconsideration (s. 10 (1)).

(3) Power to compel the attendance of witnesses (s. 18 (1)).

(4) Power to issue a writ of habeas corpus to bring up a prisoner for examination (s. 18 (2)).

(5) Power to direct a special case for the opinion of the Court to be stated on any question of law arising in the course of the reference (s. 19).

The powers of the Court over its officers are naturally very wide. Some of the rules of Court which relate in particular to the exercise of these powers are as follows:

The Court or a judge, when ordering an action or any question therein to be referred, may prescribe or regulate:

(a) The place of trial and adjournments thereof, and inspections or view by the referee (Order XXXVI., r. 48).

(b) The conduct of the reference or trial (Order XXXVI., rr. 49 and 50).

(c) The authority of the referee with respect to discovery and production of documents (Order XXXVI., r. 50).

(d) The entry of judgment for any or either party (Order XXXVI., r. 50).

(e) The exercise of the discretion of the referee as to costs (Order XXXVI., r. 55B).

The Court may also:

(a) Require any explanations or reasons from the referee upon questions submitted by him for the decision of the Court or upon which he has stated any facts specially (Order XXXVI., r. 52).

(b) Remit the action or any part for re-trial or further consideration to the same or any other referee (Order XXXVI., r. 52).

(c) Decide the question referred to any referee on the evidence taken before him, with or without additional evidence (Order XXXVI., r. 52).

The special referee's powers and duties.

(1) The referee may, subject to the order of the Court or a judge: (a) hold the trial at or adjourn it to any place which he may deem most convenient (Order XXXVI., r. 48);

(b) have any inspection or view, either by himself or with his assessors (if any), which he may deem expedient for the better disposal of the controversy before him (Order XXXVI., r. 48).

(2) Subject to any order of the Court or a judge ordering the reference, evidence must be taken, and the trial be conducted, in the same manner, as nearly as circumstances will admit, as trials are conducted before a judge (Order XXXVI., r. 49).

(3) Subject as aforesaid, the attendance of witnesses may be enforced by subpoena (Order XXXVI., r. 49).

(4) Subject as aforesaid, the referee has the same authority as a judge of the High Court with respect to discovery and production of documents and in the conduct of any reference or trial (Order XXXVI., r. 50). Under this rule the referee, subject as aforesaid:

(a) has power to grant a commission to examine witnesses (Hayward v. Mutual Reserve Association, [1891], 2 Q. B. 236);

(b) has power to make an order for inspection of premises in the sole possession of a party to the reference (Macalpine v. Calder, [1893] 1 Q. B. 545), but not for inspection of premises held in common with others (Coomes & Sons v. Hayward, [1913] 1 K. B. 150), or as joint tenant with others (Kearsley v. Philips (1883), 10 Q. B. D. 465).

(5) Subject as aforesaid, the referee has the same authority as a judge of the High Court to direct that judgment be entered for any or either party (Order XXXVI., r. 50); and when the whole action is referred for trial, the referee is bound to direct how judgment shall be entered (Order XL., r. 2).

(6) The referee cannot commit any person to prison or enforce any order by attachment or otherwise (Order XXXVI., r. 51).

(7) The referee may, before the conclusion of any trial before him, submit any question arising therein for the decision of the Court, or state any facts specially, with power to the Court to draw inferences therefrom (Order XXXVI., r. 52).

(8) The referee may at any stage of the proceedings, and must, if so directed by a Court or a judge, state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference (Arbitration Act, s. 19).

(9) The referee is not required, as official referees are, to sit de die in diem (Order XXXVI., r. 55c).

Costs. Fees of referee.

Note. The practice of official referees is to make no distinction between the costs of the action and the costs of the reference, as the costs of the action include the costs of the reference (Patten v. West of England Iron, Timber, and Charcoal Co., Ltd., [1894] 2 Q. B. 159); but special referees (who are not paid by the State as official referees are) have to consider the question of their fees. It is desirable, therefore, that they should give directions as to the costs of the reference and the amount of their fees (which form part thereof), as well as the costs of the action.

Formal requisites of awards under Lands and Railways Clauses Acts, &c.

8. Directions under general powers of arbitrator.

No implied power over person or land.
As to apprentice.

No power to award marriage.

That defendant shall keep plaintiff's goods.

As to salvage of goods burnt.

That one party shall beg the other's pardon.
As to property in dispute.

Awarding power of distress.

Regulating future enjoyment of property.

Acceptance of goods with deduction from price.

Directing illegal act.

Directing payment of money.

Fixing time of payment, &c.

Penalty.

Payment on Sunday.

Ordering payment of rent not due.

Directing executor to pay.

Directing payment to wife instead of husband and wife..

Directions as to payment of interest.

Compound interest.

Allowing interest contrary to practice of Court.

Future interest.

Interest as jury.

Interest on money borrowed for purchasing estate.

Interest on money deposited.

Interest to member of benefit building society.

Directions in cases of partnership.

Power to award dissolution.

Directions as to debts and credits of firm.

Making no provision for defining of assets.

Settling terms of dissolution.

When an indemnity may be directed.

Directions as to executing conveyances.

Specifying nature of conveyance.

Advisable to direct which party to prepare it.

Directing lease of charity estates.

9. Directions under special powers.

Discretion of arbitrator.

To enjoy property as before.

Directions as to nuisances.

Directions when presumed sufficiently certain.
Continuing damage up to date of award.

Regulating a stream.

Directing change from wood to iron machinery.

Directing payments to be made to third persons.

Exceeding authority.

Delegating authority.

Uncertain directions invalid.

10. Directions affecting strangers to submission.

Direction to pay money to stranger.

Though direction void, rest of award may be good..

Direction valid when for party's benefit.

Stranger not expressly authorised to receive.
Agent of firm.