PART XVI.

REFERENCE AND ARBITRATION.

CHAPTER I. REFERENCE FOR INQUIRY AND REPORT

UNDER ARBITRATION ACT, 1889, s. 13

II. REFERENCE FOR TRIAL UNDER ARBITRATION

PAGE

831

835

843

CHAPTER I.

REFERENCE FOR INQUIRY AND REPORT UNDER ARBITRATION ACT, 1889, s. 13 (a).

1. Application to refer Question for Inquiry and Report (b). [Formal parts as usual in application to Master] for an order that the following question [or questions], arising in this action [or matter], namely, [state the question or questions], be referred for inquiry and report to [E. J. P., Esquire] one of the Official Referees [or to a special referee to be agreed on by the parties, or to be named by the Master], pursuant to section 13 of the Arbitration Act, 1889 [and that, &c., adding any terms desired, such as a stay of other proceedings in the action pending the inquiry]; and that the costs of this application be

Dated [&c., as usual].

(a) By this section, "(1) Subject to rules of Court and to any right to have particular cases tried by a jury, the Court or a Judge may refer any question arising in any cause or matter (other than a criminal proceeding by the Crown) for inquiry or report to any official or special referee :

"(2) The report of an official or special referee may be adopted wholly or partially by the Court or a Judge, and if so adopted may be enforced as a judgment or order to the same effect."

(b) By R. S. C., Ord. LIV., r. 12A, "A Master of the Supreme Court may exercise all the jurisdiction and powers conferred upon the Court or a Judge by the Arbitration Act, 1889."

2. Affidavit in Support of above Application.

If the propriety of the proposed reference does not appear on the face of the pleadings or other documents in the action, the application should be supported by an affidavit, which may be made by the applicant's solicitor, showing concisely :

1. What is the question proposed to be referred, and that it arises in the action.

2. The reasons why such question ought to be referred.

3. If the application be that the reference be to a named special referee, that he is a fit and proper person, and willing to act.

4. If the application is made by the defendant, that it is made bonâ fide and not for purposes of delay.

3. Order upon above Application (c).

[Title of action, &c., as usual.]

Upon hearing [the solicitors on both sides] [and upon reading the affidavit of, filed the filed the day of, 19-] [and —] :

It is ordered that the following question [or questions] arising in this action, namely, [state the question or questions], be referred for inquiry (d), under section 13 of the Arbitration Act, 1889 [and that, &c., adding such further directions, if any, as may be given]; and that the costs of this application be.

and report to

of S. R., of

action by [Master

4. The Referee's Report (e).

[Title of action as usual.]

The Report

pursuant to the order made in the above-mentioned

-], dated the day of

19—.

Whereas by the said order it was ordered that the following question [or

(c) This form is framed from that given in R. S. C., App. K., No. 32.

(d) The order may, if the Master thinks fit, refer the question to a particular Official Referee. (See Ord. XXXVI., rr. 45, 46, 47, 47B.)

(e) By Ord. XXXVI., r. 52, "The referee may, before the conclusion of any trial before him, or by his report under the reference made to 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, and in any such case the order to be made on such submission or statement shall be entered as the Court may direct; and the Court shall have power to require any explanation or reasons from the referee, and to remit the cause or matter, or any part thereof, for re-trial or further consideration to the same or any other referee; or the Court may decide the question referred to any referee on the evidence taken before him, either with or without additional evidence as the Court may direct."

By the Arbitration Act, 1889, s. 15 (2), the report, unless set aside by the Court or a Judge, is equivalent to the verdict of a jury.

questions], arising in the said action, namely, whether [&c., stating the question or questions], should be referred to me, the said S. R., for inquiry and report, pursuant to section 13 of the Arbitration Act, 1889:

And whereas, in pursuance of the said order, I, the said S. R., have duly held the inquiry thereby ordered, and heard and considered the evidence, relative to the said question, given by the above-named parties and their respective witnesses before me at the said inquiry:

Now, in further pursuance of the said order, I, the said S. R., hereby [humbly] report to [this Honourable Court] that [&c., setting out the report, which will necessarily vary according to the circumstances of the case. The report should state concisely, but clearly, the referee's findings of fact upon each question referred to him].

In witness whereof I have hereunto set my hand this 19-.

Witness to the signature) W. S., of

of the said S. R.,

day of (Signed) S. R.

5. Notice by Referee of his Report (ƒ).

[Title of action as usual.]

Take notice that I have this day made my report to the Court upon the question [or questions] referred to me for inquiry and report by the order herein of [Master -], dated the

a copy of my said report is

day of

19-- [and that

annexed to this notice].

6. Notice of Motion, under R. S. C., Ord. XXXVI., r. 54, to vary Report (1).

[Title of action as usual.]

Take notice that, when the further consideration of this cause [or matter] comes on, the Court [or the Hon. Mr. Justice -] will be moved, by counsel for the [plaintiff], that [so much of] the report made

(f) By R. S. C., Ord. XXXVI., r. 53, “Whenever a report shall be made by a referee he shall on the same day cause notice thereof to be given to all the parties to the trial, or the reference before him, by prepaid post letter directed to the address for service of each party, who shall in due course of post be deemed to have notice thereof."

(g) By Ord. XXXVI., rr. 54, 55A, "Where under section 13 of the Arbitration Act, 1889, the report of the referee has been made in a cause or matter the further consideration of which has been adjourned, it shall be lawful for any party, on the hearing of such further consideration, without notice of motion or summons, to apply to the Court or Judge to adopt the report, or without leave of the Court or a Judge to give not less than four days' notice of motion, to come on with the further consideration, to vary the report or to remit the cause or matter or any part thereof for re-hearing or further consideration to the same or any other referee."

C.F.

53

herein by dated the day of 19- [as relates to the question whether, be varied by [state the variation desired], or that [so much of] this cause [or matter] [as relates to the said question] be remitted to [the said], for re-hearing or further consideration, on the ground that [state shortly the grounds of the application. It is advisable and convenient to state the grounds, though this is not strictly necessary. Conclude the notice as usual.]

7. Notice of Motion, under R. C. S., Ord. XXXVI., r. 55, to adopt, or vary

Report (h).

[Title of action as usual.]

Take notice that the Court will be moved, on

-day, the

day of

19-- [or upon the expiration of eight days from the service hereof], or so soon thereafter as counsel can be heard, by [Mr. of] counsel for the [plaintiff], that the report made herein by —, dated the

day of

-, 19--, be adopted and carried into effect by an order that [set out the order required] [or be varied by (set out the variation required)] [or that (so much of) this cause (or matter) (as relates to -) be remitted to (the said) for re-hearing or further consideration, on the grounds, that] [conclude the notice as usual].

(h) By Ord. XXXVI., rr. 55, 55A, "Where under section 13 of the Arbitration Act, 1889, the report of the referee has been made in a cause or matter, the further consideration of which has not been adjourned, it shali be lawful for any party by an eight days' notice of motion to apply to the Court to adopt and carry into effect the report of the referee, or to vary the report, or to remit the cause or matter or any part hereof for re-hearing or further consideration to the same or any other referee."

The application is made to a Divisional Court (Gower v. Tobitt, 39 W. R. 193).

CHAPTER II.

REFERENCE FOR TRIAL UNDER ARBITRATION ACT, 1889, s. 14 (a).

1. Application for Trial before Referee.

[Formal parts of summons, or notice of application, before Master, as usual] for an order that [by consent of the parties] the whole action [and counter-claim, or the following question or issue of fact, arising in this action, namely, whether (&c., stating the question)] be tried before [E. J. P., Esquire] one of the Official Referees of the Court [or before S. P., of or some other special referee to be agreed on by the parties, or to be named by the Master], pursuant to section 14 of the Arbitration Act, 1889, and that the costs of this application be [costs in the cause]. Dated [&c., as usual.]

2. Affidavit in Support of above Application (b).

[Title of action as usual.]

I, X. Y., of, solicitor for the above-named [defendant] C. D., make oath and say as follows::

1. The matters in dispute in this action consist wholly [or in part] of matters of account which cannot be conveniently tried in the ordinary way [or the matters in dispute in this action cannot be determined without a prolonged examination of documents, or without a scientific (or local) investigation, which cannot be made conveniently by trial in the ordinary way].

2. [Unless they clearly appear in the pleadings, it will be advisable here to state concisely both the nature of the action and the nature of the defence set up.]

(a) By this section, "In any cause or matter (other than a criminal proceeding by the Crown),

(a) If all the parties interested who are not under disability consent; or,

(b) If the cause or matter requires any prolonged examination of documents, or any scientific or local investigation, which cannot, in the opinion of the Court or a Judge, conveniently be made before a jury, or conducted by the Court through its other ordinary officers; or,

(c) If the question in dispute consists wholly or in part of matters of account; the Court or a Judge may at any time order the whole cause or matter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the Court." A Master has jurisdiction (Ord. LIV., r. 12A, ante, p. 831).

(b) No affidavit will be necessary, if it appears sufficiently from the pleadings or other documents in the action, that there ought to be a reference.