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ALPHABETICAL LIST OF CASES CITED.
Turner v. Swainson, 1 M. & W. 572
Turnock v. Sartoris (1890), L.R. 43 Ch. D. 150
Tribe v. Upperton, 3 A. & E. 295
Trades and Industrial Hall, In re, 11 N.S.W. L.R. 38
Vigney v. Bignold, L.R. 20 Q.B.D. 172
Waller v. King, 9 Mod. 63
Ward v. Pilley, L.R. 5 Q.B.D. 427
Wallis v. Hersh, 6 C.B. N.S. 316
Wakely v. Llanelly Railway and Dock Co., 34 Beav. 245
Wicks v. Cox, 11 Jurist 542
Willesford v. Watson, L.R. 8 Ch. 473
Whitmore v. Smith, 7 H. & N. 824
ARBITRATION ACT, 1892.
55 VICT. NO. XXXII.
An Act to amend and consolidate the law relating to
WHEREAS it is expedient to amend and Preamble.
consolidate the law relating to Arbitration : Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:
References by Consent out of Court.
have effect as
1. A submission (a), unless a contrary intention is Submission to expressed therein, shall be irrevocable (b), except by cable, and to leave of the Court or a Judge, and shall have the same an order of effect in all respects as if it had been made an order of Court.
(a) A submission is defined by s. 27-"A written agreement to submit present or future differences to arbitration whether an arbitrator is named therein or not." As to imperfect submissions. [Mason v. Haddan; Randell, Saunders & Co. v. Thompson;
55 Vict. No. 32.
Walters v. Morgan; Rainforth v. Hamer; Campbell v. Vickery; Deutsche, Springsteffe, Gassellchaft v. Briscoe. In the Caerleon Tinplate Company v. Hughes and another (v. 7 Times Law Reports p. 619), similar sections (Nos. 1 and 27) were considered. Mr. Justice Denman: "Section 27 expressly provided that a submission to arbitration should be taken to mean an agreement in writing—that is an agreement in writing signed by either or both the parties or by an agent on behalf of both. . . The sold note contained no arbitration clause; it was therefore no submission to arbitration which could be enforced within the Act." (In re Lewis, 1 Q.B.D. 724, cited and approved.) [Goodson v. Brooke.]
Where an agreement to refer disputes to arbitration provides for a reference to three arbitrators, one to be appointed by each of the parties, and one of the parties refuses to appoint an arbitrator, the Court has no power, either under or apart from the Arbitration Act, to order him to do so.
In re an intended arbitration between Smith & Service and Nelson & Sons, L.R. Q.B.D. 25, p. 545, [where an order of the Queen's Bench Division [Lord Coleridge, C.J., and Wills, J.], affirming an order in Chambers that the appellants should within seven days appoint an arbitrator under an arbitration clause in a charter party, was successfully appealed from] Bowen, L.J.: "I may remark that the word 'submission' and the words 'revocation of submission' are words which have been used with some inexactitude both in the cases and in the text books. There may be an agreement to refer generally without naming the arbitrators; such an agreement was always irrevocable, and an action would always lie for its breach although the Court could not
compel either of the parties to proceed under it. 55 Vict. No. 32. There may be an agreement to clothe a particular arbitrator with authority, and if one of the parties revoked that particular arbitrator's authority and refused to submit to him, he could not be compelled to proceed. In such a case, though not with exactitude, one might probably talk of revocation of the submission and of the submission as revocable, although it was in truth a revocation of the authority of that arbitrator; the party does not revoke the agreement to refer, but revokes the authority which he has given to the arbitrator. But so far as the latter words of the clause are concerned, and shall have the same effect in all respects as if it had been made an order of the Court,' the meaning must be that the submission, whether it be a general agreement to refer or not, is to have effect as would have been given to it before the statute by an act of parties making it a rule of Court. But making a submission a rule of Court never gave the power of compelling a party to go on and present himself before some arbitrator when the arbitrators were not named."
As to power of attaching under old law, see judgment of Willes, J., in Re Rouse & Meier.
When submission must be under seal. [Hutchinson v. Whitfield.]
As to submission by corporation when not under seal. [Faviell v. Eastern Counties Railway Co.]
By a company limited under Companies Act. [Gale v. Wingello Coal Mining Co., Ltd.]
See s. 68, 37 Vic. No. 19, and In re Trades and Industrial Hall.