Arbitration-Award-Summoning arbitrators to explain award-Right to appeal
from iudgment enforcing award-Misconduct of arbitrators

When arbitrators have made an award upon a reference 'by the court,
no party is entitled to have the arbitrators summoned to court in order
to explain their award and how they arrived at their decision. There is
no appeal against a decision of the court in accordance With the award
of the majority of the arbitrators, but at an earlier' stage a party may
appeal against the court's refusal to remit an award for reconsideration, ot
a refusal to, set aside an award on the ground o~ corruption or misconduct.

Civil Justice Ordinance 1900, ss. 96, 98, 99.

Appeal

March 1, 1920. Dun, C.J.: This is an appeal from. decision
of the High Court in accordance with the award of the majority of
the arbitrators in a dispute referred to arbitration by the, court ••. In
my opinion this appeal must be dismissed.

It was argued first that the arbitrators have not answered the
whole of Question 1, and therefore the court oughf to have remitted

• Court: Dun C.J., Fleming and Williamson JJ.

the award for reconsideration uncer section 96 of the Civil Justice
Ordinance 1900¹• The arbitrators say in effect that they have
answered the question to the best of their ability and I think the'
judge exercised his discretion under the section rightly in refusing
to remit the award for reconsideration. The second argumentis that
in answering Question 5 the arbitrators went beyond the question
submitted to them. I think that is possibly so if you look at
Question 5 and its answer alone, but if there is anything in the
answer to Question 5 which is beyond the scope of that question,
it is within the scope of Question 4, and so I think the learned judge
was right in not remitting the award on that ground.

The third point is that the defendant was entitled to have the
arbitrators summoned to the court in order to explain their award
and how they arrived at their decision. Such a procedure would in
my opinion lead to grave abuse; it is an attempt to subject arbitrators
to cross-examination as to the grounds of their award, and to make
the court examine the propriety of the award and in fact rehear the
case after the award is .given, I do not say that the court cannot

, call upon the arbitrator fOT explanations in proper cases, but a party
to the action has no right to demand that it should do so. In this
case the learned judge was perfectly right in refusing to do so.

The fourth point was that in this case the date of. the dissolution
of the partnership had not been determined by the court before the
reference to arbitration, and the arbitrators \yere not specifically
asked to determine it; therefore the court could do so after the award
and should have done so and, I suppose, either remitted the award
for reconsideration, or have modified the award itself, if it included
transactions which took place after the dissolution. I do no~ agree;
Question 4 is "how the partnership property stands at the present
moment, and to what amount is each of the parties entitled?" In
order to answer that question they must consider what transactions
are to be included in the partnership accounts, and if they include

1 Sections 96 and 98 of the Civil Justice Ordinance 1900 are in substantially
the same terms as sections 160 and 162 (1) of the Civil Justice Ordinance
1929 respectively. Section 99 of the former ordinance corresponds to sub-
section (2) of section 162 of the latter, and is as follows:

·~99. Such decision shall not be open to appeal and shall be at once
carried out, and no Court shall entertain any suit for the purpose of setting
it aside or against the arbitrators on account of their award."

certain transactions, they presumably come to the conclusion that
these transactions occurred before the dissolution. I, therefore think
the learned judge was. right in refusing to go into the question when
the partnership was dissolved after the award was made.

As regards section 99 of the Civil Justice Ordinance 1900, it
seems to me to be impossible to present this appeal in such a way
as to get round it. The door to an appeal seems to me to be banged"
bolted and barred by this section, and though I do not wish to say
that there never can be an appeal in a case in which judgment has
been given in accordance with an award, I do not think there can
be one in this case. Therefore, this appeal must be dismissed.

Williamson, J.: I agree and have nothing to add.

Fleming, J.: I also think the appeal' should be dismissed. Sec-
tion 98 of the Civil Justice Ordinance says that, subject to two
conditions, the court shall decide in accordance with the award of the
majority of the arbitrators, It is not disputed that the court has
decided in accordance with the majority of the arbitrators, and it
therefore remains only to consider whether the two conditions have been satisfied.                                 

The first condition is that the court sees no cause for remitting
the award for reconsideration. The court did in fact see 'no cause,
and the first condition thus appears to be satisfied. The second
condition is that no successful application was made to set aside the
award. It does not appear that any application, at all was made
to set aside the award, and if it was, it was certainly unsuccessful. The
second condition also has therefore been satisfied. That seems to
end the matter. The court had no alternative under section 98 but
to decide in accordance with the award.

Section 99 no doubt looks very forbidding, but the defendant
might in spite of it have had his remedy in this court had he. set
about it in the proper way. I do not know whether in his view
there was no appeal from the court's. exercise of its discretion under
section 96, but it must at all events have been obvious that an appeal
would lie from a refusal of an application under section 97 to set
aside the award. 'the award was before the court and the parties
early in December, and judgment was not delivered until December
30. There was therefore ample time for such an application and
the lodging of an appeal. Defendant's counsel says he did not like
to impute anything so strong as misconduct to the arbitrators until