When is a Direction an “Award”? A Key Question in Fremantle Port Authority

Fremantle Port Authority v. Martin [2025] WASC 3001

An Interesting Valuation Arbitration

On 28 August 2025, His Honour Justice Lundberg handed down an interesting judgement arriving from a valuation arbitration. A significant portion of the judgement details the background facts that led to the application before His Honour. I don’t propose to review the facts here.

The Challenge to the Arbitrator’s Decision

His Honour was dealing with two matters under the Commercial Arbitration Act 2012. The Fremantle Port Authority was seeking to set aside what it said was an award made against it on two grounds. The first ground was on the basis that there was a lack of procedural fairness with respect to the making of the award, and the second ground related to the question of whether the arbitrator exceeded his jurisdiction. There was a further ground, but they are the two matters of most interest. The Fremantle Port Authority made two applications to the Court, but it’s convenient to deal with them as one, as a determination of both is set out in the single judgement of Justice Lundberg.

The Threshold Question: When is a Direction an “Award”?

The more interesting of the matters determined by Justice Lundberg in my opinion is the question of whether or not there had actually been an award. This arose because, as the background facts illustrate, there had been a lot of correspondence between the parties and the arbitrator about how and what he was going to determine. In particular, there were questions around whether there was to be a hearing, what submissions could and would be made for such a hearing.

It’s also of interest because it is a valuation arbitrations under a lease are a common practice.  Arbitrations of this nature are often limited to a single question. That is certainly what the Fremantle Port Authority was arguing.  The Fremantle Port Authority was arguing that, what appeared to be a set of directions made by the arbitrator for the finalisation of the arbitral proceedings was, in fact, an award because those directions had effectively resolved (at least) part of the dispute.  Therefore, the decision subject to the supervision of the Supreme Court under the Commercial Arbitration Act. If it was an award, the Fremantle Port Authority said that it was determined in the absence of sufficient procedural fairness.

The Court’s Finding: A “Partial Award”

Therefore, this question of whether or not it was an award was a threshold issue for Justice Lundberg to determine.  On face of the direction, one might think they were procedural in nature. However, after careful review of the background facts and the directions themselves, His Honour agreed with the Fremantle Port Authority that, because they were determinative of a relevant issue, it was a partial award and therefore was subject to the jurisdiction of the Supreme Court under the Commercial Arbitration Act.

Setting the Award Aside for Procedural Unfairness

Having satisfied himself that it was an award, His Honour was then able to determine a second question, and that was whether there was a material denial of procedural fairness. Again, His Honour agreed with the Fremantle Port Authority that there had been. Effectively, what His Honour determined was that, in determining how the question was to be determined, the Arbitrator had in fact determined the very question, because the orders he made presupposed the outcome. The award was therefore set aside.

Lessons for Practitioners and Arbitrators

There are other interesting aspects of the decision, but it is a useful reminder that it is important to pay close attention to the matters that are to be determined by arbitration and any agreement. And, for arbitrators, it’s important when creating procedural orders for the determination of a matter, those orders do not accidentally determine a part of the matter that might give rise to the supervision of the Supreme Court.