2025/00491694
| Date | Party | Submission |
|---|---|---|
| Applicant | Draft Notice of Appeal (PDF, 143.6 KB) | |
| 18/12/2025 | Applicant | Submissions (PDF, 264.1 KB) |
| 18/12/2025 | Applicant | Summons Seeking Leave to Appeal (PDF, 1.8 MB) |
| 24/4/2026 | Applicant | Submissions (PDF, 312.9 KB) |
| 22/5/2026 | Respondent | Submisssions (PDF, 369.7 KB) |
| 16/6/2026 | Applicant | Reply (PDF, 300.7 KB) |
| 6/7/2026 | Respondent | Reply (PDF, 258.9 KB) |
| 9/7/2026 | Applicant | Certification for Publication (PDF, 99.9 KB) |
| 9/7/2026 | Respondent | Certification for Publication (PDF, 92.1 KB) |
PROCEDURE – the applicant seeks leave to appeal from orders of Peden J that an application for preliminary discovery be stayed by reason of an arbitration clause and covenant not to sue between the Illawarra Hawks and the NBL. The dispute relates to an attempt by two NBL teams to obtain preliminary discovery from the NBL under r 5.3 of the UCPR to determine whether they have a proper basis to bring substantive claims before the Court of Arbitration for Sport. Three questions arose before Peden J. First, whether the application for preliminary discovery fell within the scope of the arbitration agreement contained in cl 14. Secondly, whether the application involved a "matter…capable of settlement by arbitration" for the purposes of s 7(2) of the International Arbitration Act 1974 (Cth) or Article 8 of the Model Law. Thirdly, whether the Court should stay the application for breach of the covenant not to sue in cl 14.3. Justice Peden held that the application for preliminary discovery did not fall within the scope of the arbitration agreement and did not involve the determination of a "matter…capable of settlement" by the Court of Arbitration for Sport. Nevertheless, her Honour concluded that the proceedings must nevertheless be stayed under s 67 of the Civil Procedure Act 2005 (NSW) because bringing the application breached the broad covenant not to sue in cl 14.3, which precluded the clubs from instituting court proceedings relating to "any other matter" regarding their participation in the NBL. The applicants seek leave to contend that her Honour erred in (i) the approach taken to construing the covenant not to sue (as distinct from the arbitration agreement), (ii) understanding the purpose of the covenant not to sue as prohibiting proceedings being instituted in any form rather than where a party seeks to circumvent the arbitration agreement, and (iii) refusing to accept that a discretion to refuse the stay existed despite arbitration agreement.
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