Braddon & Braddon
[2018] FCCA 1845
•9 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRADDON & BRADDON | [2018] FCCA 1845 |
| Catchwords: FAMILY LAW – Arbitration – registration of Arbitral Award – application to set aside Arbitral Award – where it is asserted that the Arbitrator has made an error of law – consideration of whether the Arbitral Award is “unreasonable or plainly unjust” – scope of review of Arbitral Award – whether review “on questions of law” is confined to “error of law” – adequacy of reasons given by Arbitrator – whether the Arbitral Award adequately or tolerably disclosed the Arbitrator’s reasoning. |
| Legislation: Family Law Act 1975, ss.10M, 13A, 13E, 13F, 13G, 13H, 13J, 13K, 75(2), 78, 79, 81, 117 Family Law Regulations 1984, regs.67B, 67F, 67G, 67I, 67L, 67O, 67P, 67Q Commercial Arbitration Act 2010 (NSW) Commercial Arbitration Act 1984 (NSW), s.38 International Arbitration Act 1974 (Cth) International Arbitration Amendment Act 2010 (Cth) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, reg.21 The Married Women’s Property Acts 1890‑1952 The Married Women’s Property Act 1882 (Imp) |
| Cases cited: Whooten & Frost (Deceased) [2017] FamCA 975 Yesodei Hatorah College Inc v The Trustees of Elwood Talmud Torah Congregation [2011] VSC 622 House v. The King (1936) 55 CLR 499 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Wednesbury Corporation [1948] 1 KB, 228 Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37 TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645; [2001] HCA 16 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 Gordian Runoff Ltd v Westport Insurance Corporation (2010) 267 ALR 74 Bremer Handelsgesellschaft mbH v Westzucker GmbH (No 2) [1981] 2 Lloyd's Rep 130 Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 346 Stanford v Stanford [2012] HCA 52 U & U [2002] FLC 93-112 Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21 Wirth v Wirth (1956) 98 CLR 228; [1956] HCA 71 R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 Hepworth v Hepworth (1963) 110 CLR 309; [1963] HCA 49 Other Articles: Family Law Council, Arbitration in Family Law, 1988 Family Law Council, The Answer from an Oracle: Arbitrating Family Law Property and Financial Matters, Discussion Paper (2007) Administrative Review Council, The Scope of Judicial Review, Discussion Paper (2003) Keane, Chief Justice Patrick, Judicial support for arbitration in Australia (FCA) [2010] FedJSchol 25 accessible at: Mustill. M, Boyd. C, ‘The Law and Practice of Commercial Arbitration in England, (1982) |
| Applicant: | MR BRADDON |
| Respondent: | MS BRADDON |
| File Number: | PAC 3953 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 18 June 2018 |
| Date of Last Submission: | 18 June 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 9 July 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Stojanovic of Stojanovic Solicitors |
| The Respondent appeared in person |
ORDERS
Affirm the Arbitral Award dated 22 January, 2018 and Registered by Order 1 March, 2018.
Dismiss all extant Applications and remove all issues from the list of matters awaiting hearing.
Each party shall pay their own costs of and incidental to these proceedings (being proceedings commenced by an Application in the Arbitration filed 7 March, 2018).
IT IS NOTED that publication of this judgment under the pseudonym Braddon & Braddon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3953 of 2015
| MR BRADDON |
Applicant
And
| MS BRADDON |
Respondent
REASONS FOR JUDGMENT
This Judgment determines an Application in an Arbitration filed 7 March, 2018.
The Application is made following the conduct of property Arbitration between parties, Mr Braddon and Ms Braddon. An Arbitral Award was delivered following Arbitration and registered by the Court.
In both this Application and in the substantive proceedings in which the Arbitration was conducted, Mr Braddon is the Applicant and Ms Braddon the Respondent.
Mr Braddon is 74 years of age having been born 1943. Ms Braddon is 77 years of age having been born 1941.
Mr Braddon and Ms Braddon were married to each other 1967. The relationship between the parties terminated in 1993, although the parties have never divorced. The marriage subsisted for a period of 26 years. The parties have been separated for a period of 25 years.
Material considered
In dealing with the proceedings I have read and considered:
a)The Application of Mr Braddon filed 7 March, 2018;
b)The Application and Response filed in the substantive proceedings (which I shall discuss next);
c)The various Orders made by the Court during the currency of both the substantive proceedings and these proceedings;
d)The correspondence upon the Court file relating to submission and registration of the Arbitral Award and as will be identified below;
e)The Applicant’s Written Submissions dated 15 June, 2018.
In addition to the above materials, I also received further, oral submissions on the Applicant’s behalf at hearing 18 June, 2018.
The substantive proceedings
The substantive proceedings involved competing Applications for property adjustment Orders and declarations.
I do not propose to discuss the facts of the substantive proceedings. Clear findings of fact were made by the Arbitrator, many by consent, and there is no challenge to any finding of fact so made.[1]
[1] Had there been any challenge to the Arbitrator’s findings of fact, then examination of those findings may have been necessary, accepting that for the Arbitrator to have proceeded to determine the dispute based on findings not available from or contrary to the evidence may have given rise to an arguable error of law.
The substantive proceedings were commenced by Mr Braddon by an Application Initiating Proceedings filed 13 August, 2015. That Application sought that an unencumbered parcel of real estate at Property A, NSW (of which Ms Braddon is the sole registered proprietor) be sold and the nett proceeds of sale be divided equally between the parties. No other adjustment of interests in property were sought. The Application has never been amended.
A Response was filed by Ms Braddon on 13 October, 2015. That Response sought that Mr Braddon transfer to Ms Braddon a one-half interest in a parcel of real estate in (country omitted) and that Ms Braddon, as the sole registered proprietor of the unencumbered parcel of real estate at Property A, NSW, retain her interest in that property. The plea with respect to the (country omitted) property was not ultimately pressed as the issue was determined in Ms Braddon’s favour in separate proceedings before a (country omitted) Court. No other adjustment of interests in property were sought. The Response has never been amended.
At the first Court event 14 October, 2015, a number of Orders were made regarding disclosure and the commissioning of evidence in the nature of valuations. The parties were otherwise referred to a Conciliation Conference to receive the assistance of a Registrar in resolving their dispute.
The parties attended a Conciliation Conference with a Registrar 26 November, 2015. The Bench Sheet produced by the good Registrar following that Conference notes that the matter did not settle and recorded that:
…the major issues in this case are as follows:
[1] The value of the property in (country omitted);
[2] The condition of the (country omitted) property…
[3] What happened to the proceeds of sale of the Property B property…
[4] The lengthy post separation period (ie. [then] 22 years) and what each party has paid and received (rent-wise) in that period in relation to both the Property A property and the (country omitted) property.
The references above to property in (country omitted), Property B and Property A can be easily explained. It is common ground between the parties that, at separation, they owned a parcel of real estate at Property B and a parcel of real estate in (country omitted). The parties still hold the parcel of real estate in (country omitted) and that property and its ownership has been the subject of separate proceedings before a (country omitted) Court. On that basis and with the consent of the parties, the (country omitted) property was not the subject of the Arbitrator’s Award.
The Property B property was sold shortly following the separation of the parties (and at a time that Ms Braddon was resident in (country omitted) and with Mr Braddon acting as a trustee for sale of the property on behalf of both parties). A portion of the proceeds of sale of the Property B property were applied to purchase the Property A property of which Ms Braddon is the sole registered proprietor.
Following the Conciliation Conference and on 4 February, 2016, the matter returned before the Court. At that time hearing dates were sought but were not available. The matter was adjourned for call-over to 9 September, 2016.
From call-over 9 September, 2016 the matter was listed to trial. The hearing dates allocated to the matter were 20 and 21 September, 2017. Directions for the filing of evidence were made.
On 25 May, 2017 the matter was listed for compliance check. Neither party had, by that date, filed their trial Affidavits (although, in fairness to the Respondent, the date by which she was to file had not yet passed). The parties sought, by consent, that the matter be referred to Arbitration. Orders referring the matter to Arbitration, pursuant to section 13E of the Family Law Act 1975 (hereinafter “Family Law Act”) were made in the following terms:[2]
[2] A default appointment of an Arbitrator by the Proper Officer of the Australian Institute of Family Law Arbitrators and Mediators (AIFLAM) was made as Arbitration can only be conducted by an Arbitrator as defined in section 10M of the Family Law Act. Regulation 67B of the Family Law Regulations 1984 sets out the requirements for accreditation as an Arbitrator, including the maintenance of a list of Arbitrators by the Law Council of Australia or “by a body nominated by the Law Council of Australia”, that body being AIFLAM. The qualification of the Arbitrator who has made the Award in this case is not a matter of controversy.
2. Pursuant to section 13E of the Family Law Act 1975, the parties are referred to Arbitration, to be conducted by an Arbitrator agreed between the parties and accredited by AIFLAM or failing agreement between the parties as to an Arbitrator, within 14 days, an Arbitrator nominated and appointed by the proper officer AIFLAM.
3. Each party shall immediately upon an Arbitrator being agreed or appointed:
a. Do all things, sign all documents and give all consents, authorities and instructions as are necessary to retain that Arbitrator;
b. Each party shall be responsible for ensuring that a copy of all documents upon which they wish the Arbitrator to consider (sic) are provided to the Arbitrator in a timely fashion and not less than 7 days prior to the date fixed for Arbitration;
c. Attend at such times, dates and places as nominated by the arbitrator;
d. Pay one half of any fees charged by the Arbitrator.
4. If either party wishes to register the Arbitrator’s Award, then they shall make Application to the Court in the appropriate form within 7 days of the delivery of the Arbitral Award and at the expiration of 28 days from the date of filing of that Application and absent either party bringing to the attention of the Court (in accordance with Federal Circuit Court protocols for communication with Chambers) any reason why the Award should not be registered, then the Award shall, at the expiration of that period, be registered and, further, in the event that any matter is brought to the attention of the Court as to why the Award should not be registered, then the proceedings shall be relisted so that such matters can be addressed in open Court.
Prior to Registration of the Arbitral Award (as discussed below), no matters were raised with Chambers as to why the Arbitral Award should not be registered nor any request made to either not register the Award or to relist the proceedings to allow any such matters to be raised.
The proceedings were adjourned for further mention and directions to 15 December, 2017. It was anticipated that Arbitration would be completed within that period and an Arbitral Award made and registered. However, the matter was further adjourned, by an Order made by consent in Chambers, to 11 May, 2018.
Arbitration occurred on 27 November and 18 December, 2017. It is unclear whether an Arbitration Agreement was entered into prior to Arbitration. Nothing turns upon this as no submission is put founded upon the existence or otherwise of an Arbitration Agreement or breach of or non-compliance with any suggested term of an agreement. Entering into an Arbitration Agreement prior to Arbitration is permissive rather than mandatory (see regulation 67F of the Regulations).
It is also unclear what material was before or considered by the Arbitrator. Again, nothing turns upon this as no submission is put founded upon a failure to consider specific material or a consideration of extraneous material. There are few documents upon the Court file. They may or may not have been considered. The Arbitral Award does make clear that each of the parties and one of the adult children of the parties “gave evidence”. The form of that evidence, whether in writing, oral or a combination of the two, is not specified within the Arbitral Award (although this is not a criticism).
The parties would appear to have agreed, for the purpose of Arbitration, that their respective interests in property comprise their respective ownership or entitlements with respect to the Property A and (country omitted) properties valued, respectively, at $425,000 and $250,000. As indicated above, the (country omitted) property is, as a consequence of Orders made by a (country omitted) Court, held in the joint names of the parties.[3] Title of the Property A property is held in the sole name of Ms Braddon.
[3] Prior to those proceedings in (country omitted), Mr Braddon was the sole registered proprietor of that property.
The Arbitral Award was delivered 22 January, 2018.
By correspondence 22 January, 2018, the legal representatives for Ms Braddon forwarded a copy of the Arbitral Award to Chambers “…to be registered by filing in the Registry”.
By correspondence from my Associate to the legal representatives for Ms Braddon dated 24 January, 2018 that which was required to apply for registration of the Arbitral Award was outlined.[4]
[4] Being the filing and service of a Form 8 Application to Register Arbitration Award and the passage of a period of 28 days after service of the Application to Register Arbitration Award to allow the other party to “…bring to the attention of the court any reason why the award should not be registered” (see section 13H of the Family Law Act and regulation 67Q of the Regulations).
A Form 8 Application was filed 25 January, 2018. That Application was served upon the then legal representatives for Mr Braddon.[5] The Form 8 Application was served personally upon the legal representatives for Mr Braddon[6] on 31 January, 2018 as deposed to by an Affidavit of Service filed 16 February, 2018.[7]
[5]Those legal representatives subsequently filed a Notice of Withdrawal. However, the Notice of Withdrawal was not filed until 29 March, 2018, being well outside of the 28 day period to oppose registration of the Award (i.e. the requirements of regulation 67Q of the Regulations might be so described) and after the Application dealt with by this Judgment had been filed by those legal representatives.
[6] By reference to rule 6.03 of the Federal Circuit Court Rules 2001, personal service (rule 6.06 of the rules) by hand was not necessary. The legal representatives for Mr Braddon had, by their Notice of Address for Service contained within the Application Initiating Proceedings, indicated that service would be accepted by post or DX. No issue as to service is raised nor could it be.
[7] On the basis that service occurred 31 January, 2018, the 28 day period during which Mr Braddon might have sought to have brought to the attention of the Court any reason why the Award should not be registered expired 1 March, 2018 (not including the date of service or the 28th day thereafter). As a consequence and absent any reason as to why the Award should not be registered having been raised with the Court, regulation 67Q(4) of the Regulations required that the Arbitral Award be registered.
On 14 February, 2018, correspondence was forwarded by Chambers confirming receipt of the Form 8 Application and Affidavit of Service and confirming that the Arbitral Award would be registered, pursuant to the rules (sic),[8] at the expiration of the 28-day period.
[8] Registration, in fact, occurs pursuant to the Family Law Regulations 1984.
By Order made in Chambers 1 March, 2018, the Arbitral Award was registered. The Order was engrossed and issued forthwith upon the Order being made and the Order posted to the Commonwealth Courts Portal.
Also, on 1 March, 2018 and after the above Order registering the Arbitral Award had been made, the Application the subject of this determination was received by the Court. The Application had been forwarded to the Court in hard copy under cover of a letter 28 February, 2018 and is date stamped as received by the Registry 1 March, 2018, being the 29th day after service of the Form 8 Application. The correspondence and accompanying Application would appear to have been forwarded to the Registry by DX.
The Application the subject of this determination was not, in fact, filed by the Registry until 7 March, 2018.[9]
[9] I am satisfied that this circumstance can be distinguished from Whooten & Frost (Deceased) [2017] FamCA 975 as no active attempt was made in this case to file the Application at an earlier time or to prosecute the filing of the Application in a timely fashion.
The subject Application was first listed 30 April, 2018 and was, on that date, adjourned for hearing to 18 June, 2018. In dealing with the matter on 30 April, 2018, the legal representatives for Mr Braddon addressed the Application on the basis that registration of the Arbitral Award was opposed, whereas, the Arbitral Award had, in fact, been registered. Immediately following the conclusion of the matter that day correspondence was forwarded by Chambers to both parties[10] or their legal representatives, confirming that the Arbitral Award had, in fact, been registered 1 March, 2018.
[10] Although apparently addressed, in the case of Mr Braddon, to his former legal representatives notwithstanding that those legal representatives had filed a Notice of Ceasing to Act 29 March, 2018 and Mr Braddon’s current legal representatives had filed a Notice of Address for Service 28 March, 2018.
By email correspondence dated 4 May, 2018, Mr Braddon’s present legal representative indicated that they had sighted the Orders issued 1 March, 2018 and concluded “I therefore assume that the Arbitration Award was registered on 1 March 2018”.
Relief sought
The Application now moved upon seeks relief in the following terms:
a. That there is an error of law in the Arbitration Award dated 22 January, 2018;[11]
b. That the Arbitration Award dated 22 January, 2018 be set aside;[12]
c. That the Court consider and determine the outstanding property matters in dispute between the parties in accordance with s.79(4) Family Law Act.[13]
[11] The Application does not identify what the alleged error of law (singular by the terms of the Application) is. The specific error or errors of law alleged were not articulated at hearing.
[12] The terms of this Order would suggest that at the time the Application was prepared that the Arbitral Award had been registered. It had not been. The Application is dated 28 February, 2018 and the Arbitral Award was registered 1 March, 2018. However, certainly at the date of filing of the Application, 7 March, 2018, the Arbitral Award had been registered.
[13] This assumes that the Court would, as it were, re-exercise discretion. Whilst the issue need not be determined, it would seem that such a course is open, if the Arbitral Award were set aside, as there is no controversy as to the Arbitrator’s findings of fact. However, the alternate course, and perhaps preferable course would be to remit the matter to the Arbitrator or a different Arbitrator to be determined in accordance with law (see, for example, Yesodei Hatorah College Inc v The Trustees of Elwood Talmud Torah Congregation [2011] VSC 622). There can be no issue that the Court has the ability to determine questions of law (section 13G of the Family Law Act as regards referral of such questions by the Arbitrator and section 13J of the Family Law Act as regards determination of questions of law on review) and to make Orders to facilitate Arbitration (section 13F of the Family Law Act). The issue may arise, though need not be determined in this case, as to whether a referral of the totality of the dispute to Arbitration pursuant to section 13E of the Family Law Act renders it either preferable to remit the matter to Arbitration or undesirable for jurisdiction to be exercised by the Court if an Arbitral Award is set aside. It could only be a matter of preferability or appropriateness and section 13J(2)(b) of the Family Law Act makes clear that upon review of an Arbitral Award, the Court may make a decree, including a decree “affirming, reversing or varying the award” (although the Order pursuant to section 13E of the Family Law Act, made with the consent of the parties and referring the matter to Arbitration, remains in force).
On 18 June, 2018, the matter proceeded on the basis of submissions alone. Mr Braddon appeared and was legally represented. Ms Braddon appeared without legal representation and was assisted by her daughter both in interpreting and speaking, albeit briefly, on behalf of Ms Braddon.
Based upon the above chronology, it is necessary to consider a number of matters as to the basis upon which the Application proceeds.
Legislative bases of the Application
The Application as filed seeks that the Arbitral Award be set aside. This might suggest an acceptance that the Arbitral Award had been registered as at the date of filing of the Application. However, such an acceptance is not expressed within the Application and a number of additional matters require consideration.
Firstly, the Application asserts (Part C, paragraph 4) that “the respondent was served with an unsealed copy of the Application to register Arbitral Award (sic)…”. The Affidavit of Service is silent as to whether the Application that was personally served on 31 January, 2018 was sealed or unsealed.
Regulation 67Q of the Regulations is in the following terms:
FAMILY LAW REGULATIONS-REG 67Q REGISTRATION OF AWARDS
Registration of award (Act s 13H)
(1) For section 13H of the Act, an application to register an award made in an arbitration must be in accordance with Form 8.
(2) The applicant must serve a copy of the application on each other party to the award.
(3) A party on whom an application is served may, within 28 days after service, bring to the attention of the court any reason why the award should not be registered.
Note: An example of a way of bringing a matter to the attention of the court is by filing an affidavit.
(4) If nothing is brought to the court's attention under subregulation (3), the court must register the award.
(5) If a party brings a matter to the court's attention under subregulation (3), the court must, after giving all parties a reasonable opportunity to be heard in relation to the matter, determine whether to register the award
Regulation 67Q of the Regulations does not specify that a sealed copy of the Application must be served. A Form 8 Application is not allocated a Court event or return date.
Whilst the point was not taken at the hearing of the Application, it has some relevance. The period of 28 days in which a party might “…bring to the attention of the court any reason why the award should not be registered” could not reasonably be expected to commence until such time as that party was aware that the Application had, in fact, been filed with the Court (such filing being the trigger for the commencement of that period). Any concern that Mr Braddon may have been unaware that the Form 8 had, in fact, been filed is obviated by the above correspondence from Chambers. I am satisfied that Mr Braddon and his then legal representatives were aware that the Application had been filed.
The basis upon which the matter is approached might vary depending upon which legislative power is to be exercised.
The Court’s powers following registration of an Award are set out at sections 13J and 13K of the Family Law Act as follows:
FAMILY LAW ACT 1975 - SECT 13J
Family Court or Federal Circuit Court can review registered awards
(1) A party to a registered award made in section 13E arbitration or relevant property or financial arbitration may apply for review of the award, on questions of law, by:
(a) a single judge of the Family Court; or
(b) a single judge of the Family Court of a State; or
(c) the Federal Circuit Court of Australia.
Note: There may be Rules of Court providing for when, and how, an application for review of the award can be made (see paragraph 123(1)(sf)).
(2) On a review of an award under this section, the judge or Federal Circuit Court of Australia may:
(a) determine all questions of law arising in relation to the arbitration; and
(b) make such decrees as the judge or Federal Circuit Court of Australia thinks appropriate, including a decree affirming, reversing or varying the award.
FAMILY LAW ACT 1975 - SECT 13K
Family Court and Federal Circuit Court may set aside registered awards
(1) If an award made in section 13E arbitration or relevant property or financial arbitration, or an agreement made as a result of such arbitration, is registered in:
(a) the Family Court; or
(b) the Federal Circuit Court of Australia; or
(c) a Family Court of a State;
the court in which the award is registered may make a decree affirming, reversing or varying the award or agreement.
(2) The court may only make a decree under subsection (1) if the court is satisfied that:
(a) the award or agreement was obtained by fraud (including non-disclosure of a material matter); or
(b) the award or agreement is void, voidable or unenforceable; or
(c) in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or
(d) the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.
From the outset, it must be made clear that none of the grounds relevant to section 13K of the Family Law Act are agitated and, thus, the section need not be further considered.[14]
[14] This is expressly conceded at paragraph 36 of the Applicant’s Written Submissions.
The ability to “bring to the attention of the court any reason why the award should not be registered” prior to registration of an Arbitral Award is provided by regulation 67Q of the Regulations. The regulation is non-specific as regards the reasons which might be raised in opposition to registration of the Arbitral Award. The two relevant subparagraphs, being subparagraphs (3) and (5), provide:
(3) A party on whom an application is served may, within 28 days after service, bring to the attention of the court any reason why the award should not be registered.
(5) If a party brings a matter to the court's attention under subregulation (3), the court must, after giving all parties a reasonable opportunity to be heard in relation to the matter, determine whether to register the award.
The note to subsection (3) provides:
An example of a way of bringing a matter to the attention of the court is by filing an affidavit.
Mr Braddon has not filed an Affidavit in support of this Application. The only document filed is the subject Application. However, as neither the Family Law Act or the Regulations require that an Affidavit be filed, I am not concerned as to the absence of an Affidavit. It might be argued that the filing of an Affidavit, whilst not mandated, is the appropriate means by which to “bring to the attention of the court any reason why the award should not be registered”. Filing an Affidavit would more assuredly afford due process by clearly setting out, for the benefit of the Court and all other parties, the evidence relied upon (and suggested to base reason for non-registration). However, it is to be remembered that an Affidavit is intended to lead evidence and not to place submissions before the Court. Accordingly, some consideration of the “reasons” suggested to recommend or support non-registration or review is required to determine how such reasons might be raised and whether the means of “bring [such reasons] to the attention of the Court” is adequate to afford due process.
The legal representatives for Mr Braddon assert (page 2 points 9 and 10 of the Written Submissions) that the broad and non-specific reference in regulation 67Q(3) of the Regulations, being:
A party on whom an application is served may, within 28 days after service, bring to the attention of the court any reason [emphasis added] why the award should not be registered
provides a limitless basis for jurisdiction such that the Court must, in effect, conduct a hearing de novo and review all evidence, findings fact and application of principle, in effect hearing the case for itself. I reject that submission.
In the absence of any clear specification or definition, within either the Family Law Act or the Regulations, of reasons which support non-registration of an Arbitral Award, I am satisfied, that those reasons should be approached from the perspective of and upon the same basis as, the grounds for reviewing or seeking to set aside a registered Award pursuant to sections 13J and 13K of the Family Law Act together with any complaint as to non-compliance with the regulations.
Accordingly, I am satisfied that reasons which might validly be advanced and argued as supporting non-registration would include the following.
An error of law
This ground of review is provided by section 13J(1) of the Family Law Act. The power given to the Court is broad. The section does not, in fact, specify that review is on the basis of an “error” of law but rather a “…review of the award, on questions of law…” It would, however, be nonsensical to suggest that an Award would be reviewed on the basis of anything but an error of law.[15]
[15] This would be supported, for example, by the discussion of the issue undertaken by the Family Law Council in the 1988 Report, Arbitration in Family Law, and again in the 2007 discussion paper: The Family Law Council, The Answer from an Oracle: Arbitrating Family Law Property and Financial Matters, Discussion Paper (2007). Any alternate interpretation would place the basis of judicial review of an Arbitral Award separate and apart from the basis for review under all other State and Commonwealth Arbitration legislation, including the NSW Act (the Commercial Arbitration Act 2010) and the International Arbitration Amendment Act 2010 (Cth). Further, in 2000 the Family Law Act was amended to specifically remove review by way of hearing de novo (the then section 19G being amended and section 19GA being added).
The Objects of Part IIIB of the Family Law Act (in which the powers of the Court to refer to Arbitration are contained) include the following at section 13A(1)(c):
to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use.
A review of “questions of law” without seeking to impugn the integrity of the Award by suggested error would be contrary to this object and mischievous. This would particularly arise from authorities such as House v. The King (1936) 55 CLR 499, at pp 504-505:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
The award or agreement was obtained by fraud (including non-disclosure of a material matter)
This is the first ground under section 13K of the Family Law Act.
The award or agreement is void, voidable or unenforceable
This is the second ground under section 13K of the Family Law Act.
In the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out
This is the third ground under section 13K of the Family Law Act.
The arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.
This is the fourth ground under section 13K of the Family Law Act.
The Arbitrator was not an Arbitrator in accordance with the Act
As Arbitration can only be conducted by an Arbitrator as defined in section 10M of the Family Law Act, this would be a valid basis for opposition to registration.
This would also speak to the ground of voidability (above) and is addressed by regulation 67B of the Regulations.
Lack of notice
This would arise from regulation 67G of the Regulations and would be incorporated in a more general ground of lack of due process or procedural fairness.
Breach of Arbitrator’s duties
This would arise from regulation 67I of the Regulations and would be incorporated in a more general ground of lack of due process or procedural fairness.
Regulation 67I of the Regulations provides:
FAMILY LAW REGULATIONS 1984 - REG 67I
Duties of arbitrator
(1) In an arbitration, an arbitrator must determine the issues in dispute between the parties to the arbitration in accordance with the Act.
(2) An arbitrator must conduct an arbitration with procedural fairness (for example, giving each party to the arbitration a reasonable opportunity to be heard and to respond to anything raised by another party).
(3) An arbitrator must inform each party, in writing, if during the arbitration, the arbitrator becomes aware of anything that could lead to direct or indirect bias in favour of or against any party.
Lack of capacity
This would arise from regulation 67L of the Regulations and would be incorporated in a more general ground of lack of due process or procedural fairness.
Lack of application of the rules of evidence
This would arise from regulation 67O of the Regulations and would be incorporated in a more general ground of lack of due process or procedural fairness.
Failure to give reasons or adequate reasons
This would arise from regulation 67P of the Regulations and would be incorporated in a more general ground of lack of due process or procedural fairness as well as representing an error of law.
Bases advanced by the Applicant
The Applicant seeks to oppose registration of the Arbitral Award (regulation 67Q of the Regulations) or, in the alternative, review of the Award and reversal of the Award (section 13J of the Family Law Act.).[16]
[16] Submissions by the Applicant’s legal representative refer to the Award being set aside. However, section 13J of the Family Law Act empowers the Court to affirm, reverse or vary the Award.
The submissions of the Applicant are founded in the assertion that the Arbitrator has made an error or errors of law.[17] I am satisfied that all of these grounds can be distilled as a complaint that the Award should not be registered or, if registered, should be reviewed and registration reversed on the basis of an error or errors of law.[18]
[17] At paragraph 36 of the Applicant’s Written Submissions, it is conceded that none of the grounds to set aside the Arbitral Award contained in section 13K of the Family Law Act arise. Further, the Applicant does not allege any issue with respect to a denial of due process or procedural fairness (regulations 67G, I, L or O of the Regulations) or a lack of qualification (regulation 67B of the Regulations). Accordingly, I am satisfied that a consideration of the Application can be confined to the issue of error of law and largely founded upon an alleged inadequacy of reasons.
[18] As regards the issue of review, this is clearly spelt out at paragraph 34 of the Applicant’s Written Submissions.
As both heads of jurisdiction are suggested to be enlivened as the consequence of a suggested error of law, it is convenient to simply approach the matter by addressing the complaint of suggested errors of law.
Whilst not a great deal turns upon the jurisdictional basis for “review”,[19] I make clear that the Applicant would have some difficulty in agitating that the Arbitral Award not be registered, including:
a)The Arbitral Award has been registered;
b)Both parties were given clear notice that, absent either bringing to the attention of the Court any reason why the Award should not be registered, that the Arbitral Award would be registered. This notice was given by the terms of the Regulations but also by communication from Chambers discussed above and by the very Order referring the matter to Arbitration and as set out above;
c)The Application which brings the matter before the Court on this occasion would appear to be prefaced upon an acceptance of registration of the Arbitral Award;
d)The Application which brings the matter before the Court was received let alone filed after the Arbitral Award was registered;
e)Regulation 67Q of the Regulations does not, on its face, contain any discretion to extend the time in which a party might bring to the attention of the Court any reason why the Award should not be registered. Further, absent such action by a party and registration of the Arbitral Award, regulation 67Q of the Regulations would cease to operate.
[19] To use the term review by reference to not only the legislative basis to review a registered Award (section 13J of the Family Law Act) but also a review of the Award and a consideration of any reasons why the Award should not be registered (regulation 67Q of the Regulations).
The suggestion that only an unsealed copy of the Form 8 Application to Register the Arbitration Award had been served might provide a basis for the Court to set aside registration as a matter of practice and justice. However, that point is not agitated at hearing and is not the subject of evidence on oath. I could not safely make any finding accepting that proposition (and, again, the above discussion satisfies me that it is not open to Mr Braddon to assert ignorance of the filing of the Form 8).
Whilst the same arguments, as regards suggested error of law, would apply to either opposition to registration of the Arbitral Award or review of the Arbitral Award pursuant to section 13J of the Family Law Act, I propose to address the Application before the Court as it is framed, being an Application to review the Arbitral Award.
The Arbitral Award
The Arbitral Award comprises 15 pages and some 86 paragraphs.
At paragraphs 3 to 12 of the Arbitral Award, the Arbitrator sets out as “background facts” a number of non-contentious findings. [20]
[20] Including agreement that no adjustment pursuant to section 75(2) of the Family Law Act was necessary or sought.
Paragraphs 13-44 of the Arbitral Award discusses more contentious evidence and issues of credit. It is quite clear from this portion of the Arbitral Award, that the Arbitrator accepted Ms Braddon as a credible witness (together with an adult child of the parties who was called in Ms Braddon’s case) whilst Mr Braddon was not accepted as credible or as a credible witness.
At paragraph 45 of the Arbitral Award, a list of agreed facts is set out before, at paragraphs 48-62, further contentious issues and their determination are addressed.
Paragraphs 63-66 of the Arbitral Award set out the parties agreed approach to the determination and the submissions of each party as to the outcome that should be achieved and why (again, by reference to the agreed facts and the facts as found).
At paragraphs 67-76 of the Arbitral Award, the Arbitrator sets out the relevant case law and legal principle to be applied. It is not agitated by the Applicant that the Arbitrator has misstated the law to be applied.
At paragraphs 77-86 of the Arbitral Award findings of fact with respect to contentious issues are made clear. Those findings go directly to the submissions put by each party (as recited at paragraphs 65 and 66 in particular) and to the relevant legal principles and their application as identified above.
The Arbitral Award concludes with the statement (paragraph 86):
Following on from these findings I find that this has caused the parties (sic) finances to be intermingled to that limited extend and therefore, it would be just and equitable to make an award.
The suggested errors of law
By reference to the Written Submissions of the Applicant, the following errors would appear to be alleged:
a)The Arbitrator has not determined the dispute in accordance with law. This particularly arises from a submission (point 19 of the Written Submissions) that the Arbitrator is, by regulation 67I, required to “…determine the issues in dispute between the parties…in accordance with the [Family Law] Act”. It can be inferred that complaint is raised that it is not so;
b)That inadequate reasons were given (points 21, 27 and 29 of the Written Submissions);
c)That the Arbitral Award is “unreasonable or plainly unjust”.
To the extent that the Application in an Arbitration that has initiated this tranche of proceedings referred to an error of law singular, the Applicant has not articulated a specific portion of the Arbitral Award suggested to constitute or contain such an error. The Applicant has not, for example, alleged that the case law identified by the Arbitrator as establishing the principles to be applied is inappropriate or, once identified, that such principles were not followed or were erroneously interpreted or applied. The above identified grounds would appear to be the bases upon which an error of law is advanced.
Before turning to each of these specific complaints, I make clear that I do not accept and reject two of the submissions put by the legal representative for Mr Braddon.
Firstly, at paragraphs 33 and 34 of the Written Submissions it is submitted:
…careful note [must] be given to the exact wording of the section [section 13J of the Family Law Act] because it does not say, in terms, that the award can only be overturned for an error of law…It is submitted that if a review of an Arbitral award is sought on a question of law, the judge may determine that legal question and has a broad discretion having done so…It is submitted that even if the judge concludes that there is no error of law, the award could still be varied in some way.
Based on the above discussion, this submission cannot be accepted. Such an approach is contrary to the general appellate and review principles eruditely discussed in House v. The King above. Such an approach is contrary to other submissions put by the Applicant, (paragraph 15 of the Written Submissions) such as the analogous reference to paragraph 39 of the International Arbitration Act 1974 (Cth) wherein, albeit in the specific context of that Act, the Court should have regard to “…the fact that…awards are intended to provide certainty and finality”.[21] In addition, regard would be had to the specific object within section 13A(1)(c) of the Family Law Act dealing with Arbitration and being:
to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use.
[21] The reports and objects discussed earlier in the Judgment would provide a more specific basis for such a consideration in addressing Arbitral Awards under the Family Law Act.
It could be validly argued that this object, focussed upon resolution of matters without the need for the Court’s intervention, supports a narrower interpretation of the basis of review on “questions of law”.
The Arbitral Award can be reviewed on “questions of law”. There would be no purpose for a review of an Arbitral Award or for a party to seek to invoke such a review unless it were alleged that the “questions of law” were the incorrect identification and application of the law, that is, demonstrable error. It would be mischievous to seek to invoke the Court’s coercive jurisdiction in either opposing registration of an Arbitral Award or, once registered, seeking its review, unless error were alleged. Thus, I am satisfied, that the “questions of law” that can permissibly be raised by reference to each of sections 13J and 13K of the Family Law Act, are alleged errors of law.[22]
[22] See for example regulation 21 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 on Responsible uses of court process and privilege.
Secondly, the Applicant submits (paragraph 39 of the Written Submissions) that a review of an Arbitral Award can only occur by the Court “….conducting a hearing in the ordinary course. The Court would not be able to conduct a review by analysing and considering only the reasons for the award”. Such a submission is contrary to the basis for review expressed by the Family Law Act and especially so when having regard to earlier incantations of the Act and specifically section 19G of the pre-2000 Family Law Act which provided for the very hearing de novo this submission argues for and which provision was amended by sections 19G and 19GA as drafted (and largely indistinguishable from the present provisions) in 2000. Further, the point is, perhaps, rendered nugatory by the reality that there is no challenge to any finding of fact made by the Arbitrator. Thus, even if an error of law were established, discretion could be re-exercised, whether by the Court or by the Arbitrator (or another Arbitrator).
Whilst accepting that the exercise of power by the Arbitrator is not administrative in nature, some guidance is also available as to the scope, procedure and limits of review by a consideration of judicial review of administrative actions. The relevant and applicable principles were eruditely discussed by the Administrative Review Council, under the Chairmanship of Justice Martin (then QC) in The Scope of Judicial Review, Discussion Paper (2003) including:
What is judicial review?
1.8 A classic statement of the scope and nature of judicial review is to be found in the judgment of Brennan J in Attorney-General (NSW) v Quin:
The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government…The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.[23]
1.9 Judicial review is not the re-hearing of the merits of a particular case. Rather, it is where a court reviews a decision to make sure that the decision-maker used the correct legal reasoning or followed the correct legal procedures.
1.11 Judicial review is a more limited right than a right of appeal. As noted by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion, which the legislator has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.[24]
[23] (1990) 170 CLR 1, 35 – 36.
[24] (1986) 162 CLR 24, 40-41 citing Wednesbury Corporation [1948] 1 KB, 228.
This discussion, I am satisfied, puts pay to the Applicant’s submission that the whole cause must be considered and heard by the Court in performing the function of review.
Some guidance as to the general approach to review of and interference with Arbitral Awards, at least in the context of Commercial Arbitration,[25] is given in an excellent paper by Justice Keane: Judicial Support for Arbitration in Australia:[26]
[25] The Applicant’s Written Submissions had focused, to some extent, upon comparison of the Family Law Act jurisdiction and provisions with those of commercial and International commercial Arbitration and hence the comparison is, I believe, apt. Further, one would hope that a consistent approach to principles of judicial review or Arbitral Awards across jurisdictions might be attained and would certainly be beneficial to the community.
[26] Keane, Chief Justice Patrick, Judicial support for arbitration in Australia (FCA) [2010] FedJSchol 25
accessible at: judges/chief-justice-keane/keane-cj-20101015.
At the practical level, there can be no doubt as to the importance of international arbitration to global commerce. Arbitration as a method of dispute resolution is seen to offer the major benefits of enforceability, neutrality, speed and expertise over court based determinations; and, because arbitration is quicker and more expert, it is likely to be cheaper than the lengthier and more elaborate proceedings in court. It is a private proceeding which may be held in private. And international arbitration offers traders a mode of dispute resolution which is not skewed by local policies, peculiarities or prejudices.
At the theoretical level, arbitration is distinguished from the dispute resolution mechanism provided by the state, i.e. the courts, by the circumstance that, with arbitration, the dispute is resolved by a person or persons whose authority to decide is derived from the voluntary agreement of the parties to the dispute.
Ultimately, “the scope of judicial review of arbitration awards necessarily determines the utility of the arbitration process.”[3] As stated by Justice Harper of the Victorian Supreme Court:[4]
“Those who choose to resolve their disputes by invoking the provisions of the Commercial Arbitration Act must take the good with the bad. They trade litigation, with its strict adherence to justice in accordance with law and its relatively generous rights of appeal, for a species of alternative dispute resolution with its advantages of speed and, possibly, cost – but with more limited rights of recourse to the courts thereafter. In short, they thereby take a step which limits the power of this Court subsequently to intervene.”
On the other hand, as was said by Justice Rares of the Federal Court:[5]
“Courts have an important role to play which is complimentary to arbitration. Courts systematise and explain the legal principles applicable in particular, as well as frequently occurring, situations faced by those involved in commerce….Arbitrations cannot offer that perspective because they are conducted confidentially. And, no matter how eminent the arbitrator(s) may be, an award in one arbitration does not bind any other arbitrator or relationship between contracting parties.”
No one would suggest that the commercial entities who seek the benefits offered by arbitration as a method of dispute resolution are indifferent to the quality of the decision-making process by which they have agreed to abide. No party to a commercial dispute would be content to be bound by a dishonest or blatantly incompetent decision.
There is, therefore, a legitimate place for some intervention by the judicial organ of states in which arbitrations are conducted or sought to be enforced to ensure that the arbitration process is conducted fairly in conformity with the reasonable expectations of the parties to the dispute.
The question, of course, is where the balance is to be struck between respect for the desire of commercial parties for speed, expertise and economy on the one hand, and the maintenance of necessary standards of fairness and competence on the other.
I now propose to deal with each of the complaints regarding the Arbitral Award.
Was the dispute determined in accordance with law?
It is common ground that the parties conceded that an adjustment pursuant to section 75(2) of the Family Law Act was not appropriate. On that basis, the Arbitrator did not consider the provision. Accordingly, no complaint could be raised that the Arbitrator failed to consider section 75(2) of the Family Law Act as it was the agreed position of the parties and to which they submitted.
No submission was put, within either the Written Submissions of the Applicant or in oral submissions at hearing, as to what error of law was allegedly made by the Arbitrator. On one view, that should be the end of that issue. However, lest I am wrong in that regard, I will further address the complaint by reference to the complaints raised as regards the adequacy of reasons given by the Arbitrator as this would appear to be the gravamen of the argument advanced.
Were the reasons inadequate?
The Applicant has identified two High Court of Australia decisions dealing with and addressing the review of Arbitral Awards and the adequacy of reasons, namely, Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37 and TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5. The latter authority is relied upon only to the extent of seeking to address and define the scope of Arbitration[27] and especially paragraph 29 as follows:
Therein is the essential distinction between the judicial power of the Commonwealth and arbitral authority, of the kind governed by the Model Law, based on the voluntary agreement of the parties. The distinction has been articulated in the following terms:[28]
“Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.”
The context of that articulation puts its reference to "private arbitration" in appropriate perspective. The context was that of a challenge to the capacity of a statutory body consistently with Ch III of the Constitution to exercise a statutory function to settle a dispute where so empowered by an agreement entered into as a result of statutory processes. The reference to "private arbitration" was not to a private function, as distinct from a public function, but rather to a function the existence and scope of which is founded on agreement as distinct from coercion.
[27] The authority is otherwise concerned with institutional integrity of the Federal Court of Australia in light of certain provisions of the International Arbitration Act 1974 which purported to compel enforcement of certain Arbitration agreements and with the impermissible effect of vesting judicial power in Arbitral Tribunals.
[28] Quoting Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 at 658 [31]; [2001] HCA 16. See also Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 at 14.
I do not cavil with the above propositions. However, the passage emphasises the importance of available judicial scrutiny in the exercise of a discretion to register an Arbitral agreement rather anything else.
Westport Insurance Corporation v Gordian Runoff Ltd lends assistance in understanding the nature of the exercise of Arbitral power as well as the Court’s role in reviewing Arbitral Awards. From the outset, however, a number of distinctions must be drawn.
In Westport Insurance Corporation v Gordian Runoff Ltd their Honours were considering Appeals relating to judicial review of Arbitral Awards arising from section 38 of the Commercial Arbitration Act 1984 (NSW) the terms of which differ substantially from the relevant provisions of the Family Law Act as set out above. Section 38 of the NSW Act is in the following terms:
38 Judicial review of awards
(1) Without prejudice to the right of appeal conferred by subsection (2), the Court shall not have jurisdiction to set aside or remit an award on the ground of error of fact or law on the face of the award.
(2) Subject to subsection (4), an appeal shall lie to the Supreme Court on any question of law arising out of an award.
(3) On the determination of an appeal under subsection (2) the Supreme Court may by order:
(a) confirm, vary or set aside the award, or
(b) remit the award, together with the Supreme Court’s opinion on the question of law which was the subject of the appeal, to the arbitrator or umpire for reconsideration or, where a new arbitrator or umpire has been appointed, to that arbitrator or umpire for consideration,
and where the award is remitted under paragraph (b) the arbitrator or umpire shall, unless the order otherwise directs, make the award within 3 months after the date of the order.
(4) An appeal under subsection (2) may be brought by any of the parties to an arbitration agreement:
(a) with the consent of all the other parties to the arbitration agreement, or
(b) subject to section 40, with the leave of the Supreme Court.
(5) The Supreme Court shall not grant leave under subsection (4) (b) unless it considers that:
(a) having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement, and
(b) there is:
(i) a manifest error of law on the face of the award, or
(ii) strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law.
The NSW Act requires “manifest error of law” to establish leave to Appeal as opposed to the Family Law Act which provides a power to review an award, “on questions of law”. Accordingly, the NSW Act might well be argued to establish a higher threshold.
As regards the exercise of Arbitral power and the Court’s scrutiny and review of awards, French CJ, Gummow, Crennan and Bell JJ, being the majority and with whom Kiefel J (as she then was) agreed, (Heydon J dissenting) had the following to say:
18. An award, subject to the Arbitration Act and to any contrary criterion in the arbitration agreement, is final and binding on the parties to the agreement (s 28). The award may order specific performance of a contract if the Supreme Court would have power to decree specific performance (s 24). By leave of the Supreme Court, judgment may be entered in terms of an award and an award may be enforced in the same manner as a curial judgment or order to the same effect (s 33). The Supreme Court is empowered by s 44 to remove an arbitrator who has misconducted the proceedings or who is incompetent or unsuitable to deal with the particular dispute.
19. These statutory provisions indicate that the making of an award in arbitration proceedings is more than the performance of private contractual arrangements between the parties which yields an outcome which rests purely in contract. They also suggest the importance which the provision of reasons by arbitrators has for the operation of the statutory regime. That statutory regime involves the exercise of public authority, whether by force of the statute itself or by enlistment of the jurisdiction of the Supreme Court. It also, as explained later in these reasons, displays a legislative concern that the jurisdiction of the courts to develop commercial law not be restricted by the complete insulation of private commercial arbitration.
What one might take from the provisions is a caution to balance the desire (expressed as an object or purpose of the NSW Act) for finality of Arbitral Awards against a need to ensure the integrity of Arbitral Awards on review and that the interests of justice served not only by clear, certain, timely and cost-effective determination of disputes but consistent, clear and accurate application of legal principle.
Specifically, as regards the adequacy of reasons, their Honours comprising the majority had the following to say:[29]
[29] Paragraphs 51, 53 and 54.
51. Allsop P considered[30] that the applicable standard was that stated by Donaldson LJ when giving the judgment of the English Court of Appeal in Bremer Handelsgesellschaft mbH v Westzucker GmbH (No 2)[31]. As his Lordship had said:
[30] (2010) 267 ALR 74 at 114 [220].
[31] [1981] 2 Lloyd's Rep 130 at 132‑133.
"All that is necessary is that the arbitrators should set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. This is all that is meant by a 'reasoned award' [in s 1(6) of the 1979 UK Act]."
53. The reference in Oil Basins to the giving by the arbitrators in that dispute of reasons to a "judicial standard"[32] and cognate expressions[33] placed an unfortunate gloss upon the terms of s 29(1)(c). More to the point were observations in Oil Basins to the effect that what is required to satisfy that provision will depend upon the nature of the dispute and the particular circumstances of the case[34]. Their Honours illustrated the point by saying[35]:
[32] (2007) 18 VR 346 at 366 [54].
[33] (2007) 18 VR 346 at 364 [50], 367 [56].
[34] (2007) 18 VR 346 at 367‑368 [57]‑[58].
[35] (2007) 18 VR 346 at 367 [57].
"If a dispute turns on a single short issue of fact, and it is apparent that the arbitrator has been chosen for his or her expertise in the trade or calling with which the dispute is concerned, a court might well not expect anything more than rudimentary identification of the issues, evidence and reasoning from the evidence to the facts and from the facts to the conclusion[36]."
But in Oil Basins itself, the central issue in dispute in the hard‑fought and lengthy arbitration[37]:
"was whether the expression 'overriding royalty' in the royalty agreement was used as a term of art, as the respondents contended (with the result that any right to royalty ceased upon surrender of the tenement to which it related (a 'title based' royalty)), or whether the expression meant simply an additional royalty, as the appellant argued (with the result that royalty was payable in respect of production derived by the respondents from within the area regardless of surrenders (an 'area based' royalty))."
The primary judge in Oil Basins had, as the Court of Appeal put it, properly[38]:
"held that, in order to provide reasons of the standard required by s 29(1)(c), it was necessary for the arbitrators to decide and give reasons for deciding whether 'overriding royalty' was a technical term with a meaning usually understood by persons in the oil and gas industry and, if so, whether the context of the royalty agreement or the surrounding circumstances implied that the parties intended a different meaning from the technical meaning."
[36] Mustill and Boyd, The Law and Practice of Commercial Arbitration in England, (1982) at 552.
[37] (2007) 18 VR 346 at 353 [28].
[38] (2007) 18 VR 346 at 353‑354 [29].
This the arbitrators in Oil Basins had failed to do.
54. In the present case, the reinsurers correctly submit that no wholly satisfactory formula can be found to flesh out the requirement in s 29(1)(c). Both Gordian and the reinsurers are content in this Court to rest, like Allsop P, upon what was set out above from the reasons of Donaldson LJ in Bremer. But the parties differ respecting the outcome of applying Bremer to the Reasons. The submissions of the reinsurers on this point should be accepted.
It would appear settled law that the appropriate standard by which I might approach the adequacy of the Arbitrator’s reasons is the “Bremer test”,[39] namely:
All that is necessary is that the arbitrators should set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is.
[39] Bremer Handelsgesellschaft mbH v Westzucker GmbH (No 2) [1981] 2 Lloyd's Rep 130.
This is not a complex case. The findings of fact, as clearly recorded within the Arbitral Award, are largely by consent or agreement. Where it has been necessary for the Arbitrator to determine controversy, the resultant findings are clearly recorded with clear reference to and explanation of findings of credit to support those findings.
Importantly, neither party seeks to challenge or impugn any finding of fact arrived at by the Arbitrator. It is not suggested that any finding of fact is wrong. It is not suggested that any finding of fact was not agitated by a party. It is not suggested that any finding of fact was not open and available on the evidence. It is not suggested that any finding of fact is absent an evidential basis. It is not suggested that any finding of fact arises from a consideration of irrelevant or extraneous material. Thus, an error of law cannot be validly argued to arise from any finding of fact that is made and I shall accept the Arbitrator’s findings of fact, as the parties would appear to have done, as accurate and without criticism.
It is within that context that I turn to a consideration of the Arbitrator’s reasoning as set out within the Arbitral Award and with a view to considering the adequacy of the reasons.
From a consideration of the Arbitral Award, it is clear that the Arbitrator identified the relevant case law and sections of the Family Law Act which applied to the determination of the dispute.[40]
[40] Commencing at paragraph 67 of the Arbitral Award.
It is clear that the Arbitrator, as Stanford & Stanford [2012] HCA 52 requires, commenced by identifying the present legal and equitable interests in property of the parties.[41]
[41] Paragraphs 46 and 47 of the Arbitral Award. Indeed, there was no controversy raised by the parties as to these interests, they were agreed (see paragraph 70 of the Arbitral Award).
The Arbitral Award discloses the findings made by the Arbitrator as to contributions of the parties both during their relationship and cohabitation and post-separation (noting that the period of separation is now roughly equal to the length of the relationship).[42] Importantly, findings were made as to the sale of the Property B property which the parties owned at separation as well as the effective equal division of those proceeds between the parties.[43] Further, the Arbitrator, at paragraph 74 of the Arbitral Award, poses a rhetorical question as to whether that transaction might represent an “informal settlement” between the parties. Whilst the question is not specifically answered by the Arbitrator within the Arbitral Award,[44] the subsequent findings that are made might speak to and inferentially accept that proposition.[45]
[42] At paragraph 77, a finding of equal contribution as regards acquisition of the properties owned at separation is made. At paragraphs 84 and 85, findings are made with respect to certain post-separation contributions to the (country omitted) property which was not otherwise considered.
[43] I have referred to the “effectively” equal division of the proceeds as it is clear that the evidence led by the parties is far from complete and largely lacking detail. Doing the best as could be done, the Arbitrator found quantified sums when evidence was presented. For example, it is clear that no evidence was led as to the portion of funds from the sale of the Property B property that were applied to purchase of the Property A property. Whilst a significant period has passed which may have made it difficult to obtain, for example, Bank Statements from 1993, other records were readily available to establish facts, such as the purchase price of a parcel of real estate, namely, LPI records which are readily searchable and inexpensive. Paragraphs 21 onwards suggest a relative equality of distribution of the proceeds of sale of Property B both as to quantum and the intention of the parties and paragraph 26 clearly identifies a sum of $50,000 retained by Mr Braddon from the proceeds of sale of the property. On the basis of the evidence of Mr Braddon, who had sole control of the sale of the Property B property and application of the proceeds of sale, $125,000 nett was available. Mr Braddon’s evidence is, whilst his evidence was found inconsistent and unreliable, that this sum of $125,000 was sufficient to purchase the Property A unit and pay a deposit on a second unit and leave not less than $50,000. This lends real support to the relative equality of division of those funds in or about 1993.
[44] The proposition of an informal settlement having taken place in 1993 was a submission of the Respondent (paragraph 66(e) of the Arbitral Award).
[45] Especially in light of acceptance of Ms Braddon’s evidence at paragraphs 51, 54, 55 and 56 of the Arbitral Award as well as and in combination with paragraphs 18-34 inclusive of the Arbitral Award.
A clear and unchallenged finding is made that a sum of approximately $50,000 was retained by Mr Braddon from the proceeds of sale of Property B[46] and that a further sum, equivalent to the deposit on purchase of a second unit at Property A, was retained and applied by Mr Braddon.[47] The deposit amount was $7,500 and on Mr Braddon’s evidence this was equal to the deposit paid with respect to the Property A unit purchased in the name of Ms Braddon. [48] On this basis, a further $15,000 of the $125,000 proceeds of sale of the Property B property are accounted for. One might extrapolate that the Property A unit was thus purchased for no more than $67,500.[49]
[46] Paragraph 26 of the Arbitral Award.
[47] Paragraph 20 of the Arbitral Award.
[48] Paragraph 20 of the Arbitral Award.
[49] Calculated as follows: if Mr Braddon retained $50,000 in cash and an amount he applied as a deposit towards purchase of a second unit in the same Property A complex, then he retained $57,500. A deposit of $7,500 was paid towards purchase of the Property A unit purchased in Ms Braddon’s name. Hence, sums of $50,000, $7,500 and $7,500 ($65,000) in total are accounted for. $125,000 - $65,000 = $60,000. If a deposit of $7,500 had already been paid, then the total purchase cost could not have exceeded $67,500. In fact, as stamp duty would have been payable, the amount is likely less. Why neither party undertook the basic LPI searches to clarify the issue is unexplained.
The Arbitrator also clearly records a finding as to Mr Braddon receiving and retaining a compensation payment[50] of $50,000.[51]
[50] Relating to a pre-separation injury and chose in action.
[51] Paragraph 45 of the Arbitral Award.
Importantly, the Arbitrator records unchallenged findings:
a)Certain evidence of Mr Braddon as to alleged post-separation contributions by him was excluded by consent;[52]
b)Ms Braddon has occupied the Property A property and met all of its expenses without contribution by Mr Braddon since approximately 1995 (noting that the parties separated in 1993 and the property was purchased post-separation);[53]
c)That the evidence of Ms Braddon was more credible than and to be preferred to the evidence of Mr Braddon;[54]
d)There has been no mixing of finances by the parties since separation in 1993.[55]
[52] Paragraphs 35 and 36 of the Arbitral Award.
[53] Paragraph 45 of the Arbitral Award. The finding is expressed as being “agreed”.
[54] See paragraphs 28-33 of the Arbitral Award.
[55] Paragraph 45 of the Arbitral Award. The finding is expressed as being “agreed”. The finding is repeated at paragraph 62 of the Arbitral Award.
A finding[56] was made that Mr Braddon had expended unquantifiable funds in renovating the property in (country omitted) and that this was a “post separation financial contribution on his behalf”. However, that contribution could not be quantified (nor the source of funds applied to such renovations identified) due to deficiencies in Mr Braddon’s evidence. The Arbitral Award makes clear, however, that a quantifiable contribution by Ms Braddon to the (country omitted) property was also made.[57] These respective contributions were both taken into account by the Arbitrator and, notwithstanding that, by agreement, the Arbitrator was not asked to determine any dispute regarding the (country omitted) property, the contributions were clearly identified and reflected in the Orders made.
[56] Paragraph 38 of the Arbitral Award.
[57] Paragraph 85 of the Arbitral Award. The contribution by Ms Braddon totalled $34,000.
The essential rationale of the Arbitral Award is, I am satisfied, and based on the above findings, sufficiently clear and being the agreement between the parties as to an informal settlement, which agreement they acted upon and following which the parties did not engage in any mixing or intermingling of funds. Based upon those unchallenged and largely agreed facts, I am satisfied that the reasons given adequately and tolerably explain the basis for the Arbitral Award made and the justice and equity of the Arbitral Award. The Arbitrator was satisfied that the parties had divided their assets and, having done so, have not done anything that would warrant interference. The only post-separation events of significance related to contributions to the (country omitted) property, both parties having made such contributions and balancing each other.
The Applicant places significant weight in identifying the final paragraph of the reasons and suggesting incompatibility between the paragraph and the Arbitral Award made (or the making of an Arbitral Award at all). The Arbitral Award that is made results in Mr Braddon retaining all that is legally his or in his possession and Ms Braddon retaining all that is legally hers or in her possession. Whilst the Arbitral Award refers to section 79 of the Family Law Act as the basis for determination, it is probable that section 78 of the Family Law Act is the more relevant head of jurisdiction. Nothing turns upon that issue, however, and I am not satisfied that this would, of itself, establish an error of law.
The Applicant submits[58] firstly, that the Arbitrator, having stated at paragraph 86 of the Arbitral Award that it is “just and equitable to make an award”, has given no reasons for this statement and, secondly, that the Award does not, in fact, make any adjustment of interests in property.
[58] Paragraphs 27-29 of the Written Submissions.
As would be apparent from the above discussion, I am satisfied that the Arbitral Award, in its totality and especially the preceding 85 paragraphs, tolerably identifies the rational for the conclusion reached determining that the Arbitral Award as made was just and equitable. Firstly, the paragraph makes clear that the conclusion expressed in paragraph 86 is prefaced as “following on from these findings” (being the preceding 85 paragraphs). Secondly, the reference to the statement that the finances of the parties had been “intermingled to that limited extent” is expressed to be specifically connected with the preceding findings (in paragraphs 77-85 of the Arbitral Award). When regard is had to the clearly recorded and unchallenged findings that the parties had “No mixing of finances post separation” this gives context to and assists in explaining the reference to the finances of the parties being “intermingled to that limited extent”. The “limited extent” could only relate to the findings that the parties had contributed equally to the property they had owned at separation, had relatively equally divided the proceeds of the Property B property, had each contributed to renovation of or discharge of the mortgage encumbering the (country omitted) property[59] and that Ms Braddon had contributed to the chose in action retained by Mr Braddon at separation (which chose in action later crystallised in a payment retained solely by Mr Braddon).
[59] Being payments of $34,000 – see paragraph 28 of the Arbitral Award.
The Arbitrator concludes her reasons by stating “The difference in the party’s (sic) evidence is the financial contributions each made to the two assets[60] after separation”. Whilst this statement might be better expressed or delivered to a conclusion, I am satisfied that it is clear from the reasons that:
a)The Arbitrator did not accept Mr Braddon as a particularly credible witness. In contradistinction, Ms Braddon’s evidence is referred to in positive terms as clear, corroborated and credible. Clearly the evidence of Ms Braddon is accepted and preferred;
b)The Arbitrator was clear, in accepting that the (country omitted) property had been renovated and Ms Braddon conceding she had not expended labour or effort in such renovations, that Mr Braddon must have undertaken and financed any renovations. However, again, the Arbitrator was clearly critical of Mr Braddon’s evidence (all 5 versions of it) and the lack of continuity or specificity, such that the highest the eventual finding could reach was that renovations took place in 2010 and that Mr Braddon made an unspecified and unquantifiable contribution to those renovations having had control of that property since 2009 or 2010 (and Ms Braddon having ceased to occupy the property in 1995). Set against this non-specific and non-quantifiable finding, the Arbitrator accepted and was not challenged as to her acceptance, that Ms Braddon had contributed $34,000 in discharge of the mortgage encumbering the same property; and
c)It was specifically found that from 1995 Mr Braddon had made no contribution to the Property A property.
[60] The two properties, being the property in (country omitted) and the property at Property A .
Again, the Arbitral Award makes sufficiently and tolerably clear that whilst there is difference in the evidence of the parties, that the evidence of Ms Braddon is preferred and accepted and that credit finding resolves controversy in favour of Ms Braddon and favours the submissions put by her Counsel resulting in the Arbitral Award made.
It is inherent from the above that I am satisfied that the reasons given by the Arbitrator, in all of the circumstances of the case,[61] adequately and tolerably identify and explain the rational for the Arbitral Award.
[61] Including, serious and significant deficiencies in the evidence adduced and significant adverse credit findings as regards Mr Braddon.
Finally, I propose to address the complaint that “The “adjustment” in fact made no adjustment to the property of the parties as existed at the time of the Arbitration”.
Firstly, I have assumed that the reference to “the adjustment” may be a typographical error and the complaint is intended to be that the Arbitral Award has made no adjustment. This would seem so as the word “adjustment” has not been used by the Arbitrator in paragraph 86 of the Arbitral Award. The Arbitrator has simply expressed that she is satisfied that an Award, in contradistinction to an adjustment, should be made. I am not prepared to infer that it was the intention of the Arbitrator to state that it was just and equitable to make “an adjustment”. There is no evidence that would support such an inference. The Arbitral Award speaks for itself. I accept that the final paragraph is imprecisely, perhaps indelicately expressed. However, I am not satisfied that it generates an error of law either in itself or by reference to the balance of the Arbitral Award. Further, what the Arbitrator would appear to be expressing, perhaps by reference to the High Court’s decision in Stanford v Stanford, (to which I shall turn shortly) is that in light of the financial dealings of the parties since 1993 and, curiously, substantially relating to the (country omitted) property which the parties agreed the Arbitrator need not deal with, that it is just and equitable that jurisdiction should be exercised under the Family Law Act 1975 and an Arbitral Award made (even if the Arbitral Award does not adjust the existing legal interests of the parties). That is the most logical reading of the paragraph.
Regulation 67P of the Regulations deals with the making of an Award:
FAMILY LAW REGULATIONS 1984-REG 67P
Making an award
(1) At the end of an arbitration, the arbitrator must make an award.
(2) The award must include a concise statement setting out:
(a) the arbitrator's reasons for making the award; and
(b) the arbitrator's findings of fact in the matter, referring to the evidence on which the findings are based.
The Arbitrator must (emphasis added) make an award. An Award has been made. It is not extraordinary that it is so. The making of an Arbitral Award and its registration concluded the controversy between the parties and invokes the finality of section 81 of the Family Law Act.
Is the Arbitral Award “unreasonable or plainly unjust”?
Other than repeating the above discussion, there is one additional submission that goes to this ground.
At paragraph 28 of the Written Submissions, the Applicant submits:
The wife had in her sole name, an unencumbered unit at Property A valued at $425,000.00. The award provided that each party retain all items of real property in Australia, personal property and financial assets currently in their respective power, possession or control. The end result, was that there was no adjustment.
This submission can only be understood by assuming that the Applicant submits that such an outcome is unreasonable and plainly unjust by reference to the evidence.
The Arbitral Award was in accordance with the Respondent’s case. To that end, the Arbitral Award does not go outside of the parameters of the dispute established by the parties and as the High Court of Australia has discussed as a denial of due process if done without notice to the parties (see U & U [2002] FLC 93-112).
The position advanced by Ms Braddon, from the time that she filed her Response in these proceedings, was clearly accepted by the Arbitrator and preferred.
By reference to the unchallenged findings of fact, I am not satisfied that the outcome achieved by the Arbitral Award was unreasonable or plainly unjust. The Arbitral Award accepted and found that the parties had contributed equally during their relationship, had affected an informal settlement of property between themselves in 1993 (at which time Ms Braddon was resident in (country omitted) with care of a child of the parties who remained under 18 years of age), and that since separation the parties have not intermingled their finances. Based on these unchallenged findings, I am satisfied that the Arbitral Award could not be found to be unreasonable and plainly unjust. The outcome arrived at is supported by the above findings and within a reasonable exercise of discretion.
The evidence of Mr Braddon, as described from paragraphs 26-33 of the Arbitral Award, makes clear that Mr Braddon was not accepted as a credible witness or accurate historian. If the evidence of Ms Braddon were preferred and taken to be more probably correct than not (as clearly Ms Braddon’s evidence was and for good reason in light of its corroboration in many important respects which assisted in not only proving Ms Braddon’s evidence but in disproving Mr Braddon’s evidence), the outcome achieved by the Arbitral Award, being that sought by Ms Braddon was supportable and appropriate and within a reasonable range of discretion.
As is discussed above:
Judicial review is not the re-hearing of the merits of a particular case. Rather, it is where a court reviews a decision to make sure that the decision-maker used the correct legal reasoning or followed the correct legal procedures.
It is inappropriate for the review to be approached from the perspective of whether the reviewer would have come to the same decision. Having answered the two prior complaints as to the existence of an error of law in the negative and being satisfied that the Arbitral Award provides an outcome supportable by the clear and unchallenged findings made and being an outcome within a reasonable range of discretion, the Arbitral Award would not be found to be unreasonable and plainly unjust.
The proposition relied upon by the Applicant in reference to the High Court’s decision in House v. The King is extracted from a longer passage. The long passage, below, makes the above propositions clear:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In this case and for the reasons set out above, I am satisfied that the Arbitrator has been tolerably clear in establishing how the outcome embodied in the Arbitral Award has been arrived at.
Finally, I am conscious of that which fell from the High Court of Australia in Stanford v Stanford at paragraphs 35-40:
35 …In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36 The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition[62]. It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules"[63], nevertheless, three fundamental propositions must not be obscured.
37 First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38 Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed[64] that a power[65] to make such order with respect to property and costs "as [the judge] thinks fit", in any question between husband and wife as to the title to or possession of property, is a power which "rests upon the law and not upon judicial discretion". And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong[66]:
"The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down".
39 Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law"[67]. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses"[68]. The question presented by s 79 is whether those rights and interests should be altered.
40. Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down"[69]. To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[62] See Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ; [1984] HCA 21.
[63] Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ.
[64] (1956) 98 CLR 228 at 231-232; [1956] HCA 71.
[65] Given by The Married Women's Property Acts 1890‑1952 (Q), s 21, a provision which corresponded with s 17 of The Married Women's Property Act 1882 (Imp).
[66] (1976) 136 CLR 248 at 257 per Barwick CJ, Gibbs, Stephen and Mason JJ; [1976] HCA 39.
[67] Hepworth v Hepworth (1963) 110 CLR 309 at 317 per Windeyer J; [1963] HCA 49.
[68] Hepworth v Hepworth (1963) 110 CLR 309 at 317 per Windeyer J. See also Wirth v Wirth (1956) 98 CLR 228 at 231‑232 per Dixon CJ.
[69] R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 257.
The submission put by the Applicant would appear to fall foul of the above. By asserting that it is unreasonable and plainly unjust to not make an Order for property adjustment when the clearly identified and unchallenged findings of fact do not support such a course is contrary to the clear authority and guidance given by the High Court of Australia above. Mr Braddon would appear to assert that as the sole asset the subject of the Award is held in the sole name of Ms Braddon that is “unreasonable and plainly unjust” that an adjustment would not be made in his favour. That is the very issue the High Court of Australia addresses in the above package. It is a matter of whether the facts of the individual case suggest that it is so or not. In this case it is not demonstrated to be so.
For those reasons, I am satisfied that the Application to oppose registration of the Arbitral Award must fail. Similarly, having reviewed the Award pursuant to section 13J of the Family Law Act, I am satisfied that the only appropriate decree is to affirm the Arbitral Award.
As the Application has not been made out and will be dismissed, some consideration of the Respondent’s costs might arise.[70] I do not suggest that the Respondent has raised the issue.
[70] Accepting that any such Application would be dealt with pursuant to section 117 of the Family Law Act.
In this case, I cannot see how that could be so. Ms Braddon has not retained legal representatives and would not have legal costs to be compensated. Neither party is in paid work and each is in receipt of Centrelink benefits such that no loss of income could be alleged. Finally, any costs of attendance would be modest and should be borne by each party.
Accordingly, I make Orders as follows (see Orders).
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 9 July, 2018
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