Braddon & Braddon

Case [2018] FCCA 1845


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
Federal Circuit Court Rules 2001, rr.6.03, 6.06

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…

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Details
AGLC
Braddon & Braddon [2018] FCCA 1845
Case
[2018] FCCA 1845
Decision Date

CaseChat Overview and Summary

This matter concerned an application to affirm an arbitral award made between Mr. Braddon and Mrs. Braddon. The application was heard by Judge Harman.

The legal issues before the court were whether the arbitral award should be registered and, if so, whether it should be affirmed. This involved considering the requirements for registration under Regulation 67Q of the Family Law Regulations and the grounds for review or setting aside a registered award under sections 13J and 13K of the Family Law Act 1975.

Judge Harman reasoned that Regulation 67Q did not require a sealed copy of the application to be served and that the 28-day period for objecting to registration commenced upon the filing of the application. The court was satisfied that Mr. Braddon and his legal representatives were aware of the filing of the application. Given this awareness and the absence of any objections brought to the court's attention within the prescribed period, the court found that the award should be registered. Furthermore, no grounds were raised or established that would permit the court to review or set aside the award under sections 13J or 13K of the Family Law Act.

Consequently, the court affirmed the arbitral award, dismissed all extant applications, removed all issues from the list of matters awaiting hearing, and ordered that each party bear their own costs of the proceedings.

Orders

Orders of the court

1.

Affirm the Arbitral Award dated 22 January, 2018 and Registered by Order 1 March, 2018.

2.

Dismiss all extant Applications and remove all issues from the list of matters awaiting hearing.

3.

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Regulation 67Q of the Regulations is in the following terms:FAMILY LAW REGULATIONS-REG 67Q REGISTRATION OF AWARDSRegistration 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. 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.