GOH & REN

[2020] FCCA 3230

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOH & REN [2020] FCCA 3230

Catchwords:
FAMILY LAW – Arbitration – whether arbitrators appointed under section 13E have power and authority to issue s.128 certificate.

Legislation:

Family Law Act 1975 (Cth), s.13E

Evidence Act 1995 (Cth), s.128

Family Law Regulations 1984 (Cth), reg.67O(2)

Applicant: MS GOH

Respondent: MR REN

File Number: PAC 2296 of 2019

Judgment of: Judge Harman

Hearing date: 26 June 2020

Date of Last Submission: 26 June 2020

Delivered at: Parramatta

Delivered on: 26 June 2020

REPRESENTATION

Solicitors for the Applicant: Mr P.A. Lofitis of West Legal

Solicitors for the Respondent: Ms J. Fan of Go To Court Lawyers

ORDERS

1. The matter is adjourned for further mention and directions to 21 August 2020 at 9:30am.

2. Note: The arbitration is in train with an arbitrator appointed, an arbitration agreement concluded and the arbitration will, in all probability, proceed within the next four to six weeks.

3. Grant leave to vacate the further listing upon registration of the Arbitral Award.

4. In response to the question of law posed by the arbitrator as, “Does an arbitrator appointed under section 13E Family Law Act 1975 (Cth) have power and authority to issue certificates under section 128 of the Evidence Act 1995 (Cth)?”, the answer is yes.

IT IS NOTED that publication of this judgment under the pseudonym Goh & Ren is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2296 of 2019

MS GOH

Applicant

And

MR REN

Respondent

REASONS FOR JUDGMENT

1. These proceedings are listed today for a first appearance in the National Arbitration List. 

2. The proceedings were, with the consent of the parties, (as required by section 13E Family Law Act 1975 (Cth)), referred to arbitration by Order made 17 December 2019.

3. In addition to the matter being listed for first return in the National Arbitration List, an application is also relating to a question of law posed by the appointed arbitrator.  The question of law to be addressed is as follows:

   Does an arbitrator appointed under section 13E Family Law Act 1975 (Cth) have power and authority to issue certificates under section 128 of the Evidence Act 1995 (Cth)?

4. The arbitrator has helpfully set out an erudite summary of the position as the arbitrator perceives it.  With all due respect to the arbitrator, I concur with the position advanced by them. 

Discussion

1. Regulation 67O(2) Family Law Regulations 1984 (Cth) requires the arbitrator, subject to the agreement of the parties to the contrary, to apply the rules of evidence in the conduct of the arbitration. Whilst the regulation refers to the rules of evidence rather than the laws of evidence, I am satisfied that nothing turns upon that issue and that the regulation would require the arbitrator, save when the parties agree to the contrary, to apply the provisions of the Evidence Act 1995 together with common law rules of evidence. 

2. The arbitrator draws the Court’s attention to the extended definition of “Federal Court” contained in the dictionary to the Evidence Act 1995 (supra).  The dictionary definition provides that a Federal Court means:

   …the High Court…or…any other court created by the Parliament (other than the Supreme Court of a Territory)…and includes a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.

3. The parties have contracted, as part of their arbitration agreement, to apply the rules of evidence.  Thus, as regulation 67O(2) provides, the laws or rules of evidence will apply.  The arbitrator appointed by the parties is, accordingly, required to apply the laws of evidence in determining a dispute under the Family Law Act (supra).  Further, the arbitrator is a person “performing a function or exercising a power under a law of the Commonwealth,” such that they would fall within definition of “Federal Court” for the purposes of the Evidence Act 1995 (supra). 

4. Section 128 of the Evidence Act (supra) allows a Federal Court to issue a certificate in the event that a party objects to giving particular evidence on the grounds that it may tend to prove that they have committed an offence or liable to a civil penalty enlivened.  The arbitrator would have power to exercise this power and issue a certificate.

5. Accordingly, and for that reason, the question, as posed, is answered in the affirmative. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Harman.

Associate: 

Date: 26 November 2020