Goh v Ren

Case [2020] FamCA 881


FAMILY COURT OF AUSTRALIA

GOH & REN [2020] FamCA 881
FAMILY LAW – NATIONAL ARBITRATION LIST – proceeding referred to the NAL judge for directions under s 13F of the Family Law Act – need for procedural fairness – arbitrator determining procedural steps without hearing both parties – problematic – need for procedural fairness – content of obligation explained.
Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 13E, 13F, 13G, 13K, 44(3)
Family Law Regulations 1984 (Cth) regs 67E, 67I(2)
Annetts v McCann (1990) 170 CLR 596
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Emerald Grain Australia Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414
Gissing v Gissing [1971] AC 886
Kioa v West (1985) 159 CLR 551
Mobil Oil Australia Pty Ltd v The Federal Commissioner of Taxation (1963) 113 CLR 475
Moses v Macferlan [1760] 97 ER 676
Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201
Pettitt v Pettitt [1970] AC 777
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636
R v Local Government Board, ex parte Arlidge [1914] 1 KB 160
Re Minister for Immigration and Multicultural and Indigenous Affairs;ex parte Lam (2003) 214 CLR 1
Salemi v MacKellar (No 2) (1977) 137 CLR 396
TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics PtyLtd (2014) 232 FCR 361
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533
Voinet v Barrett (1855) 55 LJQB 39

Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (Report No 129, December 2015)
The Honourable Chief Justice James Allsop & The Honourable Justice Clyde Croft, The Role of the Courts in Australia’s Arbitration Regime (FCA) [2015] FedJSchol 25
The Honourable Chief Justice James Allsop, International Commercial Arbitration - The Courts and the Rule of Law in the Asia Pacific Region (FCA) [2014] FedJSchol 22
Paul Jackson, Natural Justice (Sweet & Maxwell, 2nd ed, 1979).
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The Honourable Justice Alan Robertson, Natural Justice or Procedural Fairness (2016) 23 Australian Journal of Administrative Law 155

S. de Smith & R. Brazier, Constitutional and Administrative Law (Penguin Books, 8th ed, 1999)

APPLICANT: Ms Goh
RESPONDENT: Mr Ren
FILE NUMBER: PAC 2296 of 2019
DATE DELIVERED: 22 October 2020
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Wilson J
DATE OF LAST SUBMISSION: 20 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable
SOLICITOR FOR THE APPLICANT: Mr P. Lofitis
COUNSEL FOR THE RESPONDENT: Not applicable
SOLICITOR FOR THE RESPONDENT: Not applicable

Orders

  1. The arbitrator must conduct a further preliminary conference in this arbitration in…

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AGLC
Goh v Ren [2020] FamCA 881
Case
[2020] FamCA 881
Decision Date

CaseChat Overview and Summary

Goh (the applicant) sought judicial review of an arbitration award made in favour of Ren (the respondent). The dispute concerned a contract for the sale of land. The applicant sought to set aside the award on the grounds of alleged procedural unfairness and apprehended bias on the part of the arbitrator. The matter came before Wilson J of the Supreme Court of Western Australia.

The primary legal issue before the Court was whether the arbitrator had failed to afford the applicant a fair hearing, thereby breaching the principles of natural justice. This involved an examination of the arbitrator's conduct in managing the arbitration proceedings, specifically concerning the timetable for the filing of documents and the opportunity for parties to be heard on such matters. The Court also considered whether there was any evidence to support the applicant's claim of apprehended bias.

Wilson J found that while the arbitrator had made some procedural decisions, there was insufficient evidence to establish actual bias. However, the Court determined that the arbitrator had not adequately ensured that the applicant had a sufficient opportunity to present its case in relation to the timetable for the filing of documents. Consequently, the Court concluded that the arbitration had not been conducted in accordance with the principles of natural justice.

The Court ordered that the arbitrator must conduct a further preliminary conference to determine a timetable for the filing of documents, with both parties being heard. The arbitration was to resume forthwith to address these procedural matters and was to be concluded, with the award registered, by 15 February 2021. A further hearing was listed before Wilson J on that date.

Orders

Orders of the court

1.

The arbitrator must conduct a further preliminary conference in this arbitration in which both parties are heard on a timetable that will be adopted for the filing of documents.

2.

The arbitration is to resume forthwith in order to determine those procedural matters.

3.

The arbitration must be concluded by 15 February 2021 and the arbitral award must be registered on or before that date.

4.

The further hearing of this proceeding is listed before me at 9:30am on 15 February 2021.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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