McLaughlin & McLaughlin (No 2)

Case [2023] FedCFamC1F 516

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

McLaughlin & McLaughlin (No 2) [2023] FedCFamC1F 516

File number(s): SYC 3839 of 2022
Judgment of: CAMPTON J
Date of judgment: 27 June 2023
Catchwords:

FAMILY LAW – STAY APPLICATION – Application to stay an award that the wife vacate a property of the husband, pending the determination of her application to review the award –Where the wife does not seek to retain the property on a final basis – Where the balance of convenience favours not granting a stay – Where the wife’s application for review will not be rendered nugatory if the award is enforced – Application to stay award refused – Order for the wife to vacate the husband’s property.

FAMILY LAW – ARBITRATION – PRACTICE AND PROCEDURE – Consideration of the time limitation on filing an application for review of an award pursuant to s 13J of the Family Law Act 1975 (Cth) – Consideration of the nature and character of a s 13J review – Review of an arbitral award pursuant to s 13J mirrors an appeal from an order of the court, and is to be conducted and determined consistent with ordinary appellate procedures and principles – Application for review to be filed within 28 days of registration of an award.

Legislation:

Family Law Act 1975 (Cth) ss 79, 13A, 13E, 13H, 13J, 13K, 79A, 90SN

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26, 36

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 13, rr 13.03, 14.07

Family Law Regulations 1984 (Cth)

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Braddon & Braddon (2018) 335 FLR 184; [2018] FCCA 1845

Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220; [1986] HCA 13

Griffiths & Griffiths [2022] FedCFamC1F 219

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; [1986] HCA 84

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Paviello & Paviello [2022] FedCFamC1F 592

Division: Division 1 First Instance
Number of paragraphs: 78
Date of hearing: 22 June 2023
Place: Sydney
Counsel for the Applicant: Mr Heazlewood
Solicitor for the Applicant: John & Co Lawyers
Counsel for the Respondent: Ms Kennedy
Solicitor for the Respondent: Santone Lawyers

ORDERS

SYC 3839 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MCLAUGHLIN

Applicant
AND:

MR MCLAUGHLIN

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

27 JUNE 2023

THE COURT ORDERS THAT:

1.Paragraphs 1 and 4 of…

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McLaughlin & McLaughlin (No 2) [2023] FedCFamC1F 516
Case
[2023] FedCFamC1F 516
Decision Date

CaseChat Overview and Summary

In the case of McLaughlin & McLaughlin (No 2), the parties were involved in an arbitration dispute. The husband filed a stay application in relation to the arbitration award, which the wife contested. The primary issue before the court was the interpretation of section 13J of the relevant legislation, which pertains to the review of an arbitral award. The court had to determine whether a ‘review’ of an arbitral award should be conducted in accordance with the procedures for conducting appeals and whether the time limit for filing an application for review should commence from the date of the award or the date of the registration of the award.

The court concluded that a ‘review’ of an arbitral award as contemplated by section 13J of the Act should be conducted in accordance with the procedures for conducting appeals and determined consistently with established appellate principles. The court found that the time limit for filing an application for review should commence from the date of the registration of the award. The court reasoned that until an award is registered, it is not enforceable in the court using the procedures otherwise available for enforcement of court orders. Therefore, it is appropriate that the time limit within which an application for review must be filed commence from the date of registration. The court also considered the principle of finality and the agreement of both parties that a 28-day time limit for filing was appropriate and reasonable.

In conclusion, the court ruled that the wife’s application for review was filed within the 28-day time limit, which commenced from the date of the registration of the award. The court granted the stay application, pending the outcome of the wife’s application for review. The court also extended the time for the wife to file and serve her Application in an Arbitration to 15 July 2023.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I accept my conclusion is contrary to the gravamen of the reasons of Wilson J in Paviello and Griffiths. In those circumstances, this issue may be an appropriate matter for consideration by the Full Court or for further legislative guidance (including by way of clarifications to the Act, the Rules or the Regulations).Conclusion Having regard to the above reasoning, I conclude that a ‘review’ of an arbitral award as contemplated by s 13J of the Act ought to be:(a)Conducted in accordance with the procedures for conducting appeals, as set out in ch 13 of the Rules; and(b)Determined consistently with established appellate principles. Rule 13.03(1) requires that a Notice of Appeal be filed within 28 days from the date of the order appealed from was made. Applying this standard, the wife had 28 days to file her application for review from either:(a)The date of the award (11 April 2023); or(b)The date of the registration of the award (12 May 2023). As has been observed, under the current legislative regime it is the process of registering the award that enlivens its treatment as an order of the Court: until it is registered, the award is not enforceable in this Court using the procedures otherwise available for enforcement of court orders. It would, for example, be open for parties who are each dissatisfied with an award to refrain from registering the award or to file consent orders in terms different to the award. There would be no need for a litigant to apply to a court to review an award, if the award was not yet enforceable. Hence, it is appropriate that the time limit within which an application for review must be filed commence from the date of registration. Even if I am wrong about my conclusion as to the nature of a s 13J review, or as to application of the Rules to the filing of an application for review, I am satisfied that a 28 day time limit for filing was appropriate and reasonable, having regard to the following:(a)It would be counterintuitive to the principle of finality and absurd if it were held that the legislation made no provision for a time limit on the filing of an application to review an award, so that such application could be initiated at any time after the award issued (including many years in the future). Again, this may be an appropriate matter for consideration by the Full Court, or for further legislative guidance. (b)Each of the husband and wife proceeded in this matter as if a ‘review’ of an award and an ‘appeal’ from an order were one and the same. They at times used the two phrases interchangeably.(c)In prosecuting and resisting the application for stay, each of the parties relied upon High Court authority relevant to stays of court orders pending an appeal.(d)The husband and wife each conceded that 28 days was an appropriate limit on the time in which the wife ought to have filed her application to review the award after it was registered. The wife’s Application in an Arbitration was sent to the Court within 27 days of the date of the award being registered, and hence was filed in time. Again, even if I am wrong about this conclusion, it was agreed during the hearing before me that insofar as is necessary, the time for the wife to file and serve her Application in an Arbitration would be extended to 15 July 2023.THE STAY APPLICATIONThe relevant law

Ratio Decidendi

Legal Principle Established

The husband relied upon:·His Response to an Application in an Arbitration filed 20 June 2023 and sealed on 22 June 2023;·His affidavit filed 20 June 2023, including the annexures thereto (Exhibit 5); ·His Case Outline filed 21 June 2023 (Exhibit 2); ·A tender bundle (Exhibit 7). THE CONDUCT OF THE ARBITRATION The husband, the wife and the arbitrator entered into an Arbitration Agreement on 19 October 2022. The arbitrator made directions as to the conduct of the hearing on 1 November 2022 (when the arbitration was still listed to take place on 27 February 2023), requiring the parties to file their affidavits, Financial Statements, and expert evidence by 3 February 2023. They did not comply with those directions. On 27 February 2023, rather than a hearing the arbitrator conducted a planning meeting. The parties agreed to have until 10 March 2023 to file and serve their affidavits ahead of the arbitration then adjourned to 23 and 24 March 2023. The award records that neither the husband nor the wife applied to vary those directions, and that:19. The parties supplied their affidavit evidence and financial statements to me on 22 March 2023. Their evidence does not address why it is the affidavits were filed and served late. Each of the husband and wife were represented by counsel at the arbitration. On the first day of the hearing, counsel for the wife made an oral application to adjourn the arbitration hearing. That application was refused. The arbitrator gave reasons for his decision, which became Schedule 1 to the award reasons (“the adjournment reasons”). The adjournment reasons record the following:27. [Counsel for the wife] said the trial affidavits were served on the wife 11.18pm on 21 March 2023, and the wife’s ·were served on the husband 9.45am on 22 March 2023. The husband’s ran to more than 250 pages including annexures and he said this caused his client prejudice.28. [Counsel for the husband] said that on 20 March 2023, the husband’s solicitor wrote to suggest an exchange of documents later that day, and this was agreed. There is no suggestion any objection to late filing and service was ever raised. For the reasons then given, the arbitrator adjourned the hearing until 2.15 pm on the first scheduled day. After addressing objections (a process which was completed by 2.00 pm that day), counsel for each of the husband and wife agreed to adjourn the hearing until the following day. On the second day of the arbitration, being 24 March 2023, the oral evidence was completed and counsel for each of the husband and wife made submissions. THE AWARD AND SUSBEQUENT COMPLIANCE On 25 April 2023, the husband paid the wife the sum of $50,000 pursuant to paragraph 1.1 of the award. On 1 June 2023 he paid the wife the balance of $317,000 pursuant to paragraph 1.2 of the award. He refinanced the existing mortgage on the Suburb C property to fund these payments. It was the husband’s evidence that prior to such refinance, his loan repayments on the Suburb C property mortgage were $225 per week and that after the refinance his repayments increased and are now $3,697 per month (or $853 per week).