Nellie & Nellie
[2024] FedCFamC1A 171
•27 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nellie & Nellie [2024] FedCFamC1A 171
Appeal from: Nellie & Nellie (No 2) [2024] FedCFamC1F 198
Nellie & Nellie (No 3) [2024] FedCFamC1F 367
Appeal numbers: NAA 97 of 2024
NAA 141 of 2024File number: SYC 8520 of 2022 Judgment of: MCCLELLAND DCJ, TREE & ALTOBELLI JJ Date of judgment: 27 September 2024 Catchwords: FAMILY LAW – APPEAL – ARBITRATION – Property – Where the appellant seeks to appeal the decision to dismiss his application for review of a registered arbitral award pursuant to s 13J of the Family Law Act 1975 (Cth) – Where the grounds of appeal do not identify any error in respect to a question of law on the part of the primary judge – Where the complaints raised by the appellant merely reflect the submissions made on review before the primary judge – Adequacy of reasons – Where the appellant complains that there was no transcript from the arbitral hearing – Where the appellant was at liberty to supplement that deficiency in the record, but did not do so – Where the absence of transcript is not a passport to a new trial – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal in a fixed sum.
FAMILY LAW – APPEAL – COSTS – Where costs orders were made in the absence of the appellant – Where the appellant appeals those orders – Where it is contended that given the existence of a substantive appeal, it was practically reasonable to request that the appellate court address the primary judge’s costs judgment – Where the appellant has not exhausted all reasonably available remedial options at first instance before appealing the primary judge’s decision – Costs appeal dismissed.
Legislation: Family Law Act 1975 (Cth) ss 13E, 13J, 75(2), 79, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 12.17
Commercial Arbitration Act 1984 (NSW) s 38
Commercial Arbitration Act 2010 (NSW) s 34A
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Beale & Harvie [2023] FedCFamC1A 181
Bhatnagar & Riju [2018] FamCAFC 144
Bonnett & Bonnett [2021] FedCFamC1A 95
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432
Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209
Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102
Elliott & Hopkins (No 2) (2023) FLC 94-157; [2023] FedCFamC1A 142
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Keaty & Swann [2023] FedCFamC1F 178
Lorde & Chu [2014] FamCAFC 228
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255
McLaughlin & McLaughlin [2023] FedCFamC2F 1160
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Nellie & Nellie (No 2) [2024] FedCFamC1F 198
Nellie & Nellie (No 3) [2024] FedCFamC1F 367
Pettitt v Dunkley [1971] NSWLR 376
R v The District Court; Ex parte White (1966) 116 CLR 644; [1966] HCA 69
Re Darley (No 2) (2023) 379 FLR 234; [2023] FedCFamC1A 112
Stoian v Fiening (Costs) [2014] FamCA 944
Simmonds v Gammell [2016] EWHC 2515 (Comm)
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5
Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 084
Tianjin Jishengtai Investment Consulting Partnership Enterprise v Huang [2020] FCA 767
Vida & Vida [2022] FedCFamC1F 968
Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25
Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37
Wyong Shire Council v Paterson [2005] NSWCA 74
Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation (2011) 38 VR 394; [2011] VSC 622
Number of paragraphs: 65 Date of hearing: 26 August 2024 Place: Sydney Counsel for the Appellant: Mr Hodgson (direct brief) Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Bay Legal ORDERS
NAA 97 of 2024
NAA 141 of 2024
SYC 8520 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR NELLIE
Appellant
AND: MS NELLIE
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, TREE & ALTOBELLI JJ
DATE OF ORDER:
27 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Appeal NAA 97 of 2024 is dismissed.
2.Appeal NAA 141 of 2024 is dismissed.
THE COURT FURTHER ORDERS THAT:
3.The appellant is to pay the costs of the respondent in the fixed sum of $11,600.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nellie & Nellie has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCLELLAND DCJ, TREE & ALTOBELLI JJ:
INTRODUCTION
This judgment relates to two appeals. The primary appeal (NAA 97 of 2024) concerns the dismissal of an application to review an Arbitral Award pursuant to s 13J of the Family Law Act 1975 (Cth) (“the Act”). The second appeal (NAA 141 of 2024) concerns an order for costs made by the primary judge consequent upon his dismissal of the application for review. For reasons which follow, we have dismissed both appeals.
BACKGROUND
On 7 August 2023, the parties’ applications for property adjustment orders were referred to private arbitration, by consent, pursuant to s 13E of the Act. On 9 August 2023, those proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1).
On 25 and 26 September 2023, the arbitration was conducted by an appropriately qualified arbitrator. Both parties were represented at the arbitral hearing.
On 8 November 2023, the Arbitral Award was published.
The arbitrator found that the total value of the parties’ property was $5,024,916, with liabilities amounting to $68,518. Accordingly, the “net asset pool” was calculated to be $4,956,398.
Having regard to s 79(4) of the Act, the arbitrator further determined that the contributions of the parties favoured the respondent wife, attributing 78 per cent to her and 22 per cent to the appellant husband. The contribution finding was further adjusted by 2 per cent in favour of the respondent pursuant to those factors set out in s 75(2) of the Act. This resulted in the final distribution of the parties’ property being adjusted, such that 80 per cent was allocated to the respondent and 20 per cent to the appellant.
By orders made on 26 March 2024, the primary judge dismissed the appellant’s application for review of the registered Arbitral Award pursuant to s 13J of the Act: Nellie & Nellie (No 2) [2024] FedCFamC1F 198.
A review of a registered Award, pursuant to s 13J of the Act, is restricted to questions of law. The primary judge rejected the appellant’s submissions that the arbitrator was in error in respect to the following questions of law:
…
2. That the Arbitrator was in error in law in failing to provide any or adequate reasons upon determining that [the appellant] was entitled to 20% of the net asset pool of the parties available for distribution (being an amount of $4,956,398) and calculating that 20% of such amount was equivalent to $940,000, whereas 20% of such amount is in fact an amount of $991,279.
3. That the Arbitrator was in error in law in failing to provide any or adequate reasons in failing to consider the unchallenged evidence of some nine (9) third-party witnesses as to the contributions which [the appellant] had made through his physical endeavours to the renovation and improvements of properties owned by the parties, and preferring the evidence of [the respondent] as to the extent of such contributions, and substantially disregarding such contributions because [the appellant] was not a qualified tradesperson.
4. That the Arbitrator was in error in law in failing to provide any or adequate reasons for his determination that after a period of cohabitation of some 34 years, that the parties respective contributions should favour [the respondent] as to 78% and [the appellant] as to 22%.
5. That the Arbitrator was in error in law in determining that as [the appellant] could not satisfactorily account for the expenditure of those monies received by him by way of partial property settlement after the time of separation (a total amount of $200,000), that this would lead to a strong inference that he had lost money gambling during cohabitation, as had been asserted by [the respondent].
6. That the Arbitrator was in error in law in his determination of a further adjustment of 2% in favour of [the respondent], to reflect Section 75(2) factors by failing to have regard to and consider all of those relevant factors, which if properly considered, may have led to an adjustment in favour of [the appellant] or alternatively counterbalanced the adjustment he made in favour of [the respondent].
…
(Appellant’s Amended Response to an Application in a Proceeding dated 14 March 2024)
GROUNDS OF APPEAL: NAA 97 OF 2024
There are three grounds of appeal. They are:
1.That the Trial Judge was in error in law in finding that because [the appellant] could not identify by Transcript, Affidavit evidence, or by way of the Arbitrator’s notes, any submission he made as the subject of his complaint, namely the failure by the Arbitrator to consider all relevant section 75(2) factors in making a further 2% adjustment in favour of [the respondent] or failing to make any counterbalancing adjustment in favour of [the appellant] having regard to the significant disparity in the asset positions of the parties in favour of [the respondent], that such a failure on [the appellant’s] part precluded him from asserting that the Arbitrator had failed to address or had overlooked a relevant Section 75(2) factor.
2.That the Trial Judge was in error in law in conflating the provisions of Section 75(2) of the Act with the provisions of Section 79(2) of the Act, whereby he determined that the Arbitrator’s consideration of Section 79(2) implicitly considers the import of Section 75(2)(b) of the Act, leading to a conclusion that the failure to consider that Section is not available to [the appellant] to be posed on review.
3.That the Trial Judge was in error in law finding that the Arbitral Award discharges the obligation to enable the parties to identify the basis of the determination and to the extent to which their arguments have been understood and accepted in circumstances where there was no Transcript or Arbitrator’s notes and the result embodied in the Arbitral Award, that [the respondent] would receive some 80% and [the appellant] would receive some 20% of a net asset pool comprising $4,956,398, after a period of cohabitation of some 34 years was just and equitable
PRINCIPLES
Section 13J(1) of the Act provides that a party may apply for review of an arbitral award on “questions of law”. The scheme of the Act is to ensure that parties hold to their agreement to accept factual findings made by the arbitrator, thereby limiting the scope of any review to questions of law.[1]
[1] Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239 at [27] (French CJ, Gummow, Crennan and Bell JJ).
The limitation of review proceedings to questions of law is in the context where arbitration has long been recognised as an efficient, impartial, enforceable and timely method of resolving disputes other than by litigation.[2] Arbitral awards are intended to provide an efficient means of resolving disputes with certainty and finality.[3] At its core, arbitration of property disputes pursuant to the Act is a voluntary process.
[2] Tianjin Jishengtai Investment Consulting Partnership Enterprise v Huang [2020] FCA 767 at [19].
[3] TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 at [105] (Hayne, Crennan, Kiefel & Bell JJ).
In Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239 (“Westport”) at [168], the plurality emphasised that confining review of arbitral awards to a “question of law” as provided in s 38 of the Commercial Arbitration Act 1984 (NSW), [4] was in furtherance of the legislative purpose to “hold the parties to their agreement to accept factual findings by arbitrators” (Westport at [27)]).
[4] Now s 34A of the Commercial Arbitration Act 2010 (NSW).
That observation, in our view, applies equally to arbitrations conducted pursuant to the Family Law Act 1975 (Cth) and the limited right of review provided.
The primary judge acknowledged this (at [14]), by reference to McLaughlin & McLaughlin [2023] FedCFamC2F 1160 at [53], quoting Basten J in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523:
59. … a review ‘on’ a question of law is narrower than an appeal or review ‘involving’ a question of law and connotes at [61] that “the [arbitrator] is to be the final adjudicator of the facts and the merits of the case, so long as he or she acted within the limits prescribed by law”.
Appropriately, the primary judge noted (at [14]) that arbitrations are “not to be used as dummy runs to subsequent litigation”,[5] and review of arbitral awards are not to be conducted as a merits appeal (at [15]–[16]).[6]
[5] See also Keaty & Swann [2023] FedCFamC1F 178 at [70]; Vida & Vida [2022] FedCFamC1F 968 at [168].
[6] Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation (2011) 38 VR 394 at [16].
The task of the appellant in this case was to show error on the part of the primary judge in dismissing the appellant’s Application in a Proceeding (agreed to constitute an Application in an Arbitration) filed on 8 November 2023. The basis of such dismissal was that there was no error on the part of the arbitrator “on questions of law”. The establishment of such an error is a precondition to the Court exercising power to revisit the award pursuant to s 13J(2) of the Act. In other words, the jurisdictional pre-condition to the primary judge re-exercising discretion to affirm, reverse or vary the property adjustment orders made by the arbitrator was a finding that the arbitrator had erred on a question of law. The appellant failed to satisfy the primary judge that any such error existed.
Aside from the most exceptional circumstances, such as claims of procedural irregularity in a trial judge’s hearing, the appeal must be contained to those alleged errors that were the focus of the first instance proceedings.[7]
CONSIDERATION
[7] Metwally v University of Wollongong (1985) 60 ALR 68 at 71.
Ground 1 – Failure to consider all s 75(2) factors
This Ground of Appeal relates to paragraph 6 of the appellant’s application for review which has been extracted at [8].
Ground 1 is without merit as it is based upon a false premise. At no stage of the proceedings was the appellant “precluded” from asserting that the arbitrator failed to address or had overlooked a relevant s 75(2) factor in determining that there should be a 2 per cent adjustment to the respondent over and above contribution considerations.
This is made clear in the judgment of the primary judge (at [52]), where the primary judge includes extracts from [139]–[146] of the Arbitral Award. In those paragraphs, the arbitrator set out a number of s 75(2) factors that he considered to be relevant to his decision. These factors included the age of the parties, the absence of children to the relationship, and significantly, that the respondent deposed to being in poor health whereas the appellant gave no evidence of disability or ill health.
As is the case where a judicial officer is presiding, it is unnecessary for an arbitrator who is exercising a discretion, to detail each factor which he or she has found to be relevant or irrelevant, nor is an arbitrator required to make an explicit finding on each disputed piece of evidence.[8]
[8] Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385.
It is also of no consequence that the arbitrator did not specifically refer to s 75(2)(b) of the Act,[9] which requires a consideration of “the income, property and financial resources of each of the parties”.
[9] Elliott & Hopkins (No 2) (2023) FLC 94-157 at [38].
As noted by counsel for the respondent, a reading of the Arbitral Award as a whole,[10] establishes that the arbitrator was well aware of the parties’ property and financial resources, having determined the balance sheet of the parties’ property and the s 79(4) adjustment that he made. Further, as the primary judge noted at [55]–[56], referencing [156] of the Arbitral Award, the arbitrator implicitly considered s 75(2)(b) of the Act when determining the justice and equity of the overall property adjustment. Accordingly, there was no error on the part of the primary judge in rejecting the assertion that there was an error of law on the part of the arbitrator, as contended at paragraph 6 of the appellant’s review application.
[10] Bonnett & Bonnett [2021] FedCFamC1A 95 at [22].
During the course of the appeal, counsel for the appellant suggested that Ground 1 can be construed as an assertion that the primary judge erred by precluding the appellant from asserting error on the part of the arbitrator due to the appellant’s inability to identify such error through “transcript, affidavit evidence, or by way of the arbitrators’ notes” (at [54]). There was no such preclusion. Even if so construed, this Ground of Appeal is without merit.
In explaining why we are of that view, it is necessary to provide some context. At [54] of his reasons, the primary judge explained that the appellant, in prosecuting the review, bore the onus to establish the relevant foundations to ground the question of law which he posed. His Honour then stated that, in circumstances where the appellant could not identify any submission he made regarding the subject matter of complaint, the appellant had not established a foundation to ground the question of law.
The primary judge did no more than recognise the well accepted authority that, as the party prosecuting the review, the appellant carried the onus to establish error.[11] On the day of the hearing, the primary judge raised with counsel for the appellant the challenges that his client faced in the absence of an arbitration transcript, notes, or other supporting documentation establishing what issues were raised before the arbitrator.[12] The primary judge did not preclude the appellant from making such submission as he wished in respect to his assertion of error, despite that evidentiary difficulty.
[11] Allesch v Maunz (2000) 203 CLR 172 at [23]. See also McDonald v Queensland Police Service [2017] 2 Qd R 612 at [47].
[12] Transcript 21 March 2024, p.41 lines 23–44.
The primary judge’s decision was not vitiated by error as his Honour was entitled to consider that omission in determining whether the appellant had discharged the onus that he carried of establishing error on the part of the arbitrator. In Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209 at 212, Macrossan CJ (with whom Kelly SPJ and Ambrose J agreed) stated that, in the absence of such material evidencing the record of proceedings, the appellant was at liberty to supplement that deficiency in the record: and where the appellant could not do so, the appeal must fail.[13]
[13] See also Teelow v Commissioner of Police [2009] 2 Qd R 489 at [27] (Muir and Fraser JJA, Mullins J).
That principle was further supported by Giles JA (with whom Hodgson JA and Brownie AJA agreed) in Wyong Shire Council v Paterson [2005] NSWCA 74, where it was noted at [44]:
Absence of transcript is not a passport to a new trial, or the equivalent of a fresh arbitration in the present case, even if, as appears to have been the case, all concerned thought that the transcript would be forthcoming if necessary. Sometimes the lack of transcript can be accommodated by evidence as to what was said, which may have been possible in the present case …
(Emphasis added)
The decision as to whether a transcript of the arbitration was to be made was a matter for the parties. The consequence of the transcript not being available is a result of the decision that the parties jointly made.
Ground 2 – Conflation of s 75(2) with s 79(2)
Unfortunately, this Ground of Appeal is also based on a false premise. The primary judge did not conclude “that the failure to consider [s 75(2)(b)] was not available to [the appellant]”.
The transcript records several instances where this asserted error was addressed by counsel for the appellant. For instance, the primary judge invited counsel for the appellant to address him as to how he could establish error on the part of the arbitrator in circumstances where there was an absence of evidence that the arbitrator had been asked by one or both of the parties to consider, as a relevant factor in adjusting the parties property, those matters set out in section 75(2)(b) of the Act.
Counsel for the appellant, in reply, relevantly stated:
… I suppose, the best I can really put to you, your Honour, is that the trial judge is considering the bleeding obvious 75(2) factors. He has got there — he — although, I suppose, he does leave out in consideration there a period of habitat for 34 years, but that’s no big deal. But he has got no children. Yes. Ages, and then he simply goes on to ill health. He doesn’t say, well, I’ve made this assessment of 78/22, but notwithstanding the superior — significantly superior assets, income, financial resources of the wife in comparison to the husband I’m still going to give another two per cent because she has got these health issues.
…
And that’s — and that’s as far as I can go with it, because - - -
…
- - - I haven’t got a transcript.
(Transcript 21 March 2024, p.40 line 40 to p.41 line 16)
In addressing Ground 1, we have set out why the primary judge explained to the parties that, absent of transcript or documentation setting out the parties’ respective submissions, the appellant faced difficulty in discharging the onus he bore to establish error on the part of the arbitrator.
Insofar as counsel for the appellant suggested that this Ground of Appeal can be construed as a complaint that the primary judge was in error by failing to find that the arbitrator did not have regard to a material consideration, it is also without merit.
Section 79(4)(e) of the Act required the arbitrator to “take into account” the matters referred to in s 75(2) “so far as they are relevant”. The failure of the appellant to establish where the arbitrator was asked to consider the matters set out in s 79(2)(b) as having particular relevance to his assessment of the party’s future needs is fatal to Ground 2.
As noted earlier, the appellant was bound by the manner in which he conducted his case at first instance. In order to establish error on the part of the primary judge in failing to find the requisite error in respect to a question of law on the part of the arbitrator, it was incumbent upon the appellant to show where the arbitrator’s attention was drawn to the particular consideration such that it required specific reference in the arbitrator’s reasons.[14]
[14] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [120].
We agree, and accept, the primary judge’s evaluation that the appellant had the power to do so by presenting evidence in several possible ways. This included, for instance, giving evidence in the form of an affidavit setting out what the appellant heard during the course of the arbitration or, potentially, issuing a subpoena for the arbitrator’s notes.[15] Ultimately, the primary judge was required to make a finding as to whether or not the arbitrator was in error in respect to a question of law based on the material presented to him. As succinctly stated by his Honour “the parties are responsible for the conduct of the litigation” – not the judge.[16]
[15] Transcript 21 March 2024, p.42 lines 30–35.
[16] Transcript 21 March 2024, p.43 lines 14–15.
Accordingly, there is no merit to this Ground of Appeal.
Ground 3 – Discharge of obligation to provide reasons
Counsel for the respondent, appropriately, did not demur from the proposition that a failure to provide adequate reasons will constitute an error of law.[17]
[17] Fleming v The Queen (1998) 197 CLR 250 at [22], citing Pettitt v Dunkley [1971] NSWLR 376 at 381–382, 385 and 388.
In recognising that principle, after a detailed analysis of the arbitrator’s reasons, the primary judge concluded at [44] that “[t]the Arbitral Award discharges the obligation to enable the parties to identify the basis of the determination and to the extent which their arguments have been understood and accepted, explaining why one case is preferred over the other” (Italicised emphasis added).
Those italicised words are crucial to understanding the primary judge’s reasons in rejecting the assertion that there was an error in respect to the fourth paragraph which formed the basis of the review application. As noted earlier, that question was:
That the Arbitrator was in error in law in failing to provide any or adequate reasons for his determination that after a period of cohabitation of some 34 years, that the parties respective contributions should favour [the respondent] as to 78% and [the appellant] as to 22%.
In [34]–[39] of his judgment, the primary judge set out in considerable detail the reasons provided by the arbitrator in explaining how he exercised his discretion in considering the parties respective contributions. In doing so, the primary judge also explained why those reasons were adequate.
It is the earlier detailed analysis to which the primary judge referred when he stated that the reasons provided by the arbitrator were adequate, including his conclusion that the arbitrator had adequately explained why “one case was preferred over the other” (at [44]).
Insofar as counsel for the appellant suggested that this Ground of Appeal can also be construed as a challenge to weight attached to particular evidence in arriving at a finding of fact, it does not raise a question of law, and is therefore not a valid ground.[18] In Bugmy v The Queen (2013) 249 CLR 571 at [51] and [53], Gageler J (as his Honour then was) stated that a challenge to the weight attributed to particular evidence is incapable of establishing an error justifying appellate intervention unless, “taken with other circumstances”, it might be indicative that the trial judge’s decision “in the totality of the circumstances was unreasonable or plainly unjust”.
[18] Simmonds v Gammell [2016] EWHC 2515 (Comm) at [33]. See also Waterford v Commonwealth (1987) 163 CLR 54 at 77 (Brennan J) and similarly observed by Menzies J in R v The District Court; Ex parte White (1966) 116 CLR 644 at 654.
None of the questions of law that were before the Court in the first instance proceedings (as set out at [8] of this judgment), contend that the decision of the arbitrator was perverse, unreasonable or “plainly unjust”. In those circumstances, the attempted extension of Ground 3 to a weight challenge fails as not establishing an error of law that was overlooked by the primary judge.
Accordingly, for these reasons, Ground 3 is without merit.
DISPOSITION
There being no merit in any of the grounds of appeal, the primary appeal is dismissed.
THE COSTS APPEAL: NAA 141 OF 2024
On 24 April 2024, the respondent filed written submissions and an affidavit in support seeking firstly, that the appellant pay her costs on an indemnity basis, fixed in the sum of $65,000, and secondly, that he pay $2,000 for the costs application.
On 30 May 2024, the primary judge published his reasons and made orders for the appellant to pay the respondent’s costs fixed in the sum of $67,000: Nellie & Nellie (No 3) [2024] FedCFamC1F 367.
His Honour noted (at [4]) that the appellant had not filed any material in respect to costs and that a Notice of Appeal had been filed, but that the appeal had not been listed for hearing.
By his Notice of Appeal filed on 11 June 2024, the appellant contends eight grounds of appeal against the order for costs made by the primary judge.
At the outset of the appeal, the parties indicated that an agreement had been reached between them that the appeal in respect to costs should be allowed and the question of costs remitted for re-hearing before the primary judge. The parties differed, however, as to the nature of the error with the appellant asserting lack of procedural fairness and the respondent conceding an error only in respect to the quantification of costs awarded.
While noting the position of the parties, an appeal cannot be allowed merely because the parties reach agreement to that effect. The appellate court must be satisfied as to the existence of appealable error.[19]
[19] Bhatnagar & Riju [2018] FamCAFC 144.
In this case, the parties submitted that there was error on the part of the primary judge for different reasons. The appellant contended that the primary judge erred in failing to afford procedural fairness to the appellant. The respondent denied there had been any such failure, contending appropriate steps were taken to inform the appellant of the opportunity to make submissions in respect to the question of costs. The respondent acknowledged, however, that there was a calculation error in respect to the quantum of costs awarded to the respondent.
In this case, we have decided to dismiss the appeal on the basis that the appellant has not, prior to filing the appeal, taken all reasonably available steps to address his grievance that he had not been afforded the opportunity to make submissions in respect to the question of costs. Further, we question how the appellant can logically advance a complaint of a denial of procedural fairness where they have not availed themselves of every opportunity to advance their case.
In that respect, r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) relevantly provides that:
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party…
The appellant did not follow the proper procedural steps before filing his Notice of Appeal in respect to the question of costs. In Lorde & Chu [2014] FamCAFC 228 at [36], the Full Court stated:
… it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a rehearing rather than seek to have the matter dealt with by a way of an appeal (Wilkes and Wilkes (1981) FLC 91-060). Moreover, Rule 16.05 of the Federal Circuit Court Rules 2011 (Cth) [now r 10.13] provides for a rehearing at first instance in such circumstances.
In Beale & Harvie [2023] FedCFamC1A 181 at [15], Austin J echoed these sentiments when summarily dismissing an appeal in circumstances where, notwithstanding its lack of reasonable prospects of success, the appellant had commenced the appeal without exhausting their remedies at first instance. There are significant public policy reasons for requiring parties to take that course which is “more appropriate, and far less expensive”.[20]
[20] Re Darley (No 2) (2023) 379 FLR 234 at [55].
Consistent with those authorities, we dismiss appeal NAA 141 of 2024. In so doing, we note that no time limit is specified in r 10.13 and there is no impediment to the appellant applying directly to the primary judge for his decision in respect to costs to be revisited. We note that counsel indicated that the respondent would have no objection to any such application being made.
COSTS
The respondent seeks costs in respect to the substantive appeal (NAA 97 of 2024) but not in respect to the costs appeal (NAA 141 of 2024). We are satisfied that such an order should be made in circumstances where the appellant has been wholly unsuccessful (s 117(2A)(e) of the Act) and the appeal was conducted in a manner that lacked focus (s 117(2A)(c) of the Act) in that:
·The grounds of appeal where poorly expressed, and a considerable amount of time was taken in trying to understand the nature of the grievance expressed in each ground.
·The appeal itself was largely misconceived in that the appellant sought to essentially reargue his case at first instance.
·During the course of the appeal, counsel for the appellant veered a considerable way off course beyond the grounds of appeal.
These factors, in our view, outweigh the financial disparity between the parties. Moreover, even in that respect, we note that the husband received about $900,000 as a result of the outcome of the arbitration which has been the subject of this appeal.
Rule 12.17 of the Rules sets out the methods of calculating costs including by the Court fixing a specific amount for costs (r 12.17(1)(a) of the Rules).
By ordering costs to be paid by way of a fixed sum amount, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill.[21]
[21] Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51].
Having regard to the itemisation provided by the solicitor for the respondent, we are satisfied that the costs in the sum of $11,600 is “logical, fair and reasonable” in terms of the principles adumbrated in Stoian v Fiening (Costs) [2014] FamCA 944 at [91]. In that respect, we commend the respondent for the detail provided in her Costs Notice and the appropriate concession she made in reducing her costs by preparation associated with the costs appeal.
We therefore make an order for the appellant to pay the respondent’s costs of the appeal in the fixed sum of $11,600.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Tree & Altobelli. Associate:
Dated: 27 September 2024
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