Nellie & Nellie
[2023] FedCFamC1F 1050
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nellie & Nellie [2023] FedCFamC1F 1050
File number: SYC 8520 of 2022 Judgment of: CAMPTON J Date of judgment: 8 December 2023 Catchwords: FAMILY LAW – REGISTRATION OF ARBITRAL AWARD – Where husband objects to the registration of an award pursuant to reg 67Q of the Family Law Regulations 1984 (Cth) – Consideration of circumstances in which a court would not register an award – Interpretation of the meaning of “any reason” within reg 67Q of the Family Law Regulations 1984 (Cth) – Whether a condition can be imposed upon registration – Where the refusal of an application to register an award pursuant to reg 67Q is not a discretionary determination – Where the dispute to registration presents a binary choice being either the objector demonstrates the findings of fact to establish a reason as contemplated by the scheme of the Act and the Regulations for the award not to be registered or they do not – Where it would be farcical if “any reason” for the purposes of reg 67Q(3) could be the vehicle to drive a dummy run to subsequent litigation – Application dismissed Legislation: Family Law Act 1975 (Cth) Pts IIIB, VIII, ss 10SM, 13A, 13E, 13H, 13J, 13K, 79
Family Law Regulations (1984) (Cth) reg 67B, 67Q
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07
Cases cited: Entezam v Devi (2021) 62 Fam LR 637; [2021] FamCA 25
House v The King (1936) 55 CLR 499; [1936] HCA 40
Keaty & Swann [2023] FedCFamC1F 178
Kingdom of Spain v Infrastructure Services Luxembourg Sàrl (2023) 275 CLR 292; [2023] HCA 11
McLaughlin & McLaughlin [2023] FedCFamC2F 1160
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Safi & Rafiq [2023] FedCFamC1F 692
TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5
Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37
Division: Division 1 First Instance Number of paragraphs: 60 Date of hearing: 6 December 2023 Place: Sydney Solicitor for the Applicant: Hall Partners Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: Bay Legal ORDERS
SYC 8520 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NELLIE
Applicant
AND: MS NELLIE
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.The relief sought by the Husband in paragraph 1 of his Response to an Application in a Proceeding filed 29 November 2023 objecting to the registration of the arbitral award of Mr B dated 8 November 2023 is dismissed.
2.Pursuant to s 13H of the Family Law Act 1975 (Cth) (“the Act”) the arbitral award be and is hereby registered.
3.The arbitral award that has by this order been registered has, pursuant to s 13H(2) of the Act, effect as if it is a decree made by this Court.
4.The costs of each of the husband and wife of and incidental to these orders are reserved to the determination of the balance of the relief sought in the Response to an Application in a Proceeding filed 29 November 2023.
5.The relief sought by the husband in paragraphs 2 – 8 of the Response to an Application in a Proceeding filed 29 November 2023 by way of review of the registered arbitral award of Mr B dated 8 November 2023 pursuant to s 13 J of the Act be listed for case management at 2.15 pm on 12 December 2023.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
By way of an Initiating Application filed 30 November 2022 in the Federal Circuit and Family Court of Australia (Division 2), Mr Nellie (“the husband”) sought orders for the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). By way of a Response to Final Orders filed 2 February 2023, Ms Nellie (“the wife”) sought different orders as to the adjustment of that property.
By way of a consent order made pursuant to s 13E of the Act on 7 August 2023, the Pt VIII matter was referred to arbitration. On 9 August 2023, the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1) and was placed in the National Arbitration List.
The arbitration was conducted on 25 and 26 September 2023. There was no transcript of the hearing before Mr B as the arbitrator.
The Arbitral Award, Exhibit 1, (“the Arbitral Award”) was dated and published on 8 November 2023.
The husband filed an Application in a Proceeding on 8 November 2023, sealed by the Court on 16 November 2023, seeking, amongst other things, an order restraining the wife from seeking to register the Arbitral Award. On 21 November 2023, that Application in a Proceeding was withdrawn and dismissed on a without admissions basis. Other directions were made.
On 21 November 2023, the wife filed a Form 8 – Application to register the Arbitral Award.
On 29 November 2023, the husband filed a Response to an Application in a Proceeding (agreed to constitute an application in an arbitration) objecting to the registration of the Arbitral Award. In the alternative, he sought to review the registered Arbitral Award pursuant to s 13J of the Act.
For the reasons that follow, the husband’s application objecting to registration of the Arbitral Award will be refused and that relief dismissed. As agreed at the hearing on 6 December 2023, in the event, should the husband’s objection to registration be unsuccessful, then by consent, the Arbitral Award dated 8 November 2023 will be forthwith registered. The relief of the husband seeking review of the registered Arbitral Award pursuant to s 13J of the Act is listed for case management at 2.15 pm on 12 December 2023.
BACKGROUND
For the purposes of this determination, it was uncontroversial that:
(a)The parties appointed Mr B to conduct the arbitration.
(b)Mr B is an arbitrator as defined by s 10SM of the Act and reg 67B of the Family Law Regulations (1984) (Cth) (“the Regulations”); and
(c)The parties agreed to attending arbitration pursuant to an undated arbitration agreement they entered into with the arbitrator (Exhibit 2) and pursuant to the order made on 7 August 2023.
The parties unencumbered property at Suburb C (“the Suburb C property”) had been sold for $3,500,000. The sale is scheduled to complete in late 2023. The wife can remain in occupation thereafter but is required to vacate the property in early 2024.
The arbitrator found the property of the parties to be $5,024,916 and their liabilities to be $68,518, finding the “net asset pool” to be $4,956,398.
At arbitration, the husband sought that the property of the parties be divided equally. The wife sought that their property be divided 80 per cent in her favour and 20 per cent in favour of the husband.
The Arbitral Award determined the contributions of the parties to favour the wife as to 78 per cent and the husband 22 per cent. The contribution finding was adjusted in favour of the wife by 2 per cent, concluding that the property of the parties ought to be adjusted 80 per cent to the wife and 20 per cent to the husband.
The Arbitral Award broadly provides for the proceeds of sale of the Suburb C property to be applied to the selling fees, discharge any loans registered on the title of the property, reimburse the wife for the husband’s share of specified expenses, payment to the husband of $940,000 less an interim property sum of $200,000 already paid to him (net to be paid $740,000) and the balance to be paid to the wife. The husband is required to remove any caveat from the tile of the property within seven days. The Arbitral Award did not otherwise adjust the property of the parties. The wife retained a property at Suburb D (“the Suburb D apartment”).
In his Response to an Application in a Proceeding (agreed to constitute an application in an arbitration) filed 29 November 2023 the husband sought:
1.That the Court refuse registration of the Arbitration Award handed down by [Mr B] as Arbitrator on 8 November 2023, on the basis that in the circumstances of the factual and other findings contained within the Award, there is “other reason” having been shown by the Husband in respect of the Award as constitutes proper reasons to refuse registration of the Award for the purposes of Regulation 67Q to the Family Law Act 1975 (Cth) ‘the Act’;
2.Alternatively, that the Court refuse registration of the Arbitration Award handed down by [Mr B] as Arbitrator on 8 November 2023, on the basis that the award is occasioned by error of law for the purposes of Section 13J(1) of the Act, as would discretely also occasion another “other reason” for the purposes of the Court exercising the discretion conferred by Regulation 67Q, to decline to register the Award;
3.That the Court, in the event that it permits the registration of the Award, order non pro tune and for the purposes of Section 13J(1) of the Act, that the award is occasioned by error of law for the purposes of Section 13J(1) of the Act, and that in accordance with Section 13J(2)(b), the Court reverse the award;
4. An Order for the giving or making or trial directions in these proceedings;
5.Alternatively, an Order that the Court, permit registration of the Award (pursuant to Section 13J(2)(b)), or on such other basis as this Court thinks fit, but varies it to take account of the following matter, and which appear incorrect with the Award:
(a)to reverse out of the calculations of the net Estate, [Motor Vehicle 1] and which was not an asset contained or referred to in the final balance sheet that was submitted at Arbitration;
(b)to permit the Husband to keep the [Suburb D] property, the Husband having been the only party that have evidence at the Arbitration to the effect that he intended to live at the property, in the event that the Arbitrator awarded it to him
(c) to add back the legal costs expended by the Wife up to the date of arbitration, and / or up to the date of Orders being made concerning the Hearing of this (application), to the final balance sheet adjustments, for the purposes of performing the ultimate calculation of the parties as to their respective entitlements to receive out of the matrimonial estate;
(d) to add back the costs of the mediator as a debt of the Husband, (exclusively), to be charged against his ultimate entitlement to share out of the Estate and to reverse any effect upon the award, whereby it was proposed that the Wife would assume any form of responsibility for the making of this payment;
(e) to adjust the ultimate proportion(s) by which the parties are entitled to receive interests out of the martial estate to reflect an entitlement of 50% to be payable to the Husband from the net estate, and 50% to be payable to the Wife, or for such other percentage of the marital estate as appears to be just and appropriate to the Court;
6. An Order for interim property settlement to be paid to the Husband and to the Wife out of the net proceeds of sale of [E Street, Suburb C], NSW […], as to $740,000 to the Husband and as to $740,000 to the Wife; or for such other amount as in the view of the Court is just and appropriate to be ordered as an interim payment from which the parties ought share in the proceeds of the Estate;
7. An order for the entry of an Order non pro tunc, granting a stay in respect of any order concerning the registration of the decision of the Award, provided that either party if they claim to be disaffected by any orders made in the reasons of the decision handed down in respect of this Application take steps to Appeal the decision of the Court within 21 days;
8. Any such Orders as appear just and appropriate to the Court.
The evidence of the husband in support of his objection to registration by way of his affidavit filed 8 November 2023 is:
4. I oppose the entry of the award as a judgement of this Court and on the basis that I say the judgement contains manifest error.
5. Amongst those errors are the following errors:
(i). that at the date of award I was the owner of [Motor Vehicle 1] and [Motor Vehicle 2];
(ii). That the decision makes no account of the adding back of the Respondent’s legal costs against the estate, and hence the entitlements of the parties;
(iii). That the obligation to pay the costs of the mediator was an estate debt, whereas it was my debt and was required to be paid by me out of my share of the estate as was ultimately subject of the award;
(iii). The finding that the Respondent Wife intended to make the [Suburb D] home unit as her home, upon the conclusion of the proceedings;
(iv). The failure of the award to find that it was the Applicant that intended to make the [Suburb D] Home his home upon the conclusion of the proceedings;
(v). Other finding(s) as to contribution that were against the evidence or the weight of the evidence, and that included findings that ought to have sensibly followed from affidavits read in the proceedings, and that were not the subject of cross examination at hearing;
The husband relied upon his written submissions filed 2 December 2023 (Exhibit 3).
The wife relied upon her written submissions sent to chambers on 6 December 2023 (Exhibit 4). Therein she sought that the relief prosecuted by the husband in his Response to an Application in a Proceeding filed 29 November 2023 be dismissed and for the husband to pay her costs.
THE LAW
Arbitral awards can be, but need not be, registered. The Court does not register an award on its own motion. Notwithstanding, a consent order was made on 7 August 2023 for the husband to register the Arbitral Award with the Court.
If a party elects to pursue registration they are obliged to follow the procedures set out in reg 67Q of the Regulations, being:
67Q Registration 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.
…
(4)If nothing is brought to the court’s attention under subregulation (3), the court must register the award.
(5)If a party brings a matter to the court’s attention under subregulation (3), the court must, after giving all parties a reasonable opportunity to be heard in relation to the matter, determine whether to register the award.
The recognition and enforcement of arbitral awards commences with s 13H of the Act, which provides as follows:
(1) A party to an award made in section 13E arbitration or in relevant property or financial arbitration may register the award:
(a) in the case of section 13E arbitration—in the court that ordered the arbitration; or
(b) otherwise—in a court that has jurisdiction under this Act.
(2) An award registered under subsection (1) has effect as if it were a decree made by that court.
(Emphasis added)
Part IIIB of the Act contains key provisions preserving the rights of parties to arbitration being:
(a)Section 13H(1), supplemented by reg 67Q of the Regulations, which permits a party to object to registration, as the husband has done in this case;
(b)Section 13J, which permits a party to review a registered award on questions of law, as the husband has also done in this case; and
(c)Section 13K, which permits a party to apply to set aside a registered award in certain circumstances.
With respect to the registration process, it was said in Safi & Rafiq [2023] FedCFamC1F 692 (“Safi & Rafiq”) at [47] that:
Neither the Act nor the Regulations prescribe any indicia that the Court must consider when determining an objection [to] not register an award. The Act itself does not create a capacity to object to registration. It is silent on the Court’s role in the registration process.
THE HUSBAND’S SUBMISSION AS TO LAW
The husband’s submissions recorded as follows:
15. It is in these circumstances, that the decision of Safi & Rafiq [2023] FedCFamC1F 692 (22 August 2023), (being a decision of Justice Campton), emerges as first instance authority to the effect that registration of an award follows more or less by administrative operation. (It is contended in this submission however, that the determination and points of principle taken in Safi are in fact, incorrect).
(Emphasis added)
The husband’s contention as to the identified part of the judgment in Safi & Rafiq is inaccurate. Whether the registration of an award is an administrative or judicial function was canvassed in detail with Safi & Rafiq at [32], [36], [37], [40] – [42], including what emerges from the High Court in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 251 CLR 533 (“TCL Air Conditioner”) that registration is a determination in accordance with judicial process and necessarily involves a determination of questions of legal right or legal obligation at least as to the existence of, and parties to, an arbitral award. An order of the competent court determining the application on the merits then operates of its own force as a court order to create a new charter by reference to which those questions are in future to be decided as between the parties to the application. That is so for an order dismissing the application just as it is for one ordering that the arbitral award be enforced. This discerned the path of reasoning to the conclusion in [59] of Safi & Rafiq, which records:
The final caveat I would raise in relation to the reasons in Entezam & Devi is that, for the reasons identified at [29]–[31] above, the determination of an objection to registration is not an administrative act.
(Emphasis added)
The husband said that upon registration of an award the Act has “profound effects on the legal status of the award” by the operation of ss 13J and 13K of the Act.
The husband submitted as to the legislation and applicable principle underscoring the foundations of his objection to the registration of an arbitral awards that:
(a)By way of statutory construction, the term “any reason” in reg 67Q(3) is:
9. …the intentional nature of the language employed [such that] a complete discretion in terms of the decision to register an award or not; the judicial decision-making power of a court to decide whether or not the Court would recognize [sic] an award as being of the same effect, as if it were the product of a judgment of the Court.
(Emphasis added)
(b)“Any reason” is informed by what he described as the “significant constraints” imposed by ss 13J and 13K of the Act to questions of law, when cast against what he described as the more ample terms on which a litigant may appeal from a s 79 determination made by a Court through grounds “attacking the legal, factual and/or discretionary errors in that decision”.
Putting it simply, the husband submits that the statutory interpretation of the regulation ought to employ the “meaning of the words actually used” as the “surest guide to legislative intention”. Contained within his submissions filed 2 December 2023 are plethora of authorities as to statutory interpretation. The husband did not start with ascertaining the text of the regulation considered in light of its context and purpose. If reading the text of the regulation in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381). The husband did little to highlight the application of those principles identified to the fact of a discretion existing (as he asserts exists) not to register an arbitral award.
Inquiry was made to the husband as to whether, on his construction of the words “any reason” in reg 67Q, there was therefore no consideration or matter that informed what he said was the exercise of discretion to register or refuse to register the Arbitral Award, such that the determination was arbitrary. The husband struggled to engage with that enquiry.
In his written submissions filed 2 December 2023 he said:
29. … the regulation is aimed to protect litigants from the registration of awards that may visit an injustice or other abuse, by ensuring that any such awards need not be registered.
…
32. … it is also necessary to consider the position where a litigant in this Court participating in an arbitration process, but believing that if something should go seriously wrong in the award, their rights are protected by a clause establishing a right of appeal for “any [other] reason”…
He described as a legitimate foundation to object to an award, being where something had gone “seriously wrong in the award”, or if it is established that a litigant’s rights are “protected” by reg 67Q(3) establishing “a right of appeal” for “any other reason”. It is not known how the husband differentiates, on his construction, between “any reason” as contained in the regulation, and “any other reason”.
The husband attempted to engage with [50] of Safi & Rafiq:
50. To my mind, his Honour correctly identifies the absurdity of suggesting that a Court would refuse registration of an award for “any reason” in its literal sense, including “on the basis that the arbitrator had green eyes, for example” (at [23]). By way of analogy, it would be mischievous to suggest (the husband did in this case) that “any reason” would include that a party was dissatisfied with the overall determination of an arbitral award, or thought they could or should have achieved a greater adjusted share of the parties’ property.
(As per the original)
This generated a shift in the husband’s case during oral submissions. He said “the discretion” afforded by the words “any reason” to register the Arbitral Award is subject to a constraint. He said the constraint is “reasonableness”, and that the regulation ought to be read in terms so as to “prevent injustice”.
He did not reconcile how his amended submission as to what he had asserted was a complete discretion by way of the “meaning” of “any reason” morphed to a constraint to that discretion being for the purpose of the protection of rights, the prevention of injustice or “other abuse” or “reasonableness”.
THE HUSBAND’S GROUNDS FOR OBJECTION TO REGISTRATION
The husband relied on seven grounds of objection to registration of the Arbitral Award, each set out as subheadings below.
Considerations re percentage contributions;
The husband submitted the conclusion or finding as to contribution by the arbitrator miscarried, in that a number of incontrovertible subsidiary facts on the evidence were not considered or were not adequately considered. He complains as to excessive weight being given to some evidence and insufficient weight to other evidence. He cited House v The King (1936) 55 CLR 499 (“House v The King”) to complain that the ultimate conclusion of the Arbitral Award determination was unreasonable.
Failure to add back legal expenses;
The husband submits the arbitrator made a factual error on the add backs of the wife’s legal costs and erred in the exercise of discretion. He contends that the parties were ordered to pay their own costs, and the wife had “largely paid” her legal costs prior to the arbitration hearing commencing. The wife’s costs were in the sum of $60,234, including costs paid of $19,784, estimate of Counsel’s fees being $30,000 and the arbitrator’s fees of $10,450 (being half of the total arbitrator’s costs).
Intentions/use for the Suburb D apartment;
The husband contends that a finding made on this subject matter was not available. The materiality of this complaint is uncertain.
Motor Vehicles 1 and 2;
The husband says the arbitrator incorrectly included both Motor Vehicle 2 and Motor Vehicle 1 as being owned by the husband, when in fact Motor Vehicle 1 was traded in to purchase Motor Vehicle 2.
Wife to pay the husband’s share of mediator fees;
The husband contends that the effect of the Arbitral Award is that he is paying the wife’s half of the mediator’s fees. He says that this results in the order that the wife discharge the husband’s half of the mediator’s fees being incorrect and not capable of standing.
General basis for the Court to re-exercise the discretion as to contributions
This point was difficult to understand, other than that the Court should vary the Arbitral Award to recognise the numerous unchallenged affidavits that were read in the proceedings before the arbitrator that demonstrated that the husband had completed work. The husband made lengthy submissions on the evidence presented to the arbitrator, reciting the content of many affidavits from witnesses in the husband’s case that worked alongside him or others who observed his work. The import of the submissions made on these subject matters was that this evidence “proves” why the husband’s case ought to have been accepted.
The extent of the husband’s submissions on this complaint echoed the conduct of this application for objection to registration taking the shape of an original hearing. They are a window into his objection to registration of the Arbitral Award.
Adverse inference – lack of business records
The husband complains that the finding made as to his disclosure failures were not available on the evidence, or that an irreconcilable inconsistency existed between the onus of proof imposed on the wife to that he had to meet.
Registration of an arbitral award – not a discretionary determination
In oral submissions the husband contended that the evaluation of both the legislation and relevant High Court authority as concluded in [57] of Safi & Rafiq were incorrect. That paragraph records:
Arising from this analysis, to my mind, the refusal of an application to register an award pursuant to reg 67Q is not a discretionary determination. This is the second caveat to my agreement with the reasons of Wilson J as foreshadowed above. The dispute to registration presents a binary choice: either the objector demonstrates the findings of fact to establish a reason as contemplated by the scheme of the Act and the Regulations for the award not to be registered or they do not. There is no scope for discretion in this regard (this conclusion sits in contrast to Entezam & Devi at [8]).
(Emphasis added)
During the hearing, inquiry was made of the husband as to the avenues available on an application objecting to the registration of an arbitral award being other than to either to register it or to refuse to register it.
The husband wanted to immediately proceed, prior to registration of the Arbitral Award, to a consideration of its variation pursuant to s 13J of the Act. The husband could not engage with the inquiry as to how that could occur when regard is had to s 13J of the Act which commences with:
(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 …
(Emphasis added)
The Court has no jurisdiction to consider the husband’s application pursuant to s 13J until the Arbitral Award is registered.
The husband then submitted that some form of conditional registration was available. That contended condition of registration was that a variation of the Arbitral Award, in the terms or range as he sought, would immediately thereafter in a single hearing event be determined by way of a s 13J of the Act exercise of discretion. The husband was unable to identify a source of power to enable the course he promoted. His submission is unorthodox, illogical and departs from principles underlying the formulation of jurisprudence. It is akin to a conditional bargaining position and is reflective, as identified later in these reasons, of the reality of the gravamen of his primary reasons of objection to registration of the Arbitral Award.
The husband elucidated no persuasive authority to challenge the reasoning in Safi & Rafiq or to set out why it is wrong. His contentions as to law and applicable principle in so far as they are not aligned with that judgment are rejected.
The meaning of ‘any reason’ within reg 67Q of the Regulations
The seven reasons that the husband submits would fall within the meaning of ‘any reason’ by way of reg 67Q to refuse registration of the Arbitral Award equate to a failure consistent with that identified in House v The King commonly understood and identified as ‘appellant error’ in the discretionary determination by way of the award.
The tenor and content of the husband’s submissions as to a reason not to register the Arbitral Award were akin to re-running the primary determination before the arbitrator, much like an original hearing on review from an order made by delegated judicial officers by way of r 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
Deputy Chief Judge McClelland in McLaughlin & McLaughlin [2023] FedCFamC2F 1160 (“McLaughlin & McLaughlin”) clearly identified that the protections contained in Pt IIIB of the Act do not permit the running of the case again, saying:
41. … it is significant to note that the Pt VIII property proceedings between the parties was referred to private arbitration, with the consent of the parties, pursuant to s 13E of the Act. As such, the referral did not involve the delegation of the judicial power of the Commonwealth such that a review of the award necessitated a re-hearing.
As recorded in McLaughlin & McLaughlin, arbitration provides parties with a mechanism for resolving disputes other than the path of litigation before a court. Arbitral awards are enforceable and provide an effective way to give the parties finality.
The husband submitted during the hearing, if not expressly then implicitly, that his reasons for objection of registration of the Arbitral Award are because he has merit in his application to discharge or vary the award pursuant to s 13J of the Act. He did not engage with [51] of Safi & Rafiq which, discussed and agreed with the observations by Wilson J in Entezam v Devi (2021) 62 Fam LR 637, that extending “any reason” to include the grounds for review of a registered award for the purposes of Pt IIIB of the Act, that includes ss 13J and 13K, would be nonsensical.
I am not persuaded that the husband has elucidated that grounds for objection are expanded from that contained in Safi & Rafiq. The husband:
(a)Failed to engage with the reasons and content in High Court decisions such as TCL Air Conditioner; Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239 (“Westport Insurance”) and Kingdom of Spain v Infrastructure Services Luxembourg Sàrl (2023) 275 CLR 292, as underscoring the foundations for and regulation of the process of private arbitration;
(b)The objects set out at the commencement of Div 1 of Pt IIIB of the Act, which includes in s 13A(1):
(b)to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed;
(Emphasis added)
(c)This is further fortified by the fact that Reg 67Q(3) must be read within that scheme of Pt IIIB of the Act; and
(d)That scheme, as identified in s 13J prescribing the process of review of a registered award to a question of law, is to hold parties to their agreement to accept factual findings made by the arbitrator (see Westport Insurance at [27]).
Taking all of these considerations together, as recorded in Safi & Rafiq, the reason to object to registration ought to be grounded from a finding of fact that the arbitrator acted outside the scaffold of the Act, the Rules, the Regulations or the arbitration agreement.
The husband did not adduce evidence to ground a finding of fact as to irregularities in making the s 13E order, or deficiencies in the arbitration agreement, or that the arbitration was not conducted within the scaffolds of the Act, Rules, Regulations or the arbitration agreement, or that he entered into the agreements not on an informed basis, or that he did not expect to be bound by them.
The husband, in reality, seeks to have the matter re-heard and adjustments be made to the determination in the Arbitral Award before registration and thereafter to proceed with enforcement of the Arbitral Award. It would be farcical if “any reason” for the purposes of reg 67Q(3) could be the vehicle to drive a “dummy run to subsequent litigation” (see Keaty & Swann [2023] FedCFamC1F 178 at [70]).
I am not persuaded that the husband has engaged with that as identified in Safi & Rafiq as to establishing a finding of fact relevant to the consensual arbitration process or its corruption, to formulate a foundation to object to the registration of the Arbitral Award, nor did he engage with the objects of Part IIIB of the Act. He made no complaints of the arbitration process except as to the result. He could not identify any factual finding on the evidence to establish his desired binary options to object to registration. His desire to have another hearing of the dispute is not a reason for the purposes of reg 67Q(3) to object to registration of the Arbitral Award.
CONCLUSION
For all the reasons above, the husband’s application objecting to the registration of the Arbitral Award of Mr B dated 8 November 2023 will be dismissed. The parties agreed that the costs of and incidental to that relief will be reserved to the determination of the balance of the husband’s Response to an Application in a Proceeding filed 29 November 2023.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 8 December 2023
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