FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Olsen & Rich [2022] FedCFamC1F 324
File number(s): SYC5822 of 2018 Judgment of: WILSON J Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – NATIONAL ARBITRATION LIST –husband’s application pursuant to s 106A for a registrar of this Court to execute the arbitration agreement – wife no longer consents to arbitration – held, arbitration must be a consensual process – orders made removing this proceeding from the National Arbitration List. Legislation: Family Law Act 1975 (Cth) ss 13E, 106A
Family Law Regulations 1984 (Cth) regulation 67F
Cases cited: Age Old Builders Pty Ltd v Swintons Pty Ltd [2003] VSC 307
Entezam v Devi (2021) 62 Fam LR 637
Goh & Ren (2020) 61 Fam LR 508
Kill v Hollister (1746) 45 ER 532
Pattison v Loomis (2021) 62 Fam LR 283
R v Mr Justice Ross-Jones, ex parte Green (1984) 156 CLR 185
Re Carus-Wilson and Greene’s Arbitration (1886) 18 QBD 7
Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 35
Scott v Avery [1856] 5 AL Cases 811
Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305
Walton Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 587
Wyong Shire Council v Jenbuild Pty Ltd [2012] NSWSC 720
Clyde Croft, Drossos Stamboulakis and Marilyn Warren, International and Australian Commercial Arbitration (2022) LexisNexis)
David Sutton, Judith Gill QC and Mathew Gearing QC, Russel on Arbitration, 24th edn Sweet & Maxwell (2015)
Derek Roebuck, Arbitration and Mediation in Seventeenth –Century England, Holo Books, The Arbitration Press, Oxford 2017
Michael J. Mustill and Stewart Crauford Boyd, Commercial Arbitration, 3rd edn LexisNexis UK, London (2022)
Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 2 and 10 May 2022 Place: Melbourne Solicitor for the Applicant: Not applicable Solicitor for the Respondent: Mr Knox of Newnhams Solicitors ORDERS
SYC5822 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS OLSEN
Applicant
AND: MR RICH
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1.The referral of this proceeding to arbitration made under s 13E of the Family Law Act by his Honour Judge Monahan is forthwith terminated.
2.This proceeding is removed from the National Arbitration List.
3.This proceeding is referred to the Court’s National Assessment Team for allocation to the next available judge in Division 2 of the Federal Circuit and Family Court of Australia for trial, as a matter of urgency.
4.Any affidavit by the husband in support of an application for costs must be filed and served by noon on 27 May 2022.
5.Any affidavit in response to the husband’s application for costs must be filed and served by the wife by noon on 10 June 2022.
6.Both parties must file and serve written submissions by noon on 24 June 2022.
7.The costs matter will be determined on the papers thereafter.
Note: The form of the order…
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CaseChat Overview and Summary
In assessing the parties' intention to arbitrate, the court considered the definition of arbitration as well as various legal tests developed over time to ascertain such intention. The court referred to the classic formulation by Lord Esher MR in Re Carus-Wilson and Greene’s Arbitration, which emphasised the importance of the parties' intention to hold a judicial inquiry and make a decision based on evidence. The court also considered the historical context of arbitration, including its wide use in 17th century England for various types of disputes. The court examined whether the arbitration agreement in this case was intended to oust the jurisdiction of the courts, a concern that was ultimately dispelled by Lord Campbell LC in Scott v Avery.
After considering the legal principles and the specific circumstances of the case, the court determined that the parties had indeed agreed to arbitrate their dispute. The court found that the wife's refusal to arbitrate was not a valid reason to disregard the arbitration agreement. The court's reasoning was based on the intention of the parties to submit their dispute to a binding adjudicatory process, and the procedural fairness of the arbitration agreement. Consequently, the court upheld the arbitration agreement and required the parties to proceed with arbitration.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
On 10 May 2022 once the wife had read and considered the husband’s written submissions filed on 27 April 2022, I heard brief verbal submissions from both parties. The wife restated that she did not wish to arbitrate this matter. AGREEING TO ARBITRATION Arbitration has been described as a “binding adjudicatory process”.[1][1] Clyde Croft, Drossos Stamboulakis and Marilyn Warren, International and Australian Commercial Arbitration (2022) LexisNexis) (at [1.1]). In 17th century England, arbitration was in wide use and it embraced not only disputes over land but also commercial disputes as well as family law and inheritance disputes.[2][2] Derek Roebuck, Arbitration and Mediation in Seventeenth –Century England, Holo Books, The Arbitration Press, Oxford 2017. An early concern about arbitrations, arising from Kill v Hollister,[3] was that arbitrations purported to oust the jurisdiction of the courts. That concern was dispelled, and thereafter laid to rest by Lord Campbell LC’s speech in Scott v Avery[4] where the Lord Chancellor famously held as follows –I can see not the slightest ill consequence that can flow from such an agreement and I can see great advantage that may arise from it…public policy therefore, seems to me to require that effect should be given to the contract.[3] (1746) 45 ER 532. [4] [1856] 5 AL Cases 811. His Lordship there was addressing an arbitration agreement. The textbooks are mostly silent in the provision of any definition of “arbitration”, stating that the omission of a statutory definition was deliberate.[5] Certain tests have been developed over the centuries for the ascertainment of whether the parties intended to agree to arbitrate and whether that intention was reflected in the procedure adopted in reaching the decision made by the arbitrator. A classic formulation of that was expressed by Lord Esher MR in Re Carus-Wilson and Greene’s Arbitration.[6] It is utile to record it as follows – If it appears from the terms of the agreement by which a matter is submitted to a person’s decision, that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquiry, and hear the respective cases of the parties, and decide upon evidence laid before him, then the case is one of an arbitration. The intention in such case is that is that there shall be a judicial inquiry worked out in a judicial manner. On the other hand, there are cases in which a person is appointed to ascertain some matters for the purpose of preventing differences from arising, not of settling them when they have arisen and where the case is not one of arbitration but of a mere valuation. There may be case of an intermediate kind, where, though a person is appointed to settle disputes that have arisen, still it is not intended that he shall be bound to hear evidence or arguments. In such cases it may be often difficult to say whether he is intended to be an arbitrator or to exercise some function other than that of an arbitrator. Such cases must be determined each according to its particular circumstances. [5] David Sutton, Judith Gill QC and Mathew Gearing QC, Russel on Arbitration, 24th edn Sweet & Maxwell (2015) (paragraph 1-001).[6] (1886) 18 QBD 7, 9.