Paviello & Paviello
[2022] FedCFamC1F 592
Federal Circuit and Family Court of Australia
(DIVISION 1)
Paviello & Paviello [2022] FedCFamC1F 592
File number(s): SYC 2323 of 2017 Judgment of: WILSON J Date of judgment: 2 September 2022 Catchwords: FAMILY LAW – NATIONAL ARBITRATION LIST – application made under s 13J and s 13K to review arbitral award – no ground of review is successfully established nor basis shown under s 13K – application dismissed. Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 13J, 13K and 75(2)(o)
Cases cited: Bacall & Zagar [2020] FamCA 350
Barker v Barker (2007) 36 Fam LR 650
Belding & Belding [2020] FamCA 1027
Bevan & Bevan (2013) 49 Fam LR 387
Black v Kellner (1992) 15 Fam LR 343
Braddon v Braddon (2018) 59 Fam LR 234
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Chan & Lee [2022] FedCFamC1A 85
Chang v Su (2002) 29 Fam LR 406
De Winter v De Winter (1979) 4 Fam LR 583
Deputy Commissioner of Taxation v Shi [2021] HCA 22
Dougherty v Dougherty (1987) 163 CLR 278
Entezam v Devi (No 3) [2021] FamCA 549
Flight v Robinson (1844) 50 ER 9
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155
Goh v Ren (2020) 61 Fam LR 508
Griffiths & Griffiths [2022] FedCFamC1F 219
Griffiths & Griffiths (No 2) [2022] FedCFamC1F 379
Gronow v Gronow (1979) 144 CLR 513
Harris v Caladine (1991) 172 CLR 84
Holland v Holland [1918] P 273
Holloway v McFeeters (1956) 94 CLR 470
House v R (1936) 55 CLR 499
In the Marriage of Briese (1985) 10 Fam LR 642
In the Marriage of Giunti (1986) 11 Fam LR 160
In the Marriage of Marinko (1983) 8 Fam LR 849
In the Marriage of Mezzacappa (1987) 11 Fam LR 957
In the Marriage of Morrison (1994) 18 Fam LR 519
In the Marriage of Stein (1986) 11 Fam LR 353
In the Marriage of Suiker (1993) 17 Fam LR 236
In the Marriage of Weir (1992) 16 Fam LR 154
Kannisv Kannis (2002) 30 Fam LR 83
Lord Advocate & the Trustees of the Clyde Navigation v Blantyre (1879) 4 App Cas 770
Mallet v Mallet (1984) 156 CLR 605
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Norbis v Norbis (1979) 144 CLR 513
Oriolo v Oriolo (1985) 10 Fam LR 665
Ormerod v Todmorden Joint-Stock Mill Co Ltd (1882) 8 QBD 664
Pavic v Pavic [2018] FCCA 3386
R v Watson; ex parte Armstrong (1976) 136 CLR 248
Sharp v Wakefield [1891] AC 173
Stanford & Stanford (2012) 247 CLR 108
Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278
Waterman & Waterman [2017] FamCAFC 23
Young v Thomas [1892] 2 Ch 134
Division: Division 1 First Instance Number of paragraphs: 88 Date of Hearing: 12 July 2022 Date of last submissions: 2 August 2022 Place: Melbourne Counsel for the Applicant: Mr J. Morris SC with Mr A. Todd Solicitor for the Applicant: Jordan Djundja Lawyers Counsel for the First Respondent: Mr M. Stevens Solicitor for the First Respondent: Blanchfield Nicholls Counsel for the Second Respondent: Mr D. Dura Solicitor for the Second Respondent: Parker Law ORDERS
SYC 2323 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PAVIELLO
Applicant
AND: MR B PAVIELLO
First Respondent
MR A PAVIELLO
Second Respondent
order made by:
WILSON J
DATE OF ORDER:
2 September 2022
THE COURT ORDERS THAT:
1.The review applicant’s application in an arbitration dated 3 June 2022 is dismissed.
2.If any party seeks costs including costs of the arbitration –
(a)any application for costs must be filed and served with supporting affidavit evidence and submissions by noon on Thursday 15 September 2022;
(b)any affidavit in opposition to any affidavit seeking costs must be filed and served by noon on Thursday 29 September 2022; and
(c)costs thereafter will be decided on the papers.
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 Paviello & Paviello has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
Introduction
Following the registration of the arbitral award in this proceeding on 20 May 2022, the wife applied on 3 June 2022 for the award to “be vacated” (her words) pursuant to s 13J or s 13K of the Family Law Act. The wife sought the “discharge” (her word, although the word “discharge” does not appear in s 13J) of orders 1, 2, 3, 4, and 5 of the orders made by the arbitrator.
The wife also purported to invoke s 13K of the Family Law Act, asserting that certain matters gave rise to procedural unfairness.
For the reasons that follow, none of the grounds succeeded and I dismiss this review application.
In the course of addressing each ground of review I have canvassed the factual and legal issues so no useful purpose is served in repeating those matters in a more general context here.
ground 1
Ground one was as follows –
The Arbitrator erred as a matter of law in the process of making findings in reliance on evidence from the First Respondent husband and the Second Respondent given under the s 128 Certificate (as opposed to his 2014 proceedings):
(a)That was not satisfactorily or independently or contemporaneously corroborated;
(b)Given the finding of non-disclosure at [300.14] and (300.15];
(c)The finding at [300.9] the [R Trust] comprises financial resources available to the First Respondent husband.
The precise wording of ground 1 was discursive. A debate exists in the authorities about the need for real precision in the expression of a question of law that the review seeks answered.[1] In Griffiths & Griffiths (No 2)[2] I discussed the care required in the formulation of the “questions of law” to which s 13J is directed.
[1] The Honourable Justice Wilson, ‘National Arbitration List: A Practical Look At The Last Two Years’ (2022) Victorian Bar Family Law Presentation (forthcoming).
[2] [2022] FedCFamC1F 379.
At its core, ground 1 was concerned with the consequences of the arbitrator’s conclusion about material non-disclosure. The review applicant argued that material non-disclosure “should have been as to the ultimate just and equitable adjustment pursuant to s 79(2) of the Act”. The review applicant contended that rather than doing that, the arbitrator considered that non-disclosure enlivened s 75(2)(o) of the Act. The wife argued that authorities such as Black v Kellner,[3] In the Marriage of Briese,[4] Oriolo v Oriolo,[5] In the Marriage of Weir [6] and others contain stipulations about the correct approach to be adopted when one party has been derelict in his or her compliance with the duty of disclosure. In Bacall & Zagar[7] I surveyed the learning in those authorities between the years 1985 and 2020. It is useful to record some of the conclusions set out in that decision –
[3] (1992) 15 Fam LR 343.
[4] (1985) 10 Fam LR 642.
[5] (1985) 10 Fam LR 665.
[6] (1992) 16 Fam LR 154
[7] [2020] FamCA 350.
(a)rule 13.04 of the Family Law Rules, in operation in the lead up to the commencement of the arbitration in this case, imposed a duty of disclosure;
(b)that duty can be traced back to 19th century equitable principles;[8]
[8] Flight v Robinson (1844) 50 ER 9.
(c)the duty is owed to the court as well as to the parties to the proceeding;[9]
[9] Waterman v Waterman [2017] FamCAFC 23.
(d)full and frank disclosure of all material facts is a fundamental requirement in financial matters;[10]
[10] Black v Kellner (1992) 15 Fam LR 343, In the Marriage of Giunti (1986) 11 Fam LR 160 and In the Marriage of Mezzacappa (1987) 11 Fam LR 957.
(e)a party to a financial proceeding has a duty to make full disclosure of his or her financial affairs;[11]
[11] In the Marriage of Weir (1992) 16 Fam LR 154.
(f)the duty to disclosure is absolute;[12]
[12] Kannisv Kannis (2002) 30 Fam LR 83.
(g)the duty is crucial to the functioning of courts administering the Family Law Act;[13]
[13] In the Marriage of Morrison (1994) 18 Fam LR 519.
(h)full and frank disclosure of financial matters between the parties is basic to the process of the court and is one of the elements of the Family Law Act;[14]
(i)parties are expected to cooperate in the conduct of the proceeding in order to bring about an early and prompt conclusion with a minimum of expense;[15]
(j)the duty involves full and frank disclosure in a timely manner;[16]
(k)if a party breaches the duty of full and frank disclosure as outlined above, the uppermost limit of what can be ordered to be transferred to one party in a s 79 application is the whole of the ascertained property of the parties;[17]
(l)it is not open to a party who has failed to fulfil the duty of full and frank disclosure to rely on that failure so as to prevent the making of orders against the party in default;[18]
(m)any failure to disclose relevant financial information may lead a court to draw inferences against the person who failed to disclose the relevant financial information;[19]
(n)where there is clear evidence of non-disclosure the court should not be unduly cautious about making findings in favour of the innocent party;[20]
(o)once there is sufficient evidence to support a finding that a party has not made full and frank disclosure, the court has jurisdiction to make orders in relation to unidentified and undisclosed property;[21]
(p)the duty to disclose is absolute and it is beside the point whether the non-disclosure was wilful, accidental, the result of misfeasance or nonfeasance;[22] and
(q)in the case of deliberate non-disclosure, the court is entitled to draw inferences against the non-disclosing party.[23]
[14] In the Marriage of Suiker (1993) 17 Fam LR 236.
[15] In the Marriage of Marinko (1983) 8 Fam LR 849.
[16] In the Marriage of Briese (1985) 10 Fam LR 642, Waterman & Waterman [2017] FamCAFC 23, In the Marriage of Morrison (1994) 18 Fam LR 519 and In the Marriage of Suiker (1993) 17 Fam LR 236.
[17] Monte & Monte [1986] FamCA 1.
[18] In the Marriage of Giunti (1986) 11 Fam LR 160, Black v Kellner (1992) 15 Fam LR 343 and Oriolo v Oriolo (1985) 10 Fam LR 665.
[19] In the Marriage of Stein (1986) 11 Fam LR 353.
[20] In the Marriage of Weir (1992) 16 Fam LR 154 and Monte & Monte [1986] FamCA 1.
[21] Ibid.
[22] Chang v Su (2002) 29 Fam LR 406, In the Marriage of Weir (1992) 16 Fam LR 154 and Kannis v Kannis (2002) 30 Fam LR 83.
[23] In the Marriage of Stein (1986) 11 Fam LR 353, In the Marriage of Mezzacappa (1987) 11 Fam LR 957, In the Marriage of Giunti (1986) 11 Fam LR 160, In the Marriage of Morrison (1994) 18 Fam LR 519 and Barker v Barker (2007) 36 Fam LR 650.
Returning to ground 1, the review applicant focused on paragraph 300 of the arbitrator’s reasons. The arbitrator in the several sub-paragraphs of paragraph 300 addressed deficiencies of disclosure. The arbitrator stated in paragraph 300.10 as follows –
I am not satisfied, having regard to all of the evidence before me, that the Husband's only source of income and financial benefit is limited to that which the Husband derives from his work […]. On the state of the evidence, I am unable to make any precise finding as to what is the Husband's entitlement to income and other financial resources, including that which might be derived through the [R Trust].
The arbitrator addressed four motor vehicles, observing in paragraph 300.14 that the husband made no attempt to adduce evidence as to the source of funds that the husband applied in his acquisition of the four motor vehicles. The arbitrator then drew the inference that the husband had the benefit of additional income or access to funds not disclosed or access to some other financial resource which was utilised to acquire the motor vehicles. The arbitrator stated that he was left guessing, as was the wife.
It was open to the arbitrator to draw an inference if the material enabled such as an inference to be drawn.[24] However, circumstances giving rise to equal degrees of probability so that the choice between them is no more than a mere matter of conjecture will not support an inference legitimately drawn.[25] The arbitrator indicated he was left to guess at the source of funds used to purchase the four motor vehicles.
[24] In the Marriage of Stein (1986) 11 Fam LR 353.
[25] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, Holloway v McFeeters (1956) 94 CLR 470, Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 and Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278.
Commencing at paragraph 300.17 of the arbitrator’s reasons, the arbitrator emphasised the need for the parties’ compliance with their duties of disclosure, stating that compliance with such a duty is at the core of the administration of justice. The arbitrator then called in aid the decisions in Oriolo, Black v Kellner and In the Marriage of Weir and Chang v Su. As the authorities surveyed above reveal, not only is the arbitrator’s statement correct but the authorities that make good that proposition go beyond those cited by the arbitrator. The duty is absolute[26] and is crucial to the functioning of courts administering the Family Law Act.
[26] Kannis v Kannis (2002) 30 Fam LR 83.
In the second sentence of paragraph 300.20 of the arbitrator’s reasons, the arbitrator made the statement the subject of ground 1 of the review application. It was as follows –
The existing authorities in which findings of non-disclosure against a party have been made, make it clear that once a finding of non-disclosure has been made, a Court (or, in this context, an arbitrator) has the ability to do certain things to prevent fraud in the proceedings and what might otherwise be an injustice occasioned on the other party. A Court can, if the evidence so permits, ascribe a value for that non disclosed interest or asset or make an adjustment in favour of the other party taking into account the effect of the non-disclosure, particularly under Section 75(2)(o) of the Act.
The arbitrator referred to the approach sanctioned by certain of the authorities mentioned above including Weir[27] and Monte[28] to the effect that the court (or arbitrator) should not be unduly cautious of making findings in favour of the innocent party where non-disclosure is evident. The precise words in the arbitrator’s reasons were as follows –
No attempt was made by the Husband to adduce any evidence as to where the funds came from that were used by him to acquire his four [motor vehicles].
[27] (1993) 16 FamLR 154.
[28] [1986] FamCA 1.
In written submissions dated 19 July 2022, counsel for the review applicant contended that the reference in paragraph 300.20 to s 75(2)(o) was erroneous and represented an error of law. In support, the following matters were asserted by the review applicant –
(a)when identifying issues of non-disclosure, the arbitrator confined himself to s 75(2)(o) only;
(b)the arbitrator failed to mention a four-staged process of reasoning required in a s 79 proceeding;[29]
(c)once non-disclosure was found to exist, the arbitrator should have but failed to undertake a complete reconsideration of the four-step process;
(d)proceeding in the manner the arbitrator did constituted “an error of reasoning on the face of the record which amounted to an error of law” (her words);
(e)the arbitrator was entitled to ascribe a value to an asset which had been late disclosed but the arbitrator cannot ascribe a value to the non-disclosed interest being the financial resource that gave rise to the purchase of the late disclosed asset;
(f)the add-back for the motor vehicles did not account for the resources that existed to enable the acquisition of such an add-back asset with the consequences that the arbitrator erred in the sense used in House v R; [30]
(g)the arbitrator did not consider a relevant matter for the purpose of Chapter 13 of the (then operative) Family Law Rules with the consequence that the arbitrator erred in law in the sense used in House v R; and
(h)the arbitrator’s reliance upon s 75(2)(o) rather than s 79 in relation to the undisclosed underlying source of funds minimised the material non-disclosure and had the result of rendering uncertain the asset pool causing (what was described as) “an obvious injustice to the wife”.
[29] Speaking extra curially, The Honourable Justice Michelle Gordon has described the process in s 79 as involving two stages, not four: "Family Law and Equity – Friends, Enemies or Frenemies?" Peter Nygh Memorial Lecture – 19th National Family Law Conference 15 August 2022.
[30] (1936) 55 CLR 499.
In the course of developing aspects of those submissions, counsel for the review applicant contended that inadvertent non-disclosure rather than unintentional non-disclosure led to different consequences. Those submissions were as follows –
This is not to say there are not occasions of inadvertent non-disclosure due to the technicality of trusts, corporate interests, or the precise valuation of the same which may ultimately be added back without injustice being done particularly if such non-disclosure is explained and not intentional and with the Court then being comfortably satisfied that full and frank disclosure has occurred by the time of making final orders. But where non-disclosure is intentional the overriding policy of the Court to strongly discourage such practise warrants the Court not merely being "not unduly cautious" but sending an exemplary penalty for such practice which of itself would be just and equitable in the context of the conduct of the offending party.
For the first respondent, counsel also relied on written submissions. Those submissions incorporated contentions of general application as well as contentions referable to the specific grounds of review on which the review applicant relied. Of the more general contentions (as opposed to those directed to specific grounds of review) the first respondent contended as follows –
(a)the parties informed the arbitrator that there should be an equal division of matrimonial property;
(b)the parties informed the arbitrator that the main issue was whether the first respondent personally or jointly held a legal or equitable interest in real property, companies or businesses owned or controlled, whether directly or indirectly, by the second respondent;
(c)none of L Pty Ltd, H Limited, Ms S, M Pty Ltd or unit holders in M Unit Trust was joined as a party;
(d)the arbitrator informed the legal representatives of the parties that the arbitrator was encountering difficulty in ascertaining the documents that were said to be relevant to the trust dispute;
(e)the applicant’s case on the trust dispute failed for reasons given by the arbitrator in paragraphs 36, 84, 136, 137, 139, 140, 145, 166, 169-171, 171.6, 179-183 and 194 of the arbitrators reasons; and
(f)the arbitrator in fact, and quite properly, determined the proceeding in accordance with the discretion conferred by s 79 of the Family Law Act.
Counsel for the first respondent contended that the arbitrator examined in considerable detail, and weighed, the parties’ respective activities comprising the contributions of each between paragraphs 261 and 296 of the arbitrator’s reasons.
Counsel for the first respondent contended that the arbitrator addressed the relevant legislative provisions between paragraph 60 and 73 of the arbitrator’s reasons and that the arbitrator addressed the leading authorities on s 79 applications including the High Court’s decision in Stanford & Stanford[31] and the decision of the intermediate appellate court in Bevan & Bevan.[32] Counsel for the first respondent also argued that the arbitrator addressed the correct authorities in relation to the consequences of defective disclosure including Weir.[33] As has been already recorded above, other authorities exist on point although the arbitrator does not seem to have considered them.
[31] (2012) 247 CLR 108.
[32] (2013) 49 Fam LR 387.
[33] (1993) 16 FamLR 154.
So far as the procedure under s 13J was concerned, despite being invited to do so, counsel for the review applicant declined to advanced submissions before me on the meaning of “review” as opposed to the meaning of the word “appeal” where elsewhere used in the Family Law Act. Accordingly, in the absence of detailed debate on the issue it would not be proper for me to adjudicate on the correct construct of the word “review” where used in s 13J. Counsel for the first respondent relied on the decisions of a judge of what was once the Federal Circuit Court of Australia in Braddon v Braddon[34] and in Pavic & Pavic.[35] In both of those decisions the judge pronounced that on a review application under s 13J the review applicant must establish error of law. In view of the fact that the point was not debated before me it is not appropriate to rule definitively on point on this review application. However, even at this juncture I express my gravest reservation that the word “review” in s 13J requires the review applicant to demonstrate error of law. The point must await determination on another day. That said, it seems to me to be arguable that “review” and “appeal” are not the same. Debate may also abound in relation to whether the material the court examines on a review is the same as the material a court examines on the hearing of an appeal. Further, in the specific context of s 13J the “review” is on “questions of law”. Debate may very well be enlivened on whether a question of law equates with a question of fact or even with a question of mixed fact and law. In addition, issues may very well arise about the degree of precision with which the question of law must be expressed. As I say, those points remain for another day, including whether the decisions in Braddon v Braddon as well as in Pavic v Pavic are correct. It will be necessary for me to determine those issues in due course once I have the benefit of detailed submissions. This case is not the correct vehicle for that, however.
[34] (2018) 59 Fam LR 234.
[35] [2018] FCCA 3386.
The second respondent also relied on detailed written submissions. In essence, the second respondent (brother of the husband) sought orders dismissing the review application, contending that the wife in the arbitration was wholly unsuccessful against the second respondent. Counsel for the second respondent argued that –
(a)no questions of law were posed in the review application; and
(b)instead, the review applicant was in reality challenging the exercise of discretion in which the arbitrator engaged.
Counsel for the second respondent argued that the review applicant failed to demonstrate that it was not proper for the arbitrator to consider the husband’s non-disclosure when assessing relevant s 75(2) factors and when undertaking the balancing exercise that a s 79 application calls for. In addition, counsel for the second respondent submitted that –
(a)at paragraph 70 of his reasons the arbitrator identified, correctly, the process that he was required to follow in determining a s 79 application;
(b)the so-called public policy considerations that were allegedly involved in any consideration of s 75(2) factors were not articulated;
(c)the wife’s assertions that the court exacts penalty for non-disclosure is wrong;
(d)the arbitrator correctly identified the issues in dispute on the balance sheet in paragraph 89 and following of the reasons for the arbitral award;
(e)no question of law was enlivened in ground 1;
(f)the review applicant’s submissions about inferences were not made to the arbitrator; and
(g)even if the matter agitated in ground 1 could be correctly described as a question of law, it should be answered in the negative.
consideration of ground 1
At the outset it is necessary to identify the task borne by a review applicant on a review under s 13J.
As the passages earlier appearing disclose, I entertain doubts (although I do not decide the point) that the statement about the operation of s 13J in Braddon and Pavic are correct. If they are later found to be wrong, then they must be overruled.
The “review” to which s 13J is directed does not involve a hearing de novo as does a review of a registrar’s decision, it seems to me. That is in part the function of the different wording of the relevant legislative provisions and of the observations of the High Court in Harris v Caladine.[36] As I have observed above, whether the content of a “review” is the same as an “appeal” remains for another day. That said, it seems to me to be unlikely that the legislature is to be taken to have intended that an arbitrator to whom a s 79 application is referred for determination in pursuance of s 13E is to apply different considerations to those a judge must apply when determining a s 79 application. So, when a dissatisfied party takes the s 79 determination further, whether to a single judge in the case of an arbitral determination or to a full court in the case of a judicial determination, the matters falling for examination by the reviewing body should be the same. Were it otherwise, a party to an arbitration would be penalised for selecting arbitration because by that selection of arbitration, the parties to arbitration would somehow have compromised their remedies consequent upon a s 79 determination. I am unable to see that such a result would follow in the absence of very plain wording in the legislation. No such wording appears. In my view it follows that the “review” in s 13J involves an examination of the evidence that was before the arbitrator against the questions of law posed in the review application so as to determine whether the arbitrator’s determination on the s 79 application was just and equitable.
[36] (1991) 172 CLR 84.
Under ground 1 the review applicant placed heavy reliance upon the arbitrator’s statement that non-disclosure enlivened s 75(2) considerations. The review applicant submitted that non-disclosure went to s 79 issues in the context of the verification of aspects relating to the property pool. Of that contention several things must be said.
First, s 75(2)(o) is among the many s 75 factors to which the arbitrator was required to have had regard. That subsection is deliberatively broad. The arbitrator took the view that the matter of disclosure deficiencies (more properly, dereliction of duty concerning disclosure) was captured by s 75(2)(o). The review applicant argued that an error of law was thereby disclosed.
I do not agree. The authorities that I surveyed above concerning the consequences of disobedience with the duty of disclosure speak of the relevant rule in Chapter 13 of what was then the Family Law Rules. Those authorities addressed the impact of non-compliance with the duty of disclosure in a s 79 application. The statements of principle arising from those authorities bear upon s 79 applications. It seems to me to follow axiomatically that if non-disclosure and its consequences is a matter that can be taken into account in a s 79 application, then non-disclosure is also a matter, which, by operation of s 75(2)(o), can legitimately be taken into account. In other words, s 75(2)(o) is one of the legislative enabling provisions pursuant to which non-disclosure finds its status in a s 79 application.
Here, the arbitrator specifically identified non-disclosure as a matter to be taken into account under s 75(2). Far from that not being an error of law, s 75(2) expressly permitted its consideration.
The second issue raised in ground 1 was the review applicant’s erroneous attribution of non-disclosure solely to s 75(2). On a plain reading of the reasons of the arbitrator, the steps to be addressed in a s 79 application – by the legislation itself and by the authoritative cases that have considered the legislation – were in fact addressed. It would be quite wrong to say otherwise. In addressing those considerations, the arbitrator concluded that the orders pronounced were just and equitable. Deficiencies of disclosure were but one component of the overall assessment of the claims asserted by the parties leading to the ultimate adjustment of the parties’ property interests under s 79. No error was thereby revealed.
The third issue raised in ground 1 was the consequence of the non-disclosure. The arbitrator concluded that he was unable to reach a determination about the source of funds deployed in the acquisition of four expensive motor vehicles. The review applicant argued, erroneously in my view, that once it was apparent that non-disclosure had occurred, the arbitrator was required to completely reconsider the four-step process.
I disagree. The consequences of non-disclosure are set out in the leading authorities on point which I have addressed in paragraph 7 above. A judge or arbitrator faced with non-disclosure may do any one of the following things –
(a)as the uppermost limit of available options, the judge or arbitrator is empowered to order that the whole of the ascertained property is provided to the party who is not in default of disclosure;[37]
(b)draw inferences against the party in default;[38]
(c)not be unduly cautious about making findings in favour of the party who is not in default of disclosure;[39] and
(d)make orders in relation to unidentified and undisclosed property.[40]
[37] Monte & Monte [1986] FamCA 1.
[38] In the Marriage of Stein (1986) 11 Fam LR 353.
[39] In the Marriage of Weir (1993) 16 Fam LR and Monte & Monte [1986] FamCA 1.
[40] Ibid.
I do not accept that the court is unable to ascribe a value to a non-disclosed interest in an asset, as the review applicant submitted in paragraph 31(a)(ii) of her submissions. Orders in relation to unidentified and undisclosed property may be made.
Equally, I do not accept the submission of the review applicant that “the limited approach by the arbitrator worked an obvious injustice to the wife.” No injustice was worked on her, still less an “obvious” injustice, whatever that meant.
Having read the award closely in its entirety several times, I take the view that the arbitrator applied the correct legal principles, in reference to not only the consequences of defective disclosure but as well as in relation to s 79 issues, and that in so doing, the arbitrator applied the correct legal principles.
It must be said that ground 1 raised a matter relating to the observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[41] where the High Court held that reasons under review should not be read with an eye keenly attuned to the existence of error. Ground 1 is an illustration of the review applicant reading the arbitrator’s reasons with an eye keenly attuned to the existence of error. That should not be done.[42]
[41] (1996) 185 CLR 259.
[42] Chan & Lee [2022] FedCFamC1A 85 (at [110]).
So far as the second respondent’s submissions on ground 1 were concerned, there is merit in the submission that in reality, ground 1 was akin to a challenge to the exercise of the arbitrator’s discretion as opposed to there being a valid question of law posed.
Ground 1 failed. I dismiss it.
ground 2, 3, 4, 8 and 10
The review applicant chose to cluster those five grounds into one, advancing submissions on each in the one set of contentions. To better understand each ground of review it is necessary to record each. They were as follows –
2.The exercise of discretion and jurisdiction by the Arbitrator in s 79(2) of the Act wholly miscarried given that:
(a)The cumulative findings as to non-disclosure of assets [300 .13] on the one hand, and the persisting failure to disclose income, access to funds, or financial support [300 .15] that enabled the acquisition of items of substantial value[300.22] by the First Respondent husband, the findings of false evidence ([84J, [85], [163] and [226]) and lack of credit of the First Respondent husband ([83], [84], [85] and [86]) and the lack of employment prospects of the Applicant wife [300.3]; and
(b)The failure to consider the likelihood of substantial financial resources additional to the four [motor vehicles] that had not been disclosed by the First Respondent husband.
(c)The Second Respondent's admission as to the false backdating of the First Respondent husband's retirement from the Trust.
(d)The admitted false sworn evidence ([239], [242], [244]. [251] and [253]) and the 'cavalier explanations ([241), [242], [243], [246], [247] and [251]) given by the Second Respondent;
(e)Failed to consider or determine the likelihood (in all of the circumstances including the late disclosure of assets [300.13] and [300.14] and information and the failure to disclose income, access to funds or financial support [300.15] and [300.221), the Respondent brothers had colluded in each of their respective family law proceedings so as to minimise their exposure to a s 79(2) order in favour of their respective wives in each case;
(f)The common involvement of each of. the Respondents in business enterprises and probable financial benefits received by each Respondent therefrom which would constitute financial interests in the hands of each of the Respondents but which each Respondent colluded so as to minimise their financial exposure in their respective family laws 79 proceedings;
(g)Failed to make any finding that each Respondent was untrustworthy in giving their evidence;
(h)Failed to appreciate the inability of the Applicant wife to adduce evidence of the First Respondent husband's assets or source of funds or financial support was in large part created by his failure to disclose income, access to funds or financial support by the Respondents pursuant to some arrangement between them.
3.Failed to appreciate the inability of the Applicant wife to adduce evidence of the First Respondent husband's assets or source of funds or financial support was in large part created by his failure to disclose income, access to funds or financial support by the Respondents pursuant to some arrangement between them.
(a)The failure by the First Respondent husband to disclose assets [300.14];
(b)The failure of the First Respondent husband to· disclose income, access to funds or financial support [300.15] and [300.22];
(c)The false evidence given by the First Respondent husband ([84], [85], [163] and [226]) and the Second Respondent ([239], [242], [244], [251 ], [253]);
(d)The evidence of the Second Respondent given in the 2014 proceeding and under the s.128 Certificate;
(e)The volunteered evidence of Second Respondent to assist the First Respondent husband, tainted by admitted relevant false sworn evidence as to the assets of the First Respondent husband in 2014, and the evidence of the First Respondent husband. by reason of the findings as to credit and non-disclosure, should not have been accepted without independent corroboration;
(f)That the Respondent brothers had probably colluded as to the evidence to be presented
so as to demonstrate an error in the fact finding process.
4.The Arbitrator, upon finding the Trust assets were not part of the pool of assets to be apportioned, and upon finding non-disclosure by the First Respondent husband as to property (including the [motor vehicles] [300.13]), and the ongoing nondisclosure of the income or access to funds or financial resources of the First Respondent husband [300.15):
(a)Erred in failing to find the Applicant wife should be entitled to substantially all of the known property of the parties by reason of non-disclosure;
(b)That upon finding the First Respondent husband had either the benefit of unexplained additional income, capital or access to funds not disclosed or some other financial resource [300.15], the Arbitrator should have found the First Respondent husband's material and ongoing non-disclosure of that information entitled the Applicant wife to at least 90 per cent of the known asset pool.
(c)Otherwise in failing to make substantial adjustments pursuant to s. 75(2) significantly in excess of 7 .5%
….
8.The Arbitrator erred as a matter of law in failing to provide any, or any adequate reasons for the s 75(2) adjustment between the parties being entitlement of the Applicant wife being 7 .5 per cent of the asset pool to the Applicant wife in [304] and [306].
….
10.That the Arbitrator having found the Respondents so conducted their businesses and financial interests such that, notwithstanding the interposed legal entities and structures, the First Respondent husband would receive funds and financial benefits as required erred in not making a significant adjustment in favour of the Applicant wife pursuant to both s 79 and/ors 75(2).
The review applicant asserted in her submissions dated 19 July 2022 at paragraph 33 that those grounds “essentially amount to the same point”. While not stated as a question of law in the application under s 13J, in the review applicant’s written submissions her counsel at paragraph 34 put the position in the following terms –
[34] The question of law prosed by Ground 2 is "Did the exercise of discretion and jurisdiction by the Arbitrator in s 79(2) of the Act wholly miscarry given:
(a)The cumulative findings as to non-disclosure of assets [AW 300.13 and 300.14] on the one hand, and the persisting failure to disclose income, access to funds, or financial support [AW 300.15] that enabled the acquisition of items of substantial value [AW 300.15 and 300.22] by the First Respondent husband in a short period of time, the find ings of false evidence ([AW 84], [AW 85], [AW 163] and [AW 226]) and lack of credit of the First Respondent husband ([AW 83), [AW 84], [AW 85) and [86)) and the lack of employment prospects of the Applicant wife [AW 300.3 (failure to take relevant matters into account);
(b)The failure to consider the likelihood of substantial financial resources additional to the source of funds to purchase four [motor vehicles] that had not been disclosed by the First Respondent husband (failure to take relevant matters into account);
(c)The Second Respondent's admission as to the false backdating of the First Respondent husband's retirement from the Trust [AW 226, 227 & 228] (failure to take relevant matters into account including public policy);
(d)The admitted false sworn evidence ([AW 239], [AW 242), [AW 244), [AW 251] and [AW 253]) and the 'cavalier' explanations ([AW 241), [AW 242), [AW 243), [AW 246], [AW 247] and [AW 251]) given by the Second Respondent (failure to take relevant matters into account including public policy);
(e)The failure to consider or determine the likelihood (in all the circumstances including the late disclosure of assets [AW 300.13] and [AW 300.14] and information and the failure to disclose income, access to funds or financial support [AW 300.15] and [AW 300.22]), being evidence the Respondent brothers had colluded with each of their respective family law proceeding so as to minimise their exposure to a s 79(2) order in favour of their respective wives in each case. (This was a failure to take into account a matter relevant to the public policy considerations of the adjustment based on non-disclosure or failure to take a relevant matter into account);
(f)The failure to make any finding that each Respondent was untrustworthy in giving their evidence. (This was a failure to take into account a matter relevant to the public policy considerations of the adjustment based on non-disclosure or failure to take a relevant matter into account);
(g)The common involvement of each of the Respondents in business enterprises and probable financial benefits received by each Respondent therefrom which would constitute financial interests in the hands of each of the Respondents but which each Respondent colluded to minimise their financial exposure in their respective family law s 79 proceedings. (This was a failure to take into account a matter relevant to the public policy considerations of the adjustment based on nondisclosure or failure to take a relevant matter into account);
(h)The failure to appreciate the inability of the Applicant wife to adduce evidence of the First Respondent husband's assets or source of funds or financial support was in large part created by his failure to disclose income, access to funds or financial support by the Respondents pursuant to some arrangement between them. (This was a failure to take into account a matter relevant to the public policy considerations of the adjustment based on non-disclosure or failure to take a relevant matter into account)
(i)The late disclosure of the existence of the motorcycles when the evidence had closed, and the First and Second Respondents had been cross-examined but not on the [motor vehicles] or when they were acquired, or on the source of funds to enable their acquisition. (This was a failure to consider a matter relevant to the public policy considerations of the adjustment based on non-disclosure or failure to take a relevant matter into account).
The so-called “questions of law” so posed loosely approximated grounds 2(a)-(h) but with the inclusion of an assertion in subparagraph (i) about the late disclosure concerning the existence of motor vehicles.
Ground 3 addressed different issues as did grounds 4, 8 and 10. Be that as it may, the review applicant seemed willing to bundle a collection of quite different issues into what she described as “essentially amount[ing] to the same point”. For example, ground 3(d) addressed the provision to the second respondent of a certificate under s 128 of the Evidence Act (on which no party before me made submissions concerning the High Court’s recent statement about its operation in Deputy Commissioner of Taxation v Shi).[43]
[43] [2021] HCA 22.
In essence, the review applicant argued that the arbitrator’s discretion miscarried. She relied on her contentions in relation to ground 1. That seems to have been for the reason that many of the arguments advanced in relation to grounds 2, 3, 4, 8 and 10 were re-runs of the principal complaint made under ground 1, namely, the consequences of disclosure deficiencies in relation to the four motor vehicles. For example, the review applicant’s submissions focussed on disclosure issues in paragraphs 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 55. Disclosure issues were addressed under ground 1. I dismissed that ground. One would be entitled to think the same outcome should follow in relation to grounds 2, 3, 4, 8 and 10 insofar as issues about non-disclosure are involved.
The gravamen of the review applicant’s assertions under grounds 2, 3, 4, 8 and 10 was embedded in paragraph 54 of her written submissions. There, her counsel wrote the following –
[54] Given the obvious continuing non-disclosure of the First Respondent Husband and the Second Respondent which was clearly orchestrated and at least in part within the knowledge of the Second Respondent, that the Applicant Wife should have received the whole, or substantially the whole, of the nett identified matrimonial asset pool.
The arbitrator refused to find the existence of a conspiracy between the first and second respondents.
I reject the glib and unsubstantiated assertion by counsel for the review applicant in paragraph 53 of her submissions. It was in the following terms –
In response to [70], the submission made at [AS 63] is not the same as that discussed in [AW 168]. Further, as to the submission at [SR 70], there is no explanation for the late disclosure, nor does it grapple with the fact the Second Respondent knowingly misled the Court in 2014 for financial advantage and has failed to correct the record in respect of same. He gives evidence on those issues with the protection of the s.128 Evidence Act certificate. He is manifestly devoid of credit.
That submission should only have been made with full information. Speculation was insufficient. I do not accept that the arbitrator misdirected himself in terms of the learning in Black v Kellner. And I reject out of hand the conclusion that read –
Either way, there was an error of law.
The review applicant made no attempt to identify the statement of principle from House v R with which the asserted so-called error of law was concerned.
The first respondent argued that the review applicant’s contentions about the arbitrator’s reasons do not demonstrate that the arbitrator’s discretion miscarried or that the arbitrator failed to apply the correct legal principle. The first respondent submitted that five matters could affect the exercise of discretion, namely –
(a)acting on a wrong principle;
(b)allowing extraneous or irrelevant matters to guide or affect the person exercising the discretion;
(c)mistaking facts;
(d)failing to take into account a material consideration; or
(e)reaching a result that is unreasonable or plainly unjust.
The first respondent submitted that the arbitrator’s award is not amenable to attack on any of those grounds. So far as the last point was concerned, namely, reaching a result that is unreasonable or plainly unjust, the first respondent submitted that the arbitrator’s award was, in fact, just and equitable within the contemplation of s 79 of the Family Law Act.
The first respondent invited me to dismiss grounds of review 2, 3, 4, 8 and 10.
The second respondent argued that no question of law was posed by grounds of review 2, 3, 4, 8 and 10 and instead they were little more than a review, or challenge, to the exercise of discretion by the arbitrator. The second respondent submitted that the arbitrator made no error contending that in reality the review on grounds 2, 3, 4, 8 and 10 amounted to nothing more than the wife’s dissatisfaction with the factual findings made by the arbitrator.
Consideration of grounds 2, 3, 4, 8 & 10
It seemed to me that under review grounds 2, 3, 4, 8 and 10 the review applicant was, in reality, challenging the arbitrator’s exercise of his discretion. Limits exist on the challenge to the exercise of discretion. Those were set out in House v R,[44] although Anglo-Australian jurisprudence of immense veneration preceded that decision.[45] Irrespective, since 1936 the decision in House v R is accepted as the locus classicus in any consideration of the discretionary exercise of judicial power.[46] The discretion conferred by the Family Law Act is “extraordinarily wide”[47] as the High Court has held. Interference with the exercise of discretion is much circumscribed. In the end, the arbitrator was required to reach a conclusion that was “just and equitable”. As the High Court in Stanford v Stanford instructs,[48] the expression “just an equitable” is a qualitative conclusion reached after examination of a range of potentially competing considerations, not admitting of exhaustive definition. The High Court held it is not possible to chart its metes and bounds.
[44] (1936) 55 CLR 499.
[45] Lord Advocate & the Trustees of the Clyde Navigation v Blantyre (1879) 4 App Cas 770, Sharp v Wakefield [1891] AC 173, Ormerod v Todmorden Joint-Stock Mill Co Ltd (1882) 8 QBD 664, Young v Thomas [1892] 2 Ch 134 and Holland v Holland [1918] P 273 to name but a few.
[46] In the specific exercise of discretion under the Family Law Act, the High Court has pronounced on point in R v Watson; ex parte Armstrong (1976) 136 CLR 248, Gronow v Gronow (1979) 144 CLR 513, Mallet v Mallet (1984) 156 CLR 605, Norbis v Norbis (1979) 144 CLR 513 and Dougherty v Dougherty (1987) 163 CLR 278.
[47] De Winter v De Winter (1979) 4 Fam LR 583.
[48] (2012) 247 CLR 108.
The High Court then went on to state that three fundamental propositions must not be obscured.
The mere fact that a judge may have taken a different view about a particular set of circumstances, absent vitiating factors set out in House v R, does not mean that the discretion exercised by the arbitrator miscarried and is amenable to being overturned.
I am not persuaded that any of the matters set out in grounds 2, 3, 4, 8 and 10 represented matters that vitiated the discretion exercised by the arbitrator in this case. In my view, the arbitrator was entitled to find as he did. Those grounds of review were in truth challenges to the exercise of the arbitrator’s discretion. There is considerable force in the second respondent’s submission that the wife is dissatisfied by the outcome, although that does not establish a basis for interfering with the discretion so exercised by the arbitrator.
Ground 8 raised an issue of alleged insufficiency or inadequacy of reasons. The review applicant argued that the arbitrator was under an obligation to provide adequate reasons. In Griffiths & Griffiths[49] I examined the adequacy of arbitral reasons. The statement in the reasons in Griffiths & Griffiths applies here in relation to the adequacy of reasons. The review applicant contended that the arbitrator failed to adequately explain the 7.5% amount as recompense for non-disclosure. Counsel for the second respondent submitted that the reasoning of the arbitrator is found between paragraphs 300.3 and 300.22 of the arbitrator’s reasons. There is merit in the second respondent’s submissions. The percentage amount was wholly within the discretion of the arbitrator. It is trite to observe that orders for the alteration of property interests are not mathematical equations. Once the arbitrator determined that a 7.5% sum was to be applied, the proper assessment of his reasons involved an examination of his observations about defective disclosure. For reasons addressed under ground 1, in my view the arbitrator applied the correct principles from established authority in arriving at the conclusion that he reached in respect of defective disclosure. I am unable to see the basis for the review applicant’s assertions in which she sought to impugn the reasoning behind 7.5%.
[49] [2022] FedCFamC1F 219.
In my view there is no merit in any of the complaints raised in grounds 2, 3, 4, 8 and 10. Each must be dismissed.
Grounds 5 & 6
Ground 5 addressed s 128 of the Evidence Act. It was in the following terms –
5. The Arbitrator erred as a matter of law in the process of making findings in reliance on evidence from the First Respondent husband and the Second Respondent given under the s.128 Certificate (as opposed to his 2014 proceedings):
(a)That was not satisfactorily or independently or contemporaneously corroborated;
(b)Given the finding of non-disclosure at [300.14] and (300.15];
(c)The finding at [300.9] the [R] Trust comprises financial resources available to the First Respondent husband.
Ground 6 related to s 128 of the Evidence Act. It was in the following terms –
6. The Arbitrator erred in fact finding process by accepting the evidence given by the Second Respondent under the grant of a certificate as being true in the face of, and before making the findings at [300.14] and [300.15] regarding the First Respondent husband's access to:
(a)Additional income;
(b)Funds not disclosed;
(c)Another financial resource (inferentially not disclosed).
The review applicant took those two grounds together. While not appearing as stated grounds of review in the application in an arbitration, for the purposes of ground 5, the review applicant put forward what she called “the text of the question of law in ground 5” as follows –
7. The text of the question of law in Ground 5 is:
Whether the Arbitrator erred as a matter of law in the process of making findings in reliance on evidence from the First Respondent husband and the Second Respondent given under the s 128 Certificate ( as opposed to his 2014 proceedings):
(a)That was not satisfactorily or independently or contemporaneously corroborated;
(b)Given the finding of non-disclosure at [AW 300.14] and [AW 300.15];
(c)The finding at [AW 300.9] the [R Trust] comprises financial resources available to the First Respondent husband?"
Self-evidently, the review applicant was challenging the use that could be made of the evidence of the first and second respondent when each respondent gave evidence to which a s 128 certificate applied. In essence, the review applicant contended that the arbitrator erred by accepting the respondents’ evidence when it was (using her words) “not satisfactory or independently or contemporaneously corroborated”.
In developing the argument in relation to Ground 5 the review applicant contended that the second respondent gave evidence under cover of a s 128 certificate. The review applicant submitted that the arbitrator found that the second respondent admitted to having given false evidence which, so the review applicant submitted, led to one finding only being open, namely, that the second respondent was a liar. Thoroughly theatrically in an overstated manner, but erroneously, counsel for the wife put the point in the following terms –
Having given evidence with the benefit of the s 128 certificate, the only finding available is that he is an admitted liar, who will say anything to pursue his own financial goals. This evidence independently infects the credibility of the First Respondent. The Arbitrator should have found the evidence given under the Certificate was false and the evidence given in the 2014 proceedings by the Second Respondent might have been inaccurate on one issue but was otherwise the truth.
The review applicant did not debate nor even submit how the observations of the High Court in Deputy Commissioner of Taxation v Shi[50] were relevant. For that matter, the review applicant took me to no authorities whatsoever on s 128 of the Evidence Act, especially the use to which evidence addressed in respect of which a s 128 certificate applied may be put. Equally, neither respondent made submissions on point.
[50] [2021] HCA 22.
Counsel for the first respondent argued that the credibility of the first respondent could not be affected by the actions of the second respondent, and even if the position were otherwise, such a submission now advanced by the review applicant was not the subject of submissions before the arbitrator. The first respondent submitted that no error flowed from the matters asserted in ground 5.
The second respondent contended that Ground 5 was no more than a challenge to the exercise of discretion by the arbitrator. On his behalf it was argued that the review applicant was endeavouring to challenge the arbitrator’s fact finding in the determination of whether the first respondent had any form of equitable interest in the assets of the second respondent. The second respondent argued that the arbitrator did in fact have regard to documentary evidence in respect of various trusts and companies in which the review applicant asserted the first respondent had some equitable interest. The second respondent argued that the arbitrator rejected the wife’s assertions. He said this ground of review must fail.
Consideration of grounds 5 & 6
To my way of thinking the arbitrator addressed the issue about which the review applicant complained under Ground 5 and the arbitrator’s reasons at paragraphs 165, 196, 202, 234 then 237-253 form part. In addition, the s 128 point was not developed by the review applicant, whether in reference to the decision in Deputy Commissioner of Taxation v Shi or at all. I was not at all persuaded that it had merit. In those circumstances ground 5 failed, as did ground 6.
Ground 7
Ground 7 was as follows –
The Arbitrator fell into error in the fact finding process by finding the First Respondent husband did not have any interest in [2 D Street, Suburb E] ((174]) given the finding at [300.9].
Expressed most basically, the review applicant contended that it was more probable than not that the first respondent did in fact have an entitlement to an equitable interest in real property described as 2 D Street. The review applicant submitted that the arbitrator should have so found having regard to –
(a)each respondent’s lack of credit;
(b)their obfuscation;
(c)the first respondent’s disclosure deficiencies; and
(d)the likelihood that the first respondent could treat any equity in that property as being an entitlement or resource the first respondent could access.
The review applicant emphasised the respondent’s disclosure deficiencies. It was put at paragraph 78 of the review applicant’s submissions as follows –
The Court should not be called upon to speculate in circumstances of admitted false evidence and material non-disclosure not only to the assets and resources of the husband but also as to the basis upon which such assets came into the hands of the husband and the election by both Respondents not to seek to reopen their case to explain the circumstances, chronology, and origin of the late disclosed $250,000 motorcycles which would impliedly have caused far greater disclosure difficulties to the husband's case. This is a case where the husband is guilty of egregious non-disclosure orchestrated with the assistance of the Second Respondent.
The first respondent contended that the wife’s assertions are not maintainable. He said the alleged “interest” was not identified. He also argued that the wife relied on no authority to make good her contentions. He also argued that the proposition that a financial resource equates to an interest in any asset was not only not put to the arbitrator but it was a proposition unknown to the law.
The second respondent advanced several bases of opposition to this ground of review. They were –
(a)the property at 2 D Street, Suburb E is owned by the trustee of the R Trust, namely L Pty Ltd;
(b)the wife did not argue that such ownership was a sham;
(c)the second respondent is the sole owner and director of L Pty Ltd; and
(d)the wife did not contend that the first respondent had an interest in the R Trust.
Expressed slightly differently, the wife failed to demonstrate that the first respondent had any equitable interest in that parcel of real estate. The review applicant seemed to contend that such a finding was not open because the husband or the second respondent were witnesses whose evidence was not to be believed, and that in truth, the first respondent ought to have been found to have had an equitable interest in that parcel of land.
Consideration of ground 7
That contention inverts the evidentiary burden. L Pty Ltd was the registered proprietor of the relevant land. In order for the applicant to successfully contend that one of the respondents had some equitable interest, two things needed to happen –
(a)she needed to identify the relevant interest alleged; and
(b)she needed to prove the existence of that equitable interest.
She failed to do either.
Proof of the identity of the relevant equitable interest, the details of which she did not give nor proof of the existence of that alleged interest, was not made out by findings about the respondents’ general lack of credit, their apparent asserted obfuscation or a finding about non-disclosure. It fell to the applicant to prove the interest she asserted. She failed to do so. She did not assert that some pivotal finding of the arbitrator was mistakenly made that might otherwise have proved the point. I am not satisfied that Ground 7 had any merit at all. I dismiss it.
ground 9
Procedural unfairness was invoked in Ground 9. That was not a matter with which s 13J was concerned. Instead it enlivened one of the elements of s 13K. Ground 9 was as follows –
The following matters gave rise to procedural unfairness to the Applicant wife:
(a)The First Respondent husband's delayed disclosure (without explanation) (ninth day of arbitration) (Transcript p 592 and 596) of the existence of four [motor vehicles] of a combined value of $250,000 in the context of no evidence of financial capacity to purchase them [300.14];
(b)The First Respondent husband's ongoing failure to disclose income or access to funds or other financial resources [300.15];
(c)The Second Respondent's late disclosure (without explanation) (on seventh day of arbitration ) (Transcript p 500) of 2014 financial records held by his solicitor, [Ms T];
(d)The late disclosure by both Respondents and ongoing failure to disclose by the First Respondent deprived the Applicant wife of the opportunity to adequately investigate and consider such material so as to reply to the same.
On an examination of the review applicant’s submissions, the procedural unfairness alleged related somehow to disclosure deficiencies. That much is plain from paragraph 80(a)-(d) the wife’s submissions. Those were as follows –
(a)The First Respondent husband's delayed disclosure (without explanation) (ninth day of arbitration) (Transcript p 592 and 596) of the existence of four [motor vehicles] of a combined value of $250,000 in the context of no evidence of financial capacity to purchase them [AW 300.14];
(b)The First Respondent husband's ongoing failure to disclose income or access to funds or other financial resources [AW 300.15];
(c)The Second Respondent's late disclosure (without explanation) (on seventh day of arbitration) (Transcript p 500) of 2014 financial records held by his solicitor or [Ms T];
(d)The late disclosure by both Respondents and ongoing failure to disclose by the First Respondent deprived the Applicant wife of the opportunity to adequately investigate and consider such material so as to reply to the same.
In reliance upon my decision in Goh v Ren[51] and Griffiths & Griffiths[52] the review applicant argued that the whole of the award should be set aside. In particular, counsel on her behalf contended as follows –
(a)the arbitrator failed to meaningfully investigate late disclosure by the first respondent;
(b)by reason of the first respondent’s late disclosure, the wife was denied the opportunity of adequately investigating the surrounding circumstances including the extent of other assets that may have been available;
(c)the manner in which the late disclosure was given on day 8 of the arbitration highlights how the wife was denied procedural fairness.
[51] (2020) 61 Fam LR 508.
[52] [2022] FedCFamC1F 219.
The first respondent submitted that the entitlement to invoke s 13K(1) is not at large,[53] and that a review applicant must demonstrate one or more of the elements of s 13K(2).[54]
[53] Entezam v Devi (No 3) [2021] FamCA 549 (at [13]).
[54] Belding & Belding [2020] FamCA 1027.
The first respondent submitted that at the arbitral hearing the review applicant made the forensic decision to continue. Once the late disclosure emerged, the first respondent argued that the review applicant’s Senior Counsel debated the issue with the arbitrator and the arbitrator dealt with it in the manner recorded by the arbitrator between paragraphs 300.13 and 300.32 as well as at paragraph 300.38 of the arbitrator’s reasons. The first respondent submitted that at no stage during the debate with the arbitrator did the review applicant’s Senior Counsel contend that any procedural unfairness would be or was occasioned to the wife by proceeding.
On behalf of the second respondent Mr Dura argued that no question of law was raised by the review applicant. That submission seemed to be premised on ground 9 being raised in the context of s 13J rather than in the context of s 13K(2). The point was fairly made because the review applicant failed to differentiate between s 13J on the one hand and s 13K on the other in the context of ground 9. At all events, counsel for the second respondent pointed out that once the box of documents were produced and were thereafter inspected by the review applicant, the decision was made by the review applicant to proceed. No adjournment application was made.
Consideration of ground 9
It must not be overlooked that this ground raised issues consequent upon the late production of documents rather than on the failure to produce documentation.
It seemed to me that the wife could have, but failed to, apply to adjourn the arbitration once documentation was produced late. That was a forensic decision open to her, no doubt exercised upon careful consideration with the benefit of advice from her Senior Counsel. Yet she elected to press on. The arbitrator continued the arbitration. In the face of such an election by the wife, advised by her Silk, the arbitrator cannot sensibly be said to have denied the wife procedural fairness by pressing on at the request of the applicant before him.
There is not merit in ground 9. It failed. I dismiss it.
outcome
All grounds failed. I dismiss the review applicant’s application in an arbitration dated 3 June 2022.
Costs
If any party seeks costs any application for costs must be filed and served with supporting affidavit evidence and submissions by noon on 22 September 2022.
Any affidavit in opposition to any affidavit filed seeking costs must be filed and served by noon on Thursday 29 September 2022.
Costs thereafter will be decided on the papers.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 2 September 2022
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