Safi & Rafiq (No 3)
[2024] FedCFamC1F 45
•6 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Safi & Rafiq (No 3) [2024] FedCFamC1F 45
File number: SYC 436 of 2022 Judgment of: CAMPTON J Date of judgment: 6 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband makes an oral application for leave to rely on a Further Amended Application in an Arbitration (“Amended Application”) – Where the husband has obtained the indulgence of leave on prior occasions to amend his relief sought – Where the husband has been previously placed on notice that his relief as sought is not competent – Where the proposed Amended Application is substantially different from his current relief sought as listed for trial – Where the proposed Amended Application also does not pose a competent question of law and does not seek competent relief – Where an adjournment would be required if leave were to be granted in order to afford procedural fairness to the wife – Where an adjournment is not in the interests of justice to the wife or to other litigants and stakeholders in the litigation process – Application for leave refused. Legislation: Family Law Act1975 (Cth) ss 13J and 13K Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39
Safi & Rafiq (No 2) [2023] FedCFamC1F 917
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 6 February 2024 Place: Sydney Counsel for the Applicant: Ms Hawkins Solicitor for the Applicant: Double Eight Legal Counsel for the Respondent: Ms Ingenito Solicitor for the Respondent: Benchmark Conveyancing Lawyers ORDERS
SYC 436 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RAFIQ
Applicant
AND: MS SAFI
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
6 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The husband's oral application for leave to rely on his Further Amended Application in an Arbitration filed 1 February 2024 is refused.
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 Safi & Rafiq has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
The husband by way of an oral application made at the hearing today seeks leave to rely upon a Further Amended Application in an Arbitration filed 1 February 2024. The wife opposes the husband's application for leave. An arbitral award (“the Award”) issued adjusting the property of the parties on 23 June 2023 and was registered in this Court on 22 August 2023. The husband by way of an Application in an Arbitration filed 19 September 2023 sought to review the Award as registered pursuant to ss 13J and 13K of the Family Law Act1975 (Cth) (“the Act”).
As an adjunct to the husband's application for review of the Award, he sought an application for a stay of enforcement of the Award as registered, pending determination of the review. Reasons for judgment were delivered on the application for stay on 24 October 2023 (see Safi & Rafiq (No 2) [2023] FedCFamC1F 917). Those reasons in part also determined an application for leave made by the husband to amend his Application in an Arbitration for review. Those reasons recorded:
THE APPLICATION FOR LEAVE TO AMEND THE APPLICATION IN AN ARBITRATION
11 The husband concedes that it is necessary for him to identify with precision in his application in an arbitration the question or questions of law which, if decided in his favour on review, would result in an order setting aside the award and granting other relief, whether his relief be pursuant to s 13J or s 13K of the Act.
12 He concedes that his application for review as presently filed does not adequately formulate the questions of law he seeks to agitate, and that it is necessary for him to recast those questions.
13 It is trite to observe that the jurisdiction conferred by s 13J of the Act does not permit the Court to substitute its judgment or discretion for that of the arbitrator unless an error in relation to a question of law is first established.
14 It is important also to focus upon the difference between a question of law and a question of fact, noting that a contended error as to a finding of fact may not constitute a question of law, even if the reasoning whereby the arbitrator reached his conclusion of fact was demonstrably unsound (see Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239 at [27]).
15 For the purposes of the hearing of the application for review as prosecuted by the husband, in circumstances where the wife accepts that the application could not be heard today, save as to costs there is little prejudice to her in a short adjournment permitting the husband to recast the question of law he poses on review.
16 Accordingly, orders will be made permitting the husband to amend for what will now be the third time his application in an arbitration seeking review.
Hence, on 24 October 2023 the following orders were made:
1. Within 14 days from the date of these Orders, the husband file an Amended Application in an Arbitration identifying with precision the question or questions of law which, if decided in his favour on review, would result in an order setting aside or varying the arbitral award of [Mr C] dated 21 June 2023, as registered on 22 August 2023, pursuant to s 13J or s 13K of the Family Law Act 1975 (Cth), together with such further evidence upon which he would seek to rely for the purposes of the application for review
2. That within 14 days thereafter, the wife file and serve such Amended Response to an Application in an Arbitration as relied upon by her, together with such further affidavit evidence (if any) she would purport to rely upon for the purposes of the hearing of the husband’s application for review.
3. Except as provided for by these Orders, the parties will not be permitted to file any other affidavit evidence for the purposes of the application for review and may not reply on any past affidavits at review without leave of the court save as except those pursuant to these Orders or those filed by the parties subsequent to 21 June 2023, being the date of the arbitral award;
4. The matter is listed for allocation of a hearing date and procedural directions as to the Application for Review via Microsoft Teams at 2.15pm on 11 December 2023;
Upon the matter coming before me again on 11 December 2023, the husband made another oral application to amend his Application in an Arbitration. That oral application was refused. On 11 December 2023 the following orders and notations were made:
THE COURT NOTES THAT
A.The husband, by way of his Amended Application in an Arbitration n filed 8 November 2023, prosecutes a review of the arbitral award of [Mr C], registered in this Court on 22 August 2023, pursuant to ss 13J and 13K of the Family Law Act 1975 (Cth) (“The Act”).
B.Pursuant to Order 1 made 24 October 2023, the husband was directed in his Amended Application in an Arbitration to identify with precision, for the purposes of his relief pursuant to section 13J of the Act, the question or questions of law, which, if decided in his favour on review, would result in an order setting aside or varying the registered arbitral award. The husband has been placed on notice by the Court today that the content on his Amended Application in an Arbitration filed 8 November 2023 do not pose, as required by s 13J of the Act, any question or questions of law. On one view his relief pursuant to s13J of the Act is not competent.
C.The husband’s relief pursuant to s13K of the Act contends impracticability for some or for all of the award to be implemented. The focus of this complaint is by way of determination 6 in the registered award, requiring the wife to transfer to the husband any interest she has in specified real proprieties in [Country B]. It appears uncontroversial that the wife is not the legal or registered owner of any of the identified […] real properties in [Country B]. The husband asserted before the arbitrator that a property at [F Street], [City G], [Country B], was transferred to the child of the parties, [X]. It is difficult to distil the complaint of the husband sought to be the subject of the review pursuant to s13K of the Act. Determination 15 made in the arbitral award provides for enforcement of the determination in the award by way of s 106A of the Act.
D.The wife, by way of her Response to an Application in an Arbitration filed 22 November 2023, seeks that the relief of the husband be dismissed, and costs.
E.Pursuant to Order 5 made 24 October 2023, paragraphs 4 and 10 of the determinations in the Arbitral award as registered have been stayed pending determination of the husband’s applications for review.
THE COURT ORDERS THAT
1.The husband’s Amended Application in an Arbitration filed 8 November 2023 be listed before Justice Campton for hearing at 10.00 am on 6 February 2024.
2. For the purposes of that hearing
(a) The husband relies on his affidavit filed 8 November 2023;
(b) The wife relies on her affidavit filed 22 November 2023; and
(c)The parties are not permitted to file any further affidavits and may not rely on past affidavits without leave of the Court.
(d)In circumstances where the wife advises she does not require the husband for cross examination, the husband is granted leave to participate in the hearing by Microsoft Teams from [Country B].
(e)The cross examination of the wife at the hearing will be restricted to the questions of law posed by the husband pursuant to s13J of the Act and, the ground for review prosecuted by the husband pursuant to s13K of the Act.
3.Each party is directed to file and serve by no later than 31 January 2024, an outline of written submissions in support of their relief as sought.
4.Each party is required to file and serve a costs notice in compliance with the rules, on or before 2 February 2024. Such costs notice is to be applicable in the first instance up to the time of determination of the Arbitration, by way of the published award, and thereafter as to the proceeding enforcing the award and review of the award.
In anticipation of the listing of the hearing of the husband's Amended Application in an Arbitration filed 8 November 2023 and in compliance with Order 3 made 11 December 2023, the wife filed and served her Outline of Case document on 31 January 2024. That Outline of Case document records an absence of clarity, from the wife's position, as to the orders sought by the husband in his applications for review, including as to whether he seeks to set aside the entirety of the Award or just particular determinations of the arbitrator, and identifies challenges in understanding the construction of the argument and submissions made by the husband on review of the Award. Those challenges are somewhat reflective of those contained in the reasons for judgment and notations identified in herein.
It is trite to observe that the husband's Further Amended Application in an Arbitration was filed on 1 February 2024, after the wife's Summary of Argument/Outline of Case document containing her submissions in respect of the hearing listed for today had been filed. The husband further filed his Outline of Case document and submissions in support of his relief by way of review on 1 February 2024. In support of the oral application for leave to rely on the Further Amended Application and Arbitration filed 1 February 2024, the husband submits that the Further Amended Application and Arbitration "more fully articulates his claim", that it is not substantially different from that upon which he moved upon and was listed for hearing today being filed 8 November 2023, and that any prejudice to the wife in permitting the leave to further rely would be minimal.
The husband has not placed any evidence before the Court as to the reasons for any delay in providing notice to the wife of the Further Amended Application in an Arbitration as between 11 December 2023 and 1 February 2024, nor has he identified with any precision what he contends to be "not substantially different" contents by way of comparison between each of the documents.
A scan of each makes it clear that substantial amendments have been made by the husband in the document filed 1 February 2024 as against that filed 8 November 2023. The wife, in opposing the leave granted to rely on the Further Amended Application in an Arbitration, identifies correctly that the orders sought in the Further Amended Application in an Arbitration filed 1 February 2024, or those identified in the Outline of Case document filed by the husband on the same day, are unclear and are not competent orders that could be made by the Court on review.
She further submits with some force that having regard to the further shifts in the husband's application for review, the wife would seek an adjournment of the review of the Award in order to meet the new case as cast by the husband. She identifies the history of the management of the husband's disputes as to the implementation of the Award and the disproportionate costs incurred by each party incidental to that process.
The High Court has said that this Court, as the court of superior record, is obliged to afford procedural fairness to all parties and not act in a matter that can be described as dispensing "palm tree justice" (see R v Watson; Ex parte Armstrong (1976) 136 CLR 248). Despite the fact that this Court does not operate on the basis of formal pleadings, in the absence of established urgency, any litigant before this Court is entitled to receive fair and appropriate notice of the matters to be agitated before it. This includes the wife, responding to the husband’s case.
The cautions expressed by the Court to the husband as to his necessity to identify with precision in his application for review the questions or questions of law which, if decided in his favour on review, would result in the Court setting aside the award or granting other relief, whether it be by way of s 13J or s 13K of the Act, have been long-standing and the subject of repetition. He has further been placed on notice as to the likelihood of his relief, as presently cast, not being competent. By way of exchange in the course of the hearing of this matter this morning, the deficiencies in his relief pursuant to s 13K of the Act have been further identified. He has encountered challenges in orally articulating a question of law pursuant to his s 13J relief.
Directions are made and constructed to ensure that the principles of procedural fairness are observed. There is no deriving of entitlement for parties to receive adequate notice of the case they are to meet. On one view, to allow the amendment at this time would see the Court ride the rush over a wife's entitlement to procedural fairness, which is a fundamental right of all litigants.
As identified by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, it is necessary for the Court, in determining this oral application, to not only consider the justice to the wife, but also to other litigants and stakeholders in the litigation process. The impact of permitting the husband leave sought will be an adjournment, increasing costs and further delaying the determination of this application for a period of many months because of limited judicial availability. Progressing the desirability of efficient and effective litigation, I refuse the husband's application for leave to rely on his Further Amended Application in an Arbitration filed 1 February 2024.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 6 February 2024
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