Wright & Rebane
[2021] FedCFamC1F 154
•21 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wright & Rebane [2021] FedCFamC1F 154
File number(s): SYC 981 of 2018 Judgment of: WILSON J Date of judgment: 21 October 2021 Catchwords: FAMILY LAW – ARBITRATION – arbitrator making three versions of the award, two of which were said to amend certain details – whether any versions subsequent to the first were valid – held, no.
FAMILY LAW – ARBITRATION – objection to registration – party seeking registration of the third version of the award – held, registration refused.
FAMILY LAW – ARBITRATION – slip rule – whether the alterations made by the awards subsequent to the first award were properly characterised as enlivening the operation of the slip rule – held, no.
FAMILY LAW – ARBITRATION – whether registration of an arbitral award in a dispute over registration is the exercise of an administrative function or it is the exercise of a judicial function – held, judicial.
FAMILY LAW – ARBITRATION – arbitrator becoming functus officio upon making the award under regulation 67P of the Family Law Regulations.
Legislation: Family Law Act 1975 ss 13E, 13H and 13K
Family Law Regulations 1984 ss 67P, 67Q
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.13
Cases cited: Australasian Performing Right Association Ltd v Austarama Television Pty Ltd [1972] 2 NSWLR 467 Hooker Town Developments Pty Ltd v Director of War Service Homes (1973) 47 ALJR 320
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Bailey v Marinoff (1971) 125 CLR 529
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224
Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No.1) (1991) 32 FCR 219
Entezam & Devi (2021) 62 Fam LR 637
Goldring v National Mutual Life Association of Australasia (1916) 22 CLR 336
Gould v Vaggelas (1985) 157 CLR 215.
Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521
Harris v Caladine (1991) 172 CLR 84
Hatton v Harris [1982] AC 547
Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR 642
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
Mackenzie v Coulson (1869) LR 8 Eq 368
McDonald v McDonald (1965) 113 CLR 529
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1977) 17 ALR 219
Owners of the SS Kalibia v Wilson (1910) 11 CLR 689
R v Moodie; Ex parte Mithen (1977) 17 ALR 219
Smith v New South Wales Bar Association (1992) 176 CLR 256
Storey & Keers Pty Ltd. v Johnstone (1987) 9 NSWLR 446
Taylor v Johnson (1983) 151 CLR 422
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Whitlock v Brew (1968) 118 CLR 445
M J Mustill and S C Boyd, Commercial Arbitration 2nd ed (1989) London, Butterworths
Thomas Penberthy Fry, ‘The Finality of Judicial Decisions’ (1956) 2 University of Queensland Law Journal 9
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 14 October 2021 Place: Melbourne Counsel for the Applicant: Mr G. Thompson Solicitor for the Applicant: Newnhams Solicitors Counsel for the Respondent: Mr P. Campton SC Solicitor for the Respondent: Reid Family Lawyers ORDERS
SYC 981 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WRIGHT
Applicant
AND: MS REBANE
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
21 OCTOBER 2021
THE COURT ORDERS THAT:
1.Pursuant to Regulation 67Q(5)of the Family Law Regulations 1984 I refuse to register the further amended arbitral award dated 28 July 2021.
2.The further hearing of this proceeding is adjourned to 4 November 2021 at 10:00am.
3.The applicant’s costs application is adjourned until 4 November 2021 at 10:00am.
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 pseudonyms Wright & Rebane are approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
On 23 February 2021 orders were made pursuant to s 13E of the Family Law Act 1975 referring the entirety of this proceeding to arbitration. The arbitrator selected by the parties was and remains a member of the Inner Bar. The parties were represented at the arbitration by Senior Counsel. The arbitration was conducted by video link on 14, 15 and 16 July 2021.
At 10:06am on 27 July 2021 the arbitrator published his award. At 2:39pm the arbitrator purported to publish the revised version of the award,[1] allegedly correcting typographical errors. At 10:16am on 28 July 2021 the arbitrator purported to publish yet another revised version of the award,[2] allegedly correcting other details of the award.
[1] In these reasons that award is called “the amended award.”
[2] In these reasons that award is called “the further amended award.”
By application to register an arbitral award[3] filed on 7 September 2021 the husband applied to register the arbitral award. Pursuant to orders made by me on 18 August 2021, this proceeding was to return before me for the registration of an arbitral award on 13 October 2021. A degree of confusion confronted the wife because the version of the award attached to the application for registration form was the first version of the award. In her response to the husband’s registration application filed 12 October 2021 the wife contended that the arbitral award should not be registered. Consistent with the speed of dispatch in the determination of disputed applications in the National Arbitration List, I brought to the parties’ attention my decision in Entezam & Devi,[4] indicating that the debate should focus on the observations there made and I listed this application for hearing on 14 October 2021.
[3] The application was made pursuant to Regulation 67Q of the Family Law Regulations.
[4] (2021) 62 Fam LR 637 (especially at [20]).
In essence, the applicant for registration made five principle submissions. They were –
(a)the relevant set of reasons were the last, styled by the arbitrator “further amended award”;
(b)the alterations made to those reasons were alterations properly characterised as being amenable to cure under the slip rule as applied in legal proceedings;
(c)it was inimical to the arbitration regime constituted under the Family Law Act for the award in this case to be refused registration in circumstances where the parties had each spent over $100,000 in legal fees to obtain the arbitrator’s award;
(d)contrary to the respondent’s contentions, there was no procedural unfairness in the arbitrator making the amendments he did to the final amended award; and
(e)contrary to the respondent’s contentions, the arbitrator was not functus officio upon publishing the first award.
On behalf of the respondent, Mr Campton SC (as his Honour then was) advanced a collection of submissions in support of what he contended was a matter of enormous significance in arbitrations under the Family Law Act. In prècis form, Mr Campton submitted as follows –
(a)pursuant to Regulation 67P of the Family Law Regulations the arbitrator was required to “make an award”[5] at the end of the arbitration that is in accordance with Regulations 67P(2) and 67P(3) and which, in a single document, is supplied to persons prescribed in accordance with Regulation 67P(4);
(b)in this case the making of the first award dated 27 July 2021 and the provision of it by email sent at 10:06am on 27 July 2021 brought the arbitration constituted by order of this court under s 13E of the Family Law Act on 23 February 2021 to an end;
(c)the awards purportedly made thereafter were nullities because the making of the award at 10:06am on 27 July 2021 had the effect of bringing the arbitration in this case to an end and thereafter the arbitrator was functus officio;
(d)even if the awards made subsequent to the first award were valid, which the respondent said they were not, then the amendments made to the awards were made in breach of the arbitration agreement because –
(i)they affected substantive rights of the parties;
(ii)the parties were not afforded procedural fairness before the amendments were made;
(iii)the amendments are not properly characterised as having been made under the “slip rule”; and
(e)the registration of an arbitral award, where registration is contested, is not merely an administrative function and instead involves the exercise of a judicial function.
[5] That is the wording of Regulation 67P of the Family Law Regulations 1984. .
Mr Campton SC submitted that the integrity of the arbitration regime enacted under the Family Law Act must be preserved as an important matter of public policy and, to that end, the practice of making awards subsequent to the award made under Regulation 67P should be emphatically denounced by this court.
Against that background I was requested –
(a)by the applicant to register the award; and
(b)by the respondent to refuse registration.
SYNOPSIS
For the reasons that follow, the only award the applicant seeks to register is the further amended award and it is nullity so I refuse to register it.
ARBITRATION UNDER THE FAMILY LAW ACT
Mr Campton SC and Mr Thompson each addressed the need for public confidence in the integrity of the system of arbitration embedded in the Family Law Act. Each made submissions to the effect that family law arbitrations have in recent times assumed mainstream acceptance as a cost effective and time efficient method of resolving family law property disputes and to do so in a manner that takes the litigation out of the overburdened lists of cases awaiting trial before judges. That much was undoubtedly true. Mr Campton SC developed that foundational contention by further submitting –
(a)unlike in domestic commercial arbitration or even international commercial arbitration, the provisions of the Family Law Act, the regulations made under it as well as the rules made pursuant to it in relation to arbitration establish a code;
(b)that code is to be read in conjunction with the provisions of any applicable arbitration agreement;
(c)stipulations in the Family Law Act, the Family Law Regulations and in the rules[6] as to minimum requirements in relation to an arbitration agreement may be enhanced in the specific agreement between the parties and the arbitrator in the given circumstances of a particular case;
(d)family law arbitrations, as well as domestic and international commercial arbitrations, have at their core a consensual approach in relation to the parties agreeing to the subject matter of the litigation being arbitrated and in relation to the conduct of the arbitration itself; and
(e)the first point of reference in the ascertainment of the way in which the arbitration process as agreed between the parties and the arbitrator would be conducted is the terms of the arbitration agreement itself.
[6] Whether under the Family Law Act or under the Federal Circuit and Family Court of Australia Act.
By consent given on behalf of their clients by Mr Thompson and Mr Campton SC, the arbitration agreement in this litigation was admitted into evidence on this application. Certain of its provisions require recital.
Clause two of the arbitration agreement recorded the parties’ and the arbitrator’s agreement to arbitrate. It was in the following terms –
The parties to the dispute agree to submit their dispute to arbitration and for that purpose they desire to appoint the Arbitrator to hear arguments and evidence and make a determination to resolve the dispute according to law.
Clause three of the arbitration agreement recorded the parties’ agreement in relation to the appointment of the arbitrator. Of significance was the agreement between the parties and the arbitrator to the effect that the arbitration would result in an award capable of registration under the Family Law Act. Clause 3.3 was in the following terms –
3.3 The parties to the dispute acknowledge that, unless they otherwise agree in
writing or they resolve the dispute by consent, the arbitration;
(a) will proceed in accordance with the procedure set out in this agreement;
(b) will result in an award which is capable of registration under the Family Law Act in the Family Court of Australia, the Federal Circuit Court of Australia or the Family Court of Western Australia (as the case may be) and, once registered, the award has the same effect as if it were a decree made by the court which can only be set aside, varied or appealed in circumstances referred to in Sections 13J and 13K of the Family Law Act.
The parties to the arbitration agreement agreed that the arbitrator would ensure each party was accorded procedural fairness. Clause 4.3 was in the following terms –
Notwithstanding any other provision in this agreement, the Arbitrator will ensure that each party is accorded procedural fairness and that the Arbitrator will not allow himself to knowingly be affected by bias.
As to the bringing of the arbitration to an end, clause 8.2(a) included certain relevant stipulations. That clause provided that the arbitration “will come to an end (when) the arbitrator delivers the final award.” Use of the phrase “final award” was curious as only one award is contemplated under the scheme of family law arbitration. That position is to be contrasted with domestic or international commercial arbitration where arbitrators routinely publish one or more interim awards, say on contested interim applications then the substantive award followed by a final award, usually in relation to costs.[7]
[7] M J Mustill and S C Boyd, Commercial Arbitration 2nd ed (1989) London, Butterworths.
Clause 8.4 of the arbitration agreement made provision for corrections to the award. It was as follow –
When the arbitration is terminated by the delivery of a final award, if either party identifies a minor mathematical or other mistake in the award which can be cured under the "slip rule" which is applied to legal proceedings, such party may bring the matter to the attention of the Arbitrator and all other parties to the dispute. If the Arbitrator agrees that an award can be so rectified, he may deliver a supplementary award by which the final award is varied.
Several things must be said of that clause which, according to prevailing orthodoxy in the High Court on the construction of contracts,[8] flow from an ordinary plain reading of the clause itself. First, any “rectification” (as the clause provides) of the award begins by either party identifying a “minor mathematical or other mistake in the award”. In other words, either party must first notice the minor mathematical or other mistake in the award. The interpretation of the phrase “either party” was not the subject of debate before me so I did not have the benefit of submissions on point. The clause did not say “any party” so a question may have arisen about whether the husband, the wife and the arbitrator or one or other of them was entitled to identify the alleged mistake so as to trigger the operation of clause 8.4. At all events, either party was entitled to identify “a minor mathematical or other mistake in the award.” A major issue in this case arose about whether the amendments in the amended award as well as in the further amended award were properly characterised as “minor mathematical or other mistakes” capable of cure under the slip rule. In the passages below, I have addressed that.
[8] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165.
Continuing with the construction of clause 8.4, assuming either party notices such a minor mathematical or other mistake in the award and considers it can be cured under the slip rule, the party may bring the matter to the attention of the arbitrator and “all other parties to the dispute” (that is the wording of the clause). Once that was done, the arbitrator was required to then consider the matter and, if the arbitrator agreed the award could be rectified,[9] the arbitrator was empowered to deliver a supplementary award.
[9] In this context the word “rectified” was not used in the same sense as applies to a body of law concerning rectification of instruments such as Mackenzie v Coulson (1869) LR 8 Eq 368, Australasian Performing Right Association Ltd v Austarama Television Pty Ltd [1972] 2 NSWLR 467 and Hooker Town Developments Pty Ltd v Director of War Service Homes (1973) 47 ALJR 320.
In this case, neither the amended award nor the further amended award was described as a supplementary award.
Clause 8.5 provided that the terms of the arbitration agreement were revived “to facilitate the making of a supplementary award”. Clause 8.3 required the arbitrator to deliver the award within 35 days after the conclusion of the hearing.
No time limit was specified in clause 8.4 within which either party had to identify a minor mathematical or other mistake in the award so as to enliven the process for the creation of the supplementary award leading, under clause 8.6, to the supplementary award standing “in the place of the original award as if it were the final award” (that is the wording of clause 8.6). Clause 8.6 incorporated the phrase used in clause 8.2 of “final award”.
EVIDENCE ON THIS APPLICATION
The applicant in whose favour orders were made in the arbitration, made an affidavit on 17 August 2021. To that affidavit he exhibited the further amended award and correspondence in support of his costs application.
The respondent to the arbitration and the party resisting registration of the award made an affidavit on 12 October 2021. She exhibited to her affidavit the three versions of the arbitral award. She deposed to the amended award and further amended award having been produced without her knowledge or an opportunity to be heard in relation to the creation of each. She deposed to the substantive issues determined by the arbitrator in the first award as being the following –
(a)the net value of the assets and superannuation of the parties was $4,898,492;
(b)the first award appended to it a balance sheet headed “schedule 2” whereas the reasons spoke of the balance sheet as being exhibit 6 and schedule B yet there was no schedule B;
(c)pursuant to the first award the respondent’s contribution-based entitlement was 54% of the net assets, translating to $2,645,186 and the applicant had a contribution-based entitlement of 46%, translating to $2,253,306;
(d)the arbitrator added a further adjustment of 3% in favour of the respondent; and
(e)in paragraph 146 of the first award the arbitrator stated that there should be a division in favour of the wife of 56%[10] and 44% in favour of the husband, 56% translating to $2,743,156.
[10] Having found a 54% contribution based entitlement, an additional 3% ought to have brought the percentage to 57% and not 56%.
The respondent deposed to certain substantive matters arising from the amended award. Those included –
(a)the arbitrator produced the amended award without explanation or notice to the parties;
(b)in paragraph 146 of the amended award the arbitrator considered that the overall division of the current assets was 57% to the wife and 43% to the husband;
(c)57% of the net assets translated to $2,792,104;[11] and
(d)schedule 2 was attached, unchanged.
[11] Under the first award that figure was $2,743,156.
The respondent deposed to certain substantive matters arising from the further amended award. Those included –
(a)the stated value of agreed assets and liabilities recorded in joint balance sheet as being $4,898,492 was wrong; and
(b)after the delivery of the award it was brought to the arbitrator’s attention[12] that exhibit 6 contained the wrong total, corrected in exhibit 8, recording that the total of net agreed assets and superannuation was $4,988,223 rather than $4,898,492 as recorded in exhibit 6.
[12] The arbitrator did not state who brought that matter to his attention nor did he say when the matter was brought to his attention beyond stating that it emerged after the award’s delivery.
The respondent’s affidavit focused on the phrase “it was brought” to the arbitrator’s attention. She said the following –
In the third reasons the Arbitrator did not explain how, in what circumstances, and by whom, after delivery of the first reasons and second reasons, it was brought to his attention that Exhibit 6 contained the wrong total.
The respondent deposed to 57% of $4,988,223 being $2,843,287. She deposed to the arbitrator not stating in the further amended award what value the parties’ respective entitlements were.
Neither the applicant nor the respondent deposed to identifying a matter after the termination of the arbitration within the operation of clause 8.4 of the arbitration agreement. The arbitrator’s statement that “it was brought to my attention” was wholly unexplained, a consequence of expressing matters in the passive tense.
THE SIGNIFICANCE OF THE MAKING OF THE AWARD
Clause 8.2 of the arbitration agreement provided that the arbitration came to an end in any one of the circumstances set out in the eight subparagraphs to that clause, one of which was the delivery of the award. The wording of that clause was different to yet it broadly encompassed the theme of the provisions of regulation 67P of the Family Law Regulations. That regulation requires, as a mandatory stipulation that –
(a)at the end of the arbitration the arbitrator must make an award;[13]
(b)the award must include a concise statement setting out the arbitrator’s reasons for making the award and the arbitrator’s findings of fact;[14]
(c)the award must be contained in a single document;[15] and
(d)the arbitrator must give a copy of the award to each party, and inform the court that the arbitration has ended and that an award has been made.[16]
[13] Regulation 67P(1).
[14] Regulation 67P(2).
[15] Regulation 67P(3).
[16] Regulation 67P(4).
Early in the debate before me Mr Thompson for the applicant argued that the arbitrator’s award was a document of three numbered paragraphs constituted by the orders made by the arbitrator. When I pointed out to Mr Thompson that the provisions of Regulation 67P(2) required the award to include reasons – not merely orders – Mr Thompson stated that the applicable version of the award his client wished to register was the third version, called the further amended award. I took from that statement that Mr Thompson placed no reliance upon the earlier two versions of the award.
That enlivened debate about the fate of the earlier two versions of the award. On behalf of the respondent, Mr Campton SC contended that the first award made by the arbitrator was the only award that satisfied the requirement of Regulation 67P and that all later iterations of the award were nullities. He recognised that his contentions in that regard were premised on the provisions of clause 8.4 being inapplicable in the circumstances of the case. Mr Campton submitted that in this case the arbitration came to an end within the meaning of Regulation 67P once the arbitrator made “an award” which he did in this case when he produced the first iteration of the award. Thereafter, subsequent iterations of the award, including the third version of the award on which the applicant relied, were nullities.
Mr Campton contended that in the absence of a properly constituted invocation of clause 8.4 leading to the production of a supplementary award within the contemplation of cluse 8.4 of the arbitration agreement, upon the arbitrator making the award under Regulation 67P the arbitrator was functus officio. The doctrine of functus officio was explained in the 1952 article by Thomas Penberthy Fry, ‘The Finality of Judicial Decisions’.[17] There the learned author wrote the following –
There is a rule that, if a final and conclusive judgment or decree given by a judicial tribunal as to the merits of a case exhausts, in the absence of an order to the contrary by a superior tribunal, its powers and jurisdiction in respect of that case, it is functus officio. This rule as to functus officio is of importance mainly if an attempt is made to induce the tribunal to vary or rescind in whole or in part, at its own discretion and on its own initiative, any final and conclusive judgment which it may have given as to the merits of a case.[18]
[17] (1956) 2 University of Queensland Law Journal 9, 13.
[18] Ibid.
In a later passage of the same article, the learned author wrote the following –
For a judicial tribunal to become functus officio it must have delivered a valid judgment or decree of a final and conclusive nature. A res judicata must have come into existence.[19]
[19] (1956) 2 University of Queensland Law Journal 9, 15.
In its more modern emanation, the doctrine has been said to be preferable to the description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. So much was said by the High Court of Australia in R v Moodie; Ex parte Mithen[20] (Stephen, Murphy and Aicken JJ). The Federal Court held to like effect in Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No.1).[21] The concept underlying the doctrine of functus officio has been described in terms equating to the statutory function as having been spent and that the issue is in reality a matter of statutory construction of the statute that confers the power in issue. That was the view of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic.[22]
[20] (1977) 17 ALR 219, 225.
[21] (1991) 32 FCR 219.
[22] (1990) 21 FCR 193, 211.
Mr Thompson contended that all three versions of the award were valid because the second and third iterations did no more than effect inconsequential minor corrections of little moment, each correction being properly made pursuant to what is colloquially called “the slip rule”. Mr Thompson argued that each amendment made by the arbitrator was a “minor mathematical or other mistake”.
It became necessary to examine whether the amendments made by the second and third awards were, in fact and in law, amendments properly characterised as being made in pursuance of the slip rule. In my view, they were not.
In the arbitration agreement, the specific incorporation of the Family Law Act, the Family Law Rules and the Family Law Regulations was effected by clauses 10.1 and 10.2. Those clauses were in the following terms –
10.1 This agreement shall be interpreted and construed in accordance with the Family Law Act and the Family Law Regulations 1984 and the Family Law Rules 2004
10.2 If any doubt arises about procedural matters the Arbitrator shall apply the Family Law Rules 2004 to resolve the issue in doubt (so long as the applications of the said Rules is not inconsistent with this agreement) and for that purpose, the Arbitrator is taken to have the same power as a Judge of the Family Court applying the said Rules.
When the arbitration agreement was made the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 had not commenced operation. For that matter, the court that referred this proceeding to arbitration under s 13E of the Family Law Act was the Family Court of Australia, now defunct, its successor being the Federal Circuit and Family Court of Australia. Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 largely replicated rule 17.02 of the Family Law Rules 2004. Rule 10.13 is in the following terms –
Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the order; or
(h)there is an error arising in the order from an accidental slip or omission.
Mr Thompson relied on Rules 10.13(g) and (h) contenting that the arbitrator had power to vary the award by reason of the existence of a clerical error or an error from an accidental slip or omission. It seemed that Mr Thompson was directing his submission to the power to correct an error that was conferred by Rule 10.13 because the provisions of clause 8.4 of the arbitration agreement involved a regime considerably more elaborate than the identification of a mere clerical mistake or an error arising from an accidental slip or omission.
The jurisprudence in respect of the concept “accidental slip or omission” is of considerable antiquity, emanating in the late 1800s in the Royal Court of Justice.[23] In its original conception, the test of whether a mistake or omission was accidental was applied by Lord Herchell in Hatton v Harris,[24] namely, had the matter been drawn to the court’s attention, would the court have made the correction at once. The jurisprudence has been repeatedly applied in Australian Courts.[25] It has been said by the High Court[26] that the purpose of the slip rule is to avoid injustice to litigants and that the jurisdiction to apply it should be exercised sparingly lest it puts at risk the public interest of the finality of litigation. The High Court has also held[27] that a court invited to exercise the jurisdiction to make a correction under the slip rule retains a discretion to refuse to make the order sought if something has intervened rendering it inexpedient or inequitable to make the order sought.
[23] Fritz v Hobson (1880) 14 Ch D 542, Laurie v Lees (1881) 7 App Cas 19, Nilson v Carter [1893] AC 638, Hatton v Harris [1892] AC 547 and Cole v Langford [1898] 2 QB 36.
[24] [1982] AC 547.
[25] Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR 642, Owners of the SS Kalibia v Wilson (1910) 11 CLR 689, Goldring v National Mutual Life Association of Australasia (1916) 22 CLR 336, McDonald v McDonald (1965) 113 CLR 529, Bailey v Marinoff (1971) 125 CLR 529, Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521, , Taylor v Johnson (1983) 151 CLR 422, Smith v New South Wales Bar Association (1992) 176 CLR 256, Autodesk Inc v Dyason(No 2) (1993) 176 CLR 300 and Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 to name by a few.
[26] Gould v Vaggelas (1985) 157 CLR 215.
[27] L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590.
An error in the judgment or order which is the product of a deliberate decision is not within the contemplation of the notion “accidental slip or omission”, as was held in Storey & Keers Pty Ltd. v Johnstone.[28] Equally, a mistake or error will generally not be regarded as accidental if the amendment sought requires the exercise of an independent discretion.[29]
[28] (1987) 9 NSWLR 446.
[29] Whitlock v Brew (1968) 118 CLR 445.
In a proceeding in court, an application to correct an order in reliance upon the slip rule is made on notice, as was held in Storey & Keers Pty Ltd. v Johnstone.[30]
[30] Op cit.
Aside from the arbitrator not hearing the parties on the proposed alterations to the second and third awards, and aside from the genesis of the alterations made in the second and third awards emanating from the arbitrator himself rather than the parties, the amendments themselves are not mere clerical errors, minor arithmetical issues or other mistakes. They altered the percentages by which property interest were to be divided, quintessentially the exercise of a discretionary power conferred under the Family Law Act. I do not accept that the applicant can so readily slough off the significance of the amendments by arguing that they amount to little more than substituting one number for another. The effect of the alterations translated to a large amount of money. That was no simple slip. Nor was it an amendment raised by a party. Nor were the parties given an opportunity of being heard before the awards were purportedly altered. Instead, without notice to the parties the arbitrator took it upon himself to make the changes over two iterations of the award.
It seemed to me that the arbitrator in producing the second and third awards, not only acted in disconformity with the procedure agreed in clause 8.4 but he made substantive alterations that were not in the purported exercise of the slip rule.
In the upshot, the second and third iterations of the award are invalid in my view. The only operative award was the first. However neither party sought registration of the first award. It seems to me that the parties should have an opportunity of considering these reasons and that a further mention should be fixed for submissions.
REGISTRATION AS THE EXERCISE OF AN ADMINISTRATIVE FUNCTION
Mr Campton SC submitted that my observations in Entezam & Devi about registration of the award being the exercise of an administrative function are too narrow. He relied on the observations of the High Court in Harrington v Lower[31] to contend that in a contested debate about registration, the court is exercising the judicial function and it is not performing merely an administrative function.
[31] (1996) 190 CLR 311.
Several matters emerge from Mr Campton’s submissions. First, a mandatory requirement to register the award rises from Regulation 67Q(4) where nothing is brought to the court’s attention under sub regulation 67Q(3). That mandatory requirement does not admit of the exercise of a judicial function. Subject to complying with the observations in Harris v Caladine,[32] if the application to register the award is the subject of consent, it is difficult to see that the court must conduct a full hearing to examine whether an order under s 79 is appropriately made on the basis that the arbitral award is just and equitable. I agree that where the application to register the award is opposed, as here, the contested application must be determined in the manner in which most contested applications are determined. To that end, in a contested application for the registration of an arbitral award, the court does not exercise a mere administrative function. It exercises a judicial function.
[32] (1991) 172 CLR 84.
Mr Campton SC also invited me to conclude on this contested application that my statement below in Entezam & Devi was too narrow. At paragraph 20 of the report of that decision I held as follows –
It seems to me that “reasons” to which Regulation 67Q(3) is directed is a reason connected to the validity of the process, the consensus of the parties, or the integrity of the arbitral process.
The issue raised in this case falls comfortably within the three discrimina mentioned in Entezam & Devi. The first award was a valid discharge of the arbitrator’s function. It was properly produced for the purposes of regulation 67Q. The second and third awards were not the subject of agreement and they were not produced in conformity with the agreed process under clause 8.4 of the arbitration agreement. The second and third awards were imposed on the parties in the absence of their knowledge or consent and in disconformity with the agreed procedure by which amendments to an award could be made. In those circumstances I see no reason to qualify or alter the reasons extracted above from Entezam & Devi.
There can be no doubt that the parties have expended a large amount on this arbitration, trusting and expecting that the upshot of the arbitral process would lead to an enforceable award capable of registration with the consequence that it would become a decree of the court in accordance with s 13H of the Family Law Act. The parties would be entitled to look very critically at the family law arbitration process having regard to the fact that the first award (with its errors and imperfections) is not the award propounded for registration. They would also be astounded if I declared the whole arbitral process invalid especially in view of the sums of money each expended. When this proceeding returns before me following the parties having time to examine these reasons, I am willing to entertain submissions about registration of the first award and then dealing with an application for the variation of that award under s 13K. Conceivably, such an application could be the subject of consent orders.
CONCLUSION
Pursuant to Regulation 67Q(5) I refuse to register the further amended arbitral award dated 28 July 2021.
The further hearing of this proceeding is adjourned to 4 November 2021 at 10:00am. The applicant’s costs application is adjourned until 4 November 2021 at 10:00am.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 21 October 2021
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