Arbitration – a discussion of principles

Arbitration – a discussion of the principles

Legislative bases of the Application

1. 1. 37. The Application as filed seeks that the Arbitral Award be set aside. This might suggest an acceptance that the Arbitral Award had been registered as at the date of filing of the Application. However, such an acceptance is not expressed within the Application and a number of additional matters require consideration.
      38. Firstly, the Application asserts (Part C, paragraph 4) that “the respondent was served with an unsealed copy of the Application to register Arbitral Award (sic)…”. The Affidavit of Service is silent as to whether the Application that was personally served on 31 January, 2018 was sealed or unsealed.
      39. Regulation 67Q of the Regulations is in the following terms:
          FAMILY LAW REGULATIONS-REG 67Q REGISTRATION OF AWARDS

Registration of award (Act s 13H)

(1) For section 13H of the Act, an application to register an award made in an arbitration must be in accordance with Form 8.

(2) The applicant must serve a copy of the application on each other party to the award.

(3) A party on whom an application is served may, within 28 days after service, bring to the attention of the court any reason why the award should not be registered. 

Note: An example of a way of bringing a matter to the attention of the court is by filing an affidavit. 

(4) If nothing is brought to the court’s attention under subregulation (3), the court must register the award. 

(5) If a party brings a matter to the court’s attention under subregulation (3), the court must, after giving all parties a reasonable opportunity to be heard in relation to the matter, determine whether to register the award

1. 1. 40. Regulation 67Q of the Regulations does not specify that a sealed copy of the Application must be served. A Form 8 Application is not allocated a Court event or return date.
      41. Whilst the point was not taken at the hearing of the Application, it has some relevance. The period of 28 days in which a party might “…bring to the attention of the court any reason why the award should not be registered” could not reasonably be expected to commence until such time as that party was aware that the Application had, in fact, been filed with the Court (such filing being the trigger for the commencement of that period). Any concern that Mr Braddon may have been unaware that the Form 8 had, in fact, been filed is obviated by the above correspondence from Chambers. I am satisfied that Mr Braddon and his then legal representatives were aware that the Application had been filed.
      42. The basis upon which the matter is approached might vary depending upon which legislative power is to be exercised.
      43. The Court’s powers following registration of an Award are set out at sections 13J and 13K of the Family Law Act as follows:
          FAMILY LAW ACT 1975 – SECT 13J

Family Court or Federal Circuit Court can review registered awards

(1) A party to a registered award made in section 13E arbitration or relevant property or financial arbitration may apply for review of the award, on questions of law, by:

(a) a single judge of the Family Court; or 

(b) a single judge of the Family Court of a State; or

(c) the Federal Circuit Court of Australia.

Note: There may be Rules of Court providing for when, and how, an application for review of the award can be made (see paragraph 123(1)(sf)). 

(2) On a review of an award under this section, the judge or Federal Circuit Court of Australia may:
(a) determine all questions of law arising in relation to the arbitration; and
(b) make such decrees as the judge or Federal Circuit Court of Australia thinks appropriate, including a decree affirming, reversing or varying the award.

FAMILY LAW ACT 1975 – SECT 13K 

Family Court and Federal Circuit Court may set aside registered awards 

(1) If an award made in section 13E arbitration or relevant property or financial arbitration, or an agreement made as a result of such arbitration, is registered in:
(a) the Family Court; or(b) the Federal Circuit Court of Australia; or
(c) a Family Court of a State;

the court in which the award is registered may make a decree affirming, reversing or varying the award or agreement. 

(2) The court may only make a decree under subsection (1) if the court is satisfied that:
(a) the award or agreement was obtained by fraud (including non-disclosure of a material matter); or
(b) the award or agreement is void, voidable or unenforceable; or
(c) in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or
(d) the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.

1. 1. 44. From the outset, it must be made clear that none of the grounds relevant to section 13K of the Family Law Act are agitated and, thus, the section need not be further considered.^[14]
      45. The ability to “bring to the attention of the court any reason why the award should not be registered” prior to registration of an Arbitral Award is provided by regulation 67Q of the Regulations. The regulation is non-specific as regards the reasons which might be raised in opposition to registration of the Arbitral Award. The two relevant subparagraphs, being subparagraphs (3) and (5), provide:
          (3) A party on whom an application is served may, within 28 days after service, bring to the attention of the court any reason why the award should not be registered.

(5) If a party brings a matter to the court’s attention under subregulation (3), the court must, after giving all parties a reasonable opportunity to be heard in relation to the matter, determine whether to register the award.

46. The note to subsection (3) provides:
    An example of a way of bringing a matter to the attention of the court is by filing an affidavit.

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