Mr Anthony Strik, a Sydney Family Law Barrister, appeared in the case of Entezam & Devi [2021] FamCA 25 where he argued a novel point was between the interplay of Regulation 67Q meaning of “any reason” and it’s relationship under s 13K(2) for setting aside an arbitral award. Two sets of written submissions were called for by the Judge as well as further oral submissions.
His Honour Judge Joshua Wilson QC heard the case. The Court adopted the view of Professor Patrick Parkinson in his paper on what may be reasons for not registering an arbitral award. Mr Strik bought this paper to the attention of the Court. The Court ultimately adopted this view.
At Para 20 of the judgement:
“… It seems to me that the “reason” 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 mere fact that one party may be dissatisfied with the upshot of the arbitration or with the orders pronounced as part of the arbitral award will not be a sufficient “reason” for the purposes of Regulation 67Q to refuse to register the award.”
The Court was taken to a number of cases including –
Braddon v Braddon (2018) 59 Fam LR 234,
Pavic & Pavic [2018] FCCA 3386, and
Loomis v Pattison (2020) 61 Fam LR 415.
At Para 24 of the judgement:
His Honour Judge Harman has taken the view in that trilogy of cases that the “reason” to which that phrase is directed is the same as those set out in ss 13J and 13K of the Family Law Act.
This case confirms the two step process required for registration of Arbitral Awards. The first being the registration, the second being any further applications to review/set aside/vary of the Award under Section 13J or Section 13K.
This landmark decision has already been applied in AYDIN & TOH[2021] FamCA 44. Relevant paragraphs of Aydin & Toh include:
Paragraph 5:
In Entezam & Devi[1] I examined the interrelationship between a party’s opposition to registering an arbitral award on the one hand and, once the award is registered, a party seeking orders to set aside the award under s 13K(2)(a) – (d). For reasons set out in Entezam & Devi, the reasons a court might accept under Regulation 67Q(3) as grounding an order refusing to register the arbitral award must address a reason rendering the arbitration void ab initio. But before any application may be entertained by the court for orders under s 13K(2), the court must first give its imprimatur to the award by registering it. Unless and until the award is registered, the court knows nothing about the award. Accordingly, the scheme of the arbitration provisions in the Family Law Act, the Family Law Regulations and the Family Law Rules is to the effect that the award must be registered before any application can be made under s 13K(2).
Paragraph 9:
In Entezam & Devi I held that a “reason” to which Regulation 67Q is directed must be a reason connected to the arbitration itself namely, the validity of the process, the consensus of the parties or the integrity of the process. Issues directed to impugning the conduct of the arbitration, especially issues concerning lack of procedural fairness or issues touching upon whether the arbitrator brought an impartial mind to bear in the arbitration go to a consideration of s 13K(2)(a) – (d), themselves pertinent to an application to set aside the award once registered.
Paragraph 11:
The statutory regime under the Family Law Act governing arbitral awards was examined in Entezam & Devi. I incorporate those reasons here. In order for a party to succeed in an application under Regulation 67Q for an order that an arbitral award not be registered, the reason for such an order must be a reason pursuant to which the entire arbitration is void ab initio. That may be by reason of –
a) lack of consensus to arbitration;
b) lack of qualification of the arbitrator; or
c) the arbitrator going beyond the initial reference to arbitration thereby invalidating the arbitral process.
Mr Anthony Strik was instructed by solicitor Asher Liew of JACK RIGG SOLICITORS in these proceedings. Given this was the first time this point was argued before a superior court, each party was to bear their own costs under s117 Family Law Act. The Court in dealing with Costs took into account there was no earlier authority on point in this court. It was not unsound for respondent to have argued the point given FCCA authority. The Court said, “That (this) uncertainty called for clarification.”
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See also the ALRC views on registration of Awards in the link below…