Property – arguable arbitral award ‘review’ under s13J not an appeal

In Paviello [2022] FedCFamC1F 592 (2 September 2022), Wilson J heard a wife’s application to “discharge” an arbitral award following its registration ([1]).

The wife’s grounds centred around the husband’s alleged material non-disclosure ([7]). The husband and the second respondent sought the dismissal of the wife’s review application.

Wilson J said (from [19]):

“So far as the procedure under s13J was concerned … counsel for the review applicant declined to [make] … submissions before me on the meaning of ‘review’ as opposed to the meaning of the word ‘appeal’ … Counsel for the first respondent relied on … Braddon v Braddon[2018] FCCA 1845 and in Pavic & Pavic [2018] FCCA 3386. In both of those decisions the judge pronounced that on a review application under s13J the review applicant must establish error of law. … I express my gravest reservation that the word ‘review’ in s13J requires the review applicant to demonstrate error of law. … [I]t 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. …

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[24] The ‘review’ to which s13J is directed does not involve a hearing de novo … [I]t seems to me to be unlikely that the legislature is to be taken to have intended that an arbitrator to whom a s79 application is referred for determination in pursuance of s13E is to apply different considerations to those a judge must apply when determining a s79 application. So, when a dissatisfied party takes the s79 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. …

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[28] Here, the arbitrator specifically identified non-disclosure as a matter to be taken into account under s75(2). Far from that not being an error of law, s75(2) expressly permitted its consideration.”

The application for review was dismissed; the parties were to file submissions as to costs.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).